Amicus Curiae Brief — Raines v. Byrd

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No. 96-1671 ; MAY 9

9n the Supreme Court of the Whited States

OCTOBER TERM, 1996

FRANKLIN D. RAINES, ET AL., APPELLANTS.

Vv.

ROBERT C. BYRD, ET AI

ON APPEAL FROM THE UNITED STATES DISTRICT

THE DISTRICT OF COLUMBIA

JOINT BRIEF OF THE UNITED STATES SENATE

AND THE BIPARTISAN LEGAL ADVISORY GROUP

OF THE UNITED STATES HOUSE OF REPRESENTATIVES

AS AMICI CURIAE FOR REVERSAI

GERALDINE R. GENNET, THOMAS B. GRIFFITH

Acting General Counsel Counsel of Re I

KERRY W. KIRCHER, Senate Legal Coun

MICHAEL L. STERN, MORGAN J. FRANKEL,

Senior Assistant Counse Deputy Senate Legai (

CAROLYN BETZ, STEVEN F. HUEFNER,

Assistant Counsel, MONICA P. DOLIN

on : rs a , a

Office of the General Counsel, Assistant Senate Lega

United States House of Office of Senate Legal Cour

Representatives 642 Hart Senate Office Bui

219 Cannon House Offic: Washington, D.C. 20511

Building, 202) 224-4435

Washington, D.C. 20515 Counsel for the United Stat.

202) 225-9700

Counsel for the Bipartisan

Legal Advisory Group

of the United States

House of Representatives

May 1997

ste

TABLE OF CONTENTS

Interest of Amici ..............

SPUN OE TAN i a

Argument:

|. The Line Item Veto Act Builds on Congress’s Long-

standing Practice of Giving Spending Discretion

to the Executive

A. Since 1789, Canoven Ss ‘Ses Given the Sxeru

tive Discretion Over the Expenditure of Ap-

PINE FI i eee

B. This Century Congress Has Periodically

Given the Executive Enhanced Spending

Discretion to Help Achieve Congress’s Over-

all Goals ......... rveihisaiporss tsedaialec de iediaocuicecua

C. On Occasion, the Executive Branch Has

Sought to Exercise Greater Spending Au-

thority Than Congress Has Granted ........... ‘

D. Congress Legislated Firm Controls on Execu-

tive Spending Discretion in the Impound-

ment Control Act .......... paniisaiéeeteeubn abies

E. For Over a Decade, Congress Has Delegated

Particular Authority Over Spending to

Achieve Deficit Reduction ...............................

II. The Line Item Veto Act Is a Constitutional Exercise

of the Appropriation Power 000...........cccceccccccceccceccceeee.

A. The Line Item Veto Act Conforms With Arti-

i OP RIRIERI BODIE, Med Re Oy AEP ante FAC ay

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 ..............

NING ssscocitninintinenicaecnaurisoied ee ee.

Le)

TABLE OF AUTHORITIES

Cases

Amaigamated Meat Cutters v. Connally, 337 F

Supp. 737 (D.D.C. 1971) (three-judge court) ............ 29, 30

American Power & Light Co. v. SEC, 329 US. 90

1946) eee oy ssdcaanesuaaiaiaas Sadssintclninmminiesbaies 26

Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1985), va

cated as moot sub nom. Burke v. Barnes, 479 U.S.

- 5 BS. 7} peeenemalan Re CnEN. oes PRE oes inet Ge 2

Bowsher v. Synar, 478 U.S. 714 (1986) cccccccccccccscsceeeee. 16

The Brig Aurora, 11 U.S. (7 Cranch) 382 (1813) ........ 4. 24

Brotherhood of Railroad Trainmen v. Baltimore &

ee 2S Op (Ets BCS. | ys pen iern oer eae 19

Cincinnati Soap Co. v. United States, 301 U.S. 308

BROT MR AORTA BET ce : eee - fe

City of New Haven v. United States, 809 F.2d 900

D.C. Cir. 1987) ........ acs sielecitinlas caienaaidaci ee: 16

Davis v. United States, 411 U.S. 233 (1973) ............... 26

Eastlake v. Forest City Enterprises, 426 U.S. 668

(1976) iapiecthicapioaeincatuas cama nbivbeeeged Sout iaieigas 29

Field v. Clark, 143 U.S. 649 (1892) ea 4,22, 24, 25, 29

Flast v. Cohen, 392 U.S. 83 (1968)

Goldwater v. Carter, 444 U.S. 996 (19 ree

INS v. Chadha, 462 U.S. 919 (1983) .......... 3, 15, 18, 19. 20.

INS v. National Center for Immigrants’ Rights, 502

U.S. 183 (1991) : eR ee AE Gaal Men dodacinuons 19

Industrial Union Dep’t v. American Petroleum Inst.,

448 U.S. 607 (1980) sidcteaipiak ghaeniaeseleadaiaeugesiins

J.W. Hampton, Jr., & Co. v. United States, 276 U.S.

ae (RIED censcitikiiasnasearssitiannnncniaidainieemnoca nS . 4, 22, 27

La Abra Silver Mining Co. v. United States, 175

U.S. 423 (1899) inch Spake cchaitieliaiec oak tniaananattiaeadnataioke

Lincoln v Vigil, — eth Ge G4. : Gabe eae

Local 2677, A.F.G.E. v. Phillips, 358 F. Supp. 60

LRA SEAS. DCOR aguas SODA ae EOS Ce TEEN 15

Loving 1 United States, 116 S. Ct. 1737

SOE snciveocgnciestess jrbucttiheoncatashiaaniecinaaanianie aes a ae

Minnesota v. Weinberger, 359 F. Supp. 789 (D. Minn.

1973)

alate Prat ete fen 15

Ill

Page

Cases—Continued

Mistretta v. United States, 488 US. 361

RO oie ee ed ie i a Oe ta Ns 4, 26, 27, 30

National Cable Television Ass’n v. United States, 415

RE er le ihe Hr en ee, 14

OPM v. Richmond, 496 U.S. 414 (1990) .................. 22

Pealo v. Farmers Home Admin., 361 F. Supp. 1320

TERS RERANCH SD AON NEA ROE ee 15

Pennsylvania v. Lynn, 501 F.2d 848 (D.C. Cir. 1974) 15

Pennsylvania v. Weinberger, 367 F. Supp. 1378

Ns 2 SB AERTRREGG catia On eR a RTE ee eI 15

Senate Select Comm. on Ethics v. Packwood, 845

F. Supp. 17 (D.D.C.), emergency motion for stay

pending appeal denied, No. 94-5023, Order (D.C.

Cir. Feb. 18, 1994), application for stay denied,

We Re RE RMI oii oe 2

Sibbach v. Wilson & Co., 312 U.S. 1(1941) ............. 26

Skinner v. Mid-America Pipeline Co., 490 U.S. 212

Cs HRS RERRAD STE SEPA ce ane 4, 20, 22

State Highway Comm'n v. Volpe, 479 F.2d 1099 (8th

ica eae ee oa 15

Synar v. United States, 626 F. Supp. 1374 (D.D.C.)

(three-judge court), affd on other grounds sub

nom. Bowsher v. Synar, 478 US. 714

CREST ESE SRE EU etek SNS I OEE ne a 22, 25, 29

Train v. City of New York, 420 U.S. 35 (1975) ............ 14

United States v. Curtiss-Wright Export Corp., 299

| 5: Satan ease Ore Rta a en SA Ca eae 24

United States v. Smith, 286 U.S. 6 (1932) ................. 2

Valley Forge Christian College v. Americans United

for Separation of Church and State, 454 U.S. 464

4 Sg GREE EEC REESE TESORO LID SONS CARR OD 2

Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825) ... 30

Yakus v. United States, 321 U.S. 414 (1944) ............. 26, 30

Constitution and Statutes:

