S. HRG. 109–650

S. 2381, A BILL TO AMEND THE CONGRESSIONAL BUDGET AND IMPOUNDMENT CONTROL ACT OF 1974 TO PROVIDE LINE ITEM RESCISSION AUTHORITY

HEARINGS

BEFORE THE

COMMITTEE ON THE BUDGET 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

May 2, 2006—S. 2381, A BILL TO AMEND THE CONGRESSIONAL BUDGET AND IMPOUNDMENT CONTROL ACT OF 1974 TO PROVIDE LINE 

ITEM RESCISSION AUTHORITY

(

Printed for the use of the Committee on the Budget 

S. 2381, A BILL TO AMEND THE CONGRESSIONAL BUDGET AND IMPOUNDMENT CONTROL ACT OF 1974

TO PROVIDE LINE ITEM RESCISSION AUTHORITY

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28–460pdf 2006

S. HRG. 109–650

S. 2381, A BILL TO AMEND THE CONGRESSIONAL BUDGET AND IMPOUNDMENT CONTROL ACT OF 1974 TO PROVIDE LINE ITEM RESCISSION AUTHORITY

HEARINGS

BEFORE THE

COMMITTEE ON THE BUDGET 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

May 2, 2006—A BILL TO AMEND THE CONGRESSIONAL BUDGET AND 

IMPOUNDMENT CONTROL ACT OF 1974 TO PROVIDE LINE ITEM 

RESCISSION AUTHORITY

(

ii

COMMITTEE ON THE BUDGET 

JUDD GREGG, New Hampshire, Chairman 

PETE V. DOMENICI, New Mexico 

CHARLES E. GRASSLEY, Iowa 

WAYNE ALLARD, Colorado 

MICHAEL ENZI, Wyoming 

JEFF SESSIONS, Alabama 

JIM BUNNING, Kentucky 

MIKE CRAPO, Idaho 

JOHN ENSIGN, Nevada 

JOHN CORNYN, Texas 

LAMAR ALEXANDER, Tennessee 

LINDSEY O. GRAHAM, South Carolina 

KENT CONRAD, North Dakota 

PAUL S. SARBANES, Maryland 

PATTY MURRAY, Washington 

RON WYDEN, Oregon 

RUSSELL D. FEINGOLD, Wisconsin 

TIM JOHNSON, South Dakota 

ROBERT C. BYRD, West Virginia 

BILL NELSON, Florida 

DEBBIE STABENOW, Michigan 

JON S. CORIZINE, New Jersey 

SCOTT GUDES, Majority Staff Director 

MARY NAYLOR, Staff Director 

iii

C O N T E N T S 

HEARINGS 

Page 

May 2, 2006—S. 2381, A Bill to Amend the Congressional Budget and Impoundment Control Act of 1974 to Provide Line Item Rescission Authority .. 1

STATEMENTS BY COMMITTEE MEMBERS 

Chairman Gregg ...................................................................................................... 1

Senator Conrad ........................................................................................................ 2

WITNESSES 

Panel One

Senator Byrd ............................................................................................................12, 17

Panel Two

Cooper, Charles J., Cooper & Kirk PLLC ..............................................................58, 61

Fisher, Louis, Specialist at the Law Library, Library of Congress .....................77, 80

Marron, Donald B., Acting Director, Congressional Budget Office .....................49, 52

Smythe, Austin, Acting Deputy Director, Office of Management and Budget ...30, 32

ADDITIONAL STATEMENTS SUBMITTED 

Senator Enzi ............................................................................................................. 95

(1)

S. 2381, A BILL TO AMEND THE CONGRESSIONAL BUDGET AND IMPOUNDMENT CONTROL ACT OF 1974 TO PROVIDE LINE ITEM 

RESCISSION AUTHORITY 

TUESDAY, MAY 2, 2006

U.S. SENATE, 

COMMITTEE ON THE BUDGET, 

Washington, DC. 

The committee met, pursuant to notice, at 9:38 a.m., in room 

SD–608, Dirksen Senate Office Building, Hon. Judd Gregg, chairman of the committee, presiding. 

Present: Senators Gregg, Allard, Sessions, Bunning, Ensign, Alexander, Conrad, Sarbanes, Murray, Byrd, and Menendez. 

Staff present: Scott Gudes, Majority Staff Director; and Jim 

Hearn, director of federal programs and budget process. 

Mary Naylor, Staff Director for the Minority; and Lisa 

Konwinski, Counsel. 

OPENING STATEMENT OF CHAIRMAN JUDD GREGG 

Chairman GREGG. We understand that Senator Byrd is on his 

way, but in order to expedite the hearing, because there is going 

to be a vote here at 10:45 and we have a number of excellent witnesses, we want to make sure everybody has an adequate amount 

of time. Why don’t Senator Conrad and I make our opening statements and then hopefully Senator Byrd will be here by then. 

This hearing today is about the proposal of the Administration 

relative to what I call fast track rescission. Some people have called 

it line item veto. I do not think that is a proper title for it. Some 

people have called it impoundment. That certainly should not be 

the proper title for it. It should not be impoundment. 

But rather it is a proposal where basically the executive branch 

would say to the legislative branch here are some spending items, 

take another look at them and see whether or not you want to go 

forward with them. 

It is a proposal which, in concept, is an excellent idea. The fact 

is we need as a Government, to have different avenues to review 

spending and how we are spending the taxpayers dollars and be 

sure that we are doing it correctly and that those dollars are being 

spent appropriately. 

We know that as a Government we have a very serious problem 

with the deficit. We have a very serious problem with spending too 

much money, money that we do not have. And so anything that inserts into the process an opportunity to take another look at how 

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much money we are spending, where we are spending it, and how 

we are spending it, and gives us an opportunity to review that in 

a constructive way is something that we should seriously consider. 

Obviously, the main issue here is the balance of power between 

the executive branch and the legislative branch. The legislative 

branch correctly has tremendous concern and a desire to maintain 

its authority over the purse. That is the key authority of the legislative branch, and transferring that authority to the executive 

branch in any significant way would be inappropriate. 

However, the proposal as it has come forward, if it were adjusted, in my opinion, in a number of substantive but not dramatic 

ways, does not represent, in my opinion, a dramatic shift in authority away from the Legislative to the Executive but rather, as I say, 

gives the Executive the chance to ask the legislative branch do you 

really want to spend this money and gives us the opportunity in 

the legislative branch to say either yes or no. And there are ways 

to do that which I think avoid the issue of impoundment, which is 

not appropriate, or the issue of line item veto which, although appropriate, is not constitutional unless the Constitution were 

amended. 

And so this fast track rescission proposal which the Administration has sent up is something we need to take a very serious look 

at. And I happen to think we should be able to put it in a form 

that the legislative branch will be comfortable with. 

We have excellent witnesses today on this point. Of course, Senator Byrd, when he arrives, is the leading authority in the Senate, 

if not in the country, on the issue of the prerogative of the Senate. 

I am sure he will have some very strong views on this proposal and 

we will look forward to hearing them. 

We have the Acting CBO Director here and the acting Deputy 

Director of OMB here, and a number of experts to give just their 

thoughts. 

So at this point I would yield to the Senator from North Dakota, 

the Ranking Member, for his thoughts. 

OPENING STATEMENT OF RANKING MEMBER KENT CONRAD 

Senator CONRAD. Thank you very much, Mr. Chairman. And 

thank you for holding this important hearing. 

This is an area where we have very different views. I think it 

would be a profound mistake to adopt this proposal. The proposal 

that the President has made is not the answer to our budget problems. It would likely have little impact on the deficit but would significantly shift power from the legislative branch to the executive 

branch. 

The fact is under this Administration the deficits have skyrocketed, the debt is exploding. And that is because there simply 

has not been the will to put a fiscal policy in place to prevent those 

occurrences. 

Let me go to the first chart.

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This is what has happened to the budget deficit under this President. We have had three of the largest deficits in our country’s history.


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The explosion of the debt is even more serious. 

Instead of paying down debt in preparation for the retirement of 

the baby boom generation, which the President promised, the debt 

has exploded. At the end of his first year, the debt was $5.8 trillion. 

It is headed for $11.8 trillion if the budget that is before Congress 

now is adopted. 

If that five-year plan is endorsed, we now anticipate that the 

debt will be $11.8 trillion by the end of 2011. 


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The debt is increasing by more than $600 billion a year, every 

year over the next five years. 

The President’s line item rescission proposal cannot replace a 

real commitment to reducing the deficit. Acting CBO Director Marron, who is one of our witnesses today, has noted that the proposal 

is unlikely to greatly affect the budget’s bottom line.

In testimony before the House Rules Committee he said, and I 

qoute, ‘‘such tools, however, cannot establish fiscal discipline unless 

there is a politcal consensus to do so. In the absence of that conVerDate 0ct 09 2002 13:28 Jan 23, 2007 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6601 C:\DOCS\28460.TXT SBUD1 PsN: TISH

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sensus, the proposed changes to the rescission process are unlikely 

to greatly affect the budget’s botton line.’’

A recent editorial in USA Today made essentially the same point. 

The President’s proposal is not the answer to our budget problem. 

The editorial stated, and I quote, ‘‘The line item veto is a convenient distraction. The vast bulk of the deficit is not the result of selfaggrandizing line items, infuriating as they are. The deficit is primarily caused by the unwillingness to make hard choices on benefit 

programs or to levy the taxes to pay for the true cost of Government.’’

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Many analysts have noted that the primary result of the President’s proposal would be to shift power from the Legislative to the 

executive branch. Columnist George Will wrote the following in a 

recent column in the Washington Post, and I quote, ‘‘It would aggravate the imbalance in our Constitutional system that has been 

growing for seven decades: the expansion of executive power at the 

expense of the Legislature.’’


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Let me just conclude by saying here are the problems that I see 

with the President’s proposal. One, it fundamentally shifts the balance of power between the Legislative and executive branches. 

Two, it requires Congress to vote on the president’s proposal 

within 10 days. 

Three, it provides no opportunity to amend or filibuster proposed 

rescissions. 

Four, it allows the president to withhold funds for 180 days even 

if Congress disapproves of the rescission with a vote. 


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Five, it allows the president to propose an unlimited number of 

rescissions at any time. 

Six, it allows the president to resubmit the same rescission again 

and again. 

Seven, it allows the president to cancel or modify mandatory 

spending proposals passed by Congress. If that is not an egregious, 

egregious expansion of executive power, I do not know what is. 

And eighth, the tax provisions are narrowly drawn, allowing the 

president to rescind only those tax measures affecting fewer than 

100 people, while the spending provisions are broadly drawn, allowing the president to rescind any spending increase.

10


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Instead of this proposal, the President should be focused on fundamentally changing the failed fiscal policies he has embraced 

since taking office. That is the only way we are going to put our 

fiscal house back in order. 

With that, I very much look forward to the testimony of our witnesses, especially the testimony of our esteemed colleague, Senator 

Byrd, who is one of the most knowledgeable individuals in the 

country on the Constitution and the rules of the U.S. Senate. 

I thank the Chair. 


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Chairman GREGG. Thank you, Senator. 

We will now turn to Senator Byrd. We appreciate his testimony 

today. As was mentioned by the Senator from North Dakota and 

myself, in my opening statement, Senator Byrd is the leading authority on the Senate’s prerogative and the balance of power, one 

of the leading authorities in the country, certainly the leading authority in the Senate. His reputation for defending the prerogative 

of the Senate is second to none. 

We are interested in hearing his thoughts and know they will be 

very insightful and give us something to consider as we move forward. 

Senator BYRD.

STATEMENT OF THE HON. ROBERT C. BYRD, A UNITED STATES 

SENATOR FROM THE STATE OF WEST VIRGINIA 

Senator BYRD. Mr. Chairman, Plato thanked the gods for having 

been born a man, and for having been born a Greek, and for having 

been born during the ages of Sophocles. 

I thank the gods for having been born at a time when I could 

serve on the distinguished Committee and under such a distinguished and able Chairman, who always presides with a dignity 

that is as rare as a rose in June. And I am very privileged to appear before this Committee and this Chairman. That is what I 

have been talking about—

I very much appreciate this opportunity to present my views on 

this in iniquitous act, the Legislative Line Item Veto Act, as proposed by the President. 

This is a subject that I view with the gravest concern. The Senate, to its eternal shame, once before approved a line item veto that 

would have eviscerated Congress’s hold on the power of the purse, 

the power of the purse. The framers gave Congress the power over 

the purse. The power of the purse rests here. 

We are fortunate that the Supreme Court intervened to correct 

that egregious abominable error. We cannot count on the Court’s 

being willing or able to do that again. This time around the Congress, and more particularly the Senate, may be the first, last and 

only line of defense. 

S. 2381 is an offensive slap at the Congress. It embodies a reckless disregard for the fundamental and sacred Constitutional principle of three separate and equal branches of Government. This 

bill, S. 2381, is anathema to the lawmaking powers granted to the 

Congress in Article I of the Constitution. As currently drafted, it 

would allow the president to roll over the procedures outlined in 

the presentment cause of Article I, Section 7 and effectively cancel 

individual tax and spending items in legislation by impounding 

such items indefinitely. 

