Judge backs big spenders by nixing line item veto

Human Events, Mar 6, 1998 by Fein, Bruce

According to U.S. District Judge Thomas F. Hogan, the Founding Fathers chorused in praise of a nation honeycombed by federal laws and fretted over too little federal taxing and spending.

That slab of insult to historical truth was the club of Judge Hogan's constitutional bludgeoning of the Line Item Veto Act (LIVA) in City of New York v. Clinton (Feb. 12, 1998), now on appeal before the United States Supreme Court. His wooden opinion verifies Justice Oliver Wendell Holmes' clamor to educate judges in the obvious.

The Founding Fathers deplored a federal government sporting countless laws, lavish spending and onerous taxation. Thus, they withheld the power to enact a general federal income tax, which later occasioned the ratification of the 16th Amendment in 1913. They also envisioned a frugal federal budget because authority to spend for the general welfare would be sparing.

Under the Constitution, the federal government would wield but the limited legislative powers entrusted to Congress in Article I, clause 8, leaving the states generally undisturbed in their power to enact laws for the health, safety and morals of their respective communities. Moreover, to fortify the constitutional barriers to Dionysian lawmaking, the President was crowned with a qualified veto.

Alexander Hamilton amplified on its wisdom in Federalist 73: "It may be perhaps said that the power of preventing bad laws includes the power of preventing good ones; and may be used to the one purpose as well as to the other. But this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws, which form the greatest blemish in the character and genius of our governments. They will consider every institution calculated to restrain the excess of lawmaking. . . as much more likely to do good than harm."

Checks and Balances Turned on Their Heads

Despite the constitutional vision of the Founding Fathers of a lean federal legal code, the United States Supreme Court for more than SO years has uniformly sustained the delegation of congressional lawmaking power to executive agencies and the consequent swarming of rules and regulations into virtually every nook and cranny of daily life.

The omnipresent delegations are clever political ploys by Congress to circumvent the customary constitutional consensus needed to enact statutes; agreement among members is marshaled on undisputatious platitudes commending everything good and condemning everything bad, but leaving the contentious policymaking flesh and blood on statutory torsos to less politically accountable bureaucrats.

If their rules and regulations infuriate voters, the member chimes in with equal vehemence and disclaims indirect culpability like Pontius Pilate in setting the regulatory train in motion. Thus, federal statutes are dwarfed by agency regulations as a mouse to a cyclops.

Congressional delegations characteristically endow the recipient agency with multiple lathers of discretion. The Federal Communications Commission, for example, has erected a massive scheme of telephone cross-subsidies to placate rural and household subscribers at the expense of urban and business customers guided by nothing more than a gelatinous public interest, convenience and necessity standard.

Ditto for the open-ended discretion of the Environmental Protection Agency to regulate air and water quality implicating hundreds of billions in private expenditures and nettlesome handcuffs on the use and enjoyment of private property.

The Line Item Veto Act is an offsetting twin of congressional delegations. It aims to curtail federal lavishness by endowing the President with power to nullify any dollar amount of discretionary spending, any item of new direct spending, or any limited tax benefit. Members of Congress hoped the act would respond to popular sentiments for a balanced budget yet heap the blame for slashing cherished parochial spending on the President.

Congress retained the power to override any presidential nullification or to repeal the line item veto law if thought too intrusive on its legislative prerogatives. Since its effectiveness on Jan. 1, 1997, President Clinton has exercised the line item veto to cancel billions in federal spending and to facilitate the achievement of a projected budget surplus.

Judge Hogan, nevertheless, insisted that the line item constraint on prodigality affronted the separation of powers, something akin to a constitutional right of Micawberish irresponsibility.

He maintained with more opacity than lucidity: "The Line Item Veto Act impermissibly crosses the line between acceptable delegations of rulemaking authority and unauthorized surrender to the president of an inherently legislative function, namely, the authority to permanently shape laws and package legislation."

But the fundamental vice Judge Hogan identified with LIVA also blights congressional delegations of rulemaking to executive agencies: the power to exercise legislative authority without knowing whether congressional majorities in the House and Senate would approve.