U.S. Const.:

ne a oa 1, 20

| a NR ine Pn AG wk OID 5, 22

Act of Sept. 29, 1789, ch. 23, 1 Stat. 95 ................... 5

Act of Mar. 26, 1790, ch. 4, 1 Stat. 104 ........... 5, 6

Act of Feb. 11, 1791, ch. 6, 1 Stat. 190 ...........ccccccc00-0-. 6

Constitution and Statutes—Continued

Act of Feb. 28, 1803, ch. 11, 2 Stat. 206 ..................... 6

Act of Mar. 3, 1809, ch. 28, 2 Stat. 535 ..............00000.... 7

Act o Mar. 3, 1825, ch: 77.3 Stat. 224... 24

Act of May 1, 1820, ch. 52, 3 Stat. 567 ........................ 7

Act of May 31, 1830, ch. 219, 4 Stat. 425 ............ pac ae

Act of June 30, 1834, ch. 171, 4 Stat. 742 ................... 7

Act of July 2, 1836, ch. 268, 5 Stat. 77 ba gisekidoabioan 7

Act of Aug. 26, 1842, ch. 202, 5 Stat. 523 ................... 7

Act of Feb. 12, 1868, ch. 8, 15 Stat. 35 ........................ 7

Act of July 12, 1870, ch. 251, 16 Stat. 230 .......00000...... 8

Act of June 3, 1896, ch. 314, 29 Stat. 202 .......... eee 7

Act of Mar. 3, 1905, ch. 1484, 33 Stat. 1214 ......... 2 &

Act of June 30, 1932, ch. 314, 47 Stat. 382 po 7

Act of Mar. 3, 1933, ch. 212, 47 Stat. 1489 ................. 11

Act of July 13, 1943, ch. 236, 57 Stat. 560 .................. 9

Act of Sept. 6, 1950, ch. 896, 64 Stat. 595 .................. 10,11

Pub. L. No. 89-554, 80 Stat. 378 (1966) ..................... 1]

Pub. L. No. 91—47, 83 Stat. 49 (1969) .......................... 12

Pub. L. No. 91-305, 84 Stat. 376 (1970) ...................... 12

Pub. L. No. 100-119, 101 Stat. 754 (1987) .................. 16

Balanced Budget and Emergency Deficit Control Act

of 1985, Pub. L. No. 99-177, tit. II, 99 Stat. 1038 .. 16,25

Balanced Budget and Emergency Deficit Control Re-

affirmation Act of 1987, Pub. L. No. 100-119, tit.

I, 101 Stat. 754 ...... ete jaitad iabenlesetanbaiviainkaleantueuauncids ine’ 16

Budget and Accounting Act, 1921, ch. 18, 42 Stat.

SOMA CRT oll MEN ay bas VDE Or EMS SUR EN ATR Wit tage Ce 9

Budget Enforcement Act of 1990, Pub. L. No. 101-

O08, tit. AIIT, 104 Stat. 1388-573 .......................00005. 17

Economic Stabilization Act of 1970, Pub. L. No. 91-

FE, ites Bly CW RI TI Sinise iorkuasceccaccetacs seidicued metesbes 30

Emergency Relief Appropriation Act of 1937, ch. 401,

hc Big GAP IES TUNE bases tunsesbaessuiciusiun ssaciceinianiane eaase 23

Impoundment Control Act of 1974, Pub. L. No. 93

344, tit. X, 88 Stat. 332, codified as amended at

Se Rr, PE OS . ocevinniccenercatsinsa caucuses sa 15

Pe PERO BP. eicesnkesspSaissedibened ies aces kab. oe 15

PIE earssihs vchnicaicineh Setiostnancine chee ce ee 15

DONP SME aiscpacsiniricidkeice vanias eile iacdaterssaieds meetuss ota 15

OUP Y «siacaieueaindbcsatagrialenidaceed cbnieitinv caine ikea 15

Page

Constitution and Statutes—Continued

Impoundment Control Act of 1974, Pub. L. No. 93—

344, tit. X, 88 Stat. 332, codified as amended at

2 U.S.C. §§ 681 et seg.—Continued

Sas UNOS CRIME os occu oascscosarisdcccclene 16

i ROBT DE BOO asssciicidsnsccscoctmecs cui 18, 27

' §1021(a)(B), 2 U.S.C. §691(a)(B) ooo. eccecccccseseeessee 21

§1021(a)(2), 2 U.S.C. §691(a)(2) oo.ecccccccccceccsceececess 28

SARE ARSEA a Gai, OMNI cr 27

SROZIOD, BS TTC, GOD) aisviiviss csssssssccasesccsveciens 27

§1022(c)(2), 2 U.S.C. §691a(ci2) ooceeeccccccccccecccecee. 20

ye Are ED ockdnp ncn tacsntelaivissnaevaninne ca: 28

Ry Ae RP MII = ps vcsicvseidccuinbnacbchddnks ceo, ae

; §1026(4)(A), 2 U.S.C. §691e(4)(A) once cccccccccececeeees 28

§1026(5), 2 U.S.C. §692e(G) oo. cocccccscccscecccscccsoecce. 28

: §1026(8), 2 U.S.C. §691e(8) o0.....ce ce ecccccscesseecesees 28

Line Item Veto Act of 1996, Pub. L. No. 104—130,

110 Stat. 1200, to be codified at 2 U.S.C. §§691

OG BIB | snsetessliccuarcdorpiovansashitaosennntipeaneinsaetone eee 1

§5, 110 Stat. 1212, 2 U.S.C. §691 note ................. 28

Omnibus Consolidated Appropriations Act, 1997,

Pub. L. No. 104-208, 110 Stat. 3009 (1996) ............ 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. Wo. 90-366, BS Gtat. BG2 oie. ccesi icceseiscns 12

Fa EN acid a a 1

FAD aAs y OOT CRENO Sis 1

5 U.S.C. § 905, historical and revision notes (1994) ... 11

MR NPD OTF A AD hi icinitceisedenici 26

Be SAS, GOT RIDE) aoc svciccsdhasidicccolececscccsocsace 26

Congressional Materials:

Shy Fly, MOM GME, TA DWAY Sosbisi scores cient 17

FILR..2164, 102d Cong. (1991). ...........cciccccossecsccosccescoocess 17

Sad. Tent. &, 3000 Come (7088) cei 17

H.J. Res. 6, 104th Cong. (1995) .............cccccccssccoccocseceess 17

o: SEs, BOR Re, LOO sae 17

S. BOG, 106th Coty. (IBO5) occ ccc cooccoesceece 17

SS. BOP, ACCC Coma. CUBE) oasis csssccecasnerccsteveaneeessseccen, 17

Pag

Congressional Materials—Continued

S. Res. 21, 105th Cong. (1997), 143 Cong. Rec. S619

Ceaney OG, Se TER, BOSE cia or ]

H.R. Conf. Rep. No. 491, 104th’ Cc ong., 2d Sess.

LOE succccenekemuseuhiusincdsdeicaciocamiervealietiansiemmaraen 21, _ oo

H.R. Rep. No. 1797, 81st Cong., 2d Sess. (19! 50) Pave .s 11

3 Annals of Cong. (1793) ......... PITS Bead aN PT ENE i, 2

Bo Amaia OE Tate, CI? ead cs ahincnccosicneadciers ace abiecanss 6

Oh PAM OE CEE, CIE is rackvisvhcstn dere ctnsesinhisdeneee 6

Cong. Globe, 36th Cong., 2d Sess. 1177 (1861) .......... 13

77 Cong. Rec csi one SOF RAIS on ae TT Ae ioe oF oe 11

89 Cong. Rec. 10362 (1943) aN tas E be pA een EERE 10

115 Cong. sangeet 78 (1969) ...... a OA 12

Proposed Rescissions of Amounts Placed | in ‘Re serve,

H.R. Doc. No. 182, 82d Cong., Ist Sess. (1951) ....... Ll

Executive Impoundment of Appropriated Funds:

Hearings Before the Subcomm. on Separation of

Powers of the Senate Comm. on the Judiciary, 92d

Cote. Lat Beem. CEL eis cshslshisestisstedsidc neha 10,13

First Supplemental National Defense Appropriation

Bill for 1944: Hearings Before a Subcomm. of the

Senate Comm. on Appropriations, 78th Cong., 1st

POG. § BIPGD iecactavcssiredabcccsseceseses pansies de ee 9

House of Representatives Rule RAD Kdsecicnccecsuccchedunice’ l

Executive Materials:

3 Stat. app. 1, procl. 3—7 (1818-21) 0.0.0.0... zi 25

Reorg. Plan No. 1 of 1953, reprinted in 67 Stat.

Reorg. Plan No. 3 of 1970, reprinted in 84 Stat.

BPE dvds ccccvateareasslindshnicannbiscsabiea eases saeinere 12

Messages and Papers of the ‘Pre side nts (James D.

PeCRRNCEY, 0., RENE D - Siscccschsckecthavoctuacoencons 6, 13

Seems Uae. PM oo once cvscanscsseareseraan dphatineediaihioidlannn 1]

RD UM, IID csivcnss sick ecvastesecuhincsaaccaeean c 10

Letter from President Roose velt to ‘Se nator Russe 1

(Aug. 18, 1942), reprinted in part in First Supple

mental National Defense Appropriation Bill for

1944; Hearings Before a Subcomm. of the Senate

Comm. on Appropriations, 78th Cong., Ist Sess

739 (1943) ........ sispeaabenbibovhes ities 9

21 Op. Abl’'y Gon: 901 (IBD) sesiciidiccicccdicccleentinceees s

Vil

or rer ann ne oo neem

Executive Materials—Continued

! BE Op: ARE y Cem SEG CEBDB) inc ecsccinecccsscscencessdsvesenpans 8

a SD, DAY Ch. SOG (EOD) aio iccsscosececcscecvssacccdasscasoes 8

Oe SPU, Fae SNM, EE LEED ssiscccecceivcchceasecisscscroceeinics 11

Memorandum of Ass’t Att'y Gen. William H.

