In recent days we have seen Mr. Trump cancel funding for major projects authorized by Congressional act and signed into law by the President. We have seen the cancellation of funding for wind power plants, for a rail tunnel between NJ and NY, for approved and allocated funding for clean energy projects in a dozen states (all blue). He has canceled anti-terrorism funds for the NYPD. He has canceled hundreds of grants for scientific research in medicine, physics, and energy. He has shuttered programs authorized and appropriated by Congressional legislation including the Voice of America and Radio Marti. He has refused to allow funds allocated to USAID and other relief programs to be distributed.
You may agree with all of these cuts from a policy standpoint, but you must also acknowledge that they were done unilaterally, without the approval of Congress and directly counter to negotiated legislation.
This process, if to become the new normal should be troubling to every citizen of this Country.
Why?
IS THERE LEGAL PRECEDENT?
In 1997 President Clinton signed a bill into law authorizing a President to use a line-item veto. In 1998 President Clinton used that authority to cancel one provision in the Balanced Budget Act of 1997 and two provisions in the Taxpayer Relief Act of 1997.
The 1971 Social Security Act transfers money to the States to finance medical care of the indigent. Congress reduced those funds by the amount that the States collected in tax payments from health care providers like hospitals. New York City asked for a waiver, and Congress, in the Balanced Budget Act, provided that if those collected taxes were for permissible health care, the State would not be liable for those deductions.
One week later, after the bill had passed and was signed, President Clinton sent a note to both houses of Congress that he was cancelling that clause in the Balanced Budget Act, determining that “this cancellation will reduce the Federal budget deficit”.
He also canceled a provision in the Taxpayer Relief Act that had allowed Farmers the same benefit in a stock-for-stock sale as other corporations, because the provision lacked safeguards and “failed to target small-and-medium size cooperatives”.
The Line-Item Veto Act passed by Congress allowed the President to veto specific clauses of funding but also enacted a procedure to review those cancellations. A cancellation had to occur within 5 days of the passage of the law and meet several conditions. However, the Congress would be able to pass a “disapproval bill” that would override the cancellations. No “disapproval” bill was ever submitted for Mr. Clinton’s cancellations.
The Supreme Court found, on a 6-3 vote, that the Line-Item Veto Act was unconstitutional. The Balanced Budget Act had been approved by the House, the Senate, and signed by the President. Had there been ANY paragraph omitted in ANY one of those steps, the law could not have been enacted. The Court found that if the Line-Item Veto Act were enacted, a President would have the authority to effectively create a “different law – one that was not voted on by either House of Congress or presented to the President for signature,” and that such a document “is surely not a document that may “become law” pursuant to the procedures designed by the Framers of Article 1, section 7 of the Constitution.”
Finally, the Court said that “if there is to be a new procedure in which the President will play a different role in determining the final text of what may “become a law,” such change must not come by legislation, but through the amendment procedures (of the Constitution.)
WHY IS THIS IMPORTANT TODAY?
The rationale behind the actions of Mr. Trump is that the President, as the Chief Executive, should have the power to spend or withhold funds based on his priorities.
The consequences of such an argument are extremely severe. It suggests that any legislation passed on a bipartisan basis, with compromises and offsets included, could simply be neutered by a President who cancels all of the “deals” made with his opposition party. Why negotiate a compromise with the other party, if the President is going to throw out all of those compromises after the act is passed? Why not allow your opposing party to include spending provisions that you know will be cancelled by the President after the law is enacted? Or allow the inclusion of tax cuts that will subsequently be cancelled by the President?
It effectively takes away the “power of the purse” from the Congress gives it to the President.
Imagine a new Democratic President who gets a tax bill compromised by both parties, and then throws out all of the tax-cut provisions? Or who eliminates the tax-exemption for any religious institution who had endorsed his opponent? Or who chooses to add “tariffs” to any stock transaction?
Protections against this Presidential usurpation of Congressional authority, and a work-around for the checks and balances implicit in the procedures necessary to pass a law, require that a line-item veto remain forbidden.
Our country’s expectation of continued protection from the creep of Presidential authority remains the Precedent set in 1978 in Clinton v City of New York.
But...will the current Supreme Court defer to that 30-year-old precedent, or will they throw it out in order to give the President additional power?