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Amend America is the national clearinghouse for news and information on efforts to call an Article V convention through an online community of political leaders, legal scholars, and involved citizens who support constitutional reform outside the halls of Congress.

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  • “ … we must realize the Theories of the Wisest Writers …. this could be done only by Conventions of Representatives chosen by the people in the several Colonies, in the most exact proportions.”

    —John Adams (June 2, 1775)

  • “… whenever any Form of Government becomes destructive of these Ends [Life, Liberty, and the Pursuit of Happiness], it is the Right of the People to alter or to abolish it, and to institute new Government ....”

    — Declaration of Independence (July 4, 1776)

  • “Let a Convention then, be tried. If it succeeds in the first instance, it can be repeated as other defects force themselves on the public attention, and as the public mind becomes prepared for further remedies.”

    — James Madison (March 19, 1786)

  • “The plan now to be formed will certainly be defective …. Amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence. It would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account.”

    — George Mason (June 11, 1787)

  • “Col. Mason thought the [proposed] plan of amending the Constitution exceptionable & dangerous. As the proposing of amendments … depend[s], in the first immediately, and in the second, ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should ever become oppressive, as he verily believed would be the case.”

    — George Mason (September 15, 1787)

  • “Mr. Madison did not see why Congress would not be as much bound to propose amendments applied for by two thirds of the States as to call a Convention on like application. ”

    — James Madison (September 15, 1787)

  • “The … best supporters the Constitution … do not contend that it is free from imperfections; but they found them unavoidable … if evil is likely to arise … the remedy must come hereafter; … I think the People … can … decide … on the amendments which are necessary …. I do not think we are more inspired, have more wisdom, or possess more virtue, than those who will come after us.”

    — George Washington (November 10, 1787)

  • “[Article V], moreover, equally enables the general and State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.”

    — James Madison (January 1788)

  • “The words of … [Article V] are peremptory. The Congress ‘shall call a convention.’ Nothing in this particular is left to the discretion of that body…. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.”

    — Alexander Hamilton (August 1788)

  • “It will not have escaped you, however, that the question concerning a General Convention, does not depend on the discretion of Congress. If two-thirds of the States make application, Congress cannot refuse to call one ....”

    — James Madison (January 13, 1789)

  • “Our new Constitution is now established, and has an appearance that promises permanency; but in this world nothing can be said to be certain, except death and taxes.”

    — Benjamin Franklin (November 13, 1789)

  • “The legislatures of the States have a right … to originate amendments to the Constitution, by a concurrence of two thirds of the whole number, in applications to Congress for the purpose.”

    — James Madison (December 1799)

  • “Lastly, the fifth article provides the mode by which future amendments to the Constitution may be proposed, discussed, and carried into effect … the … second [mode] … secures to the states an influence in case Congress should neglect to recommend such amendments, …. [but it] will probably never be resorted to, unless the federal government should betray symptoms of corruption ….”

    — St. George Tucker (May 1803)

  • “But the Chief Justice [John Marshall] says, ‘there must be an ultimate arbiter somewhere.’ True, there must; but does that prove it is either party? The ultimate arbiter [of the Constitution] is the people of the Union, assembled by their deputies in convention, at the call of Congress, or of two-thirds of the States….

    — Thomas Jefferson (June 12, 1823)

  • “That in case of an experienced inadequacy of … [the Constitution’s] provisions, an ulterior resort is provided in amendments attainable by an intervention of the States, which may better adapt the Constitution for the purposes of its creation.”

    — James Madison (May 1830)

  • “Should the provisions of the Constitution … be found not to secure the Govt. & rights of the States agst. usurpations & abuses on the part of the U.S., the final resort within the purview of the Constnt. lies in an amendment of the Constn. according to a process applicable by the States.”

    — James Madison (August 28, 1830)

  • While I make no recommendation of amendments, I fully recognize the rightful authority of the people over the whole subject, to be exercised in either of the modes prescribed in the [Constitution] itself; …. I will venture to add that to me the convention mode seems preferable ….

    — Abraham Lincoln (March 4, 1861)

  • “The people of the State of New York … do enact as follows: SECTION 1. The Legislature of the State of New York applies to the Congress of the United States of America to call a national constitutional convention to repeal Article XVIII of the Constitution of the United States of America, and no other article of the Constitution….”

