No. 96-1671-1

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

FRANKLIN D. RAINES, ET AL., APPELLANTS

v.

ROBERT C. BYRD, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE APPELLANTS

WALTER DELLINGER
Acting Solicitor General

FRANK W. HUNGER
Assistant Attorney General

EDWIN S. KNEEDLER
Deputy Solicitor General

MALCOLM L. STEWART
Assistant to the Solicitor
General

DOUGLAS N. LETTER
SCOTT R. MC INTOSH
Attorneys

Department of Justice 
Washington, D.C. 20530-0001
(202) 514-2217

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  QUESTIONS PRESENTED

    The Line Item Veto Act, Pub. L. No. 104-130, 110 Stat.
1200 (to be codified at 2 U.S.C. 691 et seq.), gives the Pres-
ident conditional authority to cancel certain spending and
revenue items within five days after a bill containing such
items has been enacted into law.  The questions presented
are as follows:
    1.  Whether individual Members of Congress have stand-
ing to challenge the constitutionality of the Act.
    2.  Whether the Act violates Article I of the Consti-
tution.

(I)

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II

        PARTIES TO THE PROCEEDINGS

    The appellants here, who were the defendants in the
district court, are Franklin D. Raines, the Director of the
Office of Management and Budget, and Robert E. Rubin,
the Secretary of the Treasury.  The appellees here, who
were the plaintiffs below, are Senator Robert C. Byrd,
Senator Daniel Patrick Moynihan, Senator Carl Levin,
former Senator Mark O. Hatfield, Representative David E. 
Skaggs, and Representative Henry A. Waxman.

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TABLE OF CONTENTS

Page

Opinion below  . . . .  1 
Jurisdiction  . . . .  1 
Constitutional and statutory provisions involved  . . . .  1 
Statement  . . . .  2 
Summary of argument  . . . .  15 
Argument:
        I.  Appellees lack standing to challenge the consti-
            tutionality of the Line Item Veto Act  . . . .  18 
            A.  Members of Congress will suffer no judicially
                  cognizable injury as a result of the implemen-
                  tation of the Line Item Veto Act  . . . .  20 
            B.  Because the President has not yet exercised
                  his cancellation authority under the Line
                  Item Veto Act, appellees can identify no
                  actual or imminent injury  . . . .  30 
        II.  The Line Item Veto Act does not violate
             Article I of the Constitution  . . . .  33 
             A.  The Act does not conflict with the consti-
                    tutional requirement that the President
                    approve or disapprove in toto a bill pre-
                    sented to him by Congress  . . . .  33 
              B.  The Act is consistent with the historical
                    understanding of Congress's power to con-
                    fer spending discretion on the Executive
                    Branch  . . . .  38 
              C.  The Act does not delegate legislative power
                    to the President  . . . .  40 
    Conclusion  . . . .  51 
    Appendix  . . . .  1a 

(III)

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IV

TABLE OF AUTHORITIES

Cases:                               Page

    Addison v. Holly Hill Fruit Prods., Inc., 322 U.S.
        607 (1944)  . . . .  47
    Allen v. Wright, 468 U.S. 737 (1984)  . . . .  18, 19
    American Power & Light Co. v. SEC, 329 U.S. 90
        (1946)  . . . .  42
    Arizonans for Official English v. Arizona, 117 S.
        Ct. 1055 (1997)  . . . .  26
    Bender v. Williamsport Area Sch. Dist., 475 U.S.
        534 (1986)  . . . .  22, 27, 28
    Bennett v. Spear, No. 95-813 (Mar. 19, 1997)  . . . .  18
    Bowsher v. Synar, 478 U.S. 714 (1986)  . . . .  22, 24,
                                                                              27, 39
    Buckley v. Valeo, 424 U.S. 1 (1976)  . . . .  25,27
    Cheng Fan Kwok v. INS, 392 U.S. 206 (1968)  . . . .  26
    Chicago & Grand Trunk Ry. v. Wellman, 143 U.S.
        339 (1892)  . . . .  19
    Cincinnati  Soap Co. v. United States, 301 U.S.
        308 (1937)  . . . .  38, 43
    City of Los Angeles v. Lyons, 461 U.S. 95 (1983)  . . . .  30
    City of New Haven v. United States:
        634  F. Supp. 1449 (D.D.C. 1986), aff'd, 809 F.2d.
            900 (D.C. Cir. 1987)  . . . .  6
        809 F.2d 900 (D.C. Cir. 1987)  . . . .  7
    Coleman v. Miller, 307 U.S. 433 (1939)  . . . .  21, 28, 29
    Debs, In re, 158 U.S. 564 (1895)  . . . .  21
    Diamond v. Charles, 476 U.S. 54 (1986)  . . . .  21
    Director, OWCP v. Newport News Shipbuilding &
        Dry Dock Co., 514 U.S. 122 (1995)  . . . .  21
    Dugan v. Rank, 372 U.S. 609 (1963)  . . . .  21
    FEA v. Algonquin SNG, Inc., 426 U.S. 548
        (1976)  . . . .  42, 44
    FEC v. NRA Political Victory Fund, 513 U.S. 88
        (1994)  . . . .  28

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V

Cases-Continued:                  Page

    FPC v. Hope Natural Gas Co., 320 U.S. 591
        (1944)  . . . .  42,43
    Field v. Clark, 143 U.S. 649 (1892)  . . . .  41, 42, 46,
                                                                        47, 48, 49
    Gladstone Realtors v. Village of Bellwood,
        441 U.S. 91 (1979)  . . . .  18
    Goodyear Atomic Corp. v. Miller, 486 U.S. 174
        (1988)  . . . .  50
    Hafer v. Melo, 502 U.S. 21 (1991)  . . . .  21
    Heckler v. Chancy, 470 U.S. 821 (1985)  . . . .  49
    Henderson v. United States, 116 S. Ct. 1638
        (1996) . . . .  49
    Hunt v. Washington State Apple Advertising
        Comm'n, 432 U.S. 333 (1977)  . . . .  24
    INS v. Chadha, 462 U.S. 919 (1983)  . . . .  passim
    Intermountain Rate Cases, 234 U.S. 476 (1914)  . . . .  47
    J.W. Hampton, Jr., & Co. v. United States,
        276 U.S. 394 (1928)  . . . .  25,42
    Karcher v. May, 484 U.S. 72 (1987)  . . . .  22,29
    Kentucky v. Graham, 473 U.S. 159 (1985)  . . . .  21
    La Abra Silver Mining Co. v. United States,
        175 U.S. 423 (1899)  . . . .  35
    Laird v. Tatum, 408 U.S. 1 (1972)  . . . .  19
    Landgraf v. USI Film Prods., 511 U.S. 244
        (1994)  . . . .  31
    Lichter v. United States, 334 U.S. 742 (1948)  . . . .  42,43
    Lincoln  v. Vigil, 508 U.S. 182 (1993)  . . . .  3, 38, 43
    Loving v. United States, 116 S. Ct. 1737 (1996)  . . . .  41, 42
    Lujan v. Defenders of Wildlife, 504 U.S. 555
        (1992)  . . . .  19, 23, 30
    Marsh v. Chambers, 463 U.S. 783 (1983)  . . . .  39
    McGrain v. Daugherty, 273 U.S. 135 (1927)  . . . .  27
    Metropolitan Washington Airports Auth. v. Citi-
        zens for the Abatement of Aircrat Noise, Inc.,
        501 U.S. 252 (1991)  . . . .  25, 32

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VI

Cases-Continued:                             Page

    Miles v. Apez Marine Corp., 498 U.S. 19 (1990)  . . . .  50
    Mistretta v. United States, 488 U.S. 361 (1989)  . . . .  38,
                                                                                  41,42,45
    Moore v. U.S. House of Representatives, 733 F.2d
        946(D.C. Cir. 1984), cert. denied, 469 U.S. 1106
        (1985)  . . . .  24, 29
    Motor Vehicle Mfrs. Ass'n v. State Farm Mut.
        Auto. Ins. Co., 463 U.S. 29 (1983)  . . . .  45
    Muskrat v. United States, 219 U.S. 346 (1911)  . . . .  33
    NBC v. United States, 319 U.S. 190 (1943)  . . . .  42,43
    National Treasury Employees Union v. United
        States, 101 F.3d 1423 (D.C. Cir. 1996)  . . . .  12
    New York Central Securities Corp. v. United States,
        287 U.S. 12 (1932)  . . . .  42,43
    OPM v. Richmond, 496 U.S. 414 (1990)  . . . .  43
    Ornelas  v. United States, 116 S. Ct. 1657 (1996)  . . . .  26
    Powell v. McCormack, 395 U.S. 486 (1969)  . . . .  22
    Reno v. Catholic Social Servs., Inc., 509 U.S. 43
        (1993)  . . . .  30
    SEC v. United States Realty & Improvement Co.,
        310 U.S. 434 (1940)  . . . .  21
    Santobello v. New York, 404 U.S. 257 (1971)  . . . .  49
    Schlesinger v. Reservists Comm. to Stop the War,
        418 U.S. 208 (1974)  . . . .  23, 24
    Sibbach v. Wilson & Co., 312 U.S. 1(1941)  . . . .  49
    Sierra Club v. Morton, 405 U.S. 727 (1972)  . . . .  19
    Simon v. Eastern Kentucky Welfare Rights Org.,
        426 U.S. 26 (1976)  . . . .  18, 32
    Skinner v. Mid-America Pipeline Co., 490 U.S. 212
        (1989)  . . . .  42
    Synar v. United States, 626 F. Supp. 1374 (D.D.C.),
        aff'd sub nom. Bowsher v. Synar, 478 U.S. 714
        (1986)  . . . .  42,49
    The Pocket Veto Case, 279 U.S. 655 (1929)  . . . .  34, 38, 40

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VII

Cases-Continued:              Page

    Touby v. United States, 500 U.S. 160 (1991)  . . . .  41,
                                                                                 42, 47
    Train v. City of New York, 420 U.S. 35 (1975)  . . . .  7,
                                                                                    19, 20
    United States  v. Ballin, 144 U.S. 1 (1892)  . . . .  27
    United States  v. Lovett, 328 U.S. 303 (1946)  . . . .  26
    United States v. Munoz-Flores, 495 U.S. 385
        (1990)  . . . .  24
    United States v. Richardson, 418 U.S. 166 (1974)  . .  23
    United States v. Will, 449 U.S. 200 (1980)  . . . .  35
    United States Nat'1 Bank of Oregon v. Independent
        Ins. Agents of America, Inc., 508 U.S. 439 (1993)  . .  33
    Valley Forge  Christian College v. Americans United
        for Separation of Church & State, Inc., 454 U.S.
        464 (1982)  . . . .  18, 19
    Whitmore v. Arkansas, 495 U.S. 149 (1990)  . . . .  13,
                                                                                  18,30
    Yakus v. United States, 321 U.S. 414 (1944)  . . . .  42, 43
    Young v. United States ex rel. Vuitton et Fils S.A.,
        481 U.S. 787 (1987)  . . . .  25,26
    Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
        579 (1952)  . . . .  38

Constitution and statutes:
    
    U.S. Const.:
        Art. I  . . . .  16, 19, 33, 40, 41, 45, 46, 47
              1  . . . .  41
              5  . . . .  29
              7:     
                Cl. 2 (Presentment Clause)  . . . .  passim, 1a
                Cl. 3 (Presentment Clause)  . . . .  33
               8,Cl. 1 (Spending Clause)  . . . .  38
               9,Cl. 7  . . . .  43
         Art. II  . . . .  15, 20, 25, 40, 41, 45, 48
               3  . . . .  25
         Art. III  . . . .  14, 18, 19, 20
      Act of Sept. 11, 1789, ch. 13, 1-2, 1 Stat. 67-68  . . . .  39

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VIII

Statutes-Continued:                           Page

    Act of Sept. 29, 1789, ch. 23, 1, 1 Stat. 95  . . . .  2, 3, 39
    Act of Mar. 26, 1790, ch. 4, 1, 1 Stat. 104  . . . .  2
    Act of Feb. 11, 1791, ch. 6, 1, 1 Stat. 190  . . . .  2
    Act of Mar. 3, 1809, ch. 28, 1,2 Stat. 535-536  . . . .  4
    Act of May 31, 1830, ch. 719, 2,4 Stat. 425  . . . .  48
    Act of Mar. 6, 1866, ch. 12, 2, 14 Stat. 4  . . . .  49
    Act of July 12, 1870 (Antideficiency Act), ch. 251,
         7, 16 Stat. 251  . . . .  4
    Act of Oct. 1, 1890 (Tariff Act), ch. 1244, 3, 26 Stat.
       612  . . . .  46
    Act of Mar. 3, 1905, ch. 1484, 4, 33 Stat. 1257-1258  ..  4
    Act of Feb. 27, 1906, ch. 510, 3, 34 Stat. 48-49  . . . .  4
    Act of June 30, 1932, ch. 314, 401-408,47 Stat.
       413-415  . . . .  5
    Act of Mar. 3, 1933, ch. 212, 47 Stat. 1489:
         16:
          47 Stat. 1517-1519  . . . .  5
          47 Stat. 1519  . . . .  5
    Act of Mar. 4, 1933, ch. 281, 4, 47 Stat. 1602  . . . .  5
    Act of Sept. 29, 1987, Pub. L. No. 100-119, 206(a),
       101 Stat. 785-786  . . . .  7
    Balanced Budget and Emergency Deficit Control Act
        of 1985 (Gramm-Rudman-Hollings Act), Pub. L. No.
        99-177, Tit. II, 99 Stat. 1038 (codified at 2 U.S.C.
        900 et seq.)  . . . .  10, 22
               250(b), 2 U.S.C. 900(h)  . . . .  10
               251, 2 U.S.C. 901  . . . .  10
               251(a)(l), 2 U.S.C. 901(a)(l)  . . . .  10
               251A(a), 2 U.S.C. 901a(a)  . . . .  10
               252, 2 U.S.C. 902  . . . .  10
               252 (b), 2 U.S.C. 902(b)  . . . .  10
               254 (g), 2 U.S.C 904(g)  . . . .  10
               254 (h),2 U.S.C. 904(h)  . . . .  10
               256(1), 2 U.S.C. 906(1)  . . . .  10
               257, 2 U.S.C. 907  . . . .  9
    Budget Enforcement Act of 1990, Pub. L. No. 101-508,
       Tit. XIII, 104 Stat. 1388-573  . . . .  10

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IX

Statutes-Continued:                         Page

    Controlled Substances Act, 21 U.S.C. 801 et seq  . . . .  48 
    Cuban Liberty and Democratic Solidarity
       (LIBERTAD) Act of 1996, Pub. L. No.
       104 -114, 306(c), 110 Stat. 821-822 (to be
       codified at 2 U.S.C. 6085(c))  . . . .  47 
    Federal  Water Pollution Control Act, Tit. II,
      33 U.S.C. 1281 et seq  . . . .  7 
    Federal Water Pollution Control Act Amendments of
      1972, Pub. L. No. 92-500, 2, 86 Stat. 833  . . . .  7 
    General Appropriation Act, 1951, ch. 896, 64 Stat. 595:
          1211:
           64 Stat. 765-766  . . . .  5 
           64 Stat. 766  . . . .  5 
          1214, 64 Stat. 768  . . . .  5 
    Illegal Immigration Reform and Immigrant Respon-
      sibility Act of 1996, Pub. L. No. 104 -208, Div. C,
         303(b)(2), 110 Stat. 3009-586  . . . .  36 
    Impoundment Control Act of 1974, Pub. L. No. 93-344,
       Tit. X, 88 Stat. 332 (codified as amended at 2 U.S.C.
       681 et seq.)  . . . .  7 
               1002, 88 Stat. 332 (31 U.S.C. 665 (1976)
                  (repealed))  . . . .  8 
               1011(1), 2 U.S.C. 682(1)  . . . .  7 
               1011(3), 2 U.S.C. 682(3)  . . . .  7 
               1012, 2 U.S.C. 683 (1982)  . . . .  7 
               1013, 2 U.S.C. 684 (1982)  . . . .  7 
               1021(a), 2 U.S.C. 691(a)  . . . .  8, 35, 44
               1021 (a)(A), 2 U.S.C. 691 (a)(A)  . . . .  11, 44
               1021 (a)(B), 2 U.S.C. 691 (a)(B)  . . . .  10
               1021(b), 2 U.S.C. 691(b)  . . . .  45
               1021(b)(1), U.S.C. 691 (b)(1)  . . . .  11
               1021(c), U.S.C. 691(c)  . . . .  11
               1022(b), 2 U.S.C. 691a(b)  . . . .  11, 45
               1022(c)(1), 2 U.S.C. 691a(c)(1)  . . . .  10
               1023(a), 2 U.S.C. 691b(a)  . . . .  11
               1023(b), 2 U.S.C. 691b(b)  . . . .  10
               1024, 2 U.S.C. 691c  . . . .  10
               1024(a), 2 U.S.C. 691c(a)  . . . .  10

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X

Statutes-Continued:                       Page

    1024(a)(1)(B), 2 U.S.C. 691c (a)(1)(B)  . . . .  10 
    1024(a)(2)(B), 2 U.S.C. 691c (a)(2)(B)  . . . .  10 
    1024(b), 2 U.S.C. 691c (b)  . . . .  10 
    1025, 2 U.S.C. 691d  . . . .  11 
    1026(4)(A), 2 U.S.C. 691e (4)(A)  . . . .  9 
    1026(4)(A)-(C), 2 U.S.C. 691e (4)(A)-(C)  . . . .  48 
    1026(4)(B), 2 U.S.C 691e (4)(B)  . . . .  9 
    1026(4)(C), 2 U.S.C. 691e (4)(C)  . . . .  9 
    1026(5), 2 U.S.C. 691e (5)  . . . .  9 
    1026(6), 2 U.S.C. 691e (6)  . . . .  11, 35 
    1026(7)(A), 2 U.S.C. 691e (7)(A)  . . . .  8 
    1026(7)(A)(ii), 2 U.S.C. 691e (7)(A)(ii)  . . . .  8 
    1026(8), 2 U.S.C. 691e (8)  . . . .  9, 45 
    1026(9)(A), 2 U.S.C. 691e (9)(A)  . . . .  9 
    1027(a), 2 U.S.C. 691f (a)  . . . .  9 
    1027(b), 2 U.S.C. 691f (b)  . . . .  9 
    1027(c), 2 U.S.C. 691f (c)  . . . .  9 
Line Item Veto Act, Pub. L. No. 104-130, 110 Stat.
    1200 (to be codified at 2 U.S.C. 691 et seq.)  . . . .  2, 8 
           2, 110 Stat. 1200-1211 (2 U.S.C. 691-691f)  . . . .  8  
           3(a)(1), 110 Stat. 1211 (2 U.S.C. 692(a)(1))  . . . .  13, 14
           3(b), 110 Stat. 1211 (2 U.S.C. 692(b))  . . . .  1 
           3(c), 110 Stat 1211 (2 U.S.C. 692(c))  . . . .  14 
           5, 110 Stat. 1212 (2 U.S.C. 691 note)  . . . .  8, 36 
Revenue and Expenditure Control Act of 1968,
    Pub. L. No. 90-364, 82 Stat. 251:
           202(a), 82 Stat. 271-272  . . . .  6
           202(b), 82 Stat. 272  . . . .  6 
           203(a), 82 Stat. 272  . . . .  6 
           203(b), 82 Stat. 272  . . . .  6 
Second Supplemental Appropriations Act, 1969,
    Pub. L. No. 91-47, 401, 83 Stat. 82  . . . .  6
Second Supplemental Appropriations Act, 1970,
    Pub. L. No. 91-305, 84 Stat. 376:
          401, 84 Stat. 405-406  . . . .  6 
          501, 84 Stat. 406-407  . . . .  6
Securities Exchange Act of 1934, 15 U.S.C. 78l(h)  . . . .  47 
Shipping Act of 1984, 46 U.S.C. App. 1708(e)  . . . .  36 

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XI

Statutes-Continued:                                   Page

    2 U.S.C. 288b(b)  . . . .  27
    5 U.S.C. 5303(b)(1)  . . . .  47
    5 U.S.C. 5304a(a)  . . . .  47
    10 U.S.C. 7309(b)  . . . .  47
    28 U.S.C. 2072(b)  . . . .  49
   47 U.S.C. 227(b)(2)  . . . .  48

Miscellaneous:

    Ralph  S. Abascal  & John R. Kramer:
       Presidential Impoundment Part I:  Historical
          Genesis and Constitutional Framework, 62
          Geo. L.J. 1549 (1974)  . . . .  2, 4, 5
       Presidential Impoundment Part II:  Judicial and
          Legislative Responses, 63 Geo. L.J. 149 (1974)  . . . .  6
    89 Cong. Rec. 10,362 (1943)  . . . .  3
    Correspondence of the  Justices, reprinted in 3 The
      Correspondence and Public Papers of John Jay
      (H. Johnston ed. 1891)  . . . .  33
    Louis Fisher, Presidential Spending Discretion and
      Congressional Controls, 37 Law & Contemp. Probs.
      135 (1972)  . . . .  4, 5-6
    H.R. Conf. Rep. No. 491, 104th Cong., 2d Sess.
      (1996)  . . . .  8, 9, 10, 11, 35, 44
    H.R. Rep. No. 1797, 81st Cong., 2d Sess. (1950)  . . . .  3
    Senate Comm. on the Budget, 104th Cong., 2d Sess.,
        The Congressional Budget Process:  An Explana-
        tion (Comm. Print 1996)  . . . .  37
    Nile Stanton, History and Practice of Executive
       Impoundment of Appropriated Funds, 53 Neb.
       L. Rev. 1 (1974)  . . . .  6
    9 Weekly Comp. Pres. Doc. 110 (1973)  . . . .  6

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In the Supreme Court of the United States

      OCTOBER TERM, 1996

        No. 96-1671

FRANKLIN D. RAINES, ET AL., APPELLANTS

          v.

ROBERT C. BYRD, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT  COURT
FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE APPELLANTS

OPINION BELOW

    The opinion of the district court (J.S. App. 1a-29a) is to
be reported at 956 F. Supp. 25.

       JURISDICTION

    The order of the district court was entered on April 10,
1997.  A notice of appeal (J.S. App. 30a-31a) was filed on
April 11, 1997.  This Court noted probable jurisdiction on
April 23, 1997.  J.A. 108.  The jurisdiction of this Court
rests on Pub. L. No. 104-130, 3(b), 110 Stat. 1211 (J.S. App.
57a) (to be codified at 2 U.S.C. 692(b)).

   CONSTITUTIONAL AND STATUTORY
      PROVISIONS INVOLVED

    1.  The Presentment Clause of the United States
Constitution, Art. I,  7, Cl. 2, is reproduced as an appendix
to this brief.

(1)

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          2

    2.  The Line Item Veto Act, Pub. L. No. 104-130, 110
Stat. 1200 (to be codified at 2 U.S.C. 691 et seq.), is repro-
duced at J.S. App. 32a-59a.

        STATEMENT

    1.  The Line Item Veto Act gives the President condi-
tional authority to cancel certain spending and revenue
items within five days after a bill containing such items
has been enacted into law.  The Act is the latest in a series
of statutes, dating from 1789 to the present, in which Con-
gress has given the Executive Branch discretion over the
expenditure of appropriated funds.
    a.  The first statute appropriating funds for the general
operation of the federal government was passed by the
First Congress and signed by President Washington in
September 1789.  See Act of Sept. 29, 1789, ch. 23, 1, 1
Stat. 95.  The statute appropriated "sum[s] not exceeding"
specified amounts for the expenses the War Depart-
ment, government salaries, military pensions, and out-
standing debt.  Ibid.  The First Congress subsequently
enacted two additional general appropriations statutes,
which likewise appropriated  "sum[s] not exceeding"  speci-
fied amounts for the govement's operations.  Act of Mar.
26, 1790, ch. 4, 1,1 Stat. 104; Act of Feb. 11, 1791, ch. 6, 1,
1 Stat. 190.  See Ralph S. Abascal & John R. Kramer,
Presidential Impoundment Part I:  Historical Genesis
and Constitutional Framework, 62 Geo. L.J. 1549, 1579
(1974).
    The appropriations acts of the First Congress  gave the
President two distinct kinds of discretion over appropri-
iated funds, both of which have become familiar elements of
the federal budget process.  First, by appropriating sums
"not exceeding" specified amounts, Congress gave the
President discretion not to obligate the full amount of the
appropriations.  It has since become a commonplace of

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3

federal appropriations law that an appropriation "not
exceeding" a specified sum leaves the Executive Branch
with discretion to spend less than the full amount of the
appropriation, absent some other statutory restriction on
that discretion.  See, e.g., H.R. Rep. No. 1797, 81st Cong.,
2d Sess. 9 (1950) ("Appropriation of a given amount for a
particular activity constitutes only a ceiling upon the
amount which should be expended for that activity."); 89
Cong. Rec. 10,362 (1943) (Sen. Truman) ("When the Con-
gress appropriates funds * * * none of us hold[s] that we
give a mandate to expend the funds appropriated.").
    Second, the appropriations acts of the First Congress
provided Executive Branch departments with what are
now known as "lump-sum" appropriations-that is, appro-
priations for the operation of a department that do not
specify the particular items for which the funds are to be
used.  For example, the first appropriations act appropri-
ated "a sum not exceeding one hundred and thirty-seven
thousand dollars for defraying the expenses of the depart-
ment of war."  Act of Sept. 29, 1789, ch. 23, 1, 1 Stat. 95.
The Act did not prescribe any particular expenditures to
be made by the President from that appropriation.  As a
result, the President was given discretion not only with
respect to the amount of the appropriated sum that would
be used, but also with respect to its allocation within the
Department of War.  This Court recently reaffirmed that,
"where Congress merely appropriates lump-sum amounts
without statutorily restricting what can be done with
those funds, a clear inference arises that [Congress]
does not intend to impose legally binding restrictions" on
the allocation of the funds among authorized purposes.
Lincoln v. Vigil, 508 U.S. 182, 192 (1993) (internal quota-
tion marks omitted).
    Within a few years, appropriations laws began to make
increased use of earmarked, rather than lump-sum, appro-

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4

priations.  See Abascal & Kramer, 62 Geo. L.J. at 1579-
1580.  However, Congress, soon recognized the continued
need to provide the Executive Branch with discretion to
move appropriations within departments.  In 1809, Con-
gress vested the President with recess authority "to di-
rect * * * that a portion of the monies appropriated for
a particular branch of expenditure in [a] department, be
applied to another branch of expenditure in the same de-
partment."  Act of Mar. 3, 1809, ch. 28, 1, 2 Stat. 535-536.
That authority remained in effect. with various modifica-
tions, for nearly 60 years.  See Louis Fisher, Presidential
Spending Discretion and Congressional Controls, 37 Law
& Contemp. Probs. 135, 148 & nn.71-72 (1972).  In addition,
Congress continued to resort to lump-sum appropriations,
rather than earmarked appropriations, when Executive
Branch discretion and flexibility were viewed as desirable,
particularly during periods of economic and military cri-
sis.  Id. at 136 (citing major lump-sum appropriations dur-
ing Civil War, First World War, and Great Depression).
    Early in the Twentieth Century, Congress began to
enact laws that gave the Executive Branch standing
authority to control spending on a government-wide basis.
In 1905 and 1906, Congress amended the Antideficiency
Act (Act of July 12, 1870, ch. 251, 7, 16 Stat. 251) to give
agencies authority to apportion appropriations over the
course of a fiscal year, while authorizing them to modify
or waive apportionments in exigent circumstances.  Act of
Mar. 3,1905, ch. 1484, 4, 33 Stat, 1257-1258; Act of Feb. 27,
1906, ch. 510, 3, 34 Stat. 48-49.
   In 1933, in response to the fiscal pressures created by
the Great Depression, Congress granted the President
broad discretion to refrain from spending appropriated
funds.  Congress authorized the President to "reduce [gov-
ernmental] expenditures" by abolishing, consolidating, or
transferring Executive Branch agencies and functions.

