On June 26, 1997, the Supreme Court dodged the constitutional questions surrounding the Line Item Veto Act. In Raines v. Byrd, the Court claimed it had no jurisdiction and dismissed the complaint. Federal courts only have jurisdiction over a dispute if it is a “case” or “controversy.” An element of the case or controversy requirement is that the party bringing the suit must have standing, which is defined as “a personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.”
The senators and congressmen questioning the constitutionality of the Line Item Veto Act cited the case of Coleman v. Miller, in which the Court upheld standing for Kansas state legislators protesting actions of the state’s lieutenant governor. When the state senate deadlocked on ratification of the Child Labor Amendment to the federal Constitution, the lieutenant governor cast the deciding ballot for the amendment. State senators and house members sued, arguing that the legislature had not actually ratified the amendment. In Raines v. Byrd, the Court limited Coleman to the proposition that “legislators whose votes would not have been sufficient to defeat (or enact) a specific legislative act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.” Though Senator Byrd et al., made a compelling argument that the Line Item Veto Act effectively nullifies their votes on legislative matters, the High Court preferred to wait for a suit involving a private plaintiff suffering a loss of federal benefits as a result of the line item veto.
When the President first used his new power on August 11, 1997, a plaintiff with standing was undoubtedly created, although, as we go to press, a suit has yet to be filed. Nonetheless, it is just a matter of time before a private challenge to the Line Item Veto Act reaches the Supreme Court.
Judging from the plain language of the Constitution and recent Supreme Court decisions, the Line Item Veto Act will probably be struck down once the proper case reaches the Court. The Act gives the President five days after signing a bill into law to “cancel” any discretionary budget item, any new “entitlements” for individuals and state governments, or any tax benefit limited to 100 or fewer beneficiaries.
Signing the Act in April 1996, President Clinton promised to scrutinize “the darkest corners of the federal budget.” Running for President, Bob Dole claimed the line item veto would “put Washington on a pork-free diet.” As is so often the case in the Imperial City, the two party leaders praised the ends without considering whether the means are constitutional.
Constitutionally, the Act has two major problems. First, it violates the Constitution’s Presentment Clause:
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; if he approves he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated . . .
President Washington interpreted the Presentment Clause as follows: “From the nature of the Constitution, I must approve all parts of a Bill, or reject it in toto.” All of Washington’s successors have adopted the same interpretation. The Line Item Veto Act turns this established and logical principle on its head. Supporters of the Line Item Veto Act concede that if the President could strike provisions before he signed a bill into law, the Act would clearly be unconstitutional, and so the Act instead requires the President to sign the bill into law and then “cancel” the provisions he disagrees with. Such a scheme shows what little respect our elected officials have for the Constitution.
The Presentment Clause also provides that a bill must pass both houses of Congress before it is presented to the President for his signature or rejection. This is referred to as the bicameral requirement. The Line Item Veto Act violates this requirement because the bill that passes both houses and is signed by the President does not become law if the President uses the power of cancellation. Congress might pass an A-B-C bill, but what becomes law after cancellation could be an A-B, A-C, or B-C bill—in other words, a bill never presented to the President. As the Supreme Court declared in INS V. Chada, the Presentment Clause “represents the Framers’ decision that the legislative power of the Federal government be exercised in accord with a single, finely wrought and exhaustively considered, procedure.”
Second, the Act unconstitutionally transfers the legislative power of repeal to the President. When President Truman issued an executive order seizing the nation’s steel mills during the Korean War, the Supreme Court, striking down the order, emphatically declared: “In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a law maker.” But the cancellation power granted by the Act effectively makes the President the country’s most powerful law maker. Clearly, this power of cancellation is the power of repeal, which the Constitution vests in the Congress.
