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On June 25, 1998, the United States Supreme Court struck down the Line Item Veto Act of 1996. The issue before the Court was this: may the Congress delegate via legislation the power of the line item veto to the President? This was a particularly thorny issue for the Court, resulting in four delicate opinions. The Court came to the right conclusion, but flaws in each of the four opinions must be addressed and corrected before that is clear.
The Act, enacted in April, 1996, and effective in January, 1997, authorized the President to cancel certain spending provisions and tax breaks in bills. The items must according to the Act be cancelled no more than five days after the President has signed the bill into law. The cancelled items may be restored by Congress by the passage of a separate bill, which may be vetoed by the President, then overridden by a vote of two-thirds of the members of both chambers as usual (Art. I § 7). The purpose of this executive power is clear: to reduce the federal debt by reducing "pork" spending and tax "loop holes." The threat to the status quo is equally clear, so within days of its passage, members of Congress sued to have the Act declared unconstitutional. As the President had not yet actually used the power, the Court ruled that the members had no standing to sue. They had not "alleged a sufficiently concrete injury to have established Article III standing," (Raines v. Byrd, slip op., at 18) The case was remanded for dismissal.
Soon, the President exercised his new power, canceling one provision in the Balanced Budget Act of 1997 and two provisions in the Taxpayer Relief Act of 1997. Two parties sued: the State of New York, and the Snake River Farmers Cooperative (Snake River) with Mike Cranney (a member of the cooperative). New York sued because the "veto" denied funding for the state's Medicaid program provided by the Balanced Budget Act of 1997 § 4722(c). Snake River sued because the "veto" cancelled a tax break that would have benefited the cooperative.
The District Court found for the plaintiffs. It ruled that both parties had standing to sue and combined the cases. It then ruled that the Act as written is unconstitutional and that any such shift of power from the Congress to the President must take the form of an amendment to the Constitution. The Supreme Court affirmed the district court ruling 6-3 and explained their reasoning with four distinct opinions.
Justice Stevens wrote for the Court. He quickly and effectively dispensed with the issue of justiciability by applying a rational basis test. When addressing the question of whether the plaintiffs may sue under 2 U.S.C. §692(a)(1) which grants such authorization to "[a]ny Member of Congress or any individual adversely affected," he dispensed with any doubt that Snake River, a corporation, qualifies as an individual. "There is no plausible reason why Congress would have intended to provide for such special treatment of actions filed by natural persons and to have precluded entirely jurisdiction over comparable cases brought by corporate persons." He continued by rejecting appellant arguments that the power utilized by the President is discretionary, authorized by the Balanced Budget Act and the Taxpayer Relief Act, and that the cancellation authority is no greater than the President's traditional authority to decline to spend appropriated funds. The Court ruled that action taken under the Act was a violation of the Presentment Clause (Art. I § 7) because "[i]n both legal and practical effect, the President has amended two Acts of Congress by repealing a portion of each." The Court went on to say that the only way to effect this shift in power from the legislature to the President is by the passage of an amendment to the Constitution. This opinion referred to the power wielded by the President under the Act as "discretionary." It is true that the President uses his discretion in deciding when to use this power, but the word greatly understates the power being used.
Justice Kennedy wrote a concurring opinion by trying to sound more like John Marshall than anybody else on the Court. He makes two main points, that "[f]ailure of political will does not justify unconstitutional remedies" and the Act threatens liberty by concentrating power more than intended by the Founders. "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed [sic], or elective, may justly be pronounced the very definition of tyranny." The Federalist No. 47 His reasoning, as brief and suited toward his own goals as Marshall's opinion in Willson v. Black-Bird Creek Marsh Co., rests primarily on philosophy and resorts only occasionally to actual references to the Constitution, preferring instead mere invocations of it. The concerns about the concentration of power in the executive don't reflect what has been observed in the states. While there have been successful efforts by state governors to expand their line item veto power, it isn't always to the executive's benefit to have this additional power. A crafty legislature can write bills in such a way as to embarrass an executive. ("Line Item Veto Act of 1996: Lessons Learned from the States," Level of Itemization) Kennedy dismisses the Act on questionable principles rather than law, using judicial activism for a conservative end.
Justice Scalia wrote a curious opinion that essentially dodges the meaty issues by focussing instead on ancillary points. He disagreed with the Court and seized on the justiciability of the case brought by Snake River, writing several pages whittling away at it ad nauseum. He maintained that Snake River is not an individual under 2 U.S.C. §691, and therefore not eligible to sue under Expeditied Review. "It may be unlikely that this is what Congress actually had in mind; but it is what Congress said, it is not so absurd as to be an obvious mistake, and it is therefore the law," meaning that a corporation such as Snake River may not sue under that particular law. Scalia also attacked the idea that Mike Cranney or Snake River had sustained any damages as a result of the "veto." Snake River claimed that negotiations for the sale of a processing plant fell through because the buyer wasn't interested once the tax break was "vetoed," yet had little evidence to support this claim. "[T]he present suit…resembles a complaint asserting that the plaintiff's chances of winning the lottery were reduced, filed by a plaintiff who never bought a lottery ticket, or who tore it up before the winner was announced." Regarding New York, he said that they have standing to sue, but "there is not a dime's worth of difference between Congress's authorizing the President to cancel a spending item, and Congress's authorizing money to be spent on a particular item at the President's discretion." Scalia argued that the only problem with the Act itself was that it may represent an improper delegation of legislative power, and therefore violate Art. I § 1. "It is beyond doubt that lawmaking was a power to be shared by both Houses and the President" (INS v. Chadha, 947). He reviewed some of the historical precedents of Presidents acting under authority delegated by Congress, then ended his opinion supporting the President's "veto" of the spending provision (thus ruling against New York) but wrote that no party before the Court had standing to challenge the constitutionality of the President's "veto" of the tax break (thus ruling against Snake River). Strangely, he completely neglected the difference between properly delegated legislative authority based on, among other things, a determination of fact that could not be made at the time the bill was passed, such as "Mexico is helping up fight the drug war," and "vetoing" a single spending item under the Act.
