Veto burdens and the line item veto act

Northwestern University Law Review

Volumn 91, Issue 3, 1997, Pages 771-797

  Rappaport, Michael B ^a  

^a NONE

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EID: 0345912168     PISSN: 00293571     EISSN: None     Source Type: Journal    
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References (113)

1. See Line Item Veto Act, Pub. L. No. 104-130, 110 Stat. 1200 (1996) (codified at 2 U.S.C.A. §§ 621, 681, 691, 691a-f, 692 (West Supp. 1996)). All subsequent citations will be to the United States Code Annotated.
2. The text of the Presentment Clause indicates that the veto applies only to bills, not to parts of bills: "Every bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President," who may "sign it" or "return it, with his Objections" to the Congress. U.S. CONST. art. I, § 7, cl. 2 (emphasis added); see Michael Rappaport, The President's Veto and the Constitution, 87 NW. U. L. REV. 735, 741-65 (1993) (arguing that the Constitution does not provide the President with an item veto).
3. 2 U.S.C.A. § 621(a). The Act also permits the President to cancel limited tax benefits, which are provisions that reduce taxes for a small number of taxpayers. Id.; 2 U.S.C.A. § 691e(9).
4. For a more precise discussion of veto burdens that qualifies the definition in the text, see infra notes 26-27 and accompanying text.
5. See supra note 2.
6. See 12 Op. Off. Legal Counsel 128, 157-65 (1988). Legislatures also used bundling in Eighteenth Century Britain, in the American colonies, and on the state level in the United States. See id. at 141-57; Rappaport, supra note 2, at 764-65.
7. See 12 Op. Off. Legal Counsel 128, 157-65 (1988). Legislatures also used bundling in Eighteenth Century Britain, in the American colonies, and on the state level in the United States. See id. at 141-57; Rappaport, supra note 2, at 764-65.
8. See 12 Op. Off. Legal Counsel 128, 157-65 (1988). Legislatures also used bundling in Eighteenth Century Britain, in the American colonies, and on the state level in the United States. See id. at 141-57; Rappaport, supra note 2, at 764-65.
9. Some Presidents, however, have refused to be pressured and have vetoed spending bills. See 12 Op. Off. Legal Counsel 128, 160-63 (discussing President Hayes's refusal to approve spending bills containing riders); Ann Devroy & Eric Pianin, Latest GOP Effort Faces Clinton Veto: President to Return More Workers, WASH. POST, Nov. 17, 1995, at A1 (discussing vetoes of spending bills by President Clinton); David E. Rosenbaum, Battle Over the Budget: The Details; Showdown and Shutdown: The Basics Over the Budget, N.Y. TIMES, Dec. 29, 1995, at A1.
10. Some Presidents, however, have refused to be pressured and have vetoed spending bills. See 12 Op. Off. Legal Counsel 128, 160-63 (discussing President Hayes's refusal to approve spending bills containing riders); Ann Devroy & Eric Pianin, Latest GOP Effort Faces Clinton Veto: President to Return More Workers, WASH. POST, Nov. 17, 1995, at A1 (discussing vetoes of spending bills by President Clinton); David E. Rosenbaum, Battle Over the Budget: The Details; Showdown and Shutdown: The Basics Over the Budget, N.Y. TIMES, Dec. 29, 1995, at A1.
11. Russell M. Ross & Fred Schwengel, An Item Veto for the President?, 12 PRESIDENTIAL STUD. Q. 66, 68-69 (1982).
12. Alan J. Dixon, The Case for the Line-Item Veto, 1 NOTRE DAME J.L. ETHICS & PUB. POL'Y 207, 212-13 (1985); Ross & Schwengel, supra note 8, at 68-70; Diane-Michele Krasnow, I.H.S.-Eberhard Student Writing Competition, The Imbalance of Power and the Presidential Veto: A Case for the Item Veto, 14 HARV. J.L. & PUB. POL'Y 583, 598-99 (1991).
13. Alan J. Dixon, The Case for the Line-Item Veto, 1 NOTRE DAME J.L. ETHICS & PUB. POL'Y 207, 212-13 (1985); Ross & Schwengel, supra note 8, at 68-70; Diane-Michele Krasnow, I.H.S.-Eberhard Student Writing Competition, The Imbalance of Power and the Presidential Veto: A Case for the Item Veto, 14 HARV. J.L. & PUB. POL'Y 583, 598-99 (1991).
14. Alan J. Dixon, The Case for the Line-Item Veto, 1 NOTRE DAME J.L. ETHICS & PUB. POL'Y 207, 212-13 (1985); Ross & Schwengel, supra note 8, at 68-70; Diane-Michele Krasnow, I.H.S.-Eberhard Student Writing Competition, The Imbalance of Power and the Presidential Veto: A Case for the Item Veto, 14 HARV. J.L. & PUB. POL'Y 583, 598-99 (1991).
