b'The President\xe2\x80\x99s Veto Power\nA rticle I o f the C onstitution does not v e s t the President w ith the inherent pow er to veto portions o f a\nbill w hile signing the rem ainder o f it into law.\n\nJuly 8, 1988\nM\n\nem orandum\n\nO\n\np in io n fo r t h e\n\nA ttorney G\n\neneral\n\nIn the past few months, several commentators have suggested that Article I of\nthe Constitution vests the President with an inherent item veto power. Accord\xc2\xad\ning to these commentators, this power is supported by the text of the Constitu\xc2\xad\ntion, the experience in the Colonies and the States prior to the adoption of the\nConstitution, and other relevant constitutional materials. In our view, the text of\nArticle I requires that any analysis of this question focus on the meaning of the\nterm \xe2\x80\x9cBill.\xe2\x80\x9d If this term was intended to mean a legislative measure limited to\none item of appropriation or to one subject, then it may be argued that the Pres\xc2\xad\nident properly may consider measures containing more than one such item or sub\xc2\xad\nject as more than one \xe2\x80\x9cBill\xe2\x80\x9d and, therefore, may approve or disapprove of each\nseparately. Under this approach, the President would have the functional equiv\xc2\xad\nalent o f an item veto. Our review, however, of the relevant constitutional mate\xc2\xad\nrials persuades us that there is no constitutional requirement that a \xe2\x80\x9cBill\xe2\x80\x9d must\nbe limited to one subject. The text and structure of Article I weigh heavily against\nany such conclusion. Moreover, historically \xe2\x80\x9cBills\xe2\x80\x9d have been made by Congress\nto include more than one item or subject, and no President has viewed such in\xc2\xad\nstruments as constituting more than one bill for purposes of the veto. Indeed, the\nFramers foresaw the possibility that Congress might employ \xe2\x80\x9cthe practice of tack\xc2\xad\ning foreign matter to money bills,\xe2\x80\x9d but gave no indication that this practice was\ninconsistent with their understanding of the term \xe2\x80\x9cBill.\xe2\x80\x9d Nor, we are constrained\nto conclude, does the recent commentary on this question provide persuasive sup\xc2\xad\nport for an inherent item veto power in the President.\nI. Text and Structure\nArticle I, Section 7, Clause 2 of the Constitution sets forth the constitutional\nprocedure for enacting \xe2\x80\x9cBills\xe2\x80\x9d into law\xe2\x80\x94 passage by both houses of Congress and\napproval by the President subject to override:\nEvery Bill which shall have passed the House of Representa\xc2\xad\ntives and the Senate, shall, before it become a Law, be presented\nto the President of the United States; If he approve he shall sign\n\n128\n\n\x0cit, but if not he shall return it, with his Objections to that House\nin which it shall have originated, who shall enter the Objections\nat large on their Journal, and proceed to reconsider it. If after such\nReconsideration two thirds of that House shall agree to pass the\nBill, it shall be sent, together with the Objections, to the other\nHouse, by which it shall likewise be reconsidered, and if approved\nby two thirds of that House, it shall become a Law. But in all such\nCases the Votes of both Houses shall be determined by Yeas and\nNays, and the names of the Persons voting for and against the Bill\nshall be entered on the Journal o f each House respectively.\nU.S. Const, art. I, \xc2\xa7 7, cl. 2.\nAfter debate concerning Clause 2 was completed, James Madison proposed an\namendment to ensure that Congress would not attempt to circumvent the pre\xc2\xad\nsentment requirement by passing legislation in forms other than bills. Thus, the\nall-inclusive language of Clause 3:\nEvery Order, Resolution, or Vote to Which the Concurrence of\nthe Senate and House o f Representatives may be necessary (ex\xc2\xad\ncept on a question of Adjournment) shall be presented to the Pres\xc2\xad\nident of the United States; and before the Same shall take Effect,\nshall be approved by him, or being disapproved by him, shall be\nrepassed by two thirds of the Senate and House of Representa\xc2\xad\ntives, according to the Rules and Limitations prescribed in the\nCase of a Bill.\nU.S. Const, art. I, \xc2\xa7 7, cl. 3.\nArticle I, Section 7 thus sets forth a straightforward procedure for enacting leg\xc2\xad\nislation, with well-defined roles for each of the political branches. After both houses\nof Congress have passed a bill or any other instrument intended to become law,\nCongress must present it to the President. The President then has two, but only two,\noptions with respect to the instrument presented: to \xe2\x80\x9capprove. . . it\xe2\x80\x9d or \xe2\x80\x9cnot.\xe2\x80\x9d\nThis scheme seems clearly to envision that Congress plays an active role in\nlawmaking, while the President\xe2\x80\x99s role, although quite formidable, is essentially\npassive and receptive at the veto stage. To use a literary analogy, Congress acts\nas the author, the President as the publisher: absent an extraordinary consensus\nin Congress, the President retains the ultimate authority to decide whether to\n\xe2\x80\x9cpublish\xe2\x80\x9d the law. The question presented by the item veto is whether Article I\ncan be understood to give the President a more active and powerful role in that\nprocess, i.e., that o f an editor who may delete various parts of the instrument pre\xc2\xad\nsented without the approval o f the author. Is the President limited to approving\nor disapproving the entire instrument presented to him, or may he pick and choose\namong various provisions of the instrument, signing some into law and return\xc2\xad\ning the rest to Congress?\nWe can discern nothing in the text or structure of the Constitution suggesting\nthat the President possesses such enhanced authority. With respect to enrolled\n\n129\n\n\x0cbills or any other completed legislative instrument, the Constitution authorizes\nthe President only to \xe2\x80\x9capprove . . . it" or \xe2\x80\x9cnot.\xe2\x80\x9d (emphasis added). The Constitu\xc2\xad\ntion does not suggest that the President may approve \xe2\x80\x9cparts of it\xe2\x80\x9d or indicate any\npresidential prerogative to delete or alter or revise the bill presented. Nor does\nthe text contain any precise definition of the term \xe2\x80\x9cBill\xe2\x80\x9d or place any restriction\non the form of legislative instrument Congress may present to the President for\nhis approval. Specifically, there is no suggestion in the Constitution that bills or\nother forms of congressional votes cannot contain unrelated matters in a single\ninstrument. The absence of such provisions is particularly telling in this context\nsince the veto clauses of the Constitution are the lengthiest, and among the most\nspecific, provisions in the document.\nMoreover, the genesis and language of Article I, Section 7, Clause 3 further\nreinforce the conclusion that the President does not possess item veto authority.\nAs the debates make clear, the Framers required that \xe2\x80\x9cEvery Order, Resolution\nor Vote\xe2\x80\x9d be presented to, the President on the same terms as bills, to prevent Con\xc2\xad\ngress from circumventing the veto powers established in Clause 2 by enacting\nlegislation in forms other than bills.1 In particular, by requiring in Clause 3 the\npresentment to the President of \xe2\x80\x9cevery vote to which the concurrence of the Sen\xc2\xad\nate and House of Representatives may be necessary,\xe2\x80\x9d the Framers appear to have\nbeen referring to any measure, regardless of what unrelated provisions it com\xc2\xad\nbines, on which both houses o f Congress have voted their approval. If so, Con\xc2\xad\ngress could avoid any limitations on the contents of \xe2\x80\x9cbills\xe2\x80\x9d by simply legislating\nin the form of \xe2\x80\x9cvotes.\xe2\x80\x9d Clause 3 thus provides particularized evidence that the\nFramers were well aware that Congress might seek to evade the President\xe2\x80\x99s veto\nauthority through various machinations. Indeed, as we show below, in the de\xc2\xad\nbates during the Constitutional Convention, the Framers expressly contemplated\nthat a bill might contain unrelated items and provisions. Significantly, therefore,\nthe safeguard found in Clause 3 was neither a prohibition against aggregating un\xc2\xad\nrelated items in a single bill nor a grant of item veto authority but rather an ex\xc2\xad\npress requirement that all legislative instruments be subject to the veto. Accord\xc2\xad\ningly, Clause 3 weighs against rather than supports reading into Article I an\nimplicit prohibition against legislation that does not comport with the ideal of a\nsingle item addressing a single subject.\n1\nIt is fair to conclude that during most o f the consideration o f the veto power, the Convention assumed that bills\nw ould be the exclusive means o f passing law s since the veto provision under discussion referred only to \xe2\x80\x9cBills.\xe2\x80\x9d\nOn August 15, 1787, however, after all other debate concerning the veto pow er had been concluded, M adison \xe2\x80\x9cpro\xc2\xad\nposed that [\xe2\x80\x98Jor resolve\xe2\x80\x99 should be added after \xe2\x80\x98bill\xe2\x80\x99 in the beginning of [the veto clause] with an exception as to\nvotes o f adjournment &c.\xe2\x80\x9d James Madison, N otes o f D ebates in the Federal Convention o f 1787 at 465 (1984)\n(\xe2\x80\x9cM adison\xe2\x80\x99s N otes\xe2\x80\x9d). M adison\xe2\x80\x99s argument in favor o f the proposal was \xe2\x80\x9cthat if the negative o f the President was\nconfined to bills: it would be evaded by acts under the form and name o f Resolutions, votes &c.\xe2\x80\x9d Id Madison re\xc2\xad\nports that \xe2\x80\x9cafter a short and rather confused conversation on the subject,\xe2\x80\x9d the Convention rejected his proposal. Id.\nU pon reconvening the next day, the Convention took up a motion by Edmund Randolph to reconsider Madi\xc2\xad\nso n \xe2\x80\x99s suggestion, which Randolph had since \xe2\x80\x9cthrown into a new form \xe2\x80\x9d Id. at 466. Randolph\xe2\x80\x99s proposal was sub\xc2\xad\nstantially identical to what is now Article I, Section 7, Clause 3, thus subjecting to the President\xe2\x80\x99s veto power not\nonly \xe2\x80\x9cEvery Bill,\xe2\x80\x9d but also \xe2\x80\x9cEvery order resolution or vote, to which the concurrence o f the Senate & House of\nR ep \xe2\x80\x99s may be necessary.\xe2\x80\x9d Id. Although Roger Sherman \xe2\x80\x9cthought it unnecessary,\xe2\x80\x9d Randolph\'s proposal was over\xc2\xad\nw helm ingly approved by the Convention w ithout further debate Id\n\n130\n\n\x0cNonetheless, Mr. Steven Glazier relies exclusively on Clause 3 in arguing in\na recent article that the Constitution \xe2\x80\x9cgrants the line item veto to the President.\xe2\x80\x9d\nStephen Glazier, Reagan Already Has Line-Item Veto, Wall St. J., Dec. 4,1987,\nat 14. Mr. Glazier begins his analysis by correctly noting that the Framers added\nClause 3 to guard against the entirely foreseeable prospect that Congress would\nattempt to circumvent the President\xe2\x80\x99s veto authority by simple semantic expedi\xc2\xad\nent of denominating bills as orders, resolutions, or votes. From this unassailable\npremise, however, Mr. Glazier leaps to the conclusion that the Constitution pro\xc2\xad\nhibits the aggregation of numerous items of appropriation in a single bill. But\nClause 3 merely requires that any measure, however denominated, be presented\nto the President before it can become law; it says nothing about what may or may\nnot be contained in the measure. In other words, a requirement of presentment of\nall legislative measures simply does not imply, let alone compel, any sort of lim\xc2\xad\nitation concerning the content of the measures presented.\nMore generally, the absence of a constitutionally prescribed limitation on the\nform of legislation subject to presidential disapproval is fully consistent with the\npowerful role that the Framers envisioned for the President in the lawmaking\nprocess and with their general approach to separation of powers questions. The\ndebate in the Convention concerning the nature of the President\xe2\x80\x99s veto\xe2\x80\x94 whether\nit would be absolute or qualified, and if qualified, whether an override would re\xc2\xad\nquire two-thirds or three-fourths vote in both houses\xe2\x80\x94is instructive.\nThe debate over giving the President an absolute veto\xe2\x80\x94 like the King of Eng\xc2\xad\nland\xe2\x80\x94 was essentially a debate over whether to place the President on precisely\nthe same footing in the lawmaking process as the other two participants. For ex\xc2\xad\nample, the House has an absolute veto over measures originated in the Senate\xe2\x80\x94\nno bill goes beyond the House until it is satisfied. If it is not satisfied with a mea\xc2\xad\nsure, it can in effect send it back to the Senate with its recommendations (in the\nform of amendments). In similar fashion, the Senate has an absolute veto over\nthe House; if it adds anything to or deletes anything from a bill originated in the\nHouse, it must send the amended measure back to the House for its concurrence\nin the change before the measure can go to the President. An absolute veto in the\nPresident would have placed him on precisely the same footing as House and\nSenate, able to block enactment of any law until satisfied with it.\nAlthough the Framers gave the President and the Congress many of the same\ntools,2 the Framers refrained from giving the President a full one-third partner\xc2\xad\n\n2\nFor example, if Congress presents a bill to the President containing unrelated matters, the President is faced\nwith the same choice as is either house when presented with a bill containing unrelated matters: accept, reject, or\npropose amendments to the bill. The President may accept a bill by signing it, or by failing to return it to Congress\nwithin ten days U.S Const, art. I, \xc2\xa7 7, cl. 2. Conversely, the President may reject a bill (subject to override) by re\xc2\xad\nturning it with his objections to the house in which it originated, o r by failing to sign it when Congress prevents its\nreturn by its adjournment Id. Finally, the President may propose amendments to a bill by rejecting it and includ\xc2\xad\ning proposed amendments in his veto message to Congress. In addition, like both houses of Congress, the Presi\xc2\xad\ndent has the power to \xe2\x80\x9crecommend to [Congress\xe2\x80\x99] Consideration such Measures as he shall judge necessary and\nexpedient \xe2\x80\x9d U.S Const art II, \xc2\xa7 3.\n\n131\n\n\x0cship in the lawmaking process, qualifying his veto by a two-thirds override in\nboth houses. Thus, while the Founders intended the President to have a power\xc2\xad\nful role in the lawmaking process, they did not intend his role to be as powerful\nas the House and Senate. But an item veto, and especially a line item veto, would\nplace the President in a much more powerful position than either house of Con\xc2\xad\ngress, for it would enable him to delete portions of a measure and sign the re\xc2\xad\nm ainder into law; he would not have to send the entire measure with his recom\xc2\xad\nmended deletions back to Congress for its reconsideration before any part of it\ncould become law.\nIs it possible that the Founders, while debating the nature of the Presidential\nveto, would refrain from giving him an absolute veto, and yet simply assume that\nhe would be able to veto portions of a measure and sign the remainder into law?\nIt seems inconceivable that such a feature of the President\xe2\x80\x99s veto power would\nhave gone unremarked at the Constitutional Convention.\nMore important for present purposes, the tunneling safeguard contained in\nClause 3, in conjunction with the veto power itself, provides a potent, albeit bur\xc2\xad\ndensome, defense against any procedural manipulations employed by Congress\nto evade or dilute the presidential veto. If the President is presented with leg\xc2\xad\nislative instruments o f unreasonable form, scope, or length, he can do what ei\xc2\xad\nther house can do when the other house attempts to coerce its acquiescence\nthrough the attachment of unrelated riders\xe2\x80\x94 accept, reject, or propose amend\xc2\xad\nments to, the entire measure.\nTo be sure, reliance on the veto itself, rather than a precise definition of a term\n\xe2\x80\x9cBill,\xe2\x80\x9d renders permissible a practice\xe2\x80\x94 tacking of unrelated riders\xe2\x80\x94 that has been\nsubject to much congressional abuse, particularly in recent years. But, by grant\xc2\xad\ning each party in the lawmaking process a \xe2\x80\x9cveto\xe2\x80\x9d (subject to the override in the\ncase of the President) over the proposals o f the others, and the power to propose\namendments to such proposals, the Framers believed that each party in the law\xc2\xad\nmaking process would have an adequate check on the other and be capable of de\xc2\xad\nfending its role. Alexander Hamilton made this clear in The Federalist:\nIn the case for which it is chiefly designed, that of an immediate\nattack upon the constitutional rights of the executive, or in a case\nin which the public good was evidently and palpably sacrificed,\na man of tolerable firmness would avail himself of his constitu\xc2\xad\ntional means of defense, and would listen to the admonitions of\nduty and responsibility. In the former supposition, his fortitude\nwould be stimulated by his immediate interest in the power of his\noffice; in the latter, by the probability of the sanction of his con\xc2\xad\nstituents who, though they would naturally incline to the legisla\xc2\xad\ntive body in a doubtful case, would hardly suffer their partiality\nto delude them in a very plain case. I speak now with an eye to a\nmagistrate possessing only a common share of firmness. There\nare men who, under any circumstances, will have the courage to\ndo their duty at every hazard.\n\n132\n\n\x0cThe Federalist No. 73, at 445 (Alexander Hamilton) (Clinton Rossitered., 1961).\nIn short, the veto acts as its own best defense against congressional efforts to\ndilute the President\xe2\x80\x99s approval authority.\nIt should be noted that the decision to subject all legislative forms to the ex\xc2\xad\nternal check of a presidential veto, rather than to direct governance of internal\nlegislative processes, is but one of many examples of the means by which the\nFramers sought to prevent all aggrandizement of power by any of the three\nbranches: a system of checks and balances. The purpose\xe2\x80\x94 and genius\xe2\x80\x94 of a tri\xc2\xad\npartite system of government with interdependent powers is that attempts by one\nbranch to invade another\xe2\x80\x99s sphere are to be dealt with through the exercise of\ncountervailing power by the branch whose prerogatives are being invaded, rather\nthan through explicit procedural rules governing the internal operations of each\nbranch. As a general premise, then, the Framers relied on the structural solution\nof competing institutional interests to ensure the integrity of governmental oper\xc2\xad\nations, and eschewed detailed rules directed towards the activities within each\nbranch. The manifestation of this general trend in the context of congressional\nprocesses is Article I, Section 5, Clause 2, which provides that \xe2\x80\x9c[e]ach House\nmay determine the Rules of its proceedings.