Timothy E. Flanigan*
In the course of the last twenty years, Congress has adopted a
series of procedures intended to bring the federal budget deficit
under control. Each of these schemes has in common a profoundly
pessimistic view of the ability of Congress and the Executive to
balance the budget the old fashioned way, i.e., by having Congress
vote a balanced budget or by having the President veto budget-busting
bills as they are presented to him. Instead, these schemes have
sought to take the issue of deficit reduction out of the normal
political process and create instead procedural devices to "force"
a balanced budget. The problem with each of these devices is that
they are, by their nature as legislative acts, not binding on the
Congress that created them, let alone future Congresses. They are
waivable by a simple legislative act, and past Congresses have found
it all too easy to waive them. These special procedures calls to
mind a drunk who, resolving to go on the wagon, locks his liquor
cabinet and confidently sticks the key in his vest pocket. His sobriety
will last only until the next time he feels the need for refreshment.
These attempts may not have created a balanced budget, but they
have made some interesting constitutional law. In Bowsher v. Synar,
478 U.S. 714 (1986), Chief Justice Burger writing for the Court
held that a scheme that placed essentially executive decisions regarding
sequestration of appropriated funds in an officer of the Legislative
branch--the Comptroller General--violated the separation of powers
under the Constitution. This landmark decision defined more clearly
than prior cases the separate spheres of executive and legislative
In the Line Item Veto Act, Pub. L. No. 104-130, 110 Stat. 1200
(1996) ("LIVA"), Congress has taken a new approach to
the perplexing budget problem. Like prior statutes, LIVA attempts
to distance Congress from responsibility for balancing the budget.
Instead of attempting to limit accountability by creating procedural
straight jackets or relying on unelected bureaucrats to make "automatic"
budget cuts, LIVA dramatically increases the power of one branch--the
Executive--to cut spending and eliminate special tax provisions.
LIVA became effective on January 1, 1997 and will sunset on January
1, 2005. Under this statute, the President may "cancel"
any dollar amount of any appropriation, any item of new direct spending,
or any special tax provision creating tax breaks for 100 or fewer
taxpayers. The President may consult legislative history and other
sources to identify the particular line item amounts contained in
larger spending bills to be canceled. Thus the President, upon being
presented with a special or omnibus bill directing the expenditure
of a lump sum of federal funds may look to committee reports, managers,
statements, etc. to identify the line items to be canceled. LIVA
provides only three (remarkably general) factors to guide the President
in his decision to cancel a budget item:
Whether the cancellation will reduce the Federal budget deficit;
Whether the cancellation will impair any essential Government functions;
Whether the cancellation will harm the national interest.
Cancellation is accomplished by notice to Congress that must be
given within five days after the President has signed the relevant
bill. Congress may then "disapprove" the cancellation
by enacting a "disapproval bill" which would then be presented
to the President for his signature in accordance with Article I,
Section 7 of the Constitution. If the President vetoes the disapproval
bill, Congress would have the opportunity to override the veto by
a two-thirds vote of each house in accordance with the Veto Clause.
Like its predecessors, LIVA promises to make new and interesting
constitutional law. Indeed, three sitting Senators and two members
of the House (together with one former Senator) filed an action
earlier this year to enjoin LIVA. A decision in that case is expected
soon. The statute further provides for a direct and expedited appeal
of a district court judgment to the Supreme Court.
Ultimately, LIVA's constitutionality must turn on whether the powers
it grants to the President to cancel all or any portion of a spending
or tax that has otherwise been duly enacted are consistent with
the Constitution. A mere statute cannot grant to the President a
power that is inconsistent with his role under the Presentment Clause
and with his fundamental duty to ensure that the law is faithfully
executed. The President cannot by statute be permitted to usurp
Congress' role in legislative process any more than Congress can
usurp executive functions.
Viewed in this context, the President's powers under LIVA must
logically be viewed either as part of the process by which legislation
becomes law (in which case they must comport with the Presentment
Clause) or as part of the President's executive powers (in which
case they must be executive rather than legislative in nature).
LIVA falls between those stools.
The Constitution gives the President three discrete functions following
bicameral adoption of a bill in Congress. First, he may elect to
sign it. Second, he may veto the bill and return it with a statement
of his objections to the house of Congress in which the bill originated.
Finally, he may do nothing, in which case the bill becomes law without
his signature, unless the Pocket Veto Clause applies.
