[Congressional Record Volume 144, Number 11 (Thursday, February 12, 1998)]
[Senate]
[Pages S692-S699]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               LINE ITEM VETO ACT FOUND UNCONSTITUTIONAL

  Mr. BYRD. Mr. President, as many of my colleagues may already be 
aware, in a decision announced today by Judge Thomas F. Hogan of the 
United States District Court for the District of Columbia, the Line 
Item Veto Act has been found to be unconstitutional, an 
unconstitutional delegation of the Congress' power over the purse. 
While I congratulate each of the plaintiffs and their attorneys, this 
victory does not belong to them alone. This is a victory for the 
American people. It is their Constitution, it is their Republic, and 
their liberties that have been made more secure.
  Judge Hogan's opinion parallels a previous decision by Judge Thomas 
Penfield Jackson, also for the U.S. District Court for the District of 
Columbia, in Byrd v. Raines, as well as the opinions expressed by 
Supreme Court Justice John Paul Stevens in that same earlier case. 
While I fully expect this decision today to be appealed and I, 
therefore, recognize this as a first step, I nevertheless regard it as 
an important step.
  For the benefit of my colleagues, I would like to take just a few 
moments to read pertinent excerpts from Judge Hogan's decision. I read 
now, beginning with that section titled ``Procedural Requirements of 
Article I.''
  I continue to read from Judge Hogan's opinion:

       The Constitution carefully prescribes certain formal 
     procedures that must be observed in the enactment of laws. 
     The Line Item Veto Act impermissibly attempts to alter these 
     constitutional requirements through mere legislative action. 
     Because the act violates Article I's ``single, finely wrought 
     and exhaustively considered, procedure,'' . . . it is 
     unconstitutional.

                           *   *   *   *   *

       Both Houses of Congress, through a process of discussion 
     and compromise, had agreed upon the exact content of the 
     Balanced Budget Act and the Taxpayer Relief Act. These laws 
     reflected the best judgment of both Houses. The laws that 
     resulted after the President's line item veto were different 
     from those consented to by both Houses of Congress. There is 
     no way of knowing whether these laws, in their truncated 
     form, would have received the requisite support from both the 
     House and the Senate. Because the laws that emerged after the 
     Line Item Veto are not the same laws that proceeded through 
     the legislative process, as required, the resulting laws are 
     not valid.
       Furthermore, the President violated the requirements of 
     Article I when he unilaterally canceled provisions of duly 
     enacted statutes. Unilateral action by any single participant 
     in the law-making process is precisely what the Bicameralism 
     and Presentment Clauses were designed to prevent. Once a bill 
     becomes law, it can only be repealed or amended through 
     another, independent legislative enactment, which itself must 
     conform with the requirements of Article I. Any rescissions 
     must be agreed upon by a majority of both Houses of Congress. 
     The President cannot single-handedly revise the work of the 
     other two participants in the lawmaking process, as he did 
     here when he vetoed certain provisions of these statutes.

                           *   *   *   *   *

       Whatever defendants wish to call the President's action, it 
     has every mark of a veto.

                           *   *   *   *   *

       Finally, Congress' ``indirect attempt[] to accomplish what 
     the Constitution prohibits . . . accomplishing directly'' 
     cannot stand. . . . ``To argue otherwise is to suggest that 
     the Framers spent significant time and energy in debating and 
     crafting Clauses that could be easily evaded.'' Congress knew 
     that a single Line Item Veto, performed prior to the 
     President's signature, would violate Article I's requirement 
     that the president sign or return the bills in toto. This 
     limitation on the President has been clear since George 
     Washington's tenure.

  Let me quote the words of George Washington as they are quoted in 
Judge Hogan's opinion:

     (``From the nature of the Constitution, I must approve all 
     the parts of a Bill, or reject it in toto.'') Congress cannot 
     evade this long-accepted requirement by merely changing the 
     timing of the President's cancellation.
       Because the Line Item Veto Act produced laws in violation 
     of the requirement of bicameral passage, because it permitted 
     the President unilaterally to repeal or amend duly enacted 
     laws, and because it impermissibly attempts to evade the 
     requirement that the President sign or reject a bill in toto, 
     the Act violates the requirements of Article I. For that 
     reason alone, the Line Item Veto Act is unconstitutional.

  Now, under the heading ``Separation of Powers,'' in Judge Hogan's 
opinion, I find these words, and I quote from his opinion:

       Furthermore, the Line Item Veto Act is unconstitutional 
     because it impermissibly disrupts the balance of powers among 
     the three branches of government. The separation of powers 
     into three coordinate branches is central to the principles 
     on which this country was founded. . . . The declared purpose 
     of separating and dividing the powers of government was to 
     ``diffuse power the better to secure liberty.''

                           *   *   *   *   *

       Pursuant to the doctrine of separated powers, certain 
     functions are divided between the legislative and executive 
     branches. Article I, section I vests all legislative 
     authority in Congress. Legislative power is the authority to 
     make laws[,]

Says Judge Hogan.

     Executive power, on the other hand, is to ``take Care that 
     the Laws be faithfully executed.''

                           *   *   *   *   *

       With regard to lawmaking, the President's function is 
     strictly a negative one: to veto a bill in its entirety.
       While it is Congress' duty to make laws, Congress can 
     delegate certain rulemaking authority to other branches, as 
     long as that delegation is appropriate to the duties of that 
     branch. (``[T]he lawmaking function belongs to Congress . . . 
     and may not be conveyed to another branch or entity.'');

                           *   *   *   *   *

       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. The Act----

  Writes Judge Hogan,

     enables the President, in his discretion, to pick and choose 
     among portions of an enacted law to determine which ones will 
     remain valid. The Constitution, however, dictates that once a 
     bill becomes law, the President's sole duty is to ``take care 
     that the laws be faithfully executed.'' His power

  Writes Judge Hogan,

     cannot expand to that of ``co-designer'' of the law--that is 
     Congress' domain. Any subsequent amendment of a statute falls 
     under Congress' responsibility to legislate. The President 
     cannot take this duty upon himself; nor can Congress 
     relinquish that power to the Executive Branch.

  I shall not quote further excerpts from the opinion of Judge Hogan, 
but I ask unanimous consent to have printed in the Record the entire 
opinion, following the remarks of Mr. Moynihan and my remarks. I 
understand the Government Printing Office estimates it will cost $1,532 
to print this opinion in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. BYRD. Mr. President, next Monday is the official observance of 
the birthday of our first President, George Washington, who so wisely 
observed, as did Judge Hogan, ``From the nature of the Constitution, I 
must approve all the parts of a bill or reject it in toto.'' How right 
George Washington was! I can think of no greater tribute to his wisdom 
than this decision today.
  Mr. President, I yield to my distinguished colleague who joined in 
preparing the amicus and who has, all the way from the beginning of 
these debates, which have gone on for years now, stood like the Irish 
oak in opposition to giving the President of the United States--any 
President, Republican or Democrat--a line-item veto.
  I salute my friend, and I am very grateful to him for the work that 
he has done and for his constant support and leadership as we have 
stood together with Senator Carl Levin, who cannot be here today 
because he is in Europe. If Senator Moynihan had been at the 
Constitutional Convention, even though Judge Yates and Mr. Lansing left 
the Convention early, leaving only Alexander Hamilton to sign that 
great document, Senator Moynihan would have been there to attach his 
signature. And not only that, he would have joined with Hamilton and 
Madison and Jay in writing one of the greatest documents of all time, 
the Federalist Papers. I yield to my friend.
  Mr. MOYNIHAN. Mr. President, it is an honor to speak following the 
statement by our revered, sometime President pro tempore, Robert C. 
Byrd of West Virginia, a man who has brought to our Chamber a 
sensibility concerning the Constitution that, I would argue, is 
unequaled since those awful days that led to the Civil War, days in

[[Page S693]]

which his lucidity and courage could have produced a very different 
outcome.
  We have a matter before us of equal consequence. I would offer the 
personal judgment that in the history of the Constitution, there has 
never come before us an issue considering the relations between the 
executive and the legislative branches as important as this one. It is 
a course of a peculiar inexplicability that this Chamber is empty--the 
distinguished Presiding Officer from Utah, our President pro tempore 
sometime from West Virginia and myself--empty because of a particular 
politics that for a long time said this was a desirable measure and 
enacted it and now faces the court saying, ``But it's 
unconstitutional.''
  The courts, I dare to say, at the level of those asides that are well 
known in our judicial history, the court is also saying, ``Don't you 
know your Constitution? Don't you understand what is at stake for 
you?'' The courts are not themselves directly involved here, but they 
are trying to tell us, in brilliant decisions by Judge Jackson, now by 
Judge Hogan, singularly literate decisions.
  Judge Hogan begins his historical analysis, if you will, with a 
citation from Gibbon's ``Decline and Fall of the Roman Empire'':

       The principles of a free constitution are irrecoverably 
     lost when the legislative power is nominated by the 
     executive.

