|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 Herbert E. Phillipson, jr. of Dowagiac, MI: While I do not have the precise language of the Constitution before me quoted by the District Judge, I have difficulty understanding his logic. If the President has the capacity to veto the entirety of the bill (which he has) and the Congress may override that veto or a line item veto, how is that less than the power he will derive from vetoing a small part of the legislation, or, at least, less than the whole?
John Cooney, former OMB deputy counsel, responds:
The Supreme Court is considering constitutional challenges to the Line Item Veto under three separate theories: violation of the Presentment Clause of Article I of the Constitution; for violation of the doctrine of separation of powers; and for violation of the delegation doctrine, which prohibits Congress from granting power to the President without meaningful standards for its exercise. The practical consideration you mention -- the relative effect on the balance of power between the Legislative and Executive Branches from a statute giving the President standing authority to decline to spend appropriations he considers wasteful -- is relevant to the separation of powers argument, but not to the other two challenges.
1. Under the Article I presentment clause, a statute must be passed by both Houses of Congress and presented to the President for his approval or disapproval. In the Supreme Court, all parties agreed that the President must, under the Constitution, approve a bill in its entirety or disapprove a bill in its entirety, but may not be delegated power to approve only some parts, while disapproving the rest. The principal argument of the challengers is that exercise of Presidential recission power (refusal to spend), which must be accomplished within five days of the signature of an appropriations or tax law, so closely resembles a partial veto, in functional terms, that it should be considered an unconstitutional partial veto.
2. The separation of powers doctrine is not based on specific words in the Constitution, but rather is based on the concept integral to the entire document that the three Branches have defined but reciprocal powers, and that any law that impermissibly interferes with the exercise of powers granted to one Branch upsets that balance and is unconstitutional. The separation of powers doctrine is invoked most commonly to defend other Branches from incursions by Congress (i.e., a one-House veto (Chadha) or delegation of statutory authority to Legislative Branch officials (Bowsher v. Synar)). Separation of powers is, however, occasionally invoked to object that Congress has delegated too much of its own power to another Branch. In deciding separation of powers claims, the Supreme Court does review arguments concerning the practical effects on a law on the balance of power, of the type you have identified. However, the Supreme Court rarely discusses this consideration in its opinions. Rather, separation of powers cases are articulated in terms of the grand structural divisions established by the Constitution (i.e., the Court might conclude: Article I, sec. 1 of the Constitution confers the lawmaking power on Congress, and Congress may not share that power with the President by giving him the ability to pick and choose which parts of a bill, passed by both Houses, actually shall become law).
3. The delegation doctrine has not been successfully invoked in the Supreme Court since the days of the Schechter Brothers poultry case in President Franklin Rooseveltís first term, where a conservative Court struck down the National Recovery Act for failure to provide sufficient standards for exercise of the authorities Congress granted the Executive Branch. Since then, the Supreme Court has authorized agencies like the Federal Communications Commission to make decisions under statutes that impose no greater guidance on exercise of its discretion than that its decisions must serve "the public interest, convenience, and necessity." In the 1980s, conservative Justices occasionally noted the continuing viability of the delegation doctrine in footnotes in their opinions. But most constitutional litigators have long considered the delegation doctrine a dead letter.
Listening to the Justices discuss the delegation doctrine challenge to this statute was like watching a fossil trying to come to life. The authority granted the President under this statute may be exercised only upon required findings that are phrased in extremely general and discretionary terms. But these standards are comprehensible and no broader than the "public interest, convenience and necessity."
The jurisprudential side effects of a decision invalidating this (or any other) statute based on the delegation doctrine would be significant, in terms of the other statutes with broadly worded delegations whose constitutionality would be called into question. Accordingly, it is difficult to imagine that the Court will decide the case on this ground.
As an aside, a decision finding the statute unconstitutional on this ground alone would have a limited impact on the Presidentís new recission authority (in contrast to its profound effect on the viability of other delegations to the Executive in other statutes). The proponents of the Line Item Veto (if there are still any supporters left in Congress) could cure such a deficiency this year, by passing a new statute that delegates the same recission authority to the President under more narrowly defined terms, which budget experts could draft quite easily.
Alan Morrison, head of the Public Citizen Litigation Group, responds:
The language relied on is the choice given the President to sign "it" or return "it" with his objections, and everyone agrees that "it" refers to the entire bill presented to him. Thus, even the government agrees that a literal line item veto, exercised before signature, would be unconstitutional. Here Congress allows the President to "cancel" part of a bill after signing it, and the issue is whether Congress can permit him to do indirectly that which he cannot do directly, since the effect of the two types of powers is the same. The reason that the President could be given the greater power to veto an entire bill, but not the power to veto portions of it is because that would enable him to bring into law a form of a bill that neither the Senate or the House might have passed, because the veto may have been of an item that was essential to forging a legislative compromise. In the view of the opponents, the item veto turns the President into a super-legislator when the Constitution gave him a much lesser role in the legislative process.