Has Congress discovered an easier way to amend the Constitution? In its final hours, the lame-duck Congress has sent President Carter an innocent-sounding but potentially far-reaching rider on a Justice Department appropriation bill. The rider denies funds for any effort the department might want to make to enforce busing to achieve school desegregation.
In the emotional issue, big majorities in both houses of Congress registered the belief that court-ordered busing to integrate schools has gone too far. But does Congress have the power remove federal courts from controversial racial integration and civil rights cases? The government pays the expenses of federal courts; therefore, can Congress decide which cases the Justice Department may bring?
The 96th Congress thus dropped an extraordinarily complex and far-reaching choice into President Carter's lap in the final weeks of his incumbency, leaving him with this dilemma:
Should he sign the $9.1 billion appropriation bill, carrying the rider which he opposes (but which President-elect Ronald Reagan tentatively approves), and allow the precedent of possible Constitution-amending through routine legislation?
Or should he veto the appropriation carrying the rider that Attorney General Benjamin R. Civiletti criticizes, leaving the attorney general's Justice Department operating on temporary funds and still facing the possibility of Congress overriding his veto by a two-thirds vote in both houses?
Mr. Carter has vetoed few bills. President Nixon in 5 1/2 years vetoed 43 bills sent to him by a Democratic Congress; of these, seven were overridden. President Ford vetoed 48 bills, with 12 overridden. Carter, up to the antibusing measure, had vetoed 25 bills with only two overridden. He has worked with two congresses controlled by his own party.
With Ronald Reagan elected and a conservative wind blowing, the lame-duck Congress has grabbed the last moment to express deep feelings. It has attempted to take sharp action to limit court-ordered school busing. The rider was approved by the House Nov. 21, by 240 to 59; the Senate approved it Dec. 3 by voice vote without a roll call.
The constitutional issue of congressional "amendment by indirection" goes far back. The US Constitution declares in Article III that "the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish." Some consider Congress has loose powers to intervene.
In 1867, William McCardle, a Mississippi editor, was jailed for denouncing Northern carpet-bagging. Rather than let him appeal his imprisonment to the Supreme Court, Congress, in the punitive mood of the Reconstruction, passed a law saying that the nation's highest court could not review habeas corpusm cases. Congress, in effect, amended the Constitution by indirection and left McCardle in jail.
Attorney General Civiletti, in his argument in favor of a veto, said, "We're as sensitive as anyone to the difficulties of busing." Conservative Southern Sen. Jesse Helms (R) of North Carolina urged the rider to end the "demonstrable folly" of busing for racial balance. Sen. Lowell P. Weicker Jr. (R) Connecticut , however, proposed different language, to "send a message about how Congress feels about busing" but to protect the measure from constitutional challenge.
Carter got the challenge from Congress in words barring the Justice Department from using the appropriation "to bring any sort of action to require directly or indirectly the transportation of any student to a school other than the school which is nearest the student's home, except for a student requiring special education as a result of being mentally or physically handicapped."
Such language practically ensures a constitutional test, it is believed. The Supreme Court ordered desegregation in Brown v. Board of Education in 1954, and busing was devised in some areas of racial balance. About half of all America's public school students are transported by buses, but of these only 3 percent ride a bus for the purpose of desegregation. In the latter cases the courts have ordered busing, in general, after a finding that local officials have intentionally segregated schools in violation of the 14th Amendment.
Some constitutional lawyers who oppose busing dislike the congressional remedy. Robert Bork, solicitor general in the Nixon and Ford administrations and now at Yale University, says he feels the proposed ban may interfere in the Presidnet's oath to execute the laws faithfully.