The veto power

Under Article I, § 7, cl. 2, "[e]very Bill . . . shall, before it becomes a law, be presented to the President of the United States: If he approves he shall sign it, but if not he shall return it . . ." Congress is authorized by two-thirds vote of each House to override the President's objection and to enact the bill into law.

No evidence may be gleaned from the records of the Convention that any of the Framers conceived of the possibility of an item veto,114 but the Framers were concerned in one respect that Congress might try to evade the veto clause by designating a measure having legislative import as something other than a bill. The result of this concern was clause 3 of the same section which provides that "[e]very Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. 115

116

Obviously, if literally construed, the clause could have bogged down the intermediate stages of the legislative process. On the request of the Senate, the Judiciary Committee in 1897 published a comprehensive report detailing how the clause had been interpreted over the years and it is now interpreted in the same manner. Briefly, it was shown that the word "necessary" in the clause had come to refer to the necessity required by the Constitution of lawmaking; that is, any "order, resolution, or vote" if it is to have the force of law must be submitted. But "votes" taken in either House preliminary to the final passage of legislation need not be submitted to the President nor must resolutions passed by the House concurrently, expressing merely the views of Congress.

The item veto

Before the Civil War, Congress began the practice of attaching legislative riders to appropriations bills, thus imposing upon the President the choice of submitting to directives which he opposed or of vetoing needed money bills.117 President Grant proposed to the 43rd Congress a constitutional amendment "to authorizes the Executive to approve of so much of any measure passing the two Houses of Congress as his judgment may dictate, without approving the whole, the disapproved portion or portions to be subject to the same rules as now.' 118 Presidents Hayes and Arthur recommended similar measures limited to appropriations bills. 119 Introduced

114 C. Zinn, The Veto Power of the President (Washington: House Judiciary Committee Print, 1951), 33; E. Mason, The Veto Power (Boston: 1890), 20-23.

115 See 2 M. Farrand, Records of the Federal Convention of 1787 (New Haven: Rev. ed. 1937), 301-302, 305-304.

116 S. Rept. No. 1335, 54th Congress, 2d sess. See also 4 A. Hinds' Precedents of the House of Representatives (Washington: 1970), § 3483.

i17 See 7 J. Richardson, Messages and Papers of the Presidents, 1789-1897 (Washington: 1898) (Veto message of President Hayes addressing and protesting the practice); Zinn, op. cit., 33. 118 7 Richardson op. cit., 242.

119 Id., 528; 8 Richardson, op. cit., 138.

as early as 1876, proposed constitutional amendments containing an item veto have received extremely limited attention in Congress, having been only once favorably reported by the Senate judiciary Committee, in 1884,120 but not being considered by the Senate. A vote the year earlier to discharge the House Judiciary Committee of a proposal failed to obtain a two-thirds majority. 121 Since that time, Presidents Franklin D. Roosevelt, Harry Truman, and Dwight Eisenhower have made similar recommendations. 122 President Taft, after leaving office, expressed views in opposition. 123 Constitutional amendments were introduced into the 98th Congress, see S. J. Res. 26 and S. J. Res. 128, but no action was taken. 124

Failure of constitutional amendment proposals resulted in attempts to achieve the same and through legislation. In 1938, at the request of the Chairman of the House Appropriations Committee, the Chairman of the House Judiciary Committee, Hatton W. Summers, studies the question of the constitutionality of an item veto through ordinary legislation and advised that he thought the power existed in Congress to enact a bill. 125 The House attached to the Independent Officers Appropriations Bill for 1939 the Woodrum amendment, which provided, in part: "The President is authorized to eliminate or reduce by Executive order, in whole or in part, any appropriation or appropriations made by this act, or any act or joint resolution, whenever, after investigation, he shall find and declare that such action will aid in balancing the Budget or in reducing the public debt, and that the public interest will be served thereby: Provided, That whenever the President issues an Executive order under the provisions of this section, such Executive order shall be submitted to the Congress while in session and shall not become effective until after the expiration of 60 calendar days after such transmission, unless the Congress shall be law provide for an earlier effective date of such Executive order. . . .126 The Senate bill contained no like provision and in conference the section was not adopted.

It will be noted, first, that the provision contained no authority for Congress to overturn the President's action, save, of course, through enactment of new legislation, and, second, that the measure partakes more of the rescission-deferral authority contained in the Impoundment Control Act, 127 than of the item veto.

