Where I Stand: Challenge aimed at Line Item Veto Act is on the way

Friday, Oct. 24, 1997 | 10:24 a.m.

IT DIDN'T TAKE LONG for the presidential line-item veto to be challenged. It had to happen, because just too much power has been given to the chief executive by a lazy Congress. Although President Clinton didn't appear to abuse his power, he vetoed enough to make some members of Congress whine and others regret they had given him the power.

Here in Nevada, only Republican Congressman Jim Gibbons whined, but Sens. Harry Reid and Richard Bryan smirked. Our senators had fought the Line Item Veto Act, telling their colleagues it gives the president too much power and can be easily abused. Coming from a small state, they recognize the danger of such great power in the hands of an unfriendly president.

Congressional Republicans, believing that former Sen. Robert Dole would beat Clinton in the White House race, continued to push for the Line Item Veto Act. They got their way by passing the law but didn't have the votes to retake the White House. The results had Robert Reno write in Newsday about Rep. Jerry Lewis, R-Calif., squealing "like a pig in a slaughterhouse chute" when Clinton zapped one of his favorite projects. Reno added, "Oh sure, Lewis voted for the line-item veto in 1995, yelled loudly for its passage. Now he was yelling louder for its having been duly exercised."

Even before Clinton exercised his new power, some members of Congress challenged the constitutionality of the new law. U.S. District Judge Thomas Penfield Jackson struck down the statute but was later overruled because the petitioners couldn't show they were harmed.

Jackson ruled that Congress has no right to give away its constitutional power.

"Even if Congress may sometimes delegate authority to impound funds," the judge said, "it may not confer the power permanently to rescind an appropriation or tax benefit that has become the law of the United States. That power is possessed by Congress alone and, according to the framers' careful design, may not be delegated at all."

The judge also wrote: "Where the president signs a bill but then purports to cancel parts of it, he exceeds his constitutional authority and prevents both houses of Congress from participating in the exercise of lawmaking authority. The president's cancellation of an item unilaterally effects a repeal of statutory law such that the bill he signed is not the law that will govern the nation."

Now some people do believe they have been harmed and are challenging the new law. New York Mayor Rudy Giuliani and a group of hospitals and labor unions believe they can show damage suffered by Clinton's veto of a Medicaid financing system that benefited New York. They will argue that the line-item veto law unconstitutionally shifted taxing and spending power from Congress to the president.

The New York Times editorial page tells us the "financial harm to New York is substantial, but the greater harm is the unconstitutional transfer of power from Congress to the president. The Constitution provides only a single procedure for making or changing federal law. When a bill is approved by Congress, it is presented to the president, who may sign the whole bill into law, veto it or allow it to become law without his signature. The line-item veto, by allowing the president to cancel items from a budget bill after signing that budget into law, in effect gives the president power to change the law unilaterally, a result at odds with the fundamental doctrine of separation of power."

These are some of the same arguments expressed in this column during the past several years. Although Nevada has yet to suffer any serious damage from the new presidential power, it's still a bad law passed by a Congress unwilling to control its own irresponsible spending habits. As Judge Jackson wrote, "Congress has turned the constitutional division of responsibilities on its head."

Nevadans should cheer for New York winning this lawsuit. If members of Congress want to abdicate their spending and taxing powers by statute, they shouldn't be in Washington. The only way to accomplish this shift of power would be by amending the U.S. Constitution. Don't hold your breath for that to happen because Americans, after thinking this shift of power through, won't let it happen.