FOR THE DISTRICT OF COLUMBIA
SEN. ROBERT C. BYRD, et al.,
FRANKLIN D. RAINES, et al.,
Civ. Action No. 97-0001(TPJ)
DEFENDANTS' MOTION TO DISMISS AND IN
SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
Congress knew there were constitutional doubts about this major change in the process for making law and wanted them to be resolved swiftly. Section 3(a) of the Act, 2 U.S.C. Sec. 692, under which this case is brought, provides that any Member of Congress may bring an action in this Court for a declaratory judgment of unconstitutionality.(See Footnote 1) Section 692(b) provides for direct review of this Court's decision by the Supreme Court and enjoins both courts to expedite the disposition of the case "to the greatest possible extent." The case presents purely legal issues and can therefore be decided by summary judgment. See Synar v. United States, 626 F. Supp. 1374, 1379, 1404 (D.D.C.) (three-judge court) (per curiam), aff'd, 478 U.S. 714 (1986).
The complaint was filed on January 2, 1997. Plaintiffs are three incumbent United States Senators, one former Senator whose most recent term expired on January 3, 1997, and two incumbent Members of the House of Representatives. (See Footnote 2) Defendants are Franklin D. Raines, the Director of the Office of Management and Budget ("OMB"), and Robert E. Rubin, the Secretary of the Treasury, each of whom is sued in his official capacity. Defendants will have responsibility for executing presidential cancellations of spending and tax authority.
The complaint alleges that the Act directly affects the voting rights and other constitutional prerogatives of the plaintiffs as Members of Congress. Before the Act, a bill could become part of federal law only in the exact form in which it was passed by both Houses of Congress. Under the Act, for the next eight years, a large number of bills (every bill containing vetoable spending or tax items) are instead subject to unilateral revision by the President the instant they are signed (and up to five days thereafter). As a result, a Member's vote for any such bill becomes a vote for a menu of items from which the President may keep some and reject others. A Member loses the assurance that the operative law will contain items that may have been critical to his or her vote in favor of passage. And whenever a Member is considering whether to vote in accordance with the President's wishes on other legislation or on other matters (such as appointments) coming before Congress, or is considering oversight or criticism of the Administration, he or she must take into account the power of the President to item-veto particular appropriation and spending items important to that Member. The Act thus dramatically shifts the overall balance of lawmaking power away from the Congress and toward the President.
The complaint alleges that the Act violates the carefully considered procedure for making federal law set forth in Article I of the Constitution. Article I requires that a bill must be passed in whole, in exactly the same form, by both Houses of Congress and presented to the President. (See Footnote 3) At that point, Article I gives the President only three choices: " If he approves [the bill] he shall sign it, but  if not he shall return it, with his Objections to [the originating] House [of Congress]" or  he may do nothing, in which case, after ten days, "the Same shall be a Law ... unless the Congress by their Adjournment prevent its Return." U.S. Const. Art. I, sec. 7, cl. 2. It has been understood since President Washington's first term that, under each of these options, the President, like each House of Congress, does not have the power to revise bills unilaterally. The complaint alleges that the Act contravenes this constitutional procedure in two related ways:
First, the Act violates the requirement that the President either "approve" and sign a bill in whole, or "not [approve]" and return the bill in whole. It allows the President, instead, to sign a bill into law and then immediately "cancel" the portions he disapproves. The Act calls itself the "Line Item Veto Act" and its stated purpose is "to give the President line item veto authority," H.R. Conf. Rep. No. 104-491, at 1, 14 (1996), that is, authority to revise a bill in conjunction with signing it into law. This is a power that 43 state governors have in one form or another, but in every such case the authority to veto items is contained in the state constitution. (See Footnote 4) Article I, by contrast, does not give the President that option, and the Act unconstitutionally circumvents Article I by allowing the President to veto ("cancel") items immediately after signing a bill.
Second, the Act violates the requirement that measures repealing provisions of federal law must be passed by both Houses of Congress and presented to the President. The Act gives the President, using his unilateral cancellation authority, the power to repeal provisions of federal law. Congress may not abdicate to the President its authority to legislate repeals. Moreover, the authority granted to the President is unbounded by any meaningful legislative standards and extends to cancellation of items defined by unenacted tables, charts, and explanatory text in congressional reports accompanying future legislation.
The Act was the culmination of a long examination of ways and means to give the President the power to accept some portions of budget authority, spending, and tax bills while rejecting other portions. Part A, below, places the Act in context by briefly describing the choices the 104th Congress debated. Part B then describes the pertinent portions of the Act in greater detail.
A. Summary of the Choices Considered in the 104th Congress.
Constitutional amendment. In the 104th Congress, constitutional amendments to empower the President to veto portions of bills were introduced in both Houses. (See Footnote 5) A hearing was held in the Senate, (See Footnote 6) but no constitutional amendment was voted on in committee or on the floor of either House.
Legislative approaches. The 104th Congress also considered the three legislative approaches described below. The first, which raised no constitutional problems, would have relied on changing the procedures by which Congress itself conducts its legislative business. The second relied on a device that appeared both highly impractical and constitutionally suspect. Both were rejected, and Congress therefore adopted the third, the item veto approach embodied in the Act.