Rehnquist, Re Presidential Authority to Impound

t Funds Appropriated for Assistance to Federally

Impacted Schools (Dec. 1, 1969), reprinted in Exec-

utive Impoundment of Appropriated Funds: Hear-

ings Before the Subcomm. on Separation of Powers

of the Senate Comm. on the Judiciary, 92d Cong.,

DO Te Se PTA? iscsi ccinwccnticdsansasicudcetvice cass 13, 23

; U.S. Bureau of the Budget, Circulars, “First Budget

Regulations,” Budget Circular No. 4 (July 1, 1921) 9

Miscellaneous:

Henry P. Seidemann, The Freparation of the Na-

tional Budget, 113 Annals Am. Acad. Pol. & Soc.

ies ER RNID Sosionsupiass Vidahbensstusenen ected adesh mech ois citesadun 9

| Joseph Story, 2 Commentaries on the Constitution

of the United States (Fred B. Rothman & Co. 1991)

A | Sprint mania Pha Baer raps CG Soap oe AROS ene 22

_ a ee

EL LL I

JOINT BRIEF OF THE UNITED STATES SENATE AND THE BIPARTISAN

LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF

REPRESENTATIVES AS AMICI CURIAE FOR REVERSAL

INTEREST OF AMIC!

Congress enacted the Line Item Veto Act, Pub. L. No.

104-130, 110 Stat. 1200 (1996) (2 U.S.C. §§691 et segq.),

as an extension of the Impoundment Control Act of 1974,

which established procedures for the President and Con-

gress to defer or rescind previously enacted appropriation

provisions. Despite its name, the Act does not give the

President any authority to veto items in proposed legisla-

tion. Rather, the Act enhances the President’s authority,

through 2004, to rescind deficit-increasing items in en-

acted laws, subject to Congress’s ultimate control. The

district court agreed with appellees’ contention that this

authority transgresses the Constitution’s Presentment

Clause, art. I, §7, cl. 2, by letting the President repeal

laws without action by Congress. Appellants’ Appendix

(“App. App.”) at 2la—22a, 25a—26a. This appearance as

amici curiae' explains the basis for Congress’s conviction

that the Act comports with the Constitution’s lawmaking

'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. 21,

105th Cong. (1997), 143 Cong. Rec. S619 (daily ed. Jan. 22, 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

Bipartisan Legal Advisory Group of the House of Representatives,

comprising the Speaker and Majority and Minority Leaders and

Whips, traditionally represents the interests and views of the House

in judicial proceedings. See House of Representatives Rule I(11). The

parties’ written consents to the House Bipartisan Legal Advisory

Group’s appearance have been filed with the Court.

(1)

procedures and the separation of powers that animates

those requirements.?

SUMMARY OF ARGUMENT

I. The Line Item Veto Act builds upon over two cen-

turies of congressional delegation to the Executive of dis-

cretionary control over spending. From the first appro-

priation laws, which set ceilings on Executive spending,

Congress has repeatedly appropriated funds without

mandating that they be spent. In addition to delegating

spending discretion in individual appropriation measures,

Congress has enacted across-the-board legislation author-

izing the Executive to transfer, reduce, or withhold appro-

priations, initially for purposes of economy and manage-

ment, and more recently in furtherance of Congress’s

broad fiscal policies. When disputes have arisen over

Amici express no position on the standing issue raised by appel-

lants. However, amici note their view that this case presents only the

question whether, under the Act’s judicial review provision, plaintiffs

have constitutional standing as individual Members of Congress. Dis-

tinct and significant considerations could arise in a case in which ei-

ther House, or the entire Congress, sought to invoke the courts’ juris-

diction to protect its constitutional prerogatives and duties against in-

trusion by the Executive or a private party. See, e.g., United States v.

Smith, 286 U.S. 6 (1932) (adjudicating Senate challenge to presidential

appointment); Barnes v. Kline, 759 F.2d 21, 25-30 (D.C. Cir. 1985)

(holding Senate has standing to assert injury from President's use of

“pocket veto”), vacated as moot sub nom. Burke v. Barnes, 479 U.S.

361 (1987); Senate Select Comm. on Ethics v. Packwood, 845 F. Supp.

17 (D.D.C.) (enforcing Senate committee subpoena), emergency motion

for stay pending appeal denied, No. 94-5023, Order (D.C. Cir. Feb. 18,

1994), application for stay denied, 510 U.S. 1319 (1994) (Rehnquist,

C.J., in chambers). Questions of standing “contain[{ ] beneath their sur-

face simplicity submerged complexities which go to the very heart of

our constitutional form of government.” Flast v. Cohen, 392 U.S. 83,

94 (1968). In a complex area of law that “has not been defined with

complete consistency,” Valley Forge Christian College v. Americans

United for Separation of Church and State, 454 U.S. 464, 475 (1982),

the Court should decide only the standing question necessarily pre-

sented by this case, as different separation of powers concerns may

well predominate when an entire body of Congress is seeking to pro-

tect its rights. See Goldwater v. Carter, 444 U.S. 996, 997-98, 1001-

02 (1979) (Powell, J., concurring in judgment).

whether the Executive could withhold particular funds, as

in the impoundment controversy of the 1970s, all three

branches have understood that the issue of how much

spending discretion the Executive has is a legislative

question subject to Congress’s determination. Following

the 1970s controversy, Congress enacted the Impound-

ment Control Act, which constrained Executive rescission

of appropriated funds. Now, after two decades of struggle

with persistent budget deficits, Congress has amended

the Impoundment Control Act to enhance the President’s

authority to rescind spending, through circumscribed dis-

cretion to cancel appropriations within five days of their

enactment.

II. The cancellation authority granted to the President

in the Line Item Veto Act does not alter the lawmaking

process or give the President lawmaking power contrary

to Article I, for his sole authority remains to execute the

laws in fulfillment of Congress’s deficit-reduction policy.

The Act fully comports with the bicameralism and pres-

entation requirements of Article I, section 7, as both the

Act itself and all laws subject to the Act will have been

agreed to by both Houses and signed by the President.

The President’s approval of a measure subject to the Act,

in accordance with the Presentment Clause, constitutes

the clear line of demarcation separating the President’s

Article I duties from his Article II duties. Once the Presi-

dent has signed a bill into law, the lawmaking process is

complete. At that moment, when a bill subject to the Act

becomes a law, all three legislative actors will have

agreed to make the measure’s spending or revenue items

permissive. Thus, Congress’s delegation to the President

of post-enactment cancellation authority does not impli-

cate the lawmaking procedures of Article I. Any cancella-

tion will occur as an executive action, limited by a duly

enacted statute and in conformance with Congress’s will.

See INS v. Chadha, 462 U.S. 919, 953 n.16 (1983).

The constitutionality of the Act’s cancellation authority

presents only the question whether the discretion vested

in the President violates the doctrine against undue dele-

gation. That the authority is delegated in the areas of

spending and taxation is immaterial, for delegation of the

“taxing power is subject to no |greater| constitutional

scrutiny” than are delegations of other powers. Skinner v.

Mid-America Pipeline Co., 490 U.S. 212, 223 (1989). Nor

does the fact that the cancellation authority permits the

President in effect to nullify appropriation provisions

render the authority nondelegabie. This Court has upheld

similar authority to alter the force of statutes 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)).

The Court should sustain Congress’s delegation of can-

cellation authority to the President because Congress has

“‘lafid] down by legislative act 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))—deficit reduction—to guide the

President’s discretion. Further, Congress has prescribed

specific determinations and assessments the President

must make. Congress has also meaningfully constrained

the President’s discretion by excluding from his cancella-

tion authority two-thirds of the budget and all sub-

stantive legal provisions, and by requiring cancellations

to be all-or-nothing, within five days after enactment, ir-

reversible, and devoted entirely to deficit reduction. These

attributes narrow the President’s discretion and are akin

to features of previously sustained delegations. In light of

Congress’s long-recognized ability to appropriate permis-

sively, the Court should uphold the Act’s delegation to the

President of this carefully limited authority to cancel

spending.

