Avoiding the danger of a ‘clean’ BBA

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Liberals are trying to kill the prospect of a balanced-budget amendment (BBA) in the ongoing battle over the debt ceiling. Some on the right respond that they might settle for a “clean” BBA. But there are two types of clean BBAs, one of which would be worse than no BBA at all.

Some advocate that the BBA should require only that federal outlays do not exceed federal tax revenues. They see it as two numbers, where the former must be less than the latter.

But this misses one critical point. If the BBA only requires government to spend less than it collects, there are two ways to fix it. The first is to cut spending; the second is to raise taxes.

Many supporters of a clean BBA are not worried. Although they acknowledge the risk, they’re willing to take it on the grounds that they can use the prospect of electoral defeat to exert political pressure on members of Congress to ensure they don’t vote for tax increases.

But what about the courts? What if a judge orders a tax increase? A judge could if the BBA only says that spending must be less than revenue.

Courts currently lack the power to make changes to taxes or spending. Article I and the Sixteenth Amendment of the Constitution only authorize four types of taxes — excises, imposts, capitation taxes and income taxes — and specifies that Congress is the branch with the power to levy these taxes.

The framers specifically wanted fiscal control in the hands of elected legislators. “No taxation without representation!” was the battle cry that helped precipitate the American Revolution.

So only Congress can tax, spend or borrow. Congress’s control over the purse strings gives legislators leverage over the other branches. And the members of one congressional chamber — the House of Representatives — must stand before the people every other year, ensuring that those with taxing and spending power are strictly accountable to the voters.

But a clean BBA would change that. It would create a constitutional command. A private party with standing could ask a federal judge to remedy a violation of a clean BBA by ordering increases in taxes to close budgetary gaps.

Advocates of a clean BBA point out that with every provision in a BBA, it becomes harder to find the votes for the two-thirds supermajority needed to vote the BBA out of Congress and propose it to the states, where it would very likely be ratified in short order.

Each provision in the BBA currently proposed in Congress is there for a reason. The best version is Senate Joint Resolution 10, the Hatch-Lee version, which has 11 sections.

Section 8 of the BBA in S.J.R. 10 specifies that no federal or state court can order a revenue increase under this amendment. In other words, it leaves open the possibility that political gridlock between the elected branches might result in a court cutting federal spending, but it will never result in a court hiking taxes.

This is critically important. Federal judges hold their offices for life to insulate them from politics so that they can faithfully uphold the Constitution and laws, even when doing so is extremely unpopular. This is especially vital when public outcry pushes Congress and the president to do something unconstitutional, leaving judges free to strike it down.

But to grant judges the power to raise taxes would be antithetical to the constitutional design of political accountability for taxes. It would create a perverse incentive for members of Congress who want to raise taxes but are politically vulnerable to foster gridlock on spending battles, then let the courts do their dirty work for them by increasing taxes to make up the shortfall.

The bottom line is that the only type of “clean” BBA that should even be considered is a second variety. In addition to specifying that revenues must exceed spending, it must ensure that no judge has the power to raise taxes.

America’s problem is our debt, not our debt ceiling. We desperately need a BBA to tackle our debt. But a BBA that allows judges to hike taxes would be even worse than the status quo.

Given how horrible the status quo is, that’s quite a statement.

Ken Blackwell and Ken Klukowski are on the faculty of Liberty University. They are the best-selling authors of Resurgent: How Constitutional Conservatism Can Save America.