Constitutionality of Line-item Veto Proposal

A bill that purports to give the President a line-item veto by providing that each item of 

appropriation in an appropriation bill be enrolled, although not voted on, as a separate bill 

raises serious constitutional questions under Article I, § 7, cl. 2 of the Constitution.

February 1, 1985

M e m o r a n d u m O p i n i o n f o r t h e A t t o r n e y G e n e r a l

This Office has reviewed a copy of S. 43, a bill that seeks to provide the 

President with effective line-item veto authority by requiring that each item of 

appropriation in any appropriation bill be enrolled as a separate bill. This 

procedure would permit the President to veto any of these separate bills and, 

therefore, give him the power effectively to veto individual items of appropriation. We commented on a similar proposal pending before Congress last fall 

that was never adopted. At that time, we set forth a number of general objections to the proposal as well as several specific comments concerning the 

particular language of that draft. The new bill has been revised to answer most 

of our technical objections, but it is still subject to the general concerns that we 

noted previously.

The first major concern we noted with respect to this type of proposal is that 

its constitutionality is a matter of substantial question. Although we have not 

had the time to develop a detailed constitutional analysis of this issue, we have 

set forth below the basic outlines of the constitutional question and the arguments that might be developed for and against the constitutionality of the 

proposal. The most we can say is that it is a close question, the outcome of 

which cannot be predicted with any reasonable degree of certainty.

The constitutional issue arises from the traditional construction of the provisions in the Constitution governing the veto power of the President. Article I, 

§ 7, cl. 2, states in pertinent part:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented 

to the President of the United States; if he approve he shall sign 

it, but if not he shall return it, with his Objections to that House 

in which it shall have originated, who shall enter the Objections 

at large on their Journal and proceed to reconsider it.

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The veto clause seems to give the President only two options: he may either 

sign the bill or return it with his objections. Thus, on its face, the language of 

the Constitution does not seem to permit the President to veto individual parts 

of a bill.

This conclusion is confirmed by the actual practice of Presidents under the 

veto clause. No President has ever attempted to exercise an item veto. To the 

contrary, many Presidents have expressly considered the question and concluded that the President is without item veto power. In 1793, George Washington stated that he had signed many bills with which his judgment was at 

variance, but felt compelled to do so because “from the nature of the Constitution, I must approve all the parts of a Bill, or reject it in toto.” 33 Writings of

George Washington 96 (1940). President Grant, while urging the adoption of a 

constitutional amendment to authorize an item veto, recognized the absence of 

such a power under the Constitution. See 7 J. Richardson, Messages and

Papers of the President 242 (1898). William Howard Taft stated simply that 

the President “has no power to veto parts of the bill and allow the rest to 

become a law. He must accept it or reject it.” W. Taft, Chief Magistrate 14 

(1916). This Department has consistently taken a similar position with respect 

to the meaning of the veto clause.

The bill attempts to avoid this constitutional obstacle to the line-item veto by 

requiring each item of appropriation contained in a single bill passed by both 

Houses of Congress to be enrolled as a separate bill. The President would then 

be able to veto any of these individual bills. The argument in favor of the 

constitutionality of this proposal begins with the proposition that the definition 

of the term “bill” is not fixed by the Constitution, but rather is subject to 

legislative definition by Congress. Congress has the authority, under its own 

rules, to prescribe what may and may not be included in particular types of 

bills. Similarly, Congress should be able to define that which constitutes a 

separate bill to be enrolled and presented to the President. This argument could 

certainly be developed further, and may ultimately prove to be persuasive.

Perhaps the best way to characterize this legislation from a constitutional 

perspective would be to state that Congress would take a single vote on a 

package of bills constituting the total appropriation.1 The single vote would 

then simply be a convenient method for the adoption of multiple bills. At 

present, however, S. 43 does not read this way. Rather, it requires a bill to be 

split into several bills after Congress votes, but before presenting the package 

to the President. As explained in the following paragraphs, this differential 

treatment of a “bill” for congressional passage and presentment to the President 

may be incompatible with the requirements of Article I, § 7, cl. 2, which treats

1 As far as we know, the current practice in Congress is to adopt each bill that is presented to the President 

by a separate vote. After a brief investigation, we have been unable to discover any general congressional 

practice of adopting separate bills together by a single vote. We understand that such a procedure may have 

taken place once, with respect to the adoption by the House of energy legislation in 1978, but we know of no 

other instances in which different bills were adopted by a single vote In the limited time available, our 

research has failed to disclose any reported case involving the question whether C ongress may constitutionally take a single vote on a package of several bills and thereafter present the bills separately to the President.

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a bill the same with respect to congressional and Presidential action. We would 

recommend at the very least that the proposal be amended to embody the 

concept of a single vote on a series of bills.

