Can Harry Reid Save HealthCare From Repeal?

Can Sen Harry Reid's no repeal provision in the Healthcare bill be binding? Reed wrote into the bill, "it shall not be in order in the senate or the house of representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection". The term for this kind of action is called entrenchment. In a posting by Eric Posner; Entrenchment Provisions in the Health Care Bill, he asks and answers the question, Can Congress bind itself in this way? As it happens, I have written a paper on this topic (with Adrian Vermeule). The short answer is “no,” or at least, no one thinks that Congress can bind itself in this way. (For some Supreme Court dicta, see U.S. v. Winstar, 518 U.S. 839, 872 (1996).

In US vs Windstar, the Government referenced William Blackstone, an English judge who wrote a definitive work on Common Law. “In his Commentaries, Blackstone stated the centuries old concept that one legislature may not bind the legislative authority of its successors." and referenced a Supreme Court State Rights case, " Hence, although we have recognized that "a general law . . . may be repealed, amended or disregarded by the legislature which enacted it," and "is not binding upon any subsequent legislature", Manigault v. Springs.

US vs Windsor was a violation of contract case filed against the US Government. After the Savings and Loan scandal in early 1990's, the Government gave Windstar and other financial institutions, tax incentives to take over failing S and L’s. The Government then tried to renege on these incentives and Winstar sued. The government tried to use the argument against entrenchment to justify their actions.

In US vs Windsor, the government referenced a legal essay, Temporal Limits on the Legislative Mandate: Entrenchment and Retroactivity (1987); Julian N. Eule that is more on point. The following is an abstract from JSTOR on the Eule essay: “According to the general wisdom, legislatures lack both the power to "entrench" their enactments against alteration by their successors and the power to "retroactively" undo the efforts of their predecessors. The author argues that, rather than being in conflict, these principles share a common theme. Legislatures operate as agents of the people under constitutionally defined mandates that are limited in time as well as scope. Actions that transcend-either forward or backward in time-the temporal delegation of authority conferred by periodic elections do not bind the electorate. In the first half of the article the author suggests that an understanding of the rationale behind the entrenchment prohibition can help shed light on a diverse group of issues including congressional power to prescribe internal rules of operation, constitutional amendment procedures, and legislative impairment of contracts. In the second half of the article the author takes issue with the traditional objection to retroactivity grounded on vested rights and unfulfilled expectations. In its place he proposes a theory of retroactivity embodied in republican principles concerning the temporal relationship between the people and their legislative agents.”

The court dismissed the entrenchment defense, and found in favor of Windsor. The court took notice of the Eule Article, but said “Although Congress subsequently changed the relevant law, and thereby barred the Government from specifically honoring its agreements, we hold that the terms assigning the risk of regulatory change to the Government are enforceable, and that the Government is therefore liable in damages for breach.” In other words the government had the right to change the law, but all entrenchment arguments aside, the Government is responsible for the monetary consequences of that change.

Posner explained that everything from indebtedness to wars, are uncontroversial entrenchments. However, a Legislature could not entrench a future Legislature to a pre-determined course or strategy, once the next Legislature took control. A Congress at time 1 can pass all the entrenchment provisions it wants, but Congress at time 2 can repeal them by majority rule, rendering the entrenchment provision nugatory ex ante (having no future authority).