#20 Spring 1998
l THE LINE-ITEM
VETO ACT: CONJOINING WHAT WAS
MEANT TO BE ASUNDER
l IN BRIEF
FCC Attempts to Squash Pirate Radio Station
It Isn’t Just
Power Corrupts . . .
1998 Page 1
THE LINE-ITEM VETO ACT: CONJOINING WHAT WAS MEANT TO BE ASUNDER
by Lauren S. Bain, Esq.
The line-item veto, coveted by presidents for over a century and
finally conceded by the 104th Congress in 1996, marks a significant
dip in the steady descent of contemporary conservatives into pragmatism.
The Line-Item Veto Act,1 an
inexcusable invasion of the Legislative Branch's lawmaking authority,
was a component of the Republicans' simple-minded Contract with
America and the obsession with a balanced budget. Unable to trust
itself with sufficient fiscal responsibility to carry out its own
objectives, Congress delegated to the Chief Executive the new power
to alter a bill he has already signed into law.
veto is not unlimited license for the president to generate his
body of law. The power is limited to canceling
in whole, (1) any dollar amount of discretionary budget authority;
(2) any item of new direct spending; and (3) certain limited tax
benefits. The president may only invoke the veto if he determines
that his cancellation will (1) reduce the federal budget deficit;
(2) not impair any essential Government functions; and (3) not
harm the national interest. Congressional override of the veto
requires a two-thirds supermajority in each chamber.2 Debate time
is strictly limited by the statute. ("Direct spending" refers
to appropriations for "entitlements" and the food stamp
had the line-item veto for more than 100 years. Rep. David Skaggs
in a debate with Rep. Gerald Solomon (R-NY),
said that the Confederate Constitution contained a line-item veto
in 1861. Most state constitutions, he added, now contain this provision.
However, the Line Item Veto Act is a statute, not a constitutional
provision. Rep. Skaggs rightly commented, "If the Congress
wants the President to have a line item veto, it should approve
a constitutional amendment and send it to the states for ratification."3
veto is unequivocally unconstitutional. It violates the Constitution's
Presentment Clause (Art. 1, sec. 7, cl. 2,):
Every Bill which shall have passed the House of Representatives
1998 Page 2
it become a Law, be presented to the President of the United
If he approve he shall sign it, but if
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. If after such
two-thirds of that House [and thereafter
of the other
House] shall agree
to pass the Bill . . . it shall become a
Law . . . If any Bill not be returned by the
Days (Sundays excepted) after it shall have been presented
to him, the
Same shall be a Law, in like Manner as if he had signed it,
unless the Congress by their Adjournment prevent its Return,
Case it shall not be a Law.
Thus, there is no provision for the President to sign and then
amend any bill and remake the law.
Clause is one aspect of the Separation of Powers Doctrine. The
of the Constitution were fervent about the
idea of separation of powers. They created three distinct branches
of government: the legislative, to make the laws; the executive,
to implement the laws; and the judicial, to enforce and interpret
the laws. The branches were intended to be separate so that excessive
power did not fall into one set of hands, as had been the case
under the English monarchy. James Madison, quoting Montesquieu
in Federalist Paper No. 474, wrote, "There can be no liberty
where the legislative and executive powers are united in the same
person, or body of magistrates[.]"
a precise separation of powers to be a "fundamental
article of liberty." But he also said, in No. 48, that the
departments of government could never in practice be truly separate
from one another. He confers superiority upon the legislative department
because of its broader powers, influence, and representativeness
with respect to the people. He concludes that encroachments, when
unavoidable, should be by the legislative upon the executive department,
not the other way around. The line-item veto clearly is an encroachment
of executive power upon legislative authority, and is thus outside
the narrow zone of tolerance that Madison contemplated. "In
republican government," Madison attests in No.51, "the
legislative authority necessarily predominates. The remedy for
this inconveniency is to divide the legislature
1998 Page 3
branches; and to render them, by different modes of
election and different principles of action, as little connected
each other as the nature of their common functions and their
common dependence on the society will admit." In other words,
the very nature of the Congressional structure is designed to be
sufficiently diverse for just lawmaking. In asserting the need
for further examination by the Executive, Congress is abnegating
its own responsibility, inappropriately expanding the power of
a branch of government deliberately limited by Constitutional design
to protect the rights of the people, and warping the separation
of powers doctrine that is the very source of the legislative department's
accountability to the citizenry. This is a breach of the most critical
safeguard the Framers proffered in their campaign to secure ratification
of the Constitution.