\xe2\x80\x9d The Framers\xe2\x80\x99 reluctance in this re\xc2\xad\ngard was particularly acute with respect to internal rules not susceptible of pre\xc2\xad\ncise definition, for these would inevitably lead to time-consuming and divisive\npolitical disputes over whether a procedural norm has been followed. For exam\xc2\xad\nple, as we discuss more fully below, Madison strenuously opposed the original\nversions of Article I, Section 7, Clause 1 because they contained \xe2\x80\x9cambiguous\xe2\x80\x9d\nterms that would inevitably lead to futile political disputes over meaning. More\xc2\xad\nover, such procedural disputes might ultimately be brought to the judiciary for\nresolution, a forum the Framers clearly viewed as ill-suited to resolve disputes\nbetween the political branches.\nAny definitional limitations on bills would, of course, constitute precisely the\nkind of nebulous internal guideline that the Framers generally sought to avoid in\npreference to granting the President an institutional check such as the counter\xc2\xad\nbalancing power of \xe2\x80\x9cveto.\xe2\x80\x9d Accordingly, the incongruity between such an inter\xc2\xad\nnal safeguard and the Framers\xe2\x80\x99 general approach to the separation of powers casts\neven further doubt on the implicit existence of any such constitutional limitation.\nMoreover, while the protection contained in Clause 3 is consistent with the\nsubstantial symmetry of powers among the parties to the lawmaking process, re\xc2\xad\nstricting the form of a permissible \xe2\x80\x9cBill\xe2\x80\x9d is not. Clause 3 ensures that nothing be\xc2\xad\ncome law, regardless of the label affixed, unless presented to the President for\nhis approval. An item veto or a restriction on the type of \xe2\x80\x9cBill\xe2\x80\x9d presented, how\xc2\xad\never, serves a distinct and more ambitious purpose. Rather than ensuring that all\nlegislation is presented to the President, it directly intrudes into the legislative\nprocess by fixing the proper form that presented bills must take. Accordingly,\nany such restriction would be different in degree and in kind from that contained\nin Clause 3.\nIn sum, the text and structure of Article I, the intended roles of the House,\nthe Senate, and the President in the lawmaking process, Hamilton\xe2\x80\x99s conclusion\n\n133\n\n\x0cthat the veto power is its own best defense, and the inconsistency between any\nprecise definition of \xe2\x80\x9cBill\xe2\x80\x9d and the Framers\xe2\x80\x99 general attempt to provide struc\xc2\xad\ntural safeguards against encroachments establish that the combination of unre\xc2\xad\nlated matters in a single bill, although objectionable as a policy matter, neither\ntransgresses constitutional norms nor affords a basis for exercising an item veto.\nThe only conceivable basis for making a plausible contrary argument would be\nthat longstanding and pervasive historical practice at the time of the American\nFounding clearly established that all legislation could encompass only one sub\xc2\xad\nject, and, consequently, the Framers must have intended that only such instru\xc2\xad\nments could be presented to the President for his approval. Moreover, even if\nit could be shown that the Constitution places severe restrictions on the per\xc2\xad\nmissible contents of a \xe2\x80\x9cBill,\xe2\x80\x9d that showing would not establish item veto au\xc2\xad\nthority in the President. To the contrary, such a showing would suggest that a\nbill containing unrelated provisions would be void ab initio, and that the Pres\xc2\xad\nident would have no constitutional power to approve or disapprove such a bill\nin whole or in part. In any event, a review of the historical materials reveals\nthat no such compelling evidence exists.\nII. Historical Evidence\nAs is clear from the foregoing discussion, the veto clauses of the Constitution\ndo not expressly define the term \xe2\x80\x9cBill.\xe2\x80\x9d Rather, the original understanding of that\nterm must be determined by examination o f historical materials.\nIn analyzing those materials, it is first helpful to distinguish three conceptu\xc2\xad\nally distinct congressional practices. First, Congress aggregates numerous items\nof appropriation in a single appropriations bill, such as the so-called \xe2\x80\x9cContinu\xc2\xad\ning Resolutions.\xe2\x80\x9d Second, Congress attaches substantive provisions as \xe2\x80\x9criders\xe2\x80\x9d\nto appropriations bills. Third, Congress combines unrelated substantive provi\xc2\xad\nsions, apart from appropriations, in a single bill. The question is whether a bill,\nas that term is used in the Constitution, may be constituted in these ways.\nThe historical evidence suggests that a bill may be so constituted, and that the\nFramers did not understand the Constitution to require an itemized presentment\no f legislation to the President or to establish some type of \xe2\x80\x9cgermaneness\xe2\x80\x9d crite\xc2\xad\nrion for bills. These practices were known to the Framers, and have historical an\xc2\xad\ntecedents in the colonial and British experiences, and there is no persuasive ev\xc2\xad\nidence that the Framers intended to prohibit them. And, while failure to limit the\ncontents o f a bill may restrict the efficacy of the President\xe2\x80\x99s veto power, we are\naware of no persuasive historical evidence that the Constitution authorizes the\nPresident to exercise an item veto.\nA. Constitutional Convention\n\nThe delegates to the Constitutional Convention of 1787 did not consider the\nmeaning of the term \xe2\x80\x9cBill\xe2\x80\x9d as an abstract or universal construct. Rather, in the\ncontext of considering the power of the House of Representatives to originate\n\n134\n\n\x0cmoney bills, and the power of the Senate to amend money bills, the Framers\xe2\x80\x99 dis\xc2\xad\ncussions shed some light on what was meant to be conveyed by the term.\nSpecifically, we discuss the Convention\xe2\x80\x99s consideration and adoption of Arti\xc2\xad\ncle I, Section 7, Clause 1, giving to the House of Representatives the exclusive\nright to originate bills for raising revenue, but permitting amendments of such\nbills in the Senate. These discussions do not reveal that the Framers understood\nthe term \xe2\x80\x9cBill\xe2\x80\x9d to preclude the practice of including unrelated provisions in a sin\xc2\xad\ngle bill. Moreover, their discussion of that practice, and failure to object to it gen\xc2\xad\nerally, suggest that the Framers left each house of Congress free to determine the\nform and contents of legislation.\n1. Adoption o f Article /, Section 7, Clause 1\xe2\x80\x94 A recurring topic of debate at\nthe Convention was whether the House of Representatives should be given the\nexclusive right to originate money bills, and if so, whether the Senate should be\npermitted to propose amendments to such bills. In the British system, the House\nof Commons possessed the exclusive privilege of originating money bills, and\nthe House of Lords was denied even the power to amend such bills. Some dele\xc2\xad\ngates to the Convention urged adoption of a similar rule, arguing that the long\nexperience of the British should not be lightly discarded. See Madison\xe2\x80\x99s Notes\nat 113 (Remarks of Mr. Gerry); id. at 447 (Remarks of Mr. Dickenson). Others\nthought the British analogy inapposite in light of the Senate\xe2\x80\x99s distinct composi\xc2\xad\ntion and character. See id. at 113 (Remarks of Messrs. Butler and Madison); id.\nat 249 (Remarks of Mr. Wilson).\nMost important for present purposes, however, were discussions relating to the\nobjection that adoption of the British model would lead the House to tack unre\xc2\xad\nlated provisions to money bills. See id. at 113 (Remarks of Mr. Butler) (\xe2\x80\x9c[I]t will\nlead the [House of Representatives] into the practice of tacking other clauses to\nmoney bills . . . .\xe2\x80\x9d); id. at 443 (Remarks of Col. Mason) (\xe2\x80\x9c[I]t would introduce\ninto the House of Rep.s the practice of tacking foreign matter to money bills\n.. . . \xe2\x80\x9d); id. at 444 (Remarks of Mr. Wilson). Opponents of the British model ar\xc2\xad\ngued that by denying the Senate the power to amend money bills originating in\nthe House\xe2\x80\x94combined with the tacking of non-money provisions to such bills by\nthe House, thereby depriving the Senate of its distinct power to propose amend\xc2\xad\nments to the non-money provisions\xe2\x80\x94 the proposal would destroy the \xe2\x80\x9cdelibera\xc2\xad\ntive liberty of the Senate,\xe2\x80\x9d requiring it to vote up or down on the combination as\noriginated. See id. at 444 (Remarks of Mr. Wilson) (\xe2\x80\x9cThe House of Rep.s will in\xc2\xad\nsert other things in money bills, and by making them conditions of each other,\ndestroy the deliberative liberty of the Senate.\xe2\x80\x9d); 2 The Records o f the Federal\nConvention o f 1787 at 210-11 (Max Farrand ed., 1987) (\xe2\x80\x9cM. Farrand\xe2\x80\x9d) (Notes\nof James McHenry) (\xe2\x80\x9c[Ljodging in the house of representatives the sole right of\nraising and appropriating money, upon which the Senate had only a negative,\ngave to that branch an inordinate power in the constitution, which must end in its\ndestruction.\xe2\x80\x9d). The Convention sought to obviate this objection by permitting the\nSenate to propose amendments to money bills as in the case of other bills. Al\xc2\xad\nthough opponents of the proposal conceded that this relieved some of the diffi\xc2\xad\n\n135\n\n\x0cculties, they insisted that others remained. In the end, however, the Convention\nadopted a similar proposal.\nOriginally, it was proposed that \xe2\x80\x9call bills for raising or appropriating money\n. .. shall originate in the 1st branch of the Legislature, and shall not be altered or\namended by the 2d branch.\xe2\x80\x9d M adison\xe2\x80\x99s Notes at 237. Building on the earlier ar\xc2\xad\ngument that this provision would lead to tacking, James Madison, among others,\nobserved that it would be \xe2\x80\x9ca source of injurious altercations between the two\nHouses.\xe2\x80\x9d Id. at 414 (Remarks o f Mr. Madison); see also id. at 238 (Remarks of\nMr. Madison) (referring to the provision as \xe2\x80\x9ca source of frequent & obstinate al\xc2\xad\ntercations\xe2\x80\x9d); id. at 251 (Remarks of Gov. Morris) (\xe2\x80\x9cIt will be a dangerous source\no f disputes between the two Houses.\xe2\x80\x9d); id. at 444 (Remarks of Mr. Wilson) (\xe2\x80\x9c[A]n\ninsuperable - objection agst. the proposed restriction of money bills to the H. of\nRep.s [is] that it would be source of perpetual contentions where there was no\nmediator to decide them . . . . \xe2\x80\x9d); id. at 449 (Remarks of Mr. Rutledge) (\xe2\x80\x9cThe ex\xc2\xad\nperiment in S. Carolina, where the Senate cannot originate or amend money bills,\nhas shewn that it answers no good purpose; and produces the very bad one of\ncontinually dividing & heating the two houses.\xe2\x80\x9d).\n\xe2\x80\x9c[I]n order to obviate the inconveniences urged agst. a restriction of the Sen\xc2\xad\nate to a simple affirmative or negative,\xe2\x80\x9d Edmund Randolph proposed that the\nclause be changed to permit the Senate to amend money bills except as to \xe2\x80\x9cin\xc2\xad\ncrease or diminish the sum.\xe2\x80\x9d Id. at 436-37. Col. Mason argued in favor of this\nchange, stating: \xe2\x80\x9cBy authorizing amendments in the Senate it got rid of the ob\xc2\xad\njections that the Senate could not correct errors of any sort, & that it would in\xc2\xad\ntroduce into the House of Rep.s the practice of tacking foreign matter to money\nbills.\xe2\x80\x9d Id. at 443. James Madison, a consistent opponent of the proposals to re\xc2\xad\nstrict the Senate in favor of the House, admitted that \xe2\x80\x9c [t]he proposed substitute\n. . . in some respects lessened the objections agst. the section,\xe2\x80\x9d but also thought\nthat \xe2\x80\x9c [i]t laid a foundation for new difficulties and disputes between the two\nhouses.\xe2\x80\x9d Id. at 445 (Remarks o f Mr. Madison). Of particular relevance for our\npurposes, Madison made the following observation:\nThe words amend or a lte r , form an equal source of doubt & al\xc2\xad\ntercation. When an obnoxious paragraph shall be sent down from\nthe Senate to the House of Reps\xe2\x80\x94 it will be called an origination\nunder the name of an amendment. The Senate may actually couch\nextraneous matter under that name. In these cases, the question\nwill turn on the degree of connection between the matter & ob\xc2\xad\nject of the bill and the alteration or amendment offered to it. Can\nthere be a more fruitful source of dispute, or a kind of dispute more\ndifficult to be settled? His apprehensions on this point were not\nconjectural. Disputes had actually flowed from this source in\nVirga. where the Senate can originate no bill.\nId. at 446. Randolph did not respond to this new objection. Rather, he reiterated\n\nhis support for the proposal, stating that \xe2\x80\x9c[h]is principal o b ject. . . was to pre\xc2\xad\n\n136\n\n\x0cvent popular objections against the [constitutional] plan,\' and to secure its adop\xc2\xad\ntion.\xe2\x80\x9d Id. at 448. After some additional discussion, the Convention rejected the\nproposal to vest in the House the exclusive right to originate money biUs, even\nthough it would have permitted some amendment in the Senate. Id. at 449-50.\nAlthough the Convention finally had acted to reject the proposal, some mem\xc2\xad\nbers continued to feel strongly that some form of it was necessary, given that the\nStates were to be equally represented in the Senate. For example, in discussing\na proposal making members of Congress ineligible to hold other offices, Hugh\nWilliamson referred \xe2\x80\x9cto the question concerning \xe2\x80\x98money bills.\xe2\x80\x99\xe2\x80\x9d\nThat clause he said was dead. Its ghost he was afraid would\nnotwithstanding haunt us. It had been a matter of conscience with\nhim, to insist upon it as long as there was hope of retaining it. He\nhad swallowed the vote of rejection, with reluctance. He could not\ndigest it.\nId. at 453-54.\n\nImmediately upon reconvening the next day, the Convention took up a motion\nby Caleb Strong to adopt a new proposal relating to money bills. Mr. Strong sug\xc2\xad\ngested that the House be given the exclusive right to originate money bills, but\nthat the Senate be permitted to \xe2\x80\x9cpropose or concur with amendments as in other\ncases,\xe2\x80\x9d thus permitting the greatest role yet for the Senate. Id. at 460. Col. Ma\xc2\xad\nson and Mr. Ghorum strongly supported the proposal and urged its adoption. Gouvemeur Morris, however, \xe2\x80\x9copposed it as unnecessary and inconvenient.\xe2\x80\x9d Id. Mr.\nWilliamson then gave the last significant speech to the Convention on the mer\xc2\xad\nits of adopting a provision on money bills, which appears to have been instru\xc2\xad\nmental in the ultimate decision to adopt such a provision:\n[S]ome think this restriction on the Senate essential to liberty, oth\xc2\xad\ners think it of no importance. Why should not the former be in\xc2\xad\ndulged. [H]e was for an efficient and stable Govt, but many would\nnot strengthen the Senate if not restricted in the case of money\nbills. The friends of the Senate would therefore lose more than\nthey would gain by refusing to gratify the other side. He moved\nto postpone the subject till the powers of the Senate should be gone\nover.\nId. at 460-61. Mr. Williamson\xe2\x80\x99s motion to postpone \xe2\x80\x9cpassed in the affirmative.\xe2\x80\x9d\nId. at 461.\n\nThree weeks later on September 5, 1787, the Committee on Unresolved M at\xc2\xad\nters reported the following proposal:\nAll bills for raising revenue shall originate in the House of Rep\xc2\xad\nresentatives, and shall be subject to alterations and amendments\nby the Senate: no money shall be drawn from the Treasury, but in\nconsequence o f appropriations made by law.\n\n137\n\n\x0cId. at 580. This proposal represented a significant change. The proposal gave the\n\nSenate the right to propose amendments of any sort, and this provision referred\nonly to \xe2\x80\x9cbills for raising revenue\xe2\x80\x9d rather than \xe2\x80\x9cbills for raising or appropriating\nm oney,\xe2\x80\x9d3 in defining the extent of the House\xe2\x80\x99s exclusive right of origination.\nGouvemeur Morris moved to postpone consideration of the proposal, stating: \xe2\x80\x9cIt\nhad been agreed to in the Committee on the ground of compromise, and he should\nfeel himself at liberty to dissent to it, if on the whole he should not be satisfied\nwith certain other parts to be settled.\xe2\x80\x9d Id. at 581 (footnote omitted). \xe2\x80\x9cMr. Sher\xc2\xad\nman was for giving immediate ease to those who looked on this clause as of great\nmoment, and for trusting to their concurrence in other proper measures.\xe2\x80\x9d Id. The\nConvention then voted to postpone. Id.\nIn the final days of the Convention, the proposal was again taken up. Without\ndebate, the Convention adopted a motion to substitute \xe2\x80\x9cthe words used in the\nConstitution of Massachusetts\xe2\x80\x9d for those used by the Committee to permit amend\xc2\xad\nments by the Senate. Id. at 607. The proposal was then adopted as amended, by\na vote of nine to two, providing as follows:\nAll bills for raising revenue shall originate in the House of Rep\xc2\xad\nresentatives; but the Senate may propose or concur with amend\xc2\xad\nments as in other bills. No money shall be drawn from the Trea\xc2\xad\nsury but in consequence o f appropriations made by law.\nId. at 606-07,4 James McHenry subsequently described the compromise that led\n\nto the adoption of the clause as follows: \xe2\x80\x9cThe Larger States hoped for an advan\xc2\xad\ntage by confirming this privilege [of originating revenue bills] to that Branch\nwhere their numbers predominated, and it ended in a compromise by which the\nLesser States obtained a power o f amendment in the Senate.\xe2\x80\x9d See 3 M. Farrand\nat 148 (Remarks of James McHenry before the Maryland House of Delegates,\nNov. 29, 1787).\n2. Analysis o f Article I, Section 7, Clause 1 \xe2\x80\x94 Those in favor of inherent item\nveto authority may argue that the history of the adoption of Clause 1 of Article\nI, Section 7 indicates that the Constitution adopts as the meaning of the term\n\xe2\x80\x9cBill\xe2\x80\x9d a legislative proposal limited to one subject. From this premise, as noted\nearlier, it might be argued that the President is entitled to treat any legislative in\xc2\xad\nstrument containing more than one subject as more than one bill.5 The difficulty,\nhowever, is that the Framers gave no indication that they meant to limit the term\n\xe2\x80\x9cBill\xe2\x80\x9d to legislative instruments relating to only one subject. Rather, as previ\xc2\xad\n\n3 Several o f the earlier proposals also would have given the House the exclusive right to originate bills \xe2\x80\x9cfor fix\xc2\xad\ning the salaries o f the officers o f Government.\xe2\x80\x9d See, e.g., M adison\xe2\x80\x99s Notes at 386.\n4 The clause was subsequently altered only by moving the second sentence to Article I, Section 9. Id at 619.\n5 Moreover, as previously discussed, even if the latter understanding had been adopted by the Convention, item\nveto authority would not necessarily follow Rather, it might be concluded that such proposals could not be passed\nor presented to the President, and that even if the President signed such a proposal, it would have no legal force or\neffect.