Raines v. Byrd – Oral Argument – May 27, 1997

Media for Raines v. Byrd

Audio Transcription for Opinion Announcement – June 26, 1997 in Raines v. Byrd

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William H. Rehnquist:

We’ll hear argument now in Number 96-1671, Frederick D. Raines v. Robert C. Byrd, and counsel have been advised, I believe, that you are to have 35 minutes each on a side.

General Dellinger.

Walter E. Dellinger, III:

Mr. Chief Justice, and may it please the Court:

The single most important point I want to make this morning is a point that goes both to standing and the merits, and it is this: the passage of the Line Item Veto Act does not alter the authority or the ability of Congress to require the executive branch to spend appropriated funds.

After the act, as before, every legislative option about whether an appropriation should be mandatory or discretionary remains fully available to a simple majority of Congress.

When the time comes to vote on an appropriations bill, the legal effect of each option, mandatory, discretionary, linked or unlinked, will be perfectly clear.

Every Member’s vote will be fully counted.

The simple majority of Congress retains full authority to protect any item of spending from presidential cancellation.

This point goes to the heart of the appellee’s claim of standing.

Consider their best shot, I believe is the example with which they… they feature in the opening of their reply brief, an example where a Member votes for an ABC bill which might lead, they say, to the post hoc creation of an ABC law or an AC law.

Suppose, they say, the items A, B, and C are aid to Egypt, to Jordan, and to Israel.

A Member of Congress might well wish to vote for the delicate balance embodied in the entire package, but have objections to keeping any of the items if the others were to be stricken.

The act converts a vote, they say, for ABC in toto into a vote for a three-item menu from which the President may select any combination that he alone prefers, and the Member is injured at the moment he must cast his vote.

This is simply a profound misunderstanding of the nature of the situation.

When the time comes for Congress to vote on the omnibus foreign aid bill it can, by simple majority, make any choice it wants about mandating or linking those funds.

Congress can say with respect to the appropriation for each country that, quote, no funds under this act may be expended for payments to country A unless funds are provided concurrently to the other two countries, or Congress can vote to mandate all three, using the language it actually sets out in the bill for limited tax benefits by saying something like, section 1021(a) of the Empowerment Control Act shall not apply to provisions I, J, and E of this appropriations act.

William H. Rehnquist:

Well, it could do that all across the board, I suppose, General Dellinger, simply perhaps render the thing kind of a nullity if it incorporated that sort of a provision in every appropriations item.

Walter E. Dellinger, III:

It could, of course, though we doubt that it would.

We think that the act has important functions as a background default mode but it is… would not be at all surprising if particular projects were put forth at an appropriation and also with the notion that section 1021(a) should not apply.

Sandra Day O’Connor:

Well, of course, the President then could veto such subsequent bill and that would then require a larger vote of Congress to override the veto.

I mean, it does put them in a different position to that extent, perhaps.

Walter E. Dellinger, III:

No, I’m not sure that I agree, if I understand your question, Justice O’Connor.

The–

Sandra Day O’Connor:

Well, suppose Congress decides later on that maybe some type of appropriations shouldn’t be subject to this line item veto, so they include passage in a subsequent bill saying that the Line Item Veto Act won’t apply to a certain type of appropriation.

That, of course, has to go to the President for signature, and he then can veto that and that then would require enough votes to override that veto.

Walter E. Dellinger, III:

–Yes, that–

Sandra Day O’Connor:

And to that extent it kind of changes the equation.

Walter E. Dellinger, III:

–But in your example Congress passes the requirement that the provision be exempt from this provision only after it has first passed an omnibus appropriations act, but Congress is more likely to choose to do that with an appropriation it cares about in the process of passing the omnibus appropriations act, and that’s not, you know, unfamiliar.

Congress in the very act that they use as an example provided that the assistance for Israel and Egypt shall be provided with the President’s assurance that the level does not cause an adverse impact on the total level of military support, that the sum of $815 million available only for Egypt with the understanding that Egypt will undertake significant economic reforms, et cetera.

That is to say, Congress is quite familiar with that process, so that I think if you looked at this in the context of a real case or controversy after the fact, you might well have seen that Senator Byrd or Senator Moynihan had moved to link the aid to Egypt, Israel, and Jordan, and had that rejected, 53-47, and then moved to make–

Anthony M. Kennedy:

Well, but in all events, Mr. Dellinger, you are defending the line item veto as it was enacted and as it was intended to work, are you not?

Walter E. Dellinger, III:

–That is correct.

Anthony M. Kennedy:

And it does seem to me that there is some point to the argument that this changes the legislative dynamic.

Now, whether or not that is sufficient to create a cause of action or standing is what we’re here to decide.

Walter E. Dellinger, III:

Yes.

It was intended to and it does change the legislative dynamic, but not in a way that creates a legal injury.

Senator–

John Paul Stevens:

Mr. Solicitor General, your example of the ABC and a small number certainly is easy to understand.

They can do that.

But isn’t it true that it the… it is anticipated that the budget bill will include maybe hundreds of items, or a very large number, and it’s unlikely that you could work out all combinations in advance, so that for example if a Congressman was interested in the Navy Yard in San Diego or something he wouldn’t know whether that would survive.

Walter E. Dellinger, III:

–No, he wouldn’t, but that’s only because he will have been unable to convince a majority of his colleagues to make that mandatory.

I mean, the critical aspect–

John Paul Stevens:

Yes, but isn’t it true… isn’t it true that the typical bill is anticipated to have a large number of items and that the ABC example is really not very realistic.

Walter E. Dellinger, III:

–That is correct.

That is their example, and I do understand that the bill has a large number of items, but a Member who has a very particular interest in preserving the San Diego Shipyard has it within his power to convince a majority of his colleagues by simply adding the phrase that to this item section 1021(a) shall not apply.

John Paul Stevens:

Yes, but then you might have 300 different Congressmen wanting to put that rider on–

Walter E. Dellinger, III:

That is correct.

–that particular item.

Walter E. Dellinger, III:

And what it would take is the political will on the part of Congress to maintain the commitment that the Line Item Veto Act represents the deficit reduction, but the–

Ruth Bader Ginsburg:

General Dellinger, it sounds to me from what you’ve said so far that no one would have standing because no one would be injured, because all choices are always open to Congress.

In your brief, you took the position that this is not a whether question but a who and a when question, but now you seem to say, well, there’s nothing really that’s changed.

Congress retains the power to do anything it wants.

Walter E. Dellinger, III:

–Justice O’Connor, it is a whether question, and a when question.

I’m sorry, I did it again.

My–

May I take… once you get that in your mind, you know, you’re lost.

May I apologize to Justice O’Connor and Justice Ginsburg, and to Chief Justice Souter.

[Laughter]

Justice Ginsburg, it’s a particularly good question, too, so I’m… the… I hate to attribute it elsewhere.

That is not what I am suggesting, because of course there will be standing at the appropriate time by someone who is injured.

Walter E. Dellinger, III:

I’m suggesting that these Senators and Members do not have standing now and never will have standing.

Ruth Bader Ginsburg:

But on the–

Walter E. Dellinger, III:

But I’ll tell you who would have standing.

If Congress passes an appropriation for a hog for every farmer on certain conditions, and the President cancels that item, a farmer who is supposed to get his hog under the appropriation act sues the Secretary of Agriculture and says, I want my hog.

This conferral of authority on the President–

Anthony M. Kennedy:

–And isn’t–

Walter E. Dellinger, III:

–of a line item or items is unconstitutional–

Anthony M. Kennedy:

–And isn’t his argument that there is a lack of legislative regularity that violates the Constitution?

Isn’t that what his argument is?

