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Cong. Brat’s Balanced Budget Amendment: Nope I am sorry I must oppose

I admire greatly Congressman Dave Brat.  I once said I’d go through a gasoline fire to vote for Brat!  And I’ll still love him after this blog post.

But once in a while a great representative – statesman even – lays an egg.  Here is Dr. Brat’s first egg – his proposed Balanced Budget Amendment:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission for ratification:


section 1. Expenditures and receipts shall be balanced, which may occur over more than one year to accommodate economic conditions. Expenditures shall include all expenditures of the United States except those for payment of debt, and receipts shall include all receipts of the United States except those derived from borrowing.

section 2. For emergency situations two-thirds of the House of Representatives and the Senate may for limited times authorize expenditures exceeding those pursuant to rules established under section 1. Debts incurred from such expenditures shall be paid as soon as practicable.

section 3. Congress shall have power to enforce this article by appropriate legislation, which shall allow not more than ten years after ratification to comply with section 1.”.

There is one glaring loophole in this so-called BBA right off.

Do you see it my beloved readers?

Yep, the DEBT and the DEFICIT are both EXEMPT from the BBA!  Most of us have surpluses on our personal balance sheets if we exempt what we owe!

If the debt and deficit are exempt, there is no purpose to even balance the budget.

The second reason I oppose this is the Publius Huldah objection that a balanced budget amendment would authorize any expenditure to ensure the budget is balanced, even those beyond the original enumerated powers of Congress.  I think there is language possible to correct this issue like this (this is a back of the envelope language proposal):

Nothing in this amendment shall be construed to increase the power of the Federal Government beyond the enumerated powers of any branch of the Federal Government expressly stated in this Constitution.

BUT WAIT:  There is a third reason not to support this:  It’s unenforceable.  Who could sue the Federal Government to prevent an unbalanced budget?  Who has as we lawyers call it – who has standing – who has been hurt by this unbalanced budget?  Taxpayer standing is disfavored at best and not available due to the Article III (Judiciary) requirement of a case or controversy to sue in the Federal courts.  (We should be thankful for standing:  Our nation would be ten, no a hundred times more messed up than it is now if anyone could sue for any reason for any imagined violation of rights under the Constitution!)

So I would like to see a clause like this:

Any five members of Congress may bring an action against the Department of the Treasury to prevent expenditures under any budget not in compliance with this Amendment.

I started to say one member of Congress but there are few members in every Congress who are nutty enough to bring suit for a frivolous reason.  But five members together ought to be a protection against nutty suits.  Might ought to be ten members of Congress.

And I won’t even go into the vague language (“which may occur over more than one year to accommodate economic conditions”) or the ten years from the enactment of the amendment for Congress to get it’s act in order.

So, without those protections, I cannot support the Brat BBA.  Dr. Brat ought to get out of this mess.  This is giving protection to numerous Congressmen and women to say to the folks back home – see I supported an Amendment to Balance the Budget!

Better to simply balance the budget instead.


About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

7 Responses to “Cong. Brat’s Balanced Budget Amendment: Nope I am sorry I must oppose”

  1. emmahartug says:

    VIRGINIA HJ49 (DEL) was heard in a Virginia subcommittee of House Rules Tues. Feb. 6. ***[Subcommittee Passed the bill on to FULL Committee*** Thursday Feb. 8]

    HJ49 purports to provide for the selection and control of Delegates to an “interstate convention.” Under Art. 1, Sec. 10. It seeks to circumvent Article V and as such, it is unconstitutional.

    As Publius explains in “The ‘Compact’ Gimmick to circumvent the Powers granted to Congress by Article V,” HJ49 is an implicit admission that those who oppose the convention have been right all along: Delegates to an Art. V convention can’t be controlled. That’s why they are trying to get around Article V by claiming the convention will be an “interstate” convention.

    If Convention of States Project (COSP) can get HJ49 passed, they’ll have a much easier time promoting their usual resolution.

  2. Patrick P. says:

    So Congressman Brat believes that an Article V convention can be limited to proposing a “BBA” A Balanced Budget Amendment?

    Has he read the text of Article V of the federal Constitution? – it shows that the convention is the deliberative body!

    from a very wise Constitutional Scholar:

    The Congress created by our existing Constitution has no more power over delegates to an Article V convention than did the Continental Congress over the federal convention of 1787. See the Resolution of Feb. 21, 1787 where the Continental Congress called the convention “for the sole and express purpose of revising the Articles of Confederation”.

    Does Brat know what happened at the federal “amendments” convention of 1787?

    Everybody should print out that Resolution of Feb. 21, 1787 and carry it around.

    • Lawrence Wood says:

      Elected state officials as well as many state lawmakers advocating such resolutions are often skeptical or just plan naive regarding controlling the actions or outcomes of a constitutional convention. Such a convention would likely be extremely contentious, highly politicized and near impossible to predict it’s final results. The people pushing this effort have motivations that range all over the map both overt and “covert”!

      As the the late Justice Antonin Scalia said in 2014, “I certainly would not want a constitutional convention. Who knows what would come out of it?” I don’t doubt Rep Brat’s sincerity regarding the convening of a Constitutional Convention to address a balanced budget amendment just his political choice in how to accomplish such a feat. The one he seems to favor runs the risk of placing potentially the nation’s whole constructional structure at risk which he seems ignorant of or blind too.

  3. Jake S. says:

    Great news! HJ 49 (DEL) which we blasted late yesterday was carried over to 2019 by a voice vote in the House Rules committee this morning. This kills HJ 49 for this year–that must have been a big disappointment for COSP 😊. So please move on to the Virginia Senate where Senate Rules is hearing 3 A5C bills tomorrow morning–let’s do it again!!

    Here are the bills we oppose in the Virginia Senate:

    SJ 11 (BBA); SJ 26 (BBA) and SJ 31 (“interstate” convention Delegate)

    All 3 bills above are being heard in Virginia Senate Rules Committee ***TOMORROW–Friday Feb. 9th at 8:00 am (Eastern).***

  4. Rick Ryan says:

    15 July 2016, Cong. Brat introduced a BBA bill. R T-D, pg E5, 28 Jan 2018, Cong. Brat wrote that introduction of the BBA bill was one of his legislative accomplishments and reiterated his belief that the BBA would “fix our spending problems.” Publius Huldah, we have a problem.

  5. Virginia Righteous says:

    Dave Brat is and always has been a Cato Institute Libertarian.

    Cato Institute is funded by the Koch Brothers.
    Koch equals Amnesty and Cheap Labor and Big AG. #Never Trumpers.

    Brat supporters are just now waking up to this reality?

    • Sandy Sanders

      Thanks for coming by Virginia Righteous but I, with all due respect, think this is a big McCarthyist attack – Brat is a Cato libertarian and Cato is Koch so Brat is for amnesty. I do not see any real evidence Brat is for amnesty or is a Never Trumper.



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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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