\n\n138\n\n\x0cously discussed, their apprehension concerning the possible content of the bills\noriginating in the House and resulting from amendment in the Senate arose solely\nout of their concern that neither house be in a position to encroach upon the con\xc2\xad\nstitutional prerogatives of the other.\nThat the Constitution does permit bills to contain unrelated provisions is re\xc2\xad\nflected by the objection of some Convention delegates that the House might en\xc2\xad\ngage in \xe2\x80\x9cthe practice of tacking foreign matter to money bills.\xe2\x80\x9d E.g., Madison\xe2\x80\x99s\nNotes at 443 (Remarks of Col. Mason). To be sure, it might be argued that these\nobjections imply that the Framers did not understand the term \xe2\x80\x9cBill\xe2\x80\x9d to permit\nthe tacking of foreign matter. This inference is unwarranted. Rather, these com \xc2\xad\nments reflect an explicit recognition by the Framers that a bill could contain un\xc2\xad\nrelated provisions, for the Framers recognized the practice, yet took no steps to\nprevent the houses from engaging in it. See 3 M. Farrand at 202 (Remarks of\nLuther Martin delivered to the Maryland legislature on November 29,1787) (ob\xc2\xad\njecting to Article I, Section 7, Clause 1 on the ground \xe2\x80\x9c [t]hat it may, and proba\xc2\xad\nbly will, be a future source of dispute and controversy between the two branches,\nwhat are or are not revenue bills, and the more so as they are not defined in the\nconstitution\xe2\x80\x9d).\nMoreover, the Framers\xe2\x80\x99 objection was not to tacking as such. The Convention\ndelegates were agreed that the House and Senate should be given equal author\xc2\xad\nity to originate and amend all bills other than those dealing with money. The ob\xc2\xad\njection to tacking arose only in reaction to the proposal to give the House exclu\xc2\xad\nsive power to originate bills raising and appropriating money. The objection was\nquite specific: the tacking of non-money riders to money bills by the House of\nRepresentatives would enable the House to use its power to originate money bills\nto encroach upon the constitutional prerogative of the Senate to amend non\xc2\xad\nmoney proposals. See 2 M. Farrand at 210-11 (Notes of James McHenry) (ar\xc2\xad\nguing against \xe2\x80\x9clodging in the house of representatives the sole right of raising\nand appropriating money, upon which the Senate had only a negative,\xe2\x80\x9d on the\nground \xe2\x80\x9c[t]hat without equal powers they were not an equal check upon each\nother\xe2\x80\x9d). This view is confirmed by the fact that once Randolph proposed to change\nthe proposal to permit the Senate to amend non-money provisions of bills origi\xc2\xad\nnated in the House, Col. Mason remarked that the change \xe2\x80\x9cgot rid of the objectio n []. . . that it would introduce into the House of Reps, the practice of tacking\nforeign matter to money bills.\xe2\x80\x9d Madison\xe2\x80\x99s Notes at 443. Thus, although either or\nboth houses remained free to combine unrelated non-money provisions, it is not\nsurprising that no one at the Convention objected to, or even raised, that possi\xc2\xad\nbility, since the practice did not threaten to permit one house to enlarge its power\nat the expense of the other. Nor were there references in the debates to the pos\xc2\xad\nsibility that the House might combine two unrelated money provisions in a sin\xc2\xad\ngle bill, because no prerogative of the Senate thereby would have been en\xc2\xad\ncroached. This, in turn, suggests that the Convention would have had no reason\nto object to, let alone consider, the practice of tacking when both houses stood\non equal footing\xe2\x80\x94 namely, when the House tacks unrelated non-money matters\nto non-money bills. Accord Madison\xe2\x80\x99s Notes at 114 (Remarks of Mr. Sherman)\n\n139\n\n\x0c(\xe2\x80\x9cIn Cont. both branches can originate in all cases, and it has been found safe &\nconvenient.\xe2\x80\x9d).6\nThat the Constitution does not adopt a definition o f the term \xe2\x80\x9cBill\xe2\x80\x9d that either\nauthorizes or prohibits unrelated provisions is also consistent with Article I, Sec\xc2\xad\ntion 5, Clause 2, which provides that \xe2\x80\x9c[e]ach House may determine the Rules of\nits Proceedings.\xe2\x80\x9d By this provision, the Constitution appears to leave it to each\nhouse to permit or prohibit tacking under any or all circumstances.\nM adison\xe2\x80\x99s remarks in response to Randolph\xe2\x80\x99s compromise are not to the con\xc2\xad\ntrary. As noted, Madison acknowledged that \xe2\x80\x9c [t]he proposed substitute . . . in\nsome respects lessened the objections agst. the section,\xe2\x80\x9d but stated that \xe2\x80\x9c[t]he\nwords am end or alter, form an equal source o f doubt & altercation.\xe2\x80\x9d Madison\xe2\x80\x99s\nNotes at 445\xe2\x80\x9446. Madison stated that the question whether an amendment is prop\xc2\xad\nerly characterized as an origination \xe2\x80\x9cwill turn on the degree of connection be\xc2\xad\ntween the matter & object of the bill and the alteration or amendment offered to\nit.\xe2\x80\x9d Id. at 446. Proponents of inherent item veto authority might argue that this\nstatement evinces an understanding that only a germane amendment properly\nmay be characterized as an \xe2\x80\x9camendment,\xe2\x80\x9d and therefore that a bill may not be\namended to contain unrelated provisions.\nM adison\xe2\x80\x99s observation does not appear to have been designed to state a con\xc2\xad\nstitutional definition o f \xe2\x80\x9camendment,\xe2\x80\x9d but rather to persuade the Convention that\nany proposal that placed the houses on an unequal footing with respect to money\nbills would lead to disputes and altercations between them. Thus, Madison pre\xc2\xad\ndicted that when the Senate proposed an amendment \xe2\x80\x9cobnoxious\xe2\x80\x9d to the House,\nthe houses would enter into a dispute over whether the Senate had proposed \xe2\x80\x9can\norigination under the name of an amendment.\xe2\x80\x9d Id. at 446. Read in context, it is\nclear that M adison\xe2\x80\x99s statement of the considerations upon which \xe2\x80\x9cthe question\nwill turn\xe2\x80\x9d was not intended as a statement o f a constitutionally required defini\xc2\xad\ntion o f \xe2\x80\x9camendment,\xe2\x80\x9d but rather to demonstrate the inevitability of disputes that\nwould be difficult to resolve. Thus, immediately after making this statement,\nMadison asked rhetorically: \xe2\x80\x9cCan there be a more fruitful source of dispute, or a\nkind o f dispute more difficult to be settled?\xe2\x80\x9d Id. Any other reading would require\none to reach the strange conclusion that Madison was simultaneously proposing\na constitutional test and criticizing it as incapable of being successfully applied.\nThat M adison\xe2\x80\x99s purpose was limited to pointing out the weakness of Ran\xc2\xad\ndolph\xe2\x80\x99s proposal is confirmed by an examination of his entire statement. Madi\xc2\xad\nson begins by pointing out that \xe2\x80\x9c[t]he word revenue was ambiguous,\xe2\x80\x9d and that\n\xe2\x80\x9cno line could be drawn between\xe2\x80\x9d revenue and non-revenue provisions. Id. at\n445\xe2\x80\x9446. Next, Madison made his argument that \xe2\x80\x9c[t]he words amend or alter,\nform an equal source of doubt & altercation.\xe2\x80\x9d Id. at 446. Finally, Madison states\nthat other terms in Randolph\xe2\x80\x99s proposal \xe2\x80\x9cwere liable to the same objections.\xe2\x80\x9d Id.\nAccordingly, M adison\xe2\x80\x99s point was not that non-germane amendments would be\n\n6\nSim ilarly, no delegate suggested that tacked matters were two bills, or that a legislative proposal relating to\nmore than one subject would not be a proper bill.\n\n140\n\n\x0cunconstitutional, but simply that giving the House and Senate unequal power over\nmoney bills would invariably lead to political disputes.\nThus, we believe that the debates in the Convention concerning the adoption\nof Clause 1 are informative primarily because of the absence of discussion con\xc2\xad\ncerning tacking outside the context of the money bill proposal. If the Framers\ntruly believed that a bill could relate to only one subject, then it is remarkable\nthat they did not state this belief even when tacking was discussed. Under these\ncircumstances, rather than indicating a restriction on the contents of a bill, the\nFramers\xe2\x80\x99 discussions concerning the adoption of Clause 1 actually suggest that\na bill may contain unrelated matters.\nThe Framers\xe2\x80\x99 discussion of Clause 1 has obvious relevance for interpreting the\nveto clauses. The Framers used the term \xe2\x80\x9cBill\xe2\x80\x9d in both instances, raising a tex\xc2\xad\ntual presumption that the term was intended to have the same meaning through\xc2\xad\nout. Moreover, there is no evidence suggesting that the Framers had different\nconceptions of the term \xe2\x80\x9cBill\xe2\x80\x9d as used in these clauses. Rather, the fact that the\nrevenue clause immediately precedes the veto provisions in the Constitution, and\nthat all are part of the same section, Article I, Section 7, provide additional and\npersuasive evidence that the Framers did not intend to limit the contents of bills\nto a single subject.\nB. Ratification Debates\n\nAlthough the veto clauses of the Constitution were not widely discussed in the\nstate ratifying conventions, the little discussion that occurred, and the fact that\nno one suggested that the President had item veto authority, indicate that the ratifiers did not understand the Constitution to grant the President item veto au\xc2\xad\nthority.\nMost of the comments were limited to a recitation of the mechanics of the veto.\nFor example, in the Pennsylvania ratifying convention, James Wilson quoted\nfrom the veto clauses and stated that \xe2\x80\x9c[t]he effect of this power, upon this sub\xc2\xad\nject, is merely this: if he disapproves a bill, two thirds of the legislature become\nnecessary to pass it into a law, instead of a bare majority.\xe2\x80\x9d 2 Debates on the A dop\xc2\xad\ntion o f the Federal Constitution 473 (Jonathan Elliot, ed., 1836) (\xe2\x80\x9cElliot\xe2\x80\x99s De\xc2\xad\nbates\xe2\x80\x9d). Wilson\xe2\x80\x99s understanding confirms what is evident on the face o f the Con\xc2\xad\nstitution\xe2\x80\x94 the President has two choices when presented with a bill: to approve\nor disapprove the bill. Of course, this understanding leaves open to discussion\nwhat may constitute a bill for constitutional purposes, but Mr. Wilson did not ad\xc2\xad\ndress this question.\nJames Iredell\xe2\x80\x99s discussion of the veto power in the North Carolina ratifying\nconvention evinces a similar understanding. Responding to criticism that the veto\npower gave the President too great a role in legislation, Iredell stated:\nAfter a bill is passed by both houses, it is to be shown to the Pres\xc2\xad\nident. Within a certain time, he is to return it. If he disapproves of\nit, he is to state his objections in writing; and it depends on Con-\n\n141\n\n\x0cgress afterwards to say whether it shall be a law or not. Now, sir,\nI humbly apprehend that, whether a law passes by a bare major\xc2\xad\nity, or by two thirds, (which are required to concur after he shall\nhave stated objections,) what gives active operation to it is, the\nwill of the senators and representatives. The President has no\np o w er o f legislation. If he does not object, the law passes by a bare\nmajority; and if he objects, it passes by two thirds. His pow er ex\xc2\xad\ntends only to cause it to b e reconsidered, which secures a greater\nprobability of its being good.\n4 Elliot\xe2\x80\x99s Debates at 27 (emphasis added). Iredell\xe2\x80\x99s defense of the veto power in\xc2\xad\ndicates his understanding that the power was limited in nature. The President was\nto have no power to adopt or alter legislation on his own. Rather, his role was\nlimited to initiating reconsideration and requiring greater consensus in Congress\nby withholding his consent, and to proposing alterations by communicating his\nobjections to Congress. Congress might assent to his objections and amend the\nbill, but this would be done by Congress and not be any unilateral action of the\nPresident. Moreover, although Iredell\xe2\x80\x99s comments do not speak to whether there\nare any constitutional limitations on what Congress may include in a single bill,\nhis remarks indicate that he would have found it worthy of comment if he un\xc2\xad\nderstood the Constitution to permit the President to exercise, in effect, an item\nveto by conferring upon him the power to decide what does and does not consti\xc2\xad\ntute a bill.\nC. British Experience\n\nAn examination of the British experience indicates that legislative instruments\ncontaining unrelated provisions were treated as one bill. Appropriations bills reg\xc2\xad\nularly contained multiple items, and there was no objection to such bills. The\npractices of including unrelated substantive provisions in a single legislative in\xc2\xad\nstrument, and attaching substantive riders to money bills, were sometimes en\xc2\xad\ngaged in, but met with objections. On several notable occasions, these objections\nled the Crown and the House o f Lords to refuse their assent to such measures.\nThere was, however, no suggestion by either the Crown or the Lords that these\nmeasures could be treated as m ore than one bill and approved or vetoed sepa\xc2\xad\nrately.\nA review of British supply bills, as they were called, enacted prior to the rev\xc2\xad\nolutionary war indicates that it was not unusual for a single bill to contain nu\xc2\xad\nmerous items of appropriation. For example, a bill enacted in 1765 contained\nthirty-one separate sections and at least as many items of appropriation. See An\nact for granting to his Majesty a certain sum of money out of the sinking fund;\nfor applying certain moneys therein mentioned for the service of the year one\nthousand seven hundred and sixty five; for further appropriating the supplies\ngranted in this session of parliament; for allowing to the receivers general of the\nduties on offices and employments in Scotland a reward for their trouble; and for\n\n142\n\n\x0callowing further time to such persons as have omitted to make and file affidavits\nof the execution of indentures of clerks to attorneys and solicitors, 1765, 5 Geo.\n3, ch. 40. This bill included appropriations \xe2\x80\x9ctowards discharging such unsatis\xc2\xad\nfied claims and demands, for expenses incurred during the late war in G erm an y\xe2\x80\x9d\nid. \xc2\xa7 12, for \xe2\x80\x9cdefending, protecting, and securing, the British Colonies and plan\xc2\xad\ntations in Am erica ,\xe2\x80\x9d id. \xc2\xa7 13, for maintaining \xe2\x80\x9chis Majesty\xe2\x80\x99s navy,\xe2\x80\x9d id. \xc2\xa7 15, \xe2\x80\x9cfor\npaying of pensions to the widows\xe2\x80\x9d of deceased officers and marines, and \xe2\x80\x9cto\xc2\xad\nwards defraying the charge of out-pensioners of Chelsea hospital,\xe2\x80\x9d id. \xc2\xa7 20, \xe2\x80\x9cfor\ndefraying the charges of the civil establishment of his Majesty\xe2\x80\x99s colony of West\nF lo rid a ,. . . and . . . for defraying the expense attending general surveys of his\nMajesty\xe2\x80\x99s dominions in North America ,\xe2\x80\x9d id. \xc2\xa7 22. In addition, we are aware of\nno secondary sources that call this practice into question. Thus, a British bill of\nsupply might properly contain numerous items of appropriation.\nHistorical evidence also suggests that the practice of combining unrelated mat\xc2\xad\nters in a single bill occurred with some frequency, and gave rise to considerable\ncontroversy and debate. According to one commentator:\nA very objectionable course was sometimes adopted by the\nCommons in the reign of Charles II which, if it had not been sub\xc2\xad\nsequently exploded, would have been a blemish in the constitu\xc2\xad\ntion, namely, the practice o f tacking bills o f supply, with an in\xc2\xad\ntention o f thereby compelling the Crown or the Lords to give their\nconsent to a bill which they might otherwise disapprove o f and re\xc2\xad\nject. The practice of tacking indicates that the mode of passing\n\nbills between the two Houses was unsettled in the reign of Charles\nI I . . . . [The practice] survived the revolution, but is now deemed\nunconstitutional.\nAmos, The Constitutional History o f England in the Time o f Charles II, quoted\nin 9 Cong. Rec. 235 (1879) (emphasis added).\nAn authoritative four-volume treatise by John Hatsell on parliamentary prac\xc2\xad\ntice details many of the relevant events.7 Hatsell\xe2\x80\x99s general observations on the\nsubject are as follows:\nIt is much to be wished that every question, which is brought ei\xc2\xad\nther before the House of lords or Commons, should be as simple\nand as little complicated as possible. For this reason, the p ro \xc2\xad\nceeding, that is but too often practised, o f putting together in the\n\n7\nIn the preface lo his Manual on Parliamentary Practice, Thomas Jefferson refers to Hatsell\xe2\x80\x99s work, stating \xe2\x80\x9c I\ncould not doubt the necessity o f quoting the sources o f my information, among which Mr. Hatsel\xe2\x80\x99s [sic] most valu\xc2\xad\nable book is preeminent \xe2\x80\x9d H.R Doc. No. 279, 99th Cong , 2d Sess. 113 (1987).\nAccording to another commentator, \xe2\x80\x9c Hatsell\'s collection of parliamentary precedents is the highest author\xc2\xad\nity in parliamentary law known either in Great Britain or the United States, and the work from which Jefferson\xe2\x80\x99s\nManual, o r hand-book, is chiefly compiled.\xe2\x80\x9d 21 Cong. Globe, 31st Cong., 1st Sess. 794 (1850) (remarks of Sena\xc2\xad\ntor Benton).\n\n143\n\n\x0csame Bill clauses that have no relation to each other, and the sub\xc2\xad\nje c ts o f which are entirely different, ought to be avoided. Even\n\nwhere the propositions are separately not liable to objection in ei\xc2\xad\nther House, the heaping together in one law such a variety of un\xc2\xad\nconnected and discordant subjects, is unparliamentary; and tends\nonly to mislead and confound those who have occasion to consult\nthe Statute Book upon any particular point. But to do this in cases\nwhere it is known that one of the component parts of the Bill will\nbe disagreeable to the Crown, or to the Lords; and that, if it was\nsent up alone, it would not be agreed to\xe2\x80\x94 for this reason, and with\na view to secure the Royal assent, or the concurrence of the Lords,\nto tack it to a Bill of Supply which the exigencies of the State make\nnecessary is a proceeding highly dangerous and unconstitutional.\nIt tends to provoke the other branches of the legislature, in their\nturn, to depart from those rules to which they ought to be restrained\nby the long and established forms of Parliament; and can have no\nother effect than finally to introduce disorder and confusion.\n3 J. Hatsell, P recedents of Proceedings in the House o f Commons 221 -2 2 (1818)\n(emphasis added).