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Twice in March, the United States Senate voted on momentous issues, but in neither case did the debate, inside the Senate or out, focus on the crucial question of whether the proposal would fundamentally alter the power relationships among the branches of government. Instead, the defeat of the balanced budget constitutional amendment was sealed by the refusal of its sponsors to guarantee protection for social security, and the line item veto was passed because it was seen as a means of eliminating pork in the federal budget. What was missing from most of the discussion was a recognition of the profound changes that both of these measures would make in our system of checks and balances.

Balancing a budget, even for the federal government, need not cause major shifts in power since Congress and the President could produce that result today, or at least within a few years, if they had the will to reduce spending and/or increase taxes. What was so dangerous in the balanced budget amendment was how its supporters were willing to get there.

Passing a constitutional amendment mandating a balanced budget might provide additional backbone for legislators who wanted to achieve that goal, but everyone recognized that something more was needed than simply telling Congress to vote each year for a budget that might or might not actually be in balance. One obvious enforcement mechanism would allow the federal courts to assure a balanced budget. For years, supporters of the amendment refused to say whether the courts would have any role in the process, recognizing that the absence of judicial review might make the amendment a toothless tiger, just as the War Powers Resolution is in controlling the use of American troops without congressional authorization. On the other hand, they correctly dreaded the notion that the federal courts would annually pass on the legitimacy of the federal budget, and then issue orders to the other branches if it was found to violate the Constitution. Eventually, in order to obtain the votes of Democratic Senators Sam Nunn and John Breaux, the sponsors agreed to eliminate all judicial review unless specifically authorized by statute.

Two other enforcement mechanisms remain, both of which involve significant losses of power by the majority in Congress. First and most far-reaching is the prohibition against increasing the debt ceiling unless three-fifths of both Houses of Congress concur. Since, as a practical if not a legal matter, the government cannot borrow the money it needs to finance its deficit without raising the debt ceiling, this requirement would cede to 41 percent of *either* Chamber the power to dictate spending cuts, and perhaps other non-budget concessions as well, as the price of permitting the government to continue to function. Virtually no one paid any attention to this massive shift of power, which would create a tyranny of the minority, particularly one whose primary goal was to reduce the size of government and lower federal taxes.

The other enforcement mechanism was made even more potent by the anti-judicial review amendment, yet it too has largely been overlooked. At least since the time of Richard Nixon, Presidents have wanted the authority not to spend money that Congress appropriated, either because they considered the projects to be wasteful or unwise, or because they wanted to be able to cut spending for broader economic purposes, such as to reduce inflation. However, Congress has regularly refused to grant Presidents such power, known as impoundment, and the courts have declined to find that the President has any inherent power to impound.

The balanced budget amendment would significantly boost the President's claim of a right to impound because now he could assert a "constitutional obligation" to bring the budget into balance, which gives him only two choices, cutting spending or raising taxes, and no President has claimed the power to do the latter, let alone asked for the right to do so. Indeed, the elimination of judicial review will further strengthen a presidential claim of power to impound since he would be able to argue that there are *no* other means to prevent a constitutional violation. And then, if someone were to challenge the President's authority, or the manner in which he had chosen to exercise it -- by cutting one program rather than another, or by failing to make across the board reductions, or by protecting, or not protecting, social security -- the President would counter with the prohibition on judicial review and urge that impoundment decisions are his alone to make.

If the balanced budget amendment that missed passing the Senate by one vote became law, it would radically alter the power over the federal budget through the restriction on increasing the debt ceiling and the use of presidential impoundment. Nonetheless, no one besides Senator Robert Byrd seemed to focus on these massive shifts, let alone sounded the alarm over them. In fact, fifteen Democratic Senators (including one who has since become a Republican) voted for the amendment, despite the virtual certainty that its operation will make it extremely difficult to enact future legislation of the kind that most Democrats support, even when they control a majority of both Houses and the presidency.

The same kind of power shift will take place, albeit to a lesser degree, if a line item veto, similar to that passed by each House, becomes law. Although there are some fairly significant differences between the two versions -- the House would allow the President to make selected spending reductions, while the Senate would require the President to accept an item or veto it entirely -- both bills would enable the President to get his way on individual spending decisions unless two- thirds of each House voted to override him. Of course, Presidents can veto spending bills now, but they have to give up what they like in exchange for getting rid of what they oppose. Under the line item veto, the President would be able to reduce, or selectively veto, disfavored items, but keep everything else. Whether that power would produce significant deficit reduction is highly debatable, but it would surely enable Presidents to eliminate specific projects or entire programs unless two-thirds of Congress voted to override his item veto.

