Line item veto proposal

Scarberry, Mark Mark.Scarberry at
Tue Mar 7 14:17:06 PST 2006

Each house would retain, I think, the right to change its rules
unilaterally, even if the rules were set by statute. But setting the rules
by statute would generate a uniform approach in both houses, and one which
either house would change unilaterally at the political peril of its
Mark S. Scarberry
Pepperdine University School of Law


From: conlawprof-bounces at
[mailto:conlawprof-bounces at] On Behalf Of Ilya Somin
Sent: Tuesday, March 07, 2006 1:55 PM
To: Sanford Levinson
Cc: DavidEBernstein at; conlawprof at
Subject: Re: Line item veto proposal

As something of a formalist, I don't think that this"formalist" objection
would work. Article I gives each house of Congress the power to set its own
rules.  A rule that says that proposals emanating from the baseclosing
commission or the Bernstein Anti-Pork Commission must get an up or down vote
without amendment is one that seems well within  this internal rule-making

To preempt a possible objection, I should note that I take a similarly broad
view of  congressional power to set internal rules even in cases where it
may go against conservative or libertarian interests. For example, I see
nothing unconstitutional in Democratic senators' efforts to filibuster
Bush's judicial nominees, despite the arguments of some conservative legal
scholars to the contrary.

Sanford Levinson wrote:

I'd have no particular objection to such a proposal.  I suppose some
formalists would argue that this requires a constitutional amendment.  


From: conlawprof-bounces at
<mailto:conlawprof-bounces at>
[mailto:conlawprof-bounces at
<mailto:conlawprof-bounces at> ] On Behalf Of
DavidEBernstein at <mailto:DavidEBernstein at> 
Sent: Tuesday, March 07, 2006 3:22 PM
To: conlawprof at <mailto:conlawprof at> 
Subject: Re: Line item veto proposal

How about a National Pork-Ridding Commission, modeled on the baseclosing
commission, to meet annually, after budgeting is through, to evaluate, and
recommend defunding of, earmarks before the money is actually spent. Up or
down vote thereafter, as with the base closings.
In a message dated 3/7/2006 4:19:12 PM Eastern Standard Time,
SLevinson at <mailto:SLevinson at>  writes:

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.


David E. Bernstein
Visiting Professor
University of Michigan School of Law
George Mason University School of Law <> 



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Ilya Somin

Assistant Professor of Law

George Mason University School of Law

3301 N. Fairfax Dr.

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e-mail: isomin at <mailto:isomin at> 

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