Without exercising a veto, the president could effect the repeal 

of a law passed by the Congress, and then resist subsequent efforts 

by the Congress to ensure that law is carried into effect. S. 2381 

is a thinly veiled attempt to circumvent the Constitutional test outlined in Clinton v. city of New York. 

S. 2381 would authorize the president, and all future presidents, 

to propose rescinding any item of mandatory spending, any item of 

13

discretionary budget authority, and certain targeted tax benefits 

enacted after the passage of S. 2381, if it is enacted. It would require the Congress to vote on Presidential rescission requests within 13 days, without amendment. 

It would give the president complete control over the packaging 

and submission of rescission bills. It would empower the president 

to bundle hundreds of rescission proposals together or, if he chose, 

to submit them individually. A president could propose to rescind 

funds immediately after they are enacted into law, or decades after 

they are enacted into law. 

A president could even resubmit rescissions already rejected by 

the Congress. 

As proposed, S. 2381 would prohibit Members of Congress from 

offering amendments to the president’s request. The Congress 

could not substitute its ideas for the president’s ideas. Under S. 

2381, members could only vote up or down on a measure of the 

president’s choosing and they would effectively have to do so at a 

time of the president’s choosing. 

This heinous proposal represents a complete and total abdication 

to the president of the legislative agenda with regard to rescissions. 

If a Republican or a Democratic president should decide to target 

an individual Member of Congress, this proposal would allow him 

to do that. The president could exert enormous, enormous pressure 

on individual members by targeting their spending and targeted 

tax items. Or he could curry favor by promising not to target those 

items. The president could submit and require votes on sensitive 

issues for members whenever he determined that such votes would 

be to his political advantage. The president could use this new leverage, be he Democrat or Republican or Independent, he could use 

this new leverage to squeeze, squeeze members. He could play election-year politics. It is a weapon that the president could use to 

threaten or to reward. And with the threat of that Damocles sword 

hanging over each member’s head, the president could expect to 

have his way, his way on many issues. 

By permitting the president to package rescission proposals as he 

deems appropriate and prohibiting the Congress from amending 

the package, under S. 2381, Senators would be precluded from 

seeking a vote on individual items marked for rescission. 

If the president chose to send up a package containing 10 rescissions the Senate would have to vote up or down on that package 

as a whole. Take it or leave it. Members would be denied their 

right to determine whether an individual item is an appropriate 

use of Federal funds and whether such an item deserves a vote. 

In a bizarre and grotesque twist of the presentment clause, it 

would be the Congress, the Congress that would have to accept or 

reject in toto a legislative package of the president’s choosing, instead of the other way around. 

A Senator’s right, a Senator’s right to debate and to amend is 

what protects this body as a forum for dissent. And it is in this 

forum, and this forum alone, that a minority of Senators can put 

a bridle on a majority, at least for a little while until the country 

can be awakened to the mistakes that might otherwise be visited 

upon the people. 

14

We have no idea what kind of rescissions this or any future 

president will submit under the expedited procedures of this bill. 

Without the right to debate and amend, the Senate is inviting all 

future presidents to force their views and ideas, no matter how extreme, upon this body. 

Once proposed for rescission, under S. 2381, the president could 

impound funds for up to 180 days. That would quadruple the 45 

day limit allowed for impoundment under current law. 

Given that the legislation simultaneously requires the Congress 

to act on the president’s rescission proposals within 13 days of 

their submission, this 180 day empowerment time limit is especially menacing and pernicious. Even if the Congress disapproves 

of the president rescission proposal, under S. 2381 the president is 

not obligated to release those funds for 6 months. The president 

could submit the same rescission proposal again and again, regardless of prior Congressional disapproval and thereby impound items 

indefinitely. 

In the case of discretionary budget authority, the president could 

impound funds until the pertinent appropriations law expires at 

the end of the fiscal year, effectively eliminating funding for any 

discretionary items which the president chooses. 

For the fiscal year 2006, $445 billion, $445 billion of the discretionary funds appropriated by the Congress are 1-year appropriations that will expire at the end of the fiscal year. This bill would 

allow the president by himself to effectively eliminate any of those 

funds by proposing to rescind, and then impounding them for 180 

days at a time. By himself, with no legislative action whatsoever, 

the president could even eliminate a discretionary program supported unanimously by the Congress by simply deferring it and deferring it and deferring it to death. 

Our Constitution is based on a delicate balance of power between 

separate and coequal branches of Government, with the power of 

the purse in the hands of the people’s representatives in the Congress, just as it should be. Under S. 2381 the keys to the U.S. 

Treasury would undeniably belong to the president, thereby eliminating the people’s most effective tool to oppose a power hungry executive. 

Last year the President proposed terminating or reducing funding for 154 Federal programs and eliminated funding in his budget 

for discretionary items that were supported by both Republicans 

and Democrats. The Congress rejected 65 of the President’s recommendations and restored funds in the annual appropriations bill 

for such items as Job Corps, essential air service, and Federal prison construction. Under S. 2381, the President could target those 

items for rescission and impound the funding indefinitely, without 

regard to a Congressional thumbs down on his rescission request. 

Under S. 2381, the president could also submit proposals to modify any item of direct spending, whether for Social Security and 

Medicare entitlements or veterans benefits, and those modification 

proposals would have to be considered under these same expedited 

procedures limiting debate and prohibiting all amendments. At any 

point after the enactment of this Act this or any future president 

could reach back and require the Congress to vote up or down, 

15

without amendments, on Presidential changes to entitlement benefits which are enacted after passage of S. 2381. 

Such broad authority could mean the loss of Social Security benefits. It could mean the loss of Medicare and Medicaid assistance. 

It could mean sweeping cuts in veterans benefits. Who knows what 

benefits may be targeted for rescission by a president not subject 

to the checks of the regular legislative process? 

This legislation, with its broad authority for the president to effectively cancel spending and tax items by indefinitely impounding 

them, despite Congressional disapproval, is clearly unconstitutional. 

This legislation, with its broad authority for the president to 

craft legislation and then force it down the throats of the Members 

of Congress without modification, is a gross, a gross distortion of 

the lawmaking powers granted to the Congress in Article I. 

If the Congress, God forbid, God forbid, were to approve this legislation as presented by the President and cosponsored by 29 Senators, it would forever put the Congress firmly under the thumb of 

a president. 

As every member of this Committee knows, the legislative process requires compromise and negotiation. Often legislation is enacted only because of a series of cooperative agreements that hold 

the bill together, that hold the bill together as a package. By empowering the president to pick those agreements apart and to modify or eliminate spending or targeted tax provisions, S. 2381 would 

allow the president to effectively create legislation that would probably never garner enough votes to pass the Congress. 

S. 2381 would fundamentally alter the legislative process forever 

and make the president legislator-in-chief. 

S. 2381 includes no sunset provision, none, no trial period to 

judge whether this new empowerment and rescission power is 

abused. It therefore leaves any future president the easy recourse 

of vetoing an attempt by the Congress to reclaim its previous authority. Without a sunset, it could require a two-thirds vote of the 

Congress to override a Presidential veto and repeal this law. Even 

the equally ill-conceived and unconstitutional 1996 Line Item Veto 

Act had an 8-year sunset. 

Historically it is the Congress, not the president, which has 

achieved real savings through rescissions. Since the Budget Act 

was passed in 1974, the Congress has proposed and enacted $143 

billion in rescissions compared to the $76 billion proposed by the 

president. Since 2001 the president has not proposed a single item 

for rescission under Title 10 of the Budget Act. 

This is a point that deserves our attention. President Bush has 

never proposed the rescission of any funds through the current 

Budget and Impoundment Act processes. He has never vetoed an 

appropriations or direct spending bill. The Congress has approved 

more than half of the $15.7 billion of the cancellations included in 

the President’s budget submissions. In proposing changes to his rescission authority, the President cannot claim to have used his current authority to the fullest extent possible, nor has he even tried. 

I caution Senators, I caution Senators not to buy this tripe that 

the Administration is peddling, whereby the President’s proposals 

are always good and the Congress’s proposals are always bad. 

16

Presidents certainly enact their own earmarks, many of which may 

not withstand public scrutiny, while the Congress has been many 

earmarks that are critical and valuable investments of the taxpayer’s money. 

Let me say just two examples. Senator Domenici initiated the 

Genome Mapping Project, a Congressional earmark that has resulted in extraordinary medical and scientific progress. 

Another Congressional earmark is now one of the most effective 

tools in the wars in Afghanistan and Iraq, known as the Predator 

Unmanned Aerial Vehicle. That program was initiated by Representative Jerry Lewis, now Chairman of the House Appropriations Committee. 

We must not allow the president to subjugate the priorities of the 

legislative branch to those of the Executive. The president has 

every right to protect his interest in the legislation before the Congress. Likewise Congress enjoys the same prerogative. 

The Constitution prescribes a system of Government that requires much more of the Congress than simply accepting or rejecting the president’s proposals. The framers of the Constitution developed a system of Government that has sustained the Nation for 

centuries based upon the delicate balancing of power between the 

three branches. The power of the purse is the preeminent, the preeminent power in the Congressional arsenal. It guards against an 

all-powerful king, an all-powerful executive. 

U.S. Senators serve with, with I say, with, hear me, not under 

any president. The framers crafted a system that depends upon 

each branch defending its powers. The checks and balances come 

from that defense. There is no check, no balance if the Congress 

can be blackmailed and threatened by any chief executive to get his 

way. 

The power of the purse, entrusted to the Congress, is the ultimate, the ultimate check against the tyranny of an overreaching 

executive. It is the strongest bulwark of the people’s liberties. If S. 

2381 is passed as currently drafted, this unfortunate Congress will 

be remembered, yes remembered, yes remembered ignominiously 

as the Congress that gave away its mightiest weapon of protection 

for the people’s liberties. 

In 1832, at the public dinner in Washington, D.C. on the centennial anniversary of George Washington’s birthday, Daniel Webster 

spoke these words, this is what he said: ‘‘If disastrous war should 

sweep our commerce from the ocean, another generation may 

renew it. If it exhaust our treasury, future industry may replenish 

it. If it desolate and lay waste our fields, still, under a new cultivation, they will grow green again, and ripen into future harvests. It 

were but a trifle even if the walls of yonder Capitol were to crumble, if its lofty pillars should fall, and its gorgeous decorations be 

all covered by the dust of the valley. All these might be rebuilt. But 

who, who shall reconstruct the fabric of demolished Government? 

Who shall rear again the well-proportioned columns of constitutional liberty? Who shall frame together the skillful architecture 

which unites national sovereignty with state rights, individual security, and public prosperity? No, no if these columns ever fall, 

they will be raised not again. Like the Coliseum and the Parthenon, they will be destined to a mournful and melancholy immorVerDate 0ct 09 2002 13:28 Jan 23, 2007 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6601 C:\DOCS\28460.TXT SBUD1 PsN: TISH
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tality. Bitterer tears, however, will flow over them than were ever 

shed over the monuments of Roman or Grecian art; for they will 

be the remnants of a more glorious edifice that Greece or Rome 

ever saw, the edifice of constitutional American liberty.’’

[The prepared statement of Senator Byrd follows:]


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Chairman GREGG. I thank the Senator for his insightful thoughts 

and appreciate especially his ending with a quote from a New 

Hampshire Senator—actually, it was not a Senator from New 

Hampshire but a New Hampshire person, Daniel Webster. 

Much of what he has said resonates, and I can believe can be addressed and still produce a bill that is reasonable, although it may 

not be acceptable to the Senator. 

But his points are well taken and obviously well presented and 

we appreciate his time. 


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Senator BYRD. Thank you, Mr. Chairman. Thank you members 

of the Committee. 

Chairman GREGG. We are now going to hear from the Acting 

Deputy Director of OMB, Austin Smythe, who used to work for this 

Committee in his more youthful days, although he is still quite 

youthful. And we welcome him back to the Committee to testify on 

behalf of the Administration and present the concepts behind this 

legislation and look forward to hearing his thoughts. 

You might change his nameplate because, as much as he may 

have great thoughts, he is not Senator Byrd. Can we take that 

down so that we are not confusing the audience to the extent that 

they are looking at that. 

Thank you.

STATEMENT OF AUSTIN SMYTHE, ACTING DEPUTY DIRECTOR, 

OFFICE OF MANAGEMENT AND BUDGET 

Mr. SMYTHE. Chairman Gregg, Senator Conrad and members of 

the Budget Committee, thank you for inviting me to testify on the 

President’s proposed Line Item Veto Legislation. 

Let me start by saying that Congress has made excellent 

progress over this past year on spending restraint. In line with the 

President’s budget request, the Congress sent the President appropriation bills that held the growth of total discretionary spending 

below the rate of inflation and cut non-security spending. 

In addition, Congress adopted 89 of the President-proposed 154 cuts and terminations, saving $6.5 billion. And Congress achieved 

nearly $40 billion in mandatory savings over 5 years, the first time 

the reconciliation process has been used in 8 years to slow the 

growth in spending. 

