Article I, Section 7, Paragraph 2 of The Constitution of the United States clearly outlines the president’s veto power.



Yet last night George W. Bush asked Congress to give him a line-item veto.

.

http://www.courant.com/news/nationworld/hc...dlines-breaking

Indeed, Congress did just that during the Clinton Administration and Clinton signed the bill.

In 1997, the U. S. Supreme Court declared the measure unconstitutional in the case:

Clinton v. City of New York, 1997

http://lw.bna.com/lw/19980630/971374.htm

The decision was made in a 6-3 split. The split is odd. The dissenting justices were Breyer, Scalia and O’Connor.

Questions for debate:

1. Can a line-item veto become law without a constitutional amendment?

2. Will passage of a line item veto realign the separation-of powers?

3. Given that there are two new members on the court, do you think a line-item veto bill would be declared constitutional or unconstitutional?

4. When the court’s foremost “originalist” votes to sustain a line-item veto law, is this judicial activism.

5. Do you think giving the president a line-item veto would be good or bad public policy?

1. Can a line-item veto become law without a constitutional amendment?

The Supreme Court has already struck it down. I think there is some confusion here about Bush's speech last night. I interpreted his statement as a call for an amendment since the original law was declared unconstitutional. This has been discussed ever since the Court ruled. By passing a constitutional amendment the law would be settled.

2. Will passage of a line item veto realign the separation-of powers?

According to what I've read this is a much need shift back to the way things were before 1974 Budget Act




3. Given that there are two new members on the court, do you think a line-item veto bill would be declared constitutional or unconstitutional?

Justices Breyer, Scalia, and O'Connor dissented when it came up last time, so at best there are only four votes in favor if Alito takes O'Conner's place and Roberts agrees.

4. When the court’s foremost “originalist” votes to sustain a line-item veto law, is this judicial activism.

Are you mentioning someone specific here? The court ruled 6-3 on this before on non ideological lines.

5. Do you think giving the president a line-item veto would be good or bad public policy?
I think it would be great. The Senators opposed to the law (Byrd for example) have demonstrated time and time again a willingness to attach pork. The line-item veto is perfect for this and does now give the President too much power. I thought Clinton used it well when he had the power.

1. Can a line-item veto become law without a constitutional amendment?

I suppose it could, just as it did during the Clinton years but I don't think it would stand up to a Supreme Court challenge. So we might have it as a law for a year or two until the courts could hear the case. The basic case that Clinton V. City of New York makes is that by allowing a line item veto you are giving the president the power to amend and modify legislation, a power which is not his according to the Constitution. The decision goes on to present things in a more complex manner but that is the gist of it.

2. Will passage of a line item veto realign the separation-of powers?

No I don't think that it would, I think that it would give the President expanded power not balance the power. This is an end run around Congress. The President has the power to veto legislation and that is all that he should have the power to do, he shouldn't have the power to change that legislation at his whim by omitting things and then signing the revised versions into law. If you do that then you've really made Congress obsolete.

3. Given that there are two new members on the court, do you think a line-item veto bill would be declared constitutional or unconstitutional?
Alito, based on past rulings, seems to be for increased presidential authority and is replacing O'Connor. Since she dissented in the Clinton case that vote likely wouldn't change. I really don't know enough about Roberts to understand how he'd rule (part of the mystery about him) so I'm not sure if he'd be consistent with Rehnquist or not.

5. Do you think giving the president a line-item veto would be good or bad public policy?

I don't think it is the solution to Bush's stated problem. In his speech he said:


If the goal is to combat special interests, what makes you believe that the President has an interest in doing that? Does anyone really believe that if Bush had the line item veto he'd be stripping pork out of the bills that went to the home districts of members of his party? I think the much more likely scenario here is that Bush intends to use this to get rid of parts of legislation he doesn't like rather than attack pork. I could see future presidents using it in that way and also using it against their political enemies. Heck I could even see this as a new outlet for the lobbying industry which generally doesn't deal with the President, if you worked things right you could get the President to veto certain parts of legislation when you failed to convince congress or instead of convincing Congress.

If we really want to solve the pork problem a much more sensible solution would be to require bills to be about a single issue reflected in the title of the bill. Pork gets stuffed into all kinds of things and people won't vote against it because then they'd be on record as voting against something like a defense bill, etc which is part of the strategy. Making the title of the bill descriptive would also likely get rid of cute things like calling a bill the "patriot act" making for a field day with soundbites if you vote against it and don't dig into what it actually says.

