Will Balanced Budget Disturb Balance of Power?

Article excerpt

ALTHOUGH THE IDEA of a constitutional amendment to require a balanced budget has been examined and debated for nearly 60 years, at least one big question remains unanswered: What happens if the amendment takes effect and Congress fails to balance the nation's budget?

It's a scenario that could "constitute enormous and highly problematic changes in the current allocation of power among the branches of government," David Strauss, a professor at the University of Chicago Law School, testified at a recent Senate Judiciary Committee meeting.

That's because, legal experts predict, federal judges will probably get involved in the budgeting process, just as they have done with the budgets of school districts under desegregation orders.

Even Rep. Henry Hyde, the Illinois Republican who heads the House Judiciary Committee and supports the amendment, acknowledged court involvement is likely.

"That's not a happy prospect," Hyde says.

The amendment stirs opposition even among some of the country's most conservative thinkers, who are angered by increased judicial activism and are horrified at the idea of courts ordering tax increases or spending cuts.

"The results of such an amendment would be hundreds, if not thousands, of lawsuits around the country," former Judge Robert Bork once wrote. "By the time the Supreme Court straightened the whole matter out, the budget in question would be at least four years out of date and lawsuits involving the next three fiscal years would be climbing toward the Supreme Court."

Others say the amendment also would give the president more power over budgets, which would run afoul of the separation of powers doctrine.

The amendment, which House Republicans made the first plank of their Contract with America, enjoys grass-roots support in the states - although that support may be weakening as state officials begin to fear they will be forced to make up the difference if the federal government slashes spending to balance the budget.

Thirty-eight states must ratify the measure after it is passed by Congress for it to become a new amendment.

On Thursday night, the U.S. House approved the amendment 300-132, more than the two-thirds majority needed to send the measure to the Senate.

Most states already have enacted laws or amended their own constitutions to require legislatures to balance the state budgets.

The experience of the states has convinced many analysts that a federal balanced-budget amendment would be a hollow requirement that would mire federal courts or the president in the budgeting process and tarnish public confidence in the Constitution.

"States don't balance their budgets," said Louis Fisher, a senior specialist with the Congressional Research Service. "There are almost an unlimited amount of techniques to avoid the strict balanced budget."

States, Fisher said, are particularly fond of keeping two budgets: an operating one for running the government and a capital one for things like education, sewer systems and highways. They will balance the operating budget, but not the capital one. …