  That is how he saw the decline of the Roman Senate, inexorably 
followed by the decline of Roman civilization. That is what we are 
dealing with here today.
  As Senator Byrd has so forcefully stated, George Washington, whose 
birthday we observe on Monday, who presided over the Constitutional 
Convention, in his later writings put it as explicitly as only he could 
do with that clarity and simplicity he had. Washington said:

       From the nature of the Constitution, I must approve all the 
     parts of a Bill or reject it in toto.

  That could not be more plain. And we find the courts saying to us--I 
don't presume to say this is obiter dicta, but I can see the courts 
pleading: ``Senators, do you not know what is at stake?''
  As for the claims of efficiency and economy and this and that--
legitimate claims--but the court refers in this particular decision, 
Judge Hogan refers to a wonderful passage from Chadha, which was so 
true about the original understandings of the political and Government 
process of the founders. He said in the Immigration and Naturalization 
Service v. Chadha, a decision in 1983--as I recall, it is on the one-
House veto--the court said:

       The fact that a given law or procedure is efficient, 
     convenient and useful in facilitating functions of government 
     standing alone will not save it if it is contrary to 
     the Constitution. Convenience and efficiency are not the 
     primary objectives or the hallmarks of democratic 
     government.

  That was the great perception of our founders. In the Federalist 
Papers, which Senator Byrd has so generously mentioned, they ask 
openly, given the fugitive and turbulent existence of earlier 
republics, the Roman Republic, what makes you think this Republic will 
work?
  They said, fair question, but we have a new science of politics. It 
is a science that does not assume virtue in men, it assumes conflict, 
and it provides for the resolution of conflict by equal and opposing 
forces. It does not fear debate. It welcomes it, it assumes self-
interest on the part of regions, of sectors in the economy, of groups 
in the population. No fear.
  And here is a central idea which was part of our amicus brief and 
which we find, I think, echoed in Judge Hogan's remarks, which I don't 
assert but I offer the thought. When we put together on the Senate 
floor a bill--I will say a Finance Committee bill, as I am now ranking 
member, was one time chairman of Finance--we think of balancing 
interests, conflicting or often unrelated, but there are 100 Members of 
this Chamber. They represent 50 States and 550 different points of 
view. We accommodate them. We provide for this interest and for that 
interest and hope and, I think, in the main see that the public 
interest is served by the opportunities of governing.
  If you were to take one of those provisions out or two or three, it 
would be quite possible you would not have the votes to pass the bill. 
There could be a filibuster, or there simply could not be the 51 votes.
  However, with the line-item veto, the President can subsequently take 
out such provisions such that the statute books will contain a law 
which never could have passed the U.S. Congress.
   How say we, the statute books will have a law that could not have 
passed the Congress? Here it is, this is the arrangement. The courts 
are so clear on this, and I so look forward to a final decision by the 
Supreme Court.
  It is interesting, if I may say, just to give an illustration of the 
compound interests of people involved, on the one hand we have two 
plaintiffs here, the City of New York, et al. The City of New York 
being the Greater New York Hospital Association, those great hospitals 
and the union of hospital employees which work there. The city, great 
science centers, ordinary persons who clean floors and care for 
patients. They are one group.

  Across the continent, another group, the Snake River Potato Growers, 
Incorporated--about 30 farmers. They grow potatoes. They have an 
interest. It was in a bill, and it was taken out. That interest, I 
think, would have had real effect on the decision how to vote of the 
two Senators in this Chamber who represent those potato growers.
  So you have radiologists and potato growers and people who scrub 
floors and people who go beyond the limits of conceivable knowledge in 
the biological and medical sciences. All these interests are always 
represented here, and only here.
  Congress makes the laws. The President is required to see that they 
are faithfully executed. But, sir, and in closing, if nothing else will 
bring this Chamber to its wits, perhaps this will. The President's 
power under this line-item veto is likely rarely to be directly 
exercised. It will be threatened.
  A President will say to a Senator, ``You know, I would so very much 
like to be of assistance to Utah as regards irrigation and other 
matters which are so important to me, but there's a foreign policy 
matter which also is important to me. And cannot I expect, in the 
spirit of exchange and understanding, that I will have your support 
here in return for my choice not to veto a measure now enacted by 
Congress?'' It will go on over and over again. It is the formula for 
executive tyranny.
  Sir, within this day, one of the most learned, experienced men I know 
in Washington said, ``If LBJ,'' meaning Lyndon B. Johnson, ``had had 
this power, we would have had Nero.'' I mean no disrespect; I was a 
member of President Johnson's subcabinet, and served him as well as I 
could do. But you have to have experienced Lyndon Johnson close up, 
without this power, to know what the powers of persuasion of a 
President can be.
  But given this power, you produce an imbalance in your constitutional 
system which the founders pleaded with us not to do. They produced a 
system that has worked well. We are the oldest continuous 
constitutional government on Earth. If we wish to change the 
Constitution there is a way to do that, too, but not through statute. 
And that is what the court has now for the second time ruled, and I 
hope that the Supreme Court will agree.
  I would particularly like to thank Mayor Rudolph W. Giuliani of New 
York, who stepped right up to this issue when many people suggested he 
not do. And most particularly, to the counsel who have served us pro 
bono so well: Michael Davidson; Charles J. Cooper; Paul A. Crotty, 
former Corporation Counsel of the City of New York; Louis R. Cohen, 
Lloyd N. Cutler, Alan Morrison. And finally, sir, any number of 
professors of law have offered their counsel. Most particularly 
Laurence H. Tribe, of the Harvard Law School, and Michael J. Gerhardt, 
the dean of Case Western Reserve Law, have been unstinting in their 
willingness to advise us in a matter they consider just as important as 
we do.
  Mr. President, I thank the Chair for its courtesy. I thank my leader, 
my beloved and revered leader, Senator Byrd.
  I yield the floor.

[[Page S694]]

                             Exhibit No. 1

 [United States District Court for the District of Columbia, Civ. No. 
                             97-2393 (TFH)]

  City of New York, et al., plaintiff, v. William J. Clinton, et al., 
defendant
                                  ____


 [United States District Court for the District of Columbia, Civ. No. 
                             97-2463 (TFH)]

   Snake River Potato Growers, Inc., et al., plaintiff, v. Robert E. 
                       Rubin, et al.,  defendant


                           memorandum opinion

       This case requires the Court to adjudge the 
     constitutionality of the Line Item Veto Act. Before reaching 
     the constitutional challenge, however, the Court must first 
     conclude that it has jurisdiction to hear the case, by 
     determining that Plaintiffs in this action have Article III 
     standing. Based on the briefs and exhibits submitted by the 
     parties and amici curiae,\1\ and argument at a hearing 
     conducted on January 14, 1998, the Court finds that these 
     Plaintiffs have demonstrated the requisite injury to have 
     standing; furthermore, it finds that the Line Item Veto Act 
     violates the procedural requirements ordained in Article I of 
     the United States Constitution and impermissibly upsets the 
     balance of powers so carefully prescribed by its Framers. The 
     Line Item Veto Act therefore is unconstitutional.
---------------------------------------------------------------------------
     Footnotes at end of exhibit.
---------------------------------------------------------------------------

