The very first line of the Constitution makes clear that the carefully calibrated separation of powers and balance of authority stipulated in the Constitution of the United States ought not be lightly transgressed. In the first sentence after the Preamble, Article I, Section 1, asserts: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

In Article II, Section 1, the first sentence states: "The executive Power shall be vested in a President of the United States of America." Clearly, the President is to be our chief executive, not our supreme legislator. Moreover, the Constitution is already quite generous in its grant of veto authority to the executive, enabling him (if sustained by one-third plus one of the members of one house of Congress) to reject any and all appropriations, and, indeed, to even prevent the continuation of programs authorized by the Congress.

The dangers of an executive dictatorship are at least as significant as any threat which might be posed by a runaway Congress. With a "line-item" veto, Congress (and particularly the House of Representatives - intended to be "the people's body") may be unable to thwart a President, who, for example, enthralled with the New World Order, might use his authority to dismantle and destroy the defenses of the United States of America.

The President of the United States already possesses authority to reject legislation (a) in toto, (b) by category, (c) on Constitutional grounds, and (d) to protect Constitutionally assigned executive responsibilities. Why create new authority, when sufficient powers exist.

There are two main dangers which would result from the radical extension of "line-item" authority: one, Presidents could blackmail Senators and Congressmen to support policies with which they disagree by threatening to single out for elimination particular elements of policies and programs with which they do agree. Thus, for example, Bill Clinton might persuade a key Senator to vote to confirm one of his nominees to the Supreme Court of the United States lest, by failing to do so, the Senator cause the President to eliminate funding for some vitally needed defense project.

Conversely, the President could enjoy the public applause of signing a "tax reform measure" while eliminating all tax relief benefits for individuals above a certain level of income, even though such tax relief had been an integral part of a carefully crafted legislative compromise.

Presidents already have extraordi­nary leverage with members of the House and Senate. Many Congressional spouses are direct employees of the Executive Branch who serve by Presidential appointment. During the Reagan-Bush years, Phil Gramm's wife, Wendy, enjoyed high pay status as chairman of a major Federal regulatory agency, thanks to the favor of the White House. Elizabeth Dole served in Ronald Reagan's cabinet while Bob Dole was the Republican leader in the U.S. Senate. They were not alone. Today, Ann Bingaman is an assistant attorney general at the Justice Department, while her husband, Jeff, is the Democratic Senator from New Mexico. The income of Iowa Democratic Senator Tom Harkin has been supplemented by Mrs. Harkin's pay as a key Presidential appointee at the Overseas Private Investment Corporation (OPIC).

Presidents can already make key determinations, absent legislative prohibi­tion, about where bridges will be built, bases will be established, etc. The power of the Executive Branch is extraordinary. If you increase the President's legislative powers, you might as well send the Congress home and let Bill Clinton and his successors rule by Executive Order (of course, to the extent that Executive Orders purport to set policy, rather than to merely implement it, they are entirely in conflict with the Constitution).

A "line-item" veto scheme was approved by the U.S. House of Representatives on February 6 by a vote of 294 to 134 and a separate version by a 69-29 vote in the Senate on March 24. Soon, a conference committee will meet to resolve differences.

According to The Washington Post (2/7/95, p. A1), "The House timed its approval of the line-item veto to coincide with the 84th birthday of former president Ronald Reagan, who supported similar powers when he was in the White House. The Republican-controlled Congress has promised to give a Democrat what a Democratic-controlled Congress would not give Reagan." (Ed. note: authority which Reagan did not need, but the purported lack of which was used as an excuse for his failure both to use existing veto authority and to propose major cuts.)

"No one knows how President Clinton would use the power. But Republicans this year are proposing spending for items like the ‘Star Wars’ missile defense system that Mr. Clinton might be expected to delete." (N.Y. Times, 2/7/95, p. A1)

The only Republicans who voted against the measure were: Helen Chenoweth (ID), John Myers (IN), Marge Roukema (NJ), and Bud Shuster (PA). According to Shuster (Washington Times, 2/8/95, p. A11), "‘It puts too much power into the hands of the president. And if it should be done at all, it should be done by constitutional amendment because it's changing the fundamental checks and balances of the Constitution,’ he said.

"The ‘power of the purse’ is granted specifically to Congress by the Constitution, said Rep. Helen Chenoweth, Idaho Republican. That power cannot be given away to the president.... ‘Speaker [Newt] Gingrich included the Federalist Papers on his recent list of suggested readings. Well, I read them,’ she added."

On March 24, The New York Times (p. 1) reported that with wide bipartisan support, the Senate today voted to give the President unprecedented control of the Federal purse - the power to veto specific items in spending bills and some future tax benefits....

"Whatever the shape of the final bill that reaches Mr. Clinton's desk, it could produce a major power shift in Washington and create what even its most ardent supporters concede will be a political Pandora's box by giving the Democratic White House a far more potent say over the Republican agenda.