15. The Reagan Administration vigorously advocated the item veto. Krasnow, supra note 9, at 599; Courtney Paige Odishaw, Note, Curbing Legislative Chaos: Executive Choice or Congressional Responsibility, 74 IOWA L. REV. 227, 234 (1988). Republican candidates for the House of Representatives in 1994 had also placed the item veto in the Contract with America. See CONTRACT WITH AMERICA: THE BOLD PLAN BY REP. NEWT GINGRICH, REP. DICK ARMEY AND THE HOUSE REPUBLICANS TO CHANGE THE NATION 23-35 (Ed Gillespie & Bob Schellhas eds., 1994).
16. The Reagan Administration vigorously advocated the item veto. Krasnow, supra note 9, at 599; Courtney Paige Odishaw, Note, Curbing Legislative Chaos: Executive Choice or Congressional Responsibility, 74 IOWA L. REV. 227, 234 (1988). Republican candidates for the House of Representatives in 1994 had also placed the item veto in the Contract with America. See CONTRACT WITH AMERICA: THE BOLD PLAN BY REP. NEWT GINGRICH, REP. DICK ARMEY AND THE HOUSE REPUBLICANS TO CHANGE THE NATION 23-35 (Ed Gillespie & Bob Schellhas eds., 1994).
17. The Reagan Administration vigorously advocated the item veto. Krasnow, supra note 9, at 599; Courtney Paige Odishaw, Note, Curbing Legislative Chaos: Executive Choice or Congressional Responsibility, 74 IOWA L. REV. 227, 234 (1988). Republican candidates for the House of Representatives in 1994 had also placed the item veto in the Contract with America. See CONTRACT WITH AMERICA: THE BOLD PLAN BY REP. NEWT GINGRICH, REP. DICK ARMEY AND THE HOUSE REPUBLICANS TO CHANGE THE NATION 23-35 (Ed Gillespie & Bob Schellhas eds., 1994).
18. 2 U.S.C.A. § 621(a). Although the Act was enacted in April 1996, see Remarks on Signing the Line Item Veto Act and Exchange with Reporters, 32 WEEKLY COMP. PRES. DOC. 635, 636 (Apr. 9, 1996), it did not take effect until January 1, 1997. Line Item Veto Act, Pub.L. No. 104-130, § 5, 110 Stat. 1200, 1212 (1996).
19. See 2 U.S.C.A. § 691e(7)(A). The Act also includes in the definition of a dollar amount of discretionary budget authority directions to spend that are contained only in the committee reports accompanying an appropriation law. 2 U.S.C.A. § 691e(7)(A)(ii), (iv). Such spending directions are not legally binding, but may be politically important because Congress expects the executive to comply with them. See Lincoln v. Vigil, 508 U.S. 182, 192-193 (1993). Because these directions are not legally binding, linking the President's power to cancel them to the exercise of his veto probably does not constitute a veto burden.
20. 2 U.S.C.A. § 691e(5), (8). Laws that authorize spending but are not appropriation laws include laws that allow the executive to enter contracts in advance of appropriations (contract authority) and laws that permit certain agencies to borrow money in advance of appropriations (borrowing authority). See 1 OFFICE OF GEN. COUNSEL, U.S. GEN. ACCOUNTING OFFICE, PRINCIPLES OF FEDERAL APPROPRIATIONS LAW §§ 2-4, 2-6 (2d ed. 1991).
21. 2 U.S.C.A. § 691e(9).
22. 2 U.S.C.A. §§ 691(a), 691e(4), 691e(7).
23. 2 U.S.C.A. § 691(7)(B)(iv).
24. 2 U.S.C.A. § 691(a)(3)(A).
25. The requirement that a cancellation help reduce the budget deficit does not constrain the President's authority, because virtually all reductions in spending or increases in taxes reduce the budget deficit. The requirements that a cancellation not harm the national interest and not impair an essential governmental function also leaves the President with broad authority. The terms "national interest" and "essential government function" are both extremely vague, which suggests that the President has discretion to determine that virtually any cancellation neither harms the national interest nor impairs an essential government function. It should be noted that historically the term "essential government function" was used in the area of state governmental immunity. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 538-47 (1985) (describing courts' use of essential governmental function standard in cases involving state immunity from federal taxation and regulation). The Supreme Court, however, has now largely abandoned this doctrine as subjective and unworkable. If the Court desired to constrain the delegation of cancellation authority under the Act, it could conceivably give the term "essential government function" its historical meaning.
26. After the Act took effect on January 1, 1997, six members of Congress brought an action challenging it on various grounds, including that it unconstitutionally delegates legislative power. Robert Pear, Six U.S. Lawmakers File Suit Challenging Line-Item Veto, N.Y. TIMES, Jan 3, 1997, at A18. The district court had not yet reached a decision at the time that this Article was completed. Previously, the National Treasury Employees Union had challenged the Act in court. That lawsuit, which was brought shortly after the Act was enacted, but before it took effect, was dismissed on the grounds that the plaintiff lacked standing and the issue was not ripe. See National Treasury Employees Union v. United States, 929 F. Supp. 484 (D.D.C.), aff'd, 101 F.3d 1423 (D.C. Cir. 1996).
