Clinton v. City of New York (p. 388)

Art I, section 7:

 

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.

 

From Oyez:

Facts of the case

This case consolidates two separate challenges to the constitutionality of two cancellations, made by President William J. Clinton, under the Line Item Veto Act ("Act"). In the first, the City of New York, two hospital associations, a hospital, and two health care unions, challenged the President's cancellation of a provision in the Balanced Budget Act of 1997 which relinquished the Federal Government's ability to recoup nearly $2.6 billion in taxes levied against Medicaid providers by the State of New York. In the second, the Snake River farmer's cooperative and one of its individual members challenged the President's cancellation of a provision of the Taxpayer Relief Act of 1997. The provision permitted some food refiners and processors to defer recognition of their capital gains in exchange for selling their stock to eligible farmers' cooperatives. After a district court held the Act unconstitutional, the Supreme Court granted certiorari on expedited appeal.

 

Question

Did the President's ability to selectively cancel individual portions of bills, under the Line Item Veto Act, violate the Presentment Clause of Article I?

Conclusion

Yes. In a 6-to-3 decision the Court first established that both the City of New York, and its affiliates, and the farmers' cooperative suffered sufficiently immediate and concrete injuries to sustain their standing to challenge the President's actions. The Court then explained that under the Presentment Clause, legislation that passes both Houses of Congress must either be entirely approved (i.e. signed) or rejected (i.e. vetoed) by the President. The Court held that by canceling only selected portions of the bills at issue, under authority granted him by the Act, the President in effect "amended" the laws before him. Such discretion, the Court concluded, violated the "finely wrought" legislative procedures of Article I as envisioned by the Framers.

The key passages are those near the top of p. 389:

“In both legal and practical effect, the President has amended two Acts of Congress by repealing a portion of each. . . . There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes. . . .

There are important differences between the President’s “return” of a bill pursuant to Article I, § 7, and the exercise of the President’s cancellation authority pursuant to the Line Item Veto Act. The constitutional return takes place before the bill becomes law; the statutory cancellation occurs after the bill becomes law. The constitutional return is of the entire bill; the statutory cancellation is of only a part. Although the Constitution expressly authorizes the President to play a role in the process of enacting statutes, it is silent on the subject of unilateral Presidential action that either repeals or amends parts of duly enacted statutes.

There are powerful reasons for construing constitutional silence on this profoundly important issue as equivalent to an express prohibition. The procedures governing the enactment of statutes set forth in the text of Article I were the product of the great debates and compromises that produced the Constitution itself. . . . Our first President understood the text of the Presentment Clause as requiring that he either “approve all the parts of a Bill, or reject it in toto.” What has emerged in these cases from the President’s exercise of his statutory cancellation powers, however, are truncated versions of two bills that passed both Houses of Congress. They are not the product of the “finely wrought” procedure that the Framers designed.”

 

Now consider Justice Breyer’s dissent on page 391, where he argues that things have changed since the Founding Era and now it is not possible to divide appropriation bills into thousands of individual bills that the President may either veto or sign. 

Thus, the Constitution needs to change and the Court should amend the Constitution accordingly. What do you think?

Under Art. V, is the Court given the power to amend the Constitution when times change?

 Breyer also makes this statement:

“The [Line Item Veto] Act does not undermine what this Court has often described as the principal function of the Separation of Powers, which is to maintain the tripartite structure of the Federal Government—and thereby protect individual liberty . . .” p. 393

 

What are your thoughts?

 How does Justice Kennedy respond? Page 390-391:

“I write to respond to my colleague Justice Breyer, who observes that the statute does not threaten the liberties of individual citizens, a point on which I disagree. . . .

Liberty is always at stake when one or more of the branches seek to transgress the separation of powers.

Separation of powers was designed to implement a fundamental insight: concentration of power in the hands of a single branch is a threat to liberty. . . . ’

In recent years, perhaps, we have come to think of liberty as defined by that word in the Fifth and Fourteenth Amendments and as illuminated by the other provisions of the Bill of Rights. The conception of liberty embraced by the Framers was not so confined. They used the principles of separation of powers and federalism to secure liberty in the fundamental political sense of the term, quite in addition to the idea of freedom from intrusive governmental acts. The idea and the promise were that when the people delegate some degree of control to a remote central authority, one branch of government ought not possess the power to shape their destiny without a sufficient check from the other two. In this vision, liberty demands limits on the ability of any one branch to influence basic political decisions. . . .”

The three veto points that proposed laws must survive in order to be enacted protect real liberty. They make it difficult for a remote central government to tax and regulate us, and that is real liberty indeed.

 Many times a certain provision in a spending bill—maybe a benefit for farmers—may have been necessary to get a majority in the House or the Senate to support a bill that was otherwise weighted in favor of urban interests.

Should the President be allowed to sign the bill into law, and then “cancel” the provision benefiting farmers while leaving all the urban goodies to remain?

 How about a tax law that contains a tax cut aimed at two-income families (perhaps tax credits for commercial child care) and another aimed at families who homeschool their children (perhaps a tax credit for home school books and supplies).

 Should the President be allowed to sign the bill into law, and then “cancel” the provision for child care tax credits while leaving the homeschool tax credit in place?