[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
LINE-ITEM VETO CONSTITUTIONAL ISSUES
=======================================================================
HEARING
before the
COMMITTEE ON THE BUDGET
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
HEARING HELD IN WASHINGTON, DC, JUNE 8, 2006
__________
Serial No. 109-19
__________
Printed for the use of the Committee on the Budget
Available on the Internet:
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COMMITTEE ON THE BUDGET
JIM NUSSLE, Iowa, Chairman
JIM RYUN, Kansas JOHN M. SPRATT, Jr., South
ANDER CRENSHAW, Florida Carolina,
ADAM H. PUTNAM, Florida Ranking Minority Member
ROGER F. WICKER, Mississippi DENNIS MOORE, Kansas
KENNY C. HULSHOF, Missouri RICHARD E. NEAL, Massachusetts
JO BONNER, Alabama ROSA L. DeLAURO, Connecticut
SCOTT GARRETT, New Jersey CHET EDWARDS, Texas
J. GRESHAM BARRETT, South Carolina HAROLD E. FORD, Jr., Tennessee
THADDEUS G. McCOTTER, Michigan LOIS CAPPS, California
MARIO DIAZ-BALART, Florida BRIAN BAIRD, Washington
JEB HENSARLING, Texas JIM COOPER, Tennessee
DANIEL E. LUNGREN, California ARTUR DAVIS, Alabama
PETE SESSIONS, Texas WILLIAM J. JEFFERSON, Louisiana
PAUL RYAN, Wisconsin THOMAS H. ALLEN, Maine
MICHAEL K. SIMPSON, Idaho ED CASE, Hawaii
JEB BRADLEY, New Hampshire CYNTHIA McKINNEY, Georgia
PATRICK T. McHENRY, North Carolina HENRY CUELLAR, Texas
CONNIE MACK, Florida ALLYSON Y. SCHWARTZ, Pennsylvania
K. MICHAEL CONAWAY, Texas RON KIND, Wisconsin
CHRIS CHOCOLA, Indiana
JOHN CAMPBELL, California
Professional Staff
James T. Bates, Chief of Staff
Thomas S. Kahn, Minority Staff Director and Chief Counsel
C O N T E N T S
Page
Hearing held in Washington, DC, June 8, 2006..................... 1
Statement of:
Charles J. Cooper, Partner with Cooper and Kirk, PLLC........ 8
Viet D. Dinh, Professor of Law, Georgetown University........ 15
Louis Fisher, specialist at the Law Library of the Library of
Congress................................................... 22
Prepared statement of:
Hon. Paul Ryan, a Representative in Congress from the State
of Wisconsin............................................... 4
Mr. Cooper................................................... 11
Mr. Dinh..................................................... 17
Mr. Fisher................................................... 25
LINE-ITEM VETO CONSTITUTIONAL ISSUES
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THURSDAY, JUNE 8, 2006
House of Representatives,
Committee on the Budget,
Washington, DC.
The committee met, pursuant to call, at 9:30 a.m., in room
210, Cannon House Office Building, Hon. Jim Ryun (acting
chairman of the committee) presiding.
Members present: Representatives Ryun, Bonner, Diaz-Balart,
Hensarling, Lungren, Ryan, Campbell, Spratt, Moore, Neal, and
Cooper.
Mr. Ryun [presiding]. Good morning, everyone, and welcome.
Today the Budget Committee will hold the second of two hearings
on the line item veto prior to marking up the legislative Line
Item Veto Act of 2006 introduced by Representative Paul Ryan on
this committee. Before we go further, I would like to take a
moment and congratulate our troops on a very significant
capture of Abu Musab al-Zarqawi, a terrorist who obviously has
been significant in the war on terrorism, and our prayers and
thoughts go with the troops as they continue to fight this most
important battle.
Prior to the adjournment for the Memorial Day break, we
heard from several experts on how the line item veto might best
be used to reduce the necessary Federal spending. Today, our
discussion will focus on specific constitutional issues
associated with the use of the line item veto. And I am pleased
to have with us several experts on this issue: Charles Cooper,
Partner with Cooper and Kirk; Viet Dinh, who is Professor of
Law at Georgetown University Law Center; and Louis Fisher,
Specialist at the Law Library at the Library of Congress.
Welcome, and we look forward to receiving your testimony.
Controlling the budget is one of the most important
obligations Congress has as the good stewards of the taxpayers'
money, making sure it gets spent wisely and prudently and not
wastefully. The aim of the Line Item Veto Act is to provide
another tool that can help in this ongoing effort. But we also
have an even higher obligation, and that is to protect the
Constitution on which the entire framework of government and
the democratic freedoms we enjoy is based.
As I noted, the purpose of today's discussion is to ensure
we do all we can to balance these budgetary and constitutional
obligations. As all of you are likely aware, Congress has tried
before to create a commonsense mechanism such as this which
would allow the President to strike individual items from the
spending bill and to help trim away some of the unnecessary
parochial items that sometimes get tacked onto legislation that
gets moved through Congress. But the previous attempts, when
tested in the courts, had not met the rigorous demands of the
Constitution. So great care has been taken with Congressman
Ryan's bill to learn from the earlier efforts and to meet
constitutional guidelines. And our witnesses today will offer
their opinion about whether these measures achieve these goals.
I know that most members of this committee and most Members
of Congress, certainly our witnesses today, have very strong
opinions about this matter, and there is good reason. One of
the principal concerns of this Nation's Founding Fathers was to
protect the freedom and liberty of the people. They went to
great lengths to design a government that would prevent any one
person or group from becoming too powerful, and our
Constitution is the blueprint of that government. Anything that
might affect the balance achieved by that blueprint must be
analyzed, and we will do that today in a very serious way.
As we face the important challenges of managing the
government's purse, we must make sure that in our efforts to
regain control of spending, we also stay consistent with the
Constitution that has safeguarded our freedoms for more than
200 years. And we certainly hope that this hearing today will
be of use in that effort. And I want to thank our witnesses for
being here.
And at this point, I would like to turn to Mr. Spratt for
any comments he would like to make.
Mr. Spratt. Thank you, Mr. Chairman. I echo your welcome to
our witnesses this morning. And we are going to take up
constitutional perspectives on the line item veto or on
rescission.
Mr. Chairman, I can't help but note the irony we are taking
up budget processes at a time when we don't have a budget, at
least a concurrent resolution on the budget, and you have to
wonder if this is something of a diversionary tactic. When we
had the last hearing, it was acknowledged that if we adopt a
rescission, expedited enhanced rescission, it is not likely to
resolve a deficit of 3- to $400 billion. Certainly won't rid us
of that deficit. It could bring it down a bit, but it leaves
most of the work yet to be done.
The justification for this enhanced and expedited
rescission bill instead was stated in terms of improving,
transforming, making clearer and more transparent the processes
of the Congress, improving our scrutiny, and making sure that
we scrub the budget good to get rid of extraneous and
unjustified spending items.
If that is really our objective, there are other tools that
we are not dealing with at all, at least not in this hearing
which is simply focused on one particular solution to the
problem. And it may be a minor solution compared to some that
we could also and should consider.
For example, simple solutions like a layover of spending
bills so that we can actually scrutinize the spending bill,
read the spending bill, explore the spending bill, and find out
what is in it that might be subject to question, particularly
on the floor. More sunshine, better identification of earmarks,
better identification of earmarks to Members and to the
intended beneficiary, and the discussion of their merits and
demerits. And there are lots of things that we can do to
improve the processes of the Congress when it comes to spending
money--and maybe even rein in and restrain spending--that are
not on the table with just a line item veto.
There is a possibility--and we should be aware of this:
that a line item veto in the hands of a clever, manipulative
President could actually be used to increase spending rather
than decrease spending, particularly the way the bill is drawn
in its current form; because in its current form, the President
could go back and propose an item veto of anything--not
something recently adopted, but anything adopted since the
adoption or enactment of this bill--could go back and pull that
up with its application to a particular Member and threaten,
cleverly of course, under the guise of AOA, that this would be
the subject of a rescission request unless a Member acceded to
a President's demand that a Member vote for this or that, that
the President was particularly pushing.
So unless we are careful about how we much structure this
cession of authority from the Congress to the President, we
could actually increase the means by which a devious,
manipulative President could extract spending from the Congress
of the United States.
At bottom, this is an acknowledgement that Congress cannot
do its job well and needs more tools to do the job, but
basically the tool we are coming up with is one whereby we
transfer more authority to the President of the United States.
Before we go to that end, I think we would be well advised to
take a look at the other things that are useful to us here in
the Congress so that we can do our job better. At least those
things should be on equal footing, standing with the line item
veto that we will be considering today in the form of an item,
a rescission item.
So, Mr. Chairman, I welcome the discussion of this topic,
but I think there are other things that we also need to be
looking at before we move this bill to the floor for passage,
and I welcome our witnesses and look forward to their
testimony. Thank you very much indeed.
Mr. Ryun. Thank you, Mr. Spratt, for your comments.
At this point, before we hear from our witnesses, I would
just like to recognize the sponsor of this bill, Mr. Ryan, for
any comments he would like to make.
Mr. Ryan. Thank you Mr. Chairman, I will be fairly brief. I
want to thank the committee for holding this hearing on this
issue and the distinguished witnesses for coming here. In
particular, I would like to recognize Mr. Cooper and Mr. Dinh
for their efforts to work with our office to ensure that this
legislation that comes out of this committee is constitutional,
and I want to thank you two for being here today.
As members of this committee know, I have been very
supportive of the expedited rescissions approach for a long
time. I used to work on this issue on a bipartisan basis with
Charlie Stenholm. Now we are working with people like Mr.
Cooper, Mr. Cuellar, and other Democrats in order to try to get
this legislation passed.
I agreed with the Supreme Court's ruling in Clinton versus
the City of New York, in which our guest, Mr. Cooper, argued
that the previous version of the line item veto violated the
bicameralism and presentment clause of the U.S. Constitution.
In addition, I also had strong concerns that the previous
approach violated the separation of powers between the
executive and legislative branches because it did not require
Congress to act for the line item veto to take effect. Although
the Supreme Court's holding did not turn on this question, this
was a strong factor in the decision in the lower courts.
Despite problems with the previous line item veto, we must
try again to help bring fiscal restraint to the budget process,
to bring transparency and accountability to the back end of the
process. The earmark reforms that we recently passed as part of
the lobbying reform bill in the House will shed light, just
like what Mr. Spratt talked about, will shed light on the front
end of the spending process, but we need to extend that
throughout the whole process.
I believe that this legislation that we are discussing
today will do just that, and I believe that it will do so in a
constitutional manner.
The reason this version is constitutional is that it keeps
Congress in the process where it belongs. Congress retains the
power of the purse in the final say-so on any proposed
rescission. No rescission can take effect without Congress'
approval. And Congress can reject the President's request with
a simple majority vote. At the same time, a process we are
proposing comports with the bicameralism and presentment clause
because both houses must act affirmatively and the President
must sign the approval bill into law before it can take effect.
This is directly in line with the process envisioned by our
Founding Fathers.
Before I turn to the witnesses, I would like to reach out
again to my colleagues on the other side of the aisle. During
the last hearing on this issue, Mr. Spratt and others made very
valid criticisms of H.R. 4890 that I am working strenuously
with this committee and with Democrats to try and address these
concerns.
For example, I agree with Mr. Spratt that we should limit
the number of requests that the White House sends down to
Congress. And I also believe that 180 days is probably too long
for a period of these deferrals. So let's work together on
this. Let's come up with a strong bipartisan product, change
the culture of spending around here, and really begin to
address our fiscal problems and do so in a constitutional
manner. And I think this hearing will help us accomplish those
goals.
And with that, I thank the Chairman for yielding.
[The prepared statement of Mr. Ryan of Wisconsin follows:]
Prepared Statement of Hon. Paul Ryan, a Representative in Congress From
the State of Wisconsin
Chairman Nussle, thank you for holding today's markup to consider
H.R. 4890, the Legislative Line-Item Veto Act of 2006. I am very
pleased that the House Budget Committee has decided to move forward on
this important piece of legislation, and I am satisfied with the
excellent bill that we have before us today. The manager's amendment to
H.R. 4890 is the product of exhaustive consultations with Members and
staff of the House Budget Committee, the House Rules Committee, the
Office of Management and Budget (OMB), constitutional lawyers,
Democrats, Republicans, and many other interested parties. We are
certain of this bill's constitutionality, we are certain that it is
narrowly crafted to meet its intent, and we are certain of the need to
pass this legislation to help us control Federal spending. I look
forward to the Committee's passage of this legislation and its ultimate
consideration on the House floor. It is my strong belief that H.R. 4890
will take an important step toward bringing greater transparency,
accountability and a dose of common sense to the Federal budget
process.
THE SPENDING AND EARMARKING PROBLEM IN CONGRESS
The amount of pork-barrel spending included in the Federal budget
continues to increase every year. According to Citizens Against
Government Waste (CAGW), the Federal Government spent $29 billion on
9,963 pork-barrel projects in Fiscal Year 2006 (FY 2006), an increase
of 6.3% from 2005, and an increase of over 900% since 1991. Overall,
the Federal Government has spent $241 billion on pork-barrel projects
between 1991 and 2005, an amount greater than two-thirds of our entire
deficit in FY 2005. This includes irresponsible spending on items such
as the $50 million Rain Forest Museum in Iowa; $13.5 million to pay for
a program that helped finance the World Toilet Summit; and $1 million
for the Waterfree Urinal Conservation Initiative.
To make matters worse, this total does not include earmarks placed
in authorization bills or special-interest tax pork placed in tax
legislation. As an example, last year's highway authorization bill
contained approximately 6,371 earmarks, with a total cost of $25
billion.
Many of these pork-barrel spending projects are quietly inserted
into the conference reports of appropriations, authorizing, and tax
bills at the end of the process where there is little transparency and
accountability. Not only do most Members not have the ability to
scrutinize these provisions at all, but even if wasteful spending items
are identified at this stage, Congress is unable to eliminate them
using the amendment process. In fact, the only time that Members
actually vote on these items is during an up-or-down vote on the entire
conference report, which includes spending for many essential
government programs in addition to the pork-barrel earmarks. In this
situation, it is very difficult for any Member to vote against a bill
that, as an overall package may be quite meritorious, despite the
inclusion of wasteful spending items.
Unfortunately, the current tools at the President's disposal do not
enable him to easily combat these wasteful spending items either. Even
if the President identifies numerous pork-barrel projects in an
appropriations or authorizing bill, he is unlikely to use his veto
power because it must be applied to the bill as a whole and cannot be
used to target individual items. This places the President in the same
dilemma as Members of Congress. Does he veto an entire spending bill
because of a few items of pork when this action may jeopardize funding
for our troops, for our homeland security or for the education of our
children?
The President's ability to propose the rescission of wasteful
spending items under the Impoundment Control Act of 1974 has been
equally ineffective at eliminating wasteful spending items. The problem
with the current authority is that it does not include any mechanism to
guarantee congressional consideration of a rescission request, and many
Presidential rescissions are simply ignored by the Congress. In fact,
during the 1980's, Congress routinely ignored President Reagan's
rescission requests, failing to act on over $25 billion in requests
that were made by the Administration. The historic ineffectiveness of
this tool has deterred Presidents from using it with any regularity.
SUMMARY OF H.R. 4890, THE LEGISLATIVE LINE-ITEM VETO ACT OF 2006
To help bring accountability and transparency to the end of the
budget process, I introduced H.R. 4890, the Legislative Line-Item Veto
Act of 2006, on March 7, 2006. This legislation, which currently has
the support of 106 bipartisan cosponsors in the House, is one important
step toward the reform of the Federal budget process to force Congress
to take better care of taxpayer dollars. It will serve as an important
complement to earmark reforms that the House passed as a part of H.R.
4975, the Lobbying Accountability and Transparency Act of 2006, which
will bring greater transparency to the front end of the process.
H.R. 4890 achieves this objective by providing the President with
the authority to single out wasteful spending items and narrow special-
interest tax breaks included in legislation that he signs into law and
send these specific items back to Congress for a timely vote. After
Congress receives the rescission requests from the President, H.R. 4890
requires an up-or-down vote in both chambers of Congress before the
rescissions can become law. This requirement ensures that Congress
retains control over the power of the purse and will have the final
word when it comes to spending matters. In addition, H.R. 4890 also
includes a mechanism that would guarantee congressional action on the
proposed rescissions in an expedited time frame, which will make it
much more effective than the current rescission authority vested in the
President under the Impoundment Control Act of 1974.
The process under the manager's amendment to H.R. 4890 begins when
the President signs an appropriations bill, authorizing bill, or tax
bill into law. Within 45 days of enactment, the President would have
the ability to put on hold wasteful discretionary spending items,
wasteful direct spending items, or new special-interest tax breaks and
could ask Congress to rescind these specific items.
After receiving a rescission request from the President, the House
and Senate leadership or their designees would have 5 days to introduce
an approval bill. The bill would then be referred to the appropriate
committee, which would have 7 days to report the bill to the floor
without substantive revision. If the committee failed to act within
this limited time period, the bill would then be subject to a
privileged motion to discharge, which could be raised by any Member and
would have the effect of bringing the bill directly to the House floor
for a vote. This would guarantee that the rescission request could not
be ignored and would ensure its consideration by the full House and
Senate within 14 total legislative days after the receipt of the
President's message.
Once on the floor, Congress would have an up-or-down vote on these
spending items. If Congress agrees with the President to rescind the
funding, the spending would be cancelled. On the other hand, if
Congress does not agree with the President and votes against his
rescission request, the money would have to be obligated within a
narrow timeframe.
