Order Code RL33365
CRS Report for Congress
Received through the CRS Web
Line Item Veto: A Constitutional Analysis
of Recent Proposals
April 17, 2006
Morton Rosenberg
Specialist in American Public Law
American Law Division
Congressional Research Service { The Library of Congress

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Line Item Veto: A Constitutional Analysis of Recent
Proposals
Summary
On March 6, 2006, the President announced that he was sending to Congress
proposed legislation that “would provide a fast-track procedure to require the
Congress to vote up-or-down on rescissions proposed by the President.” The
President’s proposal, denominated the “Legislative Line Item Veto Act of 2006,” was
introduced the next day in the Senate and House as S. 2381 and H.R. 4890. In
comments accompanying the proposal it is asserted that “the President’s proposal is
fully consistent with the Constitution. In its 1998 ruling [in Clinton v. City of New
York] striking down the Line Item Veto Act of 1996, the Supreme Court concluded
that the Act ‘g[ave] the President unilateral power to change the text of duly enacted
statutes.’ The Legislative Line Item Veto Act does not raise those constitutional
issues because the President’s rescission proposals must be enacted by both Houses
and signed into law.”
Standing alone, the proposed expedited rescission procedure would likely pass
constitutional scrutiny. Congress would simply establish a process whereby the
President may propose rescission of specific types of appropriation and tax
provisions, including earmarks. The fact the Congress must act within a limited time
period to either approve or reject the proposal, and that certain procedural and
deliberative processes are curtailed or eliminated, does not raise constitutional
questions. The so-called fast-track process is an exercise of the constitutionally-based
authority of each House to establish its own rules of internal procedure.
The expedited rescission process of these bills, however, does not stand alone.
Under the proposal, the President would be given discretionary power to suspend
covered spending and tax provisions for up to 180 days, and perhaps more, even if
Congress rejected a proposed rescission within that period. This is unlike the current
rescission process under the Impoundment Control Act, which requires the obligation
of funds if Congress fails to approve the President’s rescission proposal within 45
days of continuous session after submission of a rescission proposal, or the provision
in the rejected Line Veto Act of 1996 which required expenditure of canceled
authorities immediately upon the enactment of a joint resolution of disapproval. In
addition, while Congress must act speedily when it receives the President’s proposal,
nothing in the bills specifies when the President must send up his proposal; nor do
the bills appear to require that targeted spending and tax provisions in one law be
sent up together; and nothing in the bills limits the suspension period to the stated
180-day suspension period or prohibits the additional utilization of the 45-day wait
period for proposed rescissions under the current Impoundment Control Act, which
is not to be repealed. An issue before a reviewing court, then, might be whether the
bills’ suspension power could be viewed as an effective grant of presidential
authority to cancel provisions of law that was proscribed by the Supreme Court in
Clinton v. City of New York.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Nature and Scope of the Supreme Court’s Ruling in
Clinton v. City of New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Discussion and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
The Metropolitan Airports Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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Line Item Veto: A Constitutional Analysis of
Recent Proposals
Introduction
President Bush and some in Congress advocate enactment of legislation that
would provide the Chief Executive with line item veto authority, and the President
has reiterated his support of a revival of such authority that would pass constitutional
muster throughout his presidency in speeches, press conferences and annual budget
submissions.1 On March 6, 2006, the President announced that he was sending to
Congress proposed legislation that “would provide a fast-track procedure to require
the Congress to vote up-or-down on rescissions proposed by the President.” The
President’s proposal, denominated the “Legislative Line Item Veto Act of 2006,” was
introduced the next day in the Senate and House as S. 2381 and H.R. 4890. In
comments accompanying the proposal it was asserted that “the President’s proposal
is fully consistent with the Constitution. In its 1998 ruling [in Clinton v. City of New
York] striking down the Line Item Veto Act of 1996, the Supreme Court concluded
that the Act ‘g[ave] the President unilateral power to change the text of duly enacted
statutes.’ The Legislative Line Item Veto Act does not raise those constitutional
issues because the President’s rescission proposals must be enacted by both Houses
and signed into law.”2
Standing alone, the proposed expedited rescission procedure would likely pass
constitutional scrutiny. Congress would simply establish a process whereby the
President may propose rescission of specific types of appropriation and tax
provisions, including earmarks. The fact the Congress must act within a limited time
period to either approve or reject the proposal, and that certain procedural and
deliberative processes would be curtailed or eliminated, does not raise constitutional
questions. The so-called fast-track process is an exercise of the constitutionally-based
authority of each House to establish its own rules of internal procedure.
