No. 96-1671-1 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 FRANKLIN D. RAINES, ET AL., APPELLANTS v. ROBERT C. BYRD, ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRIEF FOR THE APPELLANTS WALTER DELLINGER Acting Solicitor General FRANK W. HUNGER Assistant Attorney General EDWIN S. KNEEDLER Deputy Solicitor General MALCOLM L. STEWART Assistant to the Solicitor General DOUGLAS N. LETTER SCOTT R. MC INTOSH Attorneys Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED The Line Item Veto Act, Pub. L. No. 104-130, 110 Stat. 1200 (to be codified at 2 U.S.C. 691 et seq.), gives the Pres- ident conditional authority to cancel certain spending and revenue items within five days after a bill containing such items has been enacted into law. The questions presented are as follows: 1. Whether individual Members of Congress have stand- ing to challenge the constitutionality of the Act. 2. Whether the Act violates Article I of the Consti- tution. (I) ---------------------------------------- Page Break ---------------------------------------- II PARTIES TO THE PROCEEDINGS The appellants here, who were the defendants in the district court, are Franklin D. Raines, the Director of the Office of Management and Budget, and Robert E. Rubin, the Secretary of the Treasury. The appellees here, who were the plaintiffs below, are Senator Robert C. Byrd, Senator Daniel Patrick Moynihan, Senator Carl Levin, former Senator Mark O. Hatfield, Representative David E. Skaggs, and Representative Henry A. Waxman. ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinion below . . . . 1 Jurisdiction . . . . 1 Constitutional and statutory provisions involved . . . . 1 Statement . . . . 2 Summary of argument . . . . 15 Argument: I. Appellees lack standing to challenge the consti- tutionality of the Line Item Veto Act . . . . 18 A. Members of Congress will suffer no judicially cognizable injury as a result of the implemen- tation of the Line Item Veto Act . . . . 20 B. Because the President has not yet exercised his cancellation authority under the Line Item Veto Act, appellees can identify no actual or imminent injury . . . . 30 II. The Line Item Veto Act does not violate Article I of the Constitution . . . . 33 A. The Act does not conflict with the consti- tutional requirement that the President approve or disapprove in toto a bill pre- sented to him by Congress . . . . 33 B. The Act is consistent with the historical understanding of Congress's power to con- fer spending discretion on the Executive Branch . . . . 38 C. The Act does not delegate legislative power to the President . . . . 40 Conclusion . . . . 51 Appendix . . . . 1a (III) ---------------------------------------- Page Break ---------------------------------------- IV TABLE OF AUTHORITIES Cases: Page Addison v. Holly Hill Fruit Prods., Inc., 322 U.S. 607 (1944) . . . . 47 Allen v. Wright, 468 U.S. 737 (1984) . . . . 18, 19 American Power & Light Co. v. SEC, 329 U.S. 90 (1946) . . . . 42 Arizonans for Official English v. Arizona, 117 S. Ct. 1055 (1997) . . . . 26 Bender v. Williamsport Area Sch. Dist., 475 U.S. 534 (1986) . . . . 22, 27, 28 Bennett v. Spear, No. 95-813 (Mar. 19, 1997) . . . . 18 Bowsher v. Synar, 478 U.S. 714 (1986) . . . . 22, 24, 27, 39 Buckley v. Valeo, 424 U.S. 1 (1976) . . . . 25,27 Cheng Fan Kwok v. INS, 392 U.S. 206 (1968) . . . . 26 Chicago & Grand Trunk Ry. v. Wellman, 143 U.S. 339 (1892) . . . . 19 Cincinnati Soap Co. v. United States, 301 U.S. 308 (1937) . . . . 38, 43 City of Los Angeles v. Lyons, 461 U.S. 95 (1983) . . . . 30 City of New Haven v. United States: 634 F. Supp. 1449 (D.D.C. 1986), aff'd, 809 F.2d. 900 (D.C. Cir. 1987) . . . . 6 809 F.2d 900 (D.C. Cir. 1987) . . . . 7 Coleman v. Miller, 307 U.S. 433 (1939) . . . . 21, 28, 29 Debs, In re, 158 U.S. 564 (1895) . . . . 21 Diamond v. Charles, 476 U.S. 54 (1986) . . . . 21 Director, OWCP v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122 (1995) . . . . 21 Dugan v. Rank, 372 U.S. 609 (1963) . . . . 21 FEA v. Algonquin SNG, Inc., 426 U.S. 548 (1976) . . . . 42, 44 FEC v. NRA Political Victory Fund, 513 U.S. 88 (1994) . . . . 28 ---------------------------------------- Page Break ---------------------------------------- V Cases-Continued: Page FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944) . . . . 42,43 Field v. Clark, 143 U.S. 649 (1892) . . . . 41, 42, 46, 47, 48, 49 Gladstone Realtors v. Village of Bellwood, 441 U.S. 91 (1979) . . . . 18 Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988) . . . . 50 Hafer v. Melo, 502 U.S. 21 (1991) . . . . 21 Heckler v. Chancy, 470 U.S. 821 (1985) . . . . 49 Henderson v. United States, 116 S. Ct. 1638 (1996) . . . . 49 Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333 (1977) . . . . 24 INS v. Chadha, 462 U.S. 919 (1983) . . . . passim Intermountain Rate Cases, 234 U.S. 476 (1914) . . . . 47 J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928) . . . . 25,42 Karcher v. May, 484 U.S. 72 (1987) . . . . 22,29 Kentucky v. Graham, 473 U.S. 159 (1985) . . . . 21 La Abra Silver Mining Co. v. United States, 175 U.S. 423 (1899) . . . . 35 Laird v. Tatum, 408 U.S. 1 (1972) . . . . 19 Landgraf v. USI Film Prods., 511 U.S. 244 (1994) . . . . 31 Lichter v. United States, 334 U.S. 742 (1948) . . . . 42,43 Lincoln v. Vigil, 508 U.S. 182 (1993) . . . . 3, 38, 43 Loving v. United States, 116 S. Ct. 1737 (1996) . . . . 41, 42 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) . . . . 19, 23, 30 Marsh v. Chambers, 463 U.S. 783 (1983) . . . . 39 McGrain v. Daugherty, 273 U.S. 135 (1927) . . . . 27 Metropolitan Washington Airports Auth. v. Citi- zens for the Abatement of Aircrat Noise, Inc., 501 U.S. 252 (1991) . . . . 