# Amicus Curiae Brief — Clinton v. City of New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0164%3A11 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1998 - **Citation:** 524 U.S. 417 ## Text © No. 97-1374 gn the Supreme Court of the Wnited States OCTOBER TERM, 1997 WILLIAM J. CLINTON, ET AL., APPELLANTS, v. Ciry OF NEW YORK, ET AL. ROBERT E. RUBIN, APPELLANT, v. SNAKE RIVER POTATO GROWERS, INC., ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRIEF OF THE UNITED STATES SENATE AS AMICUS CURIAE FOR REVERSAL THOMAS B. GRIFFITH, (Counsel of Record), Senate Legal Counsel, MORGAN J. FRANKEL, Deputy Senate Legal Counsel, STEVEN F. HUEFNER, A. CHRISTOPHER BRYANT, Assistant Senate Legal Counsel, Office of Senate Legal Counsel, 642 Hart Senate Office Building, Washington, D.C. 20510. (202) 224-4435 Counsel for the United States Senate MARCH 1998. BEST AVAILABLE COPY TABLE OF CONTENTS NI OE Rd SET ae ae oe ESI SS A ERS eS a ar Argument: I. The Line Item Veto Act Builds on a Long History of Delegations of Discretion Over Taxing And I ediitcchdiiociidinasindectanstnrnidbintebeccestienninapinereertseces A. Since 1789, Congress Has Given the Execu- tive Discretion Over the Expenditure of Ap- a RA a Sac RI: PO B. Grants to the Executive of Discretionary Au- thority Over Revenue Measures Also Date to the Early Nineteenth Century .................... C. Since 1905, Congress Has Periodically Given the Executive Broader Spending Discretion to Help Achieve Congress’s Budget Goals ...... D. On Occasion, the Executive Branch Has Sought to Exercise Greater Spending Con- trol Than Congress Had Granted .................. E. Congress Legislated Firm Controls on Execu- tive Spending Discretion in the Impound- I TT ID centitetncsebebleisecsseracsesceetsenneeses F. For Over a Decade, Congress Has Given the Executive Particular Authority Over Spend- ing to Help Achieve Deficit Reduction ........... II. The Line Item Veto Act Is a Constitutional Exercise of the Taxing and Spending Power ........................+ A. The Line Item Veto Act Respects Article I Lawmaking Requirements. ......................00000+ B. The Line Item Veto Act Assigns Delegable Responsibility to the President ...................... C. The Line Item Veto Act Comports With the Doctrine Against Undue Delegation .............. RE TE ed RO Fell AED eas) ee ho SAD (1D) 12 14 Il TABLE OF AUTHORITIES Cases: Meat Cutters v. Connally, 337 PF. Supp. 737 (D.D.C. 1971) (three-judge court).......... 29, 30 American Power & Light Co. v. SEC, 329 U.S. 90 COED ‘cncoseeenmisemsicinetidinenedtencenetinnaeampeneenenee, 25 Bowsher v. Synar, 478 U.S. 714 (1986)............:cceeee 15, 20 The Brig Aurora, 11 U.S. (7 Cranch) 382 Ce etanciitntiinentneuitiimntintaeenenanatamenaeenti 3, 23, 28 Brotherhood of Railroad Trainmen v. Baltimore €@ O.R.R., 331 U.S. 519 (1947) .0.....cccecccccessreseeereeeeenes 18 Cincinnati Soap Co. v. United States, 301 U.S. 308 ST ili isiinsi nin eninenincenttinneianedpnedeenmentinedinennezeenee 21, 22 City of New Haven v. United States, 809 F.2d 900 EE RE ee Oe 15 Davis v. United States, 411 U.S. 233 (1973) ............, 24 Eastlake v. Forest City Enters., 426 U.S. 668 (1976) .. 29 Field v. Clark, 143 U.S. 649 (1892)..............0+. 3, 20, 23, 28 INS v. Chadha, 462 U.S. 919 (1983) ........ 2, 14, 17, 18, 19, 20 INS v. National Center for Immigrants’ Rights, 502 SE SND uiicrncsnnsrmemeidinntiebtaitnnliniemipetodstennes 18 Industrial Union Dep’t v. American Petroleum Inst., GD Be ae CE, poceteveprtnncetrecenteeencnnecnmete snr 13 J.W. Hampton, Jr., & Co. v. United States, 276 U.S. irttintttntienteniniternsncmemtiiecagen 3, 20, 23, 25 La Abra Silver Mining Co. v. United States, 175 FI CSO ee 19 Lincoln v. Vigil, 508 U.S. 182 (1993) ..........cccceeeeee. 22 Local 2677, A.F.G.E. v. Phillips, 358 F. Supp. 60 aaa lid ireaiceatraeaietiinteatinateenemmartiatinnten 14 Loving v. United States, 517 U.S. 748, 116 S. Ct. ATT a 21, 25, 30 Milk Industry Foundation v. Glickman, 132 F.3d Ee ls TE, CIE \eicrenicornentatnaattasenmnnenetnginseediibis 21 Minnesota v. Weinberger, 359 F. Supp. 789 (D. Minn. SETUEEED vocusdeicovmnentaaeeanceiqueetpednercinammennetnauneheemenrtes 14 Mistretta v. United States, 488 US. 361 TT iiinciciliiemniccndamentirianiieinnieistiinenitiaenate 3, 25, 30 National Cable Television Ass’n v. United States, 415 TE ecisiesasintaineninenesnctnbianiaientenbnngteemateenses 13 OPM v. Richmond, 496 U.S. 414 (1990) .............. 21 Pealo v. Farmers Home Admin., 361 F. Supp. 1320 0! EEE See 14 Cases—Continued Pennsylvania v. Lynn, 501 F.2d 848 (D.C. Cir. 1974) 14 Pennsylvania v. Weinberger, 367 F. Supp. 1378 RS EE RO 14 Raines v. Byrd, 117 S. Ct. 2312 (1997) 200......ccccccccceees 28 Sibbach v. Wilson & Co., 312 U.S. 1 (1941) ................ 24 Skinner v. Mid-America Pipeline Co., 490 U.S. 212 ee iaiietisnceetstusnastectedtisinecnststctianteliscssmmeieniesl 2, 19, 20, 21 State Highway Comm’n v. Volpe, 479 F.2d 1099 (8th CEE SERRE RD bE TR oat) ES ES aa 14 Synar v. United States, 626 F. Supp. 1374 (D.D.C.) (three-judge court), aff'd on other grounds sub nom. Bowsher v. Synar, 478 US. 714 EE ee Lee | Se 21, 24, 29 Train v. City of New York, 420 U.S. 35 (1975) ............ 13 United States v. Curtiss-Wright Export Corp., 299 EES FE A a INE ES EG + SEL 22 Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825) ... 30 Yakus v. United States, 321 U.S. 414 (1944)............. 25, 30 Constitution and Statutes: U.S. Const.: SS UIT OLD Ln ESE SD 20 Sli ES I Me i 3, 21 Act of Sept. 29, 1789, ch. 23, 1 Stat. 95 00000. Act of Mar. 26, 1790, ch. 4, Act of Feb. 11, 1791, ch. 6, Act of Feb. 28, 1803, ch. 11 cee! os had ry 3s a oh & 5 4 1828, ch. Act of May 31, 1830, ch. 219, re ees eet Ea >. eee Act of July 2, i EE Act of Aug. 26, 1842, ch , Act of Feb. 12, 1868, ch. 8, 15 Stat. 35.00.0000... an g ! AT 484, 33 Stat. 1214 ................ SL a ch. 212, 47 Stat. 1489 Sa 1 Act of July 13, 1943, ch. 236, 57 Stat. 560"... Act of Sept. 6, 1950, ch. 896, 64 Stat. 595 ................... 9-10 on BP | § SCognsnwoovagaanwaaanqa IV Constitution and Statutes—Continued Pub. L. No. 89-554, 80 Stat. 378 (1966) ...............0000+ il Pub. L. No. 91-47, 83 Stat. 49 (1969) ..............cccecceeees ll Pub. L. No. 91-305, 84 Stat. 376 (1970) .............0c000+ 11 Pub. L. No. 100-119, 101 Stat. 754 (1987) .................. 15 Pub. L. No. 105-159, 112 Stat. 19 (1998) ................0.. 17 Balanced Budget Act of 1997, Pub. L. No. 105-33, BEE GOB. TER cececccvessecccseocoseecepencneccoranpoccessensensananpesagens 16 Balanced Budget and Emergency Deficit Control Act Balanced Budget and Emergency Deficit Control Re- affirmation Act of 1987, Pub. L. No. 100~-119, tit. Hf a arenes 15 — eee 1921, ch. 18, 42 Stat. coceanansnnnnssennidusumsmactenenapetapumnmequaptiapacqneneqnaapptpeesannInaans 8 Dedina Uahaaseaan id at tale Pub. L. No. 101- 508, tit. XIII, 104 Stat. 1388-573 ...0.........ccccccceeeeneees 15-16 Department of Defense Appropriations Act, 1998, Pub. L. No. 105-56, 111 Stat. 1203 (1997) .............. 5 Departments of Labor, Health and Human Services, and Education Appropriations Act, 1998, Pub. L. No. 105-78, 111 Stat. 1467 (1997) .........cccccccocceeeeeeees 5 Economic Stabilization Act of 1970, Pub. L. No. 91- oo 8 GG Oe 30 Emergency Relief Appropriation Act of 1937, ch. 401, GG aE See 22 Flexible Tariff Act of 1922, ch. 356, 42 Stat. 858 ....... 7 Impoundment Control Act of 1974, Pub. L. No. 93- 344, tit. X, 88 Stat. 332, codified as amended at 2 U.S.C. §§ 681 ef seg. (1994) ........cccccccceececeeereeeeenenees 14 08 GRR REEED ceceesierqretresseccseenenpmipeuinenens 14 ROCA LI LDA OD ie 14 0 TR SR ane RR NT el 14 Line Item Veto Act, Pub. L. No. 104~130, 110 Stat. 1200 (1996), codified at 2 U.S.C. §§691 et seq. Caran, 1B SED. cccecrncerctpereerenepersetsstsceeeengassen 1 2 U.S.C. §691(a) (Supp. II 1996)................ccccc0e0 18, 27 2 U.S.C. §691(aX2) (Supp. II 1996) ...................0 27 2 U.S.C. §691(aXB) (Supp. II 1996) ....................... 26 2 U.S.C. §691a(b) (Supp. I] 1996) ..............ccccceeee 27 2 U.S.C. §691a(cX2) (Supp. II 1996) ..................... 20 2 U.S.C. §691c (Supp. I] 1996) ..............cccccccneseeeeee 26 2 U.S.C. §691d (Supp. I] 1996) ..............cccccccecceeeeee 20 2 U.S.C. §691e(4\A) (Supp. II 1996) .................... 27 Vv and Statutes—Continued erties > xe. © No. 104-130, Seeeh, Peat. 1900 (2808), codified at 2 U.S.C. 2US. *3691e(5) (Sepp. It 1996) pt lL 27 2 USC. §691e(8) (Supp. IT 1996)... 27 2 U.S.C. §691 note (Supp. IT 1996) 0000. 28 McKinley Tariff Act of 1890, ch. 1244, 26 Stat. 567 ... 7 Reorganization Act of 1939, ch. 36, 53 Stat. 561 ........ 11 Reorganization Act of 1945, ch. 582, 59 Stat. 613 ...... 11 Reorganization Act of 1949, ch. 226, 63 Stat. 203 ...... 11 Revenue and Expenditure Control Act of 1968, Pub L. No. 90-364, 82 Stat. 251 .........ccccccccccccccseseeseeeeeeene 11 Taxpayer Relief Act of 1997, Pub. L. No. 105-34, gt «al iM ll EE Te ES Se E88 5 Ed 16 ESAS SoA Ae SESE 1 REI a 1 it 15 5 U.S.C. § 905, historical and revision notes (1994) ... ll gp Tali SER Mato 24 EI 24 Materials: H.R. 78, 102d Cong. (1991) ........cccccccsccesssesseessseesseeseeee 16 H.R. 2164, 102d Cong. (1991) 20.0.0... ccccccccccccceseeseeceneee 16 H.R. 2436, 105th Cong. (1997) 2... ccccccccceeceeeeeeeeee 17 H.R. 2444, 105th Cong. (1997) 0.0.0... cccccccceeceeeeeeereeee 17 HJ. Res. 4, 103d Cong. (1993) .00.0..........cccccccceseeesesenens 16 H.J. Res. 6, 104th Cong. (1995) 200.0... ccccccccccseeeeeeeee 16 ef )__ 16 S. 206, 104th Cong. (1905) ...............cccccccceccececcecescescerees 16 S. 238, 104th Cong. (1996) ................ccccccececcesececeeseceseees 16 S. 1144, 105th Comg. (1997) 2... ccccccccceceseeceseeeenenees 17 S. 1157, 106th Cong. (1997) .........cccesccescoescseecsnecsneeseees 17 S. Res. 152, 105th Cong. (1997) ooo... cccceceeessecsveeseee 1 H.R. Conf. Rep. No. 104-491 (1996)... 