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[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]

 
                  LINE-ITEM VETO CONSTITUTIONAL ISSUES

=======================================================================

                                HEARING

                               before the

                        COMMITTEE ON THE BUDGET
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

              HEARING HELD IN WASHINGTON, DC, JUNE 8, 2006

                               __________

                           Serial No. 109-19

                               __________

           Printed for the use of the Committee on the Budget

                       Available on the Internet:
       http://www.gpoaccess.gov/congress/house/budget/index.html

                                 ______

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                        COMMITTEE ON THE BUDGET

                       JIM NUSSLE, Iowa, Chairman
JIM RYUN, Kansas                     JOHN M. SPRATT, Jr., South 
ANDER CRENSHAW, Florida                  Carolina,
ADAM H. PUTNAM, Florida                Ranking Minority Member
ROGER F. WICKER, Mississippi         DENNIS MOORE, Kansas
KENNY C. HULSHOF, Missouri           RICHARD E. NEAL, Massachusetts
JO BONNER, Alabama                   ROSA L. DeLAURO, Connecticut
SCOTT GARRETT, New Jersey            CHET EDWARDS, Texas
J. GRESHAM BARRETT, South Carolina   HAROLD E. FORD, Jr., Tennessee
THADDEUS G. McCOTTER, Michigan       LOIS CAPPS, California
MARIO DIAZ-BALART, Florida           BRIAN BAIRD, Washington
JEB HENSARLING, Texas                JIM COOPER, Tennessee
DANIEL E. LUNGREN, California        ARTUR DAVIS, Alabama
PETE SESSIONS, Texas                 WILLIAM J. JEFFERSON, Louisiana
PAUL RYAN, Wisconsin                 THOMAS H. ALLEN, Maine
MICHAEL K. SIMPSON, Idaho            ED CASE, Hawaii
JEB BRADLEY, New Hampshire           CYNTHIA McKINNEY, Georgia
PATRICK T. McHENRY, North Carolina   HENRY CUELLAR, Texas
CONNIE MACK, Florida                 ALLYSON Y. SCHWARTZ, Pennsylvania
K. MICHAEL CONAWAY, Texas            RON KIND, Wisconsin
CHRIS CHOCOLA, Indiana
JOHN CAMPBELL, California

                           Professional Staff

                     James T. Bates, Chief of Staff
       Thomas S. Kahn, Minority Staff Director and Chief Counsel

                            C O N T E N T S

                                                                   Page
Hearing held in Washington, DC, June 8, 2006.....................     1
Statement of:
    Charles J. Cooper, Partner with Cooper and Kirk, PLLC........     8
    Viet D. Dinh, Professor of Law, Georgetown University........    15
    Louis Fisher, specialist at the Law Library of the Library of 
      Congress...................................................    22
Prepared statement of:
    Hon. Paul Ryan, a Representative in Congress from the State 
      of Wisconsin...............................................     4
    Mr. Cooper...................................................    11
    Mr. Dinh.....................................................    17
    Mr. Fisher...................................................    25

                  LINE-ITEM VETO CONSTITUTIONAL ISSUES

                              ----------                              

                         THURSDAY, JUNE 8, 2006

                          House of Representatives,
                                   Committee on the Budget,
                                                    Washington, DC.
    The committee met, pursuant to call, at 9:30 a.m., in room 
210, Cannon House Office Building, Hon. Jim Ryun (acting 
chairman of the committee) presiding.
    Members present: Representatives Ryun, Bonner, Diaz-Balart, 
Hensarling, Lungren, Ryan, Campbell, Spratt, Moore, Neal, and 
Cooper.
    Mr. Ryun [presiding]. Good morning, everyone, and welcome. 
Today the Budget Committee will hold the second of two hearings 
on the line item veto prior to marking up the legislative Line 
Item Veto Act of 2006 introduced by Representative Paul Ryan on 
this committee. Before we go further, I would like to take a 
moment and congratulate our troops on a very significant 
capture of Abu Musab al-Zarqawi, a terrorist who obviously has 
been significant in the war on terrorism, and our prayers and 
thoughts go with the troops as they continue to fight this most 
important battle.
    Prior to the adjournment for the Memorial Day break, we 
heard from several experts on how the line item veto might best 
be used to reduce the necessary Federal spending. Today, our 
discussion will focus on specific constitutional issues 
associated with the use of the line item veto. And I am pleased 
to have with us several experts on this issue: Charles Cooper, 
Partner with Cooper and Kirk; Viet Dinh, who is Professor of 
Law at Georgetown University Law Center; and Louis Fisher, 
Specialist at the Law Library at the Library of Congress. 
Welcome, and we look forward to receiving your testimony.
    Controlling the budget is one of the most important 
obligations Congress has as the good stewards of the taxpayers' 
money, making sure it gets spent wisely and prudently and not 
wastefully. The aim of the Line Item Veto Act is to provide 
another tool that can help in this ongoing effort. But we also 
have an even higher obligation, and that is to protect the 
Constitution on which the entire framework of government and 
the democratic freedoms we enjoy is based.
    As I noted, the purpose of today's discussion is to ensure 
we do all we can to balance these budgetary and constitutional 
obligations. As all of you are likely aware, Congress has tried 
before to create a commonsense mechanism such as this which 
would allow the President to strike individual items from the 
spending bill and to help trim away some of the unnecessary 
parochial items that sometimes get tacked onto legislation that 
gets moved through Congress. But the previous attempts, when 
tested in the courts, had not met the rigorous demands of the 
Constitution. So great care has been taken with Congressman 
Ryan's bill to learn from the earlier efforts and to meet 
constitutional guidelines. And our witnesses today will offer 
their opinion about whether these measures achieve these goals.
    I know that most members of this committee and most Members 
of Congress, certainly our witnesses today, have very strong 
opinions about this matter, and there is good reason. One of 
the principal concerns of this Nation's Founding Fathers was to 
protect the freedom and liberty of the people. They went to 
great lengths to design a government that would prevent any one 
person or group from becoming too powerful, and our 
Constitution is the blueprint of that government. Anything that 
might affect the balance achieved by that blueprint must be 
analyzed, and we will do that today in a very serious way.
    As we face the important challenges of managing the 
government's purse, we must make sure that in our efforts to 
regain control of spending, we also stay consistent with the 
Constitution that has safeguarded our freedoms for more than 
200 years. And we certainly hope that this hearing today will 
be of use in that effort. And I want to thank our witnesses for 
being here.
    And at this point, I would like to turn to Mr. Spratt for 
any comments he would like to make.
    Mr. Spratt. Thank you, Mr. Chairman. I echo your welcome to 
our witnesses this morning. And we are going to take up 
constitutional perspectives on the line item veto or on 
rescission.
    Mr. Chairman, I can't help but note the irony we are taking 
up budget processes at a time when we don't have a budget, at 
least a concurrent resolution on the budget, and you have to 
wonder if this is something of a diversionary tactic. When we 
had the last hearing, it was acknowledged that if we adopt a 
rescission, expedited enhanced rescission, it is not likely to 
resolve a deficit of 3- to $400 billion. Certainly won't rid us 
of that deficit. It could bring it down a bit, but it leaves 
most of the work yet to be done.
    The justification for this enhanced and expedited 
rescission bill instead was stated in terms of improving, 
transforming, making clearer and more transparent the processes 
of the Congress, improving our scrutiny, and making sure that 
we scrub the budget good to get rid of extraneous and 
unjustified spending items.
    If that is really our objective, there are other tools that 
we are not dealing with at all, at least not in this hearing 
which is simply focused on one particular solution to the 
problem. And it may be a minor solution compared to some that 
we could also and should consider.
    For example, simple solutions like a layover of spending 
bills so that we can actually scrutinize the spending bill, 
read the spending bill, explore the spending bill, and find out 
what is in it that might be subject to question, particularly 
on the floor. More sunshine, better identification of earmarks, 
better identification of earmarks to Members and to the 
intended beneficiary, and the discussion of their merits and 
demerits. And there are lots of things that we can do to 
improve the processes of the Congress when it comes to spending 
money--and maybe even rein in and restrain spending--that are 
not on the table with just a line item veto.
    There is a possibility--and we should be aware of this: 
that a line item veto in the hands of a clever, manipulative 
President could actually be used to increase spending rather 
than decrease spending, particularly the way the bill is drawn 
in its current form; because in its current form, the President 
could go back and propose an item veto of anything--not 
something recently adopted, but anything adopted since the 
adoption or enactment of this bill--could go back and pull that 
up with its application to a particular Member and threaten, 
cleverly of course, under the guise of AOA, that this would be 
the subject of a rescission request unless a Member acceded to 
a President's demand that a Member vote for this or that, that 
the President was particularly pushing.
    So unless we are careful about how we much structure this 
cession of authority from the Congress to the President, we 
could actually increase the means by which a devious, 
manipulative President could extract spending from the Congress 
of the United States.
    At bottom, this is an acknowledgement that Congress cannot 
do its job well and needs more tools to do the job, but 
basically the tool we are coming up with is one whereby we 
transfer more authority to the President of the United States. 
Before we go to that end, I think we would be well advised to 
take a look at the other things that are useful to us here in 
the Congress so that we can do our job better. At least those 
things should be on equal footing, standing with the line item 
veto that we will be considering today in the form of an item, 
a rescission item.
    So, Mr. Chairman, I welcome the discussion of this topic, 
but I think there are other things that we also need to be 
looking at before we move this bill to the floor for passage, 
and I welcome our witnesses and look forward to their 
testimony. Thank you very much indeed.
    Mr. Ryun. Thank you, Mr. Spratt, for your comments.
    At this point, before we hear from our witnesses, I would 
just like to recognize the sponsor of this bill, Mr. Ryan, for 
any comments he would like to make.
    Mr. Ryan. Thank you Mr. Chairman, I will be fairly brief. I 
want to thank the committee for holding this hearing on this 
issue and the distinguished witnesses for coming here. In 
particular, I would like to recognize Mr. Cooper and Mr. Dinh 
for their efforts to work with our office to ensure that this 
legislation that comes out of this committee is constitutional, 
and I want to thank you two for being here today.
    As members of this committee know, I have been very 
supportive of the expedited rescissions approach for a long 
time. I used to work on this issue on a bipartisan basis with 
Charlie Stenholm. Now we are working with people like Mr. 
Cooper, Mr. Cuellar, and other Democrats in order to try to get 
this legislation passed.
    I agreed with the Supreme Court's ruling in Clinton versus 
the City of New York, in which our guest, Mr. Cooper, argued 
that the previous version of the line item veto violated the 
bicameralism and presentment clause of the U.S. Constitution.
    In addition, I also had strong concerns that the previous 
approach violated the separation of powers between the 
executive and legislative branches because it did not require 
Congress to act for the line item veto to take effect. Although 
the Supreme Court's holding did not turn on this question, this 
was a strong factor in the decision in the lower courts.
    Despite problems with the previous line item veto, we must 
try again to help bring fiscal restraint to the budget process, 
to bring transparency and accountability to the back end of the 
process. The earmark reforms that we recently passed as part of 
the lobbying reform bill in the House will shed light, just 
like what Mr. Spratt talked about, will shed light on the front 
end of the spending process, but we need to extend that 
throughout the whole process.
    I believe that this legislation that we are discussing 
today will do just that, and I believe that it will do so in a 
constitutional manner.
    The reason this version is constitutional is that it keeps 
Congress in the process where it belongs. Congress retains the 
power of the purse in the final say-so on any proposed 
rescission. No rescission can take effect without Congress' 
approval. And Congress can reject the President's request with 
a simple majority vote. At the same time, a process we are 
proposing comports with the bicameralism and presentment clause 
because both houses must act affirmatively and the President 
must sign the approval bill into law before it can take effect. 
This is directly in line with the process envisioned by our 
Founding Fathers.
    Before I turn to the witnesses, I would like to reach out 
again to my colleagues on the other side of the aisle. During 
the last hearing on this issue, Mr. Spratt and others made very 
valid criticisms of H.R. 4890 that I am working strenuously 
with this committee and with Democrats to try and address these 
concerns.
    For example, I agree with Mr. Spratt that we should limit 
the number of requests that the White House sends down to 
Congress. And I also believe that 180 days is probably too long 
for a period of these deferrals. So let's work together on 
this. Let's come up with a strong bipartisan product, change 
the culture of spending around here, and really begin to 
address our fiscal problems and do so in a constitutional 
manner. And I think this hearing will help us accomplish those 
goals.
    And with that, I thank the Chairman for yielding.
    [The prepared statement of Mr. Ryan of Wisconsin follows:]

Prepared Statement of Hon. Paul Ryan, a Representative in Congress From 
                         the State of Wisconsin

    Chairman Nussle, thank you for holding today's markup to consider 
H.R. 4890, the Legislative Line-Item Veto Act of 2006. I am very 
pleased that the House Budget Committee has decided to move forward on 
this important piece of legislation, and I am satisfied with the 
excellent bill that we have before us today. The manager's amendment to 
H.R. 4890 is the product of exhaustive consultations with Members and 
staff of the House Budget Committee, the House Rules Committee, the 
Office of Management and Budget (OMB), constitutional lawyers, 
Democrats, Republicans, and many other interested parties. We are 
certain of this bill's constitutionality, we are certain that it is 
narrowly crafted to meet its intent, and we are certain of the need to 
pass this legislation to help us control Federal spending. I look 
forward to the Committee's passage of this legislation and its ultimate 
consideration on the House floor. It is my strong belief that H.R. 4890 
will take an important step toward bringing greater transparency, 
accountability and a dose of common sense to the Federal budget 
process.

            THE SPENDING AND EARMARKING PROBLEM IN CONGRESS

    The amount of pork-barrel spending included in the Federal budget 
continues to increase every year. According to Citizens Against 
Government Waste (CAGW), the Federal Government spent $29 billion on 
9,963 pork-barrel projects in Fiscal Year 2006 (FY 2006), an increase 
of 6.3% from 2005, and an increase of over 900% since 1991. Overall, 
the Federal Government has spent $241 billion on pork-barrel projects 
between 1991 and 2005, an amount greater than two-thirds of our entire 
deficit in FY 2005. This includes irresponsible spending on items such 
as the $50 million Rain Forest Museum in Iowa; $13.5 million to pay for 
a program that helped finance the World Toilet Summit; and $1 million 
for the Waterfree Urinal Conservation Initiative.
    To make matters worse, this total does not include earmarks placed 
in authorization bills or special-interest tax pork placed in tax 
legislation. As an example, last year's highway authorization bill 
contained approximately 6,371 earmarks, with a total cost of $25 
billion.
    Many of these pork-barrel spending projects are quietly inserted 
into the conference reports of appropriations, authorizing, and tax 
bills at the end of the process where there is little transparency and 
accountability. Not only do most Members not have the ability to 
scrutinize these provisions at all, but even if wasteful spending items 
are identified at this stage, Congress is unable to eliminate them 
using the amendment process. In fact, the only time that Members 
actually vote on these items is during an up-or-down vote on the entire 
conference report, which includes spending for many essential 
government programs in addition to the pork-barrel earmarks. In this 
situation, it is very difficult for any Member to vote against a bill 
that, as an overall package may be quite meritorious, despite the 
inclusion of wasteful spending items.
    Unfortunately, the current tools at the President's disposal do not 
enable him to easily combat these wasteful spending items either. Even 
if the President identifies numerous pork-barrel projects in an 
appropriations or authorizing bill, he is unlikely to use his veto 
power because it must be applied to the bill as a whole and cannot be 
used to target individual items. This places the President in the same 
dilemma as Members of Congress. Does he veto an entire spending bill 
because of a few items of pork when this action may jeopardize funding 
for our troops, for our homeland security or for the education of our 
children?
    The President's ability to propose the rescission of wasteful 
spending items under the Impoundment Control Act of 1974 has been 
equally ineffective at eliminating wasteful spending items. The problem 
with the current authority is that it does not include any mechanism to 
guarantee congressional consideration of a rescission request, and many 
Presidential rescissions are simply ignored by the Congress. In fact, 
during the 1980's, Congress routinely ignored President Reagan's 
rescission requests, failing to act on over $25 billion in requests 
that were made by the Administration. The historic ineffectiveness of 
this tool has deterred Presidents from using it with any regularity.

    SUMMARY OF H.R. 4890, THE LEGISLATIVE LINE-ITEM VETO ACT OF 2006

    To help bring accountability and transparency to the end of the 
budget process, I introduced H.R. 4890, the Legislative Line-Item Veto 
Act of 2006, on March 7, 2006. This legislation, which currently has 
the support of 106 bipartisan cosponsors in the House, is one important 
step toward the reform of the Federal budget process to force Congress 
to take better care of taxpayer dollars. It will serve as an important 
complement to earmark reforms that the House passed as a part of H.R. 
4975, the Lobbying Accountability and Transparency Act of 2006, which 
will bring greater transparency to the front end of the process.
    H.R. 4890 achieves this objective by providing the President with 
the authority to single out wasteful spending items and narrow special-
interest tax breaks included in legislation that he signs into law and 
send these specific items back to Congress for a timely vote. After 
Congress receives the rescission requests from the President, H.R. 4890 
requires an up-or-down vote in both chambers of Congress before the 
rescissions can become law. This requirement ensures that Congress 
retains control over the power of the purse and will have the final 
word when it comes to spending matters. In addition, H.R. 4890 also 
includes a mechanism that would guarantee congressional action on the 
proposed rescissions in an expedited time frame, which will make it 
much more effective than the current rescission authority vested in the 
President under the Impoundment Control Act of 1974.
    The process under the manager's amendment to H.R. 4890 begins when 
the President signs an appropriations bill, authorizing bill, or tax 
bill into law. Within 45 days of enactment, the President would have 
the ability to put on hold wasteful discretionary spending items, 
wasteful direct spending items, or new special-interest tax breaks and 
could ask Congress to rescind these specific items.
    After receiving a rescission request from the President, the House 
and Senate leadership or their designees would have 5 days to introduce 
an approval bill. The bill would then be referred to the appropriate 
committee, which would have 7 days to report the bill to the floor 
without substantive revision. If the committee failed to act within 
this limited time period, the bill would then be subject to a 
privileged motion to discharge, which could be raised by any Member and 
would have the effect of bringing the bill directly to the House floor 
for a vote. This would guarantee that the rescission request could not 
be ignored and would ensure its consideration by the full House and 
Senate within 14 total legislative days after the receipt of the 
President's message.
    Once on the floor, Congress would have an up-or-down vote on these 
spending items. If Congress agrees with the President to rescind the 
funding, the spending would be cancelled. On the other hand, if 
Congress does not agree with the President and votes against his 
rescission request, the money would have to be obligated within a 
narrow timeframe.
    Using the Legislative Line-Item Veto, the President and Congress 
will be able to work together to combat wasteful spending and add 
transparency and accountability to the budget process. This tool will 
shed light on the earmarking process and allow Congress to vote up or 
down on the merits of specific projects added to legislation or to 
conference reports. Not only will this allow the President and Congress 
to eliminate wasteful pork-barrel projects, but it will also act as a 
strong deterrent to the addition of questionable projects in the first 
place. At the same time, Members who make legitimate appropriations 
requests should have no problem defending them in front of their 
colleagues if they are targeted by the President. With H.R. 4890, we 
can help protect the American taxpayer from being forced to finance 
wasteful pork-barrel spending and ensure that taxpayer dollars are only 
directed toward projects of the highest merit.

