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Congress: The Context
1. How did the Line-Item Veto work? Here is the way the line item veto worked:
Congress passed a piece of spending/tax legislation.
The President signed the bill, as a whole, but then lined out the specific items he opposed.
The President returned the lined-out items to Congress, which by a simple majority either approved or disapproved.
If it disapproved, Congress sent a "bill of disapproval" containing the items back to the President.
The President could then veto the disapproval bill; it then required a two-thirds majority in Congress to override his veto.
2. What was the original purpose of the Line-Item Veto?
The idea behind the line-item veto was to give the President the power to eliminate “pork-barrel” legislation. Pork barrel legislation is where a Congress Member adds on additional spending to another bill in the form of a rider. Often times this represents a “pet” project for that Congress Person’s constituents such as spending on a local highway or funding for a local project. The line-item veto would allow the President to “put a line through” pork barrel additions so that he or she would not have to veto the entire bill.
3. Is the Line-Item Veto a new idea?
The line-item veto was first brought before Congress in 1876 during President Grant’s term of office. Since that time is has been brought before Congress in one form or another 200 times.
4. Do any forms of government in Federalism use the line-item veto?
43 state Governors currently have a line-item veto power in their state.
5. How often did President Clinton use the Line-Item Veto?
From January 1, 1997 to June 25th 1998 when the Supreme Court struck the law down, President Clinton used the line-item veto 82 times. Congress negated his line-item veto 38 times during this period.
6. How did the Supreme Court vote? Were there any dissenting opinions?
The court voted 6-3 to declare the law unconstitutional. Here are some excerpts from Justice Breyer’s dissenting opinion:
“I agree with the Court that the parties have standing, but I do not agree with
"I approach the constitutional question before us with three general
its ultimate conclusion. In my view the Line Item Veto Act does not violate
any specific textual constitutional command, nor does it violate any implicit
Separation of Powers principle. Consequently, I believe that the Act is
constitutional.
considerations in mind. First, the Act represents a legislative effort to
provide the President with the power to give effect to some, but not to all,
of the expenditure and revenue-diminishing provisions contained in a single
massive appropriations bill. And this objective is constitutionally proper.
"In sum, I recognize that the Act before us is novel. In a sense, it skirts a
constitutional edge. But that edge has to do with means, not ends. The
means chosen do not amount literally to the enactment, repeal, or
amendment of a law. Nor, for that matter, do they amount literally to the
“line item veto” that the Act’s title announces. Those means do not violate
any basic Separation of Powers principle. They do not improperly shift the
constitutionally foreseen balance of power from Congress to the President.
Nor, since they comply with Separation of Powers principles, do they threaten
the liberties of individual citizens. They represent an experiment that may, or
may not, help representative government work better. The Constitution, in
my view, authorizes Congress and the President to try novel methods in this way. Consequently, with respect, I dissent.”
Senator Robert Byrd (D-West Virginia)
In 1993 Senator Robert Byrd from West Virginia made a series of fourteen speeches in opposition to the Line-Item Veto Bill designed to give the President greater authority on matters having to do with the national budget. Byrd was not successful in preventing the bill from being passed, but the following are excerpts from three of his speeches giving his reasons for opposing the bill.
From May 5, 1993-The following is an excerpt from Mr. Byrd’s first of fourteen speeches about the Line-Item Veto.
"In search of antidotes for this fast-spreading fiscal melanoma of suffocating deficits and debt, the budget medicine men have once again begun their annual pilgrimage to the shrine of Saint Line -Item Veto , to worship at the altar of fool's gold, quack remedies, such as enhanced rescission, line -item veto , and other graven images, which, if adopted, would give rise to unwarranted expectations and possibly raise serious constitutional questions involving separation of powers, checks and balances, and control of the national purse.
"Mr. President, as I have attempted to evaluate and analyze some of these questions, and particularly the one that I am discussing--that of separation of powers, checks and balances, line -item veto, enhanced rescissions, expedited rescission, and so on and so on--I have wondered if we Senators really think much about our oath of office. We take the oath. I wonder if, during the following 6 years, we give any further thought to that oath, to its meaning and to the responsibilities and duties that devolve upon us by virtue of our having sworn to that oath in the presence of our colleagues and with our hand on the Bible and with the closing words, `So help me God.'
"I am made to wonder, as I have sat here year after year these last few years, and have witnessed the attacks made upon Congress and upon the legislative process and upon the appropriations process and upon the Constitution, its checks and balances and separation of powers, I have wondered how much we Senators really think about the oath that we took when we were sworn into office. It is easy to judge others and it is easy to be wrong in one's judgment of others. But I am constrained to wonder how much we really stop and reflect on that solemn oath that we take to support and defend the Constitution of the United States against all enemies, foreign and domestic."
The following speech was the final speech Mr. Byrd gave on the topic on October 18, 1993.
"Just as carefully, they set in place a system of checks and balances and separation of powers, and lodged the control of the purse in the `people's branch' to prevent the rise of a new coinage of imperial executives in the federation that they created. "We, too, have reached a stage where we seem to remain in a state of crisis, semicrisis, or pseudocrisis. The American people have grown impatient and are demanding solutions to serious problems--problems that do not lend themselves to easy and quick solutions. The solutions to these problems will be painful and will take time, perhaps years, to succeed. "This is not a truth that some people want to hear. Many would rather believe that quack remedies such as line -item vetoes and enhanced rescissions powers in the hands of Presidents will somehow miraculously solve our current fiscal situation and eliminate our monstrous budget deficits.
"Of course, some people would, perhaps, prefer to abolish the Congress altogether and institute one-man government from now on. Some people have no patience with constitutions, for that matter.