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5

Act of Mar. 3, 1933, ch. 212, 16, 47 Stat. 1517-1519
(amending Act of June 30, 1932, ch. 314,  401-408, 47 Stat.
413-415)).  All appropriations "unexpended by reason of"
the President's exercise of his reorganization authority
were to be "impounded and returned to the Treasury."  Id.
at 1519.  Congress also conferred discretionary impound-
merit authority in the Department of  War's 1933 appropria-
tions act.  Congress authorized the President to impound
"[a]ny sums appropriated in this Act for or on account of
the Military Establishment, or any portion of such sums,
that may not be needed for the purposes for which
appropriated."  Act of Mar. 4, 1933, ch. 281, 4, 47 Stat.
1602.
    In 1950, Congress amended the Antideficiency Act to
provide the Executive Branch with general authority to
establish "reserves"-that is, to withhold appropriated
funds-in order "to provide for contingencies, or to effect
savings whenever savings are made possible by or through
changes in requirements, greater efficiency of operations,
or other [post-appropriation] developments."  General Ap-
propriation Act, 1951, ch. 896, 51211, 64 Stat. 765-766
(1950).  Congress directed the Executive Branch to "rec-
ommend the rescission" of any reserves "not * * * re-
quired to carry out the purposes of the appropriation
concerned."  Id. at 766.  Congress also authorized the
Executive Branch to reduce spending by "at least" 550
million below appropriated levels; apart from specifying
that the reductions not "impair[] national defense," Con-
gress did not prescribe what spending to reduce or how
large particular  reductions  should be.  Id. 1214, 64 Stat.
768.
    During the Vietnam War, Congress gave the President
still greater discretionary authority over expenditures of
appropriated funds.  See Abascal & Kramer, 62 Geo. L.J. at
1569 & n.90; Fisher, 37 Law & Contemp. Probs. at 160-

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6

161.  The Revenue and Expenditure Control Act of 1968
imposed strict ceilings on budget outlays and new
obligation authority for fiscal year 1969.  Pub. L. No. 90-
364, 202(a), 203(a), 82 Stat. 271-272.  To meet those ceil-
ings, Congress authorized the President to reserve as
much as 6 billion in outlays and 10 billion in new obliga-
tion authority, with no restrictions on the President's
discretion regarding what spending to reduce.  Id.
202(b), 203(b), 82 Stat. 272.  Congress provided the
President with similar authority in 1969 and 1970.  See
Second Supplemental Appropriations Act, 1969, Pub. L.
No. 91-47, 401, 83 Stat. 82; Second Supplemental Ap-
propriations Act, 1970, Pub. L. No. 91-305, 401, 501, 84
Stat. 405-407.
    b.  In each of the foregoing instances, the Executive
Branch was authorized by statute to withhold appropriated
sums.  During the early 1970s, however, President Nixon
asserted a general authority to impound appropriated
funds whether or not Congress intended for the impounded
appropriations to be discretionary.  See, e.g., 9 Weekly
Comp. Pres. Doc. 110 (1973).  The Nixon Administration's
effort to impound appropriations for a wide range of federal
programs led to a series of lawsuits challenging individual
impoundments.  See, e.g., City of New Haven v. United
States. 634 F.Supp. 1449, 1454-1455 & n.6 (D.D.C. 1986)
(summarizing cases), aff'd, 809 F.2d 900 (D.C. Cir. 1987);
Ralph S. Abscal & John R. Kramer, Presidential
Impoundment Part II:  Judicial and Legislative Re-
sponses, 63 Geo. L.J. 149, 151-168 (1974);  Nile Stanton,
History and Practice of Executive Impoundment of
Appropriated Funds, 53 Neb. L. Rev. 1, 14-30 (1974).
    The courts resolved disputes over Executive Branch
impoundments by construing the applicable appropriations
statutes to determine whether Congress intended for the
President to have discretion over expenditure of the
   
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7

impounded funds.  For example, in Train v. City of New
York, 420 U.S. 35 (1975), this Court held that the Pres-
ident lacked authority to impound funds appropriated for
grants under Title II of the Federal Water Pollution
Control Act, as added by Pub. L. No. 92-500, 2, 86 Stat.
833.  The Court reviewed the text and history of the Act
to determine whether "Congress intended to confer any
discretion on the Executive to withhold funds from this
program."  420 U.S. at 44.  The Court and the parties
presupposed that Congress could, if it chose, vest the
Executive Branch with such discretion; the only issue was
whether it had chosen to do so.
    In response to the impoundment controversy, Congress
enacted the Impoundment Control Act of 1974 (ICA), Pub.
L. No. 93-344, Tit. X, 88 Stat. 332 (codified as amended at
2 U.S.C. 681 et seq.).  The ICA distinguished between two
forms of impoundment deferrals (delays in spending
during the course of a fiscal year, or other period of avail-
ability) and rescissions (permanent withholdings of appro-
priated funds).  See 2 U.S.C. 682(1), 682(3).  The Act
authorized the President to carry out deferrals, subject to
a one-House legislative veto.  2 U.S.C. 684 (1982).  1.  The
Act prohibited the President from engaging in unilateral
rescissions.  Instead, it authorized the President to pro-
pose rescissions to Congress under a mechanism for
expedited legislative consideration.  2 U.S.C. 683 (1982).  In
addition, the Act amended the Antideficiency Act to
narrow the circumstances in which the Executive Branch

___________________(footnotes)

    1  This Court's decision in INS v. Chadha, 462 U.S. 919 (1983),
made clear that the ICA's legislative veto provision was unconsti-
tutional.  See City of New Haven v. United States, 809 F.2d 900, 905
(D.C. Cir. 1987) (government conceded unconstitutionality of legislative
veto provision).  Congress subsequently amended the Act to eliminate
that, provision.  Act of Sept. 29, 1987, Pub. L. No. 100-119, 206(a), 101
Stat. 785-786.

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8

could place appropriated funds in reserves.  See ICA
1002,88 Stat. 332.
    2.  The Line Item Veto Act was enacted in April 1996 as
an amendment to the ICA.  See Pub. L. No. 104-130, 110
Stat. 1200 (J.S. App. 32a-59a) (to be codified at 2 U.S.C. 691
et seq.).  The Act expires on January 1, 2005. Pub. L. No.
104-130, 5, 110 Stat. 1212  (J.S. App. 59a).  It authorizes the
President to "cancel in whole" specific spending and rev-
enue items contained in any bill or joint resolution "that
has been signed into law pursuant to Article I, section 7, of
the Constitution of the United States."  ICA 1021(a)
(2 U.S.C. 691(a));  J.S. App. 32a.  2
    The President's cancellation authority extends to three
categories of budget items:  (1) "dollar amount[s] of dis-
cretionary budget authority," (2) "item[s] of new direct
spending," and (3) "limited tax benefit[s]."  ICA 1021(a)
(2 U.S.C. 691(a)); J.S. App. 32a-33a.  A "dollar amount of
discretionary budget authority" is "the entire dollar
amount of budget authority" that is specified in an appro-
priations law or is otherwise specified, represented, or re-
quired to be spent.  ICA 1026(7)(A) ((2 U.S.C. 691e(7)(A));
J.S. App. 50a-51a.  3.  An "item of new direct spending" is a

___________________(footnotes)
                      
    2  Section 2 of the Line Item Veto Act added a new Part C to the
ICA.  The citations in the text to "ICA" are to Sections contained in
the new Part C.
    3  A "dollar amount of discretionary budget authority" includes
any amount "represented separately in any table, chart, or explanatory
text included in the statement of managers or the governing committee
report accompanying [an appropriations] law."  ICA 1026(7)(A)(ii) (2
U.S.C. 691e(7)(A)(ii)); J.S. App. 50a.  That provision "is not intended to
give increased legal weight or authority to documented that accompany
the law that is enacted."  H.R. Conf. Rep. No. 491, 104th Cong., 2d Sess.
32 (1996).  Rather, Congress "is choosing to use those documents as a
means of allowing the President increased discretion to reduce dollar
amounts of discretionary budget authority provided in an appropriation
law."  Ibid.

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9

specific provision that will result in "an increase in budget
authority or outlays" for entitlements, food stamps, or
other programs funded other than through annual ap-
propriations.  ICA 1026(8) (2 U.S.C. 691e(8)); J.S. App.
51a.  4.  A "limited tax benefit" is a revenue-losing provision
that gives a tax reduction to 100 or fewer beneficiaries,
or a provision that provides "temporary or permanent
transitional relief" to ten or fewer beneficiaries.  ICA
1026(9)(A) (2 U.S.C. 691e(9)(A)); J.S. App. 52a-54a.  5
    Cancellation of a dollar amount of discretionary bud-
get authority operates "to rescind" that authority.  ICA
1026(4)(A) (2 U.S.C. 691e(4)(A)); J.S. App. 48a.  Cancel-
lation of an item of new direct spending or a limited tax
benefit renders the cancelled spending or revenue pro-
vision without "legal force or effect."  ICA 1026(4)(B) and
(C)(2 U.S.C. 691e(4)(B) and (C)); J.S. App. 48a-49a.  The
President may not use funds covered by a cancellation for

___________________(footnotes)

    4  The  Act defines the term "direct spending"  to  include "(A)
budget authority provided by law (other than an appropriation law);
(B) entitlement  authority; and (C) the food stamp program."  ICA
1026(5) (2) U.S.C. 691e(5));  J.S. App. 49a.  An "item of new direct
spending" is a provision of law estimated to result in direct spending in
excess of the "baseline" levels calculated pursuant to Section 257 of the
Balanced Budget and Emergency Deficit Control Act of 1985, 2 U.S.C.
907.  See ICA 1026(8) (2 U.S.C. 691e(8)); J.S. App. 51a; see also H.R.
Conf. Rep. No. 491, supra, at 36.  An increase in outlays for such
entitlements resulting from automatic cost-of-living or comparable
adjustments under existing law is in the "baseline" and therefore is not
an item of "new" direct spending under the Line Item Veto Act.
    5  The Act provides for the Joint Committee on Taxation to
identify limited tax benefits in future revenue bills.  ICA 1027(a) (2
U.S.C. 691f(a));  J.S. App. 54a.  If Congress incorporates the Joint
Committee's statement into a revenue law as finally enacted, the
President's authority to cancel limited tax benefits is confined to the
items, if any, identified in that law.  ICA 1027(b) and (c) (2) U.S.C.
691f(b) and (c)); J.S. App. 55a-56a.

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10

any purpose other than deficit reduction.  ICA 1023(b),
1024 (2 U.S.C. 691b(b), 691c); J.S. App. 36a-39a.  Deficit
reduction is accomplished through a statutory "lockbox"
procedure, under which the Director of the Office of Man-
agement and Budget (OMB) must calculate the deficit
reduction from the cancellation and "lock in" the savings
by adjusting the calculations submitted to Congress under
the Gramm-Rudman-Hollings Act.  ICA 1024(a) and (b)
(2 U.S.C. 691c(a) and (b)); J.S. App. 37a-38a.  6
    If the President wishes to exercise his cancellation
authority, he must submit a special message to Congress
within five calendar days (excluding Sundays) after the
enactment of the law containing the cancelled item.  ICA
1021(a)(B), 1022(c)(1) (2 U.S.C. 691(a)(B), 691a(c)(l)); J.S.

___________________(footnotes)

    6  The "lockbox" operates through the pre-established procedures
in the Balanced Budget and Emergency Deficit Control Act, of 1985, as
amended (particularly by the Budget Enforcement Act of 1990 (BEA)),
which is codified at 2 U.S.C. 900 et seq.  The BEA imposed limits
("caps") on the annual amount of discretionary appropriations, 2 U.S.C.
901, and also imposed what is commonly referred to as a "pay-as-you-
go" ("paygo") requirement for legislation affecting direct spending and
receipts, 2 U.S.C. 902.  A failure by Congress to stay within the dis-
cretionary "caps" and the "paygo" limitation results in a "sequester,"
or cancellation, of budgetary resources in excess of the caps or limita-
tion.  2 U.S.C. 900(b), 901(a)(l), 901a(a), 902(b), 906(l).  OMB prepares
the reports on which the sequester orders are based.  2 U.S.C. 904(g)
and (h).  Under the Line Item Veto Act's "lockbox" provision, the
President's cancellation of a dollar amount of discretionary budget
authority requires OMB to reduce the discretionary caps by the same
amount.  ICA 1024(a)(l)(B) (2 U.S.C. 691c(a)(1)(B)); J.S. App. 37a.
When the President cancels an item of direct spending or a limited tax
benefit, OMB does not include the savings from that cancellation in its
"paygo" calculations.  ICA 1024(a)(2)(B) (2 U.S.C. 691c(a)(2)(B)); J.S.
App. 38a.  See H.R. Conf. Rep. No. 491, supra, at 23-24.  The "lockbox"
provision thereby operates to permanently reduce the amounts of
budgetary resources which Congress can thereafter appropriate in any
one fiscal year without triggering a sequester.

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             11

App. 33a, 35a-36a.  The President may cancel an item only
if he determines that doing so will "(i) reduce the Federal
budget deficit; (ii) not impair any essential Government
functions; and (iii) not harm the national interest."  ICA
1021(a)(A) (2 U.S.C. 691(a)(A)); J.S. App. 33a.  The Pres-
ident must also consider "the legislative history, con-
struction, and purposes of the law" containing the items,
as well as "any specific sources of information referenced
in such law."  ICA 1021(b)(1) and (2) (2 U.S.C. 691(b)(1)
and(2)); J.S. App. 33a.  In addition, the President's special
message to Congress must identify, inter alia, the rea-
sons for the cancellation; the President's estimate of the
"fiscal, economic, and budgetary effect" of the cancella-
tion; his estimate of "the * * * effect of the cancella-
tion upon the objects, purposes and programs for which
the canceled authority was provided";  and the geographic
distribution of the cancelled spending.  ICA 1022(b)
(2 U.S.C. 691a(b));  J.S.  App.  34a-35a.
    A cancellation takes effect upon Congress's receipt of
the President's special message.  ICA 1023(a) (2 U.S.C.
691b(a)); J.S. App. 36a.  The Act provides for highly
expedited legislative consideration of "disapproval bills."
ICA 1025, 1026(6) (2 U.S.C. 691d, 691e(6));  J.S. App. 39a-
47a, 49a-50a.  If a disapproval bill is enacted into law, all
disapproved cancellations become null and void and the
cancelled items become effective.  ICA 1023(a) (2 U.S.C.
691b(a)); J.S. App. 36a.  A disapproval bill is not subject to
the President's cancellation authority under the Act.  ICA
1021(c) (2 U.S.C. 691(c)); J.S. App. 34a.
    Although the Line Item Veto Act establishes general
rules for the execution of appropriations laws, nothing in
the Act purports to prevent Congress from exempting any
future spending or revenue bill from the operation of the
Act by including a provision to that effect in the bill itself.

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12

    3.  The Act  took effect on January 1, 1997.  See J.S. App.
2a, 58a-59a.  Appellees-six  Members of Congress, one of
whom has since left office-filed the present suit the next
day.  7.  They named as  defendants  Franklin D. Raines, the
Director of OMB, and Robert E. Rubin, the Secretary of
the Treasury.  J.A. 9-10 see J.S. App. 2a.  8.  Appellees al-
leged that "the Act confers on the President powers of
veto, revision, and repeal of federal law that violate Article
I of the Constitution."  J.A. 10.  They further alleged that
the Act "directly and concretely injures" them by "al-
tering the legal and practical effect " of their votes, by
"divesting" them of "their constitutional role in the re-
peal of legislation," and by "altering the constitutional
balance of powers between the Legislative and Executive
Branches."  J.A. 12.  The complaint did not allege, however,
that the President had exercised his cancellation author-
ity under the Act, and he has not yet done so.
    The government moved to dismiss for lack of jurisdic-
tion, and the parties thereafter filed cross-motions for
summary judgment.  The Senate and the House of Repre-
sentatives jointly appeared as amici curiae to support the
constitutionality of the Act.  See J.S. App. 2a-3a.  On April
10, 1997, the district court issued a memorandum order

___________________(footnotes)

    7  A similar constitutional challenge was brought by a federal
labor union immediately after the Act was signed into law in April
1996.  That action was dismissed on standing and ripeness grounds.
See National Treasury Employees Union v. United States, 101 F.3d
1423 (D.C. Cir. 1996).
    8  Appellees alleged that "defendant Raines is responsible for
executing the President's cancellations of budgetary and spending
authority under the Act," and that "defendant Rubin is responsible for
executing the President's cancellations of 'limited tax benefits' under
the Act and for executing and enforcing the tax laws of the United
States."  J.A. 11.

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13

denying the motion to dismiss and granting summary
judgment to appellees.  J.S. App. 1a-29a.
    The district court first held that appellees had standing
to bring their suit.  J.S. App. 9a-12a.  The court relied
on prior D.C. Circuit decisions holding that Members of
Congress have "standing to challenge measures that af-
fect their constitutionally prescribed lawmaking powers,"
although it recognized that "the Supreme Court has never
endorsed the Circuit's analysis of standing in such cases."
Id. at 10a-11a.  Applying those circuit precedents, the
district court held that "[appellees'] claim of injury in this
case, namely, that the Act dilutes their Article I voting
power, is likewise of the kind that suffices to confer
standing under Article III."  Id. at 11a.  By virtue of the
Act, the court explained, "[appellees'] votes mean some-
thing different from what they meant before, for good or
ill, and [appellees] who perceive it as the latter are thus
'injured' in a constitutional sense whenever an appropri-
ations bill comes up for a vote, whatever the President
ultimately does with it."  Id. at 11a-12a.
    The district court also held that appellees' claims were
ripe for adjudication, despite the fact that the President
had not yet exercised any cancellation authority under
the Act.  J.S. App. 12a-15a.  The court explained that,
"[b]ecause [appellees] now find themselves in a position of
unanticipated and unwelcome subservience to the Pres-
ident before and after they vote on appropriations bills,
Article III is satisfied."  Id. at 14a.  The court noted
as well that "the budgetary process is already underway,"
and that "appropriations votes are inevitable, and 'certain-
ly impending.' "  Ibid.  (quoting Whitmore v. Arkansas,
495 U.S. 149,158 (1990)).  9

___________________(footnotes)

    9  Section 3(a)(1) of the Line Item Veto Act expressly authorizes
suits by Members of Congress challenging the constitutionality of any

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14

    On the merits, the district court held that the Line Item
Veto Act violates the Presentment Clause (U.S. Const.
Art. I, 7, Cl. 2) by delegating to the President the legis-
lative power to repeal Acts of Congress.  J.S. App. 16a-29a.
The court acknowledged that any appropriations law
whose provisions are subject to the President's cancella-
tion power under the Act "will have been 'approved' in
accordance with the Presentment Clause."  Id. at 20a.  The
court concluded, however, that, "following approval [of an
appropriations bill], a cancellation by the President is a
legislative repeal that itself must comply with Present-
ment Clause procedures."  Ibid.  The court reasoned:

       Where the President signs a bill but then purports
    to cancel parts of it, he exceeds his constitutional
    authority and prevents both Houses of Congress from
    participating in the exercise of lawmaking authority.
    The President's cancellation of an item unilaterally
    effects a repeal of statutory law such that the bill he
    signed is not the law that will govern the Nation.
    That is precisely what the Presentment Clause was
    designed to prevent.

Id. at 21a-22a.
    The district court recognized that the President may
be vested with discretionary authority to impound, or
to decline to spend, funds previously appropriated by
Congress.  J.S. App. 22a-23a.  However, the court stated
that cancellation under the Act "is simply not the same

___________________(footnotes)                           
                                                
provision of the Act. J.S. App. 56a (2 U.S.C. 692(a)(1)).  Section 3(c) of
the Act directs both the district court and this Court to expedite dis-
position of such suits "to the greatest possible extent."  Id. at 57a (2
U.S.C. 692(c)).  The district court construed those provisions as render-
ing inapplicable any prudential constraints on the court's exercise of
jurisdiction, leaving only the requirements of Article III.  See id. at 9a
n.5, 14a n.8, 16a.

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15

thing as impoundment," but instead "is equivalent to
repeal" of the underlying appropriations law.  Id. at 24a-
25a.  The court sought to distinguish the Act from stat-
utes previously upheld by this Court under the non-
delegation doctrine on the ground that, in its view, the Act
"hands off to the President authority over fundamental
legislative choices" and "spares Congress the burden of
making those vexing choices of which programs to pre-
serve and which to cut."  Id. at 27a.

     SUMMARY OF ARGUMENT

    I.  Because the implementation of the Line Item Veto
Act will cause appellees no judicially cognizable injury,
they lack standing to sue in this case.  This Court has
consistently held that a generalized interest in the proper
application of the Constitution and laws is an insuffi-
cient basis for invoking the power of the federal courts.
Because Members of Congress exercise their official
powers on behalf of the people, the President's cancellation
of budgetary items pursuant to the Line Item Veto Act
would cause them no personal injury that is not shared by
the public generally.
    Nor do appellees have standing to sue on behalf of the
government.  Because Article II of the Constitution en-
trusts litigation on behalf of the United States to the
Executive rather than the Legislative Branch, neither
Congress nor its Members may initiate litigation designed
to vindicate the general public and governmental interest
in the proper administration of federal law.  Even if the
Line Item Veto Act could be said to impair a distinct in-
stitutional interest of Congress itself, moreover, a suit
brought by an individual Member cannot properly be
characterized as one filed on behalf of Congress, at least
in the absence of some affirmative congressional action
authorizing the Member to sue on its behalf.  That is

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16

particularly true where (as here) the individual Members
have attacked the constitutionality of a federal statute
rather than seeking to vindicate the legal and policy judg-
ments of Congress as a whole.
    Even if Members of Congress possessed a judicially
cognizable interest in the proper administration of federal
law, appellees' suit could not go forward at the present
time.  Until the President has actually exercised his
cancellation authority with respect to a particular ap-
propriations bill, the potential of the Act to frustrate
appellees' own legislative preferences is too speculative to
constitute injury in fact.  And while the existing un-
certainty concerning the Act's constitutional status may
affect the manner in which legislative negotiations are
conducted, the bare desire to eliminate legal uncertainty
is an insufficient basis for invoking the jurisdiction of a
federal court.
    II.  The Line Item Veto Act does not violate Article I.
Its title notwithstanding, the Act does not authorize the
President to sign into law some provisions of an appropria-
tions bill while "returning" other provisions to Congress.
The President remains subject to the constitutional ob-
ligation to approve or disapprove, in its entirety, an
appropriations bill presented to him by Congress.  His
cancellation authority under the Act comes into exist-
ence only after an appropriations bill has been passed
by both Houses of Congress and approved, in toto, by the
President.
    The effect of the Line Item Veto Act is to vest the Pres-
ident with authority to determine, in accordance with
statutorily prescribed standards and procedures, whether
items of spending that Congress has appropriated will in
fact be spent.  That grant of authority is fully consis-
tent with historical practice.  From the beginning of the
Republic, Congress has frequently conferred upon the

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17

President substantial discretion over the expenditure of
appropriated funds.  The First Congress, for example,
chose to fund the general operations of the federal govern-
ment through lump-sum appropriations acts that did not
require that the full amount of the appropriation be spent.
The settled historical practices of Congress and the Ex-
ecutive Branch regarding spending discretion strongly
support the political Branches' shared judgment that the
Line Item Veto Act is constitutional.
    This Court has repeatedly recognized that Congress
may vest the Executive Branch with considerable discre-
tion in the administration of federal laws.  The Line Item
Veto Act places constitutionally sufficient limits on the
President's exercise of discretion over federal spending.
The President must cancel items "in whole" rather than
in part and must devote any cancelled amounts to deficit
reduction.  The Act also provides significant guidance to
the President in his decision whether particular items
should be cancelled.
    Finally, the Line Item Veto Act does not vest the
President with the power to repeal any portion of an
appropriations law.  This Court has repeatedly upheld
federal statutes authorizing the President to suspend
their provisions, grant exemptions from their require-
ments, or otherwise modify their operation.  Like the
statutes previously upheld, the Line Item Veto Act per-
missibly vests the President with executive rather than
legislative power.  The fact that the President's cancella-
tion of a particular item is irrevocable unless overturned
by Congress does not alter the constitutional analysis.
Indeed, that feature of the Act limits rather than expands
the scope of the President's authority.  The fact that the
President's cancellation authority is conferred by the
Line Item Veto Act rather than by individual appropria-
tions laws also lacks constitutional significance.

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18

        ARGUMENT

    I.  APPELLEES LACK STANDING TO CHAL-
        LENGE THE CONSTITUTIONALITY OF THE
        LINE ITEM VETO ACT

    Article III of the Constitution confines the jurisdiction
of the federal courts to actual "Cases" and "Controver-
sies," and "the doctrine of standing serves to identify
those disputes which are appropriately resolved through
the judicial process."  Whitmore v. Arkansas, 495 U.S.
149, 155 (1990).

            To satisfy the "case" or "controversy" requirement
        of Article III, which is the "irreducible constitutional
        minimum" of standing, a plaintiff must, generally
        speaking, demonstrate that he has suffered "injury in
        fact," that the injury is "fairly traceable" to the ac-
        tions of the defendant, and that the injury will likely
        be redressed by a favorable decision.

Bennett v. Spear, No. 95-813 (Mar. 19, 1997), slip op. 6.
"This Court has repeatedly held that an asserted right to
have the Government act in accordance with law is not suf-
ficient, standing alone, to confer jurisdiction on a federal
court."  Allen v. Wright, 468 U.S. 737, 754 (1984).  Rather,
Article III "requires the party who invokes the court's
authority to 'show that he personally has suffered some
actual or threatened injury as a result of the putatively
illegal conduct of the defendant,' " Valley Forge Christian
College v. Americans United for Separation of Church &
State, Inc., 454 U.S. 464, 472 (1982) (quoting Gladstone,
Realtors  v. Village of  Bellwood, 441 U.S. 91, 99 (1979)), and
that he "stand[s] to profit in some personal interest" by a
judgment in his favor, Allen, 468 U.S. at 766 (quoting
Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S.
26, 39 (1976)).

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19

    "[T]he 'case or controversy' requirement defines with
respect to the Judicial Branch the idea of separation of
powers on which the Federal Government is founded."
Allen, 468 U.S. at 750.  The "require[ment] that the party
seeking review be himself among the injured," Lujan v.
Defenders of Wildlife, 504 U.S. 555, 563 (1992) (quoting
Sierra Club v. Morton, 405 U.S. 727, 735 (1972)), ensures
that the federal courts resolve disputed legal questions
"only in the last resort, and as a necessity in the deter-
mination of real, earnest and vital controversy," Valley
Forge, 454 U.S. at 471 (quoting Chicago & Grand Trunk
Ry. v. Wellman, 143 U.S. 339, 345 (1892)).  Article III's
case-or-controversy requirement thus protects the sepa-
ration of powers by ensuring that the Judicial Branch does
not exercise a general superintendence over the workings
of the federal government.  See Allen, 468 U.S. at 760
(abandonment of standing requirements "would have the
federal courts as virtually continuing monitors of the
wisdom and soundness of Executive action") (quoting
Laird V. Tatum, 408 U.S. 1, 15 (1972)); see also Defenders
of Wildlife, 504 U.S. at 576 (role of federal courts is to
determine "the rights of individuals").
    The legal questions presented by the Line Item Veto
Act-whether the Act violates Article I by enlarging the
President's veto power under the Presentment Clause or
by vesting the President with the power to repeal federal
laws-are assuredly suitable for judicial resolution.  If and
when the President exercises his cancellation authority,
moreover, his action is likely to result in judicially cog-
nizable injury to persons who would otherwise be the
recipients of the cancelled funds or tax benefits.  See,
e.g., Train v. City of New York, 420 U.S. 35, 40 (1975).  10

___________________(footnotes)

    10  Suits by potential recipients of federal funds would not be
brought against the named defendants in this case, however, but

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20

Persons whose monetary interests are adversely affected
by the Act's implementation will possess the prototypical
"concrete stake" in the outcome of litigation, and will
therefore satisfy the requirements of Article III.
    Appellees, however, allege a very different sort of
injury.  The complaint in this case alleges that

    [t]he Act directly and concretely injures [appellees], in
    their official capacities, by (a) altering the legal and
    practical effect of all votes they may cast on bills
    containing such separately vetoable items, (b) divest-
    ing [appellees] of their constitutional role in the repeal
    of legislation, and (c) altering the constitutional bal-
    ance of powers between the Legislative and Executive
    Branches, both with respect to measures containing
    separately vetoable items and with respect to other
    matters coming before Congress.

J.A. 12.  Those asserted injuries do not satisfy the case-or-
controversy requirement.

    A.  Members Of Congress Will Suffer No Judicially
          Cognizable Injury As A Result Of The Implemen-
          tation Of The Line Item Veto Act

    As we explain above, a private litigant can invoke the
federal judicial power only by demonstrating a concrete
personal stake in the outcome of the dispute.  The United
States and its agencies, by contrast, routinely initiate liti-
gation (including criminal prosecutions), or appeal adverse
rulings, in order to vindicate a more generalized govern-
mental and public interest in the effective administration
of federal law and to fulfill the President's responsibility
under Article II to "take Care that the Laws be faithfully
executed."  This Court has explained:

___________________(footnotes)           

against, the agency or agency official charged with the expenditure of
the monies in question.  See Train, 420 U.S. at 40.

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          21

    Every government, entrusted, by the very terms of its
    being, with powers and duties to be exercised and dis-
    charged for the general welfare, has a right to apply
    to its own courts for any proper assistance in the
    exercise of the one and the discharge of the other, and
    it is no sufficient answer to its appeal to one of those
    courts that it has no pecuniary interest in the matter.
    The obligations which it is under to promote the in-
    terest of all, and to prevent the wrongdoing of one
    resulting in injury to the general welfare, is often of
    itself sufficient to give it a standing in court.

In re Debs, 158 U.S. 564, 584 (1895).  See also, e.g., id, at
584-586; Coleman v. Miller, 307 U.S. 433, 441-442 (1939);
SEC v. United States Realty & Improvement Co., 310
U.S. 434,459-460 (1940); INS  v. Chadha, 462 U.S. 919, 931
(1983); Director, OWCP v. Newport News Shipbuilding &
Dry Dock Co., 514 U.S. 122, 132-133 (1995); cf. Diamond v.
Charles, 476 U.S. 54, 62 (1986) ("[A] State has standing to
defend the constitutionality of its statute.").  Even where
the named federal party is an individual government
official, such a suit (or appeal) is properly regarded as one
brought on behalf of the government, not as an effort to
redress an injury done to the official in his individual
capacity.  11

___________________(footnotes)

    11  In the context of suits brought against individual government
officials, this Court has stressed the need for "careful adherence to the
distinction between personal- and official-capacity suits."  Kentucky v.
Graham, 473 U.S. 159, 165 (1985).  "Personal-capacity suits seek to im-
pose personal liability upon a government official for actions he takes
under color of  * * * law."  Ibid.  By contrast, official-capacity suits
are in substance suits against the government, and seek relief (e.g., the
payment of public funds or the alteration of agency policy) against the
government rather than the individual employee.  See id. at 166; Hafer
v. Meto, 502 U.S. 21, 25-26 (1991); Dugan v. Rank, 372 U.S. 609, 620
(1963).

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22

    Thus, federal courts are authorized to adjudicate private
actions brought by plaintiffs who establish a concrete per-
sonal interest in the outcome of the dispute, as well as
suits brought by governmental entities to vindicate the
public interest in the enforcement of the laws.  Appellees,
however, lack standing to sue under either theory.

        1.  This Court has

    consistently held that a plaintiff raising only a genera-
    lly available grievance about government-claiming
    only harm to his and every citizen's interest in proper
    application of the Constitution and laws, and seeking
    relief that no more directly and tangibly benefits him
    than it does the public at large-does not state an
    Article III case or controversy.

___________________(footnotes)
    

    A similar distinction may be drawn between personal- and official-
capacity suits (or appeals) brought by governmental actors.  A federal
officer or employee, whether or not authorized to conduct litigation on
behalf of the United States, has standing to sue in federal court to
vindicate such personal interests as an entitlement to federal pay or
benefits.  See, e.g., Bowsher  v. Synar, 478 U.S. 714, 721 (1986) (mem-
bers of federal employees' union had standing to challenge the consti-
tutionality of Gramm-Rudman-Hollings Act, based on showing that
they would "sustain injury by not receiving a scheduled increase in
benefits"); cf. Powell v. McCormack, 395 U.S. 486, 495-500 (1969) (suit
concerning House of Representatives' refusal to seat elected Member
was not moot where plaintiff retained claim for back salary).  Where
the alleged injury is the impairment of governmental functions,
however, an official may invoke the jurisdiction of the federal courts
only insofar as he is properly authorized to sue or appeal on behalf of
the government.  See Bender v. Williamsport Area Sch. Dist., 475 U.S.
534, 543-545 & n.6 (1986) (individual school board member lacked stand-
ing to appeal where board decided against appeal of adverse judg-
ment); cf. Karcher v. May, 484 U.S. 72, 77-78 (1987) (individuals who
intervened in their capacities as presiding officers of New Jersey
Legislature could not appeal in their other individual and professional
capacities after losing their positions as presiding officers).

