U.S. Supreme Court Strikes Down the Line-Item Veto

Date June 25, 1998

By a vote of six to three, the U.S. Supreme Court ruled in the case of Clinton v. City of New York that the U.S. Constitution forbids passing a law to revise the process of how a bill may be vetoed. The law at issue would have allowed the president to reject only parts of a bill passed by Congress rather than the entire bill.

Also known asClinton v. City of New York, 524 U.S. 417, 117 S.Ct. 2312

Locale Washington, D.C.

Key Figures

• Bill Clinton (b. 1946), president of the United States, 1993-2001
• Bob Dole (b. 1923), U.S. senator from Kansas and Senate majority leader
• Robert Byrd (b. 1917), U.S. senator from West Virginia
• John Paul Stevens (b. 1920), associate justice of the United States beginning in 1975
• Anthony Kennedy (b. 1936), associate justice of the United States beginning in 1988
• Antonin Scalia (b. 1936), associate justice of the United States beginning in 1986
• Stephen G. Breyer (b. 1938), associate justice of the United States beginning in 1994

Summary of Event

The line-item veto is a variant of regular veto power given to executives, whereby an executive may reject a part of a bill rather than the entire bill. The U.S. Constitution does not specify such authority for the American president in the enumeration of the veto power, but by the early years of the twenty-first century, forty-three U.S. state governors had line-item veto power.

In the nineteenth century, the president of the Confederate States of Americapossessed a line-item veto under that government’s constitution. After the Civil War, President Ulysses S. Grant became the first chief executive of the United States to make a formal proposal concerning the additional authority of the line-item veto; he was followed in this by most of the remaining presidents in the nineteenth century. In the twentieth century, the idea was renewed in the 1980’s, partly as a result of the growing complexities of the federal budget and regular annual deficits after 1969.

The Contract with America, a compendium of promises promoted by Republican congressional candidates during the 1994 midterm election campaign, contained a proposal for the line-item veto. When, as a result of that election, Republicans gained control of both chambers of Congress, Senate Majority Leader Bob Dole led the fight to pass the Line Item Veto Act. The bill was quickly passed and was signed into law by President Bill Clinton on April 9, 1996. The Clinton White House supported the legislation for several reasons. First, because it would delegate additional authority to the chief executive, the law was seen as strengthening the institution of the presidency. Second, the law was viewed as necessary to control wasteful spending and thus as beneficial to the effort to reduce budget deficits. Finally, Clinton’s backing of the law enabled the administration to cite it as an example of bipartisan cooperation.

Claiming that the 1996 Line Item Veto Act violated the veto provisions in Article I, section 7, of the U.S. Constitution, Senator Robert Byrd, a Democrat from West Virginia, immediately challenged the act in the courts. In April, 1997, U.S. district court judge Thomas Penfield Jackson declared the law unconstitutional. On appeal, the U.S. Supreme Court vacated and remanded that decision due to a lack of standing by the plaintiffs. In February, 1998, U.S. district court judge Thomas Hogan ruled that the Line Item Veto Act violated the rights of two sets of litigants who had been affected by President Clinton’s utilization of the line-item veto, including the City of New York and the Snake River Potato Growers. The decision was appealed directly to the U.S. Supreme Court.

On June 25, 1998, the U.S. Supreme Court struck down the 1996 Line Item Veto Act in a six-to-three decision, thereby affirming the second district court ruling on the law. Writing for the majority, Justice John Paul Stevens initially rejected the government’s contention that the controversy was nonjusticiable. Second, he noted the adverse effects suffered by the appellees as a result of President Clinton’s employment of the line-item veto. Third, he contrasted the presentment clause in the Constitution with the wording of the Line Item Veto Act, noting that the procedures provided in the latter were not found in the former. In doing so, he construed the silence on the line-item veto tool as a clear prohibition of its use. Fourth, he asserted that Congress cannot alter the language and meaning of Article I, section 7, of the Constitution except by way of an amendment.

