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JGR/Line-Item Veto (2 of 2)
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Records of the Office of Counsel to the President (Reagan Administration)
John Roberts' Subject Files
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Line-Item Veto
(2 of 2)
Box: 32
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
WITHDRAWAL SHEET
Ronald Reagan Library
Collection: :Roberts, John G.: Files
Archivist: mjd/bcb
File Folder: JGR/Line Item Veto (2)
OA 12664
Date: 4/13/98
12660
DOCUMENT
SUBJECT/TITLE
DATE
RESTRICTION
NO. AND TYPE
1. memo
Fred Fielding to Michael Deaver, Richard Darman,
1/23/84
P5
Bently Elliot re Support for Line Item Veto Authority
in State of the Union Address, 2p.
-
meno
SAME AS item 1, 2p
1/23/84
DS
2. memo
John Roberts to Fred Fielding (annotated) re Line
1/18/84
P5
Item Veto, 1p.
3. memo
John Roberts to Fred Fielding re Line Item Veto, 1p.
1/18/84
P5
4. memo
Fred Fielding to M.B. Oglesby re Inquiry From
6/15/84
P5
Assistant Attorney General Robert McConnell on
Line-Item Veto Issue, 1p.
5. memo
John Roberts to Fred Fielding re Inquiry From
6/14/84
P5
Assistant Attorney General Robert McConnell on
Line-Item Veto Issue, 2p.
6. memo
Same as Item # 4, 1p.
6/15/84
P5
EAnlien version of
6/14/84
7. memo
Item # 4, 1p.
6/15/84
P5
8. memo
Robert McConnell to Fred Fielding re Line Item
6/11/84
Veto, 2p.
105 12/14/00
RESTRICTION CODES
Presidential Records Act [44 U.S.C. 2204(a)]
Freedom of Information Act [5 U.S.C. 552(b)]
P-1 National security classified information [(a)(1) of the PRA].
F-1 National security classified information [(b)(1) of the FOIA].
P-2 Relating to appointment to Federal office [(a)(2) of the PRA].
F-2 Release could disclose internal personnel rules and practices of an agency [(b)(2) of the
P-3 Release would violate a Federal statute [(a)(3) of the PRA].
FOIA].
P-4 Release would disclose trade secrets or confidential commercial or financial information
F-3 Release would violate a Federal statue ((b)(3) of the FOIA].
[(a)(4) of the PRA].
F-4 Release would disclose trade secrets or confidential commercial or financial information
P-5 Release would disclose confidential advice between the President and his advisors, or
[(b)(4) of the FOIA].
between such advisors [(a)(5) of the PRA].
F-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the
P-6 Release would constitute a clearly unwarranted invasion of personal privacy [(a)(6) of
FOIA].
the PRA].
F-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of
the FOIA].
C. Closed in accordance with restrictions contained in donor's deed of gift.
F-8 Release would disclose information concerning the regulation of financial institutions
[(b)(8) of the FOIA].
F-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of
the FOIA].
WHITE HOUSE OFFICE OF RECORDS MANAGEMENT: Subject File
FILE TRANSFER
BY THE REAGAN LIBRARY STAFF
Previously filed: 36R/Line-Item Veto (2) OA12664
Roberts, Johnb. Smittles
New file location: FE 002-01 2/70/700
Date of transfer: 4/7/98
MSD
OFFICE OF TIME PRESIDENT STATES & UNITED
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
Honorable Mack Mattingly
United States Senate
Washington, D. C. 20510
Dear Mack:
I am writing to express strong Administration support for your
proposal, co-sponsored by Dan Evans, to give the President two
year statutory veto authority by providing that each item in an
appropriations measure would be enrolled as a separate bill for
purposes of presentment to the President.
The Administration believes that establishment of an effective
statutory item veto authority would be very much in the public
interest. Your proposal would create an important tool by which
the President could eliminate ill-advised and wasteful
appropriations from the budget. This mechanism could play a
measurable role in efforts to reduce unnecessary federal
spending.
As vou will also appreciate from your prior efforts in this area,
it is important that Congress continue to work on permanent
confirmation of this power through passage of an Item Veto
Amendment. Several versions of an Item Veto Amendment have been
introduced by you and Senator Dixon and by Representatives Kemp,
Hyde and Bereuter, among others. The Administration hopes that
Congress will consider these proposals expeditiously, so that the
item veto authority can be permanently established in our system
of government, and will not lapse or become subject to dilution
or elimination by subsequent legislation.
Subject to certain technical modifications of the original draft
bill, and elimination of a section raising problems under the
Supreme Court's decision in INS V. Chadha, which our staffs have
fully resolved, the Administration considers your proposal a
significant step forward in the control of federal spending, and
strongly supports its enactment into law.
Sincerely,
David A. Stockman
Director
OFFICE OF THE PRESIDENT STATES at UNITED
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF management AND BUDGET
WASHINGTON, D.C. 20503
Honorable Dan Evans
United States Senate
Washington, D. C. 20510
Dear Dan:
I am writing to express strong Administration support for your
proposal, co-sponsored by Mack Mattingly, to give the President
two year statutory veto authority by providing that each item in
an appropriations measure would be enrolled as a separate bill
for purposes of presentment to the President.
The Administration believes that establishment of an effective
statutory item veto authority would be very much in the public
interest. Your proposal would create an important tool by which
the President could eliminate ill-advised and wasteful
appropriations from the budget. This mechanism could play a
measurable role in efforts to reduce unnecessary federal
spending.
As you will also appreciate from your prior efforts in this area,
it is important that Congress continue to work on permanent
confirmation of this power through passage of an Item Veto
Amendment. Several versions of an Item Veto Amendment have been
introduced by Senators Mattingly and Dixon and by Representatives
Kemp, Hyde and Bereuter, among others. The Administration hopes
that Congress will consider these proposals expeditiously, so
that the item veto authority can be permanently established in
our svstem of government, and will not lapse or become subject to
dilution or elimination by subsequent legislation.
Subject to certain technical modifications of the original draft
bill, and elimination of a section raising problems under the
Supreme Court's decision in INS V. Chadha, which our staffs have
fully resolved, the Administration considers your proposal a
significant step forward in the control of federal spending, and
strongly supports its enactment into law.
Sincerely,
David A. Stockman
Director
CEDETICAT ":.
:- INVICE THE tech item ci any or special
any 1111 CC doint resolution making
== continuing approprdations, and any
DEPOTT thereon that is enacted or acopted by the
Commisso shall be enrolled as È separate bill or joint resolution
for resentation to the President.
IIII THE SENATE OF THE UNITED STATES--98th Cong., 20 Sess.
H.R.
Peferred to the Committee on
and
ordered tc be printed
Codered to lie on the table and to be printed
Amendment intended to be proposed by Fr. Mattingly (for himself
and Mr. Evans)
Viz:
1
At the appropriate place in the bill, insert the
2 following new section:
3
SEPARATE ENROLLMENT OF ITEMS IN CERTAIN BILLS AND JOINT
L
RESOLUTIONS MAKING APPROPRIATIONS
5
Sec.
( a ) (1) Notwithstendingaa other provision-of
5 lew, any rule of the House cf Representatives, any standing
7 rule of the Senate, any concurrent resolution, or any
= resolution of the House of Representatives 05 the Senate,
= when any general 05 special appropriation bill, any bill CE
12 joint resolution making supplemental, deficiency, or
11 continuing eppronsiations
CE
thereon
12 has cassed both HOUSES of the Congress in the same form, the
13. enrolling clerk of the House in which the 5111 == Icint
10 resolution originated shall enroll each item of such bill 25
1E [cint resolution ES a seperate 1111 CI joint resolution, at
if the case TEX be.
17
(2) : till or joint restlution enrolled pursuant =
15 paragraph (1)
-?
(1) shall be enroller without substantive revision,
:-
(7) crall conficat :: section 171 == 172, = S the case
10
United
States
Code
(:=
such
:: in sffect on the cate of the enactment of this
rection), and
:-
(C) shall bear the designation of the reasure
11.
described in paragraph (1) cf which it was an item prior
f
to such enrollment, together with such other designation
7
ES may be necessary to distinguish such 5111 or joint
"
resolution from other bills or joint resolutions empolled
9
pursuant to personaph (:) with respect to the sere
13
measure.
11
(b) A bill 05 joint resclution enrolled pursuant to
a bill under
Article I,
12 paragraph (1) of subsection (a) with respect to an item shall
section 7,
clauses 2
13 be deemed to be 20 Act OF joint resolution of the Congress
and 3 of the
Constitution
14 and shall be signed by the presiding officers of both Houses
15 and presented to the President for his signature
(and
approval or
disapprovel
15 otherwise treated for all purposes) in the manner provided
inArticle I,
17 Lots and joint resolutions generally
The vote by which
section 7
È
clauses 2
18 House cf the Congress agreed to the measure of which such
and 3 oF the
Constitution.
19 bill or joint resolution was an item prior to such enrollment
23 shall be deemed to have been the vote of such House on such
21 Act or joint resolution.
22
(c) For purposes of this section, the term ''iter'' means
23 any numbered section and any unnumbered baragraph of any
24 general or special appropriation bill, any bill or joint
25 resolution making supplemental, deficiency, or continuing
25
appropriations
R
and
any
conference
report
on
any
such
bill
If
27 joint resolution
26
(c) The provisions of this section are enacted -5: the
29 concress--
3?