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23

Defenders of Wildlife, 504 U.S. at 573-574.  While rec-
ognizing that, "[i]n some fashion, every provision of the
Constitution was meant to serve the interests of all," this
Court has emphatically rejected "[t]he proposition that all
constitutional provisions are enforceable by any citizen
simply because citizens are the ultimate beneficiaries of
those provisions."  Schlesinger v. Reservists Comm. to
Stop the War, 418 U.S. 208, 226-227(1974).
    A private plaintiff could establish the existence of a case
or controversy by demonstrating that the cancellation of
a particular budget item (or limited tax benefit) would
adversely affect his own economic interests.  See pages 19-
20, supra.  A member of the public could not, however,
obtain judicial review of an exercise of the President's
cancellation authority by alleging that the cancellation
had negated the vote of his own Senator or Representative;
that it had subverted the will of Congress; or that, it had
improperly shifted the balance of power between the
Legislative and Executive Branches.  Any such allegation
would present a "generalized grievance" plainly insuscep-
tible of judicial resolution.  United States v. Richardson,
418 U.S. 166, 171 (1974).
    Appellees' claim to standing thus rests on the premise
that a Member of Congress has a judicially cognizable per-
sonal interest in the proper performance of his legislative
duties, in the execution of an Act of Congress, or in the
maintenance of the constitutionally prescribed balance of
power between the President and Congress, even though
his constituents possess no such interest.  That premise
is contrary to first principles of representative democ-
racy.  As then-judge Scalia explained,

    no officers of the United States, of whatever Branch,
    exercise their governmental powers as personal pre-
    rogatives in which they have a judicially cognizable

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24

    private interest.  They wield those powers not as pri-
    vate citizens but only through the public office which
    they hold.  Whatever the realities of private ambition
    and vainglory may be, in contemplation of law their
    personal interest in full and unfettered exercise of
    their authority is no greater than that of all the citi-
    zens for whose benefit (and not for the personal benefit
    of the officeholder) the authority has been conferred.

Moore v. U.S. House of Representatives, 733 F.2d 946,959
(D.C. Cir. 1984) (Scalia, J., concurring in result), cert.
denied, 469 U.S. 1106 (1985).  Because Members of Con-
gress exercise their powers as representatives and
servants of the people-the "ultimate beneficiaries"
(Reservists, 418 U.S. at 226-227) of the constitutional
provisions on which appellees rely-the President's
cancellation of budgetary items pursuant to the Line Item
Veto Act would cause them no injury that is not shared by
the public generally.  See also United States v. Munoz-
Flores, 495 U.S. 385, 394-395 (1990) (fundamental purpose
of separation of powers is "to protect individual rights");
Bowsher v. Synar, 478 U.S. 714, 721 (1986) ("The declared
purpose of separating and dividing the powers of
government * * * was to diffuse power the better to
secure liberty.")  (brackets and internal quotation marks
omitted).  12.  Cf Hunt v. Washington State Apple Adver-
tising Comm'n , 432 U.S. 333, 343 (1977) (association's

___________________(footnotes)
                                        
    12  This analysis applies equally to suits brought by individual
officials in the other Branches asserting impairment of their own
governmental prerogatives.  No one would suppose, for example, that
a federal district judge would have standing to challenge statutory
restrictions on the jurisdiction of the federal courts.  The judge would
also lack standing to petition for certiorari from a court of appeals
decision reversing one of his rulings.  Nor could the head of a Cabinet
department assert standing to challenge an allegedly unlawful pres-
idential directive regarding the exercise of his official duties.

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25

standing to sue on behalf of its members requires, inter
alia, that "its members would otherwise have standing to
sue in their own right").
    2.  As we explain above (see pages 20-21 & note 11,
supra), suits to vindicate generalized public interests may
be brought by authorized federal officials acting "in their
official capacities"-i.e., on behalf of the government.  For
two reasons, however, appellees lack standing to sue on
that basis.
    a.  Article II of the Constitution entrusts litigation on
behalf of the United States to the Executive rather than
the Legislative Branch.  The "discretionary power to seek
judicial relief" is "authority that cannot possibly be re-
garded as merely in aid of the legislative function of Con-
gress.  A lawsuit is the ultimate remedy for a breach of the
law, and it is to the President, and not to the Congress,
that the Constitution entrusts the responsibility to 'take
Care that the Laws be faithfully executed.' "  Buckley v.
Valeo, 424 U.S. 1, 138 (1976) (per curiam) (quoting U.S.
Const. Art. II, 3).  Because Congress "may not 'in-
vest itself or its Members with either executive power
or judicial power,' "  Metropolitan Washington Airports
Auth. v. Citizens for the Abatement of Aircraft Noise,
Inc., 501 U.S. 252, 274 (1991) (MWAA) (quoting J.W.
Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406
(1928)), neither Congress nor its Members may initiate
litigation designed to vindicate the general public and
governmental interest in the proper administration of
federal law.  Cf. Young v. United States ex rel. Vuitton et
Fils S.A., 481 U.S. 787, 800 n.10 (1987) (exercise of prose-
cutorial power by Congress would "eradicate fundamental
separation-of-powers boundaries'').  13

___________________(footnotes)

    13  The Court in Chadha stated that "Congress is the proper party
to defend the validity of a [federal] statute when an agency of govern-

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26

    Separation-of-powers principles thus foreclose any con-
tention that Congress suffers a judicially cognizable im-
pairment of its lawmaking function if an Executive Branch
official fails to give an enacted law its proper legal effect.
Indeed, if Congress retained a judicially cognizable inter-
est in the administration of laws that it had enacted, that
interest would be equally threatened by private violations
as by Executive Branch noncompliance.  If Congress could
define noncompliance with federal law as an injury to itself
or its Members, it could usurp the President's constitu-
tional responsibility for the execution of  the laws.  14

___________________(footnotes)                               

ment, as a defendant charged with enforcing the statute, agrees with
plaintiffs that the statute is * * * unconstitutional."  462 U.S. at 940;
see also Arizonans Official English v. Arizona, 117 S. Ct. 1055, 1068
n.20 (1997); cf. United States v. Lovett, 328 U.S. 303, 304 (1946) (Con-
gress appeared as amicus curiae after Solicitor General filed certiorari
petition on behalf of the United States).  In Chadha however, the Im-
migration and Naturalization Service (INS)-while adhering through-
out the litigation to the position that the challenged legislative veto
provision was unconstitutional-had appealed from the court of appeals'
decision invalidating that provision, and this Court held that the INS
was a proper appellant.  462 U.S. at 929-931.  In stating that Congress
could appropriately appear in such circumstances to defend the consti-
tutionality of the legislative veto provision, compare, e.g., Ornelas v.
United States, 116 S. Ct. 1657,1661 n.4 (1996) (Court appointed private
counsel to appear as amicus curiae in support of the court of appeals'
judgment where neither the United States nor the private petitioner
espoused the court of appeals' legal theory); Cheng Fan Kwok v. INS,
392 U.S. 206, 210 n.9 (1968) same); Lovett, 328 U.S. at 304, the Court
did not suggest that Congress would have had authority to appeal
from the court of appeals' decision if the responsible Executive Branch
officials had declined to do so.  Cf. Young, 481 U.S. at 817 (Scalia, J.,
concurring in judgment) ("Even complete failure by the Executive to
prosecute law violators, or by the courts to convict them, has never
been thought to authorize congressional prosecution and trial.").
    14  Different considerations may be presented if Congress (or one
House thereof) seeks judicial redress in aid of its legislative func-

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27

    b.  Even if the Line Item Veto Act could be said to
impair a distinct institutional interest of Congress itself,
separate and apart from the generalized public interest in
Executive Branch compliance with the Constitution and
laws, appellees would lack standing to sue.  A suit brought
by an individual Member cannot properly be characterized
as one filed on behalf of Congress, at least in the absence
of some affirmative congressional action authorizing the
Member to sue on its behalf.  The federal legislative
"[p]ower is not vested in any one individual, but in the
aggregate of the members who compose the body, and
[Congress's] action is not the action of any separate
member or number of members, but the action of the body
as a whole."  United States v. Ballin, 144 U.S. 1,7 (1892).
Cf. Bender v. Williamsport  Area  Sch. Dist., 475 U.S. 534,

___________________(footnotes)

tions.  See,  e.g., 2 U.S.C. 288b(b) (Senate Legal Counsel "shall bring a
civil action to enforce a subpoena of the Senate or a committee or sub-
committee of the Senate * * * when directed to do so by the adoption
of a resolution by the Senate"); cf. McGrain v. Daugherty, 273 U.S.
135, 174 (1927) ("[T]he power of inquiry-with process to enforce it-is
an essential and appropriate auxiliary to the legislative function.");
Buckley, 424 U.S. at 137-138.
    The cancellation authority conferred on the President by the Line
Item Veto Act, however, effects no interference with Congress's per-
formance of its lawmaking functions.  The Act desk only with the
manner in which appropriations bills will be implemented after they
have been enacted into law.  That would be true, moreover, even if
appellees and the district court were correct in characterizing the
President's exercise of cancellation authority under the Act as the
power to "repeal" portions of appropriations laws.  A purported pres-
idential repeal of an enacted law would prevent the law from being
faithfully executed, but it would not prevent Congress from performing
its own responsibilities.  Because Congress has no constitutional role in
the execution of enacted laws, see Bowsher, 478 U.S. at 733 ("once Con-
gress makes its choice in enacting legislation, its participation ends"),
it has no judicially cognizable interest in the Line Item Veto Act's
constitutional status.  Cf. Buckley, 424 U.S. at 139-140.

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28

544 (1986) (appellant's status as member of school board
"does not permit him to 'step into the shoes of the Board'
and invoke its right to appeal"; "[g]enerally speaking,
members of collegial bodies do not have standing to perfect
an appeal the body itself has declined to take").
    An Executive Branch official could not sue to vindicate
the institutional interests of the agency at which he
worked absent some showing of authority to litigate on its
behalf.  Cf. FEC v. NRA Political Victory Fund, 513 U.S.
88,92-99(1994).  Nor could such an official evade the limi-
tations on his governmental litigating authority by suing
in his own name and recasting the alleged impairment of
agency functions as a personal injury to himself.  The
same principles apply here.
    Appellees' lack of standing is particularly clear in the
instant case.  Although appellees allege that the Line Item
Veto Act "alter[s] the constitutional balance of powers be-
tween the Legislative and Executive Branches," J.A. 12,
they do not seek to vindicate the legal or policy judgments
of Congress as a whole.  To the contrary, their suit in-
volves a constitutional challenge to a law that was enacted
by Congress and that has been defended in the district
court and this Court by the Senate and House of Repre-
sentatives as amici curiae.  Under those circumstances,
appellees cannot plausibly claim to have standing to
represent the interests of the Legislative Branch.  15

___________________(footnotes)
 
    15  Coleman v. Miller, supra, is not to the contrary.  In Coleman,
21 (out of 40) state senators brought a mandamus action in the Kansas
Supreme Court.  307 U.S. at 436.  The gravamen of their suit was that
the State's Lieutenant Governor, as presiding officer of the Senate, had
improperly cast a tie-breaking vote in support of ratification of a pro-
posed amendment to the United States Constitution.  Id. at 435-436.
The state supreme court entertained the suit on the merits, concluded
that the Lieutenant Governor was authorized to cast the deciding vote,
and held on that basis that the proposed amendment had been properly

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29

___________________(footnotes)

ratified by the Kansas Legislature.  Id. at 437.  The plaintiffs then
sought review in this Court, which held that "at least the twenty sena-
tors whose votes, if their contention were sustained, would have been
sufficient to defeat the resolution ratifying the proposed constitutional
amendment, have an interest in the controversy which, treated by the
state court as a basis for entertaining and deciding the federal ques-
tions, is sufficient to give the Court jurisdiction to review that deci-
sion."  Id. at 446.  Four Members of the Court would have held that the
plaintiffs lacked standing.  See id. at 460 (opinion of Frankfurter, J.).
    Coleman is distinguishable from the instant case in three significant
respects.  First, the Court did not address the standing of federal legis-
lators, nor did it hold that the plaintiffs would have had standing to
bring their suit in federal court; it simply held that it had jurisdiction
to review the state supreme court's decision where the plaintiffs' "inter-
est in maintaining the effectiveness of their votes" had been "treated
by the state court as a basis for entertaining and deciding the federal
questions."  307 U.S. at 438, 446.  Because the separation-of-powers
principles applicable to the federal government are not binding upon
the States, see, e.g., Karcher, 484 U.S. at 82 (New Jersey Legislature
was properly authorized under state law to represent the State's inter-
est in litigation), Coleman is not controlling here.  See Moore, 733 F.2d
at 959 n.1 (Scalia, J., concurring in result).  Second, the votes of the
Coleman plaintiffs had legal significance as a bloc, since those votes
"would have been sufficient to defeat the resolution" under the plain-
tiffs' view of the Constitution.  307 U.S. at 446.  The Coleman plaintiffs
therefore might plausibly have been regarded as acting on behalf of the
legislature, and their entitlement to do so was a matter of state rather
than federal law.  Finally, Coleman involved an asserted impropriety
in the process by which votes were counted within the state legislature,
rather than a defect in the administration of a duly enacted law.  In the
federal sphere, the separation of powers among the Branches and the
autonomy of the Senate and House of Representatives on internal
matters such as voting ( see U.S. Const. Art. I, 5) preclude recognition
of a comparable judicially cognizable interest on the part of individual
Members of Congress.

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30

B.  Because The President Has Not Yet Exercised His
      Cancellation Authority Under The Line Item Veto
      Act, Appellees Can Identify No Actual Or Imminent
      Injury

    Even if Members of Congress possessed a judicially
cognizable interest in the proper administration of federal
law, appellees' suit could not go forward.  This Court has
emphasized that "[a]llegations of possible future injury do
not satisfy the requirements of Art. III.  A threatened
injury must be certainly impending to constitute injury
in fact."  Whitmore, 495 U.S. at 158 (internal quotation
marks omitted); accord, e.g., Defenders of Wildlife, 504
U.S. at 564 & n.2.  16.  Appellees acknowledge (Resp. to J.S. 4)
that the President has not yet exercised the cancellation
authority conferred by the Line Item Veto Act.  Rather,
the gravamen of their suit is that the President will, in
the future, employ that authority so as to frustrate the
proper implementation of appropriations bills enacted by
Congress.  That claim is too speculative to provide a basis
for federal jurisdiction.        
    The Line Item Veto Act, taken alone, has no legal effect
on appellees or on any private actor.  Nor does the Act
restrict Congress's authority in fashioning future appro-
priations measures.  Congress retains the power to
provide that the Act shall not apply to a particular
appropriations law.  Congress may also provide that the
President's cancellation authority does not apply to an

___________________(footnotes)             
                                                  
    16  The requirement that a plaintiff's injury be "actual or immi
nent, not 'conjectural' or 'hypothetical,' "  Whitmore, 495 U.S. at 155
(quoting City of Los Angeles v. Lyons,  461 U.S. 95, 102 (1983)), is
closely related to the requirement that the claim be "ripe" for
adjudication.  Cf Reno v. Catholic Social Servs., Inc., 509 U.S. 43, 57
n.18 (1993) (noting that "ripeness doctrine is drawn both from Article
III limitations on judicial power and born prudential reasons for
refusing to exercise jurisdiction").

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31

individual line item in an appropriations law that is
otherwise subject to the Act.  Conversely, Congress may
vest the President with broader discretion in the ad-
ministration of a particular appropriations bill-e.g., by
authorizing him to cancel budgetary items in part rather
than in whole, or by permitting him to cancel items after
the expiration of the initial five-day period.  The Act
simply establishes a "default rule," cf. Landgraf v. USI
Film Prods., 511 U.S. 244, 272 (1994): it defines the extent
of the President's discretion in the administration of
appropriations measures in the absence of an express
contrary provision contained in a particular law.
    Thus, even the legal effect of the Line Item Veto Act
cannot accurately be assessed until a particular appro-
priations bill becomes a law.  Only then can the scope of
the President's discretion in administering that law be
compared to the discretion that he would possess if the
Line Item Veto Act were not on the books.  The Act's
practical consequences, moreover, cannot be determined
until the President has exercised his cancellation author-
ity.  At the present time, it remains unclear when the
President will invoke the cancellation authority contained
in the Line Item Veto Act; what items of spending, or
limited tax benefits, he will choose to cancel; and whether
those items will be made effective again through a dis-
approval bill.  It is, in particular, unclear when or whether
legislative measures supported by appellees themselves
will be cancelled pursuant to the Act's procedures.  Thus,
even if a Member of Congress could be said to suffer a
judicially cognizable injury through the frustration of his
own legislative preferences, no such injury is either pres-
ent or imminent in the instant case.
    In explaining its contrary conclusion, the district court
stated that, "[b]ecause [appellees] now find themselves in a
position of unanticipated and unwelcome subservience to

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          32

the President before and after they vote on appropriations
bills, Article III is satisfied."  J.S. App. 14a; see also id. at
12a ("Under the Act the dynamic of lawmaking is fun-
damentally altered.  Compromises and trade-offs by in-
dividual lawmakers must take into account the President's
item-by-item cancellation power looming over the end pro-
duct.").  Appellees are free, however, to vote and to parti-
cipate in legislative negotiations on the basis of their own
stated conviction that the Act is unconstitutional and that
any exercise of the President's cancellation authority will
therefore be a legal nullity.  No alteration in "the dynamic
of lawmaking" is compelled by the Line Item Veto Act.
Rather, any such change will result from the fact that
other participants in the legislative process do not share
appellees' view that the Act is constitutionally deficient.
See Eastern Kentucky Welfare Rights Org., 426 U.S. at 42
("case or controversy" requirement is not satisfied where
plaintiff's injury "results from the independent action of
some third party not before the court''). 17
    Legislative deliberations frequently take place against
a backdrop of substantial disagreement or uncertainty

___________________(footnotes)

    17  The district court's reliance (see J.S. App. 13a) on MWAA
was misplaced.  Plaintiffs in MWAA asserted that the power of the
MWAA's Board of Review to veto actions of the MWAA's Board of Di-
rectors was unconstitutional because the Board of Review was com-
posed of Members of Congress, in violation of separation-of-powers
principles.  See 501 U.S. at 259, 262.  Plaintiffs filed suit, however,
after the Airports Authority had adopted a "master plan" for the con-
struction of a new terminal at National Airport.  See id. at 261-262.
Plaintiffs "alleged that the master plan allows increased air traffic at
National [Airport] and a consequent increase in accident risks, noise,
and pollution."  Id. at 264.  Although the Court held that the plain-
tiffs were not required to await an actual exercise of the Board of
Review's veto power before filing suit, see id. at 265 n.13, it did not
suggest that the existence of the veto power was sufficient, standing
alone, to constitute an injury in fact.

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33

regarding the existing state of the law.  Neither the Pres-
ident nor Congress (or its individual Members) could
unilaterally obtain an advisory opinion from this Court or
a lower federal court regarding the constitutionality y of
the Line Item Veto Act, even if the request for such an
opinion was motivated by a desire to eliminate legal
uncertainty about the manner in which they should
exercise their respective powers and responsibilities.  See
Correspondence of the Justices, reprinted in 3 The
Correspondence and Public Papers of John Jay 486-489
(H. Johnston ed. 1891); Muskrat v. United States, 219 U.S.
346, 354 (1911); United States Nat'1 Bank of Oregon v.
Independent Ins. Agents of America, Inc., 508 U.S. 439,
446 (1993).  That issue is no more suitable for judicial
resolution in its present posture merely because several
individual Members of Congress have written their re-
quest in the form of a complaint and named as defendants
two officers of the other political Branch who happen to
hold a contrary view of the constitutional question.

    II. THE LINE ITEM VETO ACT DOES NOT VIO-
         LATE ARTICLE I OF THE CONSTITUTION
  
         A.  The Act Does Not Conflict With The Con-
               stitutional Requirement That The President
               Approve Or Disapprove In Toto A Bill Present-
               ed To Him By Congress

    The Presentment Clause requires that "[e]very Bill"
passed by Congress "shall, before it become a Law, be
presented to the President."  Art. I, 7, Cl. 2.  18.  When a bill

___________________(footnotes)

    18  Article I actually has two Presentment Clauses: Article I, Sec-
tion 7, Clause 2, which applies to "Bill[s]," and Article I, Section 7,
Clause 3, which applies to all "Order[s], Resolution[s], or Vote[s] to
which the Concurrence of the Senate and House of Representative
may be necessary."  Clause 3 was adopted to prevent evasion of the
presentment requirement "by the simple expedient of calling a pro-
posed law a 'resolution' or 'vote' rather than a 'bill.' "  Chadha, 462 U.S.

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34

is presented to the President, the Presentment Clause
gives him two options: if he "approve[s]" the bill, "he shall
sign it," and if he does not approve the bill, "he shall re-
turn it, with his Objections to that House in which it shall
have originated."  Ibid.  19.  If the President signs the bill, it
becomes a law.  If the President instead returns the bill, it
does not become law unless two-thirds of each House vote
to override the President's veto.  As the district court
correctly recognized, see J.S. App. 5a-6a & n.3, 18a-19a, the
President is required to sign or return, in toto, a bill
presented to him by Congress; he is not empowered to sign
some portions of the bill and return others.
    The Line Item Veto Act is consistent with that require-
ment.  Its title notwithstanding, the Act does not author-
ize the President to sign into law some provisions of an
appropriations bill while "returning" other provisions to
Congress.  20.  When a spending bill is presented to the
President, he must "sign" or "return" it in toto.  By its
terms, the Act applies only to "bill[s] or joint resolution[s]
that ha[ve] been signed into law pursuant to Article I,
section 7, of the Constitution of the United States."  ICA

___________________(footnotes)         

at 947.  For the sake of simplicity, we refer exclusively to Clause 2
in the text, but the discussion applies equally to both Presentment
Clauses.
    19  If the President neither signs the bill nor returns it within ten
days, the bill "shall be a Law, in like Manner as if he had signed it,"
unless Congress has by its adjournment prevented the bill's return, in
which case the bill "shall not be a Law."  Art. I, 7, Cl. 2;  see gener-
ally The Pocket Veto Case, 279 U.S. 655 (1929).
    20  Although the word "veto" is commonly used to describe the
President's power to "return" a disapproved bill  to the House of
Congress in which it originated, see Chadha, 462 U.S. at 925, the word
"veto" does not appear in the Presentment Clause, or anywhere else in
the Constitution.  The presence of the term in the title of the Act has
the same constitutional significance as the absence of the term from the
Presentment Clause-none.

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35

1021(a) (2 U.S.C. 691(a)); J.S. App. 32a.  When the Pres-
ident signs a bill, "[the] bill when so signed becomes
from that moment a law."  La Abra Silver Mining Co. v.
United States, 175 U.S. 423, 454 (1899); United Mates v.
Will, 449 U.S. 200,224-225 & n.29 (1980) (President's sig-
nature marks "the precise time the statute became law").
    Thus, the President's cancellation authority under the
Act comes into existence only after the requirements of
the Presentment Clause have been satisfied.  See H.R.
Conf. Rep. No. 491, 104th Cong., 2d Sess. 20 (1996) ("[T]he
cancellation authority only becomes effective after the
President has exercised the constitutional authority to
enact legislation in its entirety.").  The district court
therefore correctly held that "statutes subject to can-
cellation will have been 'approved' [by the President] in
accordance with the Presentment Clause."  J.S. App. 20a.  21
Because the cancellation authority created by the Act
does not prevent any portion of an appropriations bill from
becoming law, it is fully consistent with the constitutional
requirement that the President sign or return a presented
bill in toto.  22

___________________(footnotes)

    21  A bill returned to Congress can be enacted into law if, but only
if, it is subsequently approved by two-thirds of each House.  U.S. Const.
Art. I, 7, Cl. 2.  A presidential cancellation pursuant to the Line Item
Veto Act, by contrast, can be overturned by new legislation passed
by a simple majority of each House,  see  ICA   1026(6)  (2 U.S.C.
691e(6)); J.S. App. 49a-50a, subject to a possible presidential veto and
subsequent override.  That is the method that Congress is required to
employ whenever it disapproves of the manner in which the Executive
Branch has exercised discretionary authority conferred by statute.
See Chadha, 462 U.S. at 954-955, 958.
    22  The requirement that the President must exercise his cancella-
tion authority, if at all, within five days after the bill has become law
is a proper mechanism by which Congress has limited the authority
otherwise conferred by the Act upon the President to control spending.
A prompt decision is necessary to avoid the potential disruption of

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36

    The cancellation authority vested in the President by
the Line Item Veto Act may be similar, in practical effect,
to the power that he would possess under a hypothetical
statute conferring true item veto (i.e., partial "return")
authority.  23.  That similarity does not, however, cast doubt
upon the Act's constitutional status.  The requirements
imposed by the Presentment Clause-while designed to
protect substantive values, see Chadha, 462 U.S. at 958
n.23 ("The legislative steps outlined in Art. I are not
empty formalities.'')-are procedural in nature.  So long as

___________________(footnotes)


federal spending programs that could arise from belated cancellations.
It is hardly unprecedented for federal laws to require the Executive
Branch to make determinations and exercise discretionary authority
within a strictly limited period of time.  For example, the Shipping
Act of 1984 gives the President the power to suspend certain rate
orders of the Federal Maritime Commission if he determines that
a suspension is required "for reasons of national defense or foreign
policy," but he must act within ten days after the receipt or effective
date of the Commission order.  46 U.S.C, App. 1708(e).  Similarly, the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
authorized the Attorney General temporarily y to employ specified tran-
sitional rules for the detention and release of criminal aliens, but only
if she notified Congress within ten days of the enactment of the Act.
Pub. L. No. 104-208, Div. C,  303(b)(2), 110 Stat. 3009-586.
    23  The president's powers under the Act are markedly less sweep-
ing, however, than those he would possess if the Constitution author-
ized him to "return" some portions of an appropriations bill while
signing  other portions into law.  The Act expires by its terms on
January 1, 2005,  see Pub. L. No. 104-130, 5, 110 Stat. 1212 (J.S. App.
69a), and it is subject to amendment or repeal at any time.  Moreover,
Congress retains the power to exempt particular appropriations bills
(or individual items contained therein) from the coverage of the Act, see
pages 30-31, supra, and thus retains ultimate control of the manner in
which the Act is applied to an individual appropriations law.  The Act
also identifies certain findings that the President must make, and
additional factors that he must consider, before exercising his cancella-
tion authority.  See pages 10-11, supra pages 44-45, infra.

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37

future appropriations laws are enacted in conformance
with those procedural requirements, the Presentment
Clause is satisfied.
    Because the Line Item Veto Act governs the imple-
mentation of appropriations statutes after they have be-
come law, rather than the process by which they are
enacted, the Act presents no genuine Presentment Clause
issue.  Rather, the Act must be scrutinized under the
standards governing statutory grants of discretion to the
Executive Branch in its administration of duly enacted
laws.  The Act operates to make the specified  spending  and
revenue items discretionary, rather than mandatory,
where the President finds that the Act's criteria have
been met.  24.  The Act thus vests the President with
authority to determine, in accordance with statutorily
prescribed standards and procedures, whether items of
spending that Congress has authorized will in fact be
spent.  As we explain below, that grant of authority is fully
consistent both with historical practice and with this
Court's precedents.

___________________(footnotes)

    24  In discussing the effect of the Act on future spending bills, we
use the terms "discretionary" and "mandatory" to distinguish between
spending authority that the Executive Branch has discretion not to
exercise and spending authority that the Executive Branch is legally
obligated to exercise.  Those terms are often used in a different sense
in the federal budget process "discretionary" spending signifies "pro-
grams that are subject to annual funding decisions in the appropria-
tions process," while "mandatory" spending (also known as "direct"
spending) means "all spending that is made pursuant to laws other
than appropriations laws."  Senate Comm. on the Budget, 104th Cong.,
2d Sess.,  The Congressional Budget Process:  An Explanation 5, 6
(Comm. Print 1996).

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38

    B.  The Act Is Consistent With The Historical Under-
          standing Of Congress's Power To Confer Spending
          Discretion On The Executive Branch

    "Long settled and established practice is a considera-
tion of great weight" in the adjudication of constitutional
questions.  The Pocket Veto Case,  279 U.S. 655, 689 (1929);
see also Mistretta  v. United  States,  488  U.S. 361,401 (1989)
("'traditional ways of conducting government * * * give
meaning' to the Constitution") (quoting Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952)
(Frankfurter, J., concurring)).  As we explain above, the
conferral upon the President of substantial  discretion over
the expenditure of appropriated funds has been a recurring
practice of Congress under the Spending Clause from
the beginning of the Republic.  See pages 2-6, supra;
Cincinnati Soap Co. v. United States, 301 U.S. 308, 322
(1937) ("Appropriation and other acts of Congress are
replete with instances of general appropriations of large
amounts, to be allotted and expended as directed by des-
ignated government agencies.").
    Congress has sometimes conferred that discretion in
individual appropriations acts.  At other times Congress
has given the President broad authority to withhold
appropriated funds on a government-wide basis in order to
pursue overarching budgetary goals of Congress's choos-
ing.  See pages 2-6, supra.  When Congress has given the
President discretion over appropriated funds, it often has
chosen not to impose binding restrictions on how that
discretion is to be exercised.  Thus, when Congress has
passed lump-sum appropriations bills, see Lincoln v. Vigil,
508 U.S. 182,192 (1993), or when it has given the President
general authority to reduce government spending below
appropriated levels, see pages 5-6, supra, the President
has been left largely free to exercise his own judgment

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39

regarding which spending programs to reduce and how
much to reduce them.  The degree of authority vested in
the President has varied from time to time, in response
to changing legislative judgments about the need for
Executive Branch discretion.  The extent of the Executive
Branch's spending discretion in any particular instance
has always been regarded, however, both by Congress and
by the courts, as a matter for Congress itself to decide
through the legislative process.
    The practices  of the First Congress regarding
Executive Branch spending discretion are particularly
instructive.  The acts of the First Congress "provide[ ]
'contemporaneous and weighty evidence' of the Consti-
tution's meaning since many of the Members of the First
Congress 'had taken part in framing that instrument.'"
Bowsher v. Synar, 478 U.S. 714, 723-724 (1986) (quoting
Marsh v. Chambers, 463 U.S. 783, 790 (1983)).  As we ex-
plain above (see pages 2-3, supra), the First Congress
chose to fund the general operations of the federal govern-
ment through lump-sum appropriations acts that did not
require the Executive Branch to spend the full amount of
the appropriations.  See, e.g., Act of Sept. 29, 1789, ch. 23,
 1, 1 Stat. 95 (appropriating "a sum not exceeding one
hundred and thirty-seven thousand dollars for defraying
the expenses of the department of war'').  25.  The Members
of the First Congress evidently saw no constitutional

___________________(footnotes)

    25  The lump-sum appropriations passed by the First Congress did
not vest the President with unlimited discretion over the use of the
appropriated sums.  Other statutes, such as those fixing the salaries of
federal officers, required the expenditure of a portion of the appro-
priations.  See, e.g., Act of Sept. 11, 1789, ch. 13, 1-2, 1 Stat. 67-68
(salaries of executive officers).  Nevertheless, Congress left the Pres-
ident free to decide how (and whether) to spend the remainder of the
appropriated funds.

