by Rob Natelson

The following states have applications outstanding for a federal convention to propose a balanced budget amendment: Alabama, Alaska, Arkansas, Colorado, Delaware, Florida, Indiana, Iowa, Kansas, Maryland, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, Pennsylvania, and Texas.

That’s 19 of the 34 states required. In addition, Illinois has an 1861 application outstanding that says essentially that Illinois hereby joins with the application of any state that chooses to make one. Arguably, that pushes it to 20.

However, Florida’s recent (2011) application may be too specific in its terms to be counted along with (“aggregated with”) with those of other states. The applications of Delaware, Maryland, and Mississippi may be invalid for mandating specific language to the convention. That leaves 16 (or 15 if the Illinois application isn’t counted).

As the count nears 34, we no doubt will see lawsuits from groups that want to keep spending no matter what the debt is. They will raise a number of other objections, including claims that some of the existing applications, even though never repealed, are too old. In my professional judgment, those objections are unlikely to prevail.

On the other side, some have argued that the resolutions in some legislatures that rescind applications are void because an application may never be rescinded—and that therefore the count already is above 34. That argument also is unlikely to prevail.

So the most likely numbers are 15 and 16.

In addition, two states (Louisiana and North Dakota) have approved the National Debt Relief Amendment. That proposal is really a form of balanced budget amendment, in that it would require approval by a majority of state legislatures to raise the national debt—that is, to run a deficit. Some balanced budget applications, perhaps most, are broad enough to accommodate the National Debt Relief Amendment approach.

I assess whether an application is valid by considering the most likely judicial response to the relevant history and case law. In other words, I’m using my professional training to predict how judges are likely to rule. I’m not applying my own desires.

Readers interested in seeing my criteria should consult my articles on the amendment process, particularly:

Founding-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing Amendments,” 65 Fla. L. Rev. 615 (2013)

Proposing Constitutional Amendments by Convention: Rules Governing the Process, 78 Tenn. L. Rev. 693 ( 2011)

Amending the Constitution by Convention: Practical Guidance for Citizens and Policymakers (Independence Institute, 2012) (updated and amended version of an earlier paper published by the Goldwater Institute)

Amending The Constitution by Convention: Lessons for Today from the Constitution’s First Century (Independence Institute, 2011) (updated and amended version of an earlier paper published by the Goldwater Institute)

Amending the Constitution by Convention: A More Complete View of the Founders’ Plan (Independence Institute, 2010) (updated and amended version of an earlier paper published by the Goldwater Institute).