John Johnston

Mr. JOHNSTON

Mr. JOHNSTON. If the Senator will yield----

Mr. JOHNSTON. I so yield.

Mr. JOHNSTON. What Attorney General?

Mr. JOHNSTON. Did the Senator have an opportunity to hear me quote Assistant Attorney General Walter Dellinger who said that it is possible that the courts would hold that either taxpayers or other litigants would have standing to adjudicate various aspects of the budget process?

Mr. JOHNSTON. I thank the Senator. In his usual candor, he I think reinforces the point. Mr. President, I see my friend from Utah coming onto the floor. I wonder if I could engage with him in a colloquy on this matter. I thank my friend from Utah. My question was this: I had just quoted from the Harvard Law Review a number of professors who have stated that in their view there would be standing, justiciability and the matter would be handled by the court, although there are doubts about the limits about it. Will the Senator from Utah agree with me that it is at least a matter of ambiguity as to what the jurisdiction of the court would be?

Mr. JOHNSTON. Will the Senator agree with me that, if it is a matter of ambiguity--and we will let Senator Hatch respond to that--then it ought to be an ambiguity that could be cleared up?

Mr. JOHNSTON. I agree with the Senator from Washington. Moreover, there is a legislative limit today on the debt of the United States. So Congress must act, plus act every year to increase the debt. They may act to increase the debt as defined by statute now. But, if you can do that, chances are you will be able to do it to increase it pursuant to the terms of this constitutional amendment.

Mr. JOHNSTON. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. JOHNSTON. Mr. President, I believe I am prepared to summarize in 1 minute and I will yield back the balance. Mr. President, I yield myself 1 minute. Mr. President, this amendment as worked out with the distinguished Senator from Washington [Mr. Gorton] and the distinguished Senator from Colorado [Mr. Brown] deprives the courts of judicial power to raise taxes, to cut budgets, to be involved in fiscal affairs of this Congress except to the extent that the Congress specifically authorizes that in authorizing legislation. It is the duty of Congress to implement and enforce this article by authorizing legislation. Section 6 so states, and there is also an exemption made for section 2. That is, the judicial power of the courts can extend to the enforcement of section 2 which in return requires 60 votes to raise the debt of the United States. Mr. President, this is exactly what the sponsors of this constitutional amendment have said the amendment does. They have stated that the courts may not enforce this amendment. This makes it clear that the courts may not enforce the amendment except in the case of section 2 or unless the Congress specifically authorizes them to do so. Mr. President, it is unthinkable to have the kind of ambiguity in the Constitution of the United States that is inherent in this amendment unless the Johnston amendment is agreed to. I urge my colleagues to adopt this amendment. I believe we are ready to yield back the balance of our time.

Mr. JOHNSTON. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. JOHNSTON. Harvard Law Review, 1983.

Mr. JOHNSTON. Mr. President, the Senator from Pennsylvania, who has one of the best legal minds in this body, has put his finger directly on the question. It is not clear whether there would be standing, justiciability, or whether it would be a political question. But the majority of the opinions I have seen indicate that there would be such standing. The Harvard Law Review demonstrates, however, that taxpayers probably would have standing to challenge. Professor Tribe, Judge Bork, and on and on, Mr. President. The better view is that there probably is standing that the courts would interfere, but it is not clear and it ought to be cleared up. That is what this amendment does. Mr. President, how much time remains?

Mr. JOHNSTON. Does the Senator wish another minute?

Mr. JOHNSTON. Mr. President, I yield to the distinguished Senator from Pennsylvania 5 minutes. How much time do I have left?

Mr. JOHNSTON. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. JOHNSTON. Mr. President, I yield 4 minutes to the Senator from Michigan.

Mr. JOHNSTON. Mr. President, how much time remains on each side?

Mr. JOHNSTON. Mr. President, I yield 2 minutes to the Senator from Arkansas.