    — Franklin D. Roosevelt (1931)

  • “Through their state legislatures and without regard to the federal government, the people can demand and participate in constitutional conventions in which they can, through their own action, adopt such amendments as will reverse any trends they see as fatal to true representative government.”

    — Dwight D. Eisenhower (May 26, 1963)

  • “I will also support the resolution now pending before the legislature calling upon Congress to propose a constitutional amendment to balance the federal budget or to convene a constitutional convention to achieve this goal.”

    — Gov. Edmund (Jerry) Brown, Jr. (January 8, 1979)

  • “Instead of displaying utter confusion and an inability to do anything about the [convention] calls from the states, Congress could simply decide that they constitute a call for a constitutional convention on the broad issue of fiscal responsibility and control at the federal level ….”

    — Antonin Scalia (May 23, 1979)

  • “Those who wring their hands over the prospects of a[n Article V] convention run the risk of exposing their elitism, implying that the average citizen cannot be trusted.”

    — Attorney General Griffin Bell (April 14, 1984)

  • “It has now become obvious that … Congress will not act to impose a limit on its own spending. I therefore believe that further action by the States … in petitioning Congress to call for a constitutional convention for the sole purpose of writing a balanced budget amendment will go far towards convincing Congress ….”

    — Ronald Reagan (March 16, 1987)

  • “This reluctance by Congress has inspired a number of Americans to try [for]… a constitutional convention … [to] propose a balanced budget amendment, and then send it on to the state legislatures for approval…. If the Congress continues to balk … I think the drive for a constitutional convention will pick up steam.”

    — Ronald Reagan (May 23, 1987)

  • “I will again ask Congress to submit a balanced budget amendment to the States. And if the Congress will not act, I’ll have no choice but to take my case directly to the States [through an Article V convention].”

    — Ronald Reagan (July 3, 1987)

  • “If the Congress continues to oppose the wishes of the people by avoiding a vote on our balanced budget amendment, the call for a constitutional convention is only two states away from approval, and, one way or another, the will of the people always prevails.”

    — Ronald Reagan (August 12, 1987)

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Making Amends

an Article V blog by Andy Hawks

DOG CHASES CAR. DOG CATCHES CAR. WHAT NEXT? (Part 2 – The Amash BBA Alternative)

November 11, 2011

Among the 18-plus competing balanced budget amendments (BBA) now vying for the House Republican leadership’s endorsement is H.J. Res. 81, sponsored by first-term congressman and Tea Party favorite, Rep. Justin Amash (R-MI).  What makes this proposal unusual is that Rep. Amash has not tinkered with the traditional BBA (currently H.J. Res. 2), but instead offers a novel approach that avoids many but not all of the flaws of competing BBAs.  Here is the Amash proposal in its entirety:

“Article ––

“SECTION 1.     Total outlays for a year shall not exceed the average annual revenue collected in the three prior years, adjusted in proportion to changes in population and inflation.  Total outlays shall include all outlays of
the United States except those for payment of debt, and revenue shall include all revenue of the United States except that derived from borrowing.

“SECTION 2.     Two-thirds of each House of Congress may by roll call vote declare an emergency and provide by law for specific outlays in excess of the limit in section 1.  The declaration shall specify reasons for the emergency designation and shall limit the period in which outlays may exceed the limit in section 1 to no longer than one year.

“SECTION 3.     All revenue in excess of outlays shall reduce the debt of the United States.  Upon the retirement of such debt, revenue in excess of outlays shall be held by the Treasury to be used as specified in Section 2.

“SECTION 4.     The Congress shall have power to enforce and implement this article by appropriate legislation.

“SECTION 5.     This article shall take effect in the first year beginning at least 90 days following ratification, except that outlays shall not surpass the sum of the limit described in section 1 and the following portion of the prior year’s outlays exceeding that limit (excepting emergency outlays as provided for in section 2): nine-tenths in the first year, eight-ninths in the second, seven-eighths in the third, six-sevenths in the fourth, five-sixths in the fifth, four-fifths in the sixth, three-fourths in the seventh, two-thirds in the eighth, one-half in the ninth, and the limit shall bind in the tenth year and thereafter.”

As BBA drafts go, this one is fairly concise (only 280 words), which is not insignificant when crafting constitutional language.  On the other hand, the Framers set an enviable standard for simple straightforward English, and regrettably the Amash BBA reads too much like a mathematical formula.