The expedited rescission process of these bills, however, does not stand alone.
Under the proposal, the President is given discretionary power to suspend covered
spending and tax provisions for up to 180 days, and perhaps more, even if Congress
rejects a proposed rescission within that period. This is unlike the current rescission
process under the Impoundment Control Act, which requires the obligation of funds
1 See, e.g., CRS Issue Brief IB89148, Item Veto and Expanded Impoundment Proposals, by
Virginia A. McMurtry; OMB, Analytical Perspectives, Budget of the United States
Government, Fiscal Year 2006, at 240-241; and OMB, Analytic Perspectives, Budget of the
United States Government, Fiscal Year 2005, at 218-219.
2 Office of the White House Press Secretary at [http://www.whitehouse.gov/news
/releases/2006/03/20060306-6.html].

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if Congress fails to approve the President’s rescission proposal within 45 days of
continuous session after submission of a rescission proposal, or the provision in the
rejected Line Veto Act of 1996 which required expenditure of canceled authorities
immediately upon the enactment of a joint resolution of disapproval.3 In addition,
while Congress must act speedily when it receives the President’s proposal,4 nothing
in the bills specifies when the President must send up his proposal; nor do the bills
appear to require that targeted spending and tax provisions in one law be sent up
together; and nothing in the bills limits the suspension period of the stated 180 daysor
prohibits the additional utilization of the 45-day wait period for proposed rescissions
under the current Impoundment Control Act, which is not to be repealed. An issue
before a reviewing court, then, might be whether the bills’ suspension power reaches
far enough to be considered an effective grant of authority to cancel provisions of law
that was proscribed by the Supreme Court in Clinton v. City of New York.5
The discussion will proceed as follows. After an examination of the nature and
scope of the Supreme Court’s ruling in Clinton v. City of New York, the bills will be
described and compared with the Line Item Veto Act of 1996, and the current process
for dealing with rescissions and deferrals under the Impoundment Control Act of
1974, as amended. The discussion concludes with an assessment of the legal and
practical effect of the proposed suspension provision, and includes taking into
account past and present legislative, executive and judicial precedents and practices
with respect to impoundments, rescissions, deferrals and other efforts at budget and
spending controls. That examination suggests that, in light of the Clinton ruling and
analogous structural separation of powers decisions, a reviewing court might view
the proposed suspension authority to be vested in the President as, in effect, a power
to cancel appropriations akin to that proscribed in Clinton.
The Nature and Scope of the Supreme Court’s
Ruling in Clinton v. City of New York
In 1996, Congress enacted the Line Item Veto Act6 which gave the President the
power to “cancel in whole” three types of provisions already enacted into law: 1) any
dollar amount of discretionary budget authority, 2) any item of new direct spending,
or 3) any limited tax benefit. The Veto Act imposed procedures for the President to
follow whenever he exercised this cancellation authority. The President had to
transmit a special message to the Congress detailing the provisions to be canceled,
together with factual determinations required by the law to be made and the reasons
for the cancellations, within five calendar days of the enactment of the law containing
3 See 2 U.S.C. 683(b); 2 U.S.C. 691b(a).
4 The bills would require an up-or-down vote be taken by both Houses on or before the 10th
day of session after the introduction of the President’s rescission proposal.
5 524 U.S. 417 (1998).
6 P.L. 104-130, 110 Stat. 1200, codified at 2 U.S.C. 691-692.

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such provisions.7 All covered provisions of a law sought to be canceled had to be
submitted together in that message.8 Cancellation of the specified provisions took
effect on receipt of the special message by both Houses.9 If a disapproval bill was
enacted, the cancellation was deemed to “be null and void” and the provisions
became effective as of the original date of the law.10 The President was prohibited
from attempting to re-cancel items that were the subject of a previous special
message for which Congress had enacted disapproval legislation.11 The Veto Act
also provided for expedited congressional consideration of bills introduced to
disapprove cancellations. Congress provided for itself a review period of 30 calendar
days of session beginning on the first calendar day of session after receipt of the
President’s special message. If Congress adjourned prior to the expiration of the 30-
day period, a pending disapproval bill could be brought up again in the next Congress
if filed within five calendar days after the commencement of the new session.12 A
rescission bill had to be filed by the fifth day of the 30 calendar day period and be
reported to the House floor by the seventh day after introduction without amendment.
