Line item veto proposal

Tue Mar 7 12:47:44 PST 2006

I would be far more willing to support such a proposal, which I think
speaks to a real problem--i.e., runaway pork because of the incentives
of legislators to seek rents for their constituents and log-roll with
others for support--if I trusted presidents more.  But it is foolish
beyond measure to view the president, whether Republican or Democrat, as
a "virtuous Madisonian" who will use the veto axe in a disinterested
manner.  Instead, she will (inevitably) use it as a mechanism for
rewarding political party friends and going after partisan enemies.  I
see no good reason to give added power at this time to an already
overpowerful presidency.  There are other ways to go after pork.

sandy 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Barksdale,
Yvette
Sent: Tuesday, March 07, 2006 11:52 AM
To: Samuel Bagenstos; Dr. Bitzer; Mark Tushnet; ConLaw Prof
Subject: RE: Line item veto proposal

I think one problem might be (and I'm not sure how serious this is),
that the law requires the Congress to introduce and vote on bills
proposed by the President. I could be missing something,  but I think
the other fast track laws relate to bills initiated by Congress (For
example, Congressional fast track review of administrative regulations).
Does any one know of another  example of a law which requires the House
and Senate to vote on Presidential initiatives?  Similarly, the
invalidated line item veto bill  - that one permitted the President to
line item legislation by Congress - the decision to put the legislation
on the legislative agenda was Congress' not the President's. This takes
away a significant power of Congress - to decline to consider
Presidential proposals. Also, appropriations bills are supposed initiate
in the House , this is a recission of an appropriation, so maybe that is
a different matter. 

 But in general,  this seems to be a significant restriction on
Congress' power to decide what the legislative agenda is. 

yb

***/////////////////////////////////////////***

Professor Yvette M. Barksdale
The John Marshall Law School
315 S. Plymouth Ct. 
Chicago, IL 60604
(312) 427-2737 (phone)
(312) 427-9974 (fax)

***/////////////////////////////////////////***

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Samuel Bagenstos
Sent: Monday, March 06, 2006 11:29 PM
To: Dr. Bitzer; Mark Tushnet; ConLaw Prof
Subject: RE: Line item veto proposal

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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