LE in exercise ci the culemaking power ci the
31
louse 6 : Senresentatives and the Senate, respectively,
32
is
such
they
shall
to
considered
as
part
of
the
rules
33
OF each HOUSE, respectively. OF ci that "ouse tc which
specifically
apply,
the
such
rules
shall
surfessed
(2) MIER full recognition of the constitutional richt
either
HOUSE
$
chance
such
as
relating
such House) a- any time, in the sems FERREE, and is
SERS is 15 the case of any other rule of ruch
#
The provisions of this section shall apply to bills,
joint resolutions
enacted or adopted
by the Congress during the two-year period beginning with the
date of the enactment of this section.
OFFICE THE PRESIDENT STATE UNITED
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
September 20, 1984
MEMORANDUM FOR: John Roberts
FROM:
John Cooney
SUBJECT:
Item Veto Statute
Attached is a draft letter on the item veto statute proposed
by Senators Mattingly and Evans. It attempts to resolve the
Chadha question we discussed earlier today.
This version does not address your second concern, about
the lack of coverage of the section which defines the "item"
subject to separate enrollment and veto. I have asked our
budget people to review this issue, but I have not yet heard
from them.
Please let me know if you have any comments on the Chadha
aspects.
Honorable Mack Mattingly
United States Senate
Washington, D.C. 20510
Dear Mack:
I am writing concerning your proposal to provide the President
with line-item veto authority by virtue of a statute which would
provide that, for a two-year period, each item in an
appropriations measure would be enrolled as a separate bill for
purposes of presentment to the President. The Administration
supports the general principles underlying the proposal. One
part of the proposal, however, violates the constitutional
prohibition against legislative veto devices. We would be happy
to work with you to devise a technical amendment to resolve this
problem.
The Administration believes that creation of an effective
statutory item veto authority would be very much in the public
interest, and we believe your proposal is a promising step in
that direction. Subsection (d), however, provides that the
measure would be enacted as an exercise of the rulemaking power
of Congress and would be subject to revision in the same manner
as other rules. This provision is unconstitutional under the
Supreme Court's decision in INS V. Chadha, which held that
legislative actions purporting to revise the Executive's
-2-
substantive authority may constitutionally be undertaken only
pursuant to bills or resolutions that are presented to the
President for his approval. Since revisions of Congressional
rules are not so presented, this subsection is defective under
Chadha. In order for the proposal to be constitutional,
subsection (d) therefore must be deleted or revised to reflect
that this action is taken pursuant to Congress' statutory
amendment.
As thus modified, your proposal would create an important tool by
which the President could eliminate ill-advised and wasteful
appropriations from the budget. This mechanism would play a
measurable role in efforts to reduce unnecessary federal
spending.
As you will appreciate from your prior efforts in this area, it
is important that Congress continue to work on permanent
confirmation of this power through passage of an Item Veto
constitutional amendment. Several versions of an Item Veto
Amendment have been submitted by you and Senator Dixon and by
Representatives Kemp, Hyde and Bereuter, among others. The
Administration hopes that Congress will consider those proposals
expeditiously, so that the item veto authority can be permanently
established in our system of government, and does not lapse or
become subject to dilution or elimination by subsequent
legislation.
-3-
I wish again, however, to emphasize that, subject to correction
of the Chadha problem, the Administration considers your proposal
a significant step forward in the control of federal spending and
believes it would provide a useful mechanism for reducing
wasteful spending during the interim period while Congressional
deliberations on an Item Veto Amendment are ongoing and while the
proposed Amendment is pending before the States for ratification.
Sincerely,
David A. Stockman
Director
Honorable Mack Mattingly
United States Senate
Washington, D.C. 20510
Dear Mack:
I am writing concerning your proposal to provide the President
with item veto authority by virtue of a statute which would provide
that, for a two year period, each item in an appropriations measure
would be enrolled as a separate bill for purposes of presentment
to the President. The Administration strongly supports the
proposal, subject to an understanding which I understand that
our staffs have reached.
The Administration believes that creation of an effective statutory
item veto authority would be very much in the public interest. Your
proposal would create an important tool by which the President could
eliminate ill-advised and wastefuly appropriations from the
budget. This mechanism could play a measurable role in efforts
to reduce unnecessary federal spending.
In reviewing the proposal, we were concerned that the original
subsection (d) was defective under the Supreme Court's decision
in INS V. Chadha, because it created an unconstitutional legislative
veto device. It is my understanding that, in discussions between
our staffs, it has been agreed that this provision will be eliminated
from the proposal as finally introduced.
As you will also appreciate from your prior efforts in this
area, it is important that Congress continue to work on permanent
confirmation of this power through passage of an Item Veto
Amendment. Several versions of an Item Veto Amendment have
been introduced by you and Senator Dixon and by Representatives
Kemp, Hyde and Bereuter, among others. The Administration hopes
that Congress will consider these proposals expeditiously, so
that the item veto authority can be permanently established
in our system of government, and will not lapse or become
subject to dilution or elimination by subsequent legislation.
I wish again to emphasize that, subject to correction of the
Chadha problem discussed above, the Administration considers
your proposal a significant step forward in the control of
federal spending and believes it would provide a useful mechanism
for reducing wasteful spending during the interim period while
Congressional deliberations on an Item Veto Amendment are ongoing
and while the proposed Amendment is pending before the States
for ratification.
Sincerely,
David A. Stockman
Director
THE WHITE HOUSE
WASHINGTON
January 23, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Support for Line Item Veto Authority
in State of the Union Address
As you requested, a memorandum to Deaver and Darman on the
easiest, constitutionally sound way of obtaining effective
line item veto authority is attached. This is consistent
with the views of the Department of Justice. In light of
the imminence of the State of the Union address, I have
added Elliott to the list of addressees. I have also
attached a revised memorandum for Greg Jones of OMB for your
signature, advising Jones that Justice's proposed report on
S. 1921 and S.J. Res. 178 be held until after the State of
the Union address.
Attachment
THE WHITE HOUSE
WASHINGTON
January 23, 1984
MEMORANDUM FOR GREGORY JONES
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING Orig. signed by FFF
COUNSEL TO THE PRESIDENT
SUBJECT:
Line-Item Veto
Counsel's Office has reviewed the proposed Justice
Department report on S.J. Res. 178 and S. 1921. We agree
that the report should not be cleared at this point. The
report should be returned to Justice for final revision in
light of the final text of the State of the Union address.
FFF:JGR:aea 1/23/84
CC: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
January 23, 1984
MEMORANDUM FOR MICHAEL K. DEAVER
ASSISTANT TO THE PRESIDENT
DEPUTY CHIEF OF STAFF
RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
DEPUTY TO THE CHIEF OF STAFF
BENTLY ELLIOTT
DEPUTY ASSISTANT TO THE PRESIDENT
DIRECTOR, PRESIDENTIAL SPEECHWRITING OFFICE
FROM:
FRED F. FIELDING Orig. signed by FFF
COUNSEL TO THE PRESIDENT
SUBJECT:
Support for Line Item Veto Authority in State
of the Union Address
The contemplated support for line item veto authority in the
State of the Union address raises the issue of the appropri-
ate vehicle for obtaining such authority. The Department of
Justice has concluded, and I agree, that a bill purporting
to give the President the authority to veto individual items
of appropriation in an appropriations bill would be uncon-
stitutional. Such a statute would contravene the Veto
Clause of the Constitution, Art. I, § 7, cl. 2, which gives
the President authority to approve or veto bills, not parts
thereof.
A constitutional amendment authorizing the President to veto
individual items of appropriation would avoid this concern,
but an amendment requires a two-thirds vote of both houses
and ratification by three-fourths of the States. Such over-
whelming support in Congress for an amendment strengthening
the powers of the Executive Branch at the expense of
Congress seems highly unlikely.
There is a third alternative approach that in essence gives
the President line item veto authority, but can be accom-
plished in statutory form without running afoul of the
Constitution. Congress could enact a statute giving the
President the authority not to expend any item of appro-
priations. A decision by the President pursuant to such a
statute could be overriden by legislation enacted by
Congress, which would in turn be subject to Presidential
veto. By this means the President would have line item veto
- 2 -
authority, but the statute providing this authority would
survive constitutional challenge because it would not
purport to authorize the President directly to veto
particular items of appropriation in a broader bill.
I have attached suggested language outlining this option.
This language could be included in the State of the Union
address if the President is going to discuss particular
means of obtaining line item veto authority.
Attachment
FFF: :JGR:aea 1/23/84
CC: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
January 23, 1984
MEMORANDUM FOR MICHAEL K. DEAVER
ASSISTANT TO THE PRESIDENT
DEPUTY CHIEF OF STAFF
RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
DEPUTY TO THE CHIEF OF STAFF
BENTLY ELLIOTT
DEPUTY ASSISTANT TO THE PRESIDENT
DIRECTOR, PRESIDENTIAL SPEECHWRITING OFFICE
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Support for Line Item Veto Authority in State
of the Union Address
The contemplated support for line item veto authority in the
State of the Union address raises the issue of the appropri-
ate vehicle for obtaining such authority. The Department of
Justice has concluded, and I agree, that a bill purporting
to give the President the authority to veto individual items
of appropriation in an appropriations bill would be uncon-
stitutional. Such a statute would contravene the Veto
Clause of the Constitution, Art. I, $ 7, cl. 2, which gives
the President authority to approve or veto bills, not parts
thereof.
