Congressional Record, Volume 143 Issue 157 (Sunday, November 9, 1997)

[Congressional Record Volume 143, Number 157 (Sunday, November 9, 1997)]
[Senate]
[Pages S12422-S12423]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

SENATE LEGAL COUNSEL REPRESENTATION

Mr. SESSIONS. I ask unanimous consent the Senate proceed en bloc to
the immediate consideration of three Senate resolutions, S. Res. 152,
S. Res. 153, and S. Res. 154, which were submitted earlier today by
Senators Lott and Daschle. I further ask consent that the resolutions
be agreed to, the preambles be agreed to, and statements relating to
these resolutions be printed in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
The resolutions (S. Res. 152, S. Res. 153, and S. Res. 154), en bloc,
were agreed to.
The preambles were agreed to.
The resolutions, with their preambles, read as follows:

S. Res. 152

Whereas, in the cases of City of New York, et al. v.
William Clinton, et al., Civ. No. 97-2393, National Treasury
Employees Union, et al., v. United States, et al., Civ. No.
97-2399, and Snake River Potato Growers, Inc., et al., v.
Robert Rubin, Civ. No. 97-2463, all pending in the United
States District Court for the District of Columbia, the
constitutionality of the Line Item Veto Act, Pub. L. No. 104-
130, 110 Stat. 1200 (1996), has been placed in issue;
Whereas, pursuant to sections 703(c), 706(a), and 713(a) of
the Ethics in Government Act of 1978, 2 U.S.C. 288b(c),
288e(a), and 2881(a), the Senate may direct its counsel to
appear as amicus curiae in the name of the Senate in any
legal action in which the powers and responsibilities of
Congress under the Constitution are placed in issue: Now,
therefore, be it
Resolved, That the Senate Legal Counsel is directed to
appear as amicus curiae on behalf of the Senate in the cases
of City of New York, et al., v. William Clinton, et al.;
National Treasury Employees Union, et al., v. United States,
et al.; and Snake River Potato Growers, Inc., et al., v.
Robert Rubin, to defend the constitutionality of the Line
Item Veto Act.
Sec. 2. That while the Senate is adjourned the Senate Legal
Counsel is authorized to appear as amicus curiae on behalf of
the Senate in other cases in which the constitutionality of
the Line Item Veto Act is placed in issue: Provided, That the
Joint Leadership Group authorizes the Senate Legal Counsel to
appear as amicus curiae on behalf of the Senate in such other
cases.

Mr. LOTT. Mr. President, last year, after years of legislative
consideration and debate, Congress enacted into law

[[Page S12423]]

the Line Item Veto Act. For the next several years, this act gives the
President authority, within carefully circumscribed limits, to cancel
particular items of appropriation, direct spending, or limited tax
benefits. The President must send Congress a special message reporting
his cancellations within five days after he approves the bill
containing the spending or tax provisions, and Congress may then
consider, under expedited procedures, whether to pass a new law
disapproving the President's cancellation.
Congress delegated this responsibility to the President as a means of
furthering our goal of balancing the federal budget. Congress's
enactment of the Line Item Veto Act followed vigorous debate in the
Senate, in which some opponents raised doubts about the law's
constitutionality. All Members recognized that these constitutional
questions likely ultimately would be resolved only in the Supreme
Court.
Last January, the day after the law took effect, in the case of Byrd
v. Raines, six of our colleagues filed suit challenging the
constitutionality of the Line Item Veto Act. On January 22, 1997, the
Senate directed the Senate Legal Counsel to appear on behalf of the
Senate as amicus curiae in Byrd v. Raines to defend the
constitutionality of the Line Item Veto Act. In June the Supreme Court
dismissed the case on the basis that the plaintiffs lacked legal
standing to bring their suit. The Court did not address the
constitutional question.
In August, the President began using the Line Item Veto Act's
cancellation authority for the first time. As a result of the
President's cancellations, three new actions have recently been filed
in the United States District Court for the District of Columbia again
challenging the constitutionality of the Act. The plaintiffs assert
that the Act violates the lawmaking provisions of Article I of the
Constitution by authorizing the President to nullify the effect of
portions of recently enacted laws. These challenges call into question
the full range of cancellation authority provided by Congress in the
Act, as the three cases address direct spending, discretionary
appropriations, and limited tax benefits, respectively.
Mr. President, as with the Senate's appearance amicus curiae in Byrd
v. Raines, appearance in these cases as an amicus curiae would again
enable the Senate to present to the courts its reasons for enacting the
Lien Item Veto Act and the basis for the Senate's conviction that the
law is consistent with the Constitution. Accordingly, this resolution
would authorize the Senate Legal Counsel to appear in these cases in
the name of the Senate as amicus curiae to support the
constitutionality of the Line Item Veto Act.
The Senate would not take a position on questions about the legal
standing of any of these plaintiffs, as it did not in the prior
litigation. However, as in the earlier litigation, the Senate Legal
Counsel will be expected to describe to the courts, in the course of
supporting the constitutionality of the Line Item Veto Act, the
statutory limits embodied in the Act that constrain the President's use
of this authority to the particular circumstances and conditions
carefully prescribed by the Act.
Finally, this resolution also would authorize the Senate Legal
Counsel to appear in the name of the Senate as amicus curiae to support
the constitutionality of the Line Item Veto Act in any other cases
challenging the constitutionality of the Act that may occur during the
adjournment of the Senate, if authorized to do so by the Joint
Leadership Group. This is the procedure the Senate has used in the past
to protect its legal interests during adjournments.

