by Jeremy Leaming
The House, led by Democratic members, defeated a proposed constitutional amendment to mandate a balanced budget. Opponents of the so-called balanced budget amendment argued that the proposed measure contained no mechanism for ensuring that the federal budget would indeed be balanced and would require courts to intervene in sorting out budgetary matters.
The measure, similar to one the House passed in 1995, mandates that the federal government could not spend more revenue than it takes in. The proposed 
amendment, pushed by Rep. Robert Goodlatte (R-Va.), was defeated by a 261 – 165 vote, The Associated Press reports.
“A constitutional amendment is not a path to a balanced budget,” Rep. Lloyd Doggett (D-Texas) said. “It is only an excuse for members of this body failing to cast votes to achieve one.”
Earlier this week, Rep. Chris Van Hollen (D-Md.) sent a letter to fellow Democrats opposing the amendment, and urging them to read an ACS Issue Brief released this week examining “the dangers of enshrining a balanced budget requirement within the Constitution.”
Rep. Hollen’s letter concluded, “A Constitutional amendment that cannot easily be enforced to balance the budget is a hollow gesture that at the very least will be ineffective. At the very worst, a balanced budget amendment enshrined within the Constitution could generate a Constitutional impasse with catastrophic consequences.”
The ACS Issue Brief by Neil Kinkopf, a Georgia State University law school professor, states, in part, that the proposed amendment “provides no express enforcement mechanism. The leading proposals simply declare that total outlays shall not exceed total receipts, without explaining how this balanced budget is to be achieved. Merely imposing a mandate does not mean Congress will be able to fulfill it.”
Attempts to enforce the amendment, Kinkopf continues, would likely wind up dragging the judiciary into the morass, fundamentally altering the relationship between the branches of government.
“If the courts were to play their usual role as constitutional interpreter and enforcer with respect to the balanced budget amendment, however, it would threaten not merely to alter but to eviscerate the fundamental character of the judiciary,” Kinkopf writes. “Our judiciary is able to perform its function because it is independent of politics, and because the public trusts that independence. This character stems from the Constitution’s specific design. Federal judges do not depend on politics to maintain office and do not participate in the political functions of government.”
Earlier this summer, former Solicitor General Walter E. Dellinger III also noted the perils of drawing the judiciary into these matters, writing in a piece for The New York Times, “Allowing federal judges to make fundamental decisions about spending whenever outlays threatened to exceed receipts would be an extraordinary expansion of judicial authority.”
Dellinger wrote that the judiciary would likely find a way to avoid performing such “a profoundly inappropriate role,” thereby rendering the constitutional amendment “unenforceable.”
He concluded:
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.
The vote on a proposed constitutional amendment was required by the debt ceiling law that was passed in August. The Senate is likely to vote on a measure later this month or early next month. The Times reported in early November, “The version likely to come to the floor of the Democrat-controlled Senate would prohibit Congress from providing income tax breaks for the millionaires except in a time of surpluses while protecting Social Security from the amendment.” Any version, however, faces an uphill battle in the Senate.
Audio of a briefing on a proposed amendment featuring Kinkopf and Dellinger is available here.
Post new comment