In the House, a motion to amend had to have the support of 50 Members. In the
Senate, a new cancellation could be added if it was from the same original law.13
Conference consideration procedures were detailed.14 During the existence of the
Veto Act, the President sent 11 special messages canceling a total of 82 provisions,
including the two that were the subject of the Clinton ruling. Congress passed one
bill disapproving 38 cancellations, which President Clinton vetoed. The veto was
overridden and the disapprovals were enacted into law.15
In Clinton v. City of New York16 the Supreme Court dealt with two presidential
cancellations under the Veto Act, an item of direct spending in the Balanced Budget
Act of 1997 and a limited tax benefit in the Taxpayer Relief Act of 1997. After
finding that the plaintiffs had suffered the requisite injury for Article III standing, the
Court addressed the merits of the case, holding, by a 6-3 vote, that allowing the
President to cancel provisions of enacted law violated the Constitution’s Presentment
Clause.17 “In both legal and practical effect, the President has amended two Acts of
Congress by repealing a portion of each. ‘[R]epeal of statutes, no less then
7 2 U.S.C. 691a(c); 691e(6).
8 Id., sec. 691a(a): “For each law from which a cancellation has been made under this
subchapter the President shall transmit a single special message to the Congress.”
9 Id., sec. 691b(a).
10 Id.
11 Id., sec. 691a(c).
12 Id., sec. 691d(b).
13 Id., sec. 691d(d), (e).
14 Id., sec. 691d(f).
15 P.L. 105-159. See CRS Issue Brief IB89148, Item Veto and Expanded Impoundment
Proposals, by Virginia A. McMurtry.
16 524 U.S. 417 (1998).
17 U.S. Const., Art. I, sec.7, cl. 2.

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enactment, must conform with Art. I.’ INS v. Chadha, 462 U.S. 919, 954 (1983).”18
Such statutory repeals, the Court emphasized, must conform to the Presentment
Clause’s “single, finely wrought and exhaustively considered, procedure” for
enacting a law, i.e., passage of a bill by both Houses, presentment of the measure for
the President’s signature or veto, and a veto override if necessary, again citing
Chadha.19 The Court then determined that the cancellation procedures of the Veto
Act did not so conform, because nothing in the Constitution authorized the President
to amend or repeal a statute, or parts of a statute, unilaterally, and because historical
writings and practice provided “powerful reasons for construing constitutional silence
on this profoundly important issue as equivalent to an express prohibition.”20 The
Court’s majority opinion pointedly rejected the notion that Congress and the
President could agree by law to authorize “the President himself to effect the repeal
of laws, for his own policy reasons, without observing the procedures set out in
Article I, sec.7. The fact that Congress intended such a result is of no moment.
Although Congress presumably anticipated that the President might cancel some of
the items in the Balanced Budget Act and in the Taxpayer Relief Act, Congress
cannot alter the procedures set out in Article I, sec.7, without amending the
Constitution.”21
The broad, unequivocal nature of the majority opinion is underlined by Justice
Kennedy’s concurring opinion, responding to Justice Breyer’s suggestion in dissent
that the Court’s role in a case such as this “is lessened here because the two political
branches are adjusting their own powers between themselves.”22 Justice Kennedy’s
rebuttal emphasizes that this case raises important structural separation of powers
concerns respecting the Framers’ fear that the “concentration of power in the hands
of a single branch is a threat to liberty.”23 He stated:
To say the political branches have a somewhat free hand to reallocate their own
authority would seem to require acceptance of two premises: first, that the public
good demands it, and second, that liberty is not at risk. The former premise is
inadmissible. The Constitution’s structure requires a stability which transcends
the convenience of the moment. See Metropolitan Washington Airports Authority
v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276-277 (1991);
Bowsher v. Synar, 478 U.S. 714, 736 (1986); INS v. Chadha, 462 U.S. 919, 944-
945, 958-959 (1983); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co.,
458 U.S. 50, 73-74 (1982). The latter premise, too, is flawed. Liberty is always
18 524 U.S. at 438 (emphasis supplied.).
19 Id., at 439-40.
20 Id.
21 Id., at 445-46. See also 524 U.S. at 449: “If there is to be a new procedure in which the
President will play a different role in determining the final text of what may ‘become a law’,
such a change must come not by legislation but through amendment procedures set forth in
Article V of the Constitution.”
