IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



Civil Action No. 97-_____

SEN. ROBERT C. BYRD

311 Hart Senate Office Building

Washington, DC 20510

SEN. MARK O. HATFIELD

711 Hart Senate Office Building

Washington, DC 20510

SEN. CARL LEVIN

459 Russell Senate Office Building

Washington, DC 20510

SEN. DANIEL PATRICK MOYNIHAN

464 Russell Senate Office Building

Washington, DC 20510

REP. DAVID E. SKAGGS

1124 Longworth House

Office Building

Washington, DC 20510

REP. HENRY A. WAXMAN

2204 Rayburn House Office Building

Washington, DC 20510

Plaintiffs,

v.

FRANKLIN D. RAINES,

Director of the Office of Management and Budget

Room 252

Old Executive Office Building

Washington, DC 20503

ROBERT E. RUBIN,

Secretary of the Treasury

15th Street and Pennsylvania Avenue

Washington, DC 20220

Defendants.



COMPLAINT FOR DECLARATORY RELIEF

1. On April 9, 1996, President Clinton signed into law Pub. L. No. 104-130, 110 Stat. 1200 ("the Act"). The Act, which refers to itself as the Line Item Veto Act, became effective on January 1, 1997. The Act gives the President the authority to "cancel in whole," at any time up to five days (excluding Sundays) after signing a bill into law, any dollar amount of appropriation, any item of new direct spending, or any limited tax benefit contained in the bill. In this action, plaintiffs, who are six Members of Congress, assert that the Act confers on the President powers of veto, revision, and repeal of federal law that violate Article I of the Constitution.

Jurisdiction and Venue

2. This Court has subject matter jurisdiction pursuant to 2 U.S.C. Sec. 692(a)(1) and 28 U.S.C. Sec. 1331.

3. This Court may enter a declaratory judgment under 2 U.S.C. Sec. 692(a)(1) and 28 U.S.C. Sec. 2201.

4. Venue in this Court is proper pursuant to 2 U.S.C. Sec. 692(a)(1).

Parties

5. Plaintiff Robert C. Byrd is a Senator from the State of West Virginia and a duly elected member of the 105th Congress. Senator Byrd's current term of service will expire on January 3, 2001.

6. Plaintiff Mark O. Hatfield is a Senator from the State of Oregon. Senator Hatfield has represented the State of Oregon for five consecutive terms, beginning in 1967. His term of service will expire, and he will retire from the Senate, at noon, January 3, 1997.

7. Plaintiff Carl Levin is a Senator from the State of Michigan and a duly elected member of the 105th Congress. Senator Levin's current term of service will expire on January 3, 2003.

8. Plaintiff Daniel Patrick Moynihan is a Senator from the State of New York and a duly elected member of the 105th Congress. Senator Moynihan's current term of service will expire on January 3, 2001.

9. Plaintiff David E. Skaggs is a Representative from the Second Congressional District of Colorado and a duly elected member of the 105th Congress.

10. Plaintiff Henry A. Waxman is a Representative from the Twenty-Ninth Congressional District of California and a duly elected member of the 105th Congress.

11. Defendant Franklin D. Raines is the Director of the Office of Management and Budget, sued in his official capacity. In his official capacity, defendant Raines is responsible for executing the President's cancellations of budgetary and spending authority under the Act.

12. Defendant Robert E. Rubin is the Secretary of the Treasury, sued in his official capacity. In his official capacity, defendant Rubin is responsible for executing the President's cancellations of "limited tax benefits" under the Act and for executing and enforcing the tax laws of the United States

The Line Item Veto Act

13. The Act provides that the President may, immediately, or within five calendar days (excluding Sundays), after signing a bill into law pursuant to Article I, section 7, of the Constitution, "cancel" any dollar amount of "discretionary budget authority" (i.e., appropriations), any item of new direct spending, or any "limited tax benefit" contained in that law. The Act defines "cancel" to mean "rescind" in the case of an appropriation, and "prevent . . . from having legal force or effect" in all other cases. With respect to appropriations, the Act permits the President to cancel any amount stated in the law itself and also any amount separately stated in any table, chart, or explanatory text in the statement of managers or in any governing committee report accompanying the law. The Act requires that the President determine that the cancellation will reduce the Federal budget deficit, will not impair government functions he deems "essential," and will not "harm the national interest," but the Act does not require any other determination.

