The Supreme Court’s Line-Item Veto Ruling Was Never About Spending

When the Supreme Court struck down the Line Item Veto Act in Clinton v. City of New York back in 1998, plenty of people on the right treated it as a loss for fiscal discipline. The story went that the Court had handed a victory to the big spenders, leaving the president without the one tool he needed to carve the obvious waste out of thousand-page appropriations bills. I get the frustration. Federal spending is a mess, and it has only gotten worse since then. But the line-item veto was never really about spending. It was about something that comes before spending: who gets to decide what the law of the United States actually says. The Court got that question right, and we forget the answer at our own peril.

The constitutional architecture is all-or-nothing

The lawmaking process is laid out in Article I, Section 7 of the Constitution, and it is not hard to understand. A bill has to pass both houses of Congress. Then it goes to the president. If he signs it, it becomes law. If he objects, he returns it. What the president may not do is sign a bill and then quietly revise it into something the House and Senate never actually approved. That is not a technicality. It is the entire architecture of our republic.

James Madison and the other framers did not make lawmaking deliberately hard by accident. They wanted it to be difficult to change the law so that the people would always know which branch was responsible for what was done to them. The veto power was meant to be a shield against bad laws, not an editing pen for the executive to use after the fact. A president faced with a genuinely bad bill can veto the whole thing and send Congress back to work. That is the check the Constitution gives him. It is not a line-by-line scalpel.

The Line Item Veto Act of 1996 tried to pretend it was doing something different. It gave the president authority not to veto individual items, but to cancel them after signing a bill. The label changed. The power did not. The president could sign a thousand-page spending package and then, within days, strip out specific provisions he did not like. The Act allowed him to cancel individual dollar amounts of discretionary spending, new direct spending items, and certain tax benefits. Congress could reverse him only by passing a new disapproval bill, which the president could then veto again. In practice, the president alone could rewrite a statute.

The Supreme Court saw through the wordplay. The majority put the matter with unusual bluntness: there is no provision in the Constitution that authorizes the president to enact, to amend, or to repeal statutes. That sentence should have ended the line-item veto debate permanently. The president is supposed to execute the laws, not edit them.

The accountability problem no one wants to confront

Here is where I part company with a lot of deficit hawks. The line-item veto was not a tool for making spending harder. It was a tool for making it easier for politicians to dodge responsibility.

Suppose Congress wants to fund a bridge, a study, or a grant that helps a particular district. Under the Constitution, the member pushing that project has to put it in a bill, vote for it in the open, and then defend that vote at election time. The people in his district get to judge whether the project was worth it. That is accountability.

The line-item veto flips that incentive entirely. With that power in place, Congress can load an omnibus bill with every parochial request under the sun. Then the president can cancel a few high-profile items, announce he is fighting waste, and sign the rest. The members who slipped the projects into the bill can tell their constituents that they voted for the whole package but the White House cut the project. The president can say he tried to cut the waste but Congress sent it back. Both branches get to pose as fiscal conservatives while shifting the blame to the other side.

That is not a spending cut. That is a blame-diffusion machine.

This is where Thomas Sowell's insight about incentives and results matters most. The visible result is a few canceled line items. The unseen result is the mountain of spending that gets passed because every legislator knows he will never have to answer for the specific provisions buried in the text. Henry Hazlitt's distinction between the seen and the unseen applies just as directly. The seen cut is tiny. The unseen loss of accountability is enormous. If we are serious about controlling spending, we need more responsibility in the lawmaking process, not less. A line-item veto lets members of Congress hide.

The forgotten nondelegation flaw

There was an even deeper problem with the Line Item Veto Act, and the Supreme Court did not need to reach it because the Presentment Clause was enough to strike the law down. But it deserves attention now, because the same habit is still with us.

Article I, Section 1 is categorical. All legislative powers shall be vested in a Congress of the United States. Lawmaking means deciding what the rules will be. The Line Item Veto Act delegated to the president the power to decide which parts of a statute would survive and which would not. That is not execution. That is legislation by another name. Congress has spent decades passing vague statutes and letting executive branch agencies write the actual rules. That is the central planning Hayek warned about: a handful of officials in Washington pretending they can know and decide everything better than the people who live with the consequences. The line-item veto was the most dramatic version of that disease because it let the president amend an already enacted law without going back through Congress.

Once you grant that power, you have not reduced the size of government. You have simply moved legislative power from one branch to another. That is a bad trade for anyone who believes in limited government, because concentrated power is still concentrated whether it sits in Congress or the White House.

The legislative veto precedent

If you want proof that the Court was protecting a principle rather than a preferred outcome, look at INS v. Chadha from 1983. In that case, the Court struck down the legislative veto, which allowed one house of Congress to nullify an executive action without passing a bill and presenting it to the president. The reasoning was the same: legislation requires bicameralism and presentment. A single house cannot alter the law on its own.

The line-item veto was the mirror image of that decision. If one house of Congress cannot cancel a law alone, then the president surely cannot cancel a provision of a law alone. The Court did not invent a new doctrine in Clinton v. City of New York. It applied the same rule from Chadha to the other branch. That consistency is what originalism looks like in practice. It does not bend depending on who benefits. It demands that the structural rules be honored by everyone.

The new push for impoundment

This is why the 1998 decision is more than a historical curiosity. The old line-item veto debate has returned under a new and even more aggressive name: presidential impoundment. The argument now being made in some quarters is that the president can simply refuse to spend money Congress has appropriated if he thinks the spending is unwise. Some advocates dress this up as a presidential power to decline to spend. But let's be clear about what that actually means. If the president cannot cancel a single line item after signing a bill, he certainly cannot nullify an entire appropriation by refusing to execute it. That is a far larger power than the one the Supreme Court rejected in 1998.

Article I gives Congress the power of the purse. Article II makes the president the faithful executor of the laws. Refusing to spend money that Congress has lawfully appropriated is not faithful execution. It is rewriting the law by indirection. The Impoundment Control Act of 1974, passed after Richard Nixon tried to impound funds on a broad scale, was designed to end this practice. It allows the president to propose rescissions, but Congress must approve them. That is the constitutional path. The Supreme Court's line-item veto ruling should be understood as a loud warning against every effort to give the president unilateral control over spending after a law has been enacted. The fact that the claim is now made under the banner of fiscal discipline does not change what it is.

The real fix is harder, and that is the point

I understand why people keep reaching for a line-item veto. Federal spending is out of control, and Washington often seems incapable of saying no to itself. But the answer is not to hand the president a scalpel over the federal budget. The answer is to make Congress own the budget again.

That means passing individual appropriations bills instead of one massive omnibus. It means adopting single-subject rules and forcing every member to vote on individual items in the open. It means building a political culture in which a member of Congress who loads up a spending bill cannot hide behind a president's pen. Many state governors have a line-item veto under their own state constitutions, and that is their business. States are free to allocate power among their own branches. But the federal Constitution does not include that power, and a statute cannot add it. If the American people want a federal line-item veto badly enough, there is a process for that: amending the Constitution under Article V. I would oppose such an amendment for the same incentive reasons I have described. But at least it would be done honestly.

The framers made lawmaking deliberate and difficult because they understood that liberty depends on accountable government. The line-item veto ruling was never about protecting waste. It was about protecting the rule that a law is what both houses of Congress passed and the president signed. Once we abandon that rule, we do not get leaner government. We get a government in which no one is accountable for what the law says. That is not a fiscal victory. That is a constitutional defeat.