Using the Legislative Line-Item Veto, the President and Congress
will be able to work together to combat wasteful spending and add
transparency and accountability to the budget process. This tool will
shed light on the earmarking process and allow Congress to vote up or
down on the merits of specific projects added to legislation or to
conference reports. Not only will this allow the President and Congress
to eliminate wasteful pork-barrel projects, but it will also act as a
strong deterrent to the addition of questionable projects in the first
place. At the same time, Members who make legitimate appropriations
requests should have no problem defending them in front of their
colleagues if they are targeted by the President. With H.R. 4890, we
can help protect the American taxpayer from being forced to finance
wasteful pork-barrel spending and ensure that taxpayer dollars are only
directed toward projects of the highest merit.
CONSTITUTIONAL ISSUES
Unlike the line-item veto authority provided to President Clinton
in 1996, H.R. 4890 passes constitutional muster because it requires an
up-or-down vote in both chambers of Congress under an expedited process
in order to effectuate the President's proposed rescissions. In Clinton
v. City of New York, the U.S. Supreme Court held that the line-item
veto authority provided to President Clinton in 1996 violated the
Presentment Clause of the U.S. Constitution (Article I, Section 7,
Clause 2), which requires that ``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.'' The problem with
the previous version of the line-item veto was that the President's
requested rescissions would become law by default if either the House
or Senate failed to enact a motion of disapproval to stop them from
taking effect. The lower court in Clinton v. City of New York also held
that this version of the line-item veto upset the balance of power
between the executive and legislative branches. On the other hand, H.R.
4890 leaves Congress in the middle of the process where it belongs and
follows the procedure and balance of power outlined in our
Constitution.
Perhaps the most compelling evidence of this bill's
constitutionality in contrast to the 1996 Act and the decision in
Clinton v. City of New York is the support of Charles J. Cooper, a
partner at Cooper & Kirk, PLLC. Whereas Mr. Cooper argued against the
previous version of the Line-Item Veto in the Supreme Court and was
instrumental in the decision to have it overturned, Mr. Cooper now
strongly supports the constitutionality of H.R. 4890. In fact, Mr.
Cooper has testified three times in Congress that H.R. 4890 is
constitutional, including last week in front of this Committee.
H.R. 4890 also withstands constitutional scrutiny under the U.S.
Supreme Court's holding in I.N.S. v. Chadha. In I.N.S. v. Chadha, the
Supreme Court invalidated part of the Immigration and Nationality Act
that allowed a single house of Congress to override immigration
decisions made by the Attorney General. The Legislative Line-Item Veto
Act of 2006 is consistent with this holding because the President's
authority to defer funds would not explicitly be terminated by the
disapproval of a proposed rescission by one of the houses of Congress.
I agree with the Supreme Court's rulings in Clinton v. City of New
York and I.N.S. v. Chadha. It is extremely important that Congress does
not cede its law-making power to the President. I believe that this
violates the Separation of Powers in addition to the Presentment
Clause. By contrast, H.R. 4890 withstands constitutional scrutiny
because it requires both houses of Congress to act on any rescission
request and for this legislation to be sent back to the President for
his signature before the spending cancellation can take effect. This
retains the power of the purse in the legislative branch and keeps
Congress in the middle of the process as envisioned by our founding
fathers.
THE EXPEDITED RESCISSIONS APPROACH--A BIPARTISAN HISTORY
The Legislative Line-Item Veto Act is based on an expedited
rescissions approach to controlling spending that has been historically
supported by both Democrats and Republicans as a means of bringing
greater transparency and accountability to the budget process. In fact,
the Ranking Member of this Committee, Mr. Spratt, introduced two pieces
of legislation in the early 1990's that would have provided the
President with the ability to propose the cancellation of spending
items and special-interest tax breaks and have them considered by
Congress on an expedited basis. The first of these bills, the Expedited
Rescissions Act of 1993, was introduced by Mr. Spratt on April 1, 1993.
When it was considered on the House floor later that month, it received
258 votes, including 174 from Democratic Members. A second budget
process reform bill that included expedited rescissions language was
introduced by Mr. Spratt on June 17, 1994. When this bill was voted on
by the entire House later that year, it received 342 votes, including
173 votes from Members of the Democratic Party.
I have also worked on this issue on a bipartisan basis. On June 24,
2004, I offered an amendment with my former colleague Representative
Charlie Stenholm, a Democrat from Texas, to add expedited rescissions
provisions to a budget process bill that was being considered on the
House floor at the time. Like H.R. 4890, this amendment would also have
allowed the President to propose the elimination of wasteful spending
items subject to congressional approval under an expedited process.
Although this amendment failed to pass the House, it attracted the
support of 174 Members of Congress, including 45 Democrats. A similar
provision is also included in Section 311 of the Family Budget
Protection Act, legislation that I introduced along with Congressman
Jeb Hensarling of Texas, Congressman Chris Chocola of Indiana, and
former Congressman Christopher Cox of California during 2004 and again
in 2005.
REVISIONS TO H.R. 4890--ATTEMPTS TO ADDRESS BIPARTISAN CONCERNS
Since introducing H.R. 4890, I have received substantial feedback
from interested Members of Congress on ways to improve the legislation
to ensure that it best meets its intent of controlling Federal spending
while keeping the power of the purse squarely in the legislative
branch. I have had extensive consultations with Members and staff on
the House Budget Committee, the House Rules Committee, OMB,
constitutional lawyers, Democrats, Republicans, and many other
interested parties. We have discussed many ways to tweak the original
language of H.R. 4890, and I am very pleased with the product that we
are considering today. I believe that the revisions we have made ensure
that the bill meets its intent of allowing the President and Congress
to work together to reduce wasteful spending earmarks while ensuring
that Congress does not grant too much power to the executive branch.
As I worked to revise this bill, I paid special heed to the
comments made by the Ranking Member of this Committee, who has a long
history of working on this issue. During a hearing that the House
Budget Committee held on this bill on May 25, 2006, Mr. Spratt pointed
out numerous concerns with the original version of H.R. 4890. Among the
Ranking Member's criticisms were the following: (1) the lack of a time
frame for the President to make a rescission request; (2) the ability
of a President to make the same rescission request numerous times; (3)
the ability of a President to suspend spending for up to 180 days or
longer; (4) the potential that this legislation could be used to go
after existing entitlement programs; and (5) the lack of a sunset date
on the bill.
I found many of Mr. Spratt's concerns to be valid. Not only were
they things that I had already contemplated changing in the bill, but
many of his concerns echoed criticisms that I had received from the
other parties with whom I had been consulting about the legislation.
As a result, the manager's amendment makes numerous positive
changes to the bill, including nearly every issue brought up by Mr.
Spratt. First, the manager's amendment includes a 45-day limitation on
the amount of time that the President has to submit a rescission
request. I believe that this is an important change to help prevent the
President from holding undue sway over Members of Congress.
Second, the manager's amendment also prevents the President from
making duplicative requests of the same spending and tax items. Not
only will this authority apply to rescission requests under this bill,
but it will also prevent a President from combining the new authority
with existing law to make multiple rescission requests. This change
will prevent the President from continually forcing Congress to vote on
the same rescission requests multiple times in order to slow
legislative action on other bills.
The manager's amendment also significantly shortens the 180-day
deferral period. In fact, under the bill we are considering today, the
President would be given the ability to defer spending for 45 calendar
days with the option to renew this authority for another 45 calendar
days. The language is also drafted to encourage the President to
obligate the funding as soon as either house of Congress votes against
a proposal on the floor. While my preference would have been to have
the deferral period directly linked to congressional action of either
house, this raises serious constitutional concerns under the
Bicameralism and Presentment Clause. As a result, we have settled on an
approach that restrains the deferral authority as much as possible
while respecting the Constitution and ensuring that the authority will
not lapse when Congress goes into an extended recess.
Next, the manager's amendment also addresses Mr. Spratt's concerns
that it could be used as a tool to go after existing entitlement
programs. Although this was never my intention in drafting the bill, I
am respectful of the concerns raised by the Ranking Member and have
included explicit language to prohibit this possibility.
Finally, I have also worked with another friend of mine from the
Democratic side, Mr. Cuellar, to include a sunset provision in this
legislation and directly address Mr. Spratt's fifth concern. Mr.
Cuellar has been a strong advocate of this bill, and I am very pleased
that he is offering an amendment today to impose a 6-year sunset on
H.R. 4890. This will give Congress the ability to review this
legislation and decide whether or not to renew it after two
Presidential Administrations have had the full opportunity to use it as
a tool to control spending.
An additional change that I made to the bill was to add a provision
to limit the number of rescission requests that the President can make
per bill he signs into law. Under the manager's amendment, the
President's requests would be limited to five per bill with an
exception for ten for an omnibus spending bill. Like some of the other
changes, this will go a long way toward preserving the separation of
powers between the Executive and Legislative branches.
Finally, the language on the direct spending items and tax
provisions was clarified to ensure that the President only has the
ability to go after wasteful spending items, not policy. The intent of
this bill is for the President to target unnecessary earmarks and work
with Congress in a respectful fashion in order to eliminate them from
legislation, not to give the President another tool to go after policy
provisions passed by Congress. I believe that the revised version of
this bill strikes an important balance of power between the branches of
government and is narrowly crafted to meet its intent of allowing the
President to propose to eliminate wasteful spending items.
CONCLUSION
In 2006, the Federal Government will once again rack up an annual
budget deficit of over $300 billion, and our debt is expected to
surpass $9 trillion. Meanwhile, the retirement of the baby boom
generation looms on the horizon, threatening to severely exacerbate
this problem. Given these dire circumstances, it is essential that we
act now to give the President all of the necessary tools to help us get
our fiscal house in order. By providing the President with the scalpel
he needs to pinpoint and propose the elimination of wasteful spending,
H.R. 4890 takes an important step toward achieving this goal. The value
of this bill will be measured less in the number of wasteful projects
that are eliminated and more by how many never get inserted in the
first place.
Mr. Ryun. We will begin now with our witnesses. And our
first witness is Mr. Cooper. I look forward to your comments.
STATEMENT OF CHARLES J. COOPER, PARTNER WITH COOPER AND KIRK,
PLLC
Mr. Cooper. Thank you very much, Mr. Chairman and Members
of the committee.
It is a great honor for me to be here this morning to
present my views on this issue to you, and it is especially
gratifying to join a panel this morning with two of my old
friends and very distinguished scholars, Dr. Fisher and
Professor Dinh.
I also have to say that it was a special honor for me back
in 1997 to represent Members of this body in a constitutional
challenge to the 1996 Line Item Veto Act. That challenge was
not taken up by the Supreme Court for lack of standing in
Members of Congress, but the Court did later strike down the
1996 Line Item Veto Act in a case in which I was involved, as
Congressman Ryan has previously mentioned. And I think that
issue, that case, largely controls the constitutional analysis
here, and I will devote the bulk of my remarks to that case.
The Line Item Veto Act of 1996 provided that the President
may, in the words of the statute itself, cancel in whole the
same types of spending and tax benefits that are at issue in
the measure now before you. Cancellation took effect when
Congress received a message--a special message from the
President to that effect. The act defined ``cancel'' as to
rescind and to prevent from having legal force or effect.
That term and its definition were carefully crafted and
chosen by Congress to make clear that the President's actions
would be permanent and irreversible. Thus, a Presidential
cancellation under the 1996 act extinguished the canceled
provision as though it had been formally repealed by this body.
And neither the President who canceled the provision nor any
successor President could exercise the authority that the
provision, before its cancellation, had granted. So the
President could not change his mind after he canceled it. A
successor President could not--could not see the matter
differently and reverse that previous President's decision.
The law itself was gone after cancellation. And it could be
restored only by a disapproval bill that was enacted according
to the procedure prescribed by Article I, section 7 of the
Constitution.
In striking down the Line Item Veto Act of 1996, the
Supreme Court in the Clinton case concluded that vesting the
President with unilateral power to cancel a provision of duly
enacted law could not be reconciled with the provision--with
the procedures established under Article I, section 7, for
enacting or repealing a law; that is, bicameral passage and
presentment to the President.
The Court struck down the act because--and these are the
Court's words--cancellations pursuant to the Line Item Veto Act
are the functional equivalent of partial repeals of acts of
Congress that fail to satisfy Article I, section 7.
The Legislative Line Item Veto Act of 2006, the measure
before you, in contrast, is framed in careful obedience, I
submit, to Article I, section 7, and to the Supreme Court's
teaching in the Clinton case. The President is not authorized
by this bill to cancel any spending or tax provision or
otherwise to prevent such provision from having legal force or
effect.
To the contrary, any spending or tax provision duly enacted
into law remains in full force and effect under the bill unless
and until it expires on its own terms or it is repealed in
accordance with Article I, section 7. That is, until it--until
this body and the Senate have passed a rescission bill and that
bill has been presented to the President for his consideration
and approval.
Now, to be sure, H.R. 4890 would authorize the President to
defer or to suspend execution of the spending or tax provision
at issue for up to 180 calendar days. The President would also
be authorized to terminate his deferral if, according to the
bill, the President determines that continuation of the
deferral would not further the purposes of the act.
So the President would have discretion, after suspending or
deferring one of these measures that he has proposed for
rescission to this body, to change his mind; conclude that, in
fact, the moneys should be spent, and to go forward and to do
so.
This delegation of deferral authority does not raise, in my
opinion, the serious constitutional problem that the Supreme
Court saw in the 1996 measure.
The congressional practice of vesting discretionary
authority in the President to defer or even to decline
expenditure of Federal funds has been commonplace since the
beginning of the Republic, and its constitutionality has never
seriously been questioned.
Indeed, in the first Congress, President Washington was
given discretionary spending authority in at least three
appropriations bills to spend as little or as much as he
pleased, up to the limit of those spending authorities; and the
remainder that was left over, if he didn't spend it all, would,
of course, be restored to the Treasury.
In the Clinton case, the Government's constitutional
defense of the 1996 Line Item Veto Act relied heavily on that
long interbranch tradition of Presidential spending discretion.
The Government argued in that case that the President's
cancellation power was not really a unilateral power to repeal
but, rather, was simply--and I am quoting from the Government's
brief in the case--in practical effect, no more and no less
than the power to decline to spend specified sums of money or
to decline to implement specified tax measures.
But the dispositive distinction that was grasped by the
Supreme Court in the Clinton case and acted upon is that a
discretionary spending statute grants the President discretion
in the implementation of the spending measure while the Line
Item Veto Act of 1996 granted the President discretion to
extinguish the measure itself.
Under a discretionary spending statute, the President may
exercise his spending discretion at any time during the
appropriation period. And if the President decides not to spend
some or all of the appropriated funds, then the authority is to
spend the funds, that is, the law itself, nonetheless remains
in place until it expires in accordance with its own terms, or
it is repealed by this body acting in conjunction with the
Senate and presentment to the President. The President, though,
under a discretionary spending measure, as long as that law
remains, is free to change his or her mind about that spending
decision.
In contrast, under the 1996 act, the President's
cancellation discretion operated directly on the law itself,
effectively revising its text to strike the spending or tax
provision itself permanently.
And if the President, as I mentioned earlier, or his
successor, changed his mind about a canceled item, it didn't
matter; the law itself was gone and the President was powerless
to revive it under that bill.
Nothing in the bill that is pending before you grants the
President such a unilateral power to rescind or amend the text
of a duly enacted statute in the fashion that the 1996 Line
Item Veto Act did.
Again a deferral under H.R. 4890 can last no longer than
188 calendar days, and immediately thereafter the President is
obliged to execute the spending or tax provision for which he
unsuccessfully sought congressional rescission. And the
President's discretionary authority to terminate the deferral
and to execute the spending provision at issue remains in full
force and effect right up until the moment that the
appropriations statute itself expires under its own terms, or
is rescinded by bicameral passage and presentment to the
President.
The short of my testimony, Mr. Chairman and members of this
distinguished committee, is simply this: The Supreme Court's
decision in Clinton recognizes that and enforces the
constitutional line established by Article I, section 7,
between the power to exercise discretion in the making or the
unmaking of the law on the one hand, and the power to exercise
discretion in the execution of law on the other.
Congress cannot constitutionally vest the President with
the former discretion, the power to make or unmake a law. But
it can, constitutionally, delegate discretion to the President
for the latter, the discretion to decide how or when or whether
to spend money. And it has done so repeatedly throughout the
Nation's history; the important point being that that is
determined by this body and this body alone.
So, finally, in my opinion, the powers granted to the
President under the Legislative Line Item Veto Act of 2006
falls safely on the constitutional side of that line.
And I thank again the members of this committee, and, Mr.
Chairman, you, for inviting me to present my views, and look
forward to any questions that the committee may want to put to
me.
Mr. Ryun. Mr. Cooper, thank you very much for your
comments.
[The prepared statement of Mr. Cooper follows:]
Prepared Statement of Charles J. Cooper, Partner, Cooper & Kirk, PLLC
Good afternoon, Mr. Chairman and Members of the Committee. My name
is Charles J. Cooper, and I am a partner in the Washington, D.C., law
firm of Cooper & Kirk, PLLC. I appreciate the Committee's invitation to
present my views on the constitutionality of the ``Legislative Line
Item Veto Act of 2006,'' which has been proposed by President Bush and
has been introduced in this body as H.R. 4890. For reasons that I shall
discuss at length below, I believe that the President's proposal is
constitutional. But first I would like to outline my experience in this
esoteric area of constitutional law.
