The Item Veto: Why Follow the States?

MR. BYRD:

In debating the virtues-and the vices-of the item veto, we must remain alert to its implications for constitutional government and executive-legislative relations. Now I will examine an argument we frequently hear: The President should have the item veto because 43 State Governors have it.

So we hear the President say, give me what 43 State Governors in this country have and I will balance the budget. And we hear many of the Governors say we have the power of the item veto, why should the President not have it?

There are some former Governors in this body who make that argument.

Mr. President, this argument is too simplistic. It sounds good. It is much too simplistic. It suggests that State governments are like the Federal Government, only smaller. One need only compare the Federal Constitution against any State constitution to note the vast differences in the powers, functions, purposes, and responsibilities of the Federal Government versus the State governments.

So to those who say, "Give me what the 43 State Governors have. If it is good for them, I ought to have it. Why not give it to me?" And to those in this body who say, "If it is good enough for 43 Governors, it should be good enough for the President of the United States." And those candidates out there who have not read the Constitution lately and who argue, "Oh, 43 Governors of the country have it and we balanced our budgets. Why shouldn't the President have it?" I say they have not read their Constitution lately, if ever they have paid very much attention to it.

Many constitutional provisions appropriate for the States are not suitable for the Federal Government.

Sixteen members of the present Senate have been State Governors. By my count, they are split down the middle on the issue of granting the President an item veto. Half favor it; half oppose it. Obviously the question of following State precedents on the item veto is a complex one. We cannot conclude that what is good for the States is automatically good for the Federal Government.

There are many questions to be explored. What constitutes an "item," and does it include a "part" or "section" or phrases or clauses or a whole paragraph? Why did the States grant their Governors an item veto? What other changes did they have to make in their constitutions and budget process to accommodate the item veto? Do we want those changes in the U.S. Constitution? What item veto issues have had to be litigated in State courts? Would we likely inherit those issues at the national level? Would the item veto reduce Federal budget deficits?

My remarks will demonstrate that the debate on the item veto is filled with serious misconceptions. When we examine the item veto at the State level, and compare it to the way Congress and the President act on the national budget, it is clear that the item veto should not be adopted by the Federal Government.

I do not care what those Democratic candidates running for President say. I do not care what the President says. I do not care what George Will says in his column. I do not care what the Wall Street Journal says in its editorial. I do not care what the General Accounting Office says in its lately published trash piece.

Presidents who favor the item veto often point to State precedents for support. In asking for an item veto in his State of the Union Address in 1986, President Reagan told Congress: "I ask you to give me what 43 Governors have: Give me a line-item veto this year. Give me the authority to veto waste, and I'll take the responsibility, I'll make the cuts, I'll take the heat." In his State of the Union Address the next year, he asked for a line-item veto, as he said, "so we can carve out the boondoggles and pork, those items that would never survive on their own."

Later in 1987, in a speech to the U.S. Chamber of Commerce, President Reagan claimed that the line-item veto would enable him to "cut wasteful projects." In a radio address to the Nation, he described the line-item veto as "a way of reaching into these massive congressional spending bills and cutting out the wasteful items." In yet another speech in 1987, this time to the National Association of Manufacturers, President Reagan told his audience that the line-item veto would give the President "the ability to veto spending, project by project."

In his State of the Union Message in 1988, President Reagan again asked Congress to give the President "the same authority that 43 Governors use in their States: the right to reach into massive appropriation bills, pare away the waste, and enforce budget discipline." He claimed that the continuing resolution contained "millions for items such as cranberry research, blueberry research, the study of crawfish, and the commercialization of wild flowers." He promised to submit a proposal to rescind those items, "which" he said, "if I had the authority to line them out I would do so."

This reliance on State practices is fundamentally flawed. President Reagan ignored crucial differences between budgeting at the State and national levels.

Those others who proclaim the wonders of the line-item veto likewise ignore crucial differences.

His remarks to Congress, the Nation, and various organizations on the item veto were profoundly misleading. The facts are clear. Even if President Reagan had had the item veto during his two terms in office, he could not have "carved out," to use his words, "the boondoggles and pork," cut wasteful spending "project by project," or eliminated funds for "cranberry research, blueberry research, the study of crawfish, and the commercialization of wild flowers." Later in my remarks, I will explain why that is so.