ARGUMENT

I. THE LINE ITEM VETO ACT BUILDS ON

CONGRESS’S LONGSTANDING PRACTICE OF

GIVING SPENDING DISCRETION TO THE

EXECUTIVE

Congress’s delegation of authority to cancel spending

builds upon a long history of delegation of discretionary

eee

control over appropriated funds that traces from the first

appropriation laws Congress enacted under the Constitu-

tion.

A. Since 1789, Congress Has Given the Execu-

tive Discretion Over the Expenditure of

Appropriated Funds

The Constitution provides that “[n]o money shall be

drawn from the Treasury, but in Consequence of Appro-

priations made by Law.” Art. I, §9, cl. 7. From its initial

exercise of the appropriation power, Congress has acted

upon its understanding that, while the Appropriations

Clause prohibits the expenditure of federal funds in the

absence of a congressional appropriation, an appropria-

tion need not compel the expenditure of appropriated

funds. Instead, Congress may choose to make an appro-

priation permissive.

Congress’s first appropriation law, funding the original

Executive departments, delegated significant discretion

not to spend appropriated funds, providing:

That there be appropriated for the service of the

present year . . . [a] sum not exceeding two hun-

dred and sixteen thousand dollars for defraying the

expenses of the civil list, under the late and

— government [and] a sum not exceeding one

undred and thirty-seven thousand dollars for de-

fraying the expenses 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 setting only a ceiling on ex-

penditures to give the Executive discretion to spend less

than the sum appropriated is evident by contrasting the

“not exceeding” language with a contemporaneous provi-

sion in which Congress directed that “payment of the fol-

lowing sums. . . is hereby authorized and intended to be

made.” Id., §5, 1 Stat. 105 (emphasis added). By appro-

priating funds “not exceeding” a fixed amount, early Con-

gresses manifested recognition of their constitutional au-

thority to delegate to the Executive discretion to spend

funds within whatever range Congress set by law.

In the third annual appropriation law, in 1791, Con-

gress 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 con-

firmed that it intended the Executive to use that discre-

tion, by validating the Executive’s past expenditure of

less than the appropriated levels: sums appropriated in

the 1791 law were to be drawn in part from “such sur-

pluses as may remain in the treasury, after satisfying the

purposes for which appropriations were made, by the

(first two appropriation acts].” /d.

At the outset of the 19th century, as the Nation’s needs

rapidly expanded, Congress gave the Executive even

greater flexibility over spending. In 1803, Congress ap-

propriated $50,000 for the President to build “not exceed-

ing fifteen gun boats . . . for such purposes as in his

opinion the public service may require.” Act of Feb. 28,

1803, ch. 11, §3, 2 Stat. 206. President Jefferson deter-

mined that the “favorable and peaceable turn of affairs on

the Mississippi” brought about by the Louisiana Purchase

and reopening of the Port of New Orleans had mitigated

the need for the vessels, and he reserved the funds until

the best models were selected the following year. 13 An-

nals of Cong. 14 (1803); 14 Annals of Cong. 13 (1804).

“The same issue of events” on the Mississippi also “ef-

fected by happier means” the purpose of a $1.5 million

appropriation, which Jefferson accordingly declined to

spend. 13 Annals of Cong. 14; see also 1 Messages and Pa-

pers of the Presidents 382-83, 405, 421 (James D. Rich-

ardson, ed., 1897) (Jefferson returning other unused

funds).

Congress also early began delegating significant spend-

ing discretion by authorizing the transfer of funds be-

tween appropriation accounts. In 1793, Treasury Sec-

retary Alexander Hamilton’s execution of an appropria-

tion law had prompted debate whether, in James Madi-

son’s words, the Executive had inherent constitutional

“discretion to be implied in the trust of executing the

laws” to “apply the excess of one fund to the aid of a defi-

cient one,” or whether such action depended on “special

permission of the law” appropriating the funds. 3 Annals

of Cong. 938 (1793). In 1809, Congress authorized the

President, “if in his opinion necessary for the public serv-

ice,” to transfer appropriations within a department dur-

ing a congressional recess. Act of Mar. 3, 1809, ch. 28. § 1,

2 Stat. 535, 535-36. In 1820, Congress amended this au-

thorization to give the President discretion to transfer ap-

propriations within the War and Navy Departments at

any time. See Act of May 1, 1820, ch. 52, §5, 3 Stat. 567,

568. Congress continued periodically to grant the Presi-

dent discretion to transfer appropriations until 1868,

when Congress repealed all transfer authority and pro-

vided that “no money appropriated for one purpose shall

hereafter be used for any other purpose.” 4

The recognition of Congress’s constitutional authority

to delegate discretion over spending persisted through the

19th century. In 1896, for example, Congress authorized

the Secretary of War to expend “not exceeding fifty thou-

sand dollars, or so much thereof as may be necessary,” to

improve the Mississippi River channel and bank. Act of

June 3, 1896, ch. 314, 29 Stat. 202, 229. Attorney General

‘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.

*Act of Feb. 12, 1868, ch. 8, §2, 15 Stat. 35, 36. In the 20th century,

Congress again authorized the transfer of discrete appropriations. See,

e.g., Act of June 30, 1932, ch. 314, §317, 47 Stat. 382, 411 (authorizing

transfer during year of up to 12% of any appropriation within same

department); Omnibus Consolidated Appropriations Act, 1997, Pub. L.

No. 104-208, 110 Stat. 3009, 3009-88 (1996) (§ 8005) (authorizing

transfer under certain conditions of up to $2 billion of Defense Depart-

ment funds); id., 110 Stat. 3009-262 (§306) (authorizing transfer

under certain conditions of Education Department funds).

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 expended; and if so, how much.” 21 Op.

Att'y Gen. 391, 392 (1896). The Attorney General in-

structed the Secretary “to proceed with the expenditure

authorized if, in your judgment, an improvement of that

condition may fairly be expected to result. Otherwise you

are left at liberty to leave the appropriation unex-

pended.” >

B. This Century Congress Has Periodically

Given the Executive Enhanced Spending

Discretion to Help Achieve Congress’s

Overall Goals

This century, as the growth of the federal budget and

the economy led to increased governmental responsibility

for managing the economy through fiscal policy, Congress

began extending to the Executive broader spending dis-

cretion to achieve Congress’s budget goals. The first pur-

pose for which Congress conferred general authority to

manage spending was to facilitate adherence to

Congress’s mandated spending limitations. As early as

1870 Congress had sought to enforce compliance with its

appropriation ceilings through the Antideficiency Act,

which made it unlawful for the Executive “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 giving the Executive the ability to control

the pace of spending. Accordingly, in 1905, Congress

amended the Antideficiency Act to authorize agencies to

apportion their appropriations on a monthly or other reg-

ular basis, so as to avoid the need for deficiency appro-

priations late in the fiscal year. Act of Mar. 3, 1905, ch.

1484, § 4, 33 Stat. 1214, 1257-58. This across-the-board

‘Id; 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).

measure thus authorized Executive agencies to exercise a

measure of control throughout 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), Each

department was to identify “indispensable” portions of ap-

propriations. After presidential review, the remaining

amount, or General Reserve, was not available for obliga-

tion. See id. President Harding affirmed the understand-

ing that Congress intended appropriations as an upper

limit on spending and that departments should effect sav-

ings by setting aside a “reasonable reserve” from each ap-

propriation.® During World War II, President Roosevelt

explained his use of “good management and the practice

of commonsense economy” to direct agencies to generate

reserves where possible, while recognizing that Congress

had delegated no authority to withhold funds “to set aside

or nullify the expressed will of Congress” or “substitute

for item or blanket veto power.” ’

Congress responded to the need for Executive flexibility

during the War by selectively delegating enhanced au-

thority to withhold appropriated funds. For example, Con-

gress authorized the Executive to withhold national high-

way funds if “the War Production Board shall certify that

the use of critical material for additional highway con-

struction would impede the conduct of the war.” Act of

July 13, 1943, ch. 236, §9, 57 Stat. 560, 563. Then-Sen-

ator Harry Truman observed,

*See Henry P. Seidemann, The Preparation of the National Budget,

113 Annals Am. Acad. Pol. & Soc. Sci. 40, 43 (1924) (reporting Har-

ding’s remarks).

’ Letter from President Roosevelt to Senator Russell (Aug. 18, 1942),

reprinted in part in First Supplemental National Defense Appropria-

tion Bill for 1944: Hearings Before a Subcomm. of the Senate Comm.

on Appropriations, 78th Cong., Ist Sess. 739 (1943).

40-468 - 97 - 2

When the Congress appropriates funds it gives the

executive branch an authority to incur obligations.

