During Tuesday’s GOP presidential debate, Mayor Rudolph Giuliani was attacked by Governor Mitt Romney for persuading six out of nine Supreme Court justices to invalidate President Bill Clinton’s statutory line-item veto as unconstitutional. Conservatives should focus here on the fact that two of the Supreme Court’s three conservative justices — former Chief Justice William H. Rehnquist and Associate Justice Clarence Thomas sided with Giuliani and not with Romney. Rehnquist and Thomas were right and Governor Romney is wrong. A statutory line-item veto is unconstitutional.
Giuliani’s position on this matter has absolutely nothing to do with the question of whether it would be a good idea for the president to have a line-item veto. What Giuliani was doing when he brought his lawsuit was vindicating our 200-year-old written Constitution which happens not to give the president a line-item veto. He was taking a stand against those who claim that all good things are in the Constitution. Giuliani’s position was that Congress cannot by statute update the Constitution to give the president a power that I and Giuliani and every other conservative since Ronald Reagan thinks he ought to have. It is Giuliani who is faithful to the original meaning of the Constitution in this dispute.
The U.S. Constitution lays out a very specific process by which laws are to be made in this country. They must be passed by the two houses of Congress and presented to the president for him to sign or veto. For 200 years everyone has understood that the president must either sign or veto the laws presented to him — he cannot accept them in part and reject them in part. The language of the Constitution is very clear on this point, and it is different from the language in many State constitutions which explicitly give their governors a line-item-veto power.
Governor Romney apparently had a line-item veto under the wording of the Massachusetts State Constitution which he used a lot. Good for him. Line-item vetoes are a good thing. They help control runaway spending. It would be a good thing if the U.S. Constitution were worded in this respect like the Massachusetts constitution. The problem for Governor Romney is it is not.
The Clinton-era line-item veto was enacted by a statute — an ordinary law. Ordinary laws do not change the meaning of the Constitution. This is basic seventh-grade civics. Everyone knows that. Certainly, judicial conservatives know that.
Justice Antonin Scalia dissented from the Rehnquist-Thomas position that a statutory line-item veto was unconstitutional — a point that the Romney camp is making much about. Scalia’s position was that the line-item-veto act was not really a line-item veto as its sponsors had pretended. Scalia believed that the line item veto was a huge but not unprecedented delegation of legislative power to the president in effect to impound funds. Scalia may have thought that Congress in passing this law was reinstating presidential power to impound duly appropriated funds that was once claimed by former President Richard Nixon. To give Scalia credit, there is a long history of Congress delegating power over the budget to the president.
Justice Scalia believes in addition that there is no judicially enforceable limit in the Constitution on how much power Congress can delegate to the president. He thinks that Congress could pass a bill giving all its power over say the economy to the president, and it could go home for good the next day without the Supreme Court being able to do anything about it.
Justice Scalia’s view is a respectable one, but I think it is wrong as Chief Justice Rehnquist and Justice Thomas probably realized. The Constitution specifies a cumbersome process for lawmaking of bicameralism and presentment, and Congress cannot short-circuit that process by giving the president a blank check and going home. The Supreme Court recognized as much in two key cases from the 1930s where it announced what lawyers call the non-delegation doctrine.
The problem with Scalia’s reading of the Line-Item Veto Act as delegating impoundment power to the president is that it is a huge, Constitution-altering delegation of power. Judicial conservatives have long claimed that such a delegation of power must be unconstitutional. Conservatives are right. It is unconstitutional for Congress to delegate lawmaking power to the president. Former Chief Justice Rehnquist argued as much early in his judicial career.
Why then would a conservative legal giant like Scalia disagree with Rehnquist and Thomas? Because Scalia has a sufficiently limited view of the Court’s role that he quite reasonably doubts whether the Court should enforce separation of powers and federalism guarantees where bright lines cannot be drawn. This is a respectable position. It was the position of Franklin Roosevelt and the New Deal justices he appointed. It is not my position nor should it be the position of legal conservatives.
All judicial conservatives think the Supreme Court ought not to make up new rights, and most judicial conservatives I know believe the Court ought instead to police the separation of powers and federalism guarantees that really are in the Constitution even when bright lines cannot be drawn. This is what Mayor Giuliani quite rightly asked the Rehnquist Court to do and this is what the Rehnquist Court did when it said that the Constitution had to be amended to give the president a line-item veto.
Far from being criticized here, Mayor Giuliani ought to be praised for vindicating the original Constitution and for getting a well-meaning but unconstitutional law struck down. What this episode really shows is that Mayor Giuliani understands constitutional law and is a faithful devotee of judicial conservative principles.
– Steven G. Calabresi is the George C. Dix Professor of Constitutional Law at the Northwestern University School of Law. Professor Calabresi cofounded the Federalist Society and currently serves as a member of presidential candidate Rudy Giuliani’s Justice Advisory Committee.