Walter E. Dellinger, III:

–I suppose that is his argument.

Anthony M. Kennedy:

Just as in the Chadha case there was a violation of the Constitution in the way the bill was enacted as to Chadha.

Now, if that’s so, if there’s a violation of the constitutional regularity that is mandated on the Congress, why isn’t there an injury now?

Walter E. Dellinger, III:

There’s not an injury now because these Members of Congress at this point can vote and persuade their colleagues to vote for any item they wish.

The… Senator Byrd and Senator Moynihan and the others allege that they are presently uncertain about what the consequence of their vote will be, but as I noted at the outset they have in the hands of the majority of their colleagues the key to their own uncertainty by–

Stephen G. Breyer:

They don’t.

How… are we talking about injury in fact?

I mean, injury in fact?

A Senator or Congressman is sitting there with a bill that’s about this high and says, I don’t even… I’ve never read this entire thing, frankly, with the budget.

I’m relying on other people to tell me everything in it, and I can’t figure out every permutation and combination, and if you’re telling me I’m supposed to go start having special laws passed as a factual matter I can’t do it, and so I’m injured in fact.

Now, why isn’t that an injury in fact?

Maybe there are prudential reasons why in certain circumstances a Congressman or Senator should not be allowed to make such a claim to have standing, but why isn’t it an injury in fact?

Walter E. Dellinger, III:

–It is not an injury sufficient for Article III purposes.

I know that he may be harmed at present, because that uncertainty he shares in common with any Member of Congress who does not know how certain the future is.

If you’re voting on the Omnibus Crime Control Act, it may be that the death penalty provision or the gun control provision is the sole reason you would vote for such a bill, and yet you do not know at the point you have to vote whether this Court would sustain such a provision.

You in that sense have, if you want to call it that, a factual injury which may lead you to seek an advisory opinion.

Stephen G. Breyer:

Fine, so why aren’t all those things, which are excellent points, excellent reasons as to why prudential rules of standing make it virtually impossible for such a legislator ever to bring such a case, but not constitutional reasons, because there might be, and is in this instance, say the other side, an injury in fact.

Walter E. Dellinger, III:

We believe it is… we concede and concur that the prudential standing of objections have been set to one side by the act of Congress setting aside Members, but we believe that there is an absence here of an Article III injury because it is fundamentally inconsistent with our separation of powers to assume that a Member of the legislature has an interest in the legislation for which he voted after it is enacted and when it is being implemented.

David H. Souter:

What do you do with Coleman?

Walter E. Dellinger, III:

I think Coleman is both dubious, at best, and distinguishable.

That is to say, the conferral of standing upon the legislative Members of the Kansas Senate was on the basis of an allegation that their actual vote was not properly counted in the legislative process itself.

Walter E. Dellinger, III:

They were seeking a mandate to compel a proper record of legislative action.

Here, they’re… everything that needs to be known they can find out before they vote, and they’re really complaining about the President’s hypothetical implementation of an act in the future.

David H. Souter:

I guess I’m not sure why the distinction between the two cases isn’t simply one of characterization.

Wasn’t the… weren’t the Kansas legislators subjected, in effect, to the same portent that the Members of Congress is subjected to, however you may want to describe them?

Walter E. Dellinger, III:

A majority of the Kansas legislature, which is already a difference, 21 of the 40 Members, brought that action complaining that 20 of them had voted no, and that their vote had been erroneously recorded as approving the child labor amendment when they had in fact rejected it.

Now, there may be other prudential reasons for a court not to get involved in intralegislative battles, but as the executive branch we would not have a concern there, and would recognize that that may be an injury within the executive branch.

I do think that the fact that the case was brought in State court, when no one objected to Justice Frankfurter’s assertion for four justices in dissent that no one would dispute you could not have brought this in Federal court at that time.

David H. Souter:

No, but even apart from that, I mean, the fact is that on appeal the standing requirement is exactly the same, so the fact that it began in a State court and the fact that no one objected up to a certain point still leaves the jurisdictional necessity to deal with.

Walter E. Dellinger, III:

Again, I think that Coleman is dubious and shows–

David H. Souter:

But not for that reason.

Walter E. Dellinger, III:

–Not for that… I think it is dubious to consider that this is a justiciable controversy.

I mean, in the wisdom of Article III’s having this Court–

Ruth Bader Ginsburg:

General Dellinger, did all of the judges weigh in on the standing question with… some of them didn’t discuss it.

I–

Walter E. Dellinger, III:

–Well, there were… there was sort of a missing judge on one of the issues, a nine-justice court.

They were said to be equally divided on one of the issues, but four justices, including Justice Black, Justice Douglas and Justice Frankfurter, joined a very strong opinion by Justice Frankfurter that made the basic point that it is not for this Court to issue opinions.

You know, the–

Ruth Bader Ginsburg:

–And it was on the way to throwing the case out for want of a… because it was a political question.

Walter E. Dellinger, III:

–That’s right, but the Court did resolve important constitutional questions in Coleman v. Miller, in a case that still isn’t ripe to this day, which shows the benefits of adhering to Article III.

There still haven’t been a–

Ruth Bader Ginsburg:

But on the ripeness question the very example that you gave, you said it’s a ripeness question.

Somebody eventually can sue, but who could sue if the President cancels the aid to, say, Jordan?

Who could sue after the fact?

Walter E. Dellinger, III:

–Well, there well may not be anyone who could sue but that… on that particular cases.

There will certainly be people who can challenge the validity of giving to the President, delegating to the President the cancellation authority, because the President will no doubt, or some President will promptly cancel items where there are domestic U.S. citizens–

Antonin Scalia:

Oh, and if there is nobody, I suppose your response would be then there’s been nobody harmed, and no harm done.

Walter E. Dellinger, III:

–That is absolutely right, and if there’s nobody, so be it.

This Court does not sit to issue pronouncements about matters of constitutional law.

Ruth Bader Ginsburg:

Yes, but I just wanted to make sure that you were acknowledging–

Walter E. Dellinger, III:

That is correct.

Walter E. Dellinger, III:

There could be some cancellations–

Ruth Bader Ginsburg:

–that there would be many cases where no one… no one would have standing.

Walter E. Dellinger, III:

–Yes.

Justice Ginsburg, there should be some cancellations for which there would be no one who had standing, but–

David H. Souter:

Do you also agree that ripeness really is not a concern for us at this point?

Doesn’t the statutory authorization take care of the prudential concern about ripeness?

Walter E. Dellinger, III:

–Not in the following sense.

I think that there is not a genuine Article III case or controversy at this moment.

I think what the–

David H. Souter:

Okay, but that’s different from ripeness.

Walter E. Dellinger, III:

–But in this sense.

I think what the very able attorneys for the Members of Congress have done, they’ve taken two fundamental jurisdictional flaws, lack of standing and lack of ripeness, and merged them together in an alchemic process that produces the illusion of a case or controversy.

I think if we had had an actual cancellation of aid to hog farmers, clearly a hog farmer could sue, but we would not at that point believe that a Member of Congress could come into court and say, this is not, and the President is not implementing this and in a way that I thought so.

By moving–

John Paul Stevens:

But we might have passed a statute that said the Senators from Iowa on hog-farming matters should have only a half-a-vote.

Would they have standing to challenge that?

Walter E. Dellinger, III:

–I think so.

We have no–

John Paul Stevens:

You don’t limit it to salary matters.

Walter E. Dellinger, III:

–We take no dispute.

That is an internal matter in the legislature, but I think if you actually denied a Member–

John Paul Stevens:

So I guess the question here is whether there really is that kind of an injury to the legislature, and you’re very–

Walter E. Dellinger, III:

–That is precisely correct.