A constitutional amendment authorizing the President to veto
individual items of appropriation would avoid this concern,
but an amendment requires a two-thirds vote of both houses
and ratification by three-fourths of the States. Such over-
whelming support in Congress for an amendment strengthening
the powers of the Executive Branch at the expense of
Congress seems highly unlikely.
There is a third alternative approach that in essence gives
the President line item veto authority, but can be accom-
plished in statutory form without running afoul of the
Constitution. Congress could enact a statute giving the
President the authority not to expend any item of appro-
priations. A decision by the President pursuant to such a
statute could be overriden by legislation enacted by
Congress, which would in turn be subject to Presidential
veto. By this means the President would have line item veto
- 2 -
authority, but the statute providing this authority would
survive constitutional challenge because it would not
purport to authorize the President directly to veto
particular items of appropriation in a broader bill.
I have attached suggested language outlining this option.
This language could be included in the State of the Union
address if the President is going to discuss particular
means of obtaining line item veto authority.
Attachment
FFF:JGR:aea 1/23/84
CC: FFFielding/JGRoberts/Subj/Chron
Attachment
A constitutional amendment is not required for the President
to have effective veto authority over individual budget
items. A bill giving the President authority not to expend
funds appropriated for particular projects, if he determines
this to be in the national interest, would achieve the
desired result. Congress could pass a bill requiring that
the funds be spent if it disagreed with the President, and
that bill would be subject to Presidential veto.
THE WHITE HOUSE
WASHINGTON
January 23, 1984
MEMORANDUM FOR GREGORY JONES
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Line-Item Veto
Counsel's Office has reviewed the proposed Justice
Department report on S.J. Res. 178 and S. 1921. We agree
that the report should not be cleared at this point. The
report should be returned to Justice for final revision in
light of the final text of the State of the Union address.
FFF: :JGR:aea 1/23/84
CC: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
help
January 18, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Line-Item Veto
OMB has asked for our views on a proposed Justice Department
report on S.J. Res. 178 and S. 1921. The former is a
proposed constitutional amendment giving the President the
power to veto individual items of appropriation; the latter
is a bill purporting to do the same. Justice's proposed
report supports the concept of line-item veto authority for
the President, but suggests a third alternative superior in
its view to either S.J. Res. 178 or S. 1921. The proposed
report concludes that S. 1921 would be unconstitutional, in
light of the words of the Presentment Clause, Article I,
§ 7, cl. 2. That clause requires that bills -- not parts
thereof -- be presented to the President for his veto or
approval.
Justice indicates that it would support a Constitutional
amendment, as proposed by S.J. Res. 178, but argues that the
same result can be achieved through an alternative statutory
approach. Justice's proposal is a statute giving the Presi-
dent the authority not to expend any item of appropriation.
If Congress objected to any Presidential decision pursuant
to such a statute, it could pass a bill requiring that the
money be expended, which the President could veto. The end
result would be essentially the same as with a line item
veto.
In light of the plan for the President to call for line item
veto authority in the State of the Union address, the
Justice report should be held in abeyance. The current
draft of the address does not specify the form of the
desired line item veto authority, although it does state
that a constitutional amendment would be "most effective."
We will want to consider this language carefully when we
pls
pr
review the circulated draft of the State of the Union
to
address. I have alerted Ben Elliott that we may have
new
suggestions concerning the precise form of the request for
line item veto authority. For now, we should simply advise
MKD +
Date
Dear
OMB to return the proposed report to Justice for revision in
light of the State of the Union address.
me
Attachment
subjects w/
Attachment
A constitutional amendment is not required for the President
to have effective veto authority over individual budget
items. A bill giving the President authority not to expend
funds appropriated for particular projects, if he determines
this to be in the national interest, would achieve the
desired result. Congress could pass a bill requiring that
the funds be spent if it disagreed with the President, and
that bill would be subject to Presidential veto.
THE WHITE HOUSE
WASHINGTON
January 18, 1984
MEMORANDUM FOR GREGORY JONES
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Line-Item Veto
(fund
Counsel's Office has reviewed the proposed Justice
Department report on S.J. Res. 178 and S. 1921. We agree
that the report should not be cleared at this point. The
report should be returned to Justice. for revision in light
of theyState of the Union address.
find test of the
THE WHITE HOUSE
WASHINGTON
January 18, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Line-Item Veto
OMB has asked for our views on a proposed Justice Department
report on S.J. Res. 178 and S. 1921. The former is a
proposed constitutional amendment giving the President the
power to veto individual items of appropriation; the latter
is a bill purporting to do the same. Justice's proposed
report supports the concept of line-item veto authority for
the President, but suggests a third alternative superior in
its view to either S.J. Res. 178 or S. 1921. The proposed
report concludes that S. 1921 would be unconstitutional, in
light of the words of the Presentment Clause, Article I,
§ 7, cl. 2. That clause requires that bills -- not parts
thereof -- be presented to the President for his veto or
approval.
Justice indicates that it would support a Constitutional
amendment, as proposed by S.J. Res. 178, but argues that the
same result can be achieved through an alternative statutory
approach. Justice's proposal is a statute giving the Presi-
dent the authority not to expend any item of appropriation.
If Congress objected to any Presidential decision pursuant
to such a statute, it could pass a bill requiring that the
money be expended, which the President could veto. The end
result would be essentially the same as with a line item
veto.
In light of the plan for the President to call for line item
veto authority in the State of the Union address, the
Justice report should be held in abeyance. The current
draft of the address does not specify the form of the
desired line item veto authority, although it does state
that a constitutional amendment would be "most effective."
We will want to consider this language carefully when we
review the circulated draft of the State of the Union
address. I have alerted Ben Elliott that we may have
suggestions concerning the precise form of the request for
line item veto authority. For now, we should simply advise
OMB to return the proposed report to Justice for revision in
light of the State of the Union address.
Attachment
THE WHITE HOUSE
WASHINGTON
January 18, 1984
MEMORANDUM FOR GREGORY JONES
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Line-Item Veto
Counsel's Office has reviewed the proposed Justice
Department report on S.J. Res. 178 and S. 1921. We agree
that the report should not be cleared at this point. The
report should be returned to Justice for revision in light
of the State of the Union address.
FFF; JGR:aea 1/18/84
CC: FFFielding/JGRoberts/Subj/Chron
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EXECUTIVE OFFICE OF THE PRESIDENT
199035
ce
OFFICE OF MANAGEMENT AND BUDGET
ROUTE SLIP
Take necessary action
TO
Fred Fielding
Approval or signature
Mike Uhlmann
Comment
Mike Horowitz
Prepare reply
Discuss with me
Jim Jordan
For your information
Roger Greene
See remarks below
Gard
FROM Greg Jones (x3856)
DATE 1/16/84
REMARKS
The attached Justice letter is pertinent
to the line item veto question.
Given the President's reported endorsement
of a constitutional amendment to permit
line item vetoes, it would appear the
Justice letter should not be cleared as
drafted.
Question: If the\Administration is to
support such an amendment, what is the
appropriate way to get "on the record?"
(e.g., support an already-introduced
amendment? propose our own?)
CC: Pete Modlin
Jim Murr
OMB FORM 4
Rev Aug 70
U.S. Department of Justice
Office of Legislative Affairs
Office of the Assistant Attorney General
Washington, D.C. 20530
Honorable Strom Thurmond
Chairman
Committee on the Judiciary
United States Senate
Washington, D. C. 20510
Re: Constitutional Amendment (S.J. Res. 178) and Bill
(S. 1921) to Allow the President to Veto Items of
Appropriation
Dear Mr. Chairman:
This responds to your request for the views of the
Department of Justice on the above-referenced bill and
proposed constitutional amendment, both of which would
allow the President to veto items of appropriation. The
Administration wholeheartedly supports the concept that the
President should have the power to veto individual items of
appropriation. This item veto power has long been urged by
Presidents of both parties and is now essential to aid in
controlling spending and keeping the federal budget under
control.
As a practical matter, however, we do not believe that
either the bill or the proposed constitutional amendment is
the best way to accomplish this important goal. Although
a constitutional amendment would be more permanent, it would
involve considerable time and concerted effort to accomplish.
On the other hand, the bill, as currently drafted, is inconsis-
tent with the Constitution, which permits the President to
veto only an entire bill and not individual parts thereof.
Nevertheless, we feel that the same result could be obtained
by a statutory provision that would grant the President power to
refuse to spend all or part of a particular item of appropriation.
As described more fully below, such a statute could include pro-
visions for congressional override of the President's decision
not to expend funds. We believe that such a statute would be an
effective method for implementing the concept of the item veto
and would avoid the need to amend the Constitution.
I. THE NEED FOR ITEM-VETO POWER
Since the Presidency of George Washington, Presidents
have recognized the need for some form of item veto. Presi-
dents have frequently found it impossible, because of Con-
gress's practice of aggregating many different items of
appropriation into one bill, to make effective use of the
constitutionally established veto power. Presidents have
often found themselves in the position of having to choose
between approving an entire bill or vetoing it entirely,
including necessary appropriations. This Hobson's choice
has seriously weakened the Presidential veto power and
effectively limited the role the President can play in
reviewing appropriations legislation.
