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A Supreme Court decision: Line-item veto or liverwurst

By Charles Bierbauer
CNN Senior Washington Correspondent

In this story: May 1, 1998
Web posted at: 12:12 p.m. EDT (1212 GMT)

WASHINGTON (CNN) -- It works something like this. I write out the market list:

Bacon bits

And my wife scratches out the liverwurst and the bacon bits. Pork!

That's the line-item veto. My wife, I'm sure, is thinking about my health. When the president uses the line-item veto, he's supposed to be thinking about the nation's fiscal health.

Congress, knowing its own irresistible appetite for pork barrel handouts, gave line-item veto authority over some spending and tax measures to the president in 1996. He could cut out what members of Congress did not have the stomach to.

President Clinton has used the line-item veto 82 times since the beginning of 1997, saving an estimated $355 million.

But did Congress have the right in the first place to grant a president authority to veto line-by-line those items they want but he does not?

That's what the Supreme Court must now decide. The justices heard arguments this week in the case: William J. Clinton v. City of New York et al.

Medicaid and potatoes

New York City claims it could lose perhaps billions of dollars in Medicaid funding if the president's veto stands.

And in a second case combined with New York's, the Snake River Potato Growers of Idaho argue they've been hurt by the striking of a capital gains tax allowance for the purchase of agricultural processing facilities.

U.S. District Judge Thomas Hogan, in Washington, D.C., ruled in February that it's unconstitutional for the president to take those benefits away, at least not piece by piece.

As enacted, the line-item veto allows the president first to sign legislation into law. Then, within five days, he may strike individual items from that law.

Article I of the Constitution gives a president two options on bills passed by Congress: "If he approve he shall sign it, but if not he shall return it. ... "

The judge saw no partial third option.

"Because the laws that emerged after the Line Item Veto are not the same laws that proceeded through the legislative process, as required, the resulting laws are not valid," Hogan wrote.

In other words, if you want the steak and potatoes, you've got to have the peas, too.

Line-item legislating?

Solicitor Gen. Seth Waxman, arguing the White House's appeal, told the Supreme Court justices "what the president is doing is not repealing a law that Congress has enacted ... but exercising a limited discretionary authority that Congress has given him."

But Justice Ruth Bader Ginsburg disagrees. "Sounds like legislating to me," she said, suggesting a breach in the separation of powers between the legislative and executive branches.

That's decidedly the way some legislators see it.

"He gets to become a lawmaker. He becomes a super-legislator," Sen. Robert Byrd complained on the steps of the Supreme Court after listening to the arguments.


The West Virginia Democrat and other members of Congress sought last year to have the Supreme Court overturn the law. But the justices ruled the senators themselves had not been harmed and, therefore, had no "standing" to bring the case to the court.

Standing is a big thing at the Supreme Court. Even if the reasons are right, the justices are picky about whose case they decide because of legal technicalities. Some were troubled again by this year's presentation.

"It's disappointing," said Justice Antonin Scalia, indicating this year's case also may not reach the standing threshold. "We went into a big windup last year without a pitch."

Scalia questioned whether the parties before the court had really been harmed. If the buyers of potato processing facilities filed suit because their deal fell through, where were the sellers who actually would have gotten the tax break? If New York City got its federal Medicaid revenues through the state, where were New York state officials?

New York Gov. George Pataki, for one, was invoking his own line-item veto. On the same day New York City was arguing against the presidential line-item veto, the governor used his to strike a thousand items and $760 million in spending from this year's budget.

State officials are supportive of the city's claim but purposefully avoided the case because of the governor's own budgetary prerogatives. State and federal constitutions are different.

A ruling that promises to hit close to home

The Supreme Court's opinion is expected before July, when this court term ends.

Even liberal justices say they are very conservative when it comes to matters that tinker with the Constitution.

If they overturn the law, Congress could seek to rewrite one that's acceptable or amend the Constitution.

No matter what, this will be one of the Supreme Court's most significant decisions this term, with potential impact for every American taxpayer. It could be your liverwurst that gets the veto.


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