Thursday, October 11, 2007

Dueling Law Professors

During the GOP debate the other night (which I, like most other Americans, did not watch), there was a spirited interchange between Rudy Giuliani and Mitt Romney about the presidential line item veto.

For some quick history, ever since Ronald Reagan repeatedly called for it, conservatives have wanted the president to have the authority to veto individual provisions of bills passed by Congress, mainly to control runaway spending. Governors in 43 states have this authority and use it frequently to great effect.

The GOP controlled Congress finally succeeded in passing legislation granting the president such power, and Bill Clinton signed it into law in 1996. In 1997, Clinton vetoed a spending provision in a budget bill that would have sent a chunk of money to New York City. Giuliani, who was mayor of New York at the time, sued to get the funding restored under the premise that the line item veto was unconstitutional. The Supreme Court ruled in 1998 that it was indeed unconstitutional.

During the debate (see transcript), Romney said that Giuliani’s suit was a mistake. Giuliani responded, “The line item veto was unconstitutional. I took Bill Clinton to the Supreme Court and beat Bill Clinton. It's unconstitutional. What the heck can you do about that, if you're a strict constructionist?”

When pressed on the issue, Romney said that the veto was “not properly structured,” but he argued that a statutory line item veto could be formulated that would pass constitutional muster. He said that President Bush put forward such a proposal last year.

Giuliani responded (in a rather saucy way) by saying that he was in favor of a legal line item veto. He continued that segment by saying, “And as the mayor of New York, if I had let President Clinton take $250 million away from the people of my city illegally and unconstitutionally, I wouldn't have been much of a mayor.” He then bragged that it wasn’t “a bad idea to have a Republican presidential candidate who actually has beat President Clinton at something.”

Today, the National Review Online has opposing articles by two respected law professors that are recognized for their prowess in constitutional matters. Douglas W. Kmiec of Pepperdine University takes Romney’s side of the argument in this article. (Disclosure: Kmiec is a Romney adviser.) Steven G. Calabresi of Northwestern University takes Giuliani’s side.

Both lawyers know their stuff and make persuasive arguments. Read both articles and decide for yourself who is right. I will merely make the following observations.

Romney essentially argues that Giuliani shouldn’t have challenged the line item veto law, although, he agrees that it was unconstitutional. He seems to lament that since the illusion of constitutionality has been dispelled, it is now necessary to find some other statutory way to accomplish the desired outcome. So, it’s OK to support an unconstitutional law if it achieves something you believe to be desirable? That kind of reasoning just doesn’t sit well with me. And why can’t we just bite the bullet and try to get a constitutional amendment approved if this is such a good and necessary thing?

But Giuliani’s argument that to be a good mayor he had to fight to have a quarter billion American taxpayer dollars funneled to his city is equally unimpressive. It always bothers me when people are free with other people’s money. But it bothers me even more when people selfishly feel entitled to other people’s money. This kind of thing has been a problem in our world at least since Cain.


Bradley said...

Here is a link to Calabresi's article. The blurb at the bottom of the article notes that, "Professor Calabresi cofounded the Federalist Society and currently serves as a member of presidential candidate Rudy Giuliani’s Justice Advisory Committee." In your original post, you only noted Kmiec's endorsement of Romney.

I agree that a line item veto probably isn't constitutional. But I don't think the founders ever envisioned the bundling of legislation that happens these days. Given the new legislative reality, a line item veto makes a lot of sense to disentangle the mesh of provisions that wind up on a president's desk. I favor a constitutional amendment to grant the president a line item veto of some sort.

y-intercept said...

I think Conservatives are split on the line item veto. There are many who think that the veto puts too much power in control of the Administration.

Most legislation these days is written by the various departments of the administration. If you gave the president the line item veto, then you pretty much cut off Congress at both ends and end up with an all powerful executive.

Fiscal conservatives are upset with poor quality legislation and out of control spending.

The attractiveness of the line item veto is that it is an additional quality control step.

Before adopting a line item veto, Congress should sit down in a serious session and create quality control steps that reduce that corruption that leads to so much low quality legislation.

Reach Upward said...

Bradley, thanks for noting Calabresi's links to the Giuliani campaign. That had escaped my attention. I already knew the he was a co-founder of the Federalist Society. I agree with him (as does John McCain, one of the bill's main sponsors) that the line item veto was unconstitutional in the form in which it finally passed Congress. However, Calabresi's comments came off as less than completely objective. Now I know why.

I agree with Kevin that a line item veto probably puts too much control in the hands of the executive branch. It's the legislative branch turning to the executive branch and crying, "Save us from ourselves. Stop us before we spend again!" We do have a system that is obviously in need of repair, but is this the right way to do it? Perhaps Kevin is right that Congress should get serious about instilling some discipline before we take the extreme step of transferring almost all spending power to the executive branch.

I'm not sure that Romney is correct that Congress could pass a statutory line item veto that would pass Constitutional muster. It would probably require a constitutional amendment. I don't know if it would ever survive the process.