27. 2 U.S.C.A. § 691(a)(3)(B).
28. 2 U.S.C.A. § 691b.
29. The procedures establish a period of 30 calendar days of session within which the legislative houses may take quick action to pass a bill disapproving of the cancellations. 2 U.S.C.A. § 691d. The procedures set strict time limits to prevent members from delaying action, limit each house to passing only one disapproval bill, and mandate that a disapproval bill take no action other than repealing a cancellation. Id.
30. Because limited tax benefits are much rarer than spending provisions, the President's authority to cancel spending provisions is a much more important part of the Act. In the remainder of this Article, I will therefore focus upon the President's power to cancel spending provisions and generally ignore his power to cancel limited tax benefits.
31. 2 U.S.C.A. §§ 691(a), 691e(1). Interestingly, the Act also denies cancellation authority to the President if he lets a bill become law without signing it. See U.S. CONST. art. I, § 7, cl. 2; 2 U.S.C.A. § 691(a) (providing that if the President neither vetoes nor signs a bill within ten days, it becomes law unless the adjournment of Congress prevents the President from returning the bill). To simplify the exposition, however, I will focus on the President's choice between vetoing and signing a bill.
32. While the benefits of cancellation authority may exceed the harm caused by the veto burden, that harm is nonetheless real and may be substantial. The power to veto spending bills can be quite significant, even though it is rarely exercised. When the President does veto a spending bill, his veto may be directed at particularly important provisions. See Janet Hook, 104th Congress: In Like Lions, Out Like Lambs, L.A. TIMES, Sept. 23, 1996, at A1 (asserting that President Clinton's vetoes of spending bills significantly influenced the legislation enacted by the 104th Congress). Thus, if the veto burden deters the President from exercising these rare, but important vetoes, it may significantly reduce his power. Moreover, the President's threat to veto a spending bill may be even more valuable than his actual vetoes. See Lou Cannon & Anne Swardson, Spending, Tax Bills Signed by President: Two Year Package Cuts Deficit $79 Billion, WASH. POST, Dec. 23, 1987, at A1 (stating that President Reagan's threat to veto omnibus spending bill because of its inclusion of a provision reauthorizing the "fairness doctrine" caused Congress to delete the provision). But if the veto burden reduces the credibility of this threat, it will further weaken the President.
33. While the benefits of cancellation authority may exceed the harm caused by the veto burden, that harm is nonetheless real and may be substantial. The power to veto spending bills can be quite significant, even though it is rarely exercised. When the President does veto a spending bill, his veto may be directed at particularly important provisions. See Janet Hook, 104th Congress: In Like Lions, Out Like Lambs, L.A. TIMES, Sept. 23, 1996, at A1 (asserting that President Clinton's vetoes of spending bills significantly influenced the legislation enacted by the 104th Congress). Thus, if the veto burden deters the President from exercising these rare, but important vetoes, it may significantly reduce his power. Moreover, the President's threat to veto a spending bill may be even more valuable than his actual vetoes. See Lou Cannon & Anne Swardson, Spending, Tax Bills Signed by President: Two Year Package Cuts Deficit $79 Billion, WASH. POST, Dec. 23, 1987, at A1 (stating that President Reagan's threat to veto omnibus spending bill because of its inclusion of a provision reauthorizing the "fairness doctrine" caused Congress to delete the provision). But if the veto burden reduces the credibility of this threat, it will further weaken the President.
34. Cf. INS v. Chadha, 462 U.S. 919, 946-59 (1983) (holding a legislative veto unconstitutional, even though the President signed the bill containing that veto).
35. This statement is actually something of an overgeneralization. One can distinguish between two basic types of veto burdens. See infra note 28 and accompanying text. While one type of veto burden deprives the President of a desired statutory provision only if he vetoes a bill and Congress passes the bill over his veto, a second type deprives him of the provision simply if he vetoes the bill, whether or not Congress overrides his veto. In making general statements about veto burdens, one must refer to both types, but that often requires the use of lengthy and awkward language. To avoid having to use such language, I will follow the convention, except where otherwise indicated, of referring only to the first type of veto burden, which is the type employed in the Act. Although my general statements about veto burdens will therefore be restricted to one type of veto burden, the reader should understand that these statements could always be reformulated to cover both types of veto burdens.
36. Veto burdens that are triggered simply by the President's veto place more pressure on the President to sign a bill than veto burdens that are triggered generally by Congress overriding the President's veto. Under the former type of veto burden, the President is certain to lose the desired provision if he vetoes a bill. Under the latter type of veto burden, the President will only lose the desired provision if Congress overrides his veto.
