Analysis: a constitutional fix on line-item veto?
(This report is part of a continuing series on the impact of Supreme Court rulings on later controversies or events. The Court decision at issue here is Clinton v. New York City, June 25, 1998, striking down the Line Item Veto Act that would have given the president power to “cancel in whole” items of spending enacted by Congress.)
(UPDATE: The following post was prepared before the White House released additional materials on the President’s proposal. Here is the text of the President’s message to Congress, including the text of the proposed bill, and here is the text of a brief summary of the line-item veto bill from the White House Office of Management and Budget.)
President Bush, renewing a fight that other presidents have waged and lost, on Monday sent to Congress a proposed bill to give himself and future occupants of the White House the authority to veto specific items of spending enacted by Congress. The actual text of the proposal was not immediately available, but Press Secretary Scott McClellan offered reasons why the White House believes the measure would satisfy the Constitution, and not suffer the same defeat as the version struck down in 1998. (See update, above, for a link to the text of the proposed legislation.)
Bush actually reopened this issue with one sentence in his State of the Union address on Jan. 31. He talked of the problem of cutting “special interest projects” out of federal budget bills, and said “we can tackle this problem together, if you pass the line-item veto.” (The transcript shows applause at that point.)
The principal defect that a 6-3 majority of the Supreme Court found in the earlier version was that it allowed the president to actually amend a law that had already been enacted. After the president had singled out the specific items of spending of which he disapproved, he was to send a special message to Congress within five days, listing each cancellation. Congress could override his veto by adopting a “disapproval bill” with a simple majority vote in both houses of Congress. The president could veto such a bill, presumably having the last word on the cancellation.
In nullifying that scheme, the Supreme Court said that, when Congress sends an enacted measure to the president, he must “either approve all the parts of a bill, or reject it in toto.” Justice John Paul Stevens’ opinion commented: “What has emerged in these cases from the president’s exercise of his statutory cancellation powers…are truncated versions of two bills that passed both house of Congress. They are not the product of the ‘finely wrought’ procedure that the Framers designed.” (Congress had not adopted a disapproval bill for the line items that President Clinton had vetoed.)
The Bush legislation, according to Press Secretary McClellan on Monday, will provide “a way forward that meets the constitutional issues that were raised when this was previously passed back in the ’90s, and the Supreme Court ruled on that one.”
He went on to explain that the new proposal would have the president send the vetoed line items “back to Congress for an up or down vote.” When asked to explain the difference in layman’s terms, here was McClellan’s answer: “The difference is that this will give Congress a final up or down vote. It will guarantee that Congress has an up or down vote. The President will look at spending bills, and he will be able to eliminate or reduce spending in those bills, and then package that together, send it back to Congress, and within 10 days Congress must act with an up or down vote on that package.”
This does not make clear what the formal character of spending bills would be when they are sent to the White House by Congress, and what, formally, the president would be doing in this process. Are the bills sent to the president final enactments? Would the president sign them into law, or not, before making his cuts? Would the measures simply be requests for presidential advice, item by item? And, when the president returns them to Congress with his suggested eliminations or reductions, would that be simply a presidential recommendation? If it were only a proposal for new legislation, why would Congress have to act within 10 days? And, overall, does Congress have the authority to alter the “finely wrought” process of which the Supreme Court spoke?
Other questions likely will emerge as the specifics of the proposal become clearer. If Congress were to embrace the president’s proposal, there surely would be a constitutional challenge to it. The Supreme Court’s membership has changed since 1998, of course, but would the new Court react differently, if the final legislation that emerges looks like what McClellan described?
Justice Stevens’ majority opinion nullifying the earlier version was supported in full by four Justices who remain on the Court — Ruth Bader Ginsburg, Anthony M. Kennedy, David H. Souter and Clarence Thomas. (The sixth vote was cast by the late Chief Justice, William H. Rehnquist.) Dissenting were two current members, Justices Stephen G. Breyer and Antonin Scalia (along with now-retired Justice Sandra Day O’Connor). Even if Chief Justice John G. Roberts, Jr., and Justice Samual A. Alito Jr. were to support such a new measure, perhaps that would still fall short of making a majority.
I have a short post here on this subject. This idea is a non-starter for the administration; not only are five of the Clinton majority still on the Court, and not only are the dissenters already one down (O’Connor) from an already losing total, but it seems to me that even if the administration is counting on a Stevens retirement and a friendly reception from the Bush appointments, I think they will still lose, because is far from clear that Scalia’s dissent in Clinton is a vote for what Bush has in mind. Congressional Quarterly’s Midday Update today suggested that the new language “forces Congress to cast a separate up-or-down vote on particular spending or tax items that he opposes within larger bills” – that is, instead of authority to “cancel” spending items, as Clinton dealt with, a pure, outright line-item veto: the authority to return a bill in part to the Congress. Now, with this in mind, re-read Our Hero’s dissent in in Clinton, in particular, it’s conclusion:
(Emphasis added). I don’t see how this can read be read other than as going out of its way to say that 2 U.S.C. § 691 is constitutional precisely because it is not a line item veto – suggesting, with heavy inference, that a statute that really was a line-item veto would fail Scalia’s test. Justices Scalia and Thomas split over Clinton; from the language of the Scalia dissent, I suspect that the divide between them actually turned not on whether the original understanding of the presentment clause (or any other) is violated by a line-item veto, but on whether or not they regarded the statute as a line-item veto in the first place. Indeed, the statement “[the statute] in fact is not a line-item veto and thus does not offend Art. I, §7” practically screams the corollary “…but if it was, then it would.”
