Congressional Record, Volume 143 Issue 42 (Thursday, April 10, 1997)

[Congressional Record Volume 143, Number 42 (Thursday, April 10, 1997)]
[Senate]
[Pages S2996-S3001]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

COURT RULING REGARDING THE LINE-ITEM VETO ACT

Mr. BYRD. Mr. President, in March of last year, the Congress passed
the Line-Item Veto Act. That law, for the first time in our Nation's
history, gave the President the power to single-handedly repeal
portions of appropriations or tax laws without the consent of Congress.
I vigorously opposed passage of the act because of my deep concern over
the effects of that act on our system of checks and balances and the
separation of powers that has served this Nation so well for over 200
years.
As I have told my colleagues on many occasions, I viewed the passage
of that law as one of the darkest moments in the history of the
republic. On January 2 of this year, I, along with Senators Moynihan
and Levin, former Senator Hatfield, and Representatives Waxman and
Skaggs, filed a civil action in the U.S. District Court for the
District of Columbia challenging the constitutionality of the Line-Item
Veto Act.
Today, U.S. District Judge Thomas Penfield Jackson of the U.S.
District Court for the District of Columbia handed down a ruling
declaring the act to be unconstitutional. Among other things, Mr.
President, the court held, ``Where the President signs a bill but then
purports to cancel parts of it, he exceeds his constitutional authority
and prevents both Houses of Congress from participating in the exercise
of lawmaking authority. The President's cancellation of an item
unilaterally effects a repeal of statutory law, such that the bill he
signed is not the law that will govern the Nation. That is precisely
what the Presentment Clause was designed to prevent.''
As Judge Jackson also stated, ``Just as Congress could not delegate
to one of its chambers the power to veto select provisions of law, it
may not assign that authority to the President.'' For the reasons set
forth in his 36-page opinion, the court adjudged and declared
unconstitutional the Line-Item Veto Act.
I am very pleased with the court's decision, which I believe to be a
great victory for the American people, the Constitution, and our
constitutional system of checks and balances and separation of powers.
Mr. President, I express my deep appreciation to Mr. Moynihan, Mr.
Levin, Mr. Waxman, Mr. Skaggs, former Senator Hatfield, for their
cooperation, and to our excellent team of lawyers for their support,
for their dedication, and for their active and effective participation
in this case.
For the benefit of my colleagues, I ask unanimous consent that the
Court's full opinion be printed in the Record.
Mr. President, I understand the Government Printing Office estimates
that it will cost $1,916 to print this memorandum and order in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[United States District Court for the District of Columbia, Civil No.
97-0001 (TPJ)

Sen. Robert C. Byrd, et al., plaintiffs v. Franklin D. Raines, et al.,
defendants

memorandum and order

This action challenges the validity of legislation entitled
the Line Item Veto Act, Pub. Law No. 104-130, 110 Stat. 1200
(1996) (to be codified at 2 U.S.C. Sec. Sec. 681 note, 691 et
seq.) (``the Act''), which empowers the President
unilaterally to ``cancel'' certain appropriations and tax
benefits after signing them

[[Page S2997]]

into law. The Act represents an effort by Congress to enlist
presidential assistance in controlling rampant federal
spending by conferring upon the President what it termed a
species of ``enhanced rescission'' power, expanding the
authority he formerly possessed under the Impoundment Control
Act of 1974. Plaintiffs, four Senators and two
Congressmen,\1\ contend that the mechanism chosen by Congress
to its desired end contravenes the text and purpose of
Article I, section 7, clause 2, known as the ``Presentment
Clause'' of the Constitution. Rather than making expenditures
of federal funds appropriated by Congress matters of
presidential discretion, the Act effectively permits the
President to repeal duly enacted provisions of federal law.
This he cannot do. Accordingly, the Court will grant
plaintiffs' motion for summary judgment, deny defendants'
motion, and declare the Act unconstitutional.
---------------------------------------------------------------------------
Footnotes at end.
---------------------------------------------------------------------------

Operation of the Line Item Veto Act

Following years of importuning by successive Presidents and
vacillation by earlier Congresses, President Clinton approved
the Line Item Veto Act as passed by the 104th Congress on
April 9, 1996. Immediately after it became effective on
January 1, 1997, the plaintiff Senators and Congressmen filed
this action to declare it void. Named defendants are the
Director of the Office of Management and Budget and the
Secretary of the Treasury--the officials alleged,
respectively, to be responsible for executing the President's
``cancellations'' of spending items and limited tax benefits
under the Act. The United States Senate and the Bipartisan
Legal Advisory Group of the United States House of
Representatives have appeared jointly as amici curiae to
defend the constitutionality of the Act.
The Act, which sunsets on January 1, 2005, allows the
President, after signing a bill into law, to ``cancel in
whole''--
(1) any dollar amount of discretionary budget authority;
(2) any item of new direct spending; or
(3) any limited tax benefit.

2 U.S.C. Sec. 691(a). ``Dollar amounts of discretionary
budget authority'' include any dollar amount set forth in an
appropriation law, including those to be found separately in
tables, charts, or explanatory text of statements or
committee reports accompanying legislation. 2 U.S.C.
Sec. 691e(7). Thus the President's cancellation power applies
to legislative history as well as to statutory text itself.
``Items of new direct spending'' generally include
``entitlement'' payments to individuals or to state and local
governments. 2 U.S.C. Sec. 691e(8); H.R. Conf. Rep. No. 491,
104th Cong., 2d Sess. at 36 (1996). ``Limited tax benefits''
are those revenue-losing provisions that apply to 100 or
fewer beneficiaries in any fiscal year, or tax provisions
that provide temporary or permanent transitional relief for
10 or fewer beneficiaries from a change in the Internal
Revenue Code. 2 U.S.C. Sec. 691e(9). The Act directs the
congressional Joint Committee on Taxation to identify limited
tax benefits contained in bills and joint resolutions, and
provides that those bills and resolutions may include a
separate section in which identified tax benefits are not
subject to cancellation. 2 U.S.C. Sec. 691f(a)-(c).
The most critical definition is found in Sec. 691e(4). The
term ``cancel'' or ``cancellation'' means ``to rescind'' any
dollar amount of discretionary budget authority or to prevent
items of new direct spending or limited tax benefits ``from
having legal force or effect.'' Id.
To exercise the cancellation power the President must first
determine that it will--
(i) reduce the Federal budget deficit;
(ii) not impair any essential Government functions; and
(iii) not harm the national interest. 2 U.S.C.
Sec. 691(a)(A). The President effects a cancellation by
transmitting a ``special message'' to Congress within five
calendar days (excluding Sundays) after enactment of the
law containing the item(s) in question. 2 U.S.C.
Sec. 691(a)(B). The Act spells out the content
requirements for a special message and provides that it
shall be printed in the Federal Register. 2 U.S.C.
Sec. 691a.
Once an item has been canceled, no further action by
Congress is required; cancellation takes effect upon
Congress' receipt of the special message. 2 U.S.C.
Sec. 691b(a). Congress may thereafter introduce a
``disapproval bill'' to reenact any canceled items within
five days of receiving the special message, and must pass it
within 30 days.\2\ 2 U.S.C. Sec. 691d(b), (c)(1). The
President can, of course, exercise a conventional veto of any
disapproval bill, but Congress can then reinstate the status
quo ante by overriding that veto.