\nFor our purposes, it is important that the practice of combining unrelated mat\xc2\xad\nters in a single bill, however objectionable, was widely known. For example, Hat\xc2\xad\nsell quotes a speech on the subject by Lord Chancellor Finch made to both houses\non May 23, 1678, which admonished:\nThe late way of tacking together several independent and inco\xc2\xad\nherent matters in one Bill, seems to alter the whole frame and con\xc2\xad\nstitution of Parliaments, and consequently of the government it\xc2\xad\nself. It takes away the King\xe2\x80\x99s negative voice in a manner, and\nforces him to take all o r none; when sometimes one part of the\nBill may be as dangerous for the kingdom, as the other is neces\xc2\xad\nsary.\n3 J. Hatsell, at 224 n. + . The difficulty reached such proportions that in 1702, the\nHouse of Lords was moved to adopt the following resolution, to be included\namong their standing orders: \xe2\x80\x9cThat the annexing of any clause or clauses to a Bill\no f Aid or Supply, the matter o f which is foreign to, and different from, the mat\xc2\xad\nter o f the said Bill of Aid or Supply, is unparliamentary, and tends to the de\xc2\xad\nstruction of the constitution of this government.\xe2\x80\x9d Id. at 218 n. +.\nAlthough the practice of combining unrelated matters in a single bill was the\nsubject of much criticism and recognized to be contrary to the proper constitu\xc2\xad\ntion and functioning of the British government, it also appears to have been com\xc2\xad\nmon ground that the House of Commons could (and often did) combine such mat\xc2\xad\nters in a single bill, and that the only recourse of the House of Lords and the\nCrown was to withhold their assent. Given this understanding, the Framers\xe2\x80\x99 ex\xc2\xad\n\n144\n\n\x0cplicit recognition that the House of Representatives might adopt a similar prac\xc2\xad\ntice to coerce the Senate, and their failure to adopt a provision prohibiting the\npractice (such as a constitutional limitation on the contents of bills), it appears\nthat the Framers believed that each branch had adequate tools at its disposal to\ndefend itself against attempts at coercion by another.\nD. Colonial Experience\n\nLegislation by the American Colonies was subject to review by both the colo\xc2\xad\nnial governors and the Crown. Bills passed by the colonial legislatures required\nthe approval of the governor in order to become laws. After being enacted, how\xc2\xad\never, colonial laws were also sent to England to be reviewed by the Crown. Al\xc2\xad\nthough the practice of the governors and the Crown was not entirely uniform, ev\xc2\xad\nidence indicates that they did not exercise an item veto, but instead approved or\ndisapproved an entire legislative measure.\n1.\nReview o f Colonial Legislation by the Colonial Governors \xe2\x80\x94Legislative\npower in most of the Colonies was exercised jointly by the assembly, the gover\xc2\xad\nnor\xe2\x80\x99s council and the governor. Bills passed by the assembly and the governor\xe2\x80\x99s\ncouncil were presented to the governor, who had an absolute veto over them.8\nThe Crown expected the governor to represent its interests, and issued instruc\xc2\xad\ntions requiring him to disapprove certain bills. The governor\xe2\x80\x99s position in the leg\xc2\xad\nislative process was supported by his council, whose members were usually ap\xc2\xad\npointed upon his recommendation. Id. at 72.\nIn a recent article in the Wall Street Journal, Professor Forrest McDonald, an\neminent constitutional historian, argues that the Framers understood the veto\npower as incorporating the power to disapprove parts of a bill because \xe2\x80\x9cin each\nof the forms in which Americans had encountered it, the veto was of a \xe2\x80\x98line-item\xe2\x80\x99\nnature.\xe2\x80\x9d9 Professor McDonald cites three principal uses of the veto with which\nthe Framers had experience: the veto o f the colonial governors, the review of\ncolonial legislation by the Privy Council, and the veto as exercised in the States\nafter independence. Concerning the veto of the colonial governors, Professor Mc\xc2\xad\nDonald states that this veto was \xe2\x80\x9cexercised selectively\xe2\x80\x9d to disapprove parts of a\nbill and cites two examples.10\nOur review of historical materials, however, reveals that colonial governors\ndid not have the power to veto parts o f a bill. Rather, according to Evarts B.\nGreene\xe2\x80\x99s The Provincial Governor in the English Colonies o f North America 122\n(1966), the governor \xe2\x80\x9chad himself only a right of veto upon appropriation bills\nas a whole.\xe2\x80\x9d 11Moreover, in Royal Government in America 219 (1930), Leonard\n8 See E.B. Greene, The Provincial Governor in the English Colonies o f North America 162 (1966).\n9 Forrest McDonald, Line-item Veto: Older Than Constitution, Wall S l J., Mar. 7, 1988, at 16.\n10 Professor M cDonald\'s Wall Street Journal article does not provide any citations for its claims or even its\nquotes. On February 20,1988, approximately two weeks before the article was published. Professor McDonald sent\na letter to Lewis Uhier o f the National Tax-Limitation Committee, which closely tracks the article and does pro\xc2\xad\nvide sources. We shall refer to this letter at appropriate points.\n11 In Professor M cDonald\xe2\x80\x99s letter, he states that \xe2\x80\x9c [t]he authority on the veto power o f the colonial governors is\nEvarts B. Greene,\xe2\x80\x9d and does not cite any other works.\n\n145\n\n\x0cLabaree states that the governor \xe2\x80\x9chad very little to do with bills until they had\nbeen passed by the council and assembly and then he could only accept or reject\nthem as they stood.\xe2\x80\x9d12\nThe relationship between the governor and the legislative assemblies also sug\xc2\xad\ngests that the governor could not exercise an item veto. In their efforts to resist\nthe power of the Crown, the assemblies sought to coerce the governor to approve\nbills to which the Crown objected. Greene writes that the assemblies engaged in\nthe \xe2\x80\x9cpractice, pursued in direct defiance of the royal instructions, of inserting\nitems entirely foreign to the main body of the bill, of attaching legislative riders\nto bills appropriating money.\xe2\x80\x9d 13 Another commentator states:\nThe most serious difficulty in colonial government was one\ngrowing out of the gradual revolution which was taking pace in\nthe Colonies due to the rising power of the assemblies. This move\xc2\xad\nment had scarcely begun in 1696 when the Board was organized,\nbut it developed rapidly and was almost complete by 1765. The\nassemblies, through their assumed power over what they chose to\ncall a money bill, were able to usurp the chief legislative powers\nof the council by denying to that body the right to amend proposed\nfinancial measures, thus rendering it powerless to assist the gov\xc2\xad\nernor in carrying out his instructions. With the council eliminated\nand with full control o f the purse in their own hands, the assem\xc2\xad\nblies proceeded to force the governors to sign forbidden legisla\xc2\xad\ntion and to strip them o f their executive functions. By designat\xc2\xad\ning officers by name in the appropriation bills the assemblies\nforced the governors to appoint such persons to office as were\npleasing to itself, extraordinary and even ordinary executive du\xc2\xad\nties were delegated to committees of the lower house, and finally\nthe control of the military was assumed, so that the governors were\nreduced to little more than figureheads.\n\n12 Accord, Paul R Q. W olfson, Is a Presidential Item Veto Constitutional?, 96 Yale L J . 838, 842-43 (1987)\n(\xe2\x80\x9c U namendabihty meant that the colonial governors and upper houses had to accept all items of appropriation in\nmoney bills or reject them all \xe2\x80\x9d).\n13 E.B. Greene, The Provincial Governor in the English Colonies o f North America 164 (1966) Robert Luce\nw ntes that \xe2\x80\x9c [i]n the colonial assemblies o f America the obnoxious practice [of combining unrelated subjects in a\nsingle bill] became fam iliar \xe2\x80\x9d Although he notes that some examples o f this practice were due to \xe2\x80\x9cindifference or\ncarelessness\xe2\x80\x9d o r \xe2\x80\x9cunfam ilianty with the canons o f correct law-drafting,\xe2\x80\x9d he states that \xe2\x80\x9c [t]here is, however, good\nground for suspicion that most o f the m ischief was deliberately planned, in order to compel the home authorities to\napprove dubious items attached to proposals evidently desirable and important.\xe2\x80\x9d Indeed, Luce notes that \xe2\x80\x9c [w]ith\nthe quarrels o f the period leading up to the Revolution, the colonists resorted to the practice with provoking fre\xc2\xad\nquency and boldness.\xe2\x80\x9d Robert Luce, Legislative Procedure 549-50 (1922). In The Review o f American Colonial\nLegislation by the King in Council 207 (1915) (\xe2\x80\x9cRussell\xe2\x80\x9d), Elmer Russell notes the practice of the Colonies in\xc2\xad\ncluding \xe2\x80\x9cprovisions upon unrelated subjects within the sam e enactment,\xe2\x80\x9d but places a different emphasis upon it\nthan do G reene and Luce. Russell states th at \xe2\x80\x9c [i]n the majority o f cases [the practice] was due to ignorance or care\xc2\xad\nlessness.\xe2\x80\x9d Id However, \xe2\x80\x9c [w]hen, in rare instances, this expedient was used to circumvent the [Crown], the objec\xc2\xad\ntionable provision was usually inserted as a n d er to a supply act.\xe2\x80\x9d Id at 208.\n\n146\n\n\x0cOliver Morton Dickerson, American Colonial Government 1696-1765 at 361-62\n(1962). If the governor had the authority to veto parts of a bill, however, the de\xc2\xad\nvices described could not have coerced the governor.\nThe two examples of an item veto offered by Professor McDonald do not lead\nto a contrary conclusion. Professor McDonald first claims that the \xe2\x80\x9cbest known\nexamples\xe2\x80\x9d of item vetoes exercised by the colonial governors \xe2\x80\x9care those of the\nproprietary governors of Pennsylvania and Maryland, who repeatedly vetoed spe-\'\ncific provisions of military appropriations bills during the French and Indian War\nof 1756-63.\xe2\x80\x9d 14 In McDonald\xe2\x80\x99s letter to Lewis Uhler, he cites E.B. Greene\xe2\x80\x99s The\nProvincial Governor in the English Colonies o f North America as specific au\xc2\xad\nthority for this claim.\nAs quoted above, both Greene and Labaree state that the governor had only a\ngeneral negative. Moreover, with respect to this incident, a review of Greene\xe2\x80\x99s\nbook reveals only the statement that during the period of the French and Indian\nwars, the assemblies of Pennsylvania and Maryland \xe2\x80\x9cpassed supply bills which\nincluded taxes on the estates of the proprietors,\xe2\x80\x9d and the proprietors\xe2\x80\x99 \xe2\x80\x9crefusal\n. . . to permit such taxes led to prolonged and angry deadlocks.\xe2\x80\x9d 15 E.B. Greene,\nThe Provincial Governor in the English Colonies o f North America 13 (1966).\nThis certainly does not expressly state that the governors had item veto author\xc2\xad\nity, nor does it suggest an inference that they did. Indeed, to the extent one were\nto engage in conjecture, the most plausible inference is that the deadlocks were\nthe result of the governor\xe2\x80\x99s opposition to the entire supply bills, for item veto au\xc2\xad\nthority would have permitted him to approve the parts of the bills of which he\napproved.\nAs his second example, Professor McDonald claims that colonial governors\nexercised item veto authority with respect to the appointment of members of their\ncouncils. McDonald asserts that the governors councils were selected by leg\xc2\xad\nislative enactment, but that the governors had \xe2\x80\x9cthe power to reject individual se\xc2\xad\nlections, even though all the choices were presented together in the same bill.\xe2\x80\x9d\nForrest McDonald, Line Item Veto: Older Than Constitution, Wall St. J., Mar. 7,\n1988, at 16. Greene\xe2\x80\x99s book states, however, that except for Pennsylvania and\nMassachusetts, council members were chosen by the Crown, usually upon the\nrecommendation of the governor. In Pennsylvania, moreover, council members\nwere chosen by the governor, subject to some participation by the council itself,\nbut not the assembly.\nMcDonald\xe2\x80\x99s claim that council members were selected by legislative enact\xc2\xad\nment is only plausible in Massachusetts, where the council members were elected\nby the assembly and the council, subject to the governor\xe2\x80\x99s veto. Greene\xe2\x80\x99s book\ndoes not state that the results of the elections were transmitted to the governor\n\n14 Forrest McDonald, Lme-ltem Veto Older Than Constitution, Wall St J , Mar. 7, 1988, at 16.\n15 Greene also states that \xe2\x80\x9c dunng the years 1753-1759,\xe2\x80\x9d there was \xe2\x80\x9ca stormy period of conflict [in Maryland\npolitics] between the governor and the assembly over supply bills \xe2\x80\x9d However, \xe2\x80\x9cduring the six years there is no\nrecord o f any veto by the governor: all bills presented to him were approved, and this fact clearly indicates that ob\xc2\xad\nnoxious legislation was blocked by the upper house \xe2\x80\x9d Id. at 87\n\n147\n\n\x0ctogether as a single legislative enactment. Even if the names of those elected were\ncommunicated to the governor in a group, it does not follow that the assembly\nvoted to elect the appointees as a group. Moreover, even if the assembly did vote\non appointees collectively rather than individually, there is no reason to conclude\nthat the governor possessed an item veto with respect to legislation even though\nthe governor often, if not always, rejected fewer than all the elected candidates.\nEnactments presenting the results o f a legislative election are quite distinct from\nlegislation passed in the form of bills. In any event, whatever its precise nature,\nthe practice occurred in only one state. Thus, neither example provided by Pro\xc2\xad\nfessor McDonald presents evidence of the existence o f item veto authority in the\ncolonial governors over legislation.\nFinally, the colonists\xe2\x80\x99 practice, noted above, of combining unrelated items in\na single bill also suggests that they did not understand the term \xe2\x80\x9cBill\xe2\x80\x9d to mean a\nlegislative measure relating to only one subject. Despite the Crown\xe2\x80\x99s objection\nto laws containing unrelated provisions, the colonists did not share this under\xc2\xad\nstanding o f legislation. Rather, as previously discussed, they included unrelated\nsubjects in a single bill as a result o f indifference, carelessness, and the desire to\ncoerce the crown\xe2\x80\x99s approval. It is particularly clear, moreover, that the colonists\nbelieved that items of appropriation could be aggregated in a single bill. Greene\nwrites that \xe2\x80\x9ca glance at the statute books of almost any colony will show that, by\nthe close of the colonial era, the general rule consisted in making detailed ap\xc2\xad\npropriations for short periods of tim e.\xe2\x80\x9d Greene at 122. Our independent review\no f colonial appropriations laws confirms that the colonists aggregated items of\nappropriation in a single law.16\nIn sum, we are aware o f no evidence indicating that a colonial governor exer\xc2\xad\ncised an item veto with respect to colonial legislation. Rather, the uniform prac\xc2\xad\ntice appears to have been that the governor \xe2\x80\x9ccould only accept or reject bills as\nthey stood.\xe2\x80\x9d 17\n2. R eview o f C olonial Legislation by the Privy Council\xe2\x80\x94In addition to its au\xc2\xad\nthority over colonial legislation exercised through the governors, the Crown also\nreviewed colonial laws through the Privy Council.18 This review permitted the\nCrown to exercise central control over the Colonies, and was mainly conducted\nto ensure the conformity of colonial laws with the laws of England, to protect the\nprerogatives of the Crown, and to further colonial policy.\nIn his recent article in the Wall Street Journal, Professor McDonald states that\nthe \xe2\x80\x9cAmerican colonists\xe2\x80\x99 most extensive experience with a veto had been through\nthe British government\xe2\x80\x99s power to review acts passed by the colonial legisla\xc2\xad\ntures.\xe2\x80\x9d He writes that the Board o f Trade, on behalf o f the Crown, disallowed\xe2\x80\x94\n\n16 See, e.g., 5 New York Colonial Laws 27 (passed 1770).\n17 Leonard W oods Labaree, R oyal Government in America 219 (1930).\n18 O ver the years, the Privy Council relied upon numerous committees and boards to review, and make recom\xc2\xad\nmendations concerning, colonial legislation. T h e most important o f these boards was the Board o f Trade, estab\xc2\xad\nlished in 1696. For ease o f exposition, we will usually refer to the actions o f the Privy Council, omitting the role\no f the subordinate boards, except when relevant.\n\n148\n\n\x0c\xe2\x80\x9din whole or in part\xe2\x80\x9d\xe2\x80\x94 469 acts passed by the Colonies. Professor McDonald\nclaims that the Board of Trade \xe2\x80\x9cexercised such a line-item veto many times,\xe2\x80\x9d and\ncites as an example the alleged item veto in 1764 of a clause in a Massachusetts\nrevenue act.19\nThe veto exercised by the Privy Council, however, differed in significant re\xc2\xad\nspects from examples of the veto power in the Colonies, States, and Federal Gov\xc2\xad\nernment. The Privy Council generally reviewed laws that were already in effect\nrather than approving bills as part of the legislative process.20 The Council\xe2\x80\x99s re\xc2\xad\nview power therefore did not strictly involve the exercise of a veto, but was sim\xc2\xad\nilar to a power of repeal. Moreover, as there was no requirement in most cases\nthat the Privy Council review legislation within any time period, a majority of\nthe laws reviewed by the Board of Trade were never formally acted upon by the\nCouncil and some laws were reviewed many years after their enactment. Russell\nat 54. These distinguishing characteristics of the veto exercised by the Privy\nCouncil preclude significant reliance upon any particular feature of it as a model\nfor the President\xe2\x80\x99s veto power.21 While the Framers were familiar with the ex\xc2\xad\nercise of the Crown\xe2\x80\x99s veto, they conferred a substantially different veto power\nupon the President.\nTo the extent that the nature of the Crown\xe2\x80\x99s veto is instructive of the Framers\xe2\x80\x99\nunderstanding, however, examination of its use supports the conclusion that the\nPresident does not have authority to disapprove parts of a bill. A review of his\xc2\xad\ntorical materials indicates that, for the nearly one hundred years between the late\n1680s and the American Revolution\xe2\x80\x94 the period most revealing of the colonists\xe2\x80\x99\nunderstanding of the nature of a veto\xe2\x80\x94 the Council never vetoed part of a leg\xc2\xad\nislative enactment. Although the Council did exercise two item vetoes prior to\nthat time, in 1665 and 1680, these incidents were not repeated and appear to have\n\n19 Forrest McDonald, Line-ltem Veto Older Than Constitution, Wall St J., Mar. 7, 1988, at 16. In his letter to\nLewis Uhler, Professor McDonald states that \xe2\x80\x9c(t]he authonty on this subject is Elmer B. Russell, The Review of\nAmerican Colonial Legislation by the King in Council (New York, Columbia Umv , 1915) \xe2\x80\x9d Russell\'s book, upon\nwhich we also rely heavily, is based on a review of the actual vetoes exercised by the Crown, as described in the\njournals o f the board of Trade, located in the Public Record Office in London. It is therefore a work that is partic\xc2\xad\nularly suited to our purposes. Other important sources, however, include Oliver Morton Dickerson, American Colo\xc2\xad\nnial Government 1696 - 1765. A Study o f the British Board o f Trade in its Relation to the American Colonies, Po\xc2\xad\nlitical, Industrial, Administrative (1962); Leonard Woods Labaree, Royal Government in America (1930)\n20 Certain kinds o f colonial legislation, however, were suspended from taking effect until receiving the approval\nof the Crown. Examples include pnvate acts and legislation repealing other laws. Leonard Woods Labaree, Royal\nGovernment in America 227 (1930), Russell at 214\n21 If, contrary to our research, there is evidence that the Privy Council had the power to veto parts of a bill, the\ndifferences between thal body and the President would argue against recognizing a similar power in the President.