Saturday, July 23, 2011

The Amendment to balance the budget would unbalance the Constitution

Things are coming to a head with the budget default in this and the upcoming week in Washington D.C.  - I really don't think we've seen anything yet - and one of the well meaning proposals being touted as being able to save the day is the "H.R.2560 Cut, Cap and Balance" proposal, a significant portion of which is S. J. RES. 10: Balanced Budget Amendment.

Would it be a good idea for congress to balance the budget? Absolutely. Would a Balanced Budget amendment be a good idea? Maybe. Is the current Balanced Budget Amendment a good idea? Absolutely not.

Why? I've got a number of problems with the amendment, but let me give you the least first, by looking at the current problem, and what's proposed to remedy it.

What's our current budget problem? That Congress spends money on programs which it was never granted the authority to engage in. What congress is authorized to engage in is stated under Article 1, Section 8 of the Constitution; what it does state there, congress may do - what it doesn't state there, congress may not do. Not a complicated concept.

Is congress currently following Article 1 Section 8 of the Constitution? No. That's the problem.

And sooo the proposal for fixing this problem – that of congress not following the written wording of the constitution – is what? The proposal is that in order to force congress to follow the text of the constitution, we should add more text to it – and by doing that, congress, which is currently ignoring the constitution, and/or deliberately misreading particular clauses of it, such as the Commerce Clause, General Welfare clause, etc, so that they can do whatever it is that they want to do, this same congress is now going to pay close attention to the meaning and intent of this new text in the constitution?

They already know what they should do, but they don't do it, because they want to do something else - what magical power will these new lines of text have which the existing text of the constitution doesn’t have? Shouldn’t a new solution contain something more than the same old problem?

That is seriously the proposed fix for our problems? My first reaction is that the problem doesn't lay in the Constitution, but in the people, especially with We The People, who are no longer so very concerned with following it. If you want to fix our problems, it seems to me that you've go to fix that issue first. Do that, and the rest will fall into place.

At which point I'm usually called impractical. Okay, so let's move on to what modernity considers to be practical, which is laying out plans to mandate that effects precede their causes. And I'm the impractical one!

But taking things on their terms I'll admit that a balanced budget would certainly be a good thing, and an amendment to bring that about could possibly help... that is if it said no more than something like this:
"Congress shall balance its budget each year, will always meet its financial obligations, and will take on no further non-essential defense obligations than it can meet."
But the present Balanced Budget Amendment doesn't say only that, in fact it says a great deal more. Keep in mind, that if that was what it was the amendment was meant to accomplish, then that would be all it said. You can pretty much judge the legitimate aims of a law by its brevity - the longer it is, the less the law likely has to do with its stated aims, and the more likely it is that it's going to be concerned with the real business of politics - disbursing favors and gathering, retaining and exerting power (Compare our original Bill of Rights with the healthcontrol law for further reference.)

And while as modern laws go, this one is fairly brief, but one sentence would have done the trick, the rest is there to expand power, not to restrain it. And you can see how little it will restrain government from doing what it wants, by taking note of how weak it's restraints are. What are they?

What this amendment says is that,
  • in Section 1, it will balance it's budget... unless it's too difficult to do:
"unless two-thirds of the duly chosen and sworn Members of each House of Congress shall provide by law for a specific excess of outlays over receipts by a roll call vote."
  • It also says it will make congress pay its obligations... unless it's too difficult, Section 2:
"unless two-thirds of the duly chosen and sworn Members of each House of Congress shall provide by law for a specific amount in excess of such 18 percent by a roll call vote."
  • In Section 3 it gives... well, I'll come back to that in a moment.
  • It goes on to claim that it won't raise taxes to fix the budget... unless of course that seems like the easiest way to get what they need, Section 4:
"...Any bill that imposes a new tax or increases the statutory rate of any tax or the aggregate amount of revenue may pass only by a two-thirds majority of the duly chosen and sworn Members of each House of Congress by a roll call vote."
  • And, very timely for today, it says it won't increase your debt, it won't buy more than it can pay for... unless it really wants something, Section 5:
"The limit on the debt of the United States shall not be increased, unless three-fifths of the duly chosen and sworn Members of each House of Congress shall provide for such an increase by a roll call vote."
  • Borrowing? Congress isn't about to harsh it's mellow over concerns about its available income with  trifles such as how much of its income is borrowed, or how much of what it pays is going towards principle on the debt,
"‘Section 9. Total receipts shall include all receipts of the United States Government except those derived from borrowing. Total outlays shall include all outlays of the United States Government except those for repayment of debt principal."
Those are the serious, hard-hitting restraints, this amendment proposes?

