And the question, "Shall this item be engrossed?" was taken, and resulted as follows:

*

So the item was ordered to be engrossed.

In 1907, the Parliamentarian, Asher Hinds, wrote, "This rule long since ceased to exist." 89

The House may wish to agree to a new rule similar to the rule on engrossment and third reading to provide for a division of the question on reconsideration of vetoed items.

Severability

The courts cannot severe certain items from a bill because to do so would create new legislation quite unlike the intent of the legislature. The courts have also said that executive authority to veto items is a power to negate; it is not authority to create new legislation by excising items to frustrate the intent of the legislature. Many of the item-veto cases turn on the question of severability, i.e., does the remaining bill-after vetoed items are removed-constitute "a complete, entire, and workable bill which the legislature would have passed in the first instance." 90

In one of the earliest item-veto cases, the Mississippi Supreme Court, in 1898, questioned whether the governor could use his item veto to strike conditions on the use of an appropriation. The court wrote: 91

To allow a single bill, entire, inseparable, relating to one thing, to be picked to pieces and some of the pieces approved and others vetoed, is . to distort and pervert legislative action, and, by veto, make a two-thirds vote necessary to preserve what a majority passed. The executive, in every republican form of government, has only a qualified and destructive legislative function and never creative legislative power. If the governor may select, dissect, and dissever, where is the limit of his right?

While recent courts have not repudiated the severability question, they have become wary. The test of severability requires subjective determinations and creates uncertainty in the appropriations process. In dissent, one judge wrote in a 1978 Wisconsin decision: 92

To hold that the exercise of the partial veto power may not have an "affirmative,” “positive” or “creative” effect on legislation, as some courts elsewhere have done, would be to involve the courts in disingenuous semantic games. These tests are inescapably subjective. Without an objective point of reference, this court would be reduced to deciding cases upon its subjective assessment of the respective policies espoused by the legislature and the executive, an unseemly result which would foster uncertainty in the legislative process. More importantly, such a result would defeat its own purpose; the judicial department may no more assume the proper functions of the legislature, or interfere with their discharge, than may the governor.

In 1984, a Washington court cited the Wisconsin dissent and announced that their court would abandon review of item vetoes: 93

89 5 Hinds' Precedents § 6144 footnote 8 (1907).

90 State ex rel. Kleczka v. Conta, 264 N.W.2d 539 (Wis. 1978).

91 State v. Holder, 76 Miss. 158, 180 (1898).

92 State ex rel. Kleczka v. Conta, 264 N.W.2d 539, 557 (Wis. 1978) (Hansen, J., concurring in part, dissenting in part).

93 Washington Federation of State Employees v. State, 682 P.2d 869 (Wash. 1984).

We hereby abandon the affirmative-negative veto test. The Governor is free to veto "one or more sections or appropriation items" without judicial review. The "check," as it always been, will be the Legislature's two-thirds override.

It is likely that the question of severability would arise in federal item-veto cases, if the President were to gain that authority. The question of severability has already arisen in instances where an act contains an unconstitutional provision. Anticipating constitutional challenges, Congress has declared its intent that certain provisions are indeed severable. Congress recently amended the District of Columbia Self-Government Act as follows: 94

(1) Part F of title VII of such Act is amended by adding at the end thereof the following new section:

"SEVERABILITY

“SEC. 762. If any particular provisions of this Act, or the application thereof to any person or circumstance, is held invalid, the remainder of this Act and the application of such provision to other persons or circumstances shall be be affected thereby.".

The House included a "nonseverability" clause in the first House amendment to the Senate "Gramm-Rudman-Hollings" amendment to H.J. Res. 372.95

SEC. 275. NON-SEVERABILITY

(a) If, after all appellate review is exhausted, a court of competent jurisdiction finds that any provision of this Act violates the Constitution or is otherwise invalid, then the provisions of this title shall immediately expire. No report required by that subsection shall be prepared or forwarded to the President and the President shall not exercise any power, authority, duty, or responsibility conferred upon or assigned to him by that part.

(b) If, after all appellate review is exhausted, a court of competent jurisdiction finds that any provision of this Act violates the Constitution or is otherwise invalid, then any provision of law which has been modified or suspended, and any budget authority which has been sequestered, shall immediately exist and operate as though the powers, authorities, duties, and responsibilities under part C of this title had never been exercised.

