President Bush has proposed legislation to revive the presidential line-item veto. It is truly amazing to see his hubris grow while concurrently his presidency continues to sink.
The line-item veto is less of a good idea now than it was in 1996, when a Republican-led Congress gave Democratic President Bill Clinton that authority. Only two years later, in Clinton v. City of New York, the Supreme Court struck down the law as unconstitutional, under the reasoning that a president vetoing only portions of a bill amounted to amending duly enacted legislation, thereby violating the Presentment clause of the Constitution. According to the Supreme Court, the Constitution mandates that bills are all-or-nothing propositions, and cannot be parsed.
In a concurring opinion, Justice Anthony M. Kennedy agreed that the separation of powers was threatened by a President’s ability to unilaterally amend a bill, but he also recognized the danger that a president’s powers were unacceptably increased by said ability.
The balance of power shifts to and fro constantly in our government, but over the course of the union, it has shifted towards the presidency far more often than it has shifted towards Congress. One reason is gridlock.
Congress often finds itself held hostage by competing interests and ideologies, and becomes paralyzed when it should be assertive. Sometimes Congress freely gives up power it should not in the face of pressure from the White House to cut through all the bull and pass a bill. Other times Congress bows to pressure from the public, which every few years becomes rightly exasperated by the seeming inability of Congress to do its job. More power is whittled away in the process.
The most damaging strike to Congress’s power during the last generation has come from the Republican Party. There is growing acceptance within the party of the idea of the unitary executive. It began with Nixon (who once famously claimed, when confronted about domestic intelligence gathering and harassment, that if the President does it, then it must be legal), continued with Reagan, and has hopefully found its apogee with President Bush.
President Bush has at times seemed maddeningly consumed with the pursuit of power. Whether justified or not, in the wake of the 9/11 attacks, he has increased the power of the president to act unilaterally in matters of war and criminal justice. He has suspended the right of habeas corpus for certain individuals, and has used our intelligence agencies to spy domestically. All of these new powers are being challenged in court. In the administration’s prosecution of the war on terror, they have made a decision to either act first and determine legality later, or more disturbingly, to apply President Nixon’s rationale of presidential conduct.
Lately, the Bush administration has focused its attention on the Supreme Court. With two vacancies filled, and possibly more upcoming, President Bush has placed men on the Court who are amenable to deferring to presidential power, especially in Justice Samuel A. Alito, who has a documented history in the Reagan administration of supporting the unitary executive.
Conditions on the Court now being amenable, President Bush has chosen to explore the line-item veto. He first raised the issue in his latest State of the Union speech. It took all of five seconds, just a shot across the bow of Congress, but it is telling for the future strategy of the Bush administration when it comes to its dealings with Congress and the Supreme Court.
President Bush, in proposing legislation that has already been discredited, expects nothing less than compliance from Congress in passing it, and compliance from the Supreme Court in declaring it lawful, should the legislation be challenged and rise that far.
Ostensibly wrapped in a good cause, the president has said that he needs the line-item veto to curb earmarks. This is a lofty goal, and worth pursuing, but not with the line-item veto. The reasons for striking down the line-item veto the first time around hold true. It threatens the separation of powers by giving the president the ability to amend bills. It increases the president’s power to reward and punish, allowing him to focus on members of Congress, districts, or individuals that either please or displease him. And most importantly, it damages Congress’s budgetary power, almost ensuring that what the executive branch says in the arena of allocations, goes. There is no balance in this arrangement, and thus appears to be a violation of the Constitution.
President Bush hasn’t chosen this moment to propose this legislation solely because he feels secure with the new composition of the Supreme Court. He recognizes that Congress is a battered institution right now, with approval ratings lower than his own all across the board. The lobbying scandals and the preponderance of earmarks of late (much of which is the result of the lobbying) has fostered a shrill cry for reform from all sectors of public life, but after a flurry of chest-pounding and bold promises, the great machine of Congress has done what it does best: ground to a halt. The status quo in Congress appears unthreatened, and that is unacceptable. So President Bush, confident in his ability to push legislation through an embattled Congress, presents what is framed as a surefire solution to the problem of earmarked legislation, threatening the power of lobbyists, and expects to reap the rewards of yet another exponential increase in presidential power.
He has reason for this brashness. While Congress and the White House are not nearly as close as they have been recently, and while the Republican Party is no longer as solid as a slab of granite, it is an election year. Come November, 468 seats in Congress will be contested, and more than a few incumbents will need the lobbying scandal and earmark issue to be resolved by then. A yay vote in Congress for the line-item veto most likely will not be perceived by voters around the country as a willful eroding of Congress’s power, but as a vote to clean up Washington.
The line-item veto could be used to battle corruption, and it would be a useful tool were it not used for anything else. But the fact that it can be used so effectively to tip the balance of power in Washington ever more towards a single person in the Oval Office makes the line-item veto dangerous and short-sighted legislation. But for a president who is has been so adept at expanding the powers of his office, why stop now?