would become effective and the budget authority cancelled. If Congress did vote,
it would not be a vote to approve (as with expedited rescission) but a vote to
disapprove. When this resolution of disapproval reached the President he could
veto it and Congress could prevail only by mustering a two-thirds in each House
for an override.
Separation of power concerns are much more severe under enhanced
rescission than under expedited rescission. Although expedited rescission offers
some procedural advantages to the President, the burden is still on the
President to obtain the approval of both Houses. Enhanced rescission reverses
the burden. Congress is obliged not merely to disapprove a President's proposal
but to override a veto. Congress would forfeit more of its power of the purse
under enhanced rescission than under expedited rescission.
4. Creating Mini Bills. Another version of expanded impoundment
power would permit the enrolling clerk to separate each "item" from an
appropriations bill and enroll that item as a separate bill or joint resolution to
be submitted to the President for his signature or veto. Items are generally
defined as any numbered section (containing provisos and conditions) or
unnumbered paragraph (containing dollar amounts).
The obvious purpose of this proposal is to give the President greater
discretion than he has with an omnibus appropriations bill. Action by the
enrolling clerk would enable the President to make separate judgments on the
individual pieces that currently make up regular, supplemental, and continuing
appropriations bills.
Precisely how this would work is uncertain. An unnumbered
paragraph would be the various appropriations accounts found in an
64
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appropriations bill. The latitude of presidential discretion would depend in large
part on how Congress decides to write an appropriations bill. A simple
unnumbered paragraph would provide a certain amount of budget authority for
a specific program or activity (such as one billion dollars for general
construction projects by the Corps of Engineers). The unnumbered paragraph
might include some earmarking of funds for particular projects. Although the
President could veto this mini bill he could not strike the individual amounts
for specific projects that are listed only in the conference report accompanying
the bill for the Corps of Engineers. The President would be faced with an
either/or choice to sign or veto the one billion dollars for the Corps of Engineers
general construction account. It is possible that a threat of an item veto might
eliminate some projects, but that is true of the existing legislative process.
The either/or confrontation could be avoided by adding greater detail
to an appropriations bill, such as presenting one or two hundred unnumbered
paragraphs for the Corps of Engineers general construction account instead of
a single paragraph with a lump-sum amount. Many of the details from
committee reports and agency documents could be incorporated in the public
law. This would allow the President to trim an agency account rather than
abolish it in full. However, it is unlikely that Congress would want to take
details out of nonstatutory sources and place them in a public law. It is even
doubtful that executive agencies would want this done. As matters stand now,
agencies have substantial discretion and latitude in spending funds over the
course of a fiscal year precisely because the details are not in public law.
The notion of authorizing enrolling clerks to prepare mini bills has
constitutional problems. Under the procedures contemplated, the enrolling clerk
would take a numbered section or unnumbered paragraph and add to it an
enacting or resolving clause, provide the appropriated title, and presumably affix
a new Senate or House bill number to it (1 U.S.C. 101-105). This procedure
must satisfy the constitutional steps established in Article I, Section 7: "Every
Bill which shall have passed the House of Representatives and the Senate, shall,
before it becomes a Law, be presented to the President of the United States."
Would these mini bills, in the form as fashioned by the enrolling clerk and
submitted to the President, have actually passed the House of Representatives
and the Senate? It would not seem so.
5. Item Veto. Under the Impoundment Control Act, the President
signs an appropriations bill into law and then decides what programs and
projects to recommend for rescission. Armed with an item veto, the President
would exercise his disapproval at the time he acts on the bill, not afterwards.
He could item-veto particular sections and return those to Congress for an
override vote. The rest of the bill would become law. Unlike rescission
authority, the President could only item veto what is in the appropriations bill
before him, which usually includes few "items." Appropriations bills generally
consist of lump-sum amounts. With rescission authority the President can go
65
CRS-6
inside lump-sum accounts and propose termination of funds for sub-account
programs and projects.
For example, suppose that Congress appropriates a billion dollars for
general construction projects for the Corps of Engineers. There is no
breakdown in the bill to identify individual projects in the various states (other
than some earmarking of funds for a few projects). Thus, the President's
choices are few. He could item veto the entire billion dollars. Perhaps he could
apply the item veto to the earmarked amounts. But he could not touch the
hundreds of projects funded by the billion dollars because those projects are
listed in the conference report, not in the bill itself. Rescission authority allows
the President to send back to Congress a proposal to cancel budget authority for
projects identified in the conference report and nonstatutory sources.