Aesthetics aside, the Amash BBA gets high marks for avoiding many of the doctrinal traps of the traditional BBA.  For example:

—     There is no reliance on estimates of outlays and receipts, which can be easily manipulated, but rather on actual revenue collected in the three prior years.

—     There is no provision turning the debt ceiling statute into a constitutional mandate that punishes the American people with threats of government shutdowns and national default – threats that could now become real because of a super-majority voting requirement.

—     There is no super-majority requirement to pass a “bill to increase revenue,” which could stymie tax and non-tax legislation alike.  Republicans are fond of saying that we must increase revenue through economic growth, not tax increases.  Would every bill promoting economic growth now be subject to a super-majority vote?

—     There is no waiver for declared war or “imminent and serious military threat to national security,” which would cause the BBA to be still-born since we are now in a constant state of military conflict, and the “Authorization for Use of Military Force” (Public Law 107-40) enacted on September 18, 2001 following the 9/11 attacks has never been repealed.

—     There is no spending cap based on some percentage of GDP, which would again punish the American people with threats of government shutdowns and national default – only now the Treasury could not even expend monies on essential programs (including the national debt and our troops in combat) once the cap was reached, absent a super-majority waiver.

On the other hand, the Amash BBA has technical problems of its own.  Sections 1, 2, and 5, for example, all use the word “year” without clarifying whether it is the calendar or fiscal year that would be followed.  This is a problem because fiscal year is the only option that makes any sense.  Congress should have the authority and discretion under Section 4 to implement Section 1 and Section 2 using a fiscal year, but this option would not be available under Section 5, which by its own language determines the effective date of the amendment.

Regardless, the natural meaning of “year” is “calendar year”, and this is particularly true of Sections 2 and 5.  If so, then for internal consistency Section 1 and would have to use a calendar year as well, which in turn would force Congress to change the current fiscal year (October 1 to September 30) to a calendar year.

I do not believe that this is Rep. Amash’s intent, but if so, then his proposal needs to be re-drafted to refer specifically to “fiscal year.”  Similarly, it is puzzling why Rep. Amash has chosen to use the word “revenue” in Sections 1 and 3 instead of the more commonly used “receipts,” which is the word found in H.J. Res. 2 and other more traditional BBAs.  Presumably, they are intended to be synonymous.

In any event, let’s assume that the Amash BBA is in effect for FY 2011, and that Congress adopts a fiscal year and “total receipts” approach.  How would the “total outlays” limit in Section 1 be calculated exactly for FY 2011?  As I read the Amash language, there are three steps to follow, none of which are completely clear.

First, whose numbers would we use for the calculations and how exact should they be?  According to the OMB website, Historical Table 1.1 indicates that the total outlay numbers were $2,523,991,000,000 for FY 2008; $2,104,989,000,000 for FY 2009; and $2,162,724,000,000 for FY 2010.  Assuming that it is permissible under the Amash BBA to round off to the nearest million, then the “average annual revenue collected” would be $2,263,901,300,000 for the 3-year period from FY 2008 to FY 2010.

Second, before the average $2,263,901,300,000 figure can be used, it needs to be “adjusted in proportion to changes in population and inflation.”  Population numbers, however, are notoriously difficult to ascertain even if one can agree on the proper definition of “population.” (Are illegal aliens included?).  Presumably, what Rep. Amash is trying to accomplish here is an adjustment upward to account
for population growth over the prior three year period, but won’t this mean that some type of census count every year rather than every 10 years?  How practical is that?

Also remember that Congress is supposed to pass appropriations bills before the fiscal year begins, but adjustments for population and inflation cannot be fully calculated until after the fiscal year begins since the adjustments are based on the three years that immediately precede the year in which the “total outlays” are to be limited.

Calculating inflation in the prior three years can be done more quickly and with greater certainty, but you still need a “constant dollar” standard by which to make the adjustment.  Turning again to the OMB website, Historical Table 1.3 furnishes a set of figures for constant FY 2005 dollars (rounded this time to the hundred millions).  Using FY 2005 as the “constant dollar” standard, the inflation adjusted numbers for the same 3-year period are now $2,524,000,000 for FY 2008; $2,105,000,000,000 for FY Year 2009; and $2,162,700,000,000 for FY 2010.   This results in a slight downward adjustment in the “average annual revenue collected” figure from $2,263,901,300,000 to $2,263,900,000,000 (assuming no adjustment for population).

