24 Admin. & Reg. L. News 1 (1998-1999)

handle is hein.journals/admreln24 and id is 1 raw text is: Published by the Section of Administrative Law and Regulatory Practice *American Bar Association Fall 1998 e Vol. 24, No. 1

Supreme Court News
by William Funk*
T he Supreme Court's 1997 term went out with a
bang, with almost fifteen percent of the Court's
opinions being released in the last week of the
term. The total number of decisions continues to be
low but seems to be creeping upward; this year there
were 95 signed opinions compared to last year's 91
and the prior year's 83. The Court remains conserva-
tive, with Justices O'Connor and Kennedy the swing
votes, and with Justices Stevens, Ginsburg, and
Souter least often in the majority in the 5-4 cases.
Court invalidates
N   ote!               Line Item Veto Act
It remains to be seen
The dates for the           whether the 1997 term
fall meeting in           was notable for out-
,D.C., are:     standing cases, but one
l      cashington,   ,         of its outstanding cases
October 8-10,             was the so-called Line
not the dates announced         Item Veto case, Clinton
in the last News           v. City of New York,
118 S.Ct. 2091. Justice
Stevens wrote the 6-3
opinion, with Justices Breyer, Scalia, and O'Connor
dissenting. In the simplest terms, the Court held the
Line Item Veto Act unconstitutional, but in the course
of that decision the Court's analysis involves both
administrative law and separation-of-powers issues.
The case actually involved two different exercises
of the Line Item Veto, one a veto of spending author-
ity and one a veto of a limited tax benefit. Justices
Scalia and O'Connor believed that there was no
standing to challenge the veto of the tax benefit,
because the persons challenging the veto were not the
ones to whom the tax benefit would accrue. Instead,
the challengers were persons who hoped to do a deal
with the beneficiary, which the vetoed tax benefit
would have made possible. The majority, however,
found the elimination of this benefit would redound
to the economic detriment of the challengers, because
*Professor, Lewis & Clark Law School; Editor-in-Chief,
Administrative & Regulatory Law News.

its eliminat?&Mld&ilh MMiftpossible for them.
Overcoming the standing issue, which had derailed
the earlier Line Item Veto case, Raines v. Byrd, 117
S.Ct. 2312 (1997)(although not Justice Stevens, who
alone dissented from the earlier finding of no stand-
ing and who then went on to explain why he believed
the Line Item Veto Act was unconstitutional), the
Court moved to the merits, and its analysis is neither
long nor complicated:
Thus, under the
plain text of the
statute, the two
actions of the Presi-        In This Issue
dent that are chal-            Chair's Message
lenged in these cases                 2
prevented [two sec-
tions of law] from            President Issues
having legal force or       Plain Language Mandate
effect. . . . In both                3
legal and practical          News from the Circuits
effect, the President                 4
has amended two
Acts of Congress by          News from the States
repealing a portion of                6
each.... There is no       Recent Articles of Interest
provision in the Con-                 a
stitution that autho-
rizes the President to          Member News
enact, to amend, or to                12
repeal statutes.
Hence, the Act is unconstitutional.
The government, citing Fieldv. Clark, 143 U.S.
649 (1892), had argued that the President's actions
did not amend or repeal any law, rather his action was
merely the exercise of power delegated to him by the
Line Item Veto Act to rule certain spending and tax-
ing provisions not in effect. In Field, the Tariff Act of
1890 had exempted a number of articles from duty,
but it had also directed the President to suspend the
exemption whenever he determined that the export-
ing country imposed unequal and unreasonable
Continued on page 13

Produced by the ABA Publishing
Copyright © 1998 American Bar Association

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