Now congress being what it is, and always will be - gloriously imperfect - I could maybe live with such a mushy amendment, at the very least it'd draw more publicity than normal to their bad behavior. And, I'll admit, that the required two thirds or three fifths majorities (in most sections), are not minor hurdles to overcome, they'd require congress to exert some measure of united effort to override those barriers.

But that is not the worst of it, not even close, as you'll see with these next two issues. First, lets have a look at Section 10. It says that
  • Congress will have, and use, it's power to make whatever laws it thinks this mushy amendment enables them to make (but pay special attention to the last part):
"The Congress shall have power to enforce and implement this article by appropriate legislation, which may rely on estimates of outlays, receipts, and gross domestic product."
Did you catch that? "which may rely on estimates"... what estimates? And more importantly, whose estimates?

Good question, and this begins to bring us back to the most momentous part of this whole proposal, the section I skipped over earlier, Section 3.

Good stuff here... from Caesars point of view anyway. You see, the estimates about the nations Gross Domestic Product aren't known until well after the year in question is over and all the deposits are tallied, sooo what they rely upon are estimates of what the GDP will be.

Who makes those estimates? Experts, of course, you know, those same experts who have been noted month after month over the last several years in news stories about the economy, in phrases such as "Experts were surprised today by higher than expected..." loses, unemployment numbers, poor performance, etc.

Yep, those experts. But there's more to it than that, we're not talking simply any ol' run of the mill experts, no, we're talking about the "Bureau of Economic Analysis", and would you care to guess where you can find that particular group of experts hanging their hats? Why, in the Department of Commerce, of course. And under whose control do you suppose you'll find the Dept. of Commerce, and it's Bureau of Economic Analysis to be? Hmmm? Whose thumbprint is it that is pressed firmly down upon all of their pointy little pinheads?

Why, that would be the President of the United States of America, that's whose.

Really, congress has it rough in comparison, they've at least got to get 2/3 of themselves together in order to ignore the 18% of GDP cap, but the POTUS, he's got it easy, he doesn't have to fit his wish list to their estimates, he simply has to see to it that his wish list doesn't conflict with what his experts will estimate  18% of GDP to be.

What could possibly go wrong there?

But wait, there's more!
But even the fact that the President will be in charge of making a budget that will be made based upon the estimates of those agencies which he has total control and power over, misses the most serious issue amidst a diversion of estimates. Take a closer look, for this is the heart of the matter:

Section 3:
" Prior to each fiscal year, the President shall transmit to the Congress a proposed budget for the United States Government for that fiscal year in which--

  • ‘(1) total outlays do not exceed total receipts [allow me to draw your attention back to Section 9]; and
  • ‘(2) total outlays do not exceed 18 percent of the gross domestic product of the United States for the calendar year ending before the beginning of such fiscal year."
The worst, most egregious piece of this 'balanced budget' amendment, is that it removes from Congress, its most vital and exclusive Constitutional responsibility, that of the power of the purse, and it hands it over, pretty as you please, to be shared (for the moment) with the executive branch in the person of the President of the United States, via his brand new power, that of writing the Budget of the US Govt.

New? Really? Doesn't the President always propose a budget?

Sometimes, sometimes he does propose a budget, most presidents do, which Congress can choose to read, ignore or laugh at it, as they did with this President's last budget proposal... but in terms of the Constitutional power, he does not propose the budget of the Govt. of the United States - Congress does, as originated by the House of Representatives. This amendment undoes that.

Now that's a big f'ing deal.

The Power of Persuasion and the Persuasion of Power
Here's what the old dead white guys had to say about the budget:
"No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time."
The word Budget does not occur in the Constitution. At all. That may be a problem, an oversight. Perhaps. But also perhaps what wasn't said, but was understood, is something we should take note of. It was understood, expected, assumed (ASS-U-ME) that the members of the Govt, legislative, judicial and executive, would be responsible and protective, of the money of the people of the USA.