I have spent the bulk of my career, both as a government lawyer and
in private practice, litigating or otherwise studying a broad range of
constitutional issues. On several different occasions, strangely
enough, I have been involved in matters relating to the
constitutionality of measures designed to vest the President with
authority to exercise a line item veto or its functional equivalent. In
early 1988, while I was serving as the Assistant Attorney General of
the Office of Legal Counsel of the Department of Justice, President
Reagan asked the Justice Department for its opinion on the question
whether the Constitution vests the President with an inherent power to
exercise an item veto. Certain commentators at that time had advanced
the proposition that the President did indeed have such inherent
constitutional power. See Steven Glazier, Reagan Already Has Line-Item
Veto, WALL ST. J., Dec. 4, 1987, at 14, col. 4. After exhaustive study,
the Justice Department reluctantly concluded that the proposition was
not well-founded and that the President could not conscientiously
attempt to exercise such a power. I suspect that many of the Members of
this body can recall how fervently President Reagan longed to exercise
a line item veto authority, and during my time in government, I had no
task less welcome than advising him against it. The opinion of the
Office of Legal Counsel is publicly available at 12 Op. Off. Legal
Counsel 128 (1988).
In April 1996, Congress enacted the Line Item Veto Act of 1996,
which authorized the President to ``cancel'' certain spending and tax
benefit measures after he had signed into law the bill in which they
were contained. Shortly thereafter, I was retained, along with Lloyd
Cutler, Alan Morrison, Lou Cohen, and Michael Davidson, to represent
Senators Byrd, Moynihan, Levin, and Hatfield, as well as certain
members of the House of Representatives, to challenge the
constitutionality of the Line Item Veto Act. Although the district
court invalidated the Act, the Supreme Court held that the Members of
Congress lacked standing to litigate their constitutional claims.
Adjudication of the Act's constitutionality would therefore have to
await the suit of someone who had suffered judicially cognizable injury
resulting from an actual exercise of the President's statutory
cancellation power. See Raines v. Byrd, 521 U.S. 811 (1997). That did
not take long.
Less than 2 months after the Supreme Court's decision in Raines,
President Clinton exercised his authority under the Line Item Veto Act
to cancel ``one item of new direct spending'' in the Balanced Budget
Act of 1997, which had the effect of reducing the State of New York's
Federal Medicaid subsidies by almost $1 billion. I represented the City
of New York and certain healthcare associations and providers, which
lost many millions of dollars in Federal matching funds as a direct
result of the President's cancellation, in a suit challenging the
constitutionality of the Line Item Veto Act. The Supreme Court struck
down the Line Item Veto Act, concluding that ``the Act's cancellation
provisions violate Article I, Sec. 7, of the Constitution.'' Clinton v.
City of New York, 524 U.S. 417, 448 (1998). The Clinton case controls
the analysis of the constitutionality of the Legislative Line Item Veto
Act of 2006, and so an extended discussion of the case is warranted.
The Line Item Veto Act of 1996 provided that the President may
``cancel in whole'' any (1) ``dollar amount of discretionary budget
authority,'' (2) ``item of new direct spending,'' or (3) ``limited tax
benefit'' by sending Congress a ``special message'' within 5 days after
signing a bill containing the item. 2 U.S.C. Sec. 691(a). Cancellation
took effect when Congress received the special message. 2 U.S.C.
Sec. 691b(a).
The Act defined ``cancel'' as ``to rescind'' (with respect to any
dollar amount of discretionary budget authority) and to ``prevent * * *
from having legal force or effect'' (with respect to items of new
direct spending or limited tax benefits). Id. Sec. 691e(4). The purpose
of the term and its definition was to make it clear that the
President's action would be permanent and irreversible: ``The term
'cancel' was specifically chosen, and is carefully defined. * * * The
conferees intend that the President may use the cancellation authority
to surgically terminate Federal budget obligations.'' H.R. REP. NO.
104-491, at 20 (1996) (Conf. Rep.) (emphasis added). For taxes,
cancellation mandated ``collect[ion of] tax that would otherwise not be
collected or * * * den[ial of] the credit that would otherwise be
provided.'' Id. at 29.
Thus, a presidential cancellation under the 1996 Act extinguished
the cancelled provision, as though it had been formally repealed by an
act of Congress. A presidential cancellation operated on the provision
of the law itself, permanently removing it from the body of operative
Federal statutes, and neither the President who cancelled the provision
nor any successor President could exercise the authority that the
provision, before its cancellation, had granted. It could be restored
to the status of law only if a ``disapproval bill,'' 2 U.S.C.
Sec. Sec. 691d, 691e(6), was enacted according to the procedure
prescribed by Article I, Section 7.
In striking down the Line Item Veto Act of 1996, the Supreme Court
in Clinton concluded that vesting the President with unilateral power
to ``cancel'' a provision of duly enacted law could not be reconciled
with the `` 'single, finely wrought and exhaustively considered,
procedure' `` established under Article I, Section 7 for enacting, or
repealing, a law--bicameral passage and presentment to the President.
524 U.S. at 439-40, quoting INS v. Chadha, 462 U.S. 919, 951 (1983). As
the Court explained, Article I, Section 7 ``explicitly requires that
each of * * * three steps be taken before a bill may 'become a law.'
``: ``(1) a bill * * * [is] approved by a majority of the Members of
the House of Representatives; (2) the Senate approve[s] precisely the
same text; and (3) that text [is] signed into law by the President.''
524 U.S. 448. And if the President disapproves of the Bill, he must
``reject it in toto.' `` Id. at 440, quoting 33 WRITINGS OF GEORGE
WASHINGTON 96 (J. Fitzpatrick ed., 1940). The in toto requirement
ensures that the President, like the House and Senate, lacks power to
unilaterally revise the text of the measure approved by the other
participants in the lawmaking process.
President Clinton's cancellation, however, did unilaterally revise
the law by ``prevent[ing] one section of the Balanced Budget Act of
1997 * * * 'from having legal force or effect,' `` while permitting the
remaining provisions of the Act ``to have the same force and effect as
they had when signed into law.'' 524 U.S. at 438. Accordingly, the
Court concluded that ``cancellations pursuant to the Line Item Veto Act
are the functional equivalent of partial repeals of Acts of Congress
that fail to satisfy Article I, Sec. 7.'' Id. at 444.
The Legislative Line Item Veto Act of 2006, in contrast, is framed
in careful obedience to Article I, Section 7 and to the Supreme Court's
teaching in Clinton. The President is not authorized by the bill to
``cancel'' any spending or tax provision, or otherwise to prevent such
a provision ``from having legal force or effect.'' To the contrary, the
purpose of H.R. 4890, as President Bush put it in proposing the
legislation, is simply to ``provide a fast-track procedure to require
the Congress to vote up-or-down on rescissions proposed by the
President.'' Message of President George W. Bush to the Congress, March
6, 2006. Thus, any spending or tax provision duly enacted into law
remains in full force and effect under the bill unless and until it is
repealed in accordance with the Article I, Section 7 process--bicameral
passage and presentment to the President.
To be sure, H.R. 4890 would authorize the President to ``defer'' or
``suspend'' (hereinafter ``defer '') execution of the spending or tax
provision at issue for up to 180 calendar days from the date that the
President transmits his rescission proposal to Congress. The purpose of
this deferral authority, obviously, is simply to allow the Congress
adequate time to consider the President's rescission proposals and to
vote them up-or-down. The President would be authorized to terminate
the deferral ``if the President determines that continuation of the
deferral would not further the purposes of this Act.'' H.R. 4890, 109th
Cong. Sec. Sec. 1021(e)(2), 1021(f)(2) (2006).\1\ Accordingly, if at
any time during the pendency of the deferral period, the President
changes his mind about the deferred spending or tax provision, or if a
successor President disagrees with his predecessor's deferral decision,
the President would be free to terminate the deferral and execute the
provision. Likewise, if Congress rejects the President's rescission
proposal, the President would be required to make the funds or tax
benefits available no later than the end of the deferral period--which,
again, cannot exceed 180 days. Thus, deferral of a spending or tax
provision under the bill does not rescind or otherwise prevent the
provision from having legal force or effect. To the contrary, the
provision remains ``law'' during the deferral period, and it must be
executed at the moment the deferral period ends, unless Congress itself
has enacted a new law rescinding it.
---------------------------------------------------------------------------
\1\ Continuing to defer execution of a spending or tax provision
after a rescission proposal is voted down by one or both Houses of
Congress would presumably not further, except in the most unusual of
circumstances, the purposes of the Act. Statutorily requiring or
triggering termination of the deferral, however, on a negative vote on
the President's rescission proposal in either House of Congress would
raise a serious constitutional issue under Chadha, which held that any
action by Congress that has ``the purpose and effect of altering the
legal rights, duties, and relations of persons * * * outside the
Legislative Branch'' is a legislative action that must conform to the
bicameralism and presentment requirements of Article I, Section 7, of
the Constitution. INS v. Chadha, 462 U.S. 919, 952 (1983). As framed in
the bill, however, the deferral provisions would not raise this concern
under Chadha even if the President felt bound in good faith (as he
presumably would) to terminate any deferral at the moment that either
House voted down his rescission proposal.
---------------------------------------------------------------------------
The congressional practice of vesting discretionary authority in
the President to defer, and even to decline, expenditure of Federal
funds has been commonplace since the beginning of the Republic, and its
constitutionality has never seriously been questioned. Indeed, the
First Congress enacted at least three general appropriations laws that
appropriated ``sum[s] not exceeding'' specified amounts for the
government's operations. See Act of Sept. 29, 1789, ch. 23, Sec. 1, 1
Stat. 95; Act of Mar. 26, 1790, ch. 4, Sec. 1, 1 Stat. 104; Act of Feb.
11, 1791, ch. 6, Sec. 1, 1 Stat. 190. See Ralph S. Abascal & John R.
Kramer, Presidential Impoundment Part I: Historical Genesis and
Constitutional Framework, 62 GEO. L.J. 1549, 1579 (1974). By
appropriating sums ``not exceeding'' specified amounts, Congress gave
the President discretion to spend less than the full amount of the
appropriation, absent some other statutory restriction on that
discretion. See, e.g., H.R. Rep. No. 1797, 81st Cong., 2d Sess. 9
(1950) (``Appropriation of a given amount for a particular activity
constitutes only a ceiling upon the amount which should be expended for
that activity. '')
The First Congress also enacted laws providing for ``lump-sum''
appropriations--that is, appropriations for the operation of a
department that do not specify the particular items for which the funds
were to be used. The President was thereby given discretion not only
with respect to how much of the appropriated sum to spend, but also
with respect to its allocation among authorized uses. Cincinnati Soap
Co. v. United States, 301 U.S. 308, 322 (1937) (``Appropriation and
other acts of Congress are replete with instances of general
appropriations of large amounts, to be allotted and expended as
directed by designated governmental agencies. ''). As the Supreme Court
has noted, ``a fundamental principle of appropriations law is that
where Congress merely appropriates lump-sum amounts without statutorily
restricting what can be done with those funds, a clear inference arises
that it does not intend to impose legally binding restrictions.''
Lincoln v. Vigil, 508 U.S. 182, 192 (1993) (internal quotation marks
omitted). And the constitutionality of such lump-sum appropriations
``has never been seriously questioned.'' Cincinnati Soap Co., 301 U.S.
at 322.
Congress has typically enacted lump-sum appropriations when
Executive Branch discretion and flexibility were viewed as desirable,
particularly during periods of economic or military crisis. See Louis
Fisher, Presidential Spending Discretion and Congressional Controls, 37
LAW & CONTEMP. PROBS. 135, 136 (1972). During the Great Depression, for
example, Congress granted the President broad discretion to ``reduce *
* * governmental expenditures'' by abolishing, consolidating, or
transferring Executive Branch agencies and functions. Act of Mar. 3,
1933, ch. 212, Sec. 16, 47 Stat. 1517-1519 (amending Act of June 30,
1932, ch. 314, Sec. Sec. 401-408, 47 Stat. 413-415)). All
appropriations ``unexpended by reason of'' the President's exercise of
his reorganization authority were to be ``impounded and returned to the
Treasury.'' 47 Stat. 1519.
In 1950, Congress vested the President with general authority to
establish ``reserves''--that is, to withhold the expenditure of
appropriated funds--in order ``to provide for contingencies, or to
effect savings whenever savings are made possible by or through changes
in requirements, greater efficiency of operations, or other [post-
appropriation] developments.'' General Appropriation Act, 1951, ch.
896, Sec. 1211, 64 Stat. 765-766. Similarly, the Revenue and
Expenditure Control Act of 1968, Pub. L. No. 90-364, Sec. Sec. 202(a),
203(a), 82 Stat. 271-72, authorized the President to reserve as much as
$6 billion in outlays and $10 billion in new obligation authority, with
no restrictions on the President's discretion regarding what spending
to reduce. Sec. Sec. 202(b), 203(b), 82 Stat. 272. See also Second
Supplemental Appropriations Act, 1969, Pub. L. No. 91-47, Sec. 401, 83
Stat. 82; Second Supplemental Appropriations Act, 1970, Pub. L. No. 91-
305, Sec. Sec. 401, 501, 84 Stat. 405-407.
And in the Impoundment Control Act of 1974 (ICA), 2 U.S.C. 681 et
seq., Congress distinguished between two forms of impoundment:
deferrals (delays in spending during the course of a fiscal year, or
other period of availability) and rescissions (permanent withholdings
of spending of appropriated funds). See 2 U.S.C. 682(1), 682(3). While
generally authorizing the President to carry out deferrals, see 2
U.S.C. 684 (1982), the Act prohibited the President from engaging in
unilateral rescissions. Instead, it authorized the President to propose
rescissions to Congress under a mechanism for expedited legislative
consideration. 2 U.S.C. 683 (1982).
In sum, when Congress has passed lump-sum appropriations bills, or
when it has given the President general authority to reduce government
spending below appropriated levels, Congress has largely freed the
President to exercise his own judgment regarding which spending
programs to reduce and how much to reduce them. And while the scope of
authority vested in the President has varied in response to changing
legislative judgments about the need for Executive Branch discretion,
the extent of the Executive's spending discretion has always been
regarded, both by Congress and by the courts, as a matter for Congress
itself to decide through the legislative process.
In the Clinton case, the Government's constitutional defense of the
1996 Line Item Veto Act relied heavily on this long interbranch
tradition of presidential spending discretion. The Government argued
that the President's cancellation power was not a unilateral power of
repeal, but rather was simply, ``in practical effect, no more and no
less than the power to ``decline to spend'' specified sums of money, or
to ``decline to implement'' specified tax measures.'' Gov. Br. at 40.
The Act merely granted the President general discretionary authority
that is materially indistinguishable, the Government argued, from the
specific discretionary authority routinely granted to the President in
``lump sum'' appropriations measures since the days of President
Washington.
But the dispositive distinction, as noted previously, between a
lump-sum appropriations statute and the Line Item Veto Act was that the
former grants the President discretion in the implementation of the
spending measure, while the Line Item Veto Act granted the President
discretion to extinguish the spending measure. The President may
exercise lump-sum spending discretion at any time during the
appropriation period, and if the President decides not to spend some or
all of the appropriated funds, the authority to spend the funds--that
is, the law itself--remains in place until it expires in accord with
the terms of the statute. The President (or his successor) retains
discretion throughout the appropriation period to reverse a prior
decision not to spend in light of new information, further experience,
or reordered priorities. Not until the appropriation law expires, or is
repealed in accord with Article I, is the President's spending
discretion extinguished. In short, discretion over spending operates on
the funds, not on the law authorizing it. In contrast, the President's
cancellation discretion under the 1996 Line Item Veto Act operated
directly on the law authorizing the spending, effectively revising its
text to strike the spending or tax provision itself, permanently. And
if the President (or his successor) subsequently changed his mind about
a cancelled item, he was powerless to revive it.
Accordingly, the Supreme Court in Clinton concluded that the
President's cancellation power under the Line Item Veto Act crossed the
constitutional line between traditional discretionary spending
authority and lawmaking: ``The critical difference between [the Line
Item Veto Act] and all of its predecessors * * * is that unlike any of
them, this Act gives the President a unilateral power to change the
text of duly enacted statutes.'' 524 U.S. at 446-47.
Nothing in the Legislative Line Item Veto Act of 2006, however,
even arguably grants the President the unilateral power to change the
text of a duly enacted statute. Indeed, the deferral authority that
would be vested in the President under the bill is actually narrower
than the spending discretion that Congress has routinely accorded the
President throughout the Nation's history. Again, a deferral under the
Bill can last no longer than 180 calendar days, and immediately
thereafter the President is obliged to execute the spending or tax
provision for which he has unsuccessfully sought congressional
rescission. The possibility (however remote) that the appropriation
statute could expire during the period in which spending has been
deferred does not alter this analysis. The President's discretionary
authority to terminate the deferral and to execute the spending
provision at issue would remain in full force and effect right up until
the moment that the appropriation statute expired under its own terms.
The constitutional validity of the President's deferral authority
under H.R. 4890 can be brought into sharper focus by hypothesizing an
appropriations statute in which each individual spending or tax benefit
item is accompanied by its own specific proviso authorizing the
President to defer its execution for up to 180 days pending
congressional resolution of a presidential rescission proposal. The
constitutional authority of Congress to condition the expenditure or
obligation of Federal funds in this manner is clear. The bill would
merely make such presidential deferral authority generally applicable
rather than specifically targeted. And it is clear that the President's
deferral authority under H.R. 4890 would act only as a default rule,
for nothing in the bill purports to prevent Congress from determining
that the President's deferral authority shall not apply to a particular
spending or tax benefit measure or any portion thereof in the future.
See Raines, 521 U.S. at 824 (Congress may ``exempt a given
appropriations bill (or a given provision in an appropriations bill)
from the Act. '').
The short of my testimony is this: The Supreme Court's decision in
Clinton recognizes and enforces the constitutional line established by
Article I, Section 7, between the power to exercise discretion in the
making, or unmaking, of law and the power to exercise discretion in the
execution of law, which in the spending context has historically
included the power to defer, or to decline, expenditure of appropriated
funds. Congress cannot constitutionally vest the President with the
former, but it can the latter, and has done so repeatedly throughout
our Nation's history. In my opinion, the powers granted the President
under the Legislative Line Item Veto Act of 2006 fall safely on the
constitutional side of that line.
