|OVER THE LINE?
Is the Line-Item Veto constitutional?
May 5, 1998
in this forum:
Is the line-item veto that big a shift in power? What will be the impact of the Court's ruling? Is the veto giving the president more control over something he is held accountable for? Isn't the line-tem a half-step up from the regular veto authority? Will the line-item veto streamline government, or just backlog it even more? A question from Jim Fayle of Fresno, CA: If the President vetoes a segment of a bill, doesn't Congress still have the opportunity to override it? I assume this provision is available. Am I right? If so, doesn't this in itself then limit the threat of a sitting President from becoming abusive in using the line item veto power? No Congress would allow a President to go to extreme in this matter; it would likely backfire, creating more congressional unity in opposition.
Alan Morrison, head of the Public Citizen Litigation Group, responds:
Under the Line Item Veto Act, Congress can override the President, but it must pass a new law to do so. That means that, if the President chooses to veto such a law (as he will almost always do) Congress must obtain two-thirds of each House to override the veto. Congress did pass one bill that the President signed because he was persuaded that he had made a mistake when he exercised his line item veto, but otherwise all of his item vetoes were sustained in Congress.
John Cooney, former OMB deputy counsel, responds:
You are correct that Congress has the power to override, by a two-thirds vote of both Houses, any action the President may take under the Line Item Veto statute. Proponents of this mechanism argue that the President's power is limited, because Congress as an institution would react to defend himself, by eliminating the authority, if a President abused this power. They also point to President Clinton's hesitant use of this authority in 1997 as evidence that this mechanism does not upset the balance of power between Congress and the Executive Branch and as evidence that this provision, once novel, already has been largely domesticated.
Technically, under the Line Item Veto provision, the President does not veto part of a bill. All sides agree that the President must sign or veto a bill in its entirety, and that any measure purporting to give the President the power to veto only part of a bill would be unconstitutional. The Line Item Veto Act statute does not actually operate as a veto, but rather gives the President standing power not to spend an appropriation -- known as recission authority -- and the power to overturn a tax break targeted to a small number of people. In either case, the President must act within five days of signing the measure containing the targeted items, and the President must make required findings that the actions would cut the deficit and serve the public interest.
Opponents of this enhanced recission power characterize the President's action as tantamount to a partial veto of the underlying bill, in practical terms, and argue that the Supreme Court should disregard the differences between the two mechanisms because they have the same effect. Proponents of the law argue that the differences have constitutional significance, and that the new power is a permissible variant on mechanisms Congress has adopted since 1790 to give Presidents the power to decline to spend money that, in his view, would be wasted. The "characterization" battle turns on the fact that the President must act within five days of signing the underlying bill, which makes this power look like a partial veto. Ironically, Congress inserted this provision in the bill to limit Presidential authority. Congress intended the President to act quickly, and only for deficit-reduction purposes, so that he could not keep the threat of rescinding spending items hanging over the head of interested Members of Congress for the entire fiscal year, in order to leverage their votes on issues of major importance to the President.
In 1997, President Clinton vetoed 82 items, totaling $1.9 billion in budget savings over five years (.02% of $9 trillion the government will spend in those five years). Congress promptly exercised its authority under the Line Item Veto Act to override the President's recission of 38 items in the military appropriations bill. The White House made a rookie mistake in vetoing these items, based on information provided by senior political appointees at the Defense Department. Experienced budget officials understand that the career military services have invisible, but unbeatable, ties of their own to the Congressional appropriations committees. The Administration soon realized that it had vetoed these items on facility information and public rationales that would not hold up.
For the remainder of the budget season, the President was forced to scramble to articulate principled, non-partisan justifications for each additional item he intended to rescind, and he sharply limited his use of the veto to pork barrel items that were several standard deviations removed from the mean level of pork in federal spending. This, I submit, is exactly the way other Presidential powers work, and that the Line Item/recission authority is already well down the path to becoming institutionalized. Congress has shown that it retained effective power to reverse abusive or erroneous Presidential actions, and the White House has learned that it can rally political support for its actions only to the extent the President can articulate good public policy arguments for his decisions.
While the experience of one year cannot disprove opponents' concerns that the Line Item/recission power would have the potential for abuse in the hands of a manipulative President (like Lyndon Johnson), the first year's experience supports the proposition that Congress and the public might quickly be able to domesticate this new authority -- if it survives Supreme Court review.