John Johnston

Mr. JOHNSTON

Mr. JOHNSTON. Perhaps my friend did not hear the cases which I cited from around the country where courts have gotten involved in this. Looking to my own State of Louisiana, for example, in 1987, the court of appeals case, just to quote briefly, says: Defendants contend that there exists no justiciable issues in this case because the courts should not ``step in and substitute their judgment for that of the legislature and executive branches'' in the budget process. We disagree. The determination of whether the legislature has acted within rather than outside its constitutional authority must rest with the judicial branch of government. That is from Bruno v. Edwards, 517 So. 2d 818, a 1987 case. It is all over the country that this is done. I do not know what they have done in Colorado. They have done it in my State. They have done it in New York. They have done it in Georgia. They have done it in Wisconsin, California. All across the country they have taken balanced budget amendments, and there has been standing found and the courts have found those issues to be justiciable and indeed in a 14th-amendment case, Missouri versus Jenkins they ordered up taxes.

Mr. JOHNSTON. Quoting from Mr. Dellinger, Assistant Attorney General Dellinger's testimony on page 137 of the hearings, he stated as follows: There is as yet nothing in this amendment proposal that would preclude the courts of getting involved in issues of taxation. Recall Missouri v. Jenkins from 1990, where the Supreme Court held that while a Federal district court had abused its discretion in directly imposing a tax increase to fund a school desegregation program, that the modifications made in that case by the Court of Appeals satisfied equitable and constitutional principles. If we have an amendment that for the first time constitutionalizes the taxing and spending process and creates a constitutional mandate which the courts are sworn on oath to uphold, there is simply no way that we can rule out the possibility that tax increases or spending cuts would be ordered by the judiciary. The Senator asked what was the case Mr. Dellinger was concerned about. That is it--taxing being ordered by the courts or spending cuts being ordered by the courts. That is page 137 of last year's hearing. Mr. President, I ask unanimous consent that I be allowed to place in the Record at this point Mr. Dellinger's testimony.

Mr. JOHNSTON. Will the Senator yield on the question of what the Attorney General said?

Mr. JOHNSTON. He was saying that under the balanced budget amendment they would have the authority, that nothing would prevent the same authority exercised as in Missouri versus Jenkins.

Mr. JOHNSTON. The Senator from Utah also said the Congress would have the power if there were courts who began to meddle in this, accepted jurisdiction, that the Congress would then have the power, I guess by getting 60 votes to overcome a filibuster, in order to limit that jurisdiction of a case already started. I just wonder at what point the Congress would feel constrained to act. Would it be after the district court had issued an injunction, after the court of appeals had ordered taxes increased or after the Supreme Court had acted? Why do we not fix that in advance so the court will not exercise this jurisdiction, will not exercise that power, except to the extent that the Congress specifically authorizes it? That is my question, and then I will yield to my friend from Michigan.

Mr. JOHNSTON. Mr. President, I thank my colleague for yielding. On this question of justiciability and standing, the Senator is, I believe, familiar with the fact that many States have balanced budget amendments and there is a plethora of litigation in which State courts have taken jurisdiction. In New York, in the 1977 fiscal crisis where they had a loan of $250 million, the court declared that that was permissible; took jurisdiction. In the State of Georgia, a lease by development authority, the question whether that constituted indebtedness under that State's constitution. In Wisconsin, whether a lease-purchase agreement constituted indebtedness. In 1981 in Illinois, the legislature closed the schools early in pursuit of the balanced budget amendment of that State. The court took jurisdiction and, by the way, they said it was permissible but they took jurisdiction and made the decision. In California, the employees' retirement system challenged the action of the State legislature which, in turn, passed fiscal emergency legislation to suspend funding to the State employees' retirement system, and the court took jurisdiction in that case and was able to order. They do so all across the country. In my State, the courts specifically have stated they have jurisdiction. In the face of all of these State courts, in the face of Judge Bork, Attorney General Dellinger, in the face of Laurence Tribe of the Harvard Law Review and all of these others who say you probably would have standing, jurisdiction, justiciability, how it can be said-- and I ask my colleague--how it can be said that there is no standing justiciability or that this is a political question escapes me. Does the Senator desire to respond to that, or may I make one other point? Is he ready to respond to that? I see my colleague from Utah is not here.

Mr. JOHNSTON. Who say this is a matter that has no ambiguity.

Mr. JOHNSTON. Did he ever back up on that?

Mr. JOHNSTON. No, this was in the posthearing answer to written questions. That is the last word from Mr. Barr.

Mr. JOHNSTON. You do understand that Mr. Barr said: I do believe Congress should consider including language in the amendment that would expressly limit judicial review.

Mr. JOHNSTON. Mr. Barr is a supporter.

Mr. JOHNSTON. Mr. President, I yield the floor.

Mr. JOHNSTON. Are we proceeding on my time?

Mr. JOHNSTON. If I may interrupt--and I do not like to interrupt.

Mr. JOHNSTON. Judge Bork says: The result would be hundreds, it not thousands, of lawsuits around the country, many of them on inconsistent theories and providing inconsistent results.

Mr. JOHNSTON. Do you know what Robert Bork said?

Mr. JOHNSTON. Where does my friend find such limitations on the court's power? If somebody has standing to sue, then they have standing to ask for whatever relief is appropriate.

Mr. JOHNSTON. What harm does it do, to clear up this matter, to say that there is no jurisdiction, no power for the courts to grant judicial relief except to the extent we authorize it in the Congress; what harm does it do?

Mr. JOHNSTON. Let us quote from Mr. Barr, who says in that same statement on page 8: But I would be the last to say that the standing doctrine is an ironclad shield against judicial activism. The doctrine is malleable and it has been manipulated by the courts in the past. The one expert that my friend from Utah quotes to say that this matter is clear himself says it is unclear, and he says you cannot predict what the court will do, and himself urges that you limit the jurisdiction of the court. That is what he says. I ask my friend, why do we not clear it up?

Mr. JOHNSTON. Can the Senator give me one single expert who agrees with him?

Mr. JOHNSTON. Wait. We are on my time now. Let me make my point first, and the Senator may respond. There is not one expert--not one-- that I have come across who says the matter of justiciability, the matter of standing, or the matter of being a political question, which are the three bases on which my friend from Utah relied in our January 31 debate, not one expert says that that is a clear question. On the other hand, Professor Tribe says it is clear they would have standing. Mr. Dellinger says he believes they would have standing. Judge Barr says you ought to limit that because there may be some lawsuits and they may order some judicial relief, and no one that I can find disagrees with that. What I am saying is that it is at best an ambiguity--at best--and a probability of court jurisdiction, a probability of court intrusiveness here. How can my friend from Utah say it is not a matter of ambiguity in the face of the Harvard Law Review and distinguished professors, including his own, who say otherwise?

Mr. JOHNSTON. Of course it does.

Mr. JOHNSTON. In the Danforth amendment.

Mr. JOHNSTON. I am quoting Attorney General Barr in a written answer to a posthearing statement in which he says ``I do believe''--do believe--``Congress should consider including language in the amendment that would declaratory judgment.''

Mr. JOHNSTON. If the Senator will yield.