Centerfield: Bush proposes line item veto act

March 07, 2006

Bush proposes line item veto act - what's changed?

So, the President who has never vetoed any bill, let alone a spending bill, wants to have the power to (not) veto parts of bills, presumably to supplement his power to (not) veto whole bills.

There is broad bipartisan agreement that the line-item veto is a pretty good idea; the last time it was proposed, it was given to a Democratic President by a Republican Congress. Apparently:

The proposal is not technically a "veto" under the Constitution, because it doesn't require a two-thirds vote to overturn it. Under Mr. Bush's plan, the president could cull items from a bill and send the cut items back in a rescission package to Congress, which would have 10 days to vote on the whole package. The president could eliminate targeted tax cuts as well as spending.

The proposal even moved Rep. Pence (R-Ind.) to observe "To see [Bush] putting the full weight of his office behind a specific proposal to create a constitutional line-item veto is thrilling to those of us who know when it comes to federal spending, it's not so much bad people as bad process." That's an interesting choice of words on Representative Pence's part, because it is, of course, very specifically process that is at issue here. Specifically, this process:

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law.

U.S. Const., Art. I, §7, Cl. 2. Expressio unius est exclusio alterius; this is the procedure by which bills become law, it is Constitutionally mandated, and it says nothing about a President "send[ing] the cut items back in a rescission package to Congress". For precisely that reason, when that Republican Congress gave a Democratic President a quasi-line-item veto a decade ago, the Supreme Court struck it down 6-3 in Clinton v. City of New York, 524 U.S. 417 (1998); in the majority were both the late Chief Justice and Justice Thomas, and in the minority, Justice O'Connor. Five members of the Clinton majority are still on the Court.

The President says that his bill "satisfies the constitutional concerns that sunk the last version a decade ago." Did he read it? The law at issue in Clinton - 2 U.S.C. §691 (hereinafter §691):

empower[ed] the President to cancel an item of new direct spending . . . Thus, in both legal and practical effect, the presidential actions at issue have amended two Acts of Congress by repealing a portion of each. Statutory repeals must conform with Art. I [and] there is no constitutional authorization for the President to amend or repeal."

(Clinton, supra at 438). This new version is not only not as like to succeed, it is less so: arguably, §691 permits the President to exercise the discretionary authority of the executive branch in choosing to spend or not spend Congressional appropriations, hence, that it is not a "pure" line-item veto (not that this argument saved it, of course). The administration contends that the Bush Bill is also not a "pure" line-item veto, although it is hard to imagine what they would consider to be such; but where a case could be made for §691, this new version explicitly violates the terms of the presentment clause: recall that the presentment clause requires the President to return the bill (you'd think that supporters of the unitary executive would appreciate the significance of the definite article) to Congress, and that they may then pass it with a two thirds majority, while the Bush Bill would empower the President to return part of a bill to Congress, to be re-passed by a simple majority. As Justice Kennedy's concurrence notes, "As Justice Kennedy's concurrence notes, it is inadequate justification "to say that Congress surrendered its authority by its own hand; nor does it suffice to point out that a new statute, signed by the President or enacted over his veto, could restore to Congress the power it now seeks to relinquish . . . That a congressional cession of power is voluntary does not make it innocuous" (Clinton, supra at 451) (Kennedy, concurring).

The news gets worse for the Administration. I mentioned before that Justice Thomas was in the Clinton majority, but what of Justice Scalia? He dissented, as is his way; but in light of the administration's proposals, that dissent bears closer inspection. The dissent concludes:

The President’s action [which §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

(Clinton, supra at 469) (Scalia, dissenting) (emphasis added). I don't see how this can read be read other than as going out of its way to say that §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 - such as that proposed by President Bush - 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."

In sum, this proposal is going nowhere, and is in any case unnecessary. The President already has authority to "strip special spending and earmarks out of a bill, and then send them back to Congress for an up-or-down vote" - if he does not like specific parts of a bill, "he shall return it, with his objections to that House in which it shall have originated." the problem isn't a lack of authority, it's a lack of will, and this non-starter is a smokescreen for a President who likes to talk big about what he wants Congress to do, but in the end, has not once demonstrated the nerve to use the primary tool of the Presidency against Congress, even against bills he admits to believing to be unconstitutional.

Posted by Simon at March 7, 2006 09:16 AM

Comments

If the president wants it, and congress wants it, it should IMO be easy enough to get it in place. All congress would have to do is enact a process where they give a bill a conditional/preliminary approval that doesn't count as actual approval, and send that conditionally but not actually approved bill to the President to review. Then the congress would be sending the bill to the President not for a sign/veto decision, but for feedback. This vote would be a vote that said "we like this bill and this it's early done, but we'd like some feedback from the president. Congress couyld choose to do thias at it's discretion, or enact it as only for spending bills, or whatever. They wouldn't even be ceding any power, because they'd retain the option not seek this feedback, and becuase they'd retain the option to send any bill directly for a sign/veto decision by the President.

