The Line-Item Veto Died in 1998 Because the Presentment Clause Says So

Conservatives wanted a line-item veto for years, and in 1996 they finally got one. Then the Supreme Court took it away, two years later, in a case brought by New York City and a cooperative of Idaho potato farmers. If you wrote that plot in a screenplay, the studio would send it back with a note saying the potatoes were too much.

But the Court was right. That is the uncomfortable thesis of this post. A conservative who wants spending cuts, as every conservative should, still has to respect Clinton v. City of New York, because the principle that killed the line-item veto is the same principle that protects us from a president who would rewrite laws to suit himself. Let me walk through the case the way a lawyer would: the text, the facts, the question, the holding, the dissents, and what followed.

The text that decided it

The case turns on the Presentment Clause, Article I, Section 7, Clause 2:

"Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated"

Define the terms.

• A bill is the whole text that both houses passed in identical form. Not a section of it. The whole thing.
• Presentment means delivering that bill to the president.
• The president then has two choices, and the clause names them: sign it, or return it with his objections. If he returns it, Congress may override by two-thirds of each house.

There is no third box on the form. The president may not sign half a bill. He may not sign a bill and then strike the parts he dislikes. He takes it or he sends it back.

The precedent: INS v. Chadha (1983)

To understand Clinton, start fifteen years earlier, with a case that ran the same principle in the other direction.

For decades Congress had written "legislative vetoes" into statutes. Congress would delegate power to the executive, then reserve to one house, or even one committee, the right to cancel an executive decision by simple resolution. Jagdish Chadha, a student who had overstayed his visa, was granted a suspension of deportation by the immigration authorities. The House of Representatives then passed a resolution overriding that decision, without a vote of the Senate and without presentment to the president.

In INS v. Chadha (1983), Chief Justice Warren Burger wrote for the Court that this was unconstitutional. When Congress acts to change the legal rights of persons outside the legislative branch, it is legislating, and legislating requires two things: passage by both houses, called bicameralism, and presentment to the president. A one-house veto skipped both. Justice Byron White, dissenting, counted the damage: the ruling invalidated legislative-veto provisions in nearly two hundred statutes.

Chadha's lesson is that the steps in Article I, Section 7 are not a suggestion. There is, in Burger's phrase, a single, finely wrought and exhaustively considered procedure for making federal law. Congress cannot shortcut it. And as Clinton would show, neither can the president. The legislative-veto story is told in full in INS v. Chadha Killed the Legislative Veto and Left Congress Fewer Tools.

The facts of Clinton v. City of New York

The line-item veto was a conservative priority for a long time. President Ronald Reagan asked Congress for it repeatedly. Republicans put it in the Contract with America for the 1994 elections, and after they won control of Congress, they passed it. President Bill Clinton, a Democrat who also wanted the power, signed the Line Item Veto Act on April 9, 1996.

The Act did not literally let the president veto parts of a bill. It was cleverer than that. After signing a bill into law, the president could, within five days, "cancel" three kinds of provisions: any dollar amount of discretionary budget authority, any item of new direct spending, and any limited tax benefit. He had to determine that the cancellation would reduce the deficit, not impair essential government functions, and not harm the national interest. He then sent a special message to Congress. Congress could restore a cancelled item by passing a "disapproval bill", which the president could of course veto.

The first challenge, brought by members of Congress including Senator Robert Byrd of West Virginia, was dismissed in Raines v. Byrd (1997) because the legislators had not suffered a personal injury that gave them standing.

Then Clinton used the power. In August 1997 he cancelled, among other items, a provision of the Balanced Budget Act of 1997 that would have spared New York from repaying federal Medicaid funds related to certain state taxes on health care providers, worth a large sum to the state and its hospitals. He also cancelled a provision of the Taxpayer Relief Act of 1997 that let owners of food processing facilities defer capital gains taxes when they sold to farmers' cooperatives. The City of New York, hospitals and health care unions sued over the first. The Snake River Potato Growers, an Idaho cooperative that planned to buy processing plants, sued over the second. These plaintiffs had lost real money. They had standing.

The question, and the holding

The question was whether the president's power to cancel items under the Act was consistent with the Presentment Clause.

On June 25, 1998, the Court said no, by a vote of six to three. Justice John Paul Stevens wrote for the majority, joined by Chief Justice William Rehnquist and Justices Anthony Kennedy, David Souter, Clarence Thomas and Ruth Bader Ginsburg.

The reasoning ran in a straight line.

1. A cancellation under the Act took effect after the bill became law.
2. Its effect was to prevent an item from having any legal force or effect, which is to say, to repeal part of a statute.
3. There is no provision in the Constitution that authorizes the president to enact, amend or repeal statutes. Repeal, like enactment, requires the procedures of Article I, Section 7.
4. The Act therefore let the president create a law different from the one Congress passed and presented to him, a law that had never gone through bicameralism and presentment in that form.
5. That is unconstitutional, however desirable the policy.

Stevens noted a powerful structural point: the president's constitutional veto happens before a bill becomes law and applies to the whole bill. The Act's cancellation happened after the bill became law and applied to only part of it. Those are not two versions of the same power. They are opposites.

Justice Kennedy, concurring, added the point conservatives should underline twice. Separation of powers, he wrote, is not about the convenience of the branches; it protects liberty. When the president can change the laws on his own, citizens lose the protection of having to persuade two houses of Congress and the president together.

The dissents, at their strongest

Two opinions, one by Justice Antonin Scalia (concurring in part and dissenting in part) and one by Justice Stephen Breyer, with Justice Sandra Day O'Connor joining parts of each, made a serious case against the majority.

