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Hearing: Line-Item Veto Constitutional Issues


Location: Washington, DC


Chairman Nussle, thank you for holding today's markup to consider
H.R. 4890, the Legislative Line-Item Veto Act of 2006. I am very
pleased that the House Budget Committee has decided to move forward on
this important piece of legislation, and I am satisfied with the
excellent bill that we have before us today. The manager's amendment to
H.R. 4890 is the product of exhaustive consultations with Members and
staff of the House Budget Committee, the House Rules Committee, the
Office of Management and Budget (OMB), constitutional lawyers,
Democrats, Republicans, and many other interested parties. We are
certain of this bill's constitutionality, we are certain that it is
narrowly crafted to meet its intent, and we are certain of the need to
pass this legislation to help us control Federal spending. I look
forward to the Committee's passage of this legislation and its ultimate
consideration on the House floor. It is my strong belief that H.R. 4890
will take an important step toward bringing greater transparency,
accountability and a dose of common sense to the Federal budget


The amount of pork-barrel spending included in the Federal budget
continues to increase every year. According to Citizens Against
Government Waste (CAGW), the Federal Government spent $29 billion on
9,963 pork-barrel projects in Fiscal Year 2006 (FY 2006), an increase
of 6.3% from 2005, and an increase of over 900% since 1991. Overall,
the Federal Government has spent $241 billion on pork-barrel projects
between 1991 and 2005, an amount greater than two-thirds of our entire
deficit in FY 2005. This includes irresponsible spending on items such
as the $50 million Rain Forest Museum in Iowa; $13.5 million to pay for
a program that helped finance the World Toilet Summit; and $1 million
for the Waterfree Urinal Conservation Initiative.
To make matters worse, this total does not include earmarks placed
in authorization bills or special-interest tax pork placed in tax
legislation. As an example, last year's highway authorization bill
contained approximately 6,371 earmarks, with a total cost of $25
Many of these pork-barrel spending projects are quietly inserted
into the conference reports of appropriations, authorizing, and tax
bills at the end of the process where there is little transparency and
accountability. Not only do most Members not have the ability to
scrutinize these provisions at all, but even if wasteful spending items
are identified at this stage, Congress is unable to eliminate them
using the amendment process. In fact, the only time that Members
actually vote on these items is during an up-or-down vote on the entire
conference report, which includes spending for many essential
government programs in addition to the pork-barrel earmarks. In this
situation, it is very difficult for any Member to vote against a bill
that, as an overall package may be quite meritorious, despite the
inclusion of wasteful spending items.
Unfortunately, the current tools at the President's disposal do not
enable him to easily combat these wasteful spending items either. Even
if the President identifies numerous pork-barrel projects in an
appropriations or authorizing bill, he is unlikely to use his veto
power because it must be applied to the bill as a whole and cannot be
used to target individual items. This places the President in the same
dilemma as Members of Congress. Does he veto an entire spending bill
because of a few items of pork when this action may jeopardize funding
for our troops, for our homeland security or for the education of our
The President's ability to propose the rescission of wasteful
spending items under the Impoundment Control Act of 1974 has been
equally ineffective at eliminating wasteful spending items. The problem
with the current authority is that it does not include any mechanism to
guarantee congressional consideration of a rescission request, and many
Presidential rescissions are simply ignored by the Congress. In fact,
during the 1980's, Congress routinely ignored President Reagan's
rescission requests, failing to act on over $25 billion in requests
that were made by the Administration. The historic ineffectiveness of
this tool has deterred Presidents from using it with any regularity.


