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?

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,

The short of the matter is this: Had the Line Item Veto Act authorized the President to “decline to spend” any item of spending contained in the Balanced Budget Act of 1997, there is not the slightest doubt that authorization would have been constitutional.

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!

The President’s action [which 2 U.S.C. § 691] authorizes in fact is not a line-item veto and thus does not offend Art. I, §7; and insofar as the substance of that action is concerned, it is no different from what Congress has permitted the President to do since the formation of the Union

(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.