#20 Spring 1998

     FCC Attempts to Squash Pirate Radio Station
     It Isn’t Just Microsoft
     Power Corrupts . . .

#20 Spring 1998 Page 1

by Lauren S. Bain, Esq.

The line-item veto, coveted by presidents for over a century and finally conceded by the 104th Congress in 1996, marks a significant dip in the steady descent of contemporary conservatives into pragmatism. The Line-Item Veto Act,1 an inexcusable invasion of the Legislative Branch's lawmaking authority, was a component of the Republicans' simple-minded Contract with America and the obsession with a balanced budget. Unable to trust itself with sufficient fiscal responsibility to carry out its own objectives, Congress delegated to the Chief Executive the new power to alter a bill he has already signed into law.

The line-item veto is not unlimited license for the president to generate his own body of law. The power is limited to canceling in whole, (1) any dollar amount of discretionary budget authority; (2) any item of new direct spending; and (3) certain limited tax benefits. The president may only invoke the veto if he determines that his cancellation will (1) reduce the federal budget deficit; (2) not impair any essential Government functions; and (3) not harm the national interest. Congressional override of the veto requires a two-thirds supermajority in each chamber.2 Debate time is strictly limited by the statute. ("Direct spending" refers to appropriations for "entitlements" and the food stamp program.)

States have had the line-item veto for more than 100 years. Rep. David Skaggs (D-CO), in a debate with Rep. Gerald Solomon (R-NY), said that the Confederate Constitution contained a line-item veto in 1861. Most state constitutions, he added, now contain this provision. However, the Line Item Veto Act is a statute, not a constitutional provision. Rep. Skaggs rightly commented, "If the Congress wants the President to have a line item veto, it should approve a constitutional amendment and send it to the states for ratification."3

The line-item veto is unequivocally unconstitutional. It violates the Constitution's Presentment Clause (Art. 1, sec. 7, cl. 2,):

     Every Bill which shall have passed the House of Representatives and the

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     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 it, with his Objections to
     that House in which it shall have originated, who shall enter the Objections at large
     on their Journal, and proceed to reconsider it. If after such Reconsideration
     two-thirds of that House [and thereafter two-thirds of the other House] shall agree
     to pass the Bill . . . it shall become a Law . . . If any Bill not be returned by the
     President within ten Days (Sundays excepted) after it shall have been presented
     to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress      by their Adjournment prevent its Return, in which Case it shall not be a Law.

Thus, there is no provision for the President to sign and then amend any bill and remake the law.

The Presentment Clause is one aspect of the Separation of Powers Doctrine. The Framers of the Constitution were fervent about the idea of separation of powers. They created three distinct branches of government: the legislative, to make the laws; the executive, to implement the laws; and the judicial, to enforce and interpret the laws. The branches were intended to be separate so that excessive power did not fall into one set of hands, as had been the case under the English monarchy. James Madison, quoting Montesquieu in Federalist Paper No. 474, wrote, "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates[.]"

Madison believed a precise separation of powers to be a "fundamental article of liberty." But he also said, in No. 48, that the departments of government could never in practice be truly separate from one another. He confers superiority upon the legislative department because of its broader powers, influence, and representativeness with respect to the people. He concludes that encroachments, when unavoidable, should be by the legislative upon the executive department, not the other way around. The line-item veto clearly is an encroachment of executive power upon legislative authority, and is thus outside the narrow zone of tolerance that Madison contemplated. "In republican government," Madison attests in No.51, "the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature

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into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit." In other words, the very nature of the Congressional structure is designed to be sufficiently diverse for just lawmaking. In asserting the need for further examination by the Executive, Congress is abnegating its own responsibility, inappropriately expanding the power of a branch of government deliberately limited by Constitutional design to protect the rights of the people, and warping the separation of powers doctrine that is the very source of the legislative department's accountability to the citizenry. This is a breach of the most critical safeguard the Framers proffered in their campaign to secure ratification of the Constitution.

In 1997, four Senators and two Congressmen who opposed the Line-Item Veto Act brought suit in the U.S. District Court for the District of Columbia seeking to have the Act declared unconstitutional. District Judge Jackson granted plaintiffs' summary judgment motion, holding that the Act violated the Constitution's Presentment Clause and was indeed an unconstitutional delegation of legislative power to the President. Judge Jackson noted: "Never before has Congress attempted to give away the power to shape the content of a statute of the United States, as the Act purports to do."5 On appeal, the United States Supreme Court vacated and remanded the District Court's judgment, citing lack of standing. Because the president had not yet invoked the line-item veto, the Supreme Court found that the plaintiff Representatives claim was not yet ripe, presumably because the president had not yet used his power to compromise their lawmaking functions. The Court did not rule on the merits of the plaintiffs' case.6

President Clinton has since invoked the line-item veto in two bills. The first cancelled provision would have allowed owners of agricultural processors to sell their facilities to agricultural cooperatives without paying capital gains taxes. The second would have shielded New York State from having to pay as much as $2.6 billion in Medicaid funds. These cancellations were attacked in suits filed by a group of Idaho farmers and by New York City and a combination of hospitals and unions. On February 12, a federal judge in Washington struck down the law.7

The case was appealed to the Supreme Court.8 It was argued there on April 27. From comments made at argument, it appears that a majority of the Justices consider the Act

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unconstitutional. Even the government understands the weakness in its position; the Solicitor General conceded that "a pure line item veto is clearly unconstitutional," but sought to distinguish this Act because of technical details. Unfortunately, the plaintiffs' standing to raise the issue in these cases is not clear, and this suit may suffer the same result as the previous. A decision is expected by late June.

