When is a line-item veto not really a veto?
That question was the framework for the Supreme Court's examination, in a spirited hour of argument Monday, of the constitutionality of the Line Item Veto Act. In that 1996 law, Congress voluntarily surrendered to the president the authority to shape the final form of spending and tax legislation, permitting him to cancel individual items within five days of signing a bill into law.
In his defense of the law on behalf of the Clinton administration, Solicitor General Seth Waxman conceded that a pure line-item veto _ giving the president the power to sign some provisions and veto others within a single piece of legislation _ would be unconstitutional.
Waxman said such an arrangement would violate the "presentment clause" of Article I, which every American schoolchild learns under the heading of "how a bill becomes a law": passage by both houses of Congress and signature by the president, or subsequent passage by two-thirds majorities over the president's veto. Conversely, a provision of law can only be repealed by the passage of a new law according to the same formula.
However, Waxman insisted, the Line Item Veto Act did not flout the presentment clause's requirements but instead honored them.
Under the act, the president first signs the entire bill into law in the traditional manner. Only then can he cancel specific provisions _ as long as Congress has not identified those provisions as exempt from the veto, a prerogative it retained.
"What the president is doing is not repealing a provision of law that Congress has enacted, but exercising the delegated authority Congress has given him," Waxman said. "He is implementing the law."
Some justices were openly skeptical. Is this sequence of events really "more defensible" than a true line-item veto, JusticeAnthony Kennedy wanted to know, asking: "You mean for a moment in time there is a little law" _ he interrupted himself by laughing at his own question _ "or a big law?"
Other justices took issue with the solicitor general's assertion that a cancellation of a provision was not the constitutional equivalent of a formal repeal of the provision.
"You can call it a different word, but it's the same thing _ it's gone," Justice Ruth Bader Ginsburg said.
Waxman was unflappable, perhaps because despite the justices' open doubts about the merits of the government's case, he held a trump card that could prevent the court from ever reaching the merits: an attack on the legal standing of the two groups of plaintiffs whose separate challenges to the Line Item Veto Act were before the court in the case, Clinton vs. City of New York.
A year ago, the justices heard a challenge to the act brought by six members of Congress, only to dismiss the suit on the ground that the members had not suffered any actual injury from the existence of a veto that at that point President Clinton had not yet even exercised.
Since then, the president has canceled 82 items from 11 laws, so there is no doubt the power is more than theoretical.