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40

impediment to vesting the Executive Branch with broad
discretion over the disposition of appropriated funds.
    Viewed against this historical background, the Line
Item Veto Act can hardly be characterized as "revolution-
ary."  J.S. App. 25a.  Like its many statutory predecessors,
the Act simply gives the President a measure of discretion
over the expenditure of appropriated funds, discretion that
may be exercised only in accordance with the procedural
and substantive limitations imposed by  Congress.  In sum,
the settled historical practices of Congress and the Ex-
ecutive Branch regarding spending discretion add "great
weight," The Pocket Veto Case, 279 U.S. at 689, to the
political Branches' shared judgment that the Line Item
Veto Act satisfies the requirements of Article I.

    C.  The Act Does Not Delegate Legislative Power To
          The President

    The district court held that the Act violates the
Presentment Clause by vesting the President with legis-
lative power-specifically, the power to repeal laws.  See
J.S. App. 24a-26a.  That holding is incorrect.  When the
President employs the cancellation authority conferred by
the Act, he is not exercising legislative power, but is
carrying out his core Article II function of  "faithfully
execut[ing]" the laws.
    1.  The requirements of the Presentment Clause do not
apply to the President's administration of enacted laws.
As the Court explained in Chadha, "[e]xecutive action
under legislatively delegated authority that might re-
semble 'legislative' action in some respects is not subject
to the approval of both Houses of Congress and the
President for the reason that the Constitution does not so
require."  462 U.S. at 953 n.16.  The lawmaking procedures
required by the Presentiment Clause are "not necessary
as a check on the Executive's administration of the laws

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41

because his administrative activity cannot reach beyond
the limits of the statute that created it-a statute duly
enacted pursuant to Art. I,  1, 7."  Ibid.
    When the President acts, "he presumptively acts in an
executive or administrative capacity as defined in Art. II."
Chadha, 462 U.S. at 951.  The Article II character of the
President's actions does not change when, as here, the
President is exercising discretionary authority in the
implementation of federal laws.  While Article I vests  "[a]ll
legislative Powers" in Congress (Art. I, 1), it "do[es] not
prevent Congress from obtaining the assistance of its
coordinate Branches."  Mistretta, 488 U.S. at 372.  Instead,
Congress is free to "leav[e] a certain degree of discretion
to executive * * * actors" in the execution of federal
laws.  Touby v. United States, 500 U.S. 160, 165 (1991).
Accordingly, this Court has long recognized that "no valid
objection can be made" to "conferring authority or dis-
cretion [on the President] as to * * * execution [of a
federal law], to be exercised under and in pursuance of the
law."  Field v. Clark, 143 U.S. 649, 693-694 (1892) (internal
quotation marks omitted).
    Although Congress may vest the Executive Branch
with considerable discretion in the administration of fed-
eral laws, it may not-either expressly or in practical
effect-delegate to other Branches the "lawmaking func-
tion" vested in it by Article I.  See, e.g., Loving v. United
States, 116 S. Ct. 1737, 1744 (1996)  ("[T]he lawmaking func-
tion belongs to Congress * * * and my not be conveyed
to another branch."); id. at 1752 (Scalia, J., concurring in
part and concurring in the judgment) ("Legislative power
is nondelegable."); Touby, 500 U.S. at 165.  Where Con-
gress is alleged to have impermissible delegated its legis-
lative powers to other officials, "[t]he focus of controversy
* * * has been whether the degree of generality contained
in the authorization for exercise of executive or judicial

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42

powers in a particular field is so unacceptably high as to
amount to a delegation of legislative powers."  Mistretta,
488 U.S. at 419 (Scalia, J. dissenting).  The nondelegation
doctrine thus protects the separation of powers by en-
suring that the President's executive authority is not so
broad and unconstrained as to mount to the exercise of
legislative power.
    In applying the nondelegation doctrine, this Court "has
deemed it 'constitutionally sufficient if Congress clearly
delineates the general policy, the public agency which is to
apply it, and the boundaries of th[e] delegated authority.'"
Mistretta, 488 U.S. at 372-373 (quoting American Power
& Light Co. v. SEC, 329 U.S. 90, 105 (1946)).  The touch-
stone of analysis is whether Congress has provided an
"intelligible principle" for the exercise of executive dis-
cretion.  Mistretta, 488 U.S. at 372; J. W. Hampton, 276
U.S. at 406.  Applying the "intelligible principle" standard,
the Court has repeatedly sustained the constitutionality
of laws that vest the Executive Branch with discretion
over the implementation of federal statutes and pro-
grams.  26.  The Court has approved grants of discretionary
authority "under [statutory] standards phrased in sweep-
ing terms," Loving, 116 S. Ct. at 1750, sustaining the
constitutionality of laws giving the Executive Branch
the authority to regulate broadcast licensing as required

___________________(footnotes)

    26  See, e.g., Loving, supra; Touby, supra;   Skinner v. Mid-America
Pipeline Co., 490  U.S. 212 (1989);  Mistretta, supra; FEA v. Algonquin
SNG, Inc., 426 U.S. 548 (1976); Lichter v. United States, 334 U.S. 742,
785 (1948); American Power & Light Co., supra Yakus v. United
States, 321 U.S. 414 (1944); FPC v. Hope Natural Gas Co., 320 U.S. 591
(1944); NBC v. United States, 319 U.S. 190 (1943) New York Central
Securities Corp. v. United States, 287 U.S. 12, 24 (1932); J.W. Hampton,
supra Field, supra Synar  v. United  States, 626 F. Supp. 1374, 1383-
1384 & n.9 (D.D.C.) (per curiam) (three-judge court) (citing cases), aff'd
sub nom. Bowsker v. Synar, 478 U.S. 714 (1986).

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43

by "public interest, convenience, or necessity," NBC v.
United States, 319 U.S. 190, 194, 225-226 (1943); to approve
consolidation of carriers "in the public interest," New
York Central Securities Corp. v. United States, 287 U.S.
12, 24 (1932); to recover "excessive profits" on military
contracts, Lichter v. United States, 334 U.S. 742, 778-786
(1948); to fix prices that "will be generally fair and equit-
able and will effectuate the purposes" of the law, Yakus v.
United States, 321 U.S. 414, 420, 426-427 (1944); and to
determine "just and reasonable" natural gas rates, FPC v.
Hope Natural Gas Co., 320 U.S. 591,600-601 (1944).
    2.  It is far from clear that congressional appropria-
tions of money are subject to the "intelligible principle"
standard that generally applies to regulation of private
conduct.  This Court has observed that "certain categories
of administrative decisions * * * traditionally have
[been] regarded as 'committed to agency discretion.' "
Lincoln, 508 U.S. at 191.  "The allocation of funds from a
lump-sum appropriation is" one such decision, since "a
fundamental principle of appropriations law is that where
Congress merely appropriates lump-sum amounts without
statutorily restricting what can be done with those funds,
a clear inference arises that it does not intend to impose
legally binding restrictions."  Id. at 192 (internal quota-
tion marks omitted).  Lump-sum appropriations have been
used throughout the Nation's history, and their consti-
tutionality "has never been seriously questioned."  Cin-
cinnati  Soap Co., 301 U.S. at 322.  So long as the activities
on which appropriated funds are spent are themselves
authorized by statute, and so long as the Executive
Branch adheres to the constitutional directive that "[n]o
Money shall be drawn from the Treasury, but in Conse-
quence of Appropriations made by Law; Art. I, 9, Cl. 7;
see OPM v. Richmond, 496 U.S. 414, 424-425 (1990), we
believe that no constitutional infirmity would exist even if

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44

an appropriations statute placed no further constraints on
Executive Branch discretion.  Even if the "intelligible
principle" standard articulated in Mistretta is assumed to
apply in this context, however, the Line Item Veto Act
places constitutionally sufficient constraints on the Pres-
ident's exercise of discretion over federal spending.
    a.  To begin with, the Act permits the President to
cancel items only "in whole" ICA 1021(a) (2 U.S.C.
691(a)); J.S. App. 32a, not in part, thereby requiring him to
make "an all or nothing decision."  H.R. Conf. Rep. No.
491, supra, at 33. And because the Act's "lockbox" feature
(see page 10 & note 6, supra) requires that any cancelled
amounts be devoted to deficit reduction, there is no author-
ity to divert cancelled funds for other purposes.  The Act's
requirement that each budgetary item must be devoted
either to a congressionally defined purpose or to deficit
reduction is itself a substantial limitation on the Presi-
dent's discretion.
    b.  In addition, the Act provides significant guidance to
the President in his choice between those two alterna-
tives.  The Act permits the President to cancel partic-
ular spending and revenue items only if he determines
that cancellation will "(i) reduce the Federal budget defi-
cit; (ii) not impair any essential Government functions;
and (iii) not harm the national interest."  ICA 1021(a)(A)
(2 U.S.C. 691(a)(A));  J.S. App. 33a.  The Act  thereby "estab-
lishes clear preconditions to Presidential action," FEA v.
Algonquin  SNG, Inc., 426 U.S. 548, 559 (1976), using cri-
teria that are at least as "intelligible" as those previously
approved by this Court.  See pages 42-43 & note 26, supra.
    The Act also requires the President to consider "the
legislative history, construction, and purposes of the law
which contains" the cancelled items as well as "any
specific sources of information referenced, in such lawful"; to
provide his estimate of the "fiscal, economic, and budget-

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45

ary effect" of the cancellation; to estimate the "effect of
the cancellation upon the objects, purposes and programs
for which the canceled authority was provided"; and to set
forth the geographic distribution of the cancelled spend-
ing.  ICA 1021(b), 1022(b) (2 U.S.C. 691(b), 691a(b)); J.S.
App. 33a-35a.  By directing the President to consider those
additional matters, Congress has offered further guidance
as to the factors that should inform his decision.  The re-
quirement that the President articulate his assessment of
the pertinent criteria provides an additional safeguard
against arbitrary action.  Cf. Motor Vehicle Mfrs. Ass'n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
Finally, the Act places a substantial portion of the federal
budget outside the scope of the President's cancellation
authority altogether, by excluding spending for entitle-
ment programs and other "direct spending" that results
from previously enacted laws.  ICA 1026(8) (2 U.S.C.
691e(8)); J.S. App. 51a ("item of new direct spending" de
fined as "any specific provision of law that is estimated to
result in an increase in budget authority or outlays for
direct spending" over the budgetary "baseline") (emphasis
added); see note 4, supra.  Because "Congress [has] clearly
delineate[d] the general policy, the public agency which is
to apply it, and the boundaries of th[e] delegated author-
ity;" Mistretta, 488 U.S. at 372-373 (internal quotation
marks omitted), the exercise of cancellation authority
under the Act represents the Article II power to execute
the laws of the' United States, not the legislative power
vested in Congress by Article I.  27

___________________(footnotes)

    27  The district court sought to distinguish the Line Item Veto Act
from statutes previously upheld by this Court under the nondelegation
doctrine on the ground that the Act "hands off to the President author-
ity over fundamental legislative choices" and "spares Congress the
burden of making those vexing choices of which programs to preserve
and which to cut."  J.S. App. 27a.  The precise import of those state-

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46

    3.  It is, of course, undisputed that "[a]mendment and
repeal of statutes, no less than enactment, must conform
with [the lawmaking requirements of] Art. I."  Chadha,
462 U.S. at 954.  The Line Item Veto Act, however, does
not authorize the President to repeal legislation.  Instead,
by making individual items in spending legislation per-
missive rather than mandatory (see page 37, supra), it
simply gives the President discretionary authority over
the implementation of future appropriations acts.  This
Court's precedents make clear that this kind of power,
exercised pursuant to statutory authorization, is not tan-
tamount to legislative repeal under Article I.
    a.  In Field, importers challenged the constitutionality
of a section of the Tariff Act of 1890 that authorized the
President to "suspend" the Act's provisions (thereby rais-
ing tariffs) if the President determined that foreign
governments were imposing "reciprocally unequal and
unreasonable" tariffs on specified commodities.  Act of
Oct. 1, 1890, ch. 1244, 3, 26 Stat. 612.  The importers
argued that the suspension provision unconstitutionally
delegated lawmaking power to the President.  143 U.S. at
681.  The Court rejected that contention, holding that
"[t]he true [constitutional] distinction * * * is between
the delegation of power to make the law * * * and

___________________(footnotes)
   
ments is unclear.  If the court meant that the fashioning of budgetary
priorities is an inherently legislative (and thus nondelegable) function,
the court's analysis cannot be squared with Congress's consistent (and
heretofore unquestioned) practice of authorizing the Executive Branch
to exercise considerable discretion over the expenditure of appropriated
funds.  Contrary to the district court's apparent belief (see id. at 27a-
28a), it is neither unprecedented nor unconstitutional for Congress to
give the President discretion over "which programs to preserve and
which to cut."  If the district court meant that the discretion conferred
by the Line Item Veto Act & standardless or otherwise unduly broad, it
was incorrect for the reasons stated at pages 44 -45, supra.

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47

conferring authority or discretion as to its execution, to
be exercised under and in pursuance of the law."  Id. at
693-694 (internal quotation marks omitted).
    The Court has also sustained the related congressional
practice of vesting the Executive Branch with discretion-
ary authority to create exemptions from federal laws or
otherwise limit their scope.  For example, the former
Interstate Commerce Act, while generally prohibiting
carriers from offering long-haul discounts, "gave an
authority to the Interstate Commerce Commission * * *
to grant relief from this prohibition," authority that was
"undefined except as the general purposes of that Act
implied the basis for affording exemption."  Addison v.
Holly Hill Fruit Prods., Inc., 322 U.S. 607, 616 (1944).
In the Intermountain Rate Cams, 234 U.S. 476, 486-489
(1914), the Court squarely rejected a claim that Congress
had conveyed Article I legislative power to the Executive
Branch by authorizing the Commission to create exemp-
tions from the long-haul discount prohibition.
    A wide variety of federal laws currently authorize the
Executive Branch to suspend their provisions, grant ex-
emptions from their requirements, or otherwise modify
their operation.  28.  When the Executive Branch suspends

___________________(footnotes)

    28  See, e.g., Touby, 500 U.S. at 162 (upholding statutory provision
that authorizes Attorney General to remove substances from, as well
as add substances to, statutory schedules of Controlled Substances Act);
Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996,
Pub. L. No. 104-114,  306(c), 110 Stat. 821-822 (to be codified at 22
U.S.C. 6085(c)) (authorizing President to suspend provision of Helms-
Burton Act exposing foreign firms to civil liability for use of con-
fiscated American property in Cuba); 5 U.S. C. 5303(b)(1), 5304a(a)
(authorizing President to replace statutory formula for federal em-
ployee pay increases with formula chosen by President); 10 U.S.C.
7309(b) (authorizing President to make exceptions to ban on foreign
construction of military vessells); 15 U.S.C. 78l(h) (authorizing SEC
to "exempt in whole or in part any issuer or class of issuers" from

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48

the operation of statutory provisions (as in Field) or
otherwise modifies the operation of the statute (as in the
Intermountain Rate Cases) pursuant to authority con-
veyed in the statute itself, no Presentment Clause
problem arises:  the President is simply exercising his
Article II power to "faithfully execute" the law according
to its terms.  See Field, 143 U.S. at 693 (President's
suspensory power "was apart of the law itself as it left the
hands of Congress").  As noted above, the lawmaking pro-
cedures of the Presentment Clause are "not necessary as
a check on the Executive's administration of the laws
because his administrative activity cannot reach beyond
the limits of the statute that created it-a statute duly
enacted pursuant to Art. I,  1, 7."  Chadha, 462 U.S. at
953 n.16.
    b.  The district court found it significant (see J.S. App.
25a) that cancellation under the Act "rescind[s]" discre-
tionary budget authority and renders items of new direct
spending and limited tax benefits without "legal force or
effect."  ICA 1026(4)(A)-(C) (2 U.S.C. 691e(4)(A)-(C)); J.S.
App. 48a-49a.  Contrary to the district court's suggestion,
Congress's use of that terminology does not transform the
President's cancellation authority into a power of statu-
tory repeal.  Indeed, this Court has previously discussed
with approval statutory provisions phrased in similar
terms.  In Field for example, this Court cited the example
of a customs statute providing that specified tariff acts
"shall be repealed" if the President declared that dis-
criminatory foreign tariffs had been abolished.  See 143
U.S. at 687 (citing Act of May 31, 1830, ch. 219, 2, 4 Stat.
425).  Field also cited an import statute authorizing the

___________________(footnotes)
                                        
specified provisions of Securities Exchange Act of 1934); 47 U.S.C.
227(b)(2) (authorizing FCC to establish exemptions from federal ban
on pre-recorded telemarketing calls).

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49

President to "declare the provisions of this act to be
inoperative, and the same shall be afterwards inoperative
and of no effect from and after thirty days born the date of
said proclamation."  Id. at 688 (citing Act of Mar. 6, 1866,
ch. 12, 2, 14 Stat. 4).  Far from regarding those statutes
as constitutionally deficient, the Court cited them as
historical support for the constitutionality of the tariff act
at issue in Field.  "See also 28 U.S.C. 2072(b) ("All laws in
conflict with" rules of practice and procedure promulgated
by this Court "shall be of no further force or effect after
such rules have taken effect."); Sibbach v. Wilson & Co.,
312 U.S. 1, 10 (1941) Henderson v. United States, 116 S.
Ct. 1638, 1644 (1996); Synar v. United States, 626 F. Supp.
1374, 1387 (D.D.C. 1986), aff'd on other grounds sub nom.
Bowsher v. Synar, supra.
    c.  Nor does any constitutional infirmity result from
the fact that the President's cancellation of a particular
item is irrevocable unless overturned by a subsequent
disapproval bill.  29.  There is, in particular, no basis for the
district court's suggestion that this feature of the Line
Item Veto Act effects a particularly "expansive * * *
delegation[ ] of power."  J.S. App. 25a.  To the contrary, the
discretion thus conferred is plainly narrower than would
be the case if the President were authorized to revisit the
question whether particular expenditures should be made.

___________________(footnotes)

    29  Thus, while the decision whether to undertake a criminal prose-
cution "has long been regarded as the special province of the Executive
Branch,"   Heckler v. Chaney, 470 U.S. 821, 832 (1985), prosecutorial
officials may by their actions effectively preclude themselves from
proceeding in a particular case-e.g., by entering into a plea agree-
ment, cf. Santobello v. New York,  404 U.S. 257 (1971), or by failing to
obtain an indictment within the statutory limitations period.  See also
note 22, supra (examples of laws requiring that Executive Branch
discretion be exercised, if at all, within a narrow period of time).

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50

    d.  If a particular appropriations law explicitly gave the
President the choice whether to spend or to impound
specified sums of money, it could hardly be contended that
the President's impoundment of funds effected a repeal of
the law or subverted the will of Congress.  The fact that
the President's cancellation authority is conferred by the
Line Item Veto Act rather than by individual appropria-
tions laws does not alter the constitutional analysis.  As
we explain above, the Line Item Veto Act does not estab-
lish a rule of law that is binding on a future Congress
regardless of legislative intent.  Rather, the Act creates a
"default rule" that budgetary items within its purview will
be discretionary rather than mandatory to the extent pro-
vided by the Act.  Congress retains the power, however,
to render the Act's provisions inapplicable, or otherwise
to alter the scope of the President's discretion, with re-
spect to any particular appropriations bill.  See pages 30-
31, supra.
    There is consequently no basis for appellees' assertion
that, under the Line Item Veto Act, "the President's
signature [on an appropriations bill] no longer signifies
his approval of the whole [appropriations] Act as one he
will faithfully execute."  Resp. to J.S. 6.  Because Con-
gress is presumed to legislate with an awareness of exist-
ing law, see, e.g., Miles v. Apex Marine Corp., 498 U.S. 19,
32 (1990); Goodyear Atomic Corp. v. Miller, 486 U.S. 174,
184 - 185 (1988), an appropriations bill that does not other-
wise specify the scope of the President's discretion must
be understood to authorize him either to spend, or to
cancel, each item covered by the Act.  Thus, when the
President exercises the cancellation authority conferred
by the Act, he is neither repealing an appropriations law
nor refusing to "faithfully execute" it; he is administering
it in accordance with its terms.

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APPENDIX

    The Presentment Clause of the United States
Constitution, Art. I, 7, Cl. 2, provides as follows:

        Every Bill which shall have passed the House of
    Representatives and the Senate, shall, before it
    become a Law, be presented to the President of
    the United States; If he approve he shall sign it,
    but if not he shall return it, with his Objections
    to that House in which it shall have originated,
    who shall enter the Objections at large on their
    Journal, and proceed to reconsider it.  If after such
    Reconsideration two thirds of that House shall
    agree to pass the Bill, it shall be sent, together
    with the Objections, to the other House, by which
    it shall likewise be reconsidered, and if approved
    by two thirds of that House, it shall become a Law.
    But in all such Cases the Votes of both Houses
    shall be determined by yeas and Nays, and the
    Names of the Persons voting for and against the
    Bill shall be entered on the Journal of each House
    respectively.  If any Bill shall not be returned by
    the President within ten Days (Sundays excepted)
    after it shall have been presented to him, the Same
    shall be a Law, in like Manner as if he had signed
    it, unless the Congress by their Adjournment pre-
    vent its Return, in which Case it shall not be a
    Law.

(la)

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  51

CONCLUSION

    The judgment of the district court should b vacated and
the case remanded with instructions to dismiss for lack of
jurisdiction.  Alternatively, the judgment of the district
court should be reversed.

    Respectfully submitted.

WALTER DELLINGER
Acting Solicitor General

FRANK W. HUNGER
Assistant Attorney General

EDWIN S. KNEEDLER
Deputy Solicitor General

MALCOLM L. STEWART
Assistant to the Solicitor
General

DOUGLAS N. LETTER
SCOTT R. MCINTOSH     
Attorneys

MAY 1997

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No. 96-1671-1

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

FRANKLIN D. RAINES, ET AL., APPELLANTS

v.

ROBERT C. BYRD, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JURISDICTIONAL STATEMENT

WALTER DELLINGER
Acting Solicitor General

FRANK W. HUNGER
Assistant Attorney General

EDWIN S. KNEEDLER
Deputy Solicitor General

MALCOLM L. STEWART
Assistant to the Solicitor
General

DOUGLAS N. LETTER
SCOTT R. MC INTOSH
Attorneys

Department of Justice 
Washington, D.C. 20530-0001
(202) 514-2217

---------------------------------------- Page Break ----------------------------------------

 QUESTIONS PRESENTED

    The Line Item Veto Act, Pub. L. No. 104-130, 110
Stat. 1200 (to be codified at 2 U.S.C. 691 et seq.), gives
the President conditional authority to cancel certain
spending and revenue items within five days after a
bill containing such items has been enacted into law.
The questions presented are as follows:
    1.  Whether individual Members of Congress have
standing to challenge the constitutionality of the Act.
    2.  Whether the Act violates Article I of the Consti-
tution.

(I)

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II

PARTIES TO THE PROCEEDINGS

    The appellants here, who were the defendants in the
district court, are Franklin D. Raines, the Director
of the Office of Management and Budget, and Robert
E. Rubin, the Secretary of the Treasury.  The appel-
lees here, who were the plaintiffs below, are Senator
Robert C. Byrd, Senator Daniel Patrick Moynihan,
Senator  Carl  Levin,  former Senator Mark O. Hatfield,
Representative  David E. Skaggs, and Representative
Henry A. Waxman.

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TABLE OF CONTENTS

Page

Opinion below  . . . .  1 
Jurisdiction  . . . .  1 
Constitutional and statutory provisions involved  . . . .  2 
Statement  . . . .  3 
The questions presented are substantial  . . . .  12 
Conclusion  . . . .  27 
Appendix A  . . . .  1a 
Appendix B  . . . .  30a 
Appendix C  . . . .  32a 

TABLE OF AUTHORITIES

Cases:

    Allen v. Wright, 468 U.S. 737 (1984)  . . . .  13, 18
    American Power & Light Co. v. SEC, 329 U.S. 90
        (1946)  . . . .  21
    Bender v. Williamsport Area Sch. Dist., 475 U.S.
        534 (1986)  . . . .  18
    Bennett v. Spear, No.95-813 (Mar. 19,1997)  . . . .  13
    Buckley v. Valeo, 424 U. S. 1 (1976)  . . . .  18
    City of Los Angeles  v. Lyons, 461 U.S. 95 (1983)  . . . .  14
    City of  New Haven v. United States:
        634 F. Supp. 1449 (D.D.C. 1986), aff'd, 809 F.2d
            900 (D.C. Cir. 1987)  . . . .  4
        809 F.2d 900 (D.C. Cir. 1987)  . . . .  5
    FEA v. Algonquin SNG, Inc., 426 U. S. 548 (1976)  ..  21
    FPC v. Hope Natural Gas Co., 320 U.S. 591
        (1944)  . . . .  21, 23
    Field v. Clark 143 U.S. 649 (1892)  . . . .  21
    Flast v. Cohen, 392 U.S.83 (1968)  . . . .  19
    Hunt v. Washington State Apple Advertising
        Comm'n, 432 U. S. 333 (1977)  . . . .  17
    INS v. Chadha, 462 U.S. 919 (1983)  . . . .  5, 24, 25
    J.W. Hampton, Jr., & Co. v. United States,
        276 U.S. 394 (1928)  . . . .  21, 22
    Laird v. Tatum, 408 U.S. 1(1972)  . . . .  18

(III)

---------------------------------------- Page Break ----------------------------------------

IV

Cases-Continued:              Page

    Lichter v. United States, 334 U.S. 742 (1948)  . . . .  21, 23
    Lincoln v. Vigil, 508 U.S. 182 (1993)  . . . .  4, 23
    Loving v. United States, 116 S. Ct. 1737 (1996 )  . . . .  20,
                                                                                       22, 26
    Lujan v. Defenders of Wildlife, 504 U.S. 555
        (1992)  . . . .  13, 14, 16, 18
    Mistretta v. United States, 488 U.S. 361 (1989)  . . . .  20,
                                                                                     21, 22
    Moore v. U.S. House of Representatives, 733 F.2d
        946 (D.C. Cir. 1984), cert. denied, 469 U.S. 1106
        (1985)  . . . .  17, 19
    Muskrat v. United States, 219 U.S. 346 (1911)  . . . .  19
    NBC v. United States, 319 U.S. 190 (1943)  . . . .  21, 22
    National Treasury Employees Union v. United
        States, 101 F.3d 1423 (D.C. Cir. & 1996)  . . . .  7
    New York Central Securities Corp. v. United States,
        287 U.S. 12 (1932)  . . . .  21, 23
    OPM v. Richmond, 496 U.S. 414 (1990)  . . . .  23
    Reno v. Catholic Social Servs., Inc., 509 U.S. 43
        (1993)  . . . .  14
    Sierra Club  v. Morton, 405 U.S. 727 (1972)  . . . .  13
    Skinner v. Mid-America Pipeline Co., 490 U.S. 212
        (1989)  . . . .  21
    Synar v. United States, 626 F. Supp. 1374 (D.D.C.),
        aff'd sub nom. Bowsher v. Synar, 478 U.S. 714
        (1986)  . . . .  21
    Touby v. United States, 500 U.S. 160 (1991)  . . . .  20, 21
    Train v. City of New York, 420 U.S. 35
        (1975)  . . . .  4, 16, 21
    United States v. Richardson, 418 U.S. 166 (1974)  . .  16
    United States Nat'l Bank of Oregon v. Indepen-
        dent Ins. Agents of  America, Inc., 508 U.S. 439
        (1993)  . . . .  15
    Whitmore v. Arkansas, 495 U.S. 149 (1990)  . . . .  9, 12, 14
    Yakus v. United States, 321 U.S. 414 (1944)  . . . .  21, 23

---------------------------------------- Page Break ----------------------------------------

V

Constitution and statutes:            Page

    U.S. Const.:
      Art. I  . . . .  12, 20, 21, 25, 26
            7, Cl. 2 (Presentment Clause)  . . . .  2, 3, 10, 25
            9, Cl. 7  . . . .  23
      Art. II, 3  . . . .  18
      Art. III  . . . .  10, 12, 15, 17, 18
    Act of Sept. 29, 1789, ch. 23, 1, 1 Stat. 95  . . . .  3
    Act of Feb. 11, 1791, ch. 6, 1, 1 Stat. 190  . . . .  3
    Act of Mar. 3, 1809, ch. 28, 1-2, 2 Stat. 535-536  . . . .  4
    Act of May 1, 1820, ch. 52, 5, 3 Stat. 568  . . . .  4
    Act of Aug. 26, 1842, ch. 202, 23, 5 Stat. 533  . . . .  4
    Act of Feb. 12, 1868, ch. 8, 32, 15 Stat. 36  . . . .  4
    Act of Sept. 29, 1987, Pub. L. No. 100-119, 206(a),
        101 Stat. 785-786  . . . .  5
    Impoundment Control Act of 1974, Pub. L. No. 93-344,
        Tit. X, 88 Stat. 332 (codified as amended at 2 U.S.C.
        681 et seq.)  . . . .  4
                1011(1), 2 U.S.C. 682 (1)  . . . .  4
                1011(3), 2 U.S.C. 682(3)  . . . .  4
                1012, 2 U.S.C. 683 (1982)  . . . .  5
                1013, 2 U.S.C. 684 (1982)  . . . .  5 
                1021(a), 2 U.S.C. 691(a)  . . . .  5, 22, 23
                1021(a)(A) 2 U.S.C  . . . .  7, 24 
                1021(a)(B) U.S.C. 691 (a)(B)  . . . .  7 
                1021(c), 2 U.S.C. 691 (c)  . . . .  7 
                1022 (b), 2 U.S.C. 691a (b)  . . . .  24 
                1023 (a), 2 U.S.C. 691b (a)  . . . .  7 
                1023 (b), 2 U.S.C. 691b (b)  . . . .  6 
                1024, 2 U.S.C. 691c  . . . .  6 
                1024 (a), 2 U.S.C. 691c (a)  . . . .  6 
                1024 (b), 2 U.S.C. 691c (b)  . . . .  6 
                1025, 2 U.S.C. 691d  . . . .  7 
                1026 (4) (A), 2 U.S.C. 691e (4)(A)  . . . .  6 
                1026 (4) (B), 2 U.S.C. 691e (4)(B)  . . . .  6 
                1026 (4)(C), 2 U.S.C. 691e (4)(C)  . . . .  6 
                1026 (6), 2 U.S.C. 691e (6)  . . . .  7 
                1026 (7), 2 U.S.C. 691e (7)  . . . .  6 
                1026 (8), 2 U.S.C. 691e (8)  . . . .  6 
                1026 (9), 2 U.S.C. 691e (9)  . . . .  6 

---------------------------------------- Page Break ----------------------------------------

VI

Statutes-Continued:             Page

    Line Item Veto Act, Pub. L. No. 104-130, 110 Stat.
        1200 (to be codified at 2 U.S.C. 691 et seq.)  . . . .  2, 3
                2, 110 Stat. 1200-1211 (2 U.S.C. 691-691f )  . . . .  5
                3(a)(1), 110 Stat. 1211 (2 U.S.C. 692(a)(l))  . . . .  9
                3(c), 110 Stat. 1211 (2 U.S.C. 692(c))  . . . .  9

Miscellaneous:

    89 Cong. Rec. 10,362 (1943)  . . . .  3
    Correspondence of the Justices, reprinted in 3 The
        Correspondence and Public Papers of John Jay
        (H. Johnston ed. 1891)  . . . .  19
    H.R. Conf. Rep. No. 491, 104th Cong., 2d Sess.
        (1996)  . . . .  23
    H.R. Rep. No. 1797, 81st Cong., 2d Sess. (1950)  . . . .  3

---------------------------------------- Page Break ----------------------------------------

In the Supreme Court of the United States

      OCTOBER TERM, 1996

     No.