                             I. Background

     A. The Line Item Veto Act \2\
       Unable to control its voracious appetite for ``pork,'' 
     Congress passed, and the President signed into law, the Line 
     Item Veto Act. Pub. L. No. 104-130, 110 Stat. 1200 (1996).\3\ 
     The Act is designed as an amendment to, and an enhancement 
     of, Title X of the Congressional Budget and Impoundment 
     Control Act of 1974 (``ICA''). 2 U.S.C. Sec. Sec. 681 et seq. 
     The ICA authorized the President to defer spending of 
     Congressional appropriations during the course of a fiscal 
     year or other period of availability, as long as Congress 
     intended for those appropriations to be permissive rather 
     than mandatory. Id. The President also could propose the 
     total rescission of an appropriation to Congress, but unless 
     Congress approved the rescission, the President was obligated 
     to release the funds. Id. Sec. Sec. 683(b), 688. Because it 
     generally failed to make the rescissions recommended by the 
     President, Congress found this arrangement to be an 
     unsatisfactory mechanism for controlling deficit spending.\4\
       As large deficits persisted, Congress considered various 
     amendments to the ICA to alleviate its perceived defects. One 
     proposal, called ``expedited rescission,'' would amend the 
     ICA to streamline the process for Congressional approval of 
     rescissions proposed by the President. See e.g., H.R. 2164, 
     102d Cong. (1991). Other proposals included amending the 
     Constitution to give the President a line item veto, see 
     e.g., H.R.J. Res. 6, 104th Cong. (1995); H.R.J. Res. 4, 103d 
     Cong. (1993), or adopting a congressional procedure for 
     presenting each spending provision to the President as a 
     separate bill, for approval or veto. See, e.g., S. 137, 
     104th Cong. (1995); S. 238, 104th Cong. (1995). Congress 
     settled on an ``enhanced rescission'' proposal, codified 
     in the Line Item Veto Act, that makes Executive 
     rescissions automatic in defined circumstances, subject to 
     congressional disapproval. By making appropriations 
     ``conditional'' during the period in which the President 
     has authority to veto provisions, and ``by placing the 
     onus on Congress to overturn the President's cancellation 
     of spending and limited tax benefits,'' H.R. Conf. Rep. 
     No. 104-491, at 16 (1996), the Line Item Veto Act reverses 
     the appropriation presumptions under the 1CA.
       The Line Item Veto Act gives the President the authority to 
     ``cancel in whole,'' at any time within five days (excluding 
     Sundays) after signing a bill into law, (1) ``any dollar 
     amount of discretionary budget authority;'' (2) ``any item of 
     new direct spending;'' and (3) ``any limited tax benefit.'' 2 
     U.S.C. Sec. 691a (1997).
       A ``dollar amount of discretionary budget authority'' is 
     defined as ``the entire dollar amount of budget authority'' 
     that is specified in the text of an appropriations law or 
     found in the tables, charts, or explanatory text of 
     statements or committee reports accompanying a bill. Id. at 
     Sec. 691e(7). An ``item of new direct spending'' is a 
     specific provision that will result in ``an increase in 
     budget authority or outlays'' for entitlements, food stamps, 
     or other specified programs. Id. at Sec. Sec. 691e(8), 
     691e(5). A ``limited tax benefit'' is a revenue-losing 
     provision that gives tax relief to 100 or fewer beneficiaries 
     in any fiscal year, or a tax provision that ``provides 
     temporary or permanent transitional relief for ten or fewer 
     beneficiaries in any fiscal year'' \5\ Id. at Sec. 691e(9).
       With respect to any dollar amount of discretionary budget 
     authority, the Act defines ``cancel'' as ``to rescind.'' Id. 
     Sec. 691e(4)(A). Cancellation of an item of new direct 
     spending or a limited tax benefit prevents it from having 
     ``legal force or effect.'' Id. at Sec. 691e(4)(B). Canceled 
     funds may not be used for any purpose other than deficit 
     reduction. Id. at Sec. Sec. 691c(a)-(b).
       To exercise cancellation authority, the President must 
     submit a ``special message'' to Congress within five calendar 
     days of signing a bill containing the item being canceled. 
     Id. at Sec. 691a(c)(1). The President's special message must 
     set forth the reasons for the cancellation; the President's 
     estimate of the ``fiscal, economic, and budgetary effect'' of 
     the cancellation; an estimate of ``the . . . effect of the 
     cancellation upon the objects, purposes and programs for 
     which the canceled authority was provided;'' and the 
     geographic distribution of the canceled spending. Id. at 
     Sec. 691a(b). The President may exercise this authority only 
     after determining that doing so will ``(i) reduce the Federal 
     budget deficit; (ii) not impair any essential Government 
     functions; and (iii) not harm the national interest.'' Id. at 
     Sec. 691(a)(A).
       A cancellation takes effect upon Congress' receipt of the 
     President's special message. Id. at Sec. 691b(a). Congress 
     can restore a canceled item by passing a ``disapproval 
     bill,'' which is not subject to the President's Line Item 
     Veto authority, but is subject to the veto provisions 
     detailed in Article I. Id. Disapproval bills must comport 
     with the requirements prescribed in Article I, section 7, 
     although the Line Item Veto Act provides for expedited 
     consideration of these bills. Id. at Sec. Sec. 691e(6), 
     692(c). If a disapproval bill is enacted into law, the 
     President's cancellation is nullified and the canceled 
     items become effective. Id. at Sec. 691b(a).
       In terms of judicial review, the Line Item Veto Act 
     provides that ``[a]ny member of Congress or any individual 
     adversely affected . . . may bring an action in the United 
     States District Court for the District of Columbia, for 
     declaratory judgment and injunctive relief on the ground that 
     any provision of [the Act] violates the Constitution.'' Id. 
     at Sec. 692(a)(1). The Act provides for direct appeal to the 
     Supreme Court and directs both Courts ``to expedite to the 
     greatest possible extent the disposition of any matter 
     brought under [this provision.]'' Id. at 692(b)-(c).
     B. Factual Background in New York City v. Clinton
       The City of New York plaintiffs consist of the City itself, 
     two hospital associations (Greater New York Hospital 
     Association, or GNYHA, and New York City Health and Hospitals 
     Corporation, or NYCHHC), one hospital (the Jamaica Hospital 
     Medical Center), and two unions that represent health care 
     employees (District Council 37, American Federation of State, 
     County and Municipal Employees and Local 1199, National 
     Health and Human Service Employees).
       The City of New York Plaintiffs' claims arise out of a 
     dispute over Federal Medicaid payments to the State of New 
     York. The Health Care Financing Administration of the 
     Department of Health and Human Services (``HCFA'') provides 
     federal financial participation (``FFP'') to match certain 
     state Medicaid expenditures. (See Brown Decl., Defs.' Ex. 1 
     at para.3.) The FFP provided by the Federal Medicaid program 
     to match state expenditures is reduced by the revenue that 
     the state receives from health care related taxes. Id. at 
     para.4. The FFP is not reduced, however, by tax revenue that 
     meets specific criteria, including that the taxes are 
     ``broad-based'' (i.e., applied to all health care providers 
     within the same class) and ``uniform'' (i.e., applied equally 
     to all taxed providers). Id.
       New York State taxes its health care providers and uses 
     this tax revenue to pay for health care for the poor. (See 
     Wang Decl., Pls.' Ex. 2 at para.4.) The State exempts certain 
     revenues (e.g., those derived from particular charities) of 
     some health care providers (e.g., the plaintiff health care 
     providers) from the health care provider tax. (See van Leer 
     Decl., Pls.' Ex. 3 at para.3.) That is, New York exempts 
     plaintiff health care providers from taxes that other health 
     care providers must pay.
       On December 19, 1994, HCFA notified New York State that 19 
     of its tax programs violated HCFA's requirements. (See Dear 
     State Medicaid Director Letter, Pls.' Ex. 2D.) Since then, 
     New York has submitted over 60 waiver applications to HCFA, 
     which to date have neither been approved nor denied. (See 
     Wang Decl., at para.7.) A finding by HCFA that a State's 
     taxes are impermissible effects a disallowance of the State's 
     Medicaid expenditures and allows HCFA to recoup the matching 
     funds that it has already paid to the State. Id. at para.6. 
     If HCFA denies a waiver request, the State may appeal the 
     denial to the Departmental Appeals Board. (See Brown Decl. at 
     para.6.)
       If HCFA ultimately deems New York's taxes impermissible, 
     New York State law provides that those health care providers 
     that were previously excluded from the taxes must pay them 
     retroactively. (See Wang Decl. at para.8.) For example, 
     NYCHHC's tax liability is estimated to be more than $4 
     million for each year at issue. In total, $2.6 billion may be 
     subject to recoupment from New York State. Id. at 
     para.para.7-8.
       The Balanced Budget Act of 1997, Pub. L. No. 105-33, 
     included a provision, section 4722(c), that would have 
     alleviated this exposure to liability. It established that 
     New York State expenditures derived from certain health care 
     provider taxes qualified for FFP under the Medicaid program. 
     Id. at para. 9. This section signified that New York State 
     would not have to return the funds in question to HCFA; for 
     Plaintiffs, it meant that they were relieved of their 
     liability to New York State should HCFA deny New York's 
     waiver requests.
       The President signed the Balanced Budget Act into law on 
     August 5, 1997. Six days later, he identified section 4722(c) 
     as an item of new direct spending and canceled it, thus 
     reinstating Plaintiffs' exposure to liability. Cancellation 
     No. 97-3, 62 Fed. Reg. 43,263 (1997). The President adopted 
     the Congressional Budget Office's estimate that the 
     cancellation of section 4722(c) would reduce the federal 
     deficit by $200 million in FY 1998. Id.