Because of this problem, many Presidents have urged that
the Presidency be provided with power to veto severable items
within a bill. The calls for an item veto became particularly
strong after the Civil War. The Confederate States of America
had adopted an item-veto provision in their Constitution 1/,
and after the war many individual states began to adopt
similar item-veto provisions for their own constitutions.
During that period, Presidents Grant and Arthur asked for the
adoption of a constitutional amendment that would give the
President item-veto power. 2/ In this century, Presidents of
both parties have urged that the President be given item-veto
power. In 1938, President Roosevelt supported the item veto
and argued that it "has been considered a consistent corollary
of the power of the legislature to withhold approval of items
in the budget of the Executive; and the system meets with
general approval in the many states which have adopted it." 3/
Similarly, in 1957, President Eisenhower asked Congress to
give him the power to veto individual items in appropriation
bills. 4/
1/ Constitution of the CSA, Art. I, $ 7.
2/ See VII J. Richardson, Messages and Papers of the Presidents
242 (1898), VIII Id. 138.
3/ See E. Corwin, The President, Office and Powers, 1787-1957,
474 n. 55 (1957).
4/ Id. at 475. Neither President Roosevelt nor President
Eisenhower indicated a preference as to how the grant of item-
veto power should be accomplished. See id.; New York Times,
May 25, 1957 at 1, 8.
-2-
The item veto is not a novel, untested concept that would
significantly alter the structure of government. Over 40 states
have provided their governors with the right to veto items
of appropriation. These provisions have operated successfully
in many states for over a hundred years. We believe that the
President should have the same effective veto power, with the
reserved legislative right to override, that is possessed by
the vast majority of the nation's governors.
II. S. 1921 - ITEM VETO BY STATUTE
S. 1921 proposes to grant item-veto power to the President
by statute. Section (a) of the bill states:
The President may disapprove any item of
appropriation in any Act or joint resolu-
tion, except any item of appropriation for
the legislative branch or the judicial
branch of the Government.
Section (b) provides that when the President signs a bill, any
items of appropriation not disapproved shall become law and that
the President shall return any disapproved items to the House in
which the act or joint resolution containing such item originated.
Section (c) permits Congress to reconsider any disapproved item
of appropriation in the same manner as prescribed under Art. I,
$ 7 of the Constitution for reconsideration of vetoed bills.
Any statutory attempt to give item-veto power to the Presi-
dent would be contrary to the provision in the Constitution
governing the veto power of the President. Art. I, S 7, cl. 2,
states in pertinent part:
Every Bill which shall have passed the
House of Representatives and the Senate,
shall, before it become 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.
The Veto Clause seems to give the President only two options:
he may either sign the bill or return it with his objections.
Thus, the language of the Constitution, on its face, does not
seem to permit an item veto.
-3-
This conclusion is confirmed by the actual practice of
United States Presidents under the Veto Clause. No President
has ever attempted to exercise an item veto. To the contrary,
many Presidents have expressly considered the question and
concluded that the President is without item-veto power. In
1793, George Washington stated that he had signed many bills
with which his judgment was at variance, but felt compelled
to do so because "from the nature of the Constitution, I must
approve all the parts of a Bill, or reject it in toto. 5/
President Grant, while urging the adoption of a constitutional
amendment to authorize an item veto, recognized the absence
of such power under the Constitution. 6/ William Howard Taft
stated simply that the President "has no power to veto parts
of the bill and allow the rest to become a law. He must
accept it or reject it 7/ This Department has
consistently taken a similar position with respect to the
meaning of the Veto Clause.
Thus, on the basis of the language of the Constitution
and the uniform practice over the last 200 years, it appears
that the Constitution does not grant to the President item-
veto power. Furthermore, the Supreme Court has indicated
recently that Congress may not alter by legislation the veto
provisions of the Constitution. Immigration and Naturalization
Service V. Chadha, 103 S. Ct. 2764 (1983). As the Court
noted, "[e]xplicit and unambiguous provisions of the Consti-
tution prescribe and define the respective functions of the
Congress and of the Executive in the legislative process.
These provisions of Art. I are integral parts of the constitu-
tional design for the separation of powers." 103 S. Ct. at
2787. Thus, legislation purporting to give the President
an item veto would be an unconstitutional attempt to alter
directly the President's veto power.
5/ 33 Writings of George Washington 96 (1940).
6/ See VII J. Richardson, Messages and Papers of the President
242 (1898).
7/ W. Taft, Chief Magistrate 14 (1916).
-4-
III. AN ALTERNATIVE STATUTORY APPROACH
That Congress may not directly grant an item veto by
statute does not mean, however, that it may not accomplish
substantially the same result by another method. The under-
lying purpose of an item veto would be to give the President
some authority to disapprove individual items of appropriation.
It is possible to grant the President such authority without
giving him a veto over individual items in an appropriations
bill. For example, Congress could adopt a statute that would
provide the President with general authority not to expend
any item of appropriation that he determined to be contrary
to the national interest. Because the President's obligation
to expend appropriated funds is, in the first instance, a
question of statutory interpretation, such a clear direction
from Congress would be a constitutional method for providing
the President with some authority in this area. Cf. Train V.
City of New York, 420 U.S. 35 (1975).
This authority, of course, would be circumscribed by
Congress's explicit power to override by plenary legislative
action any Presidential decision not to expend appropriated
funds. For example, Congress could require that the President
report any decision not to expend an individual item of
appropriation within 30 days after making such a decision.
The statute could then provide that Congress would have the
opportunity to pass a new bill to reinstate the item of
appropriation. At that point, the President could be required
either to sign the new bill and expend the appropriated funds or
to veto the new bill, at which point Congress would have the
opportunity to override the President's veto. This statutory
framework would have an effect very similar to the grant of
an item veto. We believe that this type of statute clearly
would be constitutional and is a much preferable method for
granting item-veto power to the President.
-5-
IV. AN ITEM-VETO CONSTITUTIONAL AMENDMENT
Because we believe that the item veto is a necessary addition
to the appropriations process, the proposed constitutional amend-
ment remains as an alternative approach that we would support.
Given the simplicity and ease of adopting a statute such as the
one that we have outlined above, however, we do not believe that
a constitutional amendment is the most efficient method for accom-
plishing the desired goal at this time. Therefore, we would urge
that Congress proceed to develop a statutory proposal along the
lines we have outlined.
The Office of Management and Budget has advised this Depart-
ment that there is no objection to the submission of this report
from the standpoint of the Administration's program.
Sincerely,
Robert A. McConnell
Assistant Attorney General
Office of Legislative Affairs
-6-
THE WHITE HOUSE
WASHINGTON
June 15, 1984
MEMORANDUM FOR M. B. OGLESBY, JR.
ASSISTANT TO THE PRESIDENT
FOR LEGISLATIVE AFFAIRS
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Inquiry From Assistant Attorney General
Robert McConnell on Line-Item Veto Issue
Assistant Attorney General Robert A. McConnell has inquired
of both of us concerning an apparent reluctance at the White
House to support a suggestion by the Justice Department that
would go far to according the President line-item veto
authority, without the necessity of a constitutional
amendment. On January 12, 1984, Justice sought OMB
clearance of a draft report on S.J. Res. 178, a proposed
constitutional amendment granting line-item veto authority
to the President, and S. 1921, a bill purporting to do the
same. The Justice report concluded that the bill would be
unconstitutional, and that it would be difficult to obtain
the constitutional amendment. The Justice report suggested
a third alternative -- a bill authorizing the President to
refuse to spend all or part of an individual item of
appropriation -- that would closely approximate a line-item
veto in practice.
On January 23, 1984, I sent a memorandum to Messrs. Deaver,
Darman, and Elliott, recommending support for the Justice
alternative, and proposing language to be included in the
State of the Union address outlining the Justice approach.
At the same time I advised OMB that the proposed Justice
report should be returned to Justice for final revision in
light of the final text of the State of the Union Address.
As delivered, the State of the Union Address noted that the
grant of veto power "would be most effective if done by a
constitutional amendment." This language in no way fore-
closes support for the Justice option either as an interim
approach pending adoption of a constitutional amendment, or
an alternative if such an amendment is considered not
feasible. I have no legal objection to support for the
Justice option.
If you concur, with whatever internal clearances you
suggest, I will so advise Justice. Please advise.
Thank you.
FFF:JGR:aea 6/15/84
CC: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
June 14, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
922
SUBJECT:
Inquiry From Assistant Attorney General
Robert McConnell on Line-Item Veto Issue
Bob McConnell has sent identical memoranda to B. Oglesby and
you, asking why the White House has resisted the Justice
Department proposal to support legislation giving the
President the power not to spend particular items of appro-
priation. A statute according the President such power
would achieve the same result as a line-item veto: if the
President were to decide not to spend a particular item,
Congress could pass a law requiring him to do SO. The
President could then veto that specific bill, and Congress
could then try to override the veto.
