Academic journal article Presidential Studies Quarterly

The Law: Legal Disputes in the Clinton Years

Academic journal article Presidential Studies Quarterly

The Law: Legal Disputes in the Clinton Years

Article excerpt

The first six years of the Clinton administration were packed with legal controversies, ranging from presidential immunity (the Paula Jones case) to the item veto. When the Jones case widened to include Monica Lewinsky, the investigation by Independent Counsel Kenneth Start led to repeated litigation and a narrowing of the concept of executive privilege. President Clinton's use of an executive order to carry out presidential power in the absence of congressional action was struck down in the courts. Although many of these disputes were resolved by the Supreme Court and lower courts, some were worked out between the White House and Congress, and still others await further judicial and legislative action.

Executive Orders

President Bill Clinton asked Congress to enact legislation to prohibit companies from permanently replacing striking workers. The bill passed the House in 1993 by a vote of 239 to 190, but in both 1993 and 1994, it was blocked in the Senate by a Republican-led filibuster. Republican victories in the fall 1994 elections convinced the administration that a legislative solution was no longer possible. The following year, Clinton issued an executive order to achieve administratively what he had been denied legislatively. Executive Order 12954 declared that it was the policy of the executive branch "in procuring goods and services that, to ensure the economical and efficient administration and completion of Federal Government contracts, contracting agencies shall not contract with employers that permanently replace lawfully striking employees." The order applied to all federal contracts of more than $100,000.

The Republicans responded to the order with legislation that would let companies hire permanent replacements for striking workers. The bill also prohibited the Labor Department from spending appropriated funds to enforce the order. This time, Senate Democrats staged a filibuster to block the legislation, and Clinton threatened to veto any bill that attempted to overturn his order.

Meanwhile, the Chamber of Commerce went to court to contest the legality of the order. On May 9, 1995, a district court held that the case was not ripe for review. However, the D.C. Circuit ruled that the plaintiff had met both fitness and hardship requirements for standing to challenge the executive order. On July 31, 1995, the district court concluded that the order was authorized by law but stayed enforcement pending appeal. On February 2, 1996, the D.C. Circuit reversed the district court by ruling that the National Labor Relations Act, in its provisions regarding the right of management to hire permanent replacements during labor strikes, preempted the executive order. The administration did not appeal this ruling.(1)

The Item Veto

As part of the Contract with America, Republicans supported an item veto for the president. Enacted in 1996, the Line Item Veto Act supplemented the rescission authority given to the president by the Impoundment Control Act of 1974. Instead of requiring the president to obtain the support of both houses of Congress within a specified time period, as set forth in the 1974 legislation, the Line Item Veto Act put the burden on Congress--during a 30-day review period--to disapprove presidential rescission proposals. Any bill or joint resolution of disapproval would be subject to a presidential veto, ultimately requiring a two-thirds majority in each chamber for an override. These procedures transferred important new powers to the president and altered the balance between the legislative and executive branches.

The Line Item Veto Act was not restricted to appropriations. After signing a bill or joint resolution, within five days the president could cancel in whole (1) any dollar amount of discretionary budget authority, (2) any item of new direct spending (entitlements), and (3) certain limited tax benefits. In exercising this authority, the president had to determine that a cancellation would reduce the federal budget deficit, not impair any essential government function, and not harm the national interest. …

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