Justice Joseph Story put it this way,
" The object is apparent upon the slightest examination. It is to secure regularity, punctuality, and fidelity, in the disbursements of the public money. As all the taxes raised from the people, as well as the revenues arising from other sources, are to be applied to the discharge of the expenses, and debts, and other engagements of the government, it is highly proper, that congress should possess the power to decide, how and when any money should be applied for these purposes. If it were otherwise, the executive would possess an unbounded power over the public purse of the nation; and might apply all its monied resources at his pleasure. The power to control, and direct the appropriations, constitutes a most useful and salutary check upon profusion and extravagance, as well as upon corrupt influence and public peculation. In arbitrary governments the prince levies what money he pleases from his subjects, disposes of it, as he thinks proper, and is beyond responsibility or reproof. It is wise to interpose, in a republic, every restraint, by which the public treasure, the common fund of all, should be applied, with unshrinking honesty to such objects, as legitimately belong to the common defence, and the general welfare. Congress is made the guardian of this treasure; and to make their responsibility complete and perfect, a regular account of the receipts and expenditures is required to be published, that the people may know, what money is expended, for what purposes, and by what authority."
Obviously, few if any, members of our govt still have that view... I however, question whether passing another piece of paper, with all the power of the paper which the Constitution currently holds over them, is going to do a damn thing to fix the problem. In fact, I believe it will exacerbate the problem. Big time.

What something actually means and intends, is not the concern of those in power - getting anything which has been said, to be interpretable as what they'd prefer it to mean, IS. For instance, look at this video clip from five years ago - for the moment ignore the fact that it's Sen. Harry Reid (D) talking - I've no doubt that I could dig up several Republican Senators and Representatives who were for raising the debt limit then, but not now.

Instead, I'd like you to see that here's A politician, in this case one who happens to be from the left, saying something he is at total odds with today,

"They should explain that more debt is good for our economy. How can the Republican majority in this congress, explain to their constituents, that trillions of dollars of new debt, is good for our economy. How can they explain, that they think it is fair to force our children, our grand children, and our great grand children, to finance this debt through higher taxes - that's what it'll have to be - why is it right to increase our nation's dependence on foreign creditors to finance this. They should explain this..."
Now ask yourself, why was it wrong to raise the debt limit for the 'worst economy in fifty years' of 2006, but ok for the worst economy in 80 years of 2011? The answer is that the Truth of the matter was the furthest thing from his mind; what he was concerned with was winning. Period. Swaying opinion, winning over public opinion to his favor was the only thing that mattered to Sen. Reid or Sen. Obama, and very likely Sen. McConnell as well; because for them the end justifies the means - and while I do believe that that view is more prevalent on the left than the right, it is spread liberally across both sides of the aisle.

And that is what spells disaster for us all in this Balanced Budget Amendment. Those reading and applying the constitution today are not doing so with an eye towards the power of reasonable persuasion, but towards using the persuasion of power to get what they want. Again, don't even concern yourself with who, or which party, is in the Oval office now, look at this responsibly - historically - with an eye to your grandchildren.

Look again at Section 3, which declares that the President shall submit a budget. Now DON'T read that as a person possessed of common sense, remember, we're dealing with Congress and the courts here, look at this from the point of view such as that which decided the case 'Wickard v. Filburn'. This is a view which found that a private farmer who chose in 1941 to grow additional bushels of wheat for the private use of his family - not selling it, simply using and consuming it - could be contrived as unlawfully altering the economy of the nation, interfering with the federal govt's mandates on interstate commerce, and so constituted a federal offense, and it is a view that is still prevalent, and if anything more so, today.

Got that? Yes, it really happened. Got that in mind?

