Whose Line is it Anyway: Could Congress Give the President a Line-Item Veto?

Whose Line is it Anyway: Could Congress Give the President a Line-Item Veto?

Legal Sidebari

Whose Line is it Anyway: Could Congress
Give the President a Line-Item Veto?
March 27, 2018
In announcing his intention to sign H.R. 1625, the “Consolidated Appropriations Act, 2018,” President
Trump, noting his concerns over the fiscal size of the bill, called on Congress to provide him with a “line-
item veto for all government spending bills.” Two days later, the Secretary of the Treasury, Steven
Mnuchin, similarly maintained that Congress “should give the president a line-item veto.” These remarks
resulted in immediate rebukes by several commentators, who, citing the Supreme Court’s 1998 ruling in
Clinton v. City of New York, argued that the Court already resolved the legality of the line-item veto by
striking down such a provision in a 1996 law. At the same time, the Trump Administration’s calls for a
line-item veto echo those of other Presidents who sought such authority even after City of New York,
under the premise that the invalidated law could be revised to address the Court’s objections. Because
Congress has not enacted any such proposals, the question remains whether the High Court’s 1998 ruling
wholly forecloses Congress’s ability to authorize the President’s veto of individual provisions of spending
legislation. This Sidebar provides an overview of the Court’s decision in City of New York and examines
what (if any) possibility exists for a constitutional, line-item veto authority for the President.
Clinton v. City of New York addressed the constitutionality of the Line Item Veto Act of 1996, which
authorized the President to “cancel” an “item of new direct spending” upon a finding that the cancellation
will reduce the federal deficit, not impair any “essential governmental functions,” and not harm the
“national interest.” The law also required the President to notify Congress of any such cancellation, and,
upon notification, the cancellation would “take effect.” (Congress retained the authority to enact
legislation disapproving of a particular cancellation on an expedited basis, which, upon enactment, would
render the cancellation null and void). Following passage of the Line Item Veto Act, President Clinton
reportedly invoked the power to cancel eighty-two spending items from eleven different laws. In turn,
several lawsuits were filed by those allegedly injured by such cancellations, arguing that the 1996 law, by
allowing the President to alter spending legislation unilaterally, violated Article I of the Constitution. At
the center of the litigation were the Constitution’s Bicameralism and Presentment Clauses, which
generally require legislative proposals to be approved by both houses of Congress in identical form and be
presented to the President for signature in order to have the force of law.
The litigation over the Line Item Veto Act ultimately culminated in Clinton v. City of New York, where the
Court, by a 6-3 margin, struck down the law as violating the legislative procedural requirements of Article
I. Writing for the majority, Justice John Paul Stevens concluded that the law, in both “legal and practical
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effect,” allowed the President to amend an act of Congress by repealing a portion of it. Noting that
statutory repeals must conform with Article I’s requirements, the Court concluded that the “truncated”
version of the law that resulted from the President’s exercise of the cancellation authority was not the
product of the “finely wrought” procedures that the Constitution’s Framers designed for bills to have legal
effect. In so concluding, the Court distinguished the Line Item Veto Act from a previously upheld trade
law that provided the President with the power to suspend import duty exemptions upon particular factual
findings. Specifically, Justice Stevens highlighted the uniqueness of the 1996 law, in that it allowed the
President to alter federal law unilaterally based upon a discretionary assessment of certain conditions that
predated the enactment of the law. In this vein, the Court viewed the Line Item Veto Act as authorizing
the President to effect a repeal of the laws for his own policy reasons without observing the procedures set
forth in Article I. Moreover, the Court distinguished between the authority provided by the 1996 law and
the President’s “traditional authority” to decline to spend appropriated funds, in that the latter did not
provide the President with unilateral authority to alter the “text of duly enacted statutes.”
The logic of City of New York suggests at least four ways in which Congress might attempt to effectuate
the goals of the Line Item Veto Act without violating Article I:
 First, a more limited line-item veto provision allowing for presidential cancellation of a
particular spending item to take effect only upon the approval of Congress would be
more likely to comply with Article I and the 1998 ruling. Currently, under the
Impoundment Control Act of 1974, the President is permitted to submit proposals to
permanently cancel or temporarily delay the availability of funds. However, Congress
must affirmatively approve of such changes before they have a permanent effect on
discretionary spending authority already enacted into law. Additionally, several proposals
in past Congresses would have, in various ways, amended this law to (1) allow the
President to propose rescissions of spending provisions already enacted into law;
(2) provide a fast-track procedure requiring Congress to vote on the President’s proposed
rescission in an expedited fashion; and (3) temporarily allow the President to suspend
items that were the subject of the proposed rescission for additional periods of time.
 Second, a restricted line-item veto authority could, akin to the provisions in the trade law
distinguished by the City of New York Court, require the President to cancel particular
spending items based on certain events arising after the passage of the discretionary
spending legislation. Such a proposal raises several questions, such as whether a narrower
authority would effectuate the goals of having a line-item spending authority and whether
requiring presidential cancellation upon some contingency occurring—a contingency that
presumably the President must interpret to have occurred—is wholly distinguishable
from the 1996 law. More broadly, it is an open question whether laws concerning foreign
trade and foreign affairs, where the President has traditionally been allotted considerable
authority, are distinguishable from a line-item veto law.
 Third, Congress could potentially provide the President with more leeway, allowing the
Executive to decline to spend certain appropriated funds at his discretion or to reallocate
funds from one program to another. The majority opinion in City of New York noted that,
in a tradition dating back to the First Congress, the legislature has previously “given the
Executive broad discretion over the expenditure of appropriated funds.” Relying on this
tradition, Justice Antonin Scalia, in a partial dissent in City of New York, argued Congress
can “confer discretion upon the executive to withhold appropriated funds, even funds
appropriated for a specific purpose.” In a slightly different vein, where Congress has
provided money for multiple activities or purposes in a single lump-sum appropriation,
the Supreme Court has held that this permissibly confers upon the Executive the
discretion to decide how much to spend on one program or another including deciding

