whether these laws, in their truncated form, would have received the requisite support from both the House and the Senate. Because the laws that emerged after the Line Item Veto are not the same laws that proceeded through the legislative process, as required, the resulting laws are not valid.
Furthermore, the President violated the requirements of Article I when he unilaterally canceled provisions of duly enacted statutes. Unilateral action by any single participant in the law-making process is precisely what the Bicameralism and Presentment Clauses were designed to prevent. Once a bill becomes law, it can only be repealed or amended through another, independent legislative enactment, which itself must conform with the requirements of Article I. Any recessions must be agreed upon by a majority of both Houses of Congress. The President cannot single-handedly revise the work of the other two participants in the lawmaking process, as he did here when he vetoed certain provisions of these statutes.
Defendants, curiously, contend that, despite its title, the Line Item Veto Act does not authorize the President to "veto" anything. They maintain that under the Act, "the Bill stays as law, unless the President were to exercise his constitutional power to veto. Nothing changes about the bill. The law remains law. . . . The law remains on the books and the law remains valid." (Tr. of Mot. Hr'g, Jan. 14, 1998 at 71, 78.) The Court does not follow Defendants' logic. In the words of Richard Cardinal Cushing. "When I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck." Whatever defendants wish to call the President's action, it has every mark of a veto. The Line Item Veto Act states explicitly that "cancel" means "to rescind" or to render the provision as having no "legal force or effect." How a "canceled" provision "remains on the books" and "remains valid" defies logic. The only way to restore these canceled provision is for Congress to pass and present new bills according to the procedure prescribed in Article I. Clearly, this is an indication that the canceled law no longer exists. Therefore, despite Defendants' contentions, the Court finds that when the President canceled these provisions pursuant to his Line Item Veto authority, he unilaterally repealed duly enacted provisions and amended duly enacted laws, which Article I does not permit him to do.
Finally, Congress' "indirect attempt to accomplish what the Constitution prohibits . . . accomplishing directly" cannot stand. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 829, 131 L. Ed. 2d 881, 115 S. Ct. 1842 (1995). "To argue otherwise is to suggest that the Framers spent significant time and energy in debating and crafting Clauses that could be easily evaded." Id. at 831. Congress knew that a simple Line Item Veto, performed prior to the President's signature, would violate Article I's requirement that the president sign or return the bill in toto. See Line Item Veto: The President's Constitutional Authority, Hearing on S. Res. 195 Before the Subcomm. on the Constitution of the Comm. on the Judiciary, 103d Cong. (1994). This limitation on the President has been clear since George Washington's tenue. See 33 Writings of George Washington 96 (John C. Fitzpatrick ed. 1940). ("From the nature of the Constitution, I must approve all the parts of a Bill, or reject it in toto.") Congress cannot evade this long-accepted requirement by merely changing the timing of the President's cancellation.
Because the line Item Veto Act produced laws in violation of the requirement of bicameral passage, because it permitted the President unilaterally to repeal or amend duly enacted laws, and because it impermissibly attempts to evade the requirement that the President sign or reject a bill in toto, the Act violates the requirements of Article I. For that reason alone, the Line Item Veto Act is unconstitutional.
B. Separation of Powers
Furthermore, the Line Item Veto Act is unconstitutional because it impermissibly disrupts the balance of powers among the three branches of the government.
The separation of powers into three coordinate branches is central to the principles on which this county was founded. See, e.g., Mistretta v. United States, 488 U.S. 361, 380, 102 L. Ed. 2d 714, 109 S. Ct. 647 (1989). The declared purpose of separating and dividing the powers of government was to "diffuse power the better to secure liberty." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 96 L. Ed. 1153, 72 S. Ct. 863 (1952). In writing about the principle of separated powers, Madison stated, "No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty." The Federalist No. 47, at 324 (J. Cooke ed. 1961). Madison later wrote, "But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others." The Federalist No. 51, at 349. (J. Cooke ed. 1961). The Framers "regarded the checks and balances that they built into the tripartite Federal Government as a self-executing safeguard against he encroachment or aggrandizement of one branch at the expense of the other." Buckley v. Valeo, 424 U.S. 1 at 122, 46 L. Ed. 2d 659, 96 S. Ct. 612.
Pursuant to the doctrine of separated powers, certain functions are divided between the legislative and executive branches. Article I, section 1 vests all legislative authority in Congress. Legislative power is the authority to make laws. Myers v. United States, 272 U.S. 52, 71 L. Ed. 160, 47 S. Ct. 21 (1926). Executive power, on the other hand, is to "Take Care that the Laws be faithfully executed." U.S. Const., art. II, § 3. With regard to lawmaking, the President's function is strictly a negative one: to veto a bill in its entirety.