John Paul Stevens:

–You forcefully argue no.

Walter E. Dellinger, III:

They state–

William H. Rehnquist:

We don’t know at this point whether the President will ever exercise this kind of cancellation.

I mean, it’s something that could be politically costly to him, just as it’s politically costly to Congress to do some of these things.

Walter E. Dellinger, III:

–That is correct, Mr. Chief Justice, and the… it… I think this would be much clearer to the Court… I understand this is a prudential point, but the merits and indeed, even the lack of standing of these Member plaintiffs would be much clearer to the Court after the fact.

You might well have a case come before you where Senator Moynihan had voted to link all three provisions, or where Senator Byrd had moved to make the Dellinger Center a mandatory item exempted from 1021 on the floor.

You would have seen that he’d been able to make that motion, he’d been able to vote on it, and his only problem would have been his inability to persuade a majority of his colleagues to do so.

Walter E. Dellinger, III:

The President’s cancellation would come to you informed by the legislative record and all of the determinations that the President would make.

William H. Rehnquist:

Mr…. General Dellinger, do you think ripeness is a matter just, you know, prudential, or does it have some sort of Article III component?

Walter E. Dellinger, III:

Mr. Chief Justice, I believe it does have an Article III component when there is not yet an actual case or controversy.

That is to say, even if a Member was going to have standing after the President cancelled his or her favorite project, Article III standing and an injury… my project was cancelled… which we would dispute, they clearly would not have standing now to say that I’m worried that the President may cancel my favorite project, and I’m worried anticipatorily that I will not be able to convince a majority of my colleagues to make an exemption, and you’re saying–

Anthony M. Kennedy:

But the basis for objecting to the cancellation is that there is an irregularity, an unconstitutional regularity in the legislative process.

Walter E. Dellinger, III:

–That’s what–

Anthony M. Kennedy:

And Mr. Morrison is going to tell us that exists now.

Walter E. Dellinger, III:

–And I would submit to you that to this extent you have to look, you know, to resolve the standing question, Justice Kennedy, that you have to look at least this far at the merits of their allegation.

It is impossible to resolve it without looking at it and say no, wait a minute.

They vote for any provision they want to.

They know exactly what they’re voting on.

If it’s made mandatory, they know that.

If it’s made discretionary by the effect of the Line Item Veto Act, they know that.

The President signs it.

It fully complies with the Presentment Clause, and as I take them to concede at page 39 of their brief, that the President signs the whole appropriations tax spending bill and the whole bill becomes law the instant the President signs it.

Anthony M. Kennedy:

So you are saying the dynamic of the legislative process has not changed as of this point?

Walter E. Dellinger, III:

I would not dispute that the dynamic of the legislative process has changed, but that is true whatever the background assumption is.

If it’s the Empowerment Control–

Anthony M. Kennedy:

But I thought that was the injury that they’re alleging, that they’re bringing here.

Walter E. Dellinger, III:

–That is not a legal injury.

The dynamic has changed because Senator Byrd will tell you he now has to persuade a majority of his colleagues if he wants to make sure that a bill, a provision he wants remains the law, and in case you think that I am imagining Members seeking exemptions for their own pet projects and having the majority vote on it, if you have occasion, look at page 55a of the appendix to the Jurisdictional Statement.

It’s the section of the bill, section 1027, it happens to deal with the limited tax benefit, but they actually set out in the bill the language to be used to exempt targeted tax benefits from the provisions of the act, and that language works perfectly well for any provision.

David H. Souter:

All right, but General, couldn’t we recharacterize the provision in this way, not merely in a vague way that the dynamics have changed, which everybody agrees that they have, but by saying that as a result of this bill unless Congress in, let’s say, a given appropriations act agrees to exempt every single item in that act from the effect of this statute, which is highly unlikely, then when any given Member votes on a bill with those provisions on it, he does not know in the sense that he has traditionally known, what it is that he is voting on that will, depending on the vote, either become law or not become law.

He does not simply have a bill in front of him which is going to be subject to a, in effect an up or down determination, and that’s something more than just dynamic, isn’t it?

Walter E. Dellinger, III:

Justice Souter, he does indeed know that the bill for which he votes is going to be subject to an up or down determination.

David H. Souter:

But he does not know the combination of provisions which his up or down determination will either, in the old sense, require the President to act on up or down.

That’s gone.

Walter E. Dellinger, III:

Nor does he know that when he votes on a lump sum appropriations bill.

He has exactly the same uncertainty about how the President will do that, and we have had–

David H. Souter:

Well–

Walter E. Dellinger, III:

–Now, I think this ignores a 200-year tradition in which all three branches have understood that the–

David H. Souter:

–Yes, but the lump sum appropriation act simply does not give the President in effect a definitive power to eliminate a spending authority.

Under this bill, under the act in question; once the President has acted, he can’t unring the bell.

Under a lump sum appropriation, he can unring the bell because he can change his mind in midstream.

Walter E. Dellinger, III:

–That is not always practically true, though.

I will admit the difference.

But if you take a bill like the very first defense appropriations act passed in 1789, where Congress said the funds are authorized not to exceed X amount to defray the expenses of the Department of War, when a Member votes for that, he knows he is voting for a bill where the President can choose to build ships or not build ships.

In this case, it is true that the bill as it finally passed made the President’s decision to cancel irrevocable, and the irony I think of this litigation is that the very steps that Congress took to make sure that the delegation was not excessive, that is to cabin the President’s discretion to deal with what Senator Byrd has called the Sword of Damocles problem… the President can hold out over Members the possibility that he may cancel their project, or that he may, having cancelled it, uncancel it if a Member will be sufficiently favorable to executive branch prerogatives… these two provisions have the effect of limiting, cabining and guiding the President’s discretion by saying you have to make it at the outset of the appropriations period–

Antonin Scalia:

General Dellinger–

Walter E. Dellinger, III:

–within 5 days.

Antonin Scalia:

–General Dellinger, I assume that none of these consequences to the legislator, the uncertainty about how to vote, and the alteration of the dynamics and so forth, none of those things really occur if, indeed, the respondents are correct that the exercise of the power given to the President here, the cancellation, would be a violation of the Constitution as constituting an unlawful delegation of legislative power, so really all we’re talking about is the uncertainty created by an unconstitutional statute, or an unconstitutional provision in a statute, isn’t that right?

Walter E. Dellinger, III:

I think that’s right.

I think that–

Antonin Scalia:

Which I assume legislators often face.

Walter E. Dellinger, III:

–Exactly, and–

Antonin Scalia:

They have to decide whether to vote for a statute that has an… what they believe is an unconstitutional provision in it.

Walter E. Dellinger, III:

–The question is, do you have the courage of your constitutional convictions, and if they do, they suffer no injury.

That is, if a Member says, I am voting for this appropriations bill.

I believe that my… I believe that the Center for the Study of the Senate will be… authorization for my university will go forward.

I believe that the cancellation will be a nullity, and that when the president of my university back home sues for the appropriation it will be speedily forthcoming as this Court will invalidate the cancellation.

You can vote on that assumption, or you can vote on the assumption of the presumption–

John Paul Stevens:

May I ask you, on the question of timing, in my hypothetical example about giving the Senator from Iowa a half-a-vote, would he have to wait until the statute was passed before he’d have standing to challenge that rule, or the… at least a bill was introduced, or could he just challenge it right away, saying you’re diluting my vote?

Walter E. Dellinger, III:

–I would assume that… again, this is a matter in which the executive branch has no particular interest.

I would assume that he could sue as soon as the rule was passed.

I believe that Powell v. McCormack… that far–

John Paul Stevens:

So what’s the difference here on the question of timing?

