Friday, March 17, 2006

Magnum Opus on Line-Item Veto Authority

Since I promised it some time ago, I figured I would enlighten you all as to the substantive legal and policy reasons why I am adamantly opposed to the enactment of a “line-item veto,” or any other sort of recession authority granted to the President.

Simply put, my objection is institutional as well as practical; the Constitution vests the “power of the purse” with Congress not the President. The fact that Congress, in the eyes of many, mostly conservative, commentators, has shown an unwillingness to control the growth of the federal government does not mean that the delicate balance of powers that was established in 1787 should be abandoned or tinkered with in any way, shape, or form. Presidents are no more or less capable of controlling government spending as Members of Congress are, period. There is no empirical or statistical evidence to support the claim that federal executive branch officials are capable of reducing their own budgets. The fact that such authority may have achieved moderate successes at the state level does not mean that it will have the same effect when applied to Congress and the federal government. Furthermore, the new dynamics of a federal budget process should line-item veto authority be injected into it, likely will have no substantive effect on spending and will only further shift the balance of power away from Congress and to the President. Click Read More to get my full unedited rant.

Let’s begin at the beginning with the text of the Constitution. First, Article I, section 8, clause 1 empowers Congress to “pay the Debts and provide for the common Defense and general Welfare of the United States,” and to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Next, the so-called Appropriations Clause, Article I, section 9, clause 7, provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law….” Simply put, these clauses taken together mean that regardless of the nature of the payment, whether it be for government salaries, payments under a contract, payments ordered by a court, or what have you, a federal agency, including the President of the United States, may not obligate funds from the United States Treasury unless Congress has specifically made the funds available. As the Supreme Court stated more than 155 years ago, regardless of how “much money may be in the Treasury at any one time, not a dollar of it can be used in the payment of any thing not… previously sanctioned [by a congressional appropriation].” See Reeside v. Walker, 52 U.S. (11 How.) 272, 291 (1850); see also Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937); Office of Personnel Management v. Richmond, 496 U.S. 414, 425 (1990).

So how exactly does Congress allocate money? Umm, well, let’s see, good question, well there is … ah screw it, you don’t really want to know. Okay, it is here where part of the problem exists and where part of the policy argument in favor of the line-item veto lies. Fact is there are very, very few people who can adequately explain how the federal budget and the Congressional appropriations process works. Unfortunately, I’m not one of them; although, as the saying goes, I know just enough to be dangerous. For the sake of the post I’ll give a brief, highly simplified, very truncated overview of the process, which if there is anyone reading this with expertise, please augments in the comments section. First, I should note that the federal fiscal year runs from Oct. 1 to Oct. 1, which in itself causes some problems, but it is important to distinguish the fiscal year from the calendar year, though in some states they are the same. Thus, at the federal level FY 07 will start on 10/01/06, and FY 08 on 10/01/07 and so forth and so on. At the beginning of each calendar year (i.e., usually after the State of the Union) the President submits his annual budget to the Congress. After which Congress has until April (15th, I think) to pass what is known as the Budget Resolution, which is the agreement that will guide the process for the annual budget cycle. The Budget Resolution sets a discretionary spending limit and directs the funding of certain specific programs, but by and large it is not legally binding and can be waived or circumvented at will. Basically, the Budget Resolution is a political guidepost, however, it does provide some significant procedural protections for certain budget related issues, especially in the Senate, that makes them easier to enact later in the process. For example, items that are authorized in the Budget Resolution cannot be filibustered and only require a simple majority vote to pass, which is why ANWAR drilling, among other controversial topics, has found such a prominent place in Budget Resolution battles over the last few years.

