Line item veto proposal

Mon Mar 6 21:29:02 PST 2006

This seems pretty clearly constitutional to me, even under Clinton v.
CONY (which, I'll admit, I think was wrongly decided).  This is even
less of a "line-item veto" than was the law invalidated in Clinton.  All
this is is a fast-track procedure for recission bills, together with an
authorization for the president temporarily to suspend spending.  No
appropriation gets permanently cancelled unless a law is passed by the
ordinary Article I, Section 7 process.  So what's the problem?

====================================
Samuel R. Bagenstos
Professor of Law
Washington University School of Law
One Brookings Drive
St. Louis, MO  63130
314-935-9097
Personal Web Page: 
http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
Disability Law Blog:  http://disabilitylaw.blogspot.com/

>>> "Dr. J. Michael Bitzer" <jmbitzer at catawba.edu> 03/06/06 7:29 PM
>>>
Mark, 

Below are some comments from the President's Message about the proposed
legislation, as well as responses to questions from OMB Director Bolten.
 I'd be interest to know what others think about the fact that Bolten
stresses the point that the returned measure would be a straight
up-or-down vote with no amendments and a simple majority (pertaining to
a prospective filibuster threat in the Senate?)?  Does this really get
around the USSC's ruling in Clinton to ensure the presentation of a
rejected line item of a spending bill?  Michael 

---------------------------------- 
>From the President's Message, found on the White House's website
(http://www.whitehouse.gov/news/releases/2006/03/20060306-5.html): 

My proposed legislation, the "Legislative Line Item Veto Act of 2006,"
would provide a fast-track procedure to require the Congress to vote
up-or-down on rescissions proposed by the President. There has been
broad bipartisan support for similar proposals in the past. Under this
proposal, the President could propose legislation to rescind wasteful
spending, and the Congress would be obligated to vote quickly on that
package of rescissions, without amendment. The same procedure would
apply to new mandatory spending and to special interest tax breaks given
to small numbers of individuals. 

Also, comments by Budget Director Bolten
(http://www.whitehouse.gov/news/releases/2006/03/20060306-6.html): 

Introductory remarks: 
Most of you are aware that the Congress did enact a line-item veto
which was available to the President in 1996, but the Supreme Court
struck that law down as unconstitutional as drafted. Since 1996, when
the law was struck down, earmarks have increased dramatically, and
that's part of the reason why the President has decided to send forward
specific legislation now to restore a line-item veto authority and, in
particular, restore one that passes constitutional muster. 

What this legislation does -- by the way, the title is the Legislative
Line-Item Veto Act of 2006. It provides the President the authority to
single out wasteful discretionary or mandatory spending, or special
interest tax breaks given to a small number of individuals and to put
them on hold. During the time that the spending line-item is on hold,
the President can send legislation to Congress to rescind the line-item.
The legislation under the statute would be considered within 10 days of
introduction on an up or down basis without amendments and could be
passed by a simple majority and could not be filibustered. 

Q But why hasn't Bush been more active in using his existing rescission
authority? Given the fact that both Houses of Congress are of the same
party, couldn't you shame them into delivering votes under existing
authority? 

DIRECTOR BOLTEN: Well, there is existing authority to send up
rescission packages, but they -- and I think there's been something in
the Impoundment Act for the last 30 years. But we've been unable to find
any instances in which a President has successfully been able to use
that authority. I think the principal defect of the authority that
exists now is that there is no particular guarantee that a provision can
or will be brought to a vote, or that a bill would not be amended once
it hit the floor. And so that makes it very difficult to move a vehicle
like that, even if everybody was agreed that on a particular
appropriations bill, almost everyone was agreed, except for the sponsor,
that this provision ought to come out, it would be very hard to control
that vehicle if it were amendable on the floor once it got to the floor.
The current authority is a very difficult and awkward way to do
business. I think the legislation that the President is sending forward
today cures that problem. 

Q But can you just go over one last time some layman's terms, and I
know McClellan had talked about it before, and I'm sure you probably
talked about it at the top of the call, just more about the language or
the difference from the ruling, the Supreme Court eight years ago? 

DIRECTOR BOLTEN: The key difference is that the proposal that the
President is making today would give him the authority to line out
individual elements of spending -- but, unlike the provision that was
found unconstitutional a decade ago, it would not give him the
unilateral authority to cancel spending. The President would send
forward a legislative package with the rescissions proposed in that
package, then available for an up or down vote in both Houses of
Congress within 10 days. 

------------------------- 

"The liberally educated person is one who is able to resist the easy
and preferred answers, not because he is obstinate but because he knows
others worthy of consideration." 
Allan Bloom, The Closing of the American Mind (1987) 

J. Michael Bitzer, Ph.D. 
Assistant Professor of Political Science 
Catawba College 
2300 W. Innes Street 
Salisbury, NC 28144 
Office Phone: 704.637.4117 
faculty.catawba.edu/jmbitzer/index.html 

----- Original Message ----- 
From: Mark Tushnet 
Sent: Mon Mar 6 19:04:28 EST 2006 
To: ConLaw Prof 
Subject: Line item veto proposal

Could someone with better Web skills than I post the current 
proposal for a line item veto, with whatever explanations are 
availablle (from a list member or from the administration) of why 
this proposal differs from the statute held unconstitutional in 
Clinton v. NewYork?  TIA.
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