A Stitch in Haste

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:

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.

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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.

So here is a summary of how the Bush version of the line-item veto is different from the 1996 version:

Instead of being able to strike items from bills, he would send one or more items back to Congress for an up-or-down vote. Present law permits Congress to ignore these proposed rescissions, but under the Bush proposal lawmakers would have to vote on them. If majorities in both the House and the Senate agreed with the president, the cuts would take effect.

So instead of a issuing a "line-item veto" that would require a two-thirds vote of each chamber of Congress to override, the President could demand a "line-item recount" that would require only a simple majority of each chamber.

Huh?

And the White House thinks that would survive review under Clinton v. New York?!? They think that simply diluting the hurdle from a two-thirds majority to a simple majority somehow rescues the line-item veto?

That is about as wrong as is humanly possible.

At least Article I provides for a presidential veto (or "return"), just not by line item. Again, the President signs "it" or returns "it." But Article I says nothing about a presidential "remand" or "recount." Where is the Administration getting this from? By what twisted logic can they claim that this satisfies Clinton v. New York?

The 1996 line-item veto law misread Article I of the Constitution; the President's "Legislative Line Item Veto Act of 2006" just flat-out ignores it. This proposal crafts a whole new extra-constitutional legislative process out of whole cloth. This the President and Congress may not do. Extra-constitutional is unconstitutional. That was the whole point of Clinton v. New York.

The Supreme Court could not have been more clear on this: The Constitution says what it says. If you don't like it, then amend it.

Or are we next going to render Article V a nullity?

More thoughts from To The People, SCOTUSblog.

Which is the root cause of our increasingly failing government?

The best approach to answering that question is probably not by asking those very same people:

"To see him putting the full weight of his office behind a specific proposal to create a constitutional line-item veto is thrilling to those of us who know when it comes to federal spending, it's not so much bad people as bad process," said Rep. Mike Pence, Indiana Republican and chairman of the Republican Study Committee, the conservative caucus in the House.

This is, of course, utter nonsense.

As if the budget process were a battle between 535 would-be St. Georges trying to slay a supernatural dragon that suddenly appeared out of nowhere and due to no one's fault. Or 535 Will Smiths trying to fight off the horrible aliens that no one knew were coming and certainly didn't invite to plunder our world. Or 535 ... well, insert your own analogy in the comments.

The problem is precisely that we are dealing with bad people rather than with an intrinsically bad process.

Here again we see the double-edged myth of the politician as "public servant" as opposed to power-luster, and as enlightened philosopher-king as opposed to medicocre semi-literate.

The process, meanwhile, would work just fine if it were in the hands of just fine people. Put 535 libertarians in Congress (not that any self-respecting libertarian would want the job) — as opposed to 535 Tom DeLays, Nancy Pelosis, Ted Stevens and Chuck Schumers — and the process would be an unmitigated success, year after year after year.

Of course, it's fair to retort that the "meta-process" of choosing the (bad) people who abuse the (not bad) process may itself be flawed. Fair enough. The saying, "I hate Congress but I love my congressman..." is not a sound foundation for our political process.

But if we're going to lament the failing of the system, then let's focus on the real problem with politics: the politicians.

Put aside for the moment the question of whether President Bush's proposed "line-item (not quite a) veto" is constitutional. I still insist it is not.

If it were held constitutional, would it work?

We report, you decide:

With many Republicans nervous about cutting popular programs in an election year, a key Senate panel is prepared to drop President Bush's proposals for politically painful cuts to Medicare, farm subsidies and food stamps.
...
Senate Budget Committee Chairman Judd Gregg, R-N.H., said Tuesday that after shepherding through a five-year, $39 billion benefit-cut bill last year, he didn't have the votes for a second round of cuts to entitlement programs like Medicare.
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For his part, Gregg has opted for what he calls a "vanilla exercise" that drops most but not all of Bush's controversial proposals as nonstarters in a difficult election-year environment.

Granted, the line-item (not quite a) veto is meant to correct the bloat of pork-barrel spending and so-called "earmarks," not entitlements such as Medicare.

But the procedural framework is the same: The President asks Congress to vote, or "re-vote," on particular spending items (dare we call them "line-items"?) and Congress of course votes not to cut them. Same old same old.

Because, again, it's not the process, it's the people.