February 4, 1997

On January 22 of this year, the Honorable Stuart M. Gerson testified on the Balanced Budget Constitutional Amendment before the Senate Judiciary Committee. Mr. Gerson is a former Assistant Attorney General and Acting Attorney General of the United States under President Bush. Below is an edited abridgement of his introductory remarks, and his conclusion.

"I am reticent to predict the future of constitutional litigation. [History demonstrates] that constitutional prediction is not a scientific enterprise. Nevertheless, I believe that it is fair to conclude that, as the Balanced Budget Amendment has been formulated, it describes a judicial enforcement function that is necessarily limited in scope. Moreover, in the event that the judiciary might intrude in the federal budgetary process, the Amendment provides that the Congress can remedy the situation by statute.

"In the end, though, one should expect the Congress itself to obey the law and, if it does, there will be very little as to which any justiciable case or controversy might arise.

"Some proponents of the Amendment, and some opponents as well, have suggested that predictability and security might be advanced if the Amendment itself stated specifically whether judicial review will be permitted. I strongly disagree, and not for reasons affecting the probability of congressional passage of the Amendment. To the extent that judicial review is described at all in the Constitution, it is in Article III. None of the amendments speaks to judicial review, and I would argue that none should. . . .

"Passage of the Amendment should be determined on the policy and political merit of mandating a balanced budget unless a super-majority can be mustered. In the absence of any judicial review provision, actions taken under the Amendment will be judged by traditional constitutional principles, and these principles should prescribe a very limited role for the courts in the budgetary process.

"There are several basic constraints which should prevent the courts from intruding into the budgeting functions of the other branches of government:

• "Preeminent among these constraints are the Article III 'case or controversy' limitations on the jurisdiction of the federal courts, particularly standing and ripeness.
• "Secondarily, even in cases that might theoretically be cognizable, the courts afford Congress considerable deference under existing constitutional doctrines and should be expected to do so here in view of section 6 of the Amendment, which expressly confers enforcement responsibility on Congress.
• "Finally, there are the limits on judicial remedies running against coordinate branches of government, including self-imposed restraints under the mantle of the political question doctrine, and congressionally imposed restraints through statutes.

"The language of the Balanced Budget Amendment is specific to a degree that, even if one assumes the theoretical inclination of a given court to intervene for ulterior policy reasons, there is not a great deal to interpret with regard to budgetary action. For example, Sections 1 and 2 of the Amendment would create new limits on Congress's power to increase the national debt and to expend borrowed funds. However, the borrowing power is definitively limited (subject to super-majority override) and the spending [is] limit[ed] (again subject to three-fifth's override), neither mandating nor proscribing any specific type of spending. And Section 3 lays down a specific requirement as to the nature of the Executive's annual budget transmission, but the terms of this requirement are specifically defined by Section 7.

"The override provisions of Sections 1 and 2 and the majority and rollcall-vote provisions of Section 4 of the Amendment do admit of some level of judicial review, but there should be nothing novel or alarming about such activity. Section 4 merely adds further procedural requirements for the passage of revenue bills and, as noted, the override provisions of Sections 1 and 2 describe specific majorities needed to take exceptional action. Courts are currently empowered, as they should be if there is a genuine case or controversy, to entertain claims that revenue bills (either taxes or user fees) do not comply with clear constitutional procedures. BBA would not abrogate that responsibility and it would not add to it either. * * * *

"It is not the threat of judicial sanction that causes most actions by the legislature or executive. Indeed, some of the weightiest actions that the political branches undertake, particularly making and funding war and conducting impeachment proceedings, have almost completely been insulated from judicial intrusion. And yet the political branches act vigorously, often in conflict with one another as the Framers envisioned, and always in deference to the Constitution and the law. It is not the threat of judicial coercion, but respect for the law and for their constituents that generally motivates both legislative and executive undertakings and there is no reason to expect that the political branches will attempt to act otherwise if the Balanced Budget Amendment is passed and ratified.

"Nor is this a simple issue of moral responsibility, although I might argue that that should be enough. At the end of the day, congressional undertakings will be subject to the most powerful enforcement tool that our system of government provides: the conscience and will of an American public whose interest in the core governmental issues implicated by the Balanced Budget Amendment is so profound that actions taken pursuant to it simply will not escape public notice -- or public retribution if there is misconduct."