S. Res. 153

Whereas, in the case of Sherry Yvonne Moore v. Capitol
Guide Board, Case No. 1:97CV00823, pending in the United
States District Court for the District of Columbia, a
subpoena has been issued for the production of documents of
the Sergeant-at-Arms and Doorkeeper of the Senate;
Whereas, pursuant to sections 703(a) and 704(a)(2) of the
Ethics in Government Act of 1978, 2 U.S.C. 288b(a) and
288c(a)(2), the Senate may direct its counsel to represent
Members, officers, and employees of the Senate with respect
to any subpoena, order, or request for testimony or document
production relating to their official responsibilities;
Whereas, by the privileges of the Senate of the United
States and Rule XI of the Standing Rules of the Senate, no
evidence under the control or in the possession of the Senate
may, by the judicial or administrative process, be taken from
such control or possession but by permission of the Senate;
Whereas, when it appears that evidence under the control or
in the possession of the Senate may promote the
administration of justice, the Senate will take such action
as will promote the ends of justice consistently with the
privileges of the Senate: Now, therefore, be it
Resolved, That the Sergeant-at-Arms and Doorkeeper of the
Senate is authorized to produce documents relevant to the
case of Sherry Yvonne Moore v. Capitol Guide Board, except
where a privilege should be asserted.
Sec. 2. That the Senate Legal Counsel is authorized to
represent the Sergeant-at-Arms and Doorkeeper of the Senate
in connection with the production of documents in this case.

Mr. LOTT. Mr. President, the case of Sherry Yvonne Moore v. Capitol
Guide Board, pending in the United States District Court for the
District of Columbia under the Congressional Accountability Act,
involves claims of employment discrimination by the plaintiff, former
employee of the Sergeant at Arms who worked for the Capitol Guide
Service.
The plaintiff in this case has issued a subpoena for documents to the
Senate Sergeant at Arms. The enclosed resolution would authorize the
Sergeant at Arms to produce such documents, except where a privilege or
objection should be asserted. It wou8ld also authorize the Senate Legal
Counsel to represent the Sergeant at Arms in connection with the
production of such documents.

S. Res. 154

Whereas, in the case of Magee, et al. v. Hatch, et al., No.
97-CV02203, pending in the United States District Court for
the District of Columbia, the plaintiffs have named Senator
Orrin Hatch as a defendant;
Whereas, pursuant to sections 703(a) and 704(a)(1) of the
Ethics in Government Act of 1978, 2 U.S.C. Sec. Sec. 288b(a)
and 288c(a)(1) (1994), the Senate may direct its counsel to
defend its Members in civil actions relating to their
official responsibilities: Now, therefore, be it
Resolved, That the Senate Legal Counsel is authorized to
represent Senator Hatch in the case of Magee, et al. v.
Hatch, et al.

Mr. LOTT. Mr. President, Magee, et al. v. Hatch, et al. is an action
arising out of Congress's enactment of the Anti-Terrorism and Effective
Death Penalty Act of 1996. The suit names Senator Orrin G. Hatch and
Speaker of the House Newt Gingrich as the sole defendants. This
resolution authorizes the Senate Legal Counsel to represent Senator
Hatch in this matter. If so authorized, the Senate Legal Counsel will
seek dismissal of the complaint.

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