Historical background

The Act is best understood against the historical backdrop
of the efforts of the President and Congress over the years
to control government spending and, in more recent times, to
reduce an ever-increasing federal budget deficit. It is a
product of many years of inter-branch conflict and compromise
over how to accomplish those goals. Since the outset of the
19th Century, American Presidents have labored to influence
Congress' spending habits, and many have lobbied in
particular for the authority to veto selected provisions of
bills presented for their signature. See 12 Op. Off. Legal
Counsel 128, 157-65 (1988). Congress has considered both
amending the Constitution and enacting several alternative
legislative measures to give the President the increased
authority he has sought and Congress has intermittently
resisted.
Although Presidents have uniformly acknowledged that the
Constitution affords no inherent authority for a line-item
veto \3\--indeed, as explained below, it clearly forbids
anything but rejection of a bill in toto--they have managed
to exert their will by ``impounding''--or simply not
spending--appropriated funds. In some instances, Presidents
have refused to spend money on measures that conflicted with
their foreign policy objectives, or that would advance an
unconstitutional purpose. Most of the time, however,
Presidents simply preferred not to spend the money for the
purposes for which Congress had allocated it. See e.g., David
A. Martin, Protecting the Fisc; Executive Impoundment and
Congressional Power, 82 Yale L.J. 1636, 1644-45 (1973). Some
impoundments have been challenged successfully in federal
court; others have either been judicially sanctioned or not
contested at all. See City of New Haven v. United States, 634
F. Supp. 1449, 1454 (D.D.C. 1986), aff'd 809 F.2d 900 (D.C.
Cir. 1987).
Although presidential impoundments throughout the 19th
century occurred in a state of uncertainty as to their
legality, Congress has in this century conferred a measure of
legitimacy upon them and given some direction as to their
use. In the Anti-Deficiency Acts of 1905 and 1906, requiring
``apportionment'' aimed at saving money for the end of a
fiscal year, Congress also allowed the President to waive
spending appropriations in the event of emergencies or
unusual circumstances. Act of March 3, 1905, ch. 1484,
Sec. 4, 33 Stat. 1257; Act of Feb. 27, 1906, ch. 510,
Sec. 3, 34 Stat. 48. When Congress amended the Anti-
Deficiency Act in 1950, it created a mechanism for the
Executive Branch to recommend the rescission of any
reserves not required to carry out the purposes underlying
an appropriation. General Appropriation Act of 1951, ch.
896, Sec. 1211(c)(2), 64 Stat. 595 (current version at 31
U.S.C. Sec. 1512(c)(1)).
Congress has not, however, always been sanguine about
Presidents' refusal to spend appropriated funds. During the
Nixon administration, for example, the President's extensive
resort to impoundment prompted many lawsuits. See City of New
Haven, 634 F. Supp. at 1454 (``by 1974, impoundments had been
vitiated in more than 50 cases and upheld in only four'').
President Nixon's reluctance to spend appropriated funds also
provoked passage of the Impoundment Control Act of 1974 (the
``ICA''), Pub. L. No. 93-344, 88 Stat. 332, a statute
critical to an understanding of the present Act.
The ICA recognized two types of impoundment: ``deferral''
and ``rescission.'' Deferral affects the timing of
expenditures, and is accomplished by ``withholding or
delaying the obligation or expenditure of budget authority
(whether by establishing reserves or otherwise) provided for
projects or activities,'' or any other type of Executive
action or inaction accomplishing the same result. 2 U.S.C.
Sec. 682(1). Deferral is permitted for contingencies, to
effect savings achieved through changes or efficiency, or as
specifically provided by law. 2 U.S.C. Sec. 684(b). Under the
ICA, the President effects a deferral, just as he cancels an
item under the Line Item Veto Act, by transmitting to
Congress a special message containing statutorily required
information. 2 U.S.C. Sec. 684(a). Also like cancellations
under the Act, deferrals become effective upon Congress'
receipt of the special message; unlike cancellations,
however, they expire with the end of the fiscal year.\4\ Id.
A rescission, under the ICA, is the cancellation of budget
authority. 2 U.S.C. Sec. 682(3). In contrast to a
cancellation under the Line Item Veto Act, the ICA requires
the President to propose a rescission by transmitting a
special message to Congress, which Congress may enact or not,
as it chooses, within 45 days. 2 U.S.C. Sec. 683(b). The
perceived deficiency of the rescission process under the ICA
that inspired passage of the Line Item Veto Act was the
necessity of congressional acquiescence. Whenever Congress
neglected or declined to pass a bill enacting into law a
proposed rescission--a most frequent occurrence--the
rescission expired.
The cancellation procedure embodied in the Line Item Veto
Act thus came to be known as ``enhanced rescission,'' the
enhancement consisting of elimination of the need for
congressional action. Two principal alternatives to the Act
considered and rejected by the 104th Congress were
``expedited rescission'' and ``separate enrollment.'' The
first, exemplified by S. 14 in the 104th Congress, would have
preserved the recommendation process but guaranteed that
Congress actually and promptly vote on the President's
rescission proposals. S. Rep. No. 9, 104th Cong., 1st Sess.,
at 15 (1995). The second would have treated each item of
spending as a separate ``bill'' for the President to sign or
veto. Separate handling of hundreds of items appeared to
present insuperable practical obstacles, however, and
potential constitutional difficulties as well. See 141 Cong.
Rec. S. 4217, S. 4224-35, S. 4244 (daily ed. Mar. 21, 1995).
Both Houses of Congress also considered and rejected
proposed constitutional amendments to impart line item
veto authority. S.J. Res. 2, 14, 15, and 16, and H.J. Res.
4, 6, and 17, 104th Cong. (1995).