Again, Mr. Chairman, I appreciate this opportunity to share my
views with the Committee.
Mr. Ryun. At this point I would like to recognize Mr. Dinh
for 10 minutes as well.
STATEMENT OF VIET D. DINH, PROFESSOR OF LAW, GEORGETOWN
UNIVERSITY LAW CENTER
Mr. Dinh. Thank you very much, Mr. Chairman. Mr. Chairman,
Ranking Member Spratt, and members of the committee, thank you
very much for having me here and the honor of appearing with my
colleagues Chuck Cooper and Lou Fisher. It is truly an honor,
because I think Chuck Cooper as an advocate has argued more
Supreme Court cases than I have learned as an academic. And Lou
Fisher I think is recognized as the successor to the mantle of
Warren Burger as the most consistent and effective advocate of
congressional authority and prerogative in our Nation's
history. So it is truly an honor for me to appear with them to
aid this committee in its legislative process.
In my opinion, the only real issue is the whether H.R. 4890
serves as a real constraint on the budgetary process.
I do not think that there is a significant question that
H.R. 4890 is constitutional.
I will touch very briefly on both of these points, in
reverse order. On constitutionality, one can truly judge its
act by its title. H.R. 4890 is aptly named the Legislative Line
Item Veto Act. The act does not delegate the power to make,
change, or repeal the law to the President, the Comptroller
General, or to anyone else outside the legislative branch using
the legislative process.
Rather, the act specifies the procedures that Congress, and
only Congress, uses to rescind individual items in the budget.
And these procedures require a rescission bill to be passed by
both Chambers and signed by the President, just like any other
legislation, as required by Article I, section 7, of our
Constitution.
The President, under the act, proposes the items to be
rescinded is of no consequence because the President does that
on a daily basis. The operative question, therefore, is whether
the mandated deferral of those items for a period pending
congressional action works a partial repeal of the budget.
I don't think so, nor does it offend the constitutional
separation of powers.
Congress passes the law, the President executes and
enforces the law. The latter responsibilities to enforce the
law also includes some discretion to decide whether and under
what circumstances a law would be enforced.
This Presidential power, this prerogative, under the
teaching of a seminal case of Youngstown, is at its zenith when
Congress expressly authorizes or endorses its exercise, as H.R.
4890 does, for the decision to defer.
I think Mr. Cooper, both in his oral testimony and in his
written statement, has ably and comprehensively catalogued the
commonplace granting use of this power not to spend throughout
the history of this Republic, starting from the very first
Congress.
The act therefore offends neither the lawmaking process of
Article I, section 7, nor the constitutional separation of
powers. Rather, in my opinion, it affirms both of these
principles. H.R. 4890 is a straightforward exercise of
Congress' power under Article I, section 5, to, quote,
``determine the rules of its proceedings.''
The fast-track procedure embodied in the act is, in effect,
a form of congressional self-policing. With such internal
controls, Congress binds itself to reassess certain portions of
the budget law according to procedures specified by the act.
In this sense, H.R. 4890 is little different from the fast-
track procedures of the Trade Act of 1974 which was renewed
successively in 1984, 88, 91, and 93. These procedures
committed Congress to considering international trade
agreements proposed by the President expediently, without
amendment, and with a final up-or-down vote.
If you view the act in this light, the only real question,
based by H.R. 4890, is whether the act is passed pursuant to
the rules clause at all, given that it is not internally
adopted through the Rules Committees of each house, but would
have gone through the lawmaking process of Article I, section
7, like normal legislation.
This question, in my opinion, has been answered by the
various cases addressing and validating the fast-track
procedures in the Trade Act as a proper and nonjusticiable
exercise of Congress' power to determine the rules of its own
proceedings.
This last comment, that the act is a nonjusticiable
exercise of Congress' internal rulemaking power, leads to my
second point, which is the act's effectiveness in constraining
the budgetary process. In the event that Congress responds to
an eventual Presidential rescission proposal by completely
ignoring the fast-track up-or-down procedures of H.R. 4890, it
is my opinion that any challenge to such a procedural violation
would not be justiciable or heard in a court of law.
Fealty to the act, therefore, depends not on lawyers and
judges, but rather on legislators and the political process. I
do not agree with the commentary that passage of the act would
amount to an admission by legislators that they have failed in
public duties to constrain spending.
Instead, the act simply recognizes the collective action
problem in decision-making processes of multimember bodies and
seeks to mitigate its effect in the budgetary process.
The political economy of any multimember decision-making
body, like Congress, is that it is in the individual interests
of Members and their constituents to push for specific items,
even though we all agree that the aggregate restraint is in our
collective interests of the body and of the Nation.
By specifying procedures for Congress to reconsider
individual items, the act shines the political spotlight on the
most egregious of our controversial instances and allows the
collective body to act on them individually and thereby work to
solve, in some limited way, the collective action problem.
Only time and experience will indeed tell us whether this
internal process, this check, is enough to overcome parochial
politics and capping budgetary excesses. But I for one have
faith in legislators and the institution and the people that
you all serve. Thank you very much.
Mr. Ryun. Mr. Dinh, thank you very much for your comments.
[The prepared statement of Mr. Dinh follows:]
Prepared Statement of Viet D. Dinh, Georgetown University Law Center
Mr. Chairman, Ranking Member, and Members of the Committee, Thank
you for the opportunity to testify before you this morning on the
Legislative Line Item Veto Act of 2006. My name is Viet D. Dinh. I am
Professor of Law at the Georgetown University Law Center and Principal
of Bancroft Associates PLLC. My comments here are prepared with Nathan
A. Sales, currently John M. Olin Fellow at the Georgetown University
Law Center. Neither of us represents any entity in this hearing, and
neither receives any grant or contract from the Federal Government.
The proposed legislation, of course, furthers the unassailable
policy principles of fiscal discipline and balanced budgets. We applaud
Congressman Ryan and the co-sponsors for their leadership and thank the
Committee for its work on this important legislation. Our testimony,
however, will be limited to the constitutional issues raised by the
proposed legislation and, more broadly, the constitutional principles
that should guide Congress as it considers a line item veto.
We believe that H.R. 4890 satisfies the Constitution's Bicameralism
and Presentment Clauses, and thus does not suffer from the defects that
doomed previous line item veto legislation invalidated by the Supreme
Court. The Act also is consistent with the basic principle that
Congress has broad discretion to establish procedures to govern its
internal operations, including by adopting fast-track rules for the
quick consideration of legislation proposed by the President. Finally,
there are a number of different approaches through which Congress
constitutionally could authorize the President temporarily to freeze
spending items while Congress decides whether to rescind them
permanently.
A. BICAMERALISM AND PRESENTMENT: OVERCOMING CLINTON V. CITY OF NEW YORK
The Legislative Line Item Veto Act of 2006 is perfectly consistent
with the principles laid down in Clinton v. City of New York,\1\ where
a 6-3 Supreme Court invalidated predecessor legislation that Congress
enacted and President Clinton signed in 1996. The 1996 version of the
line item veto authorized the President to ``cancel in whole'' certain
spending outlays and tax breaks that were approved by Congress and
signed into law.\2\ A cancellation did not require additional
legislation to go into effect; it was effective as soon as Congress
received the requisite special message from the President.\3\ Congress
could override a presidential cancellation, but only by enacting a
``disapproval bill'' by a veto-proof supermajority: ``A majority vote
in both Houses is sufficient to enact a disapproval bill,'' but the
President ``does, of course, retain his constitutional authority to
veto such a bill.'' \4\ In effect, then, the 1996 Act conferred on the
President the power to strike, retroactively, items from legislation
that had been passed by both Houses of Congress and signed into law.
The law as enforced would be qualitatively different than what was
congressionally enacted and presidentially approved.
It was precisely this feature of the 1996 Act--the power of the
President to amend properly enacted laws--that proved its downfall in
City of New York. Because a presidential cancellation ``prevents the
item `from having legal force or effect,' \5\ the 1996 Act effectively
``gives the President the unilateral power to change the text of duly
enacted statutes.'' \6\ And such a grant of authority offends the
Constitution's Bicameralism and Presentment Clauses, which require
unanimity as to the content of a proposed law among all three players
in the lawmaking process: the House, the Senate, and the President.
That is why George Washington remarked that the Presentment Clause
obliged him to either ``approve all the parts of a Bill, or reject it
in toto.'' \7\ The 1996 Act was constitutionally impermissible,
according to the Court, because it purported to 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.''
\8\
The Legislative Line Item Veto Act of 2006 operates very
differently from the 1996 incarnation, and its differences place the
Act on different, and firm, constitutional ground. First, and most
important, a suggested presidential rescission is just that: a
suggestion. The President would submit to Congress for its
consideration a proposal to cancel a set of spending outlays or tax
breaks. Those items would be stricken if and only if majorities in both
Houses of Congress vote in favor of the proposal and the President
signs the resulting bill. Article I, section 7, of the Constitution
requires no more than that. If a single House disagrees and fails to
approve the new bill submitted by the President, the original spending
decisions would remain in force. The Bicameralism and Presentment
Clauses thus are fully respected.
The second critical difference follows from the first. Any
cancellation proposed by the President would not go into effect
immediately (as was true under the 1996 Act), but only after
congressional deliberation and action. While the President would be
able to suggest spending cuts to Congress and request that they be
disposed of expeditiously, he would have no power by himself and
immediately to ``prevent[] the item `from having legal force or
effect.' '' \9\ None of the Executive Branch ``unilateral[ism]'' that
was condemned in City of New York\10\ is to be found here.
H.R. 4890 is a constitutional improvement over the 1996 Act in
another sense, as well. Unlike its predecessor, it permits disputed
spending items--those on whose desirability Congress and the President
disagree--to go into effect without a supermajority vote. Suppose the
President thinks that a given spending item is wasteful and should be
eliminated, but congressional majorities believe the outlay is
important and therefore support it. Under the 1996 Act, the President
would cancel the item. Congress would then need to pass a disapproval
bill to reinstate it, and the President would veto the bill. The only
way for Congress to ensure that its spending priorities go into effect
would be to override the veto, requiring a two-thirds supermajority in
each House. Under H.R. 4890, the President would identify the item and
transmit to Congress a bill proposing to rescind it. If Congress wanted
to preserve the outlay, all that would be necessary would be for a
single House to reject the bill--by a simple majority vote. H.R. 4890
thus protects the procedure to make law prescribed by Article I,
section 7, and vindicates the constitutional value of majority
rule.\11\
In these respects H.R. 4890 is quite similar to the rescission
authority enacted by Congress in the 1974 Impoundment Control Act
(which remains in force today).\12\ Like H.R. 4890, the Impoundment
Control Act does not authorize unilateral presidential cancellation of
spending items. Instead, the President may propose to Congress new
legislation to strike the items, and rescission only goes into effect
if Congress approves the bill and it is signed into law.\13\ Unlike
H.R. 4890, the Impoundment Control Act does not oblige Congress to
consider the President's proposed rescissions. Congress is entirely
free to, and over the lifetime of the Act often has, let them die on
the vine through inaction. H.R. 4890 thus is little more than an
enhanced version of its 1974 predecessor--one in which Congress would
commit itself to giving the President's proposals an up-or-down vote
through specified procedures. It is to those procedures that our
analysis now turns.
B. CONGRESS'S POWER TO ESTABLISH ITS INTERNAL RULES AND PROCEDURES
The Legislative Line Item Veto Act of 2006 is consistent with the
basic principle, expressly recognized in the Constitution, that
Congress has broad discretion to ``determine the rules of its
proceedings,'' \14\ and that this power generally is ``absolute and
beyond the challenge of any other body or tribunal.'' \15\ H.R. 4890--
which would oblige Congress to vote on a rescission bill proposed by
the President within a particular timeframe--should not be thought of
as a transfer of authority away from the legislature and to the
Executive Branch. Instead, the Act is little more than a
straightforward application of the constitutional principle that
Congress has wide latitude to govern its internal operations as it sees
fit. In fact, Congress many times in the past has provided for the
fast-track consideration of legislative proposals in the same way that
H.R. 4890 would.
The basic rule of congressional discretion is articulated in Nixon
v. United States.\16\ In Nixon, the House impeached a Federal district
court judge who was convicted of making false statements before a
Federal grand jury and was sentenced to imprisonment. (The judge
refused to resign, and thus continued to collect his salary while in
jail.) Pursuant to Senate Rule XI, the Senate's presiding officer
appointed a committee of Senators to receive evidence in the
impeachment trial, and the committee reported that evidence to the full
Senate. After the Senate voted to convict and Nixon was removed from
office, the former judge filed suit, claiming that Rule XI offends the
Constitution's directive that the Senate shall ``try'' all
impeachments.\17\
In a 6-3 ruling, the Supreme Court held that the dispute over the
Senate's decision to assign its power of conducting evidentiary
hearings to a committee was a nonjusticiable political question. The
authority to determine the manner in which impeachment trials will be
conducted ``is reposed in the Senate and nowhere else.'' \18\ Courts
therefore will decline to override or otherwise interfere with that
body's choice to conduct its business in a particular way. Even the
separate concurrence of Justices White and Blackmun seconded the
proposition that decisions by Congress about its own procedures
ordinarily will not be disturbed. Though the concurrence denied that
the Senate has ``an unreviewable discretion'' to establish its internal
rules and regulations, they nevertheless maintained that ``the Senate
has very wide discretion in specifying [its] procedures.'' \19\
The same principle applies here. In the same way the Senate enjoys
unfettered discretion to adopt whatever mechanism it wishes for
gathering evidence in impeachment trials, so Congress as a whole is
free to establish a rule that commits it to disposing of presidential
proposals to rescind spending items on an accelerated basis. The
Constitution expressly confers on the President the authority to submit
legislative proposals to Congress: ``He shall * * * recommend to
[Congress's] Consideration such Measures as he shall judge necessary
and expedient * * * .'' \20\ Congress frequently has adopted procedures
to consider such proposals expeditiously, and courts just as frequently
have held that they have no authority to second guess those internal
legislative rules.
In particular, on at least five occasions, Congress has enacted
legislation in which it commits itself to considering on a fast-track
basis international trade agreements proposed by the President. The
first fast-track trade bill was adopted in 1974. Renewals followed in
1984 (which enabled the Reagan Administration to negotiate trade
agreements with Israel and Canada), and in 1988, 1991, and 1993 (under
which the George H.W. Bush and Clinton Administrations completed the
talks on NAFTA and the Uruguay Round of the GATT negotiations).\21\
These fast-track trade procedures are strikingly similar to the ones
proposed for spending rescissions in the Legislative Line Item Veto Act
of 2006. Like H.R. 4890, the trade rules specified that congressional
leadership will introduce the President's proposed bill soon after it
is received.\22\ Like H.R. 4890, the trade rules did not contemplate
that the bill will be amended.\23\ And like H.R. 4890, the trade rules
required a final floor vote within a specified period of time.\24\
Federal courts have shown little enthusiasm for questioning
Congress's internal procedures for speedy consideration of proposed
trade agreements.\25\ The same degree of deference should apply to
rescissions rules, as well. Indeed, a decision by Congress to consider
a President's proposed spending cuts on an expedited basis presents a
much easier constitutional question than fast-track trade authority.
The latter procedures, which allowed trade agreements between the
United States and foreign nations to be adopted by simple majority vote
in both houses of Congress, could be seen as conflicting with the
Constitution's command that treaties must be approved by a two-thirds
vote in the Senate.\26\ In the rescission context, by contrast, there
is no constitutional norm that arguably might specify internal rules
that conflict with, and thus override, Congress's new streamlined
procedures.
If Congress decides to proceed with H.R. 4890, it should consider
making plain in the statutory text (as Section 2(b) of the current
draft bill proposes to do) that the Legislative Line Item Veto Act of
2006 is an instance of its settled authority to craft procedures to
govern its internal operations. (Congress did something similar in the
fast-track trade legislation.\27 \) Not only would such express
language aid the courts in subsequent judicial review, it also would
prevent a misinterpretation of the Act to imply a more extensive
delegation of authority than Congress actually intends.
C. TEMPORARY FREEZES OF SPENDING ITEMS
Because H.R. 4890 does not (and under Clinton v. City of New York
constitutionally could not) authorize the President unilaterally and
immediately to cancel spending items, and because proposed rescissions
are not effective unless and until Congress enacts conforming
legislation, some mechanism is needed temporarily to freeze the
identified items pending final congressional action. In the absence of
a temporary suspension, a cloud of uncertainty would hang over the
recipients of the contested funds. Recipients might decline to spend
the funds once received for fear that Congress ultimately might revoke
them. Alternatively, recipients might begin to spend the funds despite
that uncertainty, and this could give rise to reliance interests that
could militate against subsequent congressional cancellation. The safer
course is to call a time-out until Congress has worked its way through
the prescribed legislative process.
This is not a new insight. It was precisely for this reason that
Congress in the 1974 Impoundment Control Act authorized the President
to freeze the spending items he has targeted for rescission while
Congress weighs his proposal. Specifically, after the President submits
his suggested rescissions to Congress, the outlays he has identified
are frozen for 45 days.\28\ Congress could include a comparable
mechanism in new line item veto legislation, and it could take any
number of forms.
One approach would be to provide, as the current draft of H.R. 4890
does, that the President's suspension of spending items will remain in
effect for a set number of calendar days (say, 45), and then lapse
automatically. The advantage of this approach is that it steers well
clear of any possible constitutional pitfalls under INS v. Chadha, to
which we will return below. A shortcoming of the calendar-days model is
that, because the clock continues to run during congressional recesses,
it is conceivable that a temporary freeze could expire before Congress
has had time to take final action on a proposed rescission bill.
An alternative approach is to provide, similar to the Impoundment
Control Act, that a temporary suspension would lapse after a set number
of legislative days. We understand that some have suggested that such a
procedure could run afoul of the Supreme Court's ruling in INS v.
