Can ‘Cut, Cap, and Balance’ Bring Sanity to Our Budget Madness?

t's time for a clear, decisive alternative to the Democrats' failed spending policy.

The Congressional Budget Office warned Wednesday that the U.S. economy is about to go underwater.

Issuing its annual long-term budget outlook, the nonpartisan CBO said that current federal tax-and-spend policies could, by the end of the decade, push total U.S. government debt to a point where it is bigger than the entire economy.

As if that were not bad enough, the congressional agency further predicted that total debt could reach a level double the size of the economy in 2035, just fifteen years further down the road.

If the debate over increasing the $14.3 trillion federal debt limit was already critical to the nation’s future financial health, this new CBP analysis just made it doubly so. The question, as it has been since the issue first blipped on the radar screen last fall, is what to do about it.

The Republicans have taken a firm position against including tax increases as part of any deal on the debt limit. Democrats, on the other hand, are insisting on them. Leaks attributed to aides close to the negotiations with congressional leaders led by Vice President Joseph Biden keep producing creative ideas (a rumored abolition of indexing swept the nation’s capital Wednesday afternoon — but that, like a proposal offered up by some in Congress to abolish or severely curtail the mortgage interest deduction, is a clear non-starter).

Things have reached the point where the pressure to agree to tax increases has gotten so high that House Majority Leader Eric Cantor, R-Va., and Senate Republican Whip John Kyl, R-Ariz., both walked out of the negotiations on Thursday — with Cantor indicating it was time for President Barack Obama to deal directly with House Speaker John Boehner.

Any eventual deal is going to be heavy on the spending reduction side, due in no small part to a commitment made by a handful of congressmen and senators to a program to cut the deficit, cap spending, and balance the federal budget.

Unveiled Wednesday by a group of congressional conservatives, and backed by nearly two score center-right organizations (Americans for Prosperity, FreedomWorks, For America, Let Freedom Ring, Independent Women’s Voice, the National Taxpayers Union, Americans for Limited Government, and more), the “Cut, Cap, and Balance pledge” commits the signers to

In less than 24 hours after its introduction on Capitol Hill, the pledge was signed by 11 sitting United States senators, 15 members of the U.S. House of Representatives, a handful of candidates for Congress and president of the United States, and more than 12,000 citizens. The numbers now are even higher.

Usual Washington cynicism aside, supports of the pledge are serious about getting it done.

“In 2010, Americans threw out the Democrats and elected Republicans to stop the spending and debt,” said South Carolina Sen. Jim DeMint, one of the first to sign the pledge. “But they feel let down with the weak CR deal. If Republicans are serious in believing our country is on the edge of a fiscal cliff, we must fight now for the passage of a balanced budget amendment, or we don’t deserve to be here.”

DeMint, whose support is crucial in the South Carolina’s early GOP presidential primary, says he won’t even consider supporting any candidate that doesn’t sign the pledge.

Kentucky Sen. Rand Paul, another Tea Party favorite, said of the pledge: “We as a Congress must get serious about the solutions we propose to restore fiscal discipline and prosperity.”

“I am convinced,” Paul continued, “after my time here in Washington, that the only way we can get our fiscal house in order is through structural reform such as those proposed in the Cut, Cap, and Balance pledge. With these conditions in place, we can begin the process of defeating this catastrophic national debt, which is why I wholeheartedly pledge my support.”

The ideas embodied in the pledge also have strong support among the American people.

In a survey conducted for the coalition among 1,000 likely U.S. voters by On Message Inc., when asked to choose among the three approaches currently on the table a clear plurality of 49 percent picked Cut, Cap, and Balance as their preferred method of dealing with the current fiscal crisis.

Only 21 percent said they preferred a decade of spending cuts “that are larger than the debt ceiling increase but without a balanced budget amendment,” and just 9 percent said they favored the clean debt ceiling approach President Barack Obama and many congressional Democrats want, which would merely increase the debt limit without any corresponding reductions in spending and fail to stop the growth in the federal government. (The remaining four percent said they would be happy with any of the three.)

The same poll showed that the Cut, Cap, and Balance approach is favored by 62 percent of Republicans, 51 percent of independents, and even 37 percent of Democrats.

“Cut, Cap, and Balance is the single most significant reform package Congress has seen in decades,” said Utah Sen. Mike Lee, who wrote the Balanced Budget Amendment included in the pledge. “It forces Washington to balance its books with strict, enforceable fiscal restraints and will cut spending significantly and immediately to improve our economy and create jobs.”

“We cannot continue to rack up debt without first addressing the underlying problems that cause Washington to overspend,” Lee added. “Supporters of the pledge are saying we want to fix the problem before it gets any worse. Opponents believe we can keep piling up debt and just hope Washington changes on its own. We owe future generations more than that and have a responsibility to do the right thing for them today.”

America understands the problem. It’s not certain that Congress or the White House does. As Sen. DeMint put it, “Americans know we can’t wait to save our country, and they are tired of politicians saying, ‘Trust us, we’ll fight after the next election.’ We agree we need immediate spending cuts, caps and entitlement reform. But that’s exactly what Washington did in the nineties when we were $5 trillion in debt — and now Gramm-Rudman is ignored, the entitlement reforms never materialized, and debt has exploded to over $14 trillion.”

“Americans won’t be fooled again,” DeMint continued. “They know none of these grand promises will ever happen unless we force Washington to do it with a balanced budget amendment. Let’s see Democrats and President Obama try and explain that they want to shut down government because they refuse to balance our budget.”

The supporters of the pledge are serious. In fact, they are just as serious — if not more so — than the Democrats who keep reassuring their friends in government that the GOP is certain to cave and will give in on some form of “revenue enhancements” in order to get a deal on the debt ceiling. It’s up to the American people to make sure Congress knows which side of the equation they are on.

