By The Associated Press

President Bush plans to send proposed legislation to Congress on Monday that would allow him to control spending by vetoing specific items in larger bills, a Bush administration official said.

The president, who has not vetoed any legislation during five years in office, asked Congress in his State of the Union address to give him line-item veto power.

Bush plans to announce that the proposed bill is headed to Congress during his remarks at the morning swearing-in ceremony for the chairman of the Council of Economic Advisers, said the official, who spoke on the condition of anonymity because the announcement has not been made.

Both Republican and Democratic presidents have sought the power to eliminate a single item in a spending or tax bill without killing the entire measure.

President Clinton got that wish in 1996, when the new reform-minded Republican majority in the House helped pass a line-item veto law.

Two years later, the Supreme Court declared the law unconstitutional because it violated the principle that Congress, and not the executive branch, holds the power of the purse.

Link

While I agree with many of President Bush’s policy ideals and his strong leadership, I disagree with the administration that the President should be granted a power to cancel specific items within legislation after the legislation has become law. In my opinion, this clearly violates separation of powers principles as outlined in the Constitution. Let us explore this briefly.

Article one, section seven of the Constitution is as follows:

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…

The principle of the President’s power to veto applies to a bill submitted to him by Congress which is hoped to be passed into law. If we look at the text in this section, it says “Every bill,” and does not say anything in regard to appropriations within bills, which the President would be authorized to cancel if a line-item veto statute was constitutional.

Second, let us look at the recent Supreme Court decision on the unconstitutional Line Item Veto Act of 1996. In essence, the Line Item Veto Act gave the President the power to “cancel in whole” three types of provisions that have been signed into law: “(1) any dollar amount of discretionary budget authority; (2) any item of new direct spending; or (3) any limited tax benefit.”

According to the Supreme Court decision in “WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES, ET AL ., APPELLANTS v. CITY OF NEW YORK,” the court concluded the Line Item Veto Act was unconstitutional for several different reasons (I have shown what I sense to be the most important principles in the decision):

There are important differences between the President’s “return” of a bill pursuant to Article I, §7, and the exercise of the President’s cancellation authority pursuant to the Line Item Veto Act. The constitutional return takes place before the bill becomes law; the statutory cancellation occurs after the bill becomes law. The constitutional return is of the entire bill; the statutory cancellation is of only a part. Although the Constitution expressly authorizes the President to play a role in the process of enacting statutes, it is silent on the subject of unilateral Presidential action that either repeals or amends parts of duly enacted statutes.

 

…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 lawone whose text was not voted on by either House of Con gress 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.

This case has presented another unique aspect in that the President has authority to use up to specific amounts of funds Congress has appropriated in order to execute the bills which have been signed into law. However, the line item veto power would give the President authority to cancel, or to “not create the effect of law” with specific appropriations within a total bill. This is fundamentally different than not using all appropriated funds given for the execution of the law and is thereby unconstitutional. The Supreme Court tackled this very issue:

Thus, in both legal and practical effect, the presidential actions at issue have amended two Acts of Congress by repealing a portion of each. Statutory repeals must conform with Art. I, INS v. Chadha, 462 U.S. 919, 954 , but there is no constitutional authorization for the President to amend or repeal. Under the Presentment Clause, after a bill has passed both Houses, but “before it become[s] a Law,” it must be presented to the Presi dent, who “shall sign it” if he approves it, but “return it,” i.e., “veto” it, if he does not. There are important differences between such a “return” and cancellation under the Act: The constitutional return is of the entire bill and takes place before it becomes law, whereas the statutory cancellation occurs after the bill becomes law and affects it only in part. There are powerful reasons for construing the constitutional silence on the profoundly important subject of presidential repeals as equivalent to an express prohibition. The Article I procedures governing statutory enactment were the product of the great debates and compromises that produced the Constitution itself…

I agree with the majority of the court here in their 6 -3 decision. For the text of this case regarding the line item veto, please click here.