Justice suggested this approach in a letter it sent for
clearance to OMB on January 12, 1984 (Tab A). The letter
presented the Department's views on S.J. Res. 178, a pro-
posed constitutional amendment granting line-item veto
power, and S. 1921, a statute purporting to do the same
directly. The proposed report concluded that S. 1921 would
be unconstitutional, that a constitutional amendment would
be difficult to achieve, and that a third approach - that
outlined above -- was superior. In our comments to OMB on
the Justice report (Tab B), we agreed with OMB that it
should not be cleared "at this point" in light of the plan
for the President to request line-item veto authority in the
State of the Union Address. We recommended that the report
be returned to Justice for revision in light of that address.
Meanwhile, we took prompt action to ensure that those
working on the address were fully aware of the Justice
proposal. At your request, I prepared and you sent a
memorandum to Deaver, Darman, and Elliott agreeing with the
Justice recommendation and attaching suggested language
outlining the Justice option (Tab C). Deaver, Darman, and
Elliott did not adopt our suggested language. The State of
the Union Address simply noted that the grant of line-item
veto power "would be most effective if done by constitutional
amendment," language which does not preclude support for
Justice's option.
- 2 -
I recommend a memorandum to Oglesby, agreeing with McConnell
that the Administration should support the Justice option.
There is no inconsistency with doing so and simultaneously
seeking a constitutional amendment. As we recommended back
in January, however, the proposed Justice report on S.J.
Res. 178 and S. 1921 will have to be revised in light of the
State of the Union Address. The revision would simply
involve a recognition that a constitutional amendment would
be the "most effective" approach, although the report could
go on to support the Justice option as desirable if a
constitutional amendment is not feasible, or as an interim
approach during the lengthy amendment process.
Attachment
THE WHITE HOUSE
WASHINGTON
June 15, 1984
MEMORANDUM FOR M. B. OGLESBY, JR.
ASSISTANT TO THE PRESIDENT
FOR LEGISLATIVE AFFAIRS
FROM:
FRED F. FIELDINGOrig. signed by FFF
COUNSEL TO THE PRESIDENT
SUBJECT:
Inquiry From Assistant Attorney General
Robert McConnell on Line-Item Veto Issue
Assistant Attorney General Robert A. McConnell has inquired
of both of us concerning an apparent reluctance at the White
House to support a suggestion by the Justice Department that
would go far to according the President line-item veto
authority, without the necessity of a constitutional
amendment. On January 12, 1984, Justice sought OMB
clearance of a draft report on S.J. Res. 178, a proposed
constitutional amendment granting line-item veto authority
to the President, and S. 1921, a bill purporting to do the
same. The Justice report concluded that the bill would be
unconstitutional, and that it would be difficult to obtain
the constitutional amendment. The Justice report suggested
a third alternative -- a bill authorizing the President to
refuse to spend all or part of an individual item of
appropriation -- that would closely approximate a line-item
veto in practice.
On January 23, 1984, I sent a memorandum to Messrs. Deaver,
Darman, and Elliott, recommending support for the Justice
alternative, and proposing language to be included in the
State of the Union address outlining the Justice approach.
At the same time I advised OMB that the proposed Justice
report should be returned to Justice for final revision in
light of the final text of the State of the Union Address.
As delivered, the State of the Union Address noted that the
grant of veto power "would be most effective if done by a
constitutional amendment.' This language in no way fore-
closes support for the Justice option either as an interim
approach pending adoption of a constitutional amendment, or
an alternative if such an amendment is considered not
feasible. I have no legal objection to support for the
Justice option.
If you concur, with whatever internal clearances you
suggest, I will so advise Justice. Please advise.
Thank you.
FFF:JGR:aea 6/15/84
CC: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
June 14, 1984
MEMORANDUM FOR M. B. OGLESBY, JR.
ASSISTANT TO THE PRESIDENT
FOR LEGISLATIVE AFFAIRS
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Inquiry From Assistant Attorney General
Robert McConnell on Line-Item Veto Issue
Assistant Attorney General Robert A. McConnell has inquired
concerning apparent reluctance at the White House to support
a suggestion by the Justice Department that would go far to
according the President line-item veto authority, without
the necessity of a constitutional amendment. On January 12,
1984, Justice sought OMB clearance of a draft report on S.J.
Res. 178, a proposed constitutional amendment granting
line-item veto authority to the President, and S. 1921, a
bill purporting to do the same. The Justice report concluded
that the bill would be unconstitutional, and that it would
be difficult to obtain the constitutional amendment. The
Justice report suggested a third alternative -- a bill
authorizing the President to refuse to spend all or part of
an individual item of appropriation -- that would closely
approximate a line-item veto in practice.
On January 23, 1984, I sent a memorandum to Messrs. Deaver,
Darman, and Elliott, recommending support for the Justice
alternative, and proposing language to be included in the
State of the Union address outlining the Justice approach.
At the same time I advised OMB that the proposed Justice
report should be returned to Justice for final revision in
light of the final text of the State of the Union Address.
As delivered, the State of the Union Address noted that the
grant of veto power "would be most effective if done by a
constitutional amendment. This language in no way fore-
closes support for the Justice option either as an interim
approach pending adoption of a constitutional amendment, or
an alternative if such an amendment is considered not
feasible. I have no legal objection to support for the
Justice option.
cc: Robert A. McConnell
Assistant Attorney General
FFF:JGR:aea 6/14/84
bcc: FFFielding/JGRoberts/Subj/Chron
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U.S. Department of Justice
Office of Legislative and Intergovernmental Affairs
Office of the Assistant Attorney General
Washington, D.C. 20530
June 11, 1984
MEMORANDUM
236675 w
TO
:
Fred Fielding
Counsel to the President
FROM:
Robert
McConnell
Assistant
Attorney General
RE : Line Item Veto
The subject of Presidential line item veto has been debated
throughout this Congress and the President has announced his
support for a constitutional amendment providing this power.
Given the time and the effort needed to secure adoption of
a constitutional amendment, it has been a matter of some interest
to me that no real effort has been made to enact legislation grant-
ing the President power to refuse to spend all or part of a parti-
cular item of appropriation. On several occasions, I have asked
members of the White House staff why we have acted only to urge
the adoption of a constitutional amendment and not to enact care-
fully tailored legislation. No one has seemed to be certain why
the singular approach of a constitutional amendment has been
followed. However, on several occasions I have been given the
impression that White House personnel believes there are consti-
tutional restraints on any such legislation.
Enclosed please find a letter that we sent to the Office of
Management and Budget on January 12 of this year seeking clearance
for this Department's views on a proposed constitutional amendment
(S. J. Res. 178) and a bill (S. 1921) to allow the President to
veto items of appropriation. As you will see, this Department
has suggested a statute which would be an effective method for
implementing the concept of the item veto and would avoid the
need to amend the Constitution. To date, OMB has not commented
upon or cleared our letter. This inaction seems to me to be
inconsistent with our Administration's support of the concept that
the President should have the power to veto individual items of
appropriation. I would greatly appreciate any information that
you can give me explaining the apparent determination not_ to
seek a legislative solution to this matter.
- 2 -
Time is of some concern to me as we now have outstanding
correspondence from Senator Mattingly who has requested the
Department's view on the constitutionality of providing line item
veto by legislation.
Enclosure
&
U.S. Department of Justice
Office of Legislative Affairs
Office of the Assistant Attorney General
TO BUDGET FOR CLEARANCE
Chairman Committee Honorable Strom on the Thurmond Judiciary NOT SENT TO CONGRESS
United States Senate
Washington, D. C. 20510
Re: Constitutional Amendment (S.J. Res. 178) and Bill
(S. 1921) to Allow the President to Veto Items of
Appropriation
Dear Mr. Chairman:
This responds to your request for the views of the
Department of Justice on the above-referenced bill and
proposed constitutional amendment, both of which would
allow the President to veto items of appropriation. The
Administration wholeheartedly supports the concept that the
President should have the power to veto individual items of
appropriation. This item veto power has long been urged by
Presidents of both parties and is now essential to aid in
controlling spending and keeping the federal budget under
control.
As a practical matter, however, we do not believe that
either the bill or the proposed constitutional amendment is
the best way to accomplish this important goal. Although
a constitutional amendment would be more permanent, it would
involve considerable time and concerted effort to accomplish.
On the other hand, the bill, as currently drafted, is inconsis-
tent with the Constitution, which permits the President to
veto only an entire bill and not individual parts thereof.
Nevertheless, we feel that the same result could be obtained
by a statutory provision that would grant the President power to
refuse to spend all or part of a particular item of appropriation.
As described more fully below, such a statute could include pro-
visions for congressional override of the President's decision
not to expend funds. We believe that such a statute would be an
effective method for implementing the concept of the item veto
and would avoid the need to amend the Constitution.
cc: DAG, OLC, JMD
I. THE NEED FOR ITEM-VETO POWER
Since the Presidency of George Washington, Presidents
have recognized the need for some form of item veto. Presi-
dents have frequently found it impossible, because of Con-
gress's practice of aggregating many different items of
appropriation into one bill, to make effective use of the
constitutionally established veto power. Presidents have
often found themselves in the position of having to choose
between approving an entire bill or vetoing it entirely,
including necessary appropriations. This Hobson's choice
has seriously weakened the Presidential veto power and
effectively limited the role the President can play in
reviewing appropriations legislation.