Some supporters of the Line Item Veto Act argue that, in spite of its name, the Act does not establish a line item veto. They claim that all spending is discretionary, and thus the President can simply spend less than Congress appropriates, an action called “impoundment.” Impoundment is not mentioned in the Constitution, but it is an old executive practice. Perhaps the most famous impoundment was when President Jefferson refused to spend $50,000 appropriated for gunboats since the threat of war had passed. In recent times. Presidents have aggressively used impoundment. President Kennedy cut spending by six percent through impoundment; President Johnson impounded five billion dollars, which in the 1960’s was real money. But when a weakened President Nixon tried to impound 12 billion dollars. Congress enacted the Congressional Budget and Impoundment Control Act of 1974, which requires legislative approval of executive decisions to end or reduce programs for which funds are authorized.
The argument that the Line Item Veto Act simply revives impoundment is pure sophistry. For instance, the Act gives the President the power to cancel limited tax benefits. A tax break is obviously not an appropriation to be withheld. Canceling a limited tax benefit is the repeal of a tax law; it has nothing to do with impoundment. This argument aside, as mentioned earlier, the Constitution does not refer to impoundment.
Although the Line Item Veto Act should be struck down by the Supreme Court as a violation of the Presentment Clause and a delegation of legislative power to the executive, its proponents do identify problems in modern federal lawmaking, Hamilton argued in Federalist 73 that the veto power serves two purposes: to shield the executive against congressional encroachments and to furnish “additional security against the enactment of improper laws.” The latter function, line item veto partisans correctly point out, has been eviscerated by Congress.
In the early days of the Republic, Congress often passed separate bills for pronouncing, enforcing, and collecting a tax. When Congress authorized the formation of the departments of War, Foreign Affairs, and Treasury, three separate acts were passed. Today, bills rarely stick to a single subject. If Newt Gingrich and company were to pass a bill creating a new department, it would no doubt contain highway projects, subsidies to the well-connected, and sundry other unrelated matters. This practice, often called logrolling, places the President in an awkward position. Although he might not favor the highway projects in the bill, he must sign the bill if he wants the new department created.
In other words, logrolling has eviscerated the President’s veto power. But the evisceration did not begin with the Congressional Budget and Impoundment Control Act, as many neoconservatives argue. The problem began with the lawlessness of the United States government in the War Between the States, when Congress began to add riders to appropriations bills. The President, although he opposed the riders, was forced to sign the bill if he wanted to keep the war machine rolling. Because of such practices. President Grant asked Congress for a constitutional amendment “to authorize the Executive to approve of so much of any measure passing the two Houses of Congress as his judgment may dictate without approving the whole.” Other Presidents have echoed Grant’s plea.
The problem, in part, boils down to the nature of a bill. If modern legislators looked upon bills as the first Congress did (with its separate bills to enact, enforce, and collect taxes), there would be no problem. Unfortunately, logrolling is so common today that no one thinks it improper. Although Congress has enacted internal rules to keep bills to a single subject, there are far too many escape hatches. The answer to the problem is a congressional rule with teeth that forces Congress to limit bills to a single subject; failing that, a single subject amendment to the Constitution may be required.
Either option would solve the problems that the line item veto is meant to remedy and avoid the problems it creates. With a line item veto, there is still an incentive for congressmen to pass bills including such frivolities as funding for the Lawrence Welk Museum and honeybee subsidies. If bills were kept to a single subject, it would become harder to hide such waste. Under a single subject rule or amendment, congressmen could not claim ignorance of the contents of a mammoth appropriations bill, and hence would become more accountable.
Moreover, the line item veto aggrandizes the executive, while a single subject rule or amendment would not. Eor instance, the President can use the line item veto to punish individual senators and congressmen who do not cater to his wishes. Critics observe that similar results are possible with a single subject rule or amendment. The President could sign the bills of his party and veto the bills of the opposition. But unless Congress passes separate bills for Lawrence Welk and the honey bees, the danger is nothing compared to the perils of the line item veto.
Of course, the only permanent solution to our current trouble is to put Leviathan back in the cage of the Constitution. If the federal government obeyed the Constitution, there would be no taxpayer-financed subsidies for beekeepers, no Ponzi schemes like Social Security. Although a single subject rule or amendment is no panacea, it is a step in the direction of constitutional government.