If all of this process occurs prior to actual congressional approval that results in a sign/veto bill, then there is no actual cancelling by the President because the bill hasn't been actually approved.

Posted by: bk at March 7, 2006 10:46 AM

Alternatively, since it's such a popular idea, they could just pass a Constitutional Amendment... radical idea, I know.

Posted by: PatHMV at March 7, 2006 11:04 AM

Pat,
It seems unlikely that they cold get it through Congress, because passing an amendment would foreclose Congress' ability to change its mind - which, I suspect, will happen the next time a Democratic Congress faces a veto-happy Republican President.

I suspect that there are several Constitutional amendments which would be ratified inside of a month if they could be gotten through Congress - term limits, balanced budgets, line-item veto - but that will (and repeatedly have) stalled because the GOP has become an entrenched majority, the Democrats have never really shed the belief that they are a temporarily displaced entrenched majority, and such amendments are a direct cession of power from any Congressional majority.

Posted by: Simon at March 7, 2006 11:10 AM

Brian,
I really don't see that working. What is supposed to happen - the House sends its version to the White House, the Senate sends their version, and then the White House sends its version to the conference?

Posted by: Simon at March 7, 2006 11:11 AM

Amendment would be the best option. However, I doubt that you could get 2/3's of teh House and Senate to vote for this. Too many would worry about their projects getting caught. If it could get past that hurdle, I would expect ratification within two or three years from the states. Only reason it would take so long is that some states having waiting periods that require elections and other weird things before voting on ratification of an amendment. So, an amendment would never be ratified before Bush is out of office.

Of course, I would still like to see Bush actually use a veto for something. There have been plenty of vetoable bills in the last five years.

Posted by: Jim M at March 7, 2006 11:13 AM

Simon, why couldn't it happen post-reconciliation? Is it the rule that post-reconciliation the only thing that can happen is a vote to approve or not approve?

Posted by: bk at March 7, 2006 12:32 PM

Of course, I would still like to see Bush actually use a veto for something.

I don't really mind if he never uses it, I just don't want him to accept the consequences of that. There is a meme which says "if the President doesn't use his veto power, he must be doing something wrong," and I think tht's actually pretty far from the mark - when a President's party controls both chambers of Congress and party discipline is good, the bills that would otherwise be vetoed simply never make it to his desk; they die in Congress. Nor do I think there's anything inherently wrong with a desire to make the most of what's presented; I think Bush tends to say to himself, "well, there's stuff I don't like in this bill, but on the whole it's pretty good, so I'm just going to bite my lip and defer to Congress" - that's commendable, in its own way. But what I do think is indefensible is failing to veto a bill he believes is not simply unwise, but unconstitutional - it is his duty to veto such a bill. If Bush genuinely believed that the McCain amendment was unconstitutional, I would certainly disagree with him, but I would say it was his duty to veto it. Likewise, BCRA. And to constantly refuse to veto bills and then propose an unconstitutional mechanism to veto them in part is just silly. Posted by: Simon at March 7, 2006 12:36 PM

Simon, on what do you base your contention that it's the president's duty to veto a bill he thinks is unconstitutional? Is it based only on the fact that he's sworn to uphold the constitution, or is there something else?

Seems to me most of the judging about constitutionality falls to SCOTUS. So if the Prsident is going to make this judgement, he only do so if he's pretty sure, right?

So if I'm the President, maybe I said " I thought he bill was unconsitutional when I signed it" then maybe what I really meant was "It seemed unconstitutional to me, but I'm not expert, and I wasn't really sure, Given that the bill seemed to accomplish something good, I felt comfortable signing it and leaving the judgement about constituionality to the the accepted experts."

In other words, I'm asking you this. If the President feels less than sure about the unconstitutionality, it's reasonable for him to defer, right? It's not his duty to come to a decision in cases where there's doubt, and good arguments can be made, right?

But if he's pretty sure, I agree that in that case, it IS his duty.

Posted by: bk at March 7, 2006 12:57 PM

Brian,
So you're saying the process would go like this: the Senate and the House pass their respective versions, it goes to conference, then from conference to the President, then back to the House and the Senate? At that point, is the new bill (as it very likely will be) subject to amendment? If so, it will go back to conference, back to the President, and so on, ad nauseum. The result would likely cut the throat of the legislative process, even if it were constitutional.

