The Line Item Veto Act has been struck down by the Supreme Court. As I predicted in the February issue of Chronicles (“Reining in the Feds“), the Court (in Clinton v. City of New York) declared that the act violated the Constitution’s Presentment Clause, which commands that a bill passing both the House and the Senate “shall, before it becomes 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.” hi the six-to-three decision written by Justice John Paul Stevens, the Court reasoned that the line item veto allows the President to create “a different law—one whose text was not voted on by either House of Congress or presented to the President for signature.” Though acknowledging that the President does have a limited role in the legislative process, the Court properly concluded that the Constitution does not permit him to enact, amend, or repeal statutes.

In arguing for the Line Item Veto Act, the government asserted that the cancellations were exercises of discretionary authority granted to the President, and that the vetoes were merely executive decisions declining to spend appropriated funds, an act called “impoundment.” The government based the first argument on Field v. Clark, which dealt with the Tariff Act of 1890. Section three of the Tariff Act directed the President to suspend tariff exemptions for certain products if he found that the country of origin placed “unequal and unreasonable” duties on American agricultural goods. But the Supreme Court rejected this argument on three grounds. First, the President’s suspension of tariff exemptions was contingent upon a condition that did not exist when the Tariff Act was passed. The line item veto, on the other hand, must be exercised within five days after the bill is signed into law, and thus the same circumstances exist as when Congress passed the statute. Second, under the Tariff Act, the President had a duty to suspend the exemptions when he discovered “unequal and unreasonable” duties on American products. In contrast, the President has total discretion—rather than a duty—under the Line Item Veto Act. Finally, when the President suspended tariff exemptions, “he was executing the policy that Congress had embodied in the statute.” With the line item veto, the President rejects the policy judgment of Congress.

As for the government’s impoundment argument, the Court emphasized the “critical difference” that the Line Item Veto Act “gives the President the unilateral power to change the text of duly enacted statutes.” With impoundment, the expenditure is not repealed.

President Clinton, taking time out from Democratic fundraising in Beijing, described the High Court’s decision as “a defeat for all Americans,” claiming that the Line Item Veto Act “made it much easier to control spending.” Republican Senators John McCain and Dan Coats chimed in, arguing that Clinton v. City of New York “means a retreat to the practice of loading up otherwise necessary legislation with pork-barrel spending.” In reality, the 82 items Clinton canceled in the past 18 months saved the nation an estimated $335 million, which is chicken feed in light of our $5.4 trillion national debt. Clearly, the line item veto merely made it easier for politicians to bamboozle the voters by allowing incumbents to claim to be agents of reform.

Never ones to learn from their mistakes, the Republicans have promised to introduce new legislation to circumvent the Supreme Court. The new bill will most likely be a separate enrollment proposal. Under separate enrollment, when an appropriations bill passes both houses, clerks divide the unified bill into thousands of separate bills for presentment to the President. But this is also of questionable constitutionality since Congress votes only once for a mammoth appropriations bill and does not separately consider each of the smaller bills presented to the President.

Of course, if Congress simply respected the Constitution, there would be no budget crisis and no need for a line item veto. Unfortunately, the Republicans’ desire to revive the statutory line item veto shows what little respect the ruling elite has for the nation’s fundamental law. As Justice Kennedy pointed out in his concurring opinion: “Failure of political will does not justify unconstitutional remedies.”