                         CONSTITUTIONAL ISSUES

    Unlike the line-item veto authority provided to President Clinton 
in 1996, H.R. 4890 passes constitutional muster because it requires an 
up-or-down vote in both chambers of Congress under an expedited process 
in order to effectuate the President's proposed rescissions. In Clinton 
v. City of New York, the U.S. Supreme Court held that the line-item 
veto authority provided to President Clinton in 1996 violated the 
Presentment Clause of the U.S. Constitution (Article I, Section 7, 
Clause 2), which requires that ``every bill which shall have passed the 
House of Representatives and the Senate, shall, before it become a Law, 
be presented to the President of the United States.'' The problem with 
the previous version of the line-item veto was that the President's 
requested rescissions would become law by default if either the House 
or Senate failed to enact a motion of disapproval to stop them from 
taking effect. The lower court in Clinton v. City of New York also held 
that this version of the line-item veto upset the balance of power 
between the executive and legislative branches. On the other hand, H.R. 
4890 leaves Congress in the middle of the process where it belongs and 
follows the procedure and balance of power outlined in our 
Constitution.
    Perhaps the most compelling evidence of this bill's 
constitutionality in contrast to the 1996 Act and the decision in 
Clinton v. City of New York is the support of Charles J. Cooper, a 
partner at Cooper & Kirk, PLLC. Whereas Mr. Cooper argued against the 
previous version of the Line-Item Veto in the Supreme Court and was 
instrumental in the decision to have it overturned, Mr. Cooper now 
strongly supports the constitutionality of H.R. 4890. In fact, Mr. 
Cooper has testified three times in Congress that H.R. 4890 is 
constitutional, including last week in front of this Committee.
    H.R. 4890 also withstands constitutional scrutiny under the U.S. 
Supreme Court's holding in I.N.S. v. Chadha. In I.N.S. v. Chadha, the 
Supreme Court invalidated part of the Immigration and Nationality Act 
that allowed a single house of Congress to override immigration 
decisions made by the Attorney General. The Legislative Line-Item Veto 
Act of 2006 is consistent with this holding because the President's 
authority to defer funds would not explicitly be terminated by the 
disapproval of a proposed rescission by one of the houses of Congress.
    I agree with the Supreme Court's rulings in Clinton v. City of New 
York and I.N.S. v. Chadha. It is extremely important that Congress does 
not cede its law-making power to the President. I believe that this 
violates the Separation of Powers in addition to the Presentment 
Clause. By contrast, H.R. 4890 withstands constitutional scrutiny 
because it requires both houses of Congress to act on any rescission 
request and for this legislation to be sent back to the President for 
his signature before the spending cancellation can take effect. This 
retains the power of the purse in the legislative branch and keeps 
Congress in the middle of the process as envisioned by our founding 
fathers.

        THE EXPEDITED RESCISSIONS APPROACH--A BIPARTISAN HISTORY

    The Legislative Line-Item Veto Act is based on an expedited 
rescissions approach to controlling spending that has been historically 
supported by both Democrats and Republicans as a means of bringing 
greater transparency and accountability to the budget process. In fact, 
the Ranking Member of this Committee, Mr. Spratt, introduced two pieces 
of legislation in the early 1990's that would have provided the 
President with the ability to propose the cancellation of spending 
items and special-interest tax breaks and have them considered by 
Congress on an expedited basis. The first of these bills, the Expedited 
Rescissions Act of 1993, was introduced by Mr. Spratt on April 1, 1993. 
When it was considered on the House floor later that month, it received 
258 votes, including 174 from Democratic Members. A second budget 
process reform bill that included expedited rescissions language was 
introduced by Mr. Spratt on June 17, 1994. When this bill was voted on 
by the entire House later that year, it received 342 votes, including 
173 votes from Members of the Democratic Party.
    I have also worked on this issue on a bipartisan basis. On June 24, 
2004, I offered an amendment with my former colleague Representative 
Charlie Stenholm, a Democrat from Texas, to add expedited rescissions 
provisions to a budget process bill that was being considered on the 
House floor at the time. Like H.R. 4890, this amendment would also have 
allowed the President to propose the elimination of wasteful spending 
items subject to congressional approval under an expedited process. 
Although this amendment failed to pass the House, it attracted the 
support of 174 Members of Congress, including 45 Democrats. A similar 
provision is also included in Section 311 of the Family Budget 
Protection Act, legislation that I introduced along with Congressman 
Jeb Hensarling of Texas, Congressman Chris Chocola of Indiana, and 
former Congressman Christopher Cox of California during 2004 and again 
in 2005.

    REVISIONS TO H.R. 4890--ATTEMPTS TO ADDRESS BIPARTISAN CONCERNS

    Since introducing H.R. 4890, I have received substantial feedback 
from interested Members of Congress on ways to improve the legislation 
to ensure that it best meets its intent of controlling Federal spending 
while keeping the power of the purse squarely in the legislative 
branch. I have had extensive consultations with Members and staff on 
the House Budget Committee, the House Rules Committee, OMB, 
constitutional lawyers, Democrats, Republicans, and many other 
interested parties. We have discussed many ways to tweak the original 
language of H.R. 4890, and I am very pleased with the product that we 
are considering today. I believe that the revisions we have made ensure 
that the bill meets its intent of allowing the President and Congress 
to work together to reduce wasteful spending earmarks while ensuring 
that Congress does not grant too much power to the executive branch.
    As I worked to revise this bill, I paid special heed to the 
comments made by the Ranking Member of this Committee, who has a long 
history of working on this issue. During a hearing that the House 
Budget Committee held on this bill on May 25, 2006, Mr. Spratt pointed 
out numerous concerns with the original version of H.R. 4890. Among the 
Ranking Member's criticisms were the following: (1) the lack of a time 
frame for the President to make a rescission request; (2) the ability 
of a President to make the same rescission request numerous times; (3) 
the ability of a President to suspend spending for up to 180 days or 
longer; (4) the potential that this legislation could be used to go 
after existing entitlement programs; and (5) the lack of a sunset date 
on the bill.
    I found many of Mr. Spratt's concerns to be valid. Not only were 
they things that I had already contemplated changing in the bill, but 
many of his concerns echoed criticisms that I had received from the 
other parties with whom I had been consulting about the legislation.
    As a result, the manager's amendment makes numerous positive 
changes to the bill, including nearly every issue brought up by Mr. 
Spratt. First, the manager's amendment includes a 45-day limitation on 
the amount of time that the President has to submit a rescission 
request. I believe that this is an important change to help prevent the 
President from holding undue sway over Members of Congress.
    Second, the manager's amendment also prevents the President from 
making duplicative requests of the same spending and tax items. Not 
only will this authority apply to rescission requests under this bill, 
but it will also prevent a President from combining the new authority 
with existing law to make multiple rescission requests. This change 
will prevent the President from continually forcing Congress to vote on 
the same rescission requests multiple times in order to slow 
legislative action on other bills.
    The manager's amendment also significantly shortens the 180-day 
deferral period. In fact, under the bill we are considering today, the 
President would be given the ability to defer spending for 45 calendar 
days with the option to renew this authority for another 45 calendar 
days. The language is also drafted to encourage the President to 
obligate the funding as soon as either house of Congress votes against 
a proposal on the floor. While my preference would have been to have 
the deferral period directly linked to congressional action of either 
house, this raises serious constitutional concerns under the 
Bicameralism and Presentment Clause. As a result, we have settled on an 
approach that restrains the deferral authority as much as possible 
while respecting the Constitution and ensuring that the authority will 
not lapse when Congress goes into an extended recess.
    Next, the manager's amendment also addresses Mr. Spratt's concerns 
that it could be used as a tool to go after existing entitlement 
programs. Although this was never my intention in drafting the bill, I 
am respectful of the concerns raised by the Ranking Member and have 
included explicit language to prohibit this possibility.
    Finally, I have also worked with another friend of mine from the 
Democratic side, Mr. Cuellar, to include a sunset provision in this 
legislation and directly address Mr. Spratt's fifth concern. Mr. 
Cuellar has been a strong advocate of this bill, and I am very pleased 
that he is offering an amendment today to impose a 6-year sunset on 
H.R. 4890. This will give Congress the ability to review this 
legislation and decide whether or not to renew it after two 
Presidential Administrations have had the full opportunity to use it as 
a tool to control spending.
    An additional change that I made to the bill was to add a provision 
to limit the number of rescission requests that the President can make 
per bill he signs into law. Under the manager's amendment, the 
President's requests would be limited to five per bill with an 
exception for ten for an omnibus spending bill. Like some of the other 
changes, this will go a long way toward preserving the separation of 
powers between the Executive and Legislative branches.
    Finally, the language on the direct spending items and tax 
provisions was clarified to ensure that the President only has the 
ability to go after wasteful spending items, not policy. The intent of 
this bill is for the President to target unnecessary earmarks and work 
with Congress in a respectful fashion in order to eliminate them from 
legislation, not to give the President another tool to go after policy 
provisions passed by Congress. I believe that the revised version of 
this bill strikes an important balance of power between the branches of 
government and is narrowly crafted to meet its intent of allowing the 
President to propose to eliminate wasteful spending items.

                               CONCLUSION

    In 2006, the Federal Government will once again rack up an annual 
budget deficit of over $300 billion, and our debt is expected to 
surpass $9 trillion. Meanwhile, the retirement of the baby boom 
generation looms on the horizon, threatening to severely exacerbate 
this problem. Given these dire circumstances, it is essential that we 
act now to give the President all of the necessary tools to help us get 
our fiscal house in order. By providing the President with the scalpel 
he needs to pinpoint and propose the elimination of wasteful spending, 
H.R. 4890 takes an important step toward achieving this goal. The value 
of this bill will be measured less in the number of wasteful projects 
that are eliminated and more by how many never get inserted in the 
first place.

    Mr. Ryun. We will begin now with our witnesses. And our 
first witness is Mr. Cooper. I look forward to your comments.

 STATEMENT OF CHARLES J. COOPER, PARTNER WITH COOPER AND KIRK, 
                              PLLC

    Mr. Cooper. Thank you very much, Mr. Chairman and Members 
of the committee.
    It is a great honor for me to be here this morning to 
present my views on this issue to you, and it is especially 
gratifying to join a panel this morning with two of my old 
friends and very distinguished scholars, Dr. Fisher and 
Professor Dinh.
    I also have to say that it was a special honor for me back 
in 1997 to represent 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, as 
Congressman Ryan has previously mentioned. And I think that 
issue, that case, largely controls the constitutional analysis 
here, and I will devote the bulk of my remarks to that case.
    The Line Item Veto Act of 1996 provided that the President 
may, in the words of the statute itself, cancel in whole the 
same types of spending and tax benefits that are at issue in 
the measure now 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 and 
chosen by Congress to make clear that the President's actions 
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 this body. 
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 canceled it. A 
successor President could not--could not see the matter 
differently and reverse that previous President's decision.
    The law itself was gone after cancellation. And it could be 
restored only by a disapproval bill that was enacted according 
to the procedure prescribed by Article I, section 7 of the 
Constitution.
    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 provision--with 
the procedures established under Article I, section 7, for 
enacting or repealing a law; that is, 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 
before you, in contrast, is framed in careful obedience, I 
submit, to Article I, section 7, and to the Supreme Court's 
teaching in the Clinton case. The President is not authorized 
by this bill to cancel any spending or tax provision or 
otherwise to prevent such 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, until it--until 
this body and the Senate have passed a rescission bill and that 
bill has been presented to the President for his consideration 
and approval.
    Now, to be sure, H.R. 4890 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 also 
be authorized to terminate his deferral if, according to the 
bill, the President determines that continuation of the 
deferral would not further the purposes of the act.
    So the President would have discretion, after suspending or 
deferring one of these measures that he has proposed for 
rescission to this body, to change his mind; conclude that, in 
fact, the moneys should be spent, and to go forward and to do 
so.
    This delegation of deferral authority does not raise, in my 
opinion, the serious constitutional problem that the Supreme 
Court saw in the 1996 measure.
    The congressional practice of vesting discretionary 
authority in the President to defer or 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 little or as much as he 
pleased, up to the limit of those spending authorities; and the 
remainder that was left over, if he didn't spend it all, would, 
of course, 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 to repeal 
but, rather, was simply--and I am quoting from the Government's 
brief in the case--in practical effect, no more and no less 
than the power to decline to spend specified sums of money or 
to decline to implement specified tax measures.
    But the dispositive distinction that was grasped by the 
Supreme Court in the Clinton case and acted upon 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 measure itself.
    Under a discretionary spending statute, the President may 
exercise his spending discretion at any time during the 
appropriation period. And if the President decides not to spend 
some or all of the appropriated funds, then the authority is to 
spend the funds, that is, the law itself, nonetheless remains 
in place until it expires in accordance with its own terms, or 
it is repealed by this body acting in conjunction with the 
Senate and presentment to the President. The President, though, 
under a discretionary spending measure, 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, as I mentioned earlier, or his 
successor, changed his mind about a canceled item, it didn't 
matter; the law itself was gone and the President was powerless 
to revive it under that bill.
    Nothing in the bill that is pending before you grants the 
President such 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 H.R. 4890 can last no longer than 
188 calendar days, and immediately thereafter the President is 
obliged to execute the spending or tax provision for which he 
unsuccessfully sought congressional rescission. And the 
President's discretionary authority to terminate the deferral 
and to execute the spending provision at issue remains in full 
force and effect right up until the moment that the 
appropriations statute itself expires under its own terms, or 
is rescinded by bicameral passage and presentment to the 
President.
    The short of my testimony, Mr. Chairman and members of this 
distinguished committee, is simply this: The Supreme Court's 
decision in Clinton recognizes that and enforces the 
constitutional line established by Article I, section 7, 
between the power to exercise discretion in the making or the 
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, the power to make or unmake a law. But 
it can, constitutionally, delegate discretion to the President 
for the latter, the discretion to decide how or when or whether 
to spend money. And it has done so repeatedly throughout the 
Nation's history; the important point being that that is 
determined by this body and this body alone.
    So, finally, in my opinion, the powers granted to the 
President under the Legislative Line Item Veto Act of 2006 
falls safely on the constitutional side of that line.
    And I thank again the members of this committee, and, Mr. 
Chairman, you, for inviting me to present my views, and look 
forward to any questions that the committee may want to put to 
me.
    Mr. Ryun. Mr. Cooper, thank you very much for your 
comments.
    [The prepared statement of Mr. Cooper follows:]