This important progress is often overlooked, however, because of 

the attention paid to specific earmarks or line items that have not 

been well justified. While some earmarks have significant merit 

and represent an improvement to the President’s budget request, 

many are wasteful or go to low priority programs. 

As the President has noted, he wants the Congress to pass earmark reform. But the Administration believes we can make even 

greater progress together in restraining spending and focusing taxpayer dollars on a central priority. 

As you know, spending legislation usually comes to the president 

in the form of very large spending bills that frequently amount to 

tens of billions or hundreds of billions of dollars. The president is 

left with the choice of either signing bills that contain spending 

items he does not support or vetoing an entire bill that has many 

provisions that he agrees with on balance. 

In his State of Union Address, the President asked the Congress 

to give him the line item veto. The need for an effective line item 

veto has long been recognized by president and Members of Congress from both political parties. In 1996, with strong bipartisan 

support, the Congress gave President Clinton a very powerful line 

item veto but the Supreme Court struck down that law as unconstitutional in 1998. 

On March 6th the President transmitted to the Congress the 

Legislative Line Item Veto Act. This legislation is designed to do 

31

two things: first to give the president a tool to reduce unnecessary 

or wasteful spending; and second, to improve accountability and 

cast a brighter light on spending items that probably would not 

have survived had they not been included in a much larger bill. 

This line item authority would allow the president to reach into 

these bills and subject unjustified spending to additional public 

scrutiny without endangering other priorities. While the line item 

veto will serve as a tool to remove unjustified earmarks included 

in enacted legislation, we also hope it will aid in Congress’s efforts 

on earmark reform by fostering additional accountability and 

transparency. 

We are confident that the version of the line item veto proposed 

by the President will survive any constitutional challenges. A critical difference between this proposal and the 1996 Act is that the 

President’s proposed rescissions would only take affect if Congress 

passed a new law implementing his proposals. 

Specifically, the Legislative Line Item Veto Act would provide the 

president the authority to single out unjustified discretionary 

spending, new mandatory spending, or new special interest tax 

breaks given to a small number of individuals. Under the proposal, 

the president would send a message with a proposed rescission bill 

to the Congress. The president’s proposal would require the House 

and Senate to hold an up or down vote on his proposed rescissions 

within 10 days of introduction. The rescission bill would not be 

amendable, could not be filibustered in the Senate, and would be 

sent to the president for his approval with the support of a simple 

majority in each chamber. 

The critical features of this legislation are the fast track procedures that ensure the president gets an up or down vote on his proposed rescission and ensure that they are not nullified by delay or 

derailed by amendments. 

The Act also gives the president the authority to defer spend for 

up to 180 days the spending he proposes for a rescission to allow 

the Congress time to consider his proposal. 

The Act also gives the president the authority to release these 

funds prior to the expiration of the 180 days, enabling him to respond if, for example, one of the chambers rejects the president’s 

proposed rescissions. 

In President’s proposal is consist with current authorities granted to him by the Congress in other contexts, like trade promotion 

authority, and it addresses the Supreme Court’s concern that the 

enacted 1996 Line Item Veto did not provide a sufficient measure 

of respect for Congress’s primary constitutional role in revenue and 

spending matters. 

We are very pleased with the strong support the President’s bill 

has received in the House and Senate. On March 7th, Majority 

Leader Bill First introduced the Administration’s bill which, as of 

yesterday, enjoyed the support of 29 cosponsors. 

We have heard concerns about how the authority provided under 

this bill would be implemented. We want to work with Congress to 

address these concerns. But it is important that the ultimate product provides an effective means for the president to get an up or 

down vote on his proposed package of rescissions. We hope the 

32

Congress will move quickly to pass this legislation and give the 

president and Congress a tool to reduce unnecessary spending. 

With that, Mr. Chairman, I would be happy to respond to any 

questions the Committee may have. 

[The prepared statement of Mr. Smythe follows:]


28460.053
33

Chairman GREGG. Thank you very much. 

Since there are so many Senators here, we are going to limit the 

rounds to 5 minutes. 

There are a whole series of issues which are raised by this proposal. The concept, of course is to put forward the opportunity for 

the president to send up a series of items which he feels the Congress should take another look at and have the Congress have the 

authority to vote those items quickly and decide whether or not 

they should continue without, in the process, undermining what 


28460.054
34

Senator Byrd has so appropriately pointed out, which is the authority which lies solely with the Congress, which is the power of the 

purse. 

There are specific points in the bill which I think are going to 

have to be addressed and corrected. For example, 180 days. Clearly 

that can lead to impoundment. In my opinion it is going to have 

to be addressed. 

The issue of the inconsistency between the way spending is dealt 

with and tax authority is dealt with. Again, Senator Conrad raised 

this point and it is a valid point and it is going to have to be addressed. 

But in the more specific context, and Senator Byrd made this 

point I thought rather well and it is something that concerns me, 

is this question of the ability of the president to send up a rescission which could essentially rescind all of the discretionary accounts, for example, or he could attempt to rescind items again and 

again and basically control the Congressional calendar under the 

fast track procedure. Those issues need to be addressed. 

But in going to the underlying question, which is whether or not 

the rescission authority takes from the Legislative and moves to 

the Executive the power of the purse, I would like to hear the Administration’s view as to why that is not the case and what is the 

defense on that constitutional issue, which is really at the essence 

of the debate. 

Mr. SMYTHE. Mr. Chairman, if you look back in 1996 what the 

Congress granted to President Clinton, that was an extraordinary 

tool in terms of what President Clinton had. If he chose to cancel 

provisions, it required a two-thirds vote of both houses of Congress 

to overturn his action. There is a span of options that the Administration could look at from what we could do in this area from expedited procedures to unilateral authority by the president to cancel 

spending. 

We chose toward the end of expedited procedures. The authority 

we are seeking today does not allow the president to act unilaterally. It requires the Congress to approve any rescission proposed by 

him, and with a simple majority of either the House or the Senate 

you can reject those proposals. So we do not see it as a dramatic 

shift. 

The other aspect, just to build on that point a bit, up until 1974 

presidents frequently withheld funds, what were called impoundments up until 1974. Since 1974, with the enactment of the Budget 

and Impoundment Control Act, presidents have not had that authority. If they choose not to spend money they must propose a rescission or OMB has to release those funds for obligation to the 

agencies. 

The other thing that is occurred over time as you look at the 

budget, I think a case can be made that, in fact, the president’s 

power over the budget is being diminished. One of the reasons that 

is the case is the fact that the budget over time, the budget that 

he signs into law each year is shrinking over time. Back in 1960 

it was about 60 percent of the budget, was subject to the appropriations process. Today the president looks at about 40 percent of the 

budget in terms of what he must sign into law. The other 60 percent of the budget is entitlement programs and other mandatory 

35

spending that he has no ability to veto. They operate under permanent law. 

So we think we have come up with a proposal that is not a dramatic shift in power. It follows other existing procedures like trade 

promotion authority. And in the end it falls to Congress in terms 

of whether these are going to be implemented because it requires 

the Congress to pass a new law to implement the rescissions. 

Chairman GREGG. I think that is a good point to make, which is 

that so much of the budget is now off limits because it is entitlement activity. And I notice that this proposal addresses entitlement 

as well as discretionary as well as tax policy, but the proposal related to tax policy needs to be adjusted. 

Assuming we made the changes, some of which I have outlined 

and some of which will be, I am sure, discussed here as we go forward, would the Administration resist a prohibition on rescissions 

that were restatements of prior rescissions which had been rejected? In other words, sort of a one-time shot. And is it appropriate to characterize this more as a BRAC process than as a line 

item veto process? 

Mr. SMYTHE. Probably so. It has fast track procedures to approve 

the president’s proposals. 

There have been a number of concerns raised about how this authority could be used. That is not our intent, to use the authority 

to offer multiple rescissions and indefinitely defer funds. That is 

not our intent. We want to work with Congress to limit the president’s ability to choose to do that such that it could not be used 

to offer multiple rescissions after Congress had rejected a proposed 

rescission on an item. 

There are a number of other things have been raised. I can go 

through those. On the 180 days, we chose that period. It is the 

outer limit. The current Budget Act provides that—it was enacted 

before a decision called INS v. Chadha and provides that the president can defer money but that deferral is tied to the legislative calendar. 

We have been advised by the Justice Department that there is 

a constitutional problem with that under the one house veto approach in INS v. Chadha. 

But again, if there are concerns with the 180 days, we want to 

address those concerns. We want this mechanism to operate such 

that the funds would only be deferred for the period until Congress 

acts to reject them. And then it would be our intention to release 

them. 

I can go on and on and on. There has been concern about we 

might propose thousands of bills or hundreds of bills and tie up the 

legislative calendar. Again, that is not our intent, to tie up the legislative calendar. We want to give the president some discretion in 

terms of the number of bills and we would be willing to work with 

Congress to limit the number of bills that he could propose after 

an appropriations or direct spending or tax bill was enacted because we do think it is important to have some discretion on the 

number. 

But if the Congress is concerned about potential abuse in this 

area, we want to work with them, with you, pardon me Mr. ChairVerDate 0ct 09 2002 13:28 Jan 23, 2007 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6601 C:\DOCS\28460.TXT SBUD1 PsN: TISH
36

man, to limit the number of bills that could be proposed under this 

authority. 

Chairman GREGG. Thank you. Senator Conrad. 

Senator CONRAD. Thank you, Mr. Chairman. Thank you, Mr. 

Smythe. It is good to see you back before the Committee. 

Under the Impoundment Act, how many rescissions has this 

President sent to Congress? 

Mr. SMYTHE. We have not sent any rescissions under Title 10 of 

the Impoundment Control Act. We have proposed to cancel spending, which operates exactly the same way. A cancellation, it is just 

the wording is, instead of the statutory language saying that the 

money is rescinded, it has precisely the same legal effect. We propose to cancel funding that has been appropriated. 

Senator CONRAD. But under the Impoundment Act there have 

been no rescissions submitted by the Administration. 

Let me just tell you what concerns me, and whether it is this 

president or another president is not the point to me at all. What 

concerns me, and I think should concern every one of our colleagues, Republican or Democrat, is this scenario. 

The president calls up a member, and I will personalize this, 

calls up me and says Senator, I have a controversial Supreme 

Court nominee and I need your vote. And by the way, Senator, you 

know it is time for rescissions and my staff has just handed me a 

list of matters in your state that are critically important to you. 

And my staff is recommending that I rescind these projects in your 

state. Now Senator, the two are not connected. You understand 

that. But as I am busy and I have only got the chance for one 

phone call, can you help me on this Supreme Court nominee? 

Now that is an extraordinary leverage that any president would 

be given under this Act. And when you say well, they would be able 

to, Congress would be able to overturn it, as I read this, the way 

you have done this is very clever. But the president would be able 

to defer spending for 180 days ad infinitum, not once but repeatedly. Even if Congress has voted to overturn the president’s rescission. 

This looks to me like a power grab of stunning proportion. What 

would protect the current constitutional power of Congress against 

a president—and we will not say this president, a future president—who might decide to use his leverage in the way I have described. What would prevent a president from doing that? 

Mr. SMYTHE. Two things you raise. First of all, the issue of how 

Congress can respond. It is important to look back at the 1996 Law 

where Congress, on a bipartisan basis, gave President Clinton the 

authority where——

Senator CONRAD. That was unconstitutional. Deal with the question I am asking. 

Mr. SMYTHE. But the issue is in terms of what has Congress already chosen to give the president. In 1996 Congress gave the 

president the authority to allow him——

Senator CONRAD. But that was unconstitutional. Mr. Smythe, I 

have asked you a very direct question. Please respond to the question I have asked. 

Mr. SMYTHE. Under this proposal—it is difficult to respond to it 

because there were cases where President Clinton’s vetoes were 

37

overturned. There was a military construction bill where Congress 

garnered the votes, two-thirds of both houses——

Senator CONRAD. I am not talking about—you keep wanting to 

talk about the past. I have given you a very specific situation 

where a president uses the power conferred by this legislation to 

leverage a Member of Congress on another matter. And I have 

asked you very directly what protects against the president using 

this power in that way? Can you respond to that question? 

Mr. SMYTHE. If an individual member gets a simple majority in 

either house, they can defeat the president’s proposals. They are 

not implemented. 

Senator CONRAD. But the president can extend by 180 days——

Mr. SMYTHE. I have already stated that is not our intent. We 

want to tie this——

Senator CONRAD. But that is in what the proposal is. 

Mr. SMYTHE. We want to work with the Committee and with the 

Congress to make sure if there is a concern about that to limit the 

deferral of funds and try to find a way to try tie them to Congress’s 

action. We have not been able to come up with a constitutional way 

to do that but we do not intend to have the deferral extend beyond 

Congress’s action to reject a proposed rescission. We do not intend 

to, after Congress rejects a rescission, to offer the proposal again 

and again and again as you have suggested. That is not our intent. 

Senator CONRAD. I would just say with this to you, and my time 

has expired, that may not be your intent but that is precisely what 

this legislative proposal would allow. 

