15 April 2018//By: Jeffrey Albertson, Jr. (Lawrenceville, GA).

Following the passage of Congress’ most recent omnibus spending package titled as H.R. 1625 (Consolidated Appropriations Act, 2018), President Donald Trump had previously threatened to veto the nearly $1.3 trillion in spending, but opted to sign instead. After announcing his approval, the President remarked that congress should grant him line-item veto authority for all government spending bills.

However, after signing the bill, he became of focus of significant criticism from conservatives given the juxtaposition between what the administration previously proposed and what he actually signed. Two days later, appearing on national television, Treasury Secretary Steven Mnuchin similarly held that Congress should grant the President line item veto authority. The comments of the Treasury Secretary and those of the President came under strict scrutiny in light of the Supreme Court ruling in Clinton v. City of New York (1998) that the President’s power of line-item veto was unconstitutional even after Congress had passed legislation granting him that specific authority.

The Court found in Clinton that Congress had unconstitutionally delegated Article I authority to the Executive Branch in violation of appropriation responsibility as outlined in sections 7 & 8. The delegation clearly violated separation of powers between the two branches.

Line-item veto allows the President to strike down funding for specific items in appropriations bills approved by the House and Senate. Prior to the Line Item Veto Act (1996), the President had to either approve the bill or reject it in full. The delegation of authority gave the Executive the unique ability to usurp the legislature’s specific appropriations process in favor of preferred spending. As a point of reference, Governors of 44 states have authority to line-item veto all bills or at least those involving money. In turn, the President could leverage lawmakers to approve funding based on coercion, instead of majority vote. Another available strategy for prior Presidents was impoundment, meaning funds were appropriated but remained dormant creating a de facto line item veto. The Congressional Budget and Impoundment Act (1974) eliminated the presidential power of impoundment that had allowed the President to withhold funds appropriated by Congress.

In Clinton, the Court suggested that Congress could grant an Executive line-item veto authority in four ways and not violate the Constitution:

• The President could designate specific items in the proposed budget to strike, but only after Congress approved their rescission.

• A restricted line-item veto similar to that of trade law, could require the President to cancel particular spending items based on certain events arising after the passage of discretionary spending legislation.

• Congress could grant the President more leeway, allowing the Executive to decline to spend certain funds at his discretion or reallocate them to another program, a tradition dating back to the First Congress. The distinguishable difference would be that the President would not have authority to alter the text of codified law. Doubtless, this approach would give rise to legal concerns as to whether the President would have too much authority over discretionary spending.

• Congress, by two-thirds vote from the House and Senate, could amend the Constitution and resolve the issues delegation of appropriation authority to the President. However, even if Congress resolves this issue, the Supreme Court could review that action and still check the President’s new found function, previously reserved for the legislature.

Regardless of the Court’s decision in Clinton, Constitutional scholar Louis Fisher argued in 2006 testimony before the Committee on the Budget that, “There are more effective ways of dealing with federal spending, earmarks, and budget deficits” than the line-item veto. “Through regular veto power, the President can tell Congress that unless it strips a number of identified items from a bill that is in conference, he will exercise his veto.” Fisher takes issue with Congress’ delegation of budget making authority, stating “…it sends a clear message to the public that Congress has been irresponsible with its legislative work” and nothing grants the President and aides as being better guardians of the purse. Fisher concludes that “Presidential leadership in the form of a submitted responsible budget has far greater impact on spending and deficits than the availability of item-veto authority.”

Even if Congress codifies the President’s authority to line-item veto appropriation bills, without specifically resolving the unconstitutional delegation of budget making authority inherently held by Congress, it would be fair to expect the Supreme Court to intervene, similarly as in Clinton, and strike down the law.