Tuesday night’s Michigan debate was very revealing. The debate revealed the significant executive-leadership differences between Rudy Giuliani and Mitt Romney. When it gets down to specific cases, Mayor Giuliani is dependent upon others for direction and guidance and is just as likely to fall into mistaken ideas as not. At the same time, the debate revealed how, despite his protestations to the contrary, Giuliani is not really a supporter of conservative legal thinking.
The facts on who supports spending restraint and tax reduction are plain. Romney does. Giuliani doesn’t. Giuliani’s lame excuse that “the-Constitution-made-him-spend just doesn’t cut it. Yes, Giuliani is right that the Supreme Court invalidated President Clinton’s use of the statutory line-item veto. But this is nothing Giuliani, who brought the case, should be proud of. Quite the contrary, it is the handiwork of the liberal Justice John Paul Stevens.
The central issue in the case was whether Congress can authorize the president, after he signed legislation, to not spend all the money authorized. Mitt Romney’s answer is an unequivocal: “You bet!” Giuliani’s answer seems to be: “No, and give me the money, so I can spend it.”
The notion that the Constitution made him bring the case in order to spend the money is ludicrous on its own terms. Even worse, is Giuliani’s failure to see what the result of his dubious litigation was: to deprive the nation as a whole of an important mechanism of bipartisan spending restraint; a spending restraint mechanism that exists in 43 of the states and that was pleaded for by President Reagan on multiple occasions.
As a matter of conservative legal theory, and original understanding, Giuliani simply cannot plead that the Constitution made them do it. The thinness of his argument is Exhibit A that Giuliani is not a legal conservative. The Constitution hardly required the big-spender result that Giuliani advocated. This is nicely illustrated by the dissent of Justice Antonin Scalia, whose bona fides as a constitutional keeper of the original understanding need no elaboration.
What did the line-item veto act do? It simply authorized in a more accountable and democratically responsible way what presidents sought to do on their own throughout history: namely, decline to spend previously authorized funds when subsequent conditions or fiscal restraint justified not throwing the taxpayers dollars out the window. Moreover, as Justice Scalia explained at length, presidents throughout history had been authorized by Congress on a piecemeal basis to, upon certain findings, decline to spend. The line-item veto act merely gave that a more permanent and sound legal footing — until Giuliani came onto the scene with his liberal-leaning litigation.
But don’t take my word for it. Listen to Justice Scalia directly, who wrote:
Had the Line Item Veto Act authorized the President to “decline to spend” any item of spending contained in the Balanced Budget Act of 1997, there is not the slightest doubt that authorization would have been constitutional. . . .The title of the Line Item Veto Act, which was perhaps designed to simplify for public comprehension, or perhaps merely to comply with the terms of a campaign pledge, has succeeded in faking out the Supreme Court. The President’s action it authorizes . . .does not offend Art. I, § 7; and insofar as the substance of that action is concerned, it is no different from what Congress has permitted the President to do since the formation of the Union.
Mitt Romney is pledged to name to the Supreme Court individuals with the intellectual qualities and philosophy of judicial restraint of Justice Scalia, Alito, and Roberts. That is a meaningful pledge coming from Mitt Romney because he understands the practical consequences of a proper interpretation of the Constitution for the American taxpayer. Unlike Giuliani, he knows that the Constitution does not stand in the way of a bipartisan effort to limit runaway federal spending. Giuliani also says he likes these justices, but it’s not clear he understands why. Like Justice Stevens, the most liberal member of the Supreme Court, Giuliani was simply “faked out” from taking a responsible fiscal action that the Constitution most certainly did not preclude.
The times and circumstances facing our country do not permit us a president who can so easily be misled. We cannot afford to have a president faked out by bogus constitutional arguments. More directly, we cannot afford a president who is only faking his attachment to conservative legal principle.
— Douglas W. Kmiec is chair and professor of constitutional law at Pepperdine University and co-chair of the advisory committee on the Constitution and the courts for Romney for President.