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October 11, 2007, 3:19 p.m.
An Indefensible Line
A dispute among friends over first principles.
By Douglas W. Kmiec
My friend, Steve Calabresi, is a prolific scholar and one of the nicest people you ever could meet. Confronted with Mayor Guiliani's lapse in principle and reasoning, represented by his advocacy against the statutory line-item veto, Professor Calabresi did his best to defend the indefensible. This was far more admirable than some other notables in the Guiliani camp who decided to skip the merits and go right to the basement of ad hominem argument. (viz., anyone siding with Justice Scalia's thoughtful dissent in favor of the constitutionality of the item veto “has not read the Supreme Court's opinion . . .and does not have a clear understanding of the Constitution.”)
Well, truth be told, Mr. Olson, some of us from the Reagan administration remember that it is the Constitution, and not every judicial opinion about the Constitution, that is the supreme law of the land. Conservatives have a strong attachment to keeping that in mind, since it proved invaluable to Abraham Lincoln's critique of the abhorrent Supreme Court decision in Dred Scott that read blacks out of the Declaration and the Constitution. The same point is also held dear because it allowed us to defend an unfairly maligned and prosecuted colleague, from specious charges derived from his sound counsel to President Reagan, instructing him to assert executive privilege over an open law enforcement matter pertaining to environmental law.
Indeed, remembering the Court's decision in Morrison v. Olson, erroneously upholding the Independent Counsel statute against the lone dissenting, but impeccable, separation of powers reasoning of Antonin Scalia, it is fair to say that the source of legal principle there is the very same one that finds no objection to the statutory line-item veto that Mr. Guiliani gratuitously challenged in pursuit of federal money.
Justice Scalia never said anywhere that all of the legislative power could be delegated to the president. That would be silly and it bears virtually no relevance to the limited delegation of authority under the line-item veto act that Rudy litigated to destroy in order to dip into the taxpayer's wallet big time. Justice Scalia did say it was commonplace for the Congress to give the president some discretion in the expenditure of authorized funds, that some presidents had claimed discretion not to spend without benefit of Congress, and that the statutory authorization to confer the prudent discretion on the president not to spend money on so-called “new direct spending” or “special tax benefits” that the rest of the world knows as “pork,” fully met the bicameral and presentment requirements of Article I, section 7, and frankly, promoted transparency and democratic accountability as well.
Mother always told me to be careful about the company I keep.
In this case, Mitt Romney is in the company of the most erudite exponent of the original understanding of the Constitution bar none, Justice Antonin Scalia, and Ronald Reagan who knew that the three most important words in the Constitution were “we the people.”
Guiliani has thrown in his lot with the dean of liberal jurists, John Paul Stevens, and Robert C. Byrd, the senatorial king of pork expenditures. Like Guiliani, Senator Byrd also opposed the same statutory line item-veto, and for good measure, Byrd stridently defended the virtues of pork-barrel spending. Said Byrd, "the demonization of so-called "pork barrel" politics in popular discourse tends to discount the value of local spending. Local projects are often criticized as "pork" for allegedly squandering national funds . . .[but their not].”
The "local project" that Rudy defended by killing the line-item veto was New York's refusal to repay $955 million dollars that it owed the federal taxpayers. The president probably figured: Gee, general laws ought to be generally enforced. No special treatment. It's a novel concept, Mayor, but hey, who knows? This “rule of law” thing might catch on.
In any event, Rudy got his $955 million, the taxpayers got stuck with the bill, and the liberal John Paul Stevens invalidated a perfectly constitutional budget restraint.
So I guess the voters have to choose up sides: Rudy, Stevens, and Byrd; or Mitt, Scalia, and Reagan.
Most conservatives will have no trouble figuring out that one.
— Douglas W. Kmiec is chair and professor of constitutional law at Pepperdine University and co-chair of the advisory committee on the Constitution and the courts for Romney for President. |