26, 27 H.R. Rep. No. 81-1797 (1950) 2.0.0.0... occccccccccceececeeeneee 10 3 Annals of Cong. 889-90 (1793) .00.0........cccccccceeecceeeeeee 22 3 Annals of Cong. 938 (1793) ..0.0.........ccccccccccccesese coneeene 5-6 13 Annals of Cong. 14 (18038) 200.0.........cccccccccccseeseeseeeeees 5 14 Annals of Cong. 13-14 (1804) .o...0......ccccccecsseesseeeseee 5 Cong. Globe, 36th Cong., 2d Sess. 1177 (1861) ........... 12 77 Cong. Rec. 5707-08 (1933) ............cccccccecccceececeeneeeeees 11 89 Cong. Rec. 10362 (1943) ............cccccccccecceseeseseeseeeseeee 9 115 Cong. Rec. 21277-78 (1969) .o.....c.cccccccecccersseesseesvee 11 143 Cong. Rec. $12422 (daily ed. Nov. 9, 1997) .......... 1 Vil ” Page Executive Materials—Continued Congressional Materials—Continued Fed. Reg. 62683-86 (1997) .........cccccccccccccccseeceeeeeeeeees 17 Executive ee of Appropriated roan 62 Fed. Reg. 64130 (1997) ............cccccccscceccssessessseeeeseesees 17 ety ay Nanianyona mS 1 Messages and Papers of the Presidents (James D Cong., 1st Sess. (1971)............---------e-seeseesssee 8, 12, 13, 22 1933 Pub. te ee ‘ ~ First Supplemental National Defense Appropriation SG a a 9 Bill for 1944: Hearings on H.R. 3598 Before a Subcomm. of the Senate Comm. on Appropriations, 78th Cong., Ist Sess. 739 (1943) .............cccccccceereneenee x9 H.R. Doc. No. 82-182 (1951) ..............ccccceeceneereeesennenenees 10 Executive Materials: 3 Stat. app. 1, procl. 3—7 (1818-21) ..........cccccsccceneneneee OO | TS eee OE CE RE en JS F SS £4 EE OD en OY a Se i «| een BB GD, GIs Be CD cccncccscccccnsscecetncccnsecoesecessecesestes SS ee D Sncrcccneennensnccenseneseeeentneesecgeeree PEED prascrcqncsssneersnegstesesssnemntn O_O ae SRD cerrctincritiimmemamagememees ES ee Reorg. Plan No. 1 of 1953, reprinted in 67 Stat. SS ll NST sss sss ss SSS Ss ss 62 Fed. Reg. 43263 (1997) ........ccccsccccvssses-sevesssssveseresseees 27 62 Fed. Reg. 43267 (1997) ........c...---ss-- Oa Aad acvath 27 62 Fed. Reg. 52452-69 (1997) .......cccc.- ccvccsssssveeeeresnvee 17 62 Fed. Reg. 53704—10 (1997) ........ccccccscccvesssssssveeeeesvvees 17 62 Fed. Reg. 54564-68 (1997) ........cccccc.ccccessssssvvveessnsvees 17 62 Fed. Reg. 59766-G9 (1997) ..........ccc.csscvvessssssvereeeenee 17 62 Fed. Reg. 59769-71 (1997) ........cccccccccccvssssssssesesessvees 17 62 Fed. Reg. 62682-83 (1997) ........ccccccscscccsssssvvecseeesnvees 17 of the Senate Comm. on Appropriations, 78th Cong., Ist Sess. 739 (1943) o.o....cccccccccccssssessssseeessssveee 8-9 21 Op. Att'y Gen. 391 (1896) o......ccccccccsssssesssssseeessessee 6 21 Op. Att'y Gem. 414 (1896) ooo... eccccccccsssssesenssueeseesseee 6 22 Op. Att’y Gen. 295 (1899) .....o..cccccccccsecssssveesssseceneen 6 42 Op. Att'y Gem. 347 (1967) o...cccccccccccccscsssseesssseeseessee 10 atioe Impoundment of Appropricted Punds: Heer U.S. Bureau of the Budget, Circulars, “First Budget Regulations,” Budget Circular No. 4 (July 1, 1921) 8 Bureau of the Census, U.S. Dep’t of Commerce, His- torical Statistics of the United States: Colonial Times to 1970, H.R. Doc. No. 93-78 (1975) ............. 7, 11 Miscellaneous: Henry P. Seidemann, The Preparation of the Na- tional Budget, 113 Annals Am. Acad. Pol. & Soc. SS OS LE 8 Joseph Story, 2 Commentaries on the Constitution of the United States (Fred B. Rothman & Co. 1991) GEREINUD? concesnecisussensostpsinesetnnopinenstenstesssenbestunetontiocssestosstee 21 Clinton’s Line-Item Vetoes Show Light Touch, CQ a 17 BRIEF OF THE UNITED STATES SENATE AS AMICUS CURIAE FOR REVERSAL In 1996, Congress enacted the Line Item Veto Act, Pub. L. No. 104-130, 110 Stat. 1200 (1996) (2 U.S.C. §§ 691 et seq. (Supp. II 1996)), as an extension of the Impoundment Control Act of 1974, which established procedures for the President to defer or rescind previously enacted appro- priations. Despite its name, the Line Item Veto Act does not give the President authority to veto items in proposed legislation. Rather, through 2004, the Act enhances the President’s authority to rescind from enacted laws certain items of spending and taxation, subject to Congress’s ulti- mate control. The district court agreed with appellees that this authority allows the President to repeal laws without action by Congress, violating Article I and the separation of powers. J.S. App. at 22a—3la. This appear- ance as amicus curiae presents the Senate’s view that the Act comports with the Constitution’s lawmaking proc- esses and the separation of powers doctrine against undue Executive delegations. ' I. Congress’s delegation to the President of authority to cancel items of spending and limited tax benefits builds upon a long history of delegation of control over raising and spending federal funds. From the first appropriation laws enacted under the Constitution, which set ceilings on Executive spending, Congress has repeatedly appro- priated funds without mandating that all available funds 'Title 2 U.S.C. §288e authorizes the Senate to direct its Legal Counsel to appear as amicus curiae in its name “in any court of the United States . . . in which the powers and responsibilities of Con- gress under the Constitution. . . are placed in issue.” See S. Res. 152, 105th Cong. (1997), 143 Cong. Rec. 812422 (daily ed. Nov. 9, 1997) (di- recting Senate appearance in this case). Permission to appear is “of right” and may be denied only for untimeliness. 2 U.S.C. § 288/(a). The Senate expresses no view on the standing issues in this appeal. (1) 2 be spent. Similarly, Congress has often imposed taxes while giving the Executive limited discretion to repeal, suspend, or discontinue them. In addition, Congress has given the Executive broad authority to transfer, reduce, or withhold spending for purposes of economy and man- agement and for fiscal or policy reasons. When disputes have arisen over whether the Executive could withhold particular funds, all three branches have understood that the issue of how much discretion the Executive has over the federal budget is a legislative question subject to Congress’s determination. In the Line Item Veto Act, Congress determined, after two decades of persistent budget deficits, to give the President temporary authority to cancel specific deficit-increasing items. II. The cancellation authority exercised in these cases does not give the President lawmaking power contrary to Article I, for his sole authority under the Line Item Veto Act remains to execute the laws in fulfillment of Congress’s deficit-reduction policy. The Act fully comports with Article I’s bicameralism and presentment require- ments, as both the Act itself and all laws subject to the Act will have been passed by both Houses and signed by the President. The President’s approval of a measure sub- ject to the Act, in accordance with the Presentment Clause, completes the lawmaking process, for at that mo- ment all three legislative actors have then agreed to make the measure’s spending or revenue items permis- sive. Subsequent Executive cancellations do not effect re- peals in violation of Article I, but implement a duly en- acted statute in conformance with Congress’s will. See INS v. Chadha, 462 U.S. 919, 953 n.16 (1983). The constitutional question presented by the Act is the Article II question whether Congress has vested undue discretion in the President. This Court has established that delegation of the taxing and spending power is sub- ject to no greater constitutional scrutiny than other dele- gations. Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 223 (1989). The district court erroneously concluded that the cancellation authority was nondelegable because 3 the President may make permanent changes to spending and tax provisions. Yet the Court has specifically upheld delegations of irreversible authority to alter the force of revenue laws since 1813. See Field v. Clark, 143 U.S. 649, 682-83 (1892) (citing The Brig Aurora, 11 U.S. (7 Cranch) 382, 388 (1813)). A variety of prior delegations have like- wise authorized the President permanently to nullify spending provisions. The Act’s cancellation authority respects Article II’s limits on delegation because Congress has prescribed defi- cit reduction as “‘an intelligible principle,’” Mistretta v. United States, 488 U.S. 361, 372 (1989) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)), to guide the President’s discretion. Further, Con- gress has meaningfully constrained the President’s discre- tion through a panoply of limitations and requirements easily more detailed than those accompanying previously sustained delegations. I. THE LINE ITEM VETO ACT BUILDS ON A LONG HISTORY OF DELEGATIONS OF DISCRETION OVER TAXING AND SPENDING Congress’s delegation of authority to cancel taxing and spending builds on two centuries of delegation of discre- tionary control over revenues and appropriations. A. Since 1789, Congress Has Given the Execu- tive Discretion Over the Expenditure of Appropriated Funds “No Money shall be drawn from the Treas-ry, but in Consequence of Appropriations made by Law.” Art. I, §9, cl. 7. From its initial exercise of the spending power, Con- gress has acted upon its understanding that, while the Appropriations Clause prohibits federal expenditures in the absence of a congressional appropriation, appropria- tions need not compel expenditure of the appropriated funds. Instead, Congress may make an appropriation per- missive. 