The Counsellor's Corner

The United States Supreme Court seems to be getting it right this year, or at least the way I would like things to be. In my last column I wrote about the six-to-three vote protecting the secrecy of that which is said to one's attorney after one dies, and six-to-three proved to be the magic number again late last month when the United States Supreme Court decided that the Line Item Veto Act is unconstitutional.

The Act drastically changed the manner in which bills passed by Congress would become law. Before the Act, the president would either have to approve a bill in toto or veto it, thereby condemning the bill in its entirety. This Act changed things with respect to certain types of bills in that it gave the president the power to cancel or "line-out" three types of provisions: "Any dollar amount of discretionary budget authority; any new item of direct spending; and any limited tax benefit."

This, in effect, let the president cherry pick and keep that which he liked and excise out that which he didn't like. It had the effect of giving the president a tremendous amount of power and blurred the distinction between Congress and the presidency with respect to whose job it is to pass legislation and whose job it is to decide whether or not the legislation is appropriate.

The Line Item Veto changed the dynamics of Congress completely. Democrats could vote for bills they liked parts of, knowing that the President would excise out that which they did not like. For Republicans, the frustration was in passing bills knowing that provisions that might be important to them weren't going to make it past the Presidential pen.

It is important to look at this from a long-term perspective, as opposed to a short-term political view. Obviously, there will be numerous Republican presidents in years to come, and Congresses controlled by Democrats. It is important that this decision be viewed in that context rather than as a way of slowing down President Clinton right now.

As the United States Supreme Court indicated: "The President may sign or veto bills passed by Congress. No constitutional provision grants the President the power to enact, amend, or repeal statutes." This distinction has been around for as long as has our constitution, and this change would have been one of extraordinary magnitude.

The Supreme Court decision written by Justice Stevens indicated that, "the procedures under which bills become law were carefully designed by the framers of the Constitution. While there might be policy reasons for the changes prescribed by the Act, they could only be accomplished by Constitutional Amendment." That is what the Constitution requires. When a change of this type is proposed, it must go through the procedure required to amend our Constitution. It cannot just be voted on by Congress, signed by the President, and thereafter become law.

When I think of adding to our Bill of Rights which is the appropriate way to amend the Constitution, I think of things such as women obtaining the right to vote, prohibition, the end of prohibition, presidents being limited to two terms in office, and other absolutely critical legislation.

By a six to three vote, the United States Supreme Court decided that if the Line Item Veto Act was going to be in effect, it would have to be approved by the states which is the proper constitutional procedure.

Six to three seems to be the lucky number this year for appropriate United States Supreme Court decisions; I think they really got it right on something that hasn't received the media coverage I would have expected in that the long-term potential ramifications of this legislation would have been extraordinarily significant.

Charlie Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Booth & Unger, and a therapist at the Foothill Centre for Personal and Family Growth. Mr. Unger writes a bimonthly column on legal and psychological issues.