"But the survival of the American constitutional system, the foundation upon which the superstructure of the Republic rests, finds its firmest support in the continued preservation of the delicate mechanism of checks and balances, separation of powers, and the control of the purse, solemnly instituted by the Founding Fathers. For over 200 years, from the beginning of the Republic to this very hour, it has survived in unbroken continuity. We received it from our fathers. Let us as surely hand it on to our sons and daughters."
This statement was issued by Senator Byrd after the Line-Item Veto was ruled unconstitutional.
"All Americans should breathe a sigh of relief that U.S. Supreme Court, in its recent ruling, has found the Line Item Veto Act unconstitutional, because the Court, in so finding, has spared an American birthright for yet awhile longer.
"When the Framers of the Constitution met in Philadelphia in 1787, they painstakingly crafted one of the simplest, yet most enduring documents ever printed -- its central notion being that the power of the United States government ultimately rests in the hands of its citizens. Thanks to their familiarity with history and philosophy, the Framers knew that power concentrated in the hands of one individual or one branch of government poses a direct threat to personal liberty. Accordingly, they devised a complex system of divided powers in the expectation that future generations would understand and respect the intimate link between the organization of government and the protection of their own liberties.
"Essential to that system of divided powers, the Framers realized, was the vesting in Congress -- the people's branch -- of the power over the purse. That power, they recognized, would provide the Congress, and through it the people, with an important check on the executive and judicial branches of government.
"I believe that Justice Kennedy put it well when, in concurring with the majority opinion of the Court, he wrote, 'By increasing the power of the President beyond what the Framers envisioned, the [line item veto] statute compromises the liberty of our citizens, liberty which the separation of powers seeks to secure.' His words echo those of 18th century philosopher Montesquieu, who wrote, 'When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty....'
"The Framers took seriously the tyrannical threat posed by vesting too much power in one man or one body, and they took pains to guard against that threat.
"Our Constitution embodies their vision, their dream of freedom, supported by the genius of practical structure which has come to be known as the checks and balances and separation of powers. If the fragile wings of that structure are ever impaired, then the dream can never again soar as high.
"For me, a long, difficult journey is happily ended. The wisdom of the Framers has once again prevailed, and the slow undoing of the people's liberties has been halted, at least for now. "
The following decision was issued by the Supreme Court on June 25, 1998 official declaring the Line-Item Veto unconstitutional.
Justice Stevens-Supreme Court Decision
"First, we express no opinion about the wisdom of the procedures authorized by the Line Item Veto Act. Many members of both major political parties who have served in the Legislative and the Executive Branches have long advocated the enactment of such procedures for the purpose of “ensur[ing] greater fiscal accountability in Washington.”
H. R. Conf. Rep. 104—491, p. 15 (1996).41 The text of the Act was itself the product of much debate and deliberation in both Houses of Congress and that precise text was signed into law by the President. We do not lightly conclude that their action was unauthorized by the Constitution. We have, however, twice had full argument and briefing on the question and have concluded that our duty is clear.
"Second, although appellees challenge the validity of the Act on alternative grounds, the only issue we address concerns the “finely wrought” procedure commanded by the Constitution. Chadha, 462 U.S., at 951. We have been favored with extensive debate Justice Stevens about the scope of Congress’ power to delegate law-making authority, or its functional equivalent, to the President. The excellent briefs filed by the parties and their amici curiae have provided us with valuable historical information that illuminates the delegation issue but does not really bear on the narrow issue that is dispositive of these cases. Thus, because we conclude that the Act’s cancellation provisions violate Article I, §7, of the Constitution, we find it unnecessary to consider the District Court’s alternative holding that the Act “impermissibly disrupts the balance of powers among the three branches of government.” 985 F. Supp., at 179.43
"Third, our decision rests on the narrow ground that the procedures authorized by the Line Item Veto Act are not authorized by the Constitution. The Balanced Budget Act of 1997 is a 500-page document that became “Public Law 105—33” after three procedural steps were taken: (1) a bill containing its exact text was approved by a majority of the Members of the House of Representatives; (2) the Senate approved precisely the same text; and (3) that text was signed into law by the President. The Constitution explicitly requires that each of those three steps be taken before a bill may “become a law.” Art. I, §7. If one paragraph of that text had been omitted at any one of those three stages, Public Law 105—33 would not have been validly enacted. If the Line Item Veto Act were valid, it would authorize the President to create a different law–one whose text was not voted on by either House of Congress or presented to the President for signature. Something that might be known as “Public Law 105—33 as modified by the President” may or may not be desirable, but it is surely not a document that may “become a law” pursuant to the procedures designed by the Framers of Article I, §7, of the Constitution. "If there is to be a new procedure in which the President will play a different role in determining the final text of what may “become a law,” such change must come not by legislation but through the amendment procedures set forth in Article V of the Constitution. Cf. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 837 (1995).
The judgment of the District Court is affirmed.
STATEMENT BY THE PRESIDENT, June 25, 1998 Supreme Court Decision on Line Item Veto
"I am deeply disappointed with today's Supreme Court decision striking down the line-item veto. The decision is a defeat for all Americans -- it deprives the President of a valuable tool for eliminating waste in the Federal budget and for enlivening the public debate over how to make the best use of public funds.
"By permitting the President to cancel discretionary spending, new entitlement authority, and certain types of tax provisions that benefit special interests at the expense of the public interest, the line item veto would enable Presidents to ensure that the Federal Government is spending public resources as wisely as possible.
"For five and a half years, I have worked hard to renew our economy by putting America's fiscal house in order. In 1993, the budget deficit was projected to be $290 billion; today, we have balanced the budget, and it is running a surplus. Continued fiscal responsibility is as vital now as the day I took office. I am determined to do everything in my power to continue to cut wasteful spending, maintain fiscal discipline, and create opportunity through continued economic growth.