1. "Expedited Rescission." One form of proposal, exemplified by S. 14 of the 104th Congress, would simply have assured prompt congressional consideration of any presidential recommendation that spending or tax items be rescinded (repealed) as wasteful or unjustified. S. Rep. No. 104-10, at 1 (1995). The Impoundment Control Act of 1974, 2 U.S.C. Sec. 688, already provides for congressional consideration of presidential rescission recommendations, but it does not assure that Congress will bring them to a vote. S. 14 would, in its sponsors' words, have "guarantee[d] the President a vote on his rescission proposals while maintaining the delicate balance of power between the two branches on spending authority." S. Rep. No. 104-9, at 15 (1995) (additional views of Senator Domenici). Both Houses voted down "expedited rescission" proposals on several occasions. L.S. 5, 14.
2. "Separate Enrollment." A second approach relied on treating each item as a separate "bill," which the President could sign or veto as he chose, with any veto subject to a 2/3 override. The separate enrollment approach was offered by the Senate leadership as a way of giving the President the power to approve and sign some items and veto others without violating the constitutional requirement that he approve or return a bill in toto. L.S. 12-14. But such separate handling of each of hundreds of items posed practical difficulties and was regarded by some Members as raising constitutional difficulties as well. See L.S. 18; 141 Cong. Rec. S4217, S4224-35, S4244 (daily ed. Mar. 21, 1995). Although S. 4, a separate enrollment measure, eventually passed the Senate, it met opposition in the House (L.S. 18), and it ultimately was rejected in conference.
3. The Line Item Veto Act. The approach taken in the Act, referred to in congressional debates as "enhanced rescission," grants the President a new authority to "cancel" provisions of a bill the instant after he has signed the bill and for only five days thereafter. The procedure "expand[s] the President's power to reduce discretionary spending by giving him the authority to cancel budget authority without any other action required by Congress." S. Rep. No. 104-9, at 1 (1995). Presidential cancellations become law and remain in effect unless the Congress musters "a two-thirds vote in each House to override [a presidential] veto" of any bill that disapproves the President's cancellations. H.R. Rep. No. 104-11, pt. 2, at 8 (1995).
B. Summary of the Act.
The full title of the Act is "An Act to give the President line item veto authority with respect to appropriations, new direct spending, and limited tax benefits." H.R. Conf. Rep. No. 104-491, at 14 (1996). The Act, which was signed into law on April 9, 1996, became effective on January 1, 1997, and remains effective until January 1, 2005. Section 691 note. The Act provides, in pertinent part, as follows:
The Item Veto Power. Section 691(a), under the caption "Line item veto authority," provides that, with respect to any bill that "has been signed into law," the President may
"cancel in whole":
(1) any dollar amount of discretionary budget authority [i.e., any appropriation]; (2) any item of new direct spending; or (3) any limited tax benefit.
The Act does not provide any item veto power for bills that are passed over the President's veto or become law without his signature, since they would not be "signed into law."
Definition of "cancel". Section 691e(4) defines "cancel" or "cancellation" to mean, with respect to any amount of budgetary authority, "to rescind." With respect to any item of new direct spending or limited tax benefit, the terms mean "to prevent such [item or benefit] from having legal force or effect." Id. The Conference Report accompanying the Act, H.R. Conf. Rep. No. 104-491, at 20 (1996), explains that cancellation "terminate[s] the obligation of the Federal Government to spend certain sums of money through a specific appropriation or mandatory payment." For taxes, cancellation would permit "collect[ion of] tax that would otherwise not be collected or den[ial of] the credit that would otherwise be provided." Id. at 29.
Determinations required. Section 691(a)(A) provides that the President may cancel any item so long as he "determines that such cancellation will (i) reduce the Federal budget deficit; (ii) not impair any essential Government functions; and (iii) not harm the national interest . . . ." No more specific or substantive determination is required.
When cancellation may be effected. Under Section 691(a), the President may cancel an item as soon as it "has been signed into law pursuant to Article I, section 7 of the Constitution." Since a bill becomes law immediately upon the President's signing it, he may exercise the cancellation power before the ink is dry. The President has the cancellation power for "five calendar days (excluding Sundays) after the enactment." Section 691(a)(B); see also Section 691a(c)(1). As the Conference Report explains, Congress intended "that the President's cancellations be made as soon as possible," but that a "maximum" of five days is allowed "to ensure that all supporting material required for inclusion in the special [cancellation] message can be provided by the Administration." H.R. Conf. Rep. No. 104-491, at 22 (1996).
How cancellation is effected. The President cancels an item by "notify[ing] the Congress of such cancellation by transmitting a special message." Section 691(a)(B). The President may send only one special message covering each bill, and it must specify the amounts, items, and/or benefits to be canceled; recite the three required presidential determinations; set forth the President's reasons for the cancellation; and describe the fiscal and programmatic effects of the cancellation. Sections 691a(a) and (b). The cancellation takes effect upon receipt of the special message by both Houses. Section 691b(a).
Definitions of appropriated "amounts," direct spending "items," and "limited tax benefits." The Act defines and describes the three categories of cancelable (vetoable) provisions as follows:
Dollar amounts of discretionary budget authority. Section 691e(7) defines "dollar amounts of discretionary budget authority," to include any dollar amount set forth in an appropriation law. Since federal appropriations laws generally do not specify appropriations in detail, however, the Act further provides that the term "amount" also includes any amount "represented separately in any table, chart, or explanatory text included in the statement of managers or the governing committee report accompanying [an appropriations] law." Section 691e(7)(ii). The Act thus defines the President's cancellation authority partly by reference to the legislative histories of future statutes. The Conference Report states (at 32) that Congress did this "as a means of allowing the President increased discretion." As the House Report on H.R. 2 recognized, the President's authority "differs fundamentally from the kind of item veto granted to governors" whose appropriations bills are highly itemized, so that the President now has "greater power and discretion than he would have with item veto authority" like that in the states. L.S. 3-4.