Even if the bill is redrafted, however, we believe that there are very persuasive arguments that could be made against the constitutionality of the proposal. 

To the extent that we have been able to identify any policy underlying the 

“take-it-or-leave-it” principle of the veto clause, it seems to be that under the 

system of checks and balances established by the Constitution, the President 

has the right to approve or reject a piece of legislation, but not to rewrite it or 

change the bargain struck by Congress in adopting a particular bill. The 

fundamental principle established by the Constitution with respect to the 

adoption of legislation is that in order to enact a statute it is necessary (in the 

absence of a congressional override) to have the concurrence of the House, the 

Senate, and the President with respect to the statute as a whole. If the President 

were allowed to veto individual parts of legislation, then the bargain struck by 

Congress in adopting a bill could be altered. Indeed, the bargain might be 

altered so significantly that it would not receive the approval of a majority of 

both Houses. Thus, the veto clause ensures that the final compromise that is 

struck with respect to a particular statute is approved by the President and both 

Houses of Congress.

The proposed bill could be considered to be inconsistent with this constitutional principle because it permits the President to alter the bargain reached by 

Congress without the necessity for reapproval by both Houses. Individual 

items of appropriation would not be voted on separately, but rather would be 

voted on as a complete package. Therefore, it would be unclear whether each 

item of appropriation, or any combination thereof, would receive support of a 

majority of each House outside of the bill in which it was actually contained. 

Because each House would vote only once on the total package, the only 

manifestation of agreement expressed by each House would be an agreement 

with respect to the entire package. If the package is subsequently broken down 

into separate parts and the President is permitted to eliminate some of those 

parts from the final law, then the statute will not necessarily reflect the consent 

of each House of Congress. Thus, under this theory, the bill simply attempts to 

circumvent the requirements of the veto clause in a manner that is no more 

consistent with the policies of the veto clause than would be a direct legislative 

effort to give the President statutory line-item veto authority.

It is not a satisfactory answer to this constitutional argument to respond that 

Congress would have voluntarily imposed this limitation on itself and that 

Congress would be aware when it adopted an appropriations bill that the 

President would be able to veto individual parts of it. Congress made the same 

argument in the Chadha case with respect to the President’s approval of 

legislative veto statutes, but the Supreme Court expressly stated that it was not 

permissible to alter by legislation the veto provisions of the Constitution. The 

Court stated: “Explicit and unambiguous provisions of the Constitution prescribe and define the respective functions of the Congress and of the Executive

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in the legislative process.. .. These provisions of Art. I are integral parts of the 

constitutional design for the separation of powers.” INS v. Chadha, 462 U.S. 

919, 945—46 (1983). Thus, under this principle, Congress does not have the 

authority to alter the constitutionally prescribed method for the adoption of 

legislation, which requires the concurrence of the House, Senate, and President 

before a bill becomes law.

In addition to our constitutional concern, we have a concern with respect to 

the definition of the term “item.” Both the old and new bills define an item as 

“any numbered section and any unnumbered paragraph” of an appropriations 

bill. The failure of the bill to define the term “item” other than by reference to 

the form in which an appropriations bill is organized could prove to be terribly 

cumbersome and might eventually lead to legislative manipulation and drafting 

techniques designed to subvert the purpose of the item veto legislation. For 

example, this proposal might well lead to the drafting of statutes without 

paragraphs or section numbers in order to prevent division of the bill into 

separate enrolled bills. As we previously noted, however foolish this may 

sound, we do not doubt that enterprising legislators would resort to any lawful 

drafting technique to avoid the Presidential authority created by these statutes. 

In addition, the Congress could dilute the effectiveness of the item veto power 

granted by the proposal by combining, in a single section, appropriations the 

President is known to favor with those to which he is opposed. As a practical 

matter, this type of problem will inhere in any legislation that seeks to require 

separate enrollment of individual appropriations. Nevertheless, we believe that 

an effort should be made to remedy this problem by redrafting the current 

proposal to restrict the definition of the term “item.”

In conclusion, arguments can be made both for and against the constitutionality of S. 43. Given the importance of the line-item veto in the President’s 

program, however, we would urge that strong consideration be given to the 

issue whether the benefits of S. 43 outweigh the substantial constitutional 

issues it raises and the uncertainty that would attach to any legislation enacted 

through the mechanism it creates. We are particularly strong in this recommendation given the ease with which the purpose of S. 43 could be subverted on 

any given appropriations measure. It may also be important to consider whether 

the President might be faulted for not utilizing effectively the power granted by 

this statute, when in fact its effectiveness was being undercut by Congress 

through clever construction of appropriations bills.

R a l p h W . T a r r

Acting Assistant Attorney General

Office of Legal Counsel

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