4 Congress’s first appropriation law, funding the original Executive departments, delegated significant discretion not to spend appropriated funds, by appropriating: A sum not mg wy hee hundred and sixteen thou- sand dollars for defraying the expenses of the civil list, under the late and pone pos ee [and] a sum not exceeding one thirty-seven thousand dollars for dehaying he @ pet as of the department of war. Act of Sept. 29, 1789, ch. 23, §1, 1 Stat. 95 (emphasis added). The next year Congress funded much of the gov- ernment under similarly flexible appropriations “not ex- ceeding” specified amounts, in one case granting the President unbridled discretion “to draw from the treasury a sum not exceeding ten thousand dollars, for the purpose of defraying the contingent charges of government.” Act of Mar. 26, 1790, ch. 4, §§ 1, 3, 1 Stat. 104, 105. That Con- gress intended these laws to confer discretion to spend less than the sum appropriated is evident by contrasting them with a contemporaneous provision directing that “payment of the following sums. . . is hereby authorized and intended to be made.” Id., §5, 1 Stat. 105 (emphasis added). By appropriating funds “not exceeding” a fixed amount, early Congresses manifested their constitutional authority to give the Executive discretion to spend funds within whatever range Congress set by law.? In the early 1800s, as the Nation’s needs rapidly ex- panded, Congress delegated more flexibility over spend- ing. In 1803, Congress appropriated $50,000 for the Presi- dent to build “not exceeding fifteen gun boats .. . for such purposes as in his opinion the public service may re- 2In the third annual appropriation law, Congress not only continued to give the Executive discretion by erecting spending ceilings for much of the government, Act of Feb. 11, 1791, ch. 6, §1, 1 Stat. 190, but also confirmed that it intended the Executive to use that discretion, by validating the Executive’s past expenditure of less than the appro- priated levels: sums appropriated were to be drawn in part from “such surpluses as may remain in the treasury, after satisfying the purposes for which appropriations were made, by the [two prior appropriation acts).” Id. 5 quire.” Act of Feb. 28, 1803, ch. 11, §3, 2 Stat. 206. Presi- dent Jefferson determined that the “favorable and peace- able turn of affairs on the Mississippi” brought about by the Louisiana Purchase and reopening of the Port of New Orleans had mitigated need for the vessels, and he re- served the funds until the following year. 13 Annals of Cong. 14 (1803); see 14 Annals of Cong. 13—14 (1804); see also 1 Messages and Papers of the Presidents 382-83, 405, 421 (James D. Richardson, ed., 1897) (Jefferson returning other unused funds). Congress also early began delegating significant spend- ing discretion by authorizing transfers between appro- priation accounts. In 1809, Congress authorized the Presi- dent, “if in his opinion necessary for the public service,” to transfer appropriations within a department during a congressional recess. Act of Mar. 3, 1809, ch. 28, §1, 2 Stat. 535, 535-36. In 1820, Congress broadened this au- thorization to give the President discretion to transfer ap- propriations of the War and Navy Departments at any time. As early as 1793, Treasury Secretary Alexander Hamil- ton’s execution of an appropriation had prompted a con- gressional debate whether, in James Madison’s words, the Executive had an inherent constitutional “discretion to be implied in the trust of executing the laws” to “apply the 3See Act of May 1, 1820, ch. 52, §5, 3 Stat. 567, 568. Congress con- tinued to allow transfers of appropriations until 1868 (see Act of June 30, 1834, ch. 171, 4 Stat. 742; Act of July 2, 1836, ch. 268, §2, 5 Stat. 77, 78-79; Act of Aug. 26, 1842, ch. 202, §23, 5 Stat. 523, 533), whe it repealed all such authority and provided that “no money appro- priated for one purpose shall hereafter be used for any other purpose.” Act of Feb. 12, 1868, ch. 8, §2, 15 Stat. 35, 36. This century, Congress has again permitted appropriation transfers. See, e.g., Act of June 30, 1932, ch. 314, §317, 47 Stat. 382, 411 (authorizing transfer of up to 12% of appropriation within department); Department of Defense Ap- propriations Act, 1998, Pub. L. No. 105-56, § 8005, 111 Stat. 1203, 1220 (1997) (authorizing conditional transfer of up to $2 billion); De- partments of Labor, Health and Human Services, and Education Ap- propriations Act, 1998, Pub. L. No. 105~78, § 304, 111 Stat. 1467, 1505 (1997) (authorizing conditional transfer). 6 excess of one fund to the aid of a deficient one,” or wheth- er such action depended on “special permission of the law” appropriating the funds. 3 Annals of Cong. 938 (1793). Notably lacking from this debate was any sugges- tion that the Constitution forbade giving the President “special permission” to shift appropriations. Recognition of Congress’s authority to delegate discre- tion over spending persisted through the 19th century. In 1896, for example, Congress authorized the Secretary of War to expend “not exceeding fifty thousand dollars, or so much thereof as may be necessary,” to improve the Mis- sissippi River channel and bank. Act of June 3, 1896, ch. 314, 29 Stat. 202, 229. Attorney General Harmon advised the Secretary “that the permissive form was here used with the deliberate intention of leaving to your judgment the question whether any of the sum named should be ex- pended; and if so, how much.” 21 Op. Att’y Gen. 391, 392 (1896). The Attorney General instructed the Secretary “to proceed with the expenditure authorized if, in your judg- ment, an improvement of that condition may fairly be ex- pected to result. Otherwise you are left at liberty to leave the appropriation unexpended.” ¢ B. Grants to the Executive of Discretionary Authority Over Revenue Measures Also Date to the Early Nineteenth Century Congressional delegations of authority to nullify tax provisions have a similarly long historical pedigree. As early as 1815, Congress authorized the President to re- peal various import duty provisions, “[s]uch repeal to take effect in favour of any foreign nation, whenever the Presi- dent of the United States shall be satisfied that the dis- criminating or countervailing duties of such foreign na- tion, so far as they operate to the disadvantage of the United States, have been abolished.” Act of Mar. 3, 1815, ch. 77, 3 Stat. 224. Using this authority President Monroe 4Id.; see also 21 Op. Att’y Gen. 414, 415~16 (1896) (same); compare 22 Op. Att’y Gen. 295, 297 (1899) (construing another appropriation as mandatory). 7 issued five proclamations declaring that the statutory du- ties on imports from a particular nation “are repealed.” 3 Stat. app. 1, procl. 3-7 (1818-21). In 1824 and 1828, Congress authorized the President to “suspend[] and discontinue[ ]” statutory duties on foreign vessels, provided he was satisfied that the foreign nation was not imposing discriminating duties on U.S. vessels.‘ In 1830, Congress again enacted a law directing that stat- utory provisions imposing duties on foreign vessels “shall be repealed: Provided, That the President” found that the foreign nation’s duties had been abolished. Act of May 31, 1830, ch. 219, §2, 4 Stat. 425, 425. As customs duties then generated more than 85% of all revenue, see Bureau of the Census, U.S. Dep’t of Commerce, Historical Statis- tics of the United States: Colonial Times to 1970, H.R. Doc. No. 93-78, pt. 2, at 1106, tables Y 352-53 (1975), Congress had given the President substantial control over the Nation’s revenue laws. Congress has also long delegated authority to impose taxes. In 1890, Congress identified commodities for duty- free import, but gave the President “the power and... duty to suspend, by proclamation. . . for such time as he shall deem just” the duty-free provisions on imports from any country imposing “reciprocally unequal and unrea- sonable” duties. McKinley Tariff Act of 1890, ch. 1244, §3, 26 Stat. 567, 612. Similar delegations continued this century.® 5 Act of Jan. 7, 1824, ch. 4, §4, 4 Stat. 2, 3; Act of May 24, 1828, ch. 111, 4 Stat. 308. Pursuant to these and similar delegations, eleven Presidents issued proclamations suspending duties for many countries over sixty years. See 4 Stat. app. 815 (1828) (Adams); 4 Stat. app. 814, 814-15, 816 (1829-30) (Jackson); 11 Stat. app. 781, 782 (1835-36) (Jackson); 9 Stat. app. 1001 (1847) (Polk); 9 Stat. app. 1004 (1850) (Fillmore); 11 Stat. app. 795 (1858) (Buchanan); 13 Stat. app. 739 (1863) (Lincoln); 14 Stat. app. 818, 819 (1866-67) (Johnson); 16 Stat. app. 1127, 1130, 1137 (1869-71) (Grant); 17 Stat. app. 954, 956, 957 (1871-72) (Grant); 21 Stat. 800 (1880) (Hayes); 23 Stat. 835 (1884) (Arthur); 24 Stat. 1030 (1886) (Cleveland). SE.g., Act of Aug. 5, 1909, ch. 6, §2, 36 Stat. 11, 82-83; Flexible Tar- iff Act of 1922, ch. 356, §315(a), 42 Stat. 858, 941-42. 