 Prepared Statement of Charles J. Cooper, Partner, Cooper & Kirk, PLLC

    Good afternoon, Mr. Chairman and Members of the Committee. My name 
is Charles J. Cooper, and I am a partner in the Washington, D.C., law 
firm of Cooper & Kirk, PLLC. I appreciate the Committee's invitation to 
present my views on the constitutionality of the ``Legislative Line 
Item Veto Act of 2006,'' which has been proposed by President Bush and 
has been introduced in this body as H.R. 4890. For reasons that I shall 
discuss at length below, I believe that the President's proposal is 
constitutional. But first I would like to outline my experience in this 
esoteric area of constitutional law.
    I have spent the bulk of my career, both as a government lawyer and 
in private practice, litigating or otherwise studying a broad range of 
constitutional issues. On several different occasions, strangely 
enough, I have been involved in matters relating to the 
constitutionality of measures designed to vest the President with 
authority to exercise a line item veto or its functional equivalent. In 
early 1988, while I was serving as the Assistant Attorney General of 
the Office of Legal Counsel of the Department of Justice, President 
Reagan asked the Justice Department for its opinion on the question 
whether the Constitution vests the President with an inherent power to 
exercise an item veto. Certain commentators at that time had advanced 
the proposition that the President did indeed have such inherent 
constitutional power. See Steven Glazier, Reagan Already Has Line-Item 
Veto, WALL ST. J., Dec. 4, 1987, at 14, col. 4. After exhaustive study, 
the Justice Department reluctantly concluded that the proposition was 
not well-founded and that the President could not conscientiously 
attempt to exercise such a power. I suspect that many of the Members of 
this body can recall how fervently President Reagan longed to exercise 
a line item veto authority, and during my time in government, I had no 
task less welcome than advising him against it. The opinion of the 
Office of Legal Counsel is publicly available at 12 Op. Off. Legal 
Counsel 128 (1988).
    In April 1996, Congress enacted the Line Item Veto Act of 1996, 
which authorized the President to ``cancel'' certain spending and tax 
benefit measures after he had signed into law the bill in which they 
were contained. Shortly thereafter, I was retained, along with Lloyd 
Cutler, Alan Morrison, Lou Cohen, and Michael Davidson, to represent 
Senators Byrd, Moynihan, Levin, and Hatfield, as well as certain 
members of the House of Representatives, to challenge the 
constitutionality of the Line Item Veto Act. Although the district 
court invalidated the Act, the Supreme Court held that the Members of 
Congress lacked standing to litigate their constitutional claims. 
Adjudication of the Act's constitutionality would therefore have to 
await the suit of someone who had suffered judicially cognizable injury 
resulting from an actual exercise of the President's statutory 
cancellation power. See Raines v. Byrd, 521 U.S. 811 (1997). That did 
not take long.
    Less than 2 months after the Supreme Court's decision in Raines, 
President Clinton exercised his authority under the Line Item Veto Act 
to cancel ``one item of new direct spending'' in the Balanced Budget 
Act of 1997, which had the effect of reducing the State of New York's 
Federal Medicaid subsidies by almost $1 billion. I represented the City 
of New York and certain healthcare associations and providers, which 
lost many millions of dollars in Federal matching funds as a direct 
result of the President's cancellation, in a suit challenging the 
constitutionality of the Line Item Veto Act. The Supreme Court struck 
down the Line Item Veto Act, concluding that ``the Act's cancellation 
provisions violate Article I, Sec. 7, of the Constitution.'' Clinton v. 
City of New York, 524 U.S. 417, 448 (1998). The Clinton case controls 
the analysis of the constitutionality of the Legislative Line Item Veto 
Act of 2006, and so an extended discussion of the case is warranted.
    The Line Item Veto Act of 1996 provided that the President may 
``cancel in whole'' any (1) ``dollar amount of discretionary budget 
authority,'' (2) ``item of new direct spending,'' or (3) ``limited tax 
benefit'' by sending Congress a ``special message'' within 5 days after 
signing a bill containing the item. 2 U.S.C. Sec. 691(a). Cancellation 
took effect when Congress received the special message. 2 U.S.C. 
Sec. 691b(a).
    The Act defined ``cancel'' as ``to rescind'' (with respect to any 
dollar amount of discretionary budget authority) and to ``prevent * * * 
from having legal force or effect'' (with respect to items of new 
direct spending or limited tax benefits). Id. Sec. 691e(4). The purpose 
of the term and its definition was to make it clear that the 
President's action would be permanent and irreversible: ``The term 
'cancel' was specifically chosen, and is carefully defined. * * * The 
conferees intend that the President may use the cancellation authority 
to surgically terminate Federal budget obligations.'' H.R. REP. NO. 
104-491, at 20 (1996) (Conf. Rep.) (emphasis added). For taxes, 
cancellation mandated ``collect[ion of] tax that would otherwise not be 
collected or * * * den[ial of] the credit that would otherwise be 
provided.'' Id. at 29.
    Thus, a presidential cancellation under the 1996 Act extinguished 
the cancelled provision, as though it had been formally repealed by an 
act of Congress. A presidential cancellation operated on the provision 
of the law itself, permanently removing it from the body of operative 
Federal statutes, and neither the President who cancelled the provision 
nor any successor President could exercise the authority that the 
provision, before its cancellation, had granted. It could be restored 
to the status of law only if a ``disapproval bill,'' 2 U.S.C. 
Sec. Sec. 691d, 691e(6), 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 Clinton concluded that vesting the President with unilateral power 
to ``cancel'' a provision of duly enacted law could not be reconciled 
with the `` 'single, finely wrought and exhaustively considered, 
procedure' `` established under Article I, Section 7 for enacting, or 
repealing, a law--bicameral passage and presentment to the President. 
524 U.S. at 439-40, quoting INS v. Chadha, 462 U.S. 919, 951 (1983). As 
the Court explained, Article I, Section 7 ``explicitly requires that 
each of * * * three steps be taken before a bill may 'become a law.' 
``: ``(1) a bill * * * [is] approved by a majority of the Members of 
the House of Representatives; (2) the Senate approve[s] precisely the 
same text; and (3) that text [is] signed into law by the President.'' 
524 U.S. 448. And if the President disapproves of the Bill, he must 
``reject it in toto.' `` Id. at 440, quoting 33 WRITINGS OF GEORGE 
WASHINGTON 96 (J. Fitzpatrick ed., 1940). The in toto requirement 
ensures that the President, like the House and Senate, lacks power to 
unilaterally revise the text of the measure approved by the other 
participants in the lawmaking process.
    President Clinton's cancellation, however, did unilaterally revise 
the law by ``prevent[ing] one section of the Balanced Budget Act of 
1997 * * * 'from having legal force or effect,' `` while permitting the 
remaining provisions of the Act ``to have the same force and effect as 
they had when signed into law.'' 524 U.S. at 438. Accordingly, the 
Court concluded that ``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, Sec. 7.'' Id. at 444.
    The Legislative Line Item Veto Act of 2006, 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 the bill to 
``cancel'' any spending or tax provision, or otherwise to prevent such 
a provision ``from having legal force or effect.'' To the contrary, the 
purpose of H.R. 4890, as President Bush put it in proposing the 
legislation, is simply to ``provide a fast-track procedure to require 
the Congress to vote up-or-down on rescissions proposed by the 
President.'' Message of President George W. Bush to the Congress, March 
6, 2006. Thus, any spending or tax provision duly enacted into law 
remains in full force and effect under the bill unless and until it is 
repealed in accordance with the Article I, Section 7 process--bicameral 
passage and presentment to the President.
    To be sure, H.R. 4890 would authorize the President to ``defer'' or 
``suspend'' (hereinafter ``defer '') execution of the spending or tax 
provision at issue for up to 180 calendar days from the date that the 
President transmits his rescission proposal to Congress. The purpose of 
this deferral authority, obviously, is simply to allow the Congress 
adequate time to consider the President's rescission proposals and to 
vote them up-or-down. The President would be authorized to terminate 
the deferral ``if the President determines that continuation of the 
deferral would not further the purposes of this Act.'' H.R. 4890, 109th 
Cong. Sec. Sec. 1021(e)(2), 1021(f)(2) (2006).\1\ Accordingly, if at 
any time during the pendency of the deferral period, the President 
changes his mind about the deferred spending or tax provision, or if a 
successor President disagrees with his predecessor's deferral decision, 
the President would be free to terminate the deferral and execute the 
provision. Likewise, if Congress rejects the President's rescission 
proposal, the President would be required to make the funds or tax 
benefits available no later than the end of the deferral period--which, 
again, cannot exceed 180 days. Thus, deferral of a spending or tax 
provision under the bill does not rescind or otherwise prevent the 
provision from having legal force or effect. To the contrary, the 
provision remains ``law'' during the deferral period, and it must be 
executed at the moment the deferral period ends, unless Congress itself 
has enacted a new law rescinding it.
---------------------------------------------------------------------------
    \1\ Continuing to defer execution of a spending or tax provision 
after a rescission proposal is voted down by one or both Houses of 
Congress would presumably not further, except in the most unusual of 
circumstances, the purposes of the Act. Statutorily requiring or 
triggering termination of the deferral, however, on a negative vote on 
the President's rescission proposal in either House of Congress would 
raise a serious constitutional issue under Chadha, which held that any 
action by Congress that has ``the purpose and effect of altering the 
legal rights, duties, and relations of persons * * * outside the 
Legislative Branch'' is a legislative action that must conform to the 
bicameralism and presentment requirements of Article I, Section 7, of 
the Constitution. INS v. Chadha, 462 U.S. 919, 952 (1983). As framed in 
the bill, however, the deferral provisions would not raise this concern 
under Chadha even if the President felt bound in good faith (as he 
presumably would) to terminate any deferral at the moment that either 
House voted down his rescission proposal.
---------------------------------------------------------------------------
    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, the 
First Congress enacted at least three general appropriations laws that 
appropriated ``sum[s] not exceeding'' specified amounts for the 
government's operations. See Act of Sept. 29, 1789, ch. 23, Sec. 1, 1 
Stat. 95; Act of Mar. 26, 1790, ch. 4, Sec. 1, 1 Stat. 104; Act of Feb. 
11, 1791, ch. 6, Sec. 1, 1 Stat. 190. See Ralph S. Abascal & John R. 
Kramer, Presidential Impoundment Part I: Historical Genesis and 
Constitutional Framework, 62 GEO. L.J. 1549, 1579 (1974). By 
appropriating sums ``not exceeding'' specified amounts, Congress gave 
the President discretion to spend less than the full amount of the 
appropriation, absent some other statutory restriction on that 
discretion. See, e.g., H.R. Rep. No. 1797, 81st Cong., 2d Sess. 9 
(1950) (``Appropriation of a given amount for a particular activity 
constitutes only a ceiling upon the amount which should be expended for 
that activity. '')
    The First Congress also enacted laws providing for ``lump-sum'' 
appropriations--that is, appropriations for the operation of a 
department that do not specify the particular items for which the funds 
were to be used. The President was thereby given discretion not only 
with respect to how much of the appropriated sum to spend, but also 
with respect to its allocation among authorized uses. Cincinnati Soap 
Co. v. United States, 301 U.S. 308, 322 (1937) (``Appropriation and 
other acts of Congress are replete with instances of general 
appropriations of large amounts, to be allotted and expended as 
directed by designated governmental agencies. ''). As the Supreme Court 
has noted, ``a fundamental principle of appropriations law is that 
where Congress merely appropriates lump-sum amounts without statutorily 
restricting what can be done with those funds, a clear inference arises 
that it does not intend to impose legally binding restrictions.'' 
Lincoln v. Vigil, 508 U.S. 182, 192 (1993) (internal quotation marks 
omitted). And the constitutionality of such lump-sum appropriations 
``has never been seriously questioned.'' Cincinnati Soap Co., 301 U.S. 
at 322.
    Congress has typically enacted lump-sum appropriations when 
Executive Branch discretion and flexibility were viewed as desirable, 
particularly during periods of economic or military crisis. See Louis 
Fisher, Presidential Spending Discretion and Congressional Controls, 37 
LAW & CONTEMP. PROBS. 135, 136 (1972). During the Great Depression, for 
example, Congress granted the President broad discretion to ``reduce * 
* * governmental expenditures'' by abolishing, consolidating, or 
transferring Executive Branch agencies and functions. Act of Mar. 3, 
1933, ch. 212, Sec. 16, 47 Stat. 1517-1519 (amending Act of June 30, 
1932, ch. 314, Sec. Sec. 401-408, 47 Stat. 413-415)). All 
appropriations ``unexpended by reason of'' the President's exercise of 
his reorganization authority were to be ``impounded and returned to the 
Treasury.'' 47 Stat. 1519.
    In 1950, Congress vested the President with general authority to 
establish ``reserves''--that is, to withhold the expenditure of 
appropriated funds--in order ``to provide for contingencies, or to 
effect savings whenever savings are made possible by or through changes 
in requirements, greater efficiency of operations, or other [post-
appropriation] developments.'' General Appropriation Act, 1951, ch. 
896, Sec. 1211, 64 Stat. 765-766. Similarly, the Revenue and 
Expenditure Control Act of 1968, Pub. L. No. 90-364, Sec. Sec. 202(a), 
203(a), 82 Stat. 271-72, authorized the President to reserve as much as 
$6 billion in outlays and $10 billion in new obligation authority, with 
no restrictions on the President's discretion regarding what spending 
to reduce. Sec. Sec. 202(b), 203(b), 82 Stat. 272. See also Second 
Supplemental Appropriations Act, 1969, Pub. L. No. 91-47, Sec. 401, 83 
Stat. 82; Second Supplemental Appropriations Act, 1970, Pub. L. No. 91-
305, Sec. Sec. 401, 501, 84 Stat. 405-407.
    And in the Impoundment Control Act of 1974 (ICA), 2 U.S.C. 681 et 
seq., Congress distinguished between two forms of impoundment: 
deferrals (delays in spending during the course of a fiscal year, or 
other period of availability) and rescissions (permanent withholdings 
of spending of appropriated funds). See 2 U.S.C. 682(1), 682(3). While 
generally authorizing the President to carry out deferrals, see 2 
U.S.C. 684 (1982), the Act prohibited the President from engaging in 
unilateral rescissions. Instead, it authorized the President to propose 
rescissions to Congress under a mechanism for expedited legislative 
consideration. 2 U.S.C. 683 (1982).
    In sum, when Congress has passed lump-sum appropriations bills, or 
when it has given the President general authority to reduce government 
spending below appropriated levels, Congress has largely freed the 
President to exercise his own judgment regarding which spending 
programs to reduce and how much to reduce them. And while the scope of 
authority vested in the President has varied in response to changing 
legislative judgments about the need for Executive Branch discretion, 
the extent of the Executive's spending discretion has always been 
regarded, both by Congress and by the courts, as a matter for Congress 
itself to decide through the legislative process.
    In the Clinton case, the Government's constitutional defense of the 
1996 Line Item Veto Act relied heavily on this long interbranch 
tradition of presidential spending discretion. The Government argued 
that the President's cancellation power was not a unilateral power of 
repeal, but rather was simply, ``in practical effect, no more and no 
less than the power to ``decline to spend'' specified sums of money, or 
to ``decline to implement'' specified tax measures.'' Gov. Br. at 40. 
The Act merely granted the President general discretionary authority 
that is materially indistinguishable, the Government argued, from the 
specific discretionary authority routinely granted to the President in 
``lump sum'' appropriations measures since the days of President 
Washington.
    But the dispositive distinction, as noted previously, between a 
lump-sum appropriations statute and the Line Item Veto Act was that the 
former grants the President discretion in the implementation of the 
spending measure, while the Line Item Veto Act 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--remains in place until it expires in accord with 
the terms of the statute. The President (or his successor) retains 
discretion throughout the appropriation period to reverse a prior 
decision not to spend in light of new information, further experience, 
or reordered priorities. Not until the appropriation law expires, or is 
repealed in accord with Article I, is the President's spending 
discretion extinguished. In short, discretion over spending operates on 
the funds, not on the law authorizing it. In contrast, the President's 
cancellation discretion under the 1996 Line Item Veto Act operated 
directly on the law authorizing the spending, 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 cancelled item, he was powerless to revive it.
    Accordingly, the Supreme Court in Clinton concluded that the 
President's cancellation power under the Line Item Veto Act crossed the 
constitutional line between traditional discretionary spending 
authority and lawmaking: ``The critical difference between [the Line 
Item Veto Act] and all of its predecessors * * * is that unlike any of 
them, this Act gives the President a unilateral power to change the 
text of duly enacted statutes.'' 524 U.S. at 446-47.
    Nothing in the Legislative Line Item Veto Act of 2006, however, 
even arguably grants the President the unilateral power to change the 
text of a duly enacted statute. Indeed, the deferral authority that 
would be vested in the President under the bill is actually narrower 
than the spending discretion that Congress has routinely accorded the 
President throughout the Nation's history. Again, a deferral under the 
Bill 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. The possibility (however remote) that the appropriation 
statute could expire during the period in which spending has been 
deferred does not alter this analysis. The President's discretionary 
authority to terminate the deferral and to execute the spending 
provision at issue would remain in full force and effect right up until 
the moment that the appropriation statute expired under its own terms.
    The constitutional validity of the President's deferral authority 
under H.R. 4890 can be brought into sharper focus by hypothesizing an 
appropriations statute in which each individual spending or tax benefit 
item is accompanied by its own specific proviso authorizing the 
President to defer its execution for up to 180 days pending 
congressional resolution of a presidential rescission proposal. The 
constitutional authority of Congress to condition the expenditure or 
obligation of Federal funds in this manner is clear. The bill would 
merely make such presidential deferral authority generally applicable 
rather than specifically targeted. And it is clear that the President's 
deferral authority under H.R. 4890 would act only as a default rule, 
for nothing in the bill purports to prevent Congress from determining 
that the President's deferral authority shall not apply to a particular 
spending or tax benefit measure or any portion thereof in the future. 
See Raines, 521 U.S. at 824 (Congress may ``exempt a given 
appropriations bill (or a given provision in an appropriations bill) 
from the Act. '').
    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 law and the power to exercise discretion in the 
execution of law, which in the spending context has historically 
included the power to defer, or to decline, expenditure of appropriated 
funds. Congress cannot constitutionally vest the President with the 
former, but it can the latter, and has done so repeatedly throughout 
our Nation's history. 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 this opportunity to share my 
views with the Committee.

    Mr. Ryun. At this point I would like to recognize Mr. Dinh 
for 10 minutes as well.

