Samuel Nunn

Mr. NUNN

Mr. NUNN. Mr. President, last month I spoke on the floor detailing for my colleagues the exciting history of the Paralympic games. Many Americans are aware of, and excited about, the 16 days of Centennial Olympic games competition to be held in Atlanta during July and August, 1996. However, a number of people remain unaware of the 12 days of Paralympic competition that will be held less than 2 weeks after the conclusion of the Olympic Games. Atlanta is proud to host the Paralympics games along with the 4,000 athletes, 1,000 coaches, and team staff that it will bring to Georgia from more than 100 nations. The Paralympic movement, dating back to 1946, has involved scores of outstanding men and women with a wide variety of disabilities. Last month, I spoke of the accomplishments of Al Mead, an above-the-knee amputee. Al lost his leg due to a fall he took as a nine year old that led to complications requiring amputation. He is a former world record- holder in the long jump and the 100 meters, and a long jump silver- medalist in the Barcelona Paralympics. His accomplishments are awe- inspiring, and I look forward to watching Al perform, along with thousands or other people, in Atlanta in 1996. Today, I would like to call attention to another outstanding Paralympian, a young woman named Trischa Zorn. Trischa has been legally blind since birth with a condition called anaridia--the absence of an iris. Despite her condition, she has been a top performer in both the Paralympics and the Olympic swimming competitions. At age 7, she began swimming along with her sister's swim team in Tustin, CA. By the age of 10, her family moved to Mission Viejo where she began training in earnest. Due to her 20/1000 vision, Trischa had difficulty knowing when it was time to make her turns at the end of each length of the pool. Over the years she trained herself to count each stroke across the length of the pool so that she would know when she was approaching turns. With incredible dedication and determination, Trischa, in 1980 at the age of 16, was named first alternate on the U.S. Olympic swimming team. As we all know, to be selected as first alternate for the U.S. Olympic team is a tremendous achievement for the most able-bodied among us. It means competing at levels most of us will never approach. However, to be named first alternate to the U.S. Olympic team and to be legally blind is truly an incredible achievement. After a highly successful high school swimming career, Trischa was recruited by the University of Nebraska's women's swimming program. By her sophomore year at Nebraska, Trischa was named to the Big Eight all- academic team along with receiving All-American honors her junior and senior years. After graduating from Nebraska in 1987, Trischa got her master's degree in school administration from Indiana University/Purdue University at Indianapolis. She obtained her certification to teach both in the pool and in the classroom, all the while maintaining her vigorous training schedule. At the 1992 Paralympic games in Barcelona, Trischa was the top overall medalist. She won 12 medals--10 gold, 2 silver--and broke 6 world records. At the 1990 World Championships for the Disabled, she scored a ``Perfect 11,'' winning a gold medal in every swimming event. In the 1988 Seoul Paralympics, she won 12 gold medals, been awarded such titles as the first-ever Physically Challenged Athlete of the Year, Indianapolis Woman of the Year, and she was nominated for the 1988 Sports Illustrated Sportsman of the Year Award. Obviously, Mr. President and my colleagues, this is a woman who has focused on her abilities and almost dismissed her disabilities. She is now focusing on the 1996 Paralympics. All of us in Atlanta, and all who will be coming from all over the world to those events, look forward to watching ``The Golden Girl'' add more medals and records to her already impressive list of accomplishments. Mr. President, I yield the floor.

Mr. NUNN

Mr. NUNN. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. NUNN. Mr. President, the Senator from Delaware has explained the managers' amendment. I think there is nothing to add. I urge adoption.

Mr. NUNN

Mr. NUNN. I yield back the time on this side.

Mr. NUNN. Mr. President, I am pleased to join Senator Thurmond in urging my colleagues to support the seven nominees to be members on Defense Base Closure and Realignment Commission. I agree with Senator Thurmond that each of these individuals are well-qualified to serve as members of the Commission. are aware that the 1995 base closure process is well underway, as the Secretary of Defense presented his list of closure and realignment recommendations to the Defense Base Closure and Realignment Commission on February 28. In fact, the Commission has conducted two hearings on the 1995 process with the Commission's chairman, Alan Dixon, conducting the hearings alone. And, as Senator Thurmond just reminded the Senate, former Senator Dixon, now Chairman Dixon, could act alone, if necessary, but that is not the way this process was set up. That is not the way we intended it. It is not the way the overall Congress intended it because we wanted all the commissioners. And so we are here today to try to confirm the other commissioners. During those hearings that former Senator Dixon, now Chairman Dixon, just held, he stated more than once that he urged the Senate to act on the outstanding nominations at the earliest moment possible. The 1995 commission has much work to do in the next few months, and the Senate should not impede on the commission's progress by further delaying action on these seven nominations. I do not doubt that Chairman Dixon could handle it alone, but I do not think he wants that, and I do not think any of us want that. I believe it is in the interest of the Nation that the Senate favorably act on the nominations before us today. I urge my colleagues to approve the nominations. Mr. D'AMATO addressed the Chair.

Mr. NUNN. Mr. President, how much time do I have remaining?

Mr. NUNN. Mr. President, I move to reconsider the vote by which the nominations were confirmed.

Mr. NUNN

Mr. NUNN. Mr. President, I enjoyed very much hearing the Senator from Ohio, Senator Glenn, who is a stalwart member of the Armed Services Committee and has been a stalwart defender of the United States his entire life, either as a member of the Marine Corps or in the space program or in his splendid service here in the U.S. Senate. I heard him talk about Iwo Jima. All of us, I believe, are the beneficiaries of that reminder of the heroism that took place on Iwo Jima. And I might add that no one is better qualified to speak of heroism and patriotism and dedication than the Senator from Ohio, Senator Glenn, his plane having been shot five times when he was flying in the Marshall Islands, and I believe seven times his plane was shot when he was in Korea fighting for our country. So I thank the Senator from Ohio for that beautiful tribute to those who were so brave and gave so much of themselves for their country on Iwo Jima and other places in the Pacific.

