Line Item Veto Question

Bryan Wildenthal bryanw at tjsl.edu
Thu Sep 7 15:19:50 PDT 2006


 Actually, reflecting more carefully on David Bernstein's proposal, I
think I may have misread it to include some kind of "unless Congress
specifies otherwise" proviso. If it really is for EVERY bill
"henceforth" that any future Congress passes, then I think it violates
what I see as the operative theory behind Clinton v NY (which I happen
to think is a correct constitutional theory): that no Congress can tie
the hands of all future Congresses by altering the constitutionally
specified bill-passage-veto procedures so as to change the essential
dynamic of the constitutional process to give the President more
leverage (and Congress less) than the constitutional process provides.

If David's bill really would apply "henceforth," then it's effectively
forever. The President would certainly veto any future bill seeking to
take away his LIV leverage, and one third plus one of either House of
Congress could indefinitely prop up such an effectively permanent
alteration of the constitutional bill-passage dynamic and balance of
power.

I think Congress must have the constitutional power to say in any future
bill (and not just in a law that survives presidential veto) that such a
"treat every item as a separate bill" approach would NOT apply to that
bill.

Bryan Wildenthal
Thomas Jefferson School of Law (San Diego)

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Bryan Wildenthal
Sent: Thursday, September 07, 2006 3:02 PM
To: Conlawprof at lists.ucla.edu
Subject: RE: Line Item Veto Question

I posted a comment on this subject to the list early in the summer,
which elicited no reply and I guess was the proverbial tree falling in
the forest.

I don't have it saved handily on my email, but I think the gist of what
I suggested (in part) was that there's really no need for any of this
fancy footwork on line-item vetoes. If Congress REALLY wants to give the
President this power, it is perfectly easy to do so. In any given bill,
Congress can simply expressly delegate to the president the authority to
cancel any line-items within that bill (with no further formal
veto/override process).

If the President does so, Congress can always repass such a provision as
a separate bill and see if they can muster 2/3 to override if he then
vetoes (exactly what would happen, in substance, with a 2/3 override
provision for LIV "cancellations" such as the Supreme Court struck down
in Clinton v NY).

The only difference to my approach, is that it requires Congress to
activate the LIV option again and again, in each new omnibus bill. I
think it avoids the problems that concerned the Court in Clinton v NY,
because it doesn't monkey around with the formal bill passage/veto
procedures, and essentially only raises "delegation doctrine" issues
(none troubling that I can see).

I would add that I also (offhand) see no glaringly obvious
(constitutional) problem with the approach David Bernstein suggests
(though Earl Maltz may well be right in terms of the formalities). It
involves a very similar political dynamic to what I suggest, in that
Congress would have the power to reconsider the LIV option again and
agian with each new bill (rather than "locking the door and throwing
away the key," as did LIV law struck down in Clinton v NY). Congress
could exempt any future bill from such a Bernstein-esque "general
procedure" law, and they undoubtedly would if they wanted to use the
leverage of an omnibus bill to get through a provision they might fear
the President would single out for LIV.

The bottom line question is: Is Congress really going to give up its
omnibus-bill leverage over presidential vetoes, in any realistic
case-by-case way -- as opposed to posturing in support of the LIV as a
general theory, while counting on the Supreme Court to strike down any
alteration of the Constitution's formal bill passage rules?  My guess:
no.

Bryan Wildenthal
Thomas Jefferson School of Law (San Diego)

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Earl Maltz
Sent: Thursday, September 07, 2006 8:39 AM
To: DavidEBernstein at aol.com; Conlawprof at lists.ucla.edu
Subject: Re: Line Item Veto Question

One might argue that the Constitution requires each individual bill to
be 
voted upon separately before being sent to the President for his
signature.

At 11:21 AM 9/7/2006 -0400, DavidEBernstein at aol.com wrote:
>Is there any reason why Congress can't simply pass a law that says 
>something along the lines of "Henceforth, when legislation is sent to
the 
>president that contains more than one item, each item shall be
considered 
>a separate bill.  The president may sign the entire piece of
legislation, 
>which shall be deemed as approving the entire bill, or he may, with a
red 
>marker, cross out any item that he objects to, and then sign the rest
of 
>it, which shall be deemed a veto of those items so marked, with the
rest 
>of the legislation approved."
>
>Or, if that's no good, "Henceforth, when legislation is sent to the 
>president that contains more than one item, each item shall be
considered 
>a separate bill.  The president shall either sign or veto each item 
>individually."
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