[[Page S695]]

     C. Factual Background in Snake River Potato Growers, Inc. v. 
         Rubin
       Snake River Potato Growers, Inc. is, according to 
     Plaintiffs, an ``eligible farmers' cooperative'' within the 
     meaning of section 968 of the Taxpayer Relief Act. (See 
     Cranney Decl., Pls.' Ex. 2 at para. 9.) Its membership 
     consists of approximately 30 potato growers located 
     throughout Idaho, who each owns shares of the cooperative. 
     Plaintiff Mike Cranney, a potato grower with farms located in 
     Idaho, is a member, Director and Vice Chairman of the 
     cooperative. Id. at para. 2. Snake River was formed in May 
     1997 to assist Idaho potato growers in marketing their crops 
     and stabilizing prices, in part though a strategy of 
     acquiring potato processing facilities. Id. at para. 9. These 
     facilities allow individual growers to aggregate their crops 
     and process and deliver them to market jointly. Furthermore, 
     they allow members to retain revenues formerly paid out to 
     third-party processors. Id. at para. 13.
       On August 5, 1997, the President signed into law the 
     Taxpayer Relief Act, Pub. L. No. 105-34, 111 Stat. 788 
     (``TRA''). Section 968 of the TRA amended the Internal 
     Revenue Code to allow the owner of the stock of a qualified 
     agricultural refiner or processor to defer recognition of 
     capital gains on the sale of such stock to an eligible 
     farmers' cooperative. That is, it would have allowed a 
     processor to sell its facilities to an eligible cooperative 
     without paying tax currently on any capital gain. The stated 
     purpose of section 968 was to aid farmers' cooperatives in 
     the purchase of processing and refining facilities.\6\ (See 
     Dear Colleague Letter by Reps. Roberts and Stenholm of 12/1/
     95, Pls.' Ex. 5.) On August 11, 1997, the President 
     identified this provision as a ``limited tax benefit,'' 
     within the meaning of the Line Item Veto Act, and canceled 
     it. Cancellation No. 97-2, 62 Fed. Reg. 43,267 (1997). In his 
     cancellation message, the President estimated that sellers 
     could have used section 968 to defer paying $98 million in 
     taxes over the next five years, and $155 million over the 
     next ten. Id.
       Snake River had actively pursued at least one transaction 
     that could have taken advantage of section 968. In May 1997, 
     when Congress initially was considering the proposals in 
     section 968, Mike Cranney and another officer of Snake River 
     discussed with Howard Phillips, a principal owner of Idaho 
     Potato Packers (``IPP''), the purchase by Snake River of the 
     stock of a company that owned an IPP potato processing 
     facility in Blackfoot, Idaho. (See Cranney Decl. at para. 
     19.) Plaintiffs contend that this company would have been a 
     ``qualified processor'' under section 968 and that a deal 
     with Phillips could have been structured so as to comply with 
     all requirements of section 968. Id. at para.para. 21-
     23. Plaintiffs maintain that Phillips was interested in 
     pursuing the sale because he could defer taxes on his gain 
     if section 968 passed. Id. at para. 23. The negotiations 
     did not continue after the President canceled section 968. 
     Id. at para. 24.

                           II. Justiciability

       Before tackling the merits of this case, the Court must 
     first determine whether it has jurisdiction to hear it. Under 
     Article III, section 2 of the Constitution, the federal 
     courts have jurisdiction over a dispute only if it is a 
     ``case'' or ``controversy.'' See Raines v. Byrd, 117 S.Ct. 
     2312 (1997). The Supreme Court has regarded the case or 
     controversy prerequisite as a ``bedrock requirement'' and has 
     observed that ``[n]o principle is more fundamental to the 
     judiciary's proper role in our system of government than the 
     constitutional limitation of federal-court jurisdiction to 
     actual cases or controversies.'' Id. citing Valley Forge 
     Christian College v. Americans United for Separation of 
     Church and State, Inc., 454 U.S. 464, 471 (1982).
       The central jurisdictional requirement that controls the 
     analysis of these consolidated cases is the doctrine of 
     standing. The Supreme Court has emphasized that the standing 
     inquiry is ``especially rigorous when reaching the merits of 
     the dispute would force us to decide whether an action taken 
     by one of the other two branches of the Federal Government 
     was unconstitutional.'' Raines, 117 S.Ct. at 2317-18. It has 
     cautioned,

     ``the law of Art. III standing is built on a single basic 
     idea--the idea of separation of powers.'' In the light of 
     this overriding and time-honored concern about keeping the 
     Judiciary's power within its proper constitutional sphere, we 
     must put aside the natural urge to proceed directly to the 
     merits of this important dispute and to `settle' it for the 
     sake of convenience and efficiency.

     It is with these admonitions soundly in mind that this Court 
     proceeds with its standing analysis regarding the plaintiffs 
     now before it.
     A. Standing
       While the Supreme Court has candidly acknowledged that 
     ``the concept of `Article III Standing' has not been defined 
     with complete consistency in all of the various cases decided 
     by this Court which have discussed it.'' \7\ Valley Forge 
     Christian College, 454 U.S. at 475, certain basic principles 
     have been distilled from the Court's decisions:

     To establish an Art. III case or controversy, a litigant 
     first must clearly demonstrate that he has suffered an 
     ``injury in fact.'' That injury, we have emphasized 
     repeatedly, must be concrete in both a qualitative and 
     temporal sense. The complainant must allege an injury to 
     himself that is ``distinct and palpable,'' as opposed to 
     merely ``abstract,'' and the alleged harm must be actual or 
     imminent, not ``conjectural'' or ``hypothetical.'' Further, 
     the litigant must satisfy the ``causation'' and 
     ``redressability'' prongs of the Art. III minima by showing 
     that the injury ``fairly can be traced to the challenged 
     action'' and ``is likely to be redressed by a favorable 
     decision.'' The litigant must clearly and specifically set 
     forth facts sufficient to satisfy these Art. III standing 
     requirements. A federal court is powerless to create its own 
     jurisdiction by embellishing otherwise deficient allegations 
     of standing.

       Whitmore v. Arkansas, 495 U.S. 149 (1990) (internal 
     citations omitted). Here, the principal standing inquiry is 
     whether Plaintiffs can demonstrate sufficient injury, 
     ``actual or threatened.'' See Valley Forge Christian College, 
     454 U.S. at 472.
       Although these plaintiffs do not neatly fit into any 
     category of plaintiffs that the Supreme Court has already 
     found to have standing, this Court finds that they meet the 
     Article III requirements. The President directly injured both 
     the City of New York plaintiffs and the Snake River 
     plaintiffs when he canceled legislation that provided a 
     benefit to them.
       1. City of New York Plaintiffs\8\
       Plaintiffs suffered an immediate, concrete injury the 
     moment that the President used the Line Item Veto to cancel 
     section 4722(c) and deprived them of the benefits of that 
     law. The Court thus finds that Plaintiffs have suffered 
     sufficient injury to have Article III standing.
       When the President signed the Balanced Budget Act of 1997, 
     section 4722(c) became law. See La Abra Silver Mining Co. v. 
     United States, 175 U.S. 423, 454 (1899). Consequently, every 
     New York State tax program held not to meet HCFA's 
     requirements was deemed permissible by federal legislation. 
     The State's liability was eliminated and the hospitals upon 
     which that liability would fall were exonerated of their 
     burden. Plaintiffs possessed a valuable protection against 
     any liability that otherwise might befall them. This 
     protection constituted a benefit to Plaintiffs. When the 
     President canceled section 4722(c), Plaintiffs were divested 
     of the benefit conferred upon them by the legislation. In the 
     simplest terms, Plaintiffs had a benefit, and the President 
     took that benefit away. That is injury.
       Defendants argue that, because there are still 
     administrative options available to Plaintiffs, Plaintiffs 
     were not injured by the President's cancellation of this 
     legislative solution. The Court disagrees. Plaintiffs had two 
     independent avenues that they could have pursued to avoid 
     potential liability: one legislative and one administrative. 
     The legislative approach yielded complete success. The fact 
     that there are two mechanisms that could produce a result 
     does not mean that a party is not injured when one of those 
     mechanisms produces the desired result, and then that result 
     is obliterated. Analogously, if Plaintiffs were pursuing a 
     challenge to a final agency action, the fact that there might 
     also be pending legislation would not deprive them of 
     standing to challenge the final agency action. See INS v. 
     Chadha, 462 U.S. 919, 936-37 (1983) (Burger, C.J.) (finding 
     that the existence of other speculative avenues of relief 
     does not constitute a prudential bar to the Court's 
     consideration of a case). The Court finds that the 
     availability of administrative relief does not eliminate 
     Plaintiff's injury in the legislative arena.
       Plaintiffs also have shown with reasonable certainty that 
     they will be liable for millions of dollars now that Section 
     4722(c) has been canceled. Under the current law, it is 
     highly likely that the State of New York will be required to 
     return to HCFA at least some of the funds that HCFA paid to 
     the State. First of all, HCFA has already deemed the taxes 
     impermissible. HHS has stated that in the absence of 
     legislation (like Section 4277(c)), by August 1998, ``the 
     Secretary will move forward to complete the process already 
     begun to apply with full force the current law.'' (Dear State 
     Medicaid Directors Letter, Pls.' Ex. 2D.) Next, to exercise 
     Line Item Veto authority, the President was required to 
     certify that the veto would reduce the federal deficit; he 
     complied with that requirement by certifying that 
     cancellation of Section 4277(c) would result in a reduction 
     in federal outlays in FY 1998 of $200 million. Cancellation 
     No. 97-3, 62 Fed. Reg. 43,263 (1997). Finally, at a press 
     briefing on the cancellation, Office of Management and Budget 
     Director Franklin Raines described Section 4722(c) as ``a 
     provision that provided special relief to the State of New 
     York for provider taxes that had been determined by HCFA to 
     be illegal under a 1991 statute.'' (Pls.' Ex 2C (emphasis 
     added).) Raines added that ``New York will not be able'' to 
     use the taxes to increase its FFP. Id. Thus, this Court 
     concludes that it is more likely than not that the State of 
     New York will be required to refund at least some of the 
     payments it has received from HCFA.
       Likewise, the Court finds that Plaintiffs are highly likely 
     to be required to indemnify the State for its HCFA 
     recoupments. Defendants do not dispute that New York State 
     law imposes automatic liabilities upon hospitals and nursing 
     homes upon a finding that New York's provider taxes are not 
     permissible. (See Wang Decl., Pls.' Ex. 2 at para.8). 
     Plaintiffs would avoid liability only in the unlikely event 
     that the State of New York would rescind these laws or 
     decline to enforce them. Again, the Court finds that this 
     scenario is less likely than one in which Plaintiffs are 
     required to indemnify the State.
       Therefore, by finding that the City of New York plaintiffs 
     have demonstrated sufficient