25, 32 ---------------------------------------- Page Break ---------------------------------------- VI Cases-Continued: Page Miles v. Apez Marine Corp., 498 U.S. 19 (1990) . . . . 50 Mistretta v. United States, 488 U.S. 361 (1989) . . . . 38, 41,42,45 Moore v. U.S. House of Representatives, 733 F.2d 946(D.C. Cir. 1984), cert. denied, 469 U.S. 1106 (1985) . . . . 24, 29 Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) . . . . 45 Muskrat v. United States, 219 U.S. 346 (1911) . . . . 33 NBC v. United States, 319 U.S. 190 (1943) . . . . 42,43 National Treasury Employees Union v. United States, 101 F.3d 1423 (D.C. Cir. 1996) . . . . 12 New York Central Securities Corp. v. United States, 287 U.S. 12 (1932) . . . . 42,43 OPM v. Richmond, 496 U.S. 414 (1990) . . . . 43 Ornelas v. United States, 116 S. Ct. 1657 (1996) . . . . 26 Powell v. McCormack, 395 U.S. 486 (1969) . . . . 22 Reno v. Catholic Social Servs., Inc., 509 U.S. 43 (1993) . . . . 30 SEC v. United States Realty & Improvement Co., 310 U.S. 434 (1940) . . . . 21 Santobello v. New York, 404 U.S. 257 (1971) . . . . 49 Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974) . . . . 23, 24 Sibbach v. Wilson & Co., 312 U.S. 1(1941) . . . . 49 Sierra Club v. Morton, 405 U.S. 727 (1972) . . . . 19 Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976) . . . . 18, 32 Skinner v. Mid-America Pipeline Co., 490 U.S. 212 (1989) . . . . 42 Synar v. United States, 626 F. Supp. 1374 (D.D.C.), aff'd sub nom. Bowsher v. Synar, 478 U.S. 714 (1986) . . . . 42,49 The Pocket Veto Case, 279 U.S. 655 (1929) . . . . 34, 38, 40 ---------------------------------------- Page Break ---------------------------------------- VII Cases-Continued: Page Touby v. United States, 500 U.S. 160 (1991) . . . . 41, 42, 47 Train v. City of New York, 420 U.S. 35 (1975) . . . . 7, 19, 20 United States v. Ballin, 144 U.S. 1 (1892) . . . . 27 United States v. Lovett, 328 U.S. 303 (1946) . . . . 26 United States v. Munoz-Flores, 495 U.S. 385 (1990) . . . . 24 United States v. Richardson, 418 U.S. 166 (1974) . . 23 United States v. Will, 449 U.S. 200 (1980) . . . . 35 United States Nat'1 Bank of Oregon v. Independent Ins. Agents of America, Inc., 508 U.S. 439 (1993) . . 33 Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982) . . . . 18, 19 Whitmore v. Arkansas, 495 U.S. 149 (1990) . . . . 13, 18,30 Yakus v. United States, 321 U.S. 414 (1944) . . . . 42, 43 Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987) . . . . 25,26 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) . . . . 38 Constitution and statutes: U.S. Const.: Art. I . . . . 16, 19, 33, 40, 41, 45, 46, 47 1 . . . . 41 5 . . . . 29 7: Cl. 2 (Presentment Clause) . . . . passim, 1a Cl. 3 (Presentment Clause) . . . . 33 8,Cl. 1 (Spending Clause) . . . . 38 9,Cl. 7 . . . . 43 Art. II . . . . 15, 20, 25, 40, 41, 45, 48 3 . . . . 25 Art. III . . . . 14, 18, 19, 20 Act of Sept. 11, 1789, ch. 13, 1-2, 1 Stat. 67-68 . . . . 39 ---------------------------------------- Page Break ---------------------------------------- VIII Statutes-Continued: Page Act of Sept. 29, 1789, ch. 23, 1, 1 Stat. 95 . . . . 2, 3, 39 Act of Mar. 26, 1790, ch. 4, 1, 1 Stat. 104 . . . . 2 Act of Feb. 11, 1791, ch. 6, 1, 1 Stat. 190 . . . . 2 Act of Mar. 3, 1809, ch. 28, 1,2 Stat. 535-536 . . . . 4 Act of May 31, 1830, ch. 719, 2,4 Stat. 425 . . . . 48 Act of Mar. 6, 1866, ch. 12, 2, 14 Stat. 4 . . . . 49 Act of July 12, 1870 (Antideficiency Act), ch. 251, 7, 16 Stat. 251 . . . . 4 Act of Oct. 1, 1890 (Tariff Act), ch. 1244, 3, 26 Stat. 612 . . . . 46 Act of Mar. 3, 1905, ch. 1484, 4, 33 Stat. 1257-1258 .. 4 Act of Feb. 27, 1906, ch. 510, 3, 34 Stat. 48-49 . . . . 4 Act of June 30, 1932, ch. 314, 401-408,47 Stat. 413-415 . . . . 5 Act of Mar. 3, 1933, ch. 212, 47 Stat. 1489: 16: 47 Stat. 1517-1519 . . . . 5 47 Stat. 1519 . . . . 5 Act of Mar. 4, 1933, ch. 281, 4, 47 Stat. 1602 . . . . 5 Act of Sept. 29, 1987, Pub. L. No. 100-119, 206(a), 101 Stat. 785-786 . . . . 7 Balanced Budget and Emergency Deficit Control Act of 1985 (Gramm-Rudman-Hollings Act), Pub. L. No. 99-177, Tit. II, 99 Stat. 1038 (codified at 2 U.S.C. 900 et seq.) . . . . 10, 22 250(b), 2 U.S.C. 900(h) . . . . 10 251, 2 U.S.C. 901 . . . . 10 251(a)(l), 2 U.S.C. 901(a)(l) . . . . 10 251A(a), 2 U.S.C. 901a(a) . . . . 10 252, 2 U.S.C. 902 . . . . 10 252 (b), 2 U.S.C. 902(b) . . . . 10 254 (g), 2 U.S.C 904(g) . . . . 10 254 (h),2 U.S.C. 904(h) . . . . 10 256(1), 2 U.S.C. 906(1) . . . . 10 257, 2 U.S.C. 907 . . . . 9 Budget Enforcement Act of 1990, Pub. L. No. 101-508, Tit. XIII, 104 Stat. 1388-573 . . . . 10 ---------------------------------------- Page Break ---------------------------------------- IX Statutes-Continued: Page Controlled Substances Act, 21 U.S.C. 801 et seq . . . . 48 Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, Pub. L. No. 104 -114, 306(c), 110 Stat. 821-822 (to be codified at 2 U.S.C. 6085(c)) . . . . 47 Federal Water Pollution Control Act, Tit. II, 33 U.S.C. 1281 et seq . . . . 7 Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 2, 86 Stat. 833 . . . . 7 General Appropriation Act, 1951, ch. 896, 64 Stat. 595: 1211: 64 Stat. 765-766 . . . . 5 64 Stat. 766 . . . . 5 1214, 64 Stat. 768 . . . . 5 Illegal Immigration Reform and Immigrant Respon- sibility Act of 1996, Pub. L. No. 104 -208, Div. C, 303(b)(2), 110 Stat. 3009-586 . . . . 36 Impoundment Control Act of 1974, Pub. L. No. 93-344, Tit. X, 88 Stat. 332 (codified as amended at 2 U.S.C. 681 et seq.) . . . . 7 1002, 88 Stat. 332 (31 U.S.C. 665 (1976) (repealed)) . . . . 8 1011(1), 2 U.S.C. 682(1) . . . . 7 1011(3), 2 U.S.C. 682(3) . . . . 7 1012, 2 U.S.C. 683 (1982) . . . . 7 1013, 2 U.S.C. 684 (1982) . . . . 7 1021(a), 2 U.S.C. 691(a) . . . . 