[[Page S2998]]

Before addressing the merits of the case, the Court is
obliged to confront defendants' objections as to its
justiciability. In a motion to dismiss the complaint
defendants contend that plaintiffs lack standing to press
their claim. They also assert that the case is not ripe for
judicial resolution, and that the ``equitable discretion''
doctrine requires dismissal. None of these assertions is
correct under the law of this Circuit.

Standing \5\

Defendants argue that plaintiffs fail to present a live
case or controversay, first, because separation-of-powers
considerations counsel against judicial intrusions into
disputes between officials of the political branches and,
second, because at this point no presidential cancellation
has yet been attempted or threatened, and there has, thus,
been no discernible injury.
The parties agree on the standard to be applied: plaintiffs
must allege, as ``an irreducible minimum,'' (1) an injury
personal to them, (2) that has actually been inflicted by
defendants or is certainly impending, and (3) that is
redressable by judicial decree. Valley Forge Christian
College v. Americans United for Separation of Church and
State, 454 U.S. 464, 472 (1982). See also Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992).
Defendants acknowledge that, pursuant to this well-settled
standard, this Circuit has repeatedly recognized Members'
standing to challenge measures that affect their
constitutionally prescribed lawmaking powers. See, e.g.,
Michel v. Anderson, 14 F.3d 623, 625 (D.C. Cir. 1994)
(Members had standing to challenge House Rule permitting
delegates to vote in Committee of the Whole based on its
alleged vote-diluting effect); Moore v. U.S. House of
Representatives, 733 F.2d 946, 950-53 (D.C. Cir. 1984)
(standing to assert violation of constitutional requirement
that revenue-raising bills originate in the House), cert.
denied, 469 U.S. 1106 (1985); Vander Jagt v. O'Neill, 699
F.2d 1166, 1168-71 (D.C. Cir.) (standing to challenge
leadership's committee-seating assignments), cert. denied,
464 U.S. 823 (1983). In each case the D.C. Circuit found no
separation-of-powers impediments to adjudication of the
merits because, as in the present case, Members' alleged
injuries arose from interference with the exercise of
identifiable constitutional powers. See Moore, 733 F.2d at
951. Although the Supreme Court has never endorsed the
Circuit's analysis of standing in such cases, for this
Court's purposes these precedents are controlling.
Plaintiff's claim of injury in this case, namely, that the
Act dilutes their Article I voting power, is likewise of the
kind that suffices to confer standing under Article III.
Previously, when a Member voted for an appropriations bill
containing multiple items, he or she could be certain that
any variation of the package once passed would require
another vote by both chambers of Congress. Under the Act,
however, as plaintiffs describe it, the Member's same vote
operates only to present the President with a ``menu'' of
items from which he can select those worthy of his
approval, not a legislative fait accompli that he must
accept or reject in whole, as in the past. As one Senator
characterizes it, his vote for an ``A-B-C'' bill might
lead to the post hoc creation of an ``A-B'' law, an ``A-
C'' law, or a ``B-C'' law, depending on the President's
use of his newly conferred cancellation authority, for
which neither he nor his colleagues would have voted so
reconfigured. Thus, plaintiffs' votes mean something
different from what they meant before, for good or ill,
and plaintiffs who perceive it as the latter are thus
``injured'' in a constitutional sense whenever an
appropriations bill comes up for a vote, whatever the
President ultimately does with it.
Circuit precedent has recognized only interference with the
``constitutionally mandated process of enacting law'' as
sufficient to confer standing upon Members to maintain legal
action for redress. Moore, 733 F.2d at 951. According to
plaintiffs, their right to formulate an appropriations bill
that meets with the approval of a majority of both Houses
alone, ignoring presidential preferences, is mandated by the
Presentment Clause itself. Under the Act the dynamic of
lawmaking is fundamentally altered. Compromises and trade-
offs by individual lawmakers must take into account the
President's item-by-item cancellation power looming over the
end product. The Court concludes that plaintiffs have
standing because they allege that the Act ``interferes with
their `constitutional duties to enact laws regarding federal
spending' and infringes upon their lawmaking powers under
Article I, Section 7.'' Synar v. United States, 626 F. Supp.
1374, 1382 (D.D.C. 1986), aff'd sub nom. Browsher v. Synar,
478 U.S. 714 (1986).

Ripeness

Defendants' primary justiciability contention is that
plaintiffs must wait until the President cancels an item to
bring this lawsuit. Their facial challenge to the Act would
elicit an advisory opinion, defendants argue, because whether
the President will exercise his authority at all (and whether
various other consequences will follow) is entirely
speculative. Indeed, courts may not exercise jurisdiction
consistent with Article III where a dispute is so unformed as
to fail the ``case or controversy'' requirement. See Duke
Power Co. v. Carolina Environmental Study Group, Inc., 438
U.S. 59, 81 (1978); Regional Rail Reorganization Act Cases,
419 U.S. 102, 138 (1974). And in constitutional cases, courts
must be particularly careful not to render decisions that are
unnecessary. See United States v. National Treasury Employees
Union, 115 S. Ct. 1003, 1019 (1995). The injury that gives
shape to a dispute need not have occurred, however, so long
as it is ``certainly impending.'' Whitmore v. Arkansas, 495
U.S. 149, 158 (1990).
In focusing solely on the President's actual exercise of
his cancellation power, defendants overlook plaintiffs'
allegation of ongoing harm that befalls them irrespective of
whether the President ever cancels an item.\7\ The Supreme
Court considered an analogous claim ripe in Metropolitan
Wash. Airports Auth. v. Citizens for the Abatement of Airport
Noise, Inc., 501 U.S. 252 (1991), where a Board of Review
composed of Members of Congress possessed an as-yet
unexercised power to veto decisions of MWAA's Board of
Directors. ``The threat of the veto hangs over the Board of
Directors like the sword over Damocles, creating a `here-and-
now subservience' to the Board of Review sufficient to
raise constitutional questions,'' the Court held. Id. at
265 n.13. See also Bowsher v. Synar, 478 U.S. 714, 727 n.5
(1986). Because plaintiffs now find themselves in a
position of unanticipated and unwelcome subservience to
the President before and after they vote on appropriations
bills, Article III is satisfied, and this Court may accede
to Congress' directive to address the constitutional cloud
over the Act as swiftly as possible. \8\
Plaintiffs' declarations make clear that the budgetary
process is already underway. The President presented his
budget proposal in early February, and Members will consider
and vote on appropriations between now and October 1, 1997,
when the new fiscal year begins. Moreover, Congress is likely
to vote on supplemental appropriations for this fiscal year
in the next few months. To be sure, appropriations votes are
inevitable, and ``certainly impending,'' Whitmore, 495 U.S.
at 158.
Defendants' argument that the case is not ripe because
further factual development is required is also unpersuasive.
The issues in this case are legal, and thus will not be
clarified by further factual development. In what context and
when the President cancels an appropriation item is
immaterial. The Court will be no better equipped to weigh the
constitutionality of the President's cancellation of an item
of spending or a limited tax benefit after the fact; the
central issue is plain to see right now. \9\
Finally, defendants assert that plaintiffs' claim is not
ripe because the Act might be repealed, or suspended with
respect to particular appropriations; a disapproval bill
might subsequently vindicate a Member's vote as he intended
it; or, if not, Congress could override a presidential veto
of a disapproval bill. There are two answers to this
argument. First, it ignores the ``sword of Damocles'' effect
that pervades the process irrespective of whether the
President ever cancels an item. Second, just because Congress
as a whole can suspend or repeal the Act, or pass a
disapproval bill, does not mean that an individual Member's
injury is illusory. A Member cannot procure any such relief
on his own. Indeed, the possibility of relief from Congress
as a whole is just the sort of speculative prospect that the
Court would reject if it were instead offered in support of
standing. Just as the NTEU plaintiffs did not have standing
simply because the Act made certain injuries possible, 101 F.
3d at 1429-30, the present plaintiffs' standing is not
undermined by virtue of the fact that the Act makes certain
remedies conceivable.