Certainly none of us hold that we give a mandate

to expend the funds appropriated. We expect the

funds to be used only where needed, 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

after veterans had returned, so that the hospitals could

be built where veterans had settled.*

In 1950 Congress again amended the Antideficiency Act

to give express approval to the Executive’s discretionary

control over spending consistent with Congress’s legis-

lated policy objectives. Congress provided: “In apportion-

ing any appropriation, reserves may be established to

provide for contingencies, or to effect savings whenever

savings are made possible by or through changes in re-

quirements, greater efficiency of operations, or other de-

velopments subsequent to the [appropriation].” Act of

Sept. 6, 1950, ch. 896, § 1211, 64 Stat. 595, 765-66. Once

the Executive determined that particular reserves “will

not be required to carry out the purposes of the appro-

priation,” it was to recommend their rescission. /d., 64

Stat. 766.

In proposing this amendment, the House Appropria-

tions Committee had stated that Congress “decides the

maximum amounts which must be appropriated for. . .

various activities” 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 ac-

tivity.” H.R. Rep. No. 1797, 81st Cong., 2d Sess. 9 (1950).

Congress intended to make the Executive responsible “for

8 See Executive Impoundment of Appropriated Funds: Hearings Be-

fore the Subcomm. on Separation of Powers of the Senate Comm. on

the Judiciary, 92d Cong., lst Sess. 84-85 (1971) (testimony of William

J. Driver, former Administrator of Veterans’ Affairs); see also 1945

Pub. Papers 238 (Truman withholding decision on location of VA hos-

pitals).

rendering all necessary service with the smallest amount

possible within the ceiling.” Jd. Acting Attorney General

Ramsey Clark later called this description “(t]he classic

exposition” of a fundamental principle of appropriations

law: “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 the Execu-

tive, for the first time, to control spending to serve

Congress’s broad fiscal policy goals: Congress directed the

Executive to use the Antideficiency Act’s new reserve au-

thority to reduce total spending for the year by at least

$550 million below appropriated levels, so long as the re-

ductions not “impair[] national defense.” Act of Sept. 6,

1950, ch. 896, § 1214, 64 Stat. 768. To accomplish the re-

quired reduction, President Truman reserved and rec-

ommended the rescission of funds for 150 separate items.

See Proposed Rescissions of Amounts Placed in Reserve,

H.R. Doc. No. 182, 82d Cong., Ist Sess. 3-8 (1951).

As an additional tool for reducing expenditures, on a

number of occasions this century Congress has given the

Executive express authority to override Congress’s spend-

ing decisions and rescind appropriations. Congress’s first

such delegation came through broad authority to reorga-

nize the Executive branch. In 1933, Congress gave the

President latitude, subject only to a report-and-wait re-

quirement, to abolish, consolidate, or transfer executive

agencies and functions, with savings in appropriations to

be “impounded and returned to the Treasury.” Act of

Mar. 3, 1933, ch. 212, § 16, 47 Stat. 1489, 1517-19. With-

in months, President Roosevelt canceled more than $25

million of appropriations by terminating and reorganizing

agencies. 1933 Pub. Papers 222-25; 77 Cong. Rec. 5707—

08 (1933). Over the next fifty years, Presidents exercised

similar statutory authority (subject to legislative veto)? to

create agencies such as the Department of Health, Edu-

°E.g., Reorganization Act of 1939, ch. 36, 53 Stat. 561; Reorganiza-

tion Act of 1945, ch. 582, 59 Stat. 613; Reorganization Act of 1949, ch.

226, 63 Stat. 203; Pub. L. No. 89-554, 80 Stat. 378, 394 (1966); see

5 U.S.C. § 905, historical and revision notes.

REE ..0 aS

cation, and Welfare and the Environmental Protection

Agency, using other agencies’ appropriations. '!°

During the late 1960s, when Vietnam War expendi-

tures and domestic needs combined to create a fiscal cri-

sis, Congress began delegating to the President even

greater control over spending, in the form of annual

spending ceilings. Beginning with fiscal year 1969, Con-

gress enacted statutory limits requiring the Executive to

hold total spending and new obligations below appro-

priated levels by $6 and $10 billion, respectively. Revenue

and Expenditure Control Act of 1968, Pub. L. No. 90-364,

§§ 202-203, 82 Stat. 251, 271-72. Excepting only four cat-

egories (the Vietnam War, debt service, veterans’ and so-

cial security benefits), Congress authorized the President

unilaterally to reduce or eliminate spending items as he

saw fit to achieve the reductions. Jd. Congress provided

that the amounts of obligations the President chose to re-

serve under this authority “are hereby rescinded.” /d.,

§$203(b), 82 Stat. 272. The President used this discre-

tionary authority to save billions of dollars in expendi-

tures.!!

C. On Occasion, the Executive Branch Has

Sought to Exercise Greater Spending Au-

thority Than Congress Has Granted

Congress’s refusal to give the President similar spend-

ing discretion beyond 1971 set the stage for conflict over

the President’s authority to decline to spend appropriated

funds. In addressing these conflicts, all three branches

manifested their understanding that the issue of how

much discretion the Executive has over expenditures is

entirely a legislative matter for Congress to determine in

exercising its appropriation power.

'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).

Episodic disputes over Executive non-spending had sur-

faced from the mid-1800s. In 1861 Senator Stephen Doug-

las had objected to President Buchanan’s failure to imple-

ment an appropriation to build a custom-house in Spring-

field, Illinois, complaining that “a hostile Executive” had

“refused to obey the law.” Cong. Globe, 36th Cong., 2d

Sess. 1177 (1861). President Grant threatened in 1876 to

disregard appropriation provisions, declaring in signing a

rivers and harbors bill 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 the objectionable

appropriations were not obligatory. /d.

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, headed

by then-Assistant Attorney General William H.

Rehnquist, rejected this theory: “[Wle conclude that the

President does not have a constitutional right to impound

[appropriated] funds notwithstanding a Congressional di-

rection that they be spent.” '!? While agreeing with Acting

Attorney General Clark “that an appropriation act per-

mits but does not require the executive branch to spend

funds,” the Office of Legal Counsel opined that “this is

basically a rule of construction,” subservient to Congress’s

will with respect to each individual appropriation: Wheth-

er the Executive has discretion over a particular spending

measure is solely an issue of congressional intent, and the

President has whatever discretion Congress has given.!3

'?Memorandum 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. on

Separation of Powers of the Senaie Comm. on the Judiciary, 92d Cong.,

Ist Sess. 279, 282 (1971) (hereinafter “OLC Memo.”).

Td.

In the years following, Congress determined not to give

the President the discretion it had conferred through

prior annual ceilings on total government spending. Nev-

ertheless, the Nixon Administration embarked on an am-

bitious course of spending cuts, impounding funds appro-

priated for a wide variety of programs, including housing,

education, and environmental programs, notwithstanding

the Office of Legal Counsel opinion. As a result, in the

early 1970s, courts in scores of cases were required to de-

termine whether the Executive had the authority it as-

serted 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 invalidat-

ing impoundments and ordering funds released when

Congress had intended the funds to be spent. In Train v.

City of New York, 420 U.S. 35 (1975), this Court inter-

preted a statutory mandate that sums authorized for sew-

age facilities “shall be allotted,” id. at 42, to require the

Executive to release all funds authorized by Congress. In

rejecting the Executive’s assertion that Congress had leg-

islated “a maximum, but no minimum,” id. at 43, the

Court made no suggestion that, had Congress delegated

“limitless power to withhold funds from allotment and ob-

ligation,” id. at 46, this would have been constitutionally

improper. Nor did the Court find it necessary to apply the

principle of construing delegations “narrowly to avoid con-

stitutional 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 used

straightforward statutory construction to conclude that

Congress had intended to confer no such discretion.

Train, 420 U.S. at 42-49. Lower courts reached like re-

sults in scores of cases also without a hint that such dele-

gations presented any issue other than statutory con-

struction, consistently recognizing that the Executive had

as much or as little authority to withhold appropriated

funds as Congress had granted.'* In the one case in

which the District of Columbia Circuit found that Con-

gress had authorized the Executive to withhold appro-

priated funds, the court similarly evidenced no concern

that such discretion raised a constitutional issue. Penn-

sylvania v. Lynn, 501 F.2d 848 (D.C. Cir. 1974).

