Court Strikes Down Line-Item Veto
Washington Post Staff Writers
Friday, June 26, 1998; Page A01
The Supreme Court yesterday struck down the broad new line-item veto authority that Congress had given the president to cancel specific items in spending and tax bills.
Within a couple of hours of the ruling, the law's backers announced they will try again to find a constitutional way to expand the president's powers to cut pork-barrel expenditures.
In a 6 to 3 decision, the court held that the line-item veto law violates a constitutional requirement that legislation be passed by both houses of Congress and presented in its entirety to the president for signature or veto.
Passage of the legislation in 1996 and its implementation in 1997 climaxed more than a century of struggle by presidents for this new authority. It was a rare unilateral yielding of power by Congress to the chief executive, prompted by Congress's increasing concern over its own lack of fiscal discipline. President Clinton, who had line-item veto powers as governor of Arkansas, signed the bill with relish and moved quickly, although cautiously, to begin trimming spending bills.
But the judicial branch, looking to constitutional rather than political or fiscal priorities, took a far dimmer view of the power swap.
Unlike earlier laws giving the president discretionary spending authority, "this act gives the president the unilateral power to change the text of duly enacted statutes," Justice John Paul Stevens wrote for the majority.
Such line-item vetoes are "the functional equivalent of partial repeals of acts of Congress," he said. But "there is no provision in the Constitution that authorizes the president to enact, to amend or to repeal statutes," he added.
Justice Anthony M. Kennedy cut to the political chase. "Failure of political will does not justify unconstitutional remedies," he said in a concurring opinion.
The decision comes as a blow both to Clinton, who used the new power 82 times over the past 18 months, and to GOP leaders, who made the line-item veto a marquee item in their 1994 "Contract With America."
"The decision is a defeat for all Americans," Clinton said in a statement issued while traveling in China. "It deprives the president of a valuable tool for eliminating waste in the federal budget and for enlivening the public debate over how to make the best use of public funds."
On Capitol Hill, Sen. Dan Coats (R-Ind.), who co-sponsored the law with Sen. John McCain (R-Ariz.), said the decision "means a retreat to the practice of loading up otherwise necessary legislation with pork-barrel spending."
By contrast, the law's foes were ecstatic. Sen. Robert C. Byrd (D-W.Va.) raised his arm in a salute and exclaimed, "God save this honorable court." Sen. Carl M. Levin (D-Mich.) said that Congress "tried to bend the Constitution [but] the court said it will not allow this to happen."
In his opinion, Stevens said Congress could alter the president's role in determining the final text of a law only by constitutional amendment. But Coats and other line-item veto supporters acknowledged that mustering the two-thirds majority in each house needed to move the constitutional amendment process forward would be difficult.
Instead, Coats and McCain said they will introduce legislation immediately to get around the Supreme Court's objections by breaking each appropriations bill into individual items, passing each one separately and sending them to the president to be signed or vetoed as separate bills.
The House balked at such a Senate proposal before settling on the current line-item veto law, gagging at the prospect of passing what could be thousands of separate appropriations bills instead of the 13 that must now be passed every year. Computers have since eased the procedural problems, Coats said, making the "separate enrollment" approach more feasible.
But many lawmakers' love affair with the line-item veto has cooled since Clinton began zeroing out some of their favorite projects and recent government projections of surpluses for the next several years. Many Republicans, who had put off implementing the law for months in hopes it would fall into the hands of a GOP president, are not keen about empowering Clinton or a possible Democratic successor. Moreover, there is little time left in this session for such a controversial issue.
Under the line-item veto law, the president could sign bills and then cancel spending for specific projects, narrowly targeted tax breaks, or new or expanded entitlement programs.
Congress could reinstate the spending but would have to muster a two-thirds vote of both houses to override a veto. Congress overrode only one of Clinton's line-item vetoes, involving 38 projects worth $287 million in a military construction bill; the vetoes that stood reversed $869 million in spending and tax breaks.
The challenge to the law came from New York and Idaho. New York City and hospital groups sued to restore tax breaks tied to the Medicaid program. The Snake River Potato Growers objected to Clinton's veto of a provision allowing deferral of capital gains taxes from sale of processing facilities to farmers' cooperatives. A lower court had ruled in the challengers' favor.
It was the Supreme Court's second ruling on the line-item veto. Last year the court set aside a suit brought by Byrd and five other lawmakers, saying they lacked legal standing to bring the case because they had not been sufficiently hurt by the law. Yesterday the court said the New York and Idaho groups had met this test.
Justices Antonin Scalia, Sandra Day O'Connor and Stephen G. Breyer dissented, with Scalia and O`Connor saying the Idaho potato growers had not shown they were harmed and hence lacked standing to sue; all three said the line-item veto should have been declared constitutional.
"There is not a dime's worth of difference between Congress authorizing the president to cancel a spending item, and Congress's authorizing money to be spent on a particular item at the president's discretion. And the latter has been done since the founding of the nation," said Scalia.
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