Items of direct spending. "Direct spending" is defined as "(A) budget authority provided by law (other than an appropriation law); (B) entitlement authority; and (C) the food stamp program." Section 691e(5). Thus, in general, direct spending includes "entitlement" payments to individuals, such as Medicare and Medicaid payments, see Moynihan Decl. Par. 5, as well as payments to state and local governments, see H.R. Conf. Rep. No. 104-491, at 36 (1996); 2 U.S.C. Secs. 622(9) & 651(c)(2)(C). "Item of new direct spending" means any provision that is estimated to result in an increase in direct spending over the baseline established by OMB under the Balanced Budget and Emergency Deficit Control Act of 1985. Section 691e(8).
Limited tax benefits. "Limited tax benefit" is defined to include any "revenue-losing provision" that provides "a Federal tax deduction, credit, exclusion, or preference to 100 or fewer beneficiaries under [the Internal Revenue Code of 1986] in any fiscal year," or any federal tax provision that "provides temporary or permanent transitional relief for 10 or fewer beneficiaries" from a change in the Internal Revenue Code. Section 691e(9).
Additional effects of cancellation. The Act contains a "deficit reduction, or 'lockbox,' procedure," H.R. Conf. Rep. No. 104-491, at 23 (1996), so that "savings" cannot be used for a subsequent appropriation, direct spending, or tax relief measure. Section 691c; see also L.S. 14-15.
Disapproval Bills. Once the President has transmitted a cancellation message to Congress, the canceled item is legally dead and may be resurrected only by passage of new legislation. The Act provides for expedited consideration of such new laws, which it labels "disapproval bills." Section 691d. In general, those procedures are available for only 30 days after Congress receives a cancellation message. Section 691d(b)(1). Like other statutes, a disapproval bill must pass both Houses of Congress and be presented to the President. See U.S. Const. Art. I, sec. 7, cl. 2. If the President vetoes the disapproval bill (as presumably he would, since it reenacts provisions he has just item-vetoed under the Act), Congress may override his veto in the usual manner by a 2/3 vote of each House.
Judicial Review. The Act authorizes Members of Congress to challenge the Act's constitutionality in this Court. Section 692(a). Orders of this Court may be appealed directly to the Supreme Court, but the appellant is required to act swiftly.(See Footnote 7) The Act provides in strong language for expediting the proceedings: "It shall be the duty of the District Court for the District of Columbia and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any matter brought under subsection (a) of this section." Section 692(c).
No severability clause. The Act does not contain a severability clause. The bill that passed the Senate had "a severability clause stating that if any one provision of the Act is found to be unconstitutional, the remainder of the Act will be held harmless," but it was removed in conference. H.R. Conf. Rep. No. 104-491, at 17 (1996).
I. THE MOTION TO DISMISS SHOULD BE DENIED
Congressional proponents of the Act recognized that it would be born under a constitutional "cloud." See p. 19 & n. 12, infra. Accordingly, Congress included a judicial review provision specifically authorizing "[a]ny Member of Congress" to bring this lawsuit and commanding that its disposition be expedited "to the greatest possible extent." Sections 692(a)(1) and (c). Congress thus expressed in the strongest possible terms its own view that Members have standing and that the courts should resolve the constitutional issues swiftly.
In seeking dismissal, defendants are, necessarily, arguing that this judicial review provision is itself inconsistent with Article III of the Constitution. In essence, their argument, under both "Standing" and "Ripeness" headings, is that there is only an abstract question, and no concrete "case or controversy," until the President actually exercises the veto power. Our answer, in essence, is that the existence of the veto power injures the plaintiffs (and the public interest) now, by invading Members' rights and powers in the currently ongoing process of formulating and passing legislation, regardless of when or why the President first actually vetoes an item.
A. The Plaintiffs Have Standing.
"Prudential" Standing Is Not at Issue. Section 692(a)(1) of the Act, provides that "Any Member of Congress ... may bring an action" in this Court for a declaratory judgment that the Act is unconstitutional. This provision eliminates any non-constitutional issue as to standing. See Fair Employment Council of Greater Washington, Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1278 (D.C. Cir. 1994); Synar v. United States, 626 F. Supp. 1374, 1380 n.3 (D.D.C.) (three-judge court) (per curiam) (in light of judicial review provision nearly identical to the present Act, "[w]e disregard . . . prudential limitations because we think it clear that Congress has, by enacting the judicial review provisions contained in Sec. 274, expanded standing to the full extent permitted by Article III"), aff'd, 478 U.S. 714 (1986). (See Footnote 8)
Members Have Article III Standing To Challenge Incursions on Their Voting Power. Most of the nearly 18 pages that defendants label their argument on "standing" is in fact a discussion of whether this case is ripe before the item-veto power has been exercised. We respond to that discussion at pp. 18-24, infra. The evident reason why defendants leap quickly past the standing issue is that D.C. Circuit precedents leave no doubt whatever that Members of Congress have Article III standing in this case.
