ative use of the item veto, since then "executive action alone would make law which had never received the legislative assent.

" 84

86

The prevailing view has been rejected by the Wisconsin supreme court in a series of decisions which have read the governor's veto power as being coextensive with the legislature's power "to join and enact separable pieces of legislation in an appropriate bill." 85 The governor's authority to veto sections of an appropriation bill stating the legislative intent in enacting the bill has been upheld, as has the governor's power to veto a legislative amendment to the portion of the executive budget bill imposing levy limits on municipal governments.87 Under the Wisconsin rule, "the partial veto power may be utilized to veto any portion of a bill, whether the portion itself is an item of appropriation or not, even if the result effectuates a change in legislative policy, as long as the portion vetoed is separable and the remaining provisions constitute a complete and workable law." 88 The Wisconsin approach rejects the separation of powers analysis invoked in other states in favor of an objective test which permits affirmative uses of the item veto as long as the parts remaining after the veto are a "complete and workable" law.89 The affirmative-negative test has also recently been abandoned in the state of Washington, the court declaring that "the 'check', as it has always been, will be the legislatiure's two-thirds override." 90

Effect of adjournment on use of item veto

The courts are divided on whether a governor may exercise an item veto after the legislature adjourns. The courts that have upheld post-adjournment item vetoes have recognized that, depending upon the state constitution, such vetoes have the effect of either denying or delaying the legislature's opportunity to override the veto. In validating the governor's veto of items in a general appropriations bill which included salaries for a two-year period for the state forester and the head of the division of corrections, the Florida supreme court noted that, under the circumstances, the legislature would be denied an opportunity to override the post-adjournment veto until near the end of the biennium. Nevertheless, said the court, this impact on the legislature's ability to override "is not a basis for holding that the executive veto should be denied application" since the legislature controls the time at which appropriation measures are passed, and the time at which it adjourns. According to the court:

84 State v. Holder, 76 Miss. 158, 23 So. 643, 645 (1898).

85 State ex rel. Wisconsin Telephone Co. v. Henry, 218 Wis. 302, 315, 260 N.W. 486, 492 (1935). 86 Id.

87 Sundby v. Adamany, 71 Wis. 2d 118, 237 N.W. 2d 910 (1975). As submitted by the governor, the budget bill specified that levy limits could be exceeded only with approval of the voters at a general referendum. An amendment added to the bill by the assembly-senate conference committee would have provided an alternative method for a local government to exceed the levy limits, but this was vetoed by the governor.

88 Id. at 130, 237 N.W. 2d at 916.

89 The Wisconsin rule has been described by one student as an "attractive alternative" to the subjective test used in other jurisdictions because, it is claimed, the governor can determine for himself whether the parts of a measure remaining after his item veto will be a "complete and workable" law. Under the subjective test, judicial review may be needed to determine whether an item veto has an "affirmative" or a "negative" effect. 60 Marq. L. Rev. 865 (1977).

90 Washington Federation of State Employees v. Washington, 101 Wash. 2d 536, 682 P. 2d 868, 875 (1984). See also Karcher v. Kean, 97 Ñ.J. 483, 479 A. 2d 403 (1984).

[If the legislature is to preserve its right to override the executive veto in such cases, it must present such bills to the governor somewhat more than five days before the end of the session. We realize this to be easier said than done. The enormity and complexity of the fiscal problems of present day Florida government and the comparative brevity of the legislative session makes it exceedingly difficult of accomplishment. Yet there is no alternative if full effect is to be given the respective powers of the legislative and executive branches and the legislative is to have the final word as our system intends.91

It has been held that a post-adjournment item veto is not precluded by a constitutional requirement that the governor transmit to the house in which the bill originated a copy of the items disapproved, together with his objections. Such a provision has been said to be inapplicable after the legislature adjourns since the constitution should not be interpreted to require an impossible act.92 Furthermore, the governor's disapproval is complete when he exercises the item veto.93

