"The last thing we want to do is turn over taxing and spending to the federal courts," Sen. Sam Nunn told Ross Perot Sunday night, in explaining why he wants to amend the Balanced Budget Amendment to forbid courts to get involved in any "case or controversy" arising out of Congress' failure to balance the budget. "I don't think we want to vest [judges] with spending and tax decisions. I think that would stand the Constitution on its head. I think the taxpayers of this country would be in revolt the first time a federal judge came down and said, 'You're mandated to increase taxes by $50 billion.' "
You bet taxpayers would be in revolt. But what could they do?
Nothing without Senator Nunn's modification, which will be voted on today before the vote on the Balanced Budget Amendment itself (and maybe nothing with it). If Senator Nunn fails and then the main amendment passes and ultimately becomes part of the Constitution, judges would soon be re-writing the budget, based on lawsuits demanding that this tax be raised and that one lowered, etc. And citizens whose benefits were cut would also be in court, arguing that welfare should go down but not agricultural price supports, etc.
That is what is really at stake if the Balanced Budget Amendment as now written becomes the law of the land.
Sen. Orrin Hatch, leading the effort for the amendment, says Senator Nunn's concerns can be met with legislation. We dispute that, and so do most legal scholars -- from Robert Bork on the right to Laurence Tribe on the left. "The result would likely be hundreds, if not thousands of lawsuits around the country," Judge Bork has written. And Professor Tribe says, "Someone who has been cut off from a program, a taxpayer -- these people will be able to go to court. No question about it."
This nation has never constitutionalized its taxing and spending process, so saying with complete confidence what judges would do is in a sense speculation. But there is a record worth noting. In states which have balanced budget requirements in their constitutions, judges have taken over the legislative and executive function regarding spending and taxing as a result of lawsuits. That has happened in recent years in New York, Georgia, Wisconsin, California and Louisiana.
We have made it clear that we oppose the Balanced Budget Amendment for many reasons, including the prospect of judges taking over the budgeting process. So even if the Nunn amendment is added, we would oppose it. And Senator Nunn and others who dread judicial control of taxing and spending better be careful. Even seemingly clear language in an amendment doesn't guarantee hands off. There's always a risk.
As Sen. Howell Heflin, a former chief justice of the Alabama Supreme Court recently put it, "Every constitutional amendment that has ever been adopted has had to be interpreted, has had the court to have to look at it and make some kind of interpretation."