\nSince the colonial laws would have already been in operation and relied upon by the colonists, there would be an\nadditional reason to sever only those parts considered objectionable by the Council Moreover, the fact that the laws\nwere in operation and that the council exercised the (judicial) power to reject the laws as contrary to the charters o f\nthe Colonies, would suggest that the Council was exercising a power analogous to judicial review rather than the\nveto, permitting the Council to sever objectionable parts of the statute. See Russell at 227 (Privy Council\xe2\x80\x99s review\nprecedent for power o f judicial review); Oliver Morton Dickerson, American Colonial Government 1696-1765 at\n365 (1962) (same). We discuss at greater length below why the availability o f judicial review fails to support the\nexistence o f item veto authonty.\n\n149\n\n\x0cbeen regarded as isolated departures from the rules governing the exercise of the\nCouncil\xe2\x80\x99s proper review power.\nSystematic review of legislation by the Privy Council began after 1660, but\nthe practice governing this review appears not to have been finalized until some\nyears later.22 Thus, in the late 1670s the Crown sought to limit the power of the\nJamaican Assembly to approving or disapproving laws drafted in England. The\nsuccessful resistance of the Jamaican Assembly to approving or disapproving\nlaws drafted in England. The successful resistance o f the Jamaican Assembly to\nthis attempt helped clearly to establish the power of colonial assemblies to initi\xc2\xad\nate legislation.23\nAt approximately the same time, the Privy Council exercised two item vetoes.\nIn 1665, the Council objected to a proviso exempting certain lands in a Barba\xc2\xad\ndos impost act. The objectionable clause was \xe2\x80\x98\xe2\x80\x9c disallowed and made void\xe2\x80\x99\xe2\x80\x9d by\nthe Council, \xe2\x80\x9calthough the act itself they confirmed.\xe2\x80\x9d24 Similarly, in 1680 the\nCouncil reviewed a Virginia revenue act which contained a clause exempting\nVirginia ships from the taxes imposed. Citing the Barbados act as precedent, the\nCouncil confirmed the law but disallowed the exemption.25\nThese two early examples of the exercise of an item veto do not appear to have\nbeen repeated. Although Russell does not expressly state that item vetoes were\nnot exercised again, neither he,26 nor the other authors reviewed by us, mentions\nany other examples of parts of bills being vetoed.27 Moreover, Russell states:\nAttempts to impose laws unaltered upon the assemblies, or to\nrepeal acts except in their entirety . . . , were a natural outwork\xc2\xad\ning of the policy of Charles II. Both ceased, for the most part, with\nhis reign; while after the \xe2\x80\x9cGlorious Revolution\xe2\x80\x9d there was a com\xc2\xad\nplete tolerance of the assemblies and a fairly scrupulous respect\nfor their autonomy.\n22 It should be noted that the Board of T rade first began to review colonial legislation in 1696. Russell at 44\n23 Id. at 26-27, Leonard W oods Labaree, R o ya l Government in America 219-22 (1930).\n24 Russel] at 21.\n25 Id. at 31.\n26 An exam ple stated by Russell of the disapproval o f a clause is not properly interpreted as an item veto, but\nrather as the suspension o f the operation of a statute. In discussing several Virginia laws of the early 1680s that\nwere not vetoed but merely suspended in operation while being returned to the colony for reconsideration, Russell\ndescribes an act for \xe2\x80\x9cEncouragement of Trade and Manufacture\xe2\x80\x9d that was returned to Virginia \xe2\x80\x9cwith an order that\nthe clause fixing the time o f its enforcement as to the landing o f goods and shipment of tobacco \xe2\x80\x98be immediately\nsuspended.\xe2\x80\x99\xe2\x80\x9d We do not interpret the suspension o f the act\xe2\x80\x99s effective date as the exercise of an item veto as much\nas the m eans by which the act was suspended. Russell explains the suspension of these laws by the fact that the acts\ninvolved the important area o f trade and were only to take effect in the future. In any event, Russell notes that \xe2\x80\x9cthe\nmore legitimate course [for the Privy Council], and the one which ultimately prevailed, was that taken in 1685,\xe2\x80\x9d\nunder which the Council permitted a law to rem ain in force but instructed the governor to propose an amendment\nto the assembly. Id. at 42-43.\n27 See e.g , O liver M orton Dickerson, Am erican Colonial Government 1696-1765: A Study o f the British Board\no f Trade in its relation to the American Colonies, Political, Industrial, Administrative (1912), Leonard W oods Laba\xc2\xad\nree, Royal G overnment in Am erica (1930), R onald C Moe, The Founders and Their Experience with the Execu\xc2\xad\ntive Veto, 17 Pres. Stud. Q. 413 (1987); Paul R.W . Wolfson, Is a Presidential Item Veto Constitutional?, 96 Yale\nL J 838, 842 n 20 (1987) (\xe2\x80\x9cThe Privy Council exercised no item veto but always either approved legislation in full\nor disallow ed it in full.\xe2\x80\x9d).\n\n150\n\n\x0cRussell at 43.28\nRussell also suggests that item vetoes were viewed unfavorably, and perhaps\nas illegitimate.29 He states:\nThe governor\xe2\x80\x99s commissions and instructions\xe2\x80\x94the nearest ap\xc2\xad\nproach to a fundamental law in the royal colonies\xe2\x80\x94empowered\nthe governor, council and assembly, under varying restrictions, to\nmake laws which should be subject to royal disallowance. The\nsubsequent demand of the English authorities that the Jamaica as\xc2\xad\nsembly adopt unaltered acts drafted in England, constituted a vi\xc2\xad\nolation of a previous concession which rendered the government\xe2\x80\x99s\nposition politically, if not legally, untenable. Other acts of the king\nin council prior to 1696 were contrary to the fair implications of\nthis grant, if not precluded by its express terms. Such, for exam\xc2\xad\nple, were the disallowance of clauses in the revenue acts of Bar\xc2\xad\nbados and Virginia. . . .\nId. at 40-41.\n\nThat the few instances of item vetoes were legally problematic and that there\nis no evidence that they were asserted again suggests that, like the attempt of the\xe2\x80\x99\nCrown to assert the initiative in colonial legislation, the two examples of item\nvetoes are most appropriately interpreted as novel attempts of the Crown to con\xc2\xad\ntrol colonial assemblies made prior to the firm establishment of rules allocating\nauthority between colonial legislatures and the Crown.30 Under this interpreta\xc2\xad\ntion of the historical evidence, the subsequent practice of the Crown until the\nAmerican Revolution constitutes a significant precedent for a veto power that\nmay be exercised only with respect to an entire legislative enactment.\nWhile thefe is no evidence that the Crown engaged in the practice of vetoing\nparts of a bill, Russell\xe2\x80\x99s book describes the Crown\xe2\x80\x99s use of its power to veto an\nentire law as a means of inducing the colonial legislatures to remove objection\xc2\xad\nable provisions. This was accomplished in two different ways. Instead of mak\xc2\xad\ning a recommendation of confirmation or disallowance to the Privy Council, the\nBoard of Trade might permit a law containing some objectionable provisions to\n\n\xe2\x80\xa228 The proposition that item vetoes were not exercised again is also supported by statements made by the Privy\nCouncil, discussed below, that laws combining unrelated provisions were objectionable because elimination o f part\nof the law required a veto of the entire enactment. We should note, however, that there are statements in R ussell\xe2\x80\x99s\nbook that are to some extent ambiguous, and could possibly be poorly articulated references to item vetoes. For ex\xc2\xad\nample, Russell writes that a committee o f the Privy Council took exception to a provision in the bill o f rights passed\nby the first assembly o f New York. Russell at 140; see also id at 185. Although we believe that the best interpre\xc2\xad\ntation of this statement is not as a reference to an item veto, but rather as an explanation of the grounds for the Privy\nCouncil\'s opposition to the enactment as a whole, we mention it in the interest of thoroughness.\n29 In the case o f the item veto o f Virginia\xe2\x80\x99s revenue exemption, Russell asserts that although the partial disal\xc2\xad\nlowance of the act did not violate the immediate instructions from the Crown to the colonial governor, that the\nCrown \xe2\x80\x9cnevertheless felt the weakness o f their position is shown by the care with which they cited the Barbadoes\nact as a precedent.\xe2\x80\x9d Id at 31.\n30 See Paul R Q. Wolfson, Is a Presidential Item Veto C o n s titu tio n a l96 Yale L J. 838, 842 n.20 ( 1987).\n\n151\n\n\x0c\xe2\x80\x9clye by probationary.\xe2\x80\x9d The law would be \xe2\x80\x9callowed to stand provisionally while\nthe governor either was instructed to procure an amendment remedying its de\xc2\xad\nfects, or to obtain the repeal o f the old law and the enactment of a new.\xe2\x80\x9d31 Al\xc2\xad\nternatively, the Board of Trade \xe2\x80\x9csometimes secured the same result [as permit\xc2\xad\nting a law to lye by probationary] by disallowing the law and stating specifically\nin an instruction the modifications which would serve to make it acceptable to\nthe government.\xe2\x80\x9d Id. at 91.32\nThe one example of an item veto cited by Professor McDonald did not involve\nan item veto, but instead involved an attempt by the Board of Trade to secure an\namendment upon a threat of vetoing the entire law. In discussing the Board of\nT rade\xe2\x80\x99s power to permit a law to \xe2\x80\x9clye by probationary,\xe2\x80\x9d Russell discusses the\nvery example cited by Professor McDonald. According to Russell: \xe2\x80\x9cA Massa\xc2\xad\nchusetts act of 1764, for example, the Board found objectionable \xe2\x80\x98in no other re\xc2\xad\nspect . . . than as it directs a double I mpos t. . . for all goods . . . imported by in\xc2\xad\nhabitants of other Colonies.\xe2\x80\x99 They accordingly proposed \xe2\x80\x98an instruction to the\nGovernor for procuring the amendment of this particular clause.\xe2\x80\x99\xe2\x80\x9d Id. at 55 (el\xc2\xad\nlipsis in original).33\nThe mechanisms employed by the Crown for preventing objectionable mea\xc2\xad\nsures in otherwise acceptable legislation are analogous to powers that the Con"stitution clearly confers on the President. If the President objects to objection\xc2\xad\nable provisions in a law, he may \xe2\x80\x9creturn it, with his Objections to that House in\nwhich it shall have originated, who shall enter the Objections at large on their\nJournal.\xe2\x80\x9d U.S. Const, art. I, \xc2\xa7 7, cl. 2. Similarly, the President may warn Con\xc2\xad\ngress before passage of a bill that it will be vetoed if objectionable provisions are\nincluded. This suggests that if the Framers relied on any aspects of the Crown\xe2\x80\x99s\npower to review colonial legislation, it was its power to induce amendments of\na law through the threat of a veto.\nThe Crown\xe2\x80\x99s power to veto an entire act was also used to enforce formal re\xc2\xad\nquirements on laws passed by the Colonies. The Crown believed that \xe2\x80\x9ceach sep\xc2\xad\narate act should deal with but one subject, and contain no clause foreign in its ti-\n\n31 Russell at 55. Russell states that \xe2\x80\x9c[i]n som e cases it was stated that, if the request for an amendment were not\ncomplied with, the act would be immediately disallowed.\xe2\x80\x9d Id.\n32 Dickerson also discusses the Board\xe2\x80\x99s use o f its power to disapprove an entire law to induce the Colonies to\nam end their laws. See Dickerson, supra, at 232, 237 n.538, 243 n.556, 245 & 263.\n33 A nother piece o f evidence suggested by Professor McDonald may also be explained as an instance of the\nC ouncil\xe2\x80\x99s practice o f using its power to disapprove an enure enactment to induce the colonial legislators to alter\nparts o f it. In his Wall Street Journal article. Professor McDonald states that the Board of Trade \xe2\x80\x9c(i]n 1702 . de\xc2\xad\nclared its basic policy: Bills \xe2\x80\x98might be altered in any part thereof.\xe2\x80\x99\xe2\x80\x9d We have not found this proposition in Russell\xe2\x80\x99s\nbook, but we did find a similar statement In discussing the practice of some Colonies of submitting bills to the\nCrown for p nor approval rather than including a suspension clause in the law, RusselJ states that \xe2\x80\x9c[tjhough such\nbills were approved, amendments were sometimes suggested by the Board. In 1704 they considered the draft for a\nrevision o f the laws o f Virginia prepared by the governor and a committee of the council, and suggested many\nchanges to be made before its final enactment \xe2\x80\x9d Russell at 92. In a footnote, Russell writes that the \xe2\x80\x9cBoard informed\nthe attorney and solicitor that these bills might *be altered in any part thereof as Bills transmitted from Ireland.\xe2\x80\x99\xe2\x80\x9d\nId. at 92 & n.3 (emphasis added) W e do not believe that this is a statement by the Board that it had the authority\nto veto parts o f bills, but rather an assertion o f the Board\xe2\x80\x99s power to condition prior approval of a bill on alteration\no f the bill.\n\n152\n\n\x0ctie.\xe2\x80\x9d Russell at 87. The Colonies nonetheless included \xe2\x80\x9cprovisions upon unre\xc2\xad\nlated subjects within the same enactment.\xe2\x80\x9d Id. at 207. The Crown\xe2\x80\x99s response to\nthese practices, however, was to veto the entire measure. Thus, \xe2\x80\x9cattempts of the\nassemblies to re-enact English statutes, or to declare the laws of England wholly\nor partially in force, were discouraged, lest they operate . . . to deprive the crown\nof its right to veto each individual enactment.\xe2\x80\x9d Id. at 139-40. A New York law\nextending several acts of Parliament to the colony\nwas disallowed, although it introduced nothing in itself objec\xc2\xad\ntionable, because it did not seem fitting that laws should \xe2\x80\x98be\nadopted in Cumulo, and that, too, without stating more of the acts\nthan the titles and sections adopted. [This] deprives both the\nCrown and the Governor of that distinct approbation or disappro\xc2\xad\nbation that is essential to the constitution of the Province.\nId. at 140 (brackets in original). Moreover, one of the reasons stated by the Crown\n\nfor objecting to unrelated provisions in an act was that the elimination of part of\nthe act required a veto of the entire measure:\nIn 1695 the committee [of the Privy Council] complained that di\xc2\xad\nverse acts of Massachusetts were \xe2\x80\x9cjoined together under ye same\ntitle, whereby it has been necessary for the repealing of such of\nthem as have not been though fit to be confirmed to vacate such\nothers as have been comprehended under such titles.\xe2\x80\x9d\nId. at 207. Thus, even though the Crown believed that laws containing unrelated\n\nprovisions burdened its power to veto, it did not attempt to exercise its veto over\nonly part of these laws. Rather, the generally accepted view required the Crown\nto reject the entire piece of legislation.\nIn conclusion, to the extent that the Privy Council\xe2\x80\x99s review of colonial legis\xc2\xad\nlation supports any interpretation of the President\xe2\x80\x99s veto power, it is that the con\xc2\xad\nstitutional provisions enabling the President to threaten to veto, or to veto, an en\xc2\xad\ntire legislative measure are his only legitimate response to bills containing\nobjectionable or unrelated provisions.\nE. Experience o f the States from 1776 to 1789\n\nWe have also sought to review the experience of the States during the period\nbetween the Declaration of Independence and ratification of the Federal Consti\xc2\xad\ntution. During that period, only the constitutions of Massachusetts and New York\nprovided for vetoes.34 The experience of these two States, however, is particu\xc2\xad\n34\nSouth Carolina\xe2\x80\x99s temporary constitution of 1776 provided the Stale president and commander-in-chief with\nan absolute veto on legislation. The permanent constitution o f 1778, however, did not include the veto power. See\ngenerally Joseph E. Kallenbach, The American C hief Executive 24 (1966)\n\n153\n\n\x0clarly important. Both States\xe2\x80\x99 constitutions provided for a strong executive, and\nwere relied on as models by the Federal Convention of 1787.35 Exercise of the\nveto in these States, moreover, represents the most recent and proximate exam\xc2\xad\nple of the veto power known to the Framers, and the only example of a veto that\nhad been drafted and adopted by Americans. Finally, a comparison of the veto\nprovisions in these State constitutions with Article I, Section 7, Clause 2, of the\nUnited States Constitution suggests that the delegates to the Philadelphia Con\xc2\xad\nvention used the New York, and particularly the Massachusetts, provisions as\nmodels in drafting the federal veto provision.36\nIn his article in the Wall Street Journal, Professor McDonald refers to the ex\xc2\xad\namples of Massachusetts and New York for support. Although Professor Mc\xc2\xad\nDonald states that the \xe2\x80\x9cphraseology of the [veto] provision\xe2\x80\x9d in Massachusetts as\nthe power of \xe2\x80\x9crevisal\xe2\x80\x9d suggests that the veto \xe2\x80\x9ccould be exercised selectively,\xe2\x80\x9d he\nnotes that \xe2\x80\x9cwe cannot be sure because no governor exercised it before 1787.\xe2\x80\x9d Pro\xc2\xad\nfessor McDonald states, however, that the very first exercise of the veto in New\n35 Id at 32-33\n36 A rticle III o f the New York State Constitution of 1777 provides.\nAnd whereas laws inconsistent with the spirit o f this constitution, or with the public good, may be\nhastily and unadvisedly passed Be it ordained, that the governor for the time being, the chancellor and\nthe judges o f the supreme court, or any two o f them, together with the governor, shall be, and hereby\nare, constituted a council to revise all b ills about to be passed into laws by the legislature And for that\npurpose shall assemble themselves, from time to time, when the legislature shall be convened; for\nwhich, nevertheless, they\'shall not receive any salary or consideration under any pretence whatever\nA nd that all bills which have passed th e senate and assembly shall, before they become laws, be pre\xc2\xad\nsented to the said council for their revisal and consideration, and if, upon such revision and consider\xc2\xad\nation, it should appear improper to the said council, or a majority o f them, that the said bill should be\xc2\xad\ncom e a law o f this State, that they return the same, together with their objections thereto in writing, to\nthe senate or house o f assembly, in w hichsoever the same shall have originated, who shall enter the\nobjections sent down by the council at large in their minutes, and proceed to reconsider the said bill.