Chairman GREGG. That is true and that will be changed. 

Senator ALLARD. Senator ALLARD. Mr. Chairman, I want to thank you for holding 

this hearing. I think this is a very important hearing. I think it is 

also a very important issue that we have before us. And I would 

agree with you, Mr. Chairman, it is actually an enhanced rescission, not a true line item veto. So in this piece of legislation, we 

are not granting to the president the same powers as though it was 

a line item veto, which we provide to a large number of Governors 

throughout the United States. 

I think if we look at what happened in the state legislature, I 

think that we would find that there is a decent balance between 

the legislative branch and the Governor, in which case I think that 

same balance can be established between the legislature and the 

Congress—I mean the Congress and the president. 

I think that the benefit of this particular piece of legislation is 

that it does bring more accountability to the budget process. I do 

think we have to have more accountability. I think that spending 

is out of control. And I think that we need to do more to rein in 

that spending. If that means that we have more oversight on the 

spending side, then I am willing to grant the president some limiting powers to do that. 

I also agree with the Chairman that we need to have some modifications on the proposal that is before us. For example, we do not 

want to let the president—the 180 days, I think, is a classic example. 

And my question to you, Mr. Smythe, is when this was drafted, 

was the intent originally was just to limit it 100 days. And the fact 

38

that this could be perpetually extended, was that overlooked by the 

Administration in putting this proposal forward? 

Mr. SMYTHE. There are two aspects about the bill. The 180 days 

refers to calendar days. The 10 days or 13 days that Congress has 

to act on legislation refers to days that Congress is in session. So 

we had a concern that we did not want a situation where the time 

for deferral would run out and the administration would have to 

obligate the funds and Congress would not have the opportunity to 

act because there can be cases where Congress passes an appropriation bill in early October, in election years for example, and 

then goes on recess until January, sometimes not coming back 

until late January, where you can have extended periods of time 

of much more than just 10 days or so. 

That was the issue. We view the 180 days as the outer limit in 

terms of what would be needed for the deferral of funds. 

And as I have stated before, our preference would be, our policy 

preference was too tie the deferral to one house acting to reject it. 

We could not find a constitutional way to do that. We want to work 

with the Congress. This concern of the 180 days has come up over 

again. We want to work with you to find a way that ensures——

Senator ALLARD. So your intent, and the Administration’s intent, 

was just have one shot at the apple, so to speak, the 180 days, and 

not to have this repeated over and over again? 

Mr. SMYTHE. That is correct. 

Senator ALLARD. I think that is important for us to move forward 

in our discussions with the Administration on what might be an 

appropriate way to amend this piece of legislation. 

Was there any intent—on the number of items, do you think it 

is appropriate to limit the president to the number of items? There 

has been some questions raised about, do you put the rescission to 

the whole piece of legislation or do you select sections out of there? 

What was the intent of the Administration proposing that? 

Mr. SMYTHE. Our intent was not to submit a multitude of rescissions and tie the Congress in knots. That is not our case. When you 

look at appropriation bills, they vary in terms of size. The Labor/

HHS appropriations bill is a $141 billion bill. It covers at least 

three departments, probably more than that. 

Senator ALLARD. I think more appropriately, you ought to look 

in on omnibus bill. 

Mr. SMYTHE. Or even an omnibus bill. So we thought it was useful for the president to have some discretion to send up more than 

one rescission, to not just limit it to just one rescission per bill. 

Again, our intent is if there is a concern that this could be 

abused by an administration, to set up a multitude of rescission 

bills and tie up the calendar, that is not our intent. And we want 

to work with you to provide a limit if you want to do that. 

Again, our concern is that the president will be left with some 

discretion to propose more than one bill. 

Senator ALLARD. Mr. Chairman, I see my time is expiring. Thank 

you. 

Chairman GREGG. Senator Sarbanes. 

Senator SARBANES. Thank you very much, Mr. Chairman. 

39

Mr. Smythe, I have to judge your intentions by what is in the 

bill. I have to look at the bill and read the bill. You all drafted this 

bill, did you not? Who drafted this bill? 

Mr. SMYTHE. Yes, sir. We drafted—the Administration drafted——

Senator SARBANES. Who is we? 

Mr. SMYTHE. The bill was drafted primarily by the Office of Management and Budget but we worked with other agencies in terms 

of developing legislation. 

Senator SARBANES. OK. Now as I understand this bill, and I just 

want to go through and make sure I understand it, the president 

can submit a rescission, for 180 days. If that is rejected by the Congress, can the rescission stand for 180 days? 

Mr. SMYTHE. The rescission cannot. The deferral of funds can 

stand for up to 180 days. The bill does provide——

Senator SARBANES. We could reject it right off the bat and the 

president could defer the funds for 180 days. Is that correct? 

Mr. SMYTHE. That is correct. 

Senator SARBANES. Now my next question. He sent up one of 

these deferrals. It is rejected, 180 days pass. Can he send the same 

deferral and defer it for another 180 days? 

Mr. SMYTHE. Yes, but that is not our intention. 

Senator SARBANES. Wait a second. Is that in the bill? 

Mr. SMYTHE. The bill provides that authority. That is not our intention to use——

Senator SARBANES. Who drafted this bill? 

Mr. SMYTHE. The Administration drafted the bill. 

Senator SARBANES. All right. Now how can you come in here, 

having drafted the bill with these egregious provisions, and then 

say well, that is not our intention? 

What is the level of competence in drafting this legislation if you 

come to the table, the witness table here this morning, and immediately you start going through a recitation of these things that are 

obviously very serious problems and say well, that is not our intention, that is not our intention, that is not our intention. 

Under this legislation as written, the president could completely 

negate Congressional action. Is that correct? By just doing one deferral after another. Is that not the case? 

Mr. SMYTHE. The president has the authority to offer more than 

one rescissions. When we drafted this bill—it is important to note 

that when we drafted this bill, that under the Budget Act, under 

Title 10, the president can propose a rescission at any time. We 

looked to Title—the existing authorities in Title 10 in terms of deferral authority and so forth. 

Again, I think you could probably look at any statute that provides discretion to an administration and you can point out theoretically there could be enormous abuse under any statute that the 

president——

Senator SARBANES. No, no, no. Some statutes that are well done 

do not permit an incredible abuse. That is the whole art of crafting 

legislation. 

You are telling me that you formulated something and then you 

come in here this morning and say there are all these problems 

with it. And yet you send it up here that way? 

40

What about the problem of flooding the Congress with these 

Presidential proposals so that the Congress is completely tied up 

addressing these deferrals sent by the president? How many deferrals can the president send? 

Mr. SMYTHE. There is not a limit in terms—just like under the 

Budget Act, there is no limit in terms of the number of rescissions 

that the president can propose under Title 10. He can propose an 

unlimited number. 

Senator SARBANES. For 45 days? 

Mr. SMYTHE. No. The period for the funds are deferred for 45 legislative days but he could continue to propose rescissions one after 

another and tie up the entire amounts appropriated by proposing 

to rescind under Title 10. We have chosen not to do that. 

Senator SARBANES. I thought you listed that as one of the problems you are prepared to concede up front this morning with this 

proposed legislation. You sat there at the witness table, I was sitting here increasingly astounded at this testimony, and even more 

so now that I have ascertained that the legislation was drafted in 

your shop, that you are the supposed craftsman of this legislation. 

And I am sitting here this morning and you are down there saying there is this problem but that was not our intention. There is 

this problem but that was not our intention. There is this problem 

but that was not our intention. 

How am I to read your intentions? I look at the legislation and 

the legislation is enough to curl your hair. 

Mr. SMYTHE. I guess all I can say, Senator, is we want to address 

those concerns. That is not our intention to use the authority in the 

manner you have described and we want to address those concerns. 

Senator SARBANES. The Budget Act says funds made available 

for obligation under this procedure may not be proposed for rescission again, with respect to an answer you just gave me a minute 

or two ago. 

Mr. SMYTHE. Pardon me, I may have stated incorrectly. What I 

intended to say was that the president had authority to offer a 

multiple number of rescissions. There was no limit in terms of how 

many rescissions. 

Senator SARBANES. Can he offer the same rescission again, under 

the existing law? 

Mr. SMYTHE. Not under Title 10. 

Senator SARBANES. Can he offer the same deferrals again under 

your proposed legislation? 

Mr. SMYTHE. Yes, but as I stated, that is not our intent. 

Senator SARBANES. Mr. Chairman, my time is up. 

Chairman GREGG. The Senator has raised three valid points. And 

the Senator was not here when I made my opening statement but 

I listed about five valid points, or six or seven. 

Senator SARBANES. The point I want to make is not just the substance of them but the ineptness in the drafting of the legislation, 

and the witness coming before us. And it was done in his shop. And 

the first thing he does is start enumerating all of the problems 

with it. And he tries to explain it away by saying that was not our 

intention. 

They drafted the legislation. What was the intention when you 

drafted it? 

41

Chairman GREGG. That may be the Senator’s point. If that is the 

Senator’s point, I am not on his side. 

But on the issue of substance, when we get to a markup of the 

bill, some of the points the Senator made will be addressed. 

Senator SARBANES. It does go to the question of competence, obviously. 

Chairman GREGG. Senator Allard. I am sorry, Senator Alexander. 

Senator ALEXANDER. Thank you, Mr. Chairman. 

Mr. Smythe, as I understand it, you have said here is a proposal 

from the Administration. The Chairman has suggested some improvements in the legislation, which is what we do in the legislative process, usually with suggestions from the Administration. You 

have said that you are open to these changes and some additional 

changes. 

I would assume that among those changes are that if there are 

constitutional ways to say that the president would not intend to 

make multiple recommendations of the same item or if the 180-day 

limit seems too long, that those are areas you are open to change. 

Is that correct? 

Mr. SMYTHE. Yes, sir. 

Senator ALEXANDER. It seems like I remember that in the U.S. 

Senate it is often the case that we Senators offer an amendment 

on the floor and we send to the desk sometimes changes in our own 

amendments. We have a right to do that. We do that after we learn 

from other colleagues or other places that what we might have 

originally thought could be improved. 

I know when I was Governor, I found out early in my term that 

the legislature often changed what I proposed. And I just learned 

to accept those as improvements in what I had suggested. It kept 

my blood pressure down quite a bit during the 8 years I was there. 

I have this question. Would the Administration still support enactment of this bill if it did not become effective until July 2009, 

the start of the 111th Congress, and after the next Presidential 

election? 

Mr. SMYTHE. The President made it very clear in the State of the 

Union and when he transmitted this bill that he wants this authority. We want this authority for this president. 

Senator ALEXANDER. Should this legislation include an expiration 

date so that we give a period to see how it works and then have 

the option of reauthorizing it, rather than having to repeal it if 

problems develop? 

Mr. SMYTHE. Our very strong preference would be that this legislation be provided not only for this president but for future presidents, as well. 

Senator ALEXANDER. Do you consider this a partisan proposal? 

Or do you know of Democrats who have endorsed the idea? 

Mr. SMYTHE. When we were looking at the various proposals of 

how you can do a line item veto, and there are a number of different ways that this could be crafted. There is something called 

a separate enrollment. There is a view that you could give the 

president the authority to defer funds. Again, both would require 

a two-thirds vote. 

42

We took a look at what Senator Kerry had proposed during the 

campaign which, was more of a fast track type procedure. So he 

supported this proposal in the past. 

The line item veto in general has enjoyed broad partisan support 

in the past from Democratic and Republican presidents alike. 

Senator ALEXANDER. Is it not true that 43 states now have socalled line item authority? 

Mr. SMYTHE. Yes, sir. 

Senator ALEXANDER. And would the line item veto authority that 

these states have be broader than the kind of authority that you 

are proposing that the president have? 

Mr. SMYTHE. It ranges a great deal in the states. But I think as 

a general matter the Governors have a more powerful tool in terms 

of what the line item veto authority has, as compared to this proposal. 

Senator ALEXANDER. Is it true that in most states, if not all 

states, budgets are balanced? 

Mr. SMYTHE. They do their budgets differently but yes, they balance their budgets. 

Senator ALEXANDER. Why would a budget reform that works well 

in 43 states to help provide balanced budgets not be worth trying 

at the Federal level? 

Mr. SMYTHE. We very much want this authority as a tool to help 

reduce spending. 

Senator ALEXANDER. I agree with the comment of the Chairman 

at the beginning that we have a great many forces on the Congress 

that encourage spending. I think we need some more forces that 

encourage restraint in spending. 

One such opportunity is a line item veto or some version of it 

such as the one you have suggested. Another might be 2-year budgets or 2-year appropriations which would give Members of Congress 

an opportunity to use the odd year, every other year, devoted primarily to oversight, when we might consider the laws we passed, 

consider repealing them, reducing them, changing them, improving 

them. Has the Administration given any thought to the idea of 2-

year budgets or 2-year appropriations? 

Mr. SMYTHE. Each of the President’s budgets have proposed that 

the 2-year appropriations and budget process, moving to that 

change. I would note however that on this proposal the President, 

during his State of the Union, asked for the line item veto bill. We 

submitted a separate bill on that proposal. And we are very much 

interested in getting this bill enacted into law and the line item 

veto authority enacted into law. 

