The Line-Item Veto Was Unconstitutional—and It Let Presidents Raise Taxes by Decree

Most Americans remember the line-item veto as a short-lived victory for taxpayers. The idea was simple: give the president a scalpel to trim pork from bloated spending bills, and somehow Congress would stop wasting money. The Supreme Court put an end to that experiment in 1998 when it struck down the Line Item Veto Act in Clinton v. City of New York. Plenty of conservatives were frustrated by that decision. I understand the frustration. But the Court was right, and not for the narrow procedural reason most people think.

The Constitutional Sequence Is Not a Formality

Article I, Section 7 of the Constitution is not ambiguous. Every bill must pass the House of Representatives and the Senate before it is presented to the president for his signature or veto. The sequence matters. Both chambers pass the same text, then the president signs it, and only after that does the precise text become law. Once signed, the president's duty is to take care that the laws are faithfully executed. Not edited. Not selectively enforced based on his policy preferences. Not rewritten with a few choice deletions.

The Line Item Veto Act tried to rewrite that sequence. It let the president sign a bill and then, within a few days, cancel selected pieces of it. Those pieces included specific discretionary spending, some new direct spending, and a category called limited tax benefits. The Act defined cancellation as rescinding a provision or preventing it from having legal force or effect. That is not execution. That is repeal. And under the Constitution, repeal requires a new law passed by both houses and presented to the president. The president cannot do that alone after the fact.

The Supreme Court saw it plainly. A president cannot amend a statute by wiping out one part of it. That is lawmaking. In an earlier case, INS v. Chadha, the Court had already recognized that the Constitution's lawmaking process, passage by both houses and presentment to the president, is a single, finely wrought and exhaustively considered procedure. The line-item veto bypassed that procedure entirely. It gave one man the power to subtract parts of a law after it was already enacted. That is not the presidency the Founders designed.

The Tax Authority Buried Inside the Bill

Here is where the story gets uncomfortable for the fiscal-conservative narrative. The Line Item Veto Act did not just authorize the president to cancel spending. It also authorized him to cancel any limited tax benefit. That phrase sounds technical and boring. It was actually a loaded gun.

A limited tax benefit was a tax break targeted to a narrow group of beneficiaries. Sometimes that meant a small number of businesses. Sometimes an industry carve-out. Sometimes a provision aimed at a particular state or locality. Now think about what happens when a president cancels a tax benefit. The government does not save money. The affected taxpayers owe more. Their tax bill rises.

In plain English, the president was given the power to raise taxes on a specific group of Americans without a vote in Congress. The Constitution is explicit about where the taxing power lives. Article I, Section 8 says the Congress shall have power to lay and collect taxes. Not the president. Not the Office of Management and Budget. Not a special message to Congress that takes effect unless two-thirds of both houses object. Congress.

Chief Justice John Marshall famously warned that the power to tax involves the power to destroy. He was right. A government that can target a disfavored group with a tax increase has arbitrary power over private property. That is precisely the kind of power the American Revolution was fought to escape. No taxation without representation is not merely a slogan. It is the constitutional line between a republic and arbitrary rule.

The line-item veto blurred that line. A president could sign a tax bill and then, days later, cancel a narrow tax benefit used by an industry he disliked, a state that did not support him, or a constituency with no political leverage. No general law applied. No revenue bill originated in the House. No public deliberation occurred. One man decided who paid more.

What the Defenders Missed

The usual defense of the line-item veto was that Congress would still have the last word. If the president cancelled a provision, Congress could pass a bill to disapprove the cancellation. But that argument turns the constitutional order upside down. Under the Constitution, the president proposes and Congress disposes. Under the Line Item Veto Act, the president disposed and Congress had to muster a veto-proof majority to undo him.

That is not a small procedural shift. It is a transfer of lawmaking power from the legislative branch to the executive. The president could cancel a spending item and then veto any disapproval bill, forcing a two-thirds override. The burden shifted entirely. In a closely divided Congress, a president's cancellation would almost always stand.

Henry Hazlitt's lesson applies here. The seen benefit was a president cutting some obvious pork. The unseen cost was a permanent change in the structure of government. Every future president, Republican or Democrat, conservative or progressive, would inherit the power to repeal targeted taxes and spending by decree. The fiscal wins of one year would be paid for with a structural loss that lasted decades.

Nor was the design merely theoretical. The law invited political pressure. A president could threaten to cancel a tax benefit unless a member of Congress voted a certain way. He could reward allies by leaving their provisions alone and punish opponents by erasing theirs. That is not the rule of law. That is government by favor and fear.

Thomas Sowell's constrained vision is useful here. Human beings are not angels. Institutions matter because they channel self-interest. The Founders understood this. James Madison argued in The Federalist that ambition must be made to counteract ambition. The separation of powers is not a suggestion. It is a constitutional machine designed to protect liberty from the very human temptation to consolidate power.

Why Structure Matters More Than Savings

John Adams gave us the phrase that captures the stakes: a government of laws, and not of men. The rule of law requires that laws be general, known in advance, and not dependent on the will of one man. Citizens must be able to read the law and know their obligations. They should not have to wonder whether a president will cancel a tax benefit or a spending commitment after the bill is signed.

The line-item veto destroyed that predictability. It gave the president a post-enactment editing pen. Tax law, spending law, and the reasonable expectations of citizens would all depend on executive discretion. That is arbitrary power, and arbitrary power is the enemy of liberty.

It is worth being precise about what the Supreme Court actually held in Clinton v. City of New York. The problem was not that the president's cancellations were unwise. The problem was structural. The Constitution requires that any change to a statute go through bicameralism and presentment. The president cannot repeal part of a law by signing the whole law and then cancelling the part he dislikes. That is legislating from the executive branch.

This is not a conservative or a progressive point. It is an American constitutional point. The same principle that stops a president from raising taxes by decree also stops him from spending by decree. The Founders deliberately made lawmaking slow and cumbersome because they believed liberty is safer when power is divided.

The Honest Way to Cut Spending

I want smaller government and less spending as much as anyone. But you do not get there by breaking Article I. You get there by electing representatives who stop passing two-thousand-page omnibus bills, who hold separate votes on separate items, and who own the spending they approve.

Congress has the power to change its own rules. It can require single-subject bills. It can ban the practice of dropping a thousand pages on a desk hours before a vote. It can put every spending item on the record and force members to answer for it. Those changes would do more for fiscal discipline than a line-item veto ever could, and they would not require amending the Constitution or gutting the separation of powers.

If we truly want a federal line-item veto, there is a constitutionally honest way to get one: amend the Constitution. Many states give their governors item-veto authority because their state constitutions create it. The federal Constitution does not. That absence is not an accident. It is part of the architecture of limited government.

The presentment clause is not red tape. It is the Constitution's way of forcing deliberation, accountability, and consent before the law can change. The line-item veto was sold as a shortcut to fiscal discipline. It was actually a shortcut to one-man government, including the power to tax by decree.

The Supreme Court did the right thing. If you want smaller government, do not hand the president a bigger pen. Elect better legislators and make them pass laws the old-fashioned way. Liberty is not a convenience. It is the whole point.