12.12.2012 0

Is ‘mandatory’ spending constitutional?

U.S. Constitution

Photo Credit: sherrymain/Flickr

By Bill Wilson — In 2013, $2.2 trillion of the $3.65 trillion budget will be on so-called “mandatory” spending — a Washingtonian euphemism for automatic spending.

This is money that will be spent regardless if Congress ever votes on anything ever again — with the notable exception of the debt ceiling, without which the government will lack the capacity to deficit-spend and to refinance the existing $16.3 trillion national debt.

Today, such spending comprises approximately 60 percent of the entire budget. By 2022, the White House Office of Management and Budget (OMB) projects it will rise to $3.7 trillion, or 62 percent of the $6 trillion budget.

All told, members of Congress never get to vote on three-fifths of the entire budget. Not really. It just operates on autopilot, and even increases of its own accord as a function of the rising population that qualifies for benefits and built-in cost-of-living adjustments.

It includes Medicare, Social Security, Medicaid, interest owed on the national debt, unemployment benefits, food stamps, the earned income and making work pay tax credits, Supplemental Security Income, disability, and more.

To cut or even modify such spending takes 60 votes in the Senate — i.e. a filibuster-proof majority — something Republicans have never had since Rule 22 was adopted in 1917 and modified in 1975 lowering the requirement to a three-fifths majority from two-thirds to invoke cloture.  Never.

The implication of such a system is that “mandatory” spending would rarely ever be cut. In fact, according to data compiled by OMB going back 50 years, it has never been cut on a net basis, and if past performance is any indication, probably never will be.

But is such a design constitutional?

Or have previous Congresses unlawfully bound future ones?

Supporters of entrenchment of future Congresses argue that Congress does it all the time. It borrows from future generations. It taxes future generations. So what makes spending different?

Article I, Section 9 of the Constitution states that “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.” Yet, every single year, more than $2 trillion is spent without any votes authorizing it. Is that legal?

Suppose for a moment this Congress suddenly decided that the entire $3.6 trillion budget was to operate on autopilot, would increase automatically with population and inflation, and that to amend it, it would require the unanimous consent of every elected member in both houses.

Such would effectively block any future Congress from modifying the budget ever again, and abrogate all spending to the executive branch as a practical matter.

Those who argue that the current regime of “mandatory” spending is constitutional would have to similarly support a system that required unanimous votes to modify the budget. After all, there is no constitutional requirement for majority votes to pass legislation in either house of Congress.

But if Article I, Section 9 means that only one vote is ever necessary to pass a budget for all time, then elections are a useless contrivance, a mere puppet theater to create the illusion of representation. All of the most consequential budgetary decisions have already been made before representatives were ever elected, or in some cases before they were even born.

It is time for the House and Senate to reclaim the power of the purse. One way to do that would be to test the notion of “mandatory” spending in the courts. Another would be to amend the laws that result in “mandatory” spending to include annual sunset provisions, thus requiring eligibility requirements for Social Security, Medicare, Medicaid, unemployment, etc. to be voted on every single year.

Either way, it is clear that since “mandatory” spending has never been reduced, unless Congress is required to vote on it, it likely never will get it under control.

Bill Wilson is the President of Americans for Limited Government. You can follow Bill on Twitter at @BillWilsonALG.

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