Chadha.\29\ These are legitimate concerns, but we believe them to be
overblown. In Chadha, the Court held that the ``legislative veto''--
which allowed a single House of Congress to invalidate an action taken
by the Executive Branch pursuant to congressionally delegated
authority--violated the Constitution's Bicameralism and Presentment
Clauses. There is ``only one way'' for Congress to make the
``determinations of policy'' necessary to override lawful Executive
Branch action, and that is ``bicameral passage followed by presentment
to the President.'' \30\
To be sure, under the legislative-days approach, Congress could
manipulate, by going in and out of session, the length of time the
President may suspend the contested funds. The President's powers--
specifically, his power to continue to freeze the spending items--in
some sense thus would depend on congressional action that has not
satisfied the Constitution's bicameralism and presentment requirements.
But that does not necessarily mean that the use of legislative days
necessarily would offend the Constitution. Chadha makes clear that only
certain types of congressional acts are subject to the Bicameralism and
Presentment Clauses--namely, legislative acts. ``Not every action taken
by either House is subject to the bicameralism and presentment
requirements of Art. I.'' Instead, only actions that ``in law and
fact'' are ``an exercise of legislative power'' must satisfy those
requirements.\31\ It follows that other sorts of congressional acts,
such as those that are designed to regulate Congress's internal
operations, need not.
It seems to us that a decision by a House of Congress to remain in
session or go into recess is--at least in ordinary cases--a
quintessential example of a nonlegislative, internallyoriented action.
It certainly lacks the hallmarks of what we usually think of as
legislative action. Deciding whether to be in session typically does
not result in the distribution of benefits to citizens or others, nor
does it impose new burdens on such persons. Regulated entities
ordinarily do not change their primary conduct simply by virtue of
Congress deciding whether or not to recess. In a word, a decision to be
in session is not itself a legislative act; it is merely a prelude that
enables Congress subsequently to engage in legislative acts.
It certainly is possible to imagine scenarios in which Congress's
decision to recess would be ``essentially legislative in purpose and
effect'' \32\--for instance, where the subjective intent of Members of
Congress is to manipulate the length of time the President has to
freeze the funds he proposes to rescind. That would present a close
case under Chadha. But there is no reason to think that the mere
possibility that Congress could act in such a manner renders a 45-
legislative day freeze constitutionally infirm in all cases.
In closing, we again thank the Committee for the chance to share
our views on this important issue. Fiscal restraint and balanced
budgets are common ground among all, but even these shared values must
yield to our fundamental commitment to the Constitution. Fortunately,
the Legislative Line Item Veto Act does not force a choice between
them. H.R. 4890 provides for rescission through bicameralism and
presentment, and thus is fully consistent with the Supreme Court's
admonitions in Clinton v. City of New York. The legislation further
represents an effort by Congress to exercise its basic power to lay
down rules and procedures for its internal operations. Finally,
Congress might consider authorizing the President to suspend targeted
spending items for periods of 45 legislative days. Given the Chadha
Court's condemnation of the legislative veto, such an approach may be
riskier than the use of calendar days, but only marginally so.
ENDNOTES
\1\ 524 U.S. 417 (1998).
\2\ Id. at 436 (citing 2 U.S.C. Sec. 691(a) (Supp. II 1994)).
\3\ See id. (citing 2 U.S.C. Sec. 691b(a) (Supp. II 1994)).
\4\ Id. at 436-37 (citing 2 U.S.C. Sec. 691(c) (Supp. II 1994)).
\5\ Id. at 437 (quoting 2 U.S.C. Sec. Sec. 691e(4)(B)-(C) (Supp.
II 1994)).
\6\ Id. at 447.
\7\ 33 WRITINGS OF GEORGE WASHINGTON 96 (J. Fitzpatrick ed., 1940).
\8\ City of New York, 524 U.S. at 448. City of New York and INS v.
Chadha, 462 U.S. 919 (1983)--where the Supreme Court invalidated the
``legislative veto,'' which permitted one House of Congress to nullify
an Executive Branch action--thus are flip sides of the same coin. Both
cases proscribe unilateralism in the lawmaking process. City of New
York stands for the proposition that the President may not unilaterally
amend legislation enacted by Congress. And Chadha stands for the
proposition that Congress may not unilaterally revoke a power
previously delegated by law to the President. Both cases work together
to ensure collaboration in the enactment of laws.
\9\ City of New York, 524 U.S. at 437 (quoting 2 U.S.C. Sec. Sec.
691e(4)(B)-(C) (Supp. II 1994)).
\10\ Id. at 447.
\11\ Note also that H.R. 4890 reverses the 1996 Act's presumption.
Under the 1996 Act, the presumption was that a spending item identified
by the President would be cancelled. Such an item was stricken
immediately and could be restored only with congressional action. Under
the current proposal, the presumption is that a spending item
identified by the President would remain in force. Such an item would
remain effective and could be abolished only if Congress enacts, and
the President signs, new legislation; failure by Congress to do so
would be enough to retain the item.
\12\ See Congressional Budget and Impoundment Control Act of 1974,
Pub. L. No. 93-344, Sec. Sec. 1011-13, 88 Stat. 298 (currently
codified at 2 U.S.C. Sec. 621 et seq. (2006)).
\13\ See 2 U.S.C. Sec. 688 (2006).
\14\ U.S. CONST. art. I, Sec. 5, cl. 2.
\15\ United States v. Ballin, 144 U.S. 1, 5 (1892).
\16\ 506 U.S. 224 (1993).
\17\ See id. at 226-28 (citing U.S. CONST. art. I, Sec. 3, cl. 6).
\18\ Id. at 229.
\19\ Id. at 239 (White, J., joined by Blackmun, J., concurring).
\20\ U.S. CONST. art. II, Sec. 3; see also Clinton v. City of New
York, 524 U.S. 417, 438 (1998) (indicating that the President ``may
initiate and influence legislative proposals '').
\21\ See generally Laura L. Wright, Note, Trade Promotion
Authority: Fast Track for the Twenty-First Century?, 12 WM. & MARY BILL
RTS. J. 979, 984-89 (2004) (recounting the history of fast-track trade
procedures). The original fast-track trade authority, codified at 19
U.S.C. Sec. Sec. 2191-94 (2006), lapsed in 1994. See Robert F.
Housman, The Treatment of Labor and Environmental Issues in Future
Western Hemisphere Trade Liberalization Efforts, 10 CONN. J. INT'L L.
301, 310-14 (1995). Congress enacted new trade procedures, now known as
``trade promotion authority,'' in 2002. See Bipartisan Trade Promotion
Authority Act of 2002, Pub. L. No. 107-210 Sec. Sec. 2101-13, 116
Stat. 933, 993-1022 (codified at 19 U.S.C. Sec. Sec. 3801-13 (2006)).
\22\ Compare 19 U.S.C. Sec. 2191(c)(1) (2006) (trade bill to be
introduced on the day it is received), with H.R. 4890, 109th Cong.
Sec. 1021(c)(1)(A) (2006) (rescission bill to be introduced within 2
days of its receipt).
\23\ Compare 19 U.S.C. Sec. 2191(d) (2006) (barring the proposal
of amendments to a trade bill), with H.R. 4890, 109th Cong. Sec.
1021(d) (2006) (barring the proposal of amendments to a rescission
bill).
\24\ Compare 19 U.S.C. Sec. 2191(e)(1) (2006) (generally requiring
a final floor vote on a trade bill within 15 days of it being reported
out of committee), with H.R. 4890, 109th Cong. Sec. 1021(c)(1)(C)
(2006) (requiring a final floor vote on a rescission bill within 10
days of it being introduced).
\25\ See, e.g., Made in the USA Found. v. United States, 242 F.3d
1300 (11th Cir. 2001) (holding that a dispute over the internal fast-
track procedures by which Congress adopted NAFTA was a nonjusticiable
political question).
\26\ See U.S. CONST. art. II, Sec. 2 (conferring on the President
``Power, by and with the Advice and Consent of the Senate, to make
Treaties, provided two thirds of the Senators present concur '').
Compare Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108
HARV. L. REV. 799 (1995) (arguing that international accords like NAFTA
need not be adopted through the Constitution's treaty-making
procedures, but instead may be approved through new methods of
agreement between Congress and the President), with Laurence H. Tribe,
Taking Text and Structure Seriously: Reflections on Free-Form Method in
Constitutional Interpretation, 108 HARV. L. REV. 1221 (1995) (arguing
that such methods are inconsistent with the Constitution's text and
structure).
\27\ See 19 U.S.C. Sec. 2191(a)(1) (2006) (indicating that the
fast-track procedures are enacted ``as an exercise of the rulemaking
power of the House of Representatives and the Senate '').
\28\ See 2 U.S.C. Sec. 683(b) (2006) (authorizing the freeze of
spending items for ``the prescribed 45-day period'' while Congress
considers a presidential rescission request); id. Sec. 682(3)
(indicating that the prescribed period is ``45 calendar days of
continuous session of the Congress '').
\29\ 462 U.S. 919 (1983).
\30\ Id. at 954-55.
\31\ Id. at 952.
\32\ Id. at 953.
Mr. Ryun. At this point, Mr. Fisher, you have 10 minutes
for your comments as well.
STATEMENT OF LOUIS FISHER, SPECIALIST AT THE LAW LIBRARY OF THE
LIBRARY OF CONGRESS
Mr. Fisher. Thank you, very much Mr. Chairman, Members of
the committee. I am pleased here to be with Chuck Cooper and
Viet Dinh as well. Chuck Cooper's career I have followed at
least from the 1980s when he was in the Reagan administration,
head of Office of Legal Counsel, and highly respected. Some of
his opinions took a lot of guts. I respect all of his opinions,
but some of them took a lot of guts where the outside community
was leaning on Chuck to go in a different direction. Very
principled grounds; he held firm.
And Viet Dinh I know. I followed his career and the respect
he has of the constitutional structure and institutions of
government. So, my pleasure.
I say in my statement that I don't think this bill will
result in much in the way of cuts either in spending or in the
deficit or in earmarks. I explain in my statement why I think
it could lead in the opposite direction. You could get more
spending and more earmarks and greater deficits.
So whatever the fiscal results of this process would be, my
main point--which is the subject of the hearing today, and I
appreciate it--is to look at how this affects our
constitutional system. Chuck Cooper and Viet Dinh appropriately
looked at litigation, what the courts have said, particularly
the Supreme Court. That is one thing that is necessary; but the
much more important step, I think, is to appreciate that the
experts on constitutionality and legislative prerogatives are
Members of Congress. You have the responsibility. You have the
experience. You have the duty to protect your own institution.
And that is what the Framers expected. Each branch would
protect itself, and Congress would never expect some other
branch to protect itself. Another branch doesn't have the
experience and they don't have the commitment to protect your
prerogatives.
So that is the basic point of my statement: What would this
bill do to your institution in terms of its prestige, its
reputation, and its powers?
I think as the bill was introduced, being an administration
bill, I think it probably would have run into constitutional
problems, particularly the 180 days. It would allow the
President, if he submitted a proposal midway in the year, to
unilaterally repeal and terminate provisions. I am sure you
will fix that, but there are other problems. But even if you
fixed those and some other features in the administration bill,
you still have to think through what you are doing to your
institution. I point out a number of areas where I think
serious damage would be done.
One area would be just the way the bill is written. Even if
it were amended, you are still making the statement that in the
legislation that you just passed--that has gone through the
House and the Senate and the conference committee--the bill you
just passed is very likely defective, and you want a process
where it can be corrected through Presidential initiative. You
thus make a statement to the public and to yourselves that you
have doubts as to whether you can write responsible
legislation. That is quite a message to send.
I think if you had a process where you could recognize
deficiencies in each branch and there would be a way to make
those adjustments, that would be one thing. But here it looks
to me like one direction. The one branch that looks defective
is Congress, and the President is the one who is guardian of
the purse.
This is one area I have studied in my career, Presidential
spending power and the purpose of the 1921 Budget and
Accounting Act. It was never to make the President the more
trusted guardian of the purse. I don't think there is anything
in the history to indicate that. I think most of your big-
ticket items come from the executive branch, and I list some of
them in my statement. Congress adds, Presidents add, that is
part of our process.
But why anyone would elevate the President of the United
States as someone who can be trusted more in limiting spending
and deficits, I don't think the record supports that.
Secondly, I think about how the bill would actually
function. You pass a bill, it would go to the President, and
the President would be able to put together a list of items
that he felt were unjustified or wasteful, and he would do so.
So he would get--that would be the second area to me--he
would get, in the public's eye, the credit for having seen the
deficiencies in the bill that he just received and to put
together a list. Now, there is no way the public or even the
press can ever, in a responsible way, distinguish between
justified and unjustified items. Maybe on the extremes you
could identify certain items. Most things are going to be very
debatable. But the President will make a list of unjustified
items and he will get credit for that.
If Congress supports the President's list, indeed the
President gets even more credit. He has put together a list,
and Congress has acknowledged that it was defective in the
first place when it gave the bill to the President. So that is
area No. 2.
Now, if Congress were, under this bill, to say we disagree
with your list, we think those items were justified, we have
done a lot of work and you did not support the President, then
I think the President probably would get credit even more. He
has put together a list, Congress has refused to support it,
and Congress gets beat up again.
The fourth area I think is the President's ability or the
White House's ability, or, coming from the departments, the
ability to call Members of Congress and say that we are putting
together a list of items to be canceled, and someone has put
the project in your district on the list. We happen to think
that that project is a good one, and we are going to do
everything we can to make sure it gets off the list. And now on
a quite different matter, we would like to know if we can count
on your vote on the President's spending bill or in the Senate
on a treaty, or a nomination, or anything else that the White
House would want. That is tremendous leverage on the part of
the executive branch. I think that is great damage to Congress
as an independent institution.
What are the potential dollar savings? I think from
whatever we know about it, it is next to nothing. I describe
here a Government Accountability Office (GAO) report in 1992
where they estimated that over a 6-year period, the President
could save up to $70 billion through an item veto. I did my own
analysis of it and GAO later reversed and said that it would
probably save hardly anything, and would cost more through this
quid pro quo that I just mentioned.
If you look at the Clinton years, the experience under the
1996 act was very little; maybe under a billion or so. That is
a lot of money. But you have to ask whether that is an answer
or remedy for the deficits we are facing today. If you do get a
result somewhere between a billion or less, then you have to
ask what are you doing to your own institution.
I have a section in my statement about what would happen to
earmarks, it is another unknown. You are changing the process.
Every time you change the process you are going to change
behavior. You could end up with more earmarks. It is just an
unknown. And it wouldn't be with any transparency. These are
not things that the public is going to be able to follow.
I end my statement by saying that there are plenty of very
good remedies available right now. Of course, the President
could use his veto. He could use the threat of a veto and tell
people in conference, get things out of there; otherwise I will
veto the bill.
To me, the most effective step a President can take, and it
is why we had the 1921 Budget and Accounting Act, is
Presidential leadership. The President is supposed to submit a
responsible budget. And the record, I think, shows that when
the President submits a budget, that politically Congress stays
around the aggregates of the President's budget. You change
your priorities, which you have every right to do. But if a
President is concerned about spending and deficits, then the
step is to present a responsible budget. Once that is done, 90
percent of the problem is taken care of.
If a President doesn't submit a responsible budget, there
is very little on the legislative side that can do to correct
that.
Thank you very much.
Mr. Ryun. Thank you very much for your testimony.
[The prepared statement of Mr. Fisher follows:]
Prepared Statement of Louis Fisher, Specialist at the Law Library,
Library of Congress
Mr. Chairman, thank you for inviting me to testify on legislation
that would give the President authority to exercise a type of item
veto. The apparent goal is to reduce Federal spending, earmarks, and
the budget deficit. For reasons given in my statement, I think
spending, earmarks, and deficits would not be materially changed by
this procedure and might even grow worse. That is counterintuitive,
perhaps, but I will explain why.
Whatever the fiscal results of this legislation, a more profound
issue is the effect the bill would have on congressional prerogatives,
checks and balances, and the system of separation of powers. Individual
rights and liberties are protected in large part by the way we
structure government. How should Members of Congress decide the
constitutional issues implicit in this legislation? Look to court
decisions for ultimate guidance or make independent judgments about how
best to protect congressional interests?
MAKING CONSTITUTIONAL JUDGMENTS
In House and Senate hearings held earlier this year, considerable
attention was paid to whether this legislation would meet the standards
set forth in the item veto case of Clinton v. City of New York (1998).
Although it is useful to examine judicial precedents, each Member of
Congress has an obligation to support and defend the Constitution and
needs to exercise independent judgment in fulfilling that task. The
branch responsible for protecting the rights, duties, and prestige of
Congress is not the judiciary. It is Congress. The Framers expected
each branch to defend itself.
Earlier hearings offered testimony that the item veto bill drafted
by the Administration might not satisfy the conditions set forth in
Clinton. Especially was that so with the President's authority to defer
spending for 180 calendar days while Congress considered his proposal
to terminate spending. Depending on the time of the year when the
President submitted his request, 1-year money might lapse, resulting in
a virtual cancellation by the President without any congressional
action or support.
Of course Congress can amend the Administration bill to avoid this
problem, but Congress needs to do more than merely adjust legislative
language to satisfy Supreme Court decisions. Even if this bill were
significantly modified to eliminate any problems under Clinton, a
Member of Congress has a separate and unique duty. The fundamental
test: Does this legislation protect the prerogatives, powers, and
reputation of Congress as a coequal branch? The answer does not lie in
case law. It lies in the willingness of each Member to determine what
Congress must do to preserve its place in a system of coordinate
branches. The true expert here is the lawmaker, not the judge. No one
outside the legislative branch has the requisite understanding of
congressional needs or can be entrusted to safeguard legislative
interests.