There are probably numerous procedural reforms that could be considered in both the House and the Senate to combat pork and special interests.

Just because Bush claims that the line item veto is a solution to this problem doesn't mean that it is and it also doesn't mean that it won't or can't be used in other less desirable ways.

That's not what he said. In the context of the words immediately before the call for a line-item veto, Bush said "I am pleased that members of Congress are working on earmark reform because the federal budget has too many special interest projects. And we can tackle this problem together." I took it to mean trying again through the legislative process and hpoping the new court would sustain the legislation. Amending the constitution is a cumbersome process demanding overwhelming support. If such an amendment were to become law, it might well be years after Bush leaves office. Surely Bush is aware of this.

When Bush proposed a constitutional amendment banning gay marriage, he was quite specific. I have a hard time believing Bush meant taking a constitutional amendment approach.



Although the three dissents were non-partisan, I was referring to Scalia. I find it rather amusing that he, in particular, would vote to sustain a law of Congress that adds to the powers of the president, when there is not even a hint of that power in the original constitution.

I personally think Scalia is an "origonalist" only when it suits his ends.

I'll leave the subjective Bush parsing to you. It could be argued that the Budget Act of 1974 is the unconstitutional overreach by the legistlative branch. If the Congress can restrict the power of the executive branch why can't it add to it?

Anyway, it would be nice debate the merits of the law and not the current political make up of the day. Things are much more objective that way.

I agree with Cube Jockey's take on this issue. While it might seem like a good idea to give a president a line item veto to remove things like earmark and pork. Even if presidents when given this don't abuse it, there is always the chance for political payback to members that oppose something the president or party disagree with. Another thing I agree with CJ is if they want to make a change, get rid of stuffing items in a bill that has nothing to do with the original bill's content. That would be the only truely way to protect from political payback or even being accused of it.

Edit: err I accidently hit the no vote when I meant to hit the yes

#1: I think it is rather plain that it cannot. I would support such an Amendment, however.

#2: Not considerably. The President has the power to veto the entire Bill, after all; the only increased power he gains here is to veto either unrelated parts of the Bill, or to "neuter" the bill by vetoing portions of the Bill that are necessary for enforcement. This is functionally little different from vetoing the Bill entirely; the chief difference is political.

#3: I'm not really qualified to comment on this, but the other posters' arguments that the original ruling would apply seem logical enough.

#4: I do not see the point of the term "judicial activism"; it's just another buzzword for court decisions that the person using the term disagrees with.

#5: I think it would be a matter of good policy, allowing the President to strike down the "ornaments" on "Christmas tree" legislation instead of discarding it entirely. I think the chief problem is that the President-- any President-- feels restrained from vetoing bad law because of its political purpose. It seems as though constant monitoriing of approval ratings and the constant campaign for re-election has made our elected officials too afraid for their jobs to do them properly.

I cant answer other than the parts I opine about.

I would and do completely and totally support a line item veto. Im tired of Pork and other items being attached to Bills that have nothing to do with the original.
Of course, Ethics are needed in the Presidency, which are wane in this day and age, so its a draw. It appears to me George really wants to be King and was not aware he might be calling for an Amendment, he must have thought it was simple legislation.

However, with a supposedly, lets say 'alleged' strict Constitutionalist Court, a line item veto aknowledged only by the Supremes is completely out of the question and anything otherwise would definately be legislating from the Bench.
An amendment would be necessary.

I would support an Amendment.

Am I missing something? I still have not read one example of how a President could abuse a line-item veto? The President already has the power to veto the entire bill. For the liberals think about it this way. Imagine your favorite liberal as President, but there is a Republican controlled Congress.

The Republicans draft a very popular bill that they know the President cannot veto. Knowing this the Congress attaches all kinds of things the President is opposed ideologically. Instead of vetoing the bill the President can cut out the attached items. The only possible abuse (and this is a strong word) is that the President at the time will only cut out one Party’s pork. Any pork being cut would be a good start.

Then you don't have a very good imagination, or you haven't been paying attention to current events.

Let's start with observed events. Entspeak made a good point in this post about Presidential signing statements which are effectively a line item veto. Bush has used these over 500 times during his tenure in office, far more than any president in history. Coming in second is Clinton with around 90 of them. The next highest is in the 20's I believe. If you used a line item veto in place of these signing statements in very many cases you have fundamentally altered the legislation or completely handicapped it.

Now let's use our imaginations a little bit. Let's say the President gets a bill filled up with pork, like I don't know the recent Energy Bill that was passed. The vast majority of that pork went to people in the districts of Congressmen in his party.

