It appears as certain as these things can appear that Congress will propose a balanced-budget amendment this year, despite some misgivings about a provision requiring a three-fifths vote to raise taxes. Most of our collective attention has been focused on the idea of the amendment in general. It's time we think a bit more about details. Whether or not one believes the amendment is a bad idea economically, it is quite clear that it is a disaster constitutionally. It needn't be, at least if tied to another currently popular idea: the line-item veto. And if the budget amendment's passage is a foregone conclusion, then opponents as well as supporters need to think a more about these constitutional problems. There is more at stake than this simple amendment.
The constitutional flaw in the balanced-budget amendment is that it is simply unenforceable. By its terms, it requires that expenditures not exceed receipts. It does not say what happens if expenditures do exceed receipts. It does not, for example, specify whether a court can review the matter. (Under a legal doctrine called "standing," it appears no court could.) If a court can review the matter, who gets to raise the claim? (May any taxpayer sue Congress?) What exactly is a court to do once it hears the claim? (Does the court enjoin Congress to raise taxes or enjoin the President from spending money?) Giving the responsibility to enforce the amendment to the courts is a recipe for sinking the courts or sinking the amendment.
And if a court cannot enforce it, then who can? The amendment gives no guidance, and without a clear command, it will stand flouted and helpless within our constitutional regime. It is the first purely aspirational amendment in our constitutional tradition--a plea that Congress control itself, worth far less than the paper it will be written on. As it stands, it is, as House Minority Leader Richard Gephardt calls it, a gimmick: one that will at best engender cynicism about constitutional law in general, and at worst infect other areas of the Constitution with its uselessness.
There is a simple solution to the amendment's problem. It comes by marrying the amendment to the line-item veto. There is good reason to be skeptical about the line-item veto, if only because it represents such a fundamental change in the power of the President, a further aggrandizement of presidential authority already far exceeding the framers' design. But in the context of this amendment, a limited line-item veto may do some good.
If a problem with the balanced-budget amendment is that there is no clear way to enforce it, the amendment could define who has the power to enforce it--the President, through the line-item veto. And if the problem with a line-item veto is that it gives the President too much power in setting national policy generally, then the balanced-budget amendment could limit this veto power to just those cases when the budget is unbalanced. So structured, the President would have a special veto power only when Congress has failed in its responsibility to balance the budget. But if Congress' failure is understandable, or excusable, or necessary, then the President could permit Congress its lapse by not vetoing the extra spending, and then by taking the political heat if he and Congress turn out to be wrong.
Tying the balanced-budget amendment to the line-item veto would create a constitutional power to balance the budget, vested in an officer who could effectively exercise that power, tempered by a political judgment (the President's) that allows for exceptions where exceptions are needed.
Gimmicks have not been the hallmark of our constitutional tradition; they should not become its staple now. If an unbalanced budget is a constitutional problem--in my view, a very big "if"--then we should find a way to balance it that does not wreak havoc on the Constitution or the courts that traditionally enforce it. Democrats and Republicans can do something to ensure just that, if not just for the Republicans' contract, then for the Constitution.