\nBut if, after such reconsideration, two-thirds o f the said senate or house of assembly, shall, notwith\xc2\xad\nstanding the said objections, agree to pass the same, it shall, together with the objections, be sent to\nthe other branch o f the legislature, w here it shall also be reconsidered, and, if approved by two-thirds\nof the members present, shall be a law.\nA nd in order to prevent any unnecessary delays, be it further ordained, that if any bill shall not be re\xc2\xad\nturned by the council, within ten days after it shall have been presented, the same shall be a law, un\xc2\xad\nless the legislature shall, by their adjournment, render a return of the said bill within ten days imprac\xc2\xad\nticable; in which case the bill shall be returned on the first day o f the meeting of the legislature after\nthe expiration o f the said ten days.\nThe M assachusetts Constitution of 1780, ch. I, \xc2\xa7 1, art. 2, states:\nNo bill or resolve o f the Senate or H ouse of Representatives shall become a law, and have force as\nsuch, until it shall have been laid before the Governor for his revisal, and if he, upon such revision,\napprove thereof, he shall signify his approbation by signing the same. But if he have any objection to\nthe passing o f such bill or resolve, he shall return the same, together with his objections thereto, in\nwriting, to the Senate or House of Representatives, in whichsoever the same shall have originated, who\nshall enter the objections sent down by the Governor, at large, on their records, and proceed to recon\xc2\xad\nsider the said bill or resolve: But, if, after such reconsideration, two-thirds o f the said Senate or House\no f Representatives shall, notwithstanding the said objections, agree to pass the same, it shall, together\nwith the objections, be sent to the other branch o f the legislature, where it shall also be reconsidered,\nand if approved by rw o-thirdsof the m embers present, shall have the force of law: But in all such cases,\nthe vote o f both houses shall be determined by yeas and nays; and the names o f the persons voting for,\nor against, the said bill o r resolve shall be entered upon the public records o f the Commonwealth\nAnd in order to prevent unnecessary delays, if any bill o r resolve shall not be returned by the G over\xc2\xad\nnor within five days after it shall have been presented, the same shall have the force o f law.\n\n154\n\n\x0cYork \xe2\x80\x9cestablished the precedent that it could [be used to] reject particular clauses\nas well as whole bills.\xe2\x80\x9d37\nThe experience of New York State does not support the existence of an item\nveto. Until 1822, a Council of Revision, composed of the governor, justices of\nthe state supreme court and the chancellor of equity, exercised the veto power in\nNew York. Although Professor McDonald cites the first veto of the Council of\nRevision as an example of the exercise of an item veto, a review of that veto re\xc2\xad\nveals the Council did not disapprove part of a bill. In fact, the Council rejected\nthe bill as a whole, objecting in its veto message to certain of its provisions.\nThe Council of Revision exercised its first veto on February 4, 1778, by re\xc2\xad\njecting a bill entitled, \xe2\x80\x9cAn act requiring all persons, holding offices or places un\xc2\xad\nder the Government of this State, to take the oaths therein prescribed and di\xc2\xad\nrected.\xe2\x80\x9d The Council objected to the bill on various grounds, and returned it to\nthe Senate, where it \xe2\x80\x9cwas passed again with various amendments, and became a\nlaw . . . on the 5th of March, 1778.\xe2\x80\x9d C. Lincoln, State o f New York, M essages o f\nthe Governors 21 (1909). Lincoln\xe2\x80\x99s book, compiling the messages of the Coun\xc2\xad\ncil, states:\nThe possible effect of a veto on the powers of the Legislature was\nconsidered by the Senate on this occasion, and while consenting\nto an amendment to obviate the objections presented by the Coun\xc2\xad\ncil of Revision, the Senate declared that neither the concession\nhereby made to the Council\xe2\x80\x99s objection, \xe2\x80\x9cnor the amendment\naforesaid to be thereon made, shall be drawn into precedent; so as\nin any wise to impeach, impair, or diminish the freedom of legis\xc2\xad\nlation vested in this Senate by the Constitution.\xe2\x80\x9d\nId. Thus, it appears clear that the Council vetoed the entire bill, and it was only\n\nafter the legislature acquiesced in the Council\xe2\x80\x99s views, that the bill was approved\nand became a law.38 Rather than providing an example of an item veto, then, the\nfirst veto of the Council of Revision demonstrates how the power to veto an en\xc2\xad\ntire enactment may be used to induce the legislature to modify objectionable por\xc2\xad\ntions of a bill.\nA review of the history of the Council of Revision also reveals no evidence\nthat the Council exercised an item veto at any other time. Prescott and Zimmer\xc2\xad\nman\xe2\x80\x99s review of the vetoes exercised by the Council of Revision does not men\xc2\xad\ntion a single instance in which part of a bill was vetoed, but the article does note\n37 Forrest McDonald, Line-ltem Veto*Older Than Constitution, Wall Si. J., Mar. 7, 1988, at 16.\n38 One objection made by the Council was that the Oath o f office prescribed for Sheriffs and Under-Shenffs\nshould not impose a \xe2\x80\x9cprohibition to the taking [of] undue fees\xe2\x80\x9d merely for certain services, \xe2\x80\x9cbut ought to extend to\nall acts which sheriffs, o r under-sheriffs, are bound\nto perform.\xe2\x80\x9d Lincoln at 22. The bill that was passed into law\nwas amended to take account of this objection by inserting in the Oath o f office that Sheriffs or Under-Sheriffs\nshould not lake undue fees \xe2\x80\x9cfor any other service whatsoever, in [the] said office o f sheriff (or under-sheriff. . . ) . \xe2\x80\x9d\n1778 N.Y. Laws 14.\n\n155\n\n\x0cexamples of entire bills that were vetoed because the Council objected to partic\xc2\xad\nular provisions.39\nMoreover, the veto provision o f the Massachusetts Constitution provides no\nevidence that the Framers intended the President to have item veto authority.\nFirst, although the provision in the Massachusetts Constitution conferring veto\npower upon the governor uses the terms, \xe2\x80\x9crevision,\xe2\x80\x9d and \xe2\x80\x9crevisal,\xe2\x80\x9d this does not\nsuggest that the Governor of Massachusetts could exercise an item veto. While\nthe term, \xe2\x80\x9crevision,\xe2\x80\x9d and its variants, \xe2\x80\x9crevise\xe2\x80\x9d and \xe2\x80\x9crevisal,\xe2\x80\x9d today imply the act\nof correcting or altering an original, two centuries ago these terms meant either\nthe act of (1) simply reviewing something or (2) reviewing and amending it.40 It\nseems clear that the Framers of the Massachusetts Convention used the term \xe2\x80\x9cre\xc2\xad\nvision\xe2\x80\x9d in the former sense because the veto provision makes sense as a whole\nonly with this understanding of the term. The provision provides, in relevant part,\nthat \xe2\x80\x9c[n]o b i l l . . . shall become a law .. . until it shall have been laid before the\nGovernor for his revisal ; and if he, upon such revision, approve thereof for he\nshall signify his approbation by signing the same. But if he have any objection\nto the passing of such bill,\xe2\x80\x9d he is to return the bill and his objections to the leg\xc2\xad\nislature. Massachusetts Const, ch. I, sec. 1, art. 2 (emphasis added). If \xe2\x80\x9crevise\xe2\x80\x9d\nis interpreted to mean alteration, then the clause provides the Governor with the\npower to alter bills, and denies the legislature the opportunity to override the al\xc2\xad\ntered bills. The legislature may, however, override the Governor\xe2\x80\x99s veto (i.e., re\xc2\xad\njection without modification) of the entire bill. To avoid this obviously incorrect\ninterpretation of the Massachusetts veto provision 41 the terms \xe2\x80\x9crevision\xe2\x80\x9d and\n\xe2\x80\x9crevisal\xe2\x80\x9d must be understood to mean only the power to review.42\nMoreover, even if the power o f \xe2\x80\x9crevision\xe2\x80\x9d was intended to permit the Gover\xc2\xad\nnor of Massachusetts to modify bills, the President would not possess this power.\nEarly versions of Article I, Section 7, Clause 2 did use the term \xe2\x80\x9crevision,\xe2\x80\x9d but\nthe Framers ultimately adopted the clause without it.43 The Framers did not state\n39 Frank W. Prescott & Joseph F Zimmerman, The Council o f Revision and the Veto o f Legislation in N ew York\nStates 1777-1822 at 53 n.61 (Occasional Paper 1972). The authors note the veto in 1815 of an appropriations bill\nthat \xe2\x80\x9ccontained a n d er providing a new apportionment o f senate districts.\xe2\x80\x9d After the veto was sustained, the \xe2\x80\x9cap\xc2\xad\npropriations act minus the n d er was enacted on the day o f final adjournment.\xe2\x80\x9d /*/.\n40 The 1828 version o f W ebster\xe2\x80\x99s American Dictionary, defines \xe2\x80\x9crevision\xe2\x80\x9d as \xe2\x80\x9c [t]he act of reviewing, review,\nre-examination for correction.\xe2\x80\x9d The verb \xe2\x80\x9crevise\xe2\x80\x9d has two meanings \xe2\x80\x9c 1. to review, to re-examine, to look over with\ncare for correction . . 2. To review, alter and am end.\xe2\x80\x9d N. Webster, An American Dictionary o f the English Lan\xc2\xad\nguage (1828)\n41 The overall structure o f the veto provision in the New York Constitution o f 1777 (as well as that of early ver\xc2\xad\nsions o f the veto clause proposed at the Philadelphia Convention) indicates that the term should also be given the\nm eaning \xe2\x80\x9creview \xe2\x80\x9d in these provisions.\n42 Although Professor McDonald states that the Governor failed to exercise a veto prior to adoption of the United\nStates Constitution, experience in Massachusetts in the years following adoption of the United States Constitution\nwould also have provided evidence of the m eaning o f the M assachusetts veto provision to the Framers. The veto,\nhowever, was not exercised in Massachusetts until after the Governor was inaugurated in 1825. See A Nevins, The\nAm erican States During and A fter the Revolution 1775-1789 at 182 (1969)\n43 M adison\xe2\x80\x99s Notes at 388 It should also be noted that there is no suggestion in the debates that the power of\nrevision would permit modification of a bill\n44 In addition to the evidence o f vetoes exercised under the Massachusetts and New York constitutions, it should\nbe noted that the legislatures in both states passed appropriations bills that aggregated individual items. Therefore,\nit cannot be argued that the term \xe2\x80\x9cBill\xe2\x80\x9d was understood to mean a single item of appropriation\n\n156\n\n\x0cthat the President had the power of revision, but merely that he could \xe2\x80\x9capprove\xe2\x80\x9d\nor \xe2\x80\x9cnot\xe2\x80\x9d the bills presented to him. Thus, arguments based on the power of revi\xc2\xad\nsion cannot be used to provide the President with item veto authority.44\nIn conclusion, the history of the veto power in the States of Massachusetts and\nNew York prior to the adoption of the Constitution reveals that item veto au\xc2\xad\nthority was not exercised. In our view, this is a significant historical precedent,\nwhich constitutes persuasive evidence that the Framers did not intend, or even\nimplicitly assume, that the veto power included the authority to disapprove parts\nof a bill.\nF. Post-Ratification Experience\n\nIn this section, we review the historical practices of Congress and Presidents\nas related to the question of whether the Constitution adopts a limited definition\nof the term \xe2\x80\x9cBill.\xe2\x80\x9d On balance, the evidence indicates that the Framers did not\nintend to limit the contents of a bill. The early historical practice of Congress was\nto pass bills containing numerous items of appropriation. Although Congress did\nnot begin the practice of aggregating unrelated matters in a single bill until the\nCivil War, since that time it has occurred regularly. Moreover, although Presi\xc2\xad\ndents have exercised the veto power differently, they have been unanimous in\nthe view that they were without authority to approve or disapprove parts of a bill.\n1. Appropriations \xe2\x80\x94A review of appropriations bills passed by the First Con\xc2\xad\ngress reveals that numerous items were included within a single appropriations\nbill. For example, on March 26, 1790, Congress passed \xe2\x80\x9cAn Act making appro\xc2\xad\npriations for the support of government for the year one thousand seven hundred\nand ninety.\xe2\x80\x9d See 1 Stat. 104 (1790). Among other things, the act contains appro\xc2\xad\npriations for the payment of pensions, for building a lighthouse on Cape Henry\nin Virginia, for funding the Department of War, for the expenses of the late of\xc2\xad\nfice of foreign affairs, for the services and office expenses of Roger Alden, and\nfor the services of Jehoiakim M \xe2\x80\x99Toksin as an interpreter and guide. This bill was\nby no means unusual, and the statute books are replete with additional examples.\nMoreover, we are aware of no debates in Congress questioning this practice at\nthe time. Thus, to the extent that the current commentators suggest that a bill may\nnot contain more than one item of appropriation, their claims are contradicted by\nthe highly probative and consistent practice of Congress since its inception; and,\nas we have already explained, the text of the Constitution forecloses finding item\nveto authority in the President through any route other than an interpretation of\nthe term \xe2\x80\x9cBill.\xe2\x80\x9d\n2. George W ashington \xe2\x80\x94This understanding of the veto clauses also appears\nto have been held by President Washington. During his first term, Washington\ndiscussed in a letter why he approved \xe2\x80\x9cmany Bills with which [his] Judgment is\nat variance.\xe2\x80\x9d President Washington explained: \xe2\x80\x9cFrom the nature of the Constitu\xc2\xad\ntion, I must approve all the parts of a Bill, or reject it in toto.\xe2\x80\x9d 33 Writings o f\n\n157\n\n\x0cG eorge Washington 96 (1940). Although Washington was never presented with\n\nan appropriations bill with substantive riders, the fact that he was presented with\nappropriations bills containing multiple items suggests his belief that he did not\nhave authority to veto individual items of appropriation.\n3. Su bsequ ent Congressional Practice \xe2\x80\x94 The meaning to be drawn from Con\xc2\xad\ngress\xe2\x80\x99 practice concerning the inclusion in a single bill of unrelated substantive\nprovisions and substantive riders on appropriations bills is more equivocal. It\ndoes not appear that substantive legislation was passed by both houses and pre\xc2\xad\nsented to the President as part o f an appropriations bill for the first seventy years\nfollowing the Constitution\xe2\x80\x99s adoption. Attempts to vary from this practice were\nmet with a significant skepticism and debate in Congress, which we briefly de\xc2\xad\nscribe below.\nThe issue of combining unrelated provisions was discussed in the Senate in\n1850 when Senator Benton moved that the Committee of Thirteen be instructed\nnot to tack any other bill or foreign matter to the bill admitting California as a\nState. Senator Benton introduced the following resolution:\nThat the said committee be instructed to report separately upon\neach different subject reported to it; and that the said committee\ntack no two bills of different natures together nor join in the same\nbill any two or more subjects which are in their nature foreign, in\xc2\xad\ncoherent, or incongruous to each other.\nCong. Globe, 31st Cong., 1st Sess. 793 (1850). Senator Benton cited authority\nfor the proposition that in the British system it was considered unparliamentary\nto tack unconnected bills, and admonished that \xe2\x80\x9cthe evil of joining incongruous\nmeasures together by one House, to coerce the assent o f the other, or the approval\nof the President. . . is just the same.\xe2\x80\x9d Id. at 794. Although the bill in question was\nnot an appropriations bill, Senator Benton cited the parliamentary law of Great\nBritain in support of his motion. Discussing the British distinction between the\ntacking of substantive riders to appropriations bills and the tacking of unrelated\nsubstantive provisions to each other, Senator Benton observed:\nThe case before the Senate is not that of a tax or appropriation\nbill: if it was, the British argument of unconstitutionality and dan\xc2\xad\nger to the country would equally apply; for, by our Constitution,\nthe House of Representatives has the exclusive constitutional right\nto originate such bills; and to thwart or impede them, by tacking\non extraneous amendments in this body, would be to impede the\nfree working of the Constitution; and, in the case of disagreement\nbetween them, might deprive the Government of the support nec\xc2\xad\nessary to its existence.\nCong. Globe, 31st Cong., 1st Sess. 794 (1850).\n\n158\n\n\x0cIt is important for our purposes to emphasize that Senator Benton\xe2\x80\x99s remarks\nwere not addressed to what constitutes a \xe2\x80\x9cBill\xe2\x80\x9d for constitutional purposes.\nRather, he appears to have shared the Framers\xe2\x80\x99 concern that one house might tack\ntogether two unrelated matters in a single bill. Senator Benton\xe2\x80\x99s objection was a\ndifferent one: the tacking of unrelated matters together would prevent all \xe2\x80\x9cpart[s]\nof the legislative power [from acting] freely and fairly\xe2\x80\x94 neither the individual\nmembers of the two Houses, nor the Houses collectively, nor the President him\xc2\xad\nself. This would be destructive to all fair and wise legislation.\xe2\x80\x9d Id. at 796. Thus,\nSenator Benton considered tacking to be objectionable precisely because he be\xc2\xad\nlieved that the President\xe2\x80\x99s only recourse was to veto the whole, stating:\nIf the two Houses shall agree in the conjunction, the President may\nnot, and may see cause for a veto in one part, and not in the other;\nbut must disapprove all, in order to get rid of the objectionable\npart.\nId.\n\nConfrontation with the House and President was avoided when the Senate\ntabled Senator Benton\xe2\x80\x99s resolution as premature and the Compromise of 1850\npermitted the bill admitting California to be passed without the inclusion of un\xc2\xad\nrelated matters.45\nThe question arose again in 1856 when the Republican-controlled House at\xc2\xad\ntached to the army appropriations bill a rider prohibiting the employment of the\nUnited States military to execute the laws passed by the Kansas territorial legis\xc2\xad\nlature. See Cong. Globe, 34th Cong., 1st Sess. app. 1089 (1856). The debate fo\xc2\xad\ncused primarily on the validity of those laws, although some senators viewed the\nact of tacking on the rider as \xe2\x80\x9crevolutionary,\xe2\x80\x9d again citing parliamentary prece\xc2\xad\ndent. See e.g., id. at 1103 (Mr. Hunter). Other Senators viewed the rider as merely\na condition on the expenditure of funds appropriated by the bill. See e.g., id. at\n1107 (Mr. Seward). The Senate refused to agree to inclusion of the rider and the\nCongress adjourned without enacting appropriations for the army.