FRANKLIN D. RAINES, ET AL., APPELLANTS

        v.

ROBERT C. BYRD, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT  OF  COLUMBIA

JURISDICTIONAL STATEMENT

OPINION BELOW

    The opinion of the district court (App., infra, 1a-
29a) is not yet reported.

         JURISDICTION

    The order of the district court was entered on April
10, 1997.  A notice of appeal (App., infra, 30a-31a) was
filed on April 11, 1997.  The jurisdiction of this Court
is invoked under Pub. L. No. 104-130, 3(b), 110 Stat.
1211 (App., infra, 57a) (to be codified at 2 U.S.C.
692(b)).

(1)

---------------------------------------- Page Break ----------------------------------------

        2

        CONSTITUTIONAL AND STATUTORY
                   PROVISIONS INVOLVED

    1.  The Presentment Clause of the United States
Constitution, Art. 1, 7, Cl. 2, provides as follows:

        Every Bill which shall have passed the House of
    Representatives and the Senate, shall, before it
    become a Law, be presented to the President of
    the United States; If he approve he shall sign it,
    but if not he shall return it, with his Objections to
    that House in which it shall have originated, who
    shall enter the Objections at large on their Jour-
    nal, and proceed to reconsider it.  If after such
    Reconsideration two thirds of that House shall
    agree to pass the Bill, it shall be sent, together
    with the Objections, to the other House, by which
    it shall likewise be reconsidered, and if approved
    by two thirds of that House, it shall become a Law.
    But in all such Cases the Votes of both Houses
    shall be determined by yeas and Nays, and the
    Names of the Persons voting for and against the
    Bill shall be entered on the Journal of each House
    respectively.  If any Bill shall not be returned by
    the President within ten Days (Sundays excepted)
    after it shall have been presented to him, the Same
    shall be a Law, in like Manner as if he had signed
    it, unless the Congress by their Adjournment
    prevent its Return, in which Case it shall not be a
    Law.
  2.  The Line Item Veto Act, Pub. L. No. 104-130,
110 Stat. 1200 (to be codified at 2 U.S.C. 691 et seq.), is
reproduced at App., infra, 32a-59a.

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3

 STATEMENT

    This case involves a challenge to the constitution-
ality of the Line Item Veto Act, Pub. L. No. 104 -130,
110 Stat. 1200 (to be codified at 2 U.S.C. 691 et seq.).
Although the authority vested in the President by the
Line Item Veto Act has never been exercised, the dis-
trict court permitted several Members of Congress to
proceed with a constitutional challenge to the Act.
On the merits, the court concluded that the Act
authorizes the President to "repeal" Acts of Con-
gress, in violation of the Presentment Clause, U.S.
Const. Art. I, 7, Cl. 2, and is therefore unconstitu-
tional.  Congress has vested this Court with imme-
diate appellate jurisdiction over the district court's
decision.  App., infra, 57a.
    1.  Beginning in 1789, and continuing into the
Nineteenth and Twentieth Centuries, Congress es-
tablished the basic practice of passing appropriations
laws that provide for expenditures "not exceeding"
specified amounts.  See, e.g., Act of Sept. 29, 1789, ch.
23, 1, 1 Stat. 95; Act of Feb. 11, 1791, ch. 6, 81, 1 Stat.
190.  By appropriating funds "not exceeding" fixed
amounts, Congress left the Executive Branch with
discretion to spend less than the appropriated amount
if the full measure of the appropriation proved unnec-
essary.  See, e.g., H.R. Rep. No. 1797, 81st Cong., 2d
Sess. 9 (1950) ("Appropriation of a given amount for a
particular activity constitutes only a ceiling upon the
amount  which should be expended for that activity.");
89 Cong. Rec. 10,362 (1943) (Sen. Truman) ("When the
Congress appropriates funds * * * none of us  hold[s]
that we give a mandate to expend the funds appropri-
ated.").  In addition, from an early date, Congress con-
ferred further discretion over spending by authoriz-

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4

ing the transfer of appropriated funds within depart-
ments of the Executive Branch.  See, e.g., Act of Mar.
3, 1809, ch. 28,  1-2, 2 Stat.  535-536; Act of May 1,
1820, ch. 52, 5, 3 Stat. 568; Act of Aug. 26, 1842, ch.
202, 23, 5 Stat. 533; Act of Feb. 12, 1868, ch. 8, 2,
15 Stat. 36 (repealing transfer authority).  Congress
gives the Executive Branch Similar discretion when-
ever it passes "lump-sum" appropriations bills.  See
Lincoln v. Virgil, 508 U.S. 182, 191-192  (1993).
    During the early 1970s, the Nixon Administration
attempted to assert broad Executive Branch control
over spending by impounding funds that had been
appropriated for a wide variety of federal programs.
That effort led to a series of lawsuits challenging
various impoundments.  See City of New Haven v.
United States, 634 F. Supp. 1449, 1454-1455 (D.D.C.
1986) (summarizing cases), aff'd, 809 F.2d 900 (D.C.
Cir. 1987).  The courts resolved those disputes by
construing the applicable appropriations statutes to
determine whether Congress intended for the Presi-
dent to have discretion whether or not to expend the
impounded funds.  See, e.g., Train v. City of New
York, 420 U.S. 35, 44-46 (1975).
    In response to the impoundment controversy, Con-
gress enacted the Impoundment Control Act of 1974
(ICA), Pub. L. No. 93-344, Tit. X, 88 Stat. 332 (codified
as amended at 2 U.S.C. 681 et seq.).  The Impoundment
Control Act distinguishes between two forms of
impoundment: deferrals (delays in spending during
the course of a fiscal year) and rescissions (perma-
nent withholding of appropriated funds).  See 2 U.S.C.
682(1) and (3).  The Act authorized the President to
engage in deferrals but  made that authority subject

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5

to a one-House legislative veto.  2 U.S.C. 684 (1982).  1
The Act prohibited the President from engaging
in unilateral rescissions.  Instead, it authorized the
President to propose rescissions to Congress under
a mechanism for expedited legislative consideration.
2 U.S.C. 683 (1982).
    2.  The Line Item Veto Act, enacted in April 1996
as an amendment to the Impoundment Control Act, is
designed to enhance the limited rescission authority
provided in that Act.  Once a bill or joint resolution
"has been signed into law pursuant to Article I,
section 7, of the Constitution of the United States,"
the Line Item Veto Act gives the President the
authority to "cancel in whole" specific spending and
revenue items contained in that law.  ICA 1021(a) (2
U.S.C. 691(a)); App., infra, 32a.  2
    The President's authority under the Act extends to
three budgetary categories: "dollar amount[s] of dis-
cretionary budget authority,"  "item[s] of new direct
spending," and "limited tax benefit[s]."  ICA 1021(a)
(2 U.S.C. 691(a)) App., infra, 32a-33a.  A "dollar
amount  of  discretionary  budget authority" is the en-
tire amount specified for one purpose in an appropria-
tions law, accompanying committee report or state-

___________________(footnotes)

    1  This Court's decision in INS v. Chadha, 462 U.S. 919
(1983), made clear that the Impoundment Control Act's leg-
islative veto provision was unconstitutional.  See City of New
Haven v. United States, 809 F.2d 900, 905 (D.C. Cir. 1987)
(government conceded unconstitutionality of Section 684's leg-
islative veto provision).  Congress subsequently amended the
Act to eliminate that provision.  Act of Sept. 29, 1987, Pub. L.
No. 100-119, 206(a), 101 Stat. 785-786.
    2  Section 2 of the Line Item Veto Act added a new Part C
to the Impoundment Control Act.  The citations in the text to
"ICA" are to Sections of that new Part C. 

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6

ment of managers, or authorizing law.  ICA 1026 (7)
(2 U.S.C. 691e(7)); App., infra, 50a-51a.  An "item of
new direct spending" is a specific provision that will
result in "an increase in budget authority or outlays"
for entitlements, food stamps, or other programs 
funded other than through annual appropriations.
ICA 1026 (8) (2 U.S.C. 691e(8)); App., infra, 51a.  A
"limited tax benefit" is a revenue-losing provision
that gives a tax reduction to 100 or fewer beneficiar-
ies, or a provision that provides "temporary or perma-
nent transitional relief" to ten or fewer beneficiaries.
ICA 1026(9) (2 U.S.C. 691e(9)); App., infra, 52a-54a.
    Cancellation of a dollar amount of discretionary
budget authority operates to rescind that authority.
ICA 1026(4)(A) (2 U.S.C. 691e(4)(A)); App., infra,
48a.  Cancellation of an item of new direct spending or
a limited tax benefit prevents the cancelled spending
or revenue provision from having "legal force or
effect."  ICA 1026(4)(B) and (C) (2 U.S.C. 691e(4)(B)
and (C)); App., infra, 48a-49a.  The President may not
use cancelled funds for any purpose other than deficit
reduction.  ICA 1023(b), 1024 (2 U.S.C. 691b(b),
691c); App., infra, 36a-39a.  Deficit reduction is ac-
complished through a statutory "lockbox" procedure,
under which the Office of Management and Budget
(OMB) must calculate the deficit reduction from the
cancellation and "lock in" the savings by adjusting
the calculations submitted to Congress under the
Gramm-Rudman-Hollings Act.  ICA 1024(a) and (b)
(2 U.S.C. 691c(a) and (b)); App., infra, 37a-38a.
    The President is authorized to cancel an item if he
determines that doing so will "(i) reduce the Federal
budget deficit; (ii) not impair any essential Govern-
ment functions; and (iii) not harm the national

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7

interest."  ICA 1021(a)(A) (2 U.S.C. 691(a)(A)); App.,
infra, 33a.  The President must notify Congress of
any cancellation within five calendar days after the
enactment of the law providing the item that is being
cancelled.  ICA 1021(a)(B) (2 U.S.C. 691(a)(B));  App.,
infra, 33a.
    A cancellation under the Act, takes effect upon Con-
gress's receipt of the President's notification.  ICA
1023(a) (2 U.S.C. 691b(a)); App., infra, 36a.  The Act
provides for highly expedited consideration by each
House of Congress of a bill to set aside a cancella-
tion after receipt of the President's notification.  ICA
1025, 1026(6) (2 U.S.C. 691d, 691e(6)); App., infra,
39a-47a, 49a-50a.  If a disapproval bill is enacted into
law, all disapproved cancellations become null and
void and the cancelled items become effective.  ICA
1023(a) (2 U.S.C. 691b(a)); App., infra, 36a.  A dis-
approval bill, if it becomes law, is not subject to
the President's cancellation authority under the Act.
ICA 1021(c) (2 U.S.C. 691(c)); App., infra, 34a.
    3.  The Line Item Veto Act took effect on January
1, 1997.  See App., infra, 2a, 58a-59a.  Appellees-six
Members of Congress, one of whom has since left
office-filed suit the following day.  3.  They named
as defendants Franklin D. Raines, the Director of
OMB, and Robert E. Rubin, the Secretary of the
Treasury.  Complaint at 1; see App., infra, 2a.  4.  Appel-

___________________(footnotes)

    3  A similar constitutional challenge was brought by a
federal labor union immediately after the Act was signed into
law in April 1996.  That action was dismissed on standing and
ripeness grounds.  See National Treasury Employees Union v.
United States, 101 F.3d 1423 (D.C. Cir. 1996).
    4  Appellees alleged that "defendant Raines is responsible
for executing the President's cancellations of budgetary and
spending authority under the Act," and that  " defendant  Rubin

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8

lees alleged that "the Act confers on the President
powers of veto, revision, and repeal of federal law that
violate Article I of the Constitution."  Complaint at 2
( "Par" 1).  They further alleged that

    [t]he Act directly and concretely injures [appel-
    lees], in their official capacities, by (a) altering
    the legal and practical effect of all votes they
    may cast on bills containing such separately
    vetoable  items, (b) divesting [appellees] of their
    constitutional role in the repeal of legislation,
    and (c) altering the constitutional balance of
    powers between the Legislative and Executive
    Branches, both with respect to measures con-
    taining separately vetoable items and with re-
    spect to other matters coming before Congress.

Id. at 4-5("Par" 14).  The complaint did not allege that the
President had exercised his cancellation authority
under the Act.
    4.  The district court denied the government's
motion to dismiss the complaint and entered summary
judgment in favor of  appellees.  App., infra, 1a-29a.
    a.  The district court first held that appellees had
standing to bring their suit.  App., infra, 9a-12a.  The
court relied on prior D.C. Circuit decisions holding
that Members of Congress have "standing to chal-
lenge measures that affect their constitutionally
prescribed lawmaking powers," although it recog-
nized that "the Supreme Court has never endorsed

___________________(footnotes)

is responsible for executing the President's cancellations of
'limited tax benefits' under the Act and for executing and
enforcing the tax laws of the United States."  Complaint at 3-4
( "Par" 11-12).

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9

the Circuit's analysis of standing in such cases."  Id.
at 10a-11a.  Applying those circuit precedents, the
district court held that  "[appellees'] claim of injury in
this case, namely, that the Act dilutes their Article I
voting power, is likewise of the kind that suffices to
confer standing under Article III."  Id. at 1la.  By
virtue of the Act, the court explained, "[appellees']
votes mean something different from what they meant
before, for good or  ill, and [appellees] who perceive it
as the latter are thus 'injured' in a constitutional
sense whenever an appropriations bill comes up for a
vote, whatever the President ultimately does with it."
Id. at 11a-12a.
    The district court also held that appellees' claims
were ripe for adjudication despite the fact that the
President had not yet exercised any cancellation
authority under the Act.  App., infra, 12a-15a.  The
court explained that, "[b]ecause [appellees] now find
themselves in a position of unanticipated and unwel-
come subservience to the President before and after
they vote on appropriations bills, Article III is satis-
fied."  Id. at 14a.  The court noted as well that "the
budgetary process is already underway," and that
"appropriations votes are inevitable, and 'certainly
impending.'"  Ibid.  (quoting Whitmore v. Arkansas,
495 U.S. 149, 158 (1990)).  5

___________________(footnotes)

    5  Section 3(a)(1) of the Line Item Veto Act expressly
authorizes suits by Members of Congress challenging the
constitutionality of any provision of the Act.  App., infra, 56a
(2 U.S.C. 692(a)(l)).  Section 3(c) of the Act directs both the
district court and this Court to expedite disposition of such
suits "to the greatest possible extent."  Id. at 57a (2 U.S.C.
692(c)).  The district court construed those provisions as ren-
dering inapplicable any prudential constraints on the court's

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10

    b.  On the merits, the district court concluded that
the Line Item Veto Act is unconstitutional.  App.,
infra 16a-29a.  The court first observed that, under
the Presentment Clause, U.S. Const. Art. 1, 7, Cl. 2,
the President must approve or disapprove in toto any
bill passed by both houses of  Congress.  App., infra,
18a.  The court acknowledged that any appropriations
law whose provisions are subject to cancellation
under the  Act "will have been 'approved' in accordance
with the Presentment Clause."  Id. at 20a.  The court
concluded, however, that, "following approval [of an
appropriations bill], a cancellation by the President is
a legislative repeal that itself must comply with
Presentment Clause procedures."  Ibid.  The court
reasoned:

        Where the President signs a bill but then pur-
    ports to cancel parts of it, he exceeds his consti-
    tutional authority and prevents both Houses of
    Congress from participating in the exercise of
    lawmaking authority.  The President's cancella-
    tion of an item unilaterally effects a repeal of
    statutory law such that the bill he signed is not
    the law that will govern the Nation.  That is
    precisely what the Presentment Clause was de-
    signed to prevent.

Id. at 21a-22a.
    The district court also acknowledged that the
President may be vested with discretionary authority
to impound, or to decline to spend, funds previously
appropriated by Congress.  App., infra, 22a-23a.  Ap-
pellants contended that the President's cancellation

___________________(footnotes)
      
exercise of jurisdiction, leaving only the requirements of
Article III.  See  id. at 9a n.5, 14a n.8, 16a.

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11

authority under the Act is simply a form of prospec-
tive  impoundment authority, one that makes individ-
ual spending items in an appropriations law dis-
cretionary rather than mandatory for a limited period
following the law's enactment.  The district court
rejected that argument, stating that cancellation
under the Act "is simply not the same thing as
impoundment," but instead "is equivalent to repeal"
of the underlying appropriations law.  Id. at 24a-25a.
The court explained:

    Cancellation forever renders a provision of
    federal law without legal force or effect, so the
    President who canceled an item and his succes-
    sors must turn to Congress to reauthorize the
    foregone spending.  Whereas delegated author-
    ity to impound is exercised from time to time,
    in light of changed circumstances or shifting
    executive (or legislative) priorities, cancella-
    tion occurs immediately and irreversibly.

Id. at 25a.  The court also sought to distinguish the
Line Item Veto Act from statutes previously upheld
by this Court on the ground that, in its view, the Act
"hands off to the President authority over funda-
mental legislative choices" and "spares Congress the
burden of making those vexing choices of which
programs to preserve and which to cut."  Id. at 27a.

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        12

THE QUESTIONS PRESENTED ARE SUBSTANTIAL

    The district erred both in holding that appellees'
objections to the Line Item Veto Act are justifiable
in an Article III court and in declaring the Act to be
unconstitutional.  Members of Congress have no judi-
cially cognizable interest in the operation or the out-
come of the legislative process.  Judicial interven-
tion is particularly unwarranted where, as here, the
President has yet to take any action that is claimed to
offend Article I.  Appellees' request for a declaration
by the district court that the Act is unconstitutional
is not a "Case" or "Controversy" within the meaning
of Article III; it is a classic request for an advisory
opinion.
    If the Court were nevertheless to find this case
justifiable, the judgment of the district court should
be set aside on the merits.  Contrary to the district
court's holding, the Line Item Veto Act does not
authorize the President to "repeal" any portion of a
validly enacted federal law.  Rather, the Act is simply
the latest exercise of Congress's long-standing and
well-settled power to vest the Executive Branch with
discretion over the expenditure of appropriated funds.
    1.  Article III of the Constitution confines the
jurisdiction of the federal courts to actual "Cases"
and "Controversies," and "the doctrine of standing
serves to identify those disputes which are appropri-
ately resolved through the judicial process."  Whit
more v. Arkansas, 495 U.S. 149, 155 (1990).

    To satisfy the "case" or "controversy" require-
    ment of Article III, which is the "irreducible
    constitutional minimum" of standing, a plaintiff
    must,  generally speaking, demonstrate that he
    has suffered "injury in fact," that the injury is

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13

    "fairly traceable" to the actions of the defen-
    dant, and that the injury will likely be redressed
    by a favorable decision.

Bennett v. Spear, No. 95-813 (Mar. 19, 1997), slip op. 6.
    "[T]he 'case or controversy' requirement defines
with respect to the Judicial Branch the idea of
separation of powers on which the Federal Govern-
ment is founded."  Allen v. Wright, 468 U.S. 737, 750
(1984).  "This Court has repeatedly held that an as-
serted right to have the Government act in accor-
dance with law is not sufficient, standing alone, to
confer jurisdiction on a federal court."  Id. at 754.
The "require[ment] that the party seeking review be
himself among the injured," Lujan v. Defenders of
Wildlife, 504 U.S. 555, 563 (1992) (quoting Sierra
Club v. Morton, 405 U.S. 727,735 (1972)), ensures that
the federal courts are confined to determining "the
rights of individuals" and do not usurp the role of
the political branches in "[v]indicating the public in-
terest (including the public interest in Government
observance of  the Constitution and laws)," id. at 576.
    The complaint in this case alleges that
 
        [t]he Act directly and concretely injures [appel-
        lees], in their official capacities, by (a) altering
        the legal and practical effect of all votes they
        may cast on bills containing such separately
        vetoable items, (b) divesting [appellees] of their
        constitutional role in the repeal of legislation,
        and (c) altering the constitutional balance of
        powers between the Legislative and Executive
        Branches, both with respect to measures con-
        taining separately vetoable items and with re-
        spect to other matters coming before Congress.

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14

Complaint at 4-5 ("Par" 14).  For two reasons, appellees'
asserted injuries are insufficient to satisfy the case
or controversy requirement.
    a.  This Court has emphasized that "[a]llegations of
possible future injury do not satisfy the requirements
of Art. III.  A threatened injury must be certainly
impending to constitute injury in fact."  Whitmore,
495 U.S. at 158 (internal quotation marks omitted);
accord, e.g., Defenders of Wildlife, 504 U.S. at 564 &
n.2.  6.  The gravamen of appellees' suit is that the
President will, in the future, employ the authority
conferred by the Line Item Veto Act so as to ef-
fect what they characterize as a partial "repeal" of
appropriations laws enacted by Congress.  Even if
Members of Congress possessed a judicially cogniza-
ble interest in the proper administration of federal
law,  appellees' claims would be far too speculative to
provide a basis for federal jurisdiction.
    At the present time, it remains unclear when the
President will invoke the cancellation authority
contained in the Line Item Veto Act; what items of
spending, or limited tax benefits, he will choose to
cancel; and whether those items will be reenacted into
law through a disapproval bill.  It is, in particular,
unclear when or whether legislative measures sup-
ported  by  appellees  themselves  will be cancelled pur-
suant to the Act's procedures.  Thus, even if a

___________________(footnotes)

    6  The requirement that a plaintiff's injury be "actual or
imminent, not 'conjectural' or 'hypothetical,'"  Whitmore, 495
U.S. at 155 (quoting City of Los Angeles v. Lyons, 461 U.S. 95,
102 (1983)), is closely related to the requirement that the claim
be "ripe" for adjudication.  Cf. Reno v. Catholic Social Servs.,
Inc., 509 U.S. 43, 57 n.18 (1993) (noting that "ripeness doctrine
is drawn both from Article III limitations on judicial power and
from prudential reasons for refusing to exercise jurisdiction").

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15

Member of Congress could be said to suffer a judi-
cially cognizable injury through the frustration of his
own legislative preferences, no such injury is either
present or imminent in the instant case.  7
    b.  Even if this suit had been brought as a challenge
to an actual exercise of the President's cancellation
authority, appellees would lack standing.  This Court
has

    consistently held that a plaintiff raising only a
    generally available grievance about government-
    claiming only harm to his and every citizen's
    interest in proper application of the Constitution

___________________(footnotes)

    7  In explaining its contrary conclusion, the district court
stated that, "[b]ecause [appellees] now find themselves in a
position of unanticipated and unwelcome subservience to the
President before and after they vote on appropriations bills,
Article III is satisfied."  App., infra, 14a; see also id. at 12a
("Under the Act the dynamic of lawmaking is fundamentally
altered.  Compromises and trade-offs by individual lawmakers
must take into account the President's item-by-item cancella-
tion power looming over the end product.").  Appellees are
free, however, to vote and to participate in legislative negotia-
tions on the basis of their own stated conviction that the Act
is unconstitutional and that any exercise of the President's
cancellation authority will therefore be a legal nullity.  No
alteration in "the dynamic of lawmaking" is compelled by the
Line Item Veto Act.  Rather, any such change will result from
the fact that other participants in the legislative process do not
share appellees' view that the Act is constitutionally deficient.
Legislative deliberations frequently take place, however,
against a backdrop of substantial disagreement or uncertainty
regarding the existing state of the law.  Article III's proscrip-
tion on the issuance of advisory opinions by the federal courts,
see, e.g., United States Nat'1 Bank of Oregon v. Independent
Ins. Agents of America, Inc., 508 U.S. 439, 446 (1993), may not
be evaded by characterizing that uncertainty as a current
injury to Members of Congress.  See page 19, infra.

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16

    and laws, and seeking relief that no more directly
    and tangibly benefits him than it does the public
    at large-does not state an Article III case or
    controversy.

Defenders of Wildlife, 504 U.S. at 573-574.  A pri-
vate plaintiff could, of course, establish the existence
of a case or controversy by demonstrating that the
cancellation of a particular budget item (or limited
tax benefit) would adversely affect his own economic
interests.  See, e.g., Train v. City of New York, 420
U.S. 35, 40 (1975).  A member of the public could not,
however, obtain judicial review of an exercise of the
President's cancellation authority merely by alleging
that  the cancellation  had improperly  negated the vote
of his own Senator or Representative; that it had sub-
verted the will of Congress; or that it had impermis-
sible shifted the balance of power between the Legis-
lative and Executive Branches.  Any such allegation
would present a "generalized grievance" plainly in-
susceptible of judicial resolution.  United States v.
Richardson, 418 U.S. 166,171 (1974).
    Appellees' claim to standing thus rests on the
premise that a Member of Congress has a judicially
cognizable interest in the proper performance of his
legislative duties, in the execution of an Act of Con-
gress, or in the maintenance of the constitutionally
prescribed balance of power between the President
and Congress, even though his constituents possess
no such interest.  That premise is contrary to first
principles of representative democracy.  As then-
Judge Scalia explained,

    no officers of the United States, of whatever
    Branch, exercise their governmental powers as
    personal prerogatives in which they have a

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17

    judicially cognizable private interest.  They wield
    those powers not as private citizens but only
    through the public office which they hold.  What-
    ever the realities of private ambition and vainglory
    may be, in contemplation of law their personal
    interest in full and unfettered exercise of their
    authority is no greater than that of all the citi-
    zens for whose benefit (and not for the personal
    benefit of the officeholder) the authority has been
    conferred.

Moore v. U.S. House of Representatives, 733 F.2d 946,
959 (D.C. Cir. 1984) (Scalia, J., concurring in result),
cert. denied, 469 U.S. 1106 (1985).  Because Members
of Congress exercise their powers as representatives
and servants of the people, any impairment of their
legislative functions causes them no injury that is
not shared by the public generally.  Cf. Hunt v.
Washington State Apple Advertising Comm'n, 432
U.S. 333, 343 (1977) (association's standing to sue on
behalf of its members requires, inter alia, that "its
members would otherwise have standing to sue in
their own right'').  8

___________________(footnotes)

    8  This is not to say that impairment of effective govern-
ance can never give rise to the sort of "injury" that is re-
dressable by an Article III court.  An Executive Branch official
who is authorized to conduct litigation on behalf of the gov-
ernment can assuredly file suit, or appeal adverse rulings, to
vindicate the governmental and public interest in the effective
administration of federal law.  That is quite different, how-
ever, from the proposition that an individual official himself
suffers a judicially cognizable injury through the impairment
of governmental functions.
    Any claim to standing of an individual Member of Congress
is thus subject to two distinct objections.  First, litigation on
behalf of the United States is entrusted to the Executive rather

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18

    A holding that an individual Member has a personal
interest in the operation or outcome of the legislative
process that can be vindicated by an Article III court
would also subvert the separation of powers principles
that the case or controversy requirement is intended
to serve.  That requirement ensures that the Judicial
Branch does not exercise a general superintendence
over the workings of the federal government.  See
Allen, 468 U.S. at 760 (explaining that abandonment
of standing requirements "would have the federal
courts as virtually continuing monitors of the wisdom
and soundness of Executive action") (quoting  Laird v.
Tatum, 408 U.S. 1, 15 (1972)).  Rather, the federal
courts are to resolve constitutional and other legal
issues only in the course of determining "the rights
of individuals."  Defenders of Wildlife, 504 U.S. at
576.  To hold that a Member's interest in the proper
operation of the legislative process is itself an indi-

___________________(footnotes)

than the Legislative Branch.  The "discertionary power to seek
judicial relief" is "authority that cannot possibly be regarded as
merely in aid of the legislative function of Congress.  A law-
suit  is the ultimate remedy for a breach of the law, and it is
to the President, and not to the Congress, that the Constitu-
tion entrusts the responsibility to 'take Care that the Laws
be faithfully executed.' "  Buckley v. Valeo, 424 U.S. 1, 138
(1976) (per curiam) (quoting U.S. Const. Art. II, 3).  Second,
a suit brought by an individual Member cannot properly be
characterized as one filed on behalf of Congress (let alone the
United States), particularly where (as here) the suit attacks
the constitutionality of a federal statute.  Cf. Bender v.
Williamsport   Area   Sch. Dist., 475 U.S. 534, 544 (1986) (appel-
lant's status as member of school board "does not permit him to
'step into the shoes of the Board' and invoke its right to
appeal"; "[g]enerally speaking, members of collegial bodies do
not have standing to perfect an appeal the body itself has
declined to take").