The far more likely scenario is that he would use it to eliminate pork from the opposition instead of pork in general. If you believe otherwise then the burden of proof would be on you to show that this is in Bush's character to do because he has not shown this by his actions in his presidency so far.

That isn't progress, that is ensuring that the pork comes as spoils of war from the Presidential election.

It doesn't really stop there, the President could use this power against his political enemies in any number of ways. He would potentially become a target of lobbyists since striking a key portion of a bill could be all their clients want.

It would effectively give the President vastly increased power over Congress which is why the Supreme Court struck it down in Clinton v. City of New York. Regardless of whether the President wills it in his SOTU it requires significant support to get a Constitutional Amendment passed and that support simply wouldn't be there.

You still didn't answer the question I asked, is your interest in getting rid of pork and special interests or are you just interested in cheerleading for Bush and buzz word policies? If you are truely interested in taking on special interests and pork there are many ideas which could be implemented that are much less controversial, don't give the President extra power and would be more effective.

I agree with CubeJockey that the line item veto is certainly a potential abuse in the making.

I don't favor the line item veto. It gives the President unintended authority over legislation. The only way I'd favor it if it allowed entire sections, not lines of sections, to be vetoed. Congress could then structurally arrange the bills so that related items could not be deleted. Even in this case, I'd have my doubts as to Congress' trustworthiness to arrange bills in a manner that allows pork to be sliced out.

The Constitution does not give the President the power to make laws, nor should it.

I further agree with CJ that the President could use the line item veto to favor his party's pork over the opposition's pork. While pork reduction is good, this gives the President very broad powers to influence elections in an underhanded manner.

In principle, the line item veto would be a good thing. In practice, it probably is not.

Can a line-item veto become law without a constitutional amendment?
I doubt it. One or two of the dissenters in Clinton v. City of New York would need to change their minds.

Will passage of a line item veto realign the separation-of powers?
No. It's a band aid.

Given that there are two new members on the court, do you think a line-item veto bill would be declared constitutional or unconstitutional?
Nope.

When the court’s foremost “originalist” votes to sustain a line-item veto law, is this judicial activism.
I don’t think so. I don’t think we can read new meaning into the Presentment Clause of Article I. It’s fairly more straightforward than “advise and consent.”

Do you think giving the president a line-item veto would be good or bad public policy?
Ditto what Cube Jockey said. My mind immediately jumped to potential abuse, especially by Bush. Has anyone looked at Gonzales’s White Paper (pdf)? If the administration can extract 42 pages from a congressional authorization totaling 312 words and cite Hamdi as if losing that argument to SCOTUS works in their favor, imagine what creative touch ups they can give line-item veto power. No thank you.

I wonder why Bush recommended earmark legislation and line-item veto power. Does he feel like his office risks being behind the power curb if Congress doesn't expand the office's influence? Congress could write new legislation on earmarks and rewrite or null the Budget Act of 1974 without bothering with the courts or a constitutional amendment if they’re serious about it. The only down side is they'll skip out on an opportunity to bring up "judicial activism."

Considering that I was in favor of this when Clinton was President I doubt it has anything to do with cheerleading. In addition, if this ever becomes law it will likely be after Bush is President. The line-item veto is not a new idea; it is used in many states. Are there examples of Governors abusing this? It seems to me the arguments against this a very weak. Especially considering that both parties have shown absolutely no fiscal restraint.

Worried about one party getting all the pork, isn’t that what is happening now? I assume (and I could be wrong) that most of the pork is coming from Republicans since they are drafting the legislation.

Also, for those that believe the line-item veto gives the President too much power, what about repealing the 1974 Budget Act? I wonder what would happen if someone challenges the act on constitutional grounds? As I mentioned before it appears that act was an overreach by the legislative branch.

I'm not sure what your objections are to the 1974 Budget Act, would you elaborate on it? It seems it is responsible for our current budget process but it'd be good to clarify your objections to it. I can't really respond to your post until I know your position.

I have a couple of points to make.

1. According to factcheck.org:



http://www.factcheck.org/article376.html

2. As Governor of Texas, Bush occupied a constitutionally weak office. For example, his only power in death penalty cases was to grant one and only one 30 day stay of execution.

One power he did have as Governor was a line-item veto on spending bills. I am not sure if Bush wants the line-item veto to extend to legislation other than spending bills.

I do somewhat agree with the issues put forth by CJ. What I think would happen, though, is that politics itself would resolve them. For example....



