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.
Coming back around to this (inspired by, of all things, Alexandria Ocasio-Cortez's appearance at the Munich Security Conference), I invite you to consider the following scenario.
It's January 1995, and Speaker Gingrich and Majority Leader Dole are getting ready to enact the Contract with America that the voters just endorsed the previous year to put Republicans in control of both the House and the Senate. President Clinton has said that he disagrees with everything in the platform (save only the line-item veto), but that's not an issue, right? After all, Republicans have majorities in both chambers and so they can just override his veto!
Which they do. Repeatedly. On bill after bill after bill.
President Clinton, however, does not take this lying down. He is firmly convinced that the Contract with America, and all the bills being passed, will prove deleterious to the country. So he decides that since he's the President and the executive power is vested in him, he can just... not enforce those laws. Or direct executive agencies to find creative interpretations that amount to the same thing.
The House, naturally, immediately impeaches him. (How party-line the vote goes is another matter.)
In the Senate, however, about three-quarters of the Democrats in that body come up with the novel legal theory that, in fact, the President doesn't have to enforce laws that he thinks are a bad idea. After all, the executive power is vested in him! That gives him final discretion to choose which laws to execute, and he certainly wouldn't be being very "faithful" if he does things he knows will be bad for the country! And thus President Clinton survives impeachment, and then gets "vindicated" in 1996 when the voters don't consider this a big enough issue to put Bob Dole in the White House. And thus the precedent is set that this "gelded" veto is barely weaker than what it was before: the President just needs to keep the backing of a third of the Senate (to survive an impeachment trial), rather than a third of either the House or the Senate.
(And anyway Vice President Gore quietly made it known that he would also refuse to enforce those "bad" laws, which would've forced the country through the drama of a second impeachment trial almost right away, in which Senate Democrats probably would've stuck to their legal gibberish even more because they definitely don't want President Gingrich.)
I will concede that I don't know how this ends up working out in states like Kentucky which have a simple-majority veto override and a supermajority for one party in the legislature, but often elect Governors from the other.
But I think this becomes much more stable if there's a separation between the domestic and foreign executive powers, in other words, the semi-presidential model. (It's coming under strain right now, but that's at least in part because it hasn't yet adapted to dealing with three or even four or five ideological blocs in the Assemblée nationale, rather than the two it had for much of the life of the Fifth Republic.) Matters like national security and foreign policy (perhaps with some carve-outs like the war power, though we now have ample evidence over the last fifteen years or so about how well that's working out) are vested in the President, who has some insulation against legislative interference there, but the domestic executive is managed by another official (the Prime Minister) who is, while chosen by the President, much more directly accountable to the legislature in that he can be fired by the Assemblée if he decides not to enforce the laws the legislature enacts. (The President of France has a veto, but only to require the legislature to consider the bill at fourth reading, so the override is just a simple majority vote.)
France even has a term for the situation where the President comes from one ideological bloc and the Prime Minister from the other: cohabitation.
In this case, I think the fundamental problem stems ultimately not from the veto override threshold, but rather from an untoward fusion of powers, that of the domestic and foreign executive, the separation of which would give the legislature much more certainty that its laws would be properly enforced.
“the separation of which would give the legislature much more certainty that its laws would be properly enforced.”
…well, until they lost the next election, anyway. Then the new team comes in and feels no need to enforce the law, whether or not they formally repeal it.
You are correct that the impeachment process has to change so that a rogue President can be brought to heel by Congress. That’s certainly on my list of things to amend, as the current process is an obvious failure.
On the other hand, a lot of the Contract with America could have been enforced without any help from the President. Take the Common Sense Legal Reform Act (which Clinton vetoed, leading to another round of negotiations followed by a veto override). This bill revised legal procedures in product liability cases. Its enforcement was purely judicial. Some of the provisions of the Contract were proposed constitutional amendments, hindered by the two-thirds majority requirement rather than by the presidential veto.
Moreover, there is at least a colorable case that a President who so completely violates the Take Care clause could be taken to task in federal court, if doing so creates any cognizable injury to any state. President Obama’s violation of the Take Care clause was sufficiently flagrant to work its way into the court system, and he avoided what was likely to be a court order forcing him to enforce the law only because the case was mooted by the 2016 election results.