To help bring accountability and transparency to the end of the
budget process, I introduced H.R. 4890, the Legislative Line-Item Veto
Act of 2006, on March 7, 2006. This legislation, which currently has
the support of 106 bipartisan cosponsors in the House, is one important
step toward the reform of the Federal budget process to force Congress
to take better care of taxpayer dollars. It will serve as an important
complement to earmark reforms that the House passed as a part of H.R.
4975, the Lobbying Accountability and Transparency Act of 2006, which
will bring greater transparency to the front end of the process.
H.R. 4890 achieves this objective by providing the President with
the authority to single out wasteful spending items and narrow special-
interest tax breaks included in legislation that he signs into law and
send these specific items back to Congress for a timely vote. After
Congress receives the rescission requests from the President, H.R. 4890
requires an up-or-down vote in both chambers of Congress before the
rescissions can become law. This requirement ensures that Congress
retains control over the power of the purse and will have the final
word when it comes to spending matters. In addition, H.R. 4890 also
includes a mechanism that would guarantee congressional action on the
proposed rescissions in an expedited time frame, which will make it
much more effective than the current rescission authority vested in the
President under the Impoundment Control Act of 1974.
The process under the manager's amendment to H.R. 4890 begins when
the President signs an appropriations bill, authorizing bill, or tax
bill into law. Within 45 days of enactment, the President would have
the ability to put on hold wasteful discretionary spending items,
wasteful direct spending items, or new special-interest tax breaks and
could ask Congress to rescind these specific items.
After receiving a rescission request from the President, the House
and Senate leadership or their designees would have 5 days to introduce
an approval bill. The bill would then be referred to the appropriate
committee, which would have 7 days to report the bill to the floor
without substantive revision. If the committee failed to act within
this limited time period, the bill would then be subject to a
privileged motion to discharge, which could be raised by any Member and
would have the effect of bringing the bill directly to the House floor
for a vote. This would guarantee that the rescission request could not
be ignored and would ensure its consideration by the full House and
Senate within 14 total legislative days after the receipt of the
President's message.
Once on the floor, Congress would have an up-or-down vote on these
spending items. If Congress agrees with the President to rescind the
funding, the spending would be cancelled. On the other hand, if
Congress does not agree with the President and votes against his
rescission request, the money would have to be obligated within a
narrow timeframe.
Using the Legislative Line-Item Veto, the President and Congress
will be able to work together to combat wasteful spending and add
transparency and accountability to the budget process. This tool will
shed light on the earmarking process and allow Congress to vote up or
down on the merits of specific projects added to legislation or to
conference reports. Not only will this allow the President and Congress
to eliminate wasteful pork-barrel projects, but it will also act as a
strong deterrent to the addition of questionable projects in the first
place. At the same time, Members who make legitimate appropriations
requests should have no problem defending them in front of their
colleagues if they are targeted by the President. With H.R. 4890, we
can help protect the American taxpayer from being forced to finance
wasteful pork-barrel spending and ensure that taxpayer dollars are only
directed toward projects of the highest merit.


Unlike the line-item veto authority provided to President Clinton
in 1996, H.R. 4890 passes constitutional muster because it requires an
up-or-down vote in both chambers of Congress under an expedited process
in order to effectuate the President's proposed rescissions. In Clinton
v. City of New York, the U.S. Supreme Court held that the line-item
veto authority provided to President Clinton in 1996 violated the
Presentment Clause of the U.S. Constitution (Article I, Section 7,
Clause 2), which requires that ``every bill which shall have passed the
House of Representatives and the Senate, shall, before it become a Law,
be presented to the President of the United States.'' The problem with
the previous version of the line-item veto was that the President's
requested rescissions would become law by default if either the House
or Senate failed to enact a motion of disapproval to stop them from
taking effect. The lower court in Clinton v. City of New York also held
that this version of the line-item veto upset the balance of power
between the executive and legislative branches. On the other hand, H.R.
4890 leaves Congress in the middle of the process where it belongs and
follows the procedure and balance of power outlined in our
Perhaps the most compelling evidence of this bill's
constitutionality in contrast to the 1996 Act and the decision in
Clinton v. City of New York is the support of Charles J. Cooper, a
partner at Cooper & Kirk, PLLC. Whereas Mr. Cooper argued against the
previous version of the Line-Item Veto in the Supreme Court and was
instrumental in the decision to have it overturned, Mr. Cooper now
strongly supports the constitutionality of H.R. 4890. In fact, Mr.
Cooper has testified three times in Congress that H.R. 4890 is
constitutional, including last week in front of this Committee.
H.R. 4890 also withstands constitutional scrutiny under the U.S.
Supreme Court's holding in I.N.S. v. Chadha. In I.N.S. v. Chadha, the
Supreme Court invalidated part of the Immigration and Nationality Act
that allowed a single house of Congress to override immigration
decisions made by the Attorney General. The Legislative Line-Item Veto
Act of 2006 is consistent with this holding because the President's
authority to defer funds would not explicitly be terminated by the
disapproval of a proposed rescission by one of the houses of Congress.
I agree with the Supreme Court's rulings in Clinton v. City of New
York and I.N.S. v. Chadha. It is extremely important that Congress does
not cede its law-making power to the President. I believe that this
violates the Separation of Powers in addition to the Presentment
Clause. By contrast, H.R. 4890 withstands constitutional scrutiny
because it requires both houses of Congress to act on any rescission
request and for this legislation to be sent back to the President for
his signature before the spending cancellation can take effect. This
retains the power of the purse in the legislative branch and keeps
Congress in the middle of the process as envisioned by our founding