    STATEMENT OF VIET D. DINH, PROFESSOR OF LAW, GEORGETOWN 
                     UNIVERSITY LAW CENTER

    Mr. Dinh. Thank you very much, Mr. Chairman. Mr. Chairman, 
Ranking Member Spratt, and members of the committee, thank you 
very much for having me here and the honor of appearing with my 
colleagues Chuck Cooper and Lou Fisher. It is truly an honor, 
because I think Chuck Cooper as an advocate has argued more 
Supreme Court cases than I have learned as an academic. And Lou 
Fisher I think is recognized as the successor to the mantle of 
Warren Burger as the most consistent and effective advocate of 
congressional authority and prerogative in our Nation's 
history. So it is truly an honor for me to appear with them to 
aid this committee in its legislative process.
    In my opinion, the only real issue is the whether H.R. 4890 
serves as a real constraint on the budgetary process.
    I do not think that there is a significant question that 
H.R. 4890 is constitutional.
    I will touch very briefly on both of these points, in 
reverse order. On constitutionality, one can truly judge its 
act by its title. H.R. 4890 is aptly named the Legislative Line 
Item Veto Act. The act does not delegate the power to make, 
change, or repeal the law to the President, the Comptroller 
General, or to anyone else outside the legislative branch using 
the legislative process.
    Rather, the act specifies the procedures that Congress, and 
only Congress, uses to rescind individual items in the budget. 
And these procedures require a rescission bill to be passed by 
both Chambers and signed by the President, just like any other 
legislation, as required by Article I, section 7, of our 
Constitution.
    The President, under the act, proposes the items to be 
rescinded is of no consequence because the President does that 
on a daily basis. The operative question, therefore, is whether 
the mandated deferral of those items for a period pending 
congressional action works a partial repeal of the budget.
    I don't think so, nor does it offend the constitutional 
separation of powers.
    Congress passes the law, the President executes and 
enforces the law. The latter responsibilities to enforce the 
law also includes some discretion to decide whether and under 
what circumstances a law would be enforced.
    This Presidential power, this prerogative, under the 
teaching of a seminal case of Youngstown, is at its zenith when 
Congress expressly authorizes or endorses its exercise, as H.R. 
4890 does, for the decision to defer.
    I think Mr. Cooper, both in his oral testimony and in his 
written statement, has ably and comprehensively catalogued the 
commonplace granting use of this power not to spend throughout 
the history of this Republic, starting from the very first 
Congress.
    The act therefore offends neither the lawmaking process of 
Article I, section 7, nor the constitutional separation of 
powers. Rather, in my opinion, it affirms both of these 
principles. H.R. 4890 is a straightforward exercise of 
Congress' power under Article I, section 5, to, quote, 
``determine the rules of its proceedings.''
    The fast-track procedure embodied in the act is, in effect, 
a form of congressional self-policing. With such internal 
controls, Congress binds itself to reassess certain portions of 
the budget law according to procedures specified by the act.
    In this sense, H.R. 4890 is little different from the fast-
track procedures of the Trade Act of 1974 which was renewed 
successively in 1984, 88, 91, and 93. These procedures 
committed Congress to considering international trade 
agreements proposed by the President expediently, without 
amendment, and with a final up-or-down vote.
    If you view the act in this light, the only real question, 
based by H.R. 4890, is whether the act is passed pursuant to 
the rules clause at all, given that it is not internally 
adopted through the Rules Committees of each house, but would 
have gone through the lawmaking process of Article I, section 
7, like normal legislation.
    This question, in my opinion, has been answered by the 
various cases addressing and validating the fast-track 
procedures in the Trade Act as a proper and nonjusticiable 
exercise of Congress' power to determine the rules of its own 
proceedings.
    This last comment, that the act is a nonjusticiable 
exercise of Congress' internal rulemaking power, leads to my 
second point, which is the act's effectiveness in constraining 
the budgetary process. In the event that Congress responds to 
an eventual Presidential rescission proposal by completely 
ignoring the fast-track up-or-down procedures of H.R. 4890, it 
is my opinion that any challenge to such a procedural violation 
would not be justiciable or heard in a court of law.
    Fealty to the act, therefore, depends not on lawyers and 
judges, but rather on legislators and the political process. I 
do not agree with the commentary that passage of the act would 
amount to an admission by legislators that they have failed in 
public duties to constrain spending.
    Instead, the act simply recognizes the collective action 
problem in decision-making processes of multimember bodies and 
seeks to mitigate its effect in the budgetary process.
    The political economy of any multimember decision-making 
body, like Congress, is that it is in the individual interests 
of Members and their constituents to push for specific items, 
even though we all agree that the aggregate restraint is in our 
collective interests of the body and of the Nation.
    By specifying procedures for Congress to reconsider 
individual items, the act shines the political spotlight on the 
most egregious of our controversial instances and allows the 
collective body to act on them individually and thereby work to 
solve, in some limited way, the collective action problem.
    Only time and experience will indeed tell us whether this 
internal process, this check, is enough to overcome parochial 
politics and capping budgetary excesses. But I for one have 
faith in legislators and the institution and the people that 
you all serve. Thank you very much.
    Mr. Ryun. Mr. Dinh, thank you very much for your comments.
    [The prepared statement of Mr. Dinh follows:]

  Prepared Statement of Viet D. Dinh, Georgetown University Law Center

    Mr. Chairman, Ranking Member, and Members of the Committee, Thank 
you for the opportunity to testify before you this morning on the 
Legislative Line Item Veto Act of 2006. My name is Viet D. Dinh. I am 
Professor of Law at the Georgetown University Law Center and Principal 
of Bancroft Associates PLLC. My comments here are prepared with Nathan 
A. Sales, currently John M. Olin Fellow at the Georgetown University 
Law Center. Neither of us represents any entity in this hearing, and 
neither receives any grant or contract from the Federal Government.
    The proposed legislation, of course, furthers the unassailable 
policy principles of fiscal discipline and balanced budgets. We applaud 
Congressman Ryan and the co-sponsors for their leadership and thank the 
Committee for its work on this important legislation. Our testimony, 
however, will be limited to the constitutional issues raised by the 
proposed legislation and, more broadly, the constitutional principles 
that should guide Congress as it considers a line item veto.
    We believe that H.R. 4890 satisfies the Constitution's Bicameralism 
and Presentment Clauses, and thus does not suffer from the defects that 
doomed previous line item veto legislation invalidated by the Supreme 
Court. The Act also is consistent with the basic principle that 
Congress has broad discretion to establish procedures to govern its 
internal operations, including by adopting fast-track rules for the 
quick consideration of legislation proposed by the President. Finally, 
there are a number of different approaches through which Congress 
constitutionally could authorize the President temporarily to freeze 
spending items while Congress decides whether to rescind them 
permanently.

A. BICAMERALISM AND PRESENTMENT: OVERCOMING CLINTON V. CITY OF NEW YORK

    The Legislative Line Item Veto Act of 2006 is perfectly consistent 
with the principles laid down in Clinton v. City of New York,\1\ where 
a 6-3 Supreme Court invalidated predecessor legislation that Congress 
enacted and President Clinton signed in 1996. The 1996 version of the 
line item veto authorized the President to ``cancel in whole'' certain 
spending outlays and tax breaks that were approved by Congress and 
signed into law.\2\ A cancellation did not require additional 
legislation to go into effect; it was effective as soon as Congress 
received the requisite special message from the President.\3\ Congress 
could override a presidential cancellation, but only by enacting a 
``disapproval bill'' by a veto-proof supermajority: ``A majority vote 
in both Houses is sufficient to enact a disapproval bill,'' but the 
President ``does, of course, retain his constitutional authority to 
veto such a bill.'' \4\ In effect, then, the 1996 Act conferred on the 
President the power to strike, retroactively, items from legislation 
that had been passed by both Houses of Congress and signed into law. 
The law as enforced would be qualitatively different than what was 
congressionally enacted and presidentially approved.
    It was precisely this feature of the 1996 Act--the power of the 
President to amend properly enacted laws--that proved its downfall in 
City of New York. Because a presidential cancellation ``prevents the 
item `from having legal force or effect,' \5\ the 1996 Act effectively 
``gives the President the unilateral power to change the text of duly 
enacted statutes.'' \6\ And such a grant of authority offends the 
Constitution's Bicameralism and Presentment Clauses, which require 
unanimity as to the content of a proposed law among all three players 
in the lawmaking process: the House, the Senate, and the President. 
That is why George Washington remarked that the Presentment Clause 
obliged him to either ``approve all the parts of a Bill, or reject it 
in toto.'' \7\ The 1996 Act was constitutionally impermissible, 
according to the Court, because it purported to authorize ``the 
President to create a different law--one whose text was not voted on by 
either House of Congress or presented to the President for signature.'' 
\8\
    The Legislative Line Item Veto Act of 2006 operates very 
differently from the 1996 incarnation, and its differences place the 
Act on different, and firm, constitutional ground. First, and most 
important, a suggested presidential rescission is just that: a 
suggestion. The President would submit to Congress for its 
consideration a proposal to cancel a set of spending outlays or tax 
breaks. Those items would be stricken if and only if majorities in both 
Houses of Congress vote in favor of the proposal and the President 
signs the resulting bill. Article I, section 7, of the Constitution 
requires no more than that. If a single House disagrees and fails to 
approve the new bill submitted by the President, the original spending 
decisions would remain in force. The Bicameralism and Presentment 
Clauses thus are fully respected.
    The second critical difference follows from the first. Any 
cancellation proposed by the President would not go into effect 
immediately (as was true under the 1996 Act), but only after 
congressional deliberation and action. While the President would be 
able to suggest spending cuts to Congress and request that they be 
disposed of expeditiously, he would have no power by himself and 
immediately to ``prevent[] the item `from having legal force or 
effect.' '' \9\ None of the Executive Branch ``unilateral[ism]'' that 
was condemned in City of New York\10\ is to be found here.
    H.R. 4890 is a constitutional improvement over the 1996 Act in 
another sense, as well. Unlike its predecessor, it permits disputed 
spending items--those on whose desirability Congress and the President 
disagree--to go into effect without a supermajority vote. Suppose the 
President thinks that a given spending item is wasteful and should be 
eliminated, but congressional majorities believe the outlay is 
important and therefore support it. Under the 1996 Act, the President 
would cancel the item. Congress would then need to pass a disapproval 
bill to reinstate it, and the President would veto the bill. The only 
way for Congress to ensure that its spending priorities go into effect 
would be to override the veto, requiring a two-thirds supermajority in 
each House. Under H.R. 4890, the President would identify the item and 
transmit to Congress a bill proposing to rescind it. If Congress wanted 
to preserve the outlay, all that would be necessary would be for a 
single House to reject the bill--by a simple majority vote. H.R. 4890 
thus protects the procedure to make law prescribed by Article I, 
section 7, and vindicates the constitutional value of majority 
rule.\11\
    In these respects H.R. 4890 is quite similar to the rescission 
authority enacted by Congress in the 1974 Impoundment Control Act 
(which remains in force today).\12\ Like H.R. 4890, the Impoundment 
Control Act does not authorize unilateral presidential cancellation of 
spending items. Instead, the President may propose to Congress new 
legislation to strike the items, and rescission only goes into effect 
if Congress approves the bill and it is signed into law.\13\ Unlike 
H.R. 4890, the Impoundment Control Act does not oblige Congress to 
consider the President's proposed rescissions. Congress is entirely 
free to, and over the lifetime of the Act often has, let them die on 
the vine through inaction. H.R. 4890 thus is little more than an 
enhanced version of its 1974 predecessor--one in which Congress would 
commit itself to giving the President's proposals an up-or-down vote 
through specified procedures. It is to those procedures that our 
analysis now turns.

   B. CONGRESS'S POWER TO ESTABLISH ITS INTERNAL RULES AND PROCEDURES

    The Legislative Line Item Veto Act of 2006 is consistent with the 
basic principle, expressly recognized in the Constitution, that 
Congress has broad discretion to ``determine the rules of its 
proceedings,'' \14\ and that this power generally is ``absolute and 
beyond the challenge of any other body or tribunal.'' \15\ H.R. 4890--
which would oblige Congress to vote on a rescission bill proposed by 
the President within a particular timeframe--should not be thought of 
as a transfer of authority away from the legislature and to the 
Executive Branch. Instead, the Act is little more than a 
straightforward application of the constitutional principle that 
Congress has wide latitude to govern its internal operations as it sees 
fit. In fact, Congress many times in the past has provided for the 
fast-track consideration of legislative proposals in the same way that 
H.R. 4890 would.
    The basic rule of congressional discretion is articulated in Nixon 
v. United States.\16\ In Nixon, the House impeached a Federal district 
court judge who was convicted of making false statements before a 
Federal grand jury and was sentenced to imprisonment. (The judge 
refused to resign, and thus continued to collect his salary while in 
jail.) Pursuant to Senate Rule XI, the Senate's presiding officer 
appointed a committee of Senators to receive evidence in the 
impeachment trial, and the committee reported that evidence to the full 
Senate. After the Senate voted to convict and Nixon was removed from 
office, the former judge filed suit, claiming that Rule XI offends the 
Constitution's directive that the Senate shall ``try'' all 
impeachments.\17\
    In a 6-3 ruling, the Supreme Court held that the dispute over the 
Senate's decision to assign its power of conducting evidentiary 
hearings to a committee was a nonjusticiable political question. The 
authority to determine the manner in which impeachment trials will be 
conducted ``is reposed in the Senate and nowhere else.'' \18\ Courts 
therefore will decline to override or otherwise interfere with that 
body's choice to conduct its business in a particular way. Even the 
separate concurrence of Justices White and Blackmun seconded the 
proposition that decisions by Congress about its own procedures 
ordinarily will not be disturbed. Though the concurrence denied that 
the Senate has ``an unreviewable discretion'' to establish its internal 
rules and regulations, they nevertheless maintained that ``the Senate 
has very wide discretion in specifying [its] procedures.'' \19\
    The same principle applies here. In the same way the Senate enjoys 
unfettered discretion to adopt whatever mechanism it wishes for 
gathering evidence in impeachment trials, so Congress as a whole is 
free to establish a rule that commits it to disposing of presidential 
proposals to rescind spending items on an accelerated basis. The 
Constitution expressly confers on the President the authority to submit 
legislative proposals to Congress: ``He shall * * * recommend to 
[Congress's] Consideration such Measures as he shall judge necessary 
and expedient * * * .'' \20\ Congress frequently has adopted procedures 
to consider such proposals expeditiously, and courts just as frequently 
have held that they have no authority to second guess those internal 
legislative rules.
    In particular, on at least five occasions, Congress has enacted 
legislation in which it commits itself to considering on a fast-track 
basis international trade agreements proposed by the President. The 
first fast-track trade bill was adopted in 1974. Renewals followed in 
1984 (which enabled the Reagan Administration to negotiate trade 
agreements with Israel and Canada), and in 1988, 1991, and 1993 (under 
which the George H.W. Bush and Clinton Administrations completed the 
talks on NAFTA and the Uruguay Round of the GATT negotiations).\21\ 
These fast-track trade procedures are strikingly similar to the ones 
proposed for spending rescissions in the Legislative Line Item Veto Act 
of 2006. Like H.R. 4890, the trade rules specified that congressional 
leadership will introduce the President's proposed bill soon after it 
is received.\22\ Like H.R. 4890, the trade rules did not contemplate 
that the bill will be amended.\23\ And like H.R. 4890, the trade rules 
required a final floor vote within a specified period of time.\24\
    Federal courts have shown little enthusiasm for questioning 
Congress's internal procedures for speedy consideration of proposed 
trade agreements.\25\ The same degree of deference should apply to 
rescissions rules, as well. Indeed, a decision by Congress to consider 
a President's proposed spending cuts on an expedited basis presents a 
much easier constitutional question than fast-track trade authority. 
The latter procedures, which allowed trade agreements between the 
United States and foreign nations to be adopted by simple majority vote 
in both houses of Congress, could be seen as conflicting with the 
Constitution's command that treaties must be approved by a two-thirds 
vote in the Senate.\26\ In the rescission context, by contrast, there 
is no constitutional norm that arguably might specify internal rules 
that conflict with, and thus override, Congress's new streamlined 
procedures.
    If Congress decides to proceed with H.R. 4890, it should consider 
making plain in the statutory text (as Section 2(b) of the current 
draft bill proposes to do) that the Legislative Line Item Veto Act of 
2006 is an instance of its settled authority to craft procedures to 
govern its internal operations. (Congress did something similar in the 
fast-track trade legislation.\27 \) Not only would such express 
language aid the courts in subsequent judicial review, it also would 
prevent a misinterpretation of the Act to imply a more extensive 
delegation of authority than Congress actually intends.

                 C. TEMPORARY FREEZES OF SPENDING ITEMS
 
   Because H.R. 4890 does not (and under Clinton v. City of New York 
constitutionally could not) authorize the President unilaterally and 
immediately to cancel spending items, and because proposed rescissions 
are not effective unless and until Congress enacts conforming 
legislation, some mechanism is needed temporarily to freeze the 
identified items pending final congressional action. In the absence of 
a temporary suspension, a cloud of uncertainty would hang over the 
recipients of the contested funds. Recipients might decline to spend 
the funds once received for fear that Congress ultimately might revoke 
them. Alternatively, recipients might begin to spend the funds despite 
that uncertainty, and this could give rise to reliance interests that 
could militate against subsequent congressional cancellation. The safer 
course is to call a time-out until Congress has worked its way through 
the prescribed legislative process.
    This is not a new insight. It was precisely for this reason that 
Congress in the 1974 Impoundment Control Act authorized the President 
to freeze the spending items he has targeted for rescission while 
Congress weighs his proposal. Specifically, after the President submits 
his suggested rescissions to Congress, the outlays he has identified 
are frozen for 45 days.\28\ Congress could include a comparable 
mechanism in new line item veto legislation, and it could take any 
number of forms.
    One approach would be to provide, as the current draft of H.R. 4890 
does, that the President's suspension of spending items will remain in 
effect for a set number of calendar days (say, 45), and then lapse 
automatically. The advantage of this approach is that it steers well 
clear of any possible constitutional pitfalls under INS v. Chadha, to 
which we will return below. A shortcoming of the calendar-days model is 
that, because the clock continues to run during congressional recesses, 
it is conceivable that a temporary freeze could expire before Congress 
has had time to take final action on a proposed rescission bill.
    An alternative approach is to provide, similar to the Impoundment 
Control Act, that a temporary suspension would lapse after a set number 
of legislative days. We understand that some have suggested that such a 
procedure could run afoul of the Supreme Court's ruling in INS v. 
Chadha.\29\ These are legitimate concerns, but we believe them to be 
overblown. In Chadha, the Court held that the ``legislative veto''--
which allowed a single House of Congress to invalidate an action taken 
by the Executive Branch pursuant to congressionally delegated 
authority--violated the Constitution's Bicameralism and Presentment 
Clauses. There is ``only one way'' for Congress to make the 
``determinations of policy'' necessary to override lawful Executive 
Branch action, and that is ``bicameral passage followed by presentment 
to the President.'' \30\
    To be sure, under the legislative-days approach, Congress could 
manipulate, by going in and out of session, the length of time the 
President may suspend the contested funds. The President's powers--
specifically, his power to continue to freeze the spending items--in 
some sense thus would depend on congressional action that has not 
satisfied the Constitution's bicameralism and presentment requirements. 
But that does not necessarily mean that the use of legislative days 
necessarily would offend the Constitution. Chadha makes clear that only 
certain types of congressional acts are subject to the Bicameralism and 
Presentment Clauses--namely, legislative acts. ``Not every action taken 
by either House is subject to the bicameralism and presentment 
requirements of Art. I.'' Instead, only actions that ``in law and 
fact'' are ``an exercise of legislative power'' must satisfy those 
requirements.\31\ It follows that other sorts of congressional acts, 
such as those that are designed to regulate Congress's internal 
operations, need not.
    It seems to us that a decision by a House of Congress to remain in 
session or go into recess is--at least in ordinary cases--a 
quintessential example of a nonlegislative, internallyoriented action. 
It certainly lacks the hallmarks of what we usually think of as 
legislative action. Deciding whether to be in session typically does 
not result in the distribution of benefits to citizens or others, nor 
does it impose new burdens on such persons. Regulated entities 
ordinarily do not change their primary conduct simply by virtue of 
Congress deciding whether or not to recess. In a word, a decision to be 
in session is not itself a legislative act; it is merely a prelude that 
enables Congress subsequently to engage in legislative acts.
    It certainly is possible to imagine scenarios in which Congress's 
decision to recess would be ``essentially legislative in purpose and 
effect'' \32\--for instance, where the subjective intent of Members of 
Congress is to manipulate the length of time the President has to 
freeze the funds he proposes to rescind. That would present a close 
case under Chadha. But there is no reason to think that the mere 
possibility that Congress could act in such a manner renders a 45-
legislative day freeze constitutionally infirm in all cases.
    In closing, we again thank the Committee for the chance to share 
our views on this important issue. Fiscal restraint and balanced 
budgets are common ground among all, but even these shared values must 
yield to our fundamental commitment to the Constitution. Fortunately, 
the Legislative Line Item Veto Act does not force a choice between 
them. H.R. 4890 provides for rescission through bicameralism and 
presentment, and thus is fully consistent with the Supreme Court's 
admonitions in Clinton v. City of New York. The legislation further 
represents an effort by Congress to exercise its basic power to lay 
down rules and procedures for its internal operations. Finally, 
Congress might consider authorizing the President to suspend targeted 
spending items for periods of 45 legislative days. Given the Chadha 
Court's condemnation of the legislative veto, such an approach may be 
riskier than the use of calendar days, but only marginally so.