[[Page S696]]

     injury, the Court concludes that they have standing to 
     challenge the constitutionality of the Line Item Veto Act.
       2. Snake River Plaintiffs
       Like the City of New York plaintiffs, the Snake River 
     plaintiffs suffered an immediate, concrete injury when the 
     President canceled section 968. Section 968 conferred a 
     benefit on Plaintiffs by putting them on equal footing with 
     investor-owned businesses. Before section 968 was passed, 
     investor-owned businesses could structure acquisitions of 
     processing facilities as tax-deferred stock-for-stock 
     exchanges. Farmers' cooperatives could not exchange their 
     stock because a cooperative's stock can be held only by its 
     members. Section 968 would have allowed sellers to defer 
     capital gains taxes on sales to farmers' co-ops, thus putting 
     co-cops in the same competitive position as investor-owned 
     businesses.\9\
       The Supreme Court has held that the inability to compete on 
     an equal basis in the bidding process is injury in fact. See 
     Northeastern Florida Chapter of the Associated Gen. 
     Contractors of America v. City of Jacksonville, 508 U.S. 656 
     (1993). In that case, the Court found that contractors that 
     regularly bid on, and performed, construction work for the 
     City of Jacksonville, and would have bid on designated set-
     aside contracts but for the restrictions imposed, had 
     standing, even though they failed to allege that they would 
     have been awarded a contract but for the challenged 
     ordinance. Here, regardless of whether Plaintiffs can prove 
     that they would have actually consummated purchases under 
     section 968, they are injured by the fact that section 968 
     put them on equal footing with their competitors and its 
     cancellation disabled them from competing on an equal basis. 
     When the President canceled section 968, Plaintiffs were 
     divested of the benefit conferred upon them by the 
     legislation and therefore were concretely injured.
       In addition, it is highly likely that the Snake River 
     plaintiffs would have been able to take advantage of the 
     benefits conferred by section 968 and that they therefore 
     will be injured by the President's cancellation of it. Snake 
     River Potato Growers, Inc. was formed for the purpose of 
     acquiring potato processing facilities. Although the sellers 
     of processing and refining facilities would be the direct 
     beneficiaries of the capital gains tax deferral, it is likely 
     that the fact that the processors would be able to defer 
     these taxes would benefit Plaintiffs in a concrete way.\10\ 
     For example, in a deal in which there are not other 
     prospective purchasers, even if a seller chose to completely 
     absorb the monetary benefits of the capital gains tax 
     deferral, the fact that the seller would be able to defer the 
     taxes would, at the very least, likely give Plaintiffs some 
     room to negotiate in terms of price; in a competitive 
     situation, it would allow Plaintiffs to pay a lower purchase 
     price than they would have in a scenario in which they were 
     not on equal footing with the other would-be purchasers.\11\
       While Plaintiffs cannot demonstrate with certainty that 
     they would be able to take advantage of the benefits provided 
     by section 968, such certainty is not required. In Bryant v. 
     Yellen, 447 U.S. 352 (1980), for example, farm workers 
     wishing to purchase land had standing even though they could 
     not with certainty establish that they would be able to 
     purchase it. In that case, a reclamation law forbid delivery 
     of reclamation project water to any irrigable land held in 
     private ownership by one owner in excess of 160 acres. If 
     this law were enforced, owners of land in excess of 160 acres 
     would probably sell their excess acreage and would probably 
     be forced to sell at below current market prices. The Court 
     reasoned that farm workers who desired to purchase farmlands 
     in the area had standing, because it was ``unlikely'' that 
     the owners of excess lands would sell at below-market prices 
     without the law, and it was ``likely'' that excess lands 
     would become available at less than market prices if the law 
     were applied.
       Likewise, the Snake River plaintiffs need only show that 
     the existence of section 968 would have made it more likely 
     that they could acquire processing and refining 
     facilities. As illustrated above, by putting Plaintiffs on 
     equal footing with other bidders, it is likely that 
     Plaintiffs would be able to make a purchase by offering 
     less than they would have without the benefit of section 
     968. Also, the tax deferral would, at the very least, give 
     Plaintiffs more room to negotiate in terms of price. Thus, 
     section 968 would have helped the Snake River plaintiffs 
     in their efforts to purchase processing and refining 
     facilities.
       Defendants argue that Plaintiffs cannot meet the 
     redressability requirement of the standing doctrine. They 
     cite Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26 
     (1976), and Allen v. Wright, 468 U.S. 737 (1984), to support 
     their contention that there is no way for the Court to know 
     whether any sellers would be motivated by the benefits of 
     section 968 to sell to Plaintiffs. This case is 
     distinguishable from Simon and Allen, however, because here, 
     Plaintiffs have sufficiently demonstrated that if this Court 
     struck the Line Item Veto Act and reinstated section 968, 
     they would be more likely to be able to competitively bid on, 
     and prevail in purchasing, processing and refining 
     facilities.
       In Simon, the Supreme Court determined that low-income 
     plaintiffs lacked standing to challenge a tax regulation 
     establishing the amount of free medical care that a 
     charitable hospital must provide to maintain its tax-exempt 
     status. The Supreme Court explained that it was ``purely 
     speculative'' to assume that the challenged regulation caused 
     charitable hospitals to provide less service that they would 
     otherwise provide free of charge, and it was ``equally 
     speculative'' to assume that increasing the amount of free 
     service required for tax exemption would in fact increase the 
     amount of free service provided. Simon, 426 U.S. at 42-43. 
     The Court commented that the hospitals might elect to forgo 
     favorable tax treatment to avoid the financial drain of 
     providing more free treatment.
       In Allen, the Supreme Court concluded that parents of 
     public school children lacked standing to challenge the 
     legality of a tax exemption that benefitted racially 
     discriminatory private schools. The plaintiffs claimed that 
     the tax exemption made it easier for white children to enroll 
     in private schools, the result being that the public schools 
     were less diverse, to the plaintiffs' detriment. The Supreme 
     Court indicated that it would be ``entirely speculative'' to 
     conclude that withdrawal of the tax exemption would lead any 
     private school to change it exclusionary policies. Allen, 468 
     U.S. at 758.
       In both of these cases, there was arguably some 
     disincentive to the institutions' taking advantage of the tax 
     benefit. The hospitals in Simon would have to admit more non-
     paying patients; the schools in Allen would have to admit a 
     more diverse student body, against their wishes. In these 
     cases, it may indeed have been speculative to attempt to 
     determine whether the hospitals and schools would be willing 
     to make these changes in order to take advantage of the tax 
     incentive. Here, Defendants do not allege that there is any 
     ``cost'' to the selling processors and refiners in taking 
     advantage of the tax benefits that section 968 would offer. 
     Unlike the schools and hospitals in Allen and Simon, the 
     sellers' decision likely would be a purely financial one.
       Defendants also contend that Plaintiffs' submissions 
     regarding Mike Cranney's planned purchase of the IPP 
     processing facility are barren of facts that would 
     demonstrate whether section 968 would have had any impact on 
     that transaction, because of the specific requirements of 
     section 968.\12\ While the Court will not speculate as to 
     whether Cranney's deal with Phillips would have been brought 
     to fruition but for the President's cancellation of section 
     968, or even if that particular deal would have satisfied the 
     requirements of section 968, the negotiations at the very 
     least make it clear to the Court that Plaintiffs were 
     actively spending their time and money pursuing purchases and 
     that the President's cancellation of section 968 interfered 
     with those plans. Compare, Lujan v. Defenders of Wildlife, 
     504 U.S. 555 (1991) (holding that plaintiffs lacked standing 
     to challenge an environmental regulation because, although 
     plaintiffs had a desire to return to the habitat of certain 
     endangered species, they failed to present any concrete plans 
     of an actual visit).
       The Court finds that the Snake River plaintiffs suffered an 
     injury when the President canceled Section 968. Plaintiffs 
     lost the benefit of being on equal footing with their 
     competitors and will likely have to pay more to purchase 
     processing facilities now that the sellers will not be able 
     to take advantage of section 968's tax breaks. The Court 
     therefore concludes that the Snake River plaintiffs have 
     demonstrated sufficient injury to have Article III standing.