A lawmaker need not be an attorney to decide such questions. A non-
attorney is just as able and experienced in judging what Congress must
do to protect representative democracy and the rights of citizens and
constituents. Congress should not consciously pass an unconstitutional
bill. Similarly, lawmakers should not pass legislation that damages
their institution simply because they predict the bill will not be
overturned in the courts.
PROTECTING THE REPUTATION AND CREDIBILITY OF CONGRESS
This item veto bill does damage to the institutional interests of
Congress in several ways. First, it sends a clear message to the public
that Congress has been irresponsible with its legislative work, both in
the level of spending and the particular provisions it places in bills.
To remedy those supposed defects, Congress will establish a fast-track
procedure to enable the President to eliminate items that should never
have been included in the bill. This process signals that Members are
not up to the task and cannot properly conduct their constitutional
duties. That is Damage No. 1.
I don't know on what grounds it can be said that the President is
the more trusted guardian of the purse and the far better judge of what
is in the national interest, including earmarks. Why is the President,
with the assistance of aides, more qualified to decide how Federal
funds are to be allocated to particular districts and states? Granted,
he has the general veto power and can, by threatening its use, force
Congress to strip from bills certain features and provisions. But
lawmakers know district and state needs better than agency employees
and have the legitimacy that comes from being an elected official.
As for the level of aggregate spending and the size of the Federal
deficit, what evidence supports the view that the President is more
responsible in fiscal affairs? Congress initiates various spending
programs, of course, but the big-ticket items seem to come generally
from the President: the national highway system, the space program,
supercolliders, the Supersonic Transport, military commitments,
entitlement programs, etc.
OTHER LIKELY DAMAGES
I have questioned the premise behind the bill. Now I look at the
way it would operate. Under the fast-track procedure, the President
would submit to Congress a list of items to be cancelled. In so doing
he would automatically receive credit in the public arena for fighting
against waste. The public is unlikely to be able to differentiate
between ``justified'' and ``unjustified'' programs. The President would
win on image alone, not substance or analysis. At the same time,
Congress would receive a public rebuke for having enacted the
supposedly wasteful items. That is Damage No. 2. If Congress were to
disapprove the bill drafted by the Administration to eliminate the
items, it would be further criticized. The President could go to the
public and claim that Congress, having established the fast-track
procedure to correct for its deficiencies, refuses to delete unwanted
and unneeded funds. Damage No. 3. If Congress has an interest in
building support and credibility with the public, this is a procedure
to avoid.
Moreover, the President would have a new tool to coerce lawmakers
and limit their independence. He or his aides could call Members to
alert them that a particular project in their district or state might
be on a list of programs scheduled for elimination. During the phone
call, the Member would be told that the Administration actually thinks
the project is a good one and should be preserved. The Member is
assured that the Administration will do everything in its power to see
that the project is not placed on the final list. At that point the
conversation shifts course to inquire whether the lawmaker is willing
to support a bill, treaty, or nomination desired by the President. That
political leverage diminishes the constitutional independence of
Congress. Damage No. 4.
WHAT ARE THE POTENTIAL DOLLAR SAVINGS?
What we know about the item veto indicates that the amount saved
would be quite modest, if any, and certainly would not be a remedy for
annual deficits in the range of $300 billion or $400 billion. Both
conceptually and in actual practice, the experience with the item veto
suggests that the amounts that might be saved would be relatively
small, in the range of perhaps one to two billion a year. Under some
circumstances, an item veto could increase spending, as with the Quid
Pro Quo described above. The Administration withholds cancelling a
Member's program with the understanding that the Member will support a
spending program favored by the President.
In January 1992, the General Accounting Office released a report
that estimated the savings that could be achieved through an item veto.
The study assumed that the President would apply the item veto to all
the items objected to by the Administration in its Statements of
Administration Policy (SAPs). GAO estimated that the savings over a 6-
year period, during fiscal years 1984 through 1989, could have been $70
billion.\1\ I was asked to review the GAO study. Looking at the same
data, I concluded that the savings over the 6-year period would have
been not $70 billion but $2-3 billion and probably less. I also
suggested that instead of reductions the process could lead to
increases through executive-legislative accommodations.\2\
---------------------------------------------------------------------------
\1\ U.S. General Accounting Office. Line Item Veto: Estimating
Potential Savings, GAO/AFMD-92-7, January 1992.
\2\ My CRS memorandum of March 23, 1992 is reprinted at 138 Cong.
Rec. 9981-82 (1992).
---------------------------------------------------------------------------
Comptroller General Charles A. Bowsher, writing to Senator Robert
C. Byrd, later acknowledged that actual savings from an item veto ``are
likely to have been much less'' than the $70 billion originally
projected. Actual savings ``could have been substantially less than the
maximum and maybe, as you have suggested, close to zero.'' Mr. Bowsher
also discussed situations ``in which the net effect of item veto power
would be to increase spending.'' Such a result could occur if a
President ``chose to announce his intent to exercise an item veto
against programs or projects favored by individual Senators and
Representatives as a mean of gaining their support for spending
programs which would not otherwise have been enacted by the Congress.''
\3\
---------------------------------------------------------------------------
\3\ Letter of July 23, 1992 from Charles A Bowsher, Comptroller
General of the United States, to Senator Robert C. Byrd, chairman,
Committee of Appropriations, reprinted at 142 Cong. Rec. 6513 (1996).
---------------------------------------------------------------------------
Another helpful measure in gauging how much savings can be expected
from an item veto comes from the Clinton Administration. President Bill
Clinton used the authority in the Line Item Veto Act of 1996 to cancel
a number of discretionary appropriations, new items of direct spending,
and targeted tax benefits. The total savings, over a 5-year period,
came to less than $600 million. His cancellations for fiscal year 1998
were about $355 million out of a total budget of $1.7 trillion.\4\
---------------------------------------------------------------------------
\4\ The Line Item Veto, hearing before the House Committee on
Rules, 105th Cong., 2d Sess. 12 (1998). The totals would have been
somewhat higher had all of President Clinton's recommendations been
accepted by Congress. He canceled 38 projects in the military
construction bill, with an estimated savings of $290 million over a
five-year period. At congressional hearings, witnesses from the
military services contradicted claims made by the Administration in
justifying the cancellations. President Clinton vetoed the resolution
of disapproval but both Houses easily overrode the veto (votes of 78 to
20 in the Senate and 347 to 69 in the House).
---------------------------------------------------------------------------
A WAY TO ELIMINATE EARMARKS?
It might be argued that the procedures outlined in the bill would
allow the President to single out for cancellation unjustified earmarks
added by Members. I suggest that it will be very difficult to measure
what happens because the fast-track procedure is likely to change
legislative behavior. Suppose, for the sake of argument, that Congress
currently adds 150 earmarks that the President finds objectionable.
Through item-veto authority, he recommends that 50 be eliminated.
Congress agrees to support the cancellation of half that amount. Thus
the total declines from 150 to 125, a significant reduction. But how
would Members behave with the availability of an item-veto procedure?
Perhaps the number of ``objectionable'' earmarks will grow from 150 to
250, allowing Members to take credit for initiatives taken on behalf of
constituents and place the blame on unelected bureaucrats who offer
objections. The President responds with a list of 100 earmarks to be
eliminated. Congress supports him on half. The result: earmarks decline
from 250 to 200. That isn't progress. It's more like a shell game and
far removed from the ``transparency'' used to describe the benefits of
item-veto legislation. Functioning in that manner, the process reduces
rather than enhances congressional responsibility.
OTHER DISPUTED PROVISIONS
House and Senate hearings on the item-veto bill have spotlighted
other controversial provisions. The bill placed no restrictions on the
number of rescission proposals the President may submit to Congress. It
could be one message per bill or a hundred per bill, and the same
rescissions could be sent up a second or third time. As a result, the
President gains substantial control in driving and determining the
legislative schedule. I have already mentioned the 180 calendar day
time for deferring the spending of funds. Third, there is no time limit
when the President must submit his item-veto proposal to Congress. The
problems identified here, and there are others, could be taken care of
by changes to the bill: placing limits on the number of rescission
bills the President may present to Congress, prohibiting repetitive
requests, reducing the 180 days to something like 45, requiring the
President to submit his requests within a specified number of days
(such as 10 or 15), and eliminating the authority to ``modify''
language in mandatory spending bills. Those changes would improve the
bill but they would not address the serious institutional damage that
would be done to Congress, representative government, and
constitutional checks.
REMEDIES ARE AVAILABLE
There are more effective ways of dealing with Federal spending,
earmarks, and budget deficits. Through the regular veto power, the
President can tell Congress that unless it strips a number of
identified items from a bill that is in conference, he will exercise
his veto. Threats of that nature are regularly employed to shape the
contents of legislation. The President may announce that if a bill
exceeds a certain aggregate amount, he will veto it, again putting
pressure on Congress to modify the bill to the President's
satisfaction. At any time the President may submit a rescission bill to
Congress under the 1974 Budget Act procedure. True, Congress can ignore
his request, but through this procedure the President can publicly
declare his opposition to excessive spending and put pressure on
Congress to comply. A determined and skillful President can assure that
legislative inaction comes at a cost.
More important than those tools, however, is the budget that the
President submits. It is within the President's power to recommend a
budget that balances expenditures and revenues in such a way as to
minimize or eliminate budget deficits. It is quite true that the
President's budget is merely a proposal and that Congress can change it
as it likes. But the historical record suggests that the aggregate
numbers submitted by Presidents (total spending, deficit or surplus,
etc.) are generally followed by Congress, and that legislative changes
have to do with priorities, not totals. Presidential leadership in the
form of submitting a responsible budget has far greater impact on
spending and deficits than the availability of item-veto authority.
Mr. Ryun. I would like to begin with Mr. Cooper. I thank
you very much for your comments.
Based upon your testimony, you feel that H.R. 4890, unlike
the 1996 line item veto, is constitutional. Can you explain
perhaps how you arrived at this decision and how you might
distinguish why this is constitutional as opposed to the 1996
one not being constitutional?
Mr. Cooper. I am happy to do that, Mr. Chairman. I think
for me the central defect--and I think the Supreme Court
identified as the central defect--of the 1996 act was that the
President's discretion that the Congress vested was to cancel
law, was to repeal law.
As I mentioned in my testimony, once the President canceled
a provision pursuant to the authority contained in that act, it
was as surely extinguished as it would have been if a repealer
had been enacted under Article I, section 7. And nothing could
recall it, cancellation or appeal; if the law is gone, it is
gone. And whatever authority existed prior to the cancellation
of the repealer could not be exercised.
I think that is the central constitutional teaching of
Clinton. And I think that this bill that is pending now before
you obeys that constitutional teaching, because it doesn't
exercise--it doesn't grant the President the power to exercise
any type of discretion as to the law itself, but rather to
exercise a discretion as to the authority contained under the
law, which it has done since the days of Washington, a
discretion to spend or not to spend.
The powers separated by the Constitution are, under that
approach, completely observed and obeyed. The Congress decides,
all right, here is how much money the President can spend up
to, but we are going to let the President decide what the
discretion will be on that.
But the legislative determination is Congress'.
The administrative or executive branch discretion, I think
this much should go here, this much should go here, and I have
money left over, it should go back to the Treasury; that
executive type of decision-making is in the President.
It is when this body purports to give the President the
legislative power to actually make the law go away, that is
when the separation of powers has been traversed. So I think
that is the central distinction in why I believe this measure
now under consideration falls on the constitutional side of
that line.
Mr. Ryun. I want to take note, you said when there is money
left over going back to the Treasury. I wonder how long it has
been since that has actually taken place. But, nevertheless, I
appreciate your comments.
Mr. Fisher, I know you simply feel this is a bad idea. I
know you mentioned something with regard to perhaps maybe the
dollars saved--I don't want to mischaracterize this--may not be
very significant. I will say this. Coming from a pretty rural
district, every dollar saved, I know, for my farmers means a
great deal. But besides that, I recognize that you feel it is a
bad idea, regardless of who gets the credit or who gets the
damage, but in your opinion you feel that this is
unconstitutional per se?
Mr. Fisher. The point I make is that if you go look at
court decisions, I think with the adjustments to the bill, I
think you could say the courts would not strike this down. But
my point is that even though the courts would uphold a piece of
legislation, it can still do damage to Congress as an
institution.
As far as Chuck Cooper's statement about discretionary
authority on the part of the President, if Congress decides to
appropriate X amount of money and the President can accomplish
that task for less, and the remainder goes to the Treasury,
there is no damage done, no discrediting of Congress. But there
would be under this procedure where, in the bill that you just
passed, the President has a chance to make public a whole list
of things that he says should never have been in the bill in
the first place.
Mr. Ryun. Thank you for your comment. I am going to turn to
Mr. Spratt at this point for any questions he may have.
Mr. Spratt. Thank you very much, Mr. Chairman. I think you
would all agree that this bill represents a substantial cession
of authority, transfership of authority from the Congress to
the President.
I doubt that many people who are following this debate
really appreciate how broad a ground of authority this is. One
way of illustrating how far it goes is to look at how it
applies not just to discretionary spending every year that is
appropriated, and to some extent line items, a lot of the
appropriations process is accomplished through committee
language as opposed to bill language--but this also applies
broadly, much broader than the Line Item Veto Act passed in the
90s, to direct spending or entitlement spending.
In particular, I don't have the bill citation, but on page
13, this bill would extend to the President the power to, in
the case of entitlement authority, prevent the specific legal
obligation of the United States from having legal force or
effect.
Now, Mr. Cooper, Mr. Dinh, Mr. Fisher, can I ask you. Does
this mean that the President could say if the Medicare trust
fund, Part B trust fund, Part A trust fund, runs out of money
at a given time, that the Government of the United States would
not have the authority to pay the obligations of the Medicare
program to provide for benefits of the program except to the
extent that trust fund assets would cover the cost? Could he go
that far? Could he literally cancel out a certain program of
that magnitude with a stroke of a pen; obviously, at least,
propose it to Congress?
Are we talking about that bottom ground of authority? We
are not talking about a bridge. We are not talking about a
road. We are not talking about a museum. We are talking about a
whole program, Social Security, Medicare, the farm program.
Mr. Fisher. The way I read the bill on page 13 when it uses
the term ``modify,'' you are giving the President not just
discretionary authority on spending, but discretionary
authority on legislation. The President could, with the word
``modify,'' rewrite legislation. And that is the heart of the
Congress' power, to shape and write legislation. Here under
this procedure, the only one who could modify legislative
language would be the President. Congress could not. Congress
would be restricted to an up-or-down vote. So I think you are
giving away both spending power and legislative power.
Mr. Spratt. He can reach back to existing entitlement
programs. No. 1, he has got elsewhere in the bill the power to
modify direct spending. But here he has the authority in the
case of entitlement authority to prevent the specific legal
obligation of the United States from having legal force or
effect. Social security, Medicare. Am I reading too much into
this?
Mr. Cooper. Congressman, I did not previously, until your
comments, consider the possibility that the President could
propose a rescission with respect to existing spending
authority.
And, in fact, I guess the way I had read the bill was that
he could not----
Mr. Spratt. As I understand, any spending authority enacted
after the effective date of enactment of this bill. So once
this bill comes, anything enacted thereafter is fair game.
Mr. Cooper. OK. And now that I look at the effective date
provision, having not thought about the question you are
raising until now, that may be a valid interpretation of it.
Mr. Spratt. In your language in the line item bill was one
new direct spending item. I am not sure what direct spending
item is, because there is a lot of direct spending that comes
out of big accounts rather than what I would consider a line
item or an item in the budget. But it was obviously a tentative
attempt to see if that could be part of the President's arsenal
without giving him too much, limited to one particular
provision which happened to come down on the City of New York
in the form of some Medicaid cuts.
Mr. Cooper. It is correct that the 1996 act applied only to
spending authority, moneys that were enacted, obviously, after
that line item veto enacted. And the President's authority
could only be exercised within 5 days--the cancellation
authority, within 5 days of the passage of the new spending
authority.
I have always, I guess, grasped--I have never heard the
suggestion previously made--that the President could, for
example, in the year 2010, if this passes, go back and propose
a rescission with respect to a spending measure or authority
that was created, you know, in some year past. This is the
first suggestion I have heard of that. It may have been in
common discussion, but not to my ears. And I don't immediately
see anything in the bill that contradicts your point. But I
will say that I have understood its purpose to be focused only
on matters of new spending or taxing authority that comes into
existence after the passage of the act, and the President would
have to move contemporaneously with that.
Mr. Spratt. The President proposed that Congress would have
to dispose, we would actually have to pass a rescission bill
with that provision in it. However, as drawn, this statute will
allow, this bill would allow the President, by proposing to at
least effect the deferral of this expenditure, this entitlement
obligation, for a period of 6 months.
Mr. Cooper. That is correct. The key point, however, that I
want to continue to emphasize is that the elimination of that
authority and the spending, wherever it may come from, the
spending authority, isn't eliminated unless this body agrees
with the President's proposal. And that, to me is what this
measure really is most easily likened to, and as a litigator
this comes readily to my mind, is a petition for
reconsideration, which is, you know, a procedural device that
in every courtroom is commonplace. When a court makes a
decision initially, the litigants can look at it, and they can
always petition for reconsideration. And that is what,
essentially, the President is saying to this body.
I see a spending measure here, and you know, I just----
Mr. Spratt. In its purest sense, that may be true. But
there are certainly conceivable opportunities for a President
to use it more manipulatively than simply the way you have
described it. Jim Wright used to say, to understand the
problems with a line item veto you need to have served under
Lyndon Baines Johnson.
Lots of Presidents can be manipulative like that. And our
concern, my concern right now in this line of questioning, is
how do you detract from this bill as much as possible the
potential for abuse that a manipulative President could put
this act to? For example, the requirement in the past when we
had this bill on the floor, the President had to act quickly.