We do support biannual budgeting, though. 

Senator ALEXANDER. Thank you, Mr. Chairman. 

Chairman GREGG. Senator Menendez. 

Senator MENENDEZ. Thank you, Mr. Chairman. 

I, having listened to both Senator Byrd and the answers to some 

of the questions, and to my original review of the bill, it just seems 

to me that what you pursue here on behalf of the Administration 

moves us closer and closer to this theory of a unitary president and 

makes it extremely dangerous. 

Let me ask you, in Section 1021 of the bill, what do you mean 

by the language of modify? 

43

Mr. SMYTHE. Regarding direct spending? 

Senator MENENDEZ. Yes. On Section 1021, in the definitions 

under rescind the decision, are defined to mean to ‘‘modify or repeal a provision of law to prevent A, budget authority from having 

legal force or effect; B, in the case of entitlement authority, to prevent the specific legal obligation of the United States from having 

legal force or effect; and C, in the case of the Food Stamp Program, 

to prevent the specific provision of law that provides such benefit 

from having legal force or effect.’’

Mr. SMYTHE. In the case of discretionary spending, discretionary 

appropriations, it would have the effect of either reducing or eliminating the appropriation, changing the statute to either reduce the 

appropriation or zero out the appropriation if we were to propose 

to rescind the entire amount. 

Direct spending is a different case because direct spending bills, 

we will measure the impact relative to a baseline. This authority 

does not apply to current law. So all existing entitlement programs 

with respect to Medicare, Social Security and Food Stamps and so 

forth, this does not apply to any existing law. 

If however, Congress passed a new law that expanded mandatory 

spending then the president would have the authority to come back 

and propose that that spending, that additional spending, be either 

eliminated or reduced. 

Senator MENENDEZ. It seems to me that the way that that whole 

section is structured, that authorizing the president to propose the 

rescission of any dollar amount of discretionary budget authority, 

in whole or in part, and then later looking at the definitions of rescinding or rescission as defined to mean to modify or repeal a provision of law under those sections that I cited before ultimately appears to be something much more than repeal. 

It seems to me that it would be contemplating giving the president authority to rewrite mandatory programs defined by the Congress. 

Are you not having language that is broad enough to go beyond 

the question of how much is actually spent in changing the legislative intent of the Congress under that power of modifying? 

Mr. SMYTHE. The way we would interpret the law in terms of applying it is that we would only be allowed to propose changes that 

eliminated the new spending that was created in a mandatory bill. 

We would not have the authority to go back and change the underlying law. We would only be able to go back and change what new 

spending was added. 

Senator MENENDEZ. Could the president potentially change various and specific provisions of a new entitlement program under 

your modifications? 

Mr. SMYTHE. If it created new mandatory spending, yes. 

Senator MENENDEZ. So then ultimately it——

Mr. SMYTHE. To reduce, reduce or eliminate. 

Senator MENENDEZ. It seems that modify, in this regard, it 

seems to me to be so broadly defined that you could change various 

and specific provisions of a program that the Congress itself decided to have that goes far beyond the questions of how much 

money will be spent but goes to the very essence of the legislative 

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ment of an American to a specific set of services and/or privileges. 

And that is a broad expansion, beyond what has already been mentioned here. 

Mr. SMYTHE. In the case of entitlement programs, and the Director of CBO could speak to this, they do cost estimates on bills all 

the time. But frequently, with respect to direct spending or mandatory spending, you can have cases where you have interaction between different provisions of bills. 

Mandatory spending bills usually do not provide a lump sum or 

an amount like an appropriation bill. They usually deal with 

changes in terms of eligible populations, the nature of benefits and 

so forth, the timing of those benefits. And as a result, the estimates, in terms of their budget impact and what their actual budget impact is, is based on the interaction of those provisions. 

Senator MENENDEZ. I think you need some really greater tightness in your definitions. Because while the president would like to 

have unfettered power, that is not the essence of the constitutional 

democracy we have enjoyed in this country. And the language in 

this bill, as presently defined, is so broad, you might argue that it 

is both your intention—we know that the road of good intentions 

sometimes lead us very often far from where the good intentions 

meant us to go to as a goal. 

But I have to be honest with you, this modify provision, in addition to the others, are just so broadly defined that it allows for 

enormous potential power which would really be, in my mind, a 

violation of the very underpinnings of what is the check and balance between the Congress and the executive branch. 

Thank you, Mr. Chairman. 

Chairman GREGG. Senator Bunning. 

Senator BUNNING. Thank you, Mr. Chairman. 

Mr. Smythe, I have long supported giving the president, regardless of party affiliation, line item veto authority. S. 2381 would allowed the president to withhold budget authority proposed for rescissions for up to 180 days even if the House and Senate objected. 

Why do you believe that the president’s 180 days discretionary 

authority in this legislation is constitutional? 

Mr. SMYTHE. The Congress has granted the president the authority to defer funds in the past, so we do not think there is a question——

Senator BUNNING. I know that. I voted for it. 

Mr. SMYTHE. We do not think that there is a constitutional issue 

with respect to deferring the funds for up to 180 days. I have already responded to the question about the concern of the 180 days. 

We view that as the outer limit, in terms of the amount of time, 

that money would be deferred. And our intention—and the bill actually provides clear authority to the president, to release funds 

prior to that if either house were to reject the president’s proposed 

rescissions. 

Senator BUNNING. I was here when the last line item veto was 

passed and given to William Jefferson Clinton at the time. And I 

do not know of one instance that Bill Clinton, as President of the 

United States, ever made a phone call to somebody and threatened 

them with rescissions or with line items scratched out of their state 

45

or their district—I was in the House at the time—in regards to the 

power of the president having line item veto. 

Do you know of any case like that? 

Mr. SMYTHE. I cannot speak to what the Clinton Administration 

did. I am not aware of how they arrived at their decision. My impression was that they did their best to put forward proposals. 

That is not our intent, to use it in that manner. We would use it 

to go after spending that we felt was not justified, was not a high 

priority, that in the context of our fiscal situation that the Congress should look at rescinding. 

Senator BUNNING. How does this legislation provide the president and Congress another tool to address the problem of large increases in the number of earmarks that Congress has added to the 

bills? 

Mr. SMYTHE. According to CRS, there has been a large growth 

in earmarks, I think on the order from about 4,000 in 1994 up to 

about 14,000 in 1995. Again, as I stated in my testimony, earmarks 

are not necessarily bad or wrong that Congress provides. 

Senator BUNNING. I will agree with you 100 percent on that. 

Mr. SMYTHE. But there are cases where there are earmarks that 

are added to bills that we feel may not be well justified, that they 

may have been added late in the process. In those cases where we 

feel an earmark does not have full justification and is not a priority, it would be something that we would look at and possibly 

propose for rescission. 

Senator BUNNING. Does this line item legislation allow the president to propose the repeal of language in a bill that does not explicitly provide funding? For example, a bill that contains language 

stating that none of the funds may be used for specific purposes? 

Mr. SMYTHE. It does not provide that authority. 

Senator BUNNING. It does not? 

Mr. SMYTHE. Correct. 

Senator BUNNING. In other words if——

Mr. SMYTHE. We could not use this authority to strike a funding 

limitation. 

Senator BUNNING. Does S. 2381 provide the president with a 

wide range rescission authority that includes the ability to cancel 

or modify mandatory spending items? If so, why does the authority 

for mandatory spending need to be broader than any for discretionary provisions? 

Mr. SMYTHE. The authority for mandatory spending is only for 

new mandatory spending. 

Senator BUNNING. I understood what you said to Senator Menendez. 

Mr. SMYTHE. It would not apply to existing entitlement programs. And even programs that expire, like the Food Stamps, when 

they are extended it would apply to the extension of existing mandatory programs. 

It would, however, apply to an expansion in existing mandatory 

program or the creation of a new mandatory program. We think it 

is important that this authority apply not only to the appropriation 

side of the budget, which is 40 percent of the budget, but also apply 

to new mandatory or expansions in mandatory spending. 

46

Senator BUNNING. Well, I can tell you this. There are some of us 

that sit on this side, away from the great office of OMB, that think 

that this legislation is off to a bad start because of the language 

in the legislation, 180 days, 13 days, and things like that. But we 

want to clean it up. But we want your cooperation if we clean it 

up because we want to pass it when it gets to the floor of the U.S. 

Senate. And the way it is written is never going to get past the 

U.S. Senate. 

Thank you. 

Chairman GREGG. Senator Ensign. 

Senator ENSIGN. Thank you, Mr. Chairman. 

This is a very important hearing and discussion. The reason we 

are here is because we have huge annual budget deficits and a 

huge national debt that we are passing on to future generations. 

Members of Congress complain about it but with each year that 

goes by we do nothing and things just get worse. 

I listened to Senator Conrad talk about the scenario with the 

President exercising considerable power and influence. I think that 

is a legitimate concern. 

But consider our current practice in the Senate and House with 

respect to the appropriatons process. If you do not vote for the appropriators bills, the appropriators threaten that they will not put 

any projects in the bill for your state. 

So when Congress is looking at reforming the spending process, 

I hope we will truly consider earmark reform. The spending process 

is broken because of the imbalance of power that exists right now 

between the authorizing committees and the appropriations committee in the House and the Senate. 

I believe, and have always thought, that if earmarks are considered in the light of day, if there can be transparency, if you can 

stand on the floor of the U.S. Senate and justify your earmark, 

fine. It is the earmarks that get put in without scrutiny, that are 

done as a little favor, that people do not want to have subjected to 

the light of day are problematic. 

The other problem relates to the number of earmarks, which result in increased spending. Often that spending is not in the budget. Supplementals have not kept down the level of spending set in 

the budget. They further drive up spending. The use of 

supplementals is out of control. 

The Chairman had a great op-ed in the Wall Street Journal addressing the second budgets that occur with supplementals. It is a 

serious, serious problem that we have to get under control. 

There are problems with your legislation. I support the intent of 

your legislation. Several other members of this committee do as 

well. We want this bill as a tool to control spending. That is the 

bottom line. 

I do not have to reiterate some of the problems. They have been 

clearly laid out. Some of the problems with the legislation can easily be fixed. 

The idea that 302(a) allocations have to be adjusted within 5 

days by the Budget Committee, is the intent to make sure that 

that money is not taken from one program and spent someplace 

else? 

Mr. SMYTHE. That is correct. 

47

Senator ENSIGN. So the intent is not just to rearrange spending. 

The intent is actually to bring some kind of fiscal sanity into the 

budget process, into the appropriations process? 

Mr. SMYTHE. Yes, sir. 

Senator ENSIGN. Thank you. 

Mr. Chairman, I think that as part of the whole budget reform, 

and getting spending under control, we have to look at this proposal. And I am glad that we are having this hearing today. But 

there are a lot of other problems. I mentioned the earmark reform 

as being part of it. The way that we treat taxes versus the way 

that we treat entitlements is another aspect that should be addressed. We need to consider biannual budgeting. 

I think that all of those reforms need to be on the table when 

we are talking about reform because some Senators think that 

spending is out of control. Unfortunately, legislators are thinking 

more about reelection than they are thinking about the future and 

the future consequences of this debt they we are leaving to our 

children. 

I support the Administration’s effort and I look forward to working with you and with the Budget Committee on these reforms. 

Thank you, Mr. Chairman. 

Chairman GREGG. Thank you, Senator. 

There is a vote on relative to cloture. 

Senator SESSIONS. Senator SESSIONS. Thank you, Mr. Chairman. Thank you for 

your leadership and your concern for integrity in the budgeting 

process. 

Mr. Smythe, let me just ask with regard to what goes on in your 

office and in every Federal agency every year as we do an annual 

budget and have you explain something to the American people 

about the number of hours and effort that goes into presenting that 

budget and what difference that would make if you had a 2-year 

budget. Would you share some thoughts on that? 

Mr. SMYTHE. Yes. I would like to say that the budget really is—

we are juggling three budgets at any point in the year. Right now 

we are in the process of executing the 2006 budget. We are in the 

process of—including trying to get a supplemental enacted that is 

being debated on the Senate floor. 

We are in the process of trying to seek enactment of the 2007 

budget and the proposed changes that we proposed in the 2007 

budget. 

And we are just starting the 2008 budget, in terms of the process 

of giving guidance to the agencies. The agencies are starting their 

initial work on the 2008 budget. 

So it involves an incredible amount of time in terms of putting 

together these three budgets and working on them and so forth. 

A biannual budget, we believe, would provide for better planning, 

more planning, and free up time to focus actually on the management of programs from the Administration’s standpoint and hopefully the oversight of programs from Congress’s standpoint. 

Senator SESSIONS. When you cited the agencies, if you would explain for the American people how this works. In other words, the 

president proposes a budget. But he does not go down to every single one of the programs and the subprograms and the sub proVerDate 0ct 09 2002 13:28 Jan 23, 2007 Jkt 000000 PO 00000 Frm 00053 Fmt 6633 Sfmt 6601 C:\DOCS\28460.TXT SBUD1 PsN: TISH
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grams and agencies and subagencies that exist. That filters up 

through them and then through to you? Is that correct? 

