The United States Constitution is not always as clear as a Rocky Mountain stream, a regrettable defect that has invited multiple interpretations–assuring an endless supply of work for the Supreme Court as well as a comfortable standard of living for law school professors. But the latest controversy before the justices is unusual. It centers on a provision of the text that has all the ambiguity of a brick wall.
The case, heard this week, concerns the line-item veto that Congress approved two years ago. The “presentment clause” of the Constitution says plainly that any bill passed by both houses shall “be presented to the president of the United States; if he approve he shall sign it, but if not he shall return it.” If he signs the measure, it becomes law. If he vetoes it, it dies, unless the Senate and House can each muster the two-thirds vote needed to override.
The line-item veto law, however, gives the president the option of signing and vetoing the same piece of legislation. He may affix his signature and then excise those parts he finds unsatisfactory, thus nullifying part of the very law he has brought into being.
Supporters of this innovation have been playing an extended game of “let’s pretend.” They would like to make believe that the Constitution doesn’t say what it says. The inescapable meaning of the text is that the president must approve or reject a bill as a whole and has no power to unilaterally alter a duly enacted law.
You could argue that the new procedure can be reconciled with that directive. You could also argue that, though the Constitution says the president must be at least 35 years old, it doesn’t really exclude unusually mature 34-year-olds. Or 33-year-olds. Or . . . when the founding charter guarantees “due process” or forbids “cruel and unusual punishments,” reasonable people will inevitably disagree about what it means. But reasonable people don’t argue about whether the sun will rise in the East or the West tomorrow, and they don’t look for wiggle room in the presentment clause.
The defenders of the line-item veto, however, make several claims to justify it. They insist the framers never imagined a day when Congress would approve enormous spending bills containing thousands of items that no one has entirely read, much less understood. Giving the president the power to scrutinize individual appropriations, as he would be able to do if Congress passed the narrower bills that used to prevail, is supposed to restore constitutional equilibrium. If Congress wants to define the term “bill” to let him cancel small portions of big measures, it has every right to do that.
The argument is too clever by half. Whatever the framers assumed bills would be, they neglected to say–but they didn’t repeat that oversight when it came to specifying what the president may do with a bill. Congress may doubtless define a bill to mean a single spending item or many. What it may not do is define it one way when its members vote and another way when the president receives it. Our lawmakers have a perfect right to submit every $100,000 project to separate consideration in each chamber and then send it on by itself for a signature or a veto. But if they don’t want to go to that trouble, they are not free to pretend they did.
Another argument is that presidents have always been presumed to enjoy the right to refuse to spend some funds appropriated by Congress, and that the line-item veto is merely a new type of the impoundment prerogative. But the two are not the same. The line-item veto may be used to excise not only spending items but tax provisions–which by itself would be a huge expansion of this authority.
And its use differs from impounding funds in that it, as U.S. District Judge Thomas Penfield Jackson noted in striking down the law last year, “forever renders a provision of federal law without legal force or effect.” It is the equivalent of repeal–and the president has no authority to repeal laws on his own. To give him that right would amount to a huge shift in responsibility from the legislative branch to the executive. It would effect a constitutional revolution.
If Congress’ power to delegate authority to the president includes letting him cancel tax provisions, then it’s hard to see why it may not let him cancel any part of any law he signs. If our elected representatives are so ready to surrender such basic functions, then they might as well transfer all their powers to the other end of Pennsylvania Avenue and go home. They would not really deserve to continue to be known as members of the most important legislative body on Earth. But we could pretend.