                                ENDNOTES

    \1\ 524 U.S. 417 (1998).
    \2\ Id. at 436 (citing 2 U.S.C. Sec.  691(a) (Supp. II 1994)).
    \3\ See id. (citing 2 U.S.C. Sec.  691b(a) (Supp. II 1994)).
    \4\ Id. at 436-37 (citing 2 U.S.C. Sec.  691(c) (Supp. II 1994)).
    \5\ Id. at 437 (quoting 2 U.S.C. Sec. Sec.  691e(4)(B)-(C) (Supp. 
II 1994)).
    \6\ Id. at 447.
    \7\ 33 WRITINGS OF GEORGE WASHINGTON 96 (J. Fitzpatrick ed., 1940).
    \8\ City of New York, 524 U.S. at 448. City of New York and INS v. 
Chadha, 462 U.S. 919 (1983)--where the Supreme Court invalidated the 
``legislative veto,'' which permitted one House of Congress to nullify 
an Executive Branch action--thus are flip sides of the same coin. Both 
cases proscribe unilateralism in the lawmaking process. City of New 
York stands for the proposition that the President may not unilaterally 
amend legislation enacted by Congress. And Chadha stands for the 
proposition that Congress may not unilaterally revoke a power 
previously delegated by law to the President. Both cases work together 
to ensure collaboration in the enactment of laws.
    \9\ City of New York, 524 U.S. at 437 (quoting 2 U.S.C. Sec. Sec.  
691e(4)(B)-(C) (Supp. II 1994)).
    \10\ Id. at 447.
    \11\ Note also that H.R. 4890 reverses the 1996 Act's presumption. 
Under the 1996 Act, the presumption was that a spending item identified 
by the President would be cancelled. Such an item was stricken 
immediately and could be restored only with congressional action. Under 
the current proposal, the presumption is that a spending item 
identified by the President would remain in force. Such an item would 
remain effective and could be abolished only if Congress enacts, and 
the President signs, new legislation; failure by Congress to do so 
would be enough to retain the item.
    \12\ See Congressional Budget and Impoundment Control Act of 1974, 
Pub. L. No. 93-344, Sec. Sec.  1011-13, 88 Stat. 298 (currently 
codified at 2 U.S.C. Sec.  621 et seq. (2006)).
    \13\ See 2 U.S.C. Sec.  688 (2006).
    \14\ U.S. CONST. art. I, Sec.  5, cl. 2.
    \15\ United States v. Ballin, 144 U.S. 1, 5 (1892).
    \16\ 506 U.S. 224 (1993).
    \17\ See id. at 226-28 (citing U.S. CONST. art. I, Sec.  3, cl. 6).
    \18\ Id. at 229.
    \19\ Id. at 239 (White, J., joined by Blackmun, J., concurring).
    \20\ U.S. CONST. art. II, Sec.  3; see also Clinton v. City of New 
York, 524 U.S. 417, 438 (1998) (indicating that the President ``may 
initiate and influence legislative proposals '').
    \21\ See generally Laura L. Wright, Note, Trade Promotion 
Authority: Fast Track for the Twenty-First Century?, 12 WM. & MARY BILL 
RTS. J. 979, 984-89 (2004) (recounting the history of fast-track trade 
procedures). The original fast-track trade authority, codified at 19 
U.S.C. Sec. Sec.  2191-94 (2006), lapsed in 1994. See Robert F. 
Housman, The Treatment of Labor and Environmental Issues in Future 
Western Hemisphere Trade Liberalization Efforts, 10 CONN. J. INT'L L. 
301, 310-14 (1995). Congress enacted new trade procedures, now known as 
``trade promotion authority,'' in 2002. See Bipartisan Trade Promotion 
Authority Act of 2002, Pub. L. No. 107-210 Sec. Sec.  2101-13, 116 
Stat. 933, 993-1022 (codified at 19 U.S.C. Sec. Sec.  3801-13 (2006)).
    \22\ Compare 19 U.S.C. Sec.  2191(c)(1) (2006) (trade bill to be 
introduced on the day it is received), with H.R. 4890, 109th Cong. 
Sec.  1021(c)(1)(A) (2006) (rescission bill to be introduced within 2 
days of its receipt).
    \23\ Compare 19 U.S.C. Sec.  2191(d) (2006) (barring the proposal 
of amendments to a trade bill), with H.R. 4890, 109th Cong. Sec.  
1021(d) (2006) (barring the proposal of amendments to a rescission 
bill).
    \24\ Compare 19 U.S.C. Sec.  2191(e)(1) (2006) (generally requiring 
a final floor vote on a trade bill within 15 days of it being reported 
out of committee), with H.R. 4890, 109th Cong. Sec.  1021(c)(1)(C) 
(2006) (requiring a final floor vote on a rescission bill within 10 
days of it being introduced).
    \25\ See, e.g., Made in the USA Found. v. United States, 242 F.3d 
1300 (11th Cir. 2001) (holding that a dispute over the internal fast-
track procedures by which Congress adopted NAFTA was a nonjusticiable 
political question).
    \26\ See U.S. CONST. art. II, Sec.  2 (conferring on the President 
``Power, by and with the Advice and Consent of the Senate, to make 
Treaties, provided two thirds of the Senators present concur ''). 
Compare Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 
HARV. L. REV. 799 (1995) (arguing that international accords like NAFTA 
need not be adopted through the Constitution's treaty-making 
procedures, but instead may be approved through new methods of 
agreement between Congress and the President), with Laurence H. Tribe, 
Taking Text and Structure Seriously: Reflections on Free-Form Method in 
Constitutional Interpretation, 108 HARV. L. REV. 1221 (1995) (arguing 
that such methods are inconsistent with the Constitution's text and 
structure).
    \27\ See 19 U.S.C. Sec.  2191(a)(1) (2006) (indicating that the 
fast-track procedures are enacted ``as an exercise of the rulemaking 
power of the House of Representatives and the Senate '').
    \28\ See 2 U.S.C. Sec.  683(b) (2006) (authorizing the freeze of 
spending items for ``the prescribed 45-day period'' while Congress 
considers a presidential rescission request); id. Sec.  682(3) 
(indicating that the prescribed period is ``45 calendar days of 
continuous session of the Congress '').
    \29\ 462 U.S. 919 (1983).
    \30\ Id. at 954-55.
    \31\ Id. at 952.
    \32\ Id. at 953.

    Mr. Ryun. At this point, Mr. Fisher, you have 10 minutes 
for your comments as well.

STATEMENT OF LOUIS FISHER, SPECIALIST AT THE LAW LIBRARY OF THE 
                      LIBRARY OF CONGRESS

    Mr. Fisher. Thank you, very much Mr. Chairman, Members of 
the committee. I am pleased here to be with Chuck Cooper and 
Viet Dinh as well. Chuck Cooper's career I have followed at 
least from the 1980s when he was in the Reagan administration, 
head of Office of Legal Counsel, and highly respected. Some of 
his opinions took a lot of guts. I respect all of his opinions, 
but some of them took a lot of guts where the outside community 
was leaning on Chuck to go in a different direction. Very 
principled grounds; he held firm.
    And Viet Dinh I know. I followed his career and the respect 
he has of the constitutional structure and institutions of 
government. So, my pleasure.
    I say in my statement that I don't think this bill will 
result in much in the way of cuts either in spending or in the 
deficit or in earmarks. I explain in my statement why I think 
it could lead in the opposite direction. You could get more 
spending and more earmarks and greater deficits.
    So whatever the fiscal results of this process would be, my 
main point--which is the subject of the hearing today, and I 
appreciate it--is to look at how this affects our 
constitutional system. Chuck Cooper and Viet Dinh appropriately 
looked at litigation, what the courts have said, particularly 
the Supreme Court. That is one thing that is necessary; but the 
much more important step, I think, is to appreciate that the 
experts on constitutionality and legislative prerogatives are 
Members of Congress. You have the responsibility. You have the 
experience. You have the duty to protect your own institution. 
And that is what the Framers expected. Each branch would 
protect itself, and Congress would never expect some other 
branch to protect itself. Another branch doesn't have the 
experience and they don't have the commitment to protect your 
prerogatives.
    So that is the basic point of my statement: What would this 
bill do to your institution in terms of its prestige, its 
reputation, and its powers?
    I think as the bill was introduced, being an administration 
bill, I think it probably would have run into constitutional 
problems, particularly the 180 days. It would allow the 
President, if he submitted a proposal midway in the year, to 
unilaterally repeal and terminate provisions. I am sure you 
will fix that, but there are other problems. But even if you 
fixed those and some other features in the administration bill, 
you still have to think through what you are doing to your 
institution. I point out a number of areas where I think 
serious damage would be done.
    One area would be just the way the bill is written. Even if 
it were amended, you are still making the statement that in the 
legislation that you just passed--that has gone through the 
House and the Senate and the conference committee--the bill you 
just passed is very likely defective, and you want a process 
where it can be corrected through Presidential initiative. You 
thus make a statement to the public and to yourselves that you 
have doubts as to whether you can write responsible 
legislation. That is quite a message to send.
    I think if you had a process where you could recognize 
deficiencies in each branch and there would be a way to make 
those adjustments, that would be one thing. But here it looks 
to me like one direction. The one branch that looks defective 
is Congress, and the President is the one who is guardian of 
the purse.
    This is one area I have studied in my career, Presidential 
spending power and the purpose of the 1921 Budget and 
Accounting Act. It was never to make the President the more 
trusted guardian of the purse. I don't think there is anything 
in the history to indicate that. I think most of your big-
ticket items come from the executive branch, and I list some of 
them in my statement. Congress adds, Presidents add, that is 
part of our process.
    But why anyone would elevate the President of the United 
States as someone who can be trusted more in limiting spending 
and deficits, I don't think the record supports that.
    Secondly, I think about how the bill would actually 
function. You pass a bill, it would go to the President, and 
the President would be able to put together a list of items 
that he felt were unjustified or wasteful, and he would do so.
    So he would get--that would be the second area to me--he 
would get, in the public's eye, the credit for having seen the 
deficiencies in the bill that he just received and to put 
together a list. Now, there is no way the public or even the 
press can ever, in a responsible way, distinguish between 
justified and unjustified items. Maybe on the extremes you 
could identify certain items. Most things are going to be very 
debatable. But the President will make a list of unjustified 
items and he will get credit for that.
    If Congress supports the President's list, indeed the 
President gets even more credit. He has put together a list, 
and Congress has acknowledged that it was defective in the 
first place when it gave the bill to the President. So that is 
area No. 2.
    Now, if Congress were, under this bill, to say we disagree 
with your list, we think those items were justified, we have 
done a lot of work and you did not support the President, then 
I think the President probably would get credit even more. He 
has put together a list, Congress has refused to support it, 
and Congress gets beat up again.
    The fourth area I think is the President's ability or the 
White House's ability, or, coming from the departments, the 
ability to call Members of Congress and say that we are putting 
together a list of items to be canceled, and someone has put 
the project in your district on the list. We happen to think 
that that project is a good one, and we are going to do 
everything we can to make sure it gets off the list. And now on 
a quite different matter, we would like to know if we can count 
on your vote on the President's spending bill or in the Senate 
on a treaty, or a nomination, or anything else that the White 
House would want. That is tremendous leverage on the part of 
the executive branch. I think that is great damage to Congress 
as an independent institution.
    What are the potential dollar savings? I think from 
whatever we know about it, it is next to nothing. I describe 
here a Government Accountability Office (GAO) report in 1992 
where they estimated that over a 6-year period, the President 
could save up to $70 billion through an item veto. I did my own 
analysis of it and GAO later reversed and said that it would 
probably save hardly anything, and would cost more through this 
quid pro quo that I just mentioned.
    If you look at the Clinton years, the experience under the 
1996 act was very little; maybe under a billion or so. That is 
a lot of money. But you have to ask whether that is an answer 
or remedy for the deficits we are facing today. If you do get a 
result somewhere between a billion or less, then you have to 
ask what are you doing to your own institution.
    I have a section in my statement about what would happen to 
earmarks, it is another unknown. You are changing the process. 
Every time you change the process you are going to change 
behavior. You could end up with more earmarks. It is just an 
unknown. And it wouldn't be with any transparency. These are 
not things that the public is going to be able to follow.
    I end my statement by saying that there are plenty of very 
good remedies available right now. Of course, the President 
could use his veto. He could use the threat of a veto and tell 
people in conference, get things out of there; otherwise I will 
veto the bill.
    To me, the most effective step a President can take, and it 
is why we had the 1921 Budget and Accounting Act, is 
Presidential leadership. The President is supposed to submit a 
responsible budget. And the record, I think, shows that when 
the President submits a budget, that politically Congress stays 
around the aggregates of the President's budget. You change 
your priorities, which you have every right to do. But if a 
President is concerned about spending and deficits, then the 
step is to present a responsible budget. Once that is done, 90 
percent of the problem is taken care of.
    If a President doesn't submit a responsible budget, there 
is very little on the legislative side that can do to correct 
that.
    Thank you very much.
    Mr. Ryun. Thank you very much for your testimony.
    [The prepared statement of Mr. Fisher follows:]

  Prepared Statement of Louis Fisher, Specialist at the Law Library, 
                          Library of Congress

    Mr. Chairman, thank you for inviting me to testify on legislation 
that would give the President authority to exercise a type of item 
veto. The apparent goal is to reduce Federal spending, earmarks, and 
the budget deficit. For reasons given in my statement, I think 
spending, earmarks, and deficits would not be materially changed by 
this procedure and might even grow worse. That is counterintuitive, 
perhaps, but I will explain why.
    Whatever the fiscal results of this legislation, a more profound 
issue is the effect the bill would have on congressional prerogatives, 
checks and balances, and the system of separation of powers. Individual 
rights and liberties are protected in large part by the way we 
structure government. How should Members of Congress decide the 
constitutional issues implicit in this legislation? Look to court 
decisions for ultimate guidance or make independent judgments about how 
best to protect congressional interests?

                    MAKING CONSTITUTIONAL JUDGMENTS

    In House and Senate hearings held earlier this year, considerable 
attention was paid to whether this legislation would meet the standards 
set forth in the item veto case of Clinton v. City of New York (1998). 
Although it is useful to examine judicial precedents, each Member of 
Congress has an obligation to support and defend the Constitution and 
needs to exercise independent judgment in fulfilling that task. The 
branch responsible for protecting the rights, duties, and prestige of 
Congress is not the judiciary. It is Congress. The Framers expected 
each branch to defend itself.
    Earlier hearings offered testimony that the item veto bill drafted 
by the Administration might not satisfy the conditions set forth in 
Clinton. Especially was that so with the President's authority to defer 
spending for 180 calendar days while Congress considered his proposal 
to terminate spending. Depending on the time of the year when the 
President submitted his request, 1-year money might lapse, resulting in 
a virtual cancellation by the President without any congressional 
action or support.
    Of course Congress can amend the Administration bill to avoid this 
problem, but Congress needs to do more than merely adjust legislative 
language to satisfy Supreme Court decisions. Even if this bill were 
significantly modified to eliminate any problems under Clinton, a 
Member of Congress has a separate and unique duty. The fundamental 
test: Does this legislation protect the prerogatives, powers, and 
reputation of Congress as a coequal branch? The answer does not lie in 
case law. It lies in the willingness of each Member to determine what 
Congress must do to preserve its place in a system of coordinate 
branches. The true expert here is the lawmaker, not the judge. No one 
outside the legislative branch has the requisite understanding of 
congressional needs or can be entrusted to safeguard legislative 
interests.
    A lawmaker need not be an attorney to decide such questions. A non-
attorney is just as able and experienced in judging what Congress must 
do to protect representative democracy and the rights of citizens and 
constituents. Congress should not consciously pass an unconstitutional 
bill. Similarly, lawmakers should not pass legislation that damages 
their institution simply because they predict the bill will not be 
overturned in the courts.

         PROTECTING THE REPUTATION AND CREDIBILITY OF CONGRESS

    This item veto bill does damage to the institutional interests of 
Congress in several ways. First, it sends a clear message to the public 
that Congress has been irresponsible with its legislative work, both in 
the level of spending and the particular provisions it places in bills. 
To remedy those supposed defects, Congress will establish a fast-track 
procedure to enable the President to eliminate items that should never 
have been included in the bill. This process signals that Members are 
not up to the task and cannot properly conduct their constitutional 
duties. That is Damage No. 1.
    I don't know on what grounds it can be said that the President is 
the more trusted guardian of the purse and the far better judge of what 
is in the national interest, including earmarks. Why is the President, 
with the assistance of aides, more qualified to decide how Federal 
funds are to be allocated to particular districts and states? Granted, 
he has the general veto power and can, by threatening its use, force 
Congress to strip from bills certain features and provisions. But 
lawmakers know district and state needs better than agency employees 
and have the legitimacy that comes from being an elected official.
    As for the level of aggregate spending and the size of the Federal 
deficit, what evidence supports the view that the President is more 
responsible in fiscal affairs? Congress initiates various spending 
programs, of course, but the big-ticket items seem to come generally 
from the President: the national highway system, the space program, 
supercolliders, the Supersonic Transport, military commitments, 
entitlement programs, etc.

