The Perils of the Line-Item Veto

Last week, I was in the car on the way home to campus when I heard a short blurb on the radio that made my heart skip a beat. The reporter briefly mentioned that a bill that would grant President Obama the line-item veto passed the House of Representatives. I was floored that such a bill would be passed in the first place; that it wasn’t the top news story; that I hadn’t, in fact, accidentally woken up in 1996 after all. Though there would be limits on this power and the prospect of this bill passing the Senate is comparatively slim, I think the idea of instituting a line-item veto is a HUGE and scary thing that a lot more people should be talking about than there are right now.

First, let’s back up a little bit. Do we all remember our Schoolhouse Rock on how a bill becomes a law?

The Constitution grants Congress the authority to pass laws, which the President has to sign* before they are officially enacted. The President is, of course, granted the Constitutional check/balance of the veto, which allows him/her to reject and refuse to sign a bill. Congress, of course, then has the option of overriding that veto, which requires a 2/3 majority vote in both houses. The thing about veto power is that the President must either accept or reject a bill as a whole document; if he/she wants to put a halt on a part of the proposed law, he/she needs to veto the entire thing. This makes vetoing a delicate business.

Enter the line-item veto. Many Governors enjoy this power over state legislation; Presidents have been after it for a long time. The line-item veto does exactly what its name promises, granting the Executive the power to veto individual lines of legislations. In short, it allows the Executive to throw out parts of a bill while enacting the rest. Congress gave President Clinton this power in the mid-1990s under the theory that he could use it to cut down on excessive member item funding. Members of Congress would get credit in their home districts for voting to pass it, but the total budget wouldn’t suffer for it because the President could take the heat and veto that proposed spending. Two years later, the Supreme Court struck down the line-item veto as unconstitutional on the grounds that the Constitution is very specific in granting Congress (specifically the House of Representatives) the authority to write budgets.

The current bill, which enjoys bipartisan sponsorship, was written with that prohibition in mind.

Supporters say the bill has been written to meet constitutional standards. They say that while the president can propose items for rescission, or elimination, Congress must vote on the revised spending package and then the president must sign what is in effect a new bill.

So what’s the big deal? Why my Chicken Little-style panic?

Imagine, if you will, a President less moderate than our current Professor-in-Chief. A President less willing to compromise with the opposition party. A President whose party also controls both houses of Congress–even with just 218 Representatives and 51 Senators. A President who stands for everything you oppose most deeply in your political and social beliefs. And now imagine that that President has the power to excise bits and pieces of carefully crafted laws at will. It’s true that the limitation in the most recent incarnation of the line-item veto, which applies only to budget bills, by the way, would curb the need to override that veto by a 2/3 supermajority. But controlling Congress by even a slim margin, with the right party leadership, could be disastrous.

It’s not about the current economic climate, or even the current occupant of the Oval Office. It’s about the durability of checks and balances in the institutions of the Executive and Congress. Because it is those institutions that endure much longer than the people who hold the seats. And it’s important that we ensure a proper balance of power between them. If we want the line-item veto so badly, we shouldn’t try to do this through the back door. We should propose an amendment to the Constitution. If 2/3 of both houses of Congress and 3/4 of the states are on board for such a radical shift in the balance of our federal power, then maybe – maybe! – I’ll stop sounding the alarm. But I suspect that this proposal of the line-item veto is thought of as a quick fix to a stalemate in Congress and not something for which they’ve really considered the long-term, unintended consequences.

And that is what’s so terrifying.
*That’s the way we tell the story in middle school, although it’s not strictly true. If the President signs a bill, it becomes law. If Congress is in session and the President doesn’t sign or veto the bill within ten days, it becomes law automatically. There’s also a tricky little process called the pocket veto. If session ends within 10 days and the President doesn’t act, then the bill is quietly de facto vetoed without the President having to exercise his/her veto power. The more you know!

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BaseballChica03

Political hack. Word nerd. Stays crispy in milk. Oxford Comma user. Blogger since 2001.

18 thoughts on “The Perils of the Line-Item Veto”

  1. I don’t know. I think it has the potential to be both good and bad, it all depends on the person wielding the pen. I do agree with you that vetoing a whole bill is a massive deterrent for abusing the power but I also think that being forced to veto a whole bill is a massive deterrent to productivity. In other words, bills are sometimes an amalgamation of numerous parts and vetoing a bill to stop one part might mean more essential and effective measures are also vetoed. Your article didn’t mention it but I would assume that even if a line is vetoed, Congress would still be able to vote for it’s passage. It might actually make a fairer and more balanced government if strictly controversial issues must be passed by a super majority rather than being pushed through to the Oval Office with just a slim win. Then again, it might mean that some issues go unresolved… Such is the polarizing nature of American politics. I’m not a big fan of the American governmental system.

  2. I used to think the line item veto was a good idea because of this tendency that Congress seemed to have of slipping things in on a bill that wouldn’t get approved otherwise, like trying to throw in some bad with the good. And, honestly, I’m still torn on it because I can see both the advantages and disadvantages of it, but just knowing how corrupt our government is, I don’t trust them to use it the way it is intended.

