What Part of "Unconstitutional" is Unclear?
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Many people, myself included, scratched our heads when we heard President Bush ask in his most recent State of the Union Address for Congress to pass legislation granting the President the line-item veto.
We were puzzled because we had just been through this adventure in 1996, when Congress passed — and the Supreme Court struck down — what apparently was the same law that the Administration is now asking Congress to pass again. Why bother passing the same law if the Court will simply strike it down again?
Well, the President has made good on his pledge and is indeed formally requesting a new line-item veto law. But if the White House is asking for a different version of the line-item veto than the 1996 version, one that somehow comports with the Court's earlier holding, then they have yet to explain exactly what they're asking for and why it wouldn't be unconstitutional.
Bizarre.
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I love Clinton v. New York, 524 U.S. 417 (1998), not because I particularly care one way of the other about the line-item veto as an abstract concept; reasonable people — even reasonable libertarians — can disagree on how effective it would be in starving the fiscal leviathan of our federal government.
No, Clinton v. New York was a great case because it was refreshingly textualist in its reasoning. The Court abandoned its typical pragmatic consequentialism and went straight to the source: Article 1, Section 7 of the Constitution:
If only the Court were so textualist in, say, its Commerce Clause, Equal Protection or — gasp! — Ninth Amendment jurisprudence.
Oh, and where was the so-called "ueber-originalist" Justice Scalia in Clinton v. New York? He dissented on the key issue, dismissing the majority's textualist (and therefore "originalist") argument as sophistry. Go figure.
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An ancillary holding of Clinton v. New York was that it is generally appropriate for the judicial branch to review actions of the executive and legislative branches that "re-jigger" the separation of powers between them — the line-item veto essentially conferred legislative power upon the President in contravention of Article I, and the fact that both non-judicial branches liked the idea did not make it constitutional.
That premise — that the courts also have a say in it — should be kept in mind regarding the warrantless wiretap scandal. Both defenders and opponents of the NSA program point to the famous framework of Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), in which Justice Jackson described how much power the Executive should be able relegate to itself with, or without, the approval of Congress. But Youngstown Tube should be applied in conjunction with Clinton v. New York's reminder that "the courts also have a say in it."
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More thoughts on the President's "new but not improved" line-item veto proposal at PoliBlog.
We were puzzled because we had just been through this adventure in 1996, when Congress passed — and the Supreme Court struck down — what apparently was the same law that the Administration is now asking Congress to pass again. Why bother passing the same law if the Court will simply strike it down again?
Well, the President has made good on his pledge and is indeed formally requesting a new line-item veto law. But if the White House is asking for a different version of the line-item veto than the 1996 version, one that somehow comports with the Court's earlier holding, then they have yet to explain exactly what they're asking for and why it wouldn't be unconstitutional.
Bizarre.
---
I love Clinton v. New York, 524 U.S. 417 (1998), not because I particularly care one way of the other about the line-item veto as an abstract concept; reasonable people — even reasonable libertarians — can disagree on how effective it would be in starving the fiscal leviathan of our federal government.
No, Clinton v. New York was a great case because it was refreshingly textualist in its reasoning. The Court abandoned its typical pragmatic consequentialism and went straight to the source: Article 1, Section 7 of the Constitution:
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.With all due respect to Monty Python, the critical word here is "it." For constitutional purposes, the Court (correctly) held that a bill from Congress is a discrete, indivisible entity. The President shall sign it or return it. There is no provision in Article I for breaking it up into bits and pieces. The line-item veto is, therefore, unconstitutional. Q.E.D.
If only the Court were so textualist in, say, its Commerce Clause, Equal Protection or — gasp! — Ninth Amendment jurisprudence.
Oh, and where was the so-called "ueber-originalist" Justice Scalia in Clinton v. New York? He dissented on the key issue, dismissing the majority's textualist (and therefore "originalist") argument as sophistry. Go figure.
---
An ancillary holding of Clinton v. New York was that it is generally appropriate for the judicial branch to review actions of the executive and legislative branches that "re-jigger" the separation of powers between them — the line-item veto essentially conferred legislative power upon the President in contravention of Article I, and the fact that both non-judicial branches liked the idea did not make it constitutional.
That premise — that the courts also have a say in it — should be kept in mind regarding the warrantless wiretap scandal. Both defenders and opponents of the NSA program point to the famous framework of Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), in which Justice Jackson described how much power the Executive should be able relegate to itself with, or without, the approval of Congress. But Youngstown Tube should be applied in conjunction with Clinton v. New York's reminder that "the courts also have a say in it."
---
More thoughts on the President's "new but not improved" line-item veto proposal at PoliBlog.
Related Posts (on one page):
- Would Bush's Line-Item Plan Work?
- Bad People or Bad Process?
- Bush's Line-Item (Not Quite a) Veto
- What Part of "Unconstitutional" is Unclear?
Posted by Kip on
6 March 2006
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