Tulsa Law Review


Amid deeply polarized discourse over spending choices, Congress has resorted frequently to the particular device of binding “automatic” cuts, a form of Congressional precommitment whereby Congress takes steps at time one with the intention of changing the likelihood it will make certain choices at time two. I argue that these devices are dis-ingenuous in two ways. First, legal analysis shows they do not actually bind Congress, even as they claim to. To the extent they have any traction, it is by appealing to our nor-mative reluctance to flout pre-existing rules, which, in other words, means they work by invoking the ideology of “legalism.” Legalism, as defined by political theorist Judith Shklar, is the norm privileging rule-following, which is seen as “neutral,” over other forms of decision-making, which are “political.” However, in the realm of guns-or-butter spend-ing choices, the invocation of legalism is disingenuous, since these decisions are deeply politically contested. Not only do they purport to bind when they don’t, these Congres-sional precommitments also purport to be neutral when they are politically purposive ef-forts to lock-in preferences. This article analyzes and debunks the three main methods of precommitment, and then applies those findings to sequestration and the Independent Payment Advisory Board from the health reform law, to show what happens when we try to make these kinds of political decisions by legalistic “automatic cuts” which deceptively purport to be a more rule-bound, “neutral” approach. I find that these precommitments amplify the advantages of status-quo majorities over minorities, while undercutting the values of transparency and coherence.

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