In holding that under the Presentment Clause, the President clearly does not have constitutional authority to repeal a statute of the United States once it has become law, Judge Jackson noted that "[w]hether a bill is or is not a law of the United States cannot depend on the President's state of mind when he affixes his signature." Precisely. The President may not sign a bill into law, believing it to have antipathetic components, which he has the power simply to remove once it is enacted; Judge Jackson's reading of the Constitution is clear. "The President's cancellation of an item unilaterally effects a repeal of statutory law such that the bill he signed is not the law that will govern the Nation. That is precisely what the Presentment Clause was designed to prevent."

That the line-item veto invades legislative authority under the Separation of Powers Doctrine and the Constitution's Presentment Clause is obvious. The Framers were acutely wary of too much expediency infringing on liberty. In passing the line-item veto, Congress has, in Judge Jackson's astute words, "turned the constitutional division of responsibilities for legislating on its head." Congress must assume its Constitutional responsibility for creating the laws that govern our nation. The President is charged with accepting or rejecting a law in total as Congress presents it to him. He may not take what he likes and leave the rest.

President Clinton, celebrating his first invocation of the line-item veto, declared, "Special interests will not be able to play the old game of slipping a provision into a massive bill in the hope that no one will notice."9 But those pesky riders can also be forms of compromise and dissent that are hallmarks of a freely deliberative republican government. The Framers never intended that expediency foreclose deliberation and dissent. Let us hope the courts will not serve the needs of a Congress too diffident to fulfill its proper mission.

References and Notes

1.U.S.C. §§ 691 et seq. Full text available: <sorry internet link bad>

2. Congressional Research Service Report for Congress, The Line-Item Veto Act: Procedural Issues, Louis Fisher, Senior Specialist in Separation of Powers and Virginia A. McMurtry, Specialist in American National Government, December 2, 1996: www.house.gov/rules_org/96-973.htm <note internet link flawed>

3. Online NewsHour Forum: Line-Item Veto Debate, June 20, 1997: http://www.pbs.org/newshour/@capitol/forum/june97/veto-6-20.html <note internet link flawed>

4. Hamilton, Alexander; Madison, James; and Jay, John: The Federalist Papers, with introduction, table of contents, and index of ideas by Clinton Rossiter. Mentor Books, New American Library, 1961.

5. Byrd v. Raines, 956 F. Supp. 25, 37 (D.D.C. 1997).

6. Raines v. Byrd, 117 S.Ct. 2312, 138 L.Ed.2d 849.

7. City of New York v. Clinton, Snake River Potato Growers v. Rubin: http://lw.bna.com/lw/19980224/972393.htm

8. Clinton v. City of New York Rubin v. Snake River Potato Growers, case no. 97-1374

9. "Clinton Becomes First President to Use Line-Item Veto," by Alison Mitchell, The New York Times, August 12,1997.

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FCC Attempts to Squash Pirate Radio Station
Announcing that it intended to protect "public airwaves," the Federal Communications Commission told a pirate radio station to get off the air. However, the station has resisted and is, to date, still going strong.

KAW-FM is a 10-watt unlicensed radio station in Lawrence, Kansas with a range of only five miles. It transmits an eclectic assortment of public affairs and music not typically heard on commercial stations from the top of a three-story building.

In November 1997, despite admitting that no complaints had been filed against the station, the FCC threatened legal action to shut down KAW within two months.

The public supports the station. Fifty-two downtown businesses plan to participate in a benefit bowling tournament to raise $800 for the station. Lawrence Mayor Bonnie Augustine wrote a letter to the FCC on behalf of the city urging that KAW be allowed to continue broadcasting.

Station Manager Rich Wenzel said the $75,000 to upgrade the station would put him out of business, not to mention that, in the absence of standards to govern the decision, there is no guarantee that the application would be accepted.

It Isn’t Just Microsoft

Lost amidst the smoke (and mirrors) of the Department of Justice's persecution of Microsoft is the fact that Intel Corporation, another computer industry leader, has also been the subject of antitrust scrutiny for a considerable period of time.

The Federal Trade Commission, like the DOJ, is empowered to investigate antitrust violations---but has an even more elastic and non-objective "yardstick": "unfair competition" and "tendency to create a monopoly."

Both the FTC and the DOJ scrutinize mergers, which must be government-approved and documented ad nauseam under the Hart-Scott-Rodino Act. The FTC has been "reviewing" Intel's mergers, e.g., with computer company Digital Equipment Corporation. In the process, it has been conducting ongoing investigations of Intel's business practices, with even less of a deadline than the U.S. troop commitment to Bosnia.

The relative inactivity of the DOJ and FTC in the past few years doubtless contributed significantly to the economy's strength; but given the attacks on Microsoft, Intel and, most recently, on the merger between Lockheed-Martin and McDonnel-Douglas, the government may

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be getting bolder in its use of the antitrust cudgel.

Power Corrupts . . .

Recently, a TAFOL member and tax practitioner in the midst of busy season received a jury summons to appear for jury duty on March 30, sixteen days from the nefarious April 15 filing deadline. The summons indicated that while the member could obtain a postponement of jury duty for prepaid vacation, valid business reasons were not just cause to request a postponement. Nonetheless, the member, who was in the midst of fulfilling a contract with one of the big six accounting firms and whose remuneration was contingent upon charging an agreed upon number of hours per week, wrote a letter requesting a postponement and complaining about the use of force in conscripting jurors.

Predictably, a canned response was mailed to the member which stated that her request for postponement was denied; and that, by law, business reasons were not valid reasons to be excused from jury duty. The canned response went on to say that to avoid contempt proceedings, the member must appear on the assigned date.

Copyright © 1998 The Association for Objective Law. All rights reserved. The Association for Objective Law is a Missouri non-profit corporation whose purpose is to advance Objectivism, the philosophy of Ayn Rand, as the basis of a proper legal system.