    President Obama has submitted a newer version of the line-item veto act to Congress. This one may be constitutional.
    Yesterday the President sent to Congress a bill – the Reduce Unnecessary Spending Act of 2010 – that would revive the President's power to exercise a form of the line-item veto. Here are links to sources describing the proposal:
1. A statement from OMB Director Peter Orszag describing the proposed legislation;
2. A statement from the President containing the language of the bill as well as a section-by-section summary of its contents;
3. A post by Meredith Shiner at Politico describing congressional reaction to the bill.
    The bill would allow the President to reduce or eliminate appropriations contained in any spending bill. The President would compile a list of spending items to be cut, and would submit that package of reductions to Congress. The House and Senate would have to act quickly; no amendments would be allowed, and Congress would have to approve or disapprove all of the proposed reductions as a package. The bill contains one important limitation on the President's power; the President would not be permitted to propose reductions to any entitlement program under this procedure.
    In 1996 the Republican Congress adopted the Line Item Veto Act, but in 1998 the Supreme Court declared that law unconstitutional in the case of Clinton v. New York. The new law differs from the Line Item Veto Act in one important respect: the Line Item Veto Act provided that when the President rescinded a spending item the recission became effective unless Congress disapproved of the President's decision, while the Reduce Unnecessary Spending Act of 2010 provides that the recission does not become effective unless Congress approves of the reduction. Kathy Gill of About.com authored this informative essay describing the 1996 Act.
    The Supreme Court's objection to the Line Item Veto Act was that it permitted the President to make law; under the doctrine of Separation of Powers, only Congress is permitted to make law. That problem is corrected by the new law. Under the Reduce Unnecessary Spending Act of 2010 the President's decision to reduce spending has no legal effect in and of itself; instead, the reduction becomes legally effective only if Congress acts to approve it following procedures that are consistent with the Constitution.
    Shiner's post quotes Senator Russ Feingold as stating that the proposed law "appears to be constitutional." I agree that the new law appears to be constitutional, but I wonder if Congress will adopt it? The standard justification for this kind of law is that the President can use this procedure to eliminate unnecessary earmarks, but the bill goes way beyond that. Imagine a conversation between the President and a member of Congress after the bill is adopted:
President Jones: Senator Smith, I need your vote for the health care reform legislation; I need it badly.Senator Smith: Madame President, my conscience won't let me vote for that bill; it represents a massive takeover of one-sixth of the nation's economy.
President Jones:Â Well, Smith, if we don't reform health care I don't see how the country can continue to afford that NASA Research Center in your state!
    As a practical matter this law would effect a tremendous shift of power from the legislative to the executive branch. Perhaps that is the only way for us to assert some control over the appropriations process and balance the budget. But Congress may wish to think long and hard before giving the President this degree of power over individual members of Congress.
{ 5 comments }
Amen. This is a HUGE step toward fiscal responsibility and eliminating pork from both sides of the aisle. I thought Clinton v. NY was the worst-decided case in the past 20 years. Hopefully this Court sees this differently.
This law would have no teeth. Let's call this the Pretend Line-Item Veto. I to, was disappointed with the SCOTUS. It is a pretty big stretch to say the President would be making law. Every other Presidential veto needs to be overridden if the Congress deems it necessary. If we need to have a constitutional amendment, then we should get to work on that.
Similar arm twisting goes on today, so it is nothing to be too worried bout.
(I would like to hear more about this Senator with a conscience.)
It looks like it would fix the Presentment Clause issue with the prior line-item veto legislation. I think a good case could be made that it interferes with each houses right to establish the “Rules of its Proceedings.” It would be interesting to see how it would ever actually make it into court. If congress enacted the rescissions, it would be hard to challenge that the rescissions were not law. But if someone actually sought to compel one of the houses or one of the identified members to actually comply with the law, I think they would lose, either based on lack of standing or on the Rules of Proceedings clause. It’s probably neither challengeable nor enforceable in a judicial proceeding, which means its success would boil down to whether Congress chose to comply with its provisions.
mrasor and Dave,
Wow, it feels strange to be asserting a textual argument against the two of you, but I think that the Line Item Veto Act was quite clearly in violation of Article I, Section 7, Clause 2, that permits the President to "sign it [a bill]" or "return it" but which does not permit the President to "sign part of it and return part of it." I did not like the result in Clinton v. New York, but thought it was a slam dunk case simply on textual grounds.
P.O.L.
Interesting argument. You take the position that Congressional Rules of Proceedings are superior to statutes. I think it is the other way around; in all other settings (civil procedure, evidence, administrative law) statutes trump rules. At best, a court might find that that, like statutes and treaties, statutes and rules of proceedings stand on equal ground, in which case "last in time" controls. But it's a neat idea.
In the other settings you mention, the source of rulemaking authority is statutory rather than constitutional, and, if I recall correctly, the rule enabling statutes provide that enacted rules can't conflict with the statutory law. Since the constution grants rulemaking authority to a particular body, I think a strong case can be made that no law or treaty could interfere with that authority. It's not unlike the rules of court under Ohio law, where the the rules prevail over conflicting statutes because the rulemaking authority is granted to the Ohio Supreme Court in the Ohio Constitution. Although, the Ohio Constitution is admittedly more clear on the supremacy of the rules.
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