And I still say that it is not constitutional. If that is where the President gets involved, I would still say that violates the presentment clause; the legislative power is granted exclusively to Congress, with the exception that the finished product must be vetoed or signed by the President. What (I think) you're proposing improperly injects the President into the lawmaking process by giving him the power of a legislator to propose amendments. True, the President can reccomend legislation to Congress, Art. II §3, but he cannot initiate or demand legislation, and in my view, the entire scope of his participation in the legislative process is necessarily and fully delineated in Art. I §7.

Posted by: Simon at March 7, 2006 01:07 PM

Brian, the President is sworn to uphold the Constitution of the United States, just as is Congress and the Supreme Court. They are all co-equal branches of government. Both the President and each and every member of Congress have a constitutional duty to vote against or veto legislation which they believe to be unconstitutional.

I'm too busy to do the research right now, but I'm pretty sure there have been several Supreme Court cases which uphold the President's right and duty to refuse to enforce unconstitutional laws.

Now, how sure he's got to be about its unconstitutionality is a matter of discretion to be determined by each holder of each office involved. But as a principle, there is no question that the primary obligation is to the Constitution, and there is an affirmative duty on each branch of government to obey the Constitution even in defiance of an act of Congress.

The mutual respect which each branch of government is supposed to give to the others does require that this duty not be exercised at the drop of a hat. The Supreme Court, for example, always begins with a strong presumption that an Act of Congress is constitutional. Likewise, so should the President. But if he feels the strong weight of analysis is on the side of unconstitutionality, then he is well within his rights to decline to enforce it, unless and until ordered to do so by a Court. And in the exercise of his veto authority, he can very legitimately refuse to sign a legislation just because he thinks it would raise too many thorny constitutional issues.

Posted by: PatHMV at March 7, 2006 01:13 PM

Brian:

[O]n what do you base your contention that it's the president's duty to veto a bill he thinks is unconstitutional? Is it based only on the fact that he's sworn to uphold the constitution, or is there something else? Seems to me most of the judging about constitutionality falls to SCOTUS.

Basically, yes: the President should veto an unconstitutional law. Now, how s/he determines whether it is unconstitutional depends: you're right that ultimately the responsibility falls on the Supreme Court, so, for example, had the Supreme Court struck down the Solomon Amendment yesterday as being unconstitutional, and Congress reacted by re-passing the exact same law, the President is duty-bound to veto it. However, in the absence of a Supreme Court ruling - for example, when the President was presented with BCRA - he must exercise his independent judgement of whether the legislation is constitutional, just as much (if not more so) than whether it is expedient. The Presidential veto was explicitly contemplated as a check on a Congress the Framers believed would attempt to aggrandize its own power.

Posted by: Simon at March 7, 2006 01:29 PM

Brian-
I forgot to add to the end of that last comment that I agree that where there is no applicable Supreme Court precedent, and where the President merely has doubts, I certainly think it's reasonable - not required, but certainly reasonable - for a President to defer to Congress.

Posted by: Simon at March 7, 2006 01:35 PM

If my suggestion were to implemented, I think it would make sense if the possibility of ad nauseum review were blunted. That's why I suggested that this could be done at congress's discretion. IOW, they could skip it if they wanted, or make it mandatory only for spending bills, but proscribed as a 1 timer.

Post-reconciliation, it could go to the president for review, and he could line out what he wanted. Then congress, or each chamber thereof, could vote to accept as is, sending it back, or they could vote for further amendments. If necessary, there would be a 2nd reconciliation, but then it would go to the President for an up or down. There's a way to do it to eliminate the possibility that it would add endless steps.

I don't think it's unconstitutional if the process makes clear that the president is giving feedback. Since it's not "enacted" until congress approves it (subject to signing or vetoing) then it's not really abridging the congress's right to make the laws, etc. Congress retains the right to ignore any feedback if it really wants to. So their authority is preserved.

Of course, done this way its possible that spending that has been lined out can get restored by a coalition of senators whose bacon has been denied. That sounds right, though.

Abd since the worry with line item vetoing is that the President might play favorites and reward his allies, it's likely that such practices could lead to angry minorities. So perhaps it makes sense that congress would, post-reconciliation, put to a vote the choice of whether to allow the president to conduct a pork review. And maybe that would need 60 votes or 2/3s.

BTW, Pretty singular that we are basically agreed on the other thing. The President is bound to act to protect the constituion if he's pretty sure some action is unconstitutional. I don't have much respect for blanket deference. But then I am surprised that SCOTUS didn't strike down campaign finance on 1st amendment grounds. Bush's stance seemed reasonable to me because I totally expected SCOTUS to strike it down. An argument can be made that when something is pretty popular in both parties and with many of the people, that letting SCOTUS strike it down would be far better received by the people. If a President vetoes for unconstitutionality, that does open the door wider for supporters to try again when a new president gets elected. If scotus shoots it down, it's harder to try again without looking like a bunch of aholes, IMO.

