February 01, 2006
The Line-Item Veto is Dead. Long Live the Line-Item Veto?
Somebody emailed me just after Bush's State of the Union (which I didn't watch) and asked me what was up with his call for the Line-Item Veto. I assumed there had been some infelicity of phrasing, and that Bush had really asked for something else, but no, there it is:
"Keeping America competitive requires us to be good stewards of tax dollars. Every year of my presidency, we have reduced the growth of non-security discretionary spending, and last year you passed bills that cut this spending. This year my budget will cut it again, and reduce or eliminate more than 140 programs that are performing poorly or not fulfilling essential priorities. By passing these reforms, we will save the American taxpayer another $14 billion next year and stay on track to cut the deficit in half by 2009. I am pleased that members of Congress are working on earmark reform because the federal budget has too many special interest projects. And we can tackle this problem together, if you pass the line-item veto."
So this is very odd, since Clinton's Line-Item Veto was struck down as unconstitutional in Clinton v. City of New York. It is possible to read the dissents as saying that the majority has simply become confused, and that if Clinton's ability to not-spend funds had simply been called something other than a Line-Item Veto the majority would have upheld it. Under this theory, Bush can have his Line-Item Veto so long as he calls it something else. But if that were the goal, surely somebody would have told him not to use the dirty words in his SOTU.
So, what could be going on here?
1: Bush is aware of the holding in Clinton but wants a new and improved Line-Item Veto that will somehow pass muster under the majority's test. Possible.
2: Bush is aware of the holding in Clinton but thinks a new Supreme Court would decide the case differently. Given that Ginsburg, Stevens, Souter, Thomas, and Kennedy were all members of the Clinton majority, this seems unlikely, unless Bush anticipates replacing one of them before the Line-Item Veto comes before them. Unlikely.
3: Bush is aware of the holding in Clinton but does not much care that the Court will strike it down. He will be taking a stand for the prerogative of the executive to interpret the Constitution in his own way. Possible, but a lot of work given easier ways to make the point.
4: Bush is aware of the holding in Clinton but does not much care that the Court will strike it down. It will take several years for the case to finish, and in that time he will get to use the power if he can talk his way out of a preliminary injunction. He will not be helping the long-term powers of the president, but will increase his own. Possible.
5: Bush is aware of the holding in Clinton but knows he'll never get the Line-Item Veto, so why not complain about it? How many viewers of the SOTU know about the case? Quite possible.
5: Bush is unaware of the holding in Clinton, and his speechwriters are not learned in the law. Maybe.
6: Bush is unaware of the holding in Clinton, and ad-libbed that paragraph.
UPDATE: I like Dylan's suggestion 7 (in the comments), that the President is implicitly requesting a Constitutional Amendment.
UPDATE TWO: Or Paul's suggestion 8, that the President seeks to emphasize his own weakness in the wake of scandal.
UPDATE THREE: As ever, PG does the research I failed to about the "enhanced recission authority" that members of the Bush administration appear to have in mind. So, option 1.
What have I missed?
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