There has been too much confusion and misrepresentation on the item veto. It is necessary for us, as representatives of the people, to set the record straight. Especially on constitutional questions we must seek and speak the truth.

Why did 43 States give their Governors the item veto and, yet, Congress consistently refuses to grant that power to the President? Part of the reason lies in the different attitudes toward legislative power at the State level and congressional power at the national level. The expectations that we have for State legislatures and for Congress are not the same.

When the American States declared their independence from England, initially they passed through a period of distrust toward executive power. Given the attitude at that time toward George III, that is not surprising. Few of the States gave their Governors a veto power. Between 1776 and 1787, only three States empowered their Governors to exercise the veto: South Carolina, New York, and Massachusetts. The Governor of New York, as part of a "council of revision," shared the veto power with the chancellor and the judges of the State supreme court. Not until 1821 was the veto power vested solely in the Governor of New York. Over time, the original thirteen States and the new States gradually extended the veto power to their Governors. At the present time, every State gives the Governor a qualified veto with the exception of North Carolina.

After the Civil War, some of the States began to grant the Governor a form of "item veto" over legislation. Usually this power was restricted to appropriations bills. Some Governors were empowered not only to strike an item but also to reduce its amount. That is known as the item-reduction veto.

The motivation for the item veto came from several sources. One was the provisional constitution of the Confederate States, adopted on February 8, 1861, seventy-five years after the U.S. Constitution was written. The permanent constitution of the Confederacy also contained the item veto, using this language:

The President may approve any appropriation and disapprove any other appropriation in the same bill. In such case he shall, in signing the bill, designate the appropriations disapproved; and shall return a copy of such appropriations, with his objections, to the House in which the bill shall have originated; and the same proceedings shall then be had as in the case of other bills disapproved by the President.

The framers of the Confederate Constitution in 1861 adopted the item veto because they were impressed by the operation of the English parliamentary system as it had by then developed. They believed that it promoted more effective and efficient practices than did the American system of separation of powers. In particular, they liked the way that budgetary power was concentrated in the Prime Minister and his cabinet. Under this system of government, the legislative body had little say over the content of financial plans. The British Parliament was largely subordinate to the Prime Minister.

The leaders of the South, although admirers of the English governmental system, were not "blind imitators." Nevertheless, they provided that proposals for expenditures should originate with the President. With the exception of legislative expenses and the payment of claims against the Confederate States, the Confederate Congress was forbidden to appropriate funds unless they were asked for, and estimated by, heads of the executive departments or unless Congress could muster a two-thirds vote in both Houses. To defend his budget estimates, the President, Jefferson Davis, was given the item veto, but he never exercised the authority. The Confederate Constitution also resembled the British parliamentary system in another manner. The Confederate Congress was empowered to grant seats in either house to the heads of the executive departments, with the privilege of discussing any measure concerning their department.

These types of parliamentary procedure have been considered but not adopted by the U.S. Congress. After World War I, when Congress considered legislation that became the Budget and Accounting Act of 1921, some of the budget reformers wanted to place Congress in the same subordinate position as the Confederate Congress had been. It was proposed that Congress could not add to the President's budget unless it received permission from the Secretary of the Treasury or could attract a two-thirds majority in each House. That idea was firmly rejected by Congress. It did not embrace the parliamentary system. The budget submitted by the President was executive only in the sense that he was responsible for the estimates submitted. After the budget was submitted, Congress retained full power to increase or decrease the estimates by majority vote.

With regard to giving departmental heads a seat in Congress with the privilege of debating measures within the jurisdiction of their departments, that proposal has been advanced several times. Congressman George Pendleton of Ohio recommended it in 1864 and again, later, in 1879, when he was a member of the U.S. Senate. He was never successful in persuading his colleagues on the merit of this idea.

In addition to the influence of the Confederate Constitution, some of the States granted the Governor an item veto for another reason. Most of the item vetoes were in place by 1915 and reflected the efforts of progressiveness to institute "good government." Reformers regarded state legislatures as corrupt and venal. The following description of the Illinois Legislature appears to fit the reputation of other state legislatures in the years after the Civil War:

The record of the Illinois assembly in the period immediately following the Civil War is perhaps no more shameful than the general legislative debacle of that period; but the enactment of 2,113 bills during Governor Oglesby's term (1864-68), and of an additional 1,814 during the term of Governor Palmer (1868-72),illustrates the orgy which took place in legislatures generally. The disturbing feature of these legislative mills was the fact that a large majority of their products were obviously, and even blatantly, special in nature. Grants, subsidies, charters, appropriations-favors in the form of special and local legislation-were enacted in gross negligence of public interest. (The fiction of Mark Twain's Gilded Age is hardly as strange as the truth.) A clear impression of the extent of this violation of legislative principle may be had by comparing the four volumes of special and local bills enacted in 1869 with the single volume of enactments of general state interest and purpose.