22 Id., at 449.
23 Id., at 450.

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at stake when one or more of the branches seek to transgress the separation of
powers.24
The Supreme Court has developed two lines of separation of powers
jurisprudence. The first reflects the Court’s concerns over “encroachment and
aggrandizement that has animated our separation-of-powers jurisprudence and
aroused our vigilance against the ‘hydraulic pressure inherent within each of the
separate Branches to exceed the outer limits of its power’.”25 In such structural cases,
the Court has articulated interpretations of constitutional directions that are rigid and
which may not be altered and are not subject to “balancing.” Justice Blackmun
speaking for the Court in Mistretta delineated the cases that have been subject to such
formalist analysis:
... Accordingly, we have not hesitated to strike down provisions of law that
either accrete to a single Branch powers more appropriately diffused among
separate Branches or that undermine the authority and independence of one or
another coordinate Branch. For example, just as the Framers recognized the
particular danger of the Legislative Branch’s accreting to itself judicial or
executive power, so too have we invalidated attempts by Congress to exercise the
responsibilities of other Branches or to reassign powers vested by the
Constitution in either the Judicial Branch or the Executive Branch. Bowsher v.
Synar, 478 U.S. 714 (1986) (Congress may not exercise removal power over
officer performing executive functions); INS v. Chadha, supra (Congress may
not control execution of laws except through Art. I procedures); Northern
Pipeline Construction Co. v. Marathon Pipe Line co., 458 U.S. 50 (1982)
(Congress may not confer Art. III power on Art. I judge).26
To his list may be added the Court’s subsequent 1991 ruling in Metropolitan
Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc.
(Washington Airports).27
In contrast, Justice Blackmun juxtaposed a second line of cases, in which
aggrandizement or encroachment were not apparent and what was involved was the
establishment by Congress of the arrangements within and between the agencies, the
President, Congress and the Judiciary, under its broad Article I authority to create
agencies and vest them with the necessary tools to carry out their assigned tasks. The
key question in disputes over agency arrangements is whether so much has been
taken from the functioning of one constitutional actor as to impair that actor’s core
constitutional functions. The Court sees its task in these cases as assuring that the
essential lines of authority from the constitutional actors remain intact by utilizing
a balancing test, a functionalist approach. As Justice Blackman explained in
Mistretta:
24 Id., at 449-50.
25 Mistretta v. United States, 488 U.S. 361, 382 (1989).
26 448 U.S. at 382.
27 501 U.S. 252 (1991) (Congress may not maintain control of the decisionmaking of an
executive entity by means of a review entity whose members it has appointed).

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By the same token, we have upheld statutory provisions that to some degree
commingle the functions of the Branches, but that pose no danger of either
aggrandizement or encroachment. Morrison v. Olson, 487 U.S. 654 (1988)
(upholding judicial appointment of independent counsel); Commodity Futures
Trading Comm’n v. Schor, 478 U.S. 833 (1986) (upholding agency’s assumption
of jurisdiction over state-law counterclaims).
In Nixon v. Administrator of General Services, supra, upholding, against a
separation-of-powers challenge, legislation providing for the General Services
Administration to control Presidential papers after resignation, we described our
separation-of-powers inquiry as focusing “on the extent to which [a provision of
law] prevents the Executive Branch from accomplishing its constitutionally
assigned function.” 433 U.S., at 443 (citing United States v. Nixon, 418 U.S. at
711-712). In cases specifically involving the Judicial Branch, we have expressed
our vigilance against two dangers: first, that the Judicial Branch neither be
assigned nor allowed “tasks that are more properly accomplished by [other]
branches,” Morrison v. Olson, 487 U.S., at 680-681, and, second, that no
provision of law “impermissibly threatens the institutional integrity of the
Judicial Branch.” Commodity Futures Trading Comm’n v. Schor, 478 U.S., at
851.28
Justice Kennedy viewed the Court’s Item Veto decision as falling within the
first, or formalist, line of cases just described, or as he characterizes them, the
“vertical” separation of powers line of authority.
Separation of powers helps to ensure the ability of each branch to be vigorous in
asserting its proper authority. In this respect the device operates on a horizontal
axis to secure a proper balance of legislative, executive and judicial authority.
Separation of powers operates on a vertical axis as well, between each branch
and the citizens in whose interest powers must be exercised. The citizen has vital
interest in the regularity of the exercise of governmental power. If this point was
not clear before Chadha, it should have been so afterwards. Though Chadha
involved the deportation of a person, while the case before us involves the
expenditure of money or the grant of a tax exemption, this circumstance does not
mean that the vertical operation of the separation of powers is irrelevant here. By
increasing the power of the President beyond what the Framers envisioned, the
statute compromises the political liberty of our citizens, liberty which the
separation of powers seeks to secure.29
Justice Kennedy succinctly encapsulated in his conclusion: “That a congressional
cession of power is voluntary does not make it innocuous. The Constitution is a
compact enduring for more than our time, and one Congress cannot yield up its own
powers, much less those of other Congresses to follow.... Abdication of
responsibility is not part of the constitutional design.”30
28 448 U.S. at 382-83.