6. Inherent Item Veto. According to one theory, the President has
access to item-veto authority at the present time without the need for further
statutory or constitutional change. Part of the basis for this belief is the
selective disapproval ("disallowance") imposed on the American colonies by the
British Board of Trade from 1698 to 1776. To some scholars, this record implies
that the framers supported an item veto for the President.' However, the
practices of the British Board of Trade are closer to judicial review than to the
item veto,^ and to the extent they could be considered an item veto the framers
were aware of those precedents and chose not to incorporate them in the U.S.
Constitution.
Further grounds for rejecting the existence of an inherent item veto
lies in the framers' treatment of a Council of Revision. At the Philadelphia
Convention it was proposed that the veto power be lodged jointly in the
President and the Supreme Court in a "council of revision." This council would
have been able to disapprove specific items or sections of a bill. However, that
proposal was debated fully and rejected, leaving the Court free and independent
to judge bills after they were enacted, and restricting the President to a yes-or-
no choice when bills reached him.^ Professor Forrest McDonald has argued
elsewhere that the Court, in Marbury v. Madison (1803), "established the
precedent that its power was of a line-item nature: It declared that Article 25
of the Judiciary Act of 1789, not the entire act, was unconstitutional."'' That
' Forrest McDonald, "The Framers' Conception of the Veto Power," in Pork Barrels and
Principles: The Politics of the Presidential Veto 2-3 (National Legal Center, 1988).
^ Elmer Beecher Russell, The Review of American Colonial Legislation by the King in Council
227 (1915).
^ 1 The Records of the Federal Convention of 1787, 21, 97-98 (Max Farrand ed. 1937); 2
Farrand 73-80.
" Forrest McDonald, "Line-Item Veto: Older Than Constitution." Wall St. J., March 7, 1988,
at 16.
I
66 I
CRS-7
is an interesting argument for a judicial "item veto," but it does not advance the
case for presidential power. Judicial precedents reject the availability of a
presidential item veto.*
In 1988, the Office of Legal Counsel of the Justice Department released
a 54-page analysis that found no merit to the concept of an inherent item veto.^
In 1992, President Bush remarked that his Attorney General, William Barr, had
convinced him that an inherent item veto does not exist. President Bush said
that Attorney General Barr, "in whom I have full confidence, and my trusted
White House Counsel [C. Boyden Gray], backed up by legal opinions from most
of the legal scholars, feel that I do not have that line-item veto authority. And
this opinion was shared by the Attorney General in the previous
administration."'
8. Timing and Scheduling. Proposals to increase presidential
rescission or item-veto power would add substantial pressures to congressional
workload. Expedited or enhanced rescission authority, for example, would allow
Presidents to drive the legislative agenda and dictate to congressional party
leaders what to take up, and when. Expedited or enhanced rescission authority
would mean as many as thirteen separate rescission bills for each of the regular
appropriations bills, plus rescission bills for any other appropriations acts
(supplementals and continuing resolutions). Most of the rescission bills would
come in September and October, when the appropriations bills clear Congress
and are presented to the President. This is the time of the year when Congress
is ready to recess or adjourn. Would Congress be forced to stay in session to
consider rescission messages? The President's budget submission for the next
fiscal year might be delayed because of the need to await final congressional
action on these rescission proposals.
The proposal for converting general appropriations bills into mini bills,
with numbered sections and unnumbered paragraphs sent separately to the
President for his signature or veto, raises significant problems of timing and
scheduling for Congress. The work of the enrolling would be immense, and the
Appropriations Committees would no doubt spent additional time in
constructing their bills to minimize presidential power. For example, they could
combine sections and paragraphs in such a way that the President is faced with
vetoing something he likes with something he doesn't like.
Item-veto authority would add to congressional workload also, as
legislators take time to consider override votes on presidential actions. Item-
* DeCosta v. Nixon, 55 F.R.D. 145, 146 (E.D. NY. 1972); Lear Siegler, Inc., Energy Products
Div. V. Lehman, 842 F.2d 1102, 1117-18 (9th Cir. 1988).
^ 12 Op. Off. of Leg. Counsel 159 (prelim, print 1988).
' 28 Weekly Comp. Pres. Doc. 512 (1992).
67
CRS-8
veto authority also has the potential of adding significantly to court challenges,
particularly if Presidents decided to item-veto conditions on appropriations bills
while retaining the funds. If Congress provided the President with funds on the
condition that he abides by certain restrictions, could he delete the condition
and retain the funds? Could he convert a conditional appropriation into an
unconditional appropriation? State courts have had great difficulty in
determining the authority of a governor to sever conditions from funding.*
Similarly, would the President be limited to vetoing only the entire item or could
he reduce the amount of the item (item-reduction authority)? Could the
President delete individual words from a sentence, letters from a word, or digits
from a number? State courts have been embroiled with those issues for many
years. ^ Adoption of the item-veto for the President would most likely bring
these disputes to the national level, consuming the time of all three branches in
the search for constitutional boundaries.
