JURIST Guest Columnist Peter Shane of Moritz College of Law, Ohio State University, says that the Bush Administration’s proposed Line-Item Veto Act has only two problems: first, it proposes to create power the President pretty much already has, and second, it is not a line-item veto…

Perhaps this kind of misrepresentation matters only to constitutional law junkies, but the Bush Administration’s March 6 submission to Congress of a proposed “Line-Item Veto Act of 2006" is a fraud.

In essence, the “Line-Item Veto Act” would allow the President to recommend to Congress that it take back or “rescind” any item of budget authority it had previously approved. The bill envisions an expedited process for considering the President’s proposals, and it allows the President to withhold the funds he proposes to rescind for up to 180 days while Congress considers his proposal.

The problems with what OMB’s press release calls this “enhanced authority” for the President are simple. First, the bill proposes to create power the President pretty much already has. Second, it is not a line-item veto.

Every President has always had an absolute right to recommend to Congress that it enact legislation to rescind previously granted budget authority. The President’s constitutional power to recommend to Congress “to their consideration such measures as he shall judge necessary and expedient” is right there in section 3 of Article 2.

But Congress has already gilded this lily. Section 683 of Title 2 of the United States Code expressly authorizes specific Presidential messages to rescind budgetary authority when “all or part of [such authority] will not be required to carry out the full objectives or scope of programs for which it is provided” or the President believes the authority “should be rescinded for fiscal policy or other reasons.”

Even better, section 688 of Title 2 creates an expedited procedure in Congress to consider proposed rescissions. So, what the President is asking for seems to be something he already has.

To be fair, the proposed “Line-Item Veto Act” would not be identical to current law. The expedited procedure could be even more expedited, and the President could wait 180 days before spending the money, not forty-five, as under current law. But the point remains: If this kind of thing would actually work, in the President’s words, “to reduce wasteful spending, reduce the budget deficit, and ensure that taxpayer dollars are spent wisely,” why does he not use this tool more aggressively now?

The answer is that a process for budgetary rescission, either as it currently exists or as the Administration would amend it, is not a real line-item veto.

The crucial virtue of a “line-item veto” is that it allows the executive, whether the President or a governor, to strip out of an appropriations measure an item of spending that could not be justified by the public interest, but exists entirely because of bargaining within the legislature.

This bargaining, typically called log-rolling, takes the form of, “If you’ll vote for my Bridge to Nowhere, I’ll support a courthouse named for your dog!” Individual members of Congress may actually be indifferent to either the bridge or the courthouse, but they will want to preserve their right to bargain, so they will support everybody else’s.

That’s why asking Congress to go back and undo its bargain on particular pieces of the arrangements it has already made can be expected, generally speaking, to be futile. But that is exactly what a rescission message asks Congress to do.

The real Line-Item Veto Act that the Supreme Court held unconstitutional in 1998 got around this problem in the only practical way possible: It allowed the President to cancel individual slices of pork spending without going back to Congress. That’s why it was called a “Line-Item Veto,” not “Line-Item Finger-Pointing,” or a “Line-Item Recommendation to Do Better.”

It probably would be possible to craft a genuine line-item veto that would pass muster in the Supreme Court, but Congress is unlikely to do it. Congressional Republicans supported the last effort in 1996 only because they had promised to do so in the Contract With America. Now that the contract has expired, it turns out that Congressional Republicans enjoy spending with at least the same fervor as the Democratic majorities of yesteryear. They won’t want the President stopping them.

Does that mean the President’s proposal is not a good idea? No. It just means the “line-item veto” advertisement is flimflam. It avoids being candid in order to sound tougher on problem-solving than it is. Call it the Katrina Syndrome.

Peter Shane is the Joseph S. Platt/Porter Wright Morris & Arthur Professor of Law and Director, Center for Interdisciplinary Law and Policy Studies at Moritz College of Law, Ohio State University
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