\n4. The C ivil W ar P eriod \xe2\x80\x94By the time of the Civil War, however, substantive\nmeasures were frequently passed and presented to the President as \xe2\x80\x9criders\xe2\x80\x9d on\nappropriations bills. The Republicans\xe2\x80\x99 control of both Congress and the White\nHouse, as well as the necessity of quick action, may account for the commence\xc2\xad\nment of the practice. By 1867, however, Congress and the President were fre\xc2\xad\nquently at odds, primarily over Reconstruction. In that year, the Radical Repub\xc2\xad\nlicans in Congress passed an army appropriations bill that included a section\npurporting to remove the President\xe2\x80\x99s authority to control the Army and placing\n45\nAn earlier attempt to tack unrelated bills had occurred in 1820 when the Senate tacked its bill admitting Mis\xc2\xad\nsouri as a slave State to the bill admitting Maine After the House protested, a compromise was worked out, and\nthe bills were passed separately.\n\n159\n\n\x0cits management with General Grant. Perhaps because his opponents controlled\nmore than two-thirds of both houses, President Johnson signed the bill. In a spe\xc2\xad\ncial message accompanying the bill, Johnson stated that the substantive provi\xc2\xad\nsions o f the bill interfered with his constitutional functions as Commander-inChief. \xe2\x80\x9cThose provisions are out o f place in an appropriation act. I am compelled\nto defeat these necessary appropriations if I withhold my signature to the act.\nPressed by these considerations, I feel constrained to return the bill with my sig\xc2\xad\nnature, but to accompany it with my protest against the sections which I have in\xc2\xad\ndicated.\xe2\x80\x9d 6 James D. Richardson, M essages and Papers o f the Presidents 472\n(1898). This episode shows that neither Congress nor the President believed that\na bill could not contain both appropriations and substantive provisions, even\nthough the President recognized that this practice burdened his veto power.\nBy 1873, the practice apparently had become so common that President Grant\ncalled on Congress to propose to the States a constitutional amendment \xe2\x80\x9c[t]o au\xc2\xad\nthorize the Executive to approve of so much of any measure passing the two\nHouses of Congress as his judgment may dictate, without approving the whole,\nthe disapproved portion or portions to be subjected to the same rules as now.\xe2\x80\x9d 7\nId. at 242. Again, the fact that President Grant sought an amendment to establish\npresidential authority to exercise an item veto indicates that he did not believe\nthat the Constitution already provided such authority.\n5.\nThe H ayes Vetoes \xe2\x80\x94 The question arose again at the end of the forty-fifth\nCongress when the House, now controlled by Democrats, attempted to tack onto\ncertain appropriations a provision repealing part of an election law authorizing\nthe use of federal troops to \xe2\x80\x9ckeep the peace at the polls.\xe2\x80\x9d The Republican Senate\nrefused and the Congress adjourned without passing several requisite appropri\xc2\xad\nations. In March 1879, President Hayes called a special session of the forty-sixth\nCongress to reconsider the needed appropriations. Though the now Democratcontrolled Senate agreed to pass the desired rider as part of the army appropria\xc2\xad\ntions bill, considerable debate took place in both houses about the propriety of\ntacking substantive legislation to appropriations bills. The Democrats argued that\nit was the Republicans who initiated the practice during the Civil War and that\nthey should not now be heard to object to its use. The Republicans responded that\ntacking was not unconstitutional unless used to exact presidential approval of a\nmeasure that otherwise would be disapproved. According to the Republicans,\nduring their control o f Congress, riders were employed only for convenience and\nnot to coerce the President since President Lincoln did not object to the substan\xc2\xad\ntive measures attached and the Republicans had the votes in Congress to over\xc2\xad\nride any decision by President Johnson to veto such bills. Thus, the Republicans\nargued that President Hayes\xe2\x80\x99 objection to the substance of the rider and the De\xc2\xad\nm ocrats\xe2\x80\x99 inability to override his veto were the precise reasons for the unconsti\xc2\xad\ntutionality of the current attempt.\nDespite these arguments, the Democrats passed the army appropriations bill\nwith the rider. President Hayes vetoed the bill on the ground that it would estab\xc2\xad\nlish the principle that the House of Representatives \xe2\x80\x9chas the right to withhold ap\xc2\xad\n\n160\n\n\x0cpropriations upon which the existence of the Government may depend unless the\nSenate and the President shall give their assent to any legislation which the House\nmay see fit to attach to appropriation bills. To establish this principle is to make\na radical, dangerous, and unconstitutional change in the character of our institu\xc2\xad\ntions.\xe2\x80\x9d 7 Id.- at 530. President Hayes elaborated:\nThe Executive will no longer be what the Framers of the Consti\xc2\xad\ntution intended\xe2\x80\x94 an equal and independent branch of Govern\xc2\xad\nment. It is clearly the constitutional duty of the President to exer\xc2\xad\ncise his discretion and judgment upon all bills presented to him\nwithout constraint or duress from any other branch of the Gov\xc2\xad\nernment. To say that a majority of either or both of the Houses of\nCongress may insist upon the approval of a bill under the penalty\nof stopping all of the operations of the Government for want of\nthe necessary supplies is to deny to the Executive that share of the\nlegislative power which is plainly conferred by the second section\nof the seventh article of the Constitution. It strikes from the Con\xc2\xad\nstitution the qualified negative of the President.\n\nBelieving that this bill is a dangerous violation of the spirit and\nmeaning of the Constitution, I am compelled to return it to the\nHouse in which it originated without my approval.\n7 Id. at 531-32. The rider was then passed separately and vetoed on the merits\nby President Hayes on May 12, 1879.\nUndeterred, Congress tacked similar legislation to a general appropriations bill\nfor the legislative, executive, and judicial departments, which was then vetoed\non May 29, 1879. President Hayes stated:\nThe objections to the practice of tacking general legislation to ap\xc2\xad\npropriations bills, especially when the object is to deprive a coor\xc2\xad\ndinate branch of the Government of its right to the free exercise\nof its own discretion and judgment touching such general legisla\xc2\xad\ntion, were set forth in the special message in relation to [the army\nappropriation bill], which was returned to the House of Repre\xc2\xad\nsentatives on the 29th of last month. I regret that the objections\nwhich were then expressed to this method of legislation have not\nseemed to Congress of sufficient weight to dissuade from this re\xc2\xad\nnewed incorporation of general enactments in an appropriation\nbill, and that my constitutional duty in respect of the general leg\xc2\xad\nislation thus placed before me can not be discharged without seem\xc2\xad\ning to delay, however briefly, the necessary appropriations by\nCongress for the support of the Government.\n7 Id. at 537.\nTaking a slightly different approach, Congress next included in an appropria\xc2\xad\n\n161\n\n\x0ctions bill for the judiciary a provision prohibiting the use of appropriated funds\n\xe2\x80\x9cto pay any salaries, compensation, fees, or expenses\xe2\x80\x9d to enforce the election\nlaws to which it objected. 7 Id. at 542. On June 23,1879, President Hayes vetoed\nthe bill, maintaining that he would not concede \xe2\x80\x9cthe right of Congress to deprive\nthe Executive of that separate and independent discretion and judgment which\nthe Constitution confers and requires.\xe2\x80\x9d 7 Id. at 544.\nAgain, on June 30, 1879, President Hayes vetoed a bill making appropriations\nto pay fees of United States Marshals and their deputies since it would have for\xc2\xad\nbade the executive from making any contract or incurring any liability for the fu\xc2\xad\nture payment of money that was necessary to enforce certain provisions of the\nelection laws. The President maintained his original position: \xe2\x80\x9cThe object, man\xc2\xad\nifestly, is to place before the Executive this alternative: Either to allow necessary\nfunctions of the public service to be crippled or suspended for want of the ap\xc2\xad\npropriations required to keep them in operation, or to approve legislation which\nin official communications to Congress he has declared would be a violation of\nhis constitutional duty.\xe2\x80\x9d 7 Id. at 546-47.\nFinally, on May 4,1880, Congress again attempted to amend the election laws\nin \xe2\x80\x9cAn Act making appropriations to supply certain deficiencies in the appropri\xc2\xad\nations for the service of the Government for the fiscal year ending June 30,1880,\nand for other purposes.\xe2\x80\x9d 7 Id. at 591. President Hayes\xe2\x80\x99 veto message, in part, was\nas follows:\nThe necessity for these appropriations is so urgent and they have\nbeen already so long delayed that if the bill before me contained\nno permanent or general legislation unconnected with these ap\xc2\xad\npropriations it would receive my prompt approval.\n. . . [T]he dangerous practice of tacking upon appropriations\nbills general and permanent legislation . . . opens a wide door to\nhasty, inconsiderate, and sinister legislation. It invites attacks\nupon the independence and constitutional powers of the Execu\xc2\xad\ntive by providing an easy and effective way of constraining Ex\xc2\xad\necutive discretion. . . . The public welfare will be promoted in\nmany ways by a return to the early practice of the Government\nand to the true rule of legislation, which is that every measure\nshould stand upon its own merits.\n7 Id. at 591-92. Having only a bare majority in each house and realizing that the\nPresident would not yield, the Democrats abandoned their attempt and passed the\nnecessary appropriations bills free of substantive riders.\nSignificantly, although President Hayes characterized Congress\xe2\x80\x99 attempts to\ncoerce his approval of objectionable riders as \xe2\x80\x9ca violation of the spirit and mean\xc2\xad\ning of the Constitution,\xe2\x80\x9d his actions demonstrate his belief that his only recourse\nwas to veto the entire bill. The fact that President Hayes subsequently called for\n\n162\n\n\x0ca constitutional amendment to grant the President a line item veto confirms that\nthis was his view.46\n6. W illiam H oward Taft \xe2\x80\x94 Writing thirty-five years after the Hayes vetoes, for\xc2\xad\nmer President and Chief Justice William Howard Taft confirmed that President\nHayes followed the only course open to him under the Constitution. Discussing\nthe President and his role in the enactment of laws, Taft observed:\n[The President] has no power to veto parts of the bill and allow\nthe rest to become a law. He must accept it or reject it, and even\nhis rejection of it is not final unless he can find one more than onethird of one of the houses to sustain him in his veto.\nWilliam Howard Taft, The Presidency: Its Duties, Its Powers, Its Opportunities\nand Its Limitations 11 (1916). Taft, of course, was not known for taking a nig\xc2\xad\ngardly view of executive prerogatives; and that he did not believe that the Pres\xc2\xad\nident possesses an item veto suggests just how extraordinary the exercise of such\nauthority would be.\n7. W oodrow Wilson \xe2\x80\x94 On July 12, 1919, President Wilson vetoed an appro\xc2\xad\npriations bill because he objected to an unrelated provision of the bill that would\nhave repealed the act establishing daylight savings time. The appropriations were\nnecessary to fund the Department of Agriculture during the current fiscal year,\nwhich had already begun. In his message, Wilson states, \xe2\x80\x9cI realize, of course, the\ngrave inconvenience which may arise from the postponement of this legislation\nat this time, but feel obliged to withhold my signature because of the clause which\nprovides\xe2\x80\x9d for repeal of daylight savings time, a step Wilson believed \xe2\x80\x9cwould be\na very grave inconvenience to the country.\xe2\x80\x9d 58 Cong. Rec. 2492 (1919). Con\xc2\xad\ngress attempted, but failed, to override the President\xe2\x80\x99s veto, see 58 Cong. Rec.\n2551-52 (1919), and subsequently passed the appropriations bill free of the of\xc2\xad\nfending rider, see Pub. L. No. 66-22, 41 Stat. 234 (1919).\nSimilarly, in 1919, Wilson exercised the constitutional equivalent of an item\nveto when he vetoed an appropriations bill on the stated ground that he objected\nto \xe2\x80\x9ccertain items of the bill.\xe2\x80\x9d Specifically, Wilson objected to a section of the bill\nthat appropriated $6,000 for the rehabilitation and support of disabled veterans.\nAccording to Wilson, that section \xe2\x80\x9cwould probably . . . nullify the whole purpose\nof the [rehabilitation] act and render its administration practically impossible,\xe2\x80\x9d\nas \xe2\x80\x9ca sum approximating $8,000,000 will be required for the mere support of\nthese men.\xe2\x80\x9d 58 Cong. Rec. 2493 (1919). Congress subsequently amended the bill\nto appropriate $8,000,000 for the rehabilitation of veterans, and President W il\xc2\xad\nson signed it into law. See Pub. L. No. 66-21,41 Stat. 163 (1919).\nOn each of these occasions, President Wilson demonstrated that if Congress\n46\nOf course, the Constitution gives the President only a qualified veto, subject to override upon a vote of two\nthirds o f the members in each house. Thus, had the Democrats possessed larger majorities in Congress during their\nstruggle with President Hayes, they might have succeeded in overriding his vetoes.\n\n163\n\n\x0cis unable to override the President\xe2\x80\x99s veto, then the President\xe2\x80\x99s disapproval of the\nwhole bill may induce Congress to revise legislation according to the President\xe2\x80\x99s\nviews. In this way, the exercise of a general veto power may be as effective as\nan item veto.\n8. G erald F ord \xe2\x80\x94On October 14, 1974, President Ford vetoed a continuing\nappropriations bill because of his opposition to \xe2\x80\x9can amendment requiring an im\xc2\xad\nmediate cut-off of all military assistance to Turkey.\xe2\x80\x9d 10 Weekly Comp. Pres.\nDoc. 1282, 1283 (Oct. 14,1974). Although Congress failed to override the Pres\xc2\xad\nident\xe2\x80\x99s veto, see 120 Cong. Rec. 35,609 (1974), it quickly passed another ap\xc2\xad\npropriations bill containing a similar provision. On October 17, 1974, President\nFord again disapproved the bill, and again Congress failed to override his veto.\nFinally, Congress adopted a compromise provision, and the President signed the\nbill. Although still troubled by the provision, President Ford observed in his sign\xc2\xad\ning statement: \xe2\x80\x9cAs a result of my vetoes of two earlier versions of this continu\xc2\xad\ning resolution, the Congress has eased the most troublesome of the earlier re\xc2\xad\nstrictions.\xe2\x80\x9d 10 Weekly Comp. Pres. Doc. 1321 (Oct. 18, 1974).\n9. R on ald Reagan \xe2\x80\x94 President Reagan has recently had occasion to object to\nthe practice of combining unrelated matters in a single bill. In 1986, he signed\nH.R. 5363 even though it contained an unrelated and unconstitutional provision\nthat he would have vetoed if it had been presented separately. In his signing state\xc2\xad\nment, the President explained:\nAlthough I am signing this bill, I am very troubled by the in\xc2\xad\nclusion of an unrelated, last- minute amendment to the Bankruptcy\nCode. The Congress\xe2\x80\x99 decision to link such provisions to otherwise\ndesirable and useful legislation is but one example of the highly\nobjectionable practice of combining unrelated legislation in a sin\xc2\xad\ngle bill. This practice, at a minimum, violates the spirit of the Con\xc2\xad\nstitution by restricting the President\xe2\x80\x99s veto power.\n22 Weekly Comp. Pres. Doc. 1567 (Nov. 14, 1986).\nPresident Reagan has also been presented with numerous appropriations bills\nwhich contained objectionable items and riders. Last year\xe2\x80\x99s continuing resolu\xc2\xad\ntion presents many examples. For example, on March 10, 1988, President Rea\xc2\xad\ngan asked Congress to consider repealing or rescinding a 46-page list of \xe2\x80\x9cwaste\xc2\xad\nful, unnecessary, or low priority spending projects that were included in the\nfull-year fiscal 1988 Continuing Resolution,\xe2\x80\x9d stating that \xe2\x80\x9c[t]hese are projects\nthat, if I were able to exercise line item veto authority, I would delete.\xe2\x80\x9d Presi\xc2\xad\ndent\xe2\x80\x99s Message to Congress on Revisions to the 1988 Fiscal Year Appropria\xc2\xad\ntions, 24 Weekly Comp. Pres. Doc. 326-27 (Mar. 10, 1988). In his most recent\nState o f the Union Address, President Reagan called on Congress to reform its\nbudget process and avoid presenting him with enormous appropriations bills\nfilled with numerous riders, sometimes just hours before the government is to\n164\n\n\x0crun out of money. In fact, President Reagan declared that if Congress presented\nhim with a bill of that sort this year, he would not sign it. 24 Weekly Comp. Pres.\nDoc. 87 (Jan. 25, 1988).\nIII. Alternative Arguments: Analogies to Judicial Review and\nImpoundment\nSome commentators have suggested that item veto authority derives support\nfrom the Supreme Court\xe2\x80\x99s exercise of judicial review or the President\xe2\x80\x99s author\xc2\xad\nity to refuse to spend, or \xe2\x80\x9cimpound,\xe2\x80\x9d funds.47 We discuss each argument in turn.\nA. Judicial Review\nThe fundamental flaw in the judicial review analogy is that it relates to an en\xc2\xad\ntirely different kind of constitutional action which, unlike the item veto, has ab\xc2\xad\nsolutely nothing to do with the lawmaking process. The veto power is a consti\xc2\xad\ntutionally prescribed step in enacting a bill into law. In contrast, judicial review\nis a power which neither derives from any lawmaking authority nor which can\nhave any possible effect on whether something becomes law. Rather, it concerns\nonly a separate and distinct power of the judiciary to determine whether a duly\nenacted law already in effect comports with constitutional norms and can be sub\xc2\xad\nsequently executed or enforced. Accordingly, the judicial power to interpret ex\xc2\xad\nisting laws says nothing about the President\xe2\x80\x99s ability to make law.