TOPICS > Politics

Decisions, Decisions

June 25, 1998 at 12:00 AM EDT


KWAME HOLMAN: President Clinton signed the line-item veto into law in 1996 only after it was approved by an overwhelming bipartisan majority in both houses of Congress.

PRESIDENT CLINTON: For years, presidents of both parties have pounded this very desk in frustration at having to sign necessary legislation that contain special interest boondoggles, tax loopholes, and pure pork.

KWAME HOLMAN: The line-item veto gave the President greater authority to cut specific spending proposals from a bill without having to reject the entire bill. But even as Congress was designing the legislation, opponents were warning the line-item veto violated the Constitution. Article One, Section One of the Constitution reads: “all legislative powers herein granted shall be vested in a Congress of the United States.” Section Seven reads: “every bill which shall have been passed shall before it become law be presented to the President of the United States. If he approve he shall sign, but if not he shall return it with his objection.”

CARDISS COLLINS: The Constitution did not say only some legislative powers shall be exercised by the Congress. It does not say the Congress has to share it’s legislative responsibility with any other branch. Perhaps most importantly, from the standpoint of this debate, the Constitution does not give the Congress the power to delegate its legislative powers to the President or to anyone else.

KWAME HOLMAN: The President held off using his new executive authority while legal challengers pursued the line-item veto all the way to the Supreme Court. Last summer, however, the justices said the new law couldn’t be challenged until the President used it–and so he did. Last August, President Clinton exercised his line-item veto authority for the first time, stripping from the new balanced budget agreement several narrowly drawn tax and spending provisions. One would have helped New York State, and especially New York City, by allowing the state to raise taxes on health care providers to finance its Medicaid program. The other vetoed provision would have allowed agri-businesses defer the capital gains taxes they would pay on the sale of food processing plants to farmer-owned cooperatives.

PRESIDENT CLINTON: The actions I take today will save the American people hundreds of millions of dollars over the next 10 years.

KWAME HOLMAN: Soon after those vetoes, New York City filed a lawsuit against President Clinton and the Snake River Potato Growers of Idaho sued Treasury Secretary Robert Rubin, each believing the President’s actions had indeed violated the Constitution. Today the Supreme Court struck down the line-item veto law, declaring it unconstitutional by a six to three vote.

JIM LEHRER: Now to Jan Crawford Greenburg, Supreme Court reporter for the Chicago Tribune. Jan, welcome.

JAN CRAWFORD GREENBURG, Chicago Tribune: Thank you.

JIM LEHRER: And what did the court say why it was unconstitutional?

JAN CRAWFORD GREENBURG: Well, today the Supreme Court said that the Line Item Veto Act violates specific procedures outlined in the Constitution for enacting or repealing laws. A bill must pass the House and the Senate and then goes on to the President. He can sign it, or he can send it back. But he can’t simply pick and choose parts of the law that he likes, because that violates the Constitution, the court said today.

JIM LEHRER: Now, is a six to three vote-there was a very strong dissent, was there not, from Justice Scalia? Tell us about that.

JAN CRAWFORD GREENBURG: That’s right. And Justice Scalia actually took the very unusual step of reading portions of his dissent from the bench. He spent about 10 minutes outlining why he believed the court’s decision today was wrong. Justice Scalia said that he thought the Constitution authorized this law, but he said he didn’t think it really was a veto at all. This law simply gave the President discretion over spending, so he said the name of the law may have really determined its fate, and he actually said-and I can quote here-that the name of the law has succeeded in faking out the Supreme Court. The present action it authorizes, in fact, is not a line-item veto, it is no different from what Congress has permitted the president to do since the formation of the union-so very impassioned dissent by Justice Scalia.

JIM LEHRER: Now the six in the majority, who were the six?

JAN CRAWFORD GREENBURG: We had kind of an unusual line-up of Justice Stevens, and then the dissent-I’ll just summarize those-we had O’Connor and Briar-

JIM LEHRER: With Scalia.

JAN CRAWFORD GREENBURG: In dissent. Yes. So we had Justice Kennedy, who often sides with the conservatives, supporting Stevens, as well as Justice Thomas.

JIM LEHRER: So it wasn’t a clean conservative/liberal split?


JIM LEHRER: Not at all.

JAN CRAWFORD GREENBURG: Some of the decisions today reflected the unusual alliance. This one was not unique.

JIM LEHRER: Okay. Now the next one was also a six to three vote-that-the next major decision. That’s the attorney-client privilege. Refresh our memory now, what that case was.

JAN CRAWFORD GREENBURG: This case came about when Independent Counsel Kenneth Starr began seeking notes from a lawyer’s conversation with Former Deputy White House Counsel Vincent Foster. Starr wanted those notes for his investigation into firings in the White House Travel Office, and he said he should be able to get them, because they were important to his criminal investigation. But it ran headlong into one of the most revered principles in America, and the law, one that goes back to Elizabethan England, and that is the notion that a client’s confidences must be protected, a conversation with an attorney must be kept private, even after the client has died. In a six-three decision today written by the Chief Justice-Chief Justice William Rehnquist, the court said, you know, we’re going to-we’re going to stick with that. We can’t really find a compelling enough reason to depart from this long held practice, and even though this investigation by Mr. Starr is important, the notion that an attorney can keep private his conversations with his client is really more compelling. And the chief justice went into a very interesting discussion about just the very real practical concerns that such a move would really create, that the clients would be afraid to disclose things to their attorney because it might be revealed after their death, and, therefore-

JIM LEHRER: To the detriment of their family members.

JAN CRAWFORD GREENBURG: Exactly. That they might-

JIM LEHRER: Their reputations.

JAN CRAWFORD GREENBURG: –be embarrassed, the family members might be embarrassed.