Note that Section 1 does not include any adjustment for deflation, which would necessarily have the effect of adjusting the prior 3-year revenue average upward to allow for greater spending in the current year.  I do not know if this omission was intentional to prevent an upward adjustment, but if the purpose here is greater accuracy and allowance for economic growth, then this omission would appear to be an important oversight since there is no principled reason for including inflation but not deflation.

Third, now that we have established $2,263,900,000,000 as the dollar limit on “total outlays” for FY 2011 under Section 1, a final calculation is required under the transition rules in Section 5.  Specifically, one more upward adjustment is needed equal to nine-tenths of the amount by which the outlays in FY 2010 exceeded the $2,263,900,000,000 dollar limit.

Since Section 5 does not include an adjustment for inflation, Historical Table 1.1 is again applicable, giving us a total outlay of $3,456,213,000,000 for FY 2010, and an excess amount of $1,192,313,000,000 (nine-tenths of which is $1,073,081,700,000).  Adding this nine-tenths number back to the original 3-year revenue average, the final dollar limit on total outlays under Section 1 is $1,073,081,700,000 + $2,263,900,000,000 = $3,336,981,700,000.

In making these calculations, my assumptions could well be wrong, and I certainly have no problem with Congress enacting an implementation statute that explains precisely how these calculations are to be done.  It is incumbent on Rep. Amash, however, to present what he believes the implementing statute should look like before asking that we support his proposed amendment.

Even if we assume that $3,336,981,700,000 is the correct dollar limit for FY 2011, there is a more fundamental problem that Rep. Amash shares with other BBA proposals and which cannot overcome with technical
drafting changes or a better implementation statute.  This is the enforcement problem of what happens when the Treasury has spent $3,336,981,700,000 and the fiscal year is not over yet.

Like other BBA proposals, Rep. Amash allows for a general “emergency” waiver provision (Section 2), although it is more stringent than most.  Thus, it increases the super-majority threshold for invoking the waiver from three-fifths to two-thirds.  It requires Congress to authorize a specific dollar amount for the “emergency,” while specifying the reasons for invoking the waiver.  It also limits the “emergency” to one year, but how this 1-year period is calculated is ambiguous.

If Congress succeeds in passing the waiver by a two-thirds majority, when does the one-year “emergency” period begin and end?  If it starts on the date of the declaration, then it will necessarily extend through the current fiscal year.  If not, does the “emergency” year start retroactively at the beginning of the current fiscal year, so that no “emergency” spending extends beyond the current fiscal year?

The alternative scenario, especially given the two-thirds threshold, is that no waiver is approved.  Does the Treasury just shut down until the fiscal year expires?  It would seem so since there is no other authority under the Amash BBA for allowing the Treasury to release funds no matter what the money is for.  This of course brings us right back to the debt ceiling crisis and threat of “Fiscal Armageddon” that we faced this past summer.

Under Section 4, Congress has both “enforcement” and “implementation” powers, but the “enforcement” powers are superfluous since Congress can “enforce” a BBA right now with its current tax and spending powers.
The inclusion and limitation of “enforcement” powers in Section 4 to Congress is more likely for the purpose of precluding the President and federal courts from asserting any implied enforcement powers under Section 4.

If so, then we are right back where we started.  Either the waiver provision will be routinely invoked, in which case there is no genuine balanced budget requirement under the Amash BBA, or we shall endure perennial government shutdowns and threats of Fiscal Armageddon.”  In giving us this Hobson’s choice, I regret the Amash BBA is like all the others.

Copyright © 2011 Anthony W. Hawks. All rights reserved.

DOG CHASES CAR. DOG CATCHES CAR. WHAT NEXT? (Part 1 – The Upcoming BBA Vote)

November 5, 2011

One of the bones thrown to Republicans in the recent debt ceiling deal was the promise of a floor vote on some type of balanced budget amendment (BBA) prior to December 31, 2011.  The first such vote is now likely to occur during the week of November 14, 2011.

What I learned at a hastily called meeting of the House Republican Study Committee on Capitol Hill several weeks ago (October 6, 2011) is that BBA supporters are nowhere close to reaching a consensus on what BBA language to bring up for a vote.

Although there have been House BBA hearings as recently as May 2011, the last serious floor action occurred in March 1997, when a consensus BBA proposal sponsored by Senator Orrin Hatch (R-UT) failed by a single vote 66-34.  It has taken 14 years to get another floor vote, and now that it has arrived, BBA supporters are at a loss as to how best to proceed.