8 C. Since 1905, Congress Has Periodically Given the Executive Broader Spending Discretion to Help Achieve Congress’s Budget Goals As the growth of the federal budget led to increased governmental responsibility for managing the economy through fiscal policy, Congress began giving the Execu- tive broader spending discretion, to help achieve Congress’s overall budget goals. Congress first granted general authority over spending to facilitate adherence to mandated spending limits. As early as 1870, Congress had sought to enforce appropriation ceilings through the Antideficiency Act, which made it unlawful “to expend in any one fiscal year any sum in excess of appropriations.” Act of July 12, 1870, ch. 251, §7, 16 Stat. 230, 251. Three decades later, Congress recognized that sound manage- ment required Executive control over the pace of spend- ing. Accordingly, Congress amended the Antideficiency Act to authorize agencies regularly to apportion appro- priations, to avoid the need for deficiency appropriations late in the year. Act of Mar. 3, 1905, ch. 1484, §4, 33 Stat. 1214, 1257-58. This across-the-board measure granted Executive agencies a measure of control through- out the budget. Fifteen years later, the first Director of the Bureau of the Budget, acting under the new Budget and Accounting Act of 1921, ch. 18, 42 Stat. 20, directed departments to treat appropriations as spending ceilings and to establish “General Reserves” by saving unnecessary expenditures. See U.S. Bureau of the Budget, Circulars, “First Budget Regulations,” Budget Circular No. 4 (July 1, 1921). Presi- dent Harding affirmed that Congress intended appropria- tions as an upper spending limit, and that to effect sav- ings a “reasonable reserve” should be set aside from each appropriation. See Henry P. Seidemann, The Preparation of the National Budget, 113 Annals Am. Acad. Pol. & Soc. Sci. 40, 43 (1924). Similarly, President Roosevelt explained during World War II that agencies should use “good management and the practice of commonsense economy” to create reserves, while recognizing that Congress had delegated no general authority to withhold funds as “a substitute for item or blanket veto power.”’ Congress met the need for Execu- tive flexibility by delegating selective authority to with- hold funds. For example, Congress authorized withhold- ing highway funds if “the War Production Board shall certify that the use of critical material for additional highway construction would impede the conduct of the war.” Act of July 13, 1943, ch. 236, §9, 57 Stat. 560, 563. Then-Senator Harry Truman observed, When the Congress a riates funds it gives the quemutive teenth an aathastty to incur ob tions. Certainly none of us hold that we give a mandate to expend the funds a riated. We expect the funds to be used only ailes costed. and not in ex- cess of the amount appropriated, to carry out some phase of law. 89 Cong. Rec. 10362 (1943). At the end of the War, then- President Truman followed this principle in declining to spend funds appropriated for veterans hospitals until vet- erans had returned, so the hospitals could be built where they settled.* In 1950 Congress again amended the Antideficiency Act to enlarge Executive fiscal control. Congress provided: “In apportioning any appropriation, reserves may be estab- lished to provide for contingencies, or to effect savings whenever savings are made possible by or through changes in requirements, greater efficiency of operations, or other developments subsequent to the [appropriation].” Act of Sept. 6, 1950, ch. 896, § 1211, 64 Stat. 595, 765— 7 Letter from President Roosevelt to Senator Russell (Aug. 18, 1942), reprinted in part in First Supplemental National Defense Appropria- tion Bill for 1944: Hearings on H.R. 3598 Before a Subcomm. of the Senate Comm. on Appropriations, 78th Cong., 1st Sess. 739 (1943). *See Executive Impoundment of Appropriated Funds: Hearings Be- fore the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 92d Cong., Ist Sess. 84—85 (1971) (testimony of William J. Driver, former Administrator of Veterans’ Affairs); 1945 Pub. Pa- pers 238. 10 66. The Executive was to recommend rescission of re- serves not required “to carry out the purposes of the ap- propriation.” Jd., 64 Stat. 766. In proposing this revision, the House Appropriations Committee stated that Congress “decides the maximum amounts which must be appropriated for . . . various ac- tivities” and that “[a]ppropriation of a given amount for a particular activity constitutes only a ceiling upon the amount which should be expended for that activity.” H.R. Rep. No. 81-1797, at 9 (1950). The Executive was respon- sible “for rendering all necessary service with the small- est amount possible within the ceiling.” Jd. Acting Attor- ney General Ramsey Clark later called this description “(t]he classic exposition” of a key appropriations law prin- ciple: “an appropriation act in itself does not constitute a mandate to spend.” 42 Op. Att’y Gen. 347, 350 (1967). The 1950 appropriation law also authorized Executive control of spending to serve Congress’s broad policy goals: Congress directed the Executive to use the Antideficiency Act’s reserve authority to reduce total spending by at least $550 million below appropriations, so long as the re- ductions did not “impair{] national defense.” Act of Sept. 6, 1950, ch. 896, § 1214, 64 Stat. 768. In compliance, President Truman reserved and recommended rescinding funds for 150 separate items. H.R. Doc. No. 82—182, at 3— 8 (1951). As a yet stronger tool for reducing expenditures, on a number of occasions Congress has given the Executive ex- press authority to override Congress’s spending decisions and cancel appropriations. Congress’s first such delega- tion came through broad authority to reorganize the Ex- ecutive branch. In 1933, Congress gave the President lati- tude, subject only to a report-and-wait requirement, per- manently to abolish, consolidate, or transfer Executive agencies and functions, with appropriations savings to be_ “impounded and returned to the Treasury.” Act of Mar. 3, 1933, ch. 212, §16, 47 Stat. 1489, 1517-19. President Roosevelt canceled more than $25 million of appropria- tions, roughly one-half of one percent of total federal 11 spending. See 1933 Pub. Papers 222-25; 77 Cong. Rec. 5707-08 (1933); Bureau of the Census, supra p. 7, at 1123, table Y 590. In 1939, in order “to reduce substan- tially government expenditures” in response to “continued national deficits beginning in 1931,” Congress delegated to the President similar reorganization authority (subject to legislative veto). Reorganization Act of 1939, ch. 36, § 1, 53 Stat. 561, 561. Over the next forty years, Presi- dents used similar authority? to create agencies such as the Department of Health, Education, and Welfare and the Environmental Protection Agency, using other agen- cies’ appropriations. '°® During the 1960s, when Vietnam War expenditures and domestic needs created a fiscal crisis, Congress dele- gated even greater spending control to the President, in the form of annual spending ceilings. Beginning with fis- cal year 1969, Congress enacted statutory limits requiring the Executive to hold total spending and new obligations below appropriated levels by $6 billion and $10 billion, re- spectively. Revenue and Expenditure Control Act of 1968, Pub. L. No. 90-364, §§ 202-203, 82 Stat. 251, 271-72. To achieve the reductions, Congress authorized the President unilaterally to reduce or eliminate spending items as he saw fit, excepting only four categories (the Vietnam War, debt service, veterans’ and social security benefits). Jd. Congress provided that the amounts the President re- served “are hereby rescinded.” Jd., § 203(b), 82 Stat. 272. The President saved billions of dollars with this author- ity."! °E.g., Reorganization Act of 1945, ch. 582, 59 Stat. 613; Reorganiza- tion Act of 1949, ch. 226, 63 Stat. 203; Pub. L. No. 89-554, 80 Stat. 378, 394-98 (1966); see 5 U.S.C. §905, historical and revision notes. '0See Reorg. Plan No. 1 of 1953, reprinted in 67 Stat. 631-32; Reorg. Plan No. 3 of 1970, reprinted in 84 Stat. 2086-89. '' See 115 Cong. Rec. 21277-—78 (1969). Congress gave the President similar authority the two succeeding years. Pub. L. No. 91-47, § 401, 83 Stat. 49, 82-83 (1969); Pub. L. No. 91-305, §§ 401, 501, 84 Stat. 376, 405—07 (1970). 12 D. On Occasion, the Executive Branch Has Sought to Exercise Greater Spending Con- trol Than Congress Had Granted Congress’s refusal to give the President similar discre- tion after 1971 set the stage for conflict over the Presi- dent’s authority to decline to spend appropriated funds. In addressing these conflicts, all three branches mani- fested their understanding that the issue of how much discretion the Executive has over expenditures is a legis- lative matter for Congress to determine in exercising its appropriation power. Episodic disputes over Executive non-spending had sur- faced from the mid-1800s. In 1861, Senator Stephen Douglas had objected to President Buchanan’s failure to implement an appropriation to build a custom-house in Springfield, Illinois, complaining that “a hostile Execu- tive” had “refused to obey the law.” Cong. Globe, 36th Cong., 2d Sess. 1177 (1861). President Grant threatened in 1876 to disregard provisions in a rivers and harbors appropriation law, declaring that he would refuse to spend money appropriated “for works of purely private or local interest.” 