D. Congress Legislated Firm Controls on Ex-

ecutive Spending Discretion in the Im-

poundment Control Act

The frequency with which the Nixon Administration as-

serted discretion to withhold funds that Congress had in-

tended be spent led Congress to enact legislation to en-

sure that the Executive would withhold only appropria-

tions that Congress had intended to be permissive. Im-

poundment 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). Through the Impoundment Control Act Con-

gress sought to control two forms of impoundments: defer-

rals and rescissions. Deferrals refer to spending delays

over the course of a fiscal year, while rescissions identify

determinations permanently to withhold appropriated

funds. Jd., §§ 1011-1013, 88 Stat. 333—35. Congress au-

thorized Executive deferrals, upon reporting to Congress

and subject to legislative veto. Jd., § 1013, 88 Stat. 334—

35. Congress permitted the President only to propose re-

scissions, to be effective only upon enactment, using spe-

cial expedited procedures, of a rescission law. Id., § 1017,

88 Stat. 337-39. Unless Congress affirmatively approved

the rescission, the President was obliged to release the

funds. Jd., § 1012(b), 88 Stat. 334.

After invalidation of the legislative veto, INS v.

Chadha, 462 U.S. 919 (1983), the Executive began to use

deferrals aggressively on the view that severance of the

'4See, e.g., State Highway Comm'n v. Volpe, 479 F.2d 1099, 1109-

14 (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, AF.G.E. v. Phillips, 358 F.

Supp. 60, 75-79 (D.D.C. 1973).

legislative veto from the Impoundment Control Act left

the President with expanded deferral authority, subject to

disapproval only through Congress’s enactment of a new

law. The District of Columbia Circuit rejected this view

and struck the entire deferral mechanism, holding that

the legislative veto provision could not be severed from

the deferral authority. City of New Haven v. United

States, 809 F.2d 900 (D.C. Cir. 1987). Congress then

amended the Impoundment Control Act to narrow the Ex-

ecutive’s deferral authority, in light of the loss of control

previously provided by the legislative veto, to those pur-

poses permitted by the Antideficiency Act. Pub. L. No.

100-119, § 206, 101 Stat. 754, 785-86 (1987). As amend-

ed, the Impoundment Control Act now authorizes defer-

rals only “to provide for contingencies,” “to achieve sav-

ings made possible by or through changes in require-

ments or greater efficiency of operations,” or as otherwise

provided by law, and allows the Executive only to propose

rescissions. 2 U.S.C. §684(b) (1994).

E. For Over a Decade, Congress Has Dele-

gated Particular Authority Over Spending

to Achieve Deficit Reduction

Ballooning federal deficits in the 1980s led Congress to

fashion further tools to control spending. In 1985, Con-

gress enacted the Gramm-Rudman-Hollings Act, authoriz-

ing the President to issue a “sequestration” order cancel-

ing, pro rata, appropriations for a broad range of specified

programs, as necessary to meet mandated annual deficit

targets. Balanced Budget and Emergency Deficit Control

Act of 1985, Pub. L. No. 99-177, tit. I, §252, 99 Stat.

1038, 1072-78. After this Court invalidated the Comptrol-

ler General’s role in administering sequestration,

Bowsher v. Synar, 478 U.S. 714 (1986), Congress amend-

ed the Act to delegate the sequestration function exclu-

sively 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 targets proved difficult to achieve, Congress again

’ Be ea) cette HE let te oe ‘

amended the Act to replace the fixed targets with pro-

spective annual spending limits and revenue-neutrality

requirements, to be enforced through Executive seques-

tration. Budget Enforcement Act of 1990, Pub. L. No.

101-508, tit. XIII, §§ 13101, 13111, 104 Stat. 1388-573,

1388-574 to 1388-602.

As large deficits persisted, Congress began considering

measures to augment the existing rescission and seques-

tration regimens. One of these proposals, called “expe-

dited rescission,” was to amend the Impoundment Control

Act to streamline the process for Congress to approve re-

scissions proposed by the President. See, e.g., H.R. 2164,

102d Cong. (1991). An alternative proposal, termed “en-

hanced rescission,” was to make Executive rescissions

automatic in defined circumstances, subject to congres-

sional disapproval. See, e.g., S. 206, 104th Cong. (1995);

H.R. 78, 102d Cong. (1991). Other proposals included

amending the Constitution to give the President a line-

item veto, see, e.g., H.J. Res. 6, 104th Cong. (1995); HJ.

Res. 4, 103d Cong. (1993), or adopting a congressional

procedure for presenting each spending provision to the

President as a separate bill, for approval or veto, see, e.g.,

S. 137, 104th Cong. (1995); S. 238, 104th Cong. (1995).

Although these latter, more sweeping proposals did not

gain a majority, support for amending the Impoundment

Control Act grew, until in the Line Item Veto Act of 1996

Congress determined to give the President “enhanced re-

scission” authority. Having learned from this Court in

Chadha and Bowsher that Congress cannot reserve any

role for itself in executing the laws, Congress delegated

all authority to implement the Act to the President, by

giving the President circumscribed discretion to cancel

spending during a five-day period.

Il. THE LINE ITEM VETO ACT IS A CONSTITU-

TIONAL EXERCISE OF THE APPROPRIATION

POWER

Congress's delegation to the President of limited au-

thority to cancel the effect of discrete spending and reve-

nue provisions is consistent with the lawmaking require-

ments of Article I and the constitutional separation of

powers, as expressed in the doctrine against undue dele-

gation.

A. The Line Item Veto Act Conforms With Ar-

ticle I

The Line Item Veto Act respects the lawmaking re-

quirements of Article I. “Explicit and unambiguous provi-

sions of the Constitution prescribe and define the respec-

tive 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: “bicameral passage followed by present-

ment to the President.” Jd. at 954-55. These require-

ments “serve essential constitutional functions” and

“represent|] the Framers’ decision that the legislative

power of the Federal Government be exercised in accord

with a single, finely wrought and exhaustively considered,

procedure.” Jd. at 951.

The Line Item Veto Act fully follows this procedure.

The Act itself, obviously, was agreed to by both Houses

and the President. Further, the Act applies only to laws

that have themselves been enacted in compliance with

Article I, section 7, for the President’s cancellation au-

thority arises only “with respect to any bill or joint reso-

lution that has been signed into law pursuant to Article

I, section 7, of the Constitution.” ICA § 1021(a) (2 U.S.C.

§691(a)); App. App. at 32a. Thus, the Act does not alter

or enlarge the President’s “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 entire law or not at all. Indeed, by restricting the can-

cellation authority to provisions that the President has

“signed into law,” Congress has prevented the President

from using the Act to supplement the veto power.

Despite the Act’s adherence to Article I’s “[e]xplicit and

unambiguous provisions,” id. at 945, appellees contend

that the Act violates Article I by giving the President uni-

lateral power, following enactment, in effect to repeal

on or et ccna

laws.'> This Court has established that executive author-

ity to alter the force of laws poses no violation under Arti-

cle I. In Chadha the Court considered the similar argu-

ment that permitting the Executive to exercise delegated

authority, there under the Immigration and Nationality

Act, “will sanction ‘lawmaking by the Attorney General.

* * * Why is the Attorney General exempt from submit-

ting his proposed changes in the law to the full bicameral

process?” 462 U.S. at 953 n.16 (quoting petitioner’s brief:

omission in original). While noting that “some adminis-

trative agency action—rulemaking, for example—may re-

semble ‘lawmaking,’” the Court held, “Executive action

under legislatively delegated authority that might resem-

ble ‘legislative’ action in some respects is not subject to

the approval of both Houses of Congress and the Presi-

dent for the reason that the Constitution does not so re-

quire.” Id. “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.” Jd.

Similarly, any use of the President’s cancellation au-

thority under the Line Item Veto Act will occur not as an

exercise of legislative power, but in fulfillment of the

President’s Article II duty to execute the laws. “When the

Executive acts, he presumptively acts in an executive or

administrative capacity as defined in Art. II.” Jd. at 951

(citation omitted). Once the President signs into law a

spending or revenue bill subject to the Line Item Veto

Act, he has no more lawmaking responsibilities regarding

that legislation. The legislative process is complete, for “a

bill when so signed becomes from that moment a law.” La

'SThe short title of the “Line Item Veto Act” provides no support for

this argument. While “the title of a statute or section can aid in resolv-

ing an ambiguity in the legislation’s text,” INS v. National Center for

Immigrants’ 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).

Abra Silver Mining Co. v. United States, 175 U.S. 423,

454 (1899).

From that moment, the President has an Article II duty

to execute both the law subject to the Act and the Act it-

self. The constitutional value underlying the Presentment

Clause, that all participants in the lawmaking process

agree to precisely the same statutory text, has been

achieved: The President’s executive authority “cannot

reach beyond the limits of the [Line Item Veto Act] that

created it—a statute duly enacted,” Chadha, 462 U.S. at

953 n.16, to which all lawmaking participants agreed.