"Rarely has the legislative branch willingly shifted power to the executive branch. But with the Senate vote today, Congress agreed to cede to the President, at least temporarily, one of its most jealously guarded rights - the power of the purse.

"It is odd by any standard of politics that a Congress controlled by one party would give such a powerful political tool to a President representing another....

"Michael D. McCurry, the White House spokesman, said tonight that Mr. Clinton was ‘delighted’ with the Senate action...."

Unfortunately, no recent Republican President has used existing authority to oppose unconstitutional spending, or even to insist on a balanced budget. Neither Ronald Reagan nor George Bush ever proposed a balanced budget. The last Republican President to do so was Dwight Eisenhower, the last Democrat, Lyndon Johnson (in FY 1969).

The argument is given that (as matters now stand), in order to get at a bad proposal, the President would have to close down the entire government, or at least threaten to do so, hoping that Congress would retreat in the face of such a threat or such a veto. But this is nonsense. It is very clear that any President who is really serious about controlling runaway spending (or even excising minor provisions of major bills) can do so if he has the courage and determination to confrontationally insist on his position.

As University of Alabama history professor Forrest McDonald pointed out in The Wall Street Journal (3/7/88), "The Supreme Court, in Marbury v. Madison (1803), established the precedent that its power was of a line-item nature: It declared that Article 25 of the Judiciary Act of 1789, not the entire act, was unconstitutional."

"But if the Constitution contemplates...a line-item executive veto, one may ask, why has no president exercised the power? There are several reasons, the most important being that until quite recently, presidents have had at their disposal better means of rejecting individual items, especially with regard to appropriations - better, that is, from the presidential point of view, because they were not subject to being overridden by a two-thirds vote in Congress."

"The original understanding was that Congress would simply declare lump-sum ceilings on expenditures, based upon its estimates of revenues, and that the president and heads of the executive departments would decide how the funds would be spent....Most important, until 1974 presidents repeatedly ‘impounded’ appropriations and refused to spend them; Congress had no recourse. Thus from the inauguration of Washington until Richard Nixon's last year in office, presidents employed several means to exercise what amounted to an absolute line-item veto. Then in 1974 Congress passed the Impoundment Control Act, curtailing what was by then the most effective of those means. It scarcely seems coincidental that runaway deficits began immediately afterward."

Norman Ornstein has pointed out (Washington Post, 8/11/85) that even the 1974 act left the president with "the equivalent of a line-item veto....It's called the [recision], and it was a key component of the Budget Act of 1974. Back then, Congress wanted to limit, but not eliminate, the president's power of impoundment....Congress created two classes of presidential authority to block appropriated funds: [recisions] and deferrals.

"Deferrals - areas where the president wants to defer spending until the following year because the spending cannot be absorbed - are announced by the president and approved unless a majority of both houses of Congress specifically votes to disallow them."

"[Recisions] don't defer spending - they block it altogether. The president has the power to rescind spending at every level, to the point of eliminating specific projects or parts of projects rather than categories - a degree of specificity far greater than the line-item veto authority could ever grant him.

"...for the [recision] to take effect - to actually block the spending - a majority of both houses of Congress has to pass a resolution approving the president's action within 45 days."

L. Gordon Crovitz, writing in The Wall Street Journal (11/21/90, p. A15) asked: "What if President Bush...confronted Congress by asserting a constitutional power to line-item veto? What if he signed what he liked in a bill and blacked out the rest? Congress would surely howl about an imperial president.

"He did, but Congress hasn't. By my count, this month President Bush line-item vetoed 41 provisions in some 20 bills that Congress passed this term. True, these were a different kind of veto - vetoes in the form of signing statements. President Bush signed these bills, but also declared that certain provisions are dead letters because he won't enforce them. These item vetoes (without possibility of override) were mostly to excise unconstitutional provisions; none, so far, claims the power to item veto pork in spending bills....

"Several bills violated the Constitution's Appointments Clause, which says that only the president can name people to certain public offices....Congress tried to appoint a majority of an oversight board, which Mr. Bush said is ‘without legal force or effect’ because only the president can choose nominees.

"Other bills violated the Constitution's Recommendation Clause, which directs the president to recommend new policies to Congress. Mr. Bush crossed out provisions where Congress tried to stop the administration from even thinking about new ideas....

"The Supreme Court invalidated the legislative veto in the 1983 case of INS v. Chadha, but Congress keeps on passing provisions to let itself make laws without presenting bills to the president. Mr. Bush declared legislative vetoes as ‘without legal effect’ in bills from the Omnibus Budget Reconciliation Act to the National and Community Service Act.

"Not all the line-item vetoes protect presidential powers. Mr. Bush also crossed out a provision in the Disadvantaged Minority Health Improvement Act that would have violated the equal-protection clause by linking eligibility for school health programs to race."