37. For example, one might distinguish between veto burdens that offer new statutory authority to the President if he signs a bill and those that deprive the President of existing authority if a bill is enacted over his veto. In my view, the constitutionality of veto burdens does not depend on whether they offer new benefits or threaten to take away existing benefits. Cf. Seth Kreimer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U. PA. L. REV. 1293, 1351-78 (1984) (discussing view that constitutionality of burdens on constitutional rights depends on the relevant baseline).
38. See FCC v. League of Women Voters, 468 U.S. 364, 399-401 (1984) (holding that a limitation of federal funds to noncommercial educational stations that do not endorse candidates or editorialize violates the First Amendment).
39. The scholarship addressing the doctrine of unconstitutional conditions is large. Some of the most important discussions include RICHARD EPSTEIN, BARGAINING WITH THE STATE (1993); Kreimer, supra note 29; Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413 (1989); Cass Sunstein, Why the Unconstitutional Conditions Doctrine is an Anachronism (With Particular Reference to Religion, Speech, and Abortion), 70 B.U. L. REV. 593 (1990); William W. Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 HARV. L. REV. 1439 (1968).
40. The scholarship addressing the doctrine of unconstitutional conditions is large. Some of the most important discussions include RICHARD EPSTEIN, BARGAINING WITH THE STATE (1993); Kreimer, supra note 29; Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413 (1989); Cass Sunstein, Why the Unconstitutional Conditions Doctrine is an Anachronism (With Particular Reference to Religion, Speech, and Abortion), 70 B.U. L. REV. 593 (1990); William W. Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 HARV. L. REV. 1439 (1968).
41. The scholarship addressing the doctrine of unconstitutional conditions is large. Some of the most important discussions include RICHARD EPSTEIN, BARGAINING WITH THE STATE (1993); Kreimer, supra note 29; Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413 (1989); Cass Sunstein, Why the Unconstitutional Conditions Doctrine is an Anachronism (With Particular Reference to Religion, Speech, and Abortion), 70 B.U. L. REV. 593 (1990); William W. Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 HARV. L. REV. 1439 (1968).
42. The scholarship addressing the doctrine of unconstitutional conditions is large. Some of the most important discussions include RICHARD EPSTEIN, BARGAINING WITH THE STATE (1993); Kreimer, supra note 29; Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413 (1989); Cass Sunstein, Why the Unconstitutional Conditions Doctrine is an Anachronism (With Particular Reference to Religion, Speech, and Abortion), 70 B.U. L. REV. 593 (1990); William W. Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 HARV. L. REV. 1439 (1968).
43. The scholarship addressing the doctrine of unconstitutional conditions is large. Some of the most important discussions include RICHARD EPSTEIN, BARGAINING WITH THE STATE (1993); Kreimer, supra note 29; Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413 (1989); Cass Sunstein, Why the Unconstitutional Conditions Doctrine is an Anachronism (With Particular Reference to Religion, Speech, and Abortion), 70 B.U. L. REV. 593 (1990); William W. Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 HARV. L. REV. 1439 (1968).
44. See 13 U.S. Op. Off. Legal Counsel 311, 314-315 (1989) (concluding that proposed legislation prohibiting the expenditure of certain funds for covert action in a foreign country if the President has not first notified certain congressional committees imposes an unconstitutional condition that abridges or burdens the President's constitutional power to conduct covert actions).
45. See supra note 31.
46. See infra notes 64-65 and accompanying text.
47. See supra note 2.
48. THE FEDERALIST NO. 73, at 442 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
49. Id.
50. Id. See also JAMES MADISON, NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787, at 337-343 (1987) (discussing the dual function of the veto).
51. Publius feared that the President would exercise the veto too cautiously. See id. Exercising the veto may be politically costly, because it prevents a majority of the legislature from obtaining legislation it desires. This suggests that Publius would be all the more critical of veto burdens.
52. See Eugene Gressman, Is the Item Veto Constitutional?, 64 N.C. L. REV. 819, 819-20 (1986); Rappaport, supra note 2, at 762-66.
53. See Eugene Gressman, Is the Item Veto Constitutional?, 64 N.C. L. REV. 819, 819-20 (1986); Rappaport, supra note 2, at 762-66.
54. See supra notes 5-6 and accompanying text.
55. In other words, the President might believe that it is not worth signing the provision that he rejects simply to get the provision that he desires. But he might believe that it is worth signing the provision that he rejects both to get the provision that he desires and to avoid the possibility of the (extremely undesirable) veto override.
56. If one adopts the intermediate position on veto burdens, then not all veto burdens will be prohibited. I reject this intermediate position below. See infra notes section III.B.2.
57. Even when Congress combines obviously unrelated provisions, it may have combined them to gain support for the bill within Congress rather than to deter the President from vetoing it.
58. See ROBERT LUCE, LEGISLATIVE PROCEDURE 551 (1922); Daniel H. Lowenstein, California Initiatives and the Single Subject Rule, 30 UCLA L. REV. 936, 967-68 (1983); Rappaport, supra note 2, at 754-56.
