Taxation and spending are immensely important federal powers, and federal budgeting involves dealing with them together. Taxing and spending together are used to produce what often is called new property, which in its fiscal form consists of benefits provided by the government and funded by taxation. Old property, by contrast, consists of correlative claims and duties of private people, and associated private powers and their correlates. Old property has a substantial amount of stability deriving from the fact that legislation is required to change the legal relationships that create it, and legislation usually takes substantial political effort. In default of legislative action, the legal norms that create and protect old property remain in place. Moreover, to some uncertain extent, the Constitution itself limits changes with respect to old property through the Takings Clause (and its projection through the 14th Amendment) and sometimes through principles of substantive due process.

This chapter is about the stability of new property and, in particular, of the most important form of new property created by the federal government, Social Security old-age benefits. It seeks to mine the analogies and disanalogies between old and new property. The first section discusses the statutory structure that governs the taxation and spending associated with Social Security, with a specific focus on the extent to which Congress has insulated it from legislative change. That insulation is substantial but does not equal the stability associated with old property because of the funding mechanism that Social Security uses.