In Search of the Lost Chord: Reflections on the 1996 Item Veto Act (original) (raw)

1997, 47 Case Western Reserve Law Review 1605 1642

Abstract

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The paper examines the implications of the Line Item Veto Act, focusing on Congress's motivations for its approval despite its potential to undermine traditional legislative power. It discusses the legal challenges faced by the Act, particularly the Supreme Court's ultimate decision regarding its constitutionality, and argues that political pressures and symbolism were significant factors in Congress's support. The analysis suggests that the item veto may serve more as a tool for political negotiation than as a definitive means of fiscal reform.

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References (14)

  1. Quoted in CHARLES J. ZINN, THE VETO POWER OF THE PREsiDENT 22 (1951).
  2. See, e.g., 141 CONG. REc. H1078, H1099 (1995) (remarks of Rep. Rohrabacher);
  3. id. at H1102 (remarks of Rep. Torkildnse); id. at H1143 (remarks of Rep. Fox).
  4. ld. at H1100 (remarks of Rep. Cox). Along these lines, an argument can be made that those "concerned with the task of preserving initial constitutional commitments in light of changes in the constitutional context" might support item veto authority. See Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM.
  5. L. REV. I, 93 (1994). For reasons discussed in the balance of this section, however, I think that supporters of "translational" approaches to constitutional interpretation should reject claims of inherent item veto and impoundment authority.
  6. Louis Fisher, Continuing Resolutions: Can't Live With 'em, Can't Live Without 'em, 48 PuB. BUDGEfiNG & FIN. 101, 103 (1988).
  7. William Chapman, Congress Leaves for Holiday With Money Tangle Unsolved, WASH. POST, July 2, 1982, at AI.
  8. See, e.g., Sandra Evans Teeley, GOP Floats $1 Billion Housing Plan, WASH. POST, July 22, 1982, at 01, col. 1.
  9. See supra notes 119-22 and accompanying text; see also FISHER, supra note 93, at 3-4 (discussing ways in which state lawmakers use the item veto to punish governors);
  10. The Balanced Budget Amendment-Volume 2, Hearings Before the House Committee on the Budget, 102d Cong., 2d Sess. 9 (1992) (Statement of Rep. David Obey) (stating that Congress should consider "giv[ing] back the President impoundment authority, lock, stock and barrel. I think that would scare the hell out of the White House, because right now the White House ... escape[s] all responsibility").
  11. Michael A. Fitts, The Paradox of Power in the Modern State: Why a Unitary, Centralized, Presidency May Not Exhibit Effective or Legitimate Leadership, 144 U. PA.
  12. L. REv. 827, 835 (1996). For this reason, George Bush's highly publicized refusal to exercise inherent item veto authority may well have been a by-product of the President's fear that he no longer would be able to blame Congress for skyrocketing deficits. See J. Gregory Sidak & Thomas A. Smith, Why Did President Bush Repudiate the "Inherent" Line•ltem Veto?, 9 J. L. & POL. 39 (1992).
  13. For example, from 1981-1992, only two domestic programs of significance wcre terminated by the White House and Congress. See Lawrence Haas, Never Say Die, 24
  14. NAT'L J. 755, 756 (March 28, 1992). More strikingly, while President Bush proposed to terminate 246 programs in fiscal year 1993, only 5billionofa5 billion of a 5billionofa350 billion deficit