John Johnston

Mr. JOHNSTON

Mr. JOHNSTON. There is a limit on the debt now.

Mr. JOHNSTON. I believe that is also in the committee report. They say the debt is a creature of legislation and would be subject to that definition by Congress.

Mr. JOHNSTON. Yes, of course.

Mr. JOHNSTON. Mr. President, I have been speaking to my colleagues on the other side of the aisle, particularly Senators Brown and Gorton. I believe we have an agreement as to at least what we could agree to. If my colleagues on this side of the aisle would have no objection to this language, The language is a combination of language originally proposed by Senator Gorton back in 1982, and with the Brown suggestion about section 2. It would read as follows. I am not asking at this point to modify the amendment, but I would like to discuss it before I do. The judicial power of the United States shall not extend to any case or controversy arising under this article except for section 2 hereof or as may be specifically authorized in implementing legislation pursuant to this section. Section 2, my colleagues will recall, as Senator Brown talked about, provides that: The limit on the debt of the United States held by the public shall not be increased, unless three-fifths of the whole number of each House shall provide by law for such an increase by a rollcall vote. As Senator Brown pointed out, that is a powerful way to enforce the amendment. That would be exempted from the--in other words, the court would have jurisdiction under section 2, but otherwise would not have jurisdiction--would not--the judicial power would not extend, except as specifically authorized by Congress.

Mr. JOHNSTON. No. No. The court would have--the judicial power of the United States would extend to that case or controversy, however it arose and whatever remedies the court would feel were appropriate. We do not know what remedies those might be.

Mr. JOHNSTON. Mr. President, who has the floor?

Mr. JOHNSTON. Which is that under my amendment we do not prohibit the Congress from acting. To the contrary, we say that the court shall have no jurisdiction except to the extent that Congress specifically acts. So we allow that. We contemplate it. We encourage it. And Congress ought to act. On that the Senator and I agree. The question is if Congress does not act, what is the inherent power of the Court? And we wish to make it clear that they have no inherent power except to the extent we give it to them.

Mr. JOHNSTON. If the Senator will yield just for one statement----

Mr. JOHNSTON. I think the Senator brings up an important and close point and that is whether the phrasing in section 6, where Congress shall enforce and implement the article, whether a denial of jurisdiction, a denial of all remedies would be considered to be enforcing and implementing. This same kind of language is in section 5 of the 14th amendment. I am quite familiar with this because I had an amendment here which I passed twice in the Senate, invoked cloture twice on it, to was addressed by the then Attorney General as to whether that limitation was implementing the 14th amendment, and the decision of the Attorney General was not altogether satisfactory. Suffice it to say, there would be a real question as to whether that would be implementing and enforcing if you denied all jurisdiction. But it seems to me that is not the important----

Mr. JOHNSTON. Will the Senator yield?

Mr. JOHNSTON. Mr. President, I yield 15 minutes to the Senator from Wisconsin.

Mr. JOHNSTON. Mr. President, I yield 10 minutes to the Senator from Michigan.

Mr. JOHNSTON. I would not think the Senator made the mistake of voting against this kind of amendment before. I do not believe he has, because it was passed in the last Congress, without objection. The Danforth amendment was passed in the last Congress, without objection. It truly has been a bipartisan amendment, where Senators on both sides have seen the real need to limit the intrusiveness of the courts. The power of the courts, once granted, can extend to raising taxes, as well as cutting budgets, and they are not elected. They do not represent the people and they should not be able to do it, except to the extent that we in the Congress give them the power to do it. I hope the Senator will come to my point of view. That has nothing to do with whether you are for this balanced budget amendment or not--just as those Republican Senators who voted in 1982 for the Rudman-Gorton amendment were supporters of the balanced budget amendment but wanted to limit the intrusive powers of the courts to get involved in this matter.

Mr. JOHNSTON. Has the Senator voted on this question before?

Mr. JOHNSTON. But is the Senator familiar with the fact that, in 1982, two former attorneys general, Senators Gorton and Rudman, offered an amendment of the same import of my amendment today, and that although it was defeated, 12 Republicans who are still serving in the Senate voted for the amendment, including Senators Chafee, Cohen, Dole, Gorton, Hatfield, Kassebaum, Lugar, Murkowski, Pressler, Roth, Specter, and Stevens--that list includes some of the best lawyers in the Senate--and the point is, on this question of whether the courts ought to have jurisdiction--I think my friend would agree with me--is one that really merits some very serious thought; would the Senator not think?