                          OTHER LIKELY DAMAGES

    I have questioned the premise behind the bill. Now I look at the 
way it would operate. Under the fast-track procedure, the President 
would submit to Congress a list of items to be cancelled. In so doing 
he would automatically receive credit in the public arena for fighting 
against waste. The public is unlikely to be able to differentiate 
between ``justified'' and ``unjustified'' programs. The President would 
win on image alone, not substance or analysis. At the same time, 
Congress would receive a public rebuke for having enacted the 
supposedly wasteful items. That is Damage No. 2. If Congress were to 
disapprove the bill drafted by the Administration to eliminate the 
items, it would be further criticized. The President could go to the 
public and claim that Congress, having established the fast-track 
procedure to correct for its deficiencies, refuses to delete unwanted 
and unneeded funds. Damage No. 3. If Congress has an interest in 
building support and credibility with the public, this is a procedure 
to avoid.
    Moreover, the President would have a new tool to coerce lawmakers 
and limit their independence. He or his aides could call Members to 
alert them that a particular project in their district or state might 
be on a list of programs scheduled for elimination. During the phone 
call, the Member would be told that the Administration actually thinks 
the project is a good one and should be preserved. The Member is 
assured that the Administration will do everything in its power to see 
that the project is not placed on the final list. At that point the 
conversation shifts course to inquire whether the lawmaker is willing 
to support a bill, treaty, or nomination desired by the President. That 
political leverage diminishes the constitutional independence of 
Congress. Damage No. 4.

                 WHAT ARE THE POTENTIAL DOLLAR SAVINGS?

    What we know about the item veto indicates that the amount saved 
would be quite modest, if any, and certainly would not be a remedy for 
annual deficits in the range of $300 billion or $400 billion. Both 
conceptually and in actual practice, the experience with the item veto 
suggests that the amounts that might be saved would be relatively 
small, in the range of perhaps one to two billion a year. Under some 
circumstances, an item veto could increase spending, as with the Quid 
Pro Quo described above. The Administration withholds cancelling a 
Member's program with the understanding that the Member will support a 
spending program favored by the President.
    In January 1992, the General Accounting Office released a report 
that estimated the savings that could be achieved through an item veto. 
The study assumed that the President would apply the item veto to all 
the items objected to by the Administration in its Statements of 
Administration Policy (SAPs). GAO estimated that the savings over a 6-
year period, during fiscal years 1984 through 1989, could have been $70 
billion.\1\ I was asked to review the GAO study. Looking at the same 
data, I concluded that the savings over the 6-year period would have 
been not $70 billion but $2-3 billion and probably less. I also 
suggested that instead of reductions the process could lead to 
increases through executive-legislative accommodations.\2\
---------------------------------------------------------------------------
    \1\ U.S. General Accounting Office. Line Item Veto: Estimating 
Potential Savings, GAO/AFMD-92-7, January 1992.
    \2\ My CRS memorandum of March 23, 1992 is reprinted at 138 Cong. 
Rec. 9981-82 (1992).
---------------------------------------------------------------------------
    Comptroller General Charles A. Bowsher, writing to Senator Robert 
C. Byrd, later acknowledged that actual savings from an item veto ``are 
likely to have been much less'' than the $70 billion originally 
projected. Actual savings ``could have been substantially less than the 
maximum and maybe, as you have suggested, close to zero.'' Mr. Bowsher 
also discussed situations ``in which the net effect of item veto power 
would be to increase spending.'' Such a result could occur if a 
President ``chose to announce his intent to exercise an item veto 
against programs or projects favored by individual Senators and 
Representatives as a mean of gaining their support for spending 
programs which would not otherwise have been enacted by the Congress.'' 
\3\
---------------------------------------------------------------------------
    \3\ Letter of July 23, 1992 from Charles A Bowsher, Comptroller 
General of the United States, to Senator Robert C. Byrd, chairman, 
Committee of Appropriations, reprinted at 142 Cong. Rec. 6513 (1996).
---------------------------------------------------------------------------
    Another helpful measure in gauging how much savings can be expected 
from an item veto comes from the Clinton Administration. President Bill 
Clinton used the authority in the Line Item Veto Act of 1996 to cancel 
a number of discretionary appropriations, new items of direct spending, 
and targeted tax benefits. The total savings, over a 5-year period, 
came to less than $600 million. His cancellations for fiscal year 1998 
were about $355 million out of a total budget of $1.7 trillion.\4\
---------------------------------------------------------------------------
    \4\ The Line Item Veto, hearing before the House Committee on 
Rules, 105th Cong., 2d Sess. 12 (1998). The totals would have been 
somewhat higher had all of President Clinton's recommendations been 
accepted by Congress. He canceled 38 projects in the military 
construction bill, with an estimated savings of $290 million over a 
five-year period. At congressional hearings, witnesses from the 
military services contradicted claims made by the Administration in 
justifying the cancellations. President Clinton vetoed the resolution 
of disapproval but both Houses easily overrode the veto (votes of 78 to 
20 in the Senate and 347 to 69 in the House).
---------------------------------------------------------------------------
                      A WAY TO ELIMINATE EARMARKS?

    It might be argued that the procedures outlined in the bill would 
allow the President to single out for cancellation unjustified earmarks 
added by Members. I suggest that it will be very difficult to measure 
what happens because the fast-track procedure is likely to change 
legislative behavior. Suppose, for the sake of argument, that Congress 
currently adds 150 earmarks that the President finds objectionable. 
Through item-veto authority, he recommends that 50 be eliminated. 
Congress agrees to support the cancellation of half that amount. Thus 
the total declines from 150 to 125, a significant reduction. But how 
would Members behave with the availability of an item-veto procedure? 
Perhaps the number of ``objectionable'' earmarks will grow from 150 to 
250, allowing Members to take credit for initiatives taken on behalf of 
constituents and place the blame on unelected bureaucrats who offer 
objections. The President responds with a list of 100 earmarks to be 
eliminated. Congress supports him on half. The result: earmarks decline 
from 250 to 200. That isn't progress. It's more like a shell game and 
far removed from the ``transparency'' used to describe the benefits of 
item-veto legislation. Functioning in that manner, the process reduces 
rather than enhances congressional responsibility.

                       OTHER DISPUTED PROVISIONS

    House and Senate hearings on the item-veto bill have spotlighted 
other controversial provisions. The bill placed no restrictions on the 
number of rescission proposals the President may submit to Congress. It 
could be one message per bill or a hundred per bill, and the same 
rescissions could be sent up a second or third time. As a result, the 
President gains substantial control in driving and determining the 
legislative schedule. I have already mentioned the 180 calendar day 
time for deferring the spending of funds. Third, there is no time limit 
when the President must submit his item-veto proposal to Congress. The 
problems identified here, and there are others, could be taken care of 
by changes to the bill: placing limits on the number of rescission 
bills the President may present to Congress, prohibiting repetitive 
requests, reducing the 180 days to something like 45, requiring the 
President to submit his requests within a specified number of days 
(such as 10 or 15), and eliminating the authority to ``modify'' 
language in mandatory spending bills. Those changes would improve the 
bill but they would not address the serious institutional damage that 
would be done to Congress, representative government, and 
constitutional checks.

                         REMEDIES ARE AVAILABLE

    There are more effective ways of dealing with Federal spending, 
earmarks, and budget deficits. Through the regular veto power, the 
President can tell Congress that unless it strips a number of 
identified items from a bill that is in conference, he will exercise 
his veto. Threats of that nature are regularly employed to shape the 
contents of legislation. The President may announce that if a bill 
exceeds a certain aggregate amount, he will veto it, again putting 
pressure on Congress to modify the bill to the President's 
satisfaction. At any time the President may submit a rescission bill to 
Congress under the 1974 Budget Act procedure. True, Congress can ignore 
his request, but through this procedure the President can publicly 
declare his opposition to excessive spending and put pressure on 
Congress to comply. A determined and skillful President can assure that 
legislative inaction comes at a cost.
    More important than those tools, however, is the budget that the 
President submits. It is within the President's power to recommend a 
budget that balances expenditures and revenues in such a way as to 
minimize or eliminate budget deficits. It is quite true that the 
President's budget is merely a proposal and that Congress can change it 
as it likes. But the historical record suggests that the aggregate 
numbers submitted by Presidents (total spending, deficit or surplus, 
etc.) are generally followed by Congress, and that legislative changes 
have to do with priorities, not totals. Presidential leadership in the 
form of submitting a responsible budget has far greater impact on 
spending and deficits than the availability of item-veto authority.