8, 35, 44 1021 (a)(A), 2 U.S.C. 691 (a)(A) . . . . 11, 44 1021 (a)(B), 2 U.S.C. 691 (a)(B) . . . . 10 1021(b), 2 U.S.C. 691(b) . . . . 45 1021(b)(1), U.S.C. 691 (b)(1) . . . . 11 1021(c), U.S.C. 691(c) . . . . 11 1022(b), 2 U.S.C. 691a(b) . . . . 11, 45 1022(c)(1), 2 U.S.C. 691a(c)(1) . . . . 10 1023(a), 2 U.S.C. 691b(a) . . . . 11 1023(b), 2 U.S.C. 691b(b) . . . . 10 1024, 2 U.S.C. 691c . . . . 10 1024(a), 2 U.S.C. 691c(a) . . . . 10 ---------------------------------------- Page Break ---------------------------------------- X Statutes-Continued: Page 1024(a)(1)(B), 2 U.S.C. 691c (a)(1)(B) . . . . 10 1024(a)(2)(B), 2 U.S.C. 691c (a)(2)(B) . . . . 10 1024(b), 2 U.S.C. 691c (b) . . . . 10 1025, 2 U.S.C. 691d . . . . 11 1026(4)(A), 2 U.S.C. 691e (4)(A) . . . . 9 1026(4)(A)-(C), 2 U.S.C. 691e (4)(A)-(C) . . . . 48 1026(4)(B), 2 U.S.C 691e (4)(B) . . . . 9 1026(4)(C), 2 U.S.C. 691e (4)(C) . . . . 9 1026(5), 2 U.S.C. 691e (5) . . . . 9 1026(6), 2 U.S.C. 691e (6) . . . . 11, 35 1026(7)(A), 2 U.S.C. 691e (7)(A) . . . . 8 1026(7)(A)(ii), 2 U.S.C. 691e (7)(A)(ii) . . . . 8 1026(8), 2 U.S.C. 691e (8) . . . . 9, 45 1026(9)(A), 2 U.S.C. 691e (9)(A) . . . . 9 1027(a), 2 U.S.C. 691f (a) . . . . 9 1027(b), 2 U.S.C. 691f (b) . . . . 9 1027(c), 2 U.S.C. 691f (c) . . . . 9 Line Item Veto Act, Pub. L. No. 104-130, 110 Stat. 1200 (to be codified at 2 U.S.C. 691 et seq.) . . . . 2, 8 2, 110 Stat. 1200-1211 (2 U.S.C. 691-691f) . . . . 8 3(a)(1), 110 Stat. 1211 (2 U.S.C. 692(a)(1)) . . . . 13, 14 3(b), 110 Stat. 1211 (2 U.S.C. 692(b)) . . . . 1 3(c), 110 Stat 1211 (2 U.S.C. 692(c)) . . . . 14 5, 110 Stat. 1212 (2 U.S.C. 691 note) . . . . 8, 36 Revenue and Expenditure Control Act of 1968, Pub. L. No. 90-364, 82 Stat. 251: 202(a), 82 Stat. 271-272 . . . . 6 202(b), 82 Stat. 272 . . . . 6 203(a), 82 Stat. 272 . . . . 6 203(b), 82 Stat. 272 . . . . 6 Second Supplemental Appropriations Act, 1969, Pub. L. No. 91-47, 401, 83 Stat. 82 . . . . 6 Second Supplemental Appropriations Act, 1970, Pub. L. No. 91-305, 84 Stat. 376: 401, 84 Stat. 405-406 . . . . 6 501, 84 Stat. 406-407 . . . . 6 Securities Exchange Act of 1934, 15 U.S.C. 78l(h) . . . . 47 Shipping Act of 1984, 46 U.S.C. App. 1708(e) . . . . 36 --------------------------------------- Page Break ---------------------------------------- XI Statutes-Continued: Page 2 U.S.C. 288b(b) . . . . 27 5 U.S.C. 5303(b)(1) . . . . 47 5 U.S.C. 5304a(a) . . . . 47 10 U.S.C. 7309(b) . . . . 47 28 U.S.C. 2072(b) . . . . 49 47 U.S.C. 227(b)(2) . . . . 48 Miscellaneous: Ralph S. Abascal & John R. Kramer: Presidential Impoundment Part I: Historical Genesis and Constitutional Framework, 62 Geo. L.J. 1549 (1974) . . . . 2, 4, 5 Presidential Impoundment Part II: Judicial and Legislative Responses, 63 Geo. L.J. 149 (1974) . . . . 6 89 Cong. Rec. 10,362 (1943) . . . . 3 Correspondence of the Justices, reprinted in 3 The Correspondence and Public Papers of John Jay (H. Johnston ed. 1891) . . . . 33 Louis Fisher, Presidential Spending Discretion and Congressional Controls, 37 Law & Contemp. Probs. 135 (1972) . . . . 4, 5-6 H.R. Conf. Rep. No. 491, 104th Cong., 2d Sess. (1996) . . . . 8, 9, 10, 11, 35, 44 H.R. Rep. No. 1797, 81st Cong., 2d Sess. (1950) . . . . 3 Senate Comm. on the Budget, 104th Cong., 2d Sess., The Congressional Budget Process: An Explana- tion (Comm. Print 1996) . . . . 37 Nile Stanton, History and Practice of Executive Impoundment of Appropriated Funds, 53 Neb. L. Rev. 1 (1974) . . . . 6 9 Weekly Comp. Pres. Doc. 110 (1973) . . . . 6 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1996 No. 96-1671 FRANKLIN D. RAINES, ET AL., APPELLANTS v. ROBERT C. BYRD, ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRIEF FOR THE APPELLANTS OPINION BELOW The opinion of the district court (J.S. App. 1a-29a) is to be reported at 956 F. Supp. 25. JURISDICTION The order of the district court was entered on April 10, 1997. A notice of appeal (J.S. App. 30a-31a) was filed on April 11, 1997. This Court noted probable jurisdiction on April 23, 1997. J.A. 108. The jurisdiction of this Court rests on Pub. L. No. 104-130, 3(b), 110 Stat. 1211 (J.S. App. 57a) (to be codified at 2 U.S.C. 692(b)). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 1. The Presentment Clause of the United States Constitution, Art. I, 7, Cl. 2, is reproduced as an appendix to this brief. (1) ---------------------------------------- Page Break ---------------------------------------- 2 2. The Line Item Veto Act, Pub. L. No. 104-130, 110 Stat. 1200 (to be codified at 2 U.S.C. 691 et seq.), is repro- duced at J.S. App. 32a-59a. STATEMENT 1. The Line Item Veto Act gives the President condi- tional authority to cancel certain spending and revenue items within five days after a bill containing such items has been enacted into law. The Act is the latest in a series of statutes, dating from 1789 to the present, in which Con- gress has given the Executive Branch discretion over the expenditure of appropriated funds. a. The first statute appropriating funds for the general operation of the federal government was passed by the First Congress and signed by President Washington in September 1789. See Act of Sept. 29, 1789, ch. 23, 1, 1 Stat. 95. The statute appropriated "sum[s] not exceeding" specified amounts for the expenses the War Depart- ment, government salaries, military pensions, and out- standing debt. Ibid. The First Congress subsequently enacted two additional general appropriations statutes, which likewise appropriated "sum[s] not exceeding" speci- fied amounts for the govement's operations. Act of Mar. 26, 1790, ch. 4, 1,1 Stat. 104; Act of Feb. 11, 1791, ch. 6, 1, 1 Stat. 190. See Ralph S. Abascal & John R. Kramer, Presidential Impoundment Part I: Historical Genesis