Posted by: bk at March 7, 2006 02:19 PM

Line-item veto

What safeguards are there to negate the possibility of a President and his party of taking out previously negotiated deals with the minority paty?
none.

LIV is a ruse, used as a red meat item to rally the troops. It provides a lot of political for congressmen who don't have the guts to act properly as representatives of their districts AND as stewards of the treasury of the country.

It was rightfully struck down before and I'm quite sure it will be struck down again. Funny how Clinton, the Democrats and the GOP worked together trim the budget and create a rather balanced state of finances (the Dems taking the hit for rightfully raising taxes as needed) while this GOP controlled WH, and congress don't seem to have the same level of competency or guts to do the right thing. LIV is political cover for their inability to do the big job.

Posted by: Marcus at March 8, 2006 01:50 AM

Sure Marcus, but if experience shows congress continually incapable of exercising collective fiscal discipline, which you seem to concede, then what's your solution? Keep insisting that we elect people who will do it right, even though it keeps not happening?

I think of this as the Marie Antoinette problem. The people want to have their cake and eat it too, and congress does its best to give us what we want.

If the mechanism worked as I described, and required a 60% or 2/3 vote by one or both houses to initiate Presidential feedback, that would act as brake on the possibility of the president screwing the minority party. Would it ensure against such an outcome. Nope.

The only other option is to re-enact a balanced budget amendment. I wouldn't mind seeing either of these, _or_ both.

Posted by: bk at March 8, 2006 09:17 AM

LIV is a ruse, used as a red meat item to rally the troops. It provides a lot of political for congressmen who don't have the guts to act properly as representatives of their districts AND as stewards of the treasury of the country

You know Marcus, I thought "Well Clinton wanted the LIV veto too" so I bet opposition would not likely follow party lines. You proved me wrong. Posted by: c3 at March 8, 2006 03:51 PM

I didn't like Clinton getting line item veto either.
It's a capitulation of congressional responsibility.

Balanced Budget amendment - what a joke. The same people screaming 10-20 years ago for it seem to all have developed collective amnesia as well as a dose of autistic behaviour. Again, it's all about warming up the troops/voters, not about good governance.
I think voters, especially the republican ones got what they deserved, another 2-3 trillion of debt that their children will curse them for. That's Karma. The funny thing is that over the past 2 election cycles they voted for the same old thing, fake tax cuts, overbloated government beyond any previous such bloat - even old imperial China 2000 years ago didn't have this much bureaucracy. Not even Euro's have this much and they are the acknowledged masters of bloat.

As for good governance, tell you what, not going to happen. We live in a society where corporations and the wealthy wield disproportional amount of political power and use it to solidify their own agendas, no matter the costs to the rest of us. The past 5 years of GOP legislative record is proof of it. Fox? Owned by a rich guy.
MSNBC/NBC? Owned by rich guys. same with NY Times, Chicago Trib, etc.etc.etc.. So the POV of the news? the thrust of the news? well not from joe 6-packs like me that's for sure, although they'll toss up fake icons like Bill(I can't get my past straight) O'Reilly or Nancy (I faked my grieving past) Grace, or Joe (uh I didn't get caught with my intern she's dead) Scarborough who give us distractions and distortions and never any real analysis of the things that matter.

sorry - pissy mood. Can't stand it when people look to panaceas rather than real solutions.
We're in a country where most people check their brains at the door when they get to the polling places. Lazy bastards are easily swayed by easy catch phrases and free money (tax cuts) which are never free. But they're too stupid to think that.

Movie recommendation:
Ikiru - directed by Kurosawa.

Posted by: Marcus at March 8, 2006 05:05 PM

Gee Marcus, mean much?
I vote Dem. and even if this LIV is just a ruse, it will be a permament ruse that future Presidents can use.
Dang, can't you give W one iota of credit? One of my biggest pet peeves about politics is that NO ONE wants to give even the slightest bit of credit to the opposition. I never voted for W and I'll admit he had to put up with s--- that Clinton had the comfort of not dealing with. A sucessful attack on America from a foreign source, a hurricane with so much power as to not been known since 1900 Galveston.
W could have done better - thought twice about the war in Iraq is the major crux to bear. But if this liberal Dem can give some credit, so can everyone else. And giving credit where credit is due will not change the overall perception towards his Presidency, just vindicate the idea even more.

Posted by: Rachel at March 9, 2006 09:52 AM

Posted by: Rachel at March 9, 2006 09:53 AM

sorry for the second posting. forgive me, I have AOL

Posted by: Rachel at March 9, 2006 09:54 AM

Centerfield

A Weblog of Centrist Voices in American Politics

March 07, 2006

Bush proposes line item veto act - what's changed?