by Nicole Flatow
A constitutional amendment to balance the nation’s budget is set to be considered by the House of Representatives next week, and its chances for passage appear low. “But the fact that so many House members support the amendment is alarming," writes former Acting Solicitor General Walter Dellinger in The New York Times. "[I]f it were to become law, it would do grave harm to our constitutional system, because the process for enforcing it would be uncertain and perilous."
Dellinger, a partner at O’Melveny & Myers and a member of the American Constitution Society’s Board of Advisors, explains in an op-ed that an amendment mandating that “[t]otal outlays for any fiscal year shall not exceed total receipts for that fiscal year” places an “empty promise” in our Constitution and could have a “very corrosive effect.”
Because of the many implementation and enforcement questions raised by a balanced budget amendment, the entire budget process is likely to end up in court, Dellinger suggests, particularly given that new versions of the amendment “clearly contemplate judicial involvement and even provide that members of Congress can bring lawsuits to enforce the limits.”
“Allowing federal judges to make fundamental decisions about spending whenever outlays threatened to exceed receipts would be an extraordinary expansion of judicial authority,” Dellinger writes.
Even conservative constitutional scholar Robert H. Bork has warned that such an amendment would result in “hundreds, if not thousands, of lawsuits around the country, many of them on inconsistent theories and providing inconsistent results.”
On the other hand, if courts declined to get involved in the budget process, "it would render the amendment unenforceable," Dellinger notes.
It would be wonderful if we could declare that from this day forward the air would be clean, our children well educated and the budget forever in balance. But merely putting such things in the Constitution — as some foreign governments have done — would not make them happen.