Analysis: a constitutional fix on line-item veto?
on Mar 6, 2006 at 10:36 pm
(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.