In response to this legislative behavior, States began to arm the Governor with the item veto. Moreover, State constitutions were rewritten wholesale to restrict the legislature. For example, Florida's Constitution of 1868 limited the number of subjects that could be included in a bill: "Each law enacted in the Legislature shall embrace but one subject and matter properly connected therewith." Significantly, these types of restrictions have never been applied to Congress. As a result, the budget procedures followed by the States are in no way comparable to those adopted by the National Government. Once we understand the extent of that difference, we can understand why the item veto is inappropriate for the Federal Government.

Anyone reading the text of State constitutions is struck by their anti-legislature bias. The constitutions are filled with proscriptions and prohibitions. In contrast to the U.S. Constitution, which is in the nature of a general charter with few restrictions on Congress, State constitutions place limits on State borrowing, require balanced budgets, and contain numerous prohibitions on private, special, and local laws. Specifications are set forth, usually of a restrictive nature, on laws that (1) fix the rate of interest; (2) remit fines, penalties, or forfeitures; (3) exempt property from taxation; (4) relate to the management of public schools; and (5) alter the salaries of public officers during their terms in office. Such restrictions would be inappropriate for the U.S. Constitution; yet, they are commonplace in State constitutions.

Other restrictions in State constitutions are tied closely to the item veto. General appropriations bills shall contain nothing but appropriations. The purpose is to prohibit the addition of substantive legislation to appropriations bills. Authorization bills are limited to a single subject in many States. Language in State constitutions even dictates the style and form of appropriations bills. On all such matters, the U.S. Constitution is silent. Congress is at liberty to establish its own authorization and appropriations procedures and to change them whenever necessary.

The U.S. Constitution merely states that "No money shall be drawn from the U.S. Treasury, but in Consequence of Appropriations made by Law." Congress, thus, may act through the appropriations process with very few constitutional restrictions. Congress is prohibited from increasing or decreasing the compensation of a President during his term in office, and may not diminish the compensation of members of the Federal judiciary. The first amendment prohibits Congress from using the power of the purse to establish a national religion. For the most part, however, the spending power is available to Congress to use in accordance with its own judgment for social, military, and economic ends.

That is not the case with State constitutions. I shall cite some typical restrictions. First, although the Federal Constitution does not prohibit the Congress from adding legislation to appropriations bills-such matters are handled by House and Senate rules-State constitutions do prohibit legislation on appropriation bills. Section 71 of the Alabama Constitution provides that the general appropriations bill "shall embrace nothing but appropriations" for specified purposes. Article IV, section 8, of the Illinois Constitution states that appropriations bills shall be limited to the subject of appropriations. Article IV, section 69, of the Mississippi Constitution directs: "Legislation shall not be engrafted on appropriations bills. ***" Under the New Mexico Constitution, article IV, section 16, any matter not specifically authorized by the Constitution to be included in appropriations bills shall be held void. Other State constitutions contain similar restrictions. The U.S. Congress is not subject to constitutional limitations on what belongs in appropriations bills. What a difference.

Second, Congress can limit a bill to a single subject or pass a bill with more than one subject. The State constitutions prohibit legislatures from including more than one subject within a bill, other than the general appropriations bill. The purpose is to protect the governor's line-item veto and to restrict "logrolling" by legislators. Section 71 of the Alabama Constitution, after establishing the content of the general appropriations bill, states: "All other appropriations shall be made by separate bills, each embracing but one subject." Article II, section 16, of the Delaware Constitution provides: "No bill or joint resolution, except bills appropriating money for public purposes, shall embrace more than one subject, which shall be expressed in its title."

Can you imagine, Mr. President, our having to pass a separate bill for each subject? We would never get through.

Under article III, section 14, of the Nebraska Constitution, no bill shall contain more than one subject, "and the same shall be clearly expressed in the title." Similar restrictions are found in many other State constitutions. They form no part of the U.S. Constitution. The content of legislation is a prerogative exercised solely by Congress, subject to the President's veto.

