The Balanced Budget Amendment and Social Security: An Alternative Means of Judicial Enforcement

Congress probably favors taking Social Security off budget, so as to please constituents who fear it will otherwise be cut. But in practice, the majority in Congress is not presently willing to confront the kind of spending cuts or tax increases necessary to balance the budget without the aid of Social Security. IV. The Hatch Amendment Although there are reasons to suspect that a Balanced Budget Amendment that excludes Social Security from the balance calculation is ultimately more likely to win congressional approval and subsequent ratification, the passage of such an amendment is inherently speculative. In contrast, Balanced Budget Amendments substantially similar to the Hatch version have already won the approval of two-thirds of each house, albeit in different years. 08 Thus, most legal scholars who have considered the public policy implications of the ratification of a Balanced Budget Amendment have used the Hatch Amendment as their paradigm•10 The primary motivation of the Hatch Amendment's would-be framers is to inscribe a principle of fiscal discipline into the Constitution. The framers see the government's decision to carry a permanent deficit as an affront to intergenerational equity, because such an approach saddles future generations with high levels of debt. The Balanced Budget Amendment is seen by its proponents as the only way of re-establishing intergenerational 107 See Balanced Budget Amendment: Hearings Before the Senate Committee on the Judiciary, 105th Cong. 1 (1997) (statement of Senator Byron Dorgan). 108 See S. REP. No. 105-3, at 4-6 (1997). Very similar Balanced Budget Amendments passed the Senate in 1982 and the House in 1995. The 1982 Senate version did not include a clause relating to the debt limit, and did contain a provision that total receipts could not increase in a given year "by a rate greater than the rate of increase in national income in the ... [preceding] year" without the enactment of a resolution permitting such an increase by a majority in each house. S.J. Res. 58, 97th Cong., 2d Sess. § 2 (1982). 109 See, e.g., Seto, supra note 17; Tobin, supra note 17; Lavinia L. Mears, Note, The Truth About the Balanced Budget Amendment, 20 SETON HALL LEGIS. J. 592 (1996). 537 1998] SETON HALL LEGISLATIVEJOURNAL [Vol.22:513 equity in a political milieu in which the traditional norm of balance has fallen by the wayside."0 The framers argue that while the federal government has expanded into so many areas that have traditionally been the responsibilities of the states, Congress has not adjusted taxes to keep pace with its "voracious appetite" for new spending." The Senate Committee Report even brushes gently against the third rail, contemplating Social Security cuts in order to help balance the budget."2 While the Committee goes to great lengths to say that its members do not want to cut Social Security benefits, they refuse to rule out such a move. The proponents of the Hatch Amendment envision Social Security competing on an equal footing with other budgetary priorities. Social Security will be protected not by institutional factors, or by entitlement status, but by its lasting popularity and importance to voters. If a court were to thoroughly examine the legislative history of the Hatch Amendment it could settle the otherwise highly contentious issue of whether to include Social Security's balances in the deficit calculation."' Other potential judicial resources would be less helpful. The text of the Hatch Amendment says nothing about whether Social Security outlays and receipts should be included in the budgetary balance calculation. 14 Moreover, the experiences of the states should not be particularly illustrative '10 S. REP. No. 105-3, at 2.