As defendants are forced to acknowledge (Def. Mem. 12-13), the court of appeals has repeatedly ruled that Members have standing to challenge measures that affect their voting power or other constitutional prerogatives as lawmakers. See, e.g., Michel v. Anderson, 14 F.3d 623, 625-26 (D.C. Cir. 1994) (standing to challenge House Rule permitting delegates to vote in Committee of the Whole because of its alleged dilutive effect); Moore v. U.S. House of Representatives, 733 F.2d 946, 950-53 (D.C. Cir. 1984), cert. denied, 469 U.S. 1106 (1985) (standing to assert violation of constitutional requirement that revenue raising bills originate in the House); Vander Jagt v. O'Neill, 699 F.2d 1166, 1168-71 (D.C. Cir.), cert. denied, 464 U.S. 823 (1983) (standing to challenge leadership's committee seating decisions); Kennedy v. Sampson, 511 F.2d 430, 433-36 (D.C. Cir. 1974) (standing to challenge "pocket veto" as nullification of Senator's vote). Defendants cite two concurring opinions that support their position, see Moore, 733 F.2d at 959 (Scalia, J., concurring); Vander Jagt, 699 F.2d at 1179-82 (Bork, J., concurring), but the court of appeals has squarely rejected the views expressed there. See, e.g., Vander Jagt, 699 F.2d at 1168-69.
In particular, the D.C. Circuit precedents recognize that, when Member plaintiffs challenge a measure that affects their voting power and the legal consequences of their votes, they are not asserting merely a generalized interest in the proper functioning of the Government. They are alleging an injury to themselves in their official capacities, because their power to vote on legislation is specifically conferred on them by the Constitution. Judge Wilkey stressed this point in Moore:
It is important ... that the injury claimed here is to the members' rights to participate and vote on legislation in a manner defined by the Constitution. Deprivation of a constitutionally mandated process of enacting law may inflict a more specific injury on a member of Congress than would be presented by a generalized complaint that a legislator's effectiveness is diminished by allegedly illegal activities taking place outside the legislative forum.
733 F.2d at 951. See also Michel,14 F.3d at 630 (noting that the Constitution specifically gives Members the right "to vote in the full House and to be recorded").
Defendants are of course entitled to make their standing argument here to preserve it for the Supreme Court, but the precedents suggest, and there is no contrary authority, that this Court is obligated to follow D.C. Circuit precedent on this issue in the absence of a Supreme Court ruling. See Synar, 626 F. Supp. at 1381 & n.7 (adhering to D.C. Circuit precedent on standing in case subject to Supreme Court review); see also Turner Broad. Sys., Inc. v. FCC, 819 F. Supp. 32, 41 (D.D.C. 1993) (three-judge court) (addressing D.C. Circuit precedent notwithstanding mandatory Supreme Court review), remanded, 512 U.S. 622 (1994); ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa.) (three-judge court) (similar), probable jurisdiction noted, 117 S. Ct. 554 (1996).
The three-judge court's decision in Synar squarely upheld the Article III standing of Members of Congress in a case indistinguishable on the standing issue from the present case. In Synar, the plaintiff Members challenged a statute (the Gramm Rudman Hollings Act) that created a mechanism for reducing congressionally authorized spending. The court said:
[T]he law of this Circuit . . . recognizes a personal interest by Members of Congress in the exercise of their governmental powers . . . .
Here, as in Moore and other cases cited above, Members are complaining about a concrete effect on the voting power the Constitution gives them -- indeed, here, the effect of the Act on the very meaning of the votes they cast. Their Declarations detail three injuries caused by the operation of the Act.
First, by conferring power on the President to item-veto appropriations, the Act changes the legal effect of Members' votes on appropriations bills. Until now, when a Member voted for an appropriations bill containing more than one item (as they virtually all do), he knew that his vote could be counted only for that bill, with exactly those items and only those items, and that any variation would require another vote. Under the Act, the Member's same vote on the same bill has a dramatically different effect: it becomes a vote to give the President a menu of items that he may choose from, without going back to Congress for another vote before his choice has legal effect. Thus, a vote for the "A-B-C" bill is also, at the same time, a vote authorizing the President to turn it into an "A-B" bill, an "A-C" bill, or a "B-C" bill, etc. Byrd Decl. Pars. 18-19.
This effect of the Act is a concrete present effect that does not depend on when or why the President first vetoes an item. The Act forces Members, whenever they pass an appropriation bill, to authorize the President to select from "menus." It thus injures the plaintiffs whenever such a bill comes up for a vote, even if, in a particular instance, the President later decides to approve everything on a particular "menu." Byrd Decl. Pars. 18-19; Levin Decl. Par. 6B.
Second, the Act, again merely by being in force, affects Members' powers in the formulation of legislation, because they must take the item-veto power into account at that time, regardless of when or how it is later used. (See Footnote 9) Prior to the Act, Members negotiating a compromise within the House or Senate on a spending or tax bill had assurance that the bill could take operative effect only in the form agreed to within that body, and that items successfully negotiated for would be preserved. The Act, by giving the President power to upset legislative compromises, forces Members to deal with the President during the House process and the Senate process if they want to be confident that an item will survive. Before the Act, a Member voting on final passage of a bill might accept provisions he disagreed with in order to secure passage of provisions he supported. See Byrd Decl. Par. 18; Levin Decl. Par. 6; Waxman Decl. Par. 7. The Act, however, empowers the President to undo any such compromise. See Byrd Decl. Pars. 20-21; Hatfield Decl. Par.4; Levin Decl. Par. 4, 6; Waxman Decl. Par. 7; Skaggs Decl. Par. 6.
Again, this is a concrete present effect. A Member who negotiates and votes on an appropriations bill containing items he believes important to his constituency must anticipate the President's unilateral power effectively to revise the bill to eliminate those items. And a Member now considering her vote on any other matter in which the President has an interest (e.g., other legislation, or a confirmation of a presidential appointment) must now weigh the President's power to veto an appropriation item of interest to that Member or his or her constituents. Levin Decl. Par. 6A; Skaggs Decl. Par. 3.