59. See ROBERT LUCE, LEGISLATIVE PROCEDURE 551 (1922); Daniel H. Lowenstein, California Initiatives and the Single Subject Rule, 30 UCLA L. REV. 936, 967-68 (1983); Rappaport, supra note 2, at 754-56.
60. See ROBERT LUCE, LEGISLATIVE PROCEDURE 551 (1922); Daniel H. Lowenstein, California Initiatives and the Single Subject Rule, 30 UCLA L. REV. 936, 967-68 (1983); Rappaport, supra note 2, at 754-56.
61. To reduce uncertainty, one might argue that only unequivocal threats supported by a majority of both houses should be illegal. But then Congress could easily evade the prohibition by issuing a threat either that was signed by slightly less than a majority of both houses or that contained some equivocal language.
62. The difference between the pressure placed on the President under a formal veto burden and under an informal threat is even greater when Congress employs the type of veto burden that deprives the President of a desired statutory provision if he vetoes a bill, whether or not Congress overrides his veto. See infra note 28. If the President vetoes a bill that is subject to this type of veto burden, he immediately loses the desired provision. By contrast, if the President vetoes a bill that is merely subject to an informal threat, Congress must take several additional actions before the President loses the desired provision, including passing a new bill in a form that would deprive the President of the desired provision and then overriding the President's veto of that bill.
63. The process of passing a new bill may be especially slow in the Senate, where each Senator has many tools to delay legislation.
64. That Congress must vote to pass the new bill will also benefit the President. The President can use the bill passage vote as a trial run. He can secure some votes at this stage and then observe from the vote whether he needs to make additional deals before the override vote.
65. The Supreme Court reviews burdens on constitutional rights under the doctrine of unconstitutional conditions. Under that doctrine, the Supreme Court has applied an intermediate approach to burdens on constitutional rights in several areas and has found such burdens to be constitutional in various cases. See, e.g., Rust v. Sullivan, 500 U.S. 173, 197-200 (1991) (permitting government to condition the receipt of federal funds based on the speech of recipients); South Dakota v. Dole, 483 U.S. 203, 206 (1987) (holding that constitutional federalism restricts but does not prohibit Congress from placing conditions on the receipt of federal funds); Maher v. Roe, 432 U.S. 464, 474 (1977) (allowing state to fund services related to childbirth, but not non-therapeutic abortions); see also Dolan v. Tigard, 114 S. Ct. 2309, 2317 (1994) (stating that the government may not condition a discretionary benefit on a person giving up his right to just compensation where the property sought has little relationship to the benefit conferred); cf. United States v. Nat'l Treasury Employees Union, 115 S. Ct. 1003, 1012 (1995) (stating that "Congress may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large"). As this list of cases suggests, there is not a single intermediate approach. Rather, the Supreme Court often varies its approach depending on the right involved.
66. See supra notes 57-61 and accompanying text.
67. 500 U.S. 173 (1991).
68. See id. at 193 ("A refusal to fund protected activity, without more, cannot be equated with the imposition of a 'penalty' on that activity.") (quoting Harris v. McRae, 448 U.S. 297, 317 n.19 (1980)).
69. It should be noted that language in the Court's opinion appears to suggest that the government's refusal to subsidize abortion advocacy did not really impose a burden, because recipients could still advocate abortion through a separate organization. See id. at 197-98. Under my terminology, the government's refusal to subsidize the clinics clearly imposed a burden on their constitutional rights. The Court's analysis merely explained why the burden was permissible.
70. Id. at 194 (internal citation omitted).
71. The question whether the Constitution permits the legislature to enact a certain type of legislation is one primarily of constitutional interpretation. In addressing this question, the strongest evidence will therefore be provided by inferences from the history, purpose, and structure of the Constitution.
72. See H.R. CONF. REP. No. 104-491, at 20 (1996).
73. It might be argued that a prohibition on veto burdens would prevent Congress from passing needed legislation that conditions the President's statutory authority on the passage of a law. For example, Congress might give the President certain military authority only upon the passage of a declaration of war. This type of conditional authority, however, does not burden the veto. The authority is conditioned on the passage of a declaration of war, not on whether the President signs it.
74. Even if veto burdens were reviewed under an intermediate approach, the veto burden in the Act would still, no doubt, be unconstitutional. The justification for the veto burden in the Act is so weak that it should probably be struck down under virtually any intermediate approach.
75. It might be argued that burdens on constitutional rights (or powers) are not problematic, because the individual possessing the right has voluntarily chosen to refrain from exercising it in order to obtain statutory benefits. The courts have often rejected this justification for imposing burdens on constitutional rights. See Sullivan, supra note 31, at 1428-42 (discussing cases). As applied to veto burdens, this justification would argue that veto burdens do not abridge the President's veto, but simply provide him with an additional reason to choose not to veto a bill. The basic flaw in this argument, however, is that it focuses entirely on whether the President's choice has been coerced. The question is not simply whether the President could have chosen to veto a bill, but also whether Congress may use veto burdens to influence the President's decision. It has been my argument that the Constitution does not merely prohibit Congress from coercing the President's approval of a bill, but also prohibits the use of veto burdens to influence his choice.