Third, although the style and the format of bills are decided solely by Congress, State legislatures confront specific restrictions thereon in their constitutions. Article II, section 13, of the Alaska Constitution directs that the subject of each bill shall be expressed in the title, and even specifies the enacting clause: "Be it enacted by the Legislature of the State of Alaska." Under the Alabama Constitution, article IV, section 45, the style of laws of that State shall be: "Be it enacted by the legislature of Alabama," and the act "shall be divided into sections for convenience, according to substance, and the sections designated merely by figures." Comparable restrictions are placed in other State constitutions.

Fourth, Congress may itemize appropriations bills or include a number of items within a lump-sum amount. Typically, State constitutions require itemization as a means of protecting the Governor's item veto authority. Article III, section 16(C), of the Louisiana Constitution directs the legislature to pass an "itemized" appropriations bill. Article IV, section 12(c), of the California Constitution requires the Governor to send with his budget a budget bill "itemizing recommended expenditures."

Congress could itemize appropriations bills if it wanted to. However, that would lock agencies into the specific amounts for specific programs.

Mr. President, Congress could itemize. It is not directed to by the Constitution as the State legislatures are directed by their State constitutions to do. However, that would lock agencies into the specific amounts for specific programs. If those amounts and programs had to be changed in the middle of a fiscal year, which is often likely, the details would be frozen into law. The agencies would have to return to Congress for additional legislation to change the dollar amounts for the affected programs. The agencies do not want that, and neither does Congress. The legislative workload is heavy enough as it is.

Thus, it is settled practice for Congress to appropriate in large, lump-sum accounts. Agencies can shift funds within an account without seeking new legislation. The shifts of funds within an account is what we call "reprogramming," and usually involves a substantial amount of joint action by the agencies and the committees with jurisdiction. It is a practical process that meets the needs of both branches. Line-itemization is in the interest neither of Congress nor of the executive branch agencies.

The appropriation of lump-sum amounts in an appropriations bill means that there are no "items" to item veto. That is a very simple fact about Federal budgeting, and congressional advocates here in this Senate ought to know that. Have they never looked at an appropriations bill? Congressional advocates of the item veto consistently overlook that fundamental point. That is different from the environment in which the State legislatures and their governments operate.

Can it be possible that these Members of the House and Senate have not carefully examined an appropriations bill? If there are no items in a bill, there cannot be any item veto. Can it be the President has not looked at the bills that he has signed? Somebody ought to show him one of those bills.

What could be more elemental?

Consider the claims made by President Reagan in his State of the Union Message in 1988. He told Congress, and the Nation, that if he had possessed an item veto when the continuing resolution reached him in December 1987, he would have eliminated funds for cranberry research, and for blueberry research. In fact, he could not have done that. He could not have done that. And here is why.

The four programs that President Reagan found objectionable could be item-vetoed by a President armed with item-veto authority only if they were mentioned in the bill presented to the President for his veto. Those programs, however, were not identified in the bill.

The four programs were funded under the agriculture title of the continuing resolution, within an account called "Cooperative State Research Service." The account provided $303 million for various projects and activities. With item-veto authority, President Reagan, of course, could have deleted the entire $303 million in the account. He could not, however, have eliminated only the four particular programs, because they were never specifically mentioned in the bill.

If we look within the account for Cooperative State Research Service we find a subsection that provides $31 million for contracts and grants for agriculture research. The four programs identified by President Reagan are funded by that subsection. With an item veto could President Reagan have deleted the $31 million? Possibly, but that would be vetoing an "item within an item," and some State courts have held that such actions by a Governor would exceed his item-veto authority. Even if that were possible, the President would lose the entire $31 million and not just the four programs.

To locate the four programs, we have to look at the conference report. That explains how Congress expects the lump-sum amounts to be spent. A table in the conference report allocates the $31 million among 60 programs, including $92,000 for research on the blueberry shoestring virus, to be conducted in Michigan; $260,000 for cranberry/blueberry disease and breeding in New Jersey; and $50,000 for native wild flowers in New Mexico. Those three programs reach a grand total of $402,000, which is a remarkably small sum to deserve mention in a State of the Union Message.