    Mr. Ryun. I would like to begin with Mr. Cooper. I thank 
you very much for your comments.
    Based upon your testimony, you feel that H.R. 4890, unlike 
the 1996 line item veto, is constitutional. Can you explain 
perhaps how you arrived at this decision and how you might 
distinguish why this is constitutional as opposed to the 1996 
one not being constitutional?
    Mr. Cooper. I am happy to do that, Mr. Chairman. I think 
for me the central defect--and I think the Supreme Court 
identified as the central defect--of the 1996 act was that the 
President's discretion that the Congress vested was to cancel 
law, was to repeal law.
    As I mentioned in my testimony, once the President canceled 
a provision pursuant to the authority contained in that act, it 
was as surely extinguished as it would have been if a repealer 
had been enacted under Article I, section 7. And nothing could 
recall it, cancellation or appeal; if the law is gone, it is 
gone. And whatever authority existed prior to the cancellation 
of the repealer could not be exercised.
    I think that is the central constitutional teaching of 
Clinton. And I think that this bill that is pending now before 
you obeys that constitutional teaching, because it doesn't 
exercise--it doesn't grant the President the power to exercise 
any type of discretion as to the law itself, but rather to 
exercise a discretion as to the authority contained under the 
law, which it has done since the days of Washington, a 
discretion to spend or not to spend.
    The powers separated by the Constitution are, under that 
approach, completely observed and obeyed. The Congress decides, 
all right, here is how much money the President can spend up 
to, but we are going to let the President decide what the 
discretion will be on that.
    But the legislative determination is Congress'.
    The administrative or executive branch discretion, I think 
this much should go here, this much should go here, and I have 
money left over, it should go back to the Treasury; that 
executive type of decision-making is in the President.
    It is when this body purports to give the President the 
legislative power to actually make the law go away, that is 
when the separation of powers has been traversed. So I think 
that is the central distinction in why I believe this measure 
now under consideration falls on the constitutional side of 
that line.
    Mr. Ryun. I want to take note, you said when there is money 
left over going back to the Treasury. I wonder how long it has 
been since that has actually taken place. But, nevertheless, I 
appreciate your comments.
    Mr. Fisher, I know you simply feel this is a bad idea. I 
know you mentioned something with regard to perhaps maybe the 
dollars saved--I don't want to mischaracterize this--may not be 
very significant. I will say this. Coming from a pretty rural 
district, every dollar saved, I know, for my farmers means a 
great deal. But besides that, I recognize that you feel it is a 
bad idea, regardless of who gets the credit or who gets the 
damage, but in your opinion you feel that this is 
unconstitutional per se?
    Mr. Fisher. The point I make is that if you go look at 
court decisions, I think with the adjustments to the bill, I 
think you could say the courts would not strike this down. But 
my point is that even though the courts would uphold a piece of 
legislation, it can still do damage to Congress as an 
institution.
    As far as Chuck Cooper's statement about discretionary 
authority on the part of the President, if Congress decides to 
appropriate X amount of money and the President can accomplish 
that task for less, and the remainder goes to the Treasury, 
there is no damage done, no discrediting of Congress. But there 
would be under this procedure where, in the bill that you just 
passed, the President has a chance to make public a whole list 
of things that he says should never have been in the bill in 
the first place.
    Mr. Ryun. Thank you for your comment. I am going to turn to 
Mr. Spratt at this point for any questions he may have.
    Mr. Spratt. Thank you very much, Mr. Chairman. I think you 
would all agree that this bill represents a substantial cession 
of authority, transfership of authority from the Congress to 
the President.
    I doubt that many people who are following this debate 
really appreciate how broad a ground of authority this is. One 
way of illustrating how far it goes is to look at how it 
applies not just to discretionary spending every year that is 
appropriated, and to some extent line items, a lot of the 
appropriations process is accomplished through committee 
language as opposed to bill language--but this also applies 
broadly, much broader than the Line Item Veto Act passed in the 
90s, to direct spending or entitlement spending.
    In particular, I don't have the bill citation, but on page 
13, this bill would extend to the President the power to, in 
the case of entitlement authority, prevent the specific legal 
obligation of the United States from having legal force or 
effect.
    Now, Mr. Cooper, Mr. Dinh, Mr. Fisher, can I ask you. Does 
this mean that the President could say if the Medicare trust 
fund, Part B trust fund, Part A trust fund, runs out of money 
at a given time, that the Government of the United States would 
not have the authority to pay the obligations of the Medicare 
program to provide for benefits of the program except to the 
extent that trust fund assets would cover the cost? Could he go 
that far? Could he literally cancel out a certain program of 
that magnitude with a stroke of a pen; obviously, at least, 
propose it to Congress?
    Are we talking about that bottom ground of authority? We 
are not talking about a bridge. We are not talking about a 
road. We are not talking about a museum. We are talking about a 
whole program, Social Security, Medicare, the farm program.
    Mr. Fisher. The way I read the bill on page 13 when it uses 
the term ``modify,'' you are giving the President not just 
discretionary authority on spending, but discretionary 
authority on legislation. The President could, with the word 
``modify,'' rewrite legislation. And that is the heart of the 
Congress' power, to shape and write legislation. Here under 
this procedure, the only one who could modify legislative 
language would be the President. Congress could not. Congress 
would be restricted to an up-or-down vote. So I think you are 
giving away both spending power and legislative power.
    Mr. Spratt. He can reach back to existing entitlement 
programs. No. 1, he has got elsewhere in the bill the power to 
modify direct spending. But here he has the authority in the 
case of entitlement authority to prevent the specific legal 
obligation of the United States from having legal force or 
effect. Social security, Medicare. Am I reading too much into 
this?
    Mr. Cooper. Congressman, I did not previously, until your 
comments, consider the possibility that the President could 
propose a rescission with respect to existing spending 
authority.
    And, in fact, I guess the way I had read the bill was that 
he could not----
    Mr. Spratt. As I understand, any spending authority enacted 
after the effective date of enactment of this bill. So once 
this bill comes, anything enacted thereafter is fair game.
    Mr. Cooper. OK. And now that I look at the effective date 
provision, having not thought about the question you are 
raising until now, that may be a valid interpretation of it.
    Mr. Spratt. In your language in the line item bill was one 
new direct spending item. I am not sure what direct spending 
item is, because there is a lot of direct spending that comes 
out of big accounts rather than what I would consider a line 
item or an item in the budget. But it was obviously a tentative 
attempt to see if that could be part of the President's arsenal 
without giving him too much, limited to one particular 
provision which happened to come down on the City of New York 
in the form of some Medicaid cuts.
    Mr. Cooper. It is correct that the 1996 act applied only to 
spending authority, moneys that were enacted, obviously, after 
that line item veto enacted. And the President's authority 
could only be exercised within 5 days--the cancellation 
authority, within 5 days of the passage of the new spending 
authority.
    I have always, I guess, grasped--I have never heard the 
suggestion previously made--that the President could, for 
example, in the year 2010, if this passes, go back and propose 
a rescission with respect to a spending measure or authority 
that was created, you know, in some year past. This is the 
first suggestion I have heard of that. It may have been in 
common discussion, but not to my ears. And I don't immediately 
see anything in the bill that contradicts your point. But I 
will say that I have understood its purpose to be focused only 
on matters of new spending or taxing authority that comes into 
existence after the passage of the act, and the President would 
have to move contemporaneously with that.
    Mr. Spratt. The President proposed that Congress would have 
to dispose, we would actually have to pass a rescission bill 
with that provision in it. However, as drawn, this statute will 
allow, this bill would allow the President, by proposing to at 
least effect the deferral of this expenditure, this entitlement 
obligation, for a period of 6 months.
    Mr. Cooper. That is correct. The key point, however, that I 
want to continue to emphasize is that the elimination of that 
authority and the spending, wherever it may come from, the 
spending authority, isn't eliminated unless this body agrees 
with the President's proposal. And that, to me is what this 
measure really is most easily likened to, and as a litigator 
this comes readily to my mind, is a petition for 
reconsideration, which is, you know, a procedural device that 
in every courtroom is commonplace. When a court makes a 
decision initially, the litigants can look at it, and they can 
always petition for reconsideration. And that is what, 
essentially, the President is saying to this body.
    I see a spending measure here, and you know, I just----
    Mr. Spratt. In its purest sense, that may be true. But 
there are certainly conceivable opportunities for a President 
to use it more manipulatively than simply the way you have 
described it. Jim Wright used to say, to understand the 
problems with a line item veto you need to have served under 
Lyndon Baines Johnson.
    Lots of Presidents can be manipulative like that. And our 
concern, my concern right now in this line of questioning, is 
how do you detract from this bill as much as possible the 
potential for abuse that a manipulative President could put 
this act to? For example, the requirement in the past when we 
had this bill on the floor, the President had to act quickly. 
Within a week after getting the bill, he had to send this back 
for petition, for reconsideration. Now he can act at any time 
on any legislation that hasn't yet been fully spent out. He can 
go back, and if he is trying to get the last Republican Member 
to vote for the prescription drug bill, he can pull his 
arsenal, he can pull this out of his arsenal and use this as 
leverage.
    Mr. Cooper. And, Mr. Spratt, I for one think that some type 
of reasonable time limit from the enactment of a spending or 
taxing measure for the President to propose a rescission would 
be a positive improvement on the bill as written, quite 
frankly, because I think it would address a number of the 
concerns that have been voiced about potential for abuse by a 
manipulative President.
    I have to quickly add, however, that I do think the 
legislative process, you know, in just the 200-year tradition 
of our country, is that some level of interbranch good faith is 
assumed whenever legislation is passed. And there is always 
authority for a President to abuse authority or others who have 
authority under law.
    Mr. Ryun. The Chair would like to interrupt at this point. 
I would like to give every opportunity to other members for 
questions. If you would observe the 5-minute clock, there may 
be time for a second round of questions. Mr. Cooper has time, 
but he apparently needs to leave around 11:30, and I would like 
you all to have an opportunity to ask him questions. At this 
time, I would like to turn to the sponsor of this bill, Mr. 
Ryan.
    Mr. Ryan. Thank you, Mr. Chairman. First let me try to 
address some of the issues and questions that have been raised. 
This is much like the bill, Mr. Spratt, that was introduced in 
the past Congress to achieve the same purpose.
    As to the question of the manipulation by the executive 
branch, could a future LBJ really manipulate this thing? First 
of all, that is not the intention of this bill. Second of all, 
the bill as currently drafted does not give the President the 
ability to go back years past and upset entitlement policy. But 
just to make it very, very clear that this is not the intention 
of this bill, I intend to introduce in the manager's amendment 
next week in the markup to make this very, very clear, No. 1, 
the way we wrote this bill in the beginning was we put 180 
calendar days out there, knowing that we needed to figure out 
how to make it a little cleaner, a little crisper. The reason 
we put 180 calendar days at the time was there was great 
constitutional debate about the Chadha case and about the 
constitutionality of how these time limits are set.
    So now that we know a little bit more, and this is the 
question I am going to: No. 1, I think we need to put a time 
limit on the front end. How much time does the President get to 
submit a rescission request to Congress? There is a finite time 
limit that ought to be in place. I think that addresses the 
gentleman's point.
    No. 2, the calendar day versus other kinds of time limits. 
Why 180 days? The reason we put 180 days in there is because we 
didn't want to see a situation where Congress could game the 
system by passing, let's say, an omnibus appropriations bill in 
the middle of October, then going home until the State of the 
Union address on January 22nd and waiting it out; and waiting 
out the deferral period of a President. That is a very 
conceivable situation. So what we wanted to do was be able to 
incorporate large recess periods within the legislative 
process.
    My personal preference is that we have a time limit on the 
front end and a deferral on the back end, tie it to legislative 
days, a finite number of legislative days which incorporates 
any kind of intervening recess. Now, when we first drafted this 
bill, we were concerned that might run into a Chadha problem.
    I want to ask Mr. Cooper and Mr. Dinh about that. But 
before I do, let me address something Mr. Fisher said that this 
is a bad tool or could be used to increase spending. I don't 
see it that way. The way I see it--and this is my 8th year as a 
member, 5 years as a staffer, part on this committee in the 
past--there is no transparency and accountability in the 
spending system at the end process here in Congress.
    With the earmark reform we are working on right now, we are 
trying to bring some transparency and accountability in 
spending in the beginning of the process when we write these 
bills and pass them through the original House and Senate 
passage. But when these bills go to conference and come out of 
conference, there is a lot of brand-new spending policy that is 
contained in large pieces of legislation.
    Members of Congress have one vote, yes or no, on the entire 
bill. The President of the United States has one decision, sign 
it or veto the entire piece of legislation. And it is that 
stage in the process where there is lacking any set sign of 
transparency and accountability. This is meant to bring 
transparency and accountability through this whole system by 
revising the rescissions process which is moribund. The 
rescissions process today effectively doesn't work. It is 
ignored. This simply makes the rescission process work.
    So my specific question, Mr. Dinh and Mr. Cooper, because I 
know you two have looked at this a lot, is will we run into 
Chadha problems or any constitutional court problems by trying 
to time-limit the deferral period?
    What we want to accomplish is a legitimate deferral period, 
but not one that is too long. We don't want to give the 
President 6 months on anything. But we also want to make sure 
that Congress can't rig the system by passing major spending 
bills, then recessing for 3 months and outlasting the deferral 
period. So we would like to have a finite deferral period which 
incorporates some of these large recesses that we have in these 
intervening times.
    Could you speak to that issue?
    Mr. Dinh. On the issue of legislative days versus calendar 
days, I see an issue there. I don't think it is a very serious 
issue or even a significant one in terms of constitutionality 
either under Chadha, under a one-house legislative veto issue, 
or a presentment clause issue.
    The reason I recognize it as an issue is that, of course, 
the recess decision is not an Article I, section 7, decision--
legislative act. But precisely because it is not a legislative 
act, it should not have to go through Article I, section 7, 
issue.
    That it has a collateral effect on this and a whole bunch 
of other laws with respect to the operation of those laws, I 
don't think raises a serious constitutional issue under Chadha 
or other separation of powers issues. And there are, by the 
way, no authorities on this because it doesn't arise very 
often.
    The closest analogy I can think of is the pocket veto 
issue. That is, the Constitution requires the President to 
return a signed bill within 10 days. Obviously, whether or not 
he is able to return that depends on whether or not the 
Congress is in session.
    And so there was a challenge in the 1930s that this 
obviated--this extended the number of days for him to return 
the bill, and the Court rejected that argument, saying that is 
part of the constitutional process, and just because Congress 
happened to be out of session doesn't make it to be a 
constitutional issue. And so, conversely either the legislative 
days or calendar days does not pose such a type of Article I, 
section 7, problem. If it did pose a problem for legislative 
days, then using calendar days wouldn't help because you have 
the same--the same issue about Congress going in and out of 
session during the calendar day. And so--but I think that the 
decision whether or not to be in session is a nonlegislative 
act. It doesn't raise a significant issue at all.
    Mr. Ryan. Thank you.
    Mr. Ryun. Mr. Cooper, would you like to respond to that? 
And I would like to remind members that there is a 5-minute 
time limit. Green means you can ask and answer questions. 
Yellow means you wrap it up. And red means it is time to pass. 
So, Mr. Cooper.
    Mr. Cooper. Mr. Chairman I really have nothing to add to 
Mr. Professor Dinh's analysis. It seems quite sound to me. I do 
see the administration's concern about a Chadha problem with 
triggering, you know, the President's suspension authority on a 
negative vote in one house or the other. But I would just 
endorse what Professor Dinh has said.
    Mr. Ryun. All right. Thank you very much.
    Mr. Cooper, it is your turn for questions.
    Mr. Cooper of Tennessee. Thank you, Mr. Chairman. First, on 
page 6 of Mr. Cooper's testimony, he says precisely the same 
text, and that text is signed into law by the President.
    Quoting the Clinton decision, I think--I would hope that 
the five constitutional suits that are headed toward the 
Supreme Court right now concerning the Deficit Reduction Act 
could perhaps get you--your or Mr. Dinh's expertise, because as 
you are well aware, identical texts were not delivered to the 
President.
    The President picked one over the other in a terrific 
breach of constitutional duties in my opinion.
    But the big question--it is a little bit sad that great 
constitutional scholars like you three have to be dragged into 
Congress to try to give us backbone, because that is what this 
issue is all about. The President has never used his veto 
power, the longest stretch since Thomas Jefferson. He has 
really never used his rescission power which every President 
since Nixon has used. So what this is really about is Nero 
fiddling while Rome burns.
    Now that sounds a little extreme, but if you read ``The 
Wall Street Journal'' yesterday, you will discover that 
Standard & Poor's, the leading rating agency for bonds, said 
that U.S. Treasury bonds would lose their AAA rating in 2012. 
That is pretty serious, and this is from Standard & Poor's, not 
any political organization. The credit of America is being 
destroyed.
    Another point, the head of the GAO has testified to this 
committee that the cost of 1 year of delay in addressing some 
of our fiscal problems is $3 trillion, $3 trillion. Now, this 
Congress this year will meet fewer days than any Congress since 
1948. Harry Truman called that ``the Do-Nothing Congress.''
    As Mr. Spratt mentioned earlier, this is a Congress without 
a budget, and here we are talking about fine-tuning 
Presidential powers. We haven't produced a budget, and the 
President has never used the powers he has always had. Who is 
fooling whom here? So that is why I use strong words like 
``Nero fiddling while Rome is burning.''
    We must protect the credit rating of America. We must not 
return in January to a problem that is $3 trillion worse. Those 
are the real issues you face. And y'all have great 
constitutional expertise, but we have budget responsibility, 
and we are not meeting that responsibility.
    So whether this is constitutional or not--and even Mr. 
Fisher is agreeing that it could be drafted to be 
constitutional--we are missing the larger central question that 
affects the future of our country, and you are not expected to 
be experts on that. But this is one more fig leaf to try to 
hide the nakedness that most citizens are not aware of, that 
the President has not used the powers he has got.
    Two of you gentlemen have conservative backgrounds. To me, 
the President is not acting in a conservative fashion. The 
Reagan economist, Bruce Bartlett, has written a book about this 
called ``Impostor: How George W. Bush Bankrupted America and 
Betrayed the Reagan Legacy.''
    Is this conservative that we are seeing from this 
administration when, so far as I know, for the first time since 
the existence of Standard & Poor's, the credit rating of 
America is endangered not decades out, but in the relatively 
near term. What is going on here except an excuse from a lot of 
Congressmen, and some in both parties, to stop action or delay 
recognition of these problems?
    These are problems that simply must be addressed whether 
you are conservative or liberal, strict constructionist or more 
activist approach. And it is fine to talk about all the legal 
niceties, but the larger issues are simply being ignored.
    This is not the Judiciary Committee. This is the Budget 
Committee, and we do not have a budget for America this year.
    So forgive me for the statement. If I could return my quick 
earlier point, I hope that you gentlemen can use your expertise 
in that pending Deficit Reduction Act case. Thank you.
    Mr. Ryun. The next question will come from Mr. Lungren. You 
have 5 minutes.
    Mr. Lungren. Thank you very much, Mr. Chairman.
    I am kind of surprised at some of the comments from my 
colleagues here. I mean, my ranking member, Mr. Spratt, called 
this a diversionary tactic. I guess the next thing we are going 
to hear is killing al-Zarqawi was a diversionary tactic. This 
is something that is serious. This is an issue that we have 
here that all of us, I thought, were serious about.
    If I could borrow from George Will, this bill is kind of 
like the Betty Ford Clinic for earmark addiction in both the 
executive and legislative branch. I returned to Congress after 
a 16-year absence, and frankly, I am horrified at the lack of 
concern about spending constraint. And I remember Congress' 
reaction when I was a Hill staffer years ago, and it was to 
punish Richard Nixon for trying to have spending restraint by 
passing a bill that cut off some of his authority of 
impoundment.
    So now we are talking about in some ways sharing the 
responsibility on spending restraint.
    I look at this as transparency. I look at this--you talk 
about a manipulative President. Hey, come on, let's wake up. 
There have been LBJs and others for years, both in the House 
and the Senate and the Presidency. At least this requires it to 
be on the table. At least there is a little bit of a window 
into some of the spending, but I would like to ask a couple of 
constitutional questions here.
    The U.S. Supreme Court indicated in the Clinton case that 
both Houses of Congress must agree on any rescission. That 
would seem to take care of the bicameralism requirement. But 
looking at Clinton and Chadha, how does the proposal meet the 
present requirement? The bill makes reference to a bill to 
rescind the amounts of budget authority or items of direct 
spending as specified in the special message in the President's 
draft bill.
    I would ask one question: Is it enough to present the 
approval of the items rescinded or should we present the 
legislation altered by the rescissions that will be signed into 
law? That is one question.
    The second question is this: Could one Congress pass the 
law and send it to the President at the end of this Congress? 
For instance, we are here in a lame duck session this December 
if this bill were in effect; we pass a spending bill to the 
President. The period of time, whatever it is 180 days, or 
legislative days, goes over into the next Congress.
    Is there any constitutional problem with a new Congress 
rescinding through this act something done by a previous 
Congress? Because presumably what you are doing is suspending 
application of the law as opposed to actually having a 
completed law, in a sense; is that any problem?
    Mr. Dinh. If I may take a first crack at that, I look at 
the procedure set forth in the act here as no more 
extraordinary than if you were to consider a repealer. Here are 
special procedures for a special kind of repealer. And so the 
language of a repealer that is passed by Congress and presented 
to the President is simply this item as opposed to this act or 
this provision of law is hereby repealed.
    Here it says, this specific item is hereby rescinded so it 
works as a partial repealer of the Budget Act and also a--or a 
special amendment, subsequent amendment, to that act. So it is 
not any more extraordinary.
    With respect to crossover presentment, the normal rules 
would apply with respect to the end of session, whether or not 
it has come in within the session and signed within the 
session.
    With respect to repeal of prior Budget Acts, that is, prior 
budget cycles, again, I think that the question there is with 
respect to whether or not you can rescind the authorization 
prior--that what had been previously granted--I see no special 
problem with that with the exception of whatever limiting 
language you may have in any given Budget Act with respect to 
its validity. Like I said, it is just because this is a 
legislative line item veto. The legislation that is used is 
like any other Article I, Section 7 issue.
    Your question also pointed out the earlier question 
regarding entitlement programs. I think the provision that was 
read earlier with respect to modification and withdrawing of 