9 Messages and Papers of the Presidents 4331. He justified his refusal by asserting that these ap- propriations were not obligatory. Id. The issue of presidential authority over appropriations came to a head under President Nixon. In 1969, his Ad- ministration considered withholding educational grants on the theory that the President had inherent constitu- tional authority to refuse to spend appropriated funds. The Justice Department’s Office of Legal Counsel rejected this theory: “(W]e conclude that the President does not have a constitutional right to impound [ ] funds notwith- standing a Congressional direction that they be spent.” '? '2Memorandum of Ass’t Att'y Gen. William H. Rehnquist, Re Presi- dential Authority to Impound Funds Appropriated for Assistance to Federally Impacted Schools (Dec. 1, 1969), reprinted in Executive Im- poundment of Appropriated Funds: Hearings Before the Subcomm. o1: Separation of Powers of the Senate Comm. on the Judiciary, 92d Cong., ist Sess. 279, 282 (1971) (hereinafter OLC Memo.]. eae = 13 While agreeing with Acting Attorney General Clark “that an appropriation act permits but does not require the ex- ecutive branch to spend funds,” the Office of Legal Coun- sel opined that © is basically a rule of construction,” subservient to Congress’s will for each appropriation: Whether the Executive has discretion over a particular spending measure is an issue solely of congressional in- tent, and the President has whatever discretion Congress has given. Id. In the years following, Congress determined not to give the President the discretion it had given in prior annual spending ceilings. Nevertheless, the Nixon Administra- tion embarked on an ambitious course of spending cuts, impounding funds for a wide variety of programs, not- withstanding the Office of Legal Counsel opinion. As a re- sult, in the early 1970s courts in scores of cases were re- quired to decide whether the Executive had the authority it asserted not to spend appropriated funds. To resolve these cases, the courts uniformly looked to Congress’s intent, upholding Executive refusals to spend if Congress had conferred such discretion, but otherwise invalidating i nts and ordering funds released. In Train v. City of New York, 420 U.S. 35 (1975), this Court interpreted a statutory mandate that sums author- ized for sewage facilities “shall be allotted,” id. at 42, to require the Executive to release all funds. Rejecting the Executive’s claim that Congress had legislated “a maxi- mum, but no minimum,” id. at 43, the Court made no suggestion that, had Congress delegated such “limitless power to withhold funds from allotment and obligation,” id. at 46, this would have been constitutionally improper. Nor did the Court need to construe this delegation “nar- rowly to avoid constitutional problems.” National Cable Television Ass’n v. United States, 415 U.S. 336, 342 (1974); see Industrial Union Dep’t v. American Petroleum Inst., 448 U.S. 607, 646 (1980) (opinion of Stevens, J.). Rather, the Court simply interpreted the statute to con- clude that Congress had conferred no such discretion. Train, 420 U.S. at 42—49. Lower courts similarly resolved 14 scores of cases without a hint that such delegations pre- sented any issue other than statutory construction, con- sistently recognizing that the Executive had as much or as little authority to withhold appropriated funds as Con- gress had granted. '° E. Congress Legislated Firm Controls on Ex- ecutive Spending Discretion in the Im- poundment Control Act The frequency with which the Nixon Administration withheld funds that Congress had intended be spent led Congress to enact the Impoundment Control Act of 1974 (“ICA”), Pub. L. No. 93-344, tit. X, 88 Stat. 332 (codified as amended at 2 U.S.C. §§681-688), to ensure that the Executive would withhold only appropriations intended as permissive. Congress sought to control two forms of im- poundments: deferrals, or spending delays during a fiscal year, and rescissions, or permanent withholdings of ap- propriated funds. Jd., §§ 1011-1013, 88 Stat. 333-35. Con- gress authorized Executive deferrals, upon reporting to Congress and subject to legislative veto, id., § 1013, 88 Stat. 334-35, but permitted the President only to propose rescissions, to be effective only if Congress affirmatively approved, using expedited procedures, id., § 1017, 88 Stat. 337-39. After invalidation of the legislative veto, INS uv. Chadha, 462 U.S. 919 (1983), the Executive began to use deferrals aggressively on the view that severance of the legislative veto left the President with expanded deferral authority, subject to disapproval only through enactment '3 See, e.g., State Highway Comm'n v. Volpe, 479 F.2d 1099, 1109— i4 (8th Cir. 1973); Pennsylvania v. Weinberger, 367 F. Supp. 1378, 1381-82 (D.D.C. 1973); Pealo v. Farmers Home Admin., 361 F. Supp. 1320, 1323-24 (D.D.C. 1973); Minnesota v. Weinberger, 359 F. Supp. 789, 791 (D. Minn. 1973); Local 2677, A.F.G.E. v. Phillips, 358 F. Supp. 60, 75-79 (D.D.C. 1973). In the one case in which the D.C. Cir- cuit found that Congress had authorized the Executive to withhold ap- propriated funds, the court evidenced no concern that such discretion raised a constitutional issue. Pennsylvania v. Lynn, 501 F.2d 848 (D.C. Cir. 1974). 15 of a new law. The District of Columbia Circuit rejected this view and struck the entire deferral mechanism, find- ing the legislative veto inseverable. City of New Haven v. United States, 809 F.2d 900 (D.C. Cir. 1987). In light of the loss of control by legislative veto, Congress amended the ICA to limit the Executive’s deferral authority to pur- poses permitted by the Antideficiency Act. Pub. L. No. 100-119, § 206, 101 Stat. 754, 785-86 (1987). The amend- ed ICA allowed deferrals only “to provide for contin- gencies,” “to achieve savings made possible by or through changes in requirements or greater efficiency of oper- ations,” or as otherwise provided by law, and permitted the Executive only to propose rescissions. 2 U.S.C. § 684(b). F. For Over a Decade, Congress Has Given the Executive Particular Authority Over Spending to Help Achieve Deficit Reduc- tion Ballooning federal deficits led Congress to fashion fur- ther tools to control spending. In 1985, Congress enacted the Gramm-Rudman-Hollings Act, authorizing the Presi- dent to issue a “sequestration” order canceling, pro rata, appropriations for a broad range of programs, to meet mandated deficit targets. Balanced Budget and Emer- gency Deficit Control Act of 1985, Pub. L. No. 99-177, tit. II, §252, 99 Stat. 1038, 1072-78. After this Court invali- dated the Comptroller General’s role in sequestration, Bowsher v. Synar, 478 U.S. 714 (1986), Congress amend- ed the Act to delegate the sequestration function solely to the Executive. Balanced Budget and Emergency Deficit Control Reaffirmation Act of 1987, Pub. L. No. 100-119, tit. I, §102, 101 Stat. 754, 754—75. When the deficit tar- gets proved unattainable, Congress again amended the Act to replace the fixed targets with prospective annual spending limits on appropriations legislation, and budget- neutrality requirements for other legislation, enforced again through Executive sequestration. Budget Enforce- 16 ment Act of 1990, Pub. L. No. 101-508, tit. XIII, §§ 13101, 13111, 104 Stat. 1388-573, 1388-574 to 1388-607. As deficits persisted, Congress considered augmenting the existing rescission and sequestration regimens. One proposal, called “expedited rescission,” was to amend the ICA to streamline the process for Congress to approve proposed rescissions. See, e.g., H.R. 2164, 102d Cong. (1991). An alternative, termed “enhanced rescission,” was to make Executive rescissions automatic in defined cir- cumstances, subject to congressional disapproval. See, e.g., S. 206, 104th Cong. (1995); H.R. 78, 102d Cong. (1991). Other proposals included amending the Constitu- tion to give the President a line-item veto, see, e.g., H.J. Res. 6, 104th Cong. (1995); H.J. Res. 4, 103d Cong. (1993), and adopting congressional procedures for pre- senting each spending provision to the President for ap- proval or veto as a separate bill, see, e.g., S. 137, 104th Cong. (1995); S. 238, 104th Cong. (1995). While these lat- ter, more sweeping proposals did not gain a majority, support for amending the ICA grew, until in the Line Item Veto Act Congress gave the President “enhanced re- scission,” or cancellation, authority. The President first exercised authority under the Act on August 11, 1997, when he canceled three provisions, including the twe now at issue: section 4722(c) of the Bal- anced Budget Act of 1997, Pub. L. No. 105—33, 111 Stat. 251, 515, an item of “new direct spending” that would have increased federal Medicaid funding to New York; and section 968 of the Taxpayer Relief Act of 1997, Pub. L. No. 105-34, 111 Stat. 788, 895—96, a “limited tax bene- fit” that would have allowed owners of certain agricul- tural processors to defer recognition of gain on the sale of stock. The Taxpayer Relief Act specifically identified both section 968 and another tax provision canceled the same day as “limited tax benefits” subject to cancellation under the Line Item Veto Act. See id., §1701, 111 Stat. 1099, 1101. 17 Since August, the President used the Act to cancel sev- enty-eight annual appropriations items,'* accounting for almost $500 million in federal spending.'5 Congress re- sponded under the Act by enacting one law (over a Presi- dential veto) disapproving the cancellation of thirty-eight military construction spending items. '!