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The Line-Item Veto Reconsidered

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Stephen R. Rolandi
October 15, 2020 

In 2018, President Donald Trump asked Congress to provide him with a line-item veto authority on budget appropriation bills, even as he signed into law an omnibus $1.3 trillion spending package, with provisions that he did not like (see The Hill, March 23, 2018). Trump indicated that he did not want to be presented with a very large (over 2000 pages) appropriation measure that included increased funding for the Department of Defense (DOD) as well as for the Deferred Action for Childhood Arrivals (DACA) program, as well as for many other government programs.

His call for a line-item veto was nothing new; indeed, Presidents of the United States since the administration of Ulysses S. Grant (1869-1877) have wanted to have this ability in the Federal budget process. For a very brief period during the mid-1990s, the President of the United States did have this power during the Clinton administration.

In this month’s column I will explain what a line-item (sometimes called a partial or digit veto) veto is; and why Presidents do not have this ability, unlike many of their counter-parts at the state, county and municipal government levels.

A veto is generally defined as a constitutional right granted to an executive in government to reject a decision or proposal made by a legislative-making body. Such vetoes are common when the legislative branch submits a bill or proposed law for the executive’s consideration; it is also common during the later stages of the budget process, when the legislative branch submits a “passed” budget back to the executive branch for its approval. In such an instance, the line item veto refers to the executive’s ability to “line out” or disapprove a particular appropriation for some program or entity. Typically, the legislative branch can then override that veto by some specified “super majority”—usually two-thirds of the legislators voting.

When looking at the budget process of the American states and local governments,

44 of the 50 states give their governors some form of the line-item veto power; the states of: Indiana; Nevada; New Hampshire; North Carolina; Rhode Island and Vermont are the exceptions. Countless number of executives in cities, counties and other types of local governments have some form of a line-item veto.

Presidents of the United States dating back to the 19th century have repeatedly requested Congress for the same veto power. Former President William J. (Bill) Clinton asked Congress for line-item veto authority in 1995 to control, “Pork barrel spending,” which Congress subsequently approved when it passed the Line Item Veto Act of 1996. President Clinton subsequently used the line-item veto on a provision of the Balanced Budget Act of 1997 and two provisions of the taxpayer Relief Act of 1997—these actions were challenged in Federal Court by the City of New York; as well as several hospital associations, unions and a farmers’ cooperative and a hospital (President Clinton actually invoked the line item veto authority a total of 82 times while the law was in existence).

The law was declared unconstitutional in the U.S. District Court for the District of Columbia Circuit on February 12, 1998. The case was appealed to the U.S. Supreme Court, and the ruling of the lower court was affirmed by a 6-3 vote of SCOTUS on June 25, 1998 (see: Clinton v. City of New York, 524 U.S. 417) 

The majority opinion held that the 1996 Line Item Veto Act violated the Presentment Clause of the United States Constitution because is gave the President of the United States the power to unilaterally amend or repeal parts of statutes duly passed by Congress. The minority dissent, written by Associate Justice Stephen Breyer, contended that the Act’s objective was constitutionally proper and consistent with Presidential powers held in the past; Breyer believed that the 1996 law was a proper delegation of power by Congress to the executive branch.

There were subsequent attempts by Congress in 2006 and 2009 to overturn the Court’s decision with weaker versions of the 1996 law, but they were unsuccessful.

Some legal scholars contend that the Line Item Veto Act gave the President too much power over government spending when compared with the power of Congress. So for now, the 1996 Line Item Veto Act is considered an unconstitutional delegation of power to the Executive Branch of the federal government.

Perhaps one way around the constitutional dilemma might be to allow the President to submit proposed budget modifications to Congress within a specified period of time following budget adoption; a President’s proposed budget modification (similar to what is done at the state and local government level) would then take effect if a majority of both houses approved the modification.

In a future article, I will explore possible ways of improving the Federal budget process with the goal of making the process more efficient and enable the Federal government to begin the established budgetary fiscal year on time—October 1st.

It is my hope that the next President and Congress will seriously consider making this a legislative priority.

Time will tell.


Author: Stephen R. Rolandi retired in 2015 after serving with the State and City of New York. He holds BA and MPA degrees from New York University, and studied law at Brooklyn Law School. He teaches public finance and management as an Adjunct Professor of public administration at John Jay College of Criminal Justice (CUNY) and Pace University. Professor Rolandi is a Trustee of NECoPA; President-emeritus of ASPA’s New York Metropolitan Chapter and past National Council Representative; he has also served as an Officer/Director for many other association boards. You can reach him at: [email protected] or [email protected] or at 914.536.5942 or 212.237.8000.

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