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High Court Hears Line-Item Veto Arguments

By Joan Biskupic
Washington Post Staff Writer
Tuesday, April 28, 1998; Page A05

The Supreme Court yesterday took up a case of great constitutional moment, testing whether Congress violated the principle of separation of powers when it gave the president authority to cut individual projects from tax and spending bills without vetoing the entire legislation.

The justices are examining whether the historic line-item veto law, passed in 1996 with huge political fanfare, treads on Congress's authority. In a practical vein, a ruling could determine whether the president can reduce the federal deficit by blocking what he considers to be excessive spending that Congress lacked the political will to cut itself.

During the lively hour of oral arguments, Solicitor General Seth P. Waxman tried to minimize the step Congress had taken when it passed the law and urged the justices to reverse a district court ruling that found the line-item veto unconstitutional.

"This is not an example of a president repealing a provision of a law that Congress has enacted," Waxman said, but rather a president exercising the discretion that Congress has given him after he has signed a bill. Waxman said the president's new authority merely means that when Congress passes a bill with several projects in it, he can decide that some do not deserve funding because of overriding deficit problems.

But Louis R. Cohen, one of two lawyers representing people who say they were harmed when Clinton cut certain programs, told the justices that no matter when a president changes the spending bill or for what reasons, the bottom line is that what takes effect was not passed by both chambers of Congress, as is required by the Constitution.

The oral arguments before a packed courtroom that included numerous members of Congress and administration officials enveloped grand constitutional principles as well as the reality of pork-barrel spending. At one point, Justice Ruth Bader Ginsburg questioned whether the president was, in effect, carrying out the legislative function of elected lawmakers who say, "We don't want to take the political heat for making the choice" on which projects to pay for.

Ginsburg was among the justices yesterday who were skeptical of Waxman's argument that the line-item veto really flows from the president's power to carry out the law and is not an effort to "return" to Congress the bill it presented him.

Chief Justice William H. Rehnquist observed that if the court upholds the law affecting new spending bills, Congress might try to extend presidential authority to other elements of the appropriations process. And Justice Stephen G. Breyer questioned whether the president could single out certain groups or people for tax benefits or detriments.

But some justices also questioned whether they should reach the actual merits of the case, because the administration claims the two sets of challengers to line-item vetoes are not directly affected by them.

If they do not reach the merits, a ruling could seem like a repeat of last year, when the court first reviewed the line-item veto. The court said then that the six members of Congress who had challenged the act, led by Sen. Robert C. Byrd (D-W.Va.), lacked legal "standing" to bring the case because they had not been sufficiently hurt by the law to challenge it.

"It's disappointing," Justice Antonin Scalia said of the challengers who have been only indirectly affected by vetoes. "We went into a big windup last year without a pitch."

The line-item veto was a major plank in the House GOP's "Contract With America." Clinton supported the legislation and has invoked it 82 times to save an estimated $355 million.

Yesterday's consolidated cases were brought by New York City and the Snake River Potato Growers. New York City is protesting Clinton's striking of a provision of a bill that allowed New York state to qualify for higher Medicaid payments from the federal government. New York City is liable to the state for part of the money that must be recouped because of the loss of federal funds.

The potato growers cooperative is challenging a veto of a capital-gains tax break for sellers of agricultural refiners and processors. The cooperative was negotiating to buy a processing plant, but the deal fell through when the seller realized it would not obtain the tax break.

A district court judge allowed both challenges to go forward and ruled that the line-item veto violates the Constitution's separation of powers and its requirement that the president sign or veto bills in their entirety. In its appeal, the Clinton administration maintains that both groups still lack standing because any loss of funds to New York City derives only from whatever the state's loss is and that any harm to the Snake River group is merely speculative.

But Cohen said that the tax break for sales of processing facilities was specifically intended to help farm cooperatives such as Snake River buy agricultural plants and that when the tax break dissolved, the group suffered a "pocketbook" injury.

Arguing on behalf of New York City, Charles J. Cooper said that when Clinton canceled the New York Medicaid provision in 1997, the city became liable for millions of dollars that it would not have otherwise had to pay. Although the state of New York is an obvious victim of the cancellation, Cooper said, "This burden will land on our shoulders."

A ruling in the case of Clinton v. City of New York is likely to come by mid-summer.

© Copyright 1998 The Washington Post Company

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