Equitable discretion

Defendants urge the Court to exercise its equitable
discretion to dismiss the complaint because of separation-of-
powers concerns, which apply not only in cases involving
internal rules of Congress, see Skaggs v. Carle, 898 F. Supp.
1, 2 (D.D.C.), appeal docketed, No. 95-5323 (D.C. Cir. Sept.
25, 1995), but also in cases involving challenges to the
validity of the legislation itself, see Riegle v. Federal
Open Market Comm., 656 F.2d 873, 881 (D.C. Cir.), cert.
denied, 454 U.S. 1082 (1981).
In this case, however, the Court's equitable power to
abstain from taking jurisdiction has been foreclosed by
Congress' own determination to invite a lawsuit. See 2 U.S.C.
Sec. 692(a)(1). There is therefore neither reason nor
occasion to exercise discretion by avoiding the case. See
Synar, 626 F. Supp. at 1382 (``Section 274 specifically
provides for [declaratory] relief to [Members of
Congress], thus eliminating whatever equitable discretion
might exist and leaving only the limitations of Article
III.'').

iii

The Court now turns to the issue presented, namely, whether
the Act's conferral of cancellation power upon the President
violates the Presentment Clause. The Act enjoys a presumption
of validity, and the Court may not undertake to evaluate its
wisdom. See INS v. Chadha, 462 U.S. 919, 944 (1983). Even if
the Act were to appear salutary--or even exigent, given the
intractable (and interminable) budget controversy--that fact
cannot affect the Court's inquiry. Id. Though a court does
not lightly resolve to invalidate a law of the United States,
it must nevertheless vindicate the Constitution and the
governmental framework it envisions. ``The Framers recognized
that, in the long term, structural protections against abuse
of power were critical to preserving liberty.'' Bowsher v.
Synar, 478 U.S. 714, 730 (1986). Accordingly, the Supreme
Court has ``not hesitated to invalidate provisions of law
which violate [the separation of powers],'' Metropolitan
Wash., Airports Auth. v. Citizens for the Abatement of
Airport Noise, Inc., 501 U.S. 252, 273 (1991), and this Court
can do no less.

[[Page S2999]]

This case is indisputably one of first impression. The
issue it poses will undoubtedly be finally resolved by the
Supreme Court, but at present such Supreme Court precedent as
can be found only intimates what the result will be. It is by
that jurisprudence, however, that this Court must be guided,
and the lesson of those cases appears to be that not even the
most beguiling of upgrades to the machinery of national
government will be countenanced unless it comports with the
constitutional design.
Shorn of its political and policy-laden implications, this
case turns on the narrow and subtle question of whether the
President's power under the Act is simply a present-day
enlargement of his historically sanctioned impoundment power
as it has existed from time to time, as defendants urge, or
rather a radical transfer of the legislative power to repeal
statutory law, as plaintiffs believe. As explained below, the
Court agrees with plaintiffs that, even if Congress may
sometimes delegate authority to impound funds, it may not
confer the power permanently to rescind an appropriation or
tax benefit that has become the law of the United States.
That power is possessed by Congress alone, and, according to
the Framers' careful design, may not be delegated at all.