It is like the dog that chases the car and then, after 14 years, catches the car, only to realize that it had no plan once the car was finally caught.

When the BBA vote was promised this past summer, it was the baseball equivalent of a “player to be named later” because the statute that finally raised the debt ceiling (Public Law 112-25) required nothing more than a Congressional vote on a piece of paper with the title “Joint resolution proposing a balanced budget amendment to the Constitution of the United States.”  The “player to be named later” would be the substantive content of whatever BBA is ultimately put forward for a vote.

From President Obama’s perspective, this showed supreme confidence that nothing the Republicans might propose would ever pass.  Why else give the Republicans a blank slate to write any BBA they wanted?  From the Republicans’ perspective, it signified something far more troubling: the demise of a consensus BBA that fiscal conservatives of both parties could rally around.

The consensus proposal from 1997 has been routinely re-introduced over the years, and its current incarnation can now be found in H.J. Res. 2, sponsored by Rep. Robert Goodlatte (R-VA).  But Senator Hatch and Rep. Goodlatte are both having second thoughts because the old consensus bill did not try to limit spending, which Tea Party groups correctly understand is the central problem driving our deficits.

Consequently, Senator Hatch has sponsored two new versions of the old consensus proposal, S.J. Res. 3 and S.J. Res. 10, which include spending caps of 20% GDP and 18% GDP, respectively.  Similarly, Rep. Goodlatte hedged his bets by simultaneously sponsoring a 20% GDP spending cap amendment (H.J. Res. 1) when he initially sponsored the old consensus proposal (H.J. Res. 2).

The divide over constitutional spending limits just scratches the surface in drafting a new consensus BBA.  There are at least 18 proposals now vying for attention (depending on how you count proposals that impose spending limits without requiring a balanced budget) and here is a summary list of 10 issues yet to be resolved:

1.  Should the BBA include a spending limit and, if so, how high?

2.  Should the BBA include a general super-majority waiver provision, and if so, by what voting threshold (absolute majority, 3/5ths majority, or 2/3rds majority)?

3.  Should the BBA include more specific limited waivers for declared wars, military conflicts, or economic emergencies?  If so, should super-majorities be required and, again if so, by what threshold?

4.  Should a super-majority be required for raising taxes, and if so, by what threshold?

5.  Should a super-majority be required for raising the debt ceiling, and if so, by what threshold?

6.  Should the President be required to submit a proposed balanced federal budget to Congress each year?

7.  Should the President be given impoundment or other enforcement powers to assure budget balance in the absence of any Congressional waiver?

8.  Should the federal courts be barred from enforcing the requirements of BBA, and if not, who should have standing to sue for enforcement?

9.  Should the calculation of total outlays and revenues be prospective based on good faith estimates or retrospective based on actual reported figures?

10.  What type of transition period should be allowed and for how long?

Members of Congress, their staff, and long-time supporters of a BBA are struggling with these issues right now, and there is no “right” answer; only a trade-off between making the proposal “stronger” and less likely to succeed, or “weaker” and more likely to attract support.

The fundamental problem is that you cannot mandate a balanced budget without allowing for waivers in emergency circumstances, and you cannot rely on Congress to invoke those waivers only in emergency circumstances. Conversely, if you could enforce a balanced budget (and I believe you can), then you would not need to mandate one.  But of course no one with power on Capitol Hill truly wants a BBA that could be enforced by any power outside of Capitol Hill.

Given the current time constraints, my guess is that House and Senate sponsors will allow at least one spending limitation proposal to be brought up for a vote, but otherwise agree on a “weak” BBA consensus proposal that attracts bipartisan support — meaning an unenforceable BBA with no spending limits, but containing the usual waivers and low super-majority thresholds.

In the meantime, there is one BBA proposal that does stand out from the rest, both for its novelty and ingenuity.  This is the “Business Cycle Balanced Budget Amendment” (H.J. Res. 81) being sponsored and promoted by a Tea Party favorite, Rep. Justin Amash (R-UT). Although I must ultimately conclude that it fails the critical test of enforceability, it shows why Congress needs to ferment new ideas and how the Tea Party movement is having a beneficial effect in this regard.

The Amash proposal therefore deserves extended comment, which I will furnish in the next post.

Copyright © 2011 Anthony W. Hawks. All rights reserved.

 

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