(c) The provisions of this section shall operate notwithstanding any other provision of this title.

The House might also anticipate item-vetoes. Congress could express its intent, within an appropriation bill, on the severability or nonseverability of various items. If Congress can specify its intent should the court find certain items constitutionally invalid, Congress might explain its intent should the President try to veto certain matters.

A section might be added to an appropriation bill directing the President as to what constitutes an "item." For purposes of sequestration, appropriation bills now specify what constitutes a "lineitem." An appropriation bill might provide that a certain appropriated amount must also be struck if the President chooses to veto the provisos on the use of that appropriation. Congress might add a blanket veto-severability clause, stating that the remaining provisions would be unaffected by an item veto, but this would probably add little clarification to the basic authority to veto items. Congress

94 98 Stat. 1837, 1975.

101 Cong. Rec. H9595 (daily ed. November 1, 1985). The Senate amendment to the House amendment included a severability clause; the final conference report dropped both the nonseverability and the severability clauses.

might choose to negate an entire act if the President vetoes certain items. Could the President item veto the "nonseverability" clause? Further study would be needed to determine whether modification of the rules and procedures of the House, particularly Rule XXI and the procedures for "rider" amendments, would be useful to provide for debate of veto-severability clauses and amendments. It would be a monumental task, however, for Congress to anticipate all possible item vetoes and to express its intent on each possibility.

If Congress does not specify in advance which items are severable, Congress's recourse would be to vote promptly on reconsideration of disapproved items. There would be a special urgency to the vote since the remaining bill would go into effect without the disapproved provisions. What is indicated if Congress does not vote on reconsideration of a vetoed item in a timely manner? The courts might take the failure to overturn as an indication of Congress's tacit approval of the item's severability. It remains a question whether the high privilege granted the consideration of a veto message is sufficient to ensure prompt reconsideration of disapproved items.

The vote to override an item veto

What majority should be required to pass an item, on reconsideration, over the executive's item veto? Table 2 in chapter I shows that states answer that question many different ways. Some require a simple majority, others, three-fifths, others, two-thirds, still others, three-quarters. In some states, it is a proportion of those elected; in other states, it is a ratio of those present. Ohio used to require that the item, on reconsideration, must receive at least as many votes as the bill received on original passage even if the measure was approved unanimously.96

On the federal level, it would be in keeping with the procedures for the override of a Presidential veto of bills to require a twothirds majority of those present to override the veto of items. On the other hand, to require a two-thirds majority creates problems for the severability question. A majority of each House may vote to adopt the disapproved items on reconsideration. This may be the best available test of whether a majority would have voted against the remaining bill, after removing the disapproved items. Nonetheless, the remaining bill will go into effect without the disapproved items if the President convinces one-third plus one of those present to vote with him.

Motion to adjourn

The motion to adjourn presents a distinct problem if the President returns parts of bills to Congress for reconsideration and ap

96 Constitution of the State of Ohio, art. II, § 16. The language of the 1903 constitution provided that vetoed items "shall be reconsidered as in the case of a whole bill." To repass a bill, twothirds of the members elected in each house must vote for repassage and "the votes for the repassage of said bill shall in each house respectively be no less than those given on original passage." This section was amended nine years later. The current language says that an item must be "repassed in the manner prescribed by this section for the repassage of a bill." To repass a bill, three-fifths of those elected to each house must vote to repass it and "in no case shall a bill be repassed by a smaller vote than is required by the constitution on its original passage."

proves other parts. It may be used to prevent a vote and a test of severability.

The motion to adjourn is not debatable,97 neither another motion nor an appeal may intervene before the vote 98 and the motion may be made only in simple form.99 Thus, a Member cannot raise the need to test the severability of disapproved items during debate on the motion. Because the motion to adjourn, if accepted, could prevent a test of severability, some might urge that the motion be restricted.

On the other hand, the House is competent to decide for itself whether to adjourn or to reconsider any disapproved item. It may be said that nothing in the rules should limit the high privilege of the motion to adjourn.