While it is Congress' duty to make laws, Congress can delegate certain rulemaking authority to other branches, as long as that delegation is appropriate to the duties of that branch. See Mistretta, 488 U.S. at 388. Congress may not, however, delegate its inherent lawmaking authority. See, e.g., Loving v. United States, 517 U.S. 748, 116 S. Ct. 1737, 1744, 135 L. Ed. 2d 36 (1996) ("The lawmaking function belongs to Congress. . . and may not be conveyed to another branch or entity."); Field v. Clark, 143 U.S. 649, 692, 36 L. Ed. 294, 12 S. Ct. 495 (1892) ("That Congress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution."); Edward Gibbon, History of the Decline and Fall of the Roman Empire, 33 (1838) ("The principles of a free constitution are irrecoverably lost, when the legislative power is nominated by the executive."); Sir William Blackstone, Commentaries on the Laws of England, 146 (9th ed., reprinted 1978) (1783) ("In all tyrannical governments the supreme magistracy, or the right of both making and of enforcing the laws, is vested in one and the same man, or one and the same body of men; and wherever these two powers are united together, there can be no public liberty.").
The line between permissible delegations of rulemaking authority and impermissible abandonments of lawmaking power is a thin one. As one court described the distinction, "The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend." Field, 143 U.S. at 694. Stated another way. "The true distinction. . . is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made." Hampton v. United States, 276 U.S. 394, 72 L. Ed. 624, 48 S. Ct. 348 (1928).
The Line item Veto Act impermissibly crosses the line between acceptable delegations of the rulemaking authority and unauthorized surrender to the President of an inherently legislative function, namely, the authority to permanently shape laws and package legislation. The Act enable the President, in his discretion, to pick and choose among portions of an enacted law to determine which ones will remain valid. The Constitution, however, dictates that once a bill becomes law, the President's sole duty is to "take care that the laws be faithfully executed." His power cannot expand to that of "co-designer" of the law -- that is Congress' domain. Any subsequent amendment of a statute falls under Congress' responsibility to legislate. The President cannot take this duty upon himself; nor can Congress relinquish that power to the Executive Branch.
The Defendants contend that the Line Item Veto is no different than the many delegations of legislative authority that Congress had made in the past. See e.g., Field v. Clark, 143 U.S. 649, 36 L. Ed. 294, 12 S. Ct. 495. Unlike other delegations of Congressional authority, however, the Line Item Veto Act authorizes the President to permanently extinguish laws. These laws cannot be revived even if the President (or this successor) feels that they are needed. Further, the Line Item Veto Act empowers the President to make permanent changes to the text of the Internal Revenue Code, as he did in the Snake River case. Such delegations are unprecedented.
Defendants further urge the Court to find that the Line Item Veto provides the President with "intelligible standards" as required by the delegation doctrine. See Mistretta, 488 U.S. at 372. While it is true that the delegation doctrine has enjoyed a liberal reading in the last 60 years or so, see, e.g., Federal Radio Comm'n v. Nelson Bros., 289 U.S. 266, 77 L. Ed. 1166, 53 S. Ct. 627 (1933) (upholding delegation based on "public convenience, interest or necessity"), by trying to bypass the maxim that Congress can delegate authority only if that authority is, in fact, delegable, the Government attempts to "leap a chasm in two bounds." (Benjamin Disraeli, Earl of Beaconsfield.) It is irrelevant whether the Line Item Veto Act provides intelligible principles in its delegation of authority to the President because, as discussed above, the Act impermissibly attempts to transfer non-delegable legislative authority to the Executive Branch.
The separation of powers between the President and Congress is clear:
In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute.
Youngstown, 343 U.S. at 587-88. By ceding inherently legislative authority to the President, the Line Item Veto Act violates this constitutional framework. For that reason, and for the reason that it violates the letter and spirit of the procedural requirements of Article I, the Line Item Veto Act is unconstitutional.
Although the Line Item Veto Act may have presented an innovative and effective manner in which to control runaway spending by Congress, the Framers held loftier values. The Chadha Court recognized this tension between uncomplicated administration of government and the values honored in the Constitution.
The choices we discern as having been made in the Constitutional convention impose burdens on governmental processes that often seem clumsy, inefficient, even unworkable, but those hard choices were consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked. There is no support in the Constitution or decisions of this court for the proposition that the cumbersomeness and delays often encountered in complying with explicit Constitutional standards may be avoided, either by the Congress or by the President. 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.