Balanced Budget Amendment Would Threaten Constitutional Order, ACS Issue Brief Warns

by Nicole Flatow

Passage of a balanced budget amendment would “threaten to tear irrevocably the fabric of our constitutional structure,” warns separation of powers expert Neil Kinkopf in a new ACS Issue Brief.

With the House of Representatives set to vote on a balanced budget amendment proposal this week, Kinkopf’s Issue Brief explains the dangers of inserting policy prescriptions into our founding document.

Kinkopf, a law professor at the Georgia State University, notes that only once in our history did the Constitution dictate an outcome, when the 18th Amendment was passed, but “[s]uch a failure was this deviation from the Constitution’s design that it stands as the only amendment ever to be repealed.”

“The founding generation faced divisive controversies that were every bit as momentous as the present-day budget crisis," Kinkopf writes. "Yet they consciously designed the Constitution not to resolve these issues, instead leaving them to be resolved through the constitutionally ordained process of legislation in compliance with constitutionally guaranteed individual rights.”

The other problem with a balanced budget amendment is the impossibility of properly enforcing the amendment, Kinkopf explains. 

Enforcement actions will likely end up before judges, improperly transferring Congress’s “power of the purse” to the judicial branch and bogging down judges with drawn-out litigation. Kinkopf notes that these concerns are shared by former Nixon solicitor general Robert Bork and former Reagan solicitor general Charles Fried.

“If the courts were to play their usual role as constitutional interpreter and enforcer with respect to the balanced budget amendment, … it would threaten not merely to alter but to eviscerate the fundamental character of the judiciary,” Kinkopf writes.

And there is another enforcement wrinkle. If lawsuits are filed after outlays have already exceeded revenue, the result could be a complete government shutdown “unlike the much more limited statutory shutdowns that have occurred from time to time,” which contain a number of exceptions.

The alternative — no enforcement -- is equally alarming, Kinkopf explains, as empty constitutional promises that cannot be properly enforced erode the integrity of the entire document.

"As nations around the world have discovered, placing a statement of principle in a constitution does not mean the principle will be obeyed," he writes. "Many constitutions ‘guarantee’ a clean environment or freedom from poverty; the only effect when such promises fail is that the constitution is not taken seriously as positive law, the kind of law that may be invoked in court by litigants."

Kinkopf and former acting solicitor general Walter Dellinger, a member of the American Constitution Society’s Board of Advisers, discussed the constitutional problems with a balanced budget amendment during a media phone briefing today. Listen to an audio recording of the briefing here.