Therefore, it seems to me, a statute that uncontroversially IS a line-item veto, which seems to be what Bush is proposing, might well even lose Scalia’s vote, making it meaningless both whether Stevens retires and which way new Justices might vote.
Comment by Simon — March 6, 2006 @ 8:53 pm
I disagree entirely with both Lyle and Simon. Bush’s proposed “line item veto” cannot seriously be considered a “veto” at all. Let me answer Lyle’s questions, and then respond to Simon, and then make my own comments on this curious legislation.
Are the bills sent to the president final enactments?
Of course they are! The “line item veto” in this case is merely a proposal for line-item repeals that is given expedited congressional consideration. Unless Congress approves the president’s changes, the disputed budget items have been duly enacted and are legally binding, and the president must release the appropriated monies.
Would the president sign them into law, or not, before making his cuts?
Yes, because he’s not technically making any “cuts”. Or vetoing anything. He’s proposing cuts, ex post facto.
Would the measures simply be requests for presidential advice, item by item?
No. They would be enacted into law if signed. Again, the president’s suggested eliminations are only suggestions.
And, when the president returns them to Congress with his suggested eliminations or reductions, would that be simply a presidential recommendation?
Yes.
If it were only a proposal for new legislation, why would Congress have to act within 10 days?
This is really the only difference between this poorly named “line item veto” and any other time the president proposes legislation. The purpose of the deadline is to pressure members of Congress into taking a stand on spending that has been branded by the president as “pork”. Otherwise they could simply let all the president’s recommendations die with little public scrutiny.
And, overall, does Congress have the authority to alter the “finely wrought” process of which the Supreme Court spoke?
I suppose it does. They did it with the process of closing military bases. And that is a much more radical change than this “line item veto” proposes.
Now Simon posits, on the premise that Bush’s new legislation is “a statute that uncontroversially IS a line-item veto”, that Scalia will find it unconstitutional. The premise is flat-out false. This is not a “veto” by any stretch of the imagination. It is merely a recommendation by the president, which Congress may accept or reject.
In fact, in Clinton v. City of New York, Scalia’s dissent suggested that only ‘problem’ with the Line Item Veto Act was that it contained all this misleading language defining “cancellations” as preventing certain budget items from “having legal force or effect”. That deceived the majority into thinking these were partial “vetoes” rather than simply the president “declining to spend” appropriated monies. After all, Scalia noted, the “cancellations” under the 1996 Act were made after the whole bill was signed and became law — and thus after the requirements of the Presentment Clause had been met.
He went on to say that, when authorized by Congress, the president does have the authority to decline to spend appropriated monies. The execution of the law is, after all, the president’s responsibility.
So Scalia said,
This was after he recited a litany of examples of presidents declining to spend appropriated money. Of course, the president is on the firmest legal footing when Congress has explicitly authorized him, under given circumstances, to decline to spend the amount that it had appropriated. (Which was indeed the case under the 1996 Act.)
So my first reaction, then, is: why didn’t they just craft a bill more like the 1996 Act that uses the language of “declining to spend” rather than the stuff about “cancellations” and preventing spending from “having legal force or effect”??
Second, the problem with this legislation is that it creates too few incentives for Congress to approve the president’s proposed cuts. Perhaps the standard practice in Congress will be voting down these proposals as a matter of course! With Ted Stevens’ recent trantrum when some wanted to nix his “bridge to nowhere”, it is easy to imagine that there could be collegial/peer pressure to approve pork and disapprove the president’s proposed cuts.
Third, they really should just pass a constitutional amendment. The last line-item veto — that required, essentially, a two-thirds vote to override a presidential “cancellation” — passed the Senate by 69-31 and the House by a similar margin. They should scrap this half-measure and go with the real thing. Amend the Constitution!
Comment by hyphen5 — March 8, 2006 @ 4:57 am
The way I see it, not having the line item veto is an unconstitutional abuse of Congress’ power.
Suppose Congress were to take all the laws which Congress planned to become the law and put them into one bill, which the President would sign or veto. He would then have the choice of signing the bill (and letting Congress have everything it wants) or vetoing the bill (and shutting down the government). Choice two would be wholly impractible and even violate the President’s oath to preserve, protect and defend the United States. In effect, Congress takes away the veto power by passing omnibus bills with wholly unrelated acts in them.
Granted, the Constitution does not define a “bill” and clearly puts lawmaking power primarily in the legislature. Another argument is that the contentious legislative process is enough of a procedural safeguard against these omnibus bills getting out of hand (an argument woefully disproven in modern times). A third argument is that President’s in the framers’ time used the veto power only when they considered a bill to be unconstitutional, evidence that it was the founder’s intent that the veto power be weak and subordinate to Congress.
However, the extent of veto power is a political question, which ought to be considered injusticible by the Court. What stake does the court have in how the President and Congress decide to define a “bill” or compromise the veto power?
Comment by Protagonist — March 10, 2006 @ 9:53 pm