Almost everyone, maybe even Pres. Barack Obama, agrees that our elected politicians cannot control their own appetites. They have driven the nation into a deficit ditch in an orgy of overspending the likes of which has not been seen since World War II. Congressional leaders are considering a permanent solution, one that works well in many states: a balanced-budget amendment to the Constitution. But the cure could be worse than the disease if it allows unelected judges to make our fundamental taxing and spending choices.
Fifty-eight senators voted last week to support some version of a balanced-budget amendment, and it is likely that conservative senators will secure a vote on one version or another this session. Most of the draft amendments that have been introduced have spending limitations (as a percentage of GDP, but at different levels), wartime exceptions, and supermajority requirements for raising taxes. Debate over these matters is all for the good, but we fear that they may obscure the central issue of who will enforce a balanced budget if Congress and the president fail to control spending.
We offer no opinion on whether such a constitutional amendment will secure the necessary two-thirds votes in both houses or if the timing is right for such votes. (Some have argued that Congress should concentrate on balancing the budget before offering a symbolic vote pledging Congress to do something it refuses to do in practice.) Even if the amendment fails now, the version that is considered this session will influence future attempts. Therefore, it is important that the text of any balanced-budget amendment prohibit federal judges from refereeing whatever complex political, economic, and wartime provisions the drafters settle on.
Judicial enforcement of most constitutional rights is necessary, even if too many judges elevate their own preferences above the text of the law. But a balanced-budget amendment would raise numerous political questions — similar to those the federal courts rightly used to (and still occasionally do) refuse to entertain — with a vengeance. Rather than rely on the federal courts to resist the temptation to rule on such political questions (they won’t), an amendment should bar judges from considering, and eventually micromanaging, the federal budget.
One of the proposed balanced-budget amendments receiving attention, S.J. Res. 5, bans judges from ordering tax increases. That is prudent, but it is not enough. A ban solely on judicial tax increases would allow courts to infer that Congress wants them to choose among spending programs. Federal judges have neither the political accountability nor the expertise to set tax policy, and have no neutral principles to allow them to compare the relative costs and benefits of different federal programs. They have no legitimate way to decide whether $10 million would be better spent on armored humvees, national parks, or college scholarships — only our elected representatives can make those choices.
Other balanced-budget amendments from the mid-1990s would have limited judicial remedies to declaratory judgments and such other remedies as Congress authorized. Such a provision acknowledges the problem but provides a false sense of security. Activist judges can do great mischief with declaratory judgments, especially when prompted by lawyers asking loaded questions, as has been shown in the litigation over school-funding “equalization.” And recent experience with detainee laws demonstrates that the Supreme Court can interpret away or strike down statutory limitations on its jurisdiction and remedies. The only effective limit on judicial activism is a complete ban on judicial enforcement of the amendment.