What would happen in this case? The bill would have to go back to Congress. All those who had their pork eliminated are then going to be unlikely to support the bill. Clearly, their support was needed, that's why they got the pork in the first place. So, back to square one. What's likely to happen then? The bill doesn't get passed, so no ones happy.l In essence, this is pretty much the same process that bills go through anyway, so I'm not sure I see the harm. Also, the other party would surely scream bloody murder everytime something like this happened, creating a political issue for the President. I think the net effect of all this would be that, will potential for abuse might exist, in practice I only think it would be used in cases that could be easily defended...blatant pork, in other words. Wouldn't we all be better off if blatant pork were eliminated from our Congressional diet?

You're talking about his power of impoundment? That was never spelled out in the Constitution. The power of appropriating money, on the other hand, is an explicitly legislative power, and one can only assume that if Congress has the power, it has the power to make sure its acts are carried out. Article I's Necessary and Proper Clause would seem to back this up. But there's no such defense that could be made of a line-item veto.


It's not just a matter of one party or the other getting the spoils. A line-item veto would give the President the power to reward and punish individual Congressmen. It would give him way too much influence over the legislative process.

That isn't the way the 1996 version worked, see wikipedia for details:


The original legislation got passed minus lined out portions. Those portions then went back to congress where they could either let them die or vote on them again and send them back. The President would then still retain the ability too veto this line item as a separate bill requiring a super majority to override him.

So as you can see something like that would effectively kill pork without threatening the bill itself. However, the potential for abuse here is huge. You could kill pork for your political opponents and not your political allies (particularly important if the majority party in congress isn't yours). You could also kill portions of legit bills and exert influence over legislation and effectively make it impossible to get certain things passed since they would have to stand on their own, could still be vetoed requiring a 2/3's majority.

So let's put this in real terms and say this thing gets passed as a constitutional amendment sometime before 2008. Hypothetically a democratic president enters office but the GOP maintains control of the house annd senate. They manage to pass ANWR drilling inside of some budget bill (like they did this year and almost everyone here that calls themselves conservative or Republican supported it) and the Democratic president kills it. The GOP clearly can't get a 2/3 majority on this so it is dead. Now how many people would be running around calling fowl about that? You have given the President incredible power over Congress now.

If you support this it might be worth asking yourself if you'd still be supporting it when your party isn't in a position of power to use it because at some point that will be the case.

Even during Clinton's tenure this was abused and that is part of why the courts originally took on the case. This CNN article lays it out. TThere is also some information in that wikipedia article.

As I've said a few times now in this topic I'm all for taking measures to eliminate pork from bills, but giving the President the power to do that and giving that office increased power is the wrong way to go about it. No matter what language you write, the potential for abuse will be there in some form once you go down that path. The better way to address it is to change the rules that govern the way congress can author, amend and pass bills.

FWIW...I supported it when Clinton asked for it, as well.



You mean, less abuse than the tens of trillions of dollars in unfunded mandates Congress has managed to legislate? Not saying this is all pork, but rather pointing out that sometimes you need to choose the lesser of two evils. Clearly, Congress needs somebody to control them. But, I think where we differ is I've never felt potential for abuse to be a reason not to do something, if said abuse already carries consequences with it. As I described above, abuse carries with it political repurcussions. That in itself would mitigate it. Further, abuse would lead to Congress changing how it does business, as those abused become reluctant to sign on to legislation. Given political realities, I really don't think it would be abused that much, whereas there is a tremendous amount of pork it could eliminate. In fact, it might cause Congress to stop using pork as means of getting support....something that would be worth a certain amount of abuse if it came about.

On the flip side, as has been pointed out in other discussions on this matter, the President really does already have line item veto power: veto the bill, tell Congress the specific lines that caused you to veto it, and move on. The problem with this method is that it throws the whole bill back into Congress, delaying legislation, which causes a whole other set of problems, both fiscal and political.



I'm not sure that I can envision a way to do this. The problem isn't the process, its the politics. Those politics will infest any process we gave Congress, I think bringing us right back to where we are currently.


Hmmmm...unless the line item veto worked the way I incorrectly stated it did earlier?

It isn't a question of picking the lesser evil, it is a question of seriously altering the balance of power between our three branches of government. Congress does have a check on it with the President's veto power. If Presidents would use this power instead of signing everything that comes across their desk like a rubber stamp then Congress would eventually get the picture. They'd have to work overtime to get things done and they'd feel it at the ballot box for not doing their job. And honestly, slowing legislation down a hair wouldn't be a bad thing necessarily.

But if you insist on making it a comparison on evils then placing power in the hands of many is better than placing power in the hands of one.