® Il. THE LINE ITEM VETO ACT IS A CONSTITU- TIONAL EXERCISE OF THE TAXING AND SPENDING POWER Congress’s grant of limited authority to cancel the ef- fect of discrete spending and revenue provisions is con- sistent with the lawmaking requirements of Article I and the constitutional separation of powers, as expressed in the doctrine against undue delegation. A. The Line Item Veto Act Respects Article I Lawmaking Requirements “Explicit and unambiguous provisions of the Constitu- tion prescribe and define the respective functions of the Congress and of the Executive in the legislative process.” Chadha, 462 U.S. at 945. Article I, section 7, prescribes the two fundamental requisites for legislative action: “bi- cameral passage followed by presentment to the Presi- dent.” Id. at 954-55. These requirements “serve essential constitutional functions” and “represent[] the Framers’ decision that the legislative power of the Federal Govern- ment be exercised in accord with a single, finely wrought and exhaustively considered, procedure.” Jd. at 951. '462 Fed. Reg. 52452—69 (1997) (38 military construction items); id. at 53704-10 (14 Defense items); id. at 54564—68 (8 Energy items); id. at 59766-69 (7 VA/HUD items); id. at 59769-71 (3 Transportation items); id. at 62682-83 (2 Interior items); id. at 62683-86 (5 Agri- culture items); id. at 64130 (1 Commerce, Justice, State item). 'SSee Clinton’s Line-Item Vetoes Show Light Touch, CQ Monitor, Dec. 8, 1997, at 7. Although a significant sum, this is less than one- tenth percent of total appropriations. Jd. '6Pub. L. No. 105-159, 112 Stat. 19 (1998). Proposed legislation to disapprove the two cancellations at issue here was not acted upon. See S. 1157, 105th Cong. (1997); H.R. 2444, 105th Cong. (1997); S. 1144, 105th Cong. (1997); H.R. 2436, 105th Cong. (1997). 18 Both Article I requirements have been met when the President cancels taxing or spending items pursuant to the Line Item Veto Act. The Act itself, obviously, was agreed to by both Houses and the President. Further- more, as the district court recognized, see J.S. App. 24a, both the Balanced Budget Act of 1997 and the Taxpayer Relief Act of 1997 became law in compliance with Article I. Indeed, by its terms the Act’s cancellation authority ap- plies only to measures “signed into law pursuant to Arti- cle I, section 7.” 2 U.S.C. §691(a) (Supp. II 1996). This limitation ensures that the President cannot use the Act to augment his “limited and qualified power to nullify proposed legislation by veto,” Chadha, 462 U.S. at 947, which, as always, must be exercised with regard to an en- tire law or not at all. Despite the Act’s adherence to Article I’s “[e)xplicit and unambiguous provisions,” id. at 945, the district court be- lieved that the Act violates Article I by permitting the President in effect to repeal or alter laws.'’ Although the President manifestly cannot change laws unilaterally, nothing in Article I deprives Congress of the power by law to authorize Executive action that may alter the effect of other laws. Indeed, in Chadha this Court dismissed the similar argument that allowing the Executive to exercise delegated authority, there under the Immigration and Nationality Act, “will sanction ‘lawmaking by the Attor- ney General. . . . Why is the Attorney General exempt from submitting his proposed changes in the law to the full bicameral process?” 462 U.S. at 953 n.16 (quoting pe- titioner’s brief; omission in original). Noting that “some administrative agency action—rulemaking, for example— may resemble ‘lawmaking,’” the Court held, “Executive 17 The title of the “Line Item Veto Act” provides no support for this position. While “the title of a statute or section can aid in resolving an ambiguity in the legislation’s text,” INS v. National Center for Im- migrants’ Rights, 502 U.S. 183, 189 (1991), titles and headings do not control over statutory text and “cannot undo or limit that which the text makes plain.” Brotherhood of Railroad Trainmen v. Baltimore & O.R.R., 331 U.S. 519, 529 (1947). 19 action under legislatively delegated authority that might resemble ‘legislative’ action in some respects is not sub- ject to the approval of both Houses of Congress and the President for the reason that the Constitution does not so require.” Jd. “The bicameral process is not necessary as a check on the Executive’s administration of the laws be- cause his administrative activity cannot reach beyond the limits of the statute that created it—a statute duly en- acted pursuant to Art. I, §§ 1, 7.” Id. The President exercises the Act’s cancellation authority not as an act of legislative power, but in fulfillment of his Article II duty to execute the laws. Once the President signed into law the bills at issue in these cases, he had no more lawmaking responsibilities regarding them. The legislative process was then complete, for “a bill when so signed becomes from that moment a law.” La Abra Silver Mining Co. v. United States, 175 U.S. 423, 454 (1899). “(FJrom that moment,” the President had an Article II duty to execute both the Line Item Veto Act and the newly enacted spending or revenue law, which Congress passed subject to the Line Item Veto Act. Once Congress presented, and the President signed, the bills at issue here, the constitutional value underlying the Presentment Clause—that all participants in the lawmaking process agree to precisely the same statutory text—had been achieved. The House, the Senate, and the President had agreed, understood, and intended that each spending item and identified tax benefit item in those laws be sub- ject to cancellation, within the limits of the Act. The re- sulting cancellations accordingly do not implicate the “finely wrought” procedure of Article I. Cf. Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 221 (1989) (Arti- cle I’s Origination Clause “implies nothing about the scope of Congress’ power to delegate discretionary author- 20 ity under its taxing power once a tax bill has been prop- erly enacted”).'8 B. The Line Item Veto Act Assigns Delegable Responsibility to the President The constitutional principle that ensures that a delega- tion to the Executive respects the separation of powers is not Article I, but the delegation doctrine. As this Court explained in Chadha, after rejecting the claim that the Executive was legislating in violation of Article I, “(t]he constitutionality of the Attorney General’s execution of the authority delegated to him by [statute] involves only a question of delegation doctrine.” 462 U.S. at 953 n.16. That the Line Item Veto Act delegates authority over taxation and spending does not alter the applicability of the delegation doctrine. In Mid-America Pipeline, the Court noted the long constitutional pedigree of delega- tions of taxing authority, 490 U.S. at 221-22 (citing J. W. Hampton, 276 U.S. 394, and Field v. Clark, 143 U.S. 649, 683-89 (1892)), and affirmed “that the delegation of dis- cretionary authority under Congress’ taxing power is sub- ject to no constitutional scrutiny greater than that we '8The Act’s precise operation reinforces its conformity with Article 1, as the manner in which the President exercises cancellation author- ity differentiates this delegation from lawmaking. Under the Present- ment Clause, if the President does not approve a bill, “he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.” Art. I, §7, cl. 2. In contrast, under the Line Item Veto Act, the President sends both Houses a “special message,” printed not in their Journals but in the Federal Register, where administrative ac- tions are recorded. 2 U.S.C. §691la(cX2) (Supp. II 1996). If Congress wishes to disapprove a cancellation, it does so not by the originating House’s reconsidering the original bill presented to the President, as when overriding a veto, but by passing a fresh bill. 2 U.S.C. §691d (Supp. II 1996). Furthermore, the actions the President takes to exer- cise his cancellation authority, such as searching congressional com- mittee reports and considering the legislative history of provisions sub- ject to cancellation, are precisely the type of Executive actions the Ex- ecutive takes after signing a bill into law to implement Congress’s will. See Bowsher, 478 U.S. at 733 (“[i)nterpreting a law .. . is the very essence of “execution” of the law”). 