In 1997, four
Senators and two Congressmen who opposed the Line-Item Veto Act
suit in the U.S. District Court for the District
of Columbia seeking to have the Act declared unconstitutional.
District Judge Jackson granted plaintiffs' summary judgment motion,
holding that the Act violated the Constitution's Presentment Clause
and was indeed an unconstitutional delegation of legislative power
to the President. Judge Jackson noted: "Never before has Congress
attempted to give away the power to shape the content of a statute
of the United States, as the Act purports to do."5 On appeal,
the United States Supreme Court vacated and remanded the District
Court's judgment, citing lack of standing. Because the president
had not yet invoked the line-item veto, the Supreme Court found
that the plaintiff Representatives claim was not yet ripe, presumably
because the president had not yet used his power to compromise
their lawmaking functions. The Court did not rule on the merits
of the plaintiffs' case.6
President Clinton has since invoked the line-item veto in two
bills. The first cancelled provision would have allowed owners
of agricultural processors to sell their facilities to agricultural
cooperatives without paying capital gains taxes. The second would
have shielded New York State from having to pay as much as $2.6
billion in Medicaid funds. These cancellations were attacked in
suits filed by a group of Idaho farmers and by New York City and
a combination of hospitals and unions. On February 12, a federal
judge in Washington struck down the law.7
The case was appealed to the Supreme Court.8 It
was argued there on April 27. From comments made at argument,
it appears that a
majority of the Justices consider the Act
1998 Page 4
Even the government understands the weakness in its position;
the Solicitor General conceded that "a pure
line item veto is clearly unconstitutional," but sought
to distinguish this Act because of technical details. Unfortunately,
the plaintiffs' standing to raise the issue in these cases is
clear, and this suit
may suffer the same result as the previous. A decision is expected
by late June.
that under the Presentment Clause, the President clearly does
not have constitutional
authority to repeal a statute of the
United States once it has become law, Judge Jackson noted that "[w]hether
a bill is or is not a law of the United States cannot depend on
the President's state of mind when he affixes his signature." Precisely.
The President may not sign a bill into law, believing it to have
antipathetic components, which he has the power simply to remove
once it is enacted; Judge Jackson's reading of the Constitution
is clear. "The President's cancellation of an item unilaterally
effects a repeal of statutory law such that the bill he signed
is not the law that will govern the Nation. That is precisely what
the Presentment Clause was designed to prevent."
That the line-item
veto invades legislative authority under the Separation of Powers
Doctrine and the Constitution's Presentment
Clause is obvious. The Framers were acutely wary of too much expediency
infringing on liberty. In passing the line-item veto, Congress
has, in Judge Jackson's astute words, "turned the constitutional
division of responsibilities for legislating on its head." Congress
must assume its Constitutional responsibility for creating the
laws that govern our nation. The President is charged with accepting
or rejecting a law in total as Congress presents it to him. He
may not take what he likes and leave the rest.
Clinton, celebrating his first invocation of the line-item veto,
declared, "Special interests will not be able to play
the old game of slipping a provision into a massive bill in the
hope that no one will notice."9 But those pesky riders can
also be forms of compromise and dissent that are hallmarks of a
freely deliberative republican government. The Framers never intended
that expediency foreclose deliberation and dissent. Let us hope
the courts will not serve the needs of a Congress too diffident
to fulfill its proper mission.