76. My research has not revealed any veto burdens in Eighteenth Century Britain, the American colonies, the independent American States, or in the federal government after ratification of the Constitution. Although I have engaged in a substantial review of the historical materials, I do not claim to have conducted a comprehensive search.
77. Cf. Plaut v. Spendthrift Farm, Inc., 115 S. Ct. 1447, 1458 (1995). (The Court "knows of no [previous] instance in which Congress has attempted to set aside the final judgment of an Article III court by retroactive legislation that prolonged reticience would be amazing if such interference were not understood to be constitutionally proscribed").
78. It is sometimes argued that the doctrine of unconstitutional conditions is mistaken and therefore the Constitution should not be interpreted to restrain burdens on constitutional rights. Two reasons are often given to support this argument. First, restraining government from burdening constitutional rights requires the courts to employ unpredictable balancing tests. Second, the nature of constitutional rights is similar to that of common law rights, and providing benefits to someone only if they do not exercise a common law right does not infringe upon that right Neither of these reasons applies to restraining veto burdens. Restraining veto burdens does not require a balancing test, because all veto burdens may be prohibited. The President's veto also cannot be understood by analogy to common law rights. The veto is a constitutional power, and the historical antecedents of that power were not subject to veto burdens. Thus, even if one believed that modern constitutional law mistakenly restrains burdens on constitutional rights, one might still believe that all veto burdens should be prohibited.
79. In addition to veto burdens, one can also imagine what I shall call approval burdens. Under an approval burden, Congress provides the President with a desired statutory provision if a bill is enacted over his veto, but not if he approves the bill. Congress's decision to enact an approval burden would be odd, because the burden would encourage the President to veto a bill. Nonetheless, Congress might sometimes have an incentive to pass approval burdens if it cynically wanted to take credit for passing a bill, but wanted the President to prevent the bill from being enacted. Approval burdens are unconstitutional for essentially the same reasons that veto burdens are. Approval burdens permit Congress to exercise leverage over an independent presidential power, prohibiting approval burdens would not interfere with legislation that the Constitution authorizes, and historically legislatures have not enacted such legislation. The major distinction between veto burdens and approval burdens is that the Framers considered the President's power to veto bills to be a check on Congress, but may not have considered his power to approve bills as such a check. This distinction, however, does not justify treating approval burdens differently than veto burdens. A second reason that approval burdens are unconstitutional is that they impermissibly delegate power to the President in the same way that veto burdens do. See infra Part IV.
80. U.S. CONST. art. II, § 1, cl. 1.
81. U.S. CONST. art. I, § 7, cl. 2.
82. See INS v. Chadha, 462 U.S. 919, 952 (1983); James Abourezk, The Congressional Veto: A Contemporary Response to Executive Encroachment on Legislative Prerogatives, 52 IND. L.J. 323, 323-24 (1977).
83. See INS v. Chadha, 462 U.S. 919, 952 (1983); James Abourezk, The Congressional Veto: A Contemporary Response to Executive Encroachment on Legislative Prerogatives, 52 IND. L.J. 323, 323-24 (1977).
84. See Bowsher v. Synar, 478 U.S. 714, 733 (1986) ("Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of 'execution' of the law.").
85. Field v. Clark, 143 U.S. 649, 680, 692-94 (1892).
86. See Loving v. United States, 116 S. Ct. 1737, 1750 (1996); Touby v. United States, 500 U.S. 160, 165 (1991); J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928).
87. In the statute at issue in Field, for example, the President's decision to impose a specified tariff was not related to whether he had signed or vetoed any bills. Field, 143 U.S. at 649.
88. It might be argued that the decisions delegated to the President under veto burdens, such as whether he should have cancellation authority, are necessarily executive decisions. Even if this argument is accepted, however, veto burdens are still unconstitutional because they permit an action that involves the exercise of legislative power - the signing or vetoing of a bill - to control an executive decision without satisfying both bicameralism and presentment.
89. See Touby, 500 U.S. at 165; Mistretta v. United States, 488 U.S. 361, 372 (1989); American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 509-13 (1981); Industrial Union Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 645-52 (1980) (plurality opinion); Federal Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 559-60 (1976); National Cable Television Ass'n v. United States, 415 U.S. 336, 342 (1974); United States v. Southwestern Cable Co., 392 U.S. 157, 177-78 (1968); Arizona v. California, 373 U.S. 546, 593 (1963); Kent v. Dulles, 357 U.S. 116, 129 (1958); Lichter v. United States, 334 U.S. 742, 778-86 (1948); Fahey v. Mallonee, 332 U.S. 245, 248-54 (1947); American Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946); Yakus v. United States, 321 U.S. 414, 424-25 (1944).
