Simple answers to stupid questions

Discovery Institute boss Bruce Chapman considers healthcare reform, and wonders Is it Constitutional?

The answer is: Yes.

This has been a simple answer to a stupid question.

FWIW, Chapman’s point is slightly less stupid than one might think, focusing on a commission tasked with presenting Congress with recommendations about reforming Medicare, which commission’s recommendations would be implemented unless overruled by a 2/3 vote in Congress. “[I]t seems hard to credit any legal argument,” Chapman quotes a Disco. fellow writing, “that enables a current House of Congress to bar future Houses from reconsideration, via a super-majortiy [sic] vote. Put simply, the current Congress cannot diminish the power of subsequent Congresses to rescind legislation.”

Congress already does such things all the time. You’ve got BRAC, which blocks future Congresses from amending the proposals of a commission regarding which military bases should be closed or given new missions. Congress may only give those proposals a vote yes or no. And through anti-democratic provisions like the filibuster, the Senate regularly binds the hands of future Congresses, and I’ve not seen Disco. complaining about the dysfunction introduced by that procedure. Nor do I hear the DI complaining about the return of congressional rules requiring new spending to be paid for by cuts elsewhere in the budget or increases in taxes or fees. These so-called PAYGO rules were rescinded during times of Republican majority, and re-imposed in 2006 when Democrats retook the House (where they were introduced in 1990, expiring in 2002 following 4 years of neglect).

Those are the counterexamples I can think of off the top of my head. A genuine nerd, the sort of person with a real interest in the constitutional and legal history of the issue, could doubtless cite dozens of other examples where Congresses voluntarily limited their future actions. That Bruce Chapman and his Institute’s fellow could not think of any at all is not encouraging.


  1. #1 DaleP
    December 27, 2009

    Hmmm. A bit more complicated than that. One Congress can limit a future Congress by law, but only until a future Congress repeals that law. When the Congress returns, it could pass a law abolishing the BRAC process in mid-stream (with signature of Pres or veto override). I presume, then, any base closings would then require an Act of Congress, with each base named (I think this is the way it was done before, with very complicated politics). This Congress won’t do that, but it could.
    Whether, Congress can establish a commission that requires a 2/3 vote to override, is the question. If The Supreme Court agrees that the commission is only carrying out existing law, maybe okay. If the SC decides the commission decisions amount to new laws, it won’t fly; Constitution says laws by majority vote of house and senate, then pres signature, etc.
    I think it requires special procedures for one Congress to repeal a law it itself passed, since the issue was previously considered, but I bet there is a way.