Line-Item Veto

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LINE-ITEM VETO

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.

Louis Fisher
(1992)

(see also: Budget Process.)