Mr. NUNN

Mr. NUNN. Mr. President, on Wednesday, March 1, a story in the Washington Post discussing my judicial review amendment to the balanced budget amendment referred to the views of Prof. Kathleen Sullivan of the Stanford Law School. The views of Professor Sullivan, as reported in the Post, could be viewed as critical of my amendment limiting judicial review. That would not be an accurate reflection of Professor Sullivan's views. I received a letter from Professor Sullivan yesterday in which she notes: I have had the opportunity to read your remarks in the floor proceedings yesterday, and agree with you completely that it would be imprudent to pass the [Balanced Budget] Amendment in the mere unfounded hope that courts would not entertain lawsuits arising under it. Addressing the judicial review issue squarely, as you did, is plainly a step in the right direction. I ask unanimous consent that the text of the letter from Professor Sullivan and the article in the Post be printed in the Record. Mr. President, I am pleased that the Senate overwhelmingly adopted the amendment to limit judicial review under the balanced budget amendment. My amendment will ensure that no court interjects itself into the balanced budget process except as specifically authorized by Congress. I look forward to working with the chairman of the Judiciary Committee, Senator Hatch, in drafting implementing legislation, including implementing legislation on the subject of judicial review. To the extent that Congress exercises the authority in the amendment to regulate the judicial role, there are ample precedents for statutory provisions to ensure that judicial review does not interfere with the taxing and spending powers of Congress. These could include, for example, providing exclusive jurisdiction in the Federal courts or in a designated Federal court; removal to Federal court of any case filed in a State court; and restriction of the remedies, if any, that a court could grant.

Mr. NUNN

Mr. NUNN. I thank my friend from Utah and my friend from Illinois, and also Senator Craig and Senator Lott and others who have worked hard making this amendment acceptable. The Senator from Washington State, Senator Dorgan, and I have had some conversations also. Some of the language in this amendment now as is modified has been suggested by the Senator from Washington. Mr. President, I think this is enormously important, as I said. I will not repeat my remarks but I appreciate the fact that the managers of the bill have agreed to accept this amendment or to recommend its acceptance to the Senate. I urge my colleagues to vote for the amendment. Assuming as I do assume that the amendment will be part of this constitutional amendment, then I will vote for the final passage on the constitutional amendment and I urge my colleagues to join in that effort.

Mr. NUNN

Mr. NUNN. Mr. President, I ask unanimous consent that my amendment No. 300 be modified by the amendment I now send to the desk.