and Constitutional Framework, 62 Geo. L.J. 1549, 1579 (1974). The appropriations acts of the First Congress gave the President two distinct kinds of discretion over appropri- iated funds, both of which have become familiar elements of the federal budget process. First, by appropriating sums "not exceeding" specified amounts, Congress gave the President discretion not to obligate the full amount of the appropriations. It has since become a commonplace of ---------------------------------------- Page Break ---------------------------------------- 3 federal appropriations law that an appropriation "not exceeding" a specified sum leaves the Executive Branch with discretion to spend less than the full amount of the appropriation, absent some other statutory restriction on that discretion. See, e.g., H.R. Rep. No. 1797, 81st Cong., 2d Sess. 9 (1950) ("Appropriation of a given amount for a particular activity constitutes only a ceiling upon the amount which should be expended for that activity."); 89 Cong. Rec. 10,362 (1943) (Sen. Truman) ("When the Con- gress appropriates funds * * * none of us hold[s] that we give a mandate to expend the funds appropriated."). Second, the appropriations acts of the First Congress provided Executive Branch departments with what are now known as "lump-sum" appropriations-that is, appro- priations for the operation of a department that do not specify the particular items for which the funds are to be used. For example, the first appropriations act appropri- ated "a sum not exceeding one hundred and thirty-seven thousand dollars for defraying the expenses of the depart- ment of war." Act of Sept. 29, 1789, ch. 23, 1, 1 Stat. 95. The Act did not prescribe any particular expenditures to be made by the President from that appropriation. As a result, the President was given discretion not only with respect to the amount of the appropriated sum that would be used, but also with respect to its allocation within the Department of War. This Court recently reaffirmed that, "where Congress merely appropriates lump-sum amounts without statutorily restricting what can be done with those funds, a clear inference arises that [Congress] does not intend to impose legally binding restrictions" on the allocation of the funds among authorized purposes. Lincoln v. Vigil, 508 U.S. 182, 192 (1993) (internal quota- tion marks omitted). Within a few years, appropriations laws began to make increased use of earmarked, rather than lump-sum, appro- ---------------------------------------- Page Break ---------------------------------------- 4 priations. See Abascal & Kramer, 62 Geo. L.J. at 1579- 1580. However, Congress, soon recognized the continued need to provide the Executive Branch with discretion to move appropriations within departments. In 1809, Con- gress vested the President with recess authority "to di- rect * * * that a portion of the monies appropriated for a particular branch of expenditure in [a] department, be applied to another branch of expenditure in the same de- partment." Act of Mar. 3, 1809, ch. 28, 1, 2 Stat. 535-536. That authority remained in effect. with various modifica- tions, for nearly 60 years. See Louis Fisher, Presidential Spending Discretion and Congressional Controls, 37 Law & Contemp. Probs. 135, 148 & nn.71-72 (1972). In addition, Congress continued to resort to lump-sum appropriations, rather than earmarked appropriations, when Executive Branch discretion and flexibility were viewed as desirable, particularly during periods of economic and military cri- sis. Id. at 136 (citing major lump-sum appropriations dur- ing Civil War, First World War, and Great Depression). Early in the Twentieth Century, Congress began to enact laws that gave the Executive Branch standing authority to control spending on a government-wide basis. In 1905 and 1906, Congress amended the Antideficiency Act (Act of July 12, 1870, ch. 251, 7, 16 Stat. 251) to give agencies authority to apportion appropriations over the course of a fiscal year, while authorizing them to modify or waive apportionments in exigent circumstances. Act of Mar. 3,1905, ch. 1484, 4, 33 Stat, 1257-1258; Act of Feb. 27, 1906, ch. 510, 3, 34 Stat. 48-49. In 1933, in response to the fiscal pressures created by the Great Depression, Congress granted the President broad discretion to refrain from spending appropriated funds. Congress authorized the President to "reduce [gov- ernmental] expenditures" by abolishing, consolidating, or transferring Executive Branch agencies and functions. ---------------------------------------- Page Break ---------------------------------------- 5 Act of Mar. 3, 1933, ch. 212, 16, 47 Stat. 1517-1519 (amending Act of June 30, 1932, ch. 314, 401-408, 47 Stat. 413-415)). All appropriations "unexpended by reason of" the President's exercise of his reorganization authority were to be "impounded and returned to the Treasury." Id. at 1519. Congress also conferred discretionary impound- merit authority in the Department of War's 1933 appropria- tions act. Congress authorized the President to impound "[a]ny sums appropriated in this Act for or on account of the Military Establishment, or any portion of such sums, that may not be needed for the purposes for which appropriated." Act of Mar. 4, 1933, ch. 281, 4, 47 Stat. 1602. In 1950, Congress amended the Antideficiency Act to provide the Executive Branch with general authority to establish "reserves"-that is, to withhold appropriated funds-in order "to provide for contingencies, or to effect savings whenever savings are made possible by or through changes in requirements, greater efficiency of operations, or other [post-appropriation] developments." General Ap- propriation Act, 