Third, when the President does cancel an item, he is both nullifying Members' votes for that item and repealing a duly enacted law, a power the Constitution gives only to Congress.
The D.C. Circuit's decision in National Treasury Employees Union v. United States, 101 F.3d 1423 (D.C. Cir. 1996), is not to the contrary. NTEU did not have standing because the future impact of the Act on NTEU was inherently speculative: "[NTEU's] mission is to obtain improved worker conditions -- a mission not necessarily inconsistent with the Line Item Veto Act." Id. at 1430. NTEU did not and could not demonstrate any necessary effect of the Act on its mission, because except for changing its lobbying strategy, the Act would not affect NTEU unless there was an actual prospect of having an item of NTEU concern vetoed. The Members, by contrast, have documented the shift in the legal effect of votes they are certain to cast and in their power in formulating federal legislation.
B. This Case is Ripe.
"Prudential" Ripeness Is Not an Issue. Congress instructed this Court and the Supreme Court to resolve the Act's constitutionality expeditiously. In addition to dispensing with intermediate appellate review, the Act directs this Court and the Supreme Court "to advance [this case] on the docket and . . . expedite [its disposition] to the greatest possible extent." Section 692(c).
The express purpose of the expedition requirement was to remove (or confirm) the constitutional "cloud" as swiftly as possible. For example, Senator Exon, a proponent of the Act, noted that it would engender immediate constitutional questions, affecting spending and tax measures, that should be promptly resolved:
[W]e do not want a constitutional cloud hanging over what I think we will eventually pass.... We do not want that cloud hanging over forever. The pending amendment [the provision for expedited judicial review] simply allows a speedy resolution of this constitutional issue. It does not allow a legal challenge to hang over all the bills for years upon years.
141 Cong. Rec. S4244 (daily ed. Mar. 21, 1995). (See Footnote 10) Congress's commands clearly eliminate all merely "prudential" questions of ripeness.
There Is No Article III Ripeness Problem. Ripeness also has a constitutional dimension, but the only constitutional issue is whether the dispute is so unformed that there is not a "case or controversy." See Duke Power Co. v. Carolina Envtl. Study Group Inc., 438 U.S. 59, 81 (1978); Regional Rail Reorganization Act Cases, 419 U.S. 102, 138 (1974). The purpose of the doctrine is to assure that federal courts do not take up "abstract disagreements" that might never become concrete disputes. See Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985).
Here, there is certainly a concrete controversy, and the proper time to resolve it is now: (See Footnote 11) (i) Plaintiffs are suffering present injury, regardless of when the President first exercises the item veto power. (ii) The issues are purely legal and will not be clarified by further factual development: defendants assert that an actual veto will give the court an "indispensable factual context," Def. Mem. 27, but they do not explain how the President's selection of a particular item to veto will in any way illuminate the constitutional issues. (iii) Perhaps most important, failure to resolve the constitutional issue before the President vetoes an item will leave that item -- and other parts of any appropriation or other bill to which it was attached -- under the cloud created by the Act.
(i) Plaintiffs' Injuries Include Present and Imminent Injuries. Defendants' primary contention is that plaintiffs are seeking an advisory opinion because they will not have suffered injury until the President actually exercises the veto and Congress fails to override it. But in fact, important parts of plaintiffs' injury could hardly be more "certainly impending," Whitmore v. Arkansas, 495 U.S. 149, 158 (1990), and "imminent," Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979); see Thomas, 473 U.S. at 579-82; Synar, 626 F. Supp. at 1380.
The President already has his blue pencil. And appropriations bills containing separately vetoable items are certain to be presented for congressional and presidential consideration very soon: The President will present his budget on February 6, 1997, triggering steps designed to lead to enactment of appropriations by October 1, 1997 when the new fiscal year begins. (See Footnote 12) The process of formulating appropriations bills will thus be ongoing by the time the Court hears argument in this case, and the process of voting on such bills is clearly "imminent." Other bills and presidential appointments are of course also under active consideration.
As explained above, the Act injures the plaintiffs in these current and imminent processes. It forces them to vote to authorize the President to choose from appropriations "menus," rather than enact whole laws that he must sign or veto in the whole form they are presented to him. It also gives the President a powerful new tool with which to seek Members' votes on other matters. (See Footnote 13) Neither of these injuries depends on when or why the President first actually exercises his new power. As former Senator Hatfield states in his Declaration, based on his 25 years of negotiating and shepherding appropriations bills to passage, the Act has "an immediate and pervasive impact on the formulation of legislation." Hatfield Decl. Par. 4.
Of course, even if the Court accepted defendants' argument that only the exercise of a veto would actually injure the plaintiffs, plaintiffs need not wait until actual exercise to invoke this Court's jurisdiction. See Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967); see also Buckley v. Valeo, 424 U.S. 1, 117 (1976) (challenge, under similar expedited review provision, to method of appointing FEC members was ripe in anticipation of "impending future rulings and determinations"). It is entirely appropriate for this Court to assume that the President has every intention of exercising the item veto power, which he strongly supported throughout the events leading to passage of the Act. (See Footnote 14)
(ii) The Constitutional Issue Is Fully Formed. Defendants argue that the Court should wait until there is an exercise of the veto in order to have a "factual context within which to evaluate plaintiffs' constitutional claims." Def. Mem. 27. But at best fitness for review is a "prudential" consideration. Thomas, 473 U.S. at 581; Babbitt, 442 U.S. at 300-01; Thorsted v. Gregoire, 841 F. Supp. 1068, 1074 (W.D. Wash. 1994), aff'd, 75 F.3d 454 (9th Cir. 1996). Moreover, the President's first item veto, which may be on an item trivial to most Members, will not further illuminate the constitutional issues. If the President is given the opportunity to frame a "test case," he will of course be able to find an unneeded museum or hospital to veto, (See Footnote 15) but his doing so will not assist the Court in deciding whether his vast new power complies with Article I.
