Failed Supreme Court nominee Robert Bork is the slain martyr at the center of the conservative legal movement’s creation myth. In reality, Bork was a brilliant but deeply radical judge who once attacked the federal ban on whites only lunch counters as a law of “unsurpassed ugliness.” And yet, in the right’s narrative, the bipartisan vote rejecting Bork’s nomination was the moment America turned into Gomorrah.
So Republicans pushing an even more radical constitutional amendment that would force America to return to 1966 federal spending levels should consider Bork’s advice before they move forward with this dangerous agenda. Four years before President Reagan attempted to put Bork on the Supreme Court, Bork warned that such an amendment would be completely unworkable:
Even assuming no problems of enforcement or of distortion in the enforcement process, government has ways of commandeering society’s wealth and redistributing it that do not depend upon taxation, borrowing, or inflation. The most prominent, of course, is regulation. Government need not spend a dime on a program if it can find groups in the private sector who can be made to spend their own funds. [...] Social Security benefits could be handled largely in this way, ending governmental deficits but not the share of wealth appropriated by government for its purposes. So far as I know, no one has suggested a workable way around this difficulty. [...]
Also troubling is the problem of enforcing such a constitutional provision. In the early stages of discussion, a lot of people, including most economists, apparently thought this was no problem: if Congress exceeded the constitutional limits on spending, someone would sue. That much is true. The result, however, would likely be hundreds, if not thousands, of lawsuits around the country, many of them on inconsistent theories and providing inconsistent results. By the time the Supreme Court straightened the whole matter out, the budget in question would be at least four years out of date and lawsuits involving the next three fiscal years would be slowly climbing toward the Supreme Court.
Bork’s first concern is amusing because it describes the exact same structure used by the Affordable Care Act, which requires most Americans to either carry health insurance or pay slightly more income taxes — rather than simply taxing those same Americans and using that money to provide them with health care. Bork’s anticipation of this model suggests that he would have been baffled by the recent constitutional attacks on the ACA when he wrote his critique of constitutionalizing fiscal policy, but it also flags a bizarre irony in the GOP’s proposed constitutional amendment. If it ever became law, it would force Congress to pass many more laws similar to Obamacare.
But Bork’s second concern highlights just how unworkable the GOP’s amendment would be. Several of the currently pending challenges to the Affordable Care Act were filed more than a year ago, and they are still no where near a Supreme Court decision. If the Supreme Court strikes down the 2014 budget in 2016, what exactly is the government to do? Does it have to take back the money it already spent, and if so, how? And what does this do to America’s credit rating if every bill sent to the federal government is subject to reexamination by nine judges in black robes?
There are, of course, much stronger arguments against the GOP’s amendment — forcing the federal government to making spending cuts that even Ronald Reagan viewed as far too draconian is a terrible idea — but Bork’s long-forgotten article highlights just how far off the deep end the GOP has fallen. The Myth of Robert Bork is second only to the lionization of Reagan in GOP mythology, yet both Reagan and Bork wanted no truck with the Republicans’ flagship fiscal policy proposal.