of the bill containing the very same measures being rescinded.
Thus the cancellation power conferred by the Act is indeed revolutionary, as plaintiffs assert. Never before has Congress attempted to give away the power to shape the content of a statute of the United States, as the Act purports to do. As expansive as its delegations of power may have been in the past, none has gone so far as to transfer the function of repealing a provision of statutory law. The power to "make" the laws of the nation is the exclusive, non-delegable power of Congress which the Line Item Veto Act purports to alienate in part for eight years. That it can be recaptured if Congress repeals the Act, or suspends it (either in general, or in particular circumstances) does not alter the fact that, until Congress does so by a separate bill which the President signs (or as to which his veto is overridden), the President has become a co-maker of the Nation's laws. The duty of the President with respect to such laws is to "take care that [they] be faithfully executed." U.S. Const. art II, § 3. Canceling, i.e., repealing, parts of a law cannot be considered its faithful execution.
Moreover, if cancellation power could constitutionally be delegated as to appropriations and limited tax benefits, defendants have yet to show a tenable constitutional distinction between appropriation and tax laws, on the one hand, and all other laws, on the other. In fact, defendants deny any obligation to suggest such a distinction at all. At oral argument they insisted that there is virtually no limit to the express Article I powers Congress may delegate if it chooses, so long as it articulates "intelligible principles" by which its delegee is to be guided. If that is so -- if Congress can delegate to the President the power to reconfigure an appropriations or tax benefit bill -- why can he not also cancel provisions of an environmental protection or civil rights law he disfavors, and upon exactly the same "principles" as are to guide his exercise of cancellation authority under the Line Item Veto Act?
As authority for the proposition that it is constitutionally permissible for Congress to delegate to the President the power to render a law of the United States inoperable, defendants cite the case of Field v. Clark, 143 U.S. 649, 36 L. Ed. 294, 12 S. Ct. 495 (1892). Aside from the fact that the presidential action approved by the Supreme Court in Field v. Clark was merely the "suspension" of duly enacted tariffs, not their cancellation, the case is also distinguishable on the ground that the Supreme Court recognized the practice of "legislating in contingency;" that is, where Congress itself determines in advance when conditions yet to occur should cause the law to cease to be operative. The president is merely the instrument of its will. Id. at 683-92. See also United States v. Rock Royal Co-op, Inc., 307 U.S. 533, 577-78, 83 L. Ed. 1446, 59 S. Ct. 993 (1939); Currin v. Wallace, 306 U.S. 1, 15-16, 83 L. Ed. 441, 59 S. Ct. 379 (1939); The Brig Aurora, 11 U.S. (7 Cranch) 382, 388, 3 L. Ed. 378 (1813).
The Line Item Veto Act, in contrast, hands off to the President authority over fundamental legislative choices. Indeed, that is its reason for being. It spares Congress the burden of making those vexing choices of which programs to preserve and which to cut. Thus, by placing on itself the "onus" of overriding the President's cancellations, see H.R. Conf. Rep. No. 491, 104th Cong., 2d Sess. at 16 (1996), Congress has turned the constitutional division of responsibilities for legislating on its head.
The Court therefore agrees with plaintiffs. In those Supreme Court cases which this Court finds most instructive for its purposes, most notably Chadha, the Supreme Court has repeatedly counseled that when the Constitution speaks to the matter, the Constitution alone controls the way in which governmental powers shall be exercised.
The formalities of the constitutional framework must be respected; the several estates subject to it must function within the spheres the Constitution allots to them.
In passing the Act, Congress and the President addressed the significant problem of runaway spending, striving to create a more efficient process. But "the Framers ranked other values higher than efficiency." Chadha, 462 U.S. at 959. As the Court elaborated:
With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.
Id. Various legislative alternatives remain available to give the President a more significant role in restraining government spending. For example, the "expedited rescission" model favored by many Members of the 104th Congress would retain the President's role as a recommender of rescissions, see U.S. Const. art. II, § 3, and force Congress to vote on such proposals. And, of course, Congress remains free to attempt passage of a constitutional amendment if it determines that the President should have unilateral revisionary power.
For the foregoing reasons, it is, this 10th day of April, 1997,
ORDERED, that defendants' motion to dismiss the complaint and motion for summary judgment are denied; and it is
FURTHER ORDERED, that plaintiffs' motion for summary judgment is granted; and it is
FURTHER ORDERED, that the Line Item Veto Act, Pub. Law No. 104-130, 110 Stat. 1200 (1996), is adjudged and declared unconstitutional.
Thomas Penfield Jackson
U.S. District Judge