Clinton V. City of New York - Subsequent Developments

Subsequent Developments

Though the Supreme Court struck down the Line Item Veto Act in 1998, President George W. Bush asked Congress to enact legislation that would return the line item veto power to the Executive. First announcing his intent to seek such legislation in his January 31, 2006 State of the Union address, President Bush sent a legislative proposal Legislative Line Item Veto Act of 2006 to Congress on March 6, 2006, urging its prompt passage. Senator Bill Frist, Senator John McCain, and Republican Whip Senator Mitch McConnell jointly introduced this proposal.

On that same day, Joshua Bolten, the Director of the Office of Management and Budget, gave a press conference on the president’s line-item veto proposal. Bolten explained that the proposed Act would give the President the ability to single out “wasteful” spending and to put such spending on hold. While the spending line-item is on hold, the President can send legislation to Congress to rescind the particular line-item. The proposal would then be considered in both houses within ten days on an up or down basis, and could be passed by a simple majority. Additionally, such proposals could not be filibustered.

When asked how this proposed legislation was different from the 1996 Line Item Veto Act that was found unconstitutional by the United States Supreme Court, Bolten said that whereas the former act granted unilateral authority to the Executive to disallow specific spending line items, the new proposal would seek Congressional approval of such line-item vetoes. Thus, in order for the President to successfully rescind previously enacted spending, a simple majority of Congress is required to agree to specific legislation to that effect.

Though the newer line-item veto proposal was much weaker than the 1996 version, it nevertheless failed to find strong support in Congress. Senator Robert C. Byrd of West Virginia called it "an offensive slap at Congress," asserting that the legislation would enable the president to intimidate individual members of Congress by targeting the projects of his political opponents. He also complained that the line-item veto as proposed would take away Congress’ constitutional "power of the purse" and give it to the Executive branch.

On June 8, 2006, Viet D. Dinh, Professor of Law at Georgetown University Law Center, and Nathan A. Sales, John M. Olin Fellow at Georgetown University Law Center testified by written statement before the House Committee on the Budget on the constitutional issues in connection with the proposed legislation. Dinh and Sales argued that the Legislative Line Item Veto Act of 2006 satisfies the Constitution’s Bicameralism and Presentment Clause, and therefore avoids the constitutional issues raised in the 1996 Act struck down by the Supreme Court. They also stated that the proposed Act is consistent with the basic principle that grants Congress broad discretion to establish procedures to govern its internal operations.

The proposed Act was approved by the House Budget Committee on June 14, 2006 by a vote of 24-9. It was approved in the full House on June 22. A similar bill was submitted in the Senate, but failed to win approval. The Legislative Line Item Veto Act has therefore not become law.