Professor Neil Kinkopf

by Jeremy Leaming

A proposed balanced budget amendment is dead, for now. The Senate defeated two versions of the measure aimed at enshrining in the Constitution a demand that the federal government maintain a balanced budget.

The House handily defeated a version, similar to one Congress nearly passed in 1995, last month. The Senate, however, had to vote on a so-called balanced budget amendment because of the deal reached in late summer to end the debt-ceiling debacle. The Senate, mostly along Party lines, rejected two versions of a balanced budget amendment.

Sen. Dick Durbin, (D-Ill.), speaking from the Senate floor yesterday, said some of his colleagues “believe we should enshrine in our Constitution their views of what the federal budget should look like. They want to radically reshape our constitutional framework in order to relieve Congress of its political and moral responsibility to make tough choices about taxing and spending. They want to tie the hands of Congress on budget decisions and pass important decisions on to another branch of government, our federal judiciary.”  

“This is not what the Founding Fathers intended,” Durbin continued. “The Constitution gives the power of the purse expressly to Congress. Fulfilling the constitutional duty carries some political risk, but we all signed up for that job. Members of Congress should not try to change the Constitution to avoid their duty to make tough and important decisions.”

Earlier this month, Alan B. Morrison, a distinguished law professor at George Washington University, testified before a Senate panel against a balanced budget amendment. Morrison, in part, said the measures being considered would likely force the federal courts into budgetary matters. He said that “thrusting the courts into budget battles is to me, and I believe to most others who have given the matter any serious thought, a terrible idea.” Morrison’s entire testimony is available here.

Durbin, during his floor remarks, cited Morrison’s testimony, saying, “He asked the basic question: Who is going to enforce this amendment? If in fact Congress does something in violation of the amendment, who can sue? And which court would consider it? It is a valid question because ultimately this will end up in the courts. The courts will have to make some rather unique decisions. What are the outlays and receipts of the United States? What was the gross domestic product? These are issues which many in the court may find challenging if not impossible to deal with on a timely basis.”