This might be a another proposed amendment article from you in the future, but I was curious what you would think of a line-item veto for appropriations. With and without gelding the presidential veto. Also be interesting to see what would be the inter-branch dynamics of having a line-item veto as well as the House having a strong power of the purse as you also propose. More of a move to a quasi-parliamentary structure?
If the veto is gelded, then I think a line-item veto could be a salutary measure. Sending it on back to the legislature to make them REALLY think it through could be good for them.
If the veto is NOT gelded, though, then (with apologies to Newt Gingrich and the Contract for America) I think a line-item veto would be a catastrophe. In a system where an executive veto can only be surmounted by a legislative supermajority, a line-item veto is nothing but a vast transfer of legislative power to the executive. As long as his opposition doesn't hold a supermajority (a *bicameral* supermajority, at that!), the executive now can exercise legislative power not only by using the threat of a general veto as leverage against negotiators; now he can literally *rewrite the bill* using his targeted veto. All the ugly tendencies in our system that transform the executive into a legislator-in-chief are amplified tenfold under a line-item veto.
This isn't a weird side effect, either; it is, explicitly, the *justification* for having a line-item veto. President Clinton asked Congress to give it to him so he could "take the heat" for cutting pork-barrel spending measures that Congress apparently just couldn't help stuffing into bills. Congress itself had such a low opinion of itself that it *agreed* it was incapable of legislating and delegated this core legislative power to the executive branch. I have to imagine that the king-fearing Founding Fathers would have despaired at the sight.
This is before we even get into all the stupid antics a line-item veto enables, like Gov. Tony Evers in Wisconsin using the veto to strike the hyphen and the digits "20" from the phrase "...until the 2024-25 school year" in order to turn a one-year appropriation into a four-century appropriation. ("...until the 2425 school year.")
Sorry to come on so strong! I really hate line-item vetoes because of how they humiliate the legislature, which ought to be first among equals. However, like I said, if the veto were gelded, a line-item suspensory veto (overridden by simple majority) might be a very good trade-off -- certainly one I'd be willing to make in exchange for the overall gelding -- and could be genuinely useful by letting the President raise a red flag without actually exercising legislative leverage.
(Most states have already given their governors this power, at least to some extent. I would undo that, too, if I had a magic wand.)
This is an extremely minor point, but I think there is one thing that should be added to the amendment you propose. It should say "after being ratified, this amendment will not take effect until the next President assumes office" or something to that effect.
The reason for this is that while the amendment itself (theoretically, at least) benefits neither party in general, it would be of considerable detriment for several years to the party of the current President. So they would have considerably less interest in approving an amendment if they know it would be to their disadvantage, much like how it's difficult to weaken the power of the President because you'd need a 2/3 of each house and the party of the current President wouldn't be interested in weakening the President when he's their guy, and of course an amendment has even stricter requirements than that. You need both parties to get on board with it, and the party that has the President would have little interest in doing so because they'd be the ones to take the hit for the next few years; it'd be sort of like a party wanting to get rid of the filibuster in the Senate while they're in the minority!
Changing it so that it only takes effect with the NEXT President means that no party will become disadvantaged during the current term, removing a potential obstacle to the President's party in voting for the amendment. Whatever party wins the presidency the next term will be disadvantaged, but since no one would know for sure who that would be, no one would actually know it would be to their disadvantage to approve it.
This is a very good idea. In fact, it's a good idea for a lot of these amendments. I was planning to put a clause like this into the Supreme Court reform one, but, actually, it would work for a lot of them. You'd probably want to tweak it a tad so that states wouldn't punitively ratify it after the election but before the term begins in order to hobble the next presidency -- but, yeah, dropping the veil of ignorance over this proposal can only make it more attractive to both parties, and solves a lot of political problems.
NOTE TO SELF: Figure out how to account for this in an article.
I was rereading your old Constitutional Amendment proposals, found this comment, and realized the 22nd Amendment already did exactly that - including your tweak - when establishing Presidential term limits.