Thereafter, legislation was periodically introduced. The first was apparently S. 2161, 81st Congress, which authorized the President to strike out all or part of items of appropriations which he deemed "not in the public interest." Congress was empowered to reappropriate stricken items by simple majority vote, which the President

120 S. Res. 18, 48th Congress; 15 Cong. Rec. 3164(1884).

121 14 Cong. Rec. 3611. (1883).

122 Ross & Schwengel, "An Item Veto For the President?" 12 Pres. Studies Q. 66, 72 (1982). 123 W. Taft, The Presidency: Its Duties, Its Powers, Its Opportunities and Its Limitations (New York: 1916), 20. For the most extensive hearing, see "Item Veto," Hearing before Subcommittee No. 3, House Judiciary Committee, 85th Congress, 1st sess. (1957).

124 See Cong. Rec. (daily ed.), Oct. 29, 1983, S14934-S14949 (Senate debated and defeated "sense of the Senate" resolution to effect that item veto constitutional amendment should be proposed).

125 83 Cong. Rec. Append. 200 (1938).

126 83 Cong. Rec. 355 (1938).

127 88 Stat. 332 (1974), 2 U.S.C. §§ 681-688.

could not thereafter withhold. Senator Humphrey in 1952 introduced S. 2602, 82d Congress, providing for modification of the rules of the Senate and House of Representatives to authorize a presidential item veto of appropriations, subject to an override by twothirds vote of both Houses. 128 In the 86th Congress, S. 2373 was introduced, modeled after the 1938 Woodrum amendment. 129

In the 98th Congress, Senator Mattingly introduced S. 1921, which would have authorized the President to disapprove any item of appropriation in any act or joint resolution, except appropriations for the legislative or judicial branch. In the 99th Congress, Senator Mattingly introduced S. 43 which is discussed in detail below.

The constitutional setting

Resolution of the question whether a statutory item veto may be created requires an appreciation of the concept of separation of powers. It is, of course, basic learning under our constitutional theory that the Constitution separated national governmental powers into tripartite divisions.130 While there are opinions of the Supreme Court that ascribe to this scheme of division a rigidity which in fact it does not have,131 the Court has cautioned that the Framers did not contemplate a "hermetic sealing off of the three branches of Government from one another [because this] would preclude the establishment of a Nation capable of governing itself effectively." 132 Modern cases reject the formalism of Kilbourn and Myers in favor of "the more pragmatic, flexible approach" 133 of Madison and Story, who in essence argued against a separatist position admitting of no interdependence among the branches; instead, the maxim of separation was to be taken in a limited sense, recognizing the partial agency of each in the others. 134 The standard of interpretation recurred to is that of Justice Jackson, concurring in Youngstown Sheet & Tube Co. v. Sawyer, 135 who wrote: "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed power into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. 136

A primary function of this form of separation is the maintenance of the system of checks and balances contemplated by the Framers. 137 Briefly, the theory is that a paper separation of the

128 See also S. 1006, 83d Congress, and S. 1902, 84th Congress.

129 See "Impoundment of Appropriated Funds by the President," Joint Hearings before the Ad Hoc Subcommittee on Impoundment of Funds of the Senate Government Operations Committee and the Subcommittee on Separation of Powers of the Senate Judiciary Committee, 93d Congress, 1st Sess. (1973) 111-112 (GAO memo).

130 E.g., Wayman v. Southard, 10 Wheat. (23 U.S.) 1, 46 (1825); INS v. Chadha, 103 S. Ct. 2764, 2784 (1983).

131 Kilbourn v. Thompson, 103 U.S. 168, 190-191 (1881); and see Myers v. United States, 272 U.S. 52 (1926), modified by Humphrey's Executor v. United States, 295 U.S. 602 (1935), and Wiener v. United States, 372 U.S. 349 (1958).

132 Buckley v. Valeo, 424 U.S. 1, 121 (1976).

133 Nixon v. Administrator of General Services, 433 U.S. 425, 442 (1977).

134 United States v. Nixon, 418 U.S. 628, 707 (1974).

135 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952).