Scalia's argument, directed at the spending cancellations, was that the Court was fixated on the word "cancel." Congress has always been able to authorize a president to decline to spend appropriated money. Appropriations acts from the earliest years gave presidents sums "not exceeding" a stated amount, leaving discretion to spend less. If Congress had written each appropriation to say the president may spend up to this amount or nothing, nobody would doubt its validity. In substance, Scalia argued, there was essentially no difference between that arrangement and the cancellation power. The Presentment Clause was not violated, because the president was carrying out authority Congress gave him in a law that itself went through presentment. The real question, he argued, was delegation, and a power to decline to spend had been delegated to presidents since the founding.

Breyer's argument was functional. The Act did not let the president rewrite law; it was itself a law, duly passed and signed, that delegated a carefully bounded discretion over particular items. The relevant question was not whether the president "repealed" anything but whether Congress had delegated too much, and the Act's limits, the deficit-reduction requirement, the five-day window and the disapproval-bill procedure, kept it within bounds. Modern government, Breyer said, needs flexible tools, and the Act was one.

Those are good arguments. They deserve an answer, not a sneer.

Why the majority still had the better of it

Here is the rebuttal in four points.

1. Text first. The Constitution gives the president two options at the moment of presentment and no options afterward. The Act created a third option after the fact. Labeling it "cancellation" instead of "partial veto" does not change what it does. If the result of the president's act is a statute that differs from the one both houses passed, the president has legislated.
2. Discretion to spend less is different from the power to repeal. An appropriation "not exceeding" an amount sets a ceiling and leaves the spending decision within the law Congress wrote. A cancellation erases the law's text so that it no longer has legal force, as to tax benefits as much as spending. The first is executing a law. The second is amending one.
3. The delegation argument proves too much. If Congress may delegate to the president the power to delete items from laws after enactment, why not the power to add them? Why not amend sentences? Once you accept that the president may change the text of signed statutes whenever Congress has pre-authorized it, the procedures of Article I, Section 7 become optional.
4. The power would not stay in friendly hands. Here is the test every conservative should apply to every grant of power: imagine it held by the president you most distrust. Imagine him striking a tax cut he dislikes or a defense program he opposes, five days after signing the bill that contained it, with Congress able to restore it only by passing a new bill he can veto. The Act let a president turn a one-third minority of one house into a veto on anything he cancelled. That is not fiscal discipline. It is a transfer of legislative power.

Let me show the arithmetic of point four with a hypothetical. Picture a 1,000-page spending bill containing a $2 billion item a president dislikes. Under the Constitution, he either vetoes the whole bill, which Congress can override with two-thirds of each house, or he signs it and spends the money. Under the Act, he signs the bill, cancels the $2 billion, and now Congress must pass a disapproval bill, which he vetoes, and then muster two-thirds of both houses to override him. The burden of a two-thirds vote has shifted from the president's objection to the item's survival. Something passed by a simple majority now needs a supermajority to remain law. That is a rewrite of the Constitution's arithmetic.

What followed, and how to cut spending the right way

The decision killed the Act. It did not kill the desire for spending restraint, and conservatives should not let it.

The tools that respect the Constitution still exist. The Impoundment Control Act of 1974, passed after President Richard Nixon refused to spend funds Congress had appropriated, lets a president propose rescissions, which Congress must approve by law within 45 days of continuous session or the money must be spent. That process honors the Presentment Clause because the rescission itself is a law. Reformers have proposed variations, sometimes called "enhanced rescission" or "expedited rescission", that would force Congress to take a prompt up-or-down vote on a president's proposed cuts. That is constitutional because Congress still votes.

Most state governors have some form of line-item veto. That is a feature of their state constitutions, which their people adopted. The federal Constitution does not include one, and the honest way to get one is a constitutional amendment under Article V, which conservatives have proposed before. The amendment route is harder. That is the point. Changing the balance of power between the branches ought to be hard.

And Congress could simply pass smaller bills. Much of the pressure for an item veto comes from the habit of stuffing everything into one giant omnibus that must pass by a deadline. A Congress that passed its twelve appropriations bills on time and in public would face fewer take-it-or-leave-it choices. The fight over earmarks and pork is covered in earmarks came back, and the conservative argument over pork never ended, and the broader budget mechanics in No Money Shall Be Drawn but by Appropriation, Congress's Power of the Purse.

Why a conservative should respect the result

Here is the moral of the story. A constitutional rule is not a tool to be picked up when it helps and set down when it does not. The same Presentment Clause that stopped President Clinton from cancelling a tax break for potato farmers stops every president from rewriting what Congress passed. That is the clause that makes the Take Care Clause meaningful, as The Take Care Clause Was Written Against Kings Who Suspended the Laws explains, and it is the clause that keeps executive power within the bounds argued for in The Executive Power Shall Be Vested in a President, and Every Word Counts. A unitary executive is a strong executive within its own sphere. Its sphere is executing the law, not editing it.

Conservatives who want less spending have the better argument and the better cause. We should win it in Congress, in the open, with votes. The Court in Clinton v. City of New York did not stand in the way of spending cuts. It stood in the way of a shortcut, and shortcuts around the Constitution have a way of being used by the people we trust least.

The case in brief

1. The Presentment Clause gives the president two options for a bill, sign it or return it, and no power to change it afterward.
2. INS v. Chadha (1983) held that Congress cannot skip bicameralism and presentment; Clinton v. City of New York (1998) held that the president cannot either.
3. The Line Item Veto Act let the president cancel items after signing, producing laws that never passed both houses in that form, and the Court struck it down six to three.
4. The dissents' delegation argument has force, but it would let a president edit statutes and shift the two-thirds burden onto the laws Congress passed.
5. Conservatives can pursue spending cuts through rescission votes, smaller bills and, if the people want it, an Article V amendment.

What you can do: read Article I, Section 7 on our Constitution page, then check your members' votes on the annual appropriations bills with our congressional scorecard.