Hobbes, it isn't a potential for abuse it is a certainty. I didn't want to bring Bush into this because this isn't about him and I didn't want it labeled as a Bush bashing fest but you are forcing me to bring him up to illustrate my point.

Bush is a man that has no problems destroying his political enemies, every single person that has spoken out against his administration has found themselves without a job with a damaged career and on the defensive - there are no exceptions. This is a President that doesn't feel he has to answer to anyone. This is a President that has issued 500+ signing statements basically stating that he would not uphold certain parts of bills that he didn't like. If this President had the power today do you honestly believe he wouldn't use it, or rather abuse it?

History will see future Presidents like Bush and if this power is around, boy are we in trouble. That is why the balance of powers is setup as it is, to prevent things like this.

As I laid out above, there are no political repercussions with the line item scenario. The President gets his way and he can use that power to kill the opposition's pork, he can punish individual congressmen, even individual states and communities. He could kill entire programs completely outside of the Democratic process. If you give the President this power the volume gets turned down on other branches and he becomes very king-like. Congress is given the power of the purse, that is one of their checks on the President.


There have been plenty of proposals on this subject (where is crash when you need him?) but they aren't exactly "sexy" like buzz word policy is. Things like tweaking the amendment process, changing the budget process, introducing single issue bills, lobbying reforms, transparency and accountability reforms, the list goes on. There are things no one has even thought of yet.

And at the end of the day if we had a President that was really serious about stopping pork he could start issuing vetos for legislation shutting down the government until Congress got their act together. It would be a powerful statement and it would work.

Hmmmm. Good point, can't really disagree with that, other than to s ay the many could still override the one, if it truly were the many. In my mind, it is more a matter of not letting the one get away with injecting his pet project into a bill that doesn't need it.



Short answer....yes. As I have stated, using the line item veto wouldn't come without its own set of limitations. How ready would opposing Senators be to sign on to future legislation if they felt they were burned? Do you honestly think the opposing party wouldn't scream bloody murder if they felt they were being abused, thereby creating issues the President would have to deal with? Abuse of the line item veto would certainly be a rallying cry in the next election, likely giving the abused the chance to get even in the future.

I think it also worthwhile to define 'abuse'. Even if I granted that only selected, biased pork were eliminated, that's still less pork than we have currently. How is that a bad thing? Plus, knowing their pork would be eliminated would hinder the whole 'you scrub my back, I'll scrub yours' mentality that fills our bills up with pork currently. So, pork of the President's party is less likely to even get written into bills to begin with. So, I really don't see any abuse scenario that would cause me to have qualms about implemented it, especially if it were in a time limited 'test' form.




Sure there are, as I describe above.




All of which could be manipulated by pork starved Congressmen just as easily as the current system. Why do you think they don't pass single issue bills to begin with? So they can bury all their pork in one big package that the President would be reluctant to veto.


This also I don't really disagree with. Ditto for single issues bills, etc. The President could, in essence, enforce any of this if he were willing to live with the political consequences. Unfortunately, there don't seem to be many politicians willing to do that anymore. So, this still leaves us with the current problem, and what to do about it. All the voters assume the President already controls the legislative process. Seems like it wouldn't hurt to give him the power to at least try to do so, since I think it goes without saying that Congress has clearly shown its not capable of doing the job on their own.

I'm sure that they would but the current minority party, the Democrats, are screaming bloody murder about much more important things right now and you'll notice that their political enemies have done a pretty darn good job of deflecting that and at that same time spinning them as marginal, un-american and obstructionist. I guess we'll know if the public buys it or not in Nov 2006, they certainly did buy it in 2004.

The President could certainly be more effective if he dealt with the Democrats but if you ask his supporters he has gotten on just fine without them, many give him an "A" for his performance (numerous polls and topics here at AD prove that). To me that says that the President doesn't need the minority party to run his government and it wouldn't be that big of a deal if they were "upset".

Finally, something like abuse of the line item veto is something only policy wonks would care about, it isn't going to move the average voter in middle america. I'm sure we'd all have some good debates about it here at AD, but the average voter wouldn't care. If we can't get the public to care about being lied into a war, about the being wiretapped by the NSA or about a completely inept government (i.e. FEMA) what makes you think they'll care about something as wonky as the line item veto?

In other words I don't see the political fallout you are claiming is there.


They don't pass single issue bills because they are not required to by law or by procedure. Obviously that proposal would involve changes to procedures and laws that govern Congress.