However, cases in other jurisdictions have construed the item veto power more narrowly in post-adjournment situations, holding that constitutional provisions directing the governor to return disapproved items along with his objections to the legislature are mandatory. Where an adjournment prevents such return to the legislature, the governor is unable to "disapprove" of an item within the meaning of the constitution. Thus, a governor has been denied the right to item veto in the post-adjournment period provisions of a general appropriation bill passed in the last hours of the legislative session because the legislature would not be able to override such a veto and, under the constitution, the legislature had "the ultimate power in the general expenditure of the public revenue." "94 Despite the broad rationale in the opinion, the decision may have turned in part upon the court's view that the governor's statement to the legislature, immediately before it adjourned, that he had no further communications to make to either house had misled the legislators into believing that the appropriation bill had been approved.95 In another decision rejecting the governor's post-adjournment item veto power, the Oklahoma supreme court held that the governor had no right to disapprove an item for a stenographer's salary included in an appropriation bill passed on the last day of the session. Nevertheless, the court concluded that the salary for the stenographer did not become law since the adjournment prevented the legislature from repassing the item by a twothirds vote.96 By refusing to give effect to the act as passed by the legislature, the court's decision actually upheld the governor's invalid veto.

In one decision the court indicated that although a post-adjournment item veto would ordinarily be permissible, it would not uphold an item veto of one provision of a bill exercised after the

91 Green v. Rawls, 122 So. 2d 10, 18 (Fla. 1960).

92 State ex rel Sandaker v. Olson, 65 N.D. 561, 566-67, 260 N.W. 586 (1935).

93 For other examples of cases affirming exercises of the item veto in post-adjournment situations, see Wood v. State Administrative Board, 255 Mich. 220, 238 N.W. 16 (1931); Mills v. Porter, 69 Mont. 325, 222 P. 428 (1924); State ex rel. Browning v. Blankenship, 154 W. Va. 253, 172 S.E. 2d 172 (1970).

94 May v. Topping, 65 W. Va. 656, 661, 64 S.E. 848 (1909).

95 Id., 65 W. Va. at 665. See also Woodall v. Darst, 71 W. Va. 350, 77 S.E. 264 (1912).

96 Carter v. Rathburn, 85 Okla. 251, 209 P. 944 (1922). See also Peebly v. Childers, 95 Okla. 40, 217 P. 1049 (1923).

adjournment of the legislature where the governor vetoed other items in the same bill in a message sent to the legislature before the adjournment. To allow a post-adjournment item veto in such a situation would permit a governor to mislead the legislature into believing that his pre-adjournment veto message included all items to which he objected, and thus deprive the legislators of their right to override items that are vetoed after the adjournment.97

Effect of an invalid item veto

The effect of an attempted item veto by a governor which is later determined by the courts to be an unauthorized or invalid veto depends on the procedure established in the state constitution for enactment of legislation and the interpretation of this procedure by the courts. Where the governor's affirmative approval of legislation is not required since the constitution permits a bill, under the circumstances, to become law without his signature, an invalid veto is often disregarded and the courts give full effect to the measure as intended by the legislature.98 Thus, when the U.S. Supreme Court ruled that, under the Organic Act of the Philippines, the GovernorGeneral could not item veto a substantive provision of a bill, the Court held that the entire measure, as passed by the legislature, was to take effect.99 Similarly, in cases in which an item veto has been held invalid by the courts as an unauthorized attempt to reduce appropriated funds, 100 or as a veto of part of an item, 101 or as an unconstitutional post-adjournment veto,102 full effect has been given to the item or bill as passed by the legislature.103 And in cases in which the courts have ruled that some but not all of the item vetoes exercised in regard to a given bill were invalid, the courts have struck from the bill only those items or sections which were properly vetoed. 104 The rationale of the cases holding that "an unconstitutional veto must be disregarded and the bill given the effect intended by the legislature" 105 was explained by the Iowa supreme court as follows:

In Iowa our constitution does not require the governor's affirmative approval of a bill before it becomes a law, but, conversely, does require the governor's affirmative disapproval in exercising the veto power. It necessarily follows therefore that should the governor of Iowa exceed his authority and attempt to disapprove an item in a