29 Clinton v. City of New York, 524 U.S. at 452.
30 Id.

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Discussion and Analysis
The bills’ line item veto provision presents no apparent constitutional problem
with respect to the expedited rescission process it establishes. The President is not
vested with direct authority to cancel covered spending or tax benefit provisions. He
must send up to Congress proposals to rescind such provisions which must be acted
upon either by passage of a law approving the cancellations, or by a vote not to
approve the proposal. No constitutional issue appears raised by Congress imposing
on itself a requirement that it must take legislative actions within a limited period of
time or that certain procedural and deliberative processes are curtailed or eliminated.
The so-called fast-track process is an exercise of the constitutionally-based authority
of each House to establish its own rules of internal procedure, which has been
broadly construed by the courts.31
But, this proposal also vests the President with discretionary authority that may
raise a constitutional question under Clinton. The bills set no time- frame within
which the President must send up a rescission proposal after a law is enacted. When
he does send up a proposal he may suspend the covered provision(s) designated for
up to 180 calendar days. The suspension may be terminated at any earlier time if he
determines that continuation of the suspension “would not further serve the purposes
of this Act.” The bills do not require that targeted spending and tax provisions
contained in one law must be sent up at the same time. Further, nothing in the bills
expressly limits the suspension period to the stated 180 day deferral period nor is
there a prohibition against using the rescission authority of the Impoundment Control
Act32 in conjunction with the proposed Item Veto Act, either before or after a
message is sent to Congress triggering the process of the latter Act. Finally, the 180
day deferral of discretionary budget authority or direct spending would not
automatically end with early congressional rejection of a rescission proposal unless
the President so ordered the termination.
Critics have suggested that use of the 180-day deferral period “could effectively
kill various items by withholding funding until the end of the fiscal year on
September 30, even if Congress had acted swiftly to reject his proposed
cancellations.”33 It has also been suggested that “the fast-track rescission process
could be paired with the old rescission process to grant the White House 45 extra
days of budget impoundment authority by seeking a second vote under the old
rescission process for cuts that had been initially rejected under the new proposal.”34
A spokesperson for the Office of Management and Budget (OMB) reportedly
has responded that such concerns are exaggerated: “The 180 days provision allows
items for the which the President will seek a rescission to be set aside while
rescission is considered by Congress. If Congress rejects a rescission request then the
31 See Art. I, sec. 5, cl. 2; United States v. Ballin, 144 U.S. 1, 5 (1892).
32 2 U.S.C. 683.
33 Jonathan Nicholson, “Six-Month Budget Impoundment Time With ‘Veto’ Seen Raising
Issues In Congress,” BNA Daily Report for Executives, March 24, 2006.
34 Id.

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President has the authority to terminate the deferral and let the funds be spent or the
tax benefits be provided. The Administration’s intention would be to do so
immediately.” The spokesperson explained that the 180-day deferral period was
designed for those periods when Congress takes long recesses “and as a way to prod
action. For example, for 2006, Congress has set an early October target date for
adjournment. While many observers believe that means a post-election session is
likely, it is possible the Congress could stay out of session until February, a period
of about five months.”35
It is likely that a reviewing court acting on a legal challenge to the Line Item
Veto Act, in attempting to assess whether the proposed suspension authority is
effectively a proscribed cancellation power, would look to past congressional actions
to discern the degree of departure from past norms of protections of legislative
prerogatives. For example, under the current Impoundment Control Act, the
rescission and deferral processes are tightly controlled. Rescissions may be proposed
by the President at any time. Congress has 45 days of continuous session to approve
a rescission bill, but it is not required to take any action during that period, i.e.,
neither House has to vote on the proposal. During the 45-day period budget authority
is suspended. When the 45 day period ends without a congressional rescission action,
the budget authority must be made available for obligation immediately and the
rescission procedure under the act cannot be used again for those funds.36
The current Impoundment Control Act also has a provision that allows for
deferrals up to the end of the fiscal year in which a special message is transmitted to
Congress. Such deferrals are limited to “programmatic” deferrals and exclude
“policy” deferrals.37 It has been very rarely used in recent times. But the 180-day
suspension period proposal now under consideration could significantly alter that
deferral limitation and even revive the practice of presidential policy deferrals. It
therefore may be instructive to briefly review the history of that provision and its
significance in Congress’ past efforts to control executive impoundments. The
original Impoundment Control Act of 1974 allowed deferrals of budget authority not
to extend beyond the end of the fiscal year in which the message reporting the
deferral was transmitted. The act also provided that a deferral could be terminated by
