Line-Item Veto May Head For Showdown In The Courts

The line-item veto, on track for congressional passage and President Clinton’s signature, appears a sure bet for one more challenge - in court. “Breathtaking in its questionable constitutionality” is how one skeptic described the proposed historic step.

The Senate passed one version of a line-item veto Thursday, following by about two months a similar House vote to surrender enormous power from the Congress to the president.

A line-item veto would give a president the power to selectively eliminate individual items in massive spending bills. A House-Senate conference must resolve differences in the two versions before the measure can be sent to an eager Clinton.

“The sooner such a bill reaches my desk, the sooner I can take further steps to cut the deficit,” the president said.

Not so fast, say some experts.

“The line-item veto is clearly unconstitutional,” Alan B. Morrison of the Public Citizen Litigation Group said. “I fully expect it will be challenged, sooner or later. And we are more than ready and willing to go to court to help those challengers.”

Morrison was the winning lawyer when in 1986 the Supreme Court struck down as a violation of the mandated separation of governmental powers a key portion of the budget-balancing Gramm-Rudman Act.

“We’ve been down this road before,” Morrison said. “There’s as big a constitutional flaw with the lineitem veto.”

Thomas Mann, director of governmental studies at the Brookings Institution, agrees. “There may be some legal precedents that will convince the courts to accept it, but that’s highly questionable. A constitutional amendment is how to bring a lineitem veto about.”

The major hurdle, as both Morrison and Mann see it, is Article I, Section 7 of the Constitution.

It says every bill by the House and Senate must be signed by the president before it becomes a law, and that the president may disapprove any such bill.

The measure passed by the Senate on Thursday calls for any multi-part spending bill approved by both houses to be broken into hundreds of smaller bills before being sent to the president. “That’s the fundamental flaw,” Morrison said. “The president is vetoing a ‘bill’ Congress never acted on.”

To address such concerns, Sen. Spencer Abraham, R-Mich., wrote into his chamber’s version a requirement that both houses vote a second time - on the entire package of legislative pieces. Only then would the legislation be sent to a president.

“That’s a procedural nicety that doesn’t deal with the political reality - Congress still would not have voted on each item, each bill,” Mann said.

“The measure is breathtaking in its questionable constitutionality, the extraordinary transfer of the power of the purse from the legislative to executive branch and the awkwardness of implementing it,” he added.

Sen. Carl Levin, D-Mich., voted against the measure and cited the same reason for his opposition. “This may all sound like process and a technicality, but it is the essence of what we do around here,” he said.