In his State of the Union address, President Bush told Congress the problem of earmarks could be tackled “together, if you pass the line-item veto.” Just recently Mr. Bush reiterated this, telling Congress “they need to give the president the line-item veto.”
In fact, neither Congress need act nor the president wait if they decided to use the power already provided by the Budget Act’s authority to rescind funds. This law gives the president the ability to single out spending items for repeal and Congress an expedited way to do so by simple majority vote.
While perhaps not as theoretically potent as a line-item veto, rescission has several advantages. It has worked, it is surgical and it would avoid the adversarial nature of the line-item veto.
Most important, two federal courts found the last version of the line-item veto unconstitutional on two separate grounds.
In short, in a serious conversation about controlling spending, the debate between a line-item veto and rescission authority essentially pits the theoretical against the practical.
In 1998, both a federal district court and the U.S. Supreme Court found unconstitutional the only federal line-item veto ever enacted. And they did so on two separate points.
As enacted in 1996, the line-item veto required the president to sign legislation and then veto the individual objectionable items. These items remained canceled unless Congress passed legislation overturning the cancellation.
The Supreme Court ruled that the 1996 line-item veto violated the Presentment Clause of Article II of the Constitution. It did so because it only allowed the president to veto items after signing legislation and the resulting law therefore differed from what had been presented to him.
However, the Supreme Court did not even rule on the perceived violation identified by the district court: the separation of legislative and executive powers. So even if reincarnated, a line-item veto would still face at least one constitutional challenge.
The only apparent alternative would be to amend the Constitution. However this is a monumental undertaking — there is a reason why the Constitution has been amended only 17 times after adoption of the Bill of Rights.
Amendment requires either two-thirds support in both bodies of Congress (or two-thirds support of all state legislatures) for a proposed amendment and ratification by three-quarters of the states. This is cumbersome and time-consuming under the best of circumstances — and current political conditions are hardly the best. It is difficult to see anything receiving this degree of support in today’s polarized political climate.
Furthermore, Congress, whose spending projects would be targeted, is inherently reluctant to grant the executive branch added authority over itself.
All this argues for laying aside the dream of a line-item veto and taking up the already existing power to cancel spending. Known as “rescission authority” it is included in Title X of the Budget Act, enacted in 1974 in response to Richard Nixon’s refusal to release legally enacted funds.
Rescission authority has been used successfully — often as a means of holding down the overall cost of new spending. Why not simply use it now without including the new spending?
The rescission process is straightforward. The president sends a message to Congress identifying spending items he wants to cancel. The resulting legislation is considered under an expedited process with limited time, limited amendment opportunities (only relevant amendments in the Senate), and no chance to delay. If the legislation passes both bodies, the spending is canceled.
Certainly it reverses the dynamic of the line-item veto: Instead of Congress having to act to restore funds, it has to act to remove them. While the former would be preferable, it bears remembering such power only theoretically exists — rescission authority actually does.
Besides already existing, rescission authority has other advantages. Procedurally, rescission authority removes the adversarial nature of the line-item veto. Under a line-item veto, a congressional minority could stop restoration of funds. Under the rescission process Congress must agree to cancel the spending. Rescission also retains the line-item veto’s surgical nature by still allowing the president to delineate particular items for removal rather than having to veto an entire bill.
Perhaps most important from the president’s perspective, it would put the onus on Congress. The president merely has to identify items. Congress then must pass the legislation.
Such identification would also spotlight objectionable items for public scrutiny. This could build support for congressional passage. And when Congress had rescinded them, the president would have a partner — not an adversary — in scrutinizing future spending.
If fiscal conservatives are serious about controlling objectionable spending, it behooves them to have used every means at their disposal.
Even if the exercise ended in failure, attempting to rescind money would have a benefit. If nothing else, it would allow them to talk more seriously about a line-item veto because they could legitimately say they had tried everything.
J.T. Young served in the Treasury Department and the Office of Management and Budget, 2001-2004.