Mr. JOHNSTON. Will the Senator yield at that point?

Mr. JOHNSTON. Will the Senator yield?

Mr. JOHNSTON. One wants it this way and one wants it that way. You can sort of be all things to all people by saying: Well, it is clearly a settled question there is no standing to sue, so therefore the court will not get involved. But, on the other hand, there may be some cases that will need to come to the court, where the court will need to order some relief. The classic, to me, was Attorney General Barr, who said--this is really rich. First of all, he said: I do believe the Congress should consider including language in the amendment that would expressly limit judicial review to actions for declaratory judgment. Then he goes on to say: If, however, such a position would prove to be politically unpopular, I believe, for the reasons detailed in my written statement, that Congress can safely pass the amendment in its current form without undue concern that the courts will entertain large numbers of suits challenging Congress' action on the amendment or that, even if the courts do entertain some suits, they will order intrusive injunctive remedies. I mean, he says well, they are probably not going to do it. If they do, there will not be many. And even if they do a few, they will not order intrusive injunctive relief. What is intrusive? I would think Missouri versus Jenkins--if they got their foot in the door, and Solicitor General Barr says they might have some suits, having their foot in the door it does not take many orders of the Supreme Court increasing taxes to be pretty intrusive to the American people.

Mr. JOHNSTON. What Senator Hatch has stated is that the court would have no jurisdiction. He says that is clear. I think it is demonstrably unclear. I think the question of how you spell out the jurisdiction and remedies ought really to take up some serious time of the Judiciary Committee: Bring in the legal experts, talk about whether you want to limit it to injunctive relief, whether you want to limit the power to enact taxes. All of those are very close and difficult legal questions that I think take a lot of thought, which are beyond my ability to spell out. I think you can spell out the broad constitutional terms right here. The court shall or shall not have power. But we would preserve that power of the Congress to do that. The real question is: Should the court have the power to order taxes, provide injunctive relief, make decisions, declaratory judgments, if the Congress does not specifically authorize it? I believe the answer to that is no. And that is why this amendment clears that up and makes it unambiguous.

Mr. JOHNSTON. The Congress does have the ability under, I believe it is section 5--section 6, to do that. That is clear. However, upon failure to act by the Congress, then the courts would probably have this jurisdiction anyway. The difference between section 6 of the amendment as presently stated and Congress specifically acts, there is no jurisdiction in the court. Whereas section 6 says the Congress may act, but in the meantime it is unclear what the authority of the courts is.

Mr. JOHNSTON. No. As a matter of fact, the amendment very specifically allows the Congress to implement the--to authorize judicial relief. But only to the extent that Congress specifically authorizes it. As I mentioned, the Congress may well want to, for example, say the court shall have declaratory relief; may be able to cut spending but not raise taxes; or you may want to have direct jurisdiction in the Supreme Court--original jurisdiction there, so as to expedite the hearings. There are all kinds of things we may want to do that would help clear up, for example, what happens in the bond market while these cases are moving through ever so slowly from all around the country. We ought to be able to deal with that in congressional legislation. I not only do not preclude that, I specifically authorize it in this amendment. The difference between that and the way we are now is it is unclear whether or not the courts have that inherent authority. If the Congress does not act, then it is my belief, along with Laurence Tribe and Robert Bork and Professor Dellinger, et cetera, that they would probably have that jurisdiction. I say: Make it clear.

Mr. JOHNSTON. Certainly.

Mr. JOHNSTON. Mr. President, I just want to point out, right before this debate started there were, I believe, two Members who are undecided, on our side, who said in my presence right here that this amendment may determine how they vote. They will have to speak for themselves. I will tell my colleague privately who they were. I do not think I should use their names. They can speak for themselves. My question is, are there those on your side of the aisle whose votes you lose by making clear the jurisdiction of the court? My guess is you do not, because this is almost identical to the Danforth amendment which was passed in the last Congress without objection.

Mr. JOHNSTON. Will the Senator yield briefly on that point?

Mr. JOHNSTON. My description of Senator Hatch's position is that he would like to have it both ways to satisfy those who think there ought to be court relief and to satisfy those who think there should not be court relief, because he has some of those voting for the amendment. I understand the position of my friend, Senator Hatch, which is he wants to pass the amendment, and that is fine. I have called into question the political calculus that says you lose votes by passing this amendment. I think you endanger, politically, this amendment by not clearing up this fundamental question.