1951, ch. 896, 51211, 64 Stat. 765-766 (1950). Congress directed the Executive Branch to "rec- ommend the rescission" of any reserves "not * * * re- quired to carry out the purposes of the appropriation concerned." Id. at 766. Congress also authorized the Executive Branch to reduce spending by "at least" 550 million below appropriated levels; apart from specifying that the reductions not "impair[] national defense," Con- gress did not prescribe what spending to reduce or how large particular reductions should be. Id. 1214, 64 Stat. 768. During the Vietnam War, Congress gave the President still greater discretionary authority over expenditures of appropriated funds. See Abascal & Kramer, 62 Geo. L.J. at 1569 & n.90; Fisher, 37 Law & Contemp. Probs. at 160- ---------------------------------------- Page Break ---------------------------------------- 6 161. The Revenue and Expenditure Control Act of 1968 imposed strict ceilings on budget outlays and new obligation authority for fiscal year 1969. Pub. L. No. 90- 364, 202(a), 203(a), 82 Stat. 271-272. To meet those ceil- ings, Congress authorized the President to reserve as much as 6 billion in outlays and 10 billion in new obliga- tion authority, with no restrictions on the President's discretion regarding what spending to reduce. Id. 202(b), 203(b), 82 Stat. 272. Congress provided the President with similar authority in 1969 and 1970. See Second Supplemental Appropriations Act, 1969, Pub. L. No. 91-47, 401, 83 Stat. 82; Second Supplemental Ap- propriations Act, 1970, Pub. L. No. 91-305, 401, 501, 84 Stat. 405-407. b. In each of the foregoing instances, the Executive Branch was authorized by statute to withhold appropriated sums. During the early 1970s, however, President Nixon asserted a general authority to impound appropriated funds whether or not Congress intended for the impounded appropriations to be discretionary. See, e.g., 9 Weekly Comp. Pres. Doc. 110 (1973). The Nixon Administration's effort to impound appropriations for a wide range of federal programs led to a series of lawsuits challenging individual impoundments. See, e.g., City of New Haven v. United States. 634 F.Supp. 1449, 1454-1455 & n.6 (D.D.C. 1986) (summarizing cases), aff'd, 809 F.2d 900 (D.C. Cir. 1987); Ralph S. Abscal & John R. Kramer, Presidential Impoundment Part II: Judicial and Legislative Re- sponses, 63 Geo. L.J. 149, 151-168 (1974); Nile Stanton, History and Practice of Executive Impoundment of Appropriated Funds, 53 Neb. L. Rev. 1, 14-30 (1974). The courts resolved disputes over Executive Branch impoundments by construing the applicable appropriations statutes to determine whether Congress intended for the President to have discretion over expenditure of the ---------------------------------------- Page Break ---------------------------------------- 7 impounded funds. For example, in Train v. City of New York, 420 U.S. 35 (1975), this Court held that the Pres- ident lacked authority to impound funds appropriated for grants under Title II of the Federal Water Pollution Control Act, as added by Pub. L. No. 92-500, 2, 86 Stat. 833. The Court reviewed the text and history of the Act to determine whether "Congress intended to confer any discretion on the Executive to withhold funds from this program." 420 U.S. at 44. The Court and the parties presupposed that Congress could, if it chose, vest the Executive Branch with such discretion; the only issue was whether it had chosen to do so. In response to the impoundment controversy, Congress enacted the Impoundment Control Act of 1974 (ICA), Pub. L. No. 93-344, Tit. X, 88 Stat. 332 (codified as amended at 2 U.S.C. 681 et seq.). The ICA distinguished between two forms of impoundment deferrals (delays in spending during the course of a fiscal year, or other period of avail- ability) and rescissions (permanent withholdings of appro- priated funds). See 2 U.S.C. 682(1), 682(3). The Act authorized the President to carry out deferrals, subject to a one-House legislative veto. 2 U.S.C. 684 (1982). 1. The Act prohibited the President from engaging in unilateral rescissions. Instead, it authorized the President to pro- pose rescissions to Congress under a mechanism for expedited legislative consideration. 2 U.S.C. 683 (1982). In addition, the Act amended the Antideficiency Act to narrow the circumstances in which the Executive Branch ___________________(footnotes) 1 This Court's decision in INS v. Chadha, 462 U.S. 919 (1983), made clear that the ICA's legislative veto provision was unconsti- tutional. See City of New Haven v. United States, 809 F.2d 900, 905 (D.C. Cir. 1987) (government conceded unconstitutionality of legislative veto provision). Congress subsequently amended the Act to eliminate that, provision. Act of Sept. 29, 1987, Pub. L. No. 100-119, 206(a), 101 Stat. 785-786. ---------------------------------------- Page Break ---------------------------------------- 8 could place appropriated funds in reserves. See ICA 1002,88 Stat. 332. 