Eminent Domain

The line item veto legislation of Wisconsin Congressman Paul Ryan is scheduled for a vote Thursday. Ryan describes this as one of the "tools we need to root out unnecessary spending." This isn't the first time that federal line item veto legislation has been discussed. The earlier line item veto was struck down as unconstitutional by the Supreme Court in 1998 in Clinton v City of New York. In this interview, Ryan explains why his bill will survive the judicial review of the Court...

I'm glad you brought up the Supreme Court, because I agree with its 1998 ruling striking down the earlier version of the line-item veto. That version didn't preserve Congress's constitutional role in the legislative process. In contrast, our line-item legislation (H.R. 4890) preserves Congress' power of the purse by requiring an up-or-down vote in both the House and Senate under an expedited process before a president's rescission request becomes law. This is fundamentally different than the earlier line-item veto, and it ensures Congress has the final say on any proposed spending cancellations. In fact, Charles Cooper, an attorney who argued against the earlier line-item veto before the Supreme Court has testified in Congress three times that H.R. 4890 is constitutional.

Simply put, our proposal would allow the president to single out wasteful spending items or narrow, special-interest tax breaks (tax pork) in legislation he signs, put a temporary hold on that spending and send a message to Congress asking for the item or items to be rescinded. Both houses of Congress would have to consider this request on an expedited timeframe and hold an up-or-down vote, without amendments, within 14 legislative days.

Is this going to be enough? It's hard to say, but Ryan has some supporters in the legal world. In testimony before the House Committee on the Budget, law professors Viet Dinh and Nathan Sales stated that Ryan's version satisfies the Bicameralism and Presentment Clause of the Constitution, thus avoiding the problems found in the earlier version that was struck down by the Court.

I'm not even going to fathom a guess about what the Court will do with this. The previous version was not struck down on an easy liberal-conservative split. The six Justices in the majority (who struck down the veto) were Stevens, Rehnquist, Kennedy, Souter, Thomas, and Ginsburg. The dissenters were O'Connor, Scalia, and Breyer. But before it gets to One First Street, it's got to get through both Houses of Congress and through the lower courts. We might be waiting for a while.