Under the U.S. Supreme Court: Like the South, will line item veto rise again?

WASHINGTON, April 17 (UPI) -- It may have seemed the U.S. Supreme Court put a very real stake in its heart in 1998, but like a certain Transylvanian count, the presidential line-item veto may be rising from the grave -- or at least, in Hollywood terms, something that could be called "Son of Line-Item Veto."

U.S. presidents, Democrat and Republican, have been asking for the line-item veto for four decades. Only one, President Bill Clinton, got the authority to use it briefly. The 1996 Line Item Veto Act was struck down by the Supreme Court as unconstitutional only two years later. Even so, President George W. Bush unsuccessfully asked Congress for the authority during his second term, and a bipartisan proposal for a new line-item veto law has been languishing in Congress since 2009.

But in modern Washington, where the two major parties are swinging at each with metaphorical 2-by-4s in the budget deficit debate, there's a renewed interest in giving the chief executive the authority to excise items from larger appropriations when they are not in the national interest.

The idea is to give the president the power to veto a "line item" of individual political pork, which might be furtively inserted into larger vital legislation such as a defense bill, without vetoing the larger legislation. The line item, or earmark, can be inserted into the larger legislation without many members of Congress knowing about it, even when they cast their votes.

Unlike the president, nearly all U.S. state governors have the line-item veto power -- and also have to contend with laws requiring a balanced budget.

Within the last few weeks, governors in Arkansas, Massachusetts, West Virginia, Iowa and the U.S. Virgin Islands, among others, have used the line-item veto to lower the hammer on expenditures they didn't like.

In May last year, President Barack Obama sent Congress the Reduce Unnecessary Spending Act of 2010 "to establish a new, expedited tool to reduce unnecessary or wasteful spending," Peter Orzag, then director of the Office of Management and Budget, said. "Under this new expedited procedure, the president would submit a package of rescissions shortly after a spending bill is passed. Congress is then required to consider these recommendations as a package, without amendment, and with a guaranteed up-or-down vote within a specified time frame."

During a conference call with reporters, OMB officials said the authority that the bill would give the president would be different from the line-item veto the Supreme Court struck down in 1998, an article posted on govexec.com said.

"The line-item veto gave the knife to the president; that was unconstitutional. Here we are providing a way for the president to give the knife back to Congress to help it cut out unnecessary fat," Orszag said.

The proposal didn't exactly make a big splash, and the Reduce Unnecessary Spending Act of 2010 eventually became the the Reduce Unnecessary Spending Act of 2011.

But the idea lives on. In an op-ed column last month appearing in the Hillsboro (Ohio) Times-Gazette, U.S. Sen. Rob Portman said: "With Washington going deeper into debt, new tools are needed to control spending. One such tool is the line-item veto to get rid of wasteful spending and reduce the deficit. That's why I recently joined a bipartisan group of my fellow senators in introducing the Reduce Unnecessary Spending Act of 2011, to provide the president with legislative line-item veto authority."

Since the 1998 Supreme Court ruling, Portman said, "there have been unsuccessful attempts to address the constitutional issue and re-establish this authority so presidents could have what the vast majority of governors use to stop wasteful and unnecessary spending.

"We have addressed the court's concerns and constructed a constitutional legislative line-item veto that permits a president to zero out wasteful line-items in a big spending bill," he added. "It forces Congress to either accept the cut or deal with that specific item in an up or down vote within a short time frame."

On the Democratic side, U.S. Rep. Dennis Cardoza of California last month joined other conservative or "Blue Dog" Democrats in urging Obama to forge a budget compromise -- like the temporary one reached earlier this month to prevent a federal government shutdown.

The Merced (Calif.) Sun-Star, in reporting Cardoza's call, noted his staff says the congressman "is also an original co-sponsor of the Reduce Unnecessary Spending Act, legislation requiring Congress to promptly consider spending cuts proposed by the president, giving them a straight 'up or down' vote" and reserving any savings for deficit reduction.

Despite opinions in the White House and in Congress, overcoming the 1998 Supreme Court ruling with any new form of line-item veto would be a hard row to hoe. The ruling was based on the Constitution -- something that Congress cannot simply reverse with a law.

Democratic members of Congress, led by the late great Sen. Robert Byrd of West Virginia, first challenged the line-item veto in the Clinton administration, saying it usurped congressional authority, but a federal court ruled they did not have "standing" to sue because they could not show an injury.

A subsequent challenge by then Mayor Rudolph Giuliani, New York City and other plaintiffs was found to have standing because they could show withholding funds caused them injury. A federal judge and a federal appeals court then struck down the line-item veto as unconstitutional.

The U.S. Supreme Court agreed in that 6-3 ruling in 1998.

The majority said the line-item veto violated the "presentment clause" of the Constitution, which sets out the process by which legislation becomes U.S. law: It has to pass the House and Senate, and if he approves it, it must be signed by the president. If a president doesn't approve, it must be returned with objections to the chamber, House or Senate, where the legislation originated. If two-thirds of the House and Senate approve the law under reconsideration, it becomes law, even without the president's signature.

Nothing there about bits and pieces of legislation. The "constitutional silence" is "profoundly important," the majority said.

Under challenge were two line-item vetoes by Clinton. The high court majority said "in both legal and practical effect, the presidential actions at issue have amended two acts of Congress by repealing a portion of each. Statutory repeals must conform with Article I" of the Constitution, which contains the presentment clause, "but there is no constitutional authorization for the president to amend or repeal."

Writing for the majority, Justice John Paul Stevens said, "If there is to be a new procedure in which the president will play a different role in determining the final text of what may 'become a law,' such change must come not by legislation but through the amendment procedures set forth in Article V of the Constitution."

In his partial dissent, Justice Antonin Scalia said the majority had been "faked out."

"The short of the matter is this: Had the Line Item Veto Act authorized the president to 'decline to spend' any item of spending ... there is not the slightest doubt that authorization would have been constitutional," Scalia said. "What the Line Item Veto Act does instead -- authorizing the president to 'cancel' an item of spending -- is technically different. But the technical difference does not relate to the technicalities of the presentment clause, which have been fully complied with; and the doctrine of unconstitutional delegation, which is at issue here, is pre-eminently not a doctrine of technicalities. The title of the Line Item Veto Act, which was perhaps designed to simplify for public comprehension, or perhaps merely to comply with the terms of a campaign pledge, has succeeded in faking out the Supreme Court. The president's action it authorizes in fact is not a line-item veto and thus does not offend Article 1 (of the Constitution) ... and insofar as the substance of that action is concerned, it is no different from what Congress has permitted the president to do since the formation of the Union."

There is some hope for line-item veto supporters, even though Stevens' language is quite definite.

Three of the justices in the 1998 majority of the 6-3 decision, and one in the minority, are gone. Whether the court of today would consider the decision as "stare decisis," or settled law, may be up in the air.

Stevens' legacy is very real in the modern court since his retirement in June 2010. But Scalia is part of the 5-4 conservative majority that's been getting its way right now.