Mr. JOHNSTON. Mr. President, I yield myself 1 minute, just simply to reply to the argument that somehow this language would do away with the requirement for standing. Mr. President, all this language says is that the judicial power of the United States shall not extend to a case in controversy under this article except for section 2. Now, I invite a comparison with the present language of the Constitution which says: The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made. Now, under the language of the Constitution which says the judicial power shall extend to cases, controversies, et cetera, the court has required standing. It is the same language that we have in this amendment. Whatever requirement the court will find for standing under this amendment is the same language that inheres under the Constitution. And so, Mr. President, there is no expansion of standing under section 2 under our amendment. Now, Mr. President, I would yield 2 minutes to the distinguished Senator from Washington. Mr. GORTON addressed the Chair.

Mr. JOHNSTON. Mr. President, I can tell the Senator from Utah what my concern is about this amendment. There was a Treasury study which showed that my State was more heavily impacted than any other State. It made certain assumptions. It made the assumptions that defense would not be cut, as the contract calls for; that Social Security would not be cut, as everyone promised. It was a nationwide study, and it determined, as I recall, the cuts to Louisiana were something like $3 to $4 billion.

Mr. JOHNSTON. Mr. President, I am indebted to the distinguished Senator from Washington [Mr. Gorton] and the distinguished Senator from Colorado [Mr. Brown] for helping work out this modification which I think achieves very well the purposes that most Senators want to achieve on this floor, which is to ensure that the real biting enforcement and sanction of section 2 is preserved in this amendment so that, as the Senator from Colorado said, section 2 is the real guts of the enforcement and that remains here with the power of the court to enforce it. But other than that, Mr. President, this amendment will provide that the courts may not raise taxes and may not substitute their judgment for that of the U.S. Congress. It is to me an amazing circularity of logic that the opponents of the amendment as modified have. They say, on the one hand, this is absolutely clear, we know there is no standing to sue, we know there is no justiciable question; this is a political question which the courts cannot get into. But, on the other hand, there may be some cases where some people will need to go to court and enforce this. But, on the other hand, it is absolutely clear. But, on the other hand, if we pass this amendment, the Congress will never act because then it will be clear. Well, Mr. President, it either is clear or it is not clear, and we know what the real answer to that question is: It is intentionally ambiguous, and in that ambiguity, we have mischief, because while what Judge Bork says is thousands of cases matriculating up through the district courts and the courts of appeal of this country, while we are waiting for those to be decided, the capital markets of this country, the bond markets, the very fiscal essence of the country will be held in limbo while the court decides such arcane questions as whether this is a political question, whether there is standing to sue, or whether it is a justiciable issue. We have the power to decide that issue now, to make it clear and unambiguous, which is, the courts do not have authority, except to the extent we give them authority. Mr. President, we have between now and 2002--2002--to act to implement this article. Section 6 says: The Congress shall enforce and implement this article by appropriate legislation. If this Senate and this Congress can pass a constitutional amendment by a two-thirds vote, by 67 votes, surely it could pass simple implementing legislation which requires only a simple majority. Why would Congress ignore section 6, ignore its duty when it takes only a majority vote, when we feel so strongly today that we are giving a two- thirds vote to the constitutional amendment? It does not make sense, and it does not add up. If any Member believes, as I believe, that what the courts would really do if they took jurisdiction is order a tax increase and then maybe say, ``Congress, this will go into effect 60 days from now or 4 months from now unless you act''--I think that is what they would do because that is the only thing they have expertise to do. They do not have the expertise to cut budgets, to decide between competing claims in a budget, but they sure do know how to order an income tax increase, because it takes no expertise. This amendment would prevent that; it would deprive the courts of the ability to meddle in this constitutional duty, which is properly the Congress', except to the extent that we authorize them to do so. Mr. President, it clears up an intentional ambiguity. It loses no votes. I believe this gets votes for this amendment, and it certainly makes a better I yield the floor.

Mr. JOHNSTON. We say the courts do have a role to the extent we specify.

Mr. JOHNSTON. It is not the intent of this language to give State courts the power. I do not believe they would have the power to order a tax increase or give a declaratory judgment or cut a Federal program. I believe that that judicial power adheres only in the United States.

Mr. JOHNSTON. Yes.

Mr. JOHNSTON. Mr. President, we have had this discussion. At this point, I wish to modify my amendment by inserting, in lieu of the present language, the following language, which I send to the desk.