Presidents have always wanted to tweak Congressional budgets. President Donald Trump’s effort to move money from some projects to fund a wall along the Mexican border is an example of this and reminds me of the history of the line item veto which — spoiler alert — was ruled unconstitutional by the Supreme Court in 1998. Many presidents called for the line item veto in order to stop individual members of Congress from attaching hundreds of local spending projects onto federal budgets.
According to University of Washington professor Kathy Gill, efforts to change congressional budgets go back to at least President Ulysses Grant who asked Congress for authority to veto individual budget items in 1876. Congress refused. The Line Item Veto Act of 1996 was the first time Congress approved of this idea, but with considerable restraints. For example, while the president could veto individual spending items from a congressional budget before approving the overall budget, the Act gave Congress 30 days to disapprove of the president’s vetoes with a simple majority vote of the Senate and House. If Congress disapproved, the president could then veto the entire budget bill or sign the bill. If Congress did not disapprove — they did not need to vote for approval — then the president's line-item vetoes became law.
Interestingly, the Act gave the president the right to veto congressional disapproval which could only be denied by Congress with a two-thirds majority of the House and Senate. Thus, the line-item veto gave the president a lot of authority to veto individual funding lines. It did not, however, give the president the authority to move money from one project to another, as Trump wants to do to fund his border wall.
Regardless, even the limited line-item veto could not stand up to the limits of the Constitution. The courts struck it down within two years. The Supreme Court ruled that the line-item veto was unconstitutional because only Congress has the constitutional authority to determine what does and does not receive federal funding.
Since the courts have already made this determination, it doesn’t bode well for Trump’s plan to move congressionally approved money from one item to another without congressional approval. When reviewed by the Supreme Court, Justice Paul Stevens wrote, “This act gives the president the unilateral power to change the text of duly enacted statutes” and violated the Presentment Clause of the Constitution, which “allows a president to either sign or veto a bill in its entirety.”
President Bill Clinton, who was able to use the line item veto before it was struck down by the Supreme Court, stated that the decision “deprives the president of a valuable tool for eliminating waste in the federal budget and for enlivening the public debate over how to make the best use of public funds.”
Congress did give the president authority not to spend specific funding or to delay the spending of specific items in the congressional budget with The Impoundment Control Act of 1974. However, according to professor Gill, “the president needed congressional concurrence within 45 days.” Ultimately, then, Congress still held on to its authority and control over federal funding.
An effort to pass a different version of the line item veto was The Expedited Legislative Line-Item Veto and Rescissions Act of 2011. This act allowed the president to recommend to Congress individual lines of funding to delete from a budget bill. The act gives Congress 45 days to approve or disapprove of the president’s recommendations, preserving the right of Congress, not the president, to decide. This act, in particular, it seems, will be used in court against Trump's efforts to take money from one congressionally approved project and move the funding to border wall construction. The act clearly allows the president to recommend changes, however, as supported repeatedly by the courts, only Congress has the authority to change congressionally approved funding.
Meanwhile, President Trump has asked Acting Defense Secretary Patrick Shanahan to look at the military budget for places where he can shift money to border wall construction. Acting Secretary Shanahan was quoted last week saying, “I think I have a lot of discretion.” I don’t know where Shanahan thinks this “discretion” comes from since the courts have clearly stated several times in our history that only Congress may determine how and where our taxpayer funds may be spent. Stay tuned.