Published February 1998 — Download PDF of the original newspaper column
Byrd's-Eye View By U.S. Senator Robert C. Byrd The Line-Item Veto Revisited
Fewer than two years have passed since Congress recklessly handed the President the power to erase portions of a law with a "line-item veto." Now, thanks to a recent decision by a federal judge declaring the line-item veto unconstitutional, the carefully crafted balance of powers between our executive and legislative branches that the Constitution requires has been restored, subject to future action by the U.S. Supreme Court. The recent court decision is only the latest chapter in a lengthy legal saga. That saga commenced last year when I brought suit in federal district court on behalf of myself and others, including Senators Patrick Moynihan, 0-NY, and Carl Levin, D-MI, to have the 1996 Line-Item Veto Act declared unconstitutional. Although the federal district judge, Thomas P. Jackson, agreed with my view, the Supreme Court took a different approach. Rather than deciding on the Act's constitutionality, the Court decided that my fellow plaintiffs and I lacked "standing" to bring the suit because we were not "directly injured" by the Act. This led to suits by persons who could claim injury when the President line-item vetoed projects favorable to them. Although I was not a party to these suits, I filed an "amicus" brief on behalf of myself and Senators Moynihan and Levin to direct the judge's attention to the important issues at stake. I was particularly gratified to see that the judge -Thomas Hogan -- fully agreed with my analysis. As he noted in his opinion, the line-item veto "enables the President to pick and choose among portions of an enacted law to determine which ones will remain valid." By giving the President legislative powers that the Constitution assigns solely to Congress, the line item veto disrupts the balance of powers that the Framers considered so vital between governmental branches. Under the Constitution, the President is required to faithfully execute the law. With the line-item veto, however, instead of faithfully executing a law that he has just signed, the President can turn around and unilaterally amend it. I regret that Congress paid so little heed to these considerations when it passed the Line-Item Veto Act in 1996. Since then, however, it has become clear that my concerns about the Act were well-founded. Just as I feared, the President used his item veto as a device to intimidate Congress into letting him have his way on matters in which Congress might not otherwise be disposed to agree. By giving up a portion of its control over the purse, Congress allowed the executive to ride roughshod over the legislative branch. Now, once again, the third branch -- the judiciary -- has stepped into the breach to save Congress from its folly. This time around, I hope that the U.S. Supreme Court will uphold Judge Hogan's decision and safeguard the balance of powers that the Framers intended February 18, 1998