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Breaking: Congress Cannot Tie the Hands of a Future Congress

Once and future Rep. Alan Grayson makes an obvious point about this whole Super Committee business. It turns out that their recommendations, even if signed into law, need not have any impact on the desires of the 113th Congress when it gets sworn in.

Here is a simple fact, which seems to have eluded this tea-infused Congress. One Congress cannot dictate to any other Congress. Particularly when it comes to taxing and spending. So all of this gnashing of teeth and rending of garments over what the federal deficit might be in ten years is utterly — utterly — pointless. It’s like trying to amend the law of gravity.

Under Article I, Section 7 of our Constitution, each Congress has the same right as another other Congress to legislate. This includes “raising Revenue” and “Appropriation of Money.” (The Founding Fathers were pretty wacky when it came to initial caps, weren’t they?) So our 112th Congress can “pass a Bill” setting the federal deficit for this year and next year, but that’s about it. Anything that goes beyond the first week of January, 2013, when the 113th Congress will be sworn in, is subject to change by that Congress, and every subsequent Congress.

The Constitution also has this to say on the subject, in Article I, Section 8: “no Appropriation of Money [to raise and support Armies] shall be for a longer Term of two Years.” (Which tells us precisely what the Founding Fathers would have thought about a 10-year war in Afghanistan and an 8-year war in Iraq, but that is another story.)

This is definitely true, but the fact that we, you know, have had a 10-year war in Afghanistan and an 8-year war in Iraq suggests that those recommendations, or the trigger sequestration in the likely event of a Super Committee deadlock, will have at least a fighting chance. The likely outcome is that the lame duck Congress, in other words this Congress, will make changes after the 2012 elections on a host of issues, including the Bush tax cuts and the fallout from the Super Committee. And the incoming Congress in 2013 will either go along with those changes or alter them further. The trajectory of those changes depends on the outcome of the 2012 elections. It’s very hard to predict that trajectory at this moment.

I will add this, however: the presence of a President who signed the Budget Control Act and may sign Super Committee recommendations would be a driving force on any alterations. It would be the result of a negotiation, to be sure. But if Obama is prepping his second inaugural, he’s going to be more likely to demand his way on these issues. That would mean an expiration of the Bush tax cuts only on those making over $250,000. It would probably also mean changes to the trigger cuts to protect the defense budget. But this is mostly speculation.

Ryan Grim got a bunch of Senators on the record saying that there will be a negotiation in the lame duck on these issues. So when I breathlessly report the twists and turns of the Super Committee, keep in mind that nothing they choose to do – or don’t choose to do – is set in stone.

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David Dayen

David Dayen