Chicago Tribune (CT) - SATURDAY, February 10, 1996 Edition: NORTH SPORTS FINAL Section: NEWS Page: 1 Word Count: 927
William Neikirk and Jan Crawford Greenburg, Washington Bureau.

In an unusual move to undercut the law, he directed Atty. Gen. Janet Reno not to defend the constitutionality of the AIDS provision in the courts. But administration officials conceded they will be compelled to enforce the measure unless a court rules against it.

White House counsel Jack Quinn called the AIDS provision "abhorrent and offensive" and said the president is calling on Congress to repeal it as soon as possible. Such a move, by members of both parties, is already under way.

The White House called the $264.7 billion defense authorization bill for fiscal 1996, which Clinton is to sign Saturday, important to national security.

Vetoing the legislation would have put the president on a collision course with Congress, killed a military pay raise and new housing allowances and perhaps would hamper peacekeeping efforts in Bosnia.

To bolster its case, the White House released a letter by Los Angeles Laker basketball star Earvin "Magic" Johnson to House Speaker Newt Gingrich (R-Ga.) and Senate Majority Leader Bob Dole (R-Kan.) calling the provision a "terrible injustice" and asking for its repeal.

Quinn said the military has six months before 1,049 HIV-positive members of the military would have to be discharged. Under the law, a service member must be out of uniform within six months of testing positive for HIV, the virus that causes AIDS.

"No one will be separated until the last possible moment," he said. Clinton also ordered the Pentagon and the Department of Veteran's Affairs to take all steps necessary to ensure that full benefits are paid to any member of the military who is discharged.

The administration said it expected a suit to be filed promptly by an affected member of the military and speculated that enforcement of the provision is likely to be barred by the courts pending a final legal interpretation.

Quinn cited one instance--in 1943, involving President Franklin D. Roosevelt--in which a president refused to defend the constitutionality of a law in court.

That law denied pay for certain members of his administration, and it was struck down by the courts. Quinn said there were other cases, but legal experts said such instances have been rare.

If the executive branch does not defend the law in the courts, it would be up to Congress to put up a legal fight in its behalf, Quinn said, adding there was precedent for this.

Legal experts said Clinton's order was highly unusual because the president, under the Constitution, has an obligation to "take care that the laws be faithfully executed."

Only in truly extraordinary cases, such as where a law is clearly unconstitutional, should a president instruct the attorney general not to defend the law, they said.

And even there, legal experts said, a better approach is simply to veto the legislation. But the difficulty that modern presidents have is that appropriations get lumped together with matters such as this one.

"But you have to recognize what he's attempting to do: He is, in essence, creating a line-item veto, a de facto line-item veto by his direction to the attorney general," said Douglas Kmiec, a professor at the University of Notre Dame Law School. "It is an extraordinary exercise for him to do that."

Kmiec said attorneys general have refused to defend a law in court if it was clearly unconstitutional or if it usurped the authority of the executive branch.

But, he said, that's not the case here. What's more, in those instances, the president did not order them to refuse to defend the law in court.

"One of the things that makes this doubly extraordinary is that, while this is a highly sensitive political issue, it would be hard to make the case that it is a constitutionally clear or settled issue," Kmiec said.

Quinn disagreed that Clinton is exercising a line-item veto without authority, saying that the administration is going to enforce the law precisely because it wants a court test. He said no one can discriminate against a group without a rational or valid basis, adding there is none in this case.

Before Clinton's decision, gay rights groups and civil libertarians had urged a veto of the defense authorization bill containing the AIDS amendment, which was sponsored by Rep. Robert Dornan (R-Calif.).

Dornan said in a statement Friday that he stands by the provision.

"We welcome the public debate he is generating," Dornan said of the president. "Even so, Clinton's allies will lose in the court and they will lose in Congress."

The American Civil Liberties Union wrote the president: "There is simply no way to justify discharging capable individuals who have HIV. Fairness demands that you not bargain away the rights of these patriotic Americans. . . . Stand on principle, send this bill back to Congress."

In denouncing the AIDS provision and saying he would not defend its constitutionality in court, Clinton hoped to deflect such criticism.

In a joint statement, Defense Secretary William Perry and Joint Chiefs of Staff Chairman John Shalikashvili called the AIDS provision "unwarranted and unwise."

They said there are service members who have diseases that make them non-deployable, but who can still serve in the military.

CAPTION: PHOTO: Before President Clinton's decision, gay rights groups and civil libertarians urged a veto of the bill with the AIDS amendment. Reuters photo.

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