A Question of Spending And Presidential Control

High court hears challenge today to a law that gives the president new power to veto items in Congress's budget.

When it became the law of the land in 1997, the line-item veto gave the White House broad new powers of the purse, letting the president cut federal spending as he sees fit to balance the budget. Or at least it did so in theory.

So far, the line-item veto appears not to be the revolutionary force in Washington politics some had thought it would be. Even so, when the veto is argued before the Supreme Court today, the justices will almost certainly consider whether this new presidential authority could yet change - perhaps dramatically - the balance of power between the executive and legislative branches.

The decision about the constitutionality of the line-item veto is expected to be one of the major rulings of the court this term. But if the justices were to base their decision on the veto's first year in operation, there's not much to consider.

For one, President Clinton has used this new authority sparingly. Moreover, Congress has simply overridden his veto on many of the line items - totaling a few hundred million dollars - that Mr. Clinton sliced out. Nor is the line-item veto a political factor now that there's a budget surplus. According to the law, the president may wield the line-item ax only in times of budget deficit.

"The line item has proved to be neither a wonderful thing nor the breakdown of our constitutional system," observed one Senate staffer.

Veto opponents cry that it is a betrayal of the Constitution. They say it eliminates the give and take in the relationship between Congress and the president, and allows the president unilateral power to thwart decisions of the people's body.

"By handing the President the power to eliminate the law rather than the power to effect the law, the Line Item Veto Act is a more aggressive attack on the structure of the Constitution than any previous [case]," wrote Marci Hamilton of the Cardozo School of Law in New York in a brief. Other legal scholars agree that not since 1789 has there been such a giveaway of power between the branches.

Overrides can be easy

But battles and negotiations over spending bills are hardly affected by the line-item veto, say Hill staffers. Last month, for example, Congress restored 38 budget items that Clinton had vetoed. Overriding a line-item veto requires a two-thirds majority, but members of Congress were able to muster it in several cases.

The line-item veto went into effect on Jan. 1, 1997. It was challenged immediately by several members of Congress led by Sen. Robert Byrd (D) of West Virginia. Last spring, federal Judge Thomas Penfield Jackson said the act was a "revolutionary" violation of the separate-powers doctrine governing the administration and the legislature.

But the US Supreme Court decided 6-to-3 that the members of Congress did not have standing to bring suit. None of them could claim any direct injury or harm, the court ruled, since the president had not yet used the new veto power.

Big Apple and small potatoes

This year, however, New York City and a group of potato growers in the West are arguing that the line-item veto has directly harmed their financial interests.

A federal district judge ruled that the act is unconstitutional because it allows the president to wield what is essentially a legislative authority.

The White House has steadily argued that the veto is a natural evolution of an interplay between the branches that dates to 1789. "The act is simply the latest exercise of Congress's long-standing and well-settled power to vest the Executive Branch with discretion over the expenditure of ... funds," the president's lawyers argued in legal briefs.

On the high court, Justice John Paul Stevens indicated last year he also felt the line-item veto violates the Constitution. On the other side, Chief Justice William Rehnquist is said to support the line item, dating to efforts by President Reagan to cut the federal budget.

Since last June's high-court ruling, many in Congress who had supported the line item in 1995 now oppose to it. After discovering that Clinton was preparing to cut several military-construction projects, for example, lawmakers responsible for military spending argued that the president's ideas were unconstitutional, since it was Congress's job to ensure the proper outfitting of an army and a navy.

The federal budget for 1998 is about $1.7 trillion. Clinton, using the line-item veto, has earmarked savings of roughly $355 million - a tiny percentage.

Several proposals to amend the veto are floating in Congress, presumably waiting for a Supreme Court ruling. One bipartisan effort would allow the president to cut the budget by line item even in times of surplus. Another would give more time (currently it is five days) for the administration's Office of Management and Budget to examine spending bills, which are often complex and loaded with hidden pork.