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19

vidual right would effectively negate that limitation.
See Moore, 733 F.2d at 959 (Scalia, J., concurring in
result).
    The terms "Cases" and "Controversies" were in-
tended by the Framers to confine the federal courts
to resolving those disputes that "are traditionally
thought to be capable of resolution through the judi-
cial process."  Flast v. Cohen, 392 U.S. 83, 97 (1968).
The personal disagreement by individual Members
of Congress with the considered judgment of the
President and of Congress as a whole regarding the
validity of an Act of Congress is plainly not within
the traditional purview of the courts.  Neither the
President nor Congress (or its individual Members)
could unilaterally obtain an advisory opinion from
this Court or a lower federal court regarding the
constitutionality of the Line Item Veto Act, even if
the request for such an opinion was motivated by a
desire to eliminate legal uncertainty about the man-
ner in which they should exercise their respective
powers and responsibilities.  See Correspondence of
the Justices, reprinted in 3 The Correspondence and
Public Papers of John Jay 486-489 (H. Johnston ed.
1891); Muskrat v. United States, 219 U.S. 346, 354
(1911).  That issue is no more suitable for judicial
resolution in its present posture merely because
several individual Members of Congress have written
their request in the form of a complaint and named as
defendants two officers of the other political Branch
who happen to hold a contrary view of the consti-
tutional question.  9

___________________(footnotes)

    9  It is, moreover, the President, not the Director of  OMB
or the Secretary of the Treasury, in whom the Act vests the
power to cancel items of spending or limited tax benefits.

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20

    There is, finally, no principled limitation on the
theory that Members of Congress have a judicially
cognizable interest in the operation or outcome of the
legislative process.  Any contention that the Presi-
dent's conduct violates statutory requirements or
prohibitions can be recast as a claim that the votes of
Members of Congress have been nullified.  Presiden-
tial action that is alleged to transgress the Consti-
tution can frequently be characterized as shifting
the balance between the Executive and Legislative
Branches. And any statutory assignment of power to
the President can be said to affect future interactions
between the political Branches, since the President
will have no incentive to negotiate for authority that
he already possesses.  The district court erred in rec-
ognizing such an unprecedented expansion of power in
the federal courts.
    2.  The district court also erred in concluding that
the Line Item Veto Act violates the Presentment
Clause.
    a.  Although Article I of the Constitution vests
"[a]ll legislative Powers" in Congress, it "do[es] not
prevent Congress from obtaining the assistance of its
coordinate Branches" in furtherance of its respon-
sibilities.  Mistretta v. United States, 488 U.S. 361,
372 (1989).  Congress is therefore free to "leav[e] a
certain degree of discretion to executive or judicial
actors" in the execution of federal laws.  Touby v.
United States, 500 U.S. 160, 165 (1991).  This Court
has repeatedly sustained the constitutionality of laws
that vest the Executive Branch with discretion over
the implementation of federal statutes and programs,
notwithstanding claims that Congress had imper-
missible "delegated" its legislative powers.  See, e.g.,
Loving v. United States, 116 S. Ct. 1737 (1996); Touby,

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        21

supra; Skinner v. Mid-America Pipeline Co., 490
U.S. 212 (1989); Mistretta, supra; FEA v. Algonquin
SNG, Inc., 426 U.S. 548 (1976); Lichter v. United
States, 334 U.S. 742, 785 (1948); American Power &
Light Co. v. SEC, 329 U.S. 90 (1946); Yakus v. United
States, 321 U.S. 414 (1944); FPC v. Hope Natural Gas
Co., 320 U.S. 591 (1944); NBC v. United States, 319
U.S. 190 (1943); New York Central Securities Corp.
v. United States, 287 U.S. 12 (1932);  J.W. Hampton,
Jr., & Co. v. United States, 276 U.S. 394 (1928); Field
v. Clark, 143 U.S. 649 (1892);  Synar v. United States,
626 F. Supp. 1374, 1383-1384 & n.9 (D. D. C.) (per curi-
am) (three-judge court) (citing cases), aff 'd sub nom.
Bowsher v. Synar, 478 U.S. 714 (1986). 
    As we have explained above, Executive Branch dis-
cretion has long been an integral part of Congress's
exercise of its spending powers under Article I.  See
pages 3-4, supra.  Although the withholding of appro-
priated funds has frequently engendered litigation,
the point of dispute invariably has been one of statu-
tory construction-i.e., whether Congress in fact
gave the Executive Branch authority to withhold the
contested funds.  See, e.g., Train, 420 U.S. at 44-46.
The political Branches and the courts have shared the
assumption that Congress is free to confer that au-
thority if it wishes to do so.
    The Line Item Veto Act is simply the latest
chapter in Congress's efforts to enlist the Executive
Branch's assistance in controlling spending by giving
the President discretionary authority over federal
expenditures.  By virtue of the Act, the President
may decline to give effect to specified spending and
revenue items in a federal law, during a brief period
following the law's enactment, if the President deter-
mines that canceling a particular item will "reduce

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22

the Federal budget deficit," will not "impair any
essential Government functions," and will not "harm
the national interest."  ICA 1021(a)(A) (2 U.S.C.
691(a)(A)); App., infra, 33a.  The Act operates to make
the specified spending and revenue items discre-
tionary, rather than mandatory, where the President
finds that the Act's criteria have been met.  For
purposes of Article I, the Line Item Veto Act is no
different from any other federal statute that gives
the President discretion to decide whether or not
to expend funds that have been appropriated by
Congress.
    b.  When Congress vests the Executive Branch
with discretion over the implementation of federal
laws, the nondelegation doctrine generally provides
the constitutional standards that govern the per-
missible scope of the Executive Branch's role.  The
touchstone of the nondelegation doctrine is whether
Congress has provided an "intelligible principle" by
which the executive discretion may be exercised.
Mistretta, 488 U.S. at 372; J.W. Hampton, 276 U.S.
at 406.  This Court "has deemed it constitutionally
sufficient if Congress clearly delineates the general
policy, the public agency which is to apply it, and
the boundaries of th[e] delegated authority."  Mis-
tretta, 488 U.S. at 372-373 (internal quotation marks
omitted).  Under that approach, the Court has fre-
quently "upheld * * * delegations under standards
phrased in sweeping terms."  Loving, 116 S. Ct. at
1750.  10

___________________(footnotes)
                                         
    10  For example the Court has sustained the constitutional-
ity of statutes giving the Executive Branch the authority to
regulate broadcast licensing as required by "public interest,
convenience, or necessity" (NBC,  319  U.S. at 194, 225-226); to

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23

    The Line Item Veto Act places constitutionally
sufficient constraints on the President's exercise of
discretion over federal spending.  11.  To begin with, the
Act permits the President to cancel items only "in
whole" (ICA 1021(a) (2 U.S.C. 691(a)); App., infra,
32a), not in part, thereby requiring him to make "an
all or nothing decision."  H.R. Conf. Rep. No. 491,
104th Cong., 2d Sess. 33 (1996).  And because the Act's

___________________(footnotes)

approve consolidation of carriers "in the public interest" (New
York Central Securities Corp., 287 U.S. at 16, 24); to recover
"excessive profits" on military contracts (Licher, 334 U.S. at
778-786); to fix prices that "will be generally fair and equitable
and will effectuate the purposes" of the law (Yakus, 321 U.S.
at 420, 426-427); and to determine "just and reasonable" natural
gas rates (Hope Natural Gas Co., 320 U.S. at 600-601).
    11  It is far from clear that congressional appropriations of
money are subject to the nondelegation principles that gener-
ally apply to regulation of private conduct.  This Court has
observed that "certain categories of administrative decisions
*** traditionally have [been] regarded as 'committed to
agency discretion.' "  Lincoln v. Vigil, 508 U.S. 182, 191 (1993).
"The allocation of funds from a lump-sum appropriation is"
one such decision, since "a fundamental principle of appropria-
tions law is that where Congress merely appropriates lump-sum
amounts without statutorily restricting what can be done with
those funds, a clear inference arises that it does not intend to
impose legally binding restrictions."  Id. at 192 (internal quota-
tion marks omitted).  So long as the activities on which appro-
priated funds are spent are themselves authorized by statute,
and so long as the Executive Branch adheres to the constitu-
tional directive that "[n]o Money shall be drawn from the
Treasury, but in Consequence of Appropriations made by
Law," Art. I, 9, Cl. 7; see OPM v. Richmond, 496 U.S. 414,
424-425 (1990), we believe that no constitutional infirmity would
exist even if an appropriations law placed no further con-
straints on Executive Branch discretion.  Even if the nondele-
gation standard articulated in Mistretta is assumed to apply in
this context, however, it is easily satisfied here.

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24

"lockbox" feature (see page 6, supra) requires the
President to devote any cancelled amounts to deficit
reduction, the President has no authority to spend
money on any project beyond the specific amount
appropriated by Congress.  The Act's requirement
that each budgetary item must be devoted (in its
entirety) either to a congressionally defined purpose
or to deficit reduction is itself a substantial limitation
on the President's discretion.
    In addition, however, the Act provides meaningful
guidance to the President in his choice between those
two alternatives.  The Act permits the President to
cancel particular spending or revenue items only if he
determines that the cancellation will "(i) reduce the
Federal budget deficit; (ii) not impair any essential
Government  functions;  and  (iii) not harm the national
interest."  ICA 1021(a)(A) (2 U.S.C. 691(a)(A)); App.,
infra, 33a.  The Act also requires the President to
support any cancellation by providing Congress with,
inter alia, the reasons for the cancellation; the es-
timated fiscal, economic, and budgetary effects of
the cancellation; and the estimated effect of the can-
cellation upon the objects, purposes, and programs
for which the cancelled authority was provided.  ICA
1022(b) (2 U.S.C. 691a(b)); App., infra, 34a-35a.
    c.  Thus, contrary to the district court's conclu-
sion, the Line Item Veto Act does not authorize the
President to exercise "legislative authority" or to
"repeal" a law.  App., infra, 24a, 25a.  An Executive
Branch official administering an Act of Congress
"does not exercise 'legislative' lower."  INS v.
Chadha, 462 U.S. 919, 953 n.16 (1983).  "The bicameral
process is not necessary as a check on the Execu-
tive's administration of the laws because his admin-

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25

istrative activity cannot reach beyond the limits of
the statute that created it-a statute duly enacted
pursuant to Art. I, 1, 7."  Ibid.  When an Executive
Branch official declines to exercise discretionary
spending authority conferred by statute, he does
not thereby "repeal" that statute-he implements it
according to its terms.  12
    The district court also sought to distinguish the
Line Item Veto Act from statutes previously upheld
by this Court on the ground that the Act "hands off to
the President authority over fundamental legislative
choices" and "spares Congress the burden of making
those vexing choices of which programs to preserve
and which to cut."  App., infra, 27a.  The precise
import of those statements is unclear.  If the court
meant that the fashioning of budgetary priorities is
an inherently legislative (and thus nondelegable)
function, the court's analysis cannot be squared with
Congress's consistent (and heretofore unquestioned)
practice of authorizing the Executive Branch to exer-
cise considerable discretion over the expenditure of
appropriated funds.  If the district court meant that
the discretion conferred by the Line Item Veto Act is

___________________(footnotes)

    12  The Presentment Clause and related provisions of
Article I establish "a single, finely wrought and exhaustively
considered, procedure" for the enactment of a law.  Chadha,
462 U.S. at 951.  It is, of course, undisputed that the Line Item
Veto Act itself was enacted into law in conformity with that
"finely wrought" procedure.  It is equally clear that the Act
does not exempt any other federal law from the requirements
of the Presentment Clause.  The President's cancellation au-
thority comes into play only after the requirements of the
Presentment Clause, including the President's approval of the
presented bill, have been satisfied.

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26

standardless or otherwise unduly broad, it was in-
correct for the reasons stated at pages 23-24, supra.
    Finally, no constitutional infirmity results from
the fact that the President must exercise, or decline
to exercise, his cancellation authority within the five-
day period after enactment of an appropriations law.
There is, in particular, no basis whatever for the
district court's suggestion that this feature of the
Line Item Veto Act effects a particularly "expan-
sive * * * delegation[ ] of power."  App., infra, 25a.
To the contrary, the discretion thus conferred is
quite plainly narrower than would be the case if the
President were vested with continuing authority to
revisit the question whether particular expenditures
should be made.  

                             * * * * *

    This Court recently observed that "[s]eparation-
of-powers principles are vindicated, not disserved,
by measured cooperation between the two political
branches of the Government, each contributing to a
lawful objective through its own processes."  Loving,
116 S. Ct. at 1751.  The Act at issue here represents
such an exercise in "measured cooperation."  The
district court's conclusion that the Act is at odds
with Article I should be rejected.

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27

        CONCLUSION

The Court should note probable jurisdiction.

Respectfully submitted.

WALTER DELLINGER
Acting Solicitor General

FRANK W. HUNGER
Assistant Attorney General

EDWIN S. KNEEDLER
Deputy Solicitor General

MALCOLM L. STEWART
Assistant to the Solicitor
  General

DOUGLAS N. LETTER
SCOTT R. Mc INTOSH
Attorneys

APRIL 1997

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       APPENDIX A

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

No. 97-0001 (TPJ)

SEN. ROBERT C. BYRD, ET AL., PLAINTIFFS

        v.

FRANKLIN D. RAINES, ET AL., DEFENDANTS

MEMORANDUM AND ORDER

[Filed Apr. 10, 1997]

    This action challenges the validity of legislation
entitled the Line Item Veto Act, Pub. Law No. 104-
130, 110 Stat. 1200 (1996) (to be codified at 2 U.S.C.
681 note, 691 et seq.) ("the Act"), which empowers
the President unilaterally to "cancel" certain appro-
priations and tax benefits after signing them into law.
The Act represents an effort by Congress to enlist
presidential assistance in controlling rampant federal
spending by conferring upon the President what it
termed a species of "enhanced rescission" power,
expanding the authority he formerly possessed under
the Impoundment Control Act of 1974.  Plaintiffs, four

(la)

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2a

Senators and two Congressmen,  1.  contend that the
mechanism chosen by Congress to its desired end
contravenes the text and purpose of Article I, section
7, clause  2,  known as  the "Presentment Clause" of the
Constitution.  Rather than making expenditures of
federal funds appropriated by Congress matters of
presidential discretion, the Act effectively permits
the President to repeal duly enacted provisions of
federal law.  This he cannot do.  Accordingly, the
Court will grant plaintiffs' motion for summary
judgment, deny defendants' motion, and declare the
Act unconstitutional.

I.

Operation of the Line Item Veto Act

    Following years of importuning by successive
Presidents and vacillation by earlier Congresses,
President Clinton approved the Line Item Veto Act
as passed by the 104th Congress on April 9, 1996.
Immediately after it became effective on January 1,
1997, the plaintiff Senators and Congressmen filed
this action to declare it void.  Named defendants are
the Director of the Office of Management and Budget
and the Secretary of the Treasury-the officials
alleged, respectively, to be responsible for executing
the President's "cancellations" of  spending items and
limited tax benefits under the Act.  The United
States Senate and the Bipartisan Legal Advisory
Group  of  the  United  States House of Representatives

___________________(footnotes)
                                    
    1  Senators Robert C. Byrd, Daniel Patrick Moynihan, Carl
Levin, and Mark O. Hatfield, and Representatives David E.
Skaggs and Henry A. Waxman.  All but Senator Hatfield are
currently sitting Members of the 105th Congress.

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3a

have appeared jointly as amici curiae to defend the
constitutionality of the Act.
    The Act, which sunsets on January 1, 2005, allows
the President, after signing a bill into law, to "cancel
in whole"-
    (1)  any dollar amount of discretionary budget
           authority;
    (2)  any item of new direct spending or
    (3)  any limited tax benefit.
2 U.S.C. 691(a).  "Dollar amounts of discretionary
budget authority" include any dollar amount set forth
in an appropriation law, including those to be found
separately in tables, charts, or explanatory text of
statements or committee reports accompanying leg-
islation.  2 U.S.C. 691e(7).  Thus the President's
cancellation power applies to legislative history as
well as to statutory text itself.  "Items of new direct
spending" generally include "entitlement" payments
to individuals or to state and local governments.
2 U.S.C.  691e(8); H.R. Conf. Rep. No. 491, 104th
Cong., 2d Sess. at 36 (1996).  "Limited tax benefits"
are those revenue-losing provisions that apply to 100
or fewer beneficiaries in any fiscal year, or tax
provisions that provide temporary or permanent
transitional relief for 10 or fewer beneficiaries from
a change in the Internal Revenue Code.  2 U.S. C.
691e(9).  The Act directs the congressional Joint
Committee on Taxation to identify limited tax bene-
fits contained in bills and joint resolutions, and pro-
vides that those bills and resolutions may include a
separate section in which identified tax benefits are
not subject to cancellation.  2 U.S.C. 5691f(a) - (c).
    The most critical definition is found in 691e(4),
The term "cancel" or "cancellation" means "to re-

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4a

scind" any dollar amount of discretionary budget
authority or to prevent items of new direct spending
or limited tax benefits "from having legal force or
effect."  Id.
    To exercise the cancellation power the President
must first determine that it will-
    (i)   reduce the Federal budget deficit;
    (ii)  not impair any essential Government func-
           tions; and
    (iii) not harm the national interest.
2 U.S.C. 691(a)(A).  The President effects a cancella-
tion by transmitting a "special message" to Congress
within five calendar days (excluding Sundays) after
enactment of the law containing the item(s) in
question.  2 U.S.C. 691(a) (B).  The Act spells out the
content requirements for a special message and pro-
vides that it shall be printed in the Federal Register.
2 U.S.C. 691a.
    Once an item has been canceled, no further action
by Congress is required; cancellation takes effect
upon Congress' receipt of the special message.
2 U.S.C. 691b(a).  Congress may thereafter intro-
duce a "disapproval bill" to reenact any canceled
items within five days of receiving the special mes-
sage, and must pass it within 30 days.  2.  2 U.S.C.
691d(b), (c)(1).  The President can, of course, exer-
cise a conventional veto of any disapproval bill, but
Congress can then reinstate the status quo ante by
overriding that veto. 

___________________(footnotes)

    2  The President has no authority to cancel items contained
in an enacted disapproval bill; he must take it or leave it as
presented to him.

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5a

Historical Background
    The Act is best understood against the historical
backdrop of the efforts of the President and Congress
over the years to control government spending and, in
more recent times, to reduce an ever-increasing
federal budget deficit.  It is a product of many years of
inter-branch conflict and compromise over how to
accomplish those goals.  Since the outset of the 19th
Century, American Presidents have labored to influ-
ence Congress' spending habits, and many have lob-
bied in particular for the authority to veto selected
provisions of bills presented for their signature.  See
12 Op. Off. Legal Counsel 128, 157-65 (1988).  Congress
has considered both amending the Constitution and
enacting several alternative legislative measures to
give the President the increased authority he has
sought and Congress has intermittently resisted.
    Although Presidents have uniformly acknowledged
that the Constitution affords no inherent authority
for a line-item veto.  3.  indeed, as explained below, it

___________________(footnotes)

   3  See, e.g., 33 Writings of George Washington 96 (1940)
("From the nature of the Constitution, I must approve all the
parts of a Bill, or reject it in toto.");  William Howard Taft, The
Presidency:  Its Duties, Its Powers, Its Opportunities and Its
Limitations 11 (1916) ("[The President] has no power to veto
parts of the bill and allow the rest to become a law.  He must
accept it or reject it . . . ."); 12 Op. Off. Legal Counsel 128, 157-
65 (1988) (reviewing other Presidents' views and experience).
    Although some commentators have argued that the Constitu-
tion does provide inherent authority for a line item veto, see
Stephen Glazier, Reagan Already Has Line-Item Veto, Wall St.
J., Dec. 4, 1987, at A14, col. 4; L. Gordon Crovitz, The Line-
Item Veto:  The Best Response When Congress Passes One
Spending "Bill" A Year, 18 Pepp. L. Rev. 43 (1990), most
scholars have concluded that the text of Article I, Sec. 7, un-
        
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6a

clearly forbids anything but rejection of a bill in
toto-they have managed to exert their will by
"impounding"- or simply not  spending-appropriated
funds.  In some instances, Presidents have refused to
spend money on measures that conflicted with their
foreign policy objectives, or that would advance an
unconstitutional purpose.  Most of the time, however,
Presidents simply preferred not to spend the money
for the purposes for which Congress had allocated it.
See, e.g., David A. Martin, Protecting the Fisc:  Exec-
utive Impoundment and Congressional Power, 82
Yale L.J. 1636, 1644-45 (1973).  Some impoundments
have been challenged successfully in federal court;
others have either been judicially sanctioned or not
contested at all.  See City of New Haven v. United
States, 634 F. Supp. 1449, 1454 (D.D.C. 1986), aff'd 809
F.2d 900 (D.C. Cir. 1987).
    Although presidential impoundments throughout
the 19th century occurred in a state of  uncertainty as
to their legality, Congress has in this century con-
ferred a measure of legitimacy upon them and given
some directions as to their use.  In the Anti-
Deficiency Acts of 1905 and 1906, requiring "appor-

___________________(footnotes)
           
equivocally precludes such authority.  See, e.g., Bruce Fein &
William Bradford Reynolds, Wishful Thinking on a Line-Item
Veto, Legal Times, Nov. 13, 1989, at 30; Lawrence Tribe and
Philip Kurland, Letter to Sen. Edward Kennedy, 135 Cong.
Rec. S.14,387 (daily ed. Oct. 31, 1989); 12 Op. Off. Legal Counsel
128 (1988); 9 Op. Off. Legal Counsel 28 (1985).  Moreover, at
least two courts have stated in dicta that the President pos-
sesses no inherent item veto.  See Lear Siegler, Inc. v. Lehman,
842 F.2d 1102, 1124 (9th Cir.), reh'g en banc ordered, 863 F.2d
693 (9th Cir. 1988), withdrawn on other grounds, 893 F.2d 205
(9th Cir. 1989) (en banc); Thirteenth Guam Legislature v.
Bordallo, 430  F. Supp. 405, 410 (D. Guam App. Div. 1977),
aff'd, 588 F.2d 265 (9th Cir. 1978).

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7a

tionment" aimed at saving money for the end of a
fiscal year, Congress also allowed the President to
waive spending appropriations in the event of emer-
gencies or unusual circumstances.  Act of March 3,
1905, ch. 1484, 4, 33 Stat. 1257; Act of Feb. 27, 1906,
ch. 510, 3, 34 Stat. 48.  When Congress amended the
Anti-Deficiency Act in 1950, it created a mechanism
for the Executive Branch to recommend the rescis-
sion of any reserves not required to carry out the
purposes underlying an appropriation.  General Ap-
propriation Act of 1951, ch. 896, 1211(c)(2), 64 Stat.
595 (current version at 31 U.S.C.  1512(c)(1)).
     Congress has not, however, always been sanguine
about Presidents' refusal to spend appropriated funds.
During the Nixon administration, for example,
the President's extensive resort to impoundment
prompted many lawsuits.  See City of New Haven,
634  F. Supp. at 1454 ("by 1974, impoundments had been
vitiated in more than 50 cases and upheld in only
four").  President Nixon's reluctance to spend appro-
priated funds also provoked passage of the Impound-
ment Control Act of 1974 (the "ICA"), Pub. L. No. 93-
344, 88 Stat. 332, a statute critical to an understand-
ing of the present Act.
    The ICA recognized two types of impoundment
"deferral" and "rescission."  Deferral affects the tim-
ing of expenditures, and is accomplished by "withhold-
ing or delaying the obligation or expenditure of
budget authority (whether by establishing reserves
or otherwise) provided for projects or activities," or
any other type of Executive action or inaction accom-
plishing the same result.  2 U.S.C. 682(1).  Deferral
is permitted for contingencies, to effect savings
achieved through changes or efficiency, or as specifi-
cally provided by law.  2 U.S.C. 684(b).  Under the

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8a

ICA, the President effects a deferral, just as he
cancels an item under the Line Item Veto Act, by
transmitting to Congress a special message contain-
ing statutorily required information.  2 U.S.C.
684(a).  Also like cancellations under the Act,
deferrals become effective upon Congress' receipt of
the special message; unlike cancellations, however,
they expire with the end of the fiscal year.  4.  Id.
    A rescission, under the ICA, is the cancellation of
budget authority.  2 U.S.C. 682(3).  In contrast to a
cancellation under the Line Item Veto Act the ICA
requires the President to propose a rescission by
transmitting a special message to Congress, which
Congress may enact or not, as it chooses, within 45
days.  2 U.S.C. 683(b).  The perceived deficiency of
the rescission process under the ICA that inspired
passage of the Line Item Veto Act was the necessity
of congressional acquiescence.  Whenever Congress
neglected or declined to pass a bill enacting into law a
proposed rescission-a most frequent occurrence-
the rescission expired.
    The cancellation procedure embodied in the Line
Item Veto Act thus came to be known as "enhanced
rescission," the enhancement consisting of elimina-
tion of the need for congressional action.  Two princi-
pal alternatives to the Act considered and rejected by
the 104th Congress were "expedited rescission" and
"separate enrollment."  The first, exemplified by S.14

___________________(footnotes)
                                       
    4  Originally, deferrals were automatically effective but
subject to a one-House legislative veto.  88 Stat. 335.  In light
of  INS v. Chadha, 462 U.S. 919 (1983), the legislative veto
component of the ICA was invalidated, City of New Haven v.
Pierce, 809 F.2d 900 (D.C. Cir 1987), and Congress subsequently
amended  the  ICA to eliminate the offending procedure.

---------------------------------------- Page Break ----------------------------------------

9a

in the 104th Congress, would have preserved the
recommendation process but guaranteed that Con-
gress actually and promptly vote on the President's
rescission proposals.  S. Rep. No. 9, 104th Cong., 1st
Sess., at 15 (1995).  The second would have treated
each item of spending as a separate "bill" for the
President to sign or veto.  Separate handling of hun-
dreds of items appeared to present insuperable practi-
cal obstacles, however, and potential constitutional
difficulties as well.  See 141 Cong. Rec. S.4217, S.4224-
35, S.4244 (daily ed. Mar. 21, 1995).  Both Houses of
Congress also considered and rejected proposed con-
stitutional amendments to impart line item veto
authority.   S.J. Res. 2, 14, 15, and 16, and H.J. Res. 4, 6,
and 17, 104th  Cong. (1995).

         II.

    Before addressing the merits of the case, the Court
is obliged to confront defendants' objections as to its
justifiability.  In a motion to dismiss the complaint
defendants contend that plaintiffs lack standing to
press their claim.  They also assert that the case is
not ripe for judicial resolution, and that the "equita-
ble discretion" doctrine requires dismissal.  None of
these assertions is correct under the law of this
Circuit.

Standing  5

    Defendants argue that plaintiffs fail to present a
live case or controversy, first, because separation-of-
powers considerations counsel against judicial intru-
sions into disputes between officials of the political

___________________(footnotes)

    5  Only Article III standing, as opposed to prudential limita-
tions, is at issue in light of Congress' creation of an express
right of action in  692(a)(1) of the Act.

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10a

branches and, second, because at this point no presi-
dential cancellation has yet been attempted or threat-
ened, and there has, thus, been no discernible injury.
    The parties agree on the standard to be applied:
plaintiffs must allege, as "an irreducible minimum,"
(1) an injury personal to them, (2) that has actually
been inflicted by defendants or is certainly impending,
and (3) that is redressable by judicial decree.  Valley
Forge Christian College v. Americans United for
Separation of Church and State, 454 U.S. 464, 472
(1982).  See also Lujan v. Defenders of Wildlife, 504
U.S. 555,560 (1992).
    Defendants acknowledge that, pursuant to this
well-settled standard, this Circuit has repeatedly
recognized Members' standing to challenge measures
that affect their constitutionally prescribed lawmak-
ing powers.  See, e.g., Michel v. Anderson, 14 F.3d
623, 625 (D.C. Cir. 1994) (Members had standing to
challenge House Rule permitting delegates to vote in
Committee of the Whole based on its alleged vote-
diluting effect); Moore v. U.S. House of Representa-
tives, 732 F.2d 946, 950-53 (D.C. Cir. 1984) (standing to
assert violation of constitutional requirement that
revenue-raising bills originate in the House), cert.
denied, 469 U.S. 1106 (1985); Vander Jagt v. O'Neill,
699 F.2d 1166, 1168-71 (D.C. Cir.) (standing to
challenge leadership's committee-seating assign-
ments), cert. denied, 464 U.S. 823 (1983).  In each case
the D.C. Circuit found no separation-of-powers im-
pediments to adjudication of the merits because, as in
the present case, Members' alleged injuries arose
from interference with the exercise of identifiable
constitutional powers.  See Moore, 733 F.2d at 951.
Although the Supreme Court has never endorsed the

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11a

Circuit's analysis of standing in such cases, for this
Court's purposes these precedents are controlling.  6
    Plaintiffs' claim of injury in this case, namely, that
the Act dilutes their Article I voting power, is like-
wise of the kind that suffices to confer standing under
Article III.  Previously, when a Member voted for an
appropriations bill containing multiple items, he or
she  could be certain that any variation of the package
once passed would require another vote by both
chambers of Congress.  Under the Act, however, as
plaintiffs describe it, the Member's same vote oper-
ates only to present the President with a "menu" of
items from which he can select those worthy of his
approval, not a legislative fait accompli that he must
accept or reject in whole, as in the past.  As one
Senator characterizes it, his vote for an "A-B-C" bill
might lead to the post hoc creation of an "A-B" law, an
"A-C" law, or a "B-C" law, depending on the Presi-
dent's use of his newly conferred cancellation author-
ity, for which neither he nor his colleagues would
have voted so reconfigured.  Thus, plaintiffs' votes
mean something different from what they meant
before, for good or ill, and plaintiffs who perceive it as
the latter are thus "injured" in a constitutional sense

___________________(footnotes)

    6  Defendants rely on two concurring opinions by D.C.
Circuit Judges in arguing that plaintiffs' injury is not suffi-
ciently personal to create a justifiable controversy.  See Moore,
733 F.2d at 957-61 (Scalia, J., concurring); Vander Jagt, 699
F.2d at 1179-82 (Bork, J., concurring).  Yet, as the three-judge
court, of which then-Judge Scalia was a member, recognized in
Synar v. United States, 626 F. Supp. 1374, 1382 (D.D.C. 1986),
aff'd sub nom. Bowsher W. Synar, 478 U.S. 714 (1986), this
Circuit's cases unequivocally establish that Members have "a
personal interest . . . in the exercise of their governmental
powers."  626 F. Supp. at 1381 &  n.7.

