tent of the general appropriations bill, states: "All other appropria-
tions shall be made by separate bills, each embracing but one sub-
ject." Article II, section 16, of the Delaware Constitution provides:
"No bill or joint resolution, except bills appropriating money for
public purposes, shall embrace more than one subject, which shall
be expressed in its title."
Can you imagine, Mr. President, our having to pass a separate
bill for each subject? We would never get through.
191
Under article III, section 14, of the Nebraska Constitution, no
bill shall contain more than one subject, "and the same shall be
clearly expressed in the title." Similar restrictions are found in
many other State constitutions. They form no part of the U.S. Con-
stitution. The content of legislation is a prerogative exercised solely
by Congress, subject to the President's veto.
Third, although the style and the format of bills are decided sole-
ly by Congress, State legislatures confront specific restrictions
thereon in their constitutions. Article II, section 13, of the Alaska
Constitution directs that the subject of each bill shall be expressed
in the title, and even specifies the enacting clause: "Be it enacted
by the Legislature of the State of Alaska." Under the Alabama Con-
stitution, article IV, section 45, the style of laws of that State shall
be: "Be it enacted by the legislature of Alabama," and the act "shall
be divided into sections for convenience, according to substance,
and the sections designated merely by figures." Comparable restric-
tions are placed in other State constitutions.
Fourth, Congress may itemize appropriations bills or include a
number of items within a lump-sum amount. Typically, State con-
stitutions require itemization as a means of protecting the Grov-
emor's item veto authority. Article III, section 16(C), of the Louisi-
ana Constitution directs the legislature to pass an "itemized" ap-
propriations bill. Article IV, section 12(c), of the California Con-
stitution requires the Grovemor to send with his budget a budget
bill "itemizing recommended expenditures."
Congress could itemize appropriations bills if it wanted to. How-
ever, that would lock agencies into the specific amounts for specific
programs.
Mr. President, Congress could itemize. It is not directed to by the
Constitution as the State legislatures are directed by their State
constitutions to do. However, that would lock agencies into the spe-
cific amounts for specific programs. If those amounts and programs
had to be changed in the middle of a fiscal year, which is often like-
ly, the details would be frozen into law. The agencies would have
to return to Congress for additional legislation to change the dollar
amounts for the affected programs. The agencies do not want that,
and neither does Congress. The legislative workload is heavy
enough as it is.
Thus, it is settled practice for Congress to appropriate in large,
lump-sum accounts. Agencies can shift funds within an account
without seeking new legislation. The shifts of funds within an ac-
count is what we call "reprogramming," and usually involves a sub-
stantial amount of joint action by the agencies and the committees
with jurisdiction. It is a practical process that meets the needs of
both branches. Line-itemization is in the interest neither of Con-
gress nor of the executive branch agencies.
THE PRACTICAL EFFECT OF LUMP-SUM FUNDING
The appropriation of lump-sum amounts in an appropriations bill
means that there are no "items" to item veto. That is a very simple
fact about Federal budgeting, and congressional advocates here in
this Senate ought to know that. Have they never looked at an ap-
propriations bill? Congressional advocates of the item veto consist-
ently overlook that fundamental point. That is different from the
192
environment in which the State legislatures and their governments
operate.
Can it be possible that these Members of the House and Senate
have not carefully examined an appropriations bill? If there are no
items in a bill, there cannot be any item veto. Can it be the Presi-
dent has not looked at the bills that he has signed? Somebody
ought to show him one of those bills.
What could be more elemental?
Consider the claims made by President Reagan in his State of
the Union Message in 1988. He told Congress, and the Nation, that
if he had possessed an item veto when the continuing resolution
reached him in December 1987, he would have eliminated funds for
cranberry research, and for blueberry research. In fact, he could
not have done that. He could not have done that. And here is why.
The four programs that President Reagan found objectionable
could be item-vetoed by a President armed with item-veto authority
only if they were mentioned in the bill presented to the President
for his veto. Those programs, however, were not identified in the
bill.