Mr. NUNN. I thank my friend from Utah. Mr. President, as I noted last Thursday, adoption of the balanced budget amendment to me is very important, but I also noted that without a limitation on judicial review, a limitation which was accepted during our 1994 debate when offered by Senator Danforth of Missouri, we could radically alter the balance of powers among the three branches of Government that is fundamental to our democracy. Former Federal Judge Robert Bork, who served as Solicitor General during the Reagan administration, has stated that a restriction on judicial intervention is ``essential if Congress is not to risk ceding some of its most important powers to the Federal judiciary.'' judicial review, the result-- would likely be hundreds, if not thousands, of lawsuits around the country, many of them on contradictory theories and providing inconsistent results. By the time the Supreme Court straightened out the whole matter, the budget in question would be at least 4 years out of date and lawsuits involving the next 3 fiscal years would be slowly climbing toward the Supreme Court. Former Attorney General Nicholas Katzenback has noted: [T]o open up even the possibility that judges appointed for life might end up making the most fundamental of all political decision[s] is not only an unprecedented shift of constitutional roles and responsibilities but one that should be totally unacceptable in a democratic society. Mr. President, the Framers of the Constitution placed the constitutional taxing and spending powers in the two elected policy making branches of Government, not in unelected life-tenure members of the Federal bench, because our Founding Fathers knew well the dangers of taxation without representation. The single-most important motivating force in the American Revolution was the opposition of the American people to taxation without representation. They would have found it inconceivable that the power to tax might be vested in the unelected, lifetime-tenure members of the judicial branch. Mr. President, I have listened with care to the arguments on the issue offered by my good friend and superb floor leader on this amendment, Senator Hatch, the chairman of the Judiciary Committee. I have also conferred at length on this subject with Senator Simon, an individual I respect immensely, as well as Senator Craig, who has done a superb job on this. All are highly respected in their views and knowledge of the Constitution and in this amendment. Senator Hatch, in particular, has provided detailed arguments in the Judiciary Committee report, on the Senate floor, and in personal discussions with me in support of the proposition that an amendment is not needed to address the issue of judicial intervention. His arguments are carefully researched and well written. If my amendment does not pass, if this constitutional amendment does pass, if this matter is adjudicated before the Supreme Court, I would want the Senator from Utah to make those arguments before the Supreme Court because I do not think anyone would be more effective. I just do not happen to agree with the arguments because I think, in spite of his arguments, there is considerable risk left that the courts would decide otherwise. The issue before us, however, is not whether we would personally agree with Senator Hatch's views on how a court should resolve a case. I agree with those views. We are not in the process of filing an amicus brief with the Supreme Court. We are writing words that will become the text of the Constitution of the United States. We are engaged--and I think we all ought to think about this very, very heavily--in the same awesome task that was undertaken by the Framers in Philadelphia during the Constitutional Convention, and the States will be making those same decisions if this amendment is passed and sent to them. The issue before us is whether we have taken reasonable and prudent action in drafting the balanced budget amendment to ensure that it does not result in judicial management of the taxing and spending process. In my judgment, we will not have done so unless we adopt an amendment on judicial review similar to the Danforth amendment we agreed to last year and the Johnston amendment, which was defeated last week by 47 to 51. My concerns are based upon three considerations. First, the legislative history of the balanced budget amendment is, at best, ambiguous and, at worst, literally invites judicial intervention into the taxing and spending process. Second, despite my high regard for the legal views of the Senator from Utah, I am constrained to note that there are other highly respected legal scholars who come to a different conclusion about the prospects of judicial intervention. We cannot ignore respectable legal arguments based upon the hope that the arguments set forth in the Judiciary Committee report against the Court becoming unduly involved will prevail before the Supreme Court. Finally, if we believe that judicial intervention is inappropriate, except as specifically provided by specific legislation, the only constitutionally certain means for eliminating the judicial role is to authorize the limitations in the text of the Constitution. the legislative history of the balanced budget amendment Mr. President, the legislative history of the balanced budget amendment contains a substantial amount of material indicating that Congress has contemplated a role for the courts: The discussion in the report of the Judiciary Committee, on page 9, expressly declines to state that the amendment precludes judicial review. Instead, the report states: By remaining silent about judicial review in the amendment itself, its authors have refused to establish congressional sanction for the Federal courts to involve themselves in fundamental macroeconomic and budgetary questions, while not undermining their equally fundamental obligation to ``say what the law is.'' Mr. President, there is a vast difference between actually prohibiting judicial review as opposed to merely ``refus[ing] to establish congressional sanction'' for judicial review. An activist court, faced with a lawsuit based upon the balanced budget amendment, will have no trouble pointing out that Congress consciously decided not to prohibit judicial review. The express actions of the Senate on this issue underscore the potential for such a ruling. Last year, the Senate adopted the Danforth amendment expressly restricting judicial review. This year, the Senate rejected a similar amendment offered by Senator Johnston. While the defeat of an amendment does not necessarily provide conclusive legislative intent of a desire to achieve the opposite result, it constitutes powerful evidence of intent when the issue is separation of powers and the Congress specifically rejects a proposal to frame the constitutional amendment in a manner that would protect the prerogatives of the legislative branch. The intent to provide for judicial review is highlighted by the remarks of Senator Hatch, floor manager of the amendment, during the debate on the Johnston amendment. During the debate on February 15, he made a number of statements reflecting an understanding that the courts could be involved in budget decisions, including the following: [I]f the Senator writes the courts out of * * * this balanced budget amendment, he will be writing people out that we cannot foresee at this time--I do not know--who may have some legitimate, particularized injury to themselves that will enable them to have standing and a right to sue. We do not want to take away anybody's rights that may develop sometime in the future. Now we have people in both bodies who want the courts involved * * *. Can we satisfy those who do not want the courts involved in this to the exclusion of those who do? I might add that some do like the courts involved in some of these areas. Congress should not, as the distinguished Senator from Louisiana proposes, cut off all judicial review * * *. A litigant in such a narrow circumstance, if he or she can demonstrate standing, ought to be heard. Similar statements were made by Senators Brown, Thompson, Santorum, and Craig. The legislative history in the House is even more of a problem. As Senator Levin noted on February 15, Representative Schaefer, a lead sponsor of the House amendment, has said: A member of Congress or an appropriate administration official probably would have standing to file suit challenging legislation that subverted the amendment. The courts * * * could invalidate an individual appropriation or tax Act. They could rule as to whether a given Act of Congress or action by the Executive violated the requirements of this amendment. Representative Schaefer's statements echoed those set forth in a document prepared by an ad hoc group known as the Congressional Leaders United for a Balanced Budget Amendment, which was included in the Record last year by Senator Craig on March 1, 1994. The statements by a lead sponsor in the House represent a wide open invitation for the unelected, life-tenured members of the judicial branch to make fundamental policy decisions on budgetary matters. judiciary. As a general matter, the judiciary has treated questions involving the power to tax and spend as political questions that should not be addressed by the judicial branch. There will be a fundamental difference, however, when the balanced budget amendment becomes part of the Constitution, the fundamental law of the land. Our constituents view the balanced budget amendment as a means to address taxation and spending decisions over which they feel less and less control. They would be sorely disappointed, if not outraged, if the result of the amendment is to transfer the power to tax and spend from elected officials to unelected, life-tenure judges. contrasting views on the issue of judicial intervention The Judiciary Committee report, which reflects the committee's and Senator Hatch's thoughtful legal views, sets forth three basic arguments in support of the proposition that an amendment to the balanced budget amendment is not necessary to restrict judicial review: (1) limitations on Federal courts contained in article III of the Constitution, primarily the doctrine of ``standing''; (2) the deference courts owe to Congress under both the ``political question'' doctrine and section 6 of the amendment itself, which confers enforcement authority on Congress; and (3) the limits on judicial remedies to be imposed on a coordinate branch of government--limitations on remedies that are self-imposed by courts and that, in appropriate circumstances, may be imposed on the courts by Congress. There are other views, however, from individuals who have served at the highest levels in the Justice Department in both Republican and Democratic administrations, as well as from distinguished legal scholars. President Reagan's Solicitor General, Prof. Charles Fried of Harvard Law School, has testified that: [M]ost constitutional scholars agree that recent Supreme Court jurisprudence would favor allowing a fair range of issues relating to the implementation of the amendment in the form now before you to become the subject of litigation and court determination. Professor Fried also observed that: [T]he amendment would surely precipitate us into subtle and intricate legal questions, and the litigation that would ensue would be gruesome, intrusive, and not at all edifying. Professor Fried cautioned against reliance on the political question doctrine to limit judicial review under a balanced budget amendment: I cannot be confident that the courts would treat as a political question a demand by a taxpayer or by a member of Congress that further spending * * * should be enjoined * * * I cannot be confident that the courts would stay out of this. The current Assistant Attorney General for Legal Counsel, Walter Dellinger, who previously served as a professor law at Duke, testified last month that: [T]his amendment, once part of the Constitution, may be read to authorize, or even mandate, judicial involvement in the budgeting process. When confronted with litigants claiming to have been harmed by the government's failure to comply with the amendment, or by impoundment undertaken by the President to enforce the amendment, courts may well feel compelled to intervene. * * *. The proposal appears to contemplate a significant expansion of judicial authority: state and federal judges may be required to make fundamental decisions about taxing and spending in order to enforce the amendment. These are decisions that judges