If this change does change the legislative process in a similar way, and I know you disagree, and I’m not sure it does, why can’t they challenge it right away, those who are adversely affected by it?

Walter E. Dellinger, III:

–Again, I think the answer is that they have no legal injury because nothing has happened to them–

Stephen G. Breyer:

Well, that–

Walter E. Dellinger, III:

–that has legal consequence.

Walter E. Dellinger, III:

They’re complaint–

John Paul Stevens:

–That’s irrespective of timing.

Walter E. Dellinger, III:

–is merely with the majority of their colleagues, but I have to say–

Ruth Bader Ginsburg:

General Dellinger, you mentioned the Adam Clayton Powell case.

Are you making a distinction based on a person or particular group being targeted for adverse action, as was true there and would be true of the Iowans who were given only half a vote, as opposed to this situation, where they’re all treated… they treat themselves alike?

There’s no–

Walter E. Dellinger, III:

–That is correct.

I think that is a valuable decision.

Let me say that, you know, my immediate executive branch clients would very much like to see this Court get to the merits and hold that this delegation of authority not to spend money is constitutional.

Sandra Day O’Connor:

–Well, on the merits, may… since you’ve had almost no time to address it, may I ask whether you think that this Line Item Veto Act gives any useful guidance or context for the President to exercise this veto?

There are three general criteria, but they are so general that they appear to apply across the board to everything, and is that enough for an adequate delegation of Congress’ powers?

Walter E. Dellinger, III:

Yes, Justice O’Connor, I think they are fully adequate to supply the intelligible principle.

Sandra Day O’Connor:

No, aren’t they broader than anything we’ve ever held–

Walter E. Dellinger, III:

No.

–could suffice?

Walter E. Dellinger, III:

I do not think that they are broader than the delegation to the Sentencing Commission to seek fairness and do equity, but moreover–

Antonin Scalia:

Do you have another example?

[Laughter]

Walter E. Dellinger, III:

–Well, I understand… if I could persuade eight justices, that would be enough, but–

[Laughter]

But the… you have to understand that the difference–

David H. Souter:

You’ve got public convenience and necessity.

Walter E. Dellinger, III:

–I’m sorry.

David H. Souter:

You’ve got public convenience and necessity.

That certainly is broad, isn’t it?

Walter E. Dellinger, III:

The Federal Communications Commission, thank you, is a very good example, but here you’re talking about a matter that is within the President’s normal control.

The fact that the Court emphasized in Loving administering the budget as administrator-in-chief is the person to whom you’re giving this… this act respects the congressional power of the purse in a very profound way.

The Framers did care that Congress control spending, but they cared by setting a maximum.

They said in Article I, section 9, that no money should be drawn from the Treasury but in consequence of appropriations made by law, but it does not require express congressional approval to leave money in the Treasury.

This is a case where the intelligible principle of saving money is itself so understandable in a country that is spending more money than it is taking in, and where the President is directed through elaborate procedures to explain the basis for his decision, and–

Sandra Day O’Connor:

But he’s given no guidance.

You know, anything that isn’t spent obviously can reduce the deficit.

How does that guide as between A, B, C, and D, or that it be in the national interest?

Walter E. Dellinger, III:

–Well, there is a very real–

Sandra Day O’Connor:

That is such a broad, vague sort of thing.

Walter E. Dellinger, III:

–Well, the President may well gain guidance from the particular underlying statute that informs the appropriations… the National Park Act may give him a sense of where there–

William H. Rehnquist:

Well, what if Congress had gone further and not simply limited this to appropriations, but said under these same three standards the President could cancel any provision of a bill that he didn’t like?

Walter E. Dellinger, III:

–I think it would be quite different, and you’d have a much more… a much greater need for a more concrete, intelligible principle if you were affecting private ordering, if you were affecting prior acts, if you were regulating–

William H. Rehnquist:

Well, not prior acts, but just current acts.

Walter E. Dellinger, III:

–Even for the future I think the instruction, the intelligible principle is always in context, and here all you’re talking about is not spending money.

Stephen G. Breyer:

Well, you’re not.

You’re also talking about the tax law, and so assuming everything in your favor up to that point, what do we do about the fact that it says that the President can simply set aside a tax law, any tax law that affects fewer than a certain number of people?

I mean, how is there a sufficient intelligible principle for that, and if that’s no good, isn’t the whole thing no good?

Walter E. Dellinger, III:

Well, to answer the second question first, no.

I mean, under the Court’s severability standards, that unless it is evident that the legislature would not have acted–

Stephen G. Breyer:

Well, you might say, look, tax loopholes basically help richer people.

Spending basically helps poorer people, and we don’t know if Congress would have passed one without the other.

Walter E. Dellinger, III:

–I… they have not made out that case at all, and I think that the targeted tax benefit part is quite minor.

If you look at it carefully, there are very few things that qualify.

Tax benefits for three taxpayers is not a limited tax benefit if they’re the only ones in the industry, like the automotive industry, and Congress specifically… and we may never see a limited tax benefit if you look at how easy Congress has made it to list the ones that apply and to which it does not apply.

There is always a baseline tax.

This is not a matter where the President is going out creating tax liability without an underlying tax law.

I’d like to reserve the remainder of my time.

William H. Rehnquist:

Very well, General Dellinger.

Mr. Morrison, we’ll hear from you.

Alan B. Morrison:

Mr. Chief Justice, and may it please the Court:

The Line Item Veto Act of 1996 fundamentally alters the Federal lawmaking process by giving the President the new power of cancellation.

This cancellation applies to traditional spending items; to new items of direct spending, such as entitlements, which includes the rights of individuals to food stamps, medicare, State and local governments to contracts… and of those that are increased; and to limited tax benefits, precisely the kind of private ordering that Solicitor General Dellinger just mentioned.

And while I’m on that subject, if I may answer Justice Breyer’s inquiry, this was a very important part of the legislation.

We have prepared a legislative summary, which was submitted in the District Court.

Alan B. Morrison:

It’s part of the joint appendix.

At page 82, there is a description of how important it was in summary of the testimony of a number of witnesses who expressed the view that the tax element was an important balance, and that the votes were very close on the substitutes.

And we believe it’s quite evident in this case that if there had been no tax benefit provision in the bill, there would have been no bill.

Ruth Bader Ginsburg:

Mr. Morrison, on the tax benefit part, the legislation instructs the joint committee to flag every one of these limited tax items, where fewer than 100… fewer than 10 benefit.

Is there anything just in that flagging requirement so that people could know what those tax measures are?

Is there anything unconstitutional about that?

Alan B. Morrison:

I do not believe so, because that must be in the text of the Act itself.

That is, the joint committee identifies them.

They go into the text of the Act.

And if they are listed in the text of the Act, then those are the only limited tax benefits.

Similarly, if the joint committee says there are no limited tax benefits, then the President may not cancel any.

But if the joint committee does not state either way, then the President may use his normal tools of interpretation to decide whether any of the tax benefits conferred come within it.

But I do not believe… and I thought about it long and hard whether that’s independently a constitutional defect.

Antonin Scalia:

Mr. Morrison, before we get too deeply into the merits, can I ask you about the standing–

Alan B. Morrison:

Certainly.

Antonin Scalia:

–the standing issue?

I cannot think of a case in which an individual Federal officer, in 200 years, has brought suit, claiming a… a derogation of his powers as a Federal officer.

I’m trying to understand how far the principle you’re asking us to… to adopt would go.

What about a district court judge, who, in a lawsuit, in order to preserve the school system that… that he’s decreed, in order to eliminate segregation, imposes a tax.

He is reversed by the court of appeals.

The court of appeals says he has no power to impose a tax.

The losing party does not appeal.