References and Notes
1.U.S.C. §§ 691
et seq. Full text available: <sorry internet link bad>
Research Service Report for Congress, The Line-Item Veto Act:
Procedural Issues, Louis Fisher, Senior Specialist in
Separation of Powers and Virginia A. McMurtry, Specialist in American
National Government, December 2, 1996: www.house.gov/rules_org/96-973.htm <note
internet link flawed>
NewsHour Forum: Line-Item Veto Debate, June 20, 1997: http://www.pbs.org/newshour/@capitol/forum/june97/veto-6-20.html <note
internet link flawed>
4. Hamilton, Alexander; Madison, James; and Jay, John: The
Federalist Papers, with introduction, table of contents, and index of ideas
by Clinton Rossiter. Mentor Books, New American Library, 1961.
v. Raines, 956 F. Supp. 25, 37 (D.D.C. 1997).
v. Byrd, 117 S.Ct. 2312, 138 L.Ed.2d 849.
of New York v. Clinton, Snake River Potato Growers v. Rubin: http://lw.bna.com/lw/19980224/972393.htm
v. City of New York Rubin v. Snake River Potato Growers,
case no. 97-1374
9. "Clinton Becomes First President to Use Line-Item Veto," by
Alison Mitchell, The New York Times, August 12,1997.
1998 Page 5
FCC Attempts to Squash Pirate Radio Station
Announcing that it intended to protect "public airwaves," the
Federal Communications Commission told a pirate radio station to
get off the air. However, the station has resisted and is, to date,
still going strong.
KAW-FM is a 10-watt unlicensed radio station in Lawrence, Kansas
with a range of only five miles. It transmits an eclectic assortment
of public affairs and music not typically heard on commercial stations
from the top of a three-story building.
In November 1997, despite admitting that no complaints had been
filed against the station, the FCC threatened legal action to shut
down KAW within two months.
The public supports the station. Fifty-two downtown businesses
plan to participate in a benefit bowling tournament to raise $800
for the station. Lawrence Mayor Bonnie Augustine wrote a letter
to the FCC on behalf of the city urging that KAW be allowed to
Station Manager Rich Wenzel said the $75,000 to upgrade the station
would put him out of business, not to mention that, in the absence
of standards to govern the decision, there is no guarantee that
the application would be accepted.
It Isn’t Just Microsoft
Lost amidst the smoke (and mirrors) of the Department of Justice's
persecution of Microsoft is the fact that Intel Corporation, another
computer industry leader, has also been the subject of antitrust
scrutiny for a considerable period of time.
Trade Commission, like the DOJ, is empowered to investigate antitrust
has an even more elastic and non-objective "yardstick": "unfair
competition" and "tendency to create a monopoly."
Both the FTC
and the DOJ scrutinize mergers, which must be government-approved
documented ad nauseam under the Hart-Scott-Rodino Act. The
FTC has been "reviewing" Intel's mergers, e.g., with
computer company Digital Equipment Corporation. In the process,
it has been conducting ongoing investigations of Intel's business
practices, with even less of a deadline than the U.S. troop commitment
inactivity of the DOJ and FTC in the past few years doubtless
contributed significantly to the economy's strength;
but given the attacks on Microsoft, Intel and, most recently, on
the merger between Lockheed-Martin and McDonnel-Douglas, the government
1998 Page 6
bolder in its use of the antitrust cudgel.
Power Corrupts . . .
Recently, a TAFOL member and tax practitioner in the midst of
busy season received a jury summons to appear for jury duty on
March 30, sixteen days from the nefarious April 15 filing deadline.
The summons indicated that while the member could obtain a postponement
of jury duty for prepaid vacation, valid business reasons were
not just cause to request a postponement. Nonetheless, the member,
who was in the midst of fulfilling a contract with one of the big
six accounting firms and whose remuneration was contingent upon
charging an agreed upon number of hours per week, wrote a letter
requesting a postponement and complaining about the use of force
in conscripting jurors.
Predictably, a canned response was mailed to the member which
stated that her request for postponement was denied; and that,
by law, business reasons were not valid reasons to be excused from
jury duty. The canned response went on to say that to avoid contempt
proceedings, the member must appear on the assigned date.
Copyright © 1998
The Association for Objective Law. All rights reserved. The Association
for Objective Law is a Missouri non-profit
corporation whose purpose is to advance Objectivism, the philosophy
of Ayn Rand, as the basis of a proper legal system.