Posted on 02/05/2006 7:26:56 AM PST by new yorker 77
President George W. Bush got a lot of applause during his State of the Union Address Jan. 31 when he urged Congress to "pass the line-item veto" as a way of reducing pork-barrel spending. Small problem with the idea: the Supreme Court declared the line-item veto flat-out unconstitutional in 1998. "Our duty is clear," proclaimed Justice John Paul Stevens in the 6-3 decision Clinton v. City of New York. Presidents may only sign or veto entire acts of Congress, the Court said, and can't pick and choose which parts they like. "There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes," Stevens wrote. The law, passed by Congress in 1996, authorized presidents to "cancel" individual items of federal spending included in bills passed by Congress.
The lawyers who successfully argued against the line-item veto before the high court were surprised to hear President Bush resurrect the idea.
"I thought, 'there they go again,'" said Louis Cohen, senior counsel at WilmerHale, who represented Idaho potato growers affected by a line-item veto executed by President Bill Clinton. "I really think the idea is dead."
Charles Cooper of Cooper & Kirk in D.C. agrees. "I know he and all presidents long to have this power, and as a policy matter I think it's a great idea. But I don't think there's been any change" since the ruling. Cooper argued on behalf of New York City, which also lost funds because of a Clinton line-item veto.
So what was Bush thinking? Could he be hoping that with his nominees John Roberts Jr. and Samuel Alito Jr. safely confirmed -- both of whom were labeled as pro-executive power -- the new Supreme Court will look more favorably toward the increased powers the line-item veto gives a president? Not likely, since neither the math nor the ideology seem to support that theory.
It was an odd alliance that joined Stevens in striking down the line-item veto in 1998: then-Chief Justice William Rehnquist, and Justices Anthony Kennedy, David Souter, Clarence Thomas and Ruth Bader Ginsburg. In dissent were Justices Antonin Scalia, Sandra Day O'Connor and Stephen Breyer.
Since Alito replaced the dissenting O'Connor, if he supports the line-item veto he would not change the outcome. And even if Chief Justice John Roberts Jr. parts company with Rehnquist, his predecessor and mentor, it would still be a 5-4 vote against the veto if all other justices remain in place.
But apart from the head count, neither Cooper nor Cohen think it is certain that either Alito or Roberts, if given the chance, would embrace the line-item veto. "This is not an issue where there is a clear division between liberals and conservatives," says Cohen.
Cooper recalled that Alito was his deputy at the Office of Legal Counsel in the mid-1980s when Cooper "with trembling hands" gave Attorney General Edwin Meese III a 90-page opinion concluding that the line-item veto was unconstitutional. President Reagan had pushed hard for it, and Cooper said "this was not advice I was happy to give." But Meese and Reagan accepted it and did not press it. It was President Bill Clinton who revived the idea and won passage of the law from Congress in 1996.
Another reason it is questionable whether the Supreme Court would revisit the issue is the very fact of the 1998 precedent. The importance of precedent was the recurring theme of the Alito hearings. The 1998 ruling may not qualify as a super-precedent or a super-duper precedent, terms that were bandied about last month. And it is not old enough to be called a "venerable precedent," a term Alito used to describe New York Times v. Sullivan, the 1964 ruling that protects the press from ruinous libel suits. But it is a precedent without much wiggle room; the Court said if Congress really wants to enact a line-item veto, its only course is to pass a constitutional amendment. Sen. Elizabeth Dole, R-NC, tried to get the amendment ball rolling by introducing S.J. Res. 26 last year, but it has no co-sponsors.
In the years since the 1998 ruling, Cooper says some advocates have tried to figure out alternative, constitutional ways to accomplish the goal of a line-item veto by statute. "Maybe there is some technique out there that would pass muster, but I haven't seen it," he says.
Adds Cohen, "I would have thought that this would have been put off the national agenda for good. The Court has made it clear that he can't do that."
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It seems like the line-item veto is one of the few issues that is neither liberal or conservative.
There is a way that Congress can make a presidential line item veto work. They can, in the official record, subdivide each line item of an appropriations bill into separate acts - HR06371-1, HR06371-2, etc., etc. and then have one vote on the lot of them.
An interesting solution, and one which might well stand up to the legal challenge. Which is why, of course, it would never see the light of day in Congress.
Or, they could just a pass a constitutional amendment. Imagine that!
Wow! Now that's two 'weird' groupings...
.
I don't want a line item veto. Best case it is in the hands of a good president. Worse case you have given a new tool to the Bill Clinton's of the world. You have to look at unintended consequences.
True, but congress can pass legislation, without getting approval from the states, whereas the state legislatures (2/3) must approve a constitutional amendment.
The proposed solution would only require a simple majority of the House and Senate. A Constitutional Amendment would require 2/3rds of both houses and 3/4ths the state legislatures. If Congress can't muster a majority it won't turn up a super majority.
It is, after all, still a veto. Which can be overridden.
As far as the probability of election of a latter-day Slick is concerned......I guess we'll just have to keep FReeping to watch for those bums. In ANY party.
The line-item veto passed the Senate 69-29 and the House 294-134 - more than enough to pass a constitutional amendment. You wouldn't dare suggest that our honorable Congress critters were merely grandstanding, would you?'
And why on earth would the States block a line-item veto amendment?
The problem I have with a line item veto is that a president can use it to eviscerate the party not his own.
That was the point where I couldn't stomach any more and had to switch to another channel.
Since WHEN has this boob been in favor of a line item veto?
Cripes, he's had a GOP controlled Congress for six years and hasn't bothered to use his veto even once.
What a stinking farce.
Is that a serious question? Who do you think benefits from PORK? State legislators don't care about the national budget or even national defense, but they sure care about building bridges to nowhere in their constituents' districts.
I don't know if they can pass several bills like that without unanimous consent.
Hmm.. Well, I can't say that's not a good point, but I would think that it'd be a difficult thing for legislators to oppose. The Senate and House didn't support them so heavily because they don't like pork, but because it was politically unviable to oppose them (and they expected the Supreme Court to strike it down).
Either way, can you think of anything it would hurt for the House and Senate to pass a line-item veto amendment and then we could see what the states do?
If Pres. Bush is serious about the line-item veto, and it's not just the typical empty SOTU rhetoric, then I expect him to push for an amendment. That's the only way to do it, and we already know he doesn't have any problem with the idea of amending the constitution. After all, he's called for at least two of them..
I knew line-item veto was a total sham when both chambers passed it by amendment level margins, then immediately appealed them to the Supreme Court, and then just shrugged rather than send an amendment to the States once it was struck down.
Yep, very weird grouping. I doubt it has ever existed for another case.
It seems to me that having only one vote in Congress is an indication that the legislation in question constitutes just a single bill.
If a President wishes to line out a single item in a bill, he need only inform both Houses of Congress of that fact, and then each House can pass a bill with the offending line ommitted, then the President can sign the modified bill.
The Constitution already contains the mechanism to accomplish exactly what people claim thay want. The reason that the Constitutional mechanism is not sufficient to them is BECAUSE both Houses of Congress would NOT approve the bill with the desired ommission.
That is why the line-item-veto is unConstitutional.
I would like to see a change to the congressional rules allowing for the President to submit redacted legislation to both houses for a straight up-down vote without it having to go through committees or other such nonsense. Just "Here's the bill--debate it and then either vote 2/3 of both houses to pass the original, 1/2+1 of both houses to pass my changed version, or else forget the whole thing."
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