the passage of a resolution of disapproval by either House of Congress. The 1983
35 Id.
36 2 U.S.C, 683. In the past, OMB has been found to have expanded the 45-day period during
which funds are “frozen” by starting the deferral before the submission of the President’s
rescission message on the ground that there needs to be time to decide whether to ask for
rescission and then time for preparation of the message, arguing that it would be wasteful
to obligate funds for a program that might be canceled by Congress. All of this often took
30 or more days, extending the statutory 45 days suspension period. In one instance (in
1986), five and half months elapsed between the effective date of a particular appropriation
and the submission of the required report under the act. The Comptroller General issued
several opinions critical of the practice. See CRS Archived Report 87-173, Presidential
Impoundment Authority After City of New Haven v. United States, by Richard Ehlke and
Morton Rosenberg, (recounting the practice and congressional and GAO reactions:
available from authors).
37 2 U.S.C. 684.

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Chadha decision, declaring all one and two-House legislative vetoes
unconstitutional, effectively nullified the deferral legislative veto provision. The
question that remained was whether the invalid veto provision was severable from
the statute, leaving the President with an unfettered deferral power, or whether it was
inseverable, leaving no deferral power at all. At the time, the President acted on the
presumption he had unfettered deferral authority in the wake of Chadha.
The issue was resolved by the D.C. Circuit’s ruling in City of New Haven v.
United States,38 which held that Congress would have preferred no statute to one
without the one-House veto provision because it was so essential in controlling
presidential deferrals:
Section 1013 was designed specifically to provide Congress with a means for
controlling presidential deferrals. As a consequence of the Supreme Court‘s
decision in Chadha, however, that section has been transformed into a license to
impound funds for policy reasons. This result is completely contrary to the will
of Congress, which in amending the Anti-Deficiency Act sought to remove any
colorable statutory basis for unchecked policy deferrals. We cannot imagine that
Congress would have acted in complete contravention of its intended purposes
by enacting section 1013 without a legislative veto provision. Accordingly, we
hold that the unconstitutional legislative veto provision contained in section 1013
is inseverable from the remainder of the section, and we affirm the judgement of
the District Court invalidating section 1013 in its entirety.39
The Court emphasized the important substantive difference it saw between
policy and programmatic deferrals: “The critical distinction between ‘programmatic’
and ‘policy’ deferrals is that the former are ordinarily intended to advance
congressional budgetary policies by ensuring that congressional programs are
administered efficiently, while the latter are ordinarily intended to negate the will of
Congress by substituting the fiscal policies of the Executive Branch for those
established by enactment of budget legislation.”40 Throughout the opinion the
appeals court further noted its view of the limited scope of the Executive’s remaining
authority to implement “programmatic” impoundments by characterizing it as dealing
with “routine”,41 and “trivial” matters, 42 and referring to them as “these ‘trivial’
impoundments relating to the ‘normal and orderly operation of the government’ that
Congress expected to present little controversy.”43 Nine months later Congress
codified the appeals court’s distinction between policy and programmatic deferrals
38 809 F. 2d 900 (D.C.Cir. 1987).
39 809 F. 2d at 909 (emphasis in original).
40 809 F. 2d at 901 (emphasis in original; footnote omitted).
41 Id., at 906 note 18.
42 Id., at 908.
43 See CRS Archived Report 87-173, Presidential Impoundment Authority After City of New
Haven v. United States, by Richard Ehlke and Morton Rosenberg, discussing the statutory
and legal development of the policy/programmatic dichotomy: available from authors.