Justice Anthony Kennedy issued a concurrence. He stated that failure of political will did not justify resorting to an unconstitutional remedy. Kennedy found that the principle of separation of powers was violated in that the executive branch alone was making spending decisions as a result of the use of the line-item veto. He highlighted federalism and accountability of the political branches to the electorate as two mechanisms by which spending could be controlled.

Justice Antonin Scalia authored an opinion that concurred in part and dissented in part with the majority; his opinion was joined by Justice Sandra Day O’Connor and by Justice Stephen G. Breyer in part. Justice Scalia believed that one of the challenges to the Line Item Veto Act should be dismissed for lack of standing. Although he found the other challenge valid, he held that the Constitution had not been violated by the provisions of the act. His reasoning centered on the authority of Congress to delegate power to the president to decline to spend on any item of a bill.

Justice Breyer wrote a dissent that was joined by Justice O’Connor and by Justice Scalia in part. He first stated his view that the parties had standing in the case. He disagreed that the Line Item Veto Act violated the literal wording of the presentment clause in the Constitution, finding the law to be a means to an end rather than an end in itself. He extensively reviewed Supreme Court holdings that upheld congressional delegation of rule-making and adjudicatory power. Finally, he did not find any violation of the separation of powers principle or any violation of individual liberties.

Significance

Prior to suspending utilization of the line-item veto due to pending legal action, President Clinton employed the device eighty-three times on eleven different spending bills. As a result of the Supreme Court’s decision in Clinton v. City of New York, those vetoes were rendered moot, as was an estimated $1.9 billion in savings attributed to the tool. It is evident from an examination of Clinton’s second-term veto use, however, that the line-item veto replaced regular veto issuance during 1997. Clinton’s aggressive use of the veto in all its forms had discernible impacts: The annual budget was balanced during the final two years of his tenure in the White House, marking the first time that had occurred in more than three decades.

From the Civil War until the 1980’s, some 150 proposals to grant the president a line-item veto power were initiated in the U.S. Congress. The 1996 Line Item Veto Act was in many ways an extension of this movement, albeit one that finally achieved fruition. Surprisingly, the law’s demise did not stop efforts to imbue the president with the tool without a constitutional amendment. For instance, President George W. Bush proposed the Legislative Line Item Veto Act of 2006 in March of that year. Considered a weaker version of the 1996 Line Item Veto Act, the bill was passed by the full House of Representatives in June, 2006, by a 247-172 vote. It was not approved by the Senate and therefore would have to be reintroduced in a new Congress. Senator Robert Byrd again promised to oppose granting the chief executive the line-item veto by any means other than a constitutional amendment.

Bibliography

Brownell, Roy E., II. “The Unnecessary Demise of the Line Item Veto Act: The Clinton Administration’s Costly Failure to Seek Acknowledgment of ’National Security Rescission.’” American University Law Review 47 (1997/1998): 1273-1353. Posits that the Line Item Veto Act could have been saved with limited use of the tool in the national security area.

Calabresi, Stephen G. “Separation of Powers and the Rehnquist Court: The Centrality of Clinton v. City of New York.” Northwestern University Law Review 99 (2004/2005): 77-87. Places the case in the pantheon of Supreme Court decisions regarding the separation of powers during the Rehnquist era.

Kennedy, J. Stephen. “How a Bill Does Not Become Law: The Supreme Court Sounds the Death Knell of the Line Item Veto.” Mississippi College Law Review 20 (1999/2000). Traces the legal controversy over the line-item veto that culminated in the Supreme Court’s decision in Clinton v. City of New York in 1998.

Spitzer, Robert J. The Presidential Veto: Touchstone of the American Presidency. Albany: State University of New York Press, 1988. Includes a chapter on the development of proposals for a presidential line-item veto.

“Symposium on the Line-Item Veto.” Notre Dame Journal of Law, Ethics, and Public Policy 1 (1985): 157-283. Offers a comprehensive overview of the arguments for and against the line-item veto.