Line Item Veto Question

[Richard Dougherty]

Wouldn't it be much easier for Congress just to revert to an older method of passing appropriation bills, in which it would authorize the President to spend "up to" $X, and then leave it up to him to implement the spending plan?  No need to hamstring
subsequent congresses, and no need to go through the process of reviewing line item strikes.  Though it would be limited to appropriations, I'm sure similar language could be employed for regulations.
Richard Dougherty

Bryan Wildenthal wrote:

> 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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