VETO, LINE-ITEM. In 1996 President Bill Clinton received what presidents had wanted for many years, the "line-item veto." This gave the president the power to select out undesirable items in appropriations bills, in bills granting certain tax breaks, and in bills creating or augmenting entitlements to prevent those items from becoming law while approving the portions of the bill to his or her liking. The constitutions of the majority of the states give their governors some form of line-item veto, but the U.S. Constitution has no comparable provision.
Lawmakers agreed that a statute that purported to allow the president to literally strike some items from a bill would be unconstitutional since the Constitution clearly requires that the president either sign a whole bill or veto it, not pick and choose among its parts. Congress sought to circumvent this prohibition by allowing the president to sign the whole bill and within ten days choose not to spend the money allocated for disfavored projects or programs. Congress then had thirty days to reject the president's decisions. But to prevail Congress needed two thirds of both houses, since the president could veto any bill and a two-thirds vote is required to override a veto.
Congress was aware that the bill had serious constitutional problems, so it included a special provision allowing an immediate and expedited challenge by members of Congress. Members recognized that giving the president line-item veto authority undermined their powers as legislators. A lawsuit was filed, and the district judge agreed that the law was unconstitutional. The case, Raines v. Byrd (1997), went directly to the Supreme Court, which dismissed it without reaching the merits. The Court found that the members of Congress lacked standing, effectively holding the special standing provision unconstitutional. According to the opinion, written by Chief Justice William Rehnquist with only Justices John Paul Stevens and Stephen Breyer dissenting, the plaintiffs suffered no personal injury, and any harm to them in their legislative capacities was not the kind of injury that is a proper basis for a constitutional challenge in the federal courts. Although only a procedural ruling, it was an important victory for the executive branch because it had the effect of sharply limiting if not completely eliminating cases in which members of Congress can sue agencies or the president for violations of statues or the Constitution.
The president's victory was short-lived. A year later, in Clinton v. City of New York (1998), the Court agreed, by a vote of 6 to 3, that the constitutional mandate that the president either sign an entire bill or veto it could not be evaded in this fashion. Although the constitutional clause can be seen as merely a formal procedural requirement, the majority opinion, written by Justice Stevens, recognized the major shift in the balance of power between the president and Congress that would result from sustaining this law. One of the most interesting aspects of this decision is that the usual divisions on the Court did not hold. Two conservatives, Chief Justice Rehnquist and Justice Clarence Thomas, were in the majority and one, Justice Antonin Scalia, who is often considered the most formalistic justice, was in dissent. The two justices often characterized as being in the center of the Court, Justices Anthony Kennedy and Sandra Day O'Connor, did not agree, and only Kennedy joined the majority. Justice O'Connor is rarely in dissent in major cases. Liberals were also divided. Justice Breyer, who is viewed as among the most pragmatic, was the sole dissenter among that group.
Watson, Richard Abernathy. Presidential Vetoes and Public Policy. Lawrence: University Press of Kansas, 1993.
The Constitution permits the President to sign or veto a bill as a whole. He may not pick and choose among the parts of a bill, signing some portions while vetoing others. Although most governors have veto power over individual items, constitutional amendments to grant similar authority to the President have thus far been unsuccessful.
The Framers were familiar with the powers exerted by the British Board of Trade, which routinely reviewed thousands of acts submitted by the mainland of American colonies and disallowed some "in whole or in part." These disapprovals were more similar to judicial review than to an item veto, in the sense that vetoes prevent proposals from taking effect, while the board's actions came after the colonial measures were law. In any event, the Framers did not find the British precedent appealing for the Constitution being drafted.
The item veto did not materialize until the confederate constitution of 1861. Since that time, forty-three states have adopted some variation of the item veto for their governors. In 1873 President ulysses s. grant requested an item veto for the national executive, and at least a dozen Presidents have made similar appeals.
The fact that so many governors have the item veto is not a sufficient justification for giving the same power to the President. The federal-state analogy suffers from a number of deficiencies. The item veto exercised by governors is inseparable from a constitutional design that differs dramatically from the design of the federal Constitution, especially in the distribution of executive and legislative powers. A much greater bias against legislative power operates at the state level. State budget procedures also differ substantially from federal procedures. Appropriation bills in the state are structured to facilitate item vetoes by governors, but appropriation bills passed by Congress contain few items. Money is provided in large, lump-sum accounts.
Presidents regularly claim that with item-veto power they could carve out the "boondoggles and pork" that Congress supposedly includes in bills. However, Congress does not specify "pork barrel" projects in the bills presented to the President. Particular projects are identified in the conference report that accompanies a bill. These reports, which are not submitted to the President for his signature or veto, explain to executive departments and agencies how lump-sum funds are to be spent. The President cannot veto items, because there are no items to veto.
Congress could pattern itself after the states, taking the details from conference reports and inserting them into public laws. The results would not be attractive for agency officials, who like the latitude and flexibility of lump-sum funding. They do not want details, or items, locked into public law.
During the administration of ronald reagan, the editorial page of the Wall Street Journal argued that the President already had item-veto authority. The theory is that the Framers anticipated that each discrete subject would be placed in a separate bill and presented to the President, giving him maximum discretion in using the veto power. Because Congress currently passes omnibus bills—including continuing funding and authorization for various programs—it is argued that an effective veto requires a power in the President to exercise item veto within these massive bills.
The historical record does not support this theory's view of the Framers' expectations. The first appropriations bill passed in 1789 was an omnibus measure, containing all funds for civilian and military programs. The same kinds of bills were enacted in 1790 and 1791. Evidently the members of the First Congres, which included many of the Framers who had participated in the constitutional convention of 1787, did not believe that Congress should pass seperate appropriations bills for every discrete program or activity.
A presidential item veto would have little effect on reducing federal deficits. Most of the federal budget is "un-controllable" because of fixed costs to pay interest on the federal deficit, provide entitlements (such as social security) for individuals, and reimburse contractors for work already done. Those appropriations could not be vetoed. However, an item veto could greatly increase executive power. Presidents and their assistants could use the threat of an item veto to coerce legislators into supporting presidential nominees, treaties, legislative goals, and spending priorities.
(see also: Budget Process.)
Fein, Bruce and Reynolds, William Bradford 1989 Wishful Thinking on a Line-Item Veto. Legal Times, November 13, pp. 20, 24.
Fisher, Louis and Devins, Neal 1986 How Successfully Can the States' Item Veto Be Transferred to the President? Georgetown Law Journal 75:159–197.
LINE-ITEM VETO. SeeVeto, Line-Item .