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Congress can take away your entitlements


I’d like to add something to my Washington Examiner colleague Conn Caroll’s blogpost noting that there is no such thing as “mandatory spending” under Obamacare. He points out that Congress could at any time stop such spending by passing a law including the phrase, “notwithstanding any other law or regulation.”

Most Americans may not realize it, but this is also true of “entitlement” programs like Social Security. Under current law outlays continue without an annual appropriation passed by Congress. But Congress could change that.

The Supreme Court established that principle in the 1960 case of Fleming v. Nestor. Fleming was the Health, Education and Welfare Secretary. Nestor was a Communist who had been deported from the United States. He had paid Social Security taxes but was denied benefits because of a law denying them to those who had been deported. The Supreme Court upheld the denial.

“To engraft upon the Social Security system a concept of ‘accrued property rights’ would deprive it of the flexibility and boldness in adjustment to ever changing conditions which it demands,” Justice Harlan wrote for the Court. “It is apparent that the non-contractual interest of an employee covered by the [Social Security] Act cannot be soundly analogized to that of the holder of an annuity, whose right to benefits is bottomed on his contractual premium payments.”