entitlement is necessary as legal matter because of the 
Goldberg v. Kelly case that says that there is a new property 
interest out there with certain authorizations that give people 
certain expectations of receiving that property.
    That particular provision takes away the statutory 
entitlement, whether or not Goldberg v. Kelly extends also to 
create a new entitlement of a constitutional nature, is a 
question for the courts subsequently to decide.
    Mr. Cooper. I listened very carefully to Professor Dinh's 
response, and I did not detect anything that I thought I, in 
any way, disagreed with. It does seem to me that passage of 
simply, you know, the approval of the President's rescission 
proposal would do the trick. I don't really detect any reason 
why going farther and actually perhaps reenacting the 
underlying measure without the rescinded measure or item would 
be a necessary step, if I understood your question correctly, 
Congressman Lungren.
    And also, I think that the constitutional mechanics of this 
process are that Congress is enacting a repealer, and a 
subsequent Congress--I would see no reason why a subsequent 
Congress would have any restraints on its ability to repeal 
something that a previous Congress had enacted even if it were, 
again, just pursuant to special provisions that the Congress 
has effectively in this bill promised the President it will 
undertake should he make a proposal pursuant to the authority 
that is provided him.
    Mr. Ryun. At this time, I would like to recognize Mr. Neal 
for 5 minutes.
    Mr. Neal. Thank you very much, Mr. Chairman. Thanks to the 
panelists. It is really nice to have individuals of your 
caliber here today.
    Is it your position that Congress currently has the tools 
to restrain spending? Does anybody disagree with that 
statement?
    Mr. Fisher. I agree it has the tools.
    Mr. Neal. Mr. Dinh.
    Mr. Dinh. No.
    Mr. Neal. I want to have brief answers because I have a lot 
to get in here.
    Do you think Congress currently has the tools to restrain 
spending?
    Mr. Fisher. Yes.
    Mr. Neal. Mr. Cooper.
    Mr. Cooper. I don't disagree with that.
    Mr. Neal. Thank you.
    Is there a guarantee that if this would be enacted that 
anything other than priorities would be shifted, meaning that 
the President would decide what priorities we are spending on 
rather than Members of Congress?
    Mr. Fisher. I think the main impact would be priorities, 
not total spending.
    Mr. Dinh. There are no guarantees.
    Mr. Neal. No guarantees.
    Mr. Cooper.
    Mr. Cooper. I think that this provision simply identifies a 
way that the Congress and the President, working together, can 
make decisions and correct earlier mistakes. That is all.
    Mr. Neal. Thank you.
    Do Members of Congress serve under the President?
    Mr. Fisher. No. As I last recall, I think they take an oath 
to support and defend the Constitution.
    Mr. Neal. Mr. Dinh.
    Mr. Dinh. No.
    Mr. Neal. Mr. Cooper.
    Mr. Cooper. No, sir, of course not.
    Mr. Neal. Mr. Ryan indicated in his comments that the 
Framers would be thrilled with this initiative. Do you think 
Mr. Madison would be happy with the proposal that is in front 
of us?
    Mr. Fisher. I made a point in my statement that Madison and 
others expected each branch to protect itself. And Congress 
being the first branch, the branch closest to the people, he 
wouldn't have wanted to see it put itself in a position where 
it would be injured or demeaned or discredited.
    Mr. Dinh. One note there. This is--nobody can speak for 
James Madison, but I would note, James Madison is the 
forefather of understanding political process, political 
economy, and I think he would recognize the collective action 
problem.
    Mr. Neal. But he was also haunted by what happened with 
Charles and what happened at Runnymede.
    Mr. Dinh. No question.
    Mr. Neal. Very concerned about kingly responsibilities.
    Mr. Dinh. If this were a delegation, an abdication of 
responsibility to the executive branch, I think that would be a 
point very well taken, but this is still retention of authority 
by the legislature.
    Mr. Neal. Thank you.
    Mr. Lungren kind of glossed over the notion of Lyndon 
Johnson. Have you ever listened to the tapes of Mr. Johnson and 
Senator Long as they discussed a new courthouse in Shreveport, 
Louisiana? I assume you haven't.
    Has anyone read the trilogy recently that was offered by 
Taylor Branch as one of the great scholarly achievements on 
Martin Luther King's life, when Lyndon Johnson suggests by 1965 
and 1966 that the war in Vietnam is a mistake, and he can't 
figure out how to get out of it--58,000 people dead when the 
war ended in 1974.
    Is there a potential here--I will ask our scholars, and you 
truly are that, and I have great regard for what it is you do. 
Is there a potential here for executive mischief?
    Mr. Fisher. Of course, there is. But let me just say, also, 
we have been talking about transparency here, and that's an 
important issue.
    Mr. Neal. I have the press releases from members of our 
committee on the earmarks that they have embraced.
    Mr. Fisher. Right. But I am raising the question about what 
transparency this bill has on the executive side. Once the 
executive branch puts together that list of items to come back 
to be terminated, how did that list get put together? Would 
these be congressional add-ons? Does that mean you can't add 
anything to the President's budget?
    Mr. Neal. Well, I think there is a great constitutional 
issue that we ought to be focused on, as members of the 
legislative branch, and that is called the K Street Project, 
because in some measure, we are here today because of the K 
Street Project.
    If you look at what has happened to the earmarking process 
in Congress, where members of our body routinely embrace press 
releases touting their spending achievements back home, but 
come in and complain about the spending priorities of the 
Nation, I mean, it seems to me that transparency is precisely 
the issue. Put your name next to the earmark and offer it in 
public, not the way that it is done now where the press and 
others can't get to who the author of the actual legislation 
is.
    I mean, the three scholars here agree, and you have a great 
reputation, and I hold you in the highest regard. We 
acknowledge that the tools are available to this Congress. I 
voted for the Bush budget No. 1, 2 Clinton budgets. We balanced 
the budget with cuts in revenue increases and at the same time, 
at the same time, Members of the other side embraced a 
constitutional amendment to balance the budget? This is 
gimmickry. Stand up for the institution.
    My hands, I feel, are very clean today. I will tell you 
why. I oppose the balanced budget amendments to the 
Constitution. I opposed the line item veto and stood for the 
institution that imposed term limits. And there are Members of 
the body today who voted for the term limits and remain here to 
this moment, long after their vote had been cast.
    And I will close on this note. The best speech I ever heard 
came from Henry Hyde on why we shouldn't use constitutional 
gimmickry.
    Mr. Ryun. Gentleman's time has expired.
    Mr. Bonner.
    Mr. Bonner. I really came to the hearing today to learn and 
not to ask questions. But this debate and discussion has 
actually raised some questions that I would like to try to get 
on the record.
    If any of the three of you had the role of chief counsel to 
the Speaker of the House, not your current role, and your 
advice was if by embracing this measure that many of us believe 
we do need both sides--the Blue Dog conservatives, the 
Democratic side, and the RSC members and others on our side 
that are very concerned about the growing spending habits in 
this city, but if your roles were to advise the Speaker of the 
House about whether or not by embracing this bill we would be 
giving up our constitutional status as a coequal branch of 
government to the administrative branch, in that role and 
wearing that hat, could you advise that, in fact, setting aside 
the goal of getting the balance--getting the budget and the 
spending habits under control, could any of you advise the 
Speaker of the House that this would, in fact, not weaken our 
coequal status with the administrative branch?
    Mr. Fisher. I think the bill and its basic concept would 
weaken Congress. If Congress wants to protect that balance, 
then I think that it needs to be a process where just as the 
executive branch wants to go after some legislative decisions, 
Congress can go after some executive decisions.
    If you remember, that is the way it worked in 1992 where 
there was a package at the end that had a rough balance, and it 
wasn't just Congress taking the hits.
    So I think you have to have some process. If you remember, 
in 1992, they sent up about a $10 billion package of things 
they made fun of Congress for ever having enacted. And Congress 
said, if you want to play that game, we will go after some 
things on the executive agency side that look funny also.
    In the end, there was a rough balance, and I think the 
status and prestige of both branches was protected, but I don't 
think that this bill protects Congress that way.
    Mr. Dinh. I think I may disagree with my friend and 
respected colleague, Lou Fisher, here, because I think in one 
way, this bill not only does not denigrate congressional power, 
but in one way, it affirms it.
    If one takes as a given--I think that everybody has agreed 
that the President has some discretion not to spend or to 
pounce on certain funds even in the absence of any 
congressional authority, what this bill does is, it actually 
gives the President certain authority to defer certain 
spending, and in that sense reasserts congressional authority 
and regulation into that branch regulatory budgetary process. 
So, in this regard, it is a reaffirmation of the congressional 
role in the spending decision, in addition to the authorization 
and appropriation decision.
    Mr. Cooper. I, too, disagree with my friend Lou Fisher's 
thoughts on the idea that this would result, even if 
constitutional, with ``discrediting,'' I think is the word he 
has used several times, this body and otherwise demeaning the 
legislature in favor of executive branch authorities. I don't 
look at this that way at all.
    I see this, again, as I earlier analogized, as a mechanism 
by which this body is looking to the President for what amounts 
to, again, a petition for reconsideration of certain decisions 
that the body has taken in a collective effort; that that may 
well have spawned some errors that are in need of correction, 
some things that are not in the best interests of the country.
    If more carefully considered in isolation and if the 
Congress doesn't agree with the President's judgment on this--
and, yes, the President certainly can make his arguments in a 
robust way, designed to develop as much political force as he 
can gather behind his views on this--Congress has the same 
authority on its side. But at the end of the day, the question 
becomes, well, do the President and the Congress believe and 
agree that this measure was not well taken? And if they don't 
agree on it, it stays.
    I don't understand that, as a process, as any more 
demeaning to this body than is a petition for reconsideration 
that I file--all too often, unfortunately--in a court in which 
I am litigating. It is no--you know, just asking, Could you 
look at this again; I think you didn't consider this or that 
concern. It is not demeaning process at all. It is just error 
correction.
    Mr. Bonner. Thank you.
    Mr. Ryun. Gentleman's time has expired.
    The Chair would urge everyone to stay to 5 minutes. We are 
expecting votes at about 11:10. That would give us an 
opportunity for everyone that is here to ask questions.
    At this point, I would like to give an opportunity to Mr. 
Moore, who is recognized for 5 minutes.
    Mr. Moore. Thank you, Mr. Chairman. And thank you, 
gentlemen, for being here this morning with your testimony. As 
I understand this bill, a rescission bill is to be used for 
deficit reduction purposes. Is that generally correct?
    Mr. Fisher. Yes.
    Mr. Cooper. Yes.
    Mr. Moore. Thank you.
    I think all of you are familiar with the now-expired rule, 
at least the way it was, called PAYGO or pay-as-you-go. You 
have all heard of that rule and are all familiar with that 
rule?
    Mr. Fisher. Yes.
    Mr. Cooper. I am sorry. I am not familiar with that.
    Mr. Moore. Mr. Fisher, can you give just a brief one- or 
two-line statement about what PAYGO means?
    Mr. Fisher. It just means that anyone that has an 
initiative that would unbalance the budget has the 
responsibility to do something of a corrective nature so that 
you have a neutral result.
    Mr. Moore. So if you have a new tax cut proposal or a new 
spending proposal, the second part of the proposal has to be, 
here is how it is going to be paid for so it is revenue-
neutral; is that correct?
    Mr. Fisher. That is correct.
    Mr. Moore. Would you support the reinstitution of that?
    Mr. Fisher. I think that was a discipline that, to my 
knowledge, worked well and would work well again.
    Mr. Moore. Mr. Dinh.
    Mr. Dinh. I am just an absent-minded law professor. This is 
way above my pay grade.
    Mr. Moore. All right.
    Mr. Cooper, having heard the explanation----
    Mr. Cooper. Having heard the explanation, I honestly don't 
have an opinion of it. It doesn't seem to me to pose a 
constitutional issue. That is the only thing I would presume to 
advise this body on.
    Mr. Moore. I am trying to get at a policy of deficit 
reduction, and maybe there are more effective ways to do it 
than simply the line item veto or rescission. In fact, Chairman 
Greenspan, I believe, told this committee that he thought PAYGO 
should be reinstituted not only with regard to new spending 
proposals but also with regard to new tax cut proposals because 
both can reduce the money available to Congress to use as it 
sees fit. Does that make sense?
    Mr. Cooper. It does to me, yes.
    Mr. Moore. All right.
    Somebody--one of my colleagues on the other side mentioned 
George Will, the columnist. And George Will wrote that the 
administration's line item veto proposal would, quote, 
``aggravate an imbalance in our constitutional system that has 
been growing for seven decades, the expansion of the executive 
power at the expense of the legislature.'' And that was 16 
March of 2006.
    Does anyone disagree with George Will's observation there? 
I am not asking my colleagues. I am asking the witnesses here.
    Mr. Cooper. I, for one, despite my reticence to venture 
into disagreement with Mr. Will, do disagree with that 
proposition. I don't think there has been a transfer of power 
or authority, certainly not constitutional authority, from the 
Congress to the President for seven decades.
    Mr. Moore. All right.
    Mr. Dinh.
    Mr. Dinh. I have nothing to add.
    Mr. Moore. All right.
    Mr. Fisher.
    Mr. Fisher. I see it as a transfer that has been going on 
for a long time.
    Mr. Moore. Well, despite my reticence to agree with George 
Will, I do agree with him here, too.
    House Appropriations Committee chairman, Jerry Lewis, 
testified before the Rules Committee that Presidents might 
misuse this proposed authority to target rescissions for 
political purposes. Now, Congressman Lewis is a Republican. We 
have a Republican President, but this President won't always be 
President.
    Does that concern any of you that Democrats or Republican 
Presidents in the future might misuse this kind of power for 
political purposes?
    Mr. Dinh. I think institution design and procedural 
amendments, which I think this is the core of, should be made 
irregardless of who is in power at any given time, which is why 
I think that this is a very good measure.
    I return to Mr. Cooper's very good analogy regarding a 
backbone both to all participants in this process, both the 
Chamber's and also the President's.
    The Bible teaches us, even where the spirit is willing, the 
flesh may be weak, and that is why Ulysses has----
    Mr. Moore. The flesh certainly is weak.
    Mr. Fisher, any observation here?
    Mr. Fisher. Yes. I would just underscore that in 1921 there 
were people who said, let's have an executive budget and 
prohibit Members of Congress from adding to it; you would need 
the permission of the Secretary of the Treasury. Congress 
rejected that.
    So Congress understood that when the President sends it up, 
it is an executive budget; when it gets up here, it is a 
legislative budget, and we do with it as you like. I think this 
bill threatens the bargain struck back in 1921.
    Mr. Moore. None of you are concerned about a grab for power 
by the executive branch? And I am not just talking about 
President Bush. I am talking about other Presidents in the 
future. Is that not a concern?
    Mr. Dinh. I don't think this bill----
    Mr. Moore. I have heard from you. I need to hear from the 
other two. I am sorry to cut you off, Mr. Dinh.
    Mr. Fisher. It is a concern to me.
    Mr. Moore. Mr. Cooper.
    Mr. Cooper. Sir, I do not regard this as a grab for power.
    I did regard the cancellation authority in the 1996 Line 
Item Veto Act as just that and as a constitutional offense. And 
despite the fact that I favored as a policy matter and told my 
clients--very liberal members of this body and very liberal 
members of the Senate--that I disagreed with them at a level of 
policy, I thought that a line item veto would be a good thing 
if it could bring some additional discipline to the budgetary 
process.
    But notwithstanding that, I joined them on a constitutional 
challenge to that bill. I don't think this one suffers from 
that kind of problem.
    Mr. Moore. Thank you.
    Mr. Ryun. The gentleman's time has expired.
    Mr. Hensarling.
    Mr. Hensarling. Thank you, Mr. Chairman.
    No. 1, I would like to say how happy I am that we are 
actually holding this hearing. Since the time I have been a 
Member of Congress, it has been somewhat of a rarity that we 
actually examine the constitutionality of what we are about to 
engage in. And although I disagree with most of Mr. Fisher's 
testimony, I certainly agree that individual Members of 
Congress do have the duty to examine the constitutionality of 
the laws upon which they are about to vote.
    I must admit, though, that I find it somewhat ironic that 
we are questioning the constitutionality. It only comes up in 
the context of when we are actually trying to save the people 
money. Any time we spend the people's money--rarely do I hear a 
constitutional argument against funding bike paths in Oregon, 
indoor rain forests in Iowa, bridges to nowhere in Alaska--or 
my favorite of the month, proposals to allow folks to buy flood 
insurance after the flood has arrived. I never quite hear the 
constitutionality being questioned in those contexts.
    Mr. Fisher, in your testimony--our issue here really dealt 
with the constitutionality of the line item veto. Frankly, I 
heard very little in the way of argument in that regard. It 
appears to me that your main thesis is that this is going to 
upset a balance of power and do us very little good.
    And, certainly, I will defer to the collective expertise of 
this panel, but my reading of history is such that as we look 
at the history of the Republic, it appears to me that really, 
until 1974, the Executive did have a functional line item veto 
and did have the power to delay and essentially impound funds. 
And so one might say that this would help in--to a modicum to 
go back to the status quo ante.
    Is my reading of history correct, Mr. Dinh? Or how would 
you characterize it?
    Mr. Dinh. Yes. As both my and Chuck Cooper's testimony 
pointed out, especially Chuck's, the discretion not to spend, 
or affirmatively to impound, is one that started with the 
beginning of the Republic and continues to this day.
    Mr. Hensarling. Mr. Cooper, do you have a comment?
    Mr. Cooper. Only to acknowledge that I believe that is 
correct.
    Mr. Fisher. May I add that the President has had that 
discretion provided he carried out the purpose of the 
legislation. The difficulty was when Presidents began to 
terminate, or cut in half, programs.
    Mr. Hensarling. OK. Upsetting a delicate balance between 
the branches of government again, my reading of this is again, 
we are looking at ultimately the legislative branch of 
government being able to vote on a proposal of the President, 
passage by a majority. How is this functionally different from 
our fast-track authority on trade agreements?
    Again, I will start with you, Mr. Dinh.
    Mr. Dinh. Sir, it is not--and I do not think that the 
balance of power in the Constitution is anything but delicate. 
You all know that there are politics going on in this town. 
There are very aggressive interbranch politics; and where there 
is advantageous activity by one Member, one House, or one 
Chamber, the President counteracts against that. Like we just 
asked, the Members in the House and the Chamber would 
counteract against advantageous activities by a President.
    Mr. Fisher. On the fast track, there is a difference 
between the trade fast track and the fast track in this bill. 
The fast track on trade, it is a multistep process, and there 
are opportunities with informal bills and so forth to have 
Congress weigh in and change things before the implementing 
bill comes up. But that doesn't occur here; you have no chance 
to change the list of items that come up to you.
    Mr. Hensarling. Mr. Fisher, in your testimony, you also 
argue that this does apparently very little good in battling 
spending. But isn't that a little akin to saying, the house is 
on fire, and let's not get a bucket of water thrown on it 
because one bucket doesn't do us much good? But doesn't one 
bucket perhaps lead to a bucket brigade?
    We are looking now at roughly $8 trillion of debt, $300 
billion of ongoing deficits. I always hear the argument around 
here, well, that does very little good, given the magnitude of 
the problem.
    I wish that the gentleman from Tennessee was still here, as 
he was crying about the long-term deficit that we have. I 
happen to remember that when the President tried to lead an 
effort to save Social Security as we know it for the next 
generation, I think I remember every single Democrat fighting 
the proposition, in doing everything they could to ensure that 
that did not happen. And indeed, those who brought up PAYGO 
know that it has absolutely no impact on the spending patterns 
of Medicare, Medicaid and Social Security.
    And I see that our ever-able chairman with his gavel is 
gaveling me down.
    Mr. Ryun. Very good.
    At this time, I would like to yield 5 minutes to Mr. 
Campbell.
    Mr. Campbell. Thank you. Hello. Oh, there we are. Thank 
you, Mr. Chairman.
    I think I heard a general consensus from the panel that you 
really don't see a major constitutional issue on the proposal 
as it is written. But what I think I did hear was some concern 
about whether it will accomplish the goals and objectives for 
which it is intended.
    I think, Professor Dinh, you suggested that you didn't 
think it was a constitutional issue, but you had some question 
as to its effectiveness.
    I think you, Mr. Fisher, directly suggested that it would 
have--could perhaps result in increased spending rather than 
reduced spending.
    I am not sure you opined on this, Mr. Cooper, but I will 
ask you to do that, I suppose, now.
    So given that--in spite of some of the comments that have 
happened in this committee during this hearing from the dais up 
here, I don't think given that--what is it, we, Congress, in 
something like 33 out of the last 37 years has spent more than 
revenues through Congresses of both parties, presidents of both 
parties, and virtually every combination thereof. I don't think 
anyone can really disagree legitimately with the fact that we 
need more spending discipline, some structural discipline 
around the spending process.
    Starting with you, Professor Dinh, do you have any 
suggestions relative to the bill, the proposal as it stands, 
that, in your view, would make it more effective as a spending 
control without trodding on any constitutional grounds?
    Mr. Dinh. No. They are only the amendments at the margins.
    I guess one of the things that Mr. Ryan telegraphed at the 
beginning of the hearing is perhaps to limit the number of 
times that the President may do it in order to take care of 
some of the concerns for abuse.
    One way to address the problems of constitutional abuse 
while at the same time maintain the kind of procedural rigor is 
to make the limit effective with respect to deferrals, but 
continue the fast track procedures for any number of items that 
the President may wish to propose to rescind. Because the real 
constitutional issue, if there is any, is on the number and the 
length of the deferrals and not on what gets into your internal 
fast track procedures. So even if one limits the number of 
deferrals that are eligible, there is really no constitutional 
reason to limit the number of rescission proposals to go into 
the fast track pipeline.
    Mr. Campbell. Mr. Cooper.
    Mr. Cooper. Yes, sir. I honestly don't have any advice with 
respect to how the measure might be modified to more directly 
or more effectively address budget concerns.
    I do have some thoughts, however, and I have discussed some 
thoughts with some of the Members of this body about how it 
might be modified to address some of the concerns about, such 
as we have heard from Mr. Spratt, about possibilities of abuse 
by a manipulative President. I would be happy to share those 
with you if you are interested in them.
    But in terms of budgetary issues, I honestly don't have any 
expertise to qualify me or to, otherwise, share with you. 
    Mr. Fisher. Spending constraint is important. Under this 
bill, the Executive would be the only one going after, 
probably, legislative add-ons. So if you want spending 
constraint, and you want to rethink and reconsider what has 
happened in the past, then I think you need a process that 
allows Congress to go after money that had already been 
appropriated to the executive branch and that Congress now 
thinks it probably was a bad idea. You need more of a mix so 
that both branches carry some of the burden.
    Mr. Cooper. If I could just footnote that point.
    Congress is in session every day, and every day it can do 
whatever it wants in that respect. There is no limit that I am 
aware of on Congress' ability to discipline the President in 
such ways, and his spending authority, in--however it pleases.
    Mr. Campbell. Mr. Fisher, last word on that?
    Mr. Fisher. No. Just to make sure that if there is a list 
of programs to be cut and cancelled that had already been 
enacted, do it not just on the legislative side but on the 
executive-side programs and the agencies and departments. That 
is the way the 1992 procedure worked, and you may want to take 
a look at that.
    Mr. Campbell. Thank you, Mr. Chairman.
    Mr. Ryun. Thank you, Mr. Campbell.
    I would like to thank the panel, Mr. Cooper, Mr. Dinh and 
Mr. Fisher, for their time and their energy, their willingness 
to answer questions, their insight.
    And we are expecting a vote momentarily, so this meeting, 
this hearing, is adjourned.
    [Whereupon, at 11:08 a.m., the committee was adjourned.]

                                  
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