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12a

whenever an appropriations bill comes up for a vote,
whatever the President ultimately does with it.
    Circuit precedent has recognized only interference
with the "constitutionally mandated process of enact-
ing law" as sufficient to confer standing upon Mem-
bers to maintain legal action for redress.  Moore, 733
F.2d at 951.  According to plaintiffs, their right to
formulate an appropriations bill that meets with the
approval of a majority of both Houses alone, ignoring
presidential preferences, is mandated by the Present-
ment Clause itself.  Under the Act the dynamic of
lawmaking is fundamentally altered.  Compromises
and trade-offs  by  individual  law makers must take into
account the President's item-by-item cancellation
power looming over the end product.  The Court con-
cludes that plaintiffs have standing because they
allege that the Act "interferes with their 'constitu-
tional duties to enact laws regarding federal spend-
ing' and infringes upon their lawmaking powers under
Article I, Section 7."  Synar v. United State, 626 F.
Supp. 1374, 1382 (D.D.C. 1986), aff'd sub nom. Bow-
sher  v.  Synar, 478 U.S. 714  (1986).

Ripeness

    Defendants' primary justifiability contention is
that plaintiffs must wait until the President cancels
an item to bring this lawsuit.  Their facial challenge
to the Act would elicit an advisory opinion, defendants
argue, because whether the President will exercise
his authority at all (and whether various other conse-
quences will follow) is entirely speculative.  Indeed,
courts may not exercise jurisdiction consistent with
Article III where a dispute is so unformed as to fail
the "case or controversy" requirement.  See Duke
Power Co. v. Carolina Environmental Study Group,

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13a

Inc., 438 U.S. 59, 81 (1978); Regional Rail Reorganize
zation Act Cases, 419 U.S. 102, 138 (1974).  And in
constitutional cases, courts must be particularly
careful not to render decisions that are unnecessary.
See United States v. National Treasury Employees
Union, 115 S. Ct. 1003, 1019 (1995).  The injury that
gives shape to a dispute need not have occurred, how-
ever, so long as it is "certainly impending."  Whit-
more v. Arkansas, 495 U.S. 149, 158 (1990).
    In focusing solely on the President's actual exer-
cise of his cancellation power, defendants overlook
plaintiffs' allegation of ongoing harm that befalls
them irrespective of whether the President ever can-
cels an item.  7.  The Supreme Court considered an
analogous claim ripe in Metropolitan Wash. Airports
Auth. v. Citizens for the Abatement of Airport
Noise, Inc., 501 U.S. 252 (1991), where a Board of
Review composed of Members of Congress possessed
an as-yet unexercised power to veto decisions of
MWAA's  Board of Directors.  "The threat of the veto
hangs over the Board of Directors like the sword over
Damocles, creating a 'here-and-now subservience' to
the Board of Review sufficient to raise constitutional
questions," the Court held.  Id. at 265 n.13.  See also

___________________(footnotes)

    7  Even if an actual cancellation by the President were re-
quired to cause injury, Article III arguably would not require
plaintiffs to wait for that event to invoke the Court's juris-
diction.  See Abbott Labs v. Gardner, 387 U.S. 136, 140 (1967);
Buckley v. Valeo, 424 U.S. 1, 117 (1976) (challenge was ripe in
anticipation of "impending future rulings and determina-
tions").
    The President has expressed his intention to invoke his new
powers under the Act this year.  See 141 Cong. Rec. S.8202-03
(daily ed. June 13, 1995) (containing letter from President to
Speaker of the House).

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14a

Bowsher v. Synar, 478 U.S. 714, 727 n.5 (1986).
Because plaintiffs now find themselves in a position of
unanticipated and unwelcome subservience to the
President before and after they vote on appropriations
bills, Article III is satisfied, and this Court may
accede to Congress' directive to address the constitu-
tional cloud over the Act as swiftly as possible.  8
    Plaintiffs' declarations make clear that the budget-
ary process is already underway.  The President
presented  his  budget proposal in early February, and
Members will consider and vote on appropriations
between now and October 1, 1997, when the new fiscal
year begins.  Moreover, Congress is likely to vote on
supplemental appropriations for this fiscal year in the
next few months.  To be sure, appropriations votes are
inevitable, and "certainly impending."  Whitmore, 495
U.S. at 158.
    Defendants' argument that the case is not ripe
because further factual development is required is
also unpersuasive.  The issues in this case are legal,
and thus will not be clarified by further factual
development.  In what context and when the President
cancels an appropriation item is immaterial.  The
Court will be no better equipped to weigh the con-
stitutionality of the President's cancellation of an

___________________(footnotes)

    8  As in the case of standing, plaintiffs need only satisfy the
Article III component of ripeness because Congress unmistaka-
bly declared the case fit for judicial review in 692(c) of the
Act.  Accordingly, this Circuit's conclusion in National Trea-
sury Employees Union v. United States, 101 F.3d 1423, 1431
(D.C. Cir. 1996) ("NTEU"), that prudential (as well as constitu-
tional) considerations made the union's challenge to the Act not
ripe is inapposite.

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15a

item of spending or a limited tax benefit after the fact;
the central issue is plain to see right now.  9
    Finally, defendants assert that plaintiffs' claim is
not ripe because the Act might be repealed, or sus-
pended with respect to particular appropriations; a
disapproval bill might subsequently vindicate a Mem-
ber's vote as he intended it; or, if not, Congress could
override a presidential veto of a disapproval bill.
There are two answers to this argument.  First, it
ignores the "sword of Damocles" effect that pervades
the process irrespective of whether the President
ever cancels an item.  Second, just because Congress
as a whole can suspend or repeal the Act, or pass a
disapproval bill, does not mean that an individual
Member's injury is illusory.  A Member cannot pro-
cure any such relief on his own.  Indeed, the possibil-
ity of relief from Congress as a whole is just the sort
of speculative prospect that the Court would reject if
it were instead offered in support of standing.  Just as
the NTEU plaintiffs did not have standing simply
because the Act made certain injuries possible, 101
F.3d at 1429-30, the present plaintiffs' standing is not
undermined by virtue of the fact that the Act makes
certain remedies conceivable.

___________________(footnotes)

    9  Moreover, fitness for review is a prudential component of
the ripeness doctrine, an inquiry Congress obviated by calling
for expedited judicial action.  See Thomas v. Union Carbide
Agric. Prods. Co., 473 U.S. 568, 580-81 (1985); NTEU, 101 F.3d
at 1431.  But even if the Court were to take into account
prudential ripeness factors, they actually militate in plaintiffs'
favor, because resolving the issue now will avert the cloud that
would hang over any canceled item that Congress fails to
disapprove.

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16a

Equitable Discretion

    Defendants urge the Court to exercise its equitable
discretion to dismiss the complaint because of
separation-of-powers concerns, which apply not only
in cases involving internal rules of Congress, see
Skaggs v. Carle, 898 F. Supp. 1, 2 (D.D.C.), appeal
docketed, No. 95-5323 (D.C. Cir. Sept. 25, 1995), but
also in cases involving challenges to the validity of
the legislation itself, see Riegle v. Federal Open
Market Comm., 656 F.2d 873, 881 (D.C. Cir.), cert.
denied, 454 U.S. 1082 (1981).
    In this case, however, the Court's equitable power
to abstain from taking jurisdiction has been fore-
closed by Congress' own determination to invite a
lawsuit.  See 2 U.S.C. 692(a)(1).  There is therefore
neither reason nor occasion to exercise discretion by
avoiding the case.  See Synar, 626 F. Supp. at 1382
("Section 274 specifically provides for [declaratory]
relief to [Members of Congress], thus eliminating
whatever equitable discretion might exist and leaving
only the limitations of Article III.").

        III.

    The Court now turns to the issue presented,
namely, whether the Act's conferral of cancellation
power upon the President violates the Presentment
Clause.  The Act enjoys a presumption of validity, and
the Court may not undertake to evaluate its wisdom.
See INS v. Chadha, 462 U.S. 919, 944 (1983).  Even if
the Act were to appear salutary-or even exigent,
given the intractable (and interminable) budget
controversy-that fact cannot affect the Court's in-
quiry.  Id.  Though a court does not lightly resolve to
invalidate a law of the United States, it must never-

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17a

theless vindicate the Constitution and the govern-
mental framework it envisions.  "The Framers recog-
nized that, in the long term, structural protections
against abuse of power were critical to preserving
liberty."  Bowsher v. Synar, 478 U.S. 714, 730 (1986).
Accordingly, the Supreme Court has "not hesitated to
invalidate provisions of law which violate [the separa-
tion of powers]," Metropolitan Wash. Airports Auth.
v. Citizens for the Abatement of Airport Noise, Inc.,
501 U.S. 252, 273 (1991), and this Court can do no less.
    This case is indisputably one of first impression.
The issue it poses will undoubtedly be finally resolved
by the Supreme Court, but at present such Supreme
Court precedent as can be found only intimates what
the result will be.  It is by that jurisprudence, how-
ever, that this Court must be guided, and the lesson of
those cases appears to be that not even the most
beguiling of upgrades to the machinery of national
government will be countenanced unless it comports
with the constitutional design.
    Shorn of its political and policy-laden implications,
this case turns on the narrow and subtle question of
whether the President's power under the Act is
simply a present-day enlargement of his historically
sanctioned impoundment power as it has existed from
time to time, as defendants urge, or rather a radical
transfer of the legislative power to repeal statutory
law, as plaintiffs believe.  As explained below, the
Court agrees with plaintiffs that, even if Congress
may sometimes delegate authority to impound funds,
it may not confer the power permanently to rescind
an appropriation or tax benefit that has become the
law of the United States.  That power is possessed by
Congress alone, and, according to the Framers' care-
ful design, may not be delegated at all.

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18a

The Presentment Clause

    The Presentment Clause requires that any bill
making or changing federal law must be first passed
by both Houses of Congress and then presented to the
President in toto, in which form he acts upon it,
either to make it (or allow it to become) a law, or to
return it to Congress for reconsideration.  10.  U.S.

___________________(footnotes)

10  In the Framers' words:

        Every Bill which shall have passed the House of Repre-
    sentatives and the Senate shall, before it become a Law, be
    presented to the President of the United States; If he
    approve it he shall sign it, but if not he shall return it, with
    his Objections to that House in which it shall have origi-
    nated, who shall enter the Objections at large on their
    Journal, and proceed to reconsider it.  If after such Recon-
    sideration two thirds of that House shall agree to pass the
    Bill, it shall be sent, together with the Objections, to the
    other House, by which it shall likewise be reconsidered,
    and if approved by two thirds of that House, it shall
    become a Law.  But in all Cases the Votes of both Houses
    shall be determined by yeas and Nays, and the Names of
    the Persons voting for and against the Bill shall be entered
    on the Journal of each House respectively.  If any Bill shall
    not be returned by the President within ten Days (Sundays
    excepted) after it shall have been presented to him, the
    Same shall be a Law, in like Manner as if he had signed it,
    unless the Congress by their Adjournment prevent its
    return, in which Case it shall not become a Law.

U.S. Const. art. I, 7, cl. 2.
    At the behest of James Madison, the Framers included the
following clause to ensure that Congress could not evade the
presentment requirement simply by passing legislation in
forms other than bills:

    Every Order, Resolution, or Vote to Which the Concur-
rence of the Senate and House of Representatives may be

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19a

Const. art. I, 7, cl. 2.  Plaintiffs focus on the lan-
guage of "approval;" the President's primary duty
under the Presentment Clause, they say, is one of
approval or disapproval.  If he approves of the bill, in
toto, his signature is but a ministerial formality.  If he
does not approve of it, in toto, his duty obliges him to
return it with his "objections" to the House in which
it originated, or at least to leave it be.  If he signs it
while disapproving of it-or parts of it-as the Act
purports to authorize him to do, then he does so,
according to plaintiffs, in violation of the Present-
ment Clause.
    For defendants, the operative words are, "he shall
sign it."  It is the bright-line act of signing alone that
converts a bill into law.  Approval is a highly subjec-
tive, and a temporal, concept.  A President may "ap-
prove" of a bill for many reasons, not all of which
import enthusiasm for its legislative consequences.
A President may sign a bill of which he actually
disapproves (as undoubtedly many Presidents have
done) for political, diplomatic, or other purposes unre-
lated to his judgment of its merit.
    The Court agrees with defendants that the act of
signing a bill is the critical requirement of the
Presentment Clause.  The President's judgment of
approval coincides with his decision to sign a bill; it
has no independent operative significance.  Whether a

___________________(footnotes)

    necessary (except on a question of Adjournment) shall be
    presented to the President of the United States; and before
    the Same shall take Effect, shall be approved by him, or
    being disapproved by him, shall be repassed by two thirds
    of the Senate and House of Representatives according to
    the Rules and Limitations prescribed in the Case of a Bill.
U.S. Const. art I, 7, cl. 3.

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20a

bill is or is not a law of the United States cannot
depend on the President's state of mind when he
affixes his signature.  He may object to various
appropriations and limited tax benefits-that is, he
may disapprove of them-but nevertheless sign a bill
and thereby remain in full compliance with the Pre-
sentment Clause.  Likewise, no subsequent action by
the President is capable of retroactively undermining
the approval he registered with his signature.  By
that time the Article I approval process has run its
course, and the bill indisputably has become a law of
the United States.  See United States v. Will, 449
U.S. 200, 224-25 & n.29 (1980); La Abra Silver
Mining Co. v. United States, 175 U.S. 423,454 (1899);
Burgess v. Salmon, 97 U.S. 381,384-85 (1878).
    Yet, although the Court agrees that statutes sub-
ject to cancellation will have been "approved" in ac-
cordance with the Presentment Clause, the Act is
vulnerable to the additional charge that, following
approval, a cancellation by the President is a legisla-
tive repeal that itself must comply with Presentment
Clause procedures.  The Court must resolve this
issue in light of the Supreme Court's admonishment
that "[t]he legislative steps outlined in Art. I are not
empty formalities; they were designed to assure that
both Houses of Congress and the President par-
ticipate in the exercise of lawmaking authority."
Chadha, 462 U.S. at 958 n.22.  It is insufficient, there-
fore, for defendants to argue that, notwithstanding
the resemblance between a cancellation and a statu-
tory repeal, the Act should stand because the same
result could be accomplished through clearly consti-
tutional means.  Rather, "the purposes underlying
the Presentment Clause . . . must guide resolution of

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21a

the question whether a given procedure is constitu-
tional."  Id. at 946.
    Fundamentally, the Presentment Clause enforces
"bicameralism" and circumscribes the President's
ability to act unilaterally.  See Field v. Clark, 143
U.S. 649,692-93 (1892).  It embodies "the Framers' de-
cision that the legislative power of the Federal Gov-
ernment be exercised in accord with a single, finely
wrought and exhaustively considered, procedure."
Chadha, 462 U.S. at 951.  The President's contribu-
tion to the process is his approval of (or objection to)
legislation as Congress presents it to him.  His is
merely a qualified check on the will of the legislature.
See 1 The Records of the Federal Convention of 1787
at 97-105 (Max Farrand ed., 1987).  The President
must consider the whole of the bill presented, which,
in today's world of omnibus appropriations and myriad
riders, is an undeniably difficult task.  Nevertheless,
upon considering a bill, he must reach a final judg-
ment: either "approve it," or "not."  U.S. Const. art I.
7, cl. 2.  Once he has by his signature transformed
the whole bill into a law of the United States, the
President's sole duty is to "take Care that the Laws
be faithfully executed."  U.S. Const. art. II, 3.  See
also Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 587 (1952)  ("[T]he President's power to see
that the laws are faithfully executed refutes the idea
that he is to be a lawmaker.").
    Where the President signs a bill but then purports
to cancel parts of it, he exceeds his constitutional
authority and prevents both Houses of Congress from
participating in the exercise of lawmaking authority.
The President's cancellation of an item unilaterally
effects a repeal of statutory law such that the bill he
signed is not the law that will govern the Nation.

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22a

That is precisely what the Presentment Clause was
designed to prevent.

Delegation of Spending Authority vs. Exercise of
Lawmaking Power

    Defendants dismiss the notion that the Act repre-
sents an abdication of Congress' Article lawmaking I
power, arguing that it merely ratifies traditional
impoundment authority of the President in a novel
form.  Defendants and amici both allude to a long
history of presidential impoundments, many of which
have been tested by courts, and as to which the issue
has been confined primarily to whether Congress
intended to delegate discretion to the President not to
spend money it had appropriated; that is, whether its
appropriations were permissive or mandatory.  See,
e.g., Train v. City of New York, 420 U.S. 35, 41 (1975);
City of New Haven v. United States, 634 F. Supp,
1449, 1454 n.6 (D.D.C. 1986) (citing case:), aff'd 809
F.2d 900 (D.C. Cir. 1987).  The effect of the ICA was to
make all appropriations presumptively mandatory.
The Line Item Veto Act merely reverses that pre-
sumption, at least for a period of five days.  During
that limited period, the President has the option to
"cancel" any appropriation-he may not change it in
any manner-after which it remains in the law as he
signed it, to be faithfully executed with the remaind-
er.  11.  If he cancels it with an appropriate message to
Congress, it is extinguished, as if it had never been
part  of  the  bill,  unless  Congress  revives  it with a new
bill, passed like any other by both Houses of Congress

___________________(footnotes)
             
    11  Defendants cite no analog, as a species of impoundment
or anything else, however, to the power to "cancel" limited tax
benefits found in the Act.

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23a

and presented anew to the President.  In the mean-
time no money can be spent for it,  just as would have
been the case had it been "deferred" or "rescinded" in
accordance with the ICA.  The Line Item Veto Act is,
therefore, according to defendants, merely an advance
delegation by Congress to the President of a brief
period of discretion to spend or not, as his judgment
dictates, subject to the broad injunctions that his
decision not to spend operate to reduce the deficit, and
will not impair any essential Government functions
or harm the national interest.  It is, they say, "evolu-
tionary, not revolutionary,"  Def. Motion for Summary
Judgment at 3, in the perpetual contest of will be-
tween Congress and the President in matters of the
federal budget.
    It has long been held that Congress may-indeed, of
necessity, must-delegate vast authority to the Ex-
ecutive Branch of government to make and to change
rules for the governance of national affairs, so long as
they are in furtherance of the will of Congress.  When
courts have inquired into whether Congress has abdi-
cated its legislative function in cases of allegedly
overbroad delegations, their sole concern is whether
Congess itself articulated "intelligible principles" by
which delegated authority is to be exercised.  See
Mistretta v. United States, 488 U.S. 361, 372; J. W.
Hampton, Jr. & Co. v. United States, 276 U.S. 394,
406, 409 (1928).  Since 1935, the Supreme Court has
"upheld, without exception, delegations under stan-
dards phrased in sweeping terms."  Loving v. United
States, 116 S. Ct. 1737, 1750 (1996).  Defendants are
therefore correct that, if the Act's conferral of can-
cellation power, at least with respect to appropria-
tions, can be equated with a delegation of impound-
ment authority, their burden under the delegation

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24a

standard is not "a tough one."  National Fed'n of  Fed.
Employees  v. United States, 905  F.2d 400, 404 (D.C.
Cir. 1990).  12
    But defendants are mistaken in asserting that
Article I concerns disappear once the President has
signed a bill into law, and, consequently, that the
delegation doctrine is the only hurdle for them to
surmount.  Their analysis assumes that Congress
conferred a delegable power.  It did not; it ceded basic
legislative authority.  The Constitution vests "all
legislative Powers" of  the United  States  in Congress,
U.S. Const. art. I, 1, including the power to repeal.
Chadha, 462 U.S. at 954.  As Chadha made clear,
there are formal aspects of the legislative process
that Congress may not alter.  Just as Congress could
not delegate to one of its chambers the power to veto
select provisions of law, it may not assign that
authority to the President.  Before the question of a
delegation's excessiveness ever arises, then, a court
must be convinced that Congress did not attempt to
alienate one of its basic functions.
    In no case where the Supreme Court decided that a
delegation of broad authority was saved by Congress'
articulation of intelligible principles was the Court
faced with an equivalent of the cancellation power
given to the President by the Line Item Veto Act.
Cancellation under the Act is simply not the same
thing as impoundment, or any other suspension of a

___________________(footnotes)

    12  See, e.g., Skinner v. Mid-America Pipeline Co., 490 U.S.
212, 219 (1989) (upholding delegation of authority to establish
and collect pipeline safety fees); Lichter v. United States, 334
U.S. 742, 778 (1948) (upholding grant of power to recover
excessive wartime profits); and Yakus v. United States, 321
U.S. 414, 424 (1944) (upholding  broad delegation of price-fixing
authority).

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25a

statutory provision.  Instead, cancellation is equiva-
lent  to repeal  13.  and "'repea1 of statutes, no less than
enactment, must conform with Art. I."  Chadha, 462
U.S. at 954.  Cancellation forever renders a provision
of federal law without legal force or effect, so the
President who canceled an item and his successors
must turn to Congress to reauthorize the foregone
spending.  Whereas delegated authority to impound is
exercised from time to time, in light of changed
circumstances or shifting executive (or legislative)
priorities, cancellation occurs immediately and irre-
versibly in the wake of the operationalizing "ap-
proval" of the bill containing the very same measures
being rescinded.
    Thus the cancellation power conferred by the Act is
indeed revolutionary, as plaintiffs assert.  Never
before has Congress attempted to give away the
power to shape the content of a statute of the United
States, as the Act purports to do.  As expansive as
its delegations of power may have been in the past,
none has gone so far as to transfer the function of
repealing a provision of statutory law.  The power to
"make" the laws of the nation is the exclusive, non-
delegable power of Congress which the Line Item
Veto purports to alienate in part for eight years.
That it can be recaptured if Congress repeals the Act,
or suspends it (either in general, or in particular
circumstances) does not alter the fact that, until
Congress does so by a separate bill which the

___________________(footnotes)

    13  As noted supra, p.4,  691e(4) of  the Act defines the verb
"cancel" as meaning "to rescind."  Webster's Third New Inter-
national Dictionary 1924 (G.&C. Merriam Co. 1981) defines the
verb "repeal" as meaning "l: to rescind or revoke (as a sen-
tence or law) from operation or effect."

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26a

President signs (or as to which his veto is over-
ridden), the President has become a co-maker of the
Nation's laws.  The duty of the President with re-
spect to such laws is to "take care that [they] be
faithfully executed."  U.S. Const. art II, 3.  Cancel-
ing, i.e., repealing, parts of a law cannot be considered
its faithful execution.  14
    Moreover, if cancellation power could constitution-
ally be delegated as to appropriations and limited tax
benefits, defendants have yet to show a tenable con-
stitutional distinction between appropriation and tax
laws, on the one hand, and all other laws, on the other.
In fact, defendants deny any obligation to suggest
such a distinction at all.  At oral argument they in-
sisted that there is virtually no limit to the express
Article I powers Congress may delegate if it chooses,
so long as it articulates "intelligible principles" by
which its delegee is to be guided.  If that is so-if
Congress can delegate to the President the power to
reconfigure an appropriations or tax benefit bill-why
can he not also cancel provisions of an environmental
protection or civil rights law he disfavors, and upon
exactly the same "principles" as are to guide his
exercise of cancellation authority under the Line
Item Veto Act?
    As authority for the proposition that it is constitu-
tionally permissible for Congress to delegate to the
President the power to render a law of the United

___________________(footnotes)
                           
    14  Defendants suggest that, in canceling future appropria-
tions, the President will, in fact, be faithfully executing the
Line Item Veto Act to reduce the deficit.  But the Act contains
no mandate to the President to reduce the deficit.  It merely
conditions cancellations for whatever reason upon, inter alia,
their having a deficit-reducing effect..

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27a

States inoperable, defendants cite the case of Field v.
Clark, 143 U.S. 649 (1892).  Aside from the fact that
the presidential action approved by the Supreme
Court in Field v. Clark was merely the "suspension"
of duly enacted tariffs, not their cancellation, the case
is also distinguishable on the ground that the
Supreme Court recognized the practice of "legislat-
ing in contingency;" that is, where Congress itself
determines in advance when conditions yet to occur
should cause the law to cease to be operative.  The
President is merely the instrument of its will.  Id. at
683-92.  See also United States v. Rock Royal Co-op,
Inc., 307 U.S. 533, 577-78 (1939); Currin v. Wallace,
306 U.S. 1, 15-16 (1939); The Brig Aurora, 11 U.S. (7
Cranch) 382,388 (1813).  15.  The Line Item Veto Act, in
contrast, hands off to the President authority over
fundamental legislative choices.  Indeed, that is its
reason for being.  It spares Congress the burden of
making those vexing choices of which programs to

___________________(footnotes)

    15  As  Supreme Court further explained in J.W.
Hampton, Jr. & Co. v. United States, 276 U.S. 394, 407 (1928),
30 years later:

       Congress may feel itself unable conveniently to deter-
   mine exactly when its exercise of the legislative power
   should become effective, because dependent on future con-
    ditions, and it may leave the determination of such time to
    the decision of an executive, or, as often happens in mat-
    ters of state legislation, it may be left to a popular vote of
    the residents of a district to be affected by the legislation.
    While in a sense one may say that such residents are
    exercising legislative power, it is not an exact statement,
    because the power has  already  been  exercised legislatively
    by the body vested with that power under the Constitution,
    the condition of its legislation going into effect being made
    dependent by the legislature on the expression of the
    voters of a certain district.

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28a

preserve and which to cut.  Thus, by placing on itself
the "onus" of overriding the President's cancella-
tions, see H.R. Conf. Rep. No. 491, 104th Cong., 2d
Sess. at 16 (1996), Congress has turned the constitu-
tional division of responsibilities for legislating on its
head.  The Court therefore agrees with plaintiffs.  In
those Supreme Court cases which this Court finds
most instructive for its purposes, most notably
Chadha, the Supreme Court has repeatedly counseled
that when the Constitution  speaks to the matter, the
Constitution alone controls the way in which govern-
mental powers shall be exercised.  16.  The formalities of
the constitutional framework must be respected; the
several estates subject to it must function within the
spheres the Constitution allots to them.

        IV.

    In passing the Act, Congress and the President
addressed the significant problem of runaway spend-
ing, striving to create a more efficient process.  But
"the Framers ranked other values higher than effi-
ciency."  Chadha, 462 U.S. at 959.  As the Court
elaborated:

    With all the obvious flaws of delay, untidiness,
    and potential for abuse,  we have not yet found a
    better way to preserve freedom than by making
    the exercise of power subject to the carefully
    crafted restraints spelled out in the Constitu-
    tion. 

___________________(footnotes)

    16  See also Metropolitan Washington Airports Auth. v.
Citizens for the Abatement of Aircraft Noise, 501 U.S. 252
(1991); Bowsher v. Synar, 478 U.S. 714 (1986); cf. U.S. Term
Limits v. Thornton, 115 S. Ct. 1842 (1995).

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29a

Id.  Various legislative alternatives remain available
to give the President a more significant role in
restraining government spending.  For example, the
"expedited rescission" model favored by many
Members of the 104th Congress would retain the
President's role as a recommender of rescissions, see
U.S. Const. art. II, 3, and force Congress to vote on
such proposals.  And, of course, Congress remains
free to attempt passage of a constitutional amendment
if it determines that the President should have unilat-
eral revisionary power.
    For the foregoing reasons, it is, this 10th day of
April, 1997,
    ORDERED, that defendants' motion to dismiss the
complaint and motion for summary judgment are
denied; and it is
    FURTHER ORDERED, that plaintiffs' motion for
summary judgment is granted; and it is
    FURTHER ORDERED, that the Line Item Veto
Act, Pub. Law No. 104 -130, 110 Stat. 1200 (1996), is
adjudged and declared unconstitutional.

/s/ THOMAS PENFIELD JACKSON
THOMAS PENFIELD JACKSON
U.S. District Judge

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30a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 97-0001 (TPJ)

SENATOR ROBERT C. BYRD, ET AL.,
PLAINTIFFS

       v.

FRANKLIN D. RAINES, DIRECTOR, OFFICE OF
MANAGEMENT AND BUDGET, ET AL., DEFENDANTS

[Filed: Apr. 11,1997]

NOTICE OF APPEAL

    Franklin D. Raines, Director, Office of Manage-
ment and Budget, and Robert E. Rubin, Secretary of
the Treasury, defendants, appeal to the United States
Supreme Court from the Memorandum and Order
issued by this Court on April 10, 1997.

Respectfully submitted,

FRANK W. HUNGER
Assistant Attorney General

ERIC H. HOLDER, JR.,
United States Attorney

GARY G. GRINDLER
Deputy Assistant Attorney
  General

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31a

     DAVID J. ANDERSON
/s/ NEIL H. KOSLOWE
     NEIL H. KOSLOWE
        Special Litigation Counsel
        D.C. Bar No. 361792
/s/ADAM ISSENBERG
    ADAM ISSENBERG
       Trial Attorney
       Civil Division-Room 1036
       Department of Justice
       P. O. BOX 883
      Washington, D.C. 20044
      Telephone: (202) 514-3418
      Attorneys for Defendants

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        32a 

          APPENDIX C

    Public Law 104-130, 104th Congress
                                           An Act
    To give the President line item veto authority with
respect to appropriations, new direct spending, and
limited tax benefits

    Be it enacted by the Senate and House of Repre-
sentatives of the United States of America in Con-
gress assembled,

SECTION 1.  SHORT TITLE.

    This Act may be cited as the "Line Item Veto Act".

SEC. 2.  LINE ITEM VETO AUTHORITY.

    (a) IN GENERAL.-Title X of the Congressional
Budget and Impoundment Control Act of 1974 (2
U.S.C. 681 et seq.) is amended by adding at the end the
following  new  part:

        "PART C-LINE ITEM VETO
        
        "LINE ITEM VETO AUTHORITY

    "SEC. 1021.  (a) IN GENERAL. -Notwithstanding
the provisions of parts A and B, and subject to the
provisions of this part, the President may, with
respect to any bill or joint resolution that has been
signed into law pursuant to Article I, section 7, of the
Constitution of the United States, cancel in whole-

        "(1) any dollar amount of discretionary budget
    authority;
        
        "(2) any item of new direct spending; or

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        33a

        "(3) any limited tax benefit;

if the President  

        "(A) determines that such cancellation will -

                "(i)  reduce the Federal budget deficit;

               "(ii)  not impair any essential Govern-
       ment  function;  and

                "(iii)  not harm the national interest; and

        "(B) notifies the Congress of such cancellation
    by transmitting a special message, in accordance
    with section 1022, within five calendar days (ex-
    cluding Sundays) after the enactment of the law
    providing the dollar amount of discretionary bud-
    get authority, item of new direct spending, or
    limited tax benefit that was canceled.

    "(b) IDENTIFICATION OF CANCELLATIONS.-  In
identifying dollar amounts of discretionary budget
authority, items of new direct spending, and limited
tax benefits for cancellation, the President shall-

        "(1) consider the legislative history, construc-
    tion, and purposes of the law which contains such
    dollar amounts, items, or benefits;

        "(2) consider any specific sources of informa-
    tion referenced in such law or, in the absence of
    specific sources of information, the best available
    information; and

        "(3) use the definitions contained in section
    1026 in applying this part to the specific provisions
    of such law.

