"The line-item veto is unconstitutional determined not by John McCain, but by the Supreme Court. And the Supreme Court found that the line-item veto is unconstitutional. If I hadn't challenged that, I would not have been carrying out my fiduciary duties for the people of New York City. That was money that was illegally deprived to the people of my city. I fought for them."
So said former New York City mayor Rudy Giuliani in Wednesday night's Republican presidential debate. Giuliani was responding to a shot fired by Arizona Senator John McCain. McCain was speaking of how readily he would wield a veto pen as President to thwart pork barrel spending, also known by the harmless-sounding euphemism, earmarks.
Said McCain: "...we'll give the president of the United States a line-item veto, which Rudy Giuliani opposed so that he can protect his $250 million worth of pork."
McCain was referring to a lawsuit in which Giuliani, as mayor, successfully prevented former President Bill Clinton from exercising an asserted line item veto over federal spending earmarked for projects in New York City. The US Supreme Court ruled Clinton's assertion unconstitutional, clearing the way for the pork to be sent to New York.
The line item veto, enjoyed by more than thirty US governors, gives chief executives the ability to sign spending bills into law while scratching out specific appropriations they deem exorbitant or unnecessary. Chester Alan Arthur was the first President to support the enactment of such a veto power. Ronald Reagan asked for legislation legitimizing the line item veto.
Giuliani is right in stating that the Supreme Court has ruled the line item veto unconstitutional. No one can dispute that, although McCain did on Wednesday evening. But in stating repeatedly, as he did in both the November 28 and the earlier October 9, debates, that "the line item veto is unconstitutional," he also sort of avoids the issue. In the two debates, first Governor Romney and then Senator McCain, were challenging Giuliani's bona fides as a proponent of fiscal responsibility.
Giuliani's contention that in bringing the suit, he was simply protecting the interests of his city, may have some merit, although it sounds an awful lot like the argument of every sectional and special interest group when it comes to pork barrel spending. Their arguments roughly run like this: "I'm against earmarks, unless they're earmarks that go to my community or to my preferred class of people."
But Giuliani appears to want to drape his lawsuit in the wifty legitimacy of constitutionality. It's a bit of a dodge.
The implicit question in McCain's and Romney's shots at him which Giuliani might more profitably address is, "Leaving aside the merits of the $250-million of New York pork, do you believe in a line item veto? Would you support a line item veto, something which even the Republican you and the other candidates for president invoke as the patron saint of your party, Ronald Reagan, supported? Or, was Mr. Reagan wrong?"
I would be interested in how Mr. Giuliani--and all the other candidates for his party's nomination--would respond to that question. (I'd also like to know how the Democratic candidates stand on the line item veto.)
It was Andrew Jackson who first made energetic use of presidential veto power. He did so to stand up against the interests he thought controlled the Congress. He deemed it a legitimate weapon for the President, who was elected by the whole country, to use in preventing interest groups of various kinds from getting laws passed benefiting the few.
But the presidential veto is usually impotent when it comes to spending measures. Illegitmate pork can easily be folded into legitimate and necessary spending measures, forcing President's hands. The President can choose to veto appropriations bills, which often go to the White House late any way, because they contain objectionable pork spending or simply accept such bills as the best that's likely to be produced by a Congress prone, even when its members are personally incorruptible, to spend money in the ways that constituents, city councils, and important supporters want them to spend it.
While Presidents are human beings and therefore as subject to corruption as the next mortal, it's easier for the President to speak for the whole country, as Andrew Jackson knew, than to push the petty, budget-busting agendas of congressional districts and individual states. The Constitution is a commendable, remarkable document. I have the deepest respect for it as the best thinking of what should be regarded, I think, as America's greatest generation. (The Constitution is, I think, greater than the Declaration of Independence. That document enunciated principles of liberty. But the Constitution was how the generation who secured American liberty decided it would use its liberty effectively and well.) The Constitution was not without its flaws, as its countenancing of slavery attests. The Framers knew too, that the document wasn't perfect and that circumstances would change, meaning that the power to amend it was essential and built into it.
The failure to give the US President the ability to veto specific items of spending within massive appropriations bills appears to me to be a design flaw in the Constitution.
For McCain to say that the line item veto is constitutional, which he did say on Wednesday night, is flat-out wrong. For Giuliani to say--repeatedly--that it's unconstitutional is irrelevant. The question, as I say, is whether advocating an amendment or at least, advocating exploring the possibility of such an amendment, is advisable.
[This is being cross-posted at The Moderate Voice.]
[UPDATE: In the comments here, my friend, Charlie Lehardy, makes a similar point to one I made in the comments on this post over at TMV. You might want to check out that discussion here.]