136 See also Nixon v. Administrator of General Services, supra, 443; Nixon v. Fitzgerald, 457 U.S. 731, 753-754 (1982).

137 The Federalist, Nos. 47-51 (Madison).

branches is insufficient to keep power from flowing to one or another; rather, each of the branches must be given the means and the desire to resist encroachment from the others. Among the means is a limited sharing of functions. For example, the Senate shares in the President's executive power of appointment through its power of advice and consent; Congress shares foreign and military powers with the President as Commander in Chief. More to the point, the President shares in the legislative power through his power to veto, by which he may resist legislative encroachment upon himself and further his conceptions of public policy. 138

Obviously, enunciation of general principles does not resolve specific disputes. Yet, beginning with these general principles, the Court has established rules of interpretation when separation of powers challenges are raised with respect to the actions of one branch or another. The principle of separation may be embodied in a specific clause of the Constitution; there may be a textual commitment of a function to one branch. The appointments clause at the foundation of Buckley v. Valeo, supra, and the presentation clause at the focus of INS v. Chadha, supra, represent this strand of separation of powers decisionmaking. Even with regard to specific provisions, however, one must carefully evaluate, first, the blending of the branches by a constitutionally sanctioned participating role, and, second, function as an aspect of application of the clause in issue, inasmuch as it is the nature of the function that ultimately determines where it must be lodged and how ambiguities in clauses must be resolved. 139

In the absence of a specific clause, the Court must, in determining whether a function may be performed by one branch, derive from context and structure whether that function is inherently exclusive within that or another branch or whether it must be deemed to be exclusively committed to a particular branch in order to protect functions that are exclusive to that branch. Illustrative of this stand of separation of powers decisionmaking are the decisions respecting the removal powers of the President,140 and those respecting the confidentiality of presidential papers and conversations. 141

The appointments controversy as a paradigm

To anchor these general principles to a solid issue, it will be useful to briefly review Buckley v. Valeo, supra. There, Congress had created the Federal Election Commission to oversee the presidential and congressional election process. The Commission was composed of six voting members, two appointed by the President, two by the President pro tempore of the Senate, and two by the Speaker of the House of Representatives, with all six subject to the advice and consent of both Houses. Under the appointments clause, Article II, § 2, cl. 2, the President is empowered to appoint, among others, "Officers of the United States, whose Appointments are not

138 INS v. Chadha, supra, 2782-2783; La Abra Mining Co. v. United States, 175 U.S. 423, 453 (1899).

139 INS v. Chadha, supra, 2784-2788; Buckley v. Valeo, supra, 124-127, 137-141.

140 Myers v. United States, supra; Humphrey's Executor v. United States, supra; Wiener v. United States, supra.

141 United States v. Nixon, supra; Nixon v. Administrator of General Services, supra.

herein otherwise provided for, and which shall be established by Law." The clause gives Congress the discretion in creating the of fices to leave the appointments in the President with the advice and consent of the Senate or to consider them "Inferior Officers" whose appointments it may lodge in the President alone, in the courts, or in the heads of departments.

On its face, the clause creates two and only two means of appointing officers of the United States. But who are officers of the United States? Congress has legislative power to regulate the electoral process and each House has exclusive power to judge the election returns of its Members. Moreover, the necessary and proper clause, Article I, § 8, cl. 18, vests in Congress the discretion to make laws to carry out the powers vested in it and other entities by the Constitution. Might it not be that Congress could create such a body outside the framework of the appointments clause?

The Court first determined that officers of the United States were those "appointees exercising significant authority pursuant to the laws of the United States. 142 It then examined the powers Congress had given the Commission. Some of the powers, investigation, receipt of the information, dissemination, were of the kind that Congress itself exercised and a Commission as so constituted could be given those powers in lieu of Congress. But other powers were executive in nature and did constitute "significant authority" exercised "pursuant to the laws of the United States." Thus, the power to enforce law through the courts was purely executive; the powers to make rules, dispense appropriated funds, issue advisory opinions, and the like, while they could be given to an agency somewhat removed from presidential control, were necessarily executive and must be exercised by officers of the United States.

Therefore, once the functions performed were analyzed and fixed in terms of necessary location, the Court could determine whether the appointments clause specified an exclusive approach. With regard to officers of the United States States and the types of functions they could carry out, it did; of course, Congress could provide other means of appointments for officers who were not constitutionally officers of the United States.

The legislative veto

Similarly, when in INS v. Chadha, supra, the Court was faced with the questions of the constitutionality of the legislative veto, it analyzed the power being exercised and the entity exercising it in the same context. Because Congress by statute had delegated certain powers to the executive and the executive had implemented the powers, thus creating a legal status, the Court determined that in order to alter this legal status Congress must take steps that comported with the constitutional means for changing law, the enactment of another law by methods which complied with the presentation clause, Article I, §7, cl. 2, and which had been enacted upon by both Houses in line with bicameralism required by Article I, § 1.

142 Buckley v. Valeo, 126.