Then they are ignorant and need to read the Constitution, because that simply isn't the case and it never has been. Just because the voters are ignorant that doesn't mean this is a good solution.

Here is a follow up question.

Will Democrats ever support a line-item veto while there is a Republican President? Is this another issue (like free trade agreements) that is only seen rationally when “one of their own” is in the White House? I suspect that this is the reason the current amendment is not going anywhere. The Democrats are unwilling to support anything that their extreme base sees as cooperation with the divisive President of the US.

Like CJ and I have both been saying while it could be a good tool its not whether a Republican or Democrat is in power that we agree with this. We both just see how it could be abused by either side so instead of having to worry about possible abuse we rather not allow the president this tool. Especially since he already has powers when he doesn't agree with a bill, the president can veto the whole bill and send it back with notes to why he is vetoing it, if congress doesn't agree and they get 2/3 vote they can over rule him. Or you could say Bush is already using a line item veto in theory thru his signing statements.

With what this president has done in other areas does worry me, and even if it was a Democrat doing I still would disagree with them also. Now also one could say if Bush did actually veto something and made a reasonable argument that the process was to time consuming we might have something even though all our other presidents have used the veto quite effectively thru out history.

Their extreme base? I haven't gotten an email about the SoTU. Except for the usual remarks about a sputtering SoTU speech I don't think I've read a single article with an opinion on his request for a line-item veto. BTW NAFTA has presented its own set of problems.

Bush has made the case to me that some good policies are only as good as the executer. No thanks, not now and not when a Democrat is in the White House. Congress can address this if it wants to without a babysitter and if not Congress then the voters, who are supposed to care as much as we do about pork.

I am loathe to defend Democrats, but there certainly were some that opposed the line item veto when Clinton was President. Carl Levin and Robert Byrd spring to mind.

Of course, Byrd is the absolute king of pork. Voting him out of office might balance the budget he is responsible for so much pork (hyperbole!!). So his opposition is suspect at best, but still present with a Democratic President.

I'm not sure your question is really relevant because there were plenty of Democrats that opposed the line item veto when Clinton was President.

I've already stated more than a few times in this thread that this power would be bad in the hands of any President, I don't care if he or she is Republican, Democratic, the best one we've ever had or the worst one we've ever had. This would damage the balance of power between our three branches of government and give far too much power to the executive branch.

And seriously, extreme base? Drop the conservative pundit talking points. 49% of the country voted for Kerry in 2004. If 49% of our country is "extreme" then you need a new definition. There are extreme elements of both parties, let's not sully this debate with that garbage.

1. Can a line-item veto become law without a constitutional amendment?

No. The Constitution is very clear about the President's abilities in this regard. He can send the bill back... that's it. Congress can not pass a law that violates the Constitution. If you want to alter the power of the President when it comes to lawmaking... alter the Constitution. The Amendment process is the only way.

2. Will passage of a line item veto realign the separation-of powers?

Realign? I thought it was in line without a line-item veto, being that the Constitution is set up to work without it.

3. Given that there are two new members on the court, do you think a line-item veto bill would be declared constitutional or unconstitutional?

There is already precedent regarding this issue and it would be difficult to overturn considering the vote in that case.

4. When the court’s foremost “originalist” votes to sustain a line-item veto law, is this judicial activism.

Scalia made a very interesting argument, though flawed. He claimed that it didn't violate the Constitution because the President was signing the bill into law before making the alterations thereby meeting the standards of the Presentment Clause. But it seems to me that that doesn't work... if he signs it, it is law and the veto option is closed. What they were trying to do with the Line-Item Veto Act was technically bypass the Presentment Clause. But, again... it doesn't work because the Constitution is clear... if he approves, he signs it... if he doesn't he sends it back. It doesn't say he can sign it and then veto the things he doesn't approve.

5. Do you think giving the president a line-item veto would be good or bad public policy?

No. The only way to stop pork is to send the bill back. If it is important legislation, the Congress needs to learn that they can't slip pork in and expect it to pass just because it's important legislation. Without the line-item veto, the pressure is put on Congress to either trim down the pork or prove by a 2/3 vote that it is necessary. Vetoing important legislation puts that legislation in the public's eye. The public wonders why that legislation is not being passed and when they realize it's pork related... they then put pressure on Congress to cut it out. It's part of the process. The potential abuse that could result from giving the President the power of a line-item veto – particularly a President who has already shown a willingness to use, what is in essence, a line-item veto in violation of the the Constitution and in spite of a decision that such action is unconstitutional – makes it bad policy.