JIM LEHRER: Justice O’Connor wrote the dissent on this one.


JIM LEHRER: And it was pretty strong, was it not?

JAN CRAWFORD GREENBURG: That’s right. And she said that it could-as she said-lead to extreme injustice if this privilege were absolute after death, which the court said it was today, and that the costs were inordinately high. She gave a compelling example, I thought, of-what if we had say a criminal defendant who had evidence, who knew that there’d been a confession to a crime, and a confession had been given to the lawyer, but the person who made the confession had since died. Justice O’Connor said that that would just be extraordinarily unfair if the criminal defendant couldn’t prevent evidence of that confession in his case.

JIM LEHRER: As a general statement, though, would you not agree, Jan, that had the court ruled otherwise, this would be a major, major change?

JAN CRAWFORD GREENBURG: Exactly. And lawyers and law organizations really breathed a big sigh of relief today, because this preserves the way the law has been for decades and centuries, and kind of keeps things the way-

JIM LEHRER: The way they are.

JAN CRAWFORD GREENBURG: The way lawyers say that they should be.

JIM LEHRER: Okay. Now the next one was HIV discrimination. Tell us again, tell us on this one what the case was.

JAN CRAWFORD GREENBURG: This case asks whether or not someone infected with the AIDS virus was protected from discrimination under the federal law that prohibits people from discriminating against those with disabilities. The case came about after a woman in Maine went to a dentist for a routine checkup, but the checkup was anything but after the dentist said, you have a cavity, but I’m not going to treat it in my office, because you’ve told me on your forms that you are infected with HIV; I’ll still treat you, but we’re going to have to go to a hospital, and you’re going to have to pay the fees the hospital will charge for the use of its facility. The woman sued the dentist under the Americans With Disabilities Act, that federal law, and for the first time today the court took up what the scope of that law was, and it decided that a person with HIV, even though may exhibit no symptoms of any disease, indeed, is protected by this federal law that Congress passed in 1999.

JIM LEHRER: That affects a lot of people.

JAN CRAWFORD GREENBURG: That’s right. Not only people with HIV but potentially it could encompass a number of other people with illnesses that may not exhibit symptoms, and that’s why it was an extraordinarily important case, and attracted a lot of attention, for example, people with epilepsy or diabetes or cancer, diseases that may not exhibit symptoms, that may be able to be controlled with medication, or may be in remission, these people now can argue that they too should be protected by the Americans With Disabilities Act.

JIM LEHRER: So we’re going to hear more about that one.

JAN CRAWFORD GREENBURG: Yes. And also the decision today, I should note, really isn’t sewn up and complete. It will go back to the lower court to determine if the dentist still could prevail. The Americans With Disabilities Act allows people to treat people with disabilities a little differently if they can show that the person might provide a direct threat to their health or safety.

JIM LEHRER: But the dentist would have to show that.

JAN CRAWFORD GREENBURG: The dentist will have to prove that he believed treating this patient would have been a direct threat to health and safety, and the court today said in assessing this that the lower court should look at objective, scientific evidence. That will be a very high standard for him to do, particularly since, for example, even the American Dental Association has said that a provider’s failure to treat someone with HIV amounts to almost an ethical violation.

JIM LEHRER: But that one’s not quite over yet.

JAN CRAWFORD GREENBURG: No. We’ll see more on this one.

JIM LEHRER: Okay. Now, the last one is the National Endowment for the Arts’ decency standards.


JIM LEHRER: The case-the decision and the reasoning.

JAN CRAWFORD GREENBURG: This case came about after the NEA awarded some controversial grants to artists, including Robert Mapplethorpe, who had taken photographs that apparently had some homoerotic images, that produced an incredible outcry, so Congress responded in 1990 and directed the NEA to change its procedures a little bit, to consider, and to award grants based on artistic merit and excellence-but also to take into consideration general standards of decency that would reflect the diverse views and values of the American public. That law was what was at issue today, that 1990 law, and asks whether or not the NEA could take into account those decency standards when it was awarding grants, or whether or not, in fact, special consideration would violate the First Amendment. Now in its ruling today by Justice Sandra Day O’Connor she got eight votes for that ruling, only one dissent by Justice Souter. Justice O’Connor said the court really didn’t see a problem with the statutory plan. For the one thing, I mean, the NEA was merely taking into consideration these decency standards. It certainly wasn’t prohibited from awarding grants to controversial art, but-

JIM LEHRER: As long as they considered-

JAN CRAWFORD GREENBURG: –as long as they consider them-that’s right. So this wasn’t a mandate to the NEA.

JIM LEHRER: Did the court speak to what constituted decency or indecency?

JAN CRAWFORD GREENBURG: No. They left that kind of an open question, but I mean, as some people have pointed out, the government makes those kind of subjective calls all the time, and that’s a necessary thing that it must do when it’s awarding funding for any number of programs, so that’s just a judgment call.

JIM LEHRER: And that’s essentially what the overwhelming majority of the court said too.


JIM LEHRER: It’s a legitimate function of government to do that if they want to, if the Congress says it should.

JAN CRAWFORD GREENBURG: That’s right. I mean, it’s one thing, as Justice O’Connor said-it’s one thing when the government is acting as a patron, as it was here, and not a sovereign.

JIM LEHRER: All right. The Supreme Court has one more day.


JIM LEHRER: That’s tomorrow.

JAN CRAWFORD GREENBURG: They’re going to wrap up tomorrow.

JIM LEHRER: And there are two big decisions coming on-

JAN CRAWFORD GREENBURG: Sexual harassment and these cases will be monumentally important, because they will determine the scope of an employer’s liability for sexual harassment in the workplace, of enormous importance for American workers.

JIM LEHRER: And we’ll talk about that tomorrow night. Thank you very much, Jan.