2. The Line Item Veto Act was enacted in April 1996 as an amendment to the ICA. See Pub. L. No. 104-130, 110 Stat. 1200 (J.S. App. 32a-59a) (to be codified at 2 U.S.C. 691 et seq.). The Act expires on January 1, 2005. Pub. L. No. 104-130, 5, 110 Stat. 1212 (J.S. App. 59a). It authorizes the President to "cancel in whole" specific spending and rev- enue items contained in any bill or joint resolution "that has been signed into law pursuant to Article I, section 7, of the Constitution of the United States." ICA 1021(a) (2 U.S.C. 691(a)); J.S. App. 32a. 2 The President's cancellation authority extends to three categories of budget items: (1) "dollar amount[s] of dis- cretionary budget authority," (2) "item[s] of new direct spending," and (3) "limited tax benefit[s]." ICA 1021(a) (2 U.S.C. 691(a)); J.S. App. 32a-33a. A "dollar amount of discretionary budget authority" is "the entire dollar amount of budget authority" that is specified in an appro- priations law or is otherwise specified, represented, or re- quired to be spent. ICA 1026(7)(A) ((2 U.S.C. 691e(7)(A)); J.S. App. 50a-51a. 3. An "item of new direct spending" is a ___________________(footnotes) 2 Section 2 of the Line Item Veto Act added a new Part C to the ICA. The citations in the text to "ICA" are to Sections contained in the new Part C. 3 A "dollar amount of discretionary budget authority" includes any amount "represented separately in any table, chart, or explanatory text included in the statement of managers or the governing committee report accompanying [an appropriations] law." ICA 1026(7)(A)(ii) (2 U.S.C. 691e(7)(A)(ii)); J.S. App. 50a. That provision "is not intended to give increased legal weight or authority to documented that accompany the law that is enacted." H.R. Conf. Rep. No. 491, 104th Cong., 2d Sess. 32 (1996). Rather, Congress "is choosing to use those documents as a means of allowing the President increased discretion to reduce dollar amounts of discretionary budget authority provided in an appropriation law." Ibid. ---------------------------------------- Page Break ---------------------------------------- 9 specific provision that will result in "an increase in budget authority or outlays" for entitlements, food stamps, or other programs funded other than through annual ap- propriations. ICA 1026(8) (2 U.S.C. 691e(8)); J.S. App. 51a. 4. A "limited tax benefit" is a revenue-losing provision that gives a tax reduction to 100 or fewer beneficiaries, or a provision that provides "temporary or permanent transitional relief" to ten or fewer beneficiaries. ICA 1026(9)(A) (2 U.S.C. 691e(9)(A)); J.S. App. 52a-54a. 5 Cancellation of a dollar amount of discretionary bud- get authority operates "to rescind" that authority. ICA 1026(4)(A) (2 U.S.C. 691e(4)(A)); J.S. App. 48a. Cancel- lation of an item of new direct spending or a limited tax benefit renders the cancelled spending or revenue pro- vision without "legal force or effect." ICA 1026(4)(B) and (C)(2 U.S.C. 691e(4)(B) and (C)); J.S. App. 48a-49a. The President may not use funds covered by a cancellation for ___________________(footnotes) 4 The Act defines the term "direct spending" to include "(A) budget authority provided by law (other than an appropriation law); (B) entitlement authority; and (C) the food stamp program." ICA 1026(5) (2) U.S.C. 691e(5)); J.S. App. 49a. An "item of new direct spending" is a provision of law estimated to result in direct spending in excess of the "baseline" levels calculated pursuant to Section 257 of the Balanced Budget and Emergency Deficit Control Act of 1985, 2 U.S.C. 907. See ICA 1026(8) (2 U.S.C. 691e(8)); J.S. App. 51a; see also H.R. Conf. Rep. No. 491, supra, at 36. An increase in outlays for such entitlements resulting from automatic cost-of-living or comparable adjustments under existing law is in the "baseline" and therefore is not an item of "new" direct spending under the Line Item Veto Act. 5 The Act provides for the Joint Committee on Taxation to identify limited tax benefits in future revenue bills. ICA 1027(a) (2 U.S.C. 691f(a)); J.S. App. 54a. If Congress incorporates the Joint Committee's statement into a revenue law as finally enacted, the President's authority to cancel limited tax benefits is confined to the items, if any, identified in that law. ICA 1027(b) and (c) (2) U.S.C. 691f(b) and (c)); J.S. App. 55a-56a. ---------------------------------------- Page Break ---------------------------------------- 10 any purpose other than deficit reduction. ICA 1023(b), 1024 (2 U.S.C. 691b(b), 691c); J.S. App. 36a-39a. Deficit reduction is accomplished through a statutory "lockbox" procedure, under which the Director of the Office of Man- agement and Budget (OMB) must calculate the deficit reduction from the cancellation and "lock in" the savings by adjusting the calculations submitted to Congress under the Gramm-Rudman-Hollings Act. ICA 1024(a) and (b) (2 U.S.C. 691c(a) and (b)); J.S. App. 37a-38a. 6 If the President wishes to exercise his cancellation authority, he must submit a special message to Congress within five calendar days (excluding Sundays) after the enactment of the law containing the cancelled item. ICA 1021(a)(B), 1022(c)(1) (2 U.S.C. 691(a)(B), 691a(c)(l)); J.S. ___________________(footnotes) 6 The "lockbox" operates through the pre-established procedures in the Balanced Budget and Emergency Deficit Control Act, of 1985, as amended (particularly by the Budget Enforcement Act of 1990 (BEA)), which is codified at 2 U.S.C. 900 et seq. The BEA imposed limits ("caps") on the annual amount of discretionary appropriations, 2 U.S.C. 901, and also imposed what is commonly referred to as a "pay-as-you- go" ("paygo") requirement for legislation affecting direct spending and receipts, 2 U.S.C. 902. A failure by Congress to stay within the dis- cretionary "caps" and the "paygo" limitation results in a "sequester," or cancellation, of budgetary resources in excess of the caps or limita- tion. 2 U.S.C. 900(b), 901(a)(l), 901a(a), 902(b), 906(l). OMB prepares the reports on which the sequester orders are based. 