Within a week after getting the bill, he had to send this back
for petition, for reconsideration. Now he can act at any time
on any legislation that hasn't yet been fully spent out. He can
go back, and if he is trying to get the last Republican Member
to vote for the prescription drug bill, he can pull his
arsenal, he can pull this out of his arsenal and use this as
leverage.
Mr. Cooper. And, Mr. Spratt, I for one think that some type
of reasonable time limit from the enactment of a spending or
taxing measure for the President to propose a rescission would
be a positive improvement on the bill as written, quite
frankly, because I think it would address a number of the
concerns that have been voiced about potential for abuse by a
manipulative President.
I have to quickly add, however, that I do think the
legislative process, you know, in just the 200-year tradition
of our country, is that some level of interbranch good faith is
assumed whenever legislation is passed. And there is always
authority for a President to abuse authority or others who have
authority under law.
Mr. Ryun. The Chair would like to interrupt at this point.
I would like to give every opportunity to other members for
questions. If you would observe the 5-minute clock, there may
be time for a second round of questions. Mr. Cooper has time,
but he apparently needs to leave around 11:30, and I would like
you all to have an opportunity to ask him questions. At this
time, I would like to turn to the sponsor of this bill, Mr.
Ryan.
Mr. Ryan. Thank you, Mr. Chairman. First let me try to
address some of the issues and questions that have been raised.
This is much like the bill, Mr. Spratt, that was introduced in
the past Congress to achieve the same purpose.
As to the question of the manipulation by the executive
branch, could a future LBJ really manipulate this thing? First
of all, that is not the intention of this bill. Second of all,
the bill as currently drafted does not give the President the
ability to go back years past and upset entitlement policy. But
just to make it very, very clear that this is not the intention
of this bill, I intend to introduce in the manager's amendment
next week in the markup to make this very, very clear, No. 1,
the way we wrote this bill in the beginning was we put 180
calendar days out there, knowing that we needed to figure out
how to make it a little cleaner, a little crisper. The reason
we put 180 calendar days at the time was there was great
constitutional debate about the Chadha case and about the
constitutionality of how these time limits are set.
So now that we know a little bit more, and this is the
question I am going to: No. 1, I think we need to put a time
limit on the front end. How much time does the President get to
submit a rescission request to Congress? There is a finite time
limit that ought to be in place. I think that addresses the
gentleman's point.
No. 2, the calendar day versus other kinds of time limits.
Why 180 days? The reason we put 180 days in there is because we
didn't want to see a situation where Congress could game the
system by passing, let's say, an omnibus appropriations bill in
the middle of October, then going home until the State of the
Union address on January 22nd and waiting it out; and waiting
out the deferral period of a President. That is a very
conceivable situation. So what we wanted to do was be able to
incorporate large recess periods within the legislative
process.
My personal preference is that we have a time limit on the
front end and a deferral on the back end, tie it to legislative
days, a finite number of legislative days which incorporates
any kind of intervening recess. Now, when we first drafted this
bill, we were concerned that might run into a Chadha problem.
I want to ask Mr. Cooper and Mr. Dinh about that. But
before I do, let me address something Mr. Fisher said that this
is a bad tool or could be used to increase spending. I don't
see it that way. The way I see it--and this is my 8th year as a
member, 5 years as a staffer, part on this committee in the
past--there is no transparency and accountability in the
spending system at the end process here in Congress.
With the earmark reform we are working on right now, we are
trying to bring some transparency and accountability in
spending in the beginning of the process when we write these
bills and pass them through the original House and Senate
passage. But when these bills go to conference and come out of
conference, there is a lot of brand-new spending policy that is
contained in large pieces of legislation.
Members of Congress have one vote, yes or no, on the entire
bill. The President of the United States has one decision, sign
it or veto the entire piece of legislation. And it is that
stage in the process where there is lacking any set sign of
transparency and accountability. This is meant to bring
transparency and accountability through this whole system by
revising the rescissions process which is moribund. The
rescissions process today effectively doesn't work. It is
ignored. This simply makes the rescission process work.
So my specific question, Mr. Dinh and Mr. Cooper, because I
know you two have looked at this a lot, is will we run into
Chadha problems or any constitutional court problems by trying
to time-limit the deferral period?
What we want to accomplish is a legitimate deferral period,
but not one that is too long. We don't want to give the
President 6 months on anything. But we also want to make sure
that Congress can't rig the system by passing major spending
bills, then recessing for 3 months and outlasting the deferral
period. So we would like to have a finite deferral period which
incorporates some of these large recesses that we have in these
intervening times.
Could you speak to that issue?
Mr. Dinh. On the issue of legislative days versus calendar
days, I see an issue there. I don't think it is a very serious
issue or even a significant one in terms of constitutionality
either under Chadha, under a one-house legislative veto issue,
or a presentment clause issue.
The reason I recognize it as an issue is that, of course,
the recess decision is not an Article I, section 7, decision--
legislative act. But precisely because it is not a legislative
act, it should not have to go through Article I, section 7,
issue.
That it has a collateral effect on this and a whole bunch
of other laws with respect to the operation of those laws, I
don't think raises a serious constitutional issue under Chadha
or other separation of powers issues. And there are, by the
way, no authorities on this because it doesn't arise very
often.
The closest analogy I can think of is the pocket veto
issue. That is, the Constitution requires the President to
return a signed bill within 10 days. Obviously, whether or not
he is able to return that depends on whether or not the
Congress is in session.
And so there was a challenge in the 1930s that this
obviated--this extended the number of days for him to return
the bill, and the Court rejected that argument, saying that is
part of the constitutional process, and just because Congress
happened to be out of session doesn't make it to be a
constitutional issue. And so, conversely either the legislative
days or calendar days does not pose such a type of Article I,
section 7, problem. If it did pose a problem for legislative
days, then using calendar days wouldn't help because you have
the same--the same issue about Congress going in and out of
session during the calendar day. And so--but I think that the
decision whether or not to be in session is a nonlegislative
act. It doesn't raise a significant issue at all.
Mr. Ryan. Thank you.
Mr. Ryun. Mr. Cooper, would you like to respond to that?
And I would like to remind members that there is a 5-minute
time limit. Green means you can ask and answer questions.
Yellow means you wrap it up. And red means it is time to pass.
So, Mr. Cooper.
Mr. Cooper. Mr. Chairman I really have nothing to add to
Mr. Professor Dinh's analysis. It seems quite sound to me. I do
see the administration's concern about a Chadha problem with
triggering, you know, the President's suspension authority on a
negative vote in one house or the other. But I would just
endorse what Professor Dinh has said.
Mr. Ryun. All right. Thank you very much.
Mr. Cooper, it is your turn for questions.
Mr. Cooper of Tennessee. Thank you, Mr. Chairman. First, on
page 6 of Mr. Cooper's testimony, he says precisely the same
text, and that text is signed into law by the President.
Quoting the Clinton decision, I think--I would hope that
the five constitutional suits that are headed toward the
Supreme Court right now concerning the Deficit Reduction Act
could perhaps get you--your or Mr. Dinh's expertise, because as
you are well aware, identical texts were not delivered to the
President.
The President picked one over the other in a terrific
breach of constitutional duties in my opinion.
But the big question--it is a little bit sad that great
constitutional scholars like you three have to be dragged into
Congress to try to give us backbone, because that is what this
issue is all about. The President has never used his veto
power, the longest stretch since Thomas Jefferson. He has
really never used his rescission power which every President
since Nixon has used. So what this is really about is Nero
fiddling while Rome burns.
Now that sounds a little extreme, but if you read ``The
Wall Street Journal'' yesterday, you will discover that
Standard & Poor's, the leading rating agency for bonds, said
that U.S. Treasury bonds would lose their AAA rating in 2012.
That is pretty serious, and this is from Standard & Poor's, not
any political organization. The credit of America is being
destroyed.
Another point, the head of the GAO has testified to this
committee that the cost of 1 year of delay in addressing some
of our fiscal problems is $3 trillion, $3 trillion. Now, this
Congress this year will meet fewer days than any Congress since
1948. Harry Truman called that ``the Do-Nothing Congress.''
As Mr. Spratt mentioned earlier, this is a Congress without
a budget, and here we are talking about fine-tuning
Presidential powers. We haven't produced a budget, and the
President has never used the powers he has always had. Who is
fooling whom here? So that is why I use strong words like
``Nero fiddling while Rome is burning.''
We must protect the credit rating of America. We must not
return in January to a problem that is $3 trillion worse. Those
are the real issues you face. And y'all have great
constitutional expertise, but we have budget responsibility,
and we are not meeting that responsibility.
So whether this is constitutional or not--and even Mr.
Fisher is agreeing that it could be drafted to be
constitutional--we are missing the larger central question that
affects the future of our country, and you are not expected to
be experts on that. But this is one more fig leaf to try to
hide the nakedness that most citizens are not aware of, that
the President has not used the powers he has got.
Two of you gentlemen have conservative backgrounds. To me,
the President is not acting in a conservative fashion. The
Reagan economist, Bruce Bartlett, has written a book about this
called ``Impostor: How George W. Bush Bankrupted America and
Betrayed the Reagan Legacy.''
Is this conservative that we are seeing from this
administration when, so far as I know, for the first time since
the existence of Standard & Poor's, the credit rating of
America is endangered not decades out, but in the relatively
near term. What is going on here except an excuse from a lot of
Congressmen, and some in both parties, to stop action or delay
recognition of these problems?
These are problems that simply must be addressed whether
you are conservative or liberal, strict constructionist or more
activist approach. And it is fine to talk about all the legal
niceties, but the larger issues are simply being ignored.
This is not the Judiciary Committee. This is the Budget
Committee, and we do not have a budget for America this year.
So forgive me for the statement. If I could return my quick
earlier point, I hope that you gentlemen can use your expertise
in that pending Deficit Reduction Act case. Thank you.
Mr. Ryun. The next question will come from Mr. Lungren. You
have 5 minutes.
Mr. Lungren. Thank you very much, Mr. Chairman.
I am kind of surprised at some of the comments from my
colleagues here. I mean, my ranking member, Mr. Spratt, called
this a diversionary tactic. I guess the next thing we are going
to hear is killing al-Zarqawi was a diversionary tactic. This
is something that is serious. This is an issue that we have
here that all of us, I thought, were serious about.
If I could borrow from George Will, this bill is kind of
like the Betty Ford Clinic for earmark addiction in both the
executive and legislative branch. I returned to Congress after
a 16-year absence, and frankly, I am horrified at the lack of
concern about spending constraint. And I remember Congress'
reaction when I was a Hill staffer years ago, and it was to
punish Richard Nixon for trying to have spending restraint by
passing a bill that cut off some of his authority of
impoundment.
So now we are talking about in some ways sharing the
responsibility on spending restraint.
I look at this as transparency. I look at this--you talk
about a manipulative President. Hey, come on, let's wake up.
There have been LBJs and others for years, both in the House
and the Senate and the Presidency. At least this requires it to
be on the table. At least there is a little bit of a window
into some of the spending, but I would like to ask a couple of
constitutional questions here.
The U.S. Supreme Court indicated in the Clinton case that
both Houses of Congress must agree on any rescission. That
would seem to take care of the bicameralism requirement. But
looking at Clinton and Chadha, how does the proposal meet the
present requirement? The bill makes reference to a bill to
rescind the amounts of budget authority or items of direct
spending as specified in the special message in the President's
draft bill.
I would ask one question: Is it enough to present the
approval of the items rescinded or should we present the
legislation altered by the rescissions that will be signed into
law? That is one question.
The second question is this: Could one Congress pass the
law and send it to the President at the end of this Congress?
For instance, we are here in a lame duck session this December
if this bill were in effect; we pass a spending bill to the
President. The period of time, whatever it is 180 days, or
legislative days, goes over into the next Congress.
Is there any constitutional problem with a new Congress
rescinding through this act something done by a previous
Congress? Because presumably what you are doing is suspending
application of the law as opposed to actually having a
completed law, in a sense; is that any problem?
Mr. Dinh. If I may take a first crack at that, I look at
the procedure set forth in the act here as no more
extraordinary than if you were to consider a repealer. Here are
special procedures for a special kind of repealer. And so the
language of a repealer that is passed by Congress and presented
to the President is simply this item as opposed to this act or
this provision of law is hereby repealed.
Here it says, this specific item is hereby rescinded so it
works as a partial repealer of the Budget Act and also a--or a
special amendment, subsequent amendment, to that act. So it is
not any more extraordinary.
With respect to crossover presentment, the normal rules
would apply with respect to the end of session, whether or not
it has come in within the session and signed within the
session.
With respect to repeal of prior Budget Acts, that is, prior
budget cycles, again, I think that the question there is with
respect to whether or not you can rescind the authorization
prior--that what had been previously granted--I see no special
problem with that with the exception of whatever limiting
language you may have in any given Budget Act with respect to
its validity. Like I said, it is just because this is a
legislative line item veto. The legislation that is used is
like any other Article I, Section 7 issue.
Your question also pointed out the earlier question
regarding entitlement programs. I think the provision that was
read earlier with respect to modification and withdrawing of
entitlement is necessary as legal matter because of the
Goldberg v. Kelly case that says that there is a new property
interest out there with certain authorizations that give people
certain expectations of receiving that property.
That particular provision takes away the statutory
entitlement, whether or not Goldberg v. Kelly extends also to
create a new entitlement of a constitutional nature, is a
question for the courts subsequently to decide.
Mr. Cooper. I listened very carefully to Professor Dinh's
response, and I did not detect anything that I thought I, in
any way, disagreed with. It does seem to me that passage of
simply, you know, the approval of the President's rescission
proposal would do the trick. I don't really detect any reason
why going farther and actually perhaps reenacting the
underlying measure without the rescinded measure or item would
be a necessary step, if I understood your question correctly,
Congressman Lungren.
And also, I think that the constitutional mechanics of this
process are that Congress is enacting a repealer, and a
subsequent Congress--I would see no reason why a subsequent
Congress would have any restraints on its ability to repeal
something that a previous Congress had enacted even if it were,
again, just pursuant to special provisions that the Congress
has effectively in this bill promised the President it will
undertake should he make a proposal pursuant to the authority
that is provided him.
Mr. Ryun. At this time, I would like to recognize Mr. Neal
for 5 minutes.
Mr. Neal. Thank you very much, Mr. Chairman. Thanks to the
panelists. It is really nice to have individuals of your
caliber here today.
Is it your position that Congress currently has the tools
to restrain spending? Does anybody disagree with that
statement?
Mr. Fisher. I agree it has the tools.
Mr. Neal. Mr. Dinh.
Mr. Dinh. No.
Mr. Neal. I want to have brief answers because I have a lot
to get in here.
Do you think Congress currently has the tools to restrain
spending?
Mr. Fisher. Yes.
Mr. Neal. Mr. Cooper.
Mr. Cooper. I don't disagree with that.
Mr. Neal. Thank you.
Is there a guarantee that if this would be enacted that
anything other than priorities would be shifted, meaning that
the President would decide what priorities we are spending on
rather than Members of Congress?
Mr. Fisher. I think the main impact would be priorities,
not total spending.
Mr. Dinh. There are no guarantees.
Mr. Neal. No guarantees.
Mr. Cooper.
Mr. Cooper. I think that this provision simply identifies a
way that the Congress and the President, working together, can
make decisions and correct earlier mistakes. That is all.
Mr. Neal. Thank you.
Do Members of Congress serve under the President?
Mr. Fisher. No. As I last recall, I think they take an oath
to support and defend the Constitution.
Mr. Neal. Mr. Dinh.
Mr. Dinh. No.
Mr. Neal. Mr. Cooper.
Mr. Cooper. No, sir, of course not.
Mr. Neal. Mr. Ryan indicated in his comments that the
Framers would be thrilled with this initiative. Do you think
Mr. Madison would be happy with the proposal that is in front
of us?
Mr. Fisher. I made a point in my statement that Madison and
others expected each branch to protect itself. And Congress
being the first branch, the branch closest to the people, he
wouldn't have wanted to see it put itself in a position where
it would be injured or demeaned or discredited.
Mr. Dinh. One note there. This is--nobody can speak for
James Madison, but I would note, James Madison is the
forefather of understanding political process, political
economy, and I think he would recognize the collective action
problem.
Mr. Neal. But he was also haunted by what happened with
Charles and what happened at Runnymede.
Mr. Dinh. No question.
Mr. Neal. Very concerned about kingly responsibilities.
Mr. Dinh. If this were a delegation, an abdication of
responsibility to the executive branch, I think that would be a
point very well taken, but this is still retention of authority
by the legislature.
Mr. Neal. Thank you.
Mr. Lungren kind of glossed over the notion of Lyndon
Johnson. Have you ever listened to the tapes of Mr. Johnson and
Senator Long as they discussed a new courthouse in Shreveport,
Louisiana? I assume you haven't.
Has anyone read the trilogy recently that was offered by
Taylor Branch as one of the great scholarly achievements on
Martin Luther King's life, when Lyndon Johnson suggests by 1965
and 1966 that the war in Vietnam is a mistake, and he can't
figure out how to get out of it--58,000 people dead when the
war ended in 1974.
Is there a potential here--I will ask our scholars, and you
truly are that, and I have great regard for what it is you do.
Is there a potential here for executive mischief?
Mr. Fisher. Of course, there is. But let me just say, also,
we have been talking about transparency here, and that's an
important issue.
Mr. Neal. I have the press releases from members of our
committee on the earmarks that they have embraced.
Mr. Fisher. Right. But I am raising the question about what
transparency this bill has on the executive side. Once the
executive branch puts together that list of items to come back
to be terminated, how did that list get put together? Would
these be congressional add-ons? Does that mean you can't add
anything to the President's budget?