Does the district judge have a cause of action–

Alan B. Morrison:

No, Your Honor.

Antonin Scalia:

–against the court of appeals for taking away his power to impose a tax?

Alan B. Morrison:

No, Your Honor.

Antonin Scalia:

Why not?

Alan B. Morrison:

Because he has not been injured in any ongoing way.

His decision has been rejected.

And if all we were seeking here was a decision, saying to the court that a matter on which I voted for as a member of Congress… suppose I voted for a flag… against the flag burning amendment and it passed.

Alan B. Morrison:

I would not have an opportunity to go to court to object to the substance.

What our clients are objecting to here is that the Act fundamentally changes the process by which laws will be made in the future, and that these members are among the 535 people in the United States who make the laws.

Antonin Scalia:

But that’s irrelevant unless they have a personal interest in the power that they exercise.

Alan B. Morrison:

Well, that depends on the–

Antonin Scalia:

And you… and you say that the district judge does not.

Alan B. Morrison:

–That depends on the meaning of the word “personal interest” in your hypothetical.

I believe that the Constitution gives members of Congress the right to vote.

And that, to that extent, it is as much a personal interest here as was Adam Clayton’s Powell interest personal when he was deprived a seat in Congress.

Antonin Scalia:

All of the things that the Constitution gives a right to are not necessarily enforceable in court.

The Constitution also gives members of Congress the right to be admitted to Congress if they’re qualified.

But it’s very clear that we don’t pass upon that.

Alan B. Morrison:

That’s because… it’s not because of standing, Your Honor.

It’s because it’s textually committed to another branch.

Those are two different questions.

Part of what Your Honor was suggesting about the Federal officer has to do with an underlying theme in the Solicitor General’s position, which is separation of powers.

That it’s somehow inappropriate for legislators to be coming into court, both for reasons of the court’s usurping the business of the political branches and, second, because of a fear of some floodgates.

We have a different situation here than in almost any case that the congressional standing has come up in before.

And that is the situation where we have an express judicial review provision put in by the Congress, signed into law by the President.

So the prudential considerations are such that where we ought to be concerned about separation of powers, we can say to ourselves that the political branches have said that this is an appropriate use of the judicial forum.

William H. Rehnquist:

But stand… standing is… is an Article III proposition, too.

Alan B. Morrison:

It certainly is, Your Honor, and I agree.

But to the extent that there are prudential separation of powers considerations, as Justice Scalia suggested, I’m suggesting that one of the elements of the judicial review provision is that it limits both the possibility of unjust usurpation and excess use of the courts.

Sandra Day O’Connor:

Do you agree that rightness is a factor that goes into the Article III calculus?

Alan B. Morrison:

I do.

But I would say, Your Honor, that this case is as ripe as a case like Buckley against Valeo, in which there was a very comparable judicial review provision to the one here.

And the challenge was a separation of powers challenge to the composition of the Federal Election Commission.

The people who were bringing that challenge were candidates or voters.

Although the Commission had done a few things, it had done nothing to which any of them objected… rather like the fact that the President hasn’t cancelled anything here.

The court said, we will reach that constitutional issue because the Congress has told us we may do it and should do it.

And I think–

Antonin Scalia:

Mr. Morrison, can I try a few other examples?

I don’t understand the… the scope of the principle you’re arguing from.

What about a bill that is originated in the Senate, which… which an individual member of the House believes is a tax measure.

Alan B. Morrison:

–Such as Moore.

Antonin Scalia:

And, therefore, violates the origination clause.

Does that individual member of the House have a right to come to this Court immediately, saying I’ve been deprived of my power to vote on the original measure?

Alan B. Morrison:

I think that is a more difficult case.

I would say the answer is probably not.

But it’s clearly distinguishable from this case for two reasons.

The first reason is that we have the judicial review statute.

I believe that there is a significant consideration of separation of powers that ought to caution the courts before taking them up.

Antonin Scalia:

Yes.

My… my question is as a constitutional matter.

So that… that… that distinction is irrelevant.

My question is constitutionally, can… can the individual member of the House sue?

Alan B. Morrison:

I… I believe–

Antonin Scalia:

Article III.

Alan B. Morrison:

–I believe that… that the injure… that the person may have suffered an injury.

But I do believe that there are some separation of powers elements in Article III that there may not be a case or controversy in that… in that regard.

Antonin Scalia:

What about the President is about to enter into an executive agreement with a foreign country regarding the Panama Canal, regarding NATO, regarding whatever, and an individual member of the Senate believes that this is in fact a matter that should be subject to treaty, and therefore, that he has been deprived of his right to vote on the conclusion of that treaty; does that matter come before us?

Alan B. Morrison:

Well, as far as a standing question is concerned, when this Court had before it the Goldwater case, which is the converse of that, the Court declined to reach the merits, but no member of this Court said that there was a lack of standing for Senator Goldwater, although that issue had been specifically passed upon by the court of appeals in a divided opinion.

William H. Rehnquist:

That was a summary disposition.

Alan B. Morrison:

It was, Your Honor.

I simply observe that, and Your Honor is quite correct, and I don’t want to make too much of it.

But insofar as standing is concerned, if we are talking about the injury component of standing, I believe in all of those cases, as in this one, the members have been injured.

Whether there are other reasons why they should not be entitled to come to court is a different question.

In this case, the–

Antonin Scalia:

So I have to think of something else other than standing to… to prevent these matters from being brought immediately into the Court?

Alan B. Morrison:

–I think you do.

And I think you may.

Alan B. Morrison:

And I think you have them in the Constitution.

Stephen G. Breyer:

No, no.

You mean… when you say no, you mean you have to think of something else other than constitutional standing; there could be prudential standing?

Is that–

Alan B. Morrison:

Yes.

Yes, Your Honor.

Ruth Bader Ginsburg:

–But not here, because Congress can always wipe that out by providing that the… providing a right to sue.

Alan B. Morrison:

And I think it’s particularly important that they provided the right to sue in the bill itself.

This is not a general standing provision, allowing members to go to court any time they want.

This is–

Sandra Day O’Connor:

Well, what… what about the situation of a bill passed by Congress that we would all agree is an improper delegation of legislative authority to the executive branch.

Has a member of Congress been injured by that improper delegation?

Can they come sue?

Alan B. Morrison:

–In my view, that member has been injured in a constitutional sense, but I do not believe that you have to agree with me on that proposition to find standing here.

Because what we have here–

Sandra Day O’Connor:

Yes, but we’re trying to explore with you how far your theory would take you.

Alan B. Morrison:

–Yes.

And… and I think–

Sandra Day O’Connor:

So they would have been able to come in, in Mistretta, for example?

Alan B. Morrison:

–That’s right.

Have standing?

Alan B. Morrison:

Because it’s after the fact.

What we are talking about here is a continuous, ongoing change in the dynamic of the lawmaking process.

That members now have to consider a whole different range of options and opinions and things that they had… did not have to consider before.

Anthony M. Kennedy:

But there is a concern that if this Court is routinely invited to be the referee for legislative matters that the legislators themselves will not take the constitutional positions that they ought to take within their own branch of the government.

And that is part of the standing rules… of the standing rules that inform separation of powers.

Alan B. Morrison:

I think that is correct, Your Honor.

And if it were the ordinary kind of case, where someone was complaining about the result of a law rather than the result of the… the impact on the continuing operation on the constitutional right to vote, that only 535 members have, we would have a different situation.

Antonin Scalia:

Well, why is it only a law that can be challenged that way?

Why not the leadership’s putting together of a bill that contains an unconstitutional provision?

Antonin Scalia:

And the member of Congress says, I don’t know how to vote on this bill because one of the provisions, in my view, is unconstitutional, and I don’t know whether I am voting for all of it without that provision or all of it including that provision.