It is also no answer to say that Congress, as a whole, can exempt particular bills, pass a disapproval bill restoring a canceled item (presumably over the President's veto of the disapproval bill), or repeal the Act (again, presumably over the President's veto). No individual Member can secure any of these actions. The Act's effects on the legal meaning of an individual Member's vote when she casts it, and on the individual Member's rights and powers in the process of formulating legislation, are not eliminated by the mere possibility that Congress as a whole may later act to protect against the item veto; indeed, even if Congress were, in a particular instance, to adopt a disapproval bill and override the President's veto of that bill, this action would not eliminate the Act's effects on the formulation of the original measure. Indeed, in Michel, 14 F.3d 623, the Court found no justiciability hurdle to its consideration of the constitutionality of a House Rule that was essentially nugatory in its effect.
(iii) The Public Interest Requires a Prompt Resolution of the Constitutional Issue. Congress had good reason for requiring expedition. It is not only the Act's own constitutionality that is under a "cloud" but also the validity of any exercise of the item veto and therefore the validity and operative effect of any vetoed items and any other statutory provisions that are tied or related to them. Even if Congress had not commanded expedition and the Court were free to take its own account of "prudential" considerations, prudence would clearly dictate resolving the constitutional issue in an orderly manner now, rather than scrambling to do so only after a cancellation is in effect and Congress has failed to disapprove it.
The D.C. Circuit's decision that NTEU's challenge to the Act was not constitutionally ripe, 101 F.3d at 1430-31, is readily distinguishable. The court's only explanation of this ruling was that "the veto power is not only unexercised, but is as yet unavailable" (because the Act had not yet become effective). Id. at 1431. That, of course, has changed. Moreover, although the court did not make this point in discussing constitutional ripeness, NTEU could claim at most that its members might later be affected if a possible appropriation bill benefiting them were subject to the item veto. Members of Congress, by contrast, are affected in their official capacities immediately and continuously, including any time any appropriation bill, or any other bill containing separately vetoable items is brought to a vote. There is no doubt that this will occur in the 1997 session of Congress.
C. The Doctrine of Remedial Discretion Has No Role To Play in this Case.
Defendants also ask the Court to dismiss this case under the D.C. Circuit's "remedial discretion" doctrine. Def. Mem. 30-35. They make two arguments, both without merit.
First, they say this Court should abstain from deciding the constitutional issue because plaintiffs have a remedy in the form of repeal of the law by their own branch. But "remedial discretion" is, as its name implies, a prudential and not a constitutional doctrine. See, e.g., Michel, 14 F.3d at 628; Synar, 626 F. Supp. at 1382. As such, whatever its validity or application in other circumstances, it clearly must yield to the statutory command that "Any Member of Congress . . . may bring an action . . . for declaratory judgment . . . that [the Act] violates the Constitution." Section 692(a).
Again, the three-judge court's decision in Synar is squarely on point. Under judicial review provisions nearly identical to those in the Line Item Veto Act, the court found "no occasion to consider exercising the equitable discretion held by this Circuit's cases to justify denial of specific or declaratory relief to Members of Congress," because the specific statutory authorization of Member suits "eliminat[ed] whatever equitable discretion might exist . . . ." Synar, 626 F. Supp. at 1382.
Second, defendants argue that it would be inappropriate for the Court to rule that the Act is unconstitutional when Congress has consented to the surrender of its constitutional powers. But separation-of-powers violations cannot be ratified by the consent of one branch. "The Constitution's division of power among the three branches is violated where one branch invades the territory of another, whether or not the encroached upon branch approves the encroachment." New York v. United States, 505 U.S. 144, 182 (1992); see id.. ("The constitutional authority of Congress cannot be expanded by the 'consent' of the governmental unit whose domain is thereby narrowed"); Buckley, 424 U.S. at 118-37 (infringement of President's appointments power invalid despite President's approval); Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 944-59 (1983).
In sum, Congress hoped this Court would decide this case on its constitutional merits and expressed that wish in the statute. Defendants' justiciability arguments amount to a contention that the Act's judicial review provisions are themselves contrary to the Constitution. But the Constitution does not bar this Court from doing as Congress instructed: proceeding to consider this case.
The purpose of the Act, as its name makes clear, was to circumvent this requirement and give the President the ability to veto parts of a bill while signing the remaining parts into law. Congress understood, however, that Article I does not permit it to give the President straightforwardly the power to sign and veto portions of a bill simultaneously. The drafters of the Act therefore sought to circumvent the in toto requirement by providing for an ever so slight separation of the President's actions and suggesting that the grant of power to "cancel" is no more than a routine delegation of authority not to spend appropriated funds.
But the Act is too clever by half. It violates both the purpose and the letter of Article I. The "sign-and-then-cancel" procedure mocks the requirement that the President "approve" a whole bill before signing: now, he need only "approve" the law that results from his own handiwork. The Act denies both Houses of Congress and their individual Members the assurance that a bill will have operative effect only in the form in which they passed it. And the Act confers on the President a five-day power to repeal provisions of federal law unilaterally, without either bicameral passage or presentment. In the guise of a delegation of authority, the Act gives the President the precise power the Framers intentionally denied him: the unilateral power to revise federal law.