The four programs were funded under the agriculture title of the
continuing resolution, within an account called "Cooperative State
Research Service." The account provided $303 million for various
projects and activities. With item-veto authority. President Reagan,
of course, could have deleted the entire $303 million in the account.
He could not, however, have eliminated only the four particular
programs, because they were never specificsdly mentioned in the
bill.
If we look within the account for Cooperative State Research
Service we find a subsection that provides $31 million for contracts
and grants for agriculture research. The four programs identified
by President Reagan are funded by that subsection. With an item
veto could President Reagan have deleted the $31 million? Pos-
sibly, but that would be vetoing £in "item within an item," and
some State courts have held that such actions by a Grovemor would
exceed his item-veto authority. Even if that were possible, the
President would lose the entire $31 million and not just the four
programs.
To locate the four programs, we have to look at the conference
report. That explains how Congress expects the lump-sum amounts
to be spent. A table in the conference report allocates the $31 mil-
lion among 60 programs, including $92,000 for research on the
blueberry shoestring virus, to be conducted in Michigan; $260,000
for cranberry/blueberry disease and breeding in New Jersey; and
$50,000 for native wildflowers in New Mexico. Those three pro-
grams reach a grand total of $402,000, which is a remarkably small
sum to deserve mention in a State of the Union Message.
What of the money that President Reagan said went for the
study of crawfish? The table in the conference report on the 60 pro-
grams identifies $660,000 for aquaculture, and a page in the report
refers to $200,000 for "research in Louisiana." A citizen would have
had to call the Appropriations Subcommittee on Agriculture to
learn that the crawfish study was funded by the $200,000.
To sum up. President Reagan claimed that with item-veto au-
thority he could have eliminated these four programs. The fact is
193
that he could not have singled them out for oblivion, even with the
item veto. They were never specifically mentioned in the bill he re-
ceived and thus were never candidates for an item veto.
So if there are items in the bill he does not like, he can veto the
whole bill, but if there are many other items that he likes, con-
sequently he may not veto the bill. There may be items in those
same bills that I do not like. But if one cannot take out the items —
and we often try, where we know they are there — one has to vote
for the whole bill or vote against it.
CONTROVERSIES AND CONFLICTS IN STATE COURTS
The item veto has provoked many legal disputes in State courts.
Governors have had to interpret the language in the Constitution,
and it should not surprise us that they interpret the language gen-
erously in order to expand executive power. Those interpretations
have been challenged by legislators, citizens, and organizations,
claiming that the Governors exceeded their constitutional powers.
Similarly, we could expect Presidents and their assistants to inter-
pret item-veto authority in the U.S. Constitution to accommodate
the fullest extension of executive power.
State courts have had great difficulty in articulating objective
legal principles in order to keep the item veto within constitutional
bounds. A number of State judges, in this search for governing
rules, admit that judicial reasoning is more often ad hoc and sub-
jective. If State judges encounter problems in adjudicating these
questions, we should expect Federal judges to experience similar
difficulties, on a much larger scale. Do we want that kind of power
vested in the Federal courts? Can they safely referee the inevitable
collisions that will occur between Congress and the President? Is
this a prudent use of judicial capacity and authority? Are the
courts not busy enough?
The problems faced by State courts have been exceedingly dif-
ficult and politically sensitive. An early issue involved item veto
authority by the Governors of Pennsylvania. They not only exer-
cised the item veto, as provided in the State constitution, but they
even exercised item-reduction. In 1899, the Governor of Pennsylva-
nia received an appropriations bill containing a two-year grant of
$11 million for public schools. Instead of approving or vetoing the
entire $11 million, the Grovernor approved $10 million and elimi-
nated the balance. The veto message conceded that the Governor's
authority "to disapprove part of an item is doubted, but several of
my predecessors in office have established precedents by withhold-
ing their approval from part of an item and approving other parts
of the same item."