lack the institutional capacity to make in any remotely satisfactory manner. Mr. Dellinger specifically addressed the possibility that the courts could mandate increases in Federal taxes: [The amendment] fails to state whether federal courts would or would not be empowered to order tax increases in order to bring about compliance. In Missouri v. Jenkins, [495 U.S. 33 (1990)] the Supreme Court held that a federal district court could mandate that a state increase taxes in order to fund a desegregation program * * *. Once the outcome of the budgeting process has been specified in a constitutional amendment, a plaintiff with standing might successfully argue that he or she had a right to have a court issue whatever relief is necessary to remedy the constitutional violation. The failure of the amendment to preclude such powers might even be thought to suggest, in light of Jenkins that the possibility deliberately was left open. Mr. President, I recognize, as Senator Hatch has argued, that Jenkins arose under the 14th amendment, which guarantees due process and equal protection, and not under a balanced budget amendment. The problem, however, is that the Supreme Court in Jenkins authorized a lower Federal court to mandate the imposition of taxes by a State, even though the imposition of taxes by the Judiciary was not contemplated by the Framers of the 14th amendment of the congressional legislation implementing the 14th amendment. Justice Kennedy, concurring in the result in Jenkins, rejected the majority's conclusion that a court could order a State to raise taxes, citing the very concerns that motivate my amendment: Our Federal Judiciary, by design, is not representative or responsible to the people in a political sense; it is independent. * * * It is not surprising that imposition of taxes by an authority so insulated from public communication or control can lead to deep feelings of frustration, powerlessness, and anger on the part of taxpaying citizens. 495 U.S. at 69. Those are the very concerns that should compel us to ensure that the Federal Judiciary does not assert similar powers to mandate the issuance of Federal taxes. Mr. Dellinger outlined other types of suits that could arise: [I]t is possible that courts would hold that either taxpayers or Members of Congress would have standing to adjudicate various aspects of the budget process under a balanced budget amendment. Even if taxpayers and Members of Congress were not granted standing, the amendment could lead to litigation by recipients whose benefits, mandated by law, were curtailed by the President in reliance upon the amendment, in the event that he determines that he is compelled to enforce the amendment by impounding funds. In addition, a criminal defendant, prosecuted or sentenced under an omnibus crime bill that improved tax enforcement or authorized fines or forfeitures, could argue that the bill ``increased revenues'' within the meaning of Section 4. Surely such a defendant would have standing to challenge the failure of the Congress to enact the entire bill--not just the revenue-raising provisions by the constitutionally required means [under the Balanced Budget Amendment] of a majority rollcall vote of the whole number of each House of Congress. Budget bills that include enforcement provisions could prove similarly vulnerable. Prof. Cass Sunstein, a well-known constitutional expert and the Karl N. Llewellyn Distinguished Service Professor of Jurisprudence at the University of Chicago Law School, sent me a letter yesterday commenting on this debate. I ask unanimous consent that the letter be included in the Record at the conclusion of my remarks. Professor Sunstein, who makes it clear that he is not an opponent of the balanced budget amendment, argues forcefully for an constitutional provision restricting judicial review. He observes that: Senator Hatch's arguments are of course reasonable, and it is to be hoped that courts would follow those arguments; but courts could find a sufficient basis in the text of the proposed amendment and in precedent to engage in judicial management under the amendment. In his letter, Professor Sunstein notes: There is a legitimate risk that the balanced budget amendment would produce a significant increase in judicial power. If it comes to fruition, this risk could compromise the democratic goals of the amendment. Prof. Kathleen Sullivan of Stanford University Law School also wrote to me yesterday commenting on the need for an amendment restricting judicial review. According to Professor Sullivan: There are at least three categories of litigants who might well be able to establish standing the challenge violations of the Amendment. First, taxpayers might claim that their rights to a balanced budget are violated, for example, by projections that outlays will exceed receipts. * * * Second, members of Congress might well have standing to claim that congressional actions have diluted the vote they were entitled to exercise under the amendment. * * * Third, persons aggrieved by actions taken by the government in claimed violation of the amendment might well have standing to challenge the violation. Each of these claims poses plausible claims of injury in fact, and none of them poses insurmountable problems of redressability. In most of them, in fact, simple injunctions can be imagined that would redress the plaintiffs' claims. I ask unanimous consent that a copy of Professor Sullivan's February 27, 1995, letter to me be included in the Record at the conclusion of my remarks. in the constitution Mr. President, there have been suggestions that my amendment is not necessary because a constitutional amendment is not needed to enable Congress by statute to restrict judicial intervention in the future. If my judicial review amendment is not passed and the constitutional amendment is ratified, I hope that my colleague and friend Senator Hatch will take the lead in making these arguments. I would hope that his arguments would prevail, but I do not believe that we should take the enormous risk that the courts would not agree. In the first place, until we determine that there is a majority in favor of such a proposition, there is no guarantee that such limitations would be placed in the implementing legislation. I would like to believe that a conservative institution would not find it difficult to preclude judicial management of the budget process. I had much greater faith in the belief until the Johnston amendment was defeated February 15. Reviewing that debate, and the various statements by leading Members about the potential for judicial review, I do not believe it is responsible for us to postpone that decision. Second, I am not certain that there will be a majority in favor of any specific proposition. Some favor a complete ban on judicial relief. Some favor declaratory judgments. Others appear to favor standing for Members of Congress. Still others believe that the rights of individuals or groups should be subject to vindication. Again, let's vote now and uphold the longstanding conservative principle that judges shouldn't be involved in taxing and spending decisions. Third, I am not persuaded by the argument that section 6 of the amendment, which states that ``Congress shall enforce and implement this article by appropriate legislation,'' precludes judicial review. Section 6 is not a grant of exclusive power--it does not state that ``only Congress'' shall enforce the legislation. In light of the legislative history that I have discussed earlier, there is no basis for concluding that section 6 was intended to exclude the Judiciary from enforcing the act. As Professor Sullivan noted in her February 27 letter to me: The proposed Amendment, as did [the 13th, 14th, and 15th] Amendments gives Congress authority to legislate, but it does not oust the courts, who need not defer to Congress in these matters. Fourth, although I agree that the courts have sustained certain statutory limitations on judicial review of statutory and common law rights, there is no case in which the Supreme Court has held that Congress could cut off all avenues of judicial review of a constitutional issue. As noted in the highly respected analysis of the Constitution prepared by the Congressional Research Service: [T]hat Congress may through the exercise of its powers vitiate and overturn constitutional decisions and restrain the exercise of constitutional rights is an assertion often made but not sustained by any decision of the Court. In Webster v. Doe, 486 U.S. 592 (1988), for example, the Supreme Court emphasized that a ```serious constitutional question' * * * would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.'' Charles Fried, Solicitor General in President Reagan's administration, has stated: [S]ection 6, as it is written, does not allow Congress to so limit jurisdiction, and it seems to me that if Congress tried to limit jurisdiction in this way without an express authorization, which there is not in this bill, that limitation itself might well be unconstitutional Professor Sunstein, in his February 27 letter to me, expressed similar concerns: If your proposed change, or some version of it, is not added, it is by no means clear that Congress can forbid judicial involvement by statute. Courts are quite reluctant to allow Congress to preclude judicial review of constitutional claims. . . . Courts would be especially reluctant, perhaps, to preclude judicial review of an amendment specifically designed to limit Congress' power to provide for budget deficits. One could easily imagine a judicial decision invalidating implementing legislation that denies a judicial role, on the theory that the balanced budget guarantee--without your amendment--is best understood to contemplate a firm judicial check on congressional activity. the responsibility of congress Mr. President, the report of the Judiciary Committee indicates there is little likelihood of judicial involvement in the taxing and spending process under the budget amendment, and they cite the history of this country in that regard. The difference is that now, if this amendment is in the Constitution, it will be a different Constitution than has framed the history of our country. Mr. President, others including leading constitutional authorities from both the Republican and Democratic Parties believe there is a reasonable likelihood the amendment could transform the courts into the forum for managing the budgetary process. To me, the risk is too high. In the face of conflicting legal views by respected authorities, it is our responsibility to act. If we believe, as I do, that we should not risk subjecting the budget process to judicial management, then we should adopt my amendment. I have modified that amendment now. The amendment very simply --and I am not quoting it, but the very simple essence of the amendment is that the judicial power of the United States shall not extend to any case or controversy arising under this article except as may be specifically authorized by legislation adopted pursuant to this section. In other words, Mr. President, the Congress will decide the jurisdiction of the courts. The courts will not decide it on the basis of constitutional interpretation. We can change the implementing statute if it does not work. We can mold it later. We can mold the statute after we have decided what the enforcement mechanism here is because those two things have to be considered together. So it is my hope that this amendment, which is now modified, will be accepted by the managers of this bill and it will be accepted by my colleagues. If it is, then I plan to support this overall constitutional amendment because I think it is enormously important that we have a mandate to the Congress of the United States to get this budget and our fiscal house in order. Nothing else has worked. This is the last resort. I wish we had not reached this point. I wish we had been able to use our normal political process, because I do not like amending the Constitution of the United States. However, I do believe it is the last resort. Mr. President, I am concerned about other areas that my colleagues are concerned about. I am concerned about Social Security. I am concerned about economic emergency. But my bottom line has been and is today that it is my fervent hope this judicial article, this judicial amendment will be put into this constitutional amendment so there is no doubt about the intent of Congress and the authority of Congress in managing the taxing and spending of this great country.

