On March 6, 2006, the President announced that he was sending to Congress proposed legislation that "would provide a fast-track procedure to require the Congress to vote up-or-down on rescissions proposed by the President." The President's proposal, denominated the "Legislative Line Item Veto Act of 2006," was introduced the next day in the Senate and House as S. 2381 and H.R. In comments accompanying the proposal it was asserted that "the President's proposal is fully consistent with the Constitution. In its 1998 ruling [in Clinton v. City of New York ] striking down the Line Item Veto Act of 1996, the Supreme Court concluded that the Act 'g[ave] the President unilateral power to change the text of duly enacted statutes.' The Legislative Line Item Veto Act does not raise those constitutional issues because the President's rescission proposals must be enacted by both Houses and signed into law." Standing alone, the proposed expedited rescission procedure would likely pass constitutional scrutiny. Congress would simply establish a process whereby the President may propose rescission of specific types of appropriation and tax provisions, including earmarks. The fact the Congress must act within a limited time period to either approve or reject the proposal, and that certain procedural and deliberative processes would be curtailed or eliminated, does not raise constitutional questions. The so-called fast-track process is an exercise of the constitutionally-based authority of each House to establish its own rules of internal procedure. The expedited rescission process of these bills, however, does not stand alone. Under the proposal, the President is given discretionary power to suspend covered spending and tax provisions for up to 180 days, and perhaps more, even if Congress rejects a proposed rescission within that period. This is unlike the current rescission process under the Impoundment Control Act, which requires the obligation of funds if Congress fails to approve the President's rescission proposal within 45 days of continuous session after submission of a rescission proposal, or the provision in the rejected Line Veto Act of 1996 which required expenditure of canceled authorities immediately upon the enactment of a joint resolution of disapproval. In addition, while Congress must act speedily when it receives the President's proposal, nothing in the bills specifies when the President must send up his proposal; nor do the bills appear to require that targeted spending and tax provisions in one law be sent up together; and nothing in the bills limits the suspension period of the stated 180 days or prohibits the additional utilization of the 45-day wait period for proposed rescissions under the current Impoundment Control Act, which is not to be repealed. An issue before a reviewing court, then, might be whether the bills' suspension power reaches far enough to be considered an effective grant of authority to cancel provisions of law that was proscribed by the Supreme Court in Clinton v. City of New York .
On March 6, 2006, the President announced that he was sending to Congress proposed legislation that "would provide a fast-track procedure to require the Congress to vote up-or-down on rescissions proposed by the President." The President's proposal, denominated the "Legislative Line Item Veto Act of 2006," was introduced the next day in the Senate and House as S. 2381 and H.R. 4890. In comments accompanying the proposal it is asserted that "the President's proposal is fully consistent with the Constitution. In its 1998 ruling [in Clinton v. City of New York] striking down the Line Item Veto Act of 1996, the Supreme Court concluded that the Act 'g[ave] the President unilateral power to change the text of duly enacted statutes.' The Legislative Line Item Veto Act does not raise those constitutional issues because the President's rescission proposals must be enacted by both Houses and signed into law."
Standing alone, the proposed expedited rescission procedure would likely pass constitutional scrutiny. Congress would simply establish a process whereby the President may propose rescission of specific types of appropriation and tax provisions, including earmarks. The fact the Congress must act within a limited time period to either approve or reject the proposal, and that certain procedural and deliberative processes are curtailed or eliminated, does not raise constitutional questions. The so-called fast-track process is an exercise of the constitutionally-based authority of each House to establish its own rules of internal procedure.
The expedited rescission process of these bills, however, does not stand alone. Under the proposal, the President would be given discretionary power to suspend covered spending and tax provisions for up to 180 days, and perhaps more, even if Congress rejected a proposed rescission within that period. This is unlike the current rescission process under the Impoundment Control Act, which requires the obligation of funds if Congress fails to approve the President's rescission proposal within 45 days of continuous session after submission of a rescission proposal, or the provision in the rejected Line Veto Act of 1996 which required expenditure of canceled authorities immediately upon the enactment of a joint resolution of disapproval. In addition, while Congress must act speedily when it receives the President's proposal, nothing in the bills specifies when the President must send up his proposal; nor do the bills appear to require that targeted spending and tax provisions in one law be sent up together; and nothing in the bills limits the suspension period to the stated 180-day suspension period or prohibits the additional utilization of the 45-day wait period for proposed rescissions under the current Impoundment Control Act, which is not to be repealed. An issue before a reviewing court, then, might be whether the bills' suspension power could be viewed as an effective grant of presidential authority to cancel provisions of law that was proscribed by the Supreme Court in Clinton v. City of New York. Subsequent modifications of the Administration proposal in the House and Senate may be seen to continue to raise significant constitutional concerns.