  3. Very good way of putting it.  The Repubs are actually very sneaky, because they know that if this bill becomes law, their guy who’s elected down the road could use it to  push through policies that a more moderate Congress–and American public–would not like at all.

    And seeing as I understand Robert’s Rules order because of years of sorority and Panhel meetings better than they do, that is very terrifying.

  4. Well…actually, I’m going to disagree with you on a general level (i.e., the idea that a seperation or balance of powers is inherently good).

    I would argue that the current make-up of the US government system is inherently small-c conservative; that it naturally, actively (and actually by design) discourages change and amendment, and also, that that can (in the context of US politics) be seen as having a negative effect on political discourse – that it can skew a system into undue antagonism.

    In effect, (and please correct any misunderstandings I have about the US federal political system, because I’m not American and no doubt there are some), the Executive, legislature and judiciary are designed under the US system to be able to mutually and equally cancel each other out. There’s a power of executive veto (which can be overturned iirc), but the Executive doesn’t draft laws. The judiciary (with power vested in the Supreme Court) are able to declare laws unconstitutional and hold the President accountable to the law, while the legislature possesses the legislative function (fittingly) and can wield power both over the constitution of the other two wings of government. The President also appoints the highest offices of the judiciary.

    This, naturally, creates conflict between the different wings of government which we see broadcast all year long on American (and, if it’s interesting enough, international) news. The entire US system is predicated on two ideas; firstly, the sovereignty of the Constitution over all three branches as a fundamental founding document of US constitution (Constitution and constitution being distinct, the former a specific document, the latter just the way government is put together). Secondly, the seeming widely held and universal truth in US politics that government can’t function without mutual antagonistic branches of government which block each other continually.

    I would argue that system is great…if you want to maintain a status quo. The executive has no dominant power over the ruling of the nation, laws are slow to be passed (but are arguably better scrutinised – I will take issue with this later, though). But I don’t think it can be denied that the system prevents fast and efficient change to public policy in any sense of those words; indeed, since the last President to enact massively, structurally significant changes to the entire country at once (Mr. Roosevelt, I would argue) the restrictions on different branches of government have grown, not lessened.

    And here’s where I make my opinion known strongly; I don’t think it’s productive. I don’t think you can complain when a system that explicitly relies on branches of government working AGAINST each other adopts an increasingly aggressive, antagonistic tone in political thought. The executive doesn’t work with the legislature, it battles against it – because that’s what it was designed to do!

    I’m coming from a fundamentally statist, Eurocentric point of view. I personally think modern European governments are relatively spiffy; they have their faults, but I prefer a model that utilises a FUSION of powers over a seperation of powers; take, for example, the UK.

    Here in the UK sovereignty does not rest in a codified constitution but in the sovereignty of Parliament (leading to an interesting paradox of whether the UK can legally transition to having a codified constitution, as to establish one is beyond the power of the Parliament under that codified system). We technically don’t elect our leader at all, we elect our party; the Prime Minister is just the leader of the political party or coalition who wins the most votes. As a result, it is very difficult to have a Prime Minister with a minority in Parliament (as in order to form a government, he has to have a majority in Parliament – for fun fact’s sake, it only happens when a coalition comes to power and the non-Ministerial party drops out of that coalition).

    At the same time, the Prime Minister (and the party organisation) has much more power than in the United States. Our parties are far more often the prime funder of candidate’s campaigns, are much more easily capable of ejecting them from their seats, and as a result can often force votes the majority of the time (Parliamentary consensus is that this doesn’t happen on votes of conscience, i.e. social or moral issues). The Judiciary is not legally independent to the same degree as in the US, and because the Prime Minister is more often in charge of the party (Cameron can force votes far more than Obama can), there is in effect a fusion of the legislative and executive powers of government, something that to the US system is anathema (and theoretically very dangerous).

    But…well…it just normally isn’t. Yes, the UK government has done shit things, and yes, they might’ve been less able to do them had there been better regulation of the power of the Executive. But the UK system is, I would argue, far more flexible, and far more responsive to the changing mood of the electorate. While there is a “pendulum effect”, in that the party in power removes some of what the previous party did, this happens in any political system and is pretty much unavoidable while you have any real seperation of opinion between parties.

    To add to this, we have the issue of scrutiny. Theoretically, the US legislature should analyse new bills and criticise them; the proportionate balance of power produces an exchange of ideas and prevents them being passed while they’re not supported, as well as “editing” law,  But the need to pander to absolutely everyone in the drafting of a law seems to me as an outsider actually to WEAKEN legislation. When Obama has to pork-barrel legislation continually just to get shit done, I’m sorry, but I can’t argue that’s an effective function of scrutiny. It’s mangled legislation with bits added on to pander to opposition groups, instead of a honed and whittled (and hopefully more equitable) bit of law.