Because of this problem, many Presidents have urged that
the Presidency be provided with power to veto severable items
within a bill. The calls for an item veto became particularly
strong after the Civil War. The Confederate States of America
had adopted an item-veto provision in their Constitution 1/,
and after the war many individual states began to adopt
similar item-veto provisions for their own constitutions.
During that period, Presidents Grant and Arthur asked for the
adoption of a constitutional amendment that would give the
President item-veto power. 2/ In this century, Presidents of
both parties have urged that the President be given item-veto
power. In 1938, President Roosevelt supported the item veto
and argued that it "has been considered a consistent corollary
of the power of the legislature to withhold approval of items
in the budget of the Executive; and the system meets with
general approval in the many states which have adopted it."
Similarly, in 1957, President Eisenhower asked Congress to
give him the power to veto individual items in appropriation
bills.
1/ Constitution of the CSA, Art. I, $ 7.
2/ See VII J. Richardson, Messages and Papers of the Presidents
242 (1898), VIII Id. 138.
3/ See E. Corwin, The President, Office and Powers, 1787-1957,
474 n. 55 (1957).
4/ Id. at 475. Neither President Roosevelt nor President
Eisenhower indicated a preference as to how the grant of item-
veto power should be accomplished. See id.; New York Times,
May 25, 1957 at 1, 8.
-2-
The item veto is not a novel, untested concept that would
significantly alter the structure of government. Over 40 states
have provided their governors with the right to veto items
of appropriation. These provisions have operated successfully
in many states for over a hundred years. We believe that the
President should have the same effective veto power, with the
reserved legislative right to override, that is possessed by
the vast majority of the nation's governors.
II. S. 1921 - ITEM VETO BY STATUTE
S. 1921 proposes to grant item-veto power to the President
by statute. Section (a) of the bill states:
The President may disapprove any item of
appropriation in any Act or joint resolu-
tion, except any item of appropriation for
the legislative branch or the judicial
branch of the Government.
Section (b) provides that when the President signs a bill, any
items of appropriation not disapproved shall become law and that
the President shall return any disapproved items to the House in
which the act or joint resolution containing such item originated.
Section (c) permits Congress to reconsider any disapproved item
of appropriation in the same manner as prescribed under Art. I,
$ 7 of the Constitution for reconsideration of vetoed bills.
Any statutory attempt to give item-veto power to the Presi-
dent would be contrary to the provision in the Constitution
governing the veto power of the President. Art. I, S 7, cl. 2,
states in pertinent part:
Every Bill which shall have passed the
House of Representatives and the Senate,
shall, before it become 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.
The Veto Clause seems to give the President only two options:
he may either sign the bill or return it with his objections.
Thus, the language of the Constitution, on its face, does not
seem to permit an item veto.
-3-
This conclusion is confirmed by the actual practice of
United States Presidents under the Veto Clause. No President
has ever attempted to exercise an item veto. To the contrary,
many Presidents have expressly considered the question and
concluded that the President is without item-veto power. In
1793, George Washington stated that he had signed many bills
with which his judgment was at variance, but felt compelled
to do so because "from the nature of the Constitution, I must
approve all the parts of a Bill, or reject it in toto. 5/
President Grant, while urging the adoption of a constitutional
amendment to authorize an item veto, recognized the absence
of such power under the Constitution. 6/ William Howard Taft
stated simply that the President "has no power to veto parts
of the bill and allow the rest to become a law. He must
accept it or reject it 7/ This Department has
consistently taken a similar position with respect to the
meaning of the Veto Clause.
Thus, on the basis of the language of the Constitution
and the uniform practice over the last 200 years, it appears
that the Constitution does not grant to the President item-
veto power. Furthermore, the Supreme Court has indicated
recently that Congress may not alter by legislation the veto
provisions of the Constitution. Immigration and Naturalization
Service v. Chadha, 103 S. Ct. 2764 (1983). As the Court
noted, "[e]xplicit and unambiguous provisions of the Consti-
tution prescribe and define the respective functions of the
Congress and of the Executive in the legislative process.
These provisions of Art. I are integral parts of the constitu-
tional design for the separation of powers." 103 S. Ct. at
2787. Thus, legislation purporting to give the President
an item veto would be an unconstitutional attempt to alter
directly the President's veto power.
5/ 33 Writings of George Washington 96 (1940).
6/ See VII J. Richardson, Messages and Papers of the President
242 (1898).
7/ W. Taft, Chief Magistrate 14 (1916).
-4-
III. AN ALTERNATIVE STATUTORY APPROACH
That Congress may not directly grant an item veto by
statute does not mean, however, that it may not accomplish
substantially the same result by another method. The under-
lying purpose of an item veto would be to give the President
some authority to disapprove individual items of appropriation.
It is possible to grant the President such authority without
giving him a veto over individual items in an appropriations
bill. For example, Congress could adopt a statute that would
provide the President with general authority not to expend
any item of appropriation that he determined to be contrary
to the national interest. Because the President's obligation
to expend appropriated funds is, in the first instance, a
question of statutory interpretation, such a clear direction
from Congress would be a constitutional method for providing
the President with some authority in this area. Cf. Train V.
City of New York, 420 U.S. 35 (1975).
This authority, of course, would be circumscribed by
Congress's explicit power to override by plenary legislative
action any Presidential decision not to expend appropriated
funds. For example, Congress could require that the President
report any decision not to expend an individual item of
appropriation within 30 days after making such a decision.
The statute could then provide that Congress would have the
opportunity to pass a new bill to reinstate the item of
appropriation. At that point, the President could be required
either to sign the new bill and expend the appropriated funds or
to veto the new bill, at which point Congress would have the
opportunity to override the President's veto. This statutory
framework would have an effect very similar to the grant of
an item veto. We believe that this type of statute clearly
would be constitutional and is a much preferable method for
granting item-veto power to the President.
-5-
IV. AN ITEM-VETO CONSTITUTIONAL AMENDMENT
Because we believe that the item veto is a necessary addition
to the appropriations process, the proposed constitutional amend-
ment remains as an alternative approach that we would support.
Given the simplicity and ease of adopting a statute such as the
one that we have outlined above, however, we do not believe that
a constitutional amendment is the most efficient method for accom-
plishing the desired goal at this time. Therefore, we would urge
that Congress proceed to develop a statutory proposal along the
lines we have outlined.
The Office of Management and Budget has advised this Depart-
ment that there is no objection to the submission of this report
from the standpoint of the Administration's program.
Sincerely,
Robert A. McConnell
Assistant Attorney General
Office of Legislative Affairs
-6-
THE WHITE HOUSE
WASHINGTON
January 24, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Presidential Remarks: Meeting With
Republican Members of the House
Friday, January 27, 1984
Richard Darman has asked that comments on the above-
referenced remarks be sent directly to Ben Elliott by
1:00 p.m. today. The brief remarks review the progress of
the economic recovery and our improved posture in
international affairs. The President thanks the House
Republicans for their efforts, and pledges to do everything
within his power to increase their numbers. He also states
that "we must pass the line-item veto." These remarks will
be delivered after the State of the Union, and we have
presented our views on what the State of the Union should
say about the vehicle for obtaining line-item veto
authority. I think the phrase "we must pass the line-item
veto" is broad enough to embrace our suggested vehicle. I
have no objection.
Attachment
THE WHITE HOUSE
WASHINGTON
January 24, 1984
MEMORANDUM FOR BEN ELLIOTT
DEPUTY ASSISTANT TO THE PRESIDENT
DIRECTOR, PRESIDENTIAL SPEECHWRITING OFFICE
FROM:
FRED F. FIELDING Orig. signed by FFF
COUNSEL TO THE PRESIDENT
SUBJECT:
Presidential Remarks: Meeting With
Republican Members of the House
Friday, January 27, 1984
Counsel's Office has reviewed the above-referenced remarks,
and finds no objection to them from a legal perspective.
CC: Richard G. Darman
Assistant to the President
FFF:JGR:aea 1/24/84
bcc: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
January 24, 1984
MEMORANDUM FOR BEN ELLIOTT
DEPUTY ASSISTANT TO THE PRESIDENT
DIRECTOR, PRESIDENTIAL SPEECHWRITING OFFICE
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Presidential Remarks: Meeting With
Republican Members of the House
Friday, January 27, 1984
Counsel's Office has reviewed the above-referenced remarks,
and finds no objection to them from a legal perspective.
CC: Richard G. Darman
Assistant to the President
FFF:JGR:aea 1/24/84
bcc: FFFielding/JGRoberts/Subj/Chron
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5/81
Document No.
WHITE HOUSE STAFFING MEMORANDUM
DATE: 1/23/84
ACTION/CONCURRENCE/COMMENT DUE BY: 1:00 p.m. TUESDAY, 1/24/84
SUBJECT: PRESIDENTIAL REMARKS: MEETING WITH REPUBLICAN MEMBERS OF THE HOUSE
FRIDAY, JANUARY 27, 1984
ACTION FYI
ACTION FYI
VICE PRESIDENT
McFARLANE
MEESE
McMANUS
BAKER
MURPHY
DEAVER
OGLESBY
STOCKMAN
ROGERS
DARMAN
P
SS SPEAKES
FELDSTEIN
SVAHN
FIELDING
VERSTANDIG
FULLER
WHITTLESEY
HERRINGTON
HENKEL
HICKEY
ELLIOTT
JENKINS
FISCHER
TUTWILER
REMARKS:
Please forward any edits/comments directly to Ben Elliott in room 100
by 1:00 p.m. TOMORROW, TUESDAY, January 24, 1984, with an information
copy to my office.