LIVA would give the President a fourth option, permitting him to
sign a bill into law but then immediately cancel portions of the
bill that he finds objectionable. This new option cannot be derived
from any of the President's other Presentment Clause powers.
To be sure, some have argued that the President possesses an inherent
line item veto power. These arguments do not withstand textual or
historical analysis. The Presentment Clause requires that the President,
upon being presented with a bill, "[I]f he approve it he shall
sign it, but if not he shall return it with his objections to that
House in which it shall have originated ..." The clause requires
the President to sign or veto the "Bill." It does not
give him the option of splitting the bill into pieces and signing
or rejecting parts of the bill. This understanding of the Presentment
Clause has prevailed at least since President Washington's first
term. "From the nature of the Constitution, I must approve
all the parts of a Bill, or reject it in toto." 33 Writings
of George Washington 96 (1940). See also 12 Op. Off. Legal Counsel
Even if such a power could be found in the Presentment Clause,
however, it would not support the power described in LIVA. Whatever
its scope, the veto power must be exercised before a bill becomes
law. LIVA, in contrast, requires the President to act to cancel
a bill only after he has signed the bill into law.
The executive power reposed in the President in Article II provides
no greater support for LIVA than the Presentment Clause. That power
is, to be sure, vast in its scope. But it remains fundamentally
executive in its nature. By contrast the power created under LIVA
is a power to make law by repealing portions of existing law. When
the President signs a bill, it immediately becomes law. That law
can only be rescinded by another legislative act. LIVA would place
that legislative process in the President. It would be difficult
to imagine a clearer violation of the Framers' commitment of the
legislative power to Congress and the executive power to the President.
Far from executing the law, the President's actions under LIVA would
nullify it. (Of course, the legislative act of Congress in adopting
LIVA does not justify the transfer of constitutional powers from
Congress to the Executive contemplated in the statute. See INS v.
Chadha, 462 U.S. 919, 942 n.13 (1983).)
Moreover, by picking and choosing which items of spending or tax
benefits he would cancel, the President will be in a position to
profoundly alter the legislative compromise that is normally reflected
in final legislation. A Senator or Congressman could not be assured
that a particular provision which persuaded him to support an omnibus
bill will remain in place even after the President signs the bill
into law. Moreover, LIVA places the President in a position to exert
significant pressure on individual Members of Congress by threatening
to cancel individual items of importance to them. Thus the constitutional
balance of power between the Executive and Legislative Branches
would be drastically altered.
A stronger basis for LIVA's provisions empowering the President
to cancel requirements that funds be spent is the so-called impoundment
power. Presidents up to and including Richard Nixon asserted an
inherent power not to spend appropriated funds to the extent they
deemed them unnecessary to accomplish statutory purposes. President
Nixon's attempts to expand the use of this power resulted in the
passage of the Impoundment Control Act which purported to severely
limit the President's impoundment authority. (LIVA is styled as
an amendment to that act.)
The basis for a presidential impoundment authority is open to question,
particularly in the face of the express, and presumptively constitutional,
statutory command in the Impoundment Control Act that all appropriated
funds are to be spent. Moreover, even if an inherent impoundment
authority exists, it would not require the upholding of LIVA. As
discussed above, LIVA authorizes the President to cancel, not only
spending authority, but special limited purpose tax provisions as
well. The impoundment authority has never been thought to extend
beyond rescinding spending. Congress' considered choice not to include
a severability clause in LIVA would almost certainly require that
the statute as a whole be struck down if the power to modify tax
laws is, by itself, found to exceed executive authority.
From one policy perspective, LIVA may represent an important improvement
over prior law. The fundamental flaw in the Gramm-Rudman Act and
other prior legislative attempts at budget control was that they
were actually intended to eliminate accountability from the budget
balancing process. LIVA, in contrast, centers accountability for
tough budget decisions in the President. Presidents have for many
years sought this role. At least until the present administration,
however, they have consistently advocated a constitutional amendment
as the appropriate means of achieving that accountability. A decision
by the Supreme Court striking down LIVA would, perhaps, rekindle
the movement to give the President a true line item veto through
the only sure means: amending the Constitution.
*Mr. Flanigan served as Assistant Attorney General for the Office
of Legal Counsel during the Bush administration. He is currently
working on a biography of the late Chief Justice Warren E. Burger.