Mr. SMYTHE. That is correct. They submit to us—in September 

they will submit to us their proposed budget submissions. We put 

that into a stack of five volumes that represents the $2.8 trillion 

Federal budget. 

That is only the aggregated amounts for the budget. Each of the 

agencies then submit very detailed justifications that detail the 

spending down to the line items that are well below the actual 

budget that the president transmits. So there is an extraordinary 

amount of detail in terms of the items and so forth that fit into 

that budget that are developed by the agencies. 

Senator SESSIONS. And they have, within each one of these agencies I presume, teams that work virtually year-round preparing 

budgets. And they are left in some degree of uncertainty because, 

since it is just a 1-year budget, there is some degree of uncertainty 

in certain programs I assume that probably calls for inefficiencies 

because you are not sure it will be appropriated the next year. Is 

that a problem that you face? 

Mr. SMYTHE. Yes, it is an annual process. If we had 2-year budgets it would provide more certainty. 

Also, Congress does not always get the appropriations enacted by 

the beginning of the fiscal year, by the October 1st deadline. Our 

fiscal year begins on October 1 of the calendar year. And frequently 

bills are enacted after that. That generates additional uncertainty 

about what the funding level is going to be for a particular program. 

Senator SESSIONS. Just finally, the number of hours that go into 

this, has anyone calculated how much it is within the agencies? I 

will not mention how many in the Senate and how much time and 

effort and grief we go through to try to move individual appropriations and budgets every year. But what about the agencies? Has 

there been any calculation of how much work has to go into that? 

I have heard from the Defense Department it is just an incredible effort in the Defense Department as they prepare their annual 

budget. 

Mr. SMYTHE. The budget has some big numbers in it. I have not 

calculated how many numbers go into it, but that would be a big 

number, as well. It is an extraordinary effort that goes into the annual budget, both the formulation, the development of the budget 

and then the execution of it. 

Senator SESSIONS. Thank you very much. 

Senator ALLARD [presiding]. Mr. Smythe, I want to thank you for 

your testimony. And that concludes the number of members that 

we have here. And we now have a vote going on on the floor of the 

Senate, so most of the members have left to make that vote. But 

I want to continue with the hearing and we will continue with the 

next panel. 

Before you leave Mr. Smythe, I just want to thank you for your 

testimony. There are a number of issues that have been raised by 

members of this Committee during your testimony. Obviously there 

are some areas we need to work on, and we look forward to working with you to move this piece of legislation forward. 

49

Mr. SMYTHE. The issues that were identified and so forth are 

something that have been brought to our attention on a number of 

concerns about the way this legislation would operate. And if there 

are concerns about that, we very much want to work to address 

those concerns in the bill that hopefully the Committee will mark 

up. 

Thank you, Mr. Chairman, for allowing me to testify today. 

Senator ALLARD. Thank you very much. 

Now I will call the next panel, which is Don Marron, who has 

become our CBO’s Deputy Director in October of last year and 

began serving as Acting Director as of the end of last year. Dr. 

Marron was the Executive Director and Chief Economist of the 

Congressional Joint Economic Committee, and we are looking forward to hearing your comments on the proposed piece of legislation 

which the Chairman has referred to as an enhanced rescission. 

Dr. Marron, you may proceed with your testimony.

STATEMENT OF DONALD B. MARRON, ACTING DIRECTOR, 

CONGRESSIONAL BUDGET OFFICE 

Mr. MARRON. Thank you, Acting Chairman Allard. It is a pleasure to be here today to discuss S. 2381, which would create an expedited process for considering rescission proposals by the president. 

To help put this proposal in context, it is useful to start with an 

overview of how the existing rescission process has been used. As 

is discussed in my written testimony, the existing process appears 

to have had relatively little impact on the overall budget. There are 

several reasons for this. 

First, presidents have made relatively little use of the authority 

to recommend rescissions. From 1976——

Senator ALLARD. Dr. Marron, let me interrupt you. I think Dr. 

Fisher is supposed to be part of this panel. Dr. Fisher, why don’t 

you come up. 

Mr. MARRON. I believe we have a third member, as well. 

Senator ALLARD. And then Mr. Cooper. 

Thank you, I am sorry. Now our panel is complete. Go ahead, Dr. 

Marron. Sorry to interrupt you, but I wanted to get the other panelists up there. 

Mr. MARRON. No problem. Thank you. 

So from 1976 to 2005, for example, proposed rescissions totaled 

only about half of 1 percent of discretionary budget authority. 

Those are the rescissions proposed by Presidents. Congress, in 

turn, enacted only about one-third of those proposed rescissions 

into law. 

Rescissions initiated by Congress were substantially larger but 

still totaled less than 1 percent of discretionary budget authority 

on average. Thus, the average amount of rescissions has been relatively small. 

Second, the rescissions that have been enacted have often been 

used to offset new spending rather than to achieve actual spending 

reductions. 

Third, the rescissions that have been proposed and adopted have 

often been focused on budget authority that is not being spent or 

50

that would not be spent for several years. That, too, limits the 

budgetary impact of rescissions. 

And finally, the existing rescissions process is limited to discretionary spending, which currently makes up about 38 percent of 

Federal spending, a share that may decline even further if mandatory spending continues its rapid growth. 

All these factors have limited the budgetary impact of the current rescissions process and suggest that rethinking the process 

may be beneficial. S. 2381 would address some of the reasons for 

the limited impact of the current process. Perhaps most importantly, it would require the Congress to act on the President’s rescission proposals. The current process does not require the Congress to act, so rescission proposals may simply be ignored. That, 

in turn, may have reduced the President’s incentive to use the rescission authority in the past. 

Second, the proposal would prevent rescinded funds from being 

used to offset additional spending. This would increase the odds 

that rescissions result in actual budgetary savings. In addition, the 

proposal would expand the rescission authority to certain items of 

new mandatory spending and targeted tax benefits not just discretionary spending. 

In evaluating the potential impacts of the proposed legislation, it 

is essential to consider not only its visible direct effects, but also 

its indirect effects. The visible direct effects of the legislation 

would, of course, be the rescissions proposed and adopted under the 

new procedures. 

At least as important, however, would be the indirect ways that 

the procedures might affect the legislative process. Proponents 

argue, for example, that the existence of expedited rescissions 

would deter legislators from pursuing some projects that would appear to benefit only a small constituency. Such deterrence could 

lead to a different mix of projects and spending bills and conceivably even a lower level of overall spending. 

However, the proposed rescission authority would also shift 

power to the President, as has been discussed at length in the two 

previous panels. By requiring Congressional action on proposed rescissions and by allowing the president to choose how to package 

those rescissions, it gives the President greater influence over the 

Congressional agenda. By allowing the President to defer funds for 

up to 180 days, it gives the President greater control over the execution of spending programs. By placing no time limits on when 

the president must submit rescission proposals, it gives him as 

much flexiblility as possible in exercising his powers under the proposal. 

For all these reasons, expedited rescission, as proposed, may give 

the President greater leverage to pursue his agenda. The ultimate 

impact on spending in fiscal outcomes would then depend on 

whether spending discipline is a presidential priority. 

It is difficult to predict how S. 2381 would affect the legislative 

process and consequently whether the changes proposed in the bill 

would actually improve fiscal discipline or would simply shift 

spending priorities to those favored by the President. Experience at 

the state level, however, suggests that the overall budgetary effect 

may be minor. 

51

Moreover, as this Committee is well aware, our primary fiscal 

challenges in coming years will come from spending programs that 

are already on the books. Existing mandatory spending programs, 

in particular Social Security, Medicare and Medicaid, will comprise 

a growing share of the budget in coming years. They are permanent programs, so expedited rescissions would likely have no effect 

on them. 

Just to wrap up, our posture and view is that budget rules can 

be very beneficial, they can be very helpful. But it is important to 

go in with a suitable humility about what they can actually accomplish. Experience suggests that budget rules are most effective 

when they help the Congress and the President implement a consensus about budget policies and budget outcomes. Absent such a 

consensus, the rules may only have limited impact on actual budget outcomes. 

Thank you. I would be happy to answer any questions. 

[The prepared statement of Mr. Marron follows:]

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Senator ALLARD. I will now call on Mr. Cooper as a founding 

member and the Chairman of Cooper and Kirk. And also, in 1985, 

President Reagan appointed Mr. Cooper to the position of Assistant 

Attorney General for the Office of Legal Counsel. 

We look forward to your testimony, Mr. Cooper.

STATEMENT OF CHARLES J. COOPER, COOPER & KIRK, PLLC 

Mr. COOPER. Thank you very much, Senator Allard. 


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It is a great honor for me to be here this morning to present my 

views on this important measure. And it was certainly a special 

honor for me in 1997 to represent Senator Byrd and Senator Levin 

and other members of this body in a constitutional challenge to the 

1996 Line Item Veto Act. That challenge was not taken up by the 

Supreme Court for lack of standing in Members of Congress, but 

the Court did later strike down the 1996 Line Item Veto Act in a 

case in which I was involved. And I think it controls the constitutional analysis here and it is that case to which I will direct my 

testimony. 

The Line Item Veto Act of 1996 provided that the president may 

‘‘cancel in whole’’ the same types of spending and tax items that 

are at issue in the measure before you. Cancellation took effect 

when Congress received a message, a special message from the 

president, to that effect. 

The Act defined cancel as ‘‘to rescind’’ and ‘‘to prevent from having legal force or effect.’’ That term and its definition were carefully 

crafted to make clear that the President’s action would be permanent and irreversible. 

Thus, a Presidential cancellation under the 1996 Act extinguished the canceled provision, as though it had been formally repealed by an act of Congress. And neither the President who canceled the provision nor any successor President could exercise the 

authority that the provision before its cancellation had granted. So 

the president could not change his mind after he had canceled it. 

The law itself was gone. And it could be restored only by a disapproval bill that was enacted according to the procedure prescribed by Article I, Section 7. 

In striking down the Line Item Veto Act of 1996, the Supreme 

Court in the Clinton case concluded that vesting the President with 

unilateral power to cancel a provision of duly enacted law could not 

be reconciled with the procedures established under Article I, Section 7 for enacting or repealing a law, bicameral passage and presentment to the President. 

The Court struck down the Act because—and these are the 

Court’s words—‘‘Cancellations pursuant to the Line Item Veto Act 

are the functional equivalent of partial repeals of acts of Congress 

that fail to satisfy Article I, Section 7.’’

The Legislative Line Item Veto Act of 2006, the measure pending 

before you, in contrast is framed in careful obedience to Article I, 

Section 7 and to the Supreme Court’s teaching in Clinton. The 

President is not authorized by this bill to cancel any spending or 

tax provision or otherwise to prevent such a provision from having 

legal force or effect. 

To the contrary, any spending or tax provision duly enacted into 

law remains in full force and effect under the bill unless and until 

it expires on its own terms or it is repealed in accordance with Article I, Section 7—that is after this body and the House pass it and 

it is presented again to the President for his signature. 

To be sure, S. 2381 would authorize the President to defer or to 

suspend execution of the spending or tax provision at issue for up 

to 180 calendar days. The President would be also authorized to 

terminate his deferral if, according to the statute, ‘‘the President 

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determines that continuation of the deferral would not further purposes of this act.’’

This delegation of deferral authority does not raise, in my opinion, a serious constitutional problem with this measure. The Congressional practice of vesting discretionary authority in the President to defer and even to decline expenditure of Federal funds has 

been commonplace since the beginning of the Republic, and its constitutionality has never seriously been questioned. Indeed, in the 

first Congress, President Washington was given discretionary 

spending authority in at least three appropriations bills to spend 

as much as he pleased or as little as he pleased, and the remainder 

obviously to be restored to the treasury. 

In the Clinton case, the Government’s constitutional defense of 

the 1996 Line Item Veto Act relied heavily on that long interbranch tradition of Presidential spending discretion. The Government argued in that case that the President’s cancellation power 

was not really a unilateral power of repeal but rather was simply—

I am quoting from their brief—‘‘in practical effect no more and no 

less than the power to decline to spend, specify sums of money, or 

to decline to implement specified tax measures.’’

But the dispositive distinction is that a discretionary spending 

statute grants the President discretion in the implementation of 

the spending measure while the Line Item Veto Act of 1996 granted the President discretion to extinguish the spending measure. 

The President may exercise lump sum spending discretion at any 

time during the appropriation period. And if the president decides 

not to spend some or all of the appropriated funds, the authority 

to spend the funds—that is, the law itself—nonetheless remains in 

place until it expires in accordance with its terms or is repealed by 

this body. The President however, as long as that law remains, is 

free to change his or her mind about that spending decision. 

In contrast, under the 1996 Act, the President’s cancellation discretion operated directly on the law itself, effectively revising its 

text to strike the spending or tax provision itself permanently. And 

if the President or his successor subsequently changed his mind 

about a canceled item, he was powerless to revive it. 