2 U.S.C. 904(g) and (h). Under the Line Item Veto Act's "lockbox" provision, the President's cancellation of a dollar amount of discretionary budget authority requires OMB to reduce the discretionary caps by the same amount. ICA 1024(a)(l)(B) (2 U.S.C. 691c(a)(1)(B)); J.S. App. 37a. When the President cancels an item of direct spending or a limited tax benefit, OMB does not include the savings from that cancellation in its "paygo" calculations. ICA 1024(a)(2)(B) (2 U.S.C. 691c(a)(2)(B)); J.S. App. 38a. See H.R. Conf. Rep. No. 491, supra, at 23-24. The "lockbox" provision thereby operates to permanently reduce the amounts of budgetary resources which Congress can thereafter appropriate in any one fiscal year without triggering a sequester. ---------------------------------------- Page Break ---------------------------------------- 11 App. 33a, 35a-36a. The President may cancel an item only if he determines that doing so will "(i) reduce the Federal budget deficit; (ii) not impair any essential Government functions; and (iii) not harm the national interest." ICA 1021(a)(A) (2 U.S.C. 691(a)(A)); J.S. App. 33a. The Pres- ident must also consider "the legislative history, con- struction, and purposes of the law" containing the items, as well as "any specific sources of information referenced in such law." ICA 1021(b)(1) and (2) (2 U.S.C. 691(b)(1) and(2)); J.S. App. 33a. In addition, the President's special message to Congress must identify, inter alia, the rea- sons for the cancellation; the President's estimate of the "fiscal, economic, and budgetary effect" of the cancella- tion; his estimate of "the * * * effect of the cancella- tion upon the objects, purposes and programs for which the canceled authority was provided"; and the geographic distribution of the cancelled spending. ICA 1022(b) (2 U.S.C. 691a(b)); J.S. App. 34a-35a. A cancellation takes effect upon Congress's receipt of the President's special message. ICA 1023(a) (2 U.S.C. 691b(a)); J.S. App. 36a. The Act provides for highly expedited legislative consideration of "disapproval bills." ICA 1025, 1026(6) (2 U.S.C. 691d, 691e(6)); J.S. App. 39a- 47a, 49a-50a. If a disapproval bill is enacted into law, all disapproved cancellations become null and void and the cancelled items become effective. ICA 1023(a) (2 U.S.C. 691b(a)); J.S. App. 36a. A disapproval bill is not subject to the President's cancellation authority under the Act. ICA 1021(c) (2 U.S.C. 691(c)); J.S. App. 34a. Although the Line Item Veto Act establishes general rules for the execution of appropriations laws, nothing in the Act purports to prevent Congress from exempting any future spending or revenue bill from the operation of the Act by including a provision to that effect in the bill itself. ---------------------------------------- Page Break ---------------------------------------- 12 3. The Act took effect on January 1, 1997. See J.S. App. 2a, 58a-59a. Appellees-six Members of Congress, one of whom has since left office-filed the present suit the next day. 7. They named as defendants Franklin D. Raines, the Director of OMB, and Robert E. Rubin, the Secretary of the Treasury. J.A. 9-10 see J.S. App. 2a. 8. Appellees al- leged that "the Act confers on the President powers of veto, revision, and repeal of federal law that violate Article I of the Constitution." J.A. 10. They further alleged that the Act "directly and concretely injures" them by "al- tering the legal and practical effect " of their votes, by "divesting" them of "their constitutional role in the re- peal of legislation," and by "altering the constitutional balance of powers between the Legislative and Executive Branches." J.A. 12. The complaint did not allege, however, that the President had exercised his cancellation author- ity under the Act, and he has not yet done so. The government moved to dismiss for lack of jurisdic- tion, and the parties thereafter filed cross-motions for summary judgment. The Senate and the House of Repre- sentatives jointly appeared as amici curiae to support the constitutionality of the Act. See J.S. App. 2a-3a. On April 10, 1997, the district court issued a memorandum order ___________________(footnotes) 7 A similar constitutional challenge was brought by a federal labor union immediately after the Act was signed into law in April 1996. That action was dismissed on standing and ripeness grounds. See National Treasury Employees Union v. United States, 101 F.3d 1423 (D.C. Cir. 1996). 8 Appellees alleged that "defendant Raines is responsible for executing the President's cancellations of budgetary and spending authority under the Act," and that "defendant Rubin is responsible for executing the President's cancellations of 'limited tax benefits' under the Act and for executing and enforcing the tax laws of the United States." J.A. 11. ---------------------------------------- Page Break ---------------------------------------- 13 denying the motion to dismiss and granting summary judgment to appellees. J.S. App. 1a-29a. The district court first held that appellees had standing to bring their suit. J.S. App. 9a-12a. The court relied on prior D.C. Circuit decisions holding that Members of Congress have "standing to challenge measures that af- fect their constitutionally prescribed lawmaking powers," although it recognized that "the Supreme Court has never endorsed the Circuit's analysis of standing in such cases." Id. at 10a-11a. Applying those circuit precedents, the district court held that "[appellees'] claim of injury in this case, namely, that the Act dilutes their Article I voting power, is likewise of the kind that suffices to confer standing under Article III." Id. at 11a. By virtue of the Act, the court explained, "[appellees'] votes mean some- thing different from what they meant before, for good or ill, and [appellees] who perceive it as the latter are thus 'injured' in a constitutional sense whenever an appropri- ations bill comes up for a vote, whatever the President ultimately does with it." Id. at 11a-12a. The district court also held that appellees' claims were ripe for adjudication, despite the fact that the President had not yet exercised any cancellation authority under the Act. J.S. App. 12a-15a. The court explained that, "[b]ecause [appellees] now find themselves in a position of unanticipated and unwelcome subservience to the Pres- ident before and after they vote on appropriations bills, Article III is satisfied." Id. at 14a. The court noted as well that "the budgetary process is already underway," and that "appropriations votes are inevitable, and 'certain- ly impending.' " Ibid. (quoting Whitmore v. Arkansas, 495 U.S. 149,158 (1990)). 