Return of the Line Item Veto? Legalities, Practicalities, and Some Puzzles

Abstract

The Supreme Court invalidated a type of line item veto a decade ago in Clinton v. City of New York. Yet for the past several years, there have been renewed calls for Congress to enact a "line item veto." In truth, the recent proposals do not contemplate an actual line item veto but instead would create a statutory fast track regime under which the president can pull together a list of spending items from recently enacted bills and then submit the list to Congress, which is required to re-vote on the targeted items under special parliamentary rules.

This Article has the twin aims of examining the constitutionality of the proposal and exploring some of the institutional dynamics that surround it. The new proposal is not susceptible to the constitutional attack that doomed the last experiment with a line item veto in Clinton v. City of New York. But the more interesting constitutional questions concern whether Congress is really required to follow the special parliamentary rules that the statute creates. If not, then what is the purpose of the statute? As I explain, there is reason to believe that the statutory procedures would sometimes be followed in practice even if they are not formally binding. I offer a tentative assessment of the institutional circumstances under which the rules would likely be obeyed. The conclusion is that the new mechanism would more likely be used as a partisan tool than as the good government measure that is advertised. I also explain the extent to which this proposal would differ in practical operation from a more conventional line item veto.

Keywords: line item veto, legislative process, framework laws, expedited rescission, parliamentary procedure, separation of powers