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Do We Really Want the Courts Making Budget Decisions? A Constitutional Requirement to Balance the Budget Will Involve the Courts

Nov 14, 2011

Dear Democratic Colleague:

            This week House Republicans have scheduled a vote on H.J.Res. 2 (as amended), which would amend the U.S. Constitution to require a balanced budget every year.  This Constitutional amendment would have catastrophic consequences on federal priorities, would weaken Congress's ability to govern, and would open the door to courts intervening in federal budget decisions.  I urge you to vote against the Constitutional amendment.

            In the attached legal analysis from the American Constitution Society, Professor Neil Kinkopf examines the dangers of enshrining a balanced budget requirement within the Constitution.  Merely imposing a mandate within the Constitution does not mean that the Congress will be able to fulfill it.  Hence, the gridlock that this amendment seeks to overcome may still prevail. 

            H.J.Res. 2 (as amended) inserts a requirement to balance the budget into the Constitution, but does not contain a specific enforcement mechanism.  It merely indicates that Congress shall enforce this amendment through legislation.  The reality is that if Congress could enact legislation that balanced the budget, Congress could do that without a Constitutional amendment requiring a balanced budget. 

            The elevation of a budget-balancing requirement to a Constitutional mandate will undoubtedly provoke litigation.  Ever since the decision of Marbury v. Madison, the Supreme Court has jealously guarded its authority to interpret the Constitution.  By writing a budget requirement into the Constitution, budget disputes become Constitutional questions.  Accordingly, there is a growing consensus that if such an amendment is passed and ratified, the courts will become involved in budget controversies.

            Key legal practitioners have warned of the consequences of amending the Constitution to require a balanced budget:

  • Judge Robert Bork opposed a balanced budget constitutional amendment, declaring "[t]he result . . . would likely be hundreds, if not thousands, of lawsuits around the country, many of them on inconsistent theories and providing inconsistent results."
  • The late Professor Archibald Cox of Harvard Law School predicted that "there is a substantial chance, even a strong probability, that . . . federal courts all over the country would be drawn into its interpretation and enforcement."
  • The former Solicitor General to President Reagan, Professor Charles Fried, has testified that "the amendment would surely precipitate us into subtle and intricate legal questions, and the litigation that would ensue would be gruesome, intrusive, and not at all edifying."
  • The former Attorney General to President George H.W. Bush, William Barr, opined that judicial power could be invoked "to address serious and clear cut violations."

            In light of past intractable budget disputes, it is clear that even one lawsuit resulting from the Constitutional amendment could have far-reaching consequences.  In the past, budget disputes have shut down the federal government.  Since these impasses were "legislative" in nature, Congress could address the problem through a continuing resolution, or with an emergency exception that was construed to permit the continuation of "emergency government services" until a resolution could be reached.  No such exception would be available if the impasse is of a Constitutional nature and a shutdown is mandated by the courts.

            The Amendment before us has no general emergency waiver.  The only waiver provided in H.J.Res. 2 is for "war" or for "military conflict which poses an imminent and serious threat to national security" and is declared by a bicameral majority resolution that is enacted into law.  The only means of averting a total government shutdown – potentially involving the layoffs of first responders, air traffic control, border patrol, Social Security administrators, etc. – would be by a supermajority vote of three-fifths of each chamber of Congress.  The recent dispute over raising the debt limit brought us perilously close to a default on the U.S. debt due to conflicting ideological views on how we should pay our country's bills. There is no reason to assume that Congress could muster the requisite votes to "enforce" a budget mandate ensconced within the Constitution.

            If the enforcement of H.J.Res. 2 is left to Congress, the prospect of achieving balance is questionable.  The elevation of budget disputes to Constitutional questions will undoubtedly add complexity to an already challenging process.  It is likely to provoke litigation, thereby leaving budget decisions to the courts, which are ill-suited to make these decisions.

            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. 

            I urge you to vote "No" on H.J.Res. 2.

            For more information about the legal opinion, please contact Karen Robb of the Budget Committee Democratic staff at 6-7200.

Sincerely,

/s
Chris Van Hollen
Ranking Democrat

Click here to view a PDF Version of this 'Dear Colleague' letter and the accompanying legal analysis from the American Constitution Society