Thank you.
RESPONSE:
Richard G. Darman
Assistant to the President
Ext. 2702
ReceivedSS
(Robinson/BE)
January 23, 1984
1984 JAN 23 PM 6: 36
6:30 p.m.
PRESIDENTIAL REMARKS: MEETING WITH REPUBLICAN MEMBERS
OF THE HOUSE
FRIDAY, JANUARY 27, 1984
It's a pleasure for me to be here this afternoon -- as one
who knows firsthand the good work you've been doing on the Hill.
I want to share with you two quotations I came across
recently in my unofficial reading. Both of them come from the
same source -- a man who was a celebrated speaker, journalist,
soldier, historian, and statesman. His name was Winston
Churchill. Some say that if he wanted to, he could even have
been a great character actor.
Churchill said that people who are not prepared to "do
unpopular things" and "defy clamor" are not fit to govern "in
times of stress." He also said when he visited this country that
Americans "did not cross the ocean, cross the mountains, and
cross the prairies because they are made of cotton candy."
Well, I believe Sir Winston had a point.
Think back to the opening days of this Administration. Many
observers predicted that we could not work together, that the
economic and social problems that had piled up over 50 years were
insurmountable.
We've proved the critics wrong. And we did it by working
together, building a bipartisan coalition and daring to chart a
new course.
Inflation has plummeted to about 3 percent during the last
year -- the lowest rate in a decade-and-a-half. The prime
interest rate is nearly half what it was when we took office.
Page 2
Factory orders, retail sales, and housing starts are up; the
stock market has come back to life; real wages are rising; and
America is leading the world in a technological revolution even
more far-reaching and profound than the Industrial Revolution of
a century ago.
Unemployment is dropping at the fastest rate in more than
30 years. Last year alone more than 4 million Americans found
jobs, and today some 103 million Americans are at work -- more
than ever before in our history.
In the military, morale has soared as we've begun giving the
men and women in our Armed Forces good pay, good equipment, and
the respect they deserve. In foreign policy, the world knows
once again what America stands for -- the freedom of mankind.
From Central America, to Africa, to the Middle East, we're
working to support democracy and promote peace.
In Lebanon, the peace process has been slow and painful, but
we've made genuine progress. In Europe, the NATO Alliance has
held firm. In our dealings with the Soviets, by strengthening
our defenses and showing the world our willingness to negotiate,
we've laid the foundations for a lasting world peace. And on an
island in the Caribbean, we set a nation free.
There's a story -- a true story -- about Grenada that I must
tell you. One of our soldiers was involved in the liberation of
the island, and he noticed that every single press account he
read mentioned that Grenada is the world's leading producer of
nutmeg -- every account. He figured this must be a code for
something, and in a letter home he broke that code. Number one:
Page 3
Grenada is the world's leading producer of nutmeg. Number two:
The Soviets and Cubans wanted Grenada. Number three: You have
to have nutmeg to have eggnog. Number four: You need eggnog to
have Christmas. Number five: The Soviets and Cubans were trying
to steal Christmas. And number six: We stopped them.
We're changing the course of American history -- and we're
doing it together. Believe me, there's no better place to sit
than the Oval Office if you want to see the importance of House
Republicans. In 1984 nothing matters more than increasing your
numbers, and I pledge to do all within my power to see that we do
just that.
In the meantime, we have our work cut out for us. We must
get on with the job of bringing the budget under still better
control. To contain spending, we must pass the line-item veto.
We must bring inflation and interest rates down still further
without loading new burdens on the back of the American taxpayer.
We must maintain a strong defense and face our world
responsibilities squarely. And we must continue to return
resources and responsibilities to the American people that will
mean more savings, more freedom, more economic opportunity and
more jobs for all Americans.
That's my policy. I believe it's a good one -- for our
party, but far more important, for America. Let us strive
together to make it work.
Thank you, and God bless you.
THE WHITE HOUSE
WASHINGTON
May 21, 1984
MEMORANDUM FOR GREGORY JONES
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
JOHN G. ROBERTSOR
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
Department of the Treasury
Statement on Line-Item Veto
Counsel's Office has reviewed the above-referenced
testimony, and finds no objection to it from a legal
perspective.
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5/81
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
May 16, 1984
SPECIAL
LEGISLATIVE REFERRAL MEMORANDUM
TO:
Legislative Liaison Officer
John
Department of Justice
SUBJECT:
Department of the Treasury statement on line-item
veto.
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB Circular
A-19.
A response to this request for your views is needed no later than
May 21, 1984
Questions should be referred to Gregory Jones (395-3856), the
legislative analyst in this office.
James UCM
Assistant Director for
Legislative Reference
Enclosures
CC: Fred Fielding
Pete Modlin
Roger Greene
Mike Uhlmann
Adrian Curtis
Mike Horowitz
Statement of the Honorable
Donald T. Regan
Secretary of the Treasury
on Proposals for a Line-Item Veto
Submitted for the Record
Subcommittee on the Constitution
of the
Senate Committee on the Judiciary
April 1984
I am pleased to have this opportunity to offer the views of
the Administration on proposals for a line-item veto. As
President Reagan stated in his State of the Union Address in
January, this Administration strongly favors a constitutional
amendment to give the President line-item veto authority. We
believe that such authority would be a valuable tool for
controlling excessive federal spending and reducing budget
deficits. We urge this Committee to move forward expeditiously
on a line-item veto amendment.
THE NEED FOR A LINE-ITEM VETO
The case for a line-item veto is, in our view, compelling.
- 2 -
Consistency With the Constitution
A line-item veto would fit well with our constitutional
framework. As part of our system of checks and balances, the
Framers gave to the President the power to veto laws that he
believes to be unwise, subject to a Congressional power to
override his veto by a two-thirds vote. The Presidential veto
serves as a vehicle by which the Executive brings a unique
institutional perspective to the process of enacting laws -- that
of the official assigned to administer those laws. The Framers
believed, in our judgment correctly, that the special experience
and perspective that accompany the Presidency warrant granting
the individual holding that office the power to disapprove
proposed legislation. Although the Framers' philosphy might be
criticized on the ground that it makes the process enacting laws
more cumbersome, we believe that they were correct in believing
that this process results in more careful decision-
making and wiser laws.
The absence of line-item veto authority from the
Constitution does not reflect a decision by the Framers to deny
that power to the President; the Framers simply never considered
the issue. Undoubtedly, they anticipated that Congress would
provide funds by passing separate appropriations bills for
discrete programs or activities, rather than omnibus bills
encompassing a variety of related and unrelated matters. Until
about the time of the Civil War, Congressional practice was in
- 3 -
accordance with this expectation. Presidents were thus able to
sign or veto appropriations bills based upon the merits of the
programs being funded and the need for the particular amounts.
Since the Civil War, however, Congress has increasingly
relied on appropriations bills that cover. a variety of programs.
This habit has made it more difficult for the President to carry
out the function the Framers intended in granting him veto
authority, for he must judge a particular appropriation not on
its own merits, but as part of a large package of often unrelated
items. Under these circumstances, the President's veto must
necessarily be used in a more limited way than the Framers
probably imagined, and many wasteful appropriations slip by under
the protective wing of essential or politically popular programs.
In response to similar conditions at the state level, the
constitutions of 43 states grant the governor some form of
line-item veto authority. The use of these powers -- which vary
in scope from state to state -- has not drawn opposition, and I
am aware of no serious effort to limit or eliminate a governor's
line-item veto authority. Clearly, the state experience is that
a line-item veto appropriately balances the powers of the
executive and legislative branches, and accords with each state's
constitutional separation-of-powers system.
The state experience suggests that a constitutional
amendment granting the President line-item veto authority would
- 4 -
work well in a federal context, filling a constitutional lacuna
by giving effect to the principle that the President should pass
judgment on the wisdom of legislation before it becomes law.
Budgetary Concerns
Presidents have sought line-item veto authority since
President Grant. Today, however, that need has become urgent.
In the last decade, federal spending surged out of control.
Total Federal spending tripled during the period 1969-1980 and
grew by nearly 17.5 percent in the year before this Adminis-
tration took office. These spending increases were financed in
large part by automatic tax increases produced by inflation --
popularly known as "bracket creep." The result of this
inflation-tax windfall was that the tax burden on the average
American increased dramatically during this period without
Congress having to vote to increase taxes. In the Economic
Recovery Tax Act of 1981, this Administration, working with the
Congress, put a stop to this process by enacting legislation that
reduced marginal tax rates by 25 percent during the period 1981
to 1983, and indexed tax rates starting in 1985.
On the spending side, we have also jointly made considerable
progress by cutting back the rate of growth of federal spending.
However, more needs to be done; budget deficits remain a problem
and must be reduced.
- 5 -
Some now call for reducing deficits by reversing the tax
reforms of 1981, and by increasing the taxes paid by the average
American. The Administration, however, opposes "solving" the
deficit problem by raising taxes, an action that would remove
resources from the productive private sector, stifle incentives
and economic growth, and ultimately increase deficits. Budget
deficits must not be reduced by putting our economy in the
strait-jacket of excessive taxation. Instead, we must force
government to live within the means of the people.