Motion to lay on the table

The motion to lay on the table, though it would delay reconsideration of vetoed items, does not prevent the test of severability. The vetoed items, even if laid upon the table, are privileged and may be taken from the table at any time.

It may be asked whether the motion to lay on the table can be divided, such that some items are reconsidered immediately and others are laid upon the table. A division is not in order when a motion is made to lay several connected propositions on the table.100 Presumably, the motion cannot be used to divide the items returned by the President unless the rules are changed to provide for a motion to divide.

Motion for the previous question

If the motion for the previous question on reconsideration of a vetoed bill is defeated, there is no opportunity for amendments. Though it would require a change in the rules, some might say that amendments should be permitted if the motion for the previous question on reconsideration of a vetoed item is defeated. The purpose of the item veto is to expand the President's bargaining power with the Congress. The item veto, in essence, extends the appropriations process. The President proposes, Congress drafts legislation in response and, with the item veto, the President can make revisions. The item veto limits the President to two options: approval or disapproval of amounts in the bill. If the President disapproves an item, the Congress then has two options: to sustain or override the item veto. It may be argued that complete disapproval is too blunt an instrument for this stage of bargaining between the two branches. One possibility is to expand the options available for Congress to respond if the President disapproves an amount in an appropriation bill. By permitting amendments when the motion for the previous question is defeated, the Congress would have an opportunity to find a figure lower than the disapproved amount to which the President might agree.

97 5 Hinds' Precedents § 5359 (1907) and see House Rules and Manual § 783.

98 5 Hinds' Precedents § 5361 (1907).

998 Cannon's Precedents § 2647 (1936).

100 5 Hinds' Precedents §§ 6138-6140 (1907).

The bargaining process to be effective must have a clear and final end point. Adding further opportunities for change after the President vetoes an item may produce too much uncertainty in the appropriations process. If the President's objections indicate that he would approve some of the vetoed items at lower levels, Congress could take note of those objections and pass a separate bill with the modifications indicated-a practice for which there are ample precedents under current veto procedures as noted above. Motion to postpone to a day certain

The motion to postpone to a day certain does not prevent a vote on vetoed items. Can the motion be used to divide consideration of several vetoed items? The motion to postpone applies to the whole of a pending matter and may not apply to a portion only.101 Presumably, without explicit changes to the rules, the motion to postpone cannot be used to delay consideration of some vetoed items and to permit the House to proceed on others.

Motion to refer

A motion to refer a vetoed bill to a committee, with or without the veto message, is in order. Presumably, a motion to refer vetoed items would be in order as well. The motion to refer, as applied to vetoed bills, can be used to delay a vote on reconsideration. Once a vetoed bill is referred to a committee, the committee is not required to report back. However, a motion to discharge a committee from consideration of a vetoed bill presents a question of constitutional privilege and is in order at any time. That should be a sufficient guarantee that vetoed items will be reconsidered.

Can the motion to refer be used to separate consideration of several vetoed items? There is precedent for a joint referral of a vetoed bill. On March 7, 1985, the Majority Leader made the following motion. 102

The SPEAKER pro tempore. The objections of the President will be spread at large upon the Journal, and the message and bill will be printed as a House document. Mr. WRIGHT. Mr. Speaker, I move that the veto message of the President, together with the accompanying bill, H.R. 1096, be referred to the Committee on Agriculture and the Committee on Foreign Affairs.

The SPEAKER pro tempore. Without objection, the motion is agreed to.

There was no objection.

This is not a precedent for referring part of a vetoed bill to one committee and other parts to other committees. It is unclear whether a motion dividing reference of vetoed items would be in order. Under general parliamentary law and in the practice of the House before petitions were filed with the Clerk of the House, matters were sometimes divided for reference to committees: 103

A particular clause of a bill may be committed without the whole bill or so much of a paper to one and so much to another committee.

The Rules of the House now provide the Speaker with great discretion to refer in the first instance matters filed with the Clerk so as

101 5 Hinds' Precedents § 5306 (1907) and House Rules and Manual § 786 (1983).

102 131 Cong. Rec. H1107 (daily ed. March 7, 1985).

103 Section XXVIII, Jefferson's Manual of Parliamentary Practice, in House Rules and Manual § 421 (1983).