The Pennsylvania Supreme Court upheld the Governor's inter-
pretation. The court reviewed the history of what it considered to
be legislative abuses that had undermined the Governor's veto
power. In particular, it pointed to the legislative custom of combin-
ing a number of different subjects in one bill, forcing the Grovernor
either to veto the entire measure or to accept provisions he did not
want. These "omnibus" bills said the court became a "crying evil,
not only from the confusion and distraction of the legislative mind
by the jumbling together of incongruous subjects, but still more by
the facility they afforded to corrupt combinations of minorities with
194
different interests to force the passage of bills with provisions
which could never succeed if they stood on their separate merits.
So common was this practice that it got a popular name, univer-
sally understood as log rolling. A still more objectionable practice
grew up of putting what is known as a 'rider,' that is a new and
unrelated enactment or provision on the appropriations bills, and
thus coercing the executive to approve obnoxious legislation or
bring the wheels of the government to a stop for want of funds."
All of us have different views on how active we want the courts
to be. Is this an appropriate issue for Federal judges? Do they have
special expertise to determine which legislative practices are ac-
ceptable and which are not? Do they even have authority to explore
such questions? I personally doubt that we should open the door to
such decisions by Federal judges. I fear that substantial harm
would come to the independence and integrity of the judiciary if it
became embroiled in these tjqjes of legislative conflicts between
Congress and the President.
The Pennsylvania court did not interpret the text of the Con-
stitution. Instead, it based its decision on the practices of Gov-
ernors. Because several Grovemors of Pennsylvania had exercised
the right to reduce items, even without express constitutional au-
thority, the court concluded that the principle was well-established
regarding "the right of the Grovemor in the exercise of his inde-
pendent legislative judgment to approve an appropriation in part,
by reducing the amount fixed by the legislature. As to that prin-
ciple the executive practice must be considered as settled." This
was strange reasoning, indeed!
In dissent. Justice Mestrezat acknowledged that executive con-
struction of a statute of constitution is useful if the instrument is
ambiguous. But when the constitutional language is plain, and Jus-
tice Mestrezat regarded the Pennsylvania Constitution as clear in
granting the Governor item-veto power but not item-reduction
power, "extrinsic circumstances and practical construction are not
permitted to have any force in its interpretation."
Another early decision involved the Governor's power in Mis-
sissippi to veto conditions placed by the legislature in an appropria-
tions bill. This case should be of great interest to Congress because
we frequently place conditions, qualifications, and provisions on the
funds that we appropriate. We say: "Here are funds, with the fol-
lowing conditions attached." Could a President, armed with an item
veto, receive from Congress a conditional appropriation, delete the
condition, and thereby convert the statutory language into an un-
conditional appropriation? I invite my colleagues to think carefully
about this. The implications are both profound and disturbing.
To be concrete, would conservatives want to appropriate funds
for Medicaid on the condition that Federal money not be used to
pay indigent women for abortions, and then have that condition ve-
toed by the President? Would liberals have wanted, a few years
back, to appropriate funds for Nicaragua on the condition that Fed-
eral money not be used to provide lethal aid for the Contras, only
to see that condition vetoed by the President? The very conditions
that made the appropriation possible, in terms of developing the
necessary consensus within the legislature, would be subject to the
195
President's veto. Congress could retain control only by mustering a
two-thirds veto in each House for the override.
The Mississippi case, decided in 1989, concerned the Grovemor's
veto of conditions on an appropriation. Section 73 of the Mississippi
constitution authorized the Governor to veto "parts of any appro-
priation bill." The State court ruled that this section related only
to "items of distinct appropriations." It did not permit the Grovernor
to veto unwanted legislation on appropriations bills, because that
issue was addressed in section 69 of the constitution. Section 69
prohibited the engrafting of legislation on appropriation bills, "but
the same may prescribe the conditions on which the money may be
drawn, and for what purposes paid."
