I have serious concerns about the efficacy of a Balanced Budget Amendment.

Who’s going to enforce the Amendment? The Federal Courts have the power to construe and enforce the U.S. Constitution including its Amendments. So if the budget is not in balance, what remedies might the courts impose?

North Carolina provides and instructive case. Under the North Carolina Constitution, the state legislature is required to “provide by taxation and otherwise for a general and uniform system of free public schools, which shall be maintained at least nine months in every year, and wherein equal opportunities shall be provided for all students.”

North Carolina funds a pre-K program for “at risk” 4 year olds. But the NC General Assembly cut the funding of the program by about 20%. The program is called More at Four:

More At Four defined at-risk children as those whose families earn below the statewide average, who have a disability or chronic health problem, come from a family that doesn’t speak English at home, or have parents on active military duty.

Because the state budget, passed by the General Assembly and signed by Democratic Governor Beverly Purdue, would mean up to 4,000 fewer children could not be enrolled in the program, lawyers went to court. Because of a 1997 NC Sup Ct ruling (the Leandro case) that said all children were entitled to an education that worked, Superior Court Judge Howard Manning agreed with the plaintiffs and ruled that the budget could not be cut.

Manning said that “It is the duty of the State of North Carolina to protect each and every one of these at-risk and defenseless children, and to provide them their lawful opportunity, through a quality pre-kindergarten program.”

Put aside the fact that nothing in the NC Constitution or the Leandro case required pre-K education programs. Note particularly that the judicial system has construed the state constitution in a manner to dictate how state funds are spent.

Now imagine this on a larger scale. You have a balanced budget requirement, court cases are brought over everything from spending cuts for education, the military, the Department of Commerce, Social Security, Medicare, “green energy”, foreign aid, Iraq, and the teapot museum.

If we have a federal Balance Budget Amendment, how does it get enforced if Congress and the President don’t balance the budget? Most iterations of the text of the amendment require the budget presented by the president to be balanced. Ignore the possible accounting games, and this protects the president who can easily fulfill his Constitutional duty. But what about Congress? Will courts take the case if the budget is not balanced? If they do, what is the remedy? Judges could dictate spending increases or spending cuts. We could have courts all over the land dictating different approaches to cuts. Courts often refuse to resolve a case or controversy because they deem it a “political question”. If they refuse on these grounds, then does the Amendment even matter?

But if they don’t, then it seems the Congress is handing over its constitutional spending powers to the judiciary branch. And that would upend the Founders considered structure of the separation of powers. You think it’s bad that the Courts “make law,” finding a right to abortion in Roe v. Wade or a violation of the equal protection clause in Bush v. Gore, wait til the courts have the power of the purse.

And a strong power the spending power is. The 21st Amendment to the Constitution repealed prohibition, and gave the States the power to make its alcohol policies without federal interference. But the Congress decided to use its spending power to force the States to raise their drinking ages to 21. Not that Congress had the power to merely pass a law increasing State drinking ages. They knew they didn’t have that power. So Congress used its constitutional powers to spend money on highways – with strings. A State would lose its highway funds if it didn’t raise its drinking age. The US Supreme Court said this was OK in South Dakota v. Dole. Even though the end to be accomplished was not a permissible power of the Congress, its power to spend was broad enough that it could be subject to conditions.

Imagine then, a court construing the balanced budget amendment, while the budget was out of balance. Might a court demand that Congress cut spending, defund a program, or possibly even reallocate monies from one department to another in order to comply with other funding requirements pursuant to Congressional mandate? What would stop the courts from requiring a tax increase, or even a $10/head assessment if it determined we only needed $3.5 billion to regain balance? And then Congress might even write into certain spending laws that they cannot be altered by the judiciary, a power certainly within the power of Congress to remove jurisdiction from the courts.

So, can a Balanced Budget Amendment be workable? The latest proposal requires a 3/5ths vote to override the balance requirement, or that we be in a state of declared war. I doubt that means we’d declare war on Iraq or Afghanistan or Libya just to make the budget work, but I bet the 3/5ths requirement would become standard operating procedure, even if it gave a minority of congress the power to dictate terms, lest things be thrown to the court.

In addition, because of the real difficulty in doing the accounting and making projections about revenues, not to mention occasional emergency expenditures, perhaps the balanced budget should mean it must be balanced over a three year or five year period. Either of which could be abused in order to get the president or Congress past the next election, thereby tethering the next president or next Congress. Obama is making this argument now on the debt ceiling, trying to push its extension past November 2012 in order to mitigate any risk to his reelection and to get the issue out of a highly charged political atmosphere.

Finally, the Amendment could limit the courts’ powers, making it clear the courts could not mandate cuts or revenue increases, but could only issue a stay regarding the current budget. That would then lead to multiple continuing resolutions as the Congress refused to face their responsibility to even pass a budget – as they have over the past 2 years.

In short, I can’t see a workable way to do a Balanced Budget Amendment. Granted, I haven’t studied how things work in those states that do have a such a requirement, but I suspect that national scope of such an Amendment, and the intense focus on it by the media, would mean we were in novel territory.

In any case, I don’t see how it can work. Cut, Cap and try to Balance.