         III. Constitutional Analysis of the Line Item Veto Act

       Having determined that it has jurisdiction to hear this 
     case, the Court now turns to the merits of Plaintiffs' 
     constitutional challenges. The Court begins with the 
     presumption that the Line Item Veto Act is valid. See e.g., 
     INS v. Chadha, 462 U.S. 919, 944 (1983). The Chadha Court 
     cautioned, however,

     The fact that a given law or procedure is efficient, 
     convenient, and useful in facilitating functions of 
     government, standing alone, will not save it if it is 
     contrary to the Constitution. Convenience and efficiency are 
     not the primary objectives--or the hallmarks--of democratic 
     government . . .

     Id.
       The Court's constitutional analysis is two-fold. First, the 
     Court examines the Line Item Veto Act in terms of the 
     procedural requirements set forth in Article I, section 7; 
     next, the Court discusses the doctrine of separation of 
     powers. The Court concludes that the Line Item Veto Act fails 
     both of these examinations.
     A. Procedural Requirements of Article I
       The Constitution carefully prescribes certain formal 
     procedures that must be observed in the enactment of laws. 
     The Line Item Veto Act impermissibly attempts to alter these 
     constitutional requirements through mere legislative 
     actions.\13\ Because the Act violates Article I's ``single, 
     finely wrought and exhaustively considered, procedure,'' 
     Chadha, 462 U.S. at 951, it is unconstitutional.
       Article I, section 7 of the Constitution sets forth dual 
     requirements for the enactment of statutes: bicameral passage 
     and presentment to the President. See U.S. Const. art. I, 
     Sec. 7, cl. 2 (``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 he shall sign it, but if not he shall return in . 
     . .'') (the Bicameralism and Presentment Clauses). The 
     considerations behind the Great Compromise, under which one 
     House was viewed as representing the People and the other, 
     the States, dictated that the

[[Page S697]]

     Bicameralism and Presentment Clauses would serve essential 
     constitutional functions. ``By providing that no law could 
     take effect without the concurrence of the prescribed 
     majority of the Members of both Houses, the Framers 
     reemphasized their belief . . . that legislation should not 
     be enacted unless it has been carefully and fully considered 
     by the Nation's elected officials.'' Chadha, 462 U.S. at 948-
     49. At the heart of the notion of bicameralism is the 
     requirement that any bill must be passed by both Houses of 
     Congress in exactly the same form.
       The Constitution requires that both the amendment and 
     repeal of statutes also conform with these Article I 
     requirements. Chadha, 462 U.S. at 954. It makes only four 
     narrow exceptions to this single mechanism by which the 
     provisions of a law may be canceled. See U.S. Const. art. I, 
     Sec. 2, cl. 6; art. 1, Sec. 3, cl. 5; art. II, Sec. 2, cl. 2; 
     art. II, Sec. 2, cl. 2. Congress may not add to this 
     exclusive list without amending the Constitution. In the 
     words of the Chadha court,

     The bicameral requirement, the Presentment Clauses, the 
     President's veto, and Congress' power to override a veto were 
     intended to erect enduring checks on each Branch and to 
     protect the people from the improvident exercise of power by 
     mandating certain prescribed steps. To preserve those checks, 
     and maintain the separation of powers, the carefully defined 
     limits on the power of each Branch must not be eroded. To 
     accomplish what has been attempted [here] requires action in 
     conformity with the express procedures of the Constitution's 
     prescription for legislative action: passage by a majority of 
     both Houses and presentment to the President.

     Chadha, 462 U.S. at 957-58.
       Here, while the initial passage of the Balanced Budget Act 
     and the Taxpayer Relief Act complied with the Article I 
     requirements, the Line Item Veto Act then authorized the 
     President to violate those requirements by producing laws 
     that had not adhered to those requirements. Both Houses of 
     Congress, through a process of discussion and compromise, had 
     agreed upon the exact content of the Balanced Budget Act and 
     the Taxpayer Relief Act. These laws reflected the best 
     judgment of both Houses. The laws that resulted after the 
     President's line item veto were different from those 
     consented to by both Houses of Congress. There is no way of 
     knowing whether these laws, in their truncated form, would 
     have received the requisite support from both the House 
     and the Senate. Because the laws that emerged after the 
     Line Item Veto are not the same laws that proceeded 
     through the legislative process, as required, the 
     resulting laws are not valid.
       Furthermore, the President violated the requirements of 
     Article I when he unilaterally canceled provisions of duly 
     enacted statutes. Unilateral action by any single participant 
     in the law-making process is precisely what the Bicameralism 
     and Presentment Clauses were designed to prevent. Once a bill 
     becomes law, it can only be repealed or amended through 
     another, independent legislative enactment, which itself must 
     conform with the requirements of Article I. Any rescissions 
     must be agreed upon by a majority of both Houses of Congress. 
     The President cannot single-handedly revise the work of the 
     other two participants in the lawmaking process, as he did 
     here when he vetoed certain provisions of these statutes.
       Defendants, curiously, contend that, despite its title, the 
     Line Item Veto Act does not authorize the President to 
     ``veto'' anything. They maintain that under the Act, ``[t]he 
     Bill stays as law, unless the President were to exercise his 
     constitutional power to veto. Nothing changes about the bill. 
     The law remains law. . . . The law remains on the books and 
     the law remains valid.'' (Tr. of Mot. Hr'g, Jan. 14, 1998 at 
     71, 78.) The Court does not follow Defendants' logic. In the 
     words of Richard Cardinal Cushing, ``When I see a bird that 
     walks like a duck and swims like a duck and quacks like a 
     duck, I call that bird a duck.'' Whatever defendants wish to 
     call the President's action, it has every mark of a veto. The 
     Line Item Veto Act states explicitly that ``cancel'' means 
     ``to rescind'' or to render the provision as having no 
     ``legal force or effect.'' How a ``canceled'' provision 
     ``remains on the books'' and ``remains valid'' defies logic. 
     The only way to restore these canceled provisions is for 
     Congress to pass and present new bills according to the 
     procedure prescribed in Article I. Clearly, this is an 
     indication that the canceled law no longer exists. Therefore, 
     despite Defendants' contentions, the Court finds that when 
     the President canceled these provisions pursuant to his Line 
     Item Veto authority, he unilaterally repealed duly enacted 
     provisions and amended duly enacted laws, which Article I 
     does not permit him to do.
       Finally, Congress' ``indirect attempt[] to accomplish the 
     Constitution prohibits . . . accomplishing directly'' cannot 
     stand. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 829 
     (1995). ``To argue otherwise is to suggest that the Framers 
     spent significant time and energy in debating and crafting 
     Clauses that could be easily evaded.'' Id. at 831. Congress 
     knew that a simple Line Item Veto, performed prior to the 
     President's signature, would violate Article I's requirement 
     that the president sign or return the bills in toto. See Line 
     Item Veto: The President's Constitutional Authority, Hearing 
     on S. Res. 195 Before the Subcomm. on the Constitution of the 
     Comm. on the Judiciary, 103d Cong. (1994). This limitation on 
     the President has been clear since George Washington's 
     tenure. See 33 Writings of George Washington 96 (John C. 
     Fitzpatrick ed. 1940) (``From the nature of the Constitution, 
     I must approve all the parts of a Bill, or reject it in 
     toto.'') Congress cannot evade this long-accepted requirement 
     by merely changing the timing of the President's 
     cancellation.
       Because the Line Item Veto produced laws in violation of 
     the requirement of bicameral passage, because it permitted 
     the President unilaterally to repeal or amend duly enacted 
     laws, and because it impermissibly attempts to evade the 
     requirement that the President sign or reject a bill in toto, 
     the Act violates the requirements of Article I. For that 
     reason alone, the Line Item Veto Act is unconstitutional.
     B. Separation of Powers
       Furthermore, the Line Item Veto Act is unconstitutional 
     because it impermissibly disrupts the balance of powers among 
     the three branches of government.\14\ The separation of 
     powers into three coordinate branches is central to the 
     principles on which this country was founded. See, e.g., 
     Mistretta v. United States, 488 U.S. 361, 380 (1989). The 
     declared purpose of separating and dividing the powers of 
     government was to ``diffuse power the better to secure 
     liberty.'' Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 
     579, 635 (1952). In writing about the principle of separated 
     powers, Madison stated, ``No political truth is certainly of 
     greater intrinsic value or is stamped with the authority of 
     more enlightened patrons of liberty.'' The Federalist No. 47, 
     at 324 (J. Cooke ed. 1961). Madison later wrote, ``But the 
     great security against a gradual concentration of the several 
     powers in the same department, consists in giving to those 
     who administer each department, the necessary constitutional 
     means, and personal motives, to resist encroachments of the 
     others.'' The Federalist No. 51, at 349 (J. Cooke ed. 1961). 
     The Framers ``regarded the checks and balances that they 
     built into the tripartite Federal Government as a self-
     executing safeguard against the encroachment or 
     aggrandizement of one branch at the expense of the other.'' 
     Buckley v. Valeo, 424 U.S. at 122.
       Pursuant to the doctrine of separated powers, certain 
     functions are divided between the legislative and executive 
     branches. Article I, section 1 vests all legislative 
     authority in Congress. Legislative power is the authority to 
     make laws. Myers v. United States, 272 U.S. 52 (1926). 
     Executive power, on the other hand, is to ``take Care that 
     the Laws be faithfully executed.'' U.S. Const., art. II, 
     Sec. 3. With regard to lawmaking, the President's function is 
     strictly a negative one: to veto a bill in its entirety.
       While it is Congress' duty to make laws, Congress can 
     delegate certain rulemaking authority to other branches, as 
     long as that delegation is appropriate to the duties of that 
     branch. See Mistretta, 488 U.S. at 388. Congress may not, 
     however, delegate its inherent lawmaking authority. See, 
     e.g., Loving v. United States, 116 S.Ct. 1737, 1744 (1996) 
     (``[T]he lawmaking function belongs to Congress . . . and may 
     not be conveyed to another branch or entity.''); Field v. 
     Clark, 143 U.S. 649, 692 (1892) (``That Congress cannot 
     delegate legislative power to the president is a principle 
     universally recognized as vital to the integrity and 
     maintenance of the system of government ordained by the 
     Constitution.''); Edward Gibbon, History of the Decline and 
     Fall of the Roman Empire 33 (1838) (``The principles of a 
     free constitution are irrecoverably lost, when the 
     legislative power is nominated by the executive.''); Sir 
     William Blackstone, 1 Commentaries on the Laws of England, 
     146 (9th ed., reprinted 1978) (1783) (``In all tyrannical 
     governments the supreme magistracy, or the right of both 
     making and of enforcing the laws, is vested in one and the 
     same man, or one and the same body of men; and wherever these 
     two powers are united together, there can be no public 
     liberty.'').
       The line between permissible delegations of rulemaking 
     authority and impermissible abandonments of lawmaking power 
     is a thin one. As one court described the distinction, ``The 
     legislature cannot delegate its power to make a law, but it 
     can make a law to delegate a power to determine some fact or 
     state of things upon which the law makes, or intends to make, 
     its own action depend.'' Field, 143 U.S. at 694. Stated 
     another way, ``The true distinction . . . is between the 
     delegation of power to make the law, which necessarily 
     involves a discretion as to what it shall be, and conferring 
     an authority or discretion as to its execution, to be 
     exercised under and in pursuance of the law. The first cannot 
     be done; to the latter no valid objection can be made.'' 
     Hampton v. United States, 276 U.S. 394 (1928).
       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. The Act enables the 
     President, in his discretion, to pick and choose among 
     portions of an enacted law to determine which ones will 
     remain valid. The Constitution, however, dictates that once a 
     bill becomes law, the President's sole duty is to ``take care 
     that the laws be faithfully executed.'' His power cannot 
     expand to that of ``co-designer'' of the law--that is 
     Congress' domain. Any subsequent amendment of a statute falls 
     under Congress' responsibility to legislate. The President 
     cannot take this duty upon himself; nor can Congress 
     relinquish that power to the Executive Branch.