The Legislative Line-Item Veto Act is based on an expedited
rescissions approach to controlling spending that has been historically
supported by both Democrats and Republicans as a means of bringing
greater transparency and accountability to the budget process. In fact,
the Ranking Member of this Committee, Mr. Spratt, introduced two pieces
of legislation in the early 1990's that would have provided the
President with the ability to propose the cancellation of spending
items and special-interest tax breaks and have them considered by
Congress on an expedited basis. The first of these bills, the Expedited
Rescissions Act of 1993, was introduced by Mr. Spratt on April 1, 1993.
When it was considered on the House floor later that month, it received
258 votes, including 174 from Democratic Members. A second budget
process reform bill that included expedited rescissions language was
introduced by Mr. Spratt on June 17, 1994. When this bill was voted on
by the entire House later that year, it received 342 votes, including
173 votes from Members of the Democratic Party.
I have also worked on this issue on a bipartisan basis. On June 24,
2004, I offered an amendment with my former colleague Representative
Charlie Stenholm, a Democrat from Texas, to add expedited rescissions
provisions to a budget process bill that was being considered on the
House floor at the time. Like H.R. 4890, this amendment would also have
allowed the President to propose the elimination of wasteful spending
items subject to congressional approval under an expedited process.
Although this amendment failed to pass the House, it attracted the
support of 174 Members of Congress, including 45 Democrats. A similar
provision is also included in Section 311 of the Family Budget
Protection Act, legislation that I introduced along with Congressman
Jeb Hensarling of Texas, Congressman Chris Chocola of Indiana, and
former Congressman Christopher Cox of California during 2004 and again
in 2005.