Basically, the remainder of the process is then turned over to the appropriations committees, which is a select group of Members who wield an enormous amount of power and influence, even though you’ve likely never heard of any of them (except, of course, for Sen. Robert C. Byrd who has managed to have everything in West Virginia named after him). It is often said that there are three classes of legislators, Republicans, Democrats, and Appropriators. I’m not really sure if this is true, but I can say that the appropriations process is lawmaking at its absolute worst. Some basic facts: There are 12 annual appropriations bills (now that Homeland Security has its own), that all have to be enacted by September 31st of each year or else Congress has to pass a “continuing resolution,” which funds those parts of the government whose appropriation bill has yet to pass, usually at the previous years levels. Appropriations bills are just like all other pieces of legislation, except that all they are technically supposed to do is spend money. There is supposed to be no substantive legislation in appropriations bills, in fact, each house has specific rules prohibiting legislating in appropriations bills. This rule, however, is routinely waived, so every bill contains thousands of pages of not only funding allocations, but legislation directing the government to do specific things. Moreover, appropriations are generally time limited; meaning that unlike normal legislation, the provisions contained in appropriations measures is only good for the year of the appropriation unless more time is specifically specified. The fact is that all of the so-called rules that apply to the appropriations process can be waived either by consent or by majority vote that going through them all is really useless.

Bottom line, all appropriations bills become “legislative Christmas trees,” there is usually something special in them for everyone and a lot of things for the Chairmen and other important members, otherwise known as “earmarks.” Now, one asks, how is it, and why is it, that these people get all these special provisions inserted into the bills? Well there are lots of ways, but let me first say that the term “earmark” is a bit misleading and overbroad. What people usually mean when they say “earmark” is something like the infamous “Bridge to Nowhere” that was included in last years Transportation, Treasury Appropriations bill. Generally, these are special provisions inserted at a lawmaker’s behalf that instead of funding generally applicable projects, like roads and bridges in Alaska, are targeted to fund specific projects, such as a Bridge in a specific county or a road from point A to point B in a member’s district. I’ll defer to others experts on the number and amount of earmarks, but they are particularly prevalent in transportation bills and they are usually, but not always, funding amounts in addition to what the state or locality is already receiving in federal funds under the bill.

The conventional wisdom is that these earmarks are needless driving up the cost of appropriations bills and are responsible for the huge deficits and national debt. That to a certain extent is true, however, there are also plenty of “earmarks” that do not involve additional funds, but rather provide that already allocated funds be spent on specific things, or that money appropriated to buy X are spent with company Y, who happens to have his/her business in a member’s district. My point is that earmarks take all shapes, sizes, and language, and can be used for just about anything that the appropriators want. About the only thing that the various types of earmarks have in common is the fact that they rarely, if ever, vetted through the normal legislative process. By this I mean that “earmarks” are usually inserted into bills during conference committee meetings as a way to bring the two houses together on a final version of a bill that can be passed by both houses and sent to the President for his signature into law. Remember from my previous posts that conference reports cannot be amended, but must either be accepted or rejected as presented. Even craftier, is when the appropriators don’t actually include the earmarks in the text of the legislation itself, but rather place them into conference report language and then incorporate the report language into the actual legislative text. This makes the earmarks even less obvious, but they still retain the force of law and require the executive to carry out the earmarking legislator’s intent.

The line-item veto is designed to combat the problem of congressional largess and excessive earmarking in spending or appropriation bills. Legally, however, the line-item veto has taken many forms. An early version was known as impoundment, which was a specific congressional authorization to the President that stated that he could refuse to spend funds that he deemed were not necessary or in excess of what was required to carry out a specific program. President Nixon was the last President to exercise a general impoundment authority, and it was the general consensus that he and his administration abused the authority given to them, and so impoundment was scrapped from the books. The next iteration came in the form of general recession authority. Like impoundment, the President was authorized to single out provisions that he deemed were excessive and request that Congress grant, on a case-by-case basis the authority to rescind the funds and return them to the Treasury. This required approval of both house of Congress, usually by joint resolution, which rarely, if ever happened. In 1996, however, Congress passed the line-item veto and gave President Clinton the authority to strike out specific spending provisions even after he had already signed the appropriations measure into law.