Injuries

14. The Act directly and concretely injures the plaintiffs, in their official capacities, by (a) altering the legal and practical effect of all votes they may cast on bills containing such separately vetoable items, (b) divesting the plaintiffs of their constitutional role in the repeal of legislation, and (c) altering the constitutional balance of powers between the Legislative and Executive Branches, both with respect to measures containing separately vetoable items and with respect to other matters coming before Congress.

Claim for Relief

15. The Act grants the President the power to cause some parts of a bill that has passed both Houses of Congress and been signed by him to be law, while canceling other parts of the bill and returning them to Congress. The Act grants this authority by permitting the President to sign a bill and then instantly (or within 5 days) and unilaterally negate the legal effect of his signature with respect to some parts of the bill by signing and transmitting a message to the Congress canceling those parts. Whether the Act is viewed as granting the President a unilateral power of line-item revision of bills that have been presented for his signature, or as granting him a unilateral power to repeal portions of duly enacted laws, the Act grants powers to the President that contravene the constitutional process for making federal law.

16. Article I of the Constitution provides a "single, finely wrought and exhaustively considered procedure," Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 951 (1983), for making or changing federal law. It vests all federal legislative powers in a Congress comprised of two Houses. It requires that any bill must pass by majority vote in both the House and the Senate before it may become a law. The Presentment Clause (Art. I, sec. 7, cl. 2) then requires that a bill, before it becomes a law, shall be presented to the President, and it gives the President only three choices with respect to a bill presented to him: to "approve" the whole bill and sign it; to "return" (i.e., veto) the whole bill; or to allow the whole bill to become law without his signature. The requirement of bicameral passage and presentment to the President applies to the repeal, as well as enactment or amendment, of provisions of law.

17. The Act violates Article I. The Act unconstitutionally expands the President's power, with respect to certain bills presented to him, by authorizing him to "approve" a bill and sign it into law and, from an instant up to five days later, disapprove and "return" parts of the bill, so that the parts of the bill disapproved by the President do not have the force and effect of law. The Act also violates the requirements of bicameral passage and presentment by granting to the President, acting alone, the authority to "cancel" and thus repeal provisions of federal law.

Prayer for Relief

Wherefore plaintiffs pray

(1) For a declaratory judgment that the Act is unconstitutional and that any cancellations under the Act are invalid.

(2) For reimbursement of their costs in this action, and for such other relief as the Court may deem appropriate.

Respectfully submitted,

__________________

Charles J. Cooper

(DC Bar No. 248070)

Michael A. Carvin

(DC Bar No. 366784)

David Thompson

(DC Bar No. 450503)

COOPER AND CARVIN

2000 K Street, N.W.

Suite 401

Washington, DC 20006

(202) 822-8950

_________________

Michael Davidson

(DC Bar No. 449007)

3753 McKinley Street, N.W.

Washington, DC 20015

(202) 362-4885

___________________

Lloyd N. Cutler

(DC Bar No. 082321)

Louis R. Cohen

(DC Bar No. 098079)

Lawrence A. Kasten

(DC Bar No. 443307)

WILMER, CUTLER & PICKERING

2445 M Street, N.W.

Washington, DC 20037

(202) 663-6000

___________________

Alan B. Morrison

(DC Bar No. 073114)

Colette G. Matzzie

(DC Bar. No. 451230)

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street, N.W.

Washington, DC 20009

(202) 588-1000

Counsel for Plaintiffs

Date: January 2, 1997