So you can grab and tweak its language:
> "... But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term."
It did indeed! The 17th Amendment also has a "nope not yet" clause at the end. The slave trade clause offers yet another approach to activating constitutional text in the future.
What I've been wondering is whether this sort of language has to be in the amendment text, or can be put in the proposing clause so as to avoid clutter (like how the ERA had its seven-year ratification deadline embedded in the proposing clause).
Still, it's different enough for each amendment that I should probably at least think about spelling it out each time.
After the battles about Congress trying to extend the ERA ratification deadline, I think there're strong advantages to spelling everything out in the Amendment's text.
That said, the Federal Convention of 1787 did put their own transitional provisions in a cover letter not the Constitution itself, so I suppose it does have precedent - and, as you say, the advantages of avoiding soon-needless clutter.
That is a good point. Until the meaning and heft of the ERA's proposing clause is definitively settled and the settlement universally accepted, it would be foolish to count on it bearing the weight I expect it to bear, even if I hate clutter.
(Maybe we can have an amendment that just says: "Time limits are binding even in the proposing clause, and the following sections of the Constitution are not to be included in the body of the Constitution in official transcripts: [then just print a list of all the "time limit" clauses currently in the Constitution].") Solves the clutter and the legal problem in one blow! But also sort of a silly use for an amendment. :)
The Irish Constitution does specify clauses that aren't to be printed in official texts - for example, Article 51 of the original 1937 Constitution, which was solely applicable in the first three years after its enactment. However, Ireland generally goes further and omits other clauses that are seen to generally not have force anymore... but they sometimes end up actually still applying in some cases after all.
So because of that, I'm reluctant to not include anything that's officially part of the Constitution. One text I found online even includes, between Article VII and the Bill of Rights, the Convention's cover-letter about transitional provisions and Congress's cover-letter proposing the Bill of Rights; which I like because they might be relevant sometime and even if they aren't they're historical documents with strong explanatory force.
This might be a another proposed amendment article from you in the future, but I was curious what you would think of a line-item veto for appropriations. With and without gelding the presidential veto. Also be interesting to see what would be the inter-branch dynamics of having a line-item veto as well as the House having a strong power of the purse as you also propose. More of a move to a quasi-parliamentary structure?
If the veto is gelded, then I think a line-item veto could be a salutary measure. Sending it on back to the legislature to make them REALLY think it through could be good for them.
If the veto is NOT gelded, though, then (with apologies to Newt Gingrich and the Contract for America) I think a line-item veto would be a catastrophe. In a system where an executive veto can only be surmounted by a legislative supermajority, a line-item veto is nothing but a vast transfer of legislative power to the executive. As long as his opposition doesn't hold a supermajority (a *bicameral* supermajority, at that!), the executive now can exercise legislative power not only by using the threat of a general veto as leverage against negotiators; now he can literally *rewrite the bill* using his targeted veto. All the ugly tendencies in our system that transform the executive into a legislator-in-chief are amplified tenfold under a line-item veto.
This isn't a weird side effect, either; it is, explicitly, the *justification* for having a line-item veto. President Clinton asked Congress to give it to him so he could "take the heat" for cutting pork-barrel spending measures that Congress apparently just couldn't help stuffing into bills. Congress itself had such a low opinion of itself that it *agreed* it was incapable of legislating and delegated this core legislative power to the executive branch. I have to imagine that the king-fearing Founding Fathers would have despaired at the sight.
This is before we even get into all the stupid antics a line-item veto enables, like Gov. Tony Evers in Wisconsin using the veto to strike the hyphen and the digits "20" from the phrase "...until the 2024-25 school year" in order to turn a one-year appropriation into a four-century appropriation. ("...until the 2425 school year.")
