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The Journal Gazette

Tuesday, March 27, 2018 12:20 pm

Trump administration botches basic civics while calling for line-item veto

Salvador Rizzo | The Washington Post

Treasury Secretary Steven Mnuchin: "I think they should give the president a line-item veto."

Chris Wallace: "But that's been ruled unconstitutional by the Supreme Court, sir."

Mnuchin: "Well, again, Congress could pass a rule, okay, that allows them to do it."

Wallace: "No, no, sir, it would be a constitutional amendment."

Mnuchin: "Chris, we don't – we don't need to get into a debate in terms of – there's different ways of doing this."

 Exchange on "Fox News Sunday," March 25

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President Donald Trump wants Congress to give him a powerful tool to trim spending: the line-item veto.

There's just one problem: The Supreme Court ruled it unconstitutional in 1998. Legal experts say the only way to grant this power to the president is by amending the Constitution.

In an interview with Fox News, Mnuchin begged to differ. He said Congress had other options and could simply "pass a rule . . . that allows them to do it."

This all started when Trump signed a $1.3 trillion spending package March 23. It was the last time he would approve such bloated spending, the president warned.

"To prevent the omnibus situation from ever happening again, I'm calling on Congress to give me a line-item veto for all government spending bills," Trump said.

Can Congress give this veto power to the president, or would it require a constitutional amendment?

The Facts

Governors in 44 states have the power to delete or reduce specific line items in bills passed by their legislatures. The "line-item veto" effectively gives these governors the last word on spending decisions. They can pare down spending bills and then sign those bills into law, without having to ask lawmakers to approve the cuts. In most states, these vetoes may be overturned only by large legislative majorities.

The president, however, has the power to sign or veto only entire bills. He can't go around slicing off spending items here and there. It's all or nothing.

The 44 states – all but Indiana, Nevada, New Hampshire, North Carolina, Rhode Island and Vermont – have different versions of the line-item veto written into their constitutions.

But the U.S. Constitution does not come with this feature, and the Supreme Court ruled in 1998 that lawmakers could not add it to the mix with an act of Congress. The justices voted 6 to 3 to strike down the Line Item Veto Act, signed by President Bill Clinton, in a case called Clinton v. City of New York.

A line-item veto might be a good idea, the court said, but it cannot be reconciled with the Constitution's presentment clause, which lays out the specific steps that must be taken for a bill to become law.

Remember "Schoolhouse Rock"? One chamber of Congress passes a bill, the other chamber passes an identical bill, the president signs it and that precise text becomes law.

According to the Supreme Court, the line-item veto threw a wrench into this "finely wrought" process because it let the president amend or repeal sections of bills on his own, without Congress having a say. In other words, the line-item veto flouted the presentment clause and its requirement that the House, Senate and president all approve an identical bill.

"The Constitution explicitly requires that each of those three steps be taken before a bill may 'become a law,' " Justice John Paul Stevens wrote for the court majority. "If the Line Item Veto Act were valid, it would authorize the president to create a different law – one whose text was not voted on by either house of Congress or presented to the president for signature."

The only way to give the president this power is by amending the Constitution, because an act of Congress won't cut it, Stevens wrote. "If there is to be a new procedure in which the president will play a different role in determining the final text of what may 'become a law,' such change must come not by legislation but through the amendment procedures set forth in Article V of the Constitution," the court said.

Alas, that didn't end the debate. Lawmakers considered other – in some cases more limited – line-item veto proposals under presidents George W. Bush and Barack Obama.

We asked Charles J. Cooper, an expert on the line-item veto, whether Congress could "pass a rule" that lets the president cut individual spending items from bills before signing them. ("No," he said, you would need a constitutional amendment.)

Cooper was the lawyer who successfully argued to strike down the line-item veto in Clinton v. City of New York. As an assistant attorney general in 1988, he also wrote an opinion for the Justice Department's office of legal counsel finding that the Constitution did not give the president an inherent power to veto line items.

Congress does have the option to pass "things that would be akin to the line-item veto," Cooper added.

For example, two bills Congress debated in 2010 would have established a process by which the president could recommend line-item vetoes.

The president could withhold spending on the line items he wanted to veto for 25 session days under one proposal, or 45 calendar days under the other. This would give Congress a window to vote up or down on each of the president's suggested line-item vetoes. If Congress agreed to cut any line items, it would pass another bill that the president would then have to sign.

This setup would probably comply with the Supreme Court's ruling in Clinton v. City of New York, Cooper said.

"It would simply be a fast-track method for the president to make a proposal and for it to be enacted," he said. "A genuine line-item veto as the president called for the other day is something that would require a constitutional amendment."

A bill along these lines was approved by the House in 2012 with bipartisan support but did not get past the Senate.

We asked the Treasury Department whether this is what Mnuchin was referring to: a watered-down version of the line-item veto. We got no response.

The deputy White House press secretary, Raj Shah, was asked about Mnuchin's comments during a briefing March 26. Like Mnuchin, Shah raised the prospect of changing congressional rules. Shah didn't give any details. But he said, "Obviously it has to pass constitutional muster, anything that's passed."

"There are certain things being discussed with respect to House and Senate rules," Shah said. "I don't want to get out ahead of anything that we may come out in favor of."

The Pinocchio Test

The Supreme Court was not quibbling over technicalities in 1998. It rejected the very idea of a president with unilateral powers to delete or rewrite sections of the law. The court specifically said the line-item veto would require a constitutional amendment.

Asked about this, Mnuchin said Congress could simply pass a rule that gave the president line-item veto powers. That's not how government works. Congress has to obey Supreme Court precedents, just like the rest of us.

Other versions of the line-item veto being kicked around in Congress might pass legal muster, but they're not nearly as powerful – the president would be making suggestions rather than issuing vetoes. In any case, it's not clear that Mnuchin and Trump are even interested in these ideas.

Maybe the president was unaware of this history, but the treasury secretary should be better informed before going on national television to argue the White House's position on basic civics.