The line-item veto was the subject of two Supreme Court cases. The first in 1997 Raines v. Byrd, involved the issue of whether Senators or members of the House who had voted against the line-item veto has standing to challenge the laws enactment. The Court held that they did not, but declined to rule on the merits of the act itself. In 1998, however, by a 6 to 3 vote, the Supreme Court held that the Line Item Veto Act violated the Bicameralism and Presentment Clauses of the Constitution. The Court rejected the argument that the President's power to cancel items was a mere exercise of discretionary authority granted by Congress. Instead, the cancellation authority represented the repeal of law that could be accomplished only through the regular legislative process, including bicameralism and presentment. In other words, all legislation including appropriations legislation has to be passed by both houses of Congress (bicameralism) and signed by the President (presentment) to have the force of law. In the case of the line-item veto, the Court concluded that "the President has amended two Acts of Congress by repealing a portion of each.” Phrased another way, the President’s striking of excess spending provision, was in the view of the Court legislation that did not go through the constitutionally required process. See Clinton v. City of New York, 524 U.S. 417 (1998).

The latest version of the line-item veto is designed to avoid this constitutional problem. What it appears to require is that in cases where the President wishes to rescind a provision he must send a notice to Congress, who must then pass specific authorization permitting the President to act on the request. Because congressional approval is required, it is believed that this method avoids the problems raised by the Court in Clinton v. New York. Constitutional questions aside, is this a good idea? Will it accomplish the goal of reigning in Congress and reducing spending? Not likely. Moreover, it harms the institution and removes the impetus for real reforms within the Congress.

Basically I have three objections to the line-item veto in whatever form it takes. First, as I’ve already stated, it disrupts the balance of power established by the Constitution and it erodes Congress’s constitutional authority over the Treasury and appropriations process. Second, it destroys any incentive for change within the Congress, by shifting the burden and the political blame to the President. Finally, it won’t reduce spending. Let me elaborate a bit.

The balance of power argument is simple, Congress, not the President controls the purse. Now this is not to say that the President plays no role, for he clearly does. He proposes an annual budget, and he reserves the right to veto legislation that he does not like, subject of course to Congressional override. To allow the President, any President, to item-by-item object to provisions significantly weakens Congress’s role in the process, especially if a President is politically powerful. It’s one thing to include outsiders, including the administration in the law making process, there are excellent reasons for doing so, and the President is an active required participant in every law that is passed, but currently inclusion is at the will of Congress. If Congress doesn’t want to include the President until presentment it is under no obligation to do so. Line-item veto will inject the President into every one of the 12 appropriations bills that go through Congress. If every member has to clear or pre-approve every spending request with Administration officials to ensure that it will not be vetoed, then the process will drag to a screeching halt and never be completed. Congress needs to have the ability to act independently and be independently politically accountable for its actions. If the President doesn’t like provisions in a bill he already has a constitutionally approved remedy, he can veto the bill and send it back. Line-item veto requires Congress in essence to pass appropriations laws twice, once as a package and then again on a line-by-line basis after the President has exercised his power.

Second, there are already ways internally that Congress can address some of the ills of the appropriations process. Just for example, it could strengthen the procedural protections of the Budget Resolution, making it harder to waive it’s application. Second, it could self-impose more transparency on the process by eliminating the ability of Members to insert provisions in conference reports. It could make conference reports amendable for appropriations purposes only, thus allowing full votes on earmarks that are last minute insertions. It could self impose earmark limits, say 1 per member per year or total cost not to exceed 1 million per member per year, this would force members to choose more wisely the projects that they were going to expend political capital on and limits the increase in discretionary spending to $535 million per year, a paltry sum in a 2.4 trillion dollar budget. These are only a few ideas off the top of my head, and I’m sure there are many others. Point is, none of these will happen if the line-item veto passes, as Congress will look to the President to fix the problem after the fact and the politics and finger-pointing will destroy what little incentive there is to actually fix the problem.

Finally, reducing spending; yeah, right. Anyone who seriously thinks that this will accomplish that is seriously deluding themselves. Congressmen and 1/3 of the Senate are up for re-election every time the President is, so every 4 years or so, you can pretty much guarantee there wouldn’t be any line-item vetoes, and if there were, Congress would simply override them in order to protect their jobs. No President is going to cut funding in an area where he/she will eventually have to campaign in, and no member is going to stand by while funding is cut, thereby giving an opponent an easy election year issue. I could go on and on, but I think I’ve made my point. True the appropriations process is horribly broken, but the line-item veto isn’t the solution.


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