A NUMBER OF sound arguments have been raised against the constitutional amendment to require a balanced budget besides the fact that no one (see above) has a clue how to achieve this noble goal. The amendment does not permit the flexibility government needs to adjust to different economic conditions. It tends to discourage honest budgeting and gives Congress and the administration an incentive to phony-up the numbers, so they can say there is no deficit when in fact there is. And there is the irony that this amendment is proposed by a president who has been unable to present a budget that is balanced for this year--or for any year in the foreseeable future.
But for those who find these arguments unpersuasive, let us advance another, in the hope that it might lead them to show the caution that is appropriate when alterations in the Constitution are proposed. It is this: the constitutional amendment purporting to require a balanced budget would be an open invitation to the courts to intervene in the budgetary process--a process that even the most activist courts heretofore have left pretty much alone.
To understand why the courts would intervene, consider some of the language in the amendment, and ask whether or not reasonable people might interpret it differently:
"Prior to each fiscal year, Congress is required to adopt a statement . . . in which total outlays are no greater than total receipts." Economists and budget analysts will always disagree on what should be counted as "outlays" and "receipts"; remember the fuss last year when David Stockman proposed that certain "off-budget" items should be included in the budget? If the amendment is ratified, such disputes might end up in court.
"The Congress and the president shall ensure that actual outlays do not exceed the outlays set forth in such statement." Who is supposed to enforce this? The local sheriff? There is undoubtedly a federal judge somewhere willing to try.
"Total receipts . . . shall not increase by a rate greater than the rate of increase in national income." National income is an even more elusive concept than government outlays or receipts. It is determined by statistical methods, about whose validity reasonable people can and do differ. Perhaps taxpayers who feel that the government's receipts and their own taxes have increased more rapidly than this clause allows would have standing to sue. Could a court then order taxes lowered? Which taxes? By how much?
"The Congress may not require that the states engage in additional activities without compensation equal to the additional costs." Anyone familiar with the assiduousness with which states lobby for greater federal aid and sue when they have the slightest hope of getting more will recognize that this clause will be the subject of hundreds of lawsuits. States will argue again and again that their "compensation" is not equal to "additional costs" or that activities are "additional." The courts will decide whether they are right.
We find it odd that so many conservatives who have inveighed against judicial activism are supporting a constitutional provision that would spawn so much litigation over undeniably political issues-- how the government raises and spends money. We wonder if they have reflected on the fact that most of the sitting federal judges were appointed by President Carter, and that there are among their number many whom conservatives would consider dangerous judicial activists. It is possible to imagine misguided lower court decisions that, though ultimately overturned, could in the meantime change congressionally established policy on taxes, defense and domestic spending. Is this what the president and others who rejoiced at the results of the 1980 election want?