90. See, e.g.. Industrial Union Dep't, 448 U.S. at 642-46; National Cable Television Ass'n, 415 U.S. at 342-44;
91. See, e.g.. Industrial Union Dep't, 448 U.S. at 642-46; National Cable Television Ass'n, 415 U.S. at 342-44;
92. Zemel v. Rusk, 381 U.S. 1, 17-18 (1965); Kent, 357 U.S. at 128.
93. In this section, I apply the severability doctrine developed by the Supreme Court; I do not discuss my own views on severability. It may be worth noting, however, that I believe the Court's severability doctrine is seriously flawed and should be revised along the lines advocated in Mark L. Movsesian, Severability in Statutes and Contracts, 30 GA. L. REV. 41, 71-73 (1995) and John Nagle, Severability, 72 N.C. L. REV. 203, 232-33 (1993).
94. In this section, I apply the severability doctrine developed by the Supreme Court; I do not discuss my own views on severability. It may be worth noting, however, that I believe the Court's severability doctrine is seriously flawed and should be revised along the lines advocated in Mark L. Movsesian, Severability in Statutes and Contracts, 30 GA. L. REV. 41, 71-73 (1995) and John Nagle, Severability, 72 N.C. L. REV. 203, 232-33 (1993).
95. See, e.g., New York v. United States, 505 U.S. 144, 186 (1992); Alaska Airlines v. Brock, 480 U.S 678, 684 (1987); INS v. Chadha, 462 U.S. 919, 934 (1983); Buckley v. Valeo, 424 U.S. 1, 108 (1976) (per curiam); Champlin Ref. Co. v. Corporation Comm'n of Oklahoma, 286 U.S. 210, 234 (1932).
96. Alaska Airlines, 480 U.S. at 684 (quoting Buckley, 424 U.S. at 108).
97. Id. at 686.
98. There is some question about how important the absence of a severability clause is. The Supreme Court once stated that "the ultimate determination of severability will rarely turn on the presence or absence" of a severability clause. United States v. Jackson, 390 U.S. 570, 585 n.27 (1968).
99. It is, of course, true that the President may be more likely to veto a bill after the veto burden is eliminated. See supra notes 40-41 and accompanying text. But the question is whether the Act is fully operative as a law after the veto burden is eliminated, not whether the Act will function differently. For example, the existence of a legislative veto may lead the executive branch to exercise its authority differently than it would have if there were no legislative veto. But the Supreme Court has indicated that a legislative veto is "by its very nature . . . separate from the operation of the substantive provisions of a statute." Alaska Airlines, 480 U.S. at 684-85.
100. Chadha, 462 U.S. at 934 ("A provision is further presumed severable if what remains after severance 'is fully operative as a law.'") (quoting Champlin Ref. Co., 286 U.S. at 234).
101. Cancellation authority was the principal issue throughout the legislative debates, see 142 CONG. REC. S2929-95 (daily ed. Mar. 27, 1996), whereas the veto burden was rarely noted, see id. at S2944 (statement of Sen. Byrd). The Supreme Court has used legislative history to determine the importance that Congress gave to a statutory provision. See, e.g., Alaska Airlines, 480 U.S. at 691-96; Chadha, 462 U.S. at 932. For a strong criticism of the Court's reliance on legislative history in this area, see Movsesian, supra note 74, at 71-72; see also Nagle, supra note 74, at 211 (powerfully criticizing use of legislative intent to determine severability).
102. Cancellation authority was the principal issue throughout the legislative debates, see 142 CONG. REC. S2929-95 (daily ed. Mar. 27, 1996), whereas the veto burden was rarely noted, see id. at S2944 (statement of Sen. Byrd). The Supreme Court has used legislative history to determine the importance that Congress gave to a statutory provision. See, e.g., Alaska Airlines, 480 U.S. at 691-96; Chadha, 462 U.S. at 932. For a strong criticism of the Court's reliance on legislative history in this area, see Movsesian, supra note 74, at 71-72; see also Nagle, supra note 74, at 211 (powerfully criticizing use of legislative intent to determine severability).
103. Cancellation authority was the principal issue throughout the legislative debates, see 142 CONG. REC. S2929-95 (daily ed. Mar. 27, 1996), whereas the veto burden was rarely noted, see id. at S2944 (statement of Sen. Byrd). The Supreme Court has used legislative history to determine the importance that Congress gave to a statutory provision. See, e.g., Alaska Airlines, 480 U.S. at 691-96; Chadha, 462 U.S. at 932. For a strong criticism of the Court's reliance on legislative history in this area, see Movsesian, supra note 74, at 71-72; see also Nagle, supra note 74, at 211 (powerfully criticizing use of legislative intent to determine severability).
