Will Judges Balance the Budget? SILENCE THE COURT

WITH the Balanced Budget Amendment still in limbo as NR went to press, one disaster had at least been narrowly averted in the Senate—though it remained a possibility in the House. It had taken Senator Sam Nunn to lead the Republicans away from a constitutional precipice over which they seemed determined to fall. For if disputes about the budget would raise constitutional questions under the BBA, then those decisions could now end up in the courts. Senator Joseph Biden had drawn precisely this inference during the hearings in the Judiciary Committee, but there was nothing here to disturb his serenity, since he has borne no objections over the years to enlarging the power of judges. The question is why Biden’s comment, innocently blurted out, did not set off alarms and buzzers among the Republicans. Not until the 11th hour did Sam Nunn pick up on Biden’s idle remark and speak the simple, chilling words: the power over taxing and spending could be shifted into the hands of judges, who bear no responsibility to the electorate, who will have to pay the taxes. And if that had been the result of this amendment—if the final BBA had contained no provision to limit the involvement of the courts— then nothing would be more at odds with the purposes of the amendment, or the deeper principles of the Constitution.

During the Senate hearings on the amendment, Biden noted that spending bills often include provisions to assure that the money is not all spent in the most populous states. Through artful formulas, some of it is allocated to less populous states like his (Delaware) or that of his Republican colleague, Orrin Hatch (Utah). If a Balanced Budget Amendment were adopted, Biden asked, could a President invoke the authority of the Constitution to override the provisions of the law and delete the funds for the small states? The answer was that he very likely could: the commands of the Constitution would take precedence over the provisions of an ordinary statute. But as in so many of these questions, the answer may not be crystal clear, and Biden assumed that such issues would wind up in the courts. And these days, any group adversely affected by budget cuts might very well have standing to sue.

About the Author

Hadley Arkes

Hadley Arkes is the founder and director of the James Wilson Institute on Natural Rights and the American Founding.

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WITH the Balanced Budget Amendment still in limbo as NR went to press, one disaster had at least been narrowly averted in the Senate—though it remained a possibility in the House. It had taken Senator Sam Nunn to lead the Republicans away from a constitutional precipice over which they seemed determined to fall. For if disputes about the budget would raise constitutional questions under the BBA, then those decisions could now end up in the courts. Senator Joseph Biden had drawn precisely this inference during the hearings in the Judiciary Committee, but there was nothing here to disturb his serenity, since he has borne no objections over the years to enlarging the power of judges. The question is why Biden’s comment, innocently blurted out, did not set off alarms and buzzers among the Republicans. Not until the 11th hour did Sam Nunn pick up on Biden’s idle remark and speak the simple, chilling words: the power over taxing and spending could be shifted into the hands of judges, who bear no responsibility to the electorate, who will have to pay the taxes. And if that had been the result of this amendment—if the final BBA had contained no provision to limit the involvement of the courts— then nothing would be more at odds with the purposes of the amendment, or the deeper principles of the Constitution.

During the Senate hearings on the amendment, Biden noted that spending bills often include provisions to assure that the money is not all spent in the most populous states. Through artful formulas, some of it is allocated to less populous states like his (Delaware) or that of his Republican colleague, Orrin Hatch (Utah). If a Balanced Budget Amendment were adopted, Biden asked, could a President invoke the authority of the Constitution to override the provisions of the law and delete the funds for the small states? The answer was that he very likely could: the commands of the Constitution would take precedence over the provisions of an ordinary statute. But as in so many of these questions, the answer may not be crystal clear, and Biden assumed that such issues would wind up in the courts. And these days, any group adversely affected by budget cuts might very well have standing to sue.