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  •   Line-Item Veto Case Is Heard By High Court

    By Helen Dewar
    Washington Post Staff Writer
    Wednesday, May 28, 1997; Page A08

    Congress's long fight over whether to empower the president to veto individual items in spending bills moved yesterday to the Supreme Court, where several justices questioned the legal standing of the losers in the legislative battle to challenge the outcome in court.

    The "line-item veto" legislation took effect in January and President Clinton has yet to exercise the new power, largely because Congress has yet to send him any spending bills. It was struck down as unconstitutional by U.S. District Judge Thomas Penfield Jackson six weeks ago, putting it on a fast track for a decision by the high court before its summer recess in July.

    In arguments yesterday, attorney Alan Morrison, representing a half-dozen senior lawmakers, contended that the bill – championed by Clinton as well as Republican congressional leaders – "fundamentally alters the federal lawmaking process" by giving the president unprecedented power to cancel spending approved by Congress.

    As a result, the balance that Congress attempted to strike in a bill could be destroyed and the public could wind up with legislation markedly different from what lawmakers approved, Morrison argued.

    Morrison noted that the line-item veto measure specifically provided for a legal challenge by dissident lawmakers and argued that they have standing to sue because the integrity of their votes as members of Congress is at stake.

    But Justice Antonin Scalia said he could not think of another case where a federal official has brought suit claiming a derogation of powers, asking whether a precedent set in this case might allow a lower court judge to sue if he was overruled in a way that diminished what he regarded as his judicial power.

    Justice Ruth Bader Ginsburg suggested that any injury from the law results from actions by a majority of the House and Senate. "Practically, it is a majority of Congress that has caused this injury, not the president," she said.

    Chief Justice William H. Rehnquist questioned whether a president would use the veto power in ways that would distort the purpose of a bill, suggesting it would be "politically costly" to do so.

    Justice Sandra Day O'Connor said even rules changes approved within Congress alter the dynamics of the legislative process. Justice Anthony M. Kennedy said he found "some point to the argument that this [line-item veto] changes the legislative dynamics" between the president and Congress but stopped short of saying it crossed the constitutional threshold.

    Arguing that the challenge should be rejected in Raines v. Byrd, acting Solicitor General Walter E. Dellinger contended that any threat to lawmakers was hypothetical because the veto has not been exercised and no harm has occurred. Even if members would have standing to challenge the law after the veto power is exercised, "they clearly would not have that standing now," he said.

    As for the argument that a selective veto could alter the purpose of legislation, Dellinger argued that Congress can exempt any spending item from the line-item veto authority by including an exemption when it passes the new bill.

    Before the line-item legislation was enacted, the president could kill an item in a bill only by vetoing the whole bill.

    The legislation gave him five days after signing a bill to "cancel" an individual item, which could include a spending provision, tax break affecting fewer than 100 people or expansion of an entitlement program. Congress could then pass legislation restoring the spending, but the president could veto it and Congress would have to muster a two-thirds majority of both houses to override.

    The suit challenging the law was filed by Sens. Robert C. Byrd (D-W.Va.), Daniel Patrick Moynihan (D-N.Y.), Carl M. Levin (D-Mich.) and Mark O. Hatfield (R-Ore.), and Reps. David E. Skaggs (D-Colo.) and Henry A. Waxman (D-Calif.). Hatfield has since retired.

    © Copyright 1997 The Washington Post Company

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