The Mississippi court refused to permit the governor to encroach
upon the prerogative of the State legislature to place conditions on
appropriations. When this issue resurfaced many times in the
twentieth century. State courts looked frequently for guidance to
the Mississippi decision. Therefore, it is important to understand
the analysis of the Mississippi court:
"* * * if a single bill, making one whole of its constituent parts,
'fitly joined together,' and all necessary in legislative contempla-
tion, may be dissevered by the governor, and certain parts torn
from their connection may be approved, and thereby become law,
while the other parts, unable to secure a two-thirds vote in both
houses, will not be law, we shall have a condition of things never
contemplated, and appalling in its possible consequences.
"Every bill of the character in question has three essential parts:
The purpose of the bill, the sum appropriated for the purpose, and
the conditions upon which the appropriation shall become avail-
able. Suppose a bill to create a reformatory for juvenile offenders,
or to build the capitol, containing all necessary provisions as to
purpose, amount of appropriation and conditions, may the governor
approve and make law of the appropriation and veto and defeat the
purpose or the conditions, or both, whereby the legislative will
would be frustrated, unless the vetoed purposes or conditions were
passed by a two-thirds vote of both houses? This would be mon-
strous. The executive action alone would make that law which had
never received the legislative assent. And after all and despite the
pragmatic utterances of political doctrinaires, the executive, in
every republican form of government, has only a qualified and de-
structive legislative function and never creative legislative power.
If the governor may select, dissect, and dissever, where is the limit
of his right? Must it be a sentence or a clause, or a word? Must
it be a section, or any part of a section, that may meet with execu-
tive disapprobation? May the governor transform a conditional or
contingent appropriation into an absolute one in disregard and de-
fiance of the legislative will? That would be the enactment of law
by executive authority without the concurrence of the legislative
will and in the face of it."
This analysis is intriguing, but how well can judges distinguish
between item vetoes that are "destructive" (permissible) and "cre-
ative" (impermissible)? Is that test or guideline sufficiently objec-
tive to guide the courts, or does it invite judges to intrude their
own subjective judgments on the legislative process? As I will indi-
cate, some decisions by contemporary courts reveal considerable
196
uneasiness about the competence and ability of judges to adjudicate
item-veto disputes with these guidelines.
LITIGATION IN THE TWENTIETH CENTURY
The question of the legislature's maintaining control over the in-
tegrity and coherence of a bill, addressed in part by the Mississippi
case, arose again in the State of Washington. In 1909, the Gov-
ernor vetoed the first four sections of a bill and approved the last
two, one of which repealed an earlier statute. When the legislature
passed the bill, the repealing section was tied in substance and
logic to the first four sections. Could the Grovernor invoke his item
veto in a manner to disrupt the internal logic intended by the legis-
lature? The Washington court held that when the first four sections
fell because of the item veto, so did the repealing section:
"In other words, when the executive approved the repealing sec-
tion he approved something that his veto had already destroyed.
The legislature attempted to substitute one act for another and the
executive had a right to place his veto on the substitution, but he
could not defeat the one act by his veto, and the other by approving
the repealing clause.
"We are therefore of opinion that the attempted repeal of the act
of March 4, 1909, is a nullity. * * *"
A year later, the Texas Supreme Court reviewed the freedom of
the legislature to alter the structure of appropriations bills as a
technique for curbing the Governor's item veto. Could the legisla-
ture eliminate some items and group them under a single appro-
priation? The court refused to second-guess this legislative tactic.
A concurring opinion noted:
"The wisdom of grouping many items of appropriation into a sin-
gle item, it is not our province to determine, even if it could be as-
sumed that it was purposely and deliberately done so as to deny
to the Governor the right to prune or cut out any part or portion
of the amount appropriated, because it was within the power of the
Legislature to make the appropriation in this manner, and same
was not subject to any constitutional or legal objection."
Other State courts, however, have intervened when they decided
that the legislature had improperly handcuffed the Governor. In
1939, a New York court held that the legislature could not take an
itemized appropriations bill submitted by the Governor and pass
the bill only with lump sums. The bill emerging from the legisla-
ture contained a single item of appropriation for each of the various
departments or divisions of departments. The "whole spirit" of the
State constitution, said the court, was "against lump sum appro-
priations and in favor of appropriations showing the items of ex-
penditure."