Mr. NUNN

Mr. NUNN. I thank my friend from Utah. I know how hard he has worked on this. I do know, having managed bills on the floor, that you cannot accommodate everyone. I understand that. You have to count the votes and make those judgments. I respect that. As my friend knows, I have immense respect for him and his leadership in this matter and on every other matter. The reason I put in the Danforth amendment, as you know, the Johnston amendment had nothing in it about declaratory judgment, and that was voted down. The Danforth amendment had been accepted. I would just as soon have left out the declaratory judgment part. That was put in because that amendment was accepted by the Senator from Utah and the Senate last year. I have another amendment here that basically says: The judicial power of the United States shall not extend to any case or controversy arising under this article except as may be specifically authorized by legislation adopted pursuant to this section. I am perfectly willing to modify my amendment and substitute this, which leaves out any reference to declaratory judgment. I can do that now, or if you want to look it over.

Mr. NUNN. I say to my friend that there is a vast difference in having to pass implementing legislation in order to block a court from exercising jurisdiction and having to pass implementing legislation if they are going to have jurisdiction. If we pass this amendment, the implementing legislation would be required, but in the absence thereof, the courts would have no jurisdiction. If we do not pass this amendment, it is my great fear that the courts will have jurisdiction unless we pass implementing legislation; and even if we do, the courts can say that implementing legislation exceeds the powers of Congress to limit their constitutional review because they have jurisdiction over the Constitution. When we put this in there, it is an invitation to assert that jurisdiction. Maybe they would not do it. Maybe it would not happen next year or the year after or in 5 years. But we have a risk that at some time this amendment--without clarity on the judicial review provision--could change the balance of powers in this country and basically eliminate a whole part of the separation of powers. I do not think the people of this country really want that.

Mr. NUNN. I would not have doubted it until we started debating this several days ago and, to my surprise, I saw the Johnston amendment defeated. I would not have doubted it until then. I cannot conceive a U.S. Senate--now a conservative majority--leaving in an ambiguity about whether the Federal courts are going to be given the license or invitation to take over taxing and spending decisions under a constitutional amendment. I could not conceive that until 2 weeks ago.

Mr. NUNN. Madam President, I would like to call up an amendment relating to economic emergency, which is amendment No. 299, and ask it be sequenced.

Mr. NUNN. Madam President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. NUNN. Madam President, I ask unanimous consent that amendment be set aside and that I call up amendment No. 300 at this point in time. I ask it be sequenced.