21 have applied to other nondelegation challenges.” Jd. at 223. Spending authority is equally subject to delegation. This Court has never “held any legislative power, much less that over appropriations, to be nondelegable due to its ‘core function’ status,” and “[n]Jo constitutional provi- sion distinguishes between ‘core’ and ‘non-core’ legislative functions.” Synar v. United States, 626 F. Supp. 1374, 1385 (D.D.C.) (three-judge court) (per curiam), affd on other grounds sub nom. Bowsher v. Synar, 478 U.S. 714 (1986); see Loving v. United States, 517 U.S. 748, 116 S. Ct. 1737, 1748 (1996); Milk Industry Foundation v. Glick- man, 132 F.3d 1467, 1473-75 (D.C. Cir. 1998) (upholding delegation under Compact Clause). The only constitutional restriction unique to Congress’s “power of the purse” is the Appropriations Clause, art. I, §9, cl. 7, which “‘means simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress.’” OPM v. Richmond, 496 U.S. 414, 424 (1990) (quoting Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937)). Because the Clause “was in- tended as a restriction upon the disbursing authority of the Executive department,” it “is without significance” when Congress has legislated spending discretion. Cin- cinnati Soap, 301 U.S. at 321; accord Joseph Story, 2 Commentaries on the Constitution of the United States §922 (Fred B. Rothman & Co. 1991) (1833) (“clause is a limitation, not upon the powers of congress, but upon the acts of the executive”). The Court thus has recognized Congress’s power to appropriate funds without specifying “the particular uses to which the appropriated money is to be put”: That Congress has wide discretion in the matter of prescribing details of expenditures for which it ap- prepeseses must, of course, be plain. Appropriation and other acts of Congress are replete with in- stances of general appropriations of on amounts, to be allotted and expended as directed by des- ignated government agencies. .. . The constitu- 22 tionality of this delegation of authority has never been seriously questioned. '? The Line Item Veto Act fully satisfies the Appropriations Clause, because Congress still appropriates every penny available for spending. The President has discretion only to decline to spend funds that Congress has appropriated, not to spend funds Congress has declined to appropriate. The Act’s delegation of discretion not to spend appro- priated funds is far from novel. As described in Part I, Congress has authorized the Executive to decline to spend appropriated funds since its first appropriations under the Constitution. The Justice Department has con- curred that “Congress could provide in its appropriation that the money need not be spent. Or it could enact an appropriation, and then provide in contemporaneous or subsequent legislation that the money need not be spent. .. .” OLC Memo., supra note 12, at 282. In con- struing the appropriation power: “A legislative practice such as we have here, evi- denced not by only occasional instances, but marked by the movement of a steady stream for a century and a half of time, goes a long way in the direction of proving the presence of unassailable ~—— for the constitutionality of the practice, to found in the origin and history of the power in- volved, or in its nature, or in both combined.” Cincinnati Soap, 301 U.S. at 315 (quoting United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 327-28 (1936)). Despite this long history of permissive appropriations, the district court accepted appellees’ claim that the Line '9 Cincinnati Soap, 301 U.S. at 321-22. Recognition of Congress's au- thority to give the Executive discretion through lump-sum appropria- tions traces from the earliest period under the Constitution, see 3 An- nals of Cong. 889-90 (1793), to the present, see Lincoln v. Vigil, 508 U.S. 182, 192 (1993). For example, in 1937 Congress appropriated $1.5 billion (in addition to unexpended prior balances), roughly one-fifth of the entire federal budget at the time, “to be used in the discretion. . . of the President” for a variety of domestic projects. Emergency Relief Appropriation Act of 1937, ch. 401, tit. I, § 1, 50 Stat. 352, 353. 23 Item Veto Act’s authority is nondelegable because it gives the President “an inherently legislative function, namely, the authority to permanently shape laws and package legislation.” J.S. App. 29a. The court sought to distin- guish the Act from prior delegations on the basis that cancellations cannot be reversed even if the President changes his mind, concluding that “[s)uch delegations are unprecedented.” J.S. App. 30a. The district court disregarded numerous instances in which Congress has authorized the Executive perma- nently to alter the force of laws. This Court has approved such delegations since 1813, when it upheld the Presi- dent’s authority to “revive[]” a law restricting foreign commerce, which by its terms had expired, so that it would again “have full force and effect.” The Brig Aurora, 11 U.S. (7 Cranch) 382, 384, 388-89 (1813). Assessing this opinion in 1892, Justice Harlan noted that, facing a claim “that Congress could not transfer legislative power to the President,” the Court had “deci[ded] that it was competent for Congress to make the revival of an act de- pend upon the proclamation of the President.” Field v. Clark, 143 U.S. at 682-83. At issue in Field v. Clark was the constitutionality of the President’s authority to suspend provisions of the McKinley Tariff Act of 1890 (see supra p. 7). In upholding this delegation, Justice Harlan recited with approval the history since 1815 of delegations of authority to trigger not only suspensions, but also repeals, of tax provisions and of Presidents’ uses of this authority. 143 U.S. at 685— 87. As Justice Harlan observed, these precedents author- izing the President to alter the force and effect of tax laws, “from the organization of the government to the present time,” are “entitled to great weight.” Jd. at 683. Three decades later, in upholding the Flexible Tariff Act of 1922, which delegated authority for the President to alter tariffs, the Court again rejected the argument that Congress cannot delegate “power to levy taxes and fix customs duties.” J.W. Hampton, 276 U.S. at 409. While relying on these cases for the tautology that legislative 24 power cannot be delegated, J.S. App. 28a—29a, the district court ignored the substance of the delegations the Court approved. Moreover, contrary to the district court’s belief, Con- gress has also authorized the President permanently to repeal or nullify provisions of snending laws, to achieve greater fiscal economy, at leert «ince its grant of reorga- nization authority in 1933, see supra pp. 10-11. In the 1960s, Congress authorized the President to reduce fed- eral spending billions of dollars below appropriated levels through unilateral rescission. See supra p. 11. In the 1980s, the Gramm-Rudman-Hollings Act authorized the President “permanently [to] cancel[{ ]” a portion of all cov- ered appropriations. Pub. L. No. 99-177, §252(a)4), 99 Stat. 1074; see supra p. 15. In Synar v. United States, the three-judge district court flatly rejected the claim that this delegation was “per se invalid because it allows ad- ministrators to ‘nullify’ or ‘override’ laws,” concluding that “the authority delegated by the Act does not differ in kind from that approved in prior cases.” 626 F. Supp. at 1387. Congress has also given this Court statutory authority effectively to repeal or nullify laws. The Rules Enabling Acts not only empower the Court to promulgate rules of practice and procedure for civil proceedings (and formerly criminal proceedings) in the lower courts, but also provide that “[aJll laws in conflict with such rules shall be of no further force or effect.” 28 U.S.C. §2072(b) (1994) (civil); 18 U.S.C. §3771 (1982) (repealed) (criminal). The Court has recognized that the force of these provisions is that a “prior inconsistent statute [is] deemed to have been re- pealed.” Davis v. United States, 411 U.S. 233, 241 (1973) (emphasis added); see also Sibbach v. Wilson & Co., 312 U.S. 1, 10 (1941) (explaining that Court’s rules “repeal” statute). As in each of these prior cases, Executive action pursu- ant to the Line Item Veto Act, although rendering can- celed provisions of no legal force or effect, fulfills, rather than defeats, Congress’s will. Congress has expressly leg- 25 islated that each dollar amount of discretionary budget authority, each new item of direct spending, and each limited tax benefit enacted over the life of the Act (unless exempted from the Act) are to be permissive and subject to cancellation within the limits of the Act. Accordingly, the President’s decisions at issue here to cancel the new direct spending provision paying New York State addi- tional Medicaid funds, and the limited tax benefit permit- ting deferral of recognition of gain on certain sales of ag- ricultural stock, do not negate Congress’s legislated will, but execute Congress’s delegated statutory authority. C. The Line Item Veto Act Comports With the Doctrine Against Undue Delegation The Line Item Veto Act serves the separation of powers through “measured cooperation between the two political branches of the Government, each contributing to a law- ful objective through its own processes.” Loving, 116 S. Ct. at 1751. Congress’s delegation is “‘constitutionally sufficient,” as Congress has “‘clearly delineate[d] the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.’” Mistretta v. United States, 488 U.S. 361, 372-73 (1989) (quoting American Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946)). Based upon its judgment about the serious eco- nomic threat of budget deficits, Congress has made all spending and tax provisions covered by the Act permis- sive for five days after enactment. In establishing deficit reduction as its paramount objective, Congress has ful- filled “(t]he essentials of the legislative function,” Yakus v. United States, 321 U.S. 414, 424 (1944), by “‘lay[ing] down by legislative act an intelligible principle’” to guide the President’s discretion. Mistretta, 488 U.S. at 372 (quoting J.W. Hampton, 276 U.S. at 409). Because of its view that the authority delegated by the Act was nondele- gable, the district court deemed it “irrelevant whether the Line Item Veto Act provides intelligible principles.” J.S. App. 3la. The court thus failed to appreciate the signifi- cant constraints accompanying this delegation. 