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Congress Should Give the President the “Legislative Line-Item Veto”

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Congress Should Give the President the “Legislative Line-Item Veto”

April 4, 2018

President Trump – incensed by the 2,232-page, $1.3 trillion monstrosity of an omnibus appropriations bill that he just signed into law – has asked lawmakers to provide him with a line-item veto, which would allow him and future presidents to veto individual spending and tax provisions within larger bills.

Countless commentators have pointed out that Congress already enacted the line-item veto in 1996 before the Supreme Court ruled it unconstitutional in 1998.

But there is another potential reform, albeit a more modest one. Congress could pass the bipartisan “legislative line-item veto,” to strengthen existing rescission authority. Essentially, this reform would allow the president to sign the whole bill, but then send wasteful provisions back to Congress for a guaranteed up-or-down cancellation vote.

Presidents already have limited rescission authority. The 1974 Budget Act allows presidents to withhold certain discretionary spending for 45 days while asking Congress to vote to cancel certain programs or projects. However, Congress can block a rescission request by simply ignoring it. This policy is constitutional because it preserves Congress’ role in enacting any new spending cuts, rather than allowing the President to cancel items unilaterally.

Under the legislative line-item veto, Congress would be required to vote on the president’s rescission request within ten legislative days of its submission. The entire package would be guaranteed an up-or-down Congressional vote with no amendments, and no Senate filibuster allowed – and the savings must reduce the deficit rather than pay for new spending. This proposal could also be broadened to include entitlement provisions and targeted tax breaks.

Strengthening rescission powers may improve their record of success. From 1976 through 2008 (the latest data available), the Congressional Research Service reports that presidents requested just $76 billion in rescissions, of which Congress enacted $25 billion – or just 0.05 percent of total federal spending over that period. Three-quarters of those enactments occurred before 1986. Additionally, Congress initiated and enacted $143 billion in rescissions over the 1976-2008 period (0.3 percent of all spending). Today, most rescissions are added to appropriations bills to offset higher spending in other parts of the same bill. Rescissions are rarely used for deficit reduction.

Legislation to strengthen rescissions has historically enjoyed bipartisan support. Presidents Clinton, Bush, and Obama all endorsed it. So have the editorial boards of the Washington Post and the Wall Street Journal. In Congress, the legislative line-item veto has been historically championed by lawmakers ranging from conservative Reps. Paul Ryan and Jeb Hensarling (R-TX), to blue dog Democrats like Rep. Jim Cooper (D-TN), to liberals like Sen. Patty Murray (D-WA).

Thus, the bipartisan Expedited Legislative Line-Item Veto and Rescissions Act easily passed the House in 2012 after being co-introduced by Budget Committee Chairman Paul Ryan (now the House Speaker) and ranking-Democrat Chris Van Hollen (now a Senator). Unfortunately, then-Senate majority leader Harry Reid refused to allow this popular bill to come to a Senate vote. Reid may have been swayed by former Senator Robert Byrd (D-WV) – a notorious champion of special-interest earmarks – who had once scorned the legislative line-item veto as a “lethal aggrandizement of the chief executive’s role in the legislative process,” adding,  “I’ll stand here until my bones crumble under me, until I have no further breath left, if necessary, to oppose such a proposal.”

Yet asking Congress to re-vote on certain tax-and spending provisions is quite modest relative to the 44 states that provide their governors with line-item veto authority. Fun fact: Wisconsin allows its governors to strike individual words (including “not”), cross out letters to build new words and sentences, and replace large numbers with smaller ones.

The legislative line-item veto’s relative modesty may limit its savings, but there are reasons for optimism. Critics point out that most appropriations have historically resulted from careful, bipartisan negotiations between the House, Senate, and White House – so why would Congress suddenly agree to cancel many of these same negotiated provisions a few weeks later? However, the recent trend of appropriations committees unveiling large, unamendable omnibus appropriations bills may make rescissions more popular. The large majority of lawmakers who had been denied amendments would finally have an opportunity to trim spending levels or make changes without having to vote down the entire bill and risk a government shutdown.

And even when the appropriations bills do reflect the will of Congress, a rescission request from the president could introduce new political pressures on lawmakers. One approach would target special-interest provisions that lawmakers had inserted quietly in hopes of avoiding a public backlash. Another approach could merge a large number of provisions – in a way that spreads the pain fairly across lawmakers – and then make a national case that deficit reduction is worth all sides enduring some pain. Either way, the bully pulpit would likely determine how successful a president uses this tool. One potential pitfall is a president using the threat of a rescission request as a weapon to win legislative concessions for more spending.

Even if lawmakers do not pass these procedural changes, they can always give the president a de facto line-item veto through flexibility language in appropriations bills. Instead of appropriating $200 million for a provision, lawmakers could appropriate “an amount not exceeding $200 million,” which would allow the president to spend less than that amount.

President Trump has requested more tools to reduce wasteful spending. Much of Congress is on the record supporting constitutional bipartisan reform. Lawmakers should give presidents the legislative line-item veto.

Brian Riedl is a senior fellow at the Manhattan Institute. Follow him on twitter @Brian_Riedl.

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