Hearings of the
Subcommittee on Legislative and Budget Process
The Rescissions Process After the Line Item Veto: Tools for Controlling Spending
Louis Fisher
Congressional Research Service, Library of Congress
1. It has been argued that, because the Supreme Court's ruling was based on cases involving direct spending and limited tax benefits, the portion of the Line Item Veto Act dealing with discretionary spending could still be intact. This point of view was expressed in an article in the January 1999 Cardozo Law Review written by Elizabeth Garrett. This certainly runs counter to the conventional wisdom. What is your response to this view?
Had the Line Item Veto Act been restricted to appropriations, the Court might have responded more favorably. Certainly oral argument seemed to convey deep unease among many Justices about the President being able to cancel tax items and entitlements, even though the Line Item Veto Act imposed major constraints on what he could do. Now that the Court has decided the case on broad procedural grounds (the Presentment Clause), the invalidation applies across-the-board: to direct spending, limited tax benefits, and discretionary appropriations. I don't think the Court has left itself any room to back down and accept a less far-reaching statute. I think the Court is stuck on its unfortunately rigid (and unpersuasive) argument: Any change by the President after signing a bill will amount to "repeal" and "amendment," and those actions must be done through the regular legislative process.
2. If Congress were to revise the existing rescissions process to require a vote on the Persident's proposal, would it be better to make this change as an add-on to the current process, thus giving the President two options on process, or as a rewrite of the existing process?
I think it would be best to make a revision of the rescissions process a supplement to the existing process, just as Congress did in passing the Line Item Veto Act.
3. Do you have any thoughts on the differing motivations that might have guided the President in determining whether to apply his rescissions authority or his Line Item Veto authority on specific funding items while the Line Item Veto was in effect?
Although OMB and the administration suggested that the motivations were neutral standards and merit, I imagine the principal motivations were these: (1) the President was politically obliged to make some cancellations under the Line Item Veto Act, because inaction or limited use would subject him to criticism that he was not using available authority to eliminate wasteful items; (2) the likely candidates for cancellation for rescission (either under the 1974 Act or LIVA) would be items that Congress had added to his budget; and (3) any decision to cancel add-ons would be reversed whenever it was political advantageous to do so, even if it meant violating the announced standards, because the administration would decide that it should save a legislator's project if he or she would agree to support a presidential priority. The test would never be canceling "special interest" items in order to retain "general interest" items. The administration regularly supports "special interest" items whenever it wants to.
4. As someone who traditionally seeks to preserve the prerogatives of Congress, you have criticized expedited rescission because it would require Congress to take action on a President's proposal. Isn't there also an "accountability" factor for the President in an expedited rescissions process?
I think expedited rescission gives the President a free ride, without any
accountability. He can send up large rescission packages, getting public
credit for being the "economizer" or "guardian of the purse," even if the specific
programs in the package have little merit and stand virtually no chance of
passage. He gets all the credit; Congress gets all the blame. The public isn't
going to examine and analyze the items that make up the package. If
Congress were to enact his rescission proposal, again the President would
benefit 100% because he was the one who selected the programs to be
rescinded (probably programs that Congress had added to his budget). If we
want accountability, I think Congress should be able to take a President's
rescission package and agree to match the aggregate amount but change the
mix, deleting some programs that Congress favors and inserting some
programs that the President wants. This opportunity to change the mix
should be done, for the most part, in committee, as was the case with
President Bush's rescission package in 1992. Through this process,
Congress has an opportunity to protect some of its spending priorities and the
President stands the risk of losing some of his spending priorities. This
process would preserve a better balance between Congress and the
President.