104. Cancellation authority was the principal issue throughout the legislative debates, see 142 CONG. REC. S2929-95 (daily ed. Mar. 27, 1996), whereas the veto burden was rarely noted, see id. at S2944 (statement of Sen. Byrd). The Supreme Court has used legislative history to determine the importance that Congress gave to a statutory provision. See, e.g., Alaska Airlines, 480 U.S. at 691-96; Chadha, 462 U.S. at 932. For a strong criticism of the Court's reliance on legislative history in this area, see Movsesian, supra note 74, at 71-72; see also Nagle, supra note 74, at 211 (powerfully criticizing use of legislative intent to determine severability).
105. Cancellation authority was the principal issue throughout the legislative debates, see 142 CONG. REC. S2929-95 (daily ed. Mar. 27, 1996), whereas the veto burden was rarely noted, see id. at S2944 (statement of Sen. Byrd). The Supreme Court has used legislative history to determine the importance that Congress gave to a statutory provision. See, e.g., Alaska Airlines, 480 U.S. at 691-96; Chadha, 462 U.S. at 932. For a strong criticism of the Court's reliance on legislative history in this area, see Movsesian, supra note 74, at 71-72; see also Nagle, supra note 74, at 211 (powerfully criticizing use of legislative intent to determine severability).
106. See supra notes 57-60 and accompanying text.
107. The decision whether to sever the veto burden is similar to the severability question that arises when a statute is unconstitutionally underinclusive. In these cases, the court must either declare the statute a nullity and deny its protection to all persons or extend its coverage to persons who were excluded. See Califano v. Westcott, 443 U.S. 76, 89 (1979). Here, Congress has provided cancellation authority only for bills that the President signs, but it must be provided either for bills that he signs and vetoes or not at all. The Supreme Court has expanded underinclusive federal statutes several times. See id. at 90-92; Jimenez v. Weinberger, 417 U.S. 628, 637-38 (1974); Frontiero v. Richardson, 411 U.S. 677, 691 & n.25 (1973).
108. See Hill v. Wallace, 259 U.S. 44, 70-72 (1922) (holding Future Trading Act not severable because Court would have to rewrite the law to allow it to stand); see also Westcott, 443 U.S. at 94 (Powell, J., concurring in part and dissenting in part) (stating that Court should have found the statute inseverable because it could not predict how Congress would have cured the unconstitutional feature); cf. United States v. National Treasury Employees Union, 115 S. Ct. 1003, 1019 (1995) (holding ban on honoraria as applied to certain employees entirely unconstitutional, because it cannot predict how Congress would have limited the ban to make it constitutional).
109. That the Act is a federal statute also supports severability. Federal courts have been more hesitant to sever state statutes. See Eubanks v. Wilkinson, 937 F.2d 1118, 1124 (6th Cir. 1991).
110. In §§ 691 and 691e, the language limiting cancellation authority to laws that the President signs can be surgically excised. As written, § 691 provides that "the President may, with respect to any bill or joint resolution that has been signed into law pursuant to Article I, section 7, of the Constitution of the United States, cancel in whole" certain spending and tax provisions, if the President makes the required findings and "notifies the Congress of such cancellation by transmitting a special message . . . within five calendar days . . . after enactment of the law" containing the spending or tax provisions. 2 U.S.C.A. § 691. If the italicized language is eliminated, the provision then confers unconditional cancellation authority. Section 691(1) defines an appropriation law as a law that makes various types of appropriations "that has been signed into law pursuant to Article I, section 7, of the Constitution of the United States." Eliminating the quoted language leaves the definition fully grammatical and functional.
111. The Act authorizes, but does not require, Congress to include a statement in a tax bill that the Joint Committee has determined that only certain sections of the bill (or no sections) constitute limited tax benefits. § 691f(a) to (b). If the tax bill includes the statement, then the President may cancel only those sections identified as a limited tax benefit. If no statement is included, then the President may cancel whichever provisions satisfy the Act's definition of a limited tax benefit. § 691f(c). The language referring to bills which are "signed into law" is part of the provision that specifies the President's authority over bills which include or do not include the Joint Committee's statement. Id.
112. In Califano, the Supreme Court held that the Aid to Families with Dependent Children program was unconstitutional because it provided dependent benefits to a "needy child . . . who has been deprived of parental support . . . by reason of the unemployment . . . of his father," 42 U.S.C. § 607(a), but not his mother. 443 U.S. at 80, 90-93. Finding this provision severable, the Court held that the Act should be extended to cases of the unemployment of the child's mother. Id. at 90-93. The Court reached this decision, even though it required the government to spend additional money and it was not clear that Congress would have intended this result rather than one that restricted benefits to cases involving unemployment of the family's principal wage earner. Id.; see also Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 506-07 (1985) (stating that if the term "lust" extended to both normal and abnormal sexual interest, the court could sever the portion that extended to normal sexual interest). It should be noted, however, that the statutes in both of these cases contained severability clauses.
113. See Movsesian, supra note 74, at 71 (criticizing severability doctrine because of "serious practical difficulties" to its application); Nagle, supra note 74, at 211 (criticizing severability doctrine for requiring speculation and failing to provide adequate guidance).