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whether there are sufficient resources to fund a program at all. Providing the President
with additional leeway with respect to his authority over discretionary spending would be
distinguishable from the line-item veto authority at issue in City of New York in that such
a law would not authorize the President to alter the text of an enacted statute.
Nonetheless, uncertainties associated with the existence, nature, and scope of presidential
impoundment authority would suggest that such an expansion of the President’s
authority—even through an express congressional delegation—may raise legal and policy
concerns as to whether such a law would afford the President too much power over
discretionary spending.
 Finally, and perhaps most obviously, as noted in the close of Justice Stevens’ opinion in
City of New York, an amendment to the Constitution through Article V’s arduous
amendment process could rectify the constitutional infirmities with the 1996 law. In this
vein, a host of proposals to amend the Constitution to allow for line-item veto authority
have been introduced in Congress since 1998.
Even if new legislation avoided the specific constitutional pitfalls that befell the Line Item Veto Act (i.e.,
Article I’s procedural requirements for legislation), there could be different constitutional challenges
posed by a modified line-item veto that is not explicitly sanctioned by a constitutional amendment. For
instance, in the lower court opinion that the Supreme Court affirmed in its 1998 ruling, the district court
held, in the alternative, that the Line Item Veto Act “crosse[d] the line between acceptable delegations of
the rulemaking authority and unauthorized surrender to the President of an inherently legislative function,
namely, the authority to permanently shape laws and package legislation.” Whether this logic could apply
to alternatives to the Line Item Veto Act remains to be seen. While the City of New York Court declined to
either endorse or reject the lower court’s alternative holding, the Supreme Court has been markedly
hesitant to enforce the general prohibition against Congress delegating its legislative authority to the
President. Unless and until new legislation is enacted providing for some variation on the line-item veto,
the various legal questions raised by City of New York will remain unanswered.

Author Information

Andrew Nolan
Edward C. Liu
Section Research Manager
Legislative Attorney

Todd Garvey

Legislative Attorney

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