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The Road to Unelected Judicial Oligarchy


Washington -- Once more the talk is of a balanced-budget amendment to the Constitution. This time, regrettably, the talk is serious. This time the thing may pass.

At the risk of raining upon my brother conservatives' parade, let me argue against this well-intended, highly principled, unworkable resolution. A similar proposal in 1986 failed by seven votes in the House, by only a single vote in the Senate.

In the present atmosphere of panic, when voters are yelling at a cowering Congress, the necessary two-thirds majorities may be mustered. If so, three-fourths of the state legislatures may subsequently be goaded into ratification. We could have a 27th Amendment in close to record time.

But I hope not. Heaven knows a balanced federal budget is needed. We haven't seen one for 22 years. Meanwhile the Congress, with help from the White House, has run up a debt that now approaches $4 trillion. This debt will be foisted upon the children and grandchildren of the irresponsible people who have demanded it. Our annual recurring deficits are a terrible drag upon the economy, and they are morally indefensible. It is hTC unconscionable for Congress to spend money it does not have.

The sponsors of House Joint Resolution 290 propose to put a stop to this. Their proposed amendment begins: "Prior to each fiscal year, the Congress and the president shall agree . . . "

Let us stop right there, before the end of the sentence. The amendment already has stepped into new ground. The present Constitution delegates power to a president to do certain things, e.g., to make treaties, nominate judges and grant pardons, but the Constitution does not tell a president that he must do such things.

The Constitution in Article II rarely uses a mandatory "shall," and in each instance the "shall" is perfunctory: The president shall give Congress information on the state of the union; he shall recommend enactment of measures he deems necessary and expedient; and he shall receive ambassadors. These light duties require no heavy lifting.

HJR 290 is different. "Prior to each fiscal year, the Congress and the president shall agree on an estimate of total receipts for that fiscal year by enactment of a law devoted solely to that subject."

Let us pause again. This mandatory agreement -- first supposing that it can be reached at all -- is the hinge on which the whole amendment swings. What is this "estimate of total receipts"? It is a figure. It is a line upon paper. It has the gossamer substance of a cobweb that was spun last night and may be spun again at dawn.

Last January the president sent a figure to Congress. He estimated revenues for 1993 at $1,164.8 billion. It was a pretty figure, nicely fabricated by the budget director. Suppose he had estimated revenues at $1,516.7 billion? We would have had no deficit at all! The president would have submitted a perfectly balanced budget!

It would have been phony, to be sure, but phoniness and Congress go hand in hand. Given a phony figure on estimated revenues, Congress would swallow the sham in a flash. But assume a modicum of honesty. This is difficult, but try. Honest men may honestly disagree on what a given tax will produce. An honest estimate could be off by billions of dollars.

The proposed amendment has other faults. Its purpose is to assure that "total outlays" in a given year do not exceed this agreed-upon estimate of total receipts. But suppose that Congress, by a three-fourths vote in each house, decides to breach the paper barrier. The assumption is that Congress, by a simple majority in each house, would then impose taxes sufficient to bring things back in line.

So? So Congress hesitates. The people hate higher taxes. In the midst of a recession, a tax increase might be the worst possible blow to a faltering economy. But spending now exceeds the paper limit. The brand-new 27th Amendment is being violated! What then? How is the amendment to be enforced?

You can anticipate the answer. Dissident members of Congress go to court. The Supreme Court reluctantly accepts a responsibility for which it is wholly unprepared. In the last resort the high court, by a vote of 5-4, orders a cut in spending and a hike in taxes. We are then in thrall to an unelected judicial oligarchy. Is this really what we want?

James J. Kilpatrick is a syndicated columnist.

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