What of the money that President Reagan said went for the study of crawfish? The table in the conference report on the 60 programs identifies $660,000 for aquaculture, and a page in the report refers to $200,000 for "research in Louisiana." A citizen would have had to call the Appropriations Subcommittee on Agriculture to learn that the crawfish study was funded by the $200,000.

To sum up, President Reagan claimed that with item-veto authority he could have eliminated these four programs. The fact is that he could not have singled them out for oblivion, even with the item veto. They were never specifically mentioned in the bill he received and thus were never candidates for an item veto.

So if there are items in the bill he does not like, he can veto the whole bill, but if there are many other items that he likes, consequently he may not veto the bill. There may be items in those same bills that I do not like. But if one cannot take out the items-and we often try, where we know they are there-one has to vote for the whole bill or vote against it.

The item veto has provoked many legal disputes in State courts. Governors have had to interpret the language in the Constitution, and it should not surprise us that they interpret the language generously in order to expand executive power. Those interpretations have been challenged by legislators, citizens, and organizations, claiming that the Governors exceeded their constitutional powers. Similarly, we could expect Presidents and their assistants to interpret item-veto authority in the U.S. Constitution to accommodate the fullest extension of executive power.

State courts have had great difficulty in articulating objective legal principles in order to keep the item veto within constitutional bounds. A number of State judges, in this search for governing rules, admit that judicial reasoning is more often ad hoc and subjective. If State judges encounter problems in adjudicating these questions, we should expect Federal judges to experience similar difficulties, on a much larger scale. Do we want that kind of power vested in the Federal courts? Can they safely referee the inevitable collisions that will occur between Congress and the President? Is this a prudent use of judicial capacity and authority? Are the courts not busy enough?

The problems faced by State courts have been exceedingly difficult and politically sensitive. An early issue involved item veto authority by the Governors of Pennsylvania. They not only exercised the item veto, as provided in the State constitution, but they even exercised item-reduction. In 1899, the Governor of Pennsylvania received an appropriations bill containing a two-year grant of $11 million for public schools. Instead of approving or vetoing the entire $11 million, the Governor approved $10 million and eliminated the balance. The veto message conceded that the Governor's authority "to disapprove part of an item is doubted, but several of my predecessors in office have established precedents by withholding their approval from part of an item and approving other parts of the same item."

The Pennsylvania Supreme Court upheld the Governor's interpretation. The court reviewed the history of what it considered to be legislative abuses that had undermined the Governor's veto power. In particular, it pointed to the legislative custom of combining a number of different subjects in one bill, forcing the Governor either to veto the entire measure or to accept provisions he did not want. These "omnibus" bills said the court became a "crying evil, not only from the confusion and distraction of the legislative mind by the jumbling together of incongruous subjects, but still more by the facility they afforded to corrupt combinations of minorities with different interests to force the passage of bills with provisions which could never succeed if they stood on their separate merits. So common was this practice that it got a popular name, universally understood as log rolling. A still more objectionable practice grew up of putting what is known as a `rider,' that is a new and unrelated enactment or provision on the appropriations bills, and thus coercing the executive to approve obnoxious legislation or bring the wheels of the government to a stop for want of funds."

All of us have different views on how active we want the courts to be. Is this an appropriate issue for Federal judges? Do they have special expertise to determine which legislative practices are acceptable and which are not? Do they even have authority to explore such questions? I personally doubt that we should open the door to such decisions by Federal judges. I fear that substantial harm would come to the independence and integrity of the judiciary if it became embroiled in these types of legislative conflicts between Congress and the President.

The Pennsylvania court did not interpret the text of the Constitution. Instead, it based its decision on the practices of Governors. Because several Governors of Pennsylvania had exercised the right to reduce items, even without express constitutional authority, the court concluded that the principle was well-established regarding "the right of the Governor in the exercise of his independent legislative judgment to approve an appropriation in part, by reducing the amount fixed by the legislature. As to that principle the executive practice must be considered as settled." This was strange reasoning, indeed!

In dissent, Justice Mestrezat acknowledged that executive construction of a statute of constitution is useful if the instrument is ambiguous. But when the constitutional language is plain, and Justice Mestrezat regarded the Pennsylvania Constitution as clear in granting the Governor item-veto power but not item-reduction power, "extrinsic circumstances and practical construction are not permitted to have any force in its interpretation."

