Friday, May 7, 2010

President Obama to Seek Line Item Veto

President Obama will propose legislation this month to give him greater power to curtail congressional spending bills, according to Friday's New York Times.

The measure would reportedly give the President 45 days after signing a spending bill to submit back to Congress a list of items to be rescinded.  Congress would then have 25 days to vote the rescissions up or down, without amendment.

The proposal is designed to give the President more control over specific line items in massive spending bills that he must otherwise sign or veto in toto.

The Supreme Court overturned the line-item veto in 1998 in Clinton v. New York.  That version of the line-item veto allowed the President to "cancel" a single line-item in a larger spending bill by reporting the canceled provision back to Congress.  The item would be canceled upon receipt of the report by Congress, after the rest of the bill became law.  Congress could override a canceled provision by a majority vote in both houses.

The Court in Clinton v. New York ruled that this procedure violated Article I, Section 7, the Presentment Clause:

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, who shall enter the Objections at large on their Journal, and proceed to reconsider it.

This requires President to sign the entire bill, or to veto the entire bill and send it back.  It does not allow the President to sign a mere portion of a bill and send the rest back.  The 1998 version of the line-item veto thus violated the Presentment Clause. 

The reported new version solves this problem.  The effect of the rescission process in the reported proposal would be to initiate an entirely new bill--a bill that would amend the one the President first signed.  (The President, of course, has the power to recommend legislation under Article II, Section 3.)  After the new bill passed both houses, it would presumably come back to the President's desk, and he'd sign it or veto it as a new bill.  The procedure satisfies the Presentment Clause and related separation-of-powers concerns (which the Clinton v. New York Court declined to address).

SDS

http://lawprofessors.typepad.com/conlaw/2010/05/president-obama-to-seek-line-item-veto.html

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Comments

I agree with your analysis that this proposal ("expedited rescission") solves the Clinton v. City of New York problem. It does raise some other interesting issues, such as whether Congress is really required to consider the President's proposals on the expedited timetable and under the rules the statute provides.

For those who are interested in reading more, I have an article on this topic here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=999644

Posted by: Aaron Bruhl | May 8, 2010 7:46:28 AM

Dear Aaron,

Thank you for your comment and the link to your paper. I agree that the more interesting question here is whether Congress will comply with the procedures, and (if as seems likely) not: What's the point of it? Your paper provides an excellent analysis and good answer. Thank you.

Best,
Steve

Posted by: Steven D. Schwinn | May 10, 2010 8:00:14 PM

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