Nothing in the bill before you, S. 2381, grants the President a 

unilateral power to rescind or amend the text of a duly enacted 

statute in the fashion that the 1996 Line Item Veto Act did. 

Again, a deferral under the S. 2381 can last no longer than 180 

calendar days. And immediately thereafter the President is obliged 

to execute the spending or tax provision for which he has unsuccessfully sought Congressional rescission. And the President’s discretionary authority to terminate the deferral and to execute the 

spending provision at issue remain in full force and effect right up 

until the moment that the appropriations statute expires under its 

own terms or is rescinded by Congress. 

The short of my testimony is this: the Supreme Court’s decision 

in Clinton recognizes and enforces the constitutional line established by Article I, Section 7 between the power to exercise discretion in the making (or unmaking) of the law, on the one hand, and 

the power to exercise discretion in the execution of law, on the 

other. Congress cannot constitutionally vest the President with the 

former discretion—that is the discretion to make our unmake law 

61

but it can the latter, and has done so repeatedly throughout the 

Nation’s history. 

So in my opinion, the powers granted the President under the 

legislative Line Item Veto Act of 2006 fall safely on the constitutional side of that line. 

Again, Mr. Chairman, I appreciate very much this opportunity to 

share my views with you on this important measure. 

[The prepared statement of Mr. Cooper follows:]


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Chairman GREGG [presiding]. Thank you very much, Mr. Cooper. 

I have read your statement. I have read Dr. Marron’s statement 

also. I wish I could have here to hear the entire statement in person, but we did have this vote and we did not want to hold you 

folks up. 

Dr. FISHER.


28460.045
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STATEMENT OF LOUIS FISHER, SPECIALIST AT THE LAW 

LIBRARY, LIBRARY OF CONGRESS 

Mr. FISHER. Thank you, Mr. Chairman. 

I will summarize the major points I have in my paper. As I indicated in my paper, I appreciate that the motivation for this bill 

would be to take care of what is considered unnecessary spending 

and high deficits. I think the history we have of this, the different 

studies that are available and the experience also during the Clinton Administration with the item veto, I think the evidence is very 

strong that not much would be saved through this process and not 

much of a dent in the deficit. 

So on the economic side of the budget issues, I do not think there 

is going to be a material difference. My point would be that the 

major impact would be on constitutional balance here and institutional strengths. 

Mr. Cooper has just given a very good analysis, and I read it before I came here, on the impact of the Supreme Court decision in 

the Clinton case. I would make the point that I think a Member 

of Congress has to do more than to look at case law or to anticipate 

how a court would decide. You take an oath to support and defend 

the Constitution. I think the framers anticipated that each branch 

would take care of itself. 

Which means that regardless of even if after obviously there 

being changes in this bill, even after those changes if you felt comfortable that the bill would pass muster under the Clinton decision, 

I do not think that is enough. I think you have to then say what 

does this do to you as an institution? What does this do to you in 

your capabilities to discharge your constitutional responsibilities? 

I say this because I think the framers did not believe that individual rights and liberties were to be protected solely by the judiciary or through litigation. I think they believed strongly that the 

best protection for rights and liberties was the way you structure 

Government. And much of that is the separation of powers and the 

checks and balances and the strength of Congress to watch for 

abuses both within itself and outside itself. 

I think the bill, as drafted, and even I think after it would be 

amended in markup, does damage to Congress as an institution. 

First of all, we are talking about the spending power always associated with democratic Government. 

Second, I think the passage of the bill would send a very clear 

signal that Congress is admitting that it is not responsible and it 

cannot adequately do its job and it is setting up a process to give 

a President the chance to send back to it what the President considers wasteful spending. I noticed that the language OMB says 

that the President could single out ‘‘unjustified items’’. 

Well, Congress decided when it passed it that it was justified. So 

why should we have a process where the President alone is the one 

to decide what is justified and what is not justified? 

So the Congress, by passing a bill like this, would be saying that 

we do not have a process here where we are responsible. I think 

that sends a bad message inside the institution that the members 

do not feel adequate to do their job and need a President to send 

back a list of things that the President decides are unjustified. 

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My work over the decades has been on Presidential spending 

power and I do not see myself that the President has a really terrific track record in being the fiscal guardian. My impression is 

that most of the big spending items come out of the executive 

branch. Most of the Federal highway programs or space programs 

or supercolliders or supersonic transport, those come out of the executive branch. 

I think when we get in trouble in terms of high deficits and so 

forth, to me my impression is basically what the President has 

done, not what Congress has done. And on the whole I think what 

happens, for both legal reasons and political reasons, Congress 

seems to stay pretty much around the aggregates that the President has submitted. You change the priorities, of course. But the 

size of the deficit, the size of the spending and so forth is basically 

what you get up front with the submission. 

So why we would say that the President is a special guardian of 

the purse is hard for me to understand. 

How the item veto would operate, I think, would be damaging to 

Congress. The President would send up a list. If you support the 

list, if you approve it, then that sends another signal that indeed 

there were wasteful things in the bill you presented to the President and the President, you agree, was good to send up the items 

and now they are going to be canceled. 

The other choice is for you not to approve the President’s list, 

which then the President could say I have sent up a list of wasteful 

items and I cannot get Congress to approve. And no one in the 

country is going to be able to look at that list and make an intelligent decision as to whether those items are wasteful or not. It is 

all going to be rhetoric. 

We have already talked today about this being a tool for the 

President to contact members and say they are trying to preserve 

that project in your state and they just incidentally want to know 

what you are going to do on a nomination or a treaty or the legislation. It does not have to be the President calling you. It could be 

a staff person calling a staff person and so forth. You get the message pretty soon. That is why a process like this could end up 

spending more money because each side would agree. 

How much saved? I do not think much. I have all the details in 

my statement. The GAO study and the Clinton experience. 

Another thing that is hard to predict here is every time you 

change procedure you change behavior. So if you had a process set 

up where the President could siphon off certain items and send 

them back, would that really help accountability? Or why would 

not, with a process like this, Members of Congress be even freer, 

if you added 100 things that the President did not want, why not 

add 200 or 300 things, since he has a process to send them back? 

So I think we lose visibility and accountability. 

I just mentioned in my statement about targeted tax benefits in 

the Clinton Administration. I just thought it was interesting. You 

would think that any targeted tax benefit for 100 or fewer members would be sort of a definition of a special interest. But President Clinton had 70 opportunities to cancel those. He picked two 

and he made the point, what I think is valid, that just because 

something is for a special interest does not mean it is not in the 

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national interest. Most of those proposals came out of the Treasury 

Department. They were approved. So it is not as though Members 

of Congress are tucking these in. These had good understandable 

support. 

I think the last point I made in my statement is are you delegating spending authority or also legislative authority because of 

this word that we have talked about here today, modified. It 

sounds to me it is not just sending up a list. It is allowing the 

President to rewrite. So not only does the President get a chance 

to drive your legislative calendar through submissions and packages but through modification. The definition of the legislative 

power is being able to shape and modify. You would not have that 

at all. The President would have that entirely. Your choice would 

be just to vote up or down without any chance of amendment. 

Finally, my major point is I would only say that if you are worried about spending and you are worried about deficits, the answer 

is not through a process like this. The President has tremendous 

control over both his veto and his threatened veto. When a bill is 

in conference they can say we will veto it unless you take out these 

items. That goes on all the time. 

As I mentioned, the biggest power the President has is submitting a responsible budget. That governs how Congress acts. If you 

are worried about aggregates, I think the pressure has to be on the 

President to submit a responsible budget. 

Thank you. 

[The prepared statement of Dr. Fisher follows:]

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Chairman GREGG. Thank you, Dr. Fisher. 

I appreciate Senator Allard taking over while I was gone. So why 

do we not go to Senator Allard for questions, then Senator Conrad, 

and then back to me. 

Senator ALLARD. 

Senator ALLARD. Thank you, Mr. Chairman. I want to thank the 

panel for their testimony. 

Dr. Marron, on the fiscal note of the previous enhanced decision 

rescission, referred to as line item veto, I think that was a positive 


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fiscal note if I remember correctly, then one that ended up passing 

and then got challenged in the Supreme Court. 

Have you looked at this particular piece of legislation? Are we 

looking at a positive or negative fiscal note? Could you give us 

some reasons why, whatever your decision might be, if you have 

reached that decision? 

Mr. MARRON. Certainly. So in my testimony I refer to what evidence is available on—I believe you are referring to the items that 

were line item vetoed in essence by President Clinton. 

The amounts we had were 82 cancellations by the President that would have saved about $355 million in 1998 and just under $1 billion over 5 years. Some of those were overturned by Congress, some 

were overturned by courts, and so the actual net was somewhere 

in the neighborhood of $600 million. 

As to whether that is a large number or not depends on your perspective. It is obviously relatively small relative to the overall size 

of the budget and spending at that time. But on the other hand it 

is still $600 million. 

Senator ALLARD. Would you expect the same dynamics with this 

new piece of legislation if it were to pass? 

Mr. MARRON. It is difficult to predict because a lot will depend 

on how the President would choose to exercise it and how the Congress would respond. As I said, the history of the current rescission 

process suggests that it is not used that much. This proposal before 

us would give the President more incentive to use it, so you might 

imagine it would be used more. But then you would still face the 

question about whether or not the Congress would go along. 

Senator ALLARD. Have you had a chance to look at the fiscal note 

of the previous veto that was ruled unconstitutional by the Court? 

Mr. MARRON. I am sorry, when you say fiscal note? 

Senator ALLARD. The fiscal note upon—the line item veto that 

was eventually adopted by the Congress and then went before the 

Court, it had a positive fiscal note on it, if I recall. 

Mr. MARRON. You mean it had a net savings, as it was used? 

Senator ALLARD. That is correct. 

But then as we heard in testimony from Mr. Cooper, the argument was made it permanently eliminated the program, to put it 

in plain English. Was the fiscal note based on that, do you recall? 

Or was it based—and would you anticipate a future fiscal note 

would have that same—would they balance that against the previous note that was presented to the Congress from the other line 

item veto legislation being considered, as opposed to this one here? 

Mr. MARRON. I guess I am not entirely sure what you mean by 

fiscal note. 

Senator ALLARD. Well, when you make—you look at the impact 

of the budget. 

Mr. MARRON. Oh, you mean the cost impact. 

Senator ALLARD. Yes. 

Mr. MARRON. So in terms of the provisions that end up being vetoed? 

Senator ALLARD. Yes. 

Mr. MARRON. For discretionary items, we would score the 1-year 

discretionary amount of money because then Congress has the opportunity to revisit the level of discretionary spending the following 

88

year. For any mandatory item that would flow through the baseline, we would score it for however long the provision would have 

existed. 

Senator ALLARD. How would you project in this piece of legislation that passed, how would you project its cost out over 5 years? 

Mr. MARRON. So for this provision itself, one of the fundamental 

constraints that we operate under at CBO is that we cannot predict 

the behavior of Congress. So we have to take current law as it is 

written. 

So to make a decision about how this proposal would affect the 

10-year budget window, that would require a judgment on our part 

not just of how the President would use it but then how the Congress would respond. And so that is not something that we can directly go out and score. 

There might be some cost of implementing it that we might 

evaluate. But beyond that, it is not something that we could score. 

Senator ALLARD. Thank you. 

Mr. Cooper, in your argument, the main argument was before 

the Supreme Court. Is your view that this piece of legislation we 

have now, based on the arguments by the Supreme Court in the 

previous legislation, would that pass constitutional law? 

Mr. COOPER. That is my view of it, Senator Allard. As I mentioned, I was involved in the litigation of both the Raines case, representing Senator Byrd and other members of this body, and in the 

Clinton case in which the Supreme Court did strike down the previous 1996 Line Item Veto Act. 

And its central basis was the determination that to cancel an 

item of spending or a tax benefit was to eliminate it from the law 

as surely as a repeal by this body would. So a President would not 

be able to, or a successor President, would not be able to think differently about that decision, which is the key difference between a 

discretionary authority to spend or not to spend, which this body, 

this Congress has accorded to the President since the days of President Washington. 

And Presidents have been able to exercise that discretion with 

essentially the same result, moneys not spent do not get spent in 

the same way that moneys canceled do not get spent. 

But the difference is the difference between a President canceling 

or repealing a law which only this body can do and simply exercising a discretion that this body has given to him to exercise. That 

is the constitutional difference. And I think it is an outcome determinate difference, Senator, in these proposals. 

And so it is only with great reticence that I venture into disagreement with Senator Byrd, my former client, on a separation of 

powers issue but I do see it differently. 

Senator ALLARD. Thank you very much for your response. My 

time has expired, Mr. Chairman. 

Chairman GREGG. Thank you, Senator Allard. 

Senator CONRAD. Senator CONRAD. Thank you, Mr. Chairman. 

And I want to thank this group of witnesses. We appreciate very 

much your being here. I, too, apologize for being called away to a 

vote. But I did have a chance to review all of your testimony before 

this session. 