Justice Breyer had an axe to grind, and his whetstone of choice was formalism. First, he acknowledged that both parties have standing to sue. Then, he walks through an elegant argument that almost proves that there is no difference between the power granted by the Act and other discretionary power delegated by Congress and used by the President many times before.
Breyer acknowledged that his reasoning was fragile, and he was almost correct. His mistake came when he cited an imaginary law:
He went on to show that if this imaginary law were acceptable, then the Act would be acceptable. The problem here was that "x, y, and z" in the Act were too vague to constitute a valid delegation of legislative authority. The imaginary law would be invalid, and thus is the Act. Later, Breyer makes another mistake when he compared the Act to a document setting up a trust. His analogy was that when setting up a trust, the instrument might delegate some arbitrary decision-making authority to the trustee. One is to see Congress as the one setting up the "trust" and the President as the appointee. The fallacy is that the power of both the President and the Congress are delegated to them by the people. His reasoning would support the delegation of almost any legislative authority to anyone. This does not fit with the traditional interpretation of Art. I § 1 which greatly limits the delegatory powers of Congress. Breyer went on to examine at length whether the Act disturbed the Separation of Powers, but the extant problems with the Act made this exposition moot.
The Act is unconstitutional based of two lines of reasoning. It violates the Presentment Clause and it effects an improper delegation of legislative authority.
The Presentment Clause outlines a clear procedure for the enactment of laws. Laws are made by both chambers of Congress approving the same bill, which then continues on its way. Only an instrument approved by both chambers may become a law. Yet once the President has used the power authorized by the Act, barring action by Congress overriding the "veto," an instrument is law that has not been approved by both chambers of Congress. Each opinion makes the error of referring to the power described in the Act as "discretionary," making the analogy between the traditional discretion the President has not to spend money and the power described in the Act. This "veto" is not the same thing. When the President chooses not to spend some money, he can change his mind. If the law under which he exercised said discretion is still in force when a new President comes to office, that new President can change his mind. Once a provision has been removed in accordance with the Act, the President cannot change his mind. It is an action with the force of law, binding on everyone including himself until the new, modified law is changed by Congress. This permanent nature marks the "veto" as very different from a mere use of discretion.
Article I § 1 has traditionally been interpreted to mean that Congress may grant legislative authority only for well-defined issues and after making clear their goals or intentions for the use of the delegated power.
Delegation is clearly a necessity in a modern, efficient government responsible for the needs of a population of two hundred fifty million people. However, in striking down the legislative veto, the Court recalls that "it is crystal clear from the records of the [Constitutional] Convention, contemporaneous writings and debates, that the Framers ranked other values higher than efficiency." (INS v. Chadha, 959.) The Act fails to specify under what conditions the President may use this power, other than a few broad guidelines.
The Court goes on to issue an advisory opinion that the only way to grant this power to the President would be through Article V amendment proceedings. Here the Court is correct based on the preceding and following reasoning. In the Act, Congress is trying to regulate itself, force itself into fiscal responsibility. The problem with a legislative solution is that Congress may, at any time, write into a law that these legislated restrictions don't apply. There is only one "rank" of law the legislature may pass under Article I § 7. To create a "higher," more enduring law, one must refer to Article V.
The Court ruled correctly when it struck down the Line Item Veto Act because the Constitution and the applicable case law support such a ruling. Philosophical grounds for such a decision are somewhat weaker. The line item veto is a sensible power for the Executive to wield which works well in many states. It is certain more will be heard on this issue.
Alignment of the Justices
Stevens delivered the opinion of the court. Rehnquist, Kennedy, Souter, Thomas, and Ginsburg joined.
Kennedy filed a concurring opinion.
Scalia filed an opinion concurring in part and dissenting in part, dissenting overall. O'Connor joined. Breyer joined as to part III.
Breyer filed a dissenting opinion. O'Connor and Scalia joined as to part III.
Works Cited
Madison, James. "The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts," The Federalist No. 47 (1788)
"Line Item Veto Act of 1996: Lessons Learned from the States" URL: http://www.house.gov/rules_org/97-38.htm (15 July 1998)
Case List
Clinton v. New York, No. 97-1374 (1998)
INS v. Chadha, 462 U.S. 919 (1983)
J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928)
Raines v. Byrd, 521 U.S. ___ (1996)
Willson v. Black-Bird Creek Marsh Co., 27 U.S. 245 (1829)
To find laws cited but not linked, go to Thomas at the Library of Congress.
Go back to Steve's Political Science References.
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