The Presentment Clause

The Presentment Clause requires that any bill making or
changing federal law must be first passed by both Houses of
Congress and then presented to the President in toto, in
which form he acts upon it, either to make it (or allow it to
become) a law, or to return it to Congress for
reconsideration.\10\ U.S. Const. art. I, Sec. 7, cl. 2.
Plaintiffs focus on the language of ``approval;'' the
President's primary duty under the Presentment Clause, they
say, is one of approval or disapproval. If he approves of the
bill, in toto, his signature is but a ministerial formality.
If he does not approve of it, in toto, his duty obliges him
to return it with his ``objections'' to the House in which it
originated, or at least to leave it be. If he signs it while
disapproving of it--or parts of it--as the act purports to
authorize him to do, then he does so, according to
plaintiffs, in violation of the Presentment Clause.
For defendants, the operative words are, ``he shall sign
it.'' It is the bright-line act of signing alone that
converts a bill into law. Approval is a highly subjective,
and a temporal, concept. A President may ``approve'' of a
bill for many reasons, not all of which import enthusiasm for
its legislative consequences. A President may sign a bill of
which he actually disapproves (as undoubtedly many Presidents
have done) for political, diplomatic, or other purposes
unrelated to his judgment of its merit.
The Court agrees with defendants that the act of signing a
bill is the critical requirement of the Presentment Clause.
The President's judgment of approval coincides with his
decision to sign a bill; it has no independent operative
significance. Whether a bill is or is not a law of the United
States cannot depend on the President's state of mind when he
affixes his signature. He may object to various
appropriations and limited tax benefits--that is, he may
disapprove of them--but nevertheless sign a bill and thereby
remain in full compliance with the Presentment Clause.
Likewise, no subsequent action by the President is capable of
retroactively undermining the approval he registered with his
signature. By that time the Article I approval process has
run its course, and the bill indisputably has become a law of
the United States. See United States v. Will, 449 U.S. 200,
224-25 & n.29 (1980); La Abra Silver Mining Co. v. United
States, 175 U.S. 423, 454 (1899); Burgess v. Salmon, 97 U.S.
381, 384-85 (1878).
Yet, although the court agrees that statutes subject to
cancellation will have been ``approved'' in accordance with
the Presentment Clause, the Act is vulnerable to the
additional charge that, following approval, a cancellation by
the President is a legislative repeal that itself must comply
with Presentment Clause procedures. The Court must resolve
this issue in light of the Supreme Court's admonishment that
``[t]he legislative steps outlined in Art. I are not empty
formalities; they were designed to assure that both Houses of
Congress and the President participate in the exercise of
lawmaking authority.'' Chadha, 462 U.S. at 958 n. 22. It is
insufficient, therefore, for defendants to argue that,
notwithstanding the resemblance between a cancellation and a
statutory repeal, the Act should stand because the same
result could be accomplished through clearly constitutional
means. Rather, ``the purposes underlying the Presentment
Clauses . . . must guide resolution of the question whether a
given procedure is constitutional.'' Id. at 946.
Fundamentally, the Presentment Clause enforces
``bicameralism'' and circumscribes the President's ability to
act unilaterally. See Field v. Clark, 143 U.S. 649, 692-93
(1892). It embodies ``the Framers' decision that the
legislative power of the Federal Government be exercised in
accord with a single, finely wrought and exhaustively
considered, procedure.'' Chadha, 462 U.S. at 951. The
President's contribution to the process is his approval of
(or objection to) legislation as Congress presents it to him.
His is merely a qualified check on the will of the
legislature. See 1 The Records of the Federal Convention of
1787 at 97-105 (Max Farrand ed., 1987). The President must
consider the whole of the bill presented, which, in today's
world of omnibus appropriations and myriad riders, is an
undeniably difficult task. Nevertheless, upon considering a
bill, he must reach a final judgment: either ``approve it,''
or ``not.'' U.S. Const. art I, Sec. 7, cl. 2. Once he has by
his signature transformed the whole bill into a law of the
United States, the President's sole duty is to ``take Care
that the Laws be faithfully executed.'' U.S. Const. art. II,
Sec. 3. See also Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 587 (1952) (``[T]he President's power to see that
the laws are faithfully executed refutes the idea that he is
to be a lawmaker.'').
Where the President signs a bill but then purports to
cancel parts of it, he exceeds his constitutional authority
and prevents both Houses of Congress from participating in
the exercise of lawmaking authority. The President's
cancellation of an item unilaterally effects a repeal of
statutory law such that the bill he signed is not the law
that will govern the Nation. That is precisely what the
Presentment Clause was designed to prevent.

Delegation of spending authority vs. exercise of lawmaking power

Defendants dismiss the notion that the Act represents an
abdication of Congress' Article lawmaking I power, arguing
that it merely ratifies traditional impoundment authority of
the President in a novel form. Defendants and amici both
allude to a long history of presidential impoundments, many
of which have been tested by courts, and as to which the
issue has been confined primarily to whether Congress
intended to delegate discretion to the President not to spend
money it had appropriated; that is, whether its
appropriations were permissive or mandatory. See, e.g., Train
v. City of New York, 420 U.S. 35, 41 (1975); City of New
Haven v. United States, 634 F. Supp. 1449, 1454 n.6 (D.D.C.
1986) (citing cases), aff'd 809 F.2d 900 (D.C. Cir. 1987).
The effect of the ICA was to make all appropriations
presumptively mandatory. The Line Item Veto Act merely
reverses that presumption, at least for a period of five
days. During that limited period, the President has the
option to ``cancel'' any appropriation--he may not change it
in any manner--after which it remains in the law as he signed
it, to be faithfully executed with the remainder.\11\ If he
cancels it with an appropriate message to Congress, it is
extinguished, as if it had never been part of the bill,
unless Congress revives it with a new bill, passed like any
other by both Houses of Congress and presented anew to the
President. In the meantime no money can be spent for it, just
as would have been the case had it been ``deferred'' or
``rescinded'' in accordance with the ICA. The Line Item Veto
Act is, therefore, according to defendants, merely an advance
delegation by Congress to the President of a brief period of
discretion to spend or not, as his judgment dictates, subject
to the broad injunctions that his decision not to spend
operate to reduce the deficit, and will not impair any
essential Government functions or harm the national interest.
It is, they say, ``evolutionary, not revolutionary,'' Def.
Motion for Summary Judgment at 3, in the perpetual contest of
will between Congress and the President in matters of the
federal budget.
It has long been held that Congress may--indeed, of
necessity, must--delegate vast authority to the Executive
Branch of government to make and to change rules for the
governance of national affairs, so long as they are in
furtherance of the will of Congress. When courts have
inquired into whether Congress has abdicated its legislative
function in cases of allegedly overbroad delegations, their
sole concern is whether Congress itself articulated
``intelligible principles'' by which delegated authority is
to be exercised. See Mistretta v. United States, 488 U.S.
361, 372; J.W. Hampton, Jr. & Co. v. United States, 276 U.S.
394, 406, 409 (1928). Since 1935, the Supreme Court has
``upheld, without exception, delegations under standards
phrased in sweeping terms.'' Loving v. United States, 116 S.
Ct. 1737, 1750 (1996). Defendants are therefore correct that,
if the Act's conferral of cancellation power, at least with
respect to appropriations, can be equated with a delegation
of impoundment authority, their burden under the delegation
standard is not ``a tough one.'' National Fed'n Of Fed.
Employees v. United States, 905 F.2d 400, 404 (D.C. Cir.
1990).\12\
But defendants are mistaken in asserting that Article I
concerns disappear once the President has signed a bill into
law, and, consequently, that the delegation doctrine is the
only hurdle for them to surmount. Their analysis assumes that
Congress conferred a delegable power. It did not; it ceded
basic legislative authority. The Constitution vests ``all
legislative Powers'' of the United States in Congress, U.S.
Const. art I, Sec. 1, including the power of repeal. Chadha,
462 U.S. at 954. As Chadha made clear, there are formal
aspects of the legislative process that Congress may not
alter. Just as Congress could not delegate to one of its
chambers the power to veto select provisions of law, it may
not assign that authority to the President. Before the
question of a delegation's excessiveness ever arises, then, a
court must be convinced that Congress did not attempt to
alienate one of its basic functions.
In no case where the Supreme Court decided that a
delegation of broad authority was saved by Congress'
articulation of intelligible principles was the Court faced
with an equivalent of the cancellation power given to the
President by the Line Item Veto Act. Cancellation under the
Act is simply not the same thing as impoundment, or any other
suspension of a statutory provision. Instead,