Since introducing H.R. 4890, I have received substantial feedback
from interested Members of Congress on ways to improve the legislation
to ensure that it best meets its intent of controlling Federal spending
while keeping the power of the purse squarely in the legislative
branch. I have had extensive consultations with Members and staff on
the House Budget Committee, the House Rules Committee, OMB,
constitutional lawyers, Democrats, Republicans, and many other
interested parties. We have discussed many ways to tweak the original
language of H.R. 4890, and I am very pleased with the product that we
are considering today. I believe that the revisions we have made ensure
that the bill meets its intent of allowing the President and Congress
to work together to reduce wasteful spending earmarks while ensuring
that Congress does not grant too much power to the executive branch.
As I worked to revise this bill, I paid special heed to the
comments made by the Ranking Member of this Committee, who has a long
history of working on this issue. During a hearing that the House
Budget Committee held on this bill on May 25, 2006, Mr. Spratt pointed
out numerous concerns with the original version of H.R. 4890. Among the
Ranking Member's criticisms were the following: (1) the lack of a time
frame for the President to make a rescission request; (2) the ability
of a President to make the same rescission request numerous times; (3)
the ability of a President to suspend spending for up to 180 days or
longer; (4) the potential that this legislation could be used to go
after existing entitlement programs; and (5) the lack of a sunset date
on the bill.
I found many of Mr. Spratt's concerns to be valid. Not only were
they things that I had already contemplated changing in the bill, but
many of his concerns echoed criticisms that I had received from the
other parties with whom I had been consulting about the legislation.
As a result, the manager's amendment makes numerous positive
changes to the bill, including nearly every issue brought up by Mr.
Spratt. First, the manager's amendment includes a 45-day limitation on
the amount of time that the President has to submit a rescission
request. I believe that this is an important change to help prevent the
President from holding undue sway over Members of Congress.
Second, the manager's amendment also prevents the President from
making duplicative requests of the same spending and tax items. Not
only will this authority apply to rescission requests under this bill,
but it will also prevent a President from combining the new authority
with existing law to make multiple rescission requests. This change
will prevent the President from continually forcing Congress to vote on
the same rescission requests multiple times in order to slow
legislative action on other bills.
The manager's amendment also significantly shortens the 180-day
deferral period. In fact, under the bill we are considering today, the
President would be given the ability to defer spending for 45 calendar
days with the option to renew this authority for another 45 calendar
days. The language is also drafted to encourage the President to
obligate the funding as soon as either house of Congress votes against
a proposal on the floor. While my preference would have been to have
the deferral period directly linked to congressional action of either
house, this raises serious constitutional concerns under the
Bicameralism and Presentment Clause. As a result, we have settled on an
approach that restrains the deferral authority as much as possible
while respecting the Constitution and ensuring that the authority will
not lapse when Congress goes into an extended recess.
Next, the manager's amendment also addresses Mr. Spratt's concerns
that it could be used as a tool to go after existing entitlement
programs. Although this was never my intention in drafting the bill, I
am respectful of the concerns raised by the Ranking Member and have
included explicit language to prohibit this possibility.
Finally, I have also worked with another friend of mine from the
Democratic side, Mr. Cuellar, to include a sunset provision in this
legislation and directly address Mr. Spratt's fifth concern. Mr.
Cuellar has been a strong advocate of this bill, and I am very pleased
that he is offering an amendment today to impose a 6-year sunset on
H.R. 4890. This will give Congress the ability to review this
legislation and decide whether or not to renew it after two
Presidential Administrations have had the full opportunity to use it as
a tool to control spending.
An additional change that I made to the bill was to add a provision
to limit the number of rescission requests that the President can make
per bill he signs into law. Under the manager's amendment, the
President's requests would be limited to five per bill with an
exception for ten for an omnibus spending bill. Like some of the other
changes, this will go a long way toward preserving the separation of
powers between the Executive and Legislative branches.
Finally, the language on the direct spending items and tax
provisions was clarified to ensure that the President only has the
ability to go after wasteful spending items, not policy. The intent of
this bill is for the President to target unnecessary earmarks and work
with Congress in a respectful fashion in order to eliminate them from
legislation, not to give the President another tool to go after policy
provisions passed by Congress. I believe that the revised version of
this bill strikes an important balance of power between the branches of
government and is narrowly crafted to meet its intent of allowing the
President to propose to eliminate wasteful spending items.


In 2006, the Federal Government will once again rack up an annual
budget deficit of over $300 billion, and our debt is expected to
surpass $9 trillion. Meanwhile, the retirement of the baby boom
generation looms on the horizon, threatening to severely exacerbate
this problem. Given these dire circumstances, it is essential that we
act now to give the President all of the necessary tools to help us get
our fiscal house in order. By providing the President with the scalpel
he needs to pinpoint and propose the elimination of wasteful spending,
H.R. 4890 takes an important step toward achieving this goal. The value
of this bill will be measured less in the number of wasteful projects
that are eliminated and more by how many never get inserted in the
first place.

Mr. Ryun. We will begin now with our witnesses. And our
first witness is Mr. Cooper. I look forward to your comments.

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