When Congress presents, and the President approves, a

bill covered by the Act, all three actors will also have

agreed that each spending and revenue item in the bill is

to be subject to executive cancellation, within the limits

of the Act. Therefore, the President’s post-enactment ex-

ercise of authority to cancel these items does not impli-

cate the “finely wrought” procedure of Article I. Cf. Skin-

ner v. Mid-America Pipeline Co., 490 U.S. 212, 221 (1989)

(Article I’s Origination Clause “implies nothing about the

scope of Congress’ power to delegate discretionary author-

ity under its taxing power once a tax bill has been prop-

not violate Article I, as the manner in which the President exercises

the cancellation authority differentiates this delegation from lawmak-

ing. Under the Presentment 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 con-

trast, under the Line Item Veto Act, the President sends both Houses

a “special message,” which is printed not in a congressional Journal

but in the Federal Register, where administrative actions are re-

corded. ICA § 1022(c2) (2 U.S.C. §691la(cX2)); App. App. at 36a. If ei-

ther House wishes to disapprove one or more presidential cancella-

tions, it does so not by the originating House’s reconsidering the origi-

nal bill disapproved by the President, as required when overriding a

presidential veto, but by considering a fresh bill, in full compliance

with Article I, section 7. ICA § 1025 (2 U.S.C. §691d); App. App. at

39a—47a.

Sabina ART Acie Rose eke

Nor does the requirement that the President exercise

his cancellation authority within five days of signing the

underlying spending or revenue bill, ICA § 1021(a\(B) (2

U.S.C. §691(a)(B)); App. App. at 33a, alter this conclusion

or suggest that Congress was seeking to enhance the

President’s veto power. In fact, the five-day limit serves

a different and worthy end. Because spending cancella-

tions are limited to total rescission, any potential of a

cancellation’s occurring after the beginning of a fiscal

year would render agencies legally unable to obligate any

appropriated funds at the beginning of the year. Other-

wise, if any of their spending items came to be canceled,

agencies would have already spent some portion of the

appropriated, but now rescinded, funds, thereby violating

the Antideficiency Act. Moreover, any presidential can-

cellation will necessarily introduce a period of uncertainty

whether Congress will invoke the procedures under the

Act to disapprove any of the cancellations. In that inter-

val, agencies whose appropriations are affected by can-

cellations, along with their employees, beneficiaries, and

contractors, and, in the case of revenue provisions, af-

fected taxpayers, will be burdened by that uncertainty. To

avoid “unnecessarily prolong{ing] the process,” H.R. Conf.

Rep. No. 491, 104th Cong., 2d Sess. 22 (1996), while still

giving the President adequate time to make the Act’s re-

quired determinations, Congress prudently limited can-

cellation to the five days after enactment.

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 doctrine against undue delegation.

As the Court explained in Chadha, after rejecting the

claim that the Executive was performing legislative func-

tions in violation of Article I, “(t]he constitutionality of

the Attorney General’s execution of the authority dele-

gated to him by [statute] involves only a question of dele-

gation 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, Jr., & Co. v. United States, 276 U.S. 394

(1928), and Field v. Clark, 143 U.S. 649, 683-89 (1892)),

and affirmed “that the delegation of discretionary author-

ity under Congress’ taxing power is subject to no constitu-

tional scrutiny greater than that we 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 appro-

priations, to be nondelegable due to its ‘core function’ sta-

tus,” and “[njo constitutional provision distinguishes be-

tween ‘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 uv.

United States, 116 S. Ct. 1727, 1748 (1996).

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 accordingly has recog-

nized Congress’s power to appropriate funds without

specifying “the particular uses to which the appropriated

money is to be put”:

oO wee

ve a aon

That Congress has wide discretion in the matter of

prescribing details of expenditures for which it ap-

i grr must, of course, be plain. Appropriation

and other acts of Congress are replete with in-

stances of general appropriations of large amounts,

to be allotted and expended as directed by des-

ignated government agencies. ... The constitu-

tionality of this delegation of authority has never

been seriously questioned. '7

The Line Item Veto Act fully complies with the Appro-

priations Clause, because Congress continues to appro-

priate every penny available for spending. The President

has discretion only to decline to spend funds that Con-

gress has appropriated, not to spend funds that Congress

has declined to appropriate.

This delegation of authority in the Line Item Veto Act

not to spend appropriated funds is not novel. As described

in Point I, Congress has delegated discretion to the Exec-

utive to decline to spend appropriated funds since its first

appropriations under the Constitution. The Justice De-

partment has concurred that “Congress could provide in

its appropriation that the money need not be spent. Or it

could enact an appropriation, and then provide in contem-

poraneous or subsequent legislation that the money need

not be spent. . . .” OLC Memo., supra n.12, at 282. In

construing 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

ground for the constitutionality of the practice, to

'? 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.

are,

be 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 accepted history of permissive appro-

priations, the district court held that Congress had not

“conferred a delegable power” in the Line Item Veto Act,

but had “ceded basic legislative authority.” App. App. at

24a. The court found that “[clancellation under the Act is

simply not the same thing as impoundment, or any other

suspension of a statutory provision,” but “is equivalent to

repeal.” App. App. at 24a—25a. “Never before,” according

to the district court, has a congressional delegation “gone

so far as to transfer the function of repealing a provision

of statutory law.” App. App. at 25a.

Contrary to the district court’s understanding, Congress

has long authorized Executive action altering the force of

enacted laws, including taxing and spending laws. This

Court’s approval of such delegations dates at least to

1813, when the Court upheld the President’s exercise of

delegated 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 (1813).

Describing the Brig Aurora decision for the Court in

1892, Justice Harlan noted that, faced with a claim “that

Congress could not transfer legislative power to the Presi-

dent,” the Court had “decilded] that it was competent for

Congress to make the revival of an act depend upon the

proclamation of the President.” Field v. Clark, 143 U.S.

at 682-83. Justice Harlan traced Congress’s delegation of

authority to trigger statutory repeals of tax provisions to

1815, when Congress authorized repeal of laws imposing

import duties, “[sluch repeal to take effect in favour of

any foreign nation, whenever the President” determines

that that nation’s duties have been abolished. Act of Mar.

3, 1815, ch. 77, 3 Stat. 224, cited in Field v. Clark, 143

U.S. at 685. As Justice Harlan observed, President Mon-

roe used this authority to issue several proclamations,

which were printed in the United States Statutes at

Large, declaring that those statutory provisions “are re-

pealed” with respect to imports of particular origin. 3

Stat. app. 1, procl. 3-7 (1818—21), cited in 143 U.S. at

686.

Justice Harlan also cited a law dating from 1830 pro-

viding that Acts of Congress 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, cited in 143

U.S. at 687. These legislative precedents giving the Presi-

dent authority to alter the force and effect of tax laws,

“from the organization of the government to the present

time,” are “entitled to great weight.” 143 U.S. at 683.

Congress has given the President similar authority to

nullify spending provisions. In the 1960s Congress au-

thorized the President to reduce federal spending several

billion dollars below appropriated levels through rescis-

sion. See supra p. 12. Further, the Gramm-Rudman-Hol-

lings Act authorized the President “permanently [to]

cancel{]” a portion of all covered appropriations. Pub. L.

No. 99-177, § 252(a)(4), 99 Stat. 1074; see supra p. 16. In

Synar v. United States, the three-judge district court

“disagree{d]” with the plaintiffs’ claim that the delegation

was “per se invalid because it allows administrators to

‘nullify’ or ‘override’ laws”:

The Supreme Court previously has upheld delega-

tions which permit officials to determine when, if

ever, a law should take effect. . . . In such cases,

the Court classifies Congress’ action as legislating

in contingency. . . . Viewed in this context, the au-

thority delegated by the Act does not differ in kind

from that approved in prior cases.

626 F. Supp. at 1387.

Nor are statutory delegations to override provisions of

law unique to taxation and spending. In the Rules Ena-

bling Acts, for example, Congress delegated to this Court

authority to promulgate rules of practice and procedure

for civil proceedings (and formerly for criminal proceed-

ings) in the lower courts and provided that “[aJll laws in

conflict with such rules shall be of no further force or ef-

fect.” 28 U.S.C. §2072(b) (1994) (civil); 18 U.S.C. §3771

(1982) (repealed) (criminal); see Sibbach v. Wilson & Co.,

312 U.S. 1, 7-10 (1941); Davis v. United States, 411 U.S.

233, 241 (1973) (“force of §3771” is that “prior inconsist-

ent statute [is] deemed to have been repealed”).

As in each of these prior cases, Executive action pursu-

ant to the Line Item Veto Act fulfills, rather than nul-

lifies, Congress’s will. Because Congress has expressly

legislated that each spending provision enacted over the

life of the Act (unless exempted from the Act) be permis-

sive and subject to cancellation within the limits of the

Act, a presidential decision not to spend a permissive ap-

propriation in accord with this delegated statutory au-

thority simply does not nullify Congress’s legislated will.