\nMoreover, closer examination of the argument reveals additional, subsidiary\nproblems. In its entirety, Professor McDonald\xe2\x80\x99s argument on judicial review ap\xc2\xad\npears to be that because the Framers considered vesting the veto power jointly in\nthe President and the Supreme Court, and because when it first exercised judi\xc2\xad\ncial review in Marbury v. Madison , the Supreme Court struck down unconstitu\xc2\xad\ntional portions of the law without invalidating the whole, the President\xe2\x80\x99s veto\npower must also permit him to strike out objectionable portions of a bill without\nvetoing the whole. The Supreme Court\xe2\x80\x99s invalidation of a duly enacted law\xe2\x80\x94 or,\nin certain circumstances, parts of the law\xe2\x80\x94 is but a concomitant of the fact that\nthe Court may disturb congressional enactments only to the extent they conflict\nwith the Constitution. While this action provides support for the view that the\nPresident may refuse to enforce the unconstitutional portion of a law while exe\xc2\xad\ncuting the remainder, it hardly suggests that the President may enhance his veto\nauthority by striking down, on policy or constitutional grounds, particular pro\xc2\xad\nvisions of a bill presented. Conversely, if Professor McDonald\xe2\x80\x99s analogy to ju \xc2\xad\ndicial review were accepted, then this would suggest that the President may ex\xc2\xad\nercise his veto power only on constitutional, and not policy, grounds.\nMoreover, defining an item veto by reference to judicial review would permit\nCongress to circumvent that power. Once the Supreme Court decides that a pro\xc2\xad\n47\nSee Stephen Glazier, Line-Item Veto Hides Under an Alias, Wall St. J., Mar. 18, 1988, at 26; Forrest Mc\xc2\xad\nDonald, Lme-ltem Veto Older Than Constitution, Wall St. J , Mar. 7, 1988, at 16.\n\n165\n\n\x0cvision o f a statute is unconstitutional, it does not necessarily invalidate only that\nprovision of the statute. Rather, it will uphold the remainder of the statute only\nupon finding that the offending provision is severable from the rest. See Alaska\nAirlines v. Brock, 480 U.S. 678 (1987). To make this finding, the Court must in\xc2\xad\nquire into whether Congress would have passed the statute absent the offending\nprovision. If the Court concluded that Congress would not have, then the law\nmust be struck down in its entirety. Id. at 684-85. Thus, if the analogy between\njudicial review and the veto is complete, then Congress could easily evade the\nitem veto thus recognized by including a non-severability provision in every bill\npresented to the President. In that event, the President would be forced to choose\nbetween approving or vetoing the bill as a whole\xe2\x80\x94 the same choice he has now.\nB. Impoundment\n\nThe commentators also suggest that the President\xe2\x80\x99s historical exercise of im\xc2\xad\npoundment authority was unchecked until enactment of the Impoundment Con\xc2\xad\ntrol Act of 1974, and, therefore, that past Presidents\xe2\x80\x99 failure to exercise item veto\nauthority is explained, not by the absence of such authority, but by their reliance\non the somewhat narrower, but m ore effective, power of impoundment.48 This\nargument, however, provides no affirmative support for inherent item veto au\xc2\xad\nthority. Rather, at most, it partially rebuts any negative inference to be drawn\nfrom the fact that no President has ever asserted or exercised inherent item veto\npower. Indeed, since impoundment relates only to appropriations, the availabil\xc2\xad\nity o f impoundment does not explain why no President in 200 years has exer\xc2\xad\ncised an item veto with respect to non-appropriations matters.\nMoreover, to the extent that the commentators are suggesting that the Presi\xc2\xad\ndent has inherent, constitutional power to impound funds, the weight of author\xc2\xad\nity is against such a broad power in the face of an express congressional direc\xc2\xad\ntive to spend 49 This Office has long held that the \xe2\x80\x9cexistence of such a broad\npower is supported by neither reason nor precedent.\xe2\x80\x9d50 Virtually all commenta\xc2\xad\ntors have reached the same conclusion, without reference to their views as to the\nscope o f executive power.51\n48 T he impoundment pow er is narrower than item veto authority because the former has no application beyond\nappropriations. T he impoundment power is m ore effective because it is not subject to override.\n49 As discussed below, the President may in som e instances decline to spend funds appropriated by Congress in\nthe absence o f an express directive to spend. In such cases, however, the President is not exercising an inherent im\xc2\xad\npoundm ent power, but rather his discretion to direct the manner o f executing a law in the absence of a specific con*\ngressional mandate.\n50 Memorandum from W illiam H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re Presi\xc2\xad\ndential Authority to Im pound Funds Appropriatedfor Assistance to Federally Impacted Schools at 8 (Dec. 1, 1969)\n(\xe2\x80\x9cRehnquist M emorandum1\'); see also Memorandum for Clark MacGregor, Counsel to the President, from Ralph\nE. Erickson, Acting Assistant Attorney General, Office o f Legal Counsel, Re Constitutional Power o f Congress\nto C om pel Spending o f Im pounded Funds (Jan. 7, 1972); Memorandum for the Attorney General, from Ralph W.\nTarr, A cting A ssistant Attorney General, Office o f Legal Counsel, R e \' Legal Authority to Take Action to Forestall\na D efault {Oct. 21, 1985)\n51 See, e.g., Cathy S. Neuren, Addressing the Resurgence o f Presidential Budgetmaking Initiative, 63 Tex. L.\nRev. 693 (1984); Tim othy R. Hamer, Presidential Power to Im pound Appropriations fo r D efense and Foreign Re\xc2\xad\nlations, 5 Harv. J. Law & Pub. Pol. 131 (1982); Note, Impoundment o f Funds, 86 Harv. L. Rev. 1505 (1973); David\nA. M artin, Protecting the Fisc: Executive Impoundm ent and Congressional Power, 82 Yale L.J. 1636 (1973).\n\n166\n\n\x0cThere is no textual source in the Constitution for any inherent authority to im\xc2\xad\npound. It has been argued that the President has such authority because the spe\xc2\xad\ncific decision whether or not to spend appropriated funds constitutes the execu\xc2\xad\ntion of the laws, and Article II, Section 1 of the Constitution vests the \xe2\x80\x9cexecutive\nPower\xe2\x80\x9d in the President alone. The execution of any law, however, is by defini\xc2\xad\ntion an executive function, and it seems an \xe2\x80\x9canomalous proposition\xe2\x80\x9d that because\nthe President is charged with the execution of the laws he may also disregard the\ndirection of Congress and decline to execute them.52 Similarly, reliance upon the\nPresident\xe2\x80\x99s obligation to \xe2\x80\x9ctake Care that the Laws be faithfully executed,\xe2\x80\x9d Arti\xc2\xad\ncle II, Section 3, to give the President the authority to impound funds in order to\nprotect the national fisc, creates the anomalous result that the President would be\ndeclining to execute the laws under the claim of faithfully executing them.53\nMoreover, if accepted, arguments in favor of an inherent impoundment power,\ncarried to their logical conclusion, would render congressional directions to spend\nmerely advisory.\nIn addition, because an inherent impoundment power, as indicated above,\nwould not be subject to the limitations on the veto power contained in Article I,\nSection 7, an impoundment would in effect be a \xe2\x80\x9csuperveto\xe2\x80\x9d with respect to all\nappropriations measures. The inconsistency between such an impoundment\npower and the textual limits on the veto power further suggests that no inherent\nimpoundment power can be discovered in the Constitution.54\nNor has an inherent power to impound been recognized by the courts. Although\nwe are aware of no Supreme Court cases directly on point, Kendall v. United\nStates, 37 U.S. 524 (1838), can be read to support the proposition that the exec\xc2\xad\nutive\xe2\x80\x99s duty faithfully to execute the laws requires it to spend funds at the direc\xc2\xad\ntion of Congress. Further, one lower court, in a decision arising out of the Nixon\nimpoundment controversy, held that at least with respect to the programs before\nit, the President had no inherent constitutional authority to impound funds in the\nface of a congressional directive to spend. National Council o f Community M en\xc2\xad\ntal Health Ctrs., Inc. v. Weinberger, 361 F. Supp. 897, 900-02 (D.D.C. 1973),\nrev\xe2\x80\x99d sub nom. National Council o f Community Health Ctrs. v. Matthews, 546\nF.2d 1003 (D.C. Cir. 1976), cert, denied, 431 U.S. 954 (1977).55 See also Inter\xc2\xad\nnational Union, United Auto, Aerospace and Agric. Implement Workers o f Am.\nv. Donovan, 746 F.2d 855, 863 (D.C. Cir. 1984) (noting that several courts had\n\nrejected either explicitly or implicitly the existence of \xe2\x80\x9cinherent constitutional\npower to decline to spend in the face of a clear statutory intent and directive to\ndo so\xe2\x80\x9d), cert, denied, 474 U.S. 825 (1985); State Highway Comm n v. Volpe, 479\n\n52 See Rehnquist Memorandum, supra note 51, at 11; Martin, supra note 51, at 1640\n53 Rehnquist Memorandum, supra note 50, at 11.\n54 Note, Impoundment o f Funds, supra note 51, at 1514.\n55 In several other cases, although the issue was not always clearly presented, the courts implicitly found that\nthe President has no inherent impoundment authority. E g , Train v City o f N ew York, 420 U.S. 35 (1975); C ity o f\nL o sA ng elesv Adams, 556 F.2d 40 (D C. Cir 1977); Sioux Valley Empire Electric A ss\'n v. Butz, 504 F.2d 168 (8th\nCir. 1974).\n\n167\n\n\x0cF.2d 1099, 1106 (8th Cir. 1973) (concession by government that congressional\ndirective to spend must be followed).56\nW e recognize, of course, that Presidents have historically impounded funds,\nstarting at least with Thomas Jefferson.57 Although we have not independently\nreviewed the circumstances surrounding each such incident, it appears that of\nthose impoundments not based upon the President\xe2\x80\x99s foreign policy powers, most\noccurred under statutes that did not contain a directive to spend, thereby permit\xc2\xad\nting the President to impound in the face of congressional silence. C f Youngstown\nSheet & Tube Co. v. Sawyer, 343 U.S. 579,637 (1952) (Jackson, J., concurring).58\nDetermining whether a statute contains or reflects a congressional directive to\nspend is a complex question of statutory construction, to be determined on a caseby-case basis.59\nV. Recommendation\nIn this section we outline the ways in which the President may use his exist\xc2\xad\ning authority in the lawmaking process to achieve some of the effects of item veto\nauthority. The President has many tools at his disposal. The President may pro\xc2\xad\npose legislation to Congress; he may threaten to veto objectionable proposals\nprior to passage; he may veto legislation and, in effect, offer amendments in stat\xc2\xad\ning his objections to Congress, which must be entered at large on the legislative\njournals of Congress; and he may call Congress into special session on extraor\xc2\xad\n\n56 Although the President has no general inherent authority to impound funds, we believe that there may be in\xc2\xad\nstances in which he may impound even in the face o f a congressional mandate to spend For example, Congress\ndoes not have the pow er to compel the spending o f funds for an unconstitutional purpose or in violation o f specific\nprovisions o f the Constitution. Accordingly, the President may impound funds where to spend such funds would\ninfringe upon his constitutional responsibilities as Commander-in-Chief or his duties in the area o f foreign affairs.\nM oreover, when a congressional directive to spend conflicts with another congressional directive not to\nspend\xe2\x80\x94 as, for example, where Congress has established a debt ceiling that would be violated if the expenditure\nwere made\xe2\x80\x94 the President must determine which statute controls in accordance with ordinary principles of statu\xc2\xad\ntory construction and, accordingly, in making that determination may conclude that appropriated funds not be spent.\nSee M emorandum for the Attorney General, from Ralph W. Tarr, Acting Assistant Attorney General, Office of Le\xc2\xad\ngal Counsel, Re Legal Authority to Take action to Forestall a Default (Oct. 21, 1985)\n57 See Martin, supra note 50, at 1644\n5%S e ea lso Note, supra note 51, at 1507-08, 1510. As noted above, however, in such a case the President is not\nexercising an inherent impoundment power, but his discretion in the execution of the laws in the absence o f a spe\xc2\xad\ncific congressional mandate\n59 See, e g\xe2\x80\x9e 42 Op. A tt\xe2\x80\x99y Gen. 347 (1967), M artin, supra note 51, at 1645-53.\nThe adoption o f the Impoundment Control A ct o f 1974, however, may make it doubtful that the President\nretains some residual authority to impound funds when a statute does not mandate spending.\nThe Act can be view ed as dividing all appropnations m easures into two classes: those that explicitly require\nthat all appropriated funds be spent, to which the Act by its own terms does not apply and over which the President\nhas no residual impoundment authority for the reasons set forth above; and all other appropriations measures, to\nwhich the Act does apply and over which the President only has such impoundment authority as the Act grants, to\nbe exercised in accordance with the Act\xe2\x80\x99s procedures.\nUnder this interpretation, the President w ould m effect never possess any residual authority to impound funds\nbased upon the provisions o f a specific statute. W e are informed by OMB that it interprets the Impoundment C on\xc2\xad\ntrol Act in that way, and has not claimed that the President has residual authonty to impound in those instances\nwhere a given statute does not on its face mandate spending\n\n168\n\n\x0cdinary occasions. Together, these powers place the President in a substantial po\xc2\xad\nsition in the lawmaking process. Just as each house may use its power to shape\nthe form and contents of legislation, so too can the President, subject only to over\xc2\xad\nride.\nAs is now the case, the President should propose desired legislation to Con\xc2\xad\ngress. But his role should not end here. In the past, Congress has engaged in the\nhighly objectionable practices of combining an unmanageable number of appro\xc2\xad\npriations bills into one measure, of tacking unrelated substantive riders to such\nbills, and of combining unrelated substantive provisions in a single bill. All of\nthese practices impede the proper functioning of the President\xe2\x80\x99s veto authority.\nTherefore, he should use that very authority to induce the Congress to abandon\nor modify these practices. As noted above, President Reagan has already informed\nthe Congress that he will not sign an omnibus appropriations bill for the coming\nfiscal year, instructing it to pass thirteen separate appropriations bills as provided\nby the Budget Reform Act. In addition, the President should state publicly that\nhe will not consider, and therefore will veto, any appropriations bills not pre\xc2\xad\nsented to him within a specified time before the government is to run out of money,\ncalling to the public\xe2\x80\x99s attention whenever Congress fails to do so. If Congress ar\xc2\xad\ngues that circumstances make it impossible to comply, then the President should\nsimply require Congress to simultaneously present him with a separate short-term\nextension of existing appropriations to give him an equivalent period to review\nthe bill. Similarly, the President should inform Congress that if it engages in its\nnow-routine practice of presenting the President with an omnibus appropriations\nbill upon adjourning, then he will not only veto the measure, but also exercise\nhis constitutional authority to call Congress back into special session.\nMoreover, the President could go a long way towards eliminating the second\nand third practices by stating publicly that he will veto any appropriations bill\ncontaining substantive riders or any substantive bill containing obviously unre\xc2\xad\nlated matters. By adhering to these conditions, the President would provide a\nstrong incentive for Congress to act in an orderly and responsible fashion. For\nexample, last year, after Congress failed to override the President\xe2\x80\x99s veto of a bill\nto codify the Fairness Doctrine, several members of Congress sought to evade\nthe President\xe2\x80\x99s veto by attaching the bill as a rider to the Continuing Resolution.\nPresident Reagan announced publically that if the rider was included, he would\nveto the entire Continuing Resolution. See Tom Kenworthy, President Threat\xc2\xad\nens To Veto Money Bills: Contra Aid, Fairness Doctrine Disputed, Wash. Post,\nDec. 19, 1987, at A10. Congress subsequently removed the rider prior to pre\xc2\xad\nsentment.\nApart from these formal requirements, the President may use his authority in\nthe legislative process to have a greater influence on the contents of legislation.\nFor example, if Congress presents the President with an appropriations bill con\xc2\xad\ntaining wasteful expenditures, then he should veto the entire measure and iden\xc2\xad\ntify the objectionable items in his message to Congress, stating that he will ap\xc2\xad\nprove the bill upon the removal of these items. In this way, the president will\nfocus public attention and scrutiny on those items, and shift responsibility for\n\n169\n\n\x0cfailure to enact the remainder of the bill on Congress\xe2\x80\x99 decision to include them.\nMoreover, even if the President\xe2\x80\x99s veto is ultimately overridden, his actions will\nhave placed full responsibility for enactment of the objectionable provisions with\nCongress. Thus, in the case of the last Continuing Resolution, the President might\nhave vetoed it solely on the ground that he objected to the last-minute inclusion\nof funding for French schools and of a provision designed to divest Rupert Mur\xc2\xad\ndoch of particular communications holdings. Given the public disapproval of the\ninclusion of such provisions, this course could only have enhanced the Presi\xc2\xad\ndent\xe2\x80\x99s authority. Essentially the same course could be followed with respect to\nobjectionable, albeit related, substantive provisions of a bill.\nAlthough some may argue that assuming such an active role in the lawmaking\nprocess improperly intrudes upon the legislative prerogatives of Congress, we\nbelieve that the Constitution gave the President these powers to enable him fully\nto participate in the legislative process, and to defend that role. Indeed, through\xc2\xad\nout history, chief executives have used their authority in the lawmaking process\nprecisely in these ways and with these effects. Hence, it may be premature to sug\xc2\xad\ngest that the President\xe2\x80\x99s existing authority is so inadequate as to suggest inher\xc2\xad\nent item veto authority before the President has fully exercised his existing au\xc2\xad\nthority.\nConclusion\nFor the foregoing reasons, we conclude that the recent claims that the Consti\xc2\xad\ntution grants the President inherent item veto authority are not well-founded. On\nthe other hand, our review suggests that vigorous use of the President\xe2\x80\x99s general\nveto power may alleviate much o f the difficulties that give rise to calls for en\xc2\xad\nhanced authority.\nC h a rle s\n\nJ. C o o p e r\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n170\n\n\x0c'