Kagan, The Line-Item Veto, And Some Creative Legislative Strategery

By Satyam Khanna

Yesterday, the White House joined a long line of administrations seeking line-item veto authority from Congress. The White House candidly (and correctly) noted that the LIV won’t put much more than a dent in the deficit, so I imagine this is more of a political tool to prod obstinate members of Congress to back Obama’s initiatives by threatening their earmarks. Notably, in 1996, the Supreme Court, in Clinton v. City of N.Y., struck down the LIV, essentially arguing that President Clinton was unconstitutionally acting as a legislator by unilaterally striking down provisions of bills. How is Obama going to avoid the same fate? Plan A: he is giving more authority to Congress than Clinton did, allowing it to vote up-or-down within 25 days on his spending cut proposals.

But if that fails, on to the secret weapon: Obama will have a very important friend of the LIV on the Supreme Court. Take a look at Elena Kagan’s views on Clinton v. N.Y.C. from her seminal work on executive authority, Presidential Administration:

[T]he Court held that the Act violated the “finely wrought” procedures of Article I, Section 7 of the Constitution by authorizing the President unilaterally to repeal parts of enacted statutes. The two dissenting opinions in the case, however, demolished this claim by pointing out the technical adherence of the Act’s cancellation mechanism to this constitutional provision: in exercising his authority under the Act, the President had done no more than execute a power, given to him by legislation enacted pursuant to Article I, Section 7, respecting the implementation of further legislation enacted pursuant to Article I, Section 7. […]

The majority itself seemed tacitly to recognize the dissenters’ point by discussing at length how this delegation extended further than prior, structurally similar grants to the President of authority to cease giving effect to legislative provisions. What truly seemed to gall the majority, for all its claim of a violation of Article I, Section 7, was that Congress had authorized the President to implement his policy views in areas outside his special constitutional responsibility and in ways conflicting directly with prior legislative judgments.

There’s a lot of legalese in there, but the important part is to note Kagan’s dismissive tone towards the majority and her embrace of the dissents, whom she said “demolished” the former’s arguments. The diction isn’t terribly conclusive, but for someone characteristically silent about her legal views but favorable to executive authority, I think it is probably fairly suggestive of her opinion. So, if LIV goes to the Supreme Court, it will likely find one more sympathetic ear on the bench. And note who authored the majority in Clinton finding LIV unconstitutional: John Paul Stevens. Convenient!


Discussing Kagan’s strong belief in using executive power to pass progressive legislation by sidestepping a gridlocked Congress, Dylan Matthews observed yesterday that Congress’s stubbornness is beginning to reshape our political institutions, in this case, the judiciary. Indeed. With the news about the LIV, it seems that in light of congressional intransigence, the administration is really pulling out all the stops (short of pushing for filibuster reform!) in trying to maximize the executive’s ability to get things done.