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Yes, Congress could give Trump a line-item veto. And it might want to.

- April 9, 2018

President Trump signed the massive omnibus appropriations bill for fiscal 2018 on March 23 but has complained about it ever since. “A ridiculous situation,” he fumed. “There are a lot of things that we shouldn’t have had in this bill.” Now he is reportedly exploring ways to cancel some of the spending — and has demanded a line-item veto to give him more control over the federal budget.

Today’s line-item veto debate goes back to Richard Nixon’s battle with Congress.

To understand all this, it’s helpful to know about the early 1970s’ “battle of the budget,” part of the “wars of Watergate.” President Richard M. Nixon flatly refused to spend billions of dollars that Congress had appropriated for programs he thought unnecessary. This practice was called “impoundment.”

But in 1974, the Supreme Court held that Nixon was required to spend the full amount. Meanwhile, Congress passed the Congressional Budget and Impoundment Control Act. That law set up the contemporary budget process that Molly Reynolds, Sarah Binder and others have lamented here at TMC, which requires the creation of a budget resolution and the passage of appropriations bills funding the government by Oct. 1 each year. It also barred presidents from following Nixon’s lead on impoundments.

But — and this is key — it gave the executive branch an out. Within 45 days after a spending law has passed, presidents can send a “rescission bill” to Congress, specifying what should be eliminated from that law and why.

The White House and Republican leaders are apparently considering using such a bill. This is not particularly rare. According to the Congressional Research Service, presidents made 1,178 such requests between fiscal 1974 and 2006, totaling more than $76 billion.

In those three decades, legislators approved undoing about $25 billion, a little less than a third of what presidents had requested (about $750 million a year, on average). So rescission can work, but only when Congress wants to undo its own handiwork. That might be true now — depending on what specific items Trump proposes to rescind. However, even if Republicans were willing, such a bill would certainly alienate Democrats, whose votes will be needed yet again this fall for the fiscal 2019 budget, and who voted for the 2018 bill only because they got something out of it — surely the parts that Trump wants to rescind.

All this brings us to the line-item veto, which would allow an executive to strip individual items or amounts from an appropriations bill. Presidents have long coveted this power, ever since the Confederate States of America included a line-item veto in its constitution (though Jefferson Davis never used it). The line-item veto resurfaced after the Civil War in several state constitutions and, boosted by the Progressive movement, is now used in more than 40 states. Nationally, it was discussed as early as 1876.

In the 1990s, Congress tried to give the president a line-item veto. The Supreme Court nixed it. 

In the early 1990s — when the federal budget deficit was widely debated and worried over — some legislators wanted to give the president such a veto.

“We have reached the point of ‘Stop us before we spend again!’ ” Sen. William S. Cohen (R-Maine) said in 1995. “For too long, we have been rewarded for bringing home the bacon while condemning the presence and prevalence of trichinosis in Congress. We cannot continue to have it both ways.”

In 1996, Congress passed the Line-Item Veto Act (LIVA), which made the president’s rescission proposals much more likely to pass. Under the 1974 act, Congress has to move on those proposals, or they disappear. But under LIVA, presidential rescissions went into effect automatically unless Congress took action against them by passing another bill, which the president could veto.

That didn’t fly. In 1998, the Supreme Court held that LIVA was unconstitutional. The “presentment clause” of the U.S. Constitution treats any congressional bill — from renaming a post office to a $1.3 trillion omnibus budget act – as a single “it,” which presidents can sign or veto only as a whole. The Court ruled that the LIVA:

would authorize the President to create a law whose text was not voted on by either House or presented to the President for signature. That may or may not be desirable, but it is surely not a document that may ‘become a law’ pursuant to the Constitution.

Thus, when Treasury Secretary Steven Mnuchin asserted on March 25 that “Congress could pass a rule, okay, that allows them to do it,” Fox News Sunday interviewer Chris Wallace quickly corrected him: “That’s been ruled unconstitutional by the Supreme Court.”

But wait — there really are other ways to give the president some line-item veto power

That’s not quite the final word. There have been two other congressional approaches to the line-item veto over the years, shy of amending the Constitution.

One is called “separate enrollment”: the idea that legislators must pass a different law for every spending item. This idea, which dates back to President Chester Arthur in the 1880s, was floated as recently as 1996, in the Senate version of LIVA. This way, the president could veto specific items, constitutionally.

However, as Sen. Robert Byrd (D-W.Va.) warned then, a full budget might consist of 10,000 laws — what he mockingly called “bill-ettes.” All would have to be signed or vetoed by the president. For a Congress that can’t reliably pass 13 appropriations bills (or even one) each year, passing 10,000 just might be a challenge.

That leaves the second approach, which the House passed as recently as 2012. (With Paul D. Ryan, now the speaker, as the bill’s lead sponsor.) This would force Congress to vote on presidential rescission recommendations, rather than quietly ignoring them. In the 2012 House bill, the president had 10 days to recommend cuts to discretionary spending accounts. At that point Congress would have a dozen or so session days to report the recommendations from committee and, after limited debate with no filibuster, vote them up or down.

Ryan (R-Wis.) could revive this approach — and a cynical person (unlike me) might be able to see why.

As political scientist I.M. Destler has noted, “members of Congress find their interests well-served by a system of power sharing that gives them ample opportunity for initiative and visibility but allows the buck to stop elsewhere.” What if, contrary to Cohen’s quote above, the line-item veto helped legislators have it both ways?

There’s little evidence that a line-item veto would reduce deficits. Entitlements are safe from the veto, and state-level research suggests it does not reliably rein in spending there. But it would indeed shift the blame for the deficit to the president’s shoulders.

That’s the kind of “rule” a blame-shifting member of Congress might like.