So I do think that gelding the veto solves a lot of problems, even though it obviously doesn’t solve every problem. (If it did, it would’ve been a one-article series!)
It solves problems, yes. I'm just not sure it solves as many as you think it does, and I still think the true underlying cause is the fusion of the domestic and foreign executive in a position insulated from meaningful legislative oversight.
There is still a reason to repeal a law you don't intend to enforce: to make the point to the other main faction that they shouldn't try to pass it again. (And to avoid an embarrassing court order telling you to enforce it.) There's at least one law up here that I can think of where I'm pretty certain it was watered down before passage because, even though it was passed through a majority Parliament and thus didn't technically need opposition buy-in, the opposition parties very likely told the government of the day that they would repeal it as soon as possible if it passed in the government's preferred form, and the government chose to enact a weaker version that would survive future legislatures (and said weaker version passed with little debate).
(The Wikipedia article on cohabitation has some examples of how centre-right Prime Ministers serving with the centre-left President François Mitterrand were able to repeal various parts of the Socialist Party's domestic agenda that had been enacted when Mitterrand had a friendly legislature.)
As for the Common Sense Legal Reform Act, I won't pretend to know anything about it beyond what you said, but I will note this observation: "and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." That is, a sufficiently opposed executive can frustrate the judiciary as well.
I think you've mentioned elsewhere that you personally think the President's main focus should be on national security and foreign policy, rather than domestic matters--which is what the semi-presidential model does. (Though in France's case, it came to that model from the other direction, shifting from a parliamentary republic to a semi-presidential one in the wake of the Suez and Algiers crises of the 1950s, in order to separate defence policy from domestic policy by insulating the former from legislative vicissitudes, rather than putting the latter more firmly in the realm of the legislature.) It isn't my favoured model, as you know, but I think there is something to be said for having certainty regarding who deals with other countries (that being the President, for better or worse) while the legislature gets to be first among equals when it comes to domestic policy.
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.
Coming back around to this (inspired by, of all things, Alexandria Ocasio-Cortez's appearance at the Munich Security Conference), I invite you to consider the following scenario.
It's January 1995, and Speaker Gingrich and Majority Leader Dole are getting ready to enact the Contract with America that the voters just endorsed the previous year to put Republicans in control of both the House and the Senate. President Clinton has said that he disagrees with everything in the platform (save only the line-item veto), but that's not an issue, right? After all, Republicans have majorities in both chambers and so they can just override his veto!
Which they do. Repeatedly. On bill after bill after bill.
President Clinton, however, does not take this lying down. He is firmly convinced that the Contract with America, and all the bills being passed, will prove deleterious to the country. So he decides that since he's the President and the executive power is vested in him, he can just... not enforce those laws. Or direct executive agencies to find creative interpretations that amount to the same thing.
The House, naturally, immediately impeaches him. (How party-line the vote goes is another matter.)
In the Senate, however, about three-quarters of the Democrats in that body come up with the novel legal theory that, in fact, the President doesn't have to enforce laws that he thinks are a bad idea. After all, the executive power is vested in him! That gives him final discretion to choose which laws to execute, and he certainly wouldn't be being very "faithful" if he does things he knows will be bad for the country! And thus President Clinton survives impeachment, and then gets "vindicated" in 1996 when the voters don't consider this a big enough issue to put Bob Dole in the White House. And thus the precedent is set that this "gelded" veto is barely weaker than what it was before: the President just needs to keep the backing of a third of the Senate (to survive an impeachment trial), rather than a third of either the House or the Senate.
(And anyway Vice President Gore quietly made it known that he would also refuse to enforce those "bad" laws, which would've forced the country through the drama of a second impeachment trial almost right away, in which Senate Democrats probably would've stuck to their legal gibberish even more because they definitely don't want President Gingrich.)
I will concede that I don't know how this ends up working out in states like Kentucky which have a simple-majority veto override and a supermajority for one party in the legislature, but often elect Governors from the other.