Mr. Neal. Well, I think there is a great constitutional
issue that we ought to be focused on, as members of the
legislative branch, and that is called the K Street Project,
because in some measure, we are here today because of the K
Street Project.
If you look at what has happened to the earmarking process
in Congress, where members of our body routinely embrace press
releases touting their spending achievements back home, but
come in and complain about the spending priorities of the
Nation, I mean, it seems to me that transparency is precisely
the issue. Put your name next to the earmark and offer it in
public, not the way that it is done now where the press and
others can't get to who the author of the actual legislation
is.
I mean, the three scholars here agree, and you have a great
reputation, and I hold you in the highest regard. We
acknowledge that the tools are available to this Congress. I
voted for the Bush budget No. 1, 2 Clinton budgets. We balanced
the budget with cuts in revenue increases and at the same time,
at the same time, Members of the other side embraced a
constitutional amendment to balance the budget? This is
gimmickry. Stand up for the institution.
My hands, I feel, are very clean today. I will tell you
why. I oppose the balanced budget amendments to the
Constitution. I opposed the line item veto and stood for the
institution that imposed term limits. And there are Members of
the body today who voted for the term limits and remain here to
this moment, long after their vote had been cast.
And I will close on this note. The best speech I ever heard
came from Henry Hyde on why we shouldn't use constitutional
gimmickry.
Mr. Ryun. Gentleman's time has expired.
Mr. Bonner.
Mr. Bonner. I really came to the hearing today to learn and
not to ask questions. But this debate and discussion has
actually raised some questions that I would like to try to get
on the record.
If any of the three of you had the role of chief counsel to
the Speaker of the House, not your current role, and your
advice was if by embracing this measure that many of us believe
we do need both sides--the Blue Dog conservatives, the
Democratic side, and the RSC members and others on our side
that are very concerned about the growing spending habits in
this city, but if your roles were to advise the Speaker of the
House about whether or not by embracing this bill we would be
giving up our constitutional status as a coequal branch of
government to the administrative branch, in that role and
wearing that hat, could you advise that, in fact, setting aside
the goal of getting the balance--getting the budget and the
spending habits under control, could any of you advise the
Speaker of the House that this would, in fact, not weaken our
coequal status with the administrative branch?
Mr. Fisher. I think the bill and its basic concept would
weaken Congress. If Congress wants to protect that balance,
then I think that it needs to be a process where just as the
executive branch wants to go after some legislative decisions,
Congress can go after some executive decisions.
If you remember, that is the way it worked in 1992 where
there was a package at the end that had a rough balance, and it
wasn't just Congress taking the hits.
So I think you have to have some process. If you remember,
in 1992, they sent up about a $10 billion package of things
they made fun of Congress for ever having enacted. And Congress
said, if you want to play that game, we will go after some
things on the executive agency side that look funny also.
In the end, there was a rough balance, and I think the
status and prestige of both branches was protected, but I don't
think that this bill protects Congress that way.
Mr. Dinh. I think I may disagree with my friend and
respected colleague, Lou Fisher, here, because I think in one
way, this bill not only does not denigrate congressional power,
but in one way, it affirms it.
If one takes as a given--I think that everybody has agreed
that the President has some discretion not to spend or to
pounce on certain funds even in the absence of any
congressional authority, what this bill does is, it actually
gives the President certain authority to defer certain
spending, and in that sense reasserts congressional authority
and regulation into that branch regulatory budgetary process.
So, in this regard, it is a reaffirmation of the congressional
role in the spending decision, in addition to the authorization
and appropriation decision.
Mr. Cooper. I, too, disagree with my friend Lou Fisher's
thoughts on the idea that this would result, even if
constitutional, with ``discrediting,'' I think is the word he
has used several times, this body and otherwise demeaning the
legislature in favor of executive branch authorities. I don't
look at this that way at all.
I see this, again, as I earlier analogized, as a mechanism
by which this body is looking to the President for what amounts
to, again, a petition for reconsideration of certain decisions
that the body has taken in a collective effort; that that may
well have spawned some errors that are in need of correction,
some things that are not in the best interests of the country.
If more carefully considered in isolation and if the
Congress doesn't agree with the President's judgment on this--
and, yes, the President certainly can make his arguments in a
robust way, designed to develop as much political force as he
can gather behind his views on this--Congress has the same
authority on its side. But at the end of the day, the question
becomes, well, do the President and the Congress believe and
agree that this measure was not well taken? And if they don't
agree on it, it stays.
I don't understand that, as a process, as any more
demeaning to this body than is a petition for reconsideration
that I file--all too often, unfortunately--in a court in which
I am litigating. It is no--you know, just asking, Could you
look at this again; I think you didn't consider this or that
concern. It is not demeaning process at all. It is just error
correction.
Mr. Bonner. Thank you.
Mr. Ryun. Gentleman's time has expired.
The Chair would urge everyone to stay to 5 minutes. We are
expecting votes at about 11:10. That would give us an
opportunity for everyone that is here to ask questions.
At this point, I would like to give an opportunity to Mr.
Moore, who is recognized for 5 minutes.
Mr. Moore. Thank you, Mr. Chairman. And thank you,
gentlemen, for being here this morning with your testimony. As
I understand this bill, a rescission bill is to be used for
deficit reduction purposes. Is that generally correct?
Mr. Fisher. Yes.
Mr. Cooper. Yes.
Mr. Moore. Thank you.
I think all of you are familiar with the now-expired rule,
at least the way it was, called PAYGO or pay-as-you-go. You
have all heard of that rule and are all familiar with that
rule?
Mr. Fisher. Yes.
Mr. Cooper. I am sorry. I am not familiar with that.
Mr. Moore. Mr. Fisher, can you give just a brief one- or
two-line statement about what PAYGO means?
Mr. Fisher. It just means that anyone that has an
initiative that would unbalance the budget has the
responsibility to do something of a corrective nature so that
you have a neutral result.
Mr. Moore. So if you have a new tax cut proposal or a new
spending proposal, the second part of the proposal has to be,
here is how it is going to be paid for so it is revenue-
neutral; is that correct?
Mr. Fisher. That is correct.
Mr. Moore. Would you support the reinstitution of that?
Mr. Fisher. I think that was a discipline that, to my
knowledge, worked well and would work well again.
Mr. Moore. Mr. Dinh.
Mr. Dinh. I am just an absent-minded law professor. This is
way above my pay grade.
Mr. Moore. All right.
Mr. Cooper, having heard the explanation----
Mr. Cooper. Having heard the explanation, I honestly don't
have an opinion of it. It doesn't seem to me to pose a
constitutional issue. That is the only thing I would presume to
advise this body on.
Mr. Moore. I am trying to get at a policy of deficit
reduction, and maybe there are more effective ways to do it
than simply the line item veto or rescission. In fact, Chairman
Greenspan, I believe, told this committee that he thought PAYGO
should be reinstituted not only with regard to new spending
proposals but also with regard to new tax cut proposals because
both can reduce the money available to Congress to use as it
sees fit. Does that make sense?
Mr. Cooper. It does to me, yes.
Mr. Moore. All right.
Somebody--one of my colleagues on the other side mentioned
George Will, the columnist. And George Will wrote that the
administration's line item veto proposal would, quote,
``aggravate an imbalance in our constitutional system that has
been growing for seven decades, the expansion of the executive
power at the expense of the legislature.'' And that was 16
March of 2006.
Does anyone disagree with George Will's observation there?
I am not asking my colleagues. I am asking the witnesses here.
Mr. Cooper. I, for one, despite my reticence to venture
into disagreement with Mr. Will, do disagree with that
proposition. I don't think there has been a transfer of power
or authority, certainly not constitutional authority, from the
Congress to the President for seven decades.
Mr. Moore. All right.
Mr. Dinh.
Mr. Dinh. I have nothing to add.
Mr. Moore. All right.
Mr. Fisher.
Mr. Fisher. I see it as a transfer that has been going on
for a long time.
Mr. Moore. Well, despite my reticence to agree with George
Will, I do agree with him here, too.
House Appropriations Committee chairman, Jerry Lewis,
testified before the Rules Committee that Presidents might
misuse this proposed authority to target rescissions for
political purposes. Now, Congressman Lewis is a Republican. We
have a Republican President, but this President won't always be
President.
Does that concern any of you that Democrats or Republican
Presidents in the future might misuse this kind of power for
political purposes?
Mr. Dinh. I think institution design and procedural
amendments, which I think this is the core of, should be made
irregardless of who is in power at any given time, which is why
I think that this is a very good measure.
I return to Mr. Cooper's very good analogy regarding a
backbone both to all participants in this process, both the
Chamber's and also the President's.
The Bible teaches us, even where the spirit is willing, the
flesh may be weak, and that is why Ulysses has----
Mr. Moore. The flesh certainly is weak.
Mr. Fisher, any observation here?
Mr. Fisher. Yes. I would just underscore that in 1921 there
were people who said, let's have an executive budget and
prohibit Members of Congress from adding to it; you would need
the permission of the Secretary of the Treasury. Congress
rejected that.
So Congress understood that when the President sends it up,
it is an executive budget; when it gets up here, it is a
legislative budget, and we do with it as you like. I think this
bill threatens the bargain struck back in 1921.
Mr. Moore. None of you are concerned about a grab for power
by the executive branch? And I am not just talking about
President Bush. I am talking about other Presidents in the
future. Is that not a concern?
Mr. Dinh. I don't think this bill----
Mr. Moore. I have heard from you. I need to hear from the
other two. I am sorry to cut you off, Mr. Dinh.
Mr. Fisher. It is a concern to me.
Mr. Moore. Mr. Cooper.
Mr. Cooper. Sir, I do not regard this as a grab for power.
I did regard the cancellation authority in the 1996 Line
Item Veto Act as just that and as a constitutional offense. And
despite the fact that I favored as a policy matter and told my
clients--very liberal members of this body and very liberal
members of the Senate--that I disagreed with them at a level of
policy, I thought that a line item veto would be a good thing
if it could bring some additional discipline to the budgetary
process.
But notwithstanding that, I joined them on a constitutional
challenge to that bill. I don't think this one suffers from
that kind of problem.
Mr. Moore. Thank you.
Mr. Ryun. The gentleman's time has expired.
Mr. Hensarling.
Mr. Hensarling. Thank you, Mr. Chairman.
No. 1, I would like to say how happy I am that we are
actually holding this hearing. Since the time I have been a
Member of Congress, it has been somewhat of a rarity that we
actually examine the constitutionality of what we are about to
engage in. And although I disagree with most of Mr. Fisher's
testimony, I certainly agree that individual Members of
Congress do have the duty to examine the constitutionality of
the laws upon which they are about to vote.
I must admit, though, that I find it somewhat ironic that
we are questioning the constitutionality. It only comes up in
the context of when we are actually trying to save the people
money. Any time we spend the people's money--rarely do I hear a
constitutional argument against funding bike paths in Oregon,
indoor rain forests in Iowa, bridges to nowhere in Alaska--or
my favorite of the month, proposals to allow folks to buy flood
insurance after the flood has arrived. I never quite hear the
constitutionality being questioned in those contexts.
Mr. Fisher, in your testimony--our issue here really dealt
with the constitutionality of the line item veto. Frankly, I
heard very little in the way of argument in that regard. It
appears to me that your main thesis is that this is going to
upset a balance of power and do us very little good.
And, certainly, I will defer to the collective expertise of
this panel, but my reading of history is such that as we look
at the history of the Republic, it appears to me that really,
until 1974, the Executive did have a functional line item veto
and did have the power to delay and essentially impound funds.
And so one might say that this would help in--to a modicum to
go back to the status quo ante.
Is my reading of history correct, Mr. Dinh? Or how would
you characterize it?
Mr. Dinh. Yes. As both my and Chuck Cooper's testimony
pointed out, especially Chuck's, the discretion not to spend,
or affirmatively to impound, is one that started with the
beginning of the Republic and continues to this day.
Mr. Hensarling. Mr. Cooper, do you have a comment?
Mr. Cooper. Only to acknowledge that I believe that is
correct.
Mr. Fisher. May I add that the President has had that
discretion provided he carried out the purpose of the
legislation. The difficulty was when Presidents began to
terminate, or cut in half, programs.
Mr. Hensarling. OK. Upsetting a delicate balance between
the branches of government again, my reading of this is again,
we are looking at ultimately the legislative branch of
government being able to vote on a proposal of the President,
passage by a majority. How is this functionally different from
our fast-track authority on trade agreements?
Again, I will start with you, Mr. Dinh.
Mr. Dinh. Sir, it is not--and I do not think that the
balance of power in the Constitution is anything but delicate.
You all know that there are politics going on in this town.
There are very aggressive interbranch politics; and where there
is advantageous activity by one Member, one House, or one
Chamber, the President counteracts against that. Like we just
asked, the Members in the House and the Chamber would
counteract against advantageous activities by a President.
Mr. Fisher. On the fast track, there is a difference
between the trade fast track and the fast track in this bill.
The fast track on trade, it is a multistep process, and there
are opportunities with informal bills and so forth to have
Congress weigh in and change things before the implementing
bill comes up. But that doesn't occur here; you have no chance
to change the list of items that come up to you.
Mr. Hensarling. Mr. Fisher, in your testimony, you also
argue that this does apparently very little good in battling
spending. But isn't that a little akin to saying, the house is
on fire, and let's not get a bucket of water thrown on it
because one bucket doesn't do us much good? But doesn't one
bucket perhaps lead to a bucket brigade?
We are looking now at roughly $8 trillion of debt, $300
billion of ongoing deficits. I always hear the argument around
here, well, that does very little good, given the magnitude of
the problem.
I wish that the gentleman from Tennessee was still here, as
he was crying about the long-term deficit that we have. I
happen to remember that when the President tried to lead an
effort to save Social Security as we know it for the next
generation, I think I remember every single Democrat fighting
the proposition, in doing everything they could to ensure that
that did not happen. And indeed, those who brought up PAYGO
know that it has absolutely no impact on the spending patterns
of Medicare, Medicaid and Social Security.
And I see that our ever-able chairman with his gavel is
gaveling me down.
Mr. Ryun. Very good.
At this time, I would like to yield 5 minutes to Mr.
Campbell.
Mr. Campbell. Thank you. Hello. Oh, there we are. Thank
you, Mr. Chairman.
I think I heard a general consensus from the panel that you
really don't see a major constitutional issue on the proposal
as it is written. But what I think I did hear was some concern
about whether it will accomplish the goals and objectives for
which it is intended.
I think, Professor Dinh, you suggested that you didn't
think it was a constitutional issue, but you had some question
as to its effectiveness.
I think you, Mr. Fisher, directly suggested that it would
have--could perhaps result in increased spending rather than
reduced spending.
I am not sure you opined on this, Mr. Cooper, but I will
ask you to do that, I suppose, now.
So given that--in spite of some of the comments that have
happened in this committee during this hearing from the dais up
here, I don't think given that--what is it, we, Congress, in
something like 33 out of the last 37 years has spent more than
revenues through Congresses of both parties, presidents of both
parties, and virtually every combination thereof. I don't think
anyone can really disagree legitimately with the fact that we
need more spending discipline, some structural discipline
around the spending process.
Starting with you, Professor Dinh, do you have any
suggestions relative to the bill, the proposal as it stands,
that, in your view, would make it more effective as a spending
control without trodding on any constitutional grounds?
Mr. Dinh. No. They are only the amendments at the margins.
I guess one of the things that Mr. Ryan telegraphed at the
beginning of the hearing is perhaps to limit the number of
times that the President may do it in order to take care of
some of the concerns for abuse.
One way to address the problems of constitutional abuse
while at the same time maintain the kind of procedural rigor is
to make the limit effective with respect to deferrals, but
continue the fast track procedures for any number of items that
the President may wish to propose to rescind. Because the real
constitutional issue, if there is any, is on the number and the
length of the deferrals and not on what gets into your internal
fast track procedures. So even if one limits the number of
deferrals that are eligible, there is really no constitutional
reason to limit the number of rescission proposals to go into
the fast track pipeline.
Mr. Campbell. Mr. Cooper.
Mr. Cooper. Yes, sir. I honestly don't have any advice with
respect to how the measure might be modified to more directly
or more effectively address budget concerns.
I do have some thoughts, however, and I have discussed some
thoughts with some of the Members of this body about how it
might be modified to address some of the concerns about, such
as we have heard from Mr. Spratt, about possibilities of abuse
by a manipulative President. I would be happy to share those
with you if you are interested in them.
But in terms of budgetary issues, I honestly don't have any
expertise to qualify me or to, otherwise, share with you.
Mr. Fisher. Spending constraint is important. Under this
bill, the Executive would be the only one going after,
probably, legislative add-ons. So if you want spending
constraint, and you want to rethink and reconsider what has
happened in the past, then I think you need a process that
allows Congress to go after money that had already been
appropriated to the executive branch and that Congress now
thinks it probably was a bad idea. You need more of a mix so
that both branches carry some of the burden.
Mr. Cooper. If I could just footnote that point.
Congress is in session every day, and every day it can do
whatever it wants in that respect. There is no limit that I am
aware of on Congress' ability to discipline the President in
such ways, and his spending authority, in--however it pleases.
Mr. Campbell. Mr. Fisher, last word on that?
Mr. Fisher. No. Just to make sure that if there is a list
of programs to be cut and cancelled that had already been
enacted, do it not just on the legislative side but on the
executive-side programs and the agencies and departments. That
is the way the 1992 procedure worked, and you may want to take
a look at that.
Mr. Campbell. Thank you, Mr. Chairman.
Mr. Ryun. Thank you, Mr. Campbell.
I would like to thank the panel, Mr. Cooper, Mr. Dinh and
Mr. Fisher, for their time and their energy, their willingness
to answer questions, their insight.
And we are expecting a vote momentarily, so this meeting,
this hearing, is adjourned.
[Whereupon, at 11:08 a.m., the committee was adjourned.]