97 Pickle v. McCall, 86 Tex. 212, 24 S.W. 265 (1893).

98 Stong v. People, 74 Colo. 283, 220 P. 999 (1923); Green v. Rawls, 122 So. 2d 10 (Fla. 1960); Fergus v. Russel, 270 Ill. 304, 110 N.E. 130 (1915); Wheeler v. Gallet, 43 Ida. 175, 249 P. 1067 (1926); State ex rel. Turner v. Iowa State Highway Commission, 186 N.W. 2d 141 (Iowa 1971); In re Opinion of the Justices, 294 Mass. 616, 2 N.E. 789 (1936); State ex rel. Sego v. Kirkpatrick, 86 N.M. 359 (1974); State ex rel. Cason v. Bond,, 495 S.W. 2d 385 (Mo. 1973); Commonwealth v. Dodson, 176 Va. 281, 11 S.E. 848 (1909); Woodall v. Darst, 71 W. Va. 350, 77 S.E. 264 (1912); Jamison v. Forsyth, 21 Wyo. 359, 133 521 (1913). The governor cannot avoid this result by specifying in his veto message that if his item veto is held invalid, then his action should be construed as a veto of the entire bill. Caldwell v. Meskill, 164 Conn. 299, 320 A. 2d 788 (1973). 99 Bengzon v. Secretary of Justice of the Philippine Islands, 229 U.S. 410 (1937).

100 Stong v. People, 74 Colo. 283, 220, P. 999 (1923); Fergus v. Russel, 270 Ill, 304, 110 N.E. 130 (1915); Peebly v. Childers, 95 Okla. 40, 217 P. 1049 (1923).

101 Jamison v. Forsyth, 21 Wyo. 359, 133 P. 521 (1913).

102 May v. Topping, 65 W. Va. 656, 64 S.E. 848 (1909); Woodall v. Darst, 71 W. Va. 350, 77 S.E., 264 (1912), See also Pickle v. McCall, 86 Tex. 212, 24 S.W. 265 (1893) (court upheld governor's item veto of provisions of bill where veto message was submitted to legislature before adjournment, but invalidated subsequent attempt to item veto additional provision of same bill after adjournment). 103 See State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 371 (1974), and cases cited. 104 See, e.g., Pickle v. McCall, 86 Tex. 212, 24 S.W. 265 (1983).

105 Sego v. Kirkpatrick, 86 N.M. 359, 371 (1974).

non-appropriation bill, or to disapprove part of an appropriation bill which is not in and of itself an 'item', the natural result would be that the bill as a whole would become law as though he had approved it or had failed to exercise the affirmative disapproval required by our constituion.106

In other words, where the governor's veto is invalid, it is "ineffectual for any purpose" 107 and, as a matter of law, he is deemed to have approved the item.

However, in other jurisdictions, the courts have held that the governor's affirmative approval is required for a measure to become law, and such approval is lacking where the governor has exercised an item veto, even if the veto is held to be unauthorized. Thus the Delaware supreme court held that the governor's unauthorized attempt to item veto a non-appropriations bill caused the bill to fail of enactment. ". . . [T]o conclude that since the veto of the portion is a nullity the governor's approval of the balance must be held to include the portion rejected by the abortive veto would be to ascribe to the governor an approval he has demonstrated he did not have." 108 In the absence of concurrence by the governor and the legislature, the bill did not become law. Similarly, in another case involving an attempt to item veto provisions of a bill determined by the court to be an appropriations measure, the Wisconsin supreme court ruled that the "invalid and nugatory" item veto caused the entire bill to fail of enactment.109 The court refused to speculate whether the governor would have approved or vetoed the bill in toto if he had known that his item veto would be struck down. Although, as the quoted cases demonstrate, the rule in some jurisdictions that an invalid veto will negate the measure is often broadly stated as being based upon a requirement that the governor's affirmative approval is necessary, in fact the cases often involve an invalid item veto during a post-adjournment period. It is during such a period that the affirmative approval of the governor is required because, in the absence of his signature, the measure will fail of enactment.110 In some of the decisions, the courts have struck from the bill only those sections or items which have been the subject of invalid item vetoes,111 but in others invalid item vetoes have caused an entire bill to fail of enactment.112 For example, in one case in which the court invalidated the governor's attempted item veto of provisions of a bill that were held to be merely directions as to how the single lump sum appropriation for the state university was to be spent, the entire bill failed of enactment. 113

106 State ex rel. Turner v. Iowa State Highway Commission, 186 N.W. 2d 141 (Iowa 1971). 107 Peebly v. Childers, 95 Okla. 40, 217 P. 1049 (1923).

