The Courts Would Not Enforce a Balanced Budget Amendment

Not this one, at any rate, and probably not any one. Ezra Klein thinks I missed the bit about the courts barring enforcement of the BBA by raising revenues, but I actually called it (sarcastically) my second-favorite provision in the resolution...my post was long and perhaps convoluted, so here's a second post to clarify. Oh, and before I get to that -- for my favorite provision, you'll have to go to The Plum Line.

I should get to the point. Klein thinks that if Congress doesn't balance the budget the courts would get involved. I'm not a lawyer, but I know a bit about the constitution and about the budget, and I can't see any way that the BBA will wind up getting enforced by the courts. Here's what Bruce Bartlett said a while back about Balance Budget Amendments in general:

For such an amendment to be operational and not just a meaningless expression of intent,  there has to be a point in the budgetary process when the federal courts can enjoin spending or force tax increases. This is obviously a very bad idea in principle, but it’s also impractical. As a legal matter, we would have no way of knowing that the budget was in fact unbalanced until the fiscal year had ended. Even a federal court can’t make people give back federal funds that have already been paid out for interest on the debt, Social Security and Medicare benefits, wages and salaries for government workers, payments for goods and services, etc. Thus a balanced budget amendment of the sort Republicans propose is effectively unenforceable.

In other words...say that the BBA was in effect now. The key provision says only that "Total outlays for any fiscal year shall not exceed total receipts for that fiscal year." So if someone goes to court and says that the government is violating the Constitution with respect to the coming fiscal year, FY 2012. How can the courts step in? Are the courts going to act based on projections? That's not going to happen. What about the current fiscal year? Could they issue an injunction telling the government it can't spend any more money this year -- again, based on projections? I very much doubt it.

The courts could, presumably, evaluate FY 2010 or FY 2009 and discover that the government violated the Constitutional provision for those years. But what kind of remedy would be available? As Bartlett says (and as I said earlier), they can't exactly go around and ask people to give back their Social Security checks from two years ago. Perhaps in a generic BBA, they could require taxation, but this BBA cuts off that option.

(And I'm not even sure that would make any sense. The proposed amendment doesn't say anything about balance over a long term; it only speaks of balance within fiscal years. Recovering old government payments in 2011 wouldn't fulfill the plain language of requiring balance during FY 2010, would it? I don't think so).

There is another relevant provision here, the one about limiting spending to a particular percentage of the previous year's GDP. I suppose this one might be something the courts could entertain, although again not in advance, I don't think. If, however, the government hit the 18% of GDP cap in the middle of a fiscal year, I don't really know what the courts would do. Would they really be willing to shut down the government -- all the government, ongoing military missions included? How could they choose to exempt anything?

There may be some state-level cases I'm not aware of, but I just don't see a BBA as enforcible.

For lots of wonkish detail, see this list of resources Bruce Bartlett put together.