The Constitutionality of the Line Item Veto

by: michael wolfe | published: 03 10, 2010

The last portion of article 1, section 8 of the US constitution says this about Congress:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

All legislation crafted at the federal level is to be authored and revised by the House and the Senate. The executive branch is not to edit or revise legislation passed by congress. Therefore, the line-item veto which gives the president legislative power greatly increases the power of the presidency (eg, deleting the Stupak Amendment if the house version of the healthcare bill passed) and illegally subverts the separation of powers written into the Constitution.

The following portion of Article II delineates the powers the president has. You will notice that conspicuously missing is the ability to legislate, as this has been reserved for Congress:

Section 2 – Civilian Power over Military, Cabinet, Pardon Power, Appointments

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section 3 – State of the Union, Convening Congress

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

We must stop looking to “easy” answers provided to us for getting pork spending under control, whether the line-item veto, or a “balanced budget amendment.” The ONLY effective solution to this dilemma is not giving too much power to the President, but to elect legislators who will faithfully uphold and defend the Constitution (not just in 2010 but in each succeeding election). If they did that, they would not pass pork. We must not forget that the president is a politician too, who is given to the same political games that abound in congress. Hold your congressman accountable this year for ANY pork he or she has voted or lobbied for, regardless of what party’s letter they have beside their name.

Giving the president such power would allow an unscrupulous politician of a president to strip out key portions of a bill that may defend our rights or limit spending. We must not allow any line-item veto powers to be unconstitutionally vested in the president of the United States.

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