Now with that twisted perspective firmly in mind, add to it the fervent intentions of some sincere politico wanting desperately to do the GOOD which he just KNOWS could be accomplished... if he could just get govt to do what he knows is best... with that mindset in place, NOW try and imagine what such a person could do with this phrase:
"Prior to each fiscal year, the President shall transmit to the Congress a proposed budget for the United States Government for that fiscal year ..."
Remember, the Constitution has never before even mentioned a budget, let alone anything about the President having any part in proposing one or anything else with the POTUS having anything at all to do with the power of the purse. Prior to this proposed amendment that power of the purse has been the sole province of the House of Representatives. So why was this added? But no, Why is irrelevant, it really doesn't matter why it was added, not for someone looking to squeeze power out of what they have at hand to work with, what matters is only how a politician would try to argue it to their advantage in order to do the good they just know you need to have done to you. And it might go something like this,
Well obviously this amendment was proposed to remedy the previous system which congress and the people agreed had failed, and they agreed that the new system was to be improved by allowing the President to propose those necessary laws and bills required to balance the budget.
Isn't that about how it would likely go?

'Wha...? No...!' you say, 'This amendment doesn't say anything about the POTUS proposing bills and spending bills... only a budget!"

To which our doppelganger’s twisted mindset would don their best lawyer specs and say
"Now wait a minute... we're discussing a budget here, are we not? WHY propose a budget, except to do some particular things? Does a budget typically contain a broad and general lump sum only? NO, it contains line items, items to be proposed and acted upon! After all, this wasn't a "Proposed Spending sum limit' amendment, this was a Budget amendment! And as such the President has obviously now been given the power to propose budgetable items,which we all know typically consist of spending bills and other laws. Clearly that is the case, is it not? And really, it doesn't change things all that much, once the President  proposes his budget, congress is still free to discuss & vote on these issues, they're still free to either ratify... or decline them..."
And don't let the last part about voting lull you, if the process didn't heavily depend upon the House being in sole control of proposing matters of the purse, it wouldn't have explicitly stated that only the House could originate raising revenue  in Article 1, Section 7,
"All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills."
Madison said that,
"The house of representatives can not only refuse, but they alone can propose the supplies requisite for the support of government. They in a word hold the purse;"
That power is an essential check upon the other houses and branches of government, it is the People's check upon them all, and it is vital to the balance of power in our government. Blackstone considered it the most effectual check upon would be tyrants, as did our Founders. This Balanced Budget Amencment is potentially a massive breach and destabilization of the constitution. Maybe not today, or tomorrow, but certainly within the very near future.

The language of this proposed amendment will easily be interpretable in such a way, if not today, tomorrow, as giving the power of the purse to the POTUS. If you think that's far fetched, recall how the Fourteenth amendment has been twisted to modern purposes, or how the Commerce Clause was turned into absolute control over any activity that could conceivably be considered to affect the economy, down to the point of forbidding a private farmer from growing additional crops for his own family.

If the careful use of the meaningful language of our Founders could be twisted to that effect by simply ignoring the meaning of the language, imagine what can be done with the sloppy imprecise wording of this amendment.

If a balanced budget amendment was as simple as what I proposed above... it might have a chance of accomplishing what it claims to do... doubtful, but maybe. But this? It's hard not to question whether this conglomeration of half truths and weasel words was ever meant by its authors as a meaningful law, but however it was originally meant, it will be used, to expand power, not to restrain it.

The Balance of Power Unbalanced
Congress really ought to put down their polling numbers, turn off the T.V. News, toss out today's newspapers and instead pick up a history book or two. Either of these would do for our purposes here, Anthony Everitt's Cicero: The Life and Times of Rome's Greatest Politician, or Augustus: The Life of Rome's First Emperor. No need to pay any attention to the particular details, you know, civil war, coups, assassinations, etc, those are simple details which apply to their time, not ours. No, look rather at how those with power, or who were fearful of power, reacted to turbulent and uncertain times, and gained control of the power to alter their government in ways a few felt would be better. Look less at the particulars and more at the methods which Octavius... aka Caesar Augustus, employed to get around the Senate, he made them irrelevant, while still managing to make them feel important and useful. Look at the regulatory agencies, and look at our proposed amendments. Think.

What Augustus accomplished, he accomplished with bureaucracies, executive orders, speeches, propaganda and the equivalent of photo-ops and so forth. Congress really ought to pay attention... it sure seems like someone at the other end of Pennsylvania Avenue has.

And you know what they say about those who fail to learn from history, they are doomed to repeat it... or at least rhyme with it.

For a more in depth look at the Balanced Budget Amendment, have a look at this post by Publius Huldah, she nails it.

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