I am in legislative doubt, just as you claim your clients are here.

And therefore, I ought to have a right to come into court immediately to determine whether that provision is constitutional.

Alan B. Morrison:

This is not a case involving injury based on legislative doubt.

This is a case involving a situation in which members of Congress now have a new mountain to climb.

In the–

Antonin Scalia:

Oh, but I disagree.

It is based on legislative doubt.

Alan B. Morrison:

–Well, they are certainly–

Antonin Scalia:

There is no mountain, if you are correct, that this provision is unconstitutional.

Alan B. Morrison:

–Except insofar as they have to deal–

Antonin Scalia:

If this provision is unconstitutional, the… the congressman can vote for whatever he likes, because he knows that the President’s cancellation will be ineffective.

Alan B. Morrison:

–Except that he has to deal with and negotiate with all the remaining members of his or her body.

Antonin Scalia:

Because of constitutional doubt.

What the case boils down to is constitutional doubt.

Alan B. Morrison:

Well, the other people may have no constitutional doubt.

In terms of injury–

John Paul Stevens:

Well, help me, Mr. Morrison, I’m… I’m a little puzzled and I want to be sure I understand.

I didn’t understand the doubt to be doubt as to the constitutionality of the statute, but rather doubt as to what the President might do with the particular mix that comes to him.

Alan B. Morrison:

–That is correct.

John Paul Stevens:

So I don’t understand the constitutional doubt argument.

But he can’t do anything with that mix if the cancellation provision is unconstitutional.

If you are right that it’s an unconstitutional delegation, there is no problem whatever.

The whole thing boils down to the constitutional doubt of whether the cancellation provision is valid.

Alan B. Morrison:

It can also affect bills that the President may choose, for whatever reason, not to exercise his power of cancellation over.

Anthony M. Kennedy:

No, but… but isn’t Justice Scalia correct in the way he states your position?

I… I want to understand this.

Isn’t it your position and your client’s position that there is now a cloud, a sword of Damocles, hanging over the legislation, that the dynamic is altered because of this constitutional… constitutionally questionable procedure, and that is what gives them the standing now to come in?

Alan B. Morrison:

Yes.

And… and in addition to the dynamic, every time they cast a vote, the meaning and effect of that vote is changed.

Alan B. Morrison:

It is no longer simply the vote that they had in the past, knowing that if they voted for a bill, it would be the law or not the law, but only in that forum.

Anthony M. Kennedy:

Do I understand you– –But the rejoinder to that is that that’s not a problem if it’s unconstitutional.

Alan B. Morrison:

That is… that is correct if it’s… in… only… but only if in fact the constitutionality is determined on the very first bill that comes up there.

Because–

Anthony M. Kennedy:

Well… go ahead.

Alan B. Morrison:

–if… if… if a bill passes and the President doesn’t challenge it, people will have taken steps along the way and done different things that may… that may not show up.

May I give an example, if I may?

One of the features of this bill that makes it so significant to change the dynamic is that the President’s power of cancellation extends not simply to items on the face of the statute, but everything in the legislative history that can be separately identified or specified.

So that members now must, in addition to negotiating over the terms of the bill, they must now go and read the legislative history and figure out–

Antonin Scalia:

I didn’t realize that.

That… this puts it all in a different light for me.

[Laughter]

Mr. Morrison, how does that differ from suppose Congress had said, instead of having this fancy arrangement, the expenditures in all the categories that it designated, that expenditures of that nature must be covered… must be enrolled as a separate bill; would there be any problem with that?

And wouldn’t that cause the same difficulty?

Alan B. Morrison:

–Let me be very clear about the concept of separate enrollment, because I do not believe the Solicitor General’s brief is as clear as it might be on this.

There are two concepts of separate enrollment.

One item, one bill passed through both houses of Congress as separate items, and then signed by the President.

That concept would be perfectly constitutional.

The concept of separate enrollment as it passed the Senate… and this is explained in… in our joint… in the joint appendix… was a different concept.

The bill would be agreed upon by the committee, the conference committee.

It would then be sent back to the enrollment clerks in each house… in the House.

And they would then go through and separate out each item in both the text and the legislative history.

Those separate items would then come forward.

And Senator Byrd and others estimated there would be something like 2,000 of them in… in these… in most of these appropriations bills.

They would then come back to the floor, and they would be voted on, en masse, not separately, as Article I, Section 7 says.

They would then be voted on, en masse.

Only at that point would the respective officers in the House and Senate have to sign each of them.

And the President could then sign and veto each.

In our view, that is just as an unconstitutional as this bill.

And, indeed, Mr. Dellinger testified before the Senate he believed that that was unconstitutional as well.

Alan B. Morrison:

Because the bill that has passed the Congress is not what is being presented to the President.

It is a violation of the Presentment Clause.

So, if I may, to answer your question that way, a true separate enrollment is of course constitutional.

But the concept that passed the Senate was not true separate enrollment, but it was pass it as a group and then sign it separately.

Ruth Bader Ginsburg:

What about something more modest, like no riders on appropriation bills?

Alan B. Morrison:

I’m sorry?

I want to be sure I understand the question.

Ruth Bader Ginsburg:

Could… would there be any problem about that being constitutional for… for Congress to restrain itself by doing, either through rules or perhaps a statute, saying that there can be no riders attached to an appropriation bill?

Alan B. Morrison:

I don’t know how that could be enforced.

But… and without having thought about it more, I… I think it would probably be… what would concern me was that somehow you’re restricting the rights of members… members to… to put in the bills what… what they choose.

William H. Rehnquist:

Mr. Morrison, let’s go back for a minute to Justice Scalia’s question about there being no injury here if in fact the… that would really do away with all of our declaratory judgment jurisprudence, would it not, to accept that, if you… you can’t bring a declaratory judgment, because if the statute you’re attacking is unconstitutional, they can’t do anything to you anyway?

Alan B. Morrison:

I had not thought of that, but it certainly seems that it would… would put a big dent in it, Mr. Chief Justice.

Antonin Scalia:

May… may I go back to another point?

But that… that would depend, would it not, upon whether the assertion of standing, whether the personal injury you’re alleging, is nothing more than your not knowing how to vote because of doubt, because of constitutional doubt?

Alan B. Morrison:

That is not our injury, with all due respect, Justice Scalia.

Our injury is not that we can’t… don’t know how to vote because of doubt.

It is because the statute has created a different process in the legislation… legislature now.

That members now have a small mountain to climb every time they want to take out one of these provisions.

They’ve got to–

David H. Souter:

And… and isn’t that going to be true, going back to an answer… an earlier answer to a question… that’s going to be true even if the very first instance is challenged and nothing else happens in Congress until that challenge is decided.

Because as I understand your position, if half the Congress is convinced that the statute is un… or not quite half… is convinced that it’s unconstitutional and the rest are convinced that it is constitutional, nobody is in any doubt.

But the process is still going to be affected; depending on one’s opinion on constitutionality.

And as I understand it, that’s enough for your position on injury; am I right?

Alan B. Morrison:

–Well, it is constitutionality plus… plus the fact that… that both the constitutional uncertainty and the fact that people will of course disagree substantively about provisions, and the combination of the two will work together to change the process.

David H. Souter:

So it’s uncertainty, not doubt?

Alan B. Morrison:

Well–

[Laughter]

David H. Souter:

No, but I mean I think that’s a valid distinction.

Alan B. Morrison:

I think that that is correct, Justice–

Antonin Scalia:

Well, why doesn’t that apply to a bill, just a bill that’s before Congress, as I asked before, which has in it a provision that 49 percent of Congress think is unconstitutional and 51 percent think is constitutional?