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which now appears at 2 U.S.C. 684.44 In that same legislation Congress prohibited
the then prevalent practice of Presidents of submitting a new rescission proposal
concerning identical or very similar matter when Congress failed to act on a
rescission proposal within the allotted 45 days. By using such submissions, the
President sought to continue to tie up funds even though Congress, by its inaction,
had already rejected the same proposal. The enacted prohibition against such
seriatim rescission proposals applies for the duration of the appropriation, so it may
remain in effect for two or more fiscal years.45
Even under the 1996 Veto Act that was declared unconstitutional, Congress
included a number of provisions to constrain presidential authority. For example, the
President had to bundle all canceled items in a single message to the Congress;46 the
President’s special message had to be transmitted within five calendar days after
enactment of the law to which the cancellation applied;47 cancellation took effect on
receipt by both Houses but if a disapproval was enacted, the cancellation was deemed
never to have occurred and the funds had to be utilized;48 congressional review was
for 30 calendar days of session after receipt of the message, but if Congress
adjourned prior to the expiration of the 30-day period, it could be brought up again
in the next Congress if it was filed within five days of the commencement of the new
session;49 and a rescission bill had to be filed by the fifth day of the 30 calendar day
period, reported to the floor by the seventh day after introduction without
amendment, could be amended in the House if supported by 50 Members, and new
cancellation items could be added in the Senate if the items were from the same
law.50
The foregoing review of the President’s proposal for a revived item veto, the
provisions of the current Impoundment Control Act and the judicially nullified Item
Veto Act of 1996, and past executive challenges to legislative spending controls and
congressional responses, provide background to the analysis of how a court might
view the current item veto proposal. The issue is whether the proposed Legislative
Line Item Veto Act in its present form would have the potential of allowing the
President, through the utilization of the 180 day rescission authority, together with
piecemeal submissions of rescission requests, to effectively cancel spending items.
The question that remains is whether the Clinton ruling (and prior separation of
powers cases) would be applied to reach such potential constitutional consequences.
The Clinton case is properly categorized as one of a line of structural separation
of powers decisions, that has included Chadha and Bowsher, in which the Supreme
Court has invalidated provisions that either “accrete to a single branch powers more
44 P.L. 100-119, sec. 206(a), 101 Stat. 785.
45 P.L. 100-119, sec. 207, 101 Stat. 786.
46 2 U.S.C. 691a(a).
47 Id., sec. 691a(c).
48 Id., sec. 691b(a).
49 Id., sec. 691d(b).
50 Id., sec. 691d(d), (e).

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appropriately diffused among separate Branches or that undermine the authority and
independence of one or another coordinate Branch.”51 The salient characteristic of
those rulings is that they admit of no exception and allow no balancing of interests
of need, necessity, or convenience. They expressly reject the validity of an agreement
on such reassignments by the political branches that is embodied in a law. In at least
one instance a federal appeals court has enforced such a structural ruling, finding that
Congress had attempted to evade a High Court’s ruling by indirection. Those cases
are illuminating on the subject issue.
The Metropolitan Airports Litigation
In Metropolitan Washington Airports Authority v. Citizens for the Abatement
of Aircraft Noise (Metropolitan Airports Case),52 the Supreme Court confronted an
attempt by Congress to vest managing authority over Washington National and
Dulles International Airports in a regional authority while at the same time seeking
to maintain control over key policy and management decisions of the Airports
Authority’s Board of Directors (Directors). It did this by requiring the Directors to
establish a Board of Review (Board) consisting of nine Members of Congress to
which the Directors had to submit for the Board’s consideration and possible veto
operative decisions such as the adoption of the annual budget, the authorization for
the issuance of bonds, and the adoption, amendment or repeal of regulations.
Congress also retained substantial authority over the appointment and removal of the
members of the Board. The Court found that as a result of those provisions the
Board was an agent of the Congress and that the scheme of congressional control
violated separation of powers principles. “If the power is executive, the Constitution
does not permit an agent of Congress to exercise it. If the power is legislative,
Congress must exercise it in conformity with the bicameralism and presentment
requirements of Art. I, sec. 7. In short, when Congress [takes] action that ha[s] the
purpose and effect of altering the legal rights, duties, and relations of persons...
outside the Legislative Branch, it must take that action by the procedures authorized
in the Constitution. See Chadha, 462 U.S., at 952-955.”53 The Court rejected the
argument that the Board was a “kind of practical accommodation between the
Legislative and the Executive ... that might prove innocuous,” stating that “the
statutory scheme challenged today provides the blueprint for extensive expansion of
the legislative power beyond its constitutionally confined role” and could not be
countenanced. It then quoted Madison’s warning that “‘the legislature can with
greater facility mask under complicated and indirect measures the encroachments
which it makes on the co-ordinate departments’.”54
Within six months after the Supreme Court’s ruling, Congress passed new
legislation. The new statute did not require that Members of Congress be members
of the new Review Board but their selection had to be from lists submitted by the
51 Mistretta, 448 U.S. at 382.
52 501 U.S. 252 (1991).
53 501 U.S. at 276.
54 501 U.S. at 276-77.

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Speaker of the House and the President pro tempore at the Senate. The Board’s veto
power was taken away but its power was expanded in other ways. The catalogue of
actions the Board could review was expanded, and members of the Board could
participate, but not vote, at meetings of the Directors. Also, though its veto power
was removed, the Board had authority to make recommendations regarding actions
submitted for its review by the Directors. If those recommendations were not
accepted by the Directors, the Directors had to submit the matter to Congress for a
reviewing period of 60 legislative days, during which time the Directors could take
no action on the matter. If Congress did not pass a joint resolution of disapproval
within that period, the Directors’ proposed action could take effect.