The Mississippi and Washington courts in 1898 and 1910 had
tackled two problems: the capacity of legislatures to attach condi-
tions on appropriations, and the ability of legislatures to exercise
control over the logic and consistency of bills. Both issues raise the
question of "severability: the power of Governors to sever some
sections of a bill without violating the integrity and purpose of
what remains.
Two subsequent cases in the State of Washington sustained the
Governor's veto of a section on the ground that the language was
197
severable. In one of the cases, a dissenting judge denied that courts
possessed the abihty to distinguish in an objective way between
"negative" vetoes (legitimate because the matter was legally sever-
able) and "affirmative" vetoes (illegitimate). This dispute is similar
to the attempted distinction between "destructive" and "creative"
vetoes in the early Mississippi case. The dissenting judge argued
that the Grovernor's item veto was affirmative "because it actually
creates a result different from that intended, and arrived at, by the
legislature."
Some courts, faced with an item veto that appeared to have both
negative and affirmative characteristics, opted for a balancing test.
A Wisconsin court in 1940 admitted that a Grovernor's item veto
"did effectuate a change in policy," and was affirmative or creative
to that extent, but concluded that the remainder of the bill con-
stituted "a complete workable law."
Five years earlier, the same court had upheld a Governor's item
veto after concluding that the balance of the vetoed bill was "a
complete, consistent and workable scheme and law." Nevertheless,
a Massachusetts court struck down an item veto of a condition on
an appropriation, arguing that words or phrases in a condition
were not "items or parts of items" that could be vetoed pursuant
to the State constitution. Decades later, the Massachusetts court
reversed course to permit the Grovemor to delete restrictive words
and phrases imposed on appropriations items, provided that the
language was severable.
These cases prepare us for a Virginia case that is widely cited.
In 1940, the Supreme Court of Virginia held that the Governor
could not veto items that were "tied up" with other provisions. In
trying to determine how to distinguish between severable and
inseverable items, the court resorted to a medical analogy:
"If the Commonwealth were to determine to erect a library build-
ing and were to set apart a certain sum for structural steel, an-
other for a heating plant, etc., and were finally to provide for a su-
pervising architect at a stated salary, plainly the Governor could
not, by veto, dispense with the services of an architect, although
the sum to be paid for his services might, in a limited sense, be
regarded as an item. That term, as used in the Constitution, refers
to something which may be taken out of a bill without affecting its
other purposes or provisions. It is something which can be lifted
bodily from it rather than cut out. No damage can be done to the
surrounding legislative tissue, nor should any scar tissue result
therefrom."
The Governor of Virginia had vetoed seven provisions and items.
The court ruled that if a provision or condition was "intimately
interlocked" with other portions of the bill, the veto was not au-
thorized by the State constitution.
State courts have issued a variety of opinions on the authority
of Governors to delete sections from bills. In Washington and Lou-
isiana, State courts permitted the Grovemor to sever items or sec-
tions from a bill. An Arizona court upheld the Governor's veto of
certain sections in an appropriations bill because they were sever-
able in the eyes of the court, and disallowed other item vetoes be-
cause the sections seemed inseverable. The Supreme Courts of
Florida, Iowa, and Louisiana concluded that Governors may not
198
veto a qualification or restriction without also vetoing the appro-
priation to which the qualification or restriction relates. An advi-
sory opinion by the Supreme Court of Delaware decided that the
Governor's item veto applied only to items of appropriations and
not to conditions.
A decision by the Supreme Court of Washington in 1980 illus-
trates the liberties that State courts have taken with the item veto.
The Governor had vetoed approximately 45 words of a section, al-
though the State constitution provides that the Governor "may not
object to less than an entire section." In sustaining the Grovemor,
the court announced that the determination of what constitutes a