It could be argued that the battle is simply over turf and that it does not matter to the American people where the power resides. Such a view would be acceptable to those who believe that government is the source of problems, not solutions, and that the country is better off if the federal government can act only if there is a supermajority in favor of an idea. While many Americans feel that way about some programs, it is surely not how most people would react if asked whether there should be social security, medicare, loans for college students, or hundreds of other programs that most Americans consider essential to their well-being. Yet when most of them were passed, they could not have commanded enough votes to fund them if it meant increasing the debt ceiling to do so. Perhaps the near unanimous Republican support for both measures can be explained by their belief that they and their supporters have most of what they need, that they will be able to hang onto the rest of it, and that they are so adverse to any form of taxation that they are willing to allow the less fortunate among us to fend for themselves. As repellant as many of us find that philosophy, it is at least understandable.

What is far more baffling is why so many Senate Democrats, especially those who profess concern for the underdogs, should support either of these proposals. Cynics might suggest that the seven Democrats who voted with the Republicans on both of them, or the 17 who were on board for one or the other, were simply voting what seemed expedient and likely to get them re-elected.

It also seems possible that some Members are so caught up in the politics of the matter that they never took time to reflect on the changes in the power relationships that would result if these measures become law. In a way, that possibility is even more disturbing because three members of the Judiciary Committee, who ought to be most concerned about these issues, supported both bills: Howell Heflin, Herbert Kohl, and ranking minority member Joe Biden. Moreover, three other Democratic members of that committee --Edward Kennedy, Dianne Feinstein, and Russ Feingold -- joined them in supporting the line item veto, as did a number of other Senators who could hardly be labelled as Republicans in Democratic cover. Only one Democrat on the Judiciary Committee, Patrick Leahy, voted no both times.

If the Senate Democrats are at fault for failing to raise these issues of separation of powers and checks and balances, President Clinton also must bear considerable responsibility for not focusing the debate on these vital concerns. He did oppose the balanced budget amendment, but in a tepid fashion, and he never argued against it on the ground that, by turning over the reins to a minority of either House of Congress, it created a real likelihood that the government would be paralyzed.

But even more short-sighted is the President's strong support for the line item veto, which can only be seen as a maneuver intended to gain short-term political points by vetoing a few particularly fat slices of pork and thus create the false illusion of doing something about the deficit. Assuming if it does some good, it is much more likely to cause long-term damage to programs that the President cares about deeply because someday, perhaps in 1997, but surely 4 years later, someone else will occupy the White House. If recent history is any guide, it is likely to be a Republican, probably a fairly conservative one at that. In that event is there any doubt that among the first items that would be vetoed would be the National Service Program, which President Clinton championed, and the Legal Services Corporation, which Mrs. Clinton once headed? And when that and other similarly vulnerable and critical programs are eliminated, the American people will know precisely who is responsible for making their demise much easier.Of course, every chief executive officer, whether of a government, a corporation, or a nonprofit, would like more power to do what he or she thinks best. Fortunately, the Founding Fathers wrote our Constitution to guard against such concentrations of power, especially before a bill becomes a law, by carefully circumscribing separate roles for Congress and the President, so that neither branch could gain the decidedly upper hand. It is difficult to understand why Congress should be so willing to turn over its duties to the President, except as part of a plan to prevent the federal government from carrying out its responsibilities to the least fortunate among us. Because the line item veto is in the Constitution, as it is for the 43 states, including Arkansas, that have it, it is quite possible that the courts will strike it down and eliminate the problem that way.

It is normally not the job of the President to look out for congressional prerogatives, but what is at stake is not just the power of Congress, but the long-term well-being of the American people. Enacting the line-item veto will constitute a major shift in fiscal power to the President which will be almost impossible to undue because any President will almost certainly veto any attempt to repeal it before it expires (if an expiration date makes it into the final bill). In his eagerness to solve the immediate problem of an unbalanced budget and to bolster his political standing, President Clinton seems to have lost sight of what this change will do to our system of checks and balances. Many of us had hoped for more from someone who taught constitutional law and served as his state's attorney general.

A former high ranking government official once wrote, "in considering a constitutional system and placement of power in the system, you should begin by imagining that your bitterest enemies might control it.... Imagining my strongest opponents in that branch of government where I would vest the most power makes me very, very cautious." That very wise advice was not written by a liberal Democrat or an isolated academic, but none other that Jeanne Kirkpatrick, Ambassador to the United Nations under President Reagan.

Enactment of a balanced budget amendment or passage of the line item veto might help bring our fiscal house in order, although there are many who disagree. But there can be no reasonable basis for disputing the profound impact that both of them would have on the current balances in our political processes. It may be that such changes are necessary, but before such crucial alterations in the structure of our government are made, there should be a serious debate on the issues, which clearly has not taken place so far. It is up to those who care about our constitutional system to speak out now before it is too late.

Mr. Morrison, an attorney with the Washington D.C. Public Citizen Litigation Group, has litigated and written extensively on issues of separation of powers.

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