Re: Congress Can’t Bind Congress

by Stanley Kurtz

Andy, I worry about this trend toward Congress trying to bind future Congresses. It may simply be a matter of smoke and mirrors, since technically one Congress cannot bind another. On the other hand, there is a danger that all these efforts could set some nasty precedents that do begin to gather strength. I’ve been concerned about the constitutional issues raised by IPAB, Obamacare’s Medicare rationing board. The procedural restrictions on future Congresses included in IPAB’s mandate are deeply troubling. With luck Obamacare will be repealed and/or future Congresses will refuse to abide by the enacted restrictions on its procedures. But what if Obama is re-elected and Obamacare sticks? And what if Congress goes along with the restrictions on its powers imposed by IPAB? That would set a very dangerous precedent for the creation of other regulatory boards effectively freed from ordinary Congressional authority.

I’ve been reading a bit lately about the origins of the EU. European countries gradually lost significant authority over their own laws because judges ruled that, by joining the EU, they had effectively ceded sovereignty to that supernational authority. It was a bad legal argument, but even Maggie Thatcher didn’t have the ability to take the controversial measures needed to fight the precedent.

Could the same thing happen here? That is, could the continuing debt crisis, which really has only barely begun to play out, combined with the precedent of Obamacare and IPAB, lead to many more delegations of sovereignty by Congress, and the rise of a regulatory apparatus effectively insulated from Congressional authority? It may not happen, but I don’t think we can entirely dismiss the possibility. It started with special provisions for the consideration of base-closings, then IPAB, now the deficit super-committee. There’s a pattern here.

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