[[Page S3000]]

cancellation is equivalent to repeal \13\--and ``repeal of
statutes, no less than enactment, must conform with Art. I.''
Chadha, 462 U.S. at 954. Cancellation forever renders a
provision of federal law without legal force or effect, so
the President who canceled an item and his successors must
turn to Congress to reauthorize the foregone spending.
Whereas delegated authority to impound is exercised from time
to time, in light of changed circumstances or shifting
executive (or legislative) priorities, cancellation occurs
immediately and irreversibly in the wake of the
operationalizing ``approval'' of the bill containing the very
same measures being rescinded.
Thus the cancellation power conferred by the Act is indeed
revolutionary, as plaintiffs assert. Never before has
Congress attempted to give away the power to shape the
content of a statute of the United States, as the Act
purports to do. As expansive as its delegations of power may
have been in the past, none has gone so far as to transfer
the function of repealing a provision of statutory law. The
power to ``make'' the laws of the nation is the exclusive,
non-delegable power of Congress which the Line Item Veto Act
purports to alienate in part for eight years. That it can be
recaptured if Congress repeals the Act, or suspends it
(either in general, or in particular circumstances) does not
alter the fact that, until Congress does so by a separate
bill which the President signs (or as to which his veto is
overridden), the President has become a co-maker of the
Nation's laws. The duty of the President with respect to such
laws is to ``take care that [they] be faithfully executed.''
U.S. Const. art II, Sec. 3. Canceling, i.e., repealing, parts
of a law cannot be considered its faithful execution.\14\
Moreover, if cancellation power could constitutionally be
delegated as to appropriations and limited tax benefits,
defendants have yet to show a tenable constitutional
distinction between appropriation and tax laws, on the one
hand, and all other laws, on the other. In fact, defendants
deny any obligation to suggest such a distinction at all. At
oral argument they insisted that there is virtually no limit
to the express Article I powers Congress may delegate if it
chooses, so long as it articulates ``intelligible
principles'' by which its delegate is to be guided. If that
is so--if Congress can delegate to the President the power to
reconfigure an appropriations or tax benefit bill--why can he
not also cancel provisions of an environmental protection or
civil rights law he disfavors, and upon exactly the same
``principles'' as are to guide his exercise of cancellation
authority under the Line Item Veto Act?
As authority for the proposition that it is
constitutionally permissible for Congress to delegate to the
President the power to render a law of the United States
inoperable, defendants cite the case of Field v. Clark, 143
U.S. 649 (1892). Aside from the fact that the presidential
action approved by the Supreme Court in Field v. Clark was
merely the ``suspension'' of duly enacted tariffs, not their
cancellation, the case is also distinguishable on the ground
that the Supreme Court recognized the practice of
``legislating in contingency;'' that is, where Congress
itself determines in advance when conditions yet to occur
should cause the law to cease to be operate. The President is
merely the instrument of its will. Id. at 683-92. See also
United States v. Rock Royal Co-op, Inc., 307 U.S. 553, 577-78
(1939); Currin v. Wallace, 306 U.S. 1, 15-16 (1939); The Brig
Aurora, 11 U.S. (7 Cranch) 382, 388 (1813).\15\ The Line Item
Veto Act, in contrast, hands off to the President authority
over fundamental legislative choices. Indeed, that is its
reason for being. It spares Congress the burden of making
those vexing choices of which programs to preserve and which
to cut. Thus, by placing on itself the ``onus'' of overriding
the President's cancellations, see H.R. Conf. Rep. No. 491,
104th Cong., 2d Sess. at 16 (1996), Congress has turned the
constitional division of responsibilities for legislating on
its head.
The Court therefore agrees with plaintiffs. In those
Supreme Court cases which this Court finds most instructive
for its purposes, most notably Chadha, the Supreme Court has
repeatedly counseled that when the Constitution speaks to the
matter, the Constitution alone controls the way in which
governmental powers shall be exercised.\16\ The formalities
of the constitutional framework must be respected; the
several estates subject to it must function within the
spheres the Constitution allots to them.

In passing the Act, Congress and the President addressed
the significant problem of runaway spending, striving to
create a more efficient process. But ``the Framers ranked
other values higher than efficiency.'' Chadha, 462 U.S. at
959. As the Court elaborated: ``With all the obvious flaws
of delay, untidiness, and potential for abuse, we have not
yet found a better way to preserve freedom than by making
the exercise of power subject to the carefully crafted
restraints spelled out in the Constitution.'' Id. Various
legislative alternatives remain available to give the
President a more significant role in restraining
government spending. For example, the ``expedited
rescission'' model favored by many Members of the 104th
Congress would retain the President's role as a
recommender of rescissions, see U.S. Const. art. II,
Sec. 3, and force Congress to vote on such proposals. And,
of course, Congress remains free to attempt passage of a
constitutional amendment if it determines that the
President should have unilateral revisionary power.
For the foregoing reasons, it is, this 10th day of April,
1997,
ORDERED, that defendants' motion to dismiss the complaint
and motion for summary judgment are denied; and it is
FURTHER ORDERED, that plaintiffs' motion for summary
judgment is granted; and it is
FURTHER ORDERED, that the Line Item Veto Act, Pub. Law No.
104-130, 110 Stat. 1200 (1996), is adjudged and declared
unconstitutional.
Thomas Penfield Jackson,
U.S. District Judge.

