During his State of the Union address on Tuesday, President Joe Biden criticized Republicans for proposing to “sunset” Medicare and Social Security every five years. In response, many Republican lawmakers booed the president, prompting him to quip, “So, folks, as we all apparently agree: Social Security and Medicare is off the books now.”
Perhaps these Republicans really do disagree with a plan put forth by a member of their leadership mandating periodic expiration of popular entitlement spending. But at least some of their judges are all for it—and want to transform the idea into constitution law. Recently, the 5th U.S. Circuit Court of Appeals crafted a theory that would empower courts to strike down mandatory spending on federal programs, compelling Congress to either reappropriate the money or let the programs die. This radical and antidemocratic reading of the Constitution would threaten Medicare, Medicaid, Social Security, the Affordable Care Act, unemployment benefits, child nutrition assistance, and so much more. Democrats and Republicans would be foolish to ignore the rebellion against federal spending that’s brewing in the 5th Circuit.
The conservative assault on entitlement programs arose during litigation against a frequent target of GOP ire: the Consumer Financial Protection Bureau, a watchdog agency created in 2010 that protects Americans against exploitative fraud and deceit in home mortgages, credit cards, consumer loans, and retail banking. For years now, right-wing litigators have argued that the CFPB is unconstitutional because it is funded independently: The agency draws its budget from the Federal Reserve, which in turn draws its budget from interest on securities. Because Congress does not directly appropriate money to the CFPB every year, lawyers claimed, its funding violates the Constitution’s appropriations clause.
At least seven different federal courts dismissed this theory until it landed in the 5th Circuit, the nation’s Trumpiest appeals court. In May 2022, Judge Edith Jones—a Ronald Reagan appointee and hard-right bomb-thrower—wrote a 39-page concurrence asserting that the CFPB is funded unconstitutionally. Four other judges joined her. Then, in October, a three-judge panel formally declared that the CFPB’s independent budget mechanism renders the entire agency unconstitutional. Judge Cory Wilson, writing for the panel, revoked the CFPB’s ability to issue or enforce any regulations. (All three members of the panel were appointed by Donald Trump.) Thus, under the current law of the 5th Circuit, the CFPB effectively does not exist.
You might wonder: What does this skirmish over a small financial agency have to do with hundreds of billions of dollars in annual entitlement spending? The answer: everything. In her concurrence, Jones took pains to clarify that her reasoning was not limited to the CFPB. Jones announced that all “appropriations to the executive must be temporally bound.” If Congress does not put a “time limit” on funding, it gives the executive branch too much discretion over spending. Under the Constitution, she claimed, the executive must “come ‘cap in hand’ to the legislature at regular intervals” to ensure that it remains “dependent” and “accountable.” Judge Wilson approvingly cited this idea in his own opinion formally invalidating the CFPB, highlighting the “egregious” nature of the agency’s “perpetual funding feature.”
All told, seven judges on the 5th Circuit have now endorsed the notion that courts must strike down appropriations that allow “perpetual funding” of government agencies or programs. If their view becomes the law of the land, it will empower courts to abolish trillions of dollars in entitlement spending. Why? Because today two-thirds of annual federal spending is “mandatory”—including some of our nation’s most beloved social safety net programs. All of this spending amounted to $5.2 trillion in fiscal year 2021 that would suddenly be at risk of elimination by judicial fiat.
Does this principle derive from the Constitution? Of course not. The appropriations clause at question simply states that all money drawn from the treasury must be “in consequence of appropriations made by law.” There is no textual requirement that Congress reauthorize appropriations periodically. In fact, Article 1 of the Constitution suggests the exact opposite: It bars Congress from appropriating money to the Army “for a longer term than two years,” implying that other kinds of long-term appropriations are permissible. If they weren’t, then why would Army appropriations need an explicit time limit?
Moreover, in their respective opinions, Judges Jones and Wilson complained that mandatory appropriations violate the separation of powers by giving the executive branch too much control over the purse strings. But as Republican Sen. Rick Scott demonstrated in proposing that all federal legislation sunset after five years—the subject of Biden’s critique on Tuesday—Congress can revoke mandatory spending anytime it wants. It is perfectly capable of reducing or even zeroing out funds whenever it chooses. The far greater infringement on separation of powers would occur if unelected judges rescinded Congress’ ability to decide which programs deserve automatic funding.
Rather than grapple with constitutional text, Jones and Wilson used their opinions to toss out platitudes and policy concerns. Jones began her concurrence by complaining, “This nation careens past $30 trillion in national debt, risking bankruptcy during our or our children’s lifetimes.” Wilson began his opinion by quoting Thomas Jefferson’s fears about “elective despotism,” which are relevant only if you think current government spending is despotic. When a judicial opinion opens with a partisan swipe instead of a precedent or constitutional provision, you can bet it’s not actually rooted in the law.
Indeed, the Supreme Court has never supported anything approaching the 5th Circuit’s current assault on long-term appropriations. That’s why Jones’ and Wilson’s opinions are so long on budget-hawk rhetoric and short on anything approaching law. The Justice Department is currently appealing the anti-CFPB ruling to SCOTUS, and there is an excellent chance the justices will take it up: It just isn’t tenable for a federal agency to have no power in the entire 5th Circuit, which covers Texas, Louisiana, and Mississippi. Even the banking industry, which loathes the CFPB, is worried that the agency’s destruction would wreak regulatory havoc. And it’s difficult to imagine that five justices would take the leap toward implementing a Rick Scott–style doctrine that lets the judiciary sunset trillions of dollars in mandatory spending, stripping millions of Americans of federal assistance.
Then again, it is currently impossible to predict how far this Supreme Court is willing to go. The conservative majority has repeatedly courted chaos, tossing out precedent higgledy-piggledy and leaving the country in a constant state of suspense over what the law is. The fact that we have to take this threat seriously is, in itself, a big part of the problem. Elected Republicans may have backed away from slashing Social Security and Medicare, likely because it would be incredibly unpopular. But the firebrands they put on the bench are entirely unaccountable to the voters. And their campaign to write Scott’s ideas into the Constitution cannot be stopped by any election.