C. The Line Item Veto Act Comports With the

Doctrine Against Undue Delegation

The Line Item Veto Act is a constitutional delegation

that serves the separation of powers through “measured

cooperation between the two political branches of the

Government, each contributing to a lawful 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 economic threat that per-

sistent budget deficits pose to the Nation, Congress has

determined to make all spending and tax provisions cov-

ered by the Act permissive for five days from their enact-

ment. In establishing deficit reduction as its paramount

objective, Congress has fulfilled “(t]he essentials of the

legislative function,” Yakus v. United States, 321 US.

414, 424 (1944), by “‘layling] down by legislative act an

intelligible principle’” to guide the President’s discretion.

ee ee ee

Mistretta, 488 U.S. at 272 (quoting J.W. Hampton, 276

U.S. at 409),

The determinations, assessments, estimates, and con-

siderations that Congress directed be part of the Presi-

dent’s cancellation decisions under the Act provide a ro-

bust context guiding his exercise of discretion. To cancel

spending or tax benefits, the President must determine,

and report to Congress, that the cancellation will reduce

the federal budget deficit, not impair any essential gov-

ernment functions, and not harm the national interest.

ICA §1021(a) (2 U.S.C. §691(a)); App. App. at 33a. The

President’s cancellation message must provide “support-

ing material,” explain “the reasons for the cancellation,”

estimate the “fiscal, economic, and budgetary effect,” de-

scribe “all facts, circumstances and considerations relat-

ing to or bearing upon the cancellation,” estimate the ef-

fect on the “objects, purposes and programs” affected, and

identify “the specific States and congressional districts, if

any, affected.” ICA §1022(b) (2 U.S.C. §691a(b)); App.

App. at 34a—35a. The President must “consider the legis-

lative history, construction, and purposes of the law” sub-

ject to cancellation and “any specific sources of informa-

tion referenced in such law or, in the absence of specific

sources of information, the best available information.”

ICA § 1021(b) (2 U.S.C. §691(b)); App. App. at 33a.

Key statutory features further confine the President’s

discretion. The Act constrains the President’s cancellation

authority to the five days after a measure is enacted,

rather than throughout the year. The fact that the can-

cellation authority is one-time-only also limits the Presi-

dent’s discretion, as the President may not cancel fund-

ing, only to restore it later. Significantly, the President’s

cancellation authority is limited to total rescission. The

President is thus put to the difficult choice of canceling

a spending or tax item entirely or not at all. This “all or

nothing” requirement, H.R. Conf. Rep. No. 104~491, at

32, 33, gives the President far less discretion than a gen-

eral grant of authority to reduce expenditures to any level

he sees fit.

Further, Congress made a number of controlling legis-

lative judgments. Congress exempted two-thirds of the

budget from the reach of presidential discretion by ex-

cluding all current levels of entitlement programs from

cancellation. ICA §§1021(a)(2), 1026(5), (8) (2 U.S.C.

§§ 691(a)(2), 691e(5), (8)); App. App. at 32a, 49a, 51a. Con-

gress also limited the President to cancellation of appro-

priation dollar amounts, not substantive provisions. See

ICA § 1026(4)(A) (2 U.S.C. §691e(4)(A)); App. App. at 48a.

By barring cancellation of “fencing language” or other

substantive provisions, Congress ensured “that the Presi-

dent cannot use this authority to modify or alter any as-

pect of the underlying law.” H.R. Conf. Rep. No. 104-491,

at 20. Finally, to ensure that the authority can be used

to advance only its legislative purpose of deficit reduction,

Congress enacted an intricate “lockbox” mechanism, ICA

§ 1024 (2 U.S.C. §691c); App. App. at 37a—39a,

to maintain a system of checks and balances in the

President’s use of the cancellation authority. Any

credit for money not spent, or for revenue foregone,

is dedicated to deficit reduction .. . . This ensures

that the President does not simply cancel . . . in

order to increase spending in other areas. '*

Notwithstanding the substantial legisiative judgments

and standards embodied in the Act, appellees have point-

ed to several attributes of the Act to seek to differentiate

it from prior delegations. They have noted that the can-

cellation authority may be exercised immediately, without

any intervening changes in circumstances; that, once ex-

ercised, it is irreversible; that its exercise is not manda-

tory; and that the President may use the authority to im-

'SH.R. Conf. Rep. No. 104-491, at 20-21. In addition, Congress re-

tains ultimate control over all appropriation and revenue 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, App. App. at

58a—59a, with each spending or tax measure enacted over the next

eight years, Congress retains the power to make a fresh decision

whether or not to make that measure subject to the Act. Each time

Congress makes the legislative judgment to let the Act apply, it choos-

es to make the individual items in that law permissive.

plement his policy choices. This Court’s substantial dele-

gation jurisprudence identifies none of these features as

injurious to the constitutional legitimacy of a delegation.

The Line Item Veto Act is not the first delegation with

these attributes. With regard to appellees’ assertion that

prior delegations depended upon the passage of a signifi-

cant interval before their use, during which changes in

circumstances necessitating administrative action might

occur, one of the most important delegations of contem-

porary times, the power conferred on President Nixon to

impose wage-price controls, depended on neither an inter-

val of time nor a change in circumstances. A three-judge

district court in the District of Columbia upheld

Congress’s delegation of discretion to impose wage-price

controls, despite the fact that the delegated authority be-

came effective immediately 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.” See Amalgamated Meat Cutters v. Connally, 337

F. Supp. 737, 754 & n.30 (D.D.C. 1971) (three-judge

court), cited with approval in Eastlake v. Forest City En-

terprises, 426 U.S. 668, 675 (1976).

Nor is the irreversible nature of a cancellation under

the Act unique. Each of the statutes authorizing the Ex-

ecutive to nullify or repeal tax or spending provisions

cited in Point IIB, see supra pp. 24-25, from the 1815 law

authorizing President Monroe to repeal import duties re-

lied upon by Justice Harlan in Field v. Clark, 143 U‘S.

at 685, to the Gramm-Rudman-Hollings sequestration au-

thority upheld by the three-judge district court in Synar,

626 F. Supp. at 1377, delegated similarly irreversible or

permanent authority. Moreover, as noted above, that can-

cellation authority is irreversible operates as a limit, not

an expansion, on the delegation.

Finally, that the President has discretion whether to

exercise cancellation authority, and that he may use that

authority to further policy goals of his Administration, do

not distinguish the Line Item Veto Act from prior delega-

| OT og. « RP)

ak aT ARS AMIN TR A RN a I a i rm RN aL cane? inane IE, SSS ETE Se +. <A CLE a a tT TEE TOOL te TT

tions, nor suggest any constitutional defect. To note just

one example, the sweeping authority upheld in Amal-

gamated Meat Cutters “‘to issue such orders and regula-

tions as [the President] may deem appropriate to stabilize

prices, rents, wages and salaries’”'? neither compelled

the President to impose wage or price controls nor pre-

cluded the President from using the authority to further

economic goals he supported. ;

As the Court has recently reaffirmed, “‘Congress is not

confined to that method of executing its policy which in-

volves the least possible delegation,” Mistretta, 488 U.S.

at 379 (quoting Yakus, 321 U.S. at 425-26), and it is no

indictment of a law like the Line Item Veto Act that Con-

gress has delegated “authority that it could exercise it-

self,” Loving, 116 S. Ct. at 1744 (citing Wayman uv.

Southard, 23 U.S. (10 Wheat.) 1, 42 (1825)). The Court

should uphold the delegation of Executive authority in

the Line Item Veto Act, because the Act meets the stand- /

ards this Court applies to safeguard the separation of |

pede.

powers.

CONCLUSION

The Court should reverse the judgment of the district ;

court.

Respectfully submitted,

GERALDINE R. GENNET, THOMAS B. GRIFFITH,

Acting General Counsel, (Counsel of Record)

KERRY W. KIRCHER, Senate Legal Counsel,

MICHAEL L. STERN, MORGAN J. FRANKEL,

Senior Assistant Counsel, Deputy Senate Legal Counsel,

CAROLYN BETZ, STEVEN F. HUEFNER,

Assistant Counsel. MONICA P. DOLIN,

Counsel for the Bipartisan Assistant Senate Legal

Legal Advisory Group of the Counsel. ;

United States House of Counsel for the United States ,

Representatives. Senate.

May 1997. |

R b

‘9337 F. Supp. at 745 (quoting Economic Stabilization Act of 1970,

Pub. L. No. 91-379, tit. II, §202, 84 Stat. 799, 799-800).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.