[[Page S698]]

       The Defendants contend that the Line Item Veto is no 
     different than the many delegations of legislative authority 
     that Congress has made in the past. See, e.g., Field v. 
     Clark, 143 U.S. 649. Unlike other delegations of 
     Congressional authority, however, the Line Item Veto Act 
     authorizes the President to permanently extinguish laws. 
     These laws cannot be revived even if the President (or his 
     successor) feels that they are needed. Further, the Line Item 
     Veto Act empowers the President to make permanent changes to 
     the text of the Internal Revenue Code, as he did in the Snake 
     River case. Such delegations are unprecedented.
       Defendants further urge the Court to find that the Line 
     Item Veto provides the President with ``intelligible 
     standards'' as required by the delegation doctrine. See 
     Mistretta, 488 U.S. at 372. While it is true that the 
     delegation doctrine has enjoyed a liberal reading in the last 
     60 years or so, see, e.g., Federal Radio Comm'n v. Nelson 
     Bros., 289 U.S. 266 (1933) (upholding a delegation based on 
     ``public convenience, interest or necessity''), by trying to 
     bypass the maxim that Congress can delegate authority only if 
     that authority is, in fact, delegable, the Government 
     attempts to ``leap a chasm in two bounds.'' (Benjamin 
     Disraeli, Earl of Beaconsfield.) It is irrelevant whether the 
     Line Item Veto Act provides intelligible principles in its 
     delegation of authority to the President because, as 
     discussed above, the Act impermissibly attempts to transfer 
     non-delegable legislative authority to the Executive Branch.
       The separation of powers between the President and Congress 
     is clear:

     In the framework of our Constitution, the President's power 
     to see that laws are faithfully executed refutes the idea 
     that he is to be a lawmaker. The Constitution limits his 
     functions in the lawmaking process to the recommending of 
     laws he thinks wise and the vetoing of laws he thinks bad. 
     And the Constitution is neither silent nor equivocal about 
     who shall make laws which the President is to execute.

     Youngstown, 343 U.S. at 587-88. By ceding inherently 
     legislative authority to the President, the Line Item Veto 
     Act violates this constitutional framework. For that reason, 
     and for the reason that it violates the letter and spirit of 
     the procedural requirements of Article I, the Line Item Veto 
     Act is unconstitutional.

                             IV. Conclusion

       Although the Line Item Veto Act may have presented an 
     innovative and effective manner in which to control runaway 
     spending by Congress, the Framers held loftier values. The 
     Chadha Court recognized this tension between uncomplicated 
     administration of government and the values honored in the 
     Constitution:

     The choices we discern as having been made in the 
     Constitutional convention impose burdens on governmental 
     processes that often seem clumsy, inefficient, even 
     unworkable, but those hard choices were consciously made by 
     men who had lived under a form of government that permitted 
     arbitrary governmental acts to go unchecked. There is no 
     support in the Constitution or decisions of this court for 
     the proposition that the cumbersomeness and delays often 
     encountered in complying with explicit Constitutional 
     standards may be avoided, either by the Congress or by the 
     President. 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.

     Chadha, 462 U.S. at 959. Because the Line Item Veto 
     impermissibly violates the central tenets of our system of 
     government, it cannot stand.
       Therefore, because the Court finds that Plaintiffs have 
     demonstrated the requisite injury to have standing and, 
     furthermore, that the Line Item Veto Act violates the 
     provisions of Article I, section 7 of the United States 
     Constitution and the separation of powers doctrine, this 
     Court declares that the Line Item Veto Act is 
     unconstitutional. Accordingly, the Court will grant 
     Plaintiffs' Motions for Summary Judgment and deny Defendants' 
     Motion to Dismiss and Motion for Summary Judgment. An Order 
     will accompany this Opinion.


