Public wins as high court thwarts Clinton and Starr


PRESIDENT Clinton lost one and won one at the U.S. Supreme Court on Thursday. The line item veto law was struck down. And the court upheld the principle that death does not unravel the confidentiality of communication between attorney and client. The American people won in both cases.

Justice John Paul Stevens wrote the majority opinion for a court divided 6-3 in the line item veto case. Justice Stevens focuses solely on the presentment clause of the Constitution: "Every bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a law, be presented to the president of the United States; if he approves he shall sign it, but if not he shall return it, with objections to that House in which it shall have originated. . . ." Returning a bill is a veto.

Congress can only override a presidential veto by a two-thirds majority vote in each house.

Presidential powers

Justice Stevens notes that the act has allowed the president to amend laws passed by Congress by repealing portions of those laws. He writes: "There is no provision in the Constitution that authorizes the president to enact, to amend, or to repeal statutes."

Justice Stevens is deferential to Congress and the president in the opinion: ". . . we express no opinion about the wisdom of the procedures authorized by the Line Item Veto Act. . . .

"The text of the act was itself the product of much debate and deliberation in both Houses of Congress and that precise text was signed into law by the President. We do not lightly conclude that their action was unauthorized by the Constitution."

The high court found it unnecessary to address a second issue raised by the lower federal court when it found the act unconstitutional -- that the line item veto disrupts the balance of powers between the legislative and executive branch. Justice Stevens writes: ". . . our decision rests on the narrow ground that the procedure[s] authorized by the Line Item Veto Act are not authorized by the Constitution."

Justice Antonin Scalia wrote a stinging dissent in which he was joined by Justice Sandra Day O'Connor and in part by Justice Stephen Breyer. In short, Justice Scalia doesn't think that the line item veto law violates the presentment clause of the Constitution.

Justice Scalia is a master sophist; he plays word games. Under the act, after Congress has passed a bill, the president can sign it and then cancel portions. To Justice Scalia the chronology of events is pivotal, not the central meaning of the clause. He writes in his dissent: "It was only after the requirements of the Presentment Clause had been satisfied that the president exercised his authority" under the line item veto law.

An unconstitutional act

Fortunately, Justice Scalia is in the minority on this issue. Under any reading of the Constitution, the act is unconstitutional. A president's authority to amend or repeal a law is neither enumerated nor implied by the Constitution. Quite simply, such presidential powers do not exist -- unless Congress chooses to amend the Constitution to give presidents that power, and three-fourths of the state legislatures agree.

The current problem, however, is that the 82 spending items that Mr. Clinton canceled using the unconstitutional law are no longer canceled. New York City can now expect $2.5 billion in federal funds for its Medicaid program. And what was once a balanced budget with a surplus is no longer.

In the attorney-client confidentiality case, Mr. Clinton won. Back in July 1993, White House aide Vincent Foster Jr. met with his attorney James Hamilton for two hours regarding the controversy concerning the White House travel office and firing employees there. Mr. Hamilton took handwritten notes during the meeting. Nine days later Foster committed suicide.

Independent prosecutor Kenneth Starr wanted those notes to further his investigation into allegations that White House aides or first lady Hillary Rodham Clinton had lied under oath. Mr. Starr claimed that when Mr. Hamilton's client died, the confidentiality of the attorney-client privilege died with it. Fortunately for everyone, Mr. Starr lost.

Chief Justice William Rehnquist wrote the opinion for the 6-3 majority: "Knowing that communication will remain confidential even after death encourages the client to communicate fully and frankly with counsel. While the fear of disclosure, and the consequent withholding of information from counsel, may be reduced if disclosure is limited to posthumous disclosure in a criminal context, it seems unreasonable to assume that it vanishes altogether. Clients may be concerned about reputation, civil liability, or possible harm to friends or family. Posthumous disclosure of such communications may be as feared as disclosure during the client's lifetime."

Mr. Starr had argued that the attorney-client privilege should not prevent disclosure of confidential communications if the client has died and the information is relevant to a criminal procedure.

Not so, according to Justice Rehnquist. Only two lower court decisions support Mr. Starr's argument. Most assume the privilege.

The chief justice concludes, "the independent counsel has simply not made a sufficient showing to overturn the common law rule embodied in the prevailing case law."

An important privilege

Mr. Starr was looking only at his target and not the implications for society. This privilege is too significant to be eroded by the independent counsel's suspicions of wrongdoing.

Had the high court's decision gone the other way, think of the ambitious prosecuting attorneys who might feel free to rifle through communications between dead defendants and their attorneys fishing for accomplices and other crimes.

Think of what the erosion of this privilege might do to the weaker privilege of confidentiality between doctor and patient, or to the necessary confidentiality between priest and confessional. Then consider the likely impact on our society.

Charles Levendosky, editorial page editor of the Casper (Wyo.) Star-Tribune, has a national reputation for First Amendment commentary.

Pub Date: 6/30/98

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