Home > Vol. 76 > Issue 76:1 > The Constitutionality of an Expedited Rescission Act: The New Line Item Veto or a New Constitutional Method of Achieving Deficit Reduction

The Constitutionality of an Expedited Rescission Act: The New Line Item Veto or a New Constitutional Method of Achieving Deficit Reduction

Seema Mittal · November 2007
76 GEO. WASH. L. REV. 141 (2007)

In 1998, the Supreme Court considered a challenge to the Line Item Veto Act of 1996, which gave the President unilateral authority to rescind certain spending provisions already enacted into law, and found it unconstitutional. Nonetheless, in March 2006, President George W. Bush sent Congress legislation that would give him what he considered to be a constitutional line item veto, which would allow him to do two things: (1) reduce wasteful spending and (2) improve accountability for earmarks that are slipped into bills at the last minute.

This legislation does not propose the same power provided by the Line Item Veto Act, but rather President Bush has requested expedited rescission power: the power to propose rescissions of spending provisions already enacted into law, which are then required to receive an up-or-down vote by Congress through a fast-track procedure. The President already has the authority to propose rescissions of enacted law to Congress under the Congressional Budget and Impoundment Control Act of 1974 (“Impoundment Control Act”). The Impoundment Control Act does not, however, require that Congress vote on the President’s proposed rescission package. What President Bush’s proposed legislation does is simply guarantee that the proposals are voted on in a timely manner.

In addition to the President’s proposed legislation, members of the House of Representatives and Senate introduced their own versions of an expedited rescission proposal in 2007 during the 110th Congress. Because these three expedited rescission proposals require that all savings achieved from the rescissions go to deficit reduction, the President, with Congress’s approval, can eliminate wasteful provisions without having to veto an entire bill that contains important provisions. This authority, therefore, is essential to controlling the excessive spending that is causing the debilitating deficit in our country, which has reached $248 billion.

The Impoundment Control Act currently allows for the President to withhold funds for forty-five days while Congress is considering the proposals; therefore, this Note proposes that the Impoundment Control Act be amended so that its withholding period cannot be used in conjunction with the new expedited rescission authority, and the President may only chose one method or the other.

Additionally, this Note proposes that either the withholding authority be stripped from the proposals completely, or that the period be shortened to a period of fifteen days from the time the rescission package is sent to Congress, or less if Congress votes on the proposal sooner. This shortened period of time would only allow the President to withhold funds while Congress was considering his proposed rescission package under an expedited process, thus preventing any unnecessary withholding of funds after Congress has decided against the President’s proposal.

Part I of this Note explains the rationale for creating line item veto authority, discusses the history of the Line Item Veto Act of 1996—summarizing the legislation and describing generally what line item authority permits—and examines the Supreme Court’s finding that the 1996 law was unconstitutional. Part II then discusses the President’s 2006 proposal for expedited rescission authority, as well as the House and Senate proposals that were introduced during the first session of the 110th Congress. Lastly, Part III of this Note proposes several ways to change the Senate’s proposal to ensure its constitutionality, including (1) stripping the withholding authority from the proposal entirely, (2) shortening the number of days for withholding to a period of fifteen days of session, and (3) beginning the forty-five day withholding period when Congress enacts the provisions that the President is proposing to rescind.

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