Mr. NUNN. Madam President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. NUNN. Madam President, the amendment that is amendment No. 300 relates to judicial review under the balanced budget amendment that is now pending before the Senate. I intend to offer this amendment and have it voted on on Tuesday, and I am very hopeful this body will agree to the amendment. My amendment would provide that the power of any court to order relief under the balanced budget amendment could not extend to any relief other than a declaratory judgment or such remedies as may be specifically authorized in legislation implementing the balanced budget amendment. Madam President, this amendment is identical to the Danforth amendment that was agreed to last year as a part of the balanced budget amendment which was voted on last year but not passed. I voted for that amendment but I did so after the Danforth amendment was incorporated in that amendment because I felt, and continue to feel, that this is absolutely essential if we are going to pass a constitutional amendment, if it is going to be ratified by the States, and if it is going to be able to function properly under our system of Government. In my judgment, adoption of a balanced budget amendment without a limitation of judicial review would radically alter the balance of powers among the three branches of Government that is fundamental to our democracy. As former Deputy Attorney General Nicholas Katzenbach has noted: [T]o open up even the possibility that judges appointed for life might end up making the most fundamental of all political decision[s] is not only an unprecedented shift of constitutional roles and responsibilities but one that should be totally unacceptable in a democratic society. Former Solicitor and Federal Judge Robert Bork has expressed his grave concern that the balanced budget amendment: * * * would likely [result in] hundreds, if not thousands of lawsuits around the country, many of them on inconsistent theories and providing inconsistent results. Under the Constitution, the taxing and spending powers are vested in the two policymaking branches of Government, the legislative and executive branches. These branches are elected by the people. The powers to tax, borrow, and pay debts are expressly vested in the Congress under article I, section 7, 8, and 9, under the 16th amendment. The power to appropriate funds is expressly vested in the Congress under article I, section 9. The power to implement and execute the laws made under the powers of Congress is vested in the President, under article II, section 1. The Founders of this Nation fought a revolution in opposition to taxation without representation. They would have found it inconceivable that the power to tax might be vested in the unelected, lifetime tenured members of the judicial branch of government. As a general matter, the judiciary has treated questions involving the power to tax and spend as political questions that should not be addressed by the judicial branch. Our constituents view the balanced budget amendment as a means to address taxation and spending decisions over which they feel less and less control. They would be sorely disappointed if not outraged if the result of the amendment is to transfer the power to tax and spend from elected officials to unelected life tenured judges. Madam President, I have no doubt that a majority, a large majority of the people I represent in the State of Georgia, are in favor of a balanced budget. Many of those people, if not most, would favor the sort of last resort effort to balance that budget by constitutional amendment, if that is the only way to do it, and that is what we are debating now. I do not believe, however, very many constituents in the State of Georgia would want the Federal courts to make these crucial decisions. I do not believe they would want any risk of that attendant to a next few days. One of the arguments that has been offered against the judicial review limitation--and of course we voted on a very similar amendment to my amendment, sponsored by the Senator from Louisiana, Senator Johnston, last week. It was defeated by 47 votes for it, 51 votes against it. And one of the arguments that was offered against that Johnston amendment which I voted for, and was very disappointed when it did not pass, is that it is unnecessary because the Supreme Court has tended to treat taxation and spending issues as political questions not appropriate for judicial review. I do not agree with this argument against the Johnston amendment and against the Danforth amendment. There have been unfortunate encroachments on the political question doctrine which demonstrate the potential and the high risk for an activist judiciary to assert the power to tax. In testimony on the balanced budget amendment, Assistant Attorney General Walter Dellinger has cited the case of Missouri v. Jenkins, 495 U.S. 33. That was a 1990 case in which the Supreme Court considered a decision by a district court to order specific taxes in order to implement the lower court's desegregation plans. Although the Supreme Court in that case did not approve the district court's imposition of specific taxes, the Supreme Court approved a decision by the court of appeals mandating taxation so long as the specific details were left to the State. In other words, to those who say this is not a danger, I say look at the Missouri case, where the court, upheld by the Supreme Court, made it clear that the lower court's decision could hold, mandating taxation by the State. If that precedent holds and somebody comes in under this constitutional amendment and makes a case that has standing, they would very likely find some Federal judge who would be willing to take this case, the Missouri case, and act on it and perhaps even order taxation under that theory. If the Supreme Court can permit Federal courts to order the imposition of taxes to address nonbudgetary issues--that is what the Missouri case was--in my view, it is quite likely the court would consider it appropriate to order taxation to meet the specific constitutional objective of a balanced budget. It seems to me it is more likely that they would order it in that case than it even was in the Missouri case. Madam President, an alternative argument against this amendment is, because there have been relatively few cases in which the Supreme Court has stretched the political question doctrine, we can rely on legislative history of this balanced budget amendment to discourage the court from asserting new powers over the budget. Again, I do not agree. Legislative history has not been particularly helpful. In fact, it may even be considered harmful. The discussion in the committee report, for instance, on page 9, the committee report that brings out this amendment, expressly declines to state that the amendment precludes judicial review. Instead, the report states--this is the report before us by the Judiciary Committee: By remaining silent about judicial review in the amendment itself, its authors have refused to establish congressional sanctions for the Federal courts to involve themselves in fundamental macroeconomic and budgetary questions while not undermining their equally fundamental obligation to say what the law is. Madam President, there is a vast difference between actually prohibiting judicial review as opposed to merely refusing to establish congressional sanction for judicial review. That is what this committee report does. An activist court--we have many Federal judges that are still in activist category in a number of appeals courts--an activist court faced with a lawsuit based upon the balanced budget amendment, in my view, will have no trouble pointing out that Congress consciously decided not to prohibit judicial review. Legislative history of the balanced budget amendment underscores the potential for such a ruling. Last year, the Senate adopted the Danforth amendment expressly restricting judicial review. This year, the Senate rejected a similar amendment offered by Senator Johnston. While the defeat of an amendment does not necessarily provide conclusive legislative intent of a desire to achieve the opposite result, it constitutes powerful evidence of intent when the issue is separation of powers and the Congress specifically rejects a proposal to frame a constitutional amendment in a manner that would protect the prerogatives of the legislative branch. The legislative history in the House is even more of a problem. As Senator Levin noted, on February 15, Representative Schaefer, a lead sponsor of the House amendment, said--this is one of the lead sponsors on the House side, Representative Schaefer: A Member of Congress, or an appropriate administration official, probably would have standing to file suit challenging legislation that subverted the amendment. He went on, the same Representative Schaefer, one of the prime authors of this amendment on the House side, quoting him again: The courts could invalidate an individual appropriation, or attack that. They could rule as to whether a given act of Congress, or action by the Executive, violated the requirements of this amendment. In other words, Madam President, one of the prime authors of this amendment on the House side explicitly invites the court to get in the rulings on tax and spending decisions. I find this very troubling. The statements by a lead sponsor in the House represents a wide open invitation for unelected life tenure members of the judicial branch to make fundamental policy decisions on budgetary matters. I have the highest respect for the judiciary. I do not believe, however, that making budget decisions is a role that would be sought or welcomed by the American people in terms of Federal judges carrying this out. In fact, I think a number of Federal judges, probably a majority them, would not welcome this kind of responsibility or this kind of jurisdiction. It is certainly not a role that our constituents would expect to be filled by unelected Federal officials. If we start having unelected officials making tax and budgetary decisions, we are basically going to be unraveling the Boston Tea Party in terms of the forefathers when they did not want taxation without representation. Madam President, another argument in opposition to a limitation on judicial review is that cases will be dismissed because plaintiffs lack standing. As noted in the judiciary report, pages 9 and 10, the powers of the judiciary under article III of the Constitution traditionally have been limited by the constitutional doctrine that a lawsuit cannot be considered by the Federal courts unless a plaintiff can demonstrate that he or she has standing to bring litigation. Under current Supreme Court doctrine, the plaintiff must show that he or she suffered an injury, in fact that the injury is traceable to the alleged unlawful conduct, and that the relief sought would redress the injury. The Judiciary Committee report asserts that it would be vastly improbable that a litigant could meet these standards. Again, I do not agree with that report. Assistant Attorney General Walter Dellinger provided the following examples of individuals who would have standing. If a crime bill authorizes forfeitures, it thereby increases Federal revenue. A criminal defendant would have standing to challenge a forfeiture on the grounds that the bill was passed by voice vote rather than by a rollcall vote as required by the balanced budget amendment. Another example from Assistant Attorney General Walter Dellinger is that if the President were to reduce Social Security benefits in order to address the balanced budget amendment, a Social Security recipient would have standing to challenge the President's decision. It is not too difficult to contemplate other scenarios. If welfare benefits are cut by the President, a welfare recipient could challenge the authority of the President to do so. At least that is the risk. If the President declines to cut welfare benefits, a State could challenge the President's failure to do so. If a State terminates a highway improvement contract because the President cut Federal funds, it is likely that both the State and the contractor would have standing to challenge the President's actions. individual, a company or a State would have standing because the litigant could meet all three elements of the test of standing: The entity suffered an injury in fact, No. 1; the injury was clearly traceable to the action or inaction under the balanced budget amendment, No. 2; and, No. 3, the relief sought, which would be invalidating the action or mandating a tax or expenditure, would redress the injury. As Senator Johnston noted on February 15, the experience of the States with balanced budget amendments demonstrates the likelihood that the court will find standing to institute lawsuits under the balanced budget amendment as reflected in litigation that is taking place in Louisiana, Georgia, Wisconsin, and California. Some have suggested that, because the States did not experience a flood of litigation, there is nothing to worry about. Again, I do not agree. As former Solicitor General and Harvard Law School Professor Charles Fried noted, and quoting him: The experience of State court adjudication under State constitutional provisions that require balanced budgets and impose debt limitation shows that courts can get intimately involved in the budget process and that they almost certainly will. Madam President, it would only take one or two well-placed cases a year to create budgetary chaos during the years that it would take from the time the lawsuit was initiated to the time that it was resolved by the Supreme Court of the United States. It does not take but one case to put clouds over a whole issue, such as bond issues or Treasury notes. I do not think we are thinking through what we are doing here in not putting an amendment in here that makes this judicial review clear and makes it clear where the limitations are. Madam President, some have contended that a constitutional provision governing judicial review is not necessary because Congress can restrict judicial review by statute in the future. Again, I dissent. I do not agree. In the first place, there is no guarantee that such limitations would be placed in the implementing legislation. If we believe judicial review should be restricted under this constitutional amendment, we need to say that and we need to say it now before we pass it and before the States vote on it. Second, although the courts have sustained certain statutory limitations on judicial review of statutory