Another early decision involved the Governor's power in Mississippi to veto conditions placed by the legislature in an appropriations bill. This case should be of great interest to Congress because we frequently place conditions, qualifications, and provisions on the funds that we appropriate. We say: "Here are funds, with the following conditions attached." Could a President, armed with an item veto, receive from Congress a conditional appropriation, delete the condition, and thereby convert the statutory language into an unconditional appropriation? I invite my colleagues to think carefully about this. The implications are both profound and disturbing.

To be concrete, would conservatives want to appropriate funds for Medicaid on the condition that Federal money not be used to pay indigent women for abortions, and then have that condition vetoed by the President? Would liberals have wanted, a few years back, to appropriate funds for Nicaragua on the condition that Federal money not be used to provide lethal aid for the Contras, only to see that condition vetoed by the President? The very conditions that made the appropriation possible, in terms of developing the necessary consensus within the legislature, would be subject to the President's veto. Congress could retain control only by mustering a two-thirds veto in each House for the override.

The Mississippi case, decided in 1989, concerned the Governor's veto of conditions on an appropriation. Section 73 of the Mississippi constitution authorized the Governor to veto "parts of any appropriation bill." The State court ruled that this section related only to "items of distinct appropriations." It did not permit the Governor to veto unwanted legislation on appropriations bills, because that issue was addressed in section 69 of the constitution. Section 69 prohibited the engrafting of legislation on appropriation bills, "but the same may prescribe the conditions on which the money may be drawn, and for what purposes paid."

The Mississippi court refused to permit the governor to encroach upon the prerogative of the State legislature to place conditions on appropriations. When this issue resurfaced many times in the twentieth century, State courts looked frequently for guidance to the Mississippi decision. Therefore, it is important to understand the analysis of the Mississippi court:

*** if a single bill, making one whole of its constituent parts, "fitly joined together," and all necessary in legislative contemplation, may be dissevered by the governor, and certain parts torn from their connection may be approved, and thereby become law, while the other parts, unable to secure a two-thirds vote in both houses, will not be law, we shall have a condition of things never contemplated, and appalling in its possible consequences.

Every bill of the character in question has three essential parts: The purpose of the bill, the sum appropriated for the purpose, and the conditions upon which the appropriation shall become available. Suppose a bill to create a reformatory for juvenile offenders, or to build the capitol, containing all necessary provisions as to purpose, amount of appropriation and conditions, may the governor approve and make law of the appropriation and veto and defeat the purpose or the conditions, or both, whereby the legislative will would be frustrated, unless the vetoed purposes or conditions were passed by a two-thirds vote of both houses? This would be monstrous. The executive action alone would make that law which had never received the legislative assent. And after all and despite the pragmatic utterances of political doctrinaires, the executive, in every republican form of government, has only a qualified and destructive legislative function and never creative legislative power. If the governor may select, dissect, and dissever, where is the limit of his right? Must it be a sentence or a clause, or a word? Must it be a section, or any part of a section, that may meet with executive disapprobation? May the governor transform a conditional or contingent appropriation into an absolute one in disregard and defiance of the legislative will? That would be the enactment of law by executive authority without the concurrence of the legislative will and in the face of it.

This analysis is intriguing, but how well can judges distinguish between item vetoes that are "destructive" (permissible) and "creative" (impermissible)? Is that test or guideline sufficiently objective to guide the courts, or does it invite judges to intrude their own subjective judgments on the legislative process? As I will indicate, some decisions by contemporary courts reveal considerable uneasiness about the competence and ability of judges to adjudicate item-veto disputes with these guidelines.

In other words, when the executive approved the repealing section he approved something that his veto had already destroyed. The legislature attempted to substitute one act for another and the executive had a right to place his veto on the substitution, but he could not defeat the one act by his veto, and the other by approving the repealing clause.

We are therefore of opinion that the attempted repeal of the act of March 4, 1909, is a nullity. ***

A year later, the Texas Supreme Court reviewed the freedom of the legislature to alter the structure of appropriations bills as a technique for curbing the Governor's item veto. Could the legislature eliminate some items and group them under a single appropriation? The court refused to second-guess this legislative tactic. A concurring opinion noted:

The wisdom of grouping many items of appropriation into a single item, it is not our province to determine, even if it could be assumed that it was purposely and deliberately done so as to deny to the Governor the right to prune or cut out any part or portion of the amount appropriated, because it was within the power of the Legislature to make the appropriation in this manner, and same was not subject to any constitutional or legal objection.