On review, the Court of Appeals for the District of Columbia Circuit held that
“the provisions of the revised Act, taken together, indicate that the Board of Review
remains a congressional agent and that it exercises power in violation of the
separation of powers.”55
At the outset of its opinion the appeals court announced that it would look
beyond the “explicit terms” of the revised statute to ascertain its “practical effect and
design.”56 Thus, with respect to whether the change in the nature of the appointment
process for Review Board members made a difference, the court held that “because
the Directors may never go outside the lists furnished by the Speaker and the
President pro tempore, we conclude that Congress retains control over the
appointments. This control, together with the provisions that in practice ensure that
the Board will be dominated by Members of Congress, persuades us that Congress
intended the Board to serve, and we hold that it does serve, as its agent.”57
Turning to the separation of powers issue, the court declared it would look to
the “practical consequences” of the Board’s ability to delay actions by the Directors.58
It rejected the claim that when the Board had been stripped of its direct veto and now
could only recommend, it had only advisory duties, noting that “the Board’s loss of
its veto power does not necessarily mean that it has lost effective control over the
Authority that the Supreme Court found to be an unconstitutional exercise of federal
power... We must therefore examine the potential impact of the Board’s remaining
authority on the Directors’ decisionmaking. To this end, we examine the various
ways in which the Board is able to affect the substance of the Authority’s actions.”59
The court focused on the powers of the Review Board to influence, through its ability
to delay action by the Directors:
“[T]he Board of Review has been vested with a range of powers whose
cumulative effect is to enable it to interfere impermissibly with the Directors’
performance of their independent responsibilities. In the place of the veto
55 Hechinger v. Metropolitan Washington Airports Authority (Hechinger) 36 F. 3d 97, 105
(D.C.Cir.1994), cert. denied 513 U.S. 1126 (1995).
56 Id., at 101.
57 Id.
58 Id.
59 Id., at 102.

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provision, the amended Transfer Act empowers the Board to choose, in its sole
discretion, which of the Authority’s decisions may be implemented immediately
and which will be subjected to the risks and delays of congressional review. In
the place of mandatory congressional membership on the Board it sets forth
requirements that both in principle and in practice continue to ensure
congressional domination of the Board. In redefining the powers of the board,
it actually expands the scope of its review. Moreover, the amended statute
retains provisions permitting the Board to compel the Authority to consider
particular issues and conditioning the Authority’s ability to take vital actions on
the Board’s own continuing ability to exercise its powers under the act.
What tips the balance, in our judgement, is the Board’s power to delay and
perhaps overturn critical decisions by requiring their referral to Congress. The
delays it can impose are hardly trivial. The 60-legislative-day congressional
review period will extend for at least three months and, depending on the
congressional cycle, can last as long as six. ... The mere existence of this power
to delay provides the Directors with an enormous incentive to avoid
confrontations by tailoring their decisions to suit the Board’s pleasure; it also
gives the Board the power to hold an important decision hostage in order to
secure the Director’s agreement to an unrelated matter.60
Quoting the Supreme Court’s words in Metropolitan Airports that the original
statutory scheme was a “blueprint for extensive expansion of the legislative power
beyond its constitutionally-confirmed role,” the appeals court stated the “we do not
suggest that the Board has or would abuse its authority in such a manner. But the
potential for abuse is there.”61
Conclusion
The Metropolitan Airports and Hechinger decisions seem to confirm the
teachings of Clinton and its structural separation of powers predecessors that the
courts will take a rigid approach when aggrandizement or encroachment of core
constitutional prerogatives are involved. The Airports cases are particularly pertinent
to the proposed item veto revival. The Clinton Court spoke to the constitutional
delicacy of attempting to reassign the power of cancellation to the President, just as
the Metropolitan Airports Court rejected Congress’ original scheme to retain control
of the Washington airports. Congress’ attempt to address the Court’s concerns in
Metropolitan Washington by enacting a structural variant was struck down in
Hechinger on the basis of a facial review of what might be the “potential’ of the
revised scheme to achieve the result found to be illegitimate in the earlier case.
Challengers to the proposed Item Veto Act of 2006 might point to this series of cases
as raising questions about the expanded suspension provisions and their “potential”
to undermine the holding in Clinton v. City of New York
60 Id., at 104-05.
61 Id., at 105.

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