and common law rights, there is no case in which the Supreme Court has held that Congress could cut off all avenues of judicial review of a constitutional issue. If there is, I want someone to show it to me. Where is the case by the Supreme Court that says Congress can cut off the right of the Supreme Court to issue a ruling on the Constitution of the United States? I have not seen that ruling. As noted in the highly respected analysis of the Constitution prepared by the Congressional Research Service: [T]hat the Congress may through the exercise of its powers vitiate and overturn constitutional decisions and restrain the right of constitutional rights is an assertion often made but not sustained by any decision of the court. Let me read that again. The Congressional Research Service says: [T]hat Congress may through the exercise of its power vitiate and overturn constitutional decisions and restrain the exercise of constitutional rights is an assertion often made but not sustained by any decision of the court. Madam President, the only way to ensure the validity of legislation restricting jurisdiction on a constitutional matter is to expressly restrict judicial review in the text of the constitutional amendment. If we do not do that, we are inviting litigation, we are inviting judicial chaos, and we are inviting at least a risk of the fundamental overturning of the balance of powers and the separation of powers between our branches of Government. I do not believe a conservative body wants to do that. I just cannot believe we want to do that, particularly since we passed the same amendment last year and we have rejected it this year, which is even more of an invitation for the courts to construe that we really are inviting judicial review. It is inconceivable to me that we are not going to get 50 votes to make this clear. It is really literally inconceivable. Some have asked, ``How can we have a balanced budget amendment and how can it be enforced without judicial review?'' The first thing I would say on that, Madam President, is that we all take an oath to abide by the Constitution. That is part of the oath that we subscribe to when we come into this body. I do not believe that Members of this body will intentionally violate that oath, nor do I believe they will risk the wrath of their constituents by violating the Constitution. We may have 60 Senators who decide it is not a year for a balanced budget under this amendment, but that is in keeping with the amendment. That is not in defiance of it. It is permitted under the amendment. If Congress finds that such judicial review is desirable, it can tailor a statute to meet particular requirements. I have heard people say, ``You don't need to propose it in this amendment because we can come back by statute and do this.'' It seems to me that that is simply not the case. I do not agree with that. But I do believe that if we pass this amendment and then we decide that we want some judicial review--I probably will not want it--but if some people decide it, then there is no reason they cannot propose it, because this amendment permits the Congress to grant judicial review by statute if the Congress decides to do so. So we can tailor a statute to meet requirements in the future. We will have all the flexibility we need to meet that. Under my amendment, Congress can decide based on experience what remedies are best--whether judicial review should include only declaratory relief or whether it should include injunctions; whether it should be directed only at spending or whether it should include taxes. On the latter, I certainly will adamantly oppose any kind of judicial review that gives the courts the power to set spending or to set taxes. These are decisions Congress should make and it should be made based on experience. The amendment in its present form, I believe, is defective because it fails to address these issues. It leaves the whole situation ambiguous. In fact, as I have said, it leaves it worse than ambiguous because we are now debating essentially the same constitutional amendment we had last year. Last year, the Danforth amendment, which precluded this kind of judicial review without expressed statute, was passed. It was part of that amendment. This year, it has been expressly defeated on the floor of the U.S. Senate. And I would submit that any Federal judge would look at that that wants to get involved and they would say, ``There is our invitation that Congress clearly could have precluded it. They consciously precluded it last year, 1994, and they did not preclude it in 1959.'' And some of the authors of the amendment on the House side even invited this kind of judicial review. Madam President, I know that many of my colleagues have grave reservations about this overall balanced budget amendment because of its impact on congressional spending powers. I understand these concerns, but, frankly, I think that we are down to the point where we have about 40 years of experience and without a constitutional amendment we have simply not come to grips with our fiscal problems. It is my hope that I can vote for this constitutional amendment. But I will not be able to vote for it unless we make it clear that the judiciary of this country is not going to tax and spend and we are not going to change our form of Government back door by a constitutional amendment that is ambiguous on this question. I understand the concerns that people have, many concerns about what will happen in various forms of spending under this constitutional amendment. Those concerns are legitimate. Many of those concerns, however, go to the question of whether we are going to ever have a balanced budget at all under any such kind of provision. I also understand and have great identification with the view expressed by those who supported the Reid amendment on the Social Security exclusion. Some people have described that, in my view, certainly from my says we are not going to touch Social Security. Far from it. My view and my position on that is the Social Security system has to be dealt with. I do not think we have to do anything that hurts people on Social Security now, or those about to retire. But we cannot continue to borrow the money from the Social Security trust fund every year, put it in the operating fund, and then put a Treasury bill in the Social Security trust fund. Not only are we doing that, this constitutional amendment, unless we deal with that--and we are not dealing with it now because the Reid amendment was defeated--this constitutional amendment basically invites, it invites raiding the trust fund. Because it defines debt as being debt held by the public. Trust fund debt, putting a Treasury bill in the trust fund, is not debt held by the public. And we have what probably is inadvertent--I hope it is inadvertent--we have an inadvertent provision here in this amendment that basically invites building up more surpluses in the trust fund because you can borrow those funds with impunity from the operating fund and it does not require 60 votes. Now I think that is another flaw that needs to be dealt with. And I would think the authors of this amendment would want to deal with these flaws. But we are about to put something in the Constitution. I know the argument is that if we make any amendment here it has to go back to the House and that causes trouble; it would cost time. Madam President, we are about to amend the Constitution of the United States. We are about to put a provision in here that may be here 50 years from now, 100 years from now, or 200 years from now. I cannot conceive of passing something that we believe or a majority believe is flawed in an effort to get something through in a rapid fashion. I hope that we will deal with Social Security also, because, if we do not, Madam President, in spite of the fact that the 2002 date may be met--and I hope it is under this, if it is passed and ratified by the States; that is we, by the definition of this amendment, may have a balanced budget in 2002--and that would be an improvement, certainly an improvement over the present situation--it really will not be a balance because we will be borrowing about $100 billion that year from the Social Security trust fund and that will count as a balance. We will put a Treasury bill in the Social Security trust fund and then we will say that we have met the balance. And yet, by the year 2013 or 2014, in that neighborhood, the general operating fund will owe the Social Security trust fund about $3 trillion. We will do that. We will have that kind of debt to the Social Security trust fund even if we meet the mandate in this balanced budget amendment by 2002. And even if we have a balanced budget amendment in 2002, 2003, or 2004, if we meet it every year, we are still going to be rolling up debt. We are still going to have an operating budget that is out of balance because we are operating by borrowing from the Social Security trust fund. Not only the principal; we are borrowing the interest. What happens when the baby boomers retire? We will wake up in this country and we will find we owe $3 trillion. We no longer will have three workers for every retiree. We will be moving 2\1/2\ down to 2. At some point in the 2020's what we will have to do in order to have a Social Security fund be able to meet its payments, we will have to begin paying back that $3 trillion. Guess what happens then? We will be able to say for a few more years the Social Security trust fund can meet its obligations, but the general fund is going to have to borrow money, or we will have to tax people much, much greater than we are taxing now. In fact, the tax rates could become almost unbearable and almost unworkable in that situation. Now, I have to say that if we deal with this Social Security question like the Reid amendment or some other amendment, and I hope we will, in my opinion, in all honesty, it will take more than 7 years to get the budget balanced. We should not keep the 7-year provision in this bill because we will have to find another $110 or $120 billion in the year 2002. It will probably take more like 10 years. But I cannot think of anything more disillusioning to the American people than to go through the whole constitutional action here, pass it in the Senate, pass it in the House, pass it in three-fourths of the States, get down do 2002, 2003, 2004 and discover we have been borrowing money from the Social Security every year and that we still do not really have a balanced operational budget. Only in the macro sense will we have the economic effect, but we will be rolling up debt after debt after debt. We will owe $3 trillion by the time many of our children will be getting to the point they retire. That is going to be very, very disturbing. It is my hope that we will deal with both of these matters. On the Social Security I know there are a lot of people who feel that way. If we do not deal with it here, it will come up over and over and over again this year. We will be caught in a catch-22. We will be caught in a catch-22. I may not vote against this amendment because of Social Security, although I may. I have not decided that. I certainly know that I am not going to be able to support this unless we deal with the judicial part of this judicial review. Assuming we pass this, we are going to be dealing with it, they will continue big efforts on the floor of the House and the Senate to get Social Security out of here--not because Social Security itself does not have to be addressed. It does. We will have to address it separately. We should be addressing the Social Security system not as a way of building up surpluses that mask the true size of the Federal deficit. We ought to be dealing with it to preserve the integrity of that fund over a long period of time, and to make sure that our elderly people are fully protected. I am afraid that is not the way we will go. Madam President, one final thought. The way this amendment is worded now where it is only debt held by the public that counts in terms of debt, what we have is a major enticement for a loophole in this amendment. The loophole is, if we create more surplus in the trust funds, the Social Security trust fund, the airport trust fund, the highway trust fund, where our gas taxes go, the more surpluses we build up in there, the less we are going to have to do on deficits because those surpluses can be borrowed under the provisions of this amendment with impunity. They will not count as deficit. They will not count as debt. I think that is a major mistake. I think it is a real flaw in this amendment. I think it will come back to haunt us. If this passes and is ratified we will have people--year after year, and at some point it will probably pass--come to the point where they say we are not going to continue to use these Social Security surpluses. We will stop that. It may happen on the budget resolution. At some point, the people of this country will find out and we will pass that kind of recusal. It may be on a budget resolution, and then we will be in the dilemma. We will have 7 years to get the budget balanced under this constitutional amendment. We are not going to be able to change that by statute. We will not be able to meet the requirements, because at some point we are going to come to our senses and quit borrowing that Social Security trust fund each and every year. Then we will be in a situation, I predict, where we will not be able to meet the requirements of the balanced budget amendment by 2002, setting off a whole other round of disillusioned people out there, wondering if we will ever be able to deal with our fiscal problems responsibly. Madam President, I point these flaws out because I am one who hopes to be able to support this constitutional amendment as a last resort. I think having a constitutional amendment to deal with fiscal matters and budgetary questions is really a tragedy. I think it is an indictment of our entire political process that we are at this point. But we are at this point. I am one of those who would, if we have the right provisions in this amendment, I will vote for it. If we do not, it will be very difficult, but I will have to cast my vote no. The judicial part to me is enormously important, as I have said over and over again in this presentation, and I have said it privately to my colleagues, and I have said it in many different forums. The in this country is to have Federal judges setting tax and spending policy. Madam President, I understand both of my amendments are now in order and are sequenced, and I will be entitled to have votes.