Other State courts, however, have intervened when they decided that the legislature had improperly handcuffed the Governor. In 1939, a New York court held that the legislature could not take an itemized appropriations bill submitted by the Governor and pass the bill only with lump sums. The bill emerging from the legislature contained a single item of appropriation for each of the various departments or divisions of departments. The "whole spirit" of the State constitution, said the court, was "against lump sum appropriations and in favor of appropriations showing the items of expenditure."

The Mississippi and Washington courts in 1898 and 1910 had tackled two problems: the capacity of legislatures to attach conditions on appropriations, and the ability of legislatures to exercise control over the logic and consistency of bills. Both issues raise the question of "severability": the power of Governors to sever some sections of a bill without violating the integrity and purpose of what remains.

Two subsequent cases in the State of Washington sustained the Governor's veto of a section on the ground that the language was severable. In one of the cases, a dissenting judge denied that courts possessed the ability to distinguish in an objective way between "negative" vetoes (legitimate because the matter was legally severable) and "affirmative" vetoes (illegitimate). This dispute is similar to the attempted distinction between "destructive" and "creative" vetoes in the early Mississippi case. The dissenting judge argued that the Governor's item veto was affirmative "because it actually creates a result different from that intended, and arrived at, by the legislature."

Some courts, faced with an item veto that appeared to have both negative and affirmative characteristics, opted for a balancing test. A Wisconsin court in 1940 admitted that a Governor's item veto "did effectuate a change in policy," and was affirmative or creative to that extent, but concluded that the remainder of the bill constituted "a complete workable law."

Five years earlier, the same court had upheld a Governor's item veto after concluding that the balance of the vetoed bill was "a complete, consistent and workable scheme and law." Nevertheless, a Massachusetts court struck down an item veto of a condition on an appropriation, arguing that words or phrases in a condition were not "items or parts of items" that could be vetoed pursuant to the State constitution. Decades later, the Massachusetts court reversed course to permit the Governor to delete restrictive words and phrases imposed on appropriations items, provided that the language was severable.

These cases prepare us for a Virginia case that is widely cited. In 1940, the Supreme Court of Virginia held that the Governor could not veto items that were "tied up" with other provisions. In trying to determine how to distinguish between severable and inseverable items, the court resorted to a medical analogy:

If the Commonwealth were to determine to erect a library building and were to set apart a certain sum for structural steel, another for a heating plant, etc., and were finally to provide for a supervising architect at a stated salary, plainly the Governor could not, by veto, dispense with the services of an architect, although the sum to be paid for his services might, in a limited sense, be regarded as an item. That term, as used in the Constitution, refers to something which may be taken out of a bill without affecting its other purposes or provisions. It is something which can be lifted bodily from it rather than cut out. No damage can be done to the surrounding legislative tissue, nor should any scar tissue result therefrom.

The Governor of Virginia had vetoed seven provisions and items. The court ruled that if a provision or condition was "intimately interlocked" with other portions of the bill, the veto was not authorized by the State constitution.

State courts have issued a variety of opinions on the authority of Governors to delete sections from bills. In Washington and Louisiana, State courts permitted the Governor to sever items or sections from a bill. An Arizona court upheld the Governor's veto of certain sections in an appropriations bill because they were severable in the eyes of the court, and disallowed other item vetoes because the sections seemed inseverable. The Supreme Courts of Florida, Iowa, and Louisiana concluded that Governors may not veto a qualification or restriction without also vetoing the appropriation to which the qualification or restriction relates. An advisory opinion by the Supreme Court of Delaware decided that the Governor's item veto applied only to items of appropriations and not to conditions.

A decision by the Supreme Court of Washington in 1980 illustrates the liberties that State courts have taken with the item veto. The Governor had vetoed approximately 45 words of a section, although the State constitution provides that the Governor "may not object to less than an entire section." In sustaining the Governor, the court announced that the determination of what constitutes a "section" is a judicial, not a legislative question. Now, imagine that.

Also extraordinary is a decision in 1988 by the Supreme Court of Wisconsin. The court held that the Governor could exercise partial veto power to veto phrases, digits, individual letters, and word fragments. He could exercise what, in effect, is item-reduction authority by striking digits from an appropriation (deleting the "1" in $150,000), even though the State constitution grants no item-reduction authority for the Governor. He could effect all of those changes as long as what remains after the vetoes is a complete and workable law.