footnotes

\1\ Senators Robert C. Byrd, Daniel Patrick Moynihan, Carl
Levin, and Mark O. Hatfield, and Representatives David E.
Skaggs and Henry A. Waxman. All but Senator Hatfield are
currently sitting Members of the 105th Congress.
\2\ The President has no authority to cancel items contained
in an enacted disapproval bill; he must take it or leave it
as presented to him.
\3\ See, e.g., 33 Writings of George Washington 96 (1940)
(``From the nature of the Constitution, I must approve all
the parts of a Bill, or reject it in toto.''); William Howard
Taft, The Presidency: Its Duties, Its Powers, Its
Opportunities and Its Limitations 11 (1916) (``[The
President] has no power to veto parts of the bill and allow
the rest to become a law. He must accept it or reject it . .
.''); 12 Op. Off. Legal Counsel 128, 157-65 (1988) (reviewing
other Presidents' views and experience).
Although some commentators have argued that the Constitution
does provide inherent authority for a line item veto, see
Stephen Glazier, Reagan Already Has Line-Item Veto, Wall St.
J., Dec. 4, 1987, at A14, col. 4; L. Gordon Crovitz, The
Line-Item Veto: The Best Response When Congress Passes One
Spending ``Bill'' A Year, 18 Pepp. L. Rev. 43 (1990), most
scholars have concluded that the text of Article I, Sec. 7,
unequivocally precludes such authority. See, e.g., Bruce Fein
& William Bradford Reynolds, Wishful Thinking on a Line-Item
Veto, Legal Times, Nov. 13, 1989, at 30; Lawrence Tribe and
Philip Kurland, Letter to Sen. Edward Kennedy, 135 Cong. Rec.
S. 14,387 (daily ed. Oct. 31, 1989); 12 Op. Off. Legal
Counsel 128 (1988); 9 Op. Off. Legal Counsel 28 (1985).
Moreover, at least two courts have stated in dicta that the
President possesses no inherent item veto. See Lear Siegler,
Inc. v. Lehman, 842 F.2d 1102, 1124 (9th Cir.), reh'g en banc
ordered, 863 F.2d 693 (9th Cir. 1988), withdrawn on other
grounds, 893 F.2d 205 (9th Cir. 1989) (en banc); Thirteenth
Guam Legislature v. Bordallo, 430 F. Supp. 405, 410 (D. Guam
App. Div. 1977), aff'd, 588 F.2d 265 (9th Cir. 1978).
\4\ Originally, deferrals were automatically effective but
subject to a one-House legislative veto. 88 Stat. at 335. In
light of INS v. Chadha, 462 U.S. 919 (1983), the legislative
veto component of the ICA was invalidated, City of New Haven
v. Pierce, 809 F.2d 900 (D.C. Cir. 1987), and Congress
subsequently amended the ICA to eliminate the offending
procedure.
\5\ Only Article III standing, as opposed to prudential
limitations, is at issue in light of Congress' creation of an
express right of action in Sec. 692(a)(1) of the Act.
\6\ Defendants rely on two concurring opinions by D.C.
Circuit Judges in arguing that plaintiffs' injury is not
sufficiently personal to create a justiciable controversy.
See Moore, 733 F.2d at 957-61 (Scalia, J., concurring);
Vander Jagt, 699 F.2d at 1179-82 (Bork, J., concurring). Yet,
as the three-judge court, of which then-Judge Scalia was a
member, recognized in Synar v. United States, 626 F. Supp.
1374, 1382 (D.D.C. 1986), aff'd sub nom. Bowsher v. Synar,
478 U.S. 714 (1986), this Circuit's cases unequivocally
establish that Members have ``a personal interest . . . in
the exercise of their governmental powers.'' 626 F. Supp. at
1381 & n. 7.
\7\ Even if an actual cancellation by the President were
required to cause injury, Article III arguably would not
require plaintiffs to wait for that event to invoke the
Court's jurisdiction. See Abbott Labs v. Gardner, 387 U.S.
136, 140 (1967); Buckley v. Valeo, 424 U.S. 1, 117 (1976)
(challenge was ripe in anticipation of ``impending future
ruling and determinations'').
The President has expressed his intention to invoke his new
powers under the Act this year. See 141 Cong. Rec. S. 8202-03
(daily ed. June 13, 1995) (containing letter from President
to Speaker of the House).
\8\ As in the case of standing, plaintiffs need only satisfy
the Article III component of ripeness because Congress
unmistakably declared the case fit for judicial review in
Sec. 692(c) of the Act. Accordingly, this Circuit's
conclusion in National Treasury Employees Union v. United
States, 101 F.3d 1423, 1431 (D.C. Cir. 1996) (``NTEU''), that
prudential (as well as constitutional) considerations made
the union's challenge to the Act not ripe in inapposite.
\9\ Moreover, fitness for review is a prudential component of
the ripeness doctrine, an inquiry Congress obviated by
calling for expedited judicial action. See Thomas v. Union
Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985); NTEU,
101 F. 3d at 1431. But even if the Court were to take into
account prudential ripeness factors, they actually militate
in plaintiffs' favor, because resolving the issue now will
avert the cloud that would hang over any canceled item that
Congress fails to disapprove.
\10\ In the Framers' words: ``Every Bill which shall have
passed the House of Representatives and the Senate shall,
before it become a Law, be presented to the President of the
United States; If he approve it he shall sign it, but if not
he shall return it, with his Objections to that House in
which it shall have originated, who shall enter the
Objections at large on their Journal, and proceed to
reconsider it. If after such Reconsideration two thirds of
that House shall agree to pass the Bill, it shall be sent,
together with the Objections, to the other House, by which it
shall likewise be reconsidered, and if approved by two thirds
of that House, it shall become a Law. But in all Cases the
Votes of both Houses shall be determined by yeas and Nays,
and the Names of the Persons voting for and against the Bill
shall be entered on the Journal of each House respectively.
If any Bill shall not be returned by the President within ten
Days (Sundays excepted) after it shall have been presented to
him, the Same shall be a Law, in like Manner as if he had
signed it, unless the Congress by their Adjournment prevent
its return, in which Case it shall not become a Law.''--U.S.
Const. art. I, Sec. 7, cl. 2.
At the behest of James Madison, the Framers included the
following clause to ensure that Congress could not evade the
presentment requirement simply by passing legislation in
forms other than bills: ``Every Order, Resolution, or Vote to
Which the Concurrence of the Senate and House of
Representatives may be necessary (except on a question of
Adjournment) shall be presented to the President of the
United States; and before the Same shall take Effect, shall
be approved by him, or being disapproved by him, shall be
repassed by two thirds of the Senate

