The short, unhappy life of the Line Item Veto Act of 1996 should end soon. A federal judge has declared it unconstitutional, a ruling that probably will be quickly reviewed by the Supreme Court, which should put this misbegotten law out of its misery by July.
However, the court will say only that the statute conferring this veto power on the president is constitutionally flawed, as any such statute would be: A constitutional amendment would be necessary to confer such power. It is important to understand why that is so, but equally important to understand why no line-item veto should be given to the chief executive of the national government of a continental nation.The act empowers the president, within five days after signing a bill into law, to "cancel" specific dollar amounts of discretionary spending or limited tax benefits (those with 100 or fewer beneficiaries). Congress can repass the canceled provisions, but if the president again vetoes them, one-third plus one member of either house can block Congress from overriding the veto.
This minuet is supposed to, but does not, dance around the problem of the pronoun. The Constitution says every bill must be "presented" to the president, who must sign "it" or return "it." The antecedent of the pronoun is the bill, not bits of it.
Otherwise the separation of powers would be shredded. A president "canceling" a provision of a law is doing something indistinguishable from repealing, which is legislating, which is not a delegable power. The president would be making rather than executing the laws. Which is why U.S. District Judge Thomas Hogan says Congress cannot surrender to the president "the authority to permanently shape laws and package legislation."
Hogan says of laws written by presidents, "There is no way of knowing whether these laws, in their truncated form, would have received the requisite support from both the House and the Senate." Sen. Pat Moynihan knows.
The former chairman and current ranking Democrat on the tax-writing Finance Committee says he can think of half a dozen large tax measures that would never have passed without one or two specific provisions. A president could strike such measures, creating a law that Congress would not have consented to.
The "specific provisions" of which Moynihan speaks are often measures of parochial interest to particular legislators but are indispensable for building majorities in the legislature of a vast nation of disparate regions and interests. So let us now entertain James Q. Wilson's praise of that which the line-item veto is designed to eliminate: pork.
Wilson, a wise student of America's political institutions, notes that disciplined, durable majorities are exceedingly rare in Congress, which acts, most of the time, as a collection of representatives mostly attuned to local interests. So majorities for large, complex pieces of legislation often are cobbled together not primarily by elevated arguments and ideological appeals but by small favors serving practical interests of individual members. Such favors, aka pork, often are, Wilson says, "the necessary glue that holds political coalitions together."
Wilson does not argue that pork is always good. He does argue that generalized opposition to pork - the impulse behind the line-item veto - is, well, un-American.
Each piece of legislative pork represents a representative's estimate of local interests. To empower someone beyond - some-one presumed to be morally "above" - Congress to "cleanse" legislation of pork is to subscribe to a "from the top down" notion of government. It is, Wilson says, to assume that this someone knows better than state or district representatives what is best for their constituencies.
But Americans have always been resistant to the idea that, in Wilson's words, "the public interest can best be defined by experts thinking of what is good for the country `as a whole.' Our Constitution is based on the opposite belief."
Seen as Wilson sees it, the line-item veto at the national level expresses the watery caesarism of the inflated presidency. It should be particularly obnoxious to conservatives whose conservatism is more complex than a simple desire to reduce spending.
Pork, says Wilson, is the price our society pays to ensure that representatives of our many regions and factions can get into the bargaining that often is required to produce majorities in a nation like this. Hence not only does the Line Item Veto Act offend the Constitution, the idea of such a veto, at least at the national level, conflicts with the public philosophy of this extensive republic.