                               footnotes

     \1\ Amici curiae briefs were submitted by Senators Robert C. 
     Byrd, Daniel Patrick Moynihan, and Carl Levin, in support of 
     Plaintiffs' motions to declare the Line Item Veto Act 
     unconstitutional; the United States Senate, in support of the 
     constitutionality of the Act; and Congressman Dan Burton, in 
     support of the constitutionality of the Act.
     \2\ The Constitutionality of the Line Item Veto Act was 
     litigated in this court a mere six months before the 
     complaints in this case were filed. See Byrd v. Raines, 956 
     F.Supp. 25 (D.D.C. 1997). In Byrd, Judge Jackson declared the 
     Act unconstitutional. Id. On a direct appeal of that District 
     Court decision, the Supreme Court held that appellees, six 
     members of Congress, lacked standing to bring the suit, and 
     therefore vacated the District Court opinion and directed 
     that the complaint be dismissed. See Raines v. Byrd, 117 
     S.Ct. 2312, 2323 (1997).
     \3\ President Clinton signed the Line Item Veto Act into law 
     on April 9, 1996, it became effective January 1, 1997, and it 
     remains effective until January 1, 2005.
     \4\ Since 1974, Presidents have recommended $72.8 billion in 
     rescissions, but Congress has passed legislation rescinding 
     only $22.9 billion. S. Rep. No. 104-13, at 2 (1995).
     \5\ The Joint Congressional Committee on Taxation is 
     responsible for identifying cancelable items in tax bills. 
     Id. at Sec. 691f.
     \6\ Before the passage of section 968, farmers' cooperatives 
     were at a competitive disadvantage vis a vis investor-owned 
     businesses. Co-ops could not exchange their stock for the 
     stock of processing companies, because a cooperative's stock 
     can be held only by its members. (See Cranney Decl. at para. 
     15.)
     \7\ But see Ralph Waldo Emerson, Essays: Self-Reliance 
     (1841), ``A foolish consistency is the hobgoblin of little 
     minds.''
     \8\ The Court's standing analysis focuses on the plaintiff 
     health care providers. As long as the Court determines that 
     at least one of the New York plaintiffs has standing, it does 
     not need to consider the standing issue as to the other 
     plaintiffs in that action. See Bowsher v. Synar, 478 U.S. 
     714, 721 (1986).
     \9\ As a simplified example, if an investor-owned business 
     and a farmers' co-op each offered $1 million for a processing 
     plant, the investor-owned business would always prevail 
     because the processor would actually net $1 million from that 
     sale, whereas it would net less than $1 million from the sale 
     to the farmers' co-op, because it would have to pay capital 
     gains tax on that sale. Therefore, to compete for a piece of 
     property with an investor-owned business, the farmers' co-op 
     would have to offer more than the investor-owned business to 
     make up for the capital gains tax that the purchaser would 
     have to pay.
     \10\ Defendants argue that because Plaintiffs themselves 
     would not have received the capital gains tax deferral, they 
     are not the beneficiaries of section 968. The Court 
     disagrees. The express purpose of section 968 was to help 
     farmers to buy refining and processing facilities by 
     eliminating a tax obstacle facing sellers who sell to them. 
     Thus, although the direct recipient of the tax deferral was 
     the sellers, it was plainly understood that the intention was 
     to benefit the farmers; a cancellation of the tax deferral 
     would really injure the farmers, not the owners of the 
     processing plants, because the owners could already get the 
     tax deferral simply by selling to investor-owned businesses.
     \11\ For example, in the illustration provided in footnote 9, 
     supra, instead of having to offer, say, $1.3 million to 
     compete with the investor-owned business, the co-op could 
     offer an amount in the $1 million range.
     \12\ To qualify for a deferral of capital gains taxes under 
     section 968(g), the seller must transfer 100% of the stock of 
     the qualified processor to the farmers' cooperative. Section 
     968(a) requires that, during the one-year period preceding 
     the date of sale, the qualified refiner or processor purchase 
     at least 50% of the products to be refined or processed from 
     the farmers who make up the eligible farmers' cooperative 
     that is purchasing the corporations' stock or from the 
     cooperative itself.
     \13\ This approach has been cautioned against since the 
     founding of our democracy. ``If in the opinion of the People, 
     the distribution or modification of the Constitutional powers 
     be in any particular wrong, let it be corrected by an 
     amendment in the way which the Constitution designates. But 
     let there be no change by usurpation; for though this, in one 
     instance may be the instrument of good, it is the customary 
     weapon by which free governments are destroyed.'' George 
     Washington, Farewell Address, September 19, 1796 in 35 The 
     Writings of George Washington 229 (John C. Fitzpatrick ed., 
     1940).
     \14\ While this analysis focuses on the balance of powers 
     between the legislative and executive branches, the Line Item 
     Veto could also affect judicial independence. It is possible 
     that the President might use the Line Item Veto to manipulate 
     the judiciary's budget, thus exerting pressure on its 
     members. See Robert Destro, Whom Do You Trust? Judicial 
     Independence, the Power of the Purse & the Line Item Veto, 
     44-Jan. Fed. Law. 26, 29 (1997).

     February 12, 1998.
                                                  Thomas F. Hogan,
                                              U.S. District Judge.

  Mr. BENNETT addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. BENNETT. Mr. President, I hesitate to intrude on this debate, but 
confession is good for the soul.
  I campaigned on behalf of a line-item veto. I worked on this floor 
for the passage of the line-item veto. I enthusiastically voted for the 
line-item veto. I learned one thing in basic training when I was in the 
military service of this country that has remained with me. One of the 
things they taught us was that the best time to escape is immediately 
after you are captured. Don't wait until you have been taken to the 
back lines. Don't wait until you have been put in a prison camp to try 
to plot your escape. Escape immediately after you are captured, when 
you are within 100 yards of your own lines. You are in the confusion of 
the battlefield, you are under the control of troops who are not 
trained to hold on to prisoners.
  I have applied that principle in my life. When I make a mistake I 
want to escape from it as quickly as possible instead of waiting until 
I have been put into prison later on behind the enemy lines.
  I reasoned that the experience of State Governors, 47 of whom have 
line-item vetoes, bade well for the line-item veto. My own Governor in 
the State of Utah has it. And it has not been the source of mischief in 
the process of legislation in the State.
  I have seen that it has become the source of mischief here in this 
body. And, as I said to my revered colleague on the Appropriations 
Committee when this came up--and our chairman was expressing his usual 
enthusiasm; in this case in anger for his position--it may be that I 
will have to eat a little crow.
  So as I receive the news of the action having been taken by the court 
in this case, I stand now to say that I would not support an effort to 
try to overturn that decision. The time to escape is immediately after 
you are captured. And we have been captured. And I will escape from my 
previous posture.

[[Page S699]]

  I apologize, albeit much too late, to my primary opponent who stood 
in opposition to the line-item veto. And this was a matter of 
difference between the two of us in the primary. I think I made some 
progress because as we got near the vote he recanted and came to my 
side so as to try to get the people who were in favor of a line-item 
veto to vote for him instead of me.
  But I believe the arguments that have been repeated here, the 
information given here from the decision of the judge, are sufficiently 
persuasive that I need to make this apology and this recanting of a 
previous position. While I may not be with my two colleagues on many 
other matters, I try to be with them on constitutional matters.
  It is on this basis that I opposed a constitutional amendment 
regarding flag burning. That puts me at odds with my senior colleague 
from Utah, which always distresses me. It is for this purpose that I 
oppose McCain-Feingold campaign finance reform because I think it is 
unconstitutional. I believe the courts have ruled in similar cases that 
the guts of the McCain-Feingold bill is in fact an intrusion on the 
first amendment.
  But I think there is no more important function that we have in this 
Chamber, whatever our disagreements on the specifics, than the function 
of protecting the Constitution against the whims of the hour.
  And so I thank Senator Byrd and Senator Moynihan for their 
scholarship and for their leadership on this issue, and I, as one 
Senator at least on the other side of the issue, throw in the towel, 
eat a little crow, and declare my willingness to escape from a previous 
position.
  Mr. BYRD. Mr. President, will the Senator yield very briefly?
  Mr. BENNETT. I am happy to yield.
  Mr. BYRD. Mr. President, I thank the distinguished Senator for his 
remarks.
  Diogenes walked the streets of Athens in broad daylight with his 
lighted lantern. He was asked why. He answered, ``I am looking for a 
man.'' Plato, when visiting Sicily, was asked by Hiero, the tyrannical 
head of the Government, why he came to Sicily. He said, ``I am seeking 
an honest man.''

  May I say, Mr. President, today I have found an honest man --the 
distinguished Senator from Utah.
  Mr. BENNETT. I thank the Senator from West Virginia. There could be 
no higher tribute. I am grateful to him.
  Mr. MOYNIHAN addressed the Chair.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. MOYNIHAN. May I add, not only honest but a courageous man. In 
some 21 years on the Senate floor I have not heard a more refreshing 
and inspiriting statement. It is not surprising coming from the Senator 
from Utah, but it is all the more amazing. There are few places in this 
world today where such a statement could be made and praised.
  It is a tribute to you, sir; also a tribute to the U.S. Army, I 
believe. But we will not get into that. I thank you for your remarks, 
sir.
  Mr. BENNETT. I thank the senior Senator from New York. Both of my 
senior friends are far too lavish in their praise, but I will accept it 
anyway in the spirit of the moment.
  I yield the floor.
  Mr. BROWNBACK. Mr. President, I ask unanimous consent to speak for up 
to 5 minutes, and further that Senator Dorgan have the 1 hour that has 
been allotted to him following at the end of my 5 minutes.
  The PRESIDING OFFICER. Is there objection? Hearing none, without 
objection, it is so ordered.
  Mr. BROWNBACK. Thank you, Mr. President.

                          ____________________