108 Opinion of the Justices, 210 A. 2d. 852, 855 (Del. 1965.) See also Nowell v. Harrington, 122 Md. 487, 89 A. 1098 (1914).

109 State ex rel. Finnegan v. Dammann, 220 Wis. 143, 149-50, 264 N.W. 622 (1936).

110 See, e.g., Mills v. Porter, 69 Mont. 325, 222 P. 428 (1924); State University v. Trapp, 28 Okla. 83, 113 P. 910 (1911); State ex rel. Finnegan v. Dammann, 1220 Wis. 143, 264 N.W. (1936).

111 See, e.g., Opinion of the Justices, 306 A. 2d 720 (Del. 1973) (invalid item veto of condition caused appropriation for state department of natural resources to fail of enactment, but other provisions in conglomerate appropriatins measure were enacted).

112 Opinion of the Justices, 210 A. 2d 852 (Del. 1965); Nowell v. Harrington, 122 Md. 487, 89 A. 1098 (1914); State University v. Trapp, 28 Okla. 83, 113 P. 910 (1911); Spokane Grain & Fuel Co. v. Lyttaker, 59 Wash. 76, 109 P. 316 (1910); State ex rel. Finnegan v. Dammann, 220 Wis. 143, 264 N.W. 622 (1936).

113 State University v. Trapp, 28 Okla. 83, 93, 113 P. 910 (1911).

Conclusion

The item veto in its variety of verbal configurations has been part of the state political scene for over a century. Interpretation and application of particular phraseology has been the subject of well over 100 reported decisions. Interestingly, almost half of the rulings were rendered in the last fifteen years. As is apparent from the instant review, there still are few areas of total agreement on the meaning and effect of particular key terms despite this increased judicial attention.

Indeed, the lesson to be learned from this exercise is two-edged; very careful draftsmanship of federal item legislation is essential; but even the most careful attention to lingustic details may fail to foresee particular circumstances or applications, or account for the ingenuity of lawyers and the vagaries of judicial interpretation. Recent major proposals before the Congress contain language that appears to beg for litigation. H.R. 241 (99th Cong., 1st Sess.), for example, would authorize the President to disapprove "any appropriation or provision and approve any other appropriation or provision in the same appropriation bill." The meaning of the term "provision", not a term frequently used in state constitutions, is a certain target for judicial scrutiny. S. 1921 (98th Cong., 2d Sess.) would allow the President to veto or reduce "any item of appropriation in any Act of joint resolution." "Item" has, of course, been a prominent subject of state judicial analysis. But which interpretive line will prevail at the federal level?

The difficulty in constructing precise verbal formulations that will have predictable applications is not unique to the item veto. It inheres to one degree or another in all legislative drafting. The concern here is the certainty of the treacherous interpretive course ahead that the state experience has revealed. The prospect may be one of years of uncertainty despite the most careful statutory crafting. In an area, and during a period, of great political and economic sensitivity, this becomes a factor for serious consideration.

CONSTITUTIONALITY OF EMPOWERING ITEM VETO BY LEGISLATION Renewed interest in the item veto has stirred with the introduction of both a constitutional amendment proposal and legislation. The President has requested this authority by statute. This section must necessarily be tentative. While the issue of constitutionality may be addressed at the level of generality concerned solely with power to do something, the question may sometimes be complicated by the manner in which a proposal is drafted.

Under the Constitution, the President appears to have only two choices when presented with a bill: approve it in its entirety or disapprove it in its entirety. The item veto would present him the opportunity selectively to approve and disapprove provisions within the same bill. Generally, the proposals of item vetoes have been directed to appropriations bills or to certain types of appropriations and usually have excluded legislative provisions of such bills; however, it has been proposed from time to time to empower the President with respect to any bill coming before him. The discussion herein specifically deals with appropriations bills, but in most respects the issue it addresses should not turn on the distinction.