“No.”

The reason is that the nation was imbalanced with the 17th amendment, which took away any power the States had to limit the growth or size of the federal government. Without an active body of people whose interest is in keeping the federal government limited, there really is no chance that it ever will be.

And there is no chance that the 17th amendment will be repealed, because as things are now, senators no longer have to be responsive to the interests of their State, as long as they can buy an election every six years, which many of them do.

This means that a new body must be created, whose function will be to limit all of the federal government: the executive, legislative and judicial branches, as well as the bureaucracies of them all, and the almost autonomous federal intelligence, police and military agencies.

This body would be the Second Court of the United States.

With a similar design to the US Senate, it would have 100 State judges, with two judges appointed by each State legislature on terms parallel with their US senators.

Importantly, it would *not* be a federal court, though it would be subordinate to the Supreme Court of the United States, yet superior to the US Federal District Courts. Federal courts decide the constitutionality of criminal and civil cases. But the Second Court would decide the *jurisdiction* of cases.

The United States has about 3,600 federal judges, many of whom can take a local or State law, and “federalize” it. Yet there is no process by which, after they and superior courts analyze it for any constitutional questions, for it to be *returned* to the local or State courts, in most cases. And this represents a huge growth of federal power.

But once such cases had seen their way through the US Federal District Courts, enroute to the United States Supreme Court, the Second Court of the United States would be able to examine them, to give the opinion of the States whether or not these are indeed federal issues, or are, and should remain, local and State issues.

Currently, there is an enormous bottleneck of cases from the US Federal District Courts going to the SCOTUS. Each year, some 8,000 cases are appealed, of which the SCOTUS can only hear a few dozen. All the rest are currently returned to the District Courts and their decision, for better or worse.

But with a Second Court, many, even most of these cases would be ordered returned to local and State courts. And though many of that 8,000 would still be appealed to the SCOTUS, the new *default* would be to the *jurisdictional* decision of the Second Court, *not* the constitutional decision of the District Courts. Unless, that is, the Second Court decided that indeed, there *was* a legitimate federal constitutional question at stake, in which case it would return the case to the District Courts for their final judgment.

This would end an enormous amount of “judicial activism” by these 3,600 federal judges, returning a huge amount of power to the States.

For example, instead of federal judges whimsically throwing out death penalty decisions by States, because they just don’t like the death penalty, the Second Court would take this judicial activism and throw it out, returning the case to the State, where the convicted murderers can be executed in perhaps a year or two after conviction, instead of two or three decades later, if at all.

But there is even a far more potent power to the Second Court of the United States. Because it would be given “original jurisdiction” for all lawsuits between the States and the federal government.

Right now, such lawsuits, like the current one challenging Arizona’s SB1070 anti-illegal immigration law, must go through several federal courts, all of which are far more responsive to what the federal government wants than what the States want. This wastes years and vast amounts of money.

But if such cases went before the Second Court of the United States *first*, it would be a major challenge to federal power, because it would be the States that decided the issue. If a simple majority of the judges found on behalf of the State, while the federal government could appeal to the SCOTUS, the SCOTUS would be placed under a constraint.

They would be required to cite the “exact wording” in the constitution that supports the federal government in the case. *Not* extrapolation or interpolation, and *not* judicial precedent. And if there was no “exact wording” they could cite, the State wins by default.

And if 2/3rds (67 of 100) of the judges of the Second Court decide in the favor of the State, then the case could not be appealed to the SCOTUS in the first place. 2/3rds of the States in agreement would amount to “nullification” of federal law.

Then it would be up to the States to decide how to “disassemble” the parts of the federal government not authorized by the constitution, and file the appropriate lawsuit against the federal government.

For example, a State could sue the federal government by calling the Department of Education unconstitutional, and it would be up to the other States to decide if it was or not. If they decided against it, it would cease to exist.

It’s my original idea, version about 20, based on a lot of helpful ideas and suggestions.

There are a lot of smart, thoughtful people out there, with experience in history, constitutional law and theory, and a multitude of other studies. And there are others with an aptitude for spotting logical errors, practical matters and common sense.

What the idea still needs is a way to incorporate its ideas into a constitutional amendment that needs few enabling acts, and advocates who understand its elements, large and small.

It is a very cutting edge idea, however. Not too long ago, Justice Thomas, a man of great wisdom, made the “flip side” argument to this in his brilliant, 100 page concurring decision in the McDonald v. Chicago gun rights decision.

To explain, the first section of the 14th amendment has several parts, one of which concerns naturalization of citizens. This is under scrutiny right now, because it has been interpreted to mean that children of foreign parents who are born in the US have automatic US citizenship. And some of our leaders want to change this interpretation.

However, the rest of this first section *defines* civil rights in America, especially for black Americans. It does this to a great extent by saying that the federal government can intervene if States are being abusive to their citizens. Thus it is very near and dear to Justice Thomas’s heart.

And if the first section of the 14th amendment is changed by anyone, he does not want “the baby to be thrown out with the bathwater”, that is, to protect the rest of section 1.

But this is complementary to my whole argument. While the 14th amendment gives the federal government the right to protect citizens from abusive State governments, with the passage of the 17th amendment, the States are no longer able to protect their citizens from an abusive *federal* government.

And since 1913, when it was passed, the federal government has become very abusive, interfering with citizens directly a lot, and the States are unable to protect them or defend them.

So this is another balance of power that should exist in our constitution. The federal government should protect the people from the States, but the States should also protect the people from the federal government.

And that is one of the purposes of the Second Court of the United States.

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