Balanced Budget Amendment

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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10 Responses

  1. TJ says:

    I have no insight on the question you ask, but I do want to point out that your three options are really two. Someone still needs to enforce the “legislative trigger” — i.e. figure out if the budget is balanced or unbalanced, since there are numerous ways to play with government accounting. Either you leave that to the political branches (in which case the BBA is mainly aspirational), or you send it to a third party like a court (in which case it is tantamount to judicial enforcement).

  2. Gerard Magliocca says:

    The CBO (Congressional Budget Office) could be the third party.

  3. TJ says:

    Well, that is only because the CBO is (deservedly, as far as I have heard) seen as truly non-partisan. But if you are vesting it with the enormous unreviewable power of imposing tax increases or spending cuts (whichever mechanism the trigger is), I seriously doubt that it will stay that way for very much longer. Courts and the OLC used to be seen as non-partisan, too. Next we’ll see appointment fights over the head of the CBO, much as the Fed is now becoming increasingly a political issue.

  4. BL1Y says:

    The aspirational view has some weight to it.

    Many of the founding fathers (John Quincy not included) believed the Bill of Rights to be unnecessary. The Congress wasn’t given the power to restrict speech, so why an amendment protecting it?

    One of the arguments was that the explicit restrictions on Congress’s power gave the people a clear authority to appeal to when opposing the state’s action. It makes them more aware of their rights, and more willing to stand up for them (and stand up in defense of others’ rights, even people we really hate).

    A balanced budget amendment could have the same force. Plus, getting it passed requires such a huge majority that a congressman would have to be insane to risk an unbalanced budget proposal, and only like 15% of the House is actually insane.

    What will be interesting is how war is treated. Imagine trying to fight WWII without running a deficit. But, nowadays we’re always at war somewhere. A balanced budget amendment would need the war exception to be explicitly invoked by Congress, but even that might not really be enough. For all the aspirational force of the amendment, security and the “war on terror” also have a lot of pull.

  5. Joe says:

    Courts were seen as partisan back in the 1790s.

    The aspirational prong has something going for it but there is no need to stop at war. There would be various things that will occur that would warrant exceptions. To think otherwise would be insane. Thus, there will be various accounting tricks and definitional moves to get around the provision.

    Such things counsel against the BBA. The idea that “war” is uniquely an exception is far from neutral and underlines the ideological sentiments behind these debates. Concern for government spending tends to be selective, at least to the degree the concern is great enough even to get a majority, even more so the supermajority necessary for an amendment.

    The exceptions in the amendment [and most tend to have some policy affected exception such as an “obscenity” exception to the 1A] or its execution would be telling.

  6. Rick says:

    I believe that there is to much power built up in the congress. I think that the house and senate should be set on 2 terms in office so where that the memebers work more for the interest of the people instead of many of there own interest. I am a liberal, but I see new blood in the congress every election barring a lot of the years of lobbing for special interest and lowering the spending and reducing the deficite.

    I believe the salaries of congress should be tied to the deficite and on years it increased cut their saleries and years they cut it give them a raise.

  7. Louis says:

    I am not opposed to the Balenced Budget Ammendment , in theroy, but we must be sure that we as Americans understand that such a measure could, and probably will, necessatate the levy of heavy new taxes on ourselves and our posterity.
    We must also insure that our federal government has adequate power to respond to war,national security, natural disasters,the continuation of Social Security and our public obligations to federal government retirees.This is not an easy question nor do I expect an easy answer anytime soon. Sensable and righetious stewardship of the public purse and the public trust combined with a multitgenerational public outlook that promotes financial responsability is a better course to take rather than painting ourselves into a another form of financial corner.

  8. Rod says:

    While I believe living within a balanced budget is a good thing, I do not support a Balanced Budget Amendment requiring us to do so. Let me explain. In our household we meet our expenses, thus we live on a balanced budget. However, at one time we had to borrow money to purchase our home and cars. If we truly lived under a Balanced Budget for our household, we would have had to save money first and pay cash for those things. While that idea is great, it is not practical for probably 99% of us. I personally do not know anyone who has paid cash for their home. Again, living within our means is the “right thing” to do, but I cannot support a Constitutional Amendment requiring that we do so.

  9. Greg says:

    I agree, Rod.

    Also, I think that in the current political environment trying to pass such an amendment is a herculean waste of the congresses time.

  10. ChrisC says:

    We must change the model so that the government does not spend more than it takes in. That is an unsustainable model.
    In reply to the original question on how to implement a Balanced Budget. In the current budget model it implies that our spending is in line with our tax revenue forecasts. That could leave us overspending and defeating the balanced budget objective.
    The only reasonable alternative I can see is to only set a budget based on the tax revenue from the previous year. From that point the budget would be based on priority. In other worse you collect before you spend.
    The need to handle emergency situations could be handled by saving money just like well managed households and businesses do. This has the added benefit of eliminating a lot of need for the CBO who spend a lot of time with tax forecasts. If you need to spend beyond that you need to take money away from something else in the short term and lay on new taxes for the next year to address the need.
    I agree that the current set of politicians would not support something like this but that is why we the people have to find those who are and put them in office.