In a July, 1991 article published by the Cato Institute, J. Gregory Sidak and Thomas A. Smith observe that "The word ‘veto’ does not appear in the Constitution. What is commonly called ‘the veto power of the president’ actually appears in Article I, section 7, clause 2" (quoted above).

"During the Constitutional Convention of 1787 and in The Federalist, the Framers referred to what we call the veto as the ‘revisionary check’ or the ‘revisionary power.’...if ‘revision’ means ‘critical or careful examination or perusal with a view to correcting or improving’ - as the Oxford English Dictionary indicates that British legal scholar Blackstone used the word in writings dating from 1768 - then the Framers might have envisioned the president exercising his veto on something other than an all-or-nothing basis...."

"The analysis of the item veto is complicated by the fact that it can take at least four different forms, and each of these forms poses different constitu­tional questions....

(1) "....Congress often issues detailed instructions for the expenditure of appropriations, not in the appropriations bill itself but in an accompanying committee report. As President Bush noted in the signing statement accompanying the enactment of one new law, ‘Congress cannot create legal obligations through report language’ and consequently ‘such language has no legal force or effect.’ Where objectionable expenditures are required by the committee report and not by the bill itself, the president is not bound to spend as Congress instructs."

(2) "The second form of the item veto is the ‘subject veto’ - the veto of nongermane provisions that usually are riders to larger pieces of legislation. A subject veto would sever distinct additions from the larger bill. Congress often uses such legislative bundling to protect controversial provisions (often separate measures in themselves) from veto...."

(3) "The president might possess a third kind of power similar to an item veto - the power of ‘constitutional excision’ - which enables him to excise sections of a bill that he believes are unconstitutional on their face...."

(4) "The president might assert a fourth type of veto over a specific section of a bill if he thought that it would unconstitutionally impede his execution of his duties and prerogatives under Article II...The ‘shield veto,’ a variant of constitutional excision, would be applicable only within the boundaries of his authority under Article II. Its name is suggested by Alexander Hamilton's thesis in Federalist No. 73 that the first purpose of the veto is to ‘serve as a shield to the executive’ against the ‘depredations’ of Congress...."

"‘[B]ill’ is not defined in the Constitution....Perhaps it was thought to be an elemental concept. The Framers probably could not have contemplated legislative bundling on the scale that Congress indulges in today....

"....The Framers might have agreed that if Congress claims that a ‘bill’ is everything it produces in a session, then the president may with equal justice (and more common sense) treat as a separate bill each part of this legislative product that addresses a single subject. Thus, perhaps a ‘bill’ about the proper weight of turkey parts, military salaries, and a thousand other subjects could be treated as many bills, no matter how Congress styles it.

"The text of the Constitution provides some support for this inference from the structure of the Framers' design about the proper meaning of ‘bill.’ The presentment clause speaks of ‘Every Bill’ being presented to the president. This phrase presupposes that the president's approval would be sought and required on numerous proposed laws rather than, in the extreme, one big law....

"....Whether the Framers thought Congress had, as an inherent part of the legislative power, the authority to bundle legislation is not the question; it is, instead, whether the Framers also thought that the exercise of an item veto in some form was (or would be) a constitutionally appropriate response to such bundling. Indeed, if they thought bundling was permissible, it might have been because they thought the abuse of this power would, in the end, provoke a concomitant exercise of the presidential veto power, especially because the Framers thought that the first function of the veto was to protect the president from legislative encroachments...."

"At the Constitutional Convention, moreover, James Madison proposed adding clause 3 to Article I, section 7, in order to extend the president's veto power to address ingenious packagings of legislative proposals that might otherwise escape veto under clause 2. He wrote: ‘If the negative of the President was confined to bills, it would be evaded by acts under the form and name of Resolutions, votes, &c.’ The addition of clause 3 revealed the Framers' concern about evasion of the presentment process. Their response was not to forbid such legislative maneuvering - surely a hopeless task - but to make clear that the presentment requirement and the veto power applied to all measures produced by Congress purporting to have the force of law. Congressional bundling does not seem far removed from calling a bill a resolution in order to avoid presentment. Both are ways to vitiate the veto power."

In a December 4, 1987 Wall Street Journal article, Stephen Glazier wrote: "When the Confederacy wrote its own constitution during the war, on many procedural points it merely restated the U.S. Constitution in light of the practice and language of the day. President Jefferson Davis was provided with a line-item veto described as such....There is one 1889 Supreme Court case, U.S. v. Stock­slager, that states that a joint resolution of both houses approved by the president has the same effect of law as if it were called a bill. Presumably, such a joint resolution could also be vetoed by the president. By extension, a president could determine that a ‘bill’ contained implicit ‘joint resolutions’ by Congress for each line item or appropriations rider, and then veto selected ‘resolutions’ within a bill at his discretion. If Congress plays the game of ‘form and name’ to subvert the president, then the president must likewise defend himself. This is the point of Clause 3.