For instance, a bill barely passes in Congress that has a line item that cuts funding from the budget for an executive agency – as part of a check on the Executive, couldn't the President then veto just the portion that cut funding for his agency and sign the rest into law? Under the current system, the President would have to veto the entire bill – throwing that bill into the public eye and requiring a 2/3 vote for passage of the entire bill. Now, being that Congress now requires a 2/3 vote and the bill barely passed the first time, the pressure is on Congress to decide if the line-item is worth losing the entire bill for... and I'm sure they'll be getting response from the public as to what should be done.

Requiring the veto of an entire bill and not just a section is part of the checks and balances system... like it or not. Considering this President's use of signing statements, I wouldn't trust him with a line-item veto. So, if people want that changed... pass an amendment to the Constitution. It is unlikely that such an amendment would pass, though.

Congress does not pass funding cuts bills, it passes appropriations bills. When the new level of funding is lower, it's a cut. But appropriations are usually good for one year. That's why a new budget is required every year.

I wholeheartedly agree with you that the President should outright veto pork-laden bills. It would certainly draw the needed attention to this issue. Heck, if I were President I'd publicly admonish the pork in the bills as the reason for the veto. The fact that Bush has not vetoed any legislation is extremely troubling.

Cube Jocky: I'm touched. The reason that I have not been posting is because of my studies lately; although, I hope to start posting more often.

The 1996 style acts may still be unconstitutional; however, Congress has been known to pass acts that has a/some provision(s) that repeals certain sections or entire laws some time after they are enacted. The most common type is sunset provisions. Congress could use something other than a specific date to repeal a law (an asynchronous event if you will) by the same logic. This event could be an objection by the President to Congress. If worded correctly, it might pass constitutional muster.

Anyways, the idea of a line-item veto has been around for over 100 years in the US. As proof, the Confederate Constitution has such a provision.
I know that it is not enforce, but it provides a historical reference.

Also there's a few line-item veto amendments being considered by Congress right now. Although, the one I like best so far says this (source):


A line-item veto might help remove pork out of the budget, but it does have potential for abuses. However, with a line-item veto, each budget provision would be acted upon as if it was a separate bill no matter how Congress arranges the appropriations, which might be a good thing anyway.

One a similar note, having each bill relating to one and only one subject would go a long ways to preventing pork without having a line item veto, but that is a topic for another debate.

He has however issued over 500 challenges to provisions in legislation with signing statements. In them he basically says he will regard certain mandatory provisions as "advisory" and not mandatory... effectively vetoing those provisions. While he may have a point and Congress can't require some of the things they ask for in those bills, his only option is to veto the bill... he can't say: I believe that this particular provision is unconstitutional so I'm not going to follow it. That is what is even more troubling.

One empirical way of answering the question of how effective a line-item veto might be at reducing pork is to look at states that have enacted it. Has it had much of an effect in those states? I know Massachusetts has a line-item veto, and it doesn't seem to have soured the taste for bacon at all. But I'd be interested to see if anyone knows of any other states' experiences.

I agree. It would be nice to see a President take a real stand against pork barrel politics. Line iteming pork out of something like the highway bill wouldn't have as much perceived impact as it would if Bush would have vetoed the measure outright.

I also agree with Entspeak regarding the signing statements. I'm not sure how its constitutionality can be challenged, but it does seem to be an abuse of executive power.

1. Can a line-item veto become law without a constitutional amendment?

I answered "other" in the poll. Not just any line-item veto could pass constitutional muster, but it would be possible for a constitutionally obvious version of one. The constitution already codifies presidential Objections being returned to Congress for reconsideration (Edited to add: the supermajority is only necessary when overriding the President's objections, not when addressing them via changes to the bill). If Congress chooses to institute special rules for addressing line-item Objections in a committee, and then voting to resubmit the changes to the President, no amendment would be necessary. In almost any other kind of line-item veto, including one restricted to budget items, it is hard to read the Constition in such a way that allows part of the bill to become law, while part of it doesn't.

A line-item Objection process would not really be the kind of line-item veto common in state governments, where the executive can sign portions of a bill into law, but not other portions, without legislative consent. With line-item objections, the President would have to veto the entire bill while urging Congress to resubmit it after making only line-item changes.

Clinton was a master at demonizing Republican legislation in public, then making only minor changes and getting the bills passed again. Something similar, but less dramatic, should be available. Something that allows a President to say, "This is a pretty good bill, and I'll sign it as soon as Congress addresses this list of objections, but with its current wording, I'm vetoing it. I hope Congress will see fit to vote on my objections and get the bill back to me as soon as possible."

