"Unconstitutional"

Does the Gramm-Rudman Act violate the Constitution? Oklahoma Democratic Congressman Mike Synar raised that question hours after President Reagan signed the budget-balancing bill into law last December, in a suit joined by eleven Representatives of both parties. Last Friday a panel of three federal judges--Antonin Scalia, a staunch conservative; Norma Johnson, a liberal; and Oliver Gasch, moderately conservative--gave a unanimous answer: one key provision does breach the principle that Legislative and Executive powers be kept separate. "Therefore the automatic deficit reduction process . . . cannot be implemented."

The case will immediately be appealed to the Supreme Court, which may decide it as early as next month. The judges, sitting as a special panel of Washington Federal District Court, declared that until then their ruling will not take effect. Accordingly, the first round of $11.7 billion in cuts decreed by Gramm-Rudman will take place on March 1. Sponsors of the law predicted that they would eventually prevail, but Constitutional Scholar Laurance Tribe asserted: "I think the Supreme Court will ultimately strike down the law."

Gramm-Rudman sets up a series of targets for reducing the federal deficit to zero by 1991. If Congress and the President cannot meet those targets, automatic cuts in about half the budget go into effect. The Comptroller General is to draw up the list of exactly how much must be cut and clarify any ambiguities about just which agencies would be affected. Synar's suit raised two questions: Can Congress lawfully delegate its power of the purse at all? And can it confer that much authority on the Comptroller General?

& Yes and no, said the judges. The delegation as such is lawful, but only a member of the Executive Branch can be directed to carry out a law that Congress enacts. The Comptroller General "cannot in any proper sense be characterized as an arm or eye of the Executive," even though he is appointed by the President; among other reasons, he can be fired by Congress. "It may seem odd" to base so momentous a decision on such a "relative technicality," the judges conceded, but the separation of Legislative and Executive powers "consists precisely of a series of technical provisions that are more . . . important to liberty than superficially appears."

If the Supreme Court agrees, what then? Congress wrote a fallback provision into the act: spending cuts sufficient to meet the deficit targets would be calculated and voted into effect by a joint resolution of Congress, subject to presidential veto. The big catch: it was precisely the inability of President and Congress to agree on any plan that would dramatically reduce deficits that drove them to support Gramm-Rudman in the first place.