Monday, October 20, 2008
As I pointed out last week, John McCain stated in the debate that he would like to have a line item veto. As luck would have it, the debate aired the evening before my class and the day after our discussion of Clinton v. New York. As my students and I talked about it, I said, "Well, let's give McCain the benefit of the doubt. Perhaps he meant some revamped version of the line item veto that would be constitutional." However, I then admitted that I was hard pressed to think of such an example.
I've continued to think about this since Thursday morning, and I still can't think of an example. In an especially clear opinion, the Clinton v. New York Court explained why the line item veto violated the cherished principles of separation of powers. So, the options would be to: 1) wait for a majority of the Court to follow Justice Breyer's view and overturn the opinion; or 2) find a way to achieve a similar goal in a constitutional fashion.
That latter point is the focus of Professor Aaron-Andrew Bruhl's recent piece, Return of the Line Item Veto? Legalities, Practicalies, and Some Puzzles. The article explains that the more recent attempts to provide the president with a "line item veto" are not really giving the president any veto power at all. Rather, they would allow the president to make a list of allegedly wasteful spending programs and then return the bill to Congress for a quick "up-or-down" vote on the challenged provisions. Because both the executive and legislative branches are involved, the problem presented by the 1996 Act seems to be avoided. Since the proposal isn't a true line item veto - like the ones held by the governors of forty-three states - it is unlikely that we will ever see the issue presented in Clinton v. New York again.
Why does each president pine for this power? Is it more trouble than it's worth? As Professor Bruhl acknowledges, even the modified proposal might raise legal issues concerning the propriety of essentially forcing Congress to act within a time certain, along with justiciability issues. Moreover, from a policy perspective, it's unclear that giving the president some type of cancellation power will help our budgetary problems. In fact, it might even exacerbate them.
The justices have often said that many problems are not addressed in the Constitution because the Framers trusted that the political winds would guard against the most severe abuses of the discretion granted to the various political branches of government. This issue is a prime example of that truism. Perhaps some sort of "sunshine" law or other type of public awareness campaign could be undertaken to curb the most excessive practioners of pork barrel spending. If John McCain should lose in November, this might be a good place for him to focus his efforts, given his interest in the topic.