A. Article I Places Important Limitations on Each Participant in the Federal Lawmaking Process.
Article I sets forth a "single, finely wrought and exhaustively considered procedure," for the passage of legislation. Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 951 (1983). This procedure requires that any change in federal statutory law must be approved, in whole, by each House of Congress (the requirement of "bicameral passage"), and either approved in whole by the President or enacted in whole over his veto or without his signature (the requirement of "presentment").
Bicameral Passage. The Constitution vests "all legislative Powers herein granted" in a Congress consisting of two Houses. U.S. Const. Art. I, sec. 1. It requires that, before any bill may become law, it "shall have passed the House of Representatives and the Senate." Id. sec. 7, cl. 2. Every bill must pass both Houses in its full final form: The Framers "provid[ed] that no law could take effect without the concurrence of the prescribed majority of the Members of both Houses." Chadha, 462 U.S. at 948; see Field v. Clark, 143 U.S. 649, 669-70 (1892). The Framers required bicameral passage quite deliberately, both to assure careful and prudent judgment in legislating, see The Federalist Nos. 22, 51 (Hamilton); Chadha, 462 U.S. at 948-51 (citing 1 Farrand 254 (statement of James Wilson)), and to protect the "Great Compromise" by requiring that both the Chamber representing the States (the Senate) and the Chamber representing the people (the House) pass every bill that becomes law, The Federalist Nos. 51, 62, 63 (Madison); see generally Chadha, 462 U.S. at 948-51 (citing, inter alia, 1 Farrand at 99-104).
Presentment. The Constitution does not give the President any "legislative Powers" but only "a salutary check upon the legislative body." The Federalist No. 73 (Hamilton); see Edwards v. United States, 286 U.S. 482, 490-91 (1932). Under Article II, section 3, the President may "recommend" legislation for "Consideration" by Congress. His "salutary check" begins only after both Houses have passed a bill and it is "presented" to him. At that point, unlike the House and Senate, each of which has the absolute power to block passage of a bill it disfavors, the President has only a qualified blocking power, because his veto may be overridden. And that blocking power can be exercised only as to a whole bill, not as to selected individual parts.
When a bill is presented to the President, the Presentment Clause gives him only three choices:
 If he approve he shall sign it, but  if not 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. . . .  If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return....
U.S. Const. Art. I, sec. 7, cl. 2. This language focuses throughout on the whole bill. The President may "approve" and sign "it," in which case "it" becomes law; or he may "not [approve]" and return "it" "with his Objections" to the House where it originated (i.e., veto it); or he may do nothing, in which case "the Same shall be a Law" in ten days unless the pocket veto clause applies. The plain language of the Constitution does not permit the President to approve and sign some parts of a bill and veto others.
The requirement that the President sign, veto, or leave unsigned the whole bill has been clear since President Washington's first term: "From the nature of the Constitution, I must approve all the parts of a Bill, or reject it in toto." 33 Writings of George Washington 96 (1940). Eighteenth Century explanations of the Presentment Clause are consistent with Washington's view. See generally 12 Op. Off. Legal Counsel 128 (1988) (Att. 3). Later Presidents have understood that they could not approve or disapprove a Bill in part.(See Footnote 16) To the best of our knowledge, there was no serious suggestion, from the time of the Framers until recently, that the President could sign some parts of a bill into law while rejecting other parts.(See Footnote 17)
The "in toto" requirement is of fundamental importance for two reasons. First, it protects the "bicameral" principle that every change in federal law must be passed in whole by both Houses. Just as neither House can unilaterally revise the other's work, see Field, 143 U.S. at 669-70, the President cannot unilaterally revise a bill after both Houses have approved it, because the resulting federal law would then not be the work of the two Houses. Indeed, it would be especially anomalous if the President -- the only one of the three participants whose approval is not always required for a bill to become law -- had the power to revise the work of the other two participants. (See Footnote 18)
Second, the "in toto" requirement limits the President's power vis-a-vis each Member of Congress in the lawmaking process. It assures a Member who votes for a bill that, if the bill is enacted, those items that the Member considers important will be part of operative federal law. It also ensures that a Member out of favor with the President, or not of his party, will not have his or her especially preferred items routinely item-vetoed. And it prevents the President from raising the possibility of future vetoes of "items" sought by individual Members as a way of securing their support for other legislation, or their favorable action on other matters such as confirmation of appointments and ratification of treaties, or in regard to their criticism of an Administration. As Congress recognized (see L.S. 2, 11, 14, 25-26), the power to veto "items" is a much stronger weapon than the power to veto a whole bill, which the President often can do only at considerable cost.
If the President had a unilateral power of revision -- the power to treat a bill presented to him as a menu from which he may pick and choose particular items -- the Framers' solicitude for collective legislative judgments would be defeated. The President could negotiate with, and show favoritism toward, Members individually, depriving all the Members of each House of their constitutional prerogative to speak (through their legislative enactments) with one voice.
The constant process of bargaining and compromise between and among different interests is of course a central feature of our political system, and it is entirely appropriate for the participants in the process, including the President, to seek to advance the interests that they favor most. But the Framers carefully designed the requirements of bicameral passage and presentment to assure that the bargaining among interests would have to occur among the Members of the House and in the Senate and in the course of gaining the President's support, because the concurrence of all three participants (or the override of the President's veto) would be required to enact a law.
Finally, the bicameral passage requirement and the in toto requirement together perform an even more fundamental task: to separate legislative and executive powers by denying the President the power to make the law. The President's power under Article II, section 1 is the "executive Power." The Constitution commands him to "take Care that the Laws be faithfully executed" (Art. II, sec. 3), a responsibility that, as Justice Jackson noted on an important occasion, is wholly inconsistent with the notion that he may revise the laws rather than carry them out. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) ("[T]he President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.").
