America's new imperial presidency

April 09, 1996|By Charles Levendosky

THE GOP-controlled Congress cried, "Stop me before I spend again!" when it voted overwhelmingly to give the presidency unprecedented power.

Frustrated that they cannot garner the votes to balance the budget or to stop their own pork barrel legislation, members of Congress have decided they don't want the job anymore -- despite the fact that the Constitution puts that responsibility in their hands.

"Give it to the president!" they cried, "Let him take the blame."

They then tossed control of discretionary spending bills into his lap by voting for the Line Item Veto Act -- and abdicated their constitutionally mandated responsibility.

They have radically shifted the balance of power between the executive branch and the legislative branch of government. This act allows the president to determine the final form of a bill.

Michael Gerhardt, professor of law at the College of William and Mary in Williamsburg, Va., and a specialist in separation of powers said, "Congress doesn't have the authority to delegate this to the president."

Gerhardt sent a letter to Sen. Patrick Moynihan, D-N.Y., expressing his concerns about the line-item veto.

"I am of the view that, given just the few significant flaws . . . that I identify . . . its constitutionality is plainly doomed,'' Gerhardt wrote.

Super legislator

Under the line-item veto, Gerhardt said, "Presidents can unravel the congressional package and cancel parts." The president can redefine legislation. The president has now been given the power to act as a Super Legislator.

But the Constitution states: "All legislative Powers herein granted shall be vested in a Congress . . ."

Traditionally, a president can sign or veto a piece of legislation. He takes or leaves it in the form that it is presented to him. A president negotiates with the Senate and the House on the terms within a bill before it is passed through his party's congressional leadership.

After passage, he signs or vetoes.

The line-item veto still allows the president to veto an entire appropriations bill. However, if the president signs the appropriations bill, he can now take it apart and turn it into numerous mini-bills. The president can then lower or cancel the amount appropriated in each of the separated bills. If the president eliminates the funding for a mini-bill, the result is the elimination of that bill.

The president must inform both houses of Congress of his changes. If Congress fails to respond to his changes in 30 days, the changes become law. The president can, in effect, create new laws that have never been passed by Congress.

That's the crux of the problem. The Constitution does not grant a president legislative powers.

Blunting an effectual weapon

Congress is supposed to represent the people in the governing process. The line-item veto has severely diminished Congress' role in governing -- and thereby the people's role. James Madison long ago pointed out that the "power over the purse" is the people's representatives' most "effectual weapon."

Harvard Law Professor Laurence Tribe wrote in his treatise, "American Constitutional Law," that "empowering the president to veto appropriations bills line by line would profoundly alter the Constitution's balance of power.

"The president would be free not only to nullify new congressional spending initiatives and priorities, but to wipe out previously enacted programs that receive their funding through the annual appropriations process."

The line-item veto would create an imperial presidency. And would relegate members of Congress to overpaid clerks.

More subtly, the independence of the judiciary is put at risk by the line-item veto. Federal courts rely upon discretionary funding for court staff, administrative support services, and courthouse construction.

On Jan. 12, as chairman of the executive committee of the Judicial Conference of the United States, Sixth Circuit Court of Appeals Chief Judge Gilbert Merritt testified before a joint House-Senate committee. He said, "The United States, almost always through executive branch, has more lawsuits in federal courts than any other litigant. It requires little imagination to see how one of the greatest threats to independence could come from undue financial pressures by the executive branch.''

Will the Line Item Veto Act do what its supporters claim it will, reduce the federal budget?

A 1985 economic report states that "per capita spending is somewhat higher in states where the governor has the authority for a line-item veto, even corrected for the major conditions that affect the distribution of spending among States."

So what's the point of all this sound and fury?

Ironically, the Line Item Veto Act has a provision for expedited judicial review, a rare provision in any bill. A legal challenge will go directly to the U.S. District Court for the District of Columbia and then, on appeal, directly to the U.S. Supreme Court.

Doesn't show much confidence.

Members of Congress wasted a great deal of time and money on this foolish, futile act. More of both will be wasted as it goes through the courts.

You might ask yourself why these folks spent so much money running for office -- it's obvious they don't want to do their job -- a job clearly defined by the Constitution.

Voters should insist that those who voted for this bill resign at the end of their terms. They don't belong in Congress. As President Harry Truman used to say, "If you can't stand the heat, get out of the kitchen."

Charles Levendosky is the editorial page editor for the Casper (Wyo.) Star-Tribune.

Pub Date: 4/09/96

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