26 Key statutory features confine the President’s discre- tion. He can make cancellations only during the five days after a measure is enacted, rather than throughout the year. The cancellation authority is irreversible, preclud- ing the President from canceling funding, only to restore it later. The cancellation authority is limited to total re- scission. Thus, the President is put to the difficult choice of canceling an item entirely or not at all. This “all or nothing” requirement, H.R. Conf. Rep. No. 104-491, at 32, 33 (1996), gives the President far less discretion than would, for example, a general grant of authority to reduce expenditures to any level he sees fit. Finally, to promote its legislative goal of deficit reduction, Congress enacted an intricate “lockbox” mechanism, 2 U.S.C. §691c (Supp. II 1996), under which the Office of Management and Budget must “lock in” the savings resulting from a can- cellation, through adjustments in the calculations it sub- mits to Congress under the Gramm-Rudman-Hollings Act. This lockbox requirement “ensures that the Presi- dent does not simply cancel ... in order to increase spending in other areas.” H.R. Conf. Rep. No. 104—491, at 20—21.2° 20 Requiring the President to use his cancellation authority within five days of signing the underlying bill, 2 U.S.C. §691(aXB), serves a substantial administrative purpose. Because spending cancellations, which are the vast majority, are limited to total rescission, any poten- tial of cancellation after a fiscal year begins would render agencies le- gally unable to obligate any funds at the beginning of the year. Other- wise, if a spending item came to be canceled, agencies already would have spent some of the appropriated, but now rescinded, funds, in vio- lation of the Antideficiency Act. In addition, a cancellation necessarily creates a period of uncertainty whether Congress will act legislatively to disapprove it. In that interval, agencies whose funds are affected by cancellations, along with their employees, beneficiaries, and contrac- tors, and, for revenue provisions, affected taxpayers, will be burdened by that uncertainty. To avoid “unnecessarily prolong{ing) the process,” while still giving the President time to gather “all supporting mate- rial” and make the required determinations, H.R. Conf. Rep. No. 104— 491, at 22, Congress prudently limited cancellations to five days after enactment. 27 Congress also made a number of critical legislative j nts limiting the objects of cancellation. It exempt- ed two-thirds of the budget from the reach of presidential discretion by excluding all current levels of entitlement spending from cancellation. 2 U.S.C. §§691(aX2), 691e(5), (8) (Supp. II 1996). Only increases in entitlements, such as the New York State Medicaid provision, are subject to the Act. Congress also limited cancellations to dollar U.S.C. §691e(4XA) (Supp. II 1996). By barring cancella- tion of substantive provisions or “fencing language,” Con- gress ensured “that the President cannot use this author- ity to modify or alter any aspect of the underlying law.” H.R. Conf. Rep. No. 104-491, at 20. Moreover, the determinations and assessments that the etary effect of the cancellation,” 2 U. S.C. §691a(b) (Supp. II 1996). In canceling the tax benefit for sellers of agricul- tural stock, the President described the effect of this can- cellation on “the objects, purposes and programs” of the provision, id., when he explained that it “would not have benefitted farmers generally” and “would have created op- portunities for the complete avoidance of tax,” 62 Fed. Reg. 43267 (1997). If Congress was dissatisfied with these 28 explanations, it could have acted to disapprove the can- cellations, as it did for almost one-half of the items can- celed this year. See supra p. 17.2! Notwithstanding the substantial legislative judgments and standards embodied in the Act, appellees sought below to identify attributes of the Act differentiating it from prior delegations. They noted that the use of can- cellation authority is irreversible; that the President must exercise the cancellation authority soon after signing an underlying bill, without any intervening changes in cir- cumstance; and that cancellation is not mandatory, allow- ing the President to elect to use it to further his own pol- iey goals. The Court’s substantial delegation jurispru- dence identifies none of these features as injurious to the constitutional legitimacy of a delegation; nor is the Line Item Veto Act the first delegation with these attributes. The district court was particularly influenced by the as- sertion that the irreversible nature of a cancellation was “unprecedented,” J.S. App. 30a, despite a variety of prior delegations, dating from the early 1800s, authorizing similarly irreversible Executive action. These delegations, including the 1810 law reviewed in The Brig Aurora, 11 U.S. (7 Cranch) at 388-89 (see supra p. 23), and the 1815 and 1830 statutes relied upon by Justice Harlan in Field v. Clark, 143 U.S. at 685-87 (see supra pp. 6-7, 23), al- lowed the President not merely to suspend or adjust, but permanently to repeal or revive, statutory provisions. The 2! Of course, even without the disapproval process, Congress retains ultimate control over all appropriation and tax decisions. Because the Act applies only to laws enacted after January 1, 1997, and sunsets on December 31, 2004, 2 U.S.C. §691 note (Supp. II 1996), with each spending or tax measure enacted over these eight years, Congress makes a fresh decision whether or not to make that measure subject to the Act. Cf. Raines v. Byrd, 117 8. Ct. 2312, 2320 (1997) (noting for purposes of standing that Congress can vote “to exempt a given appro- priations bill (or a given provision in an appropriations bill) from the Act; again, the Act has no effect on this process”). Each time Congress makes the legislative judgment to let the Act apply, it has chosen to make the individual spending and tax benefit items in that law per- missive. 29 1960s spending ceilings (see supra p. 11) and the Gramm- Rudman sequestration authority upheld by the three- judge district court in Synar, 626 F. Supp. at 1377, 1382- 91 (see supra p. 24), also delegated similarly irreversible or permanent authority. Furthermore, all exercises of spending authority are by definition irreversible, once the funds are spent. Through the Act’s lockbox mechanism, Congress in effect has man- dated that all canceled spending or tax items be trans- ferred to deficit reduction. Once “spent” on deficit reduc- tion, cancellations are irreversible, just as any Executive action applying an appropriation to a particular purpose is, once effectuated, irreversible. That the President can- not reverse cancellations in fact operates as a constraint on the delegation, not an expansion. The contention that a proper delegation requires a lapse of time before exercise, in which circumstances change, also lacks historical support. In fact, one of the most important delegations of recent times, the authority given President Nixon in 1970 to impose wage-price cor- trols, depended on neither an interval of time nor changed conditions after Congress’s grant of authority. A three-judge district court upheld Congress’s delegation of discretion to impose wage-price controls, despite the fact that the delegated authority became effective imme- diately upon enactment, was based on already-prevailing economic conditions, was to expire in six months, and was extended for periods of as short as two months, to ensure that Congress could keep “close control.” Amalgamated Meat Cutters v. Connally, 337 F. Supp. 737, 754 & n.30 (D.D.C. 1971), cited with approval in Eastlake v. Forest City Enters., 426 U.S. 668, 675 (1976). Similarly, that the President has discretion whether to exercise cancellation authority, and that he may use the authority to further his policy goals, neither suggest any constitutional defect nor distinguish the Line Item Veto Act from such prior delegations as the sweeping authority upheld in Amalgamated Meat Cutters “‘to issue such or- ders and regulations as [the President] may deem appro- 30 priate to stabilize prices, rents, wages and salaries.’” Jd. at 745 (quoting Economic Stabilization Act of 1970, Pub. L. No. 91-379, tit. II, §202, 84 Stat. 799, 799-800). As the Court has recentiy reaffirmed, “‘Congress is not con- fined to that method of executing its policy which involves the least possible delegation,” Mistretta, 488 U.S. at 379 (quoting Yakus, 321 U.S. at 425-26), and it is no indict- ment of a law like the Line Item Veto Act that Congress has delegated “authority that it could exercise itseif,” Loving, 116 S. Ct. at 1744 (citing Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42 (1825)). Because the Line Item Veto Act properly safeguards the separation of powers, the Court should uphold the Act’s delegation of Executive authority. CONCLUSION The Court should reverse the judgment of the district court. Respectfully submitted, THOMAS B. GRIFFITH, (Counsel of Record) Senate Legal Counsel, MORGAN J. FRANKEL, Deputy Senate Legal Counsel, STEVEN F. HUEFNER, A. CHRISTOPHER BRYANT, Assistant Senate Legal Counsel. Counsel for the United States Senate. MARCH 1998. U.S. GOVERNMENT PRINTING OFFICE : 1998 46-982 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0164%3A11. Public record. Not legal advice.