Sorry to come on so strong! I really hate line-item vetoes because of how they humiliate the legislature, which ought to be first among equals. However, like I said, if the veto were gelded, a line-item suspensory veto (overridden by simple majority) might be a very good trade-off -- certainly one I'd be willing to make in exchange for the overall gelding -- and could be genuinely useful by letting the President raise a red flag without actually exercising legislative leverage.
(Most states have already given their governors this power, at least to some extent. I would undo that, too, if I had a magic wand.)
This is an extremely minor point, but I think there is one thing that should be added to the amendment you propose. It should say "after being ratified, this amendment will not take effect until the next President assumes office" or something to that effect.
The reason for this is that while the amendment itself (theoretically, at least) benefits neither party in general, it would be of considerable detriment for several years to the party of the current President. So they would have considerably less interest in approving an amendment if they know it would be to their disadvantage, much like how it's difficult to weaken the power of the President because you'd need a 2/3 of each house and the party of the current President wouldn't be interested in weakening the President when he's their guy, and of course an amendment has even stricter requirements than that. You need both parties to get on board with it, and the party that has the President would have little interest in doing so because they'd be the ones to take the hit for the next few years; it'd be sort of like a party wanting to get rid of the filibuster in the Senate while they're in the minority!
Changing it so that it only takes effect with the NEXT President means that no party will become disadvantaged during the current term, removing a potential obstacle to the President's party in voting for the amendment. Whatever party wins the presidency the next term will be disadvantaged, but since no one would know for sure who that would be, no one would actually know it would be to their disadvantage to approve it.
This is a very good idea. In fact, it's a good idea for a lot of these amendments. I was planning to put a clause like this into the Supreme Court reform one, but, actually, it would work for a lot of them. You'd probably want to tweak it a tad so that states wouldn't punitively ratify it after the election but before the term begins in order to hobble the next presidency -- but, yeah, dropping the veil of ignorance over this proposal can only make it more attractive to both parties, and solves a lot of political problems.
NOTE TO SELF: Figure out how to account for this in an article.
I was rereading your old Constitutional Amendment proposals, found this comment, and realized the 22nd Amendment already did exactly that - including your tweak - when establishing Presidential term limits.
So you can grab and tweak its language:
> "... But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term."
It did indeed! The 17th Amendment also has a "nope not yet" clause at the end. The slave trade clause offers yet another approach to activating constitutional text in the future.
What I've been wondering is whether this sort of language has to be in the amendment text, or can be put in the proposing clause so as to avoid clutter (like how the ERA had its seven-year ratification deadline embedded in the proposing clause).
Still, it's different enough for each amendment that I should probably at least think about spelling it out each time.
After the battles about Congress trying to extend the ERA ratification deadline, I think there're strong advantages to spelling everything out in the Amendment's text.
That said, the Federal Convention of 1787 did put their own transitional provisions in a cover letter not the Constitution itself, so I suppose it does have precedent - and, as you say, the advantages of avoiding soon-needless clutter.
That is a good point. Until the meaning and heft of the ERA's proposing clause is definitively settled and the settlement universally accepted, it would be foolish to count on it bearing the weight I expect it to bear, even if I hate clutter.
(Maybe we can have an amendment that just says: "Time limits are binding even in the proposing clause, and the following sections of the Constitution are not to be included in the body of the Constitution in official transcripts: [then just print a list of all the "time limit" clauses currently in the Constitution].") Solves the clutter and the legal problem in one blow! But also sort of a silly use for an amendment. :)
The Irish Constitution does specify clauses that aren't to be printed in official texts - for example, Article 51 of the original 1937 Constitution, which was solely applicable in the first three years after its enactment. However, Ireland generally goes further and omits other clauses that are seen to generally not have force anymore... but they sometimes end up actually still applying in some cases after all.
So because of that, I'm reluctant to not include anything that's officially part of the Constitution. One text I found online even includes, between Article VII and the Bill of Rights, the Convention's cover-letter about transitional provisions and Congress's cover-letter proposing the Bill of Rights; which I like because they might be relevant sometime and even if they aren't they're historical documents with strong explanatory force.