Court nullifies line-item veto Federal judge rules Congress can't cede powers to president

April 11, 1997|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF Sun staff writers Carl M. Cannon and Karen Hosler contributed to this article.

WASHINGTON -- A federal judge struck down yesterday a new law that gives the president the power to delete individual items from spending bills he signs -- a budget-cutting tool that presidents have sought for more than a century.

Acting one year and one day after President Clinton signed the "line-item veto" measure into law, U.S. District Judge Thomas Penfield Jackson ruled that Congress had no power to transfer any part of its legislative power to the White House.

Clinton has yet to use this authority.

Jackson wrote that the law empowers the president "to repeal duly enacted provisions of federal law."

"This he cannot do," the judge ruled.

The new "cancellation power is indeed revolutionary," the judge said.

"Never before has Congress attempted to give away the power to shape the content of a statute."

The Constitution "clearly forbids anything but [a president's] rejection of a bill in toto," the judge wrote in a 37-page opinion described by David Vladeck, a lawyer for one of the law's challengers, as "a home run."

The White House expressed disappointment last night.

Administration lawyers made plans to appeal the decision and to ask the judge or the Supreme Court to delay the ruling in the meantime.

Under a clause in the new law, any appeal goes directly to the Supreme Court, bypassing a federal appeals court.

It is un-

clear whether the Justice Department can persuade the Supreme Court to rule on the constitutional dispute before the court recesses for the summer, probably in late June.

The court is due to finish hearing cases April 21.

If the judge's ruling yesterday ultimately is upheld by the Supreme Court, a president could gain a line-item veto only if the Constitution itself is amended.

Under the line-item veto law, Jackson noted, spending bills passed by Congress go to the president "with a 'menu' of items from which he can select only those worthy of his approval" -- rather than as one package he must accept or reject, as has been true since the Constitution was ratified in 1788.

Last year, the Republican-controlled Congress, achieving a goal talked about since the presidency of Ulysses S. Grant, enacted the line-item veto as a way to help reduce the budget deficit.

The measure was also designed to shift to the president the politically distasteful task of nullifying tax loopholes and "pork barrel" spending items that are meant to benefit only a narrow group or interest.

The law allows the president to veto three kinds of items:

Any specific dollar amount of a new commitment to spending in the future.

Any new item allowing spending in a current year, notably for new "entitlements" to public revenue.

Any tax benefit that would cost the government revenue while benefiting no more than 100 taxpayers.

Once an item has been lined-out by the president, it vanishes from the budget or the tax code, unless Congress thereafter approves new legislation.

Any such legislation could then be vetoed by the president, subject to being overridden by two-thirds majorities in the House and Senate.

Although Clinton has not used this power, Jackson said the fact was "immaterial" and did not bar the courts from ruling on the power's constitutionality in a lawsuit filed by four senators and two members of the House.

Members of Congress, the judge said, "find themselves in a position of unanticipated and unwelcome subservience to the president before and after they vote on" spending bills.

The budget process, he noted, is already under way.

Once a spending item or a tax benefit has become law, the judge ruled, Congress alone has the power to change it by new legislation.

Its legislative power "may not be delegated at all" as the Constitution is now written, he said.

Specifically, Jackson found that the line-item veto violates the clause in the Constitution that requires Congress to present final legislation to the president, for the president to sign or to veto.

That means, the judge ruled, that "the president must consider the whole of the bill presented," not just some of its specific contents.

If a president had power to cancel individual items, Jackson said, "the bill he signed is not the law that will govern the nation."

The judge suggested that Congress still has other ways in which to enlist the president in cutting the budget and the deficit. And, he noted, a constitutional amendment remains an option to provide a line-item veto.

Sen. Daniel R. Coats, an Indiana Republican who was among the lead sponsors of the line-item veto, called the decision a "setback."

"Hopefully," he said, "it's only temporary."

But those who filed the court challenge were delighted.

"This is a great victory for the American people and for our constitutional system of checks and balances," said Sen. Robert C. Byrd, a West Virginia Democrat who was one of the six lawmakers who filed the lawsuit.

"I viewed the passage of that law as one of the darkest moments in the history of our republic."

Sen. Orrin G. Hatch, a Utah Republican who is chairman of the Judiciary Committee, said: "I always thought it was unconstitutional for us to delegate authority to the president.

"This represented a massive shift of power that could have been devastating for the country."

Pub Date: 4/11/97

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