WHEN Congress convenes next week, the White House will resume its on-again, off-again battle to shore up the legal underpinnings of the president's power versus that of Congress. The White House is holding a novel weapon in its arsenal for this never-ending battle over balance of power.
Upstairs from the Oval Office, White House counsel C. Boyden Gray plans to comb through drafts of bills looking for just the right target for a presidential line-item veto.
The target will probably be a small one, some legislative requirement of little consequence. But if the White House succeeds in establishing the item veto in court, it could provide a foil for Congress's alleged ``micromanagement'' of the executive branch that increasingly rankles the administration.
Granting the president an item veto has been debated without effect for most of a century. Legislation has failed repeatedly.
But in recent years, a legal theory advanced by Stephen Glazier, a New York attorney, has gained a following: that the Constitution already grants the president the power to single out appropriations items for veto.
The White House is willing to test this theory in court. The plan is to pick an issue for an item veto, do it, and let Congress sue.
If President Bush established a line-item veto similar to that held by governors in 47 states, the impact on power in the federal government could be substantial.
An item veto, writes Louis Fisher, an expert on the separation of powers with the Congressional Research Service, in a 1986 law journal, ``may fundamentally alter the constitutional balance between Congress and the president.''
Rep. Mickey Edwards, a conservative Republican from Oklahoma, wrote a year earlier that an item veto would ``concentrate substantial new powers in that most concentrated of power bases, the presidency.''
Whether Bush will choose to provoke such a confrontation with Congress over a procedural issue is not at all certain. Most likely, according to Gray, the White House will try a limited form of item veto that would claim presidential power to strip away riders attached to appropriations bills the president deems unconstitutional.
This is a less ambitious move than a classic line-item veto that deletes funds for individual projects out of budget bills.
Still, it would have ``certainly an impact on domestic regulation,'' as well as foreign policy and the deficit, says Mr. Gray, who is the point man in the White House on matters of presidential prerogative.
It would not cut the deficit directly, as the item vetoes held by some governors can, explains Gray, but it ``gives the president more leverage in the process.''
Gray has not ruled out that the White House will attempt a classic line-item veto, but he is skeptical that the courts would accept it.
Frustration in the executive branch has been growing over what officials see as the continual erosion of presidential power by Congress ever since the end of the Vietnam War.
In the 19th century, Congress set the national agenda with little interference from the president - with some notable exceptions such as the Lincoln administration.
But with two world wars, a great depression, and the rise of mass communications, the balance of power shifted heavily toward presidential initiative.
After Vietnam, however, Congress began to reclaim some of its territory.
In the early 1970s, the presidency took two major blows. Congress passed a war powers act that required congressional approval for long-term troop commitments abroad. Then it stripped the president of impoundment authority, which allowed the executive to withhold spending funds even though Congress had appropriated them.
Congress had a major setback in 1983, when the Supreme Court found the legislative veto, a device that required congressional approval for certain actions by federal agencies, unconstitutional.
Yet Congress has increasingly attached riders to appropriations bills that, for example, bar White House budget officials from analyzing the costs and benefits of agricultural price supports or bar Justice Department officials from arguing a certain theory of antitrust law in a Supreme Court case.
In November, Gray had singled out such a provision for testing the item veto. An appropriations bill for the Interior Department had a rider attached that barred the department from keeping a log of telephone calls between its staff and Congress. The rider was negotiated out of the bill, however.
Gray suspects that courts will accept the item veto only after all such political avenues have been exhausted.