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        34a

    "(c)  EXCEPTION FOR DISAPPROVAL BILLS.-  The
authority granted by subsection (a) shall not apply to
any dollar amount of discretionary budget authority,
item of new direct spending, or limited tax benefit
contained in any law that is a disapproval bill as
defined in section 1026.

        "SPECIAL MESSAGES

    "SEC. 1022.  (a) IN GENERAL.-  For each law from
which a cancellation has been made under this part,
the President shall transmit a single special message
to the Congress. _

    "(b)  CONTENTS 
       
        "(1)  The special message shall specify-
  
            "(A)  the dollar amount of discretionary
    budget authority, item of new direct spending,
    or limited tax benefit which has been canceled,
    and provide a corresponding reference number
    for each cancellation;

            "(B)  the determinations required under
        section 1021(a), together with any supporting
        material;
    
"(C) the reasons for the cancellation;
"(D) to the maximum extent practicable,
 the estimated fiscal, economic, and budgetary
 effect of the cancellation;
 
"(E) all facts, circumstances and consid-
erations relating to or bearing upon the cancel-
lation, and to the maximum extent practicable,
the estimated effect of the cancellation upon

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        35a

the objects, purposes and programs for which
the canceled authority was provided; and

"(F) include the adjustments that will be
made pursuant to section 1024 to the discre-
tionary spending limits under section 601 and
an evaluation of the effects of those adjust-
ments upon the sequestration procedures of
section 251 of the Balanced Budget and Emer-
gency Deficit Control Act of 1985.

"(2) In the case of a cancellation of any dollar
amount of discretionary budget authority or item
of new direct spending, the special message shall
also include, if applicable-

"(A) any account, department, or establish-
ment of the Government for which such budget
authority was to have been available for obliga-
tion and the specific project or governmental
functions involved;

"(B) the specific States and congressional
districts, if any, affected by the cancellation;
and

"(C) the total number of cancellations im-
posed during the current session of Congress
of States and congressional districts identified
in subparagraph (B).

"(c) TRANSMISSION OF SPECIAL MESSAGES TO
HOUSE AND SENATE 

"(1) The President shall transmit to the
Congress each special message under this part
within five calendar days (excluding Sundays)

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36a

after enactment of the law to which the can-
cellation applies.  Each special message shall be
transmitted to the House of Representatives and
the  Senate on the same calendar day.  Such special
message shall be delivered to the Clerk of the
House of Representatives if the House is not in
session, and to the Secretary of the Senate if the
Senate is not in session.

"(2) Any special message transmitted under
this part shall be printed in the first issue of the
Federal Register published after such transmit-
tal.

"CANCELLATION EFFECTIVE UNLESS
DISAPPROVED

"SEC. 1023.  (a) IN GENERAL.-  The cancellation
of any dollar amount of discretionary budget author-
ity, item of new direct spending, or limited tax benefit
shall take effect upon receipt in the House of Rep-
resentatives and the Senate of the special message
notifying the Congress of the cancellation.  If a dis-
approval bill for such special message is enacted into
law, then all cancellations disapproved in that law
shall be null and void and any such dollar amount of
discretionary budget authority, item of new direct
spending, or limited tax benefit shall be effective as of
the original date provided in the law to which the
cancellation applied.

"(b) COMMENSURATE REDUCTIONS IN DISCRETION-
ARY BUDGET AUTHORITY.  -UPON the cancellation of a
dollar amount of discretionary budget authority
under subsection (a), the total appropriation for each
relevant account of which that dollar amount is a part

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37a

shall be simultaneously reduced by the dollar amount
of that cancellation.

"DEFICIT REDUCTION

"SEC. 1024.  (a) IN GENERAL.- 

"(1)  DISCRETIONARY BUDGET AUTHORITY. 
OMB shall, for each dollar amount of discretionary
budget authority and for each item of new direct
spending canceled from an appropriation law under
section 1021(a)-

"(A)  reflect the reduction that results
from such cancellation in the estimates re-
quired by section 251(a)(7) of the Balanced Bud-
get and Emergency Deficit Control Act of 1985
in accordance with the Act, including an esti-
mate of the reduction of the budget authority
and the reduction in outlays flowing from such
reduction of budget authority for each outyear;
and

"(B)  include a reduction to the discre-
tionary spending limits for budget authority
and outlays in accordance with the Balanced
Budget and Emergency Deficit Control Act of
1985 for each applicable fiscal year set forth
in section 601(a)(2) by amounts equal to the
amounts for each fiscal year estimated pur-
suant to subparagraph (A).

"(2)  DIRECT SPENDING AND LIMITED TAX
BENEFITS.-  (A) OMB shall, for each item of new
direct spending or limited tax benefit canceled
from a law under section 1021(a), estimate the defi-
cit decrease caused by the cancellation of such

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38a

item or benefit in that law and include such esti-
mate as a separate entry in the report prepared
pursuant to section 252(d) of the Balanced Budget
and Emergency Deficit Control Act of 1985.

"(B)  OMB shall not include any change in the
deficit resulting from a cancellation of any item of
new direct spending or limited tax benefit, or the
enactment of a disapproval bill for any such
cancellation, under this part in the estimates and
reports required by sections 252(b) and 254 of the
Balanced Budget and Emergency Deficit Control
Act of 1985.

"(b)  ADJUSTMENTS TO SPENDING LIMITS.-  After
ten calendar days (excluding Sundays) after the
expiration of the time period in section 1025(b)(l) for
expedited congressional consideration of a disapproval
bill for a special message containing a cancellation of
discretionary budget authority, OMB shall make the
reduction included in subsection (a)(l)(B) as part of
the next sequester report required by section 254 of
the Balanced Budget and Emergency Deficit Control
Act of 1985.

"(c)  EXCEPTION.  -Subsection (b) shall not apply to
a cancellation if a disapproval bill or other law that
disapproves that cancellation is enacted into law prior
to 10 calendar days (excluding Sundays) after the
expiration of the time period set forth in section
1025(b)(1).

"(d)  CONGRESSIONAL BUDGET OFFICE ESTI-
MATES.-  AS soon as practicable after the President
makes a cancellation from a law under section 1021(a),
the Director of the Congressional Budget Office shall
provide the Committees on the Budget of the House of

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39a

Representatives and the Senate with an estimate of
the reduction of the budget authority and the reduc-
tion in outlays flowing from such reduction of budget
authority for each outyear.

"EXPEDITED  CONGRESSIONAL  CONSIDERATION OF
DISAPPROVAL BILLS

"SEC. 1025.  (a)  RECEIPT AND REFERRAL OF SPE-
CIAL MESSAGE.-  Each special message transmitted
under this part shall be referred to the Committee on
the Budget and the appropriate committee or com-
mittees of the Senate and the Committee on the
Budget and the appropriate committee or committees
of the House of Representatives.  Each such message
shall be printed as a document of the House of
Representatives.

"(b)  TIME PERIOD FOR EXPEDITED PROCEDURES 

"(1)  There shall be a congressional review
period of 30 calendar days of session, beginning
on the first calendar day of session after the date
on which the special message is received in the
House of Representatives and the Senate, during
which the procedures contained in this section
shall apply to both Houses of Congress.

"(2)  In the House of Representatives the pro-
cedures set forth in this section shall not apply
after the end of the period described in paragraph
(l).

"(3)  If Congress adjourns at the end of a Con-
gress prior to the expiration of the period de-
scribed in paragraph (1) and a disapproval bill was
then pending in either House of Congress or a
committee thereof (including a conference com-

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40a

mittee of the two Houses of Congress), or was
pending before the President, a disapproval bill for
the same special message may be introduced with-
in the first five calendar days of session of the
next Congress and shall be treated as a dis-
approval bill under this part, and the time period
described in paragraph (1) shall commence on the
day of introduction of that  disapproval  bill.

"(c)  INTRODUCTION OF DISAPPROVAL BILLS.-  (1)
In order for a disapproval bill to be considered under
the procedures set forth in this section, the bill must
meet the definition of a disapproval bill and must be
introduced no later than the fifth calendar day of
session following the beginning of the period de-
scribed in subsection (b)(l).

"(2)  In the case of a disapproval bill introduced in
the House of Representatives, such bill shall include
in the first blank space referred to in section
1026(6)(C) a list of the reference numbers for all
cancellations made by the President in the special
message to which  such disapproval   bill relates.

"(d)  CONSIDERATION IN  THE  HOUSE OF REPRESENTA-
TIVES.-  (1)  Any committee of the House of Repre-
sentatives to which a disapproval bill is referred shall
report it without amendment, and with or without
recommendation, not later than the seventh calendar
day of session after the date of its introduction.  If any
committee fails to report the bill within that period, it
is in order to move that the House discharge the
committee from further consideration of the bill,
except that such a motion may not be made after the
committee has reported a disapproval bill with respect
to the same special message.  A motion to discharge
may be made only by a Member favoring the bill (but

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41a

only at a time or place designated by the Speaker in
the legislative schedule of the day after the calendar
day on which the Member offering the motion an-
nounces to the House his intention to do so and the
form of the motion).  The motion is highly privileged.
Debate thereon shall be limited to not more than one
hour, the time to be divided in the House equally be-
tween a proponent and an opponent.  The previous
question shall be considered as ordered on the motion
to its adoption without intervening motion.  A motion
to reconsider the vote by which the motion is agreed
to or disagreed to shall not be in order.

"(2)  After a disapproval bill is reported or a
committee has been discharged from further consid-
eration, it is in order to move that the House resolve
into the Committee of the Whole House on the State
of the Union for consideration of the bill.  If reported
and the report has been available for at least one
calendar day, all points of order against the bill and
against consideration of the bill are waived.  If
discharged, all points of order against the bill and
against consideration of the bill are waived.  The
motion is highly privileged.  A motion to reconsider
the vote by which the motion is agreed to or disagreed
to shall not be in order.  During consideration of the
bill in the Committee of the Whole, the first reading
of the bill shall be dispensed with.  General debate
shall proceed, shall be confined to the bill, and shall
not exceed one hour equally divided and controlled by
a proponent and an opponent of the bill.  The bill shall
be considered as read for amendment under the five-
minute rule.  Only one motion to rise shall be in
order, except if offered by the manager.  No amend-
ment  to  the  bill is  in order, except any  Member if  sup-

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42a

ported by 49 other Members (a quorum being present)
may offer an amendment striking the reference
number or numbers of a cancellation or cancellations
from the bill.  Consideration of the bill for amendment
shall not exceed one hour excluding time for recorded
votes and quorum calls.  No amendment shall be sub-
ject to further amendment, except pro forma amend-
ments for the purposes of debate only.  At the con-
clusion of the consideration of the bill for amendment,
the Committee shall rise and report the bill to the
House with such amendments as may have been
adopted.  The previous question shall be considered as
ordered on the bill and amendments thereto to final
passage without intervening motion.  A motion to
reconsider the vote on passage of the bill shall not be
in order.

"(3)  Appeals from decisions of the Chair re-
garding application of the rules of the House of Rep-
resentatives to the procedure relating to a dis-
approval bill shall be decided without debate.

"(4)  It shall not be in order to consider under this
subsection more than one disapproval bill for the same
special message except for consideration of a similar
Senate bill (unless the House has already rejected a
disapproval bill for the same-special message] or more
than one motion to discharge described in paragraph
(1)  with respect to a disapproval bill for that special
message.

"(e)  CONSIDERATION IN THE SENATE.-  

"(1)  REFERRAL AND REPORTING.-  Any disap-
proval bill introduced in the Senate shall be
referred to the appropriate committee or commit-
tees.  A committee to which a disapproval bill has

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43a

been referred shall report the bill not later than
the seventh day of session following the date of
introduction of that bill.  If any committee fails to
report the bill within that period, that committee
shall be automatically discharged from further
consideration of the bill and the bill shall be placed
on the Calendar.

"(2)  DISAPPROVAL BILL  FROM  HOUSE.-  When
the Senate receives from the House of Rep-
resentatives a disapproval bill, such bill shall not
be referred to committee and shall be placed on the
Calendar.

"(3)  CONSIDERATION OF SINGLE DISAPPROVAL
BILL.-  After the Senate has proceeded to the
consideration of a disapproval bill for a special
message, then no other disapproval bill originating
in that same House relating to that same message
shall be subject to the procedures set forth in this
subsection.

"(4)  AMENDMENTS.- 

"(A)  AMENDMENTS IN ORDER.-  The only
amendments in order to a disapproval bill are-

"(i)  an amendment that strikes the
reference number of a cancellation from
the disapproval bill; and

"(ii)  an amendment that only inserts
the reference number of a cancellation in-
cluded in the special message to which the
disapproval bill relates that is not already
contained in such bill.

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44a

"(B)  WAIVER OR APPEAL.-  An affirmative
vote of three-fifths of the Senators, duly chosen
and sworn, shall be required in the Senate-

"(i)  to waive or suspend this para-
graph; or

"(ii)  to sustain an appeal of the
ruling of the Chair on a point of order
raised under this paragraph.

"(5)  MOTION NONDEBATABLE.-  A motion to
proceed to consideration of a disapproval bill under
this subsection shall not be debatable.  It shall not
be in order to move to reconsider the vote by which
the motion to proceed was adopted or rejected,
although subsequent motions to proceed may be
made under this paragraph.

"(6)  LIMIT ON CONSIDERATION.-  (A)  After no
more than 10 hours of consideration of a dis-
approval bill, the Senate shall proceed, without
intervening action or debate (except as permitted
under paragraph (9)), to vote on the final disposi-
tion thereof to the exclusion of all amendments not
then pending and to the exclusion of all motions,
except a motion to reconsider or to table.

"(B)  A single motion to extend the time for
consideration under subparagraph (A) for no more
than an additional five hours is in order prior to
the expiration of such time and shall be decided
without debate.

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45a

"(C)  The time for debate on the disapproval bill
shall be equally divided between the Majority
Leader and the Minority Leader or their desig-
nees.

"(7)  DEBATE ON AMENDMENTS.-  Debate on any
amendment to a disapproval bill shall be limited to
one hour, equally divided and controlled by the
Senator proposing the amendment and the major-
ity manager, unless the majority manager is in
favor of the amendment, in which case the minor-
ity manager shall be in control of the time in
opposition.

"(8)  NO MOTION TO RECOMMIT.-  A motion to
recommit a disapproval bill shall not be in order.

"(9)  DISPOSITION OF SENATE DISAPPROVAL
BILL.-  If the Senate has read for the third time a
disapproval bill that originated in the Senate, then
it shall be in order at any time thereafter to move
to proceed to the consideration of a disapproval bill
for the same special message received from the
House of Representatives and placed on the
Calendar pursuant to paragraph (2), strike all
after the enacting clause, substitute the text of
the Senate disapproval bill, agree to the Senate
amendment, and vote on final disposition of the
House disapproval bill, all without any intervening
action or debate.

"(10)  CONSIDERATION OF HOUSE MESSAGE.- 
Consideration in the Senate of all motions, amend-
ments, or appeals necessary to dispose of a mes-
sage from the House of Representatives on a

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46a

disapproval bill shall be limited to not more than
four hours.  Debate on each motion or amendment
shall be limited to 30 minutes.  Debate on any
appeal or point of order that is submitted in con-
nection with the disposition of the House message
shall be limited to 20 minutes.  Any time for debate
shall be equally divided and controlled by the
proponent and the majority manager, unless the
majority manager is a proponent of the motion,
amendment, appeal, or point of order, in which case
the minority manager shall be in control of the
time in opposition.

"(f)  CONSIDERATION IN CONFERENCE.- 

"(1)  CONVENING OF CONFERENCE.-  In the case
of disagreement between the two Houses of Con-
gress with respect to a disapproval bill passed
by both Houses, conferees should be promptly ap-
pointed and a conference promptly convened, if
necessary.

"(2)  HOUSE CONSIDERATION.-  (A)  Notwith-
standing any other rule of the House of Repre-
sentatives, it shall be in order to consider the
report of a committee of conference relating to a
disapproval bill provided such report has been
available for one calendar day (excluding Satur-
days, Sundays, or legal holidays, unless the House
is in session on such a day) and the accompanying
statement shall have been filed in the House.

"(B)  Debate in the House of Representatives
on the conference report and any amendments in
disagreement on any disapproval bill shall each be
limited to not more than one hour equally divided

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47a

and controlled by a proponent and an opponent.  A
motion to further limit debate is not debatable.  A
motion to recommit the conference report is not in
order, and it is not in order to move to reconsider
the vote by which the conference report is agreed
to or disagreed to.

"(3)  SENATE CONSIDERATION.-  Consideration
in the Senate of the conference report and any
amendments in disagreement on a disapproval bill
shall be limited to not more than four hours
equally divided and controlled by the Majority
Leader and the Minority Leader or their desig-
nees.  A motion to recommit the conference report
is not in order.

"(4)  LIMITS ON SCOPE.-  (A)  When a disagree-
ment to an amendment in the nature of a substi-
tute has been referred to a conference, the confer-
ees shall report those cancellations that were
included in both the bill and the amendment, and
may report a cancellation included in either the
bill or the amendment, but shall not include any
other matter.

"(B)  When a disagreement on an amendment or
amendments of one House to the disapproval bill of
the other House has been referred to a committee
of conference, the conferees shall report those
cancellations upon which both Houses agree and
may report any or all of those cancellations upon
which there is disagreement, but shall not include
any other matter.

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48a

        "DEFINITIONS

"SEC. 1026.  As used in this part:

"(l)  APPROPRIATION LAW.-  The term `appropria-
tion law' means an Act referred to in section 105 of
title 1, United States Code, including any general or
special appropriation Act, or any Act making sup-
plemental, deficiency, or continuing appropriations,
that has been signed into law pursuant to Article I,
section 7, of the Constitution of the United States.

"(2)  CALENDAR DAY.-  The term 'calendar day'
means a standard 24-hour period beginning a mid-
night.

"(3)  CALENDAR DAYS OF SESSION.-  The term 'cal-
endar days of  session' shall mean only those days on
which both Houses of  Congress  are  in session.

"(4)  CANCEL.-  The term 'cancel' or 'cancellation'
means-

"(A)  with respect to any dollar amount of
discretionary budget authority, to rescind;

"(B)  with respect to any item of new direct
spending-

"(i)  that is budget authority provided
by law (other than an appropriation law), to
prevent such budget authority from having
legal force or effect;

"(ii)  that is entitlement authority, to
prevent the specific legal obligation of the
United States from having legal force or
effect; or

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49a

"(iii)  through the food stamp program,
to prevent the specific provision of law that
results in an increase in budget authority or
outlays for that program from having legal
force or effect; and

"(C)  with respect to a limited tax benefit, to
prevent the specific provision of law that provides
such benefit from having legal force of effect.

"(5)  DIRECT SPENDING.-  The term 'direct spend-
ing' means-

"(A)  budget authority provided by law (other
than an appropriation law);

"(B)  entitlement authority and

"(C)  the food stamp program.

"(6)  DISAPPROVAL BILL.-  The term 'disapproval
bill' means a bill or joint resolution which only
disapproves one or more cancellations of dollar
amounts of discretionary budget authority, items of
new direct spending, or limited tax benefits in a
special message transmitted by the President under
this part and-

"(A)  the title of which is as follows:  'A bill
disapproving the cancellations transmitted by the
President on _, the blank space being filled in
with the date of transmission of the relevant
special message and the public law number to
which the message relates;

"(B)  which does not have a preamble; and

"(C)  which provides only the following after
the enacting clause:  'That Congress disapproves of

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50a

cancellations _', the blank space being filled in
with a list by reference number of one or more
cancellations contained in the President's special
message, 'as transmitted by the President in a
special message on -' , the blank space being filled
in with the appropriate date, `regarding _.', the
blank space being filled in with the public law
number to which the special message relates.

"(7)  DOLLAR AMOUNT OF DISCRETIONARY BUDGET
AUTHORITY.-  (A)  Except as provided in subparagraph
(B), the term 'dollar amount of discretionary budget
authority' means the entire dollar amount of budget
authority-

"(i)  specified in an appropriation law, or the
entire dollar amount of budget authority required
to be allocated by a specific proviso in a appropria-
tion law for which a specific dollar figure was not
included;

"(ii)  represented separately in any table,
chart, of explanatory text included in the state-
ment of managers or the governing committee
report accompanying such law;

"(iii)  required to be allocated for a specific
program, project, or activity in a law (other than
an appropriation law) that mandates the expendi-
ture of budget authority from accounts, programs,
projects, or activities for which budget authority
is provided in an appropriation law;

"(iv)  represented by the product of the esti-
mated procurement cost and the total quantity of
items specified in an appropriation law or included

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        51a

in the statement of managers or the governing
committee  report  accompanying  such law; and

"(v)  represented by the product of the
estimated procurement cost and the total quantity
of items required to be provided in a law (other
than an appropriation law) that mandates the
expenditure of budget authority from accounts,
programs, projects, or activities for which budget
authority is provided in an appropriation law.

"(B)  The term 'dollar amount of discretionary
budget authority' does not include-

"(i)  direct spending

"(ii)  budget authority in an appropriation
law which funds direct spending provided for in
other law;

"(iii)  any existing budget authority re-
scinded or  canceled  in  an  appropriation  law or

"(iv)  any restriction, condition, or limitation
in an appropriation law or the accompanying state-
ment of managers or committee reports on the
expenditure of budget authority for an account,
program, project, or activity, or on activities in-
volving such expenditure.

"(8)  ITEM OF NEW DIRECT SPENDING.-  The term
'item of new direct spending' means any specific
provision of law that is estimated to result in an
increase in budget authority or outlays for direct
spending relative to the most recent levels calculated
pursuant to section 257 of the Balanced Budget and
Emergency Deficit Control Act of 1985.

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        52a

"(9)  LIMITED TAX BENEFIT.-  (A)  The term 'limited
tax benefit' means-

"(i)  any revenue-losing provision which
provides a Federal tax deduction, credit, exclusion,
or preference to 100 or fewer beneficiaries under
the Internal Revenue Code of 1986 in any fiscal
year for which the provision is in effect; and

"(ii)  any Federal tax provision which pro-
vides temporary or permanent transitional relief
for 10 or fewer beneficiaries in any fiscal year
from a change to the Internal Revenue Code of
1986.

"(B)  A provision shall not be treated as described
in subparagraph (A)(i) if the effect of that provision is
that- 

"(i)  all persons in the same industry or
engaged in the same type of activity receive the
same treatment;

"(ii)  all persons owning the same type of
property, or issuing the same type of investment,
receive the same treatment; or

"(iii)  any difference in the treatment of
persons is based solely on-

"(I)  in the case of businesses and
associations, the size or form of the business
or  association  involved;

"(II)  in the case of individuals, general
demographic conditions, such as income,
marital status, number of dependents, or tax
return filing status;

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53a

"(III)  the amount involved; or

"(IV)  a generally-available election un-
der the Internal Revenue Code of 1986.

"(C)  A provision shall not be treated as described
in subparagraph (A)(ii) if-

"(i)  it provides for the retention of prior law
with respect to all binding contracts or other
legally enforceable obligations in existence on a
date contemporaneous with congressional action
specifying such date; or

"(ii)  it is a technical correction to previ-
ously enacted legislation that is estimated to have
no revenue effect.

"(D)  For purposes of subparagraph (A)-

"(i)  all businesses and associations which
are related within the meaning of sections 707(b)
and 1563(a) of the Internal Revenue Code of 1986
shall be treated as a single beneficiary;

"(ii)  all qualified plans of an employer shall
be treated as a single beneficiary;

"(iii)  all holders of the same bond issue shall
be treated as a single beneficiary, and

"(iv)  if a corporation, partnership, associa-
tion, trust or estate is the beneficiary of a provi-
sion, the shareholders of the corporation, the part-
ners of the partnership, the members of the asso-
ciation, or the beneficiaries of the trust or estate
shall not also be treated as beneficiaries of such
provision.

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        54a

"(E)  For purposes of this paragraph, the term
'revenue-losing provision' means any provision which
results in a reduction in Federal tax revenues for any
one of the two following periods-

"(i)  the first fiscal year for which the pro-
vision is effective; or

"(ii)  the period of the 5 fiscal years begin-
ning with the first fiscal year for which the pro-
visions is effective.

"(F)  The terms used in this paragraph shall have
the same meaning as those terms have generally in
the Internal Revenue Code of 1986, unless otherwise
expressly provided.

"(10)  OMB.-  The term 'OMB' means the Director
of the Office of Management and Budget.

"IDENTIFICATION OF LIMITED TAX BENEFITS

"SEC. 1027.  (a)  STATEMENT BY JOINT TAX COM-
MITTEE.-  The Joint Committee on Taxation shall re-
view any revenue or reconciliation bill or joint resolu-
tion which includes any amendment to the Internal
Revenue Code of 1986 that is being prepared for filing
by a committee of conference of the two Houses, and
shall identify whether such bill or joint resolution
contains any limited tax benefits.  The Joint Commit-
tee on Taxation shall provide to the committee of
conference a statement identifying and such limited
tax benefits or declaring that the bill or joint
resolution does not contain any limited tax benefits.
Any such statement shall be made available to any
Member of Congress by the Joint Committee on
Taxation immediately upon request.

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55a

"(b)  STATEMENT INCLUDED IN LEGISLATION.-  (1)
Notwithstanding any other rule of the House of
Representatives or any rule or precedent of the
Senate, any revenue or reconciliation bill or joint
resolution which includes any amendment to the
Internal Revenue Code of 1986 reported by a com-
mittee of conference of the two Houses may include,
as a separate section of such bill or joint resolution,
the information contained in the statement of the
Joint Committee on Taxation, but only in the manner
set forth in paragraph (2)

"(2)  The separate section permitted under para-
graph (1) shall read as follows:  'Section 1021(a)(3) of
the Congressional Budget and Impoundment Control
Act of 1974 shall _ apply to _.', with the blank
spaces being filled in with-

"(A)  in any case in which the Joint Com-
mittee on Taxation identifies limited tax benefits
in the statement required under subsection (a),
the word 'only' in the first blank space and a list of
all of the specific provisions of the bill or joint
resolution identified by the Joint Committee on
Taxation in such statement in the second blank
space; or

"(B)  in any case in which the Joint Com-
mittee on Taxation declares that there are no
limited tax benefits in the statement required
under subsection (a), the word 'not' in the first
blank space and the phrase 'any provision of this
Act' in the second blank space.

"(c)  PRESIDENT'S AUTHORITY.-  If any revenue or
reconciliation bill or joint resolution is signed into

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        56a

law pursuant to Article I, section 7, of the Con-
stitution of  the United States-

"(1)  with a separate section described in sub-
section (b)(2), then the President may use the
authority granted in section 1021(a)(3) only to
cancel any limited tax benefit in that law, if any,
identified  in such separate section; or

"(2)  without a separate section described in
subsection (b)(2), then the President may use the
authority granted in section 1021(a)(3) to cancel
any limited tax benefit in that law that meets the
definition in section 1026.

"(d)  CONGRESSIONAL IDENTIFICATION OF LIMITED
TAX BENEFITS.-  There shall be no judicial review of
the congressional identification under subsection (a)
and (b) of a limited tax benefit in a conference
report.".

SEC. 3. JUDICIAL REVIEW.

(a)  EXPEDITED REVIEW.- 

(1)  Any Member of Congress or any individual
adversely affected by part C of title X of the
Congressional Budget and Impoundment Control
Act of 1974 may bring an action, in the United
States District Court for the District of Colum-
bia, for declaratory judgment and injunctive relief
on the ground that any provision of this part
violates the Constitution.

(2)  A copy of any complaint in an action
brought under paragraph (1) shall be promptly
delivered to the Secretary of the Senate and the
Clerk of the House of Representatives, and each

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57a

House of Congress shall have the right to inter-
vene in such action.

(3)  Nothing in this section or in any other law
shall infringe upon the right of the House of
Representatives to intervene in an action brought
under paragraph (1) without the necessity of
adopting a resolution to authorize such interven-
tion.

(b)  APPEAL TO SUPREME COURT.-  Notwithstand-
ing any other provision of law, any order of the
United States District Court for the District of
Columbia which is issued pursuant to an action
brought under paragraph (1) of subsection (a) shall be
reviewable by appeal directly to the Supreme Court of
the United States.  Any such appeal shall be taken by
a notice of appeal filed within 10 calendar days after
such order is entered; and the jurisdictional state-
ment shall be filed within 30 calendar days after such
order is entered.  No stay of an order issued pursuant
to an action brought under paragraph (1) of subsection
(a) shall be issued by a single Justice of the Supreme
Court.

(c)  EXPEDITED CONSIDERATION.-  It shall be the
duty of the District Court for the District of Colum-
bia and the Supreme Court of the United States to
advance on the docket and to expedite to the greatest
possible extent the disposition of any matter brought
under subsection (a).

SEC. 4.  CONFORMING AMENDMENTS.

(a)  SHORT TITLES.-  Section l(a) of the Con-
gressional Budget and Impoundment Control Act of
1974 is amended by-

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58a

(1)  striking "and" before "title X" and in-
serting a period;

(2)  inserting "Parts A and B of" before "title
X"; and

(3)  inserting at the end the following new
sentence:  "Part C of title X may be cited as the
'Line Item Veto Act of 1996'.".

(b)  TABLE OF CONTENTS.-  The table of Contents
set forth in section l(b) of the Congressional Budget
and Impoundment Control Act of 1974 is amended by
adding at the end the following:

"PART C-LINE ITEM VETO

"Sec. 1021.  Line item veto authority.
"Sec. 1022.  Special messages.
"Sec. 1023.  Cancellation effective unless  disap-
proved.
"Sec. 1024.  Deficit reduction.
"Sec. 1025.  Expedited congressional consideration
of disapproval bills.
"Sec. 1026.  Definitions.
"Sec. 1027.  Identification of limited tax benefits.".

(c)  EXERCISE OF RULEMAKING POWERS.-  Section
904(a) of the Congressional Budget Act of 1974 is
amended by striking "and 1017" and inserting ", 1017,
1025, and 1027".

SEC. 5.  EFFECTIVE DATES.

This Act and the amendments made by it shall
take effect and apply to measures enacted on the
earlier of-

(1)  the day after the enactment into law,
pursuant to Article I, section 7, of the Constitu-

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59a

tion of the United States, of an Act entitled "An
Act to provide for a seven-year plan for deficit
reduction  and  achieve a balanced Federal budget.";
or

(2)  January 1, 1997;
and shall have no force or effect on or after January 1,
2005.

Approved April 9,1996.

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