2. Will passage of a line item veto realign the separation-of powers?

A typical line item veto (without Congressional review) would definitely shift far more lawmaking power to the President than the Constitution appears to allow. But it also seems obvious that the framers intended Presidents to propose more line-item Objections for Congress to reconsider. Today, it seems like Presidents (administrations) are expected to draft too much legislation-- Congress should be writing its own legislation, and the President should be more quick to list objections and send bills back for a revote. If new rules help facilitate a more reasonable way for Congress to vote on line-item Objections, I'm all for them.

3. Given that there are two new members on the court, do you think a line-item veto bill would be declared constitutional or unconstitutional?

I can't imagine that independent originalists would allow the President to pass part of a bill into law while rejecting another part of the bill without an amendment. Kennedy's Orwellian tirades aside, Alito and Roberts are not conservative activists. Breyer is a liberal activist, so his vote will depend on whether a liberal or conservative President is expected to be in power, and I think he'd side against Bush. Scalia might find himself the lone voice of dissent if a typical line-item veto were to present itself.

However, I can't imagine the Supreme Court even entertaining an attempt to prevent Congress from instituting rules in the House and Senate for fast-track reconsideration of bills vetoed with only minor line-item objections.

4. When the court’s foremost “originalist” votes to sustain a line-item veto law, is this judicial activism.

Originalists can disagree with one another, just like activists can disagree with one another. If Scalia really asserted that the text of the Constitution permits a President to pass part of a bill into law while vetoing another part, without Congressional reconsideration, then one must wonder why he strayed from the obvious wording of the Constitution, but I'm sure in his mind he did not. He didn't convince Justices Thomas and Rhenquist to side with him last time, so he'd probably have difficulty convincing Roberts, too.

I get the impression Alito would like the opportunity to prove Kennedy wrong about him wanting an all-powerful Executive, so striking down the line item veto would clear his name, and probably take a campaign issue away from the Dems in this year's elections. It would also make Bush's next judicial appointment easier to confirm, as the Dems will have been unveiled as wolf-criers.

5. Do you think giving the president a line-item veto would be good or bad public policy?

As a summary, I would support an obviously constitutional adjustment of House and Senate rules by which the President and Congress can better iron out wrinkles in legislation; but any policy that doesn't let Congress vote on changes or omissions before the bill becomes law is bad news at the federal level. A President would be wiser to veto politely, veto early, and veto often, esablishing a routine in which the veto is not always the end of the line, but the beginning of the final phase.

1. Can a line-item veto become law without a constitutional amendment?

It's doubtful since the U.S. Supreme Court already ruled it unconstitutional.

2. Will passage of a line item veto realign the separation-of powers?

Realign? I think it will unbalance the powers in favor of the presidency.

3. Given that there are two new members on the court, do you think a line-item veto bill would be declared constitutional or unconstitutional?

There is that concept of "settled law" that gives some Justices pause when the option to change old decisions comes up. Or they might just decide not to hear the case if it came up again.

4. When the court’s foremost “originalist” votes to sustain a line-item veto law, is this judicial activism.

I would think so, but I'm just a Democrat.

5. Do you think giving the president a line-item veto would be good or bad public policy?

I think it would be bad public policy. I am a believer in the balance of power. This sitting President has amassed an awful lot of power already (insert quote about the President wishing this was a dictatorship), and I blame this on the ease at which members of Congress are intimidated in time of crisis. They need to be clear-headed more than ever under such circumstances, and they let the country down. I hope this will be remembered come election time this year.

Actually, what Jack22 suggested just might work. (Emphases mine.)
By these two parts of the constitution, Congress can set up specific rules for line item objections. Jack22's solution here just may be a good compromise that both sides can agree on.

5. Do you think giving the president a line-item veto would be good or bad public policy?

Given our present government, it's net a bad public policy. In the best of "my personal view" of all worlds, there would be a one bill one topic policy observed by all four "estates". In that case I would be almost, but not quite, able to say that giving the president a line-item veto would be good public policy. But it would still need to be by a constitutional amendment!

I most fear the present "kluge" method that all four "estates" are "using on us" to get special interest and pork into law. Let's make each special interest issue and each pork issue stand alone in its own bill, with no off task add-ons. How to do this? I haven't the slightest idea!

I agree completely. If Bush somehow got a Constitutional line-item veto, what makes anyone think he would exercise it with any more wisdom than he's shown in other areas?

To be consistent, I also opposed a line-item veto for Clinton and will do so for any future president.