    And this really gets to the heart of the matter for me; antagonism. While British politics can have as impassioned and entrenched resistance and selfishness and anger as US politics (and indeed our parliamentary debate is reknowned for it, though that televised piece of theatre is not really typical at all and is more for show), fundamentally, government is designed to do things, designed to work together under an elected party who are there by consensus to get shit done (like bitches do, clearly). Whereas the US system, while designed to be equitable, seems to me to have become a hollow compromise, and even worse, is failing to provide a government that can, when it needs to, speak with one clear voice. If Obama wants to do that, he has to reach for executive powers, which is arguably even less democratic than our main-party dominated parliament.

    Is the US system more democratic? Yes. Does it function more effectively? I’d argue no. So I have to worry more about the legislature that refuses to get things done than the executive who might get too much done.

    1. Yes and no.

      What isn’t true is that the executive DOES create laws- just not bills in the way Congress here does.  The executive in the USA is much more complex than just the president.  Agencies, both on the federal and state level have a lot of power in terms of rule making and interpretation of the statutes. Statutes= created by legislature and okayed by the head of the executive.

      Though this power is derived from the APA or administrative procedures act, agencies have the leeway to interpret laws, until challenged in the judicial branch, who, in the most cited US precedent, NRDC v. Chevron, ruled that agencies had the power to interpret and enforce regulations that were either unclear or non-specific according to an agency-created definition.  The interpret and enforce is key- the executive branch has much more power than congress explicitly gives them because the courts have allowed them to interpret statutes (within reason).

      In other ways though, your comment is totally on.  It is conservative with a small C.  The idea is that one party when in power can’t dismantle everything because there are checks and balances.  The US bureaucracy is WAYYY bigger than the UK.  Political upheavals would completely dismantle the huge system and render the government completely ineffective.  It’s built not to be too effective so it can be effective at all.

      Even Americans, with our terrible education system, don’t seem to realize what the executive really is or does.  Everyone focuses on the shenanigans in Congress, while the men and women on the ground doing the real law making and enforcement are in the EPA, FDA, BLM and so on.

      1. I wasn’t really sure whether to address the issue of size and diversity in my post, but this seems as good a place to do it as any; I will concede that the US government is basically trying to run a continent, not a country. Which seems to mean (again, as a not-completely-informed outsider) that essentially, there’s an awkward negotiation between states who can’t be run in the same ways because, well, to run Vermont in the same way as Texas would be ridiculous, andd the inevitable and unfair disparities in living standard and service provision that those differences wind up describing (for example, contrasting Hawaii’s healthcare with Georgia’s).

        I’m aware I may be asking open questions that as yet go unanswered, but is there a way of federally mandating requirements for states without trying to establish impractical state-specific frameworks that may be ineffective or inappropriate? Say, for example, mandating healthcare requirements in the same way that local NHS trusts do over a specific area (so for example one NHS trust may be all about volume of patients while another might be about rural access)? Has that been tried, and proved ineffective?

        1. I’m not sure if I’m following your query correctly, but if you mean what I think you’re meaning, there are federal laws/governments and there are state laws/governments. The federal laws/regulations are supposed to trump state laws/regulations; however, the states can try to challenge federal laws through the court system.

          Part of the reason why establishing things like universal healthcare through the federal regulations is difficult is because that shit would have to make it through Congress, and there’s definitely a strong anti-government/anti-regulation thread in American politics. It is a hell of a lot stronger in some states than others (especially Republican states), and the Republican party has pretty much adopted that.

          Part of that is “state’s rights,” the idea that a state should be able to determine things like that. And part of it is “individual liberty” BS.

          But ultimately, yes, they don’t have to be state-specific mandates; the states are the ones that usually do that.

          US government is complicated. I’ve always liked the UK’s parliamentary system better, but I don’t know if it would work as well in a place as massive as the US.

        2. Having a presidential system (the checks and balances) is really divorced from the concept of federalism (the states business). They are two separate sets of institutions, and it’s completely plausible to have a federal parliamentary system (a national parliament with state parliaments instead of Congress + the President and state legislatures + governors).

          There are plenty of ways out there to provide incentives for states to take up a preferred national policy without resorting to unfunded mandates, but it’s a very, very long discussion (that I just spent an hour with my intro students on it last night, coincidentally!) and this is probably not the right post for my answer. I don’t want to derail the larger conversation I was trying to spark about the horizontal balance of power within the national government.

          1. On your first point – indeed, I’m not sure how helpful it is to link the presidential system too closely with the federal system. The Germans have a federal parliamentary system without a strong presidency, while the French have a strong presidency with a centralised, non-federal government. There are plenty of different potential models even just within Europe.

        3. I work in environment, so I can tell you that the way NHS works as you describe is exactly how some laws are enforced by the EPA.  Clean Air Act permitting procedure varies by state, but the requirements are the same.  So that is exactly how it works.  The same for education.

           

    2. Alex, I am on a teeny, tiny screen right now with a touch keyboard to boot, so I can’t reply the way I normally would. My short response for the moment is that while there are certainly merits and drawbacks to both the separation and fusion of powers models, the problem arises when you throw either out of whack willy-nilly without thought to the long-term consequences. A radical change to the vote of no confidence structure would be equally as destructive in a fusion system as upsetting the balance of legislative control in a checks and balances system. If we want to talk about systemic changes to the American institutional structure as a whole, that’s something different than kicking it off balance and calling it a day.

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