The separation of executive and legislative power is of course among the most basic principles of the constitutional structure. In The Federalist No. 47, Madison quoted Montesquieu:
There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.
The tripartite structure is at "the heart of [the] Constitution," Buckley, 424 U.S. at 119, because "[t]he Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty," Bowsher v. Synar, 478 U.S. 714, 730 (1986). (See Footnote 19)
Hence laws are to be made in a process of debate and compromise, well understood by the Framers, see, e.g., The Federalist No. 10 (Madison); cf. The Federalist No. 85 (Hamilton), leading to a majority vote in each House that a particular set of items should be added to (or changed in) federal law. When Congress has reached that collective judgment by passing a whole bill, and the President has approved the whole bill or his veto has been overridden, the President's most basic duty is to see that the resulting law is "faithfully executed." A unilateral presidential power of revision, either at the signing of a bill or immediately afterwards, allows the President to change the law rather than carry it out. Such a power deprives every Member of his or her right to participate in the process that results in the passage of whole bills vetoable only as a whole. Moreover, as we show below, it confers on the President a lawmaking power that the Framers denied to the holder of the law-executing power.
B. The Act Contravenes the "In Toto" Requirement of Article I.
Under the Act, when a bill containing vetoable items is presented to the President, he has exactly the power that the Framers deliberately denied to him (and to each House of Congress): the power to approve parts of a bill and reject others. He is not required either to approve and sign the whole bill or return the whole bill, but he may instead approve part and return part, as he alone sees fit.
Supporters of the Act generally conceded that a law giving the President power to strike out portions of a bill before signing it would be unconstitutional. L.S. 9; Statement of Walter Dellinger, Assistant Attorney General, Hearings Before the Subcomm. on the Constitution, Federalism, and Property Rights of the Senate Judiciary Comm., 104th Cong., 1st Sess., at 1-2 (Jan. 24, 1995). However, they believed they had satisfied the Constitutional requirements by the device of having the President sign the whole bill first and then cancel the parts of which he disapproves. But sign-and-then-cancel is no different in effect from, and no more constitutional than, strike-line-items-and-then-sign-the-rest-of-the-bill.
Article I does not say merely that the President must decide whether to sign or return the whole bill. It imposes a much more important responsibility, to decide whether or not he "approves" the whole bill:
If he approves he shall sign it, but if not 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.
U.S. Const. Art. I, sec. 7, cl. 2 (emphasis added). The words of the Constitution require the President first to make a judgment about "it" (he either "approves" or "not"); his signature or return is merely the consequence of that judgment about the bill "in toto." And if his judgment is "not," he is required to state his objections so that Congress can consider whether it wants to enact the same bill over his veto or modify it to meet his objections and present it to him again. The President need not, of course, "like" or "dislike" all parts of a bill, but he must decide whether, taking "it" as a whole, he "approves" it or "not," and it can become law with his signature only if, taking it as a whole, he "approves" it.
The Act releases the President from having to make that constitutionally required judgment. He physically signs the whole bill, but he need not decide that he "approves" it, because he can immediately "cancel" the parts he disapproves. Under the Act, the President can comfortably sign a bill even if he in fact disapproves of most of its provisions and would otherwise veto it. The drafters of the Act thus evaded the central purpose of the Presentment Clause: to assure that when a bill is passed with the President's signature, he has concurred in the judgment of the House and Senate that "it" -- the same bill they passed -- warrants his approval and should become law.
The explicit objective of the Act was to circumvent the requirement that House, Senate, and the President (if he signs) all concur in approving the same bill. The Act, instead, deliberately gives the President precisely the power of unilateral revision -- the item veto power -- that President Washington knew the Constitution had rejected. The Act bluntly calls itself the "Line Item Veto Act," and its legislative history is replete with evidence that the item veto (subject, like any other Presidential veto, to an override by two-thirds of each House) was precisely what they sought to accomplish. Indeed, bills reported out in both Houses used the words "veto" and "repeal" (L.S. 1, 3, 11); the Act as adopted uses the word "cancel," but the effect remained the same.(See Footnote 20)
To be sure, the Act requires the President to do the signing first and the canceling second. But the President may sign a bill and then (since the bill becomes law in that instant) sign and immediately transmit a cancellation message. He may sign both the bill and the cancellation message without rising from his desk, without speaking to anyone, literally in the same breath. The Act's sign-and-then-cancel process is, in its effect, exactly the same as a "literal" line item veto: it results in the enactment into law of some of the provisions passed by Congress and the veto of others, exactly what the Presentment Clause was designed to prohibit. (See Footnote 21)
Under the Act, a whole bill becomes law for a scintilla juris before being unilaterally revised by the President. But the Presentment Clause is about something more important than signing formalities. As the Supreme Court said in Chadha, 462 U.S. at 958, n.22, "The legislative steps outlined in Art. I are not empty formalities; they were designed to assure that both Houses of Congress and the President participate in the exercise of lawmaking authority." The Court added, "[T]he purposes underlying the Presentment Clauses . . . and the bicameral requirement" must guide resolution of the question whether a given procedure is constitutional. 462 U.S. at 946. And the central purpose of the in toto requirement of the Presentment Clause is to limit the President's role in the enactment of legislation by requiring him, like the Senate and House, to act on a "Bill" in its entirety. The Act surely cannot defeat that purpose by simply separating the moments in which the President signs the papers on hi