Wednesday, November 23, 2011
Neil Kinkopf (Georgia State) recently posted an American Constitution Society Issue Brief that challenges the Balanced Budget Amendment as an unenforceable, symbolic gesture that is, at best, dangerous to our constitutional order. (We posted on most recently on the proposed Amendment here.)
Kinkopf argues in The Balanced Budget Amendment: A Threat to the Constitutional Order that the Balanced Budget Amendment contains no enforcement mechanism: it's not enforceable by Congress; judicial enforcement is beyond the expertise of the court and would raise all kinds of practical problems; executive enforcement would give too much power to the President, with none of the transparency that the Constitution envisions; and independent enforcement would bring all the problems of executive enforcement and then some.
Kinkopf concludes that all that's left is an empty symbol. But there's a problem with that, too: its inevitable and repeated violations would undermine the constancy of other clauses in the Constitution that are not merely aspirational or symbolic. In other words, any way you cut it, the Balanced Budget Amendment undermines our constitutional order.