Can One Word Fix Line-Item Veto?

Posted March 11, 2005 at 6:42pm

If you have ever had a marriage proposal “deferred,” you know this: At least it wasn’t rejected.

The Bush administration evidently hopes the Supreme Court will grasp the importance of this distinction when it comes to the line-item veto.

Congress approved a line-item veto in 1996, but the high court struck it down two years later. Despite that stinging rejection, the White House, encouraged by language in the decision that left an opening for reconsideration, has quietly spent years trying to restore the budget-trimming device.

Over time, the administration’s efforts have been met with skepticism from legal experts who suggest that the proposed solution — linking the veto explicitly to “deficit reduction” — did little to answer the court’s qualms.

The root of this problem was the word “reject.” The justices disliked the notion that a president could “cancel” items of spending on a whim after both chambers had agreed to them. But the administration stood by its language.

That is, until this year.

When the president’s fiscal 2006 budget arrived on Capitol Hill last month, the word “reject” was swapped out of the proposed line-item veto in favor of “defer,” a term that suggests perhaps a bit less finality.

It is not clear why, after several years of claiming that the old language would satisfy the court’s concerns, the White House suddenly changed its wording.

Louis Fisher, an expert on the line-item veto at the Congressional Research Service, acknowledged that the newest White House proposal does away with a word that “bothered the justices.” But he suggested that the new terminology wouldn’t answer the constitutional concerns raised by the court.

“To me, [a deferral] does change the understanding, because money is authorized and appropriated for one year,” Fisher said.

By deferring a spending item, Fisher said, “You’ve changed the law. You’ve changed it from one-year money to two-year money.”

At press time, the White House Office of Management and Budget was unable to provide an explanation for the switch.

An OMB spokesman, Noam Neusner, said that, over time, President Bush has expressed an interest in enacting a new line-item veto that would get the approval of Congress and the Supreme Court.

“We think the formulation in our budget will pass a constitutional test,” Neusner said.

He was unable, however, to explain how spending items might be “deferred” rather than “rejected.”

One constitutional scholar said the court would probably not be impressed with minor adjustments to the line-item veto, anyhow.

“It has seemed that the court, when it perceives Congress is end-running one of its decisions, is disinclined to approve,” said Neil Devlin, who teaches at the College of William and Mary.

Of the idea that spending items could be deferred instead of canceled, Devlin said, “That strikes me as something the court would see as an end-run.”

The Bush administration has described the line-item veto as an important part of the president’s budget plans going forward, with the stated goal of halving the federal deficit by the time the president leaves office in 2009.

In the 1998 ruling, the high court’s 6-3 majority found that the law, as written, permitted the president to act post-hoc to alter an agreement made between the House and Senate.

In doing so, they ruled, the law violated the Constitution’s “bicameral and presentment” clauses, which establish that legislation must be approved by both chambers and signed by the president to become law.

Even still, the justices indicated at the time that the law could conceivably be rewritten to pass constitutional muster. One tactic, for instance, would be to give the president authority to not spend money appropriated by Congress.

Writing in dissent, Justice Antonin Scalia said, “Had the Line Item Veto Act authorized the President to ‘decline to spend’ any item of spending contained in the Balanced Budget Act of 1997, there is not the slightest doubt the authorization would have been constitutional.”

In his campaign platform in 2000, Bush, then governor of Texas, proposed a new line-item veto law that incorporated Scalia’s language. Under that proposal, the president would be able to place a hold on discretionary spending items if the act “will not impair essential government functions and will not harm the national interest.”

The line-item veto was first enacted roughly two decades after Congress moved to end the use of impoundment by presidential administrations. “Impoundment” refers to the practice of withholding funds from programs for which they were appropriated by Congress.

The Congressional Budget and Impoundment Control Act of 1974 did, however, entitle the president to make rescissions of selected programs in the budget. Once made, the cuts were to be submitted to Congress for an up-or-down vote in both chambers.

Rep. Jim Cooper (D-Tenn.), a senior member of the Budget Committee, noted that the president still holds the power to make rescissions. He suggested that Bush has been using the specter of a line-item veto to shift blame to the courts for his administration’s failure to control spending — when he should have little trouble pushing rescissions through GOP majorities in both chambers.

President Bill Clinton submitted 163 rescissions to Congress, winning approval for 111, Cooper pointed out.

“The president is waiting around wishing for a switchblade when he’s already got a scalpel in his pocket and he won’t use it,” Cooper said in an interview last week.

“This is the nuclear option for cutting spending,” Cooper added, alluding to the highly controversial Republican proposal to change the way judicial nominations are handled in the Senate.