Line-Item Veto Is Back

Posted November 5, 2004 at 6:45pm

The line-item veto, left for dead after failing a Supreme Court challenge in 1998, is slated for resurrection as a key piece of President Bush’s second-term budget policy, White House aides said Friday.

The aides indicated that administration officials, having examined the high court’s ruling, believe the budget-slashing device can be wielded in a way that would pass constitutional muster.

The president signaled his interest in renewing the veto at his first post-election press conference on Thursday, arguing that it would help to “maintain budget discipline.”

“We think there’s a way to do it,” Chad Kolton, a spokesman for the White House’s Office of Management and Budget, said after the press conference. “We want to work with Congress in getting it done.”

Although the veto was popular among deficit hawks, the Supreme Court’s 6-3 rebuke more or less succeeded in convincing its backers that it would not be workable. But it has begun to re-emerge as Congress once again contends with massive deficits and calls to restrain spending.

The Supreme Court justices indicated in their 1998 ruling that it would be possible to craft a version of the veto that would clear constitutional hurdles.

Justice Antonin Scalia, for instance, suggested that Congress could allow the president to spend “up to” an amount, which would imply that the president would not have to spend all the money he was given by Congress.

Lawmakers could also provide the president with what is known as “rescission authority.” That kind of language would acknowledge that there could be circumstances where it would not be wise or would no longer make sense to spend funds that had been appropriated by Congress. In such instances, the president would be responding to developments, not acting on different priorities.

In fact, the Bush administration has prodded Congress — quietly — to revisit the idea in the last three budgets it has sent to the Hill.

The administration’s fiscal 2005 budget includes a “proposal” that “would correct the constitutional flaw in the 1996 act.” Under the proposal, the veto would be tied explicitly to “deficit reduction.” The president would have authority to cancel new appropriations and other spending — as well as certain tax breaks — if he finds they are not “essential government priorities.” The money saved would remain in the Treasury’s coffers.

Because the funds could not be shifted to other projects or purposes, the president would not be able to do the kind of horse-trading with lawmakers that would give him undue influence over Congress’ “power of the purse.”

“The president is very serious about this stuff,” Kolton said, listing the veto along with a variety of other deficit-reduction measures, such as caps on discretionary spending and mandatory “pay-as-you-go” rules.

But legal experts said the administration’s proposal appears to be based on a misreading of the Supreme Court’s decision — or a mistake in legislative drafting.

They point out that the justices were not worried that the president could usurp Congress’ authority to spend money. Rather, the majority ruled that the line-item veto violated the Constitution’s “bicameral and presentment clauses.” Basically, these set out that both chambers of Congress and the president must be in agreement for legislation to become law.

The line-item veto essentially enabled the president to act post-hoc to change an agreement made between the House and Senate, which meant the president was more or less writing the law, they reasoned.

“Nothing in [the White House’s] description of [their proposal] distinguishes it significantly from the language struck down by the court,” said Todd Peterson, a constitutional law expert at George Washington University.

Lou Fisher, a legal expert at the Congressional Research Service, said he was baffled.

“Who was writing that?” he wondered, noting that the language used in the White House proposal mirrored the wording of the original law almost exactly.

An effort to get clarification from OMB by press time was unsuccessful.

The original law, which reached the Supreme Court as Clinton v. New York, was initially challenged by a cadre of Democratic lawmakers, led by Senate Appropriations ranking member Robert Byrd (D-W.Va.). The Members focused on the contention that the line-item veto enabled the president to usurp powers that were delegated explicitly to Congress in the Constitution.

At a hearing in February, Byrd took note of the language included in the president’s budget submission and used the opportunity to warn OMB Director Josh Bolten about any effort to reinstate the veto. The crusty West Virginian likened the device to the 2002 Iraq war resolution, which Byrd called a “shameful, disgraceful” act by the Senate that ceded Congress’ constitutional power to declare war to the president.

“And it looks like they’re wanting us to do the same thing when it comes to the power of the purse,” Byrd said, according to a transcript of the hearing. The president “proposes a line-item veto in which he will determine … the spending or tax benefits [and] whether or not they’re [an] essential government priority. Enough said.”

Tom Gavin, a Byrd spokesman, said opponents of the law remain confident that it won’t be reinstated.

“The court has ruled it unconstitutional. And we think the court will continue to rule it unconstitutional,” Gavin said.

Gavin noted that although the veto has been proposed in the president’s last three budgets, no one has seen any White House follow-up.

In any event, the barriers to a new line-item veto law may have more to do with practicality than technicality. Appropriators — and to a somewhat lesser extent, other lawmakers — jealously guard Congress’ spending authority, making renewal of the law difficult under even favorable circumstances.

Initially, the line-item veto gained favor among fiscal conservatives in the 1980s, when Presidents Ronald Reagan and George H.W. Bush — both Republicans with an inclination for smaller government — were grappling with solid Democratic majorities in Congress that were keen on spending federal monies.

Now, President Bush is working with a Republican Congress that just increased its majorities. This sets up a potential intraparty clash on budgets and spending at a time when most observers assumed the executive and legislative branches would be working more closely than ever to push the GOP agenda.

The original legislation took more than a decade — and a switch in control of Congress — to enact. “Obviously it’s a tough thing to do, a tough thing to pass,” said Amy Call, a spokeswoman for Senate Majority Leader Bill Frist (R-Tenn.). “There are certain constituencies up here that aren’t thrilled to do it.”