locked on ratification of the Child LaborrnAmendment to the federal Constitution,rnthe lieutenant governor cast the decidingrnballot for the amendment. State senatorsrnand house members sued, arguing thatrnthe legislature had not actually ratifiedrnthe amendment. In Raines v. Byrd, thernCourt limited Coleman to the propositionrnthat “legislators whose votes wouldrnnot have been sufficient to defeat (or enact)rna specific legislative act have standingrnto sue if that legislative action goes intorneffect (or does not go into effect), onrnthe ground that their votes have beenrncompletely nullified.” Though SenatorrnByrd et al., made a compelling argumentrnthat the Line Item Veto Act effectivelyrnnullifies their votes on legislative matters,rnthe High Court preferred to wait for arnsuit involving a private plaintiff sufferingrna loss of federal benefits as a result of thernline item veto.rnWhen the President first used his newrnpower on August 11, 1997, a plaintiffrnwith standing was undoubtedly created,rnalthough, as we go to press, a suit has yetrnto be filed. Nonetheless, it is just a matterrnof time before a private challenge tornthe Line Item Veto Act reaches thernSupreme Court.rnJudging from the plain language ofrnthe Constitution and recent SupremernCourt decisions, the Line Item Veto Actrnwill probably be struck down once thernproper case reaches the Court. The Actrngives the President five days after signingrna bill into law to “cancel” any discretionaryrnbudget item, any new “entitlements”rnfor individuals and state governments,rnor any tax benefit limited to 100rnor fewer beneficiaries.rnSigning the Act in April 1996, PresidentrnClinton promised to scrutinize “therndarkest corners of the federal budget.”rnRunning for President, Bob Dolernclaimed the line item veto would “putrnWashington on a pork-free diet.” As is sornoften the case in the Imperial City, therntwo party leaders praised the ends withoutrnconsidering whether the means arernconstitutional.rnConstitutionally, the Act has two majorrnproblems. First, it violates the Constitution’srnPresentment Clause:rnEver)’ Bill which shall have passedrnthe House of Representatives andrnthe Senate, shall, before it becomesrna Law, be presented to thernPresident of the United States; ifrnhe approves he shall sign it, but ifrnnot he shall return it, with liis objectionsrnto that House in which itrnshall have originated . ..rnPresident Washington interpreted thernPresentment Clause as follows: “Fromrnthe nature of the Constitution, I must approvernall parts of a Bill, or reject it inrntoto.” All of Washington’s successorsrnhave adopted the same interpretation.rnThe Line Item Veto Act turns this establishedrnand logical principle on its head.rnSupporters of the Line Item Veto Actrnconcede that if the President could strikernprovisions before he signed a bill intornlaw, the Act would clearly be unconstitutional,rnand so the Act instead requires thernPresident to sign the bill into law andrnthen “cancel” the provisions he disagreesrnwith. Such a scheme shows what littlernrespect our elected officials have for thernConstitution.rnThe Presentment Clause also providesrnthat a bill must pass both houses ofrnCongress before it is presented to thernPresident for his signature or rejection.rnThis is referred to as the bicameral requirement.rnThe Line Item Veto Act violatesrnthis requirement because the billrnthat passes both houses and is signed byrnthe President does not become law if thernPresident uses the power of cancellation.rnCongress might pass an A-B-C bill, butrnwhat becomes law after cancellationrncould be an A-B, A-C, or B-C bill —inrnother words, a bill never presented to thernPresident. As the Supreme Court declaredrnin INS V. Chada, the PresentmentrnClause “represents the Framers’ decisionrnthat the legislative power of the Federalrngovernment be exercised in accord withrna single, finely wrought and exhaustivelyrnconsidered, procedure.”rnSecond, the Act unconstitutionallyrntransfers the legislative power of repeal tornthe President. When President Trumanrnissued an executive order seizing the nation’srnsteel mills during the Korean War,rnthe Supreme Court, striking down thernorder, emphatically declared: “In thernframework of our Constitution, the President’srnpower to see that the laws arernfaithfully executed refutes the idea thatrnhe is to be a law maker.” But the cancellationrnpower granted by the Act effectivelyrnmakes the President the country’srnmost powerful law maker. Clearly, thisrnpower of cancellation is the power of repeal,rnwhich the Constitution vests in thernCongress.rnSome supporters of the Line Item VetornAct argue that, in spite of its name, thernAct does not establish a line item veto.rnThey claim that all spending is discretionary,rnand thus the President can simplyrnspend less than Congress appropriates,rnan action called “impoundment.”rnImpoundment is not mentioned in thernConstitution, but it is an old executivernpractice. Perhaps the most famous impoundmentrnwas when President Jeffersonrnrefused to spend $50,000 appropriatedrnfor gunboats since the threat of warrnhad passed. In recent times. Presidentsrnhave aggressively used impoundment.rnPresident Kennedy cut spending by sixrnpercent through impoundment; PresidentrnJohnson impounded five billionrndollars, which in the 1960’s was realrnmoney. But when a weakened PresidentrnNixon tried to impound 12 billion dollars.rnCongress enacted the CongressionalrnBudget and Impoundment ControlrnAct of 1974, which requires legislativernapproval of executive decisions to end orrnreduce programs for which funds are authorized.rnThe argument that the Line Item VetornAct simply revives impoundment isrnpure sophistry. For instance, the Actrngives the President the power to cancelrnlimited tax benefits. A tax break is obviouslyrnnot an appropriation to be withheld.rnCanceling a limited tax benefit isrnthe repeal of a tax law; it has nothing torndo with impoundment. This argumentrnaside, as mentioned earlier, the Constitutionrndoes not refer to impoundment.rnAlthough the Line Item Veto Actrnshould be struck down by the SupremernCourt as a violation of the PresentmentrnClause and a delegation of legislativernpower to the executive, its proponents dornidentify problems in modern federal lawmaking,rnHamilton argued in Federalistrn73 that the veto power serves two purposes:rnto shield the executive against congressionalrnencroachments and to furnishrn”additional security against the enactmentrnof improper laws.” The latter function,rnline item veto partisans correctlyrnpoint out, has been eviscerated by Congress.rnIn the early days of the Republic, Congressrnoften passed separate bills for pronouncing,rnenforcing, and collecting arntax. When Congress authorized the formationrnof the departinents of War, ForeignrnAffairs, and Treasury, three separaternacts were passed. Today, bills rarely stickrnto a single subject. If Newt Gingrich andrncompany were to pass a bill creating arnnew department, it would no doubt eontainrnhighway projects, subsidies to thernwell-connected, and sundrv other unre-rnFEBRUARY 1998/43rnrnrn