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Dr. Fisher, I started out this session by talking about the single 

greatest concern I have about this measure is a transfer or power 

from the legislative branch to the executive branch. Do you see 

that danger in this provision? And what tells you that there would 

be a transfer of power if such a measure were to pass? 

Mr. FISHER. I think a transfer of power is both what you do in 

the bill language, and also I would say transfer of power is in the 

perception of individual members and the public. So I was concerned, in my statement for the Committee, that the mere passage 

of the bill would send a signal that Congress is not up to the task, 

that the President is. That is a perception. And to me it is a very 

damaging perception. I happen to not believe that it is true. I think 

the record of Congress is as good as the President, if not better. So 

that is a perception. 

And then the actual, beyond the perception, is what we talked 

about here is the way this would play out, the President getting 

credit when he submits this. If you approve it, he gets more credit. 

If you do not approve it, he gets credit for putting it to you. And 

then, of course, there is the leverage we talked about. 

So I think on multiple levels there is a weakening of Congress 

as an institution. When you do that, you are weakening representative government and the placement by the framers of the spending 

power in the legislative branch. So I see it as very damaging. 

Senator CONRAD. Let me just ask you, on the question of leverage, because I have been here now 20 years and I have had Presidents come at me many different ways in order to persuade me to 

support a position or reject a position. 

Do you see it is possible that the scenario that I described at the 

beginning, that the President might be in conversation with a 

member, or as you described it could be a staff member, and just 

linking the two—that is, perhaps the President has a controversial 

nominee before the Senate, and at the same time is considering rescissions on members’ spending matters that are critically important back home. 

I come from Bismarck, North Dakota. We have a bridge called 

Memorial Bridge. That bridge desperately needs replacing. It is the 

gateway to the capital city in Bismarck, North Dakota. That bridge 

is being replaced on the Highway Bill. 

I do not think it is too far-fetched to think a President or his 

staff might let it be known to this member on a controversial appointment that he was at the same time considering building that 

Memorial Bridge. And maybe that would be a matter of rescission 

that would come before Congress. 

Does that sound far-fetched to you? 

Mr. FISHER. No, I think it is a real threat. There is always this 

effort of the two branches eventually to coordinate and find a consensus. But under the process in this bill, I think you are under 

pressure to play ball the way the President wants to play ball. And 

if you do not want to there is a penalty there. 

Senator CONRAD. Dr. Marron—thank you. 

Dr. Marron, you indicated that during the period that President Clinton had rescission authority only $600 million was rescinded 

over a 5-year period? Is that correct? 

Mr. MARRON. That is correct. 

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Senator CONRAD. What was the total budget during that 5-year 

period? Do you know? 

Mr. MARRON. In 1998, just for that year alone, it was $1.7 trillion. So multiply that by five. 

Senator CONRAD. So that would be $8.5 trillion over 5 years? 

Mr. MARRON. Yes. 

Senator CONRAD. $8.5 trillion. So $600 million of $8.5 trillion is 

an asterisk, almost, is it not? 

Mr. MARRON. It is small in relative terms, yes. 

Senator CONRAD. It is a very modest amount. It really made no 

significant difference in the trajectory of Federal spending. Of 

course, in that time we were not having deficits. We were having 

surpluses, were we not? 

Mr. MARRON. Toward the latter end of that period, yes. 

Senator CONRAD. So the fact is it made virtually no difference. 

I would go to Mr. Cooper if I could. My time is—just one final 

question, if I could. I thank the Chairman. 

Mr. Cooper, have you looked at this language with respect to this 

180 day deferral and how that could play out with multiple requests and just continuing to extend? Does that cause you a question in terms of constitutionality? 

Mr. COOPER. I have looked at it, Senator Conrad. And frankly, 

when I first looked at it, it was not all that clear to me that it did 

authorize serial rescissions with respect to the same item. 

Also, frankly, it is hard to imagine how such serial rescissions 

with respect to the same item would be consistent with what appears to be, on the face of the bill, its central purpose, which is 

simply to give this body the chance to vote up or down on the 

President’s proposal and consider his opinion as to whether or not 

a certain spenduing measure is well taken or not. One opportunity 

and then he either wins or——

Senator CONRAD. After listening, though, to the testimony this 

morning——

Mr. COOPER. It is pretty clear that the Administration’s witness 

agreed that the President, that the bill would, in fact, authorize serial rescissions with respect to the same item. 

Senator CONRAD. Could you help me and reflect on how a court 

might see that provision? 

Mr. COOPER. Well, I am reluctant to predict how a court would 

see it, but based on my own study of the authorities, Senator 

Conrad, I do not think it would represent a constitutional threat. 

Senator CONRAD. It would not fail on the constitutional question? 

Mr. COOPER. On the constitutional issue. 

Senator CONRAD. It may fail on other matters. It may fail as a 

question of policy, which I would strongly argue. 

Mr. COOPER. Yes. 

Senator CONRAD. But would not fail on the constitutional question. 

Mr. COOPER. And it appears to me that nobody on either side of 

this table wants to bring about the kinds of abuses or authorize the 

kinds of abuses that apparently might be possible under the bill, 

as written. It would be a simple matter, I think, to address. 

Senator CONRAD. I thank you for that. 

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I want to thank the witnesses. Dr. Fisher, did you have a 

final——

Mr. FISHER. On what Mr. Cooper just said. I would think if you 

have a fiscal year beginning and way into the fiscal year 130 days, 

and then the President gets a bill, and there is no time limit on 

when he has to send it up. And when he sends it up and then you 

add 180 days, the fiscal year is over and the money has been lost. 

It is expired. 

I just think that is flat out against the Clinton case. I just cannot 

imagine the Court allowing the President, through that process, to 

terminate something without any congressional action. It is the 

Clinton problem. 

Senator CONRAD. It strikes me that way, as well. I am not a lawyer, I would be the first went to confess. But it strikes me as he 

could accomplish the same purpose as what concerned the Court in 

the Clinton case. 

I am going to thank the witnesses very much for their time, their 

attention, and for their contribution to the Committee. 

Chairman GREGG. Thank you. 

To use a legal term, that is a moot point, in my opinion, because 

we are obviously not going to mark up a bill which allows that to 

happen. 

We are also not going to mark up a bill which would allow serial 

rescissions period. We are also not going to mark up a bill that 

does not give more authority in the area of tax rescission. 

So many of the issues which you raised here, which are legitimately raised, I think will be addressed in the vehicle we mark up. 

I think there are two points which this panel has made which 

I need to make note. First, the bill is constitutional, it appears. 

Second, the essence of Dr. Fisher’s complaint, if I understand it, 

is basically the perception or shift of authority and the capacity of 

the President to game the process potentially. 

And I would accept that argument if it were not for the fact that 

the omnibus appropriations bills have changed the playing field. 

We have gone to an omnibus appropriating process around here. 

You can even argue that we have gone to an omnibus mandatory 

program process such as the Part D drug program, which was a 

huge bill, sections of which probably should not have been put in 

but were put in. 

The President is put in a position where, on an omnibus bill, he 

is signing legislation which can spend $300 billion or $400 billion. 

In fact, he spend the entire discretionary budget in some instances, 

which would be approximately $900 billion. He has no capacity to 

get at specific programmatic activity. 

And so the chance to take what I call a second look fast track 

rescission process is, I think, a legitimate right that should be considered for the President. The question is how you do it without 

creating disproportionate authority within the executive branch. 

But the one issue that has been raised, and was touched on by 

Senator Byrd, that I am not comfortable yet with how to address—

and this is what I want to get your thoughts on. Most of the items, 

especially which were raised by the Senator from North Dakota in 

his list of eight, I think we can address. 

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But the one issue which does concern me is this question of 

whether we should give the right to amend to the rescission package when it comes up. In other words, should there be motions to 

strike against that package or does it have to be an up or down 

vote? 

The BRAC Commission is really, I think, the template to look at 

here. The theory was if you do not have an up or down vote on the 

final product as presented to the Congress, the Congress will simply eviscerate it and make it a nonfunctional event. 

On the other side of the coin, what limits the President’s ability, 

if he has to send up a package where everything has to be taken 

and nothing can be taken out, is the fact that if he puts too much 

in there that has too many constituencies in opposition, then he is 

not going to be able to pass his package. 

I think the classic example here would be agricultural issues, 

where log rolling has become the process by which agricultural appropriations occur, where the sugar people support the cotton people, the cotton people support the soybean people, and so on and 

down the road. As individual groups they do not have the authority 

to pass their bill, but as a log rolling exercise they always get their 

legislation through, some of which is quite egregious in the area of 

spending money. 

So I guess I would be interested to know what the panel thinks 

about whether we should allow the package to be picked at through 

the motions to strike, which would address one of the key concerns 

that Senator Byrd had? Or whether the basic impetus or the basic 

influence on the President’s presentation is going to be such that 

he is going to have to send up packages which can pass the Congress and therefore not have so many constituencies against it that 

it is an irresponsible package or a package which is unsalable. 

Which one of those approaches is most appropriate, the one the 

President has chosen? Or the Byrd approach, which would be motions to strike against the package? 

If we could start with Dr. Marron and move down the line as to 

what your thoughts would be on that. 

Mr. MARRON. A lot is going to depend on what the incentives are 

of the President in designing what packages to send up. As I understand the proposal, the President would already have the ability 

to parse it up as narrowly as he would like and in principle could 

thereby offer up whatever he thinks are sort of the right size packages, the right combination of things to get through, and also in 

essence to pre-strike those things that he thinks would be problematic and that Congress would advise him would be problematic. 

So I think the more that you strengthened the opportunity to 

strike provisions, the more you would see the President going to 

smaller and smaller packages that would be suggested. 

Chairman GREGG. Let us say we limit the number of packages 

he can send up on the theory that we do not want him controlling 

the legislative calendar? This was a point which was made earlier, 

and I think it is legitimate. 

So he maybe only gets the opportunity after an omnibus is sent 

up, to send up say two motions for rescissions and two rescission 

packages and they have to be—and they cannot be over a certain 

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threshold of spending, or something like that that does not allow 

him to rescind the entire exercise. 

Would that address the issue or aggravate the issue? 

Mr. MARRON. That would place more pressure on the President 

to figure out the optimal bundles to send up. He would have to exercise presumably more choice in deciding which to include in a 

very limited number of packages. So then it is the usual question 

of does the ability for the Congress to strike provisions, does that 

make it easier or harder for him to accomplish what he has in 

mind? 

I would have to defer to you, actually, on that. 

Chairman GREGG. Do not do that, that is a mistake. 

Mr. Cooper? 

Mr. COOPER. Unfortunately, I am going to have to do the same 

thing, Mr. Chairman, and defer to you on that. I do not think that 

these issues rise to the level of constitutional moment. 

Chairman GREGG. I understand that. 

Mr. COOPER. Whatever ultimately this body determines shall be 

the President’s discretion in this area will be what it is. And I defer 

to the greater expertise of my panel members here and their understanding of this process and of the real politik that underlies it. Of 

course, I am sure that Mr. Smythe would have some opinions from 

the Administration on those issues. But I honestly do not. 

Chairman GREGG. Dr. Fisher, I see you have the Dartmouth 

mantle, so I know you must have an answer to this question. 

Mr. FISHER. I would say it might not rise to a constitutional moment, the way Mr. Cooper just said it. I think it is a constitutional 

moment for Congress protecting itself and whether a court would 

find it OK or not. I think you still have to worry, as you are, about 

how many packages. So I think there are a lot of things you could 

do to make sure there is not as much mischief and abuse. 

I did like the comparison you were making with the BRAC because if you look at it the way this item veto bill would work, even 

if you modify it, is still looks like the President has total control 

over what gets in the package whereas BRAC seems like it is a 

multilayered process where there is a list of things and it is publicly—and people scream and shout. And eventually it comes up. 

And then Congress, once it comes up, it is an up or down vote. 

I think the same thing goes through in the trade packages where 

when the implementing bill comes up with the fast track, it is no 

amendments, it is up or down. But before the implementing bill 

comes up, it comes up in some informal way and there is a lot of 

back channel way for Congress to participate in what the final implementing bill is. 

So that part, I think, is very healthy, that give and take on an 

informal and formal basis, and these other BRAC-type trade agreements. 

So I think obviously you can do a lot of things in this bill to place 

limits on what a President can do and also on the opportunity to 

strike certain items. There are many things you can do to adjust 

the executive/legislative balance. 

Chairman GREGG. The problem with the BRAC, of course, was 

there was a commission in between the Executive and the legislative branch. The Commission held hearings. I am not sure that 

94

that is probably constructive to the process in something like this, 

to put a commission in the middle of it. But it did give you an airing opportunity, which my state took advantage of and was successful with. 

But the issue of whether or not you give the authority to strike 

as versus you have to vote up or down the package is, I think, a 

key issue here. So if you folks have some more thoughts on it as 

you are reflecting on the testimony today, we would appreciate getting your input. 

There is another vote on, so we are going to have to adjourn the 

hearing. But I certainly appreciate your testimony. It has been 

very substantive and to the point and very helpful to us. 

Thank you taking the time to come by. 

[Whereupon, at 11:56 a.m., the committee was adjourned.]

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