Antonin Scalia:

Doesn’t that uncertainty, doubt, whatever you want to call it, doesn’t that affect the legislative process?

And shouldn’t they all be able to come here and get us to resolve that uncertainty so they could get about the business of legislating?

Alan B. Morrison:

–That, of course, in the isolated bill context, is different from this, because we have an identifiable act, the Line Item Veto Act, which has already gone into effect and law.

In the hypothetical that Your Honor is–

Antonin Scalia:

Well, the bill is an identifiable act, too.

Alan B. Morrison:

–But it hasn’t gone–

Antonin Scalia:

It’s just an act of… of one house of Congress instead of both.

Alan B. Morrison:

–It is not a law, nor is it a rule of Congress.

It has no prospective effect.

It is simply part of the debate about the merits of that particular law.

We are talking about an extrinsic circumstance, the passage of a statute, the Line Item Veto Act, which casts a pallor over the… the statute that come before the Congress in their appropriations capacity and causes members to act differently from the way they did–

David H. Souter:

Mr. Morrison– –Okay, the answer to my question is, if it were determined in… if it were determined in the… the… the first instance before any other legislation was considered, that wouldn’t give standing.

If we could assume that was going to happen, there wouldn’t be standing.

There’s got to be the assumption that in fact there will be an ongoing process of at least more than one bill which this… it affects?

Alan B. Morrison:

–Yes.

For instance, now, the supplemental appropriations bills are being considered by Congress.

There may or may not be a cancellation with respect to them.

But the pallor of the Act is hanging over them as they… members have to decide what to put in, what to take out, how to proceed with this bill, whether or not there is ever going–

Ruth Bader Ginsburg:

But, so far, they’re injured only by their own colleagues.

The President has done absolutely nothing.

A majority of the colleagues of the plaintiffs have decided that this law is constitutional and sound policy.

Isn’t… I know that the standing is a specialty for lawyers, but practically it is the majority of the members of Congress that have caused this injury, and not the President.

Alan B. Morrison:

–If this were a case in which the President of the United States said, I don’t know why you gave me this power; I’m not going to use it, we would be in a different situation with respect to prudential aspects of rightness.

The President made clear when he sent his witnesses to testify that he wanted this bill.

Ruth Bader Ginsburg:

But I’m not talking about prudential; I’m talking about the reality of who has caused the injury.

If there is an injury, it hasn’t been caused by the President.

It has been caused by the members of the House and Senate.

Alan B. Morrison:

Well, I… I do believe that the… that the concern we have is over the threat of… of the exercise of the veto, not simply the… the actuality of the veto.

Anthony M. Kennedy:

Well, and isn’t also the answer that the President signed the Line Item Veto Act, and that is now a law that regulates the legislative process?

Alan B. Morrison:

It… it certainly does.

Alan B. Morrison:

But, in addition, the defendants we have here… Defendant Raines, is of course the President’s chief advisor on the… on budgetary matters, and Defendant Rubin is… is the tax matters.

And that surely they will participate with the President in… in the… in the process by which decisions are made or threatened to be made on… on the line item veto.

Sandra Day O’Connor:

Well, Mr. Morrison, your theory of standing would seem to come into play even if the Senate or the House changed their rules of operation to cut off debate or anything else.

It changes the dynamics of the operation of the House–

Alan B. Morrison:

In terms of–

Sandra Day O’Connor:

–or the Senate.

Alan B. Morrison:

–In terms of constitutional injury, I would agree with Your Honor.

But there are other elements of Article III case or controversy, such… the prudential elements–

Sandra Day O’Connor:

Well, suppose Congress passes a law and says, well, you can sue on it immediately, just like here, but, nevertheless, we’re going to change our rules.

And you… we’re going to cut off debate after 5 minutes and whatever it is.

In your view, they’d be able to file suit in court, because the dynamics are changed?

Alan B. Morrison:

–They might be able to, Your Honor.

The… the possibility exists.

Surely, Adam Clayton Powell’s exclusion from the House of Representatives was not simply about money.

Sandra Day O’Connor:

Well, but a total exclusion of a member, that deprives him of the emoluments of the office… can’t get paid, can’t take a seat… that may well be different.

Alan B. Morrison:

I don’t believe that… the Powell case would have come out differently if the House of Representatives had continued to pay him his salary during the time that they excluded him.

Antonin Scalia:

There is also a difference, Mr. Morrison, as Justice Ginsburg was suggesting, between a provision adopted by the whole body that affects only an individual member and a provision adopted by the body, such as a rule change, such as this law, which affects all the members of the House and all the members of the… of the Senate equal.

Isn’t that a distinction that can be taken into account in determining whether there is standing?

Alan B. Morrison:

It may be… it may have some… some bearing on it.

But I… the Solicitor General conceded earlier that the… that if members from Iowa only had a half a vote on the… on the farm prices, that that… that they would have injury.

I… we suggested in our… our reply brief–

Antonin Scalia:

That wouldn’t affect everybody equally.

That… that’s the reason.

This is a provision every member of the House is in the same boat, and the House… the House voted it, you know, by a majority vote.

Alan B. Morrison:

–Well, of course, the House cannot change the Constitution.

That was clear from the beginning.

Ruth Bader Ginsburg:

But the distinction between the Adam Clayton Powell case, which you brought up in your brief, and the half a vote for the Iowans–

Alan B. Morrison:

We gave another hypothetical in which there is a statute passed on a conflict of interest theory, under which members of Congress are forbidden from voting on projects of more than $50 million if it’s in their district.

And a member wants to go to court and says, I have been injured because I can no longer vote on–

Ruth Bader Ginsburg:

–Every member has a district.

Ruth Bader Ginsburg:

I mean, General Dellinger recognized that the Powell case, that suit could be brought even if the salary wasn’t stopped.

I’m not allowed to be a legislator, or my vote counts only half.

The… the majority is… is seizing on a particular person or group of persons and treating them adversely.

But your… your example–

Alan B. Morrison:

–Every member has a right to vote on… on pending bills.

It’s in the Constitution.

Ruth Bader Ginsburg:

–Yes.

But the… the… you make nothing of the distinction between we single out a group and treat them adversely and what we do to others we do unto ourselves.

Alan B. Morrison:

But in terms of injury, I think that they are… that they are injured.

And that may make a difference in terms of… of how we… we… we feel about it and whether there ought to be prudential reasons why we ought not to allow members of Congress to go to court principally when they’re complaining about the… the fact that they were outvoted on… on a matter in their own house.

But here we have–

John Paul Stevens:

No.

But your… your… your standing would apply even if the voter voted for the bill.

He’d still have standing?

Alan B. Morrison:

–He might be disqualified for other reasons.

But–

John Paul Stevens:

But why would he be disqualified?

The statute… he’d be injured just as much as somebody who voted against the bill.

I don’t see a distinction based on how you vote.

He might change his mind.

Alan B. Morrison:

–That is true.

I was thinking of… of the equitable situation of clean hands, that somebody might not allow you to come to court–

John Paul Stevens:

Yes, but we don’t look at equities.

All of that is put to one side with the statutory provision you rely on–

Alan B. Morrison:

–Well… well, I agree with… I agree with that.

But we don’t have to face that issue here.

And, of course, it’s hard to imagine that this case would come out differently if instead of the five members that we had here, that we had joined us a person who was newly elected to the Congress in November of 1996, who never had an opportunity to vote on it.

Does anything in Article III suggest that the result ought to be different?

And I suggest to you that it’s not.

Stephen G. Breyer:

–Can I ask you one question on the merits?

Stephen G. Breyer:

Suppose… imagine we have somewhat different laws, but two laws like the following.