"The only other Clause 3 case of interest, a 1982 case from the U.S. Court of Appeals for the District of Columbia, Consumer Energy v. FERC, comes no closer to explicit comment on the line-item veto. However, citing Madison's notes, the court states: ‘Clause 3 was inserted to prevent Congress from evading the requirements of Clause 2 by merely calling its actions something other than a "bill."’ Or, if a line item has the force of law, then a line item may suffer a veto.

"A possible Democratic response might state that budgets may be vetoed, but not line items or riders....this argument would allow Congress to destroy the veto by bunching bills together. Taken to its extreme, each Congress, which sits for two years, could determine that all its actions for that period would, on the last day, be bunched together into one huge bill....

"This is the very game of ‘form and name’ that inspired Clause 3. If the clause means anything, it means that the president can unbunch such bills by vetoing line items and riders.

"Congress is already using this bunching gambit for the budget. Under the budget rules, Congress passes only one ‘omnibus’ budget bill per year. Obviously, today's line item is yesterday's bill, and the president can veto either."

Perhaps a better way to characterize the Constitutional powers which currently inhere in the President is by asserting that they represent the ability to veto by category rather than to go within a category to pick and choose as to which defense items will be preserved, which will be abandoned, which educational programs will be subsidized, which will be rejected, etc.

Even liberal Republican Congressman Tom Campbell (R-CA) argued that some form of "line-item" authority is already there, observing (Congressional Record, 5/16/91, p. E1803) that "The intent of the Constitution is clear: Congress passes bills, the President looks at each one; he approves some and vetoes others; Congress gets to override any veto by a two-thirds vote.

"But suppose Congress combined all bills for an entire session into one huge bill....Such a ploy by Congress would effectively take away the veto power. Clearly, this is a distortion of the intended constitutional process."

One conservative who has been consistent in his opposition to changes in the Constitution with respect to the veto has been Mickey Edwards, formerly a GOP member of Congress from Oklahoma. Edwards wrote in The Washington Post (2/8/84) that "Unfortunately, conservatives who ought to know better... have, in their frustration, embraced concepts that would concentrate substantial new powers in that most concentrated of power bases, the presidency....

"But conservatives have overlooked what the result could be. Under such a transfer of power, if a Jimmy Carter - or a Walter Mondale - chose to veto an appropriation of funds for construction of the B1 bomber, a weapons system repeatedly supported by majorities in both the House and Senate, a small band of liberals, a mere one-third of the House and Senate, could kill the program by refusing to override the veto.

"While a Carter, even a Mondale, would not be likely to veto an entire defense appropriations bill, and would thus be somewhat bounded by congressional determination to proceed with systems such as the B1, the power to accept most of the appropriation but single out specific items for veto could (and, if Mondale were to become president, probably would) eliminate defense items crucial to the national security....

"If the concentration of power in the federal government is the single philosophical element on which all conservatives unite (to be generally opposed to the concentration of power in Washington is the root of American political conservatism), then, by extension, the focusing of that power in a single individual should likewise arouse fear."

In a letter addressed to me on April 23, 1984, Edwards, as chairman of the American Conservative Union, wrote: "As a matter of strict Constitutional construction, it should be noted that the Constitution vests in the President the power to ‘disapprove’ (veto) ‘Every order, resolution, or vote...’ passed by the Senate and House. It does not vest in the President the power to strike specific parts of such resolutions. To grant the President such power would damage the carefully crafted balance of, and separation of, powers woven into our system."

In a May 28, 1990 Washington Post column, James J. Kilpatrick observed that, "Given the power of line-item veto, a president would be in a dominant position to wheel and deal, to trade for votes on his own projects, to practice a kind of genteel extortion. Let us suppose that a president is truly determined to have his way on a manned station in space. The Senate is cool; the House is barely lukewarm. Along comes a massive bill to provide supplementary appropriations. It contains a hundred pet projects beloved by their sponsors.

"Well, says the president, if you gentlemen will give me my meritorious space station, I won't veto your unwarranted dams. A deal is struck. The cats and dogs stay in the bill....

"If it is not necessary to amend the Constitution, it is necessary not to amend the Constitution. No compelling case has been made for a dangerous transfer of enormous political power to future presidents."

As Professor Charles Rice observed in a research study prepared for The Conservative Caucus Foundation in February, 1981, "Where a bill providing for the continuance of a program is vetoed and that veto is sustained, the termination of that program will generally follow as a matter of course....

62 Local 2677, AFGE v. [Howard] Phillips, 358 F. Supp. at 60, 73 (D.C., D.C., 1973).
66 U.S. Constitution, Art. I, Sec. 9