Mr. NUNN. Will the Senator yield?

Mr. NUNN. I say to my friend from Utah, I have two problems with that argument. If Congress is going to zealously guard this right, this is the time to do it when we are amending the Constitution, because once you have put it in the Constitution, you have elevated the whole matter to the judges and the judges then decide their responsibility and their duties under the Constitution. And there is no case that indicates that the Supreme Court is willing for Congress to make the final decision about which jurisdiction the courts have in interpreting the Constitution of the United States.

Mr. NUNN. I say to my friend, I think he is absolutely sincere in that, and I hope his legal arguments will prevail both in this body and in the courts if this amendment becomes law. I also will say, those who passed the 14th amendment to the Constitution that resulted in an interpretation in the Jenkins versus Missouri case, I suspect those people would have been shocked to find that the Federal courts used the 14th amendment to require a State to raise taxes. I doubt very seriously if any of the authors of the 14th amendment anticipated that later on the Federal courts were going to require a State to raise taxes. I think they would have been in pretty much the same position you are in now. They would have argued vigorously that it would never happen. But it did happen. I think it could happen in this manner. It may even be more likely here in dealing with budgetary matters and putting an explicit provision into the Constitution.

Mr. NUNN. This amendment can.

Mr. NUNN. My problem is, I say to my friend--and I know he is an eminent legal scholar, but there are other constitutional scholars, such as Nicholas Katzenbach, Robert Bork, Mr. Freed, Larry Tribe, and a number of others, who fundamentally disagree with that analysis.