Line-item veto is debated in court 5 Democratic lawmakers challenge administration, GOP leaders on new law

March 22, 1997|By NEW YORK TIMES NEWS SERVICE

WASHINGTON -- In an odd alignment, lawyers for President Clinton teamed up with Republican congressional leaders yesterday and argued against five Democratic lawmakers over the constitutionality of letting the president cancel selected items of federal spending.

The Republican congressional leaders defended the new presidential power, known as the line-item veto, as a legitimate way to achieve an overarching national purpose: reduction of the federal budget deficit.

Congress gave the president that power in a law that took effect Jan. 1.

The judge, Thomas Penfield Jackson of the U.S. District Court in Washington, hinted that he had reservations about the new law, a major item in the Republicans' "Contract with America."

He is not expected to rule for several weeks.

Among those in court yesterday was Democratic Sen. Robert C. Byrd of West Virginia, a lifelong student of the Constitution and one of the plaintiffs challenging the new law.

A Justice Department lawyer, Neil H. Koslowe, defended the new veto power -- which has yet to be used -- as a routine delegation of authority to the president.

He said the many precedents for such delegations stretched back to the first appropriations in 1789.

But Jackson said the new law seemed different. "The law," he said, "tells the president, 'You can extirpate an item of spending which can't be revived.' "

Alan B. Morrison of the Public Citizen Litigation Group, a lawyer ,, for the plaintiffs, said the line-item veto violated the separation of powers prescribed in the Constitution.

"With the line-item veto," he said, "the president is making, not executing, the law."

Jackson seemed receptive to this argument. "To expunge the law or render it null and void would seem to me to be a lawmaking function," he said at one point.

Koslowe told the court that Congress could delegate virtually unlimited power to the president, so long as it set forth "intelligible principles" to guide the exercise of the president's discretion.

Jackson asked, "Could Congress delegate power to the president to develop an internal revenue code with the intelligible principle that he raise enough revenue to run the country?"

Koslowe said, "Yes."

When the Senate legal counsel, Thomas B. Griffith, answered the same question in the same way, the judge gulped, in apparent disbelief.

The plaintiffs challenging the law with Byrd are Democratic Sens. Carl Levin of Michigan and Daniel Patrick Moynihan of New York and Reps. David E. Skaggs of Colorado and Henry A. Waxman of California.

In an interview, Byrd said the Clinton administration's argument, taken to its logical conclusion, would permit Congress to delegate its lawmaking function to the president.

"We can just go home," Byrd said, shaking his head. "We could assemble once a year, which is required by the Constitution, and delegate everything to the president."

Levin, who also was in court yesterday, said: "This is a landmark issue, a fundamental, bedrock issue, whether the president can repeal a law on his own."

Pub Date: 3/22/97

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