9 ___________________(footnotes) 9 Section 3(a)(1) of the Line Item Veto Act expressly authorizes suits by Members of Congress challenging the constitutionality of any ---------------------------------------- Page Break ---------------------------------------- 14 On the merits, the district court held that the Line Item Veto Act violates the Presentment Clause (U.S. Const. Art. I, 7, Cl. 2) by delegating to the President the legis- lative power to repeal Acts of Congress. J.S. App. 16a-29a. The court acknowledged that any appropriations law whose provisions are subject to the President's cancella- tion power under the Act "will have been 'approved' in accordance with the Presentment Clause." Id. at 20a. The court concluded, however, that, "following approval [of an appropriations bill], a cancellation by the President is a legislative repeal that itself must comply with Present- ment Clause procedures." Ibid. The court reasoned: Where the President signs a bill but then purports to cancel parts of it, he exceeds his constitutional authority and prevents both Houses of Congress from participating in the exercise of lawmaking authority. The President's cancellation of an item unilaterally effects a repeal of statutory law such that the bill he signed is not the law that will govern the Nation. That is precisely what the Presentment Clause was designed to prevent. Id. at 21a-22a. The district court recognized that the President may be vested with discretionary authority to impound, or to decline to spend, funds previously appropriated by Congress. J.S. App. 22a-23a. However, the court stated that cancellation under the Act "is simply not the same ___________________(footnotes) provision of the Act. J.S. App. 56a (2 U.S.C. 692(a)(1)). Section 3(c) of the Act directs both the district court and this Court to expedite dis- position of such suits "to the greatest possible extent." Id. at 57a (2 U.S.C. 692(c)). The district court construed those provisions as render- ing inapplicable any prudential constraints on the court's exercise of jurisdiction, leaving only the requirements of Article III. See id. at 9a n.5, 14a n.8, 16a. ---------------------------------------- Page Break ---------------------------------------- 15 thing as impoundment," but instead "is equivalent to repeal" of the underlying appropriations law. Id. at 24a- 25a. The court sought to distinguish the Act from stat- utes previously upheld by this Court under the non- delegation doctrine on the ground that, in its view, the Act "hands off to the President authority over fundamental legislative choices" and "spares Congress the burden of making those vexing choices of which programs to pre- serve and which to cut." Id. at 27a. SUMMARY OF ARGUMENT I. Because the implementation of the Line Item Veto Act will cause appellees no judicially cognizable injury, they lack standing to sue in this case. This Court has consistently held that a generalized interest in the proper application of the Constitution and laws is an insuffi- cient basis for invoking the power of the federal courts. Because Members of Congress exercise their official powers on behalf of the people, the President's cancellation of budgetary items pursuant to the Line Item Veto Act would cause them no personal injury that is not shared by the public generally. Nor do appellees have standing to sue on behalf of the government. Because Article II of the Constitution en- trusts litigation on behalf of the United States to the Executive rather than the Legislative Branch, neither Congress nor its Members may initiate litigation designed to vindicate the general public and governmental interest in the proper administration of federal law. Even if the Line Item Veto Act could be said to impair a distinct in- stitutional interest of Congress itself, moreover, a suit brought by an individual Member cannot properly be characterized as one filed on behalf of Congress, at least in the absence of some affirmative congressional action authorizing the Member to sue on its behalf. That is ---------------------------------------- Page Break ---------------------------------------- 16 particularly true where (as here) the individual Members have attacked the constitutionality of a federal statute rather than seeking to vindicate the legal and policy judg- ments of Congress as a whole. Even if Members of Congress possessed a judicially cognizable interest in the proper administration of federal law, appellees' suit could not go forward at the present time. Until the President has actually exercised his cancellation authority with respect to a particular ap- propriations bill, the potential of the Act to frustrate appellees' own legislative preferences is too speculative to constitute injury in fact. And while the existing un- certainty concerning the Act's constitutional status may affect the manner in which legislative negotiations are conducted, the bare desire to eliminate legal uncertainty is an insufficient basis for invoking the jurisdiction of a federal court. II. The Line Item Veto Act does not violate Article I. Its title notwithstanding, the Act