[[Page S3001]]

and House of Representatives according to the Rules and
Limitations prescribed in the Case of a Bill.''--U.S. Const.
art I, Sec. 7, cl. 3.
\11\ Defendants cite no analog, as a species of impoundment
or anything else, however, to the power to ``cancel'' limited
tax benefits found in the Act.
\12\ See, e.g., Skinner v. Mid-America Pipeline Co., 490 U.S.
212, 219 (1989) (upholding delegation of authority to
establish and collect pipeline safety fees); Lichter v.
United States, 334 U.S. 742, 778 (1948) (upholding grant of
power of recover excessive wartime profits), and Yakus v.
United States, 321 U.S. 414, 424 (1944) (upholding broad
delegation of price-fixing authority).
\13\ As noted supra, p.4, Sec. 691e(4) of the Act defines the
verb ``cancel'' as meaning ``to rescind.'' Webster's Third
New International Dictionary 1924 (G.&C. Merriam Co. 1981)
defines the verb ``repeal'' as meaning ``1: to rescind or
revoke (as a sentence or law) from operation or effect.''
\14\ Defendants suggest that, in canceling future
appropriations, the President will, in fact, be faithfully
executing the Line Item Veto Act to reduce the deficit. But
the Act contains no mandate to the President to reduce the
deficit. It merely conditions cancellations for whatever
reason upon, inter alia, their having a deficit-reducing
effect.
\15\ As the Supreme Court further explained in J.W. Hampton,
Jr. & Co. v. United States, 276 U.S. 394, 407 (1928), 30
years later: ``Congress may feel itself unable conveniently
to determine exactly when its exercise of the legislative
power should become effective, because dependent on future
conditions, and it may leave the determination of such time
to the decision of an executive, or, as often happens in
matters of state legislation, it may be left to a popular
vote of the residents of a district to be affected by the
legislation. While in a sense one may say that such residents
are exercising legislative power, it is not an exact
statement, because the power has already been exercised
legislatively by the body vested with that power under the
Constitution, the condition of its legislation going into
effect being made dependent by the legislature on the
expression of the voters of a certain district.''
\16\ See also Metropolitan Washington Airports Auth. v.
Citizens for the Abatement of Aircraft Noise, 501 U.S. 252
(1991); Bowsher v. Synar, 478 U.S. 714 (1986); cf. U.S. Term
Limits v. Thornton, 115 S. Ct. 1842 (1995).
Mr. BYRD. Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from New York is recognized.
Mr. MOYNIHAN. Mr. President, I rise to state that this is a fine
moment in the history of the Senate. It has come about through the
leadership of Senator Robert C. Byrd and his devotion to the
Constitution of the United States. The court today ruled in the most
explicit terms. It said, ``* * * the Act effectively permits the
President to repeal duly enacted provisions of Federal law. This he
cannot do.''
Then with a grace note that I hope the Senate will appreciate, and I
know our distinguished occupant of the chair will, with Senator Byrd's
great attachment to the history of democratic government and theory and
its glorious origins in Greece, the court referred to the sword-of-
Damocles effect: Not that the President would exercise this power, but
that he might do it. There is a sword still suspended in this Chamber,
but soon, I cannot doubt, to be taken down as a consequence of the
judgment of the Supreme Court. I might add, sir, that there are some in
Congress who are concerned that the courts interfere too much with our
procedures. This is a court defending the Constitution and the U.S.
Congress in its responsibilities.
Finally, sir, may I state a moment of gratitude to the attorneys, our
learned counselors, who, on a pro bono basis, argued this case so
effectively. I ask unanimous consent that their names be printed in the
Record at this time.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Councel for Plaintiffs

Charles J. Cooper, Michael A. Carvin, David Thompson,
Cooper & Carvin, 2000 K Street, N.W., Suite 401, Washington,
DC 20006, (202) 822-8950.
Michael Davidson, 3753 McKinley Street, N.W., Washington,
DC 20015 (202) 362-4885.
Lloyd N. Cutler, Louis R. Cohen, Lawrence A. Kasten,
Wilmer, Cutler & Pickering, 2445 M Street, N.W., Washington,
DC 20037 (202) 663-6000.
Alan B. Morrison, Colette G. Matzzie, Public Citizen
Litigation Group, 1600 20th Street, N.W., Washington, DC
20009 (202) 588-1000.

The PRESIDING OFFICER. Under the previous order, the Senator from
Michigan is recognized for 3 minutes.
Mr. LOTT. Mr. President, I want to announce officially that there
will be no further votes today.
Mr. LEVIN. Mr. President, I thank my friend from West Virginia. The
Senator from West Virginia is the plaintiff in a historic lawsuit. This
lawsuit has now taken the first step. Senator Moynihan and I, Senator
Hatfield, and a number of House Members are co-plaintiffs, and proudly
so, with Senator Byrd. We are kind of the ``et al.'' Robert Byrd, et
al. It is a position that we are proud to be in.
This lawsuit, we should be clear, tests a particular version of the
line-item veto that is in that bill. What the court held, and what our
lawyers argued, and what we feel passionately is that once the
President of the United States affixes his signature to a bill, that is
the law of the land. Four magic words: ``Law of the land.'' When that
becomes the law of the land, it cannot be repealed unilaterally by the
President or by us. It must be repealed according to the Constitution.
That is the fundamental, bedrock, black letter constitutional law,
which the court affirmed today. It is pleasing to us that the court did
so.
I want to thank our colleagues for making it possible for us to have
an expedited process in the courts. Whichever side of this dispute we
were on, we agreed that we ought to resolve it promptly. The bill
provided that there be an early resolution in court. I think all of our
colleagues are to be thanked for making that possible.
The sword of Damocles is there, as the Senator from New York
mentioned. It still hangs here until there is a final resolution, if
there is going to be an appeal to the Supreme Court. We hope now that
the Constitution will prevail. We think it is clear that the courts are
the right people to give the final interpretation of that Constitution.
Justice Marshall's vision and holding prevails today, in that a court
has now ruled on the constitutionality of a law. Presumably, that will
go to the Supreme Court. We hope for a prompt resolution.
We are very gratified that what we believe is so fundamental in this
country has now been reaffirmed by the district court that took the
first look at this law. That principle, again, is that once that moment
comes when a Presidential pen is affixed to a bill, that bill binds all
of us, every one of us, be it the President or any other citizen of
this land, and that bill cannot be changed. The law cannot be changed
by the unilateral act of either the President or the Congress, but must
be repealed as laws are adopted, with the involvement of both the
President and the Congress, as required by the Constitution.
Again, my thanks to Senator Byrd for the leadership he has shown in
protecting the Constitution of the United States. I know Senator
Moynihan expressed this, and Senator Hatfield, if he were here, would
say the same, that we are very, very gratified to be on the same side
of a very critical lawsuit with our good friend from West Virginia.
Mr. BYRD. If the Senator will yield, I wish to thank my dear friends,
Senator Moynihan and Senator Levin, for their gracious remarks this
afternoon. I also wish to thank the majority leader for his cooperation
in this matter. I went to him about having a piece of legislation
passed that would help to expedite this action. Although he did not
agree with me in the matter itself, he was very cooperative in allowing
that action by the Senate to take place. I thank him for that.
Mr. President, I join Mr. Moynihan, also, in thanking counsel for
their excellent services in this important matter.

____________________