* Louis Fisher and Neal Devins, "How Successfully Can the States' Item
Veto be Transferred to the President?," 75 Geo. L. J. 159, 169-173 (1986).
Id. at 166, 168, 171.
68
THE ITEM VETO IN STATE COURTS
RICHARD BRIFFAULT
REPRINTED WITH PERMISSION FROM
TEMPLE LAW REVIEW
VOLUME 66, NO. 4
1993
® 1993 TEMPLE UNIYERSnT
69
THE ITEM VETO IN STATE COURTS
Richard Bri fault *
Contemporary debates about state constitutional law have concentrated on
the role of state constitutions in the protection of individual rights and have paid
less attention to the state constitutional law of government structure.' This is
ironic since the emergence of a state jurisprudence of individual rights has been
hampered by the similarity of the texts of the state and federal constitutionai
provisions concerning individual rights, whereas many state constitutional pro-
visions dealing with government structure have no federal analogues, and thus
state jurisprudence in this area is free to develop outside the dominating shadow
of the Federal Constitution and the federal courts. Moreover, as the "laborato-
ries of democracy^' metaphor suggests, the study of the structural featxires of
state constitutions can enable us to consider alternative means of organizing rep-
resentative democratic governments, assess the efficacy of different mechanisms
for governing, and illuminate the implications and consequences of aspects of
the federal government's structure that we ordinarily take for granted-
One of the distinctive structural features of state governments is the item,
or partial, veto. Whereas under the Federal Constitution, the President must
accept or reject in toto a bill passed by Congress, most state constitutions enable
governors to veto items in appropriations bills while simultaneously approving
other parts of those bUh. The state item veto provisions have had an impact on
federal constitutional debate. Citing the states' e.'^perience. Presidents Reagan,
Bush, and Clinton have ail called for some form of presidential item veto of
congressional appropriations measures, and Congress and scholars have deliber-
ated the wisdom of such a change. -
â– Professor of Liw. Columbia Universiry School of Law. B.A.,' Columbia: J.D.. Harvard- Re-
search for this arxicie was supponed by the Waiter E. Meyer Research in Law. and Social Problems
Fund.
1. See. i.g., James A. Gardner. TTie Failed Discourse 0/ State Constitutionalism, 90 MlCH. L.
Rev. 761. 316-22 (1992) (noang umquc state consutunonai provisions redect c:nzens' character and
"fundamental values"); Paul W. Kann, Interpretation and Authority in State Constitutionalism, 106
Harv. L. Rev. 1 147, 1 1*0-53 (1992) (discussmg Jusuce Brennan's encouragement of state constitu-
uonal discourse as arena of "defending 'Jie individual against authonty'*). Much of the modem
revival of interest in state constitutions stems from Justice Brennan's call for the development of a
state consutunonai jurisprudence that would offset the United States Supreme Coun's perceived
narrowing of nghts during the Burger and. subsequently, the Rehnquist years. See William J. Bren-
nan. Jr., State Constitutions and the Protection 0/ Individual Rights. 90 Haav. L. Rev. •*89, 498-502
(1977).
2. Proposals to create a federal item veto date back to the Grant .Administration and were
debated dunng the 1930s. See Note, Federal Legislation: The Item yeto in the American Constitu-
tional System, 25 GEO. LJ. 106 (1936). President Reagan repeatedly proposed that the federal con-
sntudon be amended to give the president an item veto. See generally Symposium an the Line-Item
Veto, 1 Notre Dame J.L. Ethics it. Pub. Pol'y 157-233 (1985) (many anicies note President
Reagan's attempts to gam item veto power). Citing the powers of state governors. President Bush
1171
70
1172 TEMPLE LAW REVIEW [Vol. 66
Within the states, the item veto has been a fertile source of state constitu-
tional litigation. By one count, there were approximately 120 state item veto
cases from the nineteenth century through 1984.^ Moreover, the frequency of
item veto litigation appears to be increasing. From 1985 through 1992, there
were at least twenty-five sute supreme court decisions construing the item veto
provisions of state consdnitions,* with eleven decisions in the 1991-1992 bien-
nium alone. ^ Certain state supreme courts— Colorado, Florida, Iowa, Massa-
requested the item veto in his 1992 Sute of the Union Message. Ste We An Going to Lift This
Nation Out of Hard Tima, Wash. Post. Jan. 29. 1992, at A 14. The Senate subsequently considered
and rejected Bush's request Stt Hden Dewar « aL, Senau Rejects Line Item Veto, Wash. Post.
