The Ghost Of Policies Past

Not to go all wonky on everyone here on a Tuesday afternoon, but I had to take note of President Bush's proposed revival of the line-item veto in a speech yesterday. True, it was in his State of the Union address, but then so was a call to ban human-animal hybrid cloning. The point being that most of what Bush says in any speech is just rhetorical fluff designed to make his base think he's actually doing something while in office. However, this time he may be a bit more serious.

From The Ministry of Truth:

Here's another idea for [Congress]: They need to give the President the line item veto. Congress gave the President a line item veto in 1996, but because with problems the way the law was written, the Supreme Court struck it down. That should not be the end of the story. So in my State of the Union I called for new legislation creating a line item veto that will meet Supreme Court standards. Today, I'm sending Congress legislation that will meet standards and give me the authority to strip special spending and earmarks out of a bill, and then send them back to Congress for an up or down vote. By passing this version of the line item veto, the administration will work with the Congress to reduce wasteful spending, reduce the budget deficit, and ensure that taxpayer dollars are spend wisely.

Some of you may remember that the line-item veto actually was voted into law by Congress in 1996. The reason many don't remember it much is because President Clinton really wasn't able to make much impact with the power. While Clinton was politically successful in staring down Congress during the federal shut-down of 1996, most Presidents are not willing to make that kind of gamble on the federal budget.

The end of the line item veto came in 1998, with a 6-3 Supreme Court decision in President Clinton vs. The City of New York. Justice Kennedy, writing for the majority opinion, essentially held that the line item veto violated Article 1, Section 7 of the U.S. Constitution, which narrowly defines the President's bill signing responsibilities, and thus the law was struck down. The relevant passage from Article 1 reads 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 bolded line is the key; the Supreme Court held that the veto power of the President is essentially "all or nothing". Either the President signs a bill into law or vetoes it; there can be no middle ground without a Constitutional amendment.

My first inclination when I read Bush's speech from yesterday was to believe that this was another attempt, in the same vein as the new abortion ban in South Dakota, to test the conservative credentials of the Roberts court. The line-item veto has long been a part of the Republican "fiscal conservatism" myth. The thinking was built around the idea that the President could use the line-item veto to impose spending discipline on Congress, which is not such a bad idea in theory. In the real world, where conservative ideology goes to die, Republican support for the line-item veto was built around another popular myth: that of the "tax and spend" Democrat. Given that in the last 25 years the only President to balance the budget and exercise fiscal responsibility was, in fact, Bill Clinton, demonstrates the ridiculous hypocrisy of both myths.

In any case, the problem with the Supreme Court challenge a second time around is that the two departed Justices, Rehnquist and O'Connor, were split on this issue in 1998. Unless Alito, Roberts and Scalia can convince Thomas to change his stance, the line-item veto would remain unconstitutional by a 5-4 vote.

The bigger issue here, however, is the implication for executive power. That rings true to me as the reason why Bush really wants the line item veto. Plus, it allows him to at least pay lip service to the fiscal conservatism myth, while the Republican-controlled Congress continues to rubber stamp Bush's spending initiatives. It's a joke anyway that President Bush, who has yet to veto any legislation, needs another way to check the Congress. The Republican party walks in lock step legislatively, even if they have certain policy disputes in the public arena.

Finally, the line-item veto comes down to trust, like most government functions do, and, to be blatantly partisan, I would not trust any Republican with this power. I have no faith that a party with such reckless fiscal policies could offer a President trustworthy enough to exercise restraint when using the line-item veto. Bush, for example, has abused just about every authority granted the Presidency by the Constitution; I really can't see any reason to grant him another power to turn against the country's interests. It's not hard to imagine a Bush White House exercising the line-item veto in order punish political opponents. The little good that the line item-veto could do is outweighed by the potential for abuse, especially by this President.