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
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
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years out of date and lawsuits involving the next three fiscal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
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
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. …