Tuesday, May 11, 2010

Obama's Line-Item Power-Grab

When Obama first selected Biden as his running mate, I was initially disappointed. In the heat of the campaign, I thought it was a stupid move. Why would Obama undercut his main message of "change" by bringing on a man who has been a Senator since Obama was in high school? Why would he choose someone who had made such a colossal error in judgement and voted for the war? Why didn't he pick an outsider like Virginia Governor Tim Kaine? Or, if he had to pick a Senator, why not someone like liberal Rhode Island Senator Jack Reed?

Soon, though, I began to think of the upside: While Biden may not help Obama get elected, he certainly would help Obama govern the country. As someone who was first elected in 1976, Biden had been around for a while. A long while. As such, many people in the Senate must have owed him favors. As the Chair of the Foreign Relations Committee, he was a powerful ally. If the President used him correctly, he could be Obama's Congressional Liaison and help shepherd through his policy priorities.

Once elected, Obama went through Congress while building his staff: Clinton, Salazar, Emanuel, Solis, LaHood, McHugh...the President wasn't afraid of looking to the Capitol for help in running his administration:
The first senator elected directly to the Oval Office since 1960, Obama has an entirely different theory of how to exercise presidential power, and he has consciously designed his administration to avoid Clinton’s fate. After winning the office with the same kind of outsider appeal as his predecessors, he has quietly but methodically assembled the most Congress-centric administration in modern history. Obama’s White House is run by Rahm Emanuel, a former House leader who was generally considered to be on a fast track to the speakership before he resigned to become chief of staff, and it is teeming with aides plucked from the senior ranks of both chambers. Obama seems to think that the dysfunction in Washington isn’t only about the heightened enmity between the parties; it’s also about the longstanding mistrust between the two branches of government that stare each other down from twin peaks on either end of Pennsylvania Avenue.
It seemed that Obama recognized that the President's only constitutional power was to sign or reject legislation. He can set the agenda and make policy proposals, but Congress must take the lead when it comes to drafting specific legislation. The Constitution creates the Legislature and the Executive as two equal partners (and adversaries) in government, and by all accounts Obama has respected that.

Unfortunately, now it appears that Obama is leaving that lesson behind in his pursuit for more power:
President Obama, in his latest effort to signal fiscal responsibility against the rising debt, plans this month to ask Congress to give him and future presidents greater power to try to delete individual items from spending bills.

In doing so, Mr. Obama will join a long line of his predecessors who have sought either line-item veto power or, after the Supreme Court in 1998 ruled such a veto unconstitutional, some other rescission authority that passes muster. Congress once again is unlikely to be receptive, though growing antidebt sentiment could give the proposal life.

Before Congress breaks for its Memorial Day recess, the White House will send it proposed legislation “to give the president a new tool to reduce unnecessary or wasteful spending,” according to an administration official who spoke on condition of anonymity.
Obama is proposing that Congress give him the power to strike out any spending item he would like and turn the bundle of cuts over to Congress. Congress would then be required to take up the package within 25 days and give it an up-or-down vote. Congress would also be barred from amending the spending cut package.

First of all, this proposal is likely unconstitutional. In 1996, the Republican Congress gave Clinton the line-item veto--the power to strike out portions of any passed bill before signing it into law. Cities that did not receive funding sued the President, and sure enough the Supreme Court found the line-item veto unconstitutional in 1998 in the case Clinton v. City of New York.

The Court, in a 6-3 decision, found that the line-item veto violated the Presentment Clause of the Constitution, which states how a bill is to be presented to the President. The Court declared, in short, that the President has two options: Sign it, or veto it. The Constitution's failure to specify other options means that those are indeed the only two choices.

In addition to violating the Presentment Clause, Obama's power grab may also violate the Article I Establishment Clause:
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
The President can, of course, propose legislation that includes suggested spending cuts, as long as the "proposal" is introduced by a member of Congress. What he cannot do, however, is mandate that Congress take up a specific piece of legislation. That power, like all legislative powers, rests entirely in the hands of Congress. According to the Constitution, Congress cannot give away its powers to decide which bills are brought before it.

If this proposal of Obama's becomes law, I dread the day when the new line-item veto is used for political purposes. What's to stop a Republican President from proposing spending cuts for urban areas? And the proposal being given an up-or-down vote in a Republican Congress? We won't always have a responsible administrator in the White House, much like how we won't always have a responsible Congress. At the risk of sounding melodramatic, much like Clinton's line-item veto, this power would be disastrous in the wrong hands.

Fortunately, with Obama Derangement Syndrome running strong in the Republican Party, it's unlikely that many Republicans will sign on to the possibility of Obama personally cutting funding for their states. And there should be enough old-guard Democrats in the caucus to ensure that this proposal never makes it out of committee.

Still, it's a little surprising to see Obama, a former Senator, make this kind of power-grab. Then again, much like his ever-changing opinions on Executive powers in the modern security state, perhaps being President has changed his outlook on the balance of powers in Washington.


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