The Line-Item Veto: Much Ado About Almost Nothing

© St. Louis Post-Dispatch
Tad Armstrong

If you care to educate yourself on the concept of the line-item veto, I invite you to follow the bouncing ball as I try to make sense of the recent bill co-sponsored by House Budget Committee Chairman Paul Ryan (R-WI) and fellow Congressman Chris Van Hollen (D-MD). It passed the House last month by a vote of 254-173. I can’t imagine why the vote was not unanimous. But, then again, I can’t imagine why any adult would spend any time enacting a proposal that is fundamentally meaningless. Perhaps it is because they know Americans are asleep at the wheel and actually believe Congress has finally done something on a bi-partisan basis that is good for the country.

Let’s start with the fact that nearly every President in our history has sought the power of a line-item veto and the fact that for the first time in our history, in 1996 Congress gave that power to President Bill Clinton only to have it struck down as unconstitutional by a 6-3 margin in a 1998 decision of the Supreme Court (Clinton v. New York). It would be a good idea to look at that decision to determine whether the recent attempt will likely withstand constitutional muster.

The 1996 Line Item Veto Act gave the President power to cancel three types of provisions after they had been signed into law by the President: (1) any dollar amount of discretionary budget authority, (2) any item of new direct spending, and (3) any limited tax benefit. After making such cancellations, the President had five calendar days to transmit a special message to Congress notifying them of what he had done. Upon receipt of Congress of that message, the cancellations made by the President became law. While it was true that the Congress then had the power to enact a “disapproval bill” to nullify the President’s cancellations, nevertheless unless and until they did so, the President’s actions unilaterally established the law.

And, that was the reason the Supreme Court struck down the attempt, for the Presentment Clause of the Constitution (Article I, §7, clause 2) limits the President’s power when presented with legislation to either approve of it in its entirety or veto it in its entirety. The Court rightly held that Congress did not have the power, short of a constitutional amendment, to alter those provisions.

Would the current version withstand constitutional attack? The proposed legislation provides that within 45 days of the enactment of a spending bill, the President can send a message to Congress proposing cuts to discretionary non-entitlement spending. Then, Congress would “have to move quickly” with an up-or-down vote and would not have the ability to tack on any amendments to the President’s proposal. Ahem! You might be asking, “What happens if Congress does not act?” Nothing. But, of course, that’s not surprising. If the President’s proposals would become law upon Congressional inaction, that would likely be unconstitutional per the 1998 decision.

This legislation is different from the 1996 version in that the President cannot unilaterally make law by cutting spending items. He can only propose them after a spending bill has been enacted into law. Second, it alters the rules of procedure in the House and Senate when considering the President’s proposals. For these reasons, the legislation appears to be constitutional. After all, Congress has the power to change their rules anytime they wish.

If the House Bill passes the Senate, the President has indicated he will sign it. Hooray! That will finally give the President the power to make suggestions to Congress concerning specific items of discretionary expenditures he believes should be deleted from the budget and Congress can then vote on those suggestions.

As Gomer Pyle might say (anyone under sixty might want to Google that), “Golly, is all this necessary?”

What this bill amounts to is Congress passing the buck to a paper tiger. Rep. Ryan is effectively saying, “Look, both sides of the aisle agree we are spending money we don’t have, but we can’t seem to muster enough votes to agree on cuts. We look to you, Mr. President, to give us suggestions, then maybe we will have enough votes to agree.” It’s called negotiating. We don’t need legislation to do that – we need leadership.

I cannot understand why so many Democrats voted against a proposal that does nothing more than “give” the President the “power” to make suggestions. He can do that any old time he wishes.


  1. Roy M says:

    Why does instituting “Line-Item Veto” always have to be about money. If a Congressman or Senator proposes a good bill, why do the other elected officialy then add “JUNK” that no body wants like a “Bridge to No-where”. Then the President will either have to sign a very poor bill to get the good legislation for the American people or Veto it and the American people see nothing getting done as they have done over the last 4 years!