Feb. 28. 199Z at A 14. President Clinton, who, like Ronald Reagan, wielded the item veto when he
was a state governor, has also indicated he will seek the item veto power. See .Mark Stencel, Clinton 's
Pledges, Wash. Post. Jan. 7D. 1993. at AI9.
3. RONAU3 C MOE. PROSreCTS FOR THE ITEM VETO AT THE FEDEJIAL LeveL; LESSONS
FROM THE States 32 n.75 (1988).
4. Item veto decisions by state high courts from 1985 through 1990 include: Harbor v.
Deukmejian, 742 P.2d 1290, 1298-99 (CaL 1987) (governor not empowered to determine what is
vetoable line item under "single-subject" rule); Colorado Gen. Assembly v. Lamm. 704 P.2d 1371,
1384-^5 (Colo. 1985) (state constitudon only peirmts governor to veto "distinct items" in appropria-
don bill); University of Connecticut Chapter AAUP v. Governor. 512 A.2d 152. 156 (Conn. 1986)
(governor's statutory power to reduce particular "item" of allotment by 5% in appropriations bill
does not have effect of "veto" and is not unconsdtutionai); PHorida House of Representauves v.
Martinez. 555 So. 2d S39, 845-46 (Fla. 1990) (state consutunon prohibits governor from c-tennsmg
partial veto by vetoing one of several funding sources for single purpose); .Manmez v. Florida Legis-
lature, 542 So. 2d 558. 362 (Fla. 1989) (governor may not veto simimary statement of intent and
legisiaave woritmg papers that accompany appropriations bill); Thompson v. Graham. 48 1 So. 2d
1212, 1215 (Fla. 1985) (governor may veto line items of general appropriation bill but may not alter
legisiaave intent); Board of Trustees v. Bums. 515 M.E.2d 1244. 1250 (111. 1987) (due to governor's
item veto of approphaaon. state controller may not disburse funds for state scholarship program):
Junkms v. Branstad. MS N.W.Id 480. 485 (Iowa 1989) (judicial retirement bill appropnarion bill
subject to governor's item veto); Colton v. Branstad. 372 N.W.2d 184, 190-93 (Iowa 1985) (state
constitution permits governor w veto words and phrases in ".-iders." Le.. unrelated pieces of legisia-
don incorporated into appropnanon bill); Rush v. Ray, 362 N.W.2d 479, 481 (Iowa 1985) (state
constituuon does not permit governor to veto qualifications on appropriations); State ex rei. Coll v.
Carruthers, 759 P.2d 1380. 1383-84 (N.M. 1988) (state constitution permits governor to veto provi-
sions, condidons, limitations, and any other "parts" of appropriations bills that intrude on ctecuuve
managenal funcnon); Lipscomb v. State. 753 P.2d 939, 943-47 (Or. 1988) (governor may veto emer-
gency clause in nonapprophation bills); Washington State Motorcycle Dealers Ass'n v. State. 763
P.2d 442, 448-49 (Wash. 1988) (state constitution permits governor to veto "entire sections" of
nonappropnations bills); State ex rei. Wisconsin Senate v. Thompson. 424 N.W.Zd 385. 397-99 (Wis.
1988) (state constituuon authorizes governor to exercise paniai veto by vetoing individual letters,
words, phrases, and digits from budget bul). For an additional 1 1 state item veto decisions for 1991
and 1992. see infra note 5.
5. See Hunt v. Hubbert. 588 So. 2d 348. S59 (Ala. 1991) (governor may not exercse line item
veto after legislature has adjourned); Rios v. Symington. 333 P.2d 20. 3 1 (Anz. 1992) (governor may
veto line items but may not alter appropriations amounts); Romer v. Colorado Gen. Assembly, 340
P. 2d 1081, 1084 (Colo. 1992) (governor must comply wuh constitutional require.ment that bills be
returned "wuh objections" for item veto to be valid); AFSCME^^Iowa Council 61 v. State. 484
N.W.2d 390. 395-96 (Iowa 1992) (governor's item veto on provision in appropriation bill does not
erase state's underlying contracniai obligauon); Welsh v. Branstad. 470 N.W.2d 644. 647-48 (Iowa
1991) (invaiicating cwo item vetoes but sustaining the thira); Barnes v. Secretary of Admin.. 586
N.E2d 958. 960 (Mass. 1992) (state constitution permits governor not only :o disaoprove money
appropnations. out also to reouce them in amount); Opinion of tn- Justices. :^2 N.E.2d :04. :07-08
71
1993] THE ITEM VETO 1173
chuserts, Washington, and Wisconsin — have repeatedly wrestled with disputes
over the scope and interpretation of the item veto.* The item veto, thus, is an
important aspect of state constitutional law in a number of states.
