This week the Supreme Court heard oral arguments in Clinton vs. City of New York, which deals with the 1996 Line-Item Veto Act. The high court will decide if the Act violates the constitutional separation of powers by transfering legislative authority to the executive branch.

Passed overwhelmingly by a Republican Congress and signed with much fanfare by a Democratic president, the Act empowered the president to cut specific "line items" from a spending or taxation bill within five days of signing the entire bill into law. And while most legal experts do not expect the Court to uphold the law, some believe the justices may not even decide the case on its constitutional merits.

According to a legal doctrine called "standing," a litigant cannot have a case tried simply on the basis of a hypothetical or prospective injury. The petitioner must show a concrete harm that the court can remedy. Although President Clinton has excised over $400 million from congressional spending bills since first applying the line-item veto last August, there is debate over whether or not the plaintiffs in this case (and its companion case, Rubin vs. Snake River Potato Growers) have actually been harmed by the Act.

New York City complained that a presidential rescission prevented the city and state from raising taxes on hospitals to attract federal Medicaid patients. The Idaho potato growers sued to restore a tax measure that would allow deferral of capital gains taxes if an agribusiness was sold to a farmers’ cooperative. But during oral argument this week, Justice Scalia declared it "astounding" that the groups involved in these cases are only indirectly affected by the Act. Only last June the Court threw out the first line-item veto case, when six members of Congress filed suit before the president actually exercised his line-item veto authority. Since August 1997, President Clinton used the line-item veto 82 times before it was struck down by a district court judge last February.

And so it is unlikely that the Supreme Court will address the constitutional issue at stake, especially when the crux of the dispute is the abstract principle of separation of powers and not a specific right of a citizen being jeopardized. The framers of the U.S. Constitution would not be pleased. They designed the Constitution to divide the powers of the federal government into separate branches to avoid an undue concentration of power--what the Federalist Papers called "the very definition of tyranny." The Founders thought elections an insufficient guarantee of freedom if government officers could readily combine their powers for self-interested ends. The solution? A constitution that gives each branch the means and incentive to exercise its respective powers independent of the other branches.

Instead of hearing that presidents "from Grant to Reagan" have sought the line-item veto, or that 43 governors already have it, or that deficits will finally meet their match, we should consider the implications of the Act for our freedom. If Congress can alter the way it presents bills to the president, without consulting the American people through the amendment process, then Congress elevates its own will above the people’s. Simply stated, a line-item veto granted by the Congress to the president by mere majority vote destroys the checks and balances built into the Constitution.

It also undermines legislative responsibility. Senators and representatives, who already have a number of ways of hiding their positions and votes on the day’s controversies, are now able to say to their constituents, "Look, I really wanted to use public monies to buy you all a new bridge, but that miserly Mr. President took it out of the bill. Sorry. By the way, vote for me this November. I tried my best!" Even Justice Ginsburg remarked that the Act shielded legislators from "political heat."

True debate and deliberation on public policy, which one should expect from the national legislature, thus becomes replaced by the empty politics of good intentions. This relieves legislators of the responsibility for defending their opinions before their constituents. But under a representative democracy, responsibility is a two-way street: our representatives must not only make decisions that stick, but do so in a public fashion so that Americans can praise or blame their actions in preparation for the next election.

For too long, Americans have permitted their national government to act on the basis of "good intentions" and mere efficiency, and not by virtue of powers granted by the Constitution. Let us hope the Court will not only hear the case, but decide it upon constitutional and not procedural grounds. Perhaps then the American people would see the danger of congressional overreach, and become more watchful over the actions of their representatives. For as Jefferson once wrote, if the people "become inattentive to the public affairs," the governors "shall all become wolves."

Lucas Morel is an Adjunct Fellow at the Ashbrook Center for Public Affairs at Ashland University.