FLOOR STATEMENT OF HOUSE JUDICIARY COMMITTEE RANKING MEMBER JERROLD NADLER IN OPPOSITION TO H.J. RES. 2, PROPOSING A BALANCED BUDGET AMENDMENT
I rise in strong opposition to H.J. Res. 2, which proposes a balanced budget amendment to the Constitution. Specifically, the bill prohibits total outlays from exceeding total receipts for each fiscal year unless a three-fifths supermajority of the total membership of each House of Congress votes to override the prohibition. The bill also requires a three-fifths supermajority of each Chamber in order to raise the federal debt limit.
There are only two conclusions one can reach about this legislation:
Either it is fundamentally unserious—a façade designed to pretend that Republicans, on the heels of a massive tax giveaway to corporations and the very rich, have a shred of credibility when it comes to claims of fiscal responsibility. Or it is deadly serious—the first step toward their ultimate goal of slashing Social Security, Medicare, Medicaid, and other critical elements of the social safety net—because you cannot have these enormous tax cuts and balance the budget without slashing spending programs that most Americans depend on.
Understand the context in which we are considering this legislation. Earlier this week, the Congressional Budget Office released a report projecting that the federal deficit will increase by more than a trillion dollars over the next 10 years, largely because of the massive tax giveaway to big corporations and the richest 1 percent that Republicans pushed through at the end of last year. White House Budget Director Mick Mulvaney admitted that this tax windfall for the rich would cost the federal government $1.8 trillion in revenue over the next decade.
In the wake of their budget-busting tax scam, House Republicans now seek to have us vote on this balanced budget amendment because they want to maintain the illusion that they care about fiscal responsibility. This is the height of hypocrisy.
But if we assume that Republicans actually intend to pass this legislation, we should recognize the catastrophic consequences it would have on some of our Nation’s most vulnerable citizens, including the indigent, the disabled, and senior citizens. That is because it would require radical spending cuts to achieve balance, with the principal targets being the social safety-net programs, like Social Security and Medicare, that millions of Americans depend on.
This legislation would also undermine the federal government’s ability to respond to an economic crisis. When the Nation’s economy weakens, incomes of individuals and businesses decrease because of job and business losses, which, in turn, automatically results in reduced tax revenues.
Meanwhile spending on programs like unemployment benefits and SNAP goes up as more people rely on them to stay afloat. These programs also help overcome a downward spiral in the economy as they help stabilize the decline in consumer purchases and prevent a recession from turning into a depression.
But by requiring a balanced budget, this constitutional amendment would effectively prohibit the government from drawing on these critical stabilizers. Although H.J. Res. 2 allows Congress to override the amendment’s balanced budget mandate, it requires a nearly insurmountable three-fifths supermajority vote in both Houses of Congress to do so. By the time Congress could react to an economic crisis, it would have greatly delayed the stimulative effect of the stabilizers. This legislation would almost guarantee that a recession becomes a depression. And meanwhile, millions of Americans who depend on these vital programs would go without assistance.
In addition to making it harder to avoid an economic crisis, this bill could actually help to precipitate one. By requiring a three-fifths supermajority vote of each House of Congress to raise the debt limit, H.J. Res. 2 increases the probability that the government will default on its obligations and cause the Nation to spiral into a financial and economic crisis.
Beyond its devastating economic and social consequences, this bill is also anti-democratic. To the extent that it requires a supermajority to undertake certain steps—such as waiving the balanced budget requirement or raising the debt limit—it shifts power away from the elected representatives of a majority of the American people to a determined minority that can thwart the majority’s will.
Indeed, former Republican House Judiciary Committee Chairman Henry Hyde raised this concern, stating:
I am troubled by the concept of divesting a Member of the full import of his or her vote. You are diluting the vote of Members by requiring a supermajority of them to do something as basic to government as acquire the revenue to run government. It is a diminution. It is a disparagement. It is a reduction of the impact, the import, of one man, one vote.
Moreover, H.J. Res. 2 inappropriately seeks to enshrine into the Constitution one particular economic approach that would bind future generations and the future Congresses they elect, notwithstanding its very real potential to destroy the financial stability of our Nation and its citizens.
Whatever anyone may think about the national debt, and whether or how to reduce it, or about the proper level of government expenditures, those kinds of policies should be enacted as legislation that can be modified, amended, or repealed by future majorities, not enshrined in the Constitution to bind future generations to the opinions of this generation. That is fundamentally undemocratic and tyrannical.
Finally, this bill suffers from a fundamental flaw in its construction. There is no enforcement mechanism, and it is not clear what would happen if Congress ignored it and passed an unbalanced budget without the required supermajority. Presumably, it would somehow be resolved in the federal courts. We would see judges ordering a tax increase, or a cut in Social Security, or revising the transportation budget, you name it, without any legislative guidance. And on what basis they would make such decisions is anyone’s guess.
We should not have judges determining inherently political matters regarding budgetary decisions, upending the principle of separation of powers and generating massive litigation over questions ranging from who has standing to sue to what remedies a court could impose if it found a violation.
As the late judge and conservative constitutional scholar Robert Bork explained:
Scores or hundreds of suits might be filed in federal district courts around the country . . . . The confusion, not to mention the burden on the court system, would be enormous. Nothing would be settled, moreover, until one or more of such actions finally reached the Supreme Court . . . . Nor is it at all clear what could be done if the Court found that the amendment had been violated five years earlier.
While I have rarely agreed with Judge Bork, he was right in this case.
This legislation is ill-conceived and deeply problematic. As I stated earlier, this bill is either a farce—just for show, and a few well-timed press releases—or it is a Trojan Horse—an innocuous-looking bill that is really designed to enable the long-held Republican dream of dismantling Social Security and Medicare. Either way, it is not worthy of this House.
I urge my colleagues to oppose H.J. Res 2, and I reserve the balance of my time.