When State courts have appeared to side too much with the Governor, the people have resorted to constitutional amendments to restore the proper balance between the legislative and executive branches. In 1960, the Supreme Court of Florida decided that the Governor may veto an item within an item. He had vetoed a portion of an appropriation item, eliminating maximum salaries that the legislature had established for certain State officers. The ruling implied that the Governor could veto conditions or qualifications attached to an appropriation. Florida responded by amending its constitution in 1968 to prohibit the Governor from vetoing any qualification or restriction without also vetoing the appropriation related to it.

The last two decades mark an extraordinary increase in the number of State court cases on the item veto. After the first item veto decision in 1893, over the next 77 years (up to 1969), there were about 60 decisions. There have been that many in just the past two decades. Obviously, State courts have been unable to establish clear principles to resolve item-veto disputes. Of the issues that continue to vex the State courts, one of the most frequent issues is the difficult one of vetoing conditions in appropriations bills. Are these conditions intimately "tied to" to the appropriation, and therefore inseverable, or may they be eliminated by the Governor?

State judges have had to reconsider some of the earlier doctrines that attempted to distinguish between destructive and creative vetoes (or negative and affirmative vetoes). A Washington court in 1977 held that the Governor's 14 vetoes of items and sections in a bill were impermissible because the resulting bill, after the vetoes, created a result unintended by the legislature. The item vetoes were, therefore, "affirmative" and "creative" in effect.

Nevertheless, a Wisconsin court in 1978 agreed that the Governor may delete provisos or conditions in an appropriations bill "so long as the net result of the partial veto is a complete, entire, and workable bill which the legislature itself could have passed in the first instance." A dissenting judge objected to the reasoning and doctrines used by State courts for decades to determine the scope of item-veto power. He called attention to the attempt by one Governor to strike the digit "2" from a $25 million bonding authorization bill, and noted that advisors to a recent Governor reportedly considered deleting the first letter "t" from the word "thereafter" to make it "hereafter," thus changing the effective date of a liquor tax increase." The judge then took aim at the dubious legal principles used by State courts:

Only the limitations of one's imagination fix the outer limits of the exercise of the partial veto power by incision or deletion by a creative person. At some point this creative negative constitutes the enacting of legislation by one person, and at precisely that point the governor invades the exclusive power of the legislature to make laws.

***In the scheme of our constitution, the governor is to review the laws and not to write them. He is not, by careful and ingenious deletions, to effectively `write with his eraser' and to devise new bills which will become law unless disapproved by two-thirds of the legislators who are elected by the people of the state.

***every veto has both an affirmative and a negative ring about it. Every veto necessarily works some change of policy, and in a sense partakes of legislating. Here lies the difficulty the majority confronts in saying precisely where the proper sphere of the executive ends and that of the legislature begins.

The majority is rightfully wary of the elusive tests enunciated in some other jurisdictions. To hold that the exercise of the partial veto power may not have an "affirmative," "positive" or "creative" effect on legislation, or that the veto may not change the "meaning" or "policy" of a bill, as some courts elsewhere have done, would be to involve this court in disingenuous semantic games. While these tests may be appealing in the abstract, they are unworkable in practice. Every veto may be perceived in affirmative or negative terms, and as either conforming to or defying the general legislative intent, depending upon the observer's perspective. These tests are inescapably subjective. Without an objective point of reference, this court would be reduced to deciding cases upon its subjective assessment of the respective policies espoused by the legislature and the executive, an unseemly result which would foster uncertainty in the legislative process. More importantly, such a result would defeat its own purpose; the judicial department may no more assume the proper functions of the legislature, or interfere with their discharge, than may the governor.

In 1984, a Washington court upheld the Governor's veto of a section and all references in the bill to the section, but also announced that it was abandoning the affirmative/negative test it had used to decide the constitutionality of item vetoes. The court dismissed that test as unworkable, subjective, and an intrusion by the judiciary into the legislative branch: "There are no standards to predict whether a veto will be perceived by the court as affirmative or negative." In future disputes, the court warned, the check on item vetoes would have to be legislative overrides, not judicial review. A dissenting judge explained that the majority's decision to abandon the affirmative/negative test resulted "in large part from the fact that the Governor's veto here was clearly affirmative in nature."