The first one, Congress says: There follow a list of 1,000 appropriations.

We delegate to the President the authority to impound or not to impound those monies.

Is that objectionable?

The second statute says… by the way, they put in a 5-day deadline for him to make up his mind… the second statute says: The following are 5 or 50 special provisions of the tax code that will benefit particular individuals.

We do two things.

We instruct the head of the IRS to consider the merits of each under ordinary rule-delegating powers, and then, within 5 days, to adopt or to reject those which he feels are warranted on the basis of the money available.

Now, what would the constitutional objection be to either of those bills, and why aren’t they this?

Alan B. Morrison:

If the… if the… you used… Your Honor used the word “impoundment” in the first statement, and I wanted to be clear about the meaning of that term.

Stephen G. Breyer:

Well, don’t hold me to the… to the… I’m not trying to be–

Alan B. Morrison:

But if… if Your Honor… I don’t mean the word itself, but if in that context the concept is the concept which we have here, which is a permanent repeal of the law, such that the President cannot change his mind again, nor can his successors, nor can changed circumstances revive the law, that the only thing that can… can do it is a new law, in my view, that is precisely what we have here, and it is a repeal.

It is the power to extinguish the law and not to execute the law.

Now, in the second situation, it was a little harder for me to understand what the rejection was.

If it is the same kind of provision, the same kind of permanent change, off or on, it is the same kind of lawmaking, not law executed that we have here–

Stephen G. Breyer:

–It wouldn’t be–

Alan B. Morrison:

–in the line item veto.

Stephen G. Breyer:

–It wouldn’t be surprising… I mean, maybe it is… they don’t normally do it.

But it… it wouldn’t be surprising for Congress to say to the head of the IRS, We direct you to consider the five following measures.

Consider whether or not you want to enact a rule that will turn them into law.

Decide, yes or no.

Alan B. Morrison:

Well, they surely have the constitutional authority to ask the IRS–

Yes.

Alan B. Morrison:

–as part of its interstitial lawmaking authority.

Stephen G. Breyer:

Yes.

And then they say, by the way, you have to say yes or no within 5 days, and… and, by the way, unless you actually say no, it’s yes.

Alan B. Morrison:

But then it doesn’t… if–

[Laughter]

If it leaves the statute intact, unlike this one, where for all practical purposes, these provisions are gone upon cancellation, if it leaves the statute intact, that’s one thing.

But what we have here is a permanent change in the law, as if the pages were being cut out of the United States Code.

The statute says that these provisions shall have no further legal force and effect.

Alan B. Morrison:

The words “repeal” and “veto” were repeatedly used in the legislative history.

The Congress sought to enact a line item veto, and that is what they did here.

Antonin Scalia:

Well, there’s a similar result with some of those statutes that gave the President authority to cease foreign aid when a certain event should occur or, you know–

Alan B. Morrison:

In virtually every one of those cases… I believe every one that we have been able to discover a point or two… the President could change his mind again.

If the situation changed, the words used were “suspension” rather than “cancellation”.

The notion of administering the law rather than permanently changing the law.

And we believe that every one of those cases, including the lump sum–

John Paul Stevens:

–Is that… is that true of the agricultural statute they cite in their reply brief?

They… I think I remember reading that, saying that statute is totally… put an end… am… am I right or wrong about that?

Alan B. Morrison:

–Yes, it was based upon a narrow set of circumstances.

That statute, by the way, was enacted in 1933, and it continues in effect today.

I find that relative little precedent in terms of what kind of thing we have here.

John Paul Stevens:

Well, is it strictly the 5 days?

I mean I don’t know why 20 years–

Alan B. Morrison:

No, it’s not strictly the 5 days, Justice Stevens.

John Paul Stevens:

–Okay.

So that a statute that said, whenever the President decides to terminate this program, he may do so, period, and that’s the end of it, that would be unconstitutional, too?

Alan B. Morrison:

If that is all that it said… and that it was permanently terminated–

John Paul Stevens:

Right.

Alan B. Morrison:

–that he could not revive it again–

John Paul Stevens:

Right.

Alan B. Morrison:

–that, to us, is… is lawmaking rather than law executing.

But we can envision a–

Antonin Scalia:

I think it’s worse that he should be able to repeal it and reenact it, repeal it and reenact it.

You think… you–

Alan B. Morrison:

–It’s not worse or better, Your Honor.

It’s–

Antonin Scalia:

–it seems to me that’s giving him even… even greater power.

Alan B. Morrison:

–It’s the… that is not the test, I believe.

I believe the test is whether, under the Constitution, he is engaging in Article II activities, carrying out the laws, or whether he is engaging in Article I activities, making the law.

Alan B. Morrison:

And by permanently ending the law, he has shifted the line from Article II to Article I.

David H. Souter:

Unless he has criteria.

Alan B. Morrison:

It is possible that he is no longer… that if he’s permanently terminating… there are circumstances in which, if… even though it becomes legally reversible, that it might be considered, at least on an individual basis, carrying out the law.

Antonin Scalia:

You can give him criteria for terminating the law?

He can terminate the law so long as he has criteria?

I don’t understand that.

Alan B. Morrison:

Well, there have been some laws in which the… the President’s power, as a practical matter, at a… at a given time, and he’s told he has to do something and he… and he carries out the law in that particular fashion.

I would not want to say that there is no law that I can think of in which a President could not be given the authority to say that, at this point, that… that the law may be… may be terminated because he would be ending the execution of the law.

If the–

David H. Souter:

But the… the theory is that he wouldn’t be terminating the law.

The theory there would be that the law had a termination point upon the making of a finding.

Alan B. Morrison:

–Yes.

David H. Souter:

And isn’t that where–

Alan B. Morrison:

It is… it is… it is legislating in contingency, as… as the Court has referred to it in several cases–

–Yes.

Alan B. Morrison:

–in which the… the termination process is part of the law itself.

Here the… the President has the unfettered power to decide whether to cancel anything or not.

And if so, how much.

He is no mandated to save a single nickel under this program if he chooses not to do so.

Antonin Scalia:

So–

–But once… but once you acknowledge the legitimacy of these other statutes, all we’re really arguing about is an excessive delegation question, not… not at all a… you know–

Alan B. Morrison:

We don’t believe so for the reasons set forth in my brief.

I see my time is up.

Thank you.

William H. Rehnquist:

–Thank you, Mr. Morrison.

General Dellinger, you have 2 minutes remaining.

Walter E. Dellinger, III:

Mr. Chief Justice, Justice Kennedy raised the question about irregularity in the legislative process as being an allegation that would give rise to standing.

I want to note that the Defendants in this case are the Secretary of the Treasury and Director of OMB.

If there is… we don’t believe there was any defect in the internal procedures because the members’ votes were counted and the bill was presented to the President and he complains about what the President does thereafter.

But if there were an actual deprivation of the right to vote, the appropriate suit would be against, I would assume, someone in the legislative branch.

Walter E. Dellinger, III:

It is not the case that when the President exercises his discretion to cancel in order to carry out deficit reduction that the provision has no legal force and effect.

What the statute actually says is that the budget authority has no legal force or effect.

The Act… the provision continues to define the amount of money that, for Gramm-Rudman and pay-as-you-go purposes and sequestration purposes, the amount of allowable spending is reduced.

Here you have a restriction of the President’s delegated authority to cover one-third of the budget only for a period of 8 years, where he may draw upon the entire expertise of the executive branch in making a conclusion that it is better to allocate some money exclusively to deficit reduction.

We believe that that broad congressional and executive consensus should be sustained.

Thank you.

William H. Rehnquist:

Thank you, General Dellinger.

The case is submitted.