Moreover, proposals to increase taxes are grounded on a
faulty assumption -- that federal deficits are too high because
federal taxes are too low. The roots of the deficits problem,
however, are in excessive federal spending. ERTA's 25% reduction
in marginal tax rates offset the increases in the tax burden
brought about by the combination of bracket creep and higher
payroll taxes during the period 1981-83. But it barely put a
dent in the increases in the tax burden that occurred between
1965 and 1980. And indexing only keeps the future burden of the
federal income tax from rising because of inflation; it does not,
as the proponents of tax increases seem to believe, cut taxes.
Thus, the Administration believes that the solution to the
deficit problem must come primarily from the expenditure side and
the results of economic growth. As the Grace Commission report
showed, there is plenty of fat in the federal government. The
time has come to cut unnecessary and wasteful expenditures. By
- 6 -
controlling federal spending and strengthening economic growth we
can solve the deficit problem.
A crucial tool in controlling federal expenditures is the
President's power to veto appropriation bills he believes to be
excessive. As has already been noted, however, under current
law, when a President is presented with an excessive
appropriations bill, he is often faced with two undesirable
choices: signing a bill that contains wasteful spending or
vetoing a bill that contains urgently needed appropriations.
Unfortunately, special interests have been successful in
taking advantage of this phenomenon by attaching wasteful and
unnecessary spending to essential appropriations bills, knowing
that the President will be reluctant to veto an entire bill on
account of such-provisions. = This tactic has become even more DAB
tempting to Congress in recent years, as the failure to enact
individual appropriations bills has made necessary the passage of
continuing resolutions. For the President, vetoing a continuing
resolution generally carries with it a serious disadvantage in
addition to those that accompany vetoing an appropriations bill
that encompasses a variety of subjects -- doing so can cause
large portions of the government to run out of spending
authority. Even if the President does veto a continuing
resolution -- as President Reagan has done -- there is never time
for him to reach agreement with Congress on its "minor"
provisions, which can be quite significant in dollar terms.
- 7 -
Line-item veto authority would provide the President with a
much-needed option between vetoing or signing an entire bill: he
could veto the appropriation items he considers unreasonable,
sending them back to Congress for possible override, and he could
approve the remainder of the bill, on which both he and Congress
agree. No longer would special interest programs or "pork
barrel" projects be able to escape a Presidential judgment.
ARGUMENTS AGAINST A LINE-ITEM VETO
A number of arguments have been made against a line-item
veto amendment. We find none convincing, but two deserve
comment.
Not a Panacea
Ironically, one of the principal arguments that has been
advanced against a line-item veto constitutional amendment is
that such an amendment would not solve the federal deficit
problem. Opponents of a line-item veto amendment point out that
the President could not use it to cut permanently appropriated
funds (so-called uncontrollable spending), which amount to
approximately 55 percent of total federal spending, or to cut
appropriations committed from previous years, which amount to
approximately 20 percent of federal spending. Thus, for
example, the House Budget Committee has asserted that of the $925
billion it estimated would be spent in Fiscal 1985, only $86
- 8 -
billion of "non-defense discretionary spending" could
realistically be said to be subject to the line-item veto.
The Administration agrees that, by itself, the grant of
line-item veto authority to the President would not cause federal
budget deficits to disappear. Indeed it is because we agree that
the line-item veto is not in and of itself enough that we have
supported and continued to support a balanced-budget amendment.
Line-item veto authority would, however, be a valuable tool
for reducing federal expenditures. It is a tool that would be
targeted at the most wasteful and unnecessary programs: the ones
that currently must be attached to urgent legislation in order to
avoid particularized scrutiny that would certainly lead to a
veto. The mere fact that the President had line-item veto
authority should prevent some wasteful proposals from passing the
Congress. Most others would be unable to survive a Presidential
veto.
Thus, although a line-item veto amendment would not be a
panacea for excessive spending, its adoption would be an
important step toward bringing spending under control.
Invasion of Congressional Prerogatives
Another argument against the line-item veto is that granting
the President such authority would invade legitimate
- 9 -
Congressional prerogatives or would fundamentally reorder the
division of powers between the executive and legislative branches
in a way inconsistent with our Constitution. We disagree.
Under a line-item veto, Congress would retain its authority
to determine how specific it wishes to be in appropriating
particular amounts for particular programs. The only difference
brought about by a line-item veto would be that each such
appropriation would become subject to Presidential review.
Congress can hardly be said to have a legitimate interest -- let
alone a prerogative -- in preventing the President from judging
each spending program that it wishes to fund on its individual
merits.
Nor would adoption of a line-item veto proposal be a
departure from the Framers' scheme for dividing power. It would
simply compensate for the developments outlined earlier that have
undercut the President's veto authority, restoring the balance of
power between the branches that the Framers sought to establish.
Furthermore, the experience of the states belies the claim that
granting the President line-item veto authority would unduly
limit Congress' legislative power.
But even assuming for the sake of argument that a line-item
veto amendment would diminish the current spending powers of
Congress to some degree, the proposal nevertheless seems clearly
warranted. Many students of our system, including many
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Congressmen, have noted that Congress has great difficulty in
limiting spending. Increasingly in recent years, special
interest groups have succeeded in bludgeoning Congress into
spending through a logrolling process in which coalitions of
groups -- none of them strong enough by itself to obtain a
Congressional majority -- work together to achieve the mutually
shared end of dipping into the public purse.
Federal spending cannot be brought under control in these
circumstances; granting the President line-item veto authority
offers one way to do SO. The proposal is narrowly drawn -- only
appropriations bills would be subject to a line-item veto -- and
thus the line-item veto does not increase Presidential power any
more than is necessary to bring Federal spending under control.
STRUCTURING A LINE-ITEM VETO
The Power to Reduce Line-Items
The Administration believes that in order to be most
effective as a tool for controlling spending, a line-item veto
amendment should make clear the President's authority to reduce
particular line-items as well as to eliminate them entirely.
Wasteful spending does not occur solely in the form of programs
that are completely unnecessary; it often comes in the form of
excessive appropriations for deserving programs. The President
should have the power to act against it in either form.
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The Administration recognizes that the power to reduce
expenditures is a broad power, but it is essential to achieve the
ends of the line item veto proposal. The President should not be
(
put to a choice of "zeroing out" a worthwhile program because
Congress has appropriated too much money for its administration.
In those states that allow their governor-to reduce
appropriations the power has been used without adverse
consequences.
Two-thirds VS. Majority Override
Some have suggested that a line-item veto be structured so
as to permit Congress to override vetos of particular line items
or reductions of line items by a less than two-thirds vote. The
Administration believes that allowing an override by a less than
two-thirds vote would be an unjustified departure from the
Framers' design. We oppose departing from that design,
especially because doing so could undermine the amendment's
effectiveness as a means of controlling federal spending.
Amendment VS. Bill
Some proponents of a line-item veto have suggested that it
could be accomplished by legislation. For example, it has been
suggested that Congress declare each line-item in a piece of
appropriations legislation as a separate bill, on the theory that
the President could then veto line-items if that was his desire.
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To be effective, a statutory line-item veto bill would have
to be "binding"; that is, it could not provide that each
line-item in a piece of legislation is a separate bill unless the
legislation provides otherwise. Such a provision, of course,
would allow Congress to exempt line-items from the veto, and
render the statutory line-item veto useless. Even if legislation
were drafted to preclude Congress from exempting line-item from
the veto, however, that legislation would still be subject to
repeal by Congress, and thus would not be as effective as an
amendment.
A statutory line-item veto also raises constitutional
questions. Arguably such legislation would violate the
presentment clause of the Constitution, especially if it were
drafted as a statutory provision binding on Congress.
For these reasons, the Administration believes that a
constitutional amendment would be preferable to a statutory
line-item provision because it would be more effective and would
resolve any ambiguity about the constitutionality of the measure.
CONCLUSION
When he was Governor of California, the President had
line-item veto authority, and used it with great effectiveness in
eliminating wasteful and special interest spending. Indeed, not
one of his vetoes was overridden. The line-item veto fits well
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within our constitutional framework, filling a gap to make
the Framers's intentions more effective. Moreover, it is
needed urgently as a mechanism for bringing federal spending
under control. We urge this Committee and the Congress to
approve a line-item veto amendment.
THE WHITE HOUSE
WASHINGTON
May 9, 1984
MEMORANDUM FOR JOHN ROBERTS
FROM:
BOB GLEASON BO
SUBJECT:
RESOLUTION ON LINE-ITEM VETO
Per our conversation, attached is the resolution on
Presidential line-item veto which will be introduced at a
policy-making meeting of the National Conference of State
Legislatures.
The resolution will be introduced tomorrow (Thursday, May 10),
so if you have any further thoughts please let me know.
Thanks.
NCSL believes that reducing the federal government's deficits
should be a top national priority. It further recognizes that
granting the President line-item veto authority over
Congressional Appropriation might be a valuable fiscal
management tool in achieving this goal. However, as state
legislators we feel that this is an important Constitutional
question, and that the granting of such authority to the
President should be done through an amendment to the
Constitution.
NCSL therefore urges the Congress to adopt an Amendment
granting line-item veto authority to the President and sending
it to the nation's state legislature to vote on ratification.