Line-Item Veto Has Constitutional Flaw

Article excerpt

I rise," said the senator 10 months ago, as his colleagues prepared to pass a bill, "in the serene confidence that this measure is constitutionally doomed." Soon we shall see if Pat Moynihan's serenity was justified.

On Jan. 2, five days before the 105th Congress convened, a suit was filed seeking to undo one of the acts of which the 104th was most proud. The suit, by Moynihan and four other Democratic legislators, and one Republican (Sen. Mark Hatfield, whose term just expired), seeks to have the line-item veto declared unconstitutional. It deserves to succeed.

The statute was crafted with a care that betokened awareness that it is constitutionally problematic. The problem is, the suit charges, that a constitutional amendment, not a statute, is required to alter the distribution of powers between the legislative and executive branches. Forty-three governors have, and presidents since George Washington have coveted, the power to avoid an all-or-nothing choice when presented with legislation. The power to veto portions of bills has been given by Congress to the executives of all the trust territories, Puerto Rico and the District of Columbia. Not until last year did Congress hand this formidable power to presidents. This deed by a Republican Congress represents a curious turn for conservatism, which, recognizing the evolution of the presidency into the engine of grandiose government, has generally cleaved to the doctrine of congressional supremacy. The line-item veto will not only worsen the aggra ndizement of presidential power, it will not serve its ostensible purpose of controlling spending. Indeed, it may produce a net increase in spending. True, some early presidents exercised a line-item veto, de facto, as when Jefferson refused to spend $50,000 Congress appropriated for gunboats in anticipation of a crisis with Spain that did not materialize. And as Forrest McDonald writes, Washington and his treasury secretary, Alexander Hamilton, considered appropriations "permissive, not mandatory." Besides, a line-item veto was not urgent before legislation became elephantine. The only appropriations bill passed by the First Congress in 1789 could be typed double-spaced on a single sheet of paper. …