But I think this becomes much more stable if there's a separation between the domestic and foreign executive powers, in other words, the semi-presidential model. (It's coming under strain right now, but that's at least in part because it hasn't yet adapted to dealing with three or even four or five ideological blocs in the Assemblée nationale, rather than the two it had for much of the life of the Fifth Republic.) Matters like national security and foreign policy (perhaps with some carve-outs like the war power, though we now have ample evidence over the last fifteen years or so about how well that's working out) are vested in the President, who has some insulation against legislative interference there, but the domestic executive is managed by another official (the Prime Minister) who is, while chosen by the President, much more directly accountable to the legislature in that he can be fired by the Assemblée if he decides not to enforce the laws the legislature enacts. (The President of France has a veto, but only to require the legislature to consider the bill at fourth reading, so the override is just a simple majority vote.)
France even has a term for the situation where the President comes from one ideological bloc and the Prime Minister from the other: cohabitation.
In this case, I think the fundamental problem stems ultimately not from the veto override threshold, but rather from an untoward fusion of powers, that of the domestic and foreign executive, the separation of which would give the legislature much more certainty that its laws would be properly enforced.
“the separation of which would give the legislature much more certainty that its laws would be properly enforced.”
…well, until they lost the next election, anyway. Then the new team comes in and feels no need to enforce the law, whether or not they formally repeal it.
You are correct that the impeachment process has to change so that a rogue President can be brought to heel by Congress. That’s certainly on my list of things to amend, as the current process is an obvious failure.
On the other hand, a lot of the Contract with America could have been enforced without any help from the President. Take the Common Sense Legal Reform Act (which Clinton vetoed, leading to another round of negotiations followed by a veto override). This bill revised legal procedures in product liability cases. Its enforcement was purely judicial. Some of the provisions of the Contract were proposed constitutional amendments, hindered by the two-thirds majority requirement rather than by the presidential veto.
Moreover, there is at least a colorable case that a President who so completely violates the Take Care clause could be taken to task in federal court, if doing so creates any cognizable injury to any state. President Obama’s violation of the Take Care clause was sufficiently flagrant to work its way into the court system, and he avoided what was likely to be a court order forcing him to enforce the law only because the case was mooted by the 2016 election results.
So I do think that gelding the veto solves a lot of problems, even though it obviously doesn’t solve every problem. (If it did, it would’ve been a one-article series!)
It solves problems, yes. I'm just not sure it solves as many as you think it does, and I still think the true underlying cause is the fusion of the domestic and foreign executive in a position insulated from meaningful legislative oversight.
There is still a reason to repeal a law you don't intend to enforce: to make the point to the other main faction that they shouldn't try to pass it again. (And to avoid an embarrassing court order telling you to enforce it.) There's at least one law up here that I can think of where I'm pretty certain it was watered down before passage because, even though it was passed through a majority Parliament and thus didn't technically need opposition buy-in, the opposition parties very likely told the government of the day that they would repeal it as soon as possible if it passed in the government's preferred form, and the government chose to enact a weaker version that would survive future legislatures (and said weaker version passed with little debate).
(The Wikipedia article on cohabitation has some examples of how centre-right Prime Ministers serving with the centre-left President François Mitterrand were able to repeal various parts of the Socialist Party's domestic agenda that had been enacted when Mitterrand had a friendly legislature.)
As for the Common Sense Legal Reform Act, I won't pretend to know anything about it beyond what you said, but I will note this observation: "and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." That is, a sufficiently opposed executive can frustrate the judiciary as well.
I think you've mentioned elsewhere that you personally think the President's main focus should be on national security and foreign policy, rather than domestic matters--which is what the semi-presidential model does. (Though in France's case, it came to that model from the other direction, shifting from a parliamentary republic to a semi-presidential one in the wake of the Suez and Algiers crises of the 1950s, in order to separate defence policy from domestic policy by insulating the former from legislative vicissitudes, rather than putting the latter more firmly in the realm of the legislature.) It isn't my favoured model, as you know, but I think there is something to be said for having certainty regarding who deals with other countries (that being the President, for better or worse) while the legislature gets to be first among equals when it comes to domestic policy.