The volume of item veto litigation, however, is not necessarily a sign of a
healthy state constitutional discourse. ''' Rather, the very number of litigated
cases indicates that even after decades of experience many critical issues in the
interpretation of ±e item veto remain unresolved.* The item veto alters the
(Mass. 1991) (governor may reduce stun of money appropriated or disapprove appropriadon en>
rirely, but may not change nonmonetary terms of appropriadons); Inter Faculty Org. v. Carlson, 478
N.W.2d 192, 194-97 (Miim. 1991) (governor' j power to veto to be narrowly construed and connned
to endre "items"); State ex rel. SOteston R-VT Sch- Dist v. Ashcroft, 828 S.W.2d 37Z 376 (Mo.
1992) (permitting governor to allocate pordon of appropriated funds to new programs pursuant to
federal court orders for desegregadon, provided total appropriadon co public school system not al-
tered); Johnson v. Wallers, 819 P.2d 694, 698-99 (Olda. 1991) (governor may not cxerdsc "partial
veto" over nonappropriadon poraons of muld- subject bill).
6. Over the last two decades there have been four major item veto cases in Gsiorado. four in
Florida, seven in Iowa, five in Massachusetts, three in Washington, and three in Wisconsin. In addi-
don to the cases cited in notes 4 and 5. supra, see Anderson v. r.,amm. 579 P.2d 620. 628 -29 (Colo.
1978) (governor may properly veto substandve portions of appropriadon bill, even individual foot-
notes, where such portions interiered with execudve's adminisiradve authority); Brown v. Firestone,
382 So. 2d 654, 671 (Fla. 1980) (governor may veto speafic appropradons, not quaiificanons or
restricdons on appropnauons); Wdden v. Ray, 229 N.W.2d 706, 713-14 (Iowa 1975) (governor may
not veto lawful quaiificanons upon appropriauons under item veto amendment); State ex ret. Turner
V. Iowa State Highway Comm'n. 186 N.W.2d 141. 152 (Iowa 197!) (appropnauon chat combines
purpose and amount consdtutes entire "item" that may be properly vetoed by governor); Opmion of
the Jusdces. 423 N.E.2d 117, 123 (Mass. 1981) (governor may not constitunonally veto poruons of_
bill that are "inseparable" and have effect of altering remainder's legisiadve goals); .A.ttomey Gen. v.
Admmistrauve Jusuce. 427 N.E.2d 735 (Mass. 1981) (governor may not separate monetary appro-
priadon items from accompanying restricdons or conditions for purposes of veto power); Opmion of
the Justices. 425 N.E.2d 750, 753-54 (Mass. 1981) (governor may a-eat any separable provision
attached to general appropriauon bill as "item" for purposes of veto power); Washington Fed'n of
Slate Employees v. State. 682 P.2d 369, 374-75 (Wash. 1984) (former judical test of item veto
validity abandoned; governor free to veto sections of enactment or appropriadon items without judi-
cial review); Washington Ass'n of Apanmcnt Ass'ns v. Evans. 564 P.2d 788. 791 (Wash. 1977)
(governor may not veto sections of bill if such veto would substantially alter scope of remaining
sections), overruled by Washington Fed'n of Slate Employees v. State, 682 P. 2d 369 (Wash. 1984);
State ex rel. Kleczka v. Conia, 264 N.W.2d 539, 552 (Wis. 1978) (governor may e.tercise partial
veto, even though biil's policy is thereby altered, provided remaining portions of appropriations bill
consututed "complete and woricable" law); State ex rel. Sundby v. Adamany, 237 N.W.2d 910, 918
(Wis. 1976) (governor may veto poruons of items in appropnauons bill, provided they are "separable
provisions").
In addiuon, Florida and Wisconsin have modified their item veto provisions '.n response to
certain state supreme coun decisions. See Fi.a. Const, art. Ill, § 3(a) (amenced in 1968 in response
to Green v. Rawis, 122 So. 2d 10 (Fla. I960)); Wts. CONST, an. V, § 10 (amended in 1990 in re-
sponse to State ex rel. Wisconsin Senate v. Thompson. 424 N.W.2d 385 (Wis. !988)).
7. 3ui see Gardner, supra note I, at 778-305 (dearth of sute judicial decisions intcrprctmg state