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.
Supporters of judicial enforcement of a balanced-budget amendment argue that the political branches may conspire to fudge the numbers, definitions, and relevant exceptions — or the president and Congress may simply disagree — depriving citizens of a balanced budget with real limits on tax increases, etc. Those are legitimate concerns, but there are some methods of enforcement relating to the selling of debt that require no judicial action.
Moreover, the state experience suggests that the amendments are effective in forcing political actors to reach agreement. Despite serious economic problems and government overregulation, the governor and legislature in California still manage to balance the budget. The state-level track record also suggests that judicial intervention can become problematic, with judges ruling on the nature of spending programs and whether states can tax or borrow to raise revenues. But perhaps worst of all, judicial intervention would allow our elected politicians to pass the buck to the courts and avoid hard budgetary choices. In sum, the risks from court intervention are greater than those posed by politically accountable actors.
The operation of state balanced-budget amendments shows that politicians’ options are seriously cabined. Although they may occasionally adopt transparent gimmicks, legislators in states with such amendments know that their budgets must basically be in balance — and that the gimmicks and unreasonable assumptions in one budget will likely be exposed in time and paid for in subsequent years.
Governors have a responsibility not to sign fraudulent budget bills, and governors, treasurers, and comptrollers also have a duty not to disburse funds in violation of constitutional limits. The Alabama treasurer, for example, is subject to impeachment and/or imprisonment for disbursing funds in violation of the law. In other states, constitutional officers are required to monitor receipts and reduce agency allotments as necessary to prevent deficits. A balanced-budget amendment could authorize Congress to enact laws to police the process. Congress could require executive-branch officials to reduce spending when receipts or projections are not in accord.
While the possibility of court intervention could help keep the process honest, the opposite is just as likely to be true. In our experience, legislators too often justify a questionable or blatantly unconstitutional vote on the grounds that it is the courts’ job to make constitutional determinations. That shameful dodge was frequently at play in the debates over the blatantly incumbent-protecting provisions of the McCain-Feingold campaign-finance law that the Supreme Court eventually struck down. If legislators know that courts will be lurking in the background, they may simply abdicate their own responsibilities to comply with a balanced-budget requirement.
There are three reasons to suspect that judicial enforcement of a federal balanced-budget amendment would be more problematic than at the state level. First, the set of questions raised at the national level are more complex. States may not declare war and do not fund the military during undeclared wars. The calculation of national GDP and various revenue streams is more difficult, and the president does not have the power to veto individual line items or impound funds, as most governors have.
Second, even if the questions were the same, the number of people affected and the total amount of money at stake are much greater at the national level, increasing the incentives for creative litigation over every conceivable issue. The large number of federal judges creates opportunities for forum shopping and similar strategic behavior. The normal slow pace of federal litigation would also create problems. That the Supreme Court could impose its will on 875 district and circuit judges is hardly comforting. Do conservative senators really want to rely on Justice Sonia Sotomayor or Justice Elena Kagan to choose which spending programs to ax when tax revenues don’t come in as projected?
Finally, people in many states have the ability to replace or recall state judges. By contrast, once appointed, life-tenured federal judges are particularly unaccountable. That may make sense for traditional individual-rights claims, but it makes far less sense if judges are asked to determine political and economic questions. Whether expected tax revenues during an economic downturn are equal to expected outlays, taking into account estimates of economic growth and entitlement spending — those simply are not questions of a judicial nature. It will further corrupt the federal courts to ask judges to rule on them.
Although it contains other worthy provisions, S.J. Res. 5 would increase the potential for judicial activism by conferring standing on members of Congress to file suit regarding the amendment’s enforcement (if supported by one third of the members of either house). Reasonable people can differ on whether a special standing rule for members is necessary or appropriate, but one possible interpretation of the provision would encourage or even force courts to hear the merits of congressmen’s claims, negating what remains of the current “political question” doctrine. If there is going to be a balanced-budget amendment to the U.S. Constitution, the better course is to ban judges from it altogether.
— Todd Gaziano is the director of the Center for Legal & Judicial Studies at the Heritage Foundation. John. Yoo is a professor of law at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. Both have served in the Justice Department’s Office of Legal Counsel and as counsel for the House Government Reform Committee and the Senate Judiciary Committee, respectively.