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Court Weighs Veto In Balance of Power

By Staff writer of The Christian Science Monitor / May 27, 1997



WASHINGTON

All that stands in the way of granting President Clinton the most sweeping budgetary power of any American president, ever, is the United States Supreme Court.

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Today, in an unusual hearing coming late in the high court's term, the nation's nine top judges will consider whether Congress last year had the right to grant a line-item veto to Mr. Clinton.

The case represents a rare convergence of America's three branches of government, in which the court will referee the age-old tussle for power between Congress and the White House.

The veto, craved by presidents including Richard Nixon and Ronald Reagan, was the only point in the GOP's Contract With America that Clinton and the Republicans agreed on - as a way to balance the budget.

In theory, a presidential veto would give Clinton a powerful tool to strip away budgetary "pork" and hold the federal government accountable. But critics say he might also use it to target members of Congress in a highly prejudicial manner, coercing them to vote with him by withholding funds for programs or projects they want. Moreover, opponents say, the line-item veto might be unconstitutional.

"This is an important case, maybe even momentous," says Paul Rothstein, a constitutional scholar at Georgetown University here. "It can change the historic balance of power between the president and Congress. It gives the president a club to wield over the heads of individual [congressional] committees. It gives him a new bargaining chip."

The issue has come upon Washington suddenly. The high court agreed only last month to hear the case, two weeks after federal Judge Thomas Penfield Jackson declared the 1996 Line Item Veto Act to be an unconstitutional and "revolutionary" violation of the separation of powers between the executive and legislative branches of government. Six members of Congress, led by Sen. Robert Byrd (D) of West Virginia, brought the case, Raines v. Byrd.

The case is another weighty one in a court term that, by July, will yield decisions on the right to assisted suicide, religious-freedom laws, and censorship on the Internet, among others. The White House has a direct stake in two other pending Supreme Court rulings: whether the president has immunity from a civil suit brought by former Arkansas employee Paula Jones, and whether federal investigators may review notes taken by Hillary Clinton's lawyers in connection with Whitewater.

Currently, the president must simply accept or reject budget appropriations bills that Congress places before him. The long-held interpretation of Article 1, Section 2 of the Constitution suggests that wording referring to "the bill" as "it" means the budget is a unitary whole. The new act gives the president authority to "cancel" within five days any item in the budget.

Clinton's lawyers say the veto is the logical outcome of an interplay between the White House and Congress dating to 1789. They will argue the president didn't coerce Congress to grant the veto; members voted willingly. "The act is simply the latest exercise of Congress's long-standing and well-settled power to vest the Executive Branch with discretion over the expenditure of ... funds," notes the president's brief.

Moreover, many observers say the veto will not create the apocalyptic scenarios opponents warn of. Congress's dealmaking ability is too advanced, they say. Committee chairmen can stall on the president's legislation unless he guarantees that their appropriation won't be touched. "Anyone who thinks the president can do what he wants doesn't understand how a bill appropriation gets passed," says one longtime Hill staffer.

But congressional-presidential arm-twisting aside, veto critics believe that the line item is unconstitutional and that defending it as a logical outcome of a historical power struggle is an grossly inaccurate reading of history and law.

Opponents don't accept that the Constitution's system of checks and balances can be altered - so long as balancing the budget is the reason for doing so. One Senate staffer said: "It is Congress's job to put these things in the bill, not the president's to take them out."

Others say changing the balance of powers requires more authority. "Revisions of this magnitude require amendment to the Constitution," writes the Bar of the City of New York, an association of 20,000 reform-minded lawyers opposed to the veto.

Some scholars question, however, whether the Supreme Court will even give legal standing to the six lawmakers bringing the suit. Usually, the court requires an actual grievance before it will take a case, but the president has not yet employed the line-item veto.

Judge Jackson ruled, however, that because the "dynamic of lawmaking is fundamentally altered" by a law that is unconstitutional, the six do have standing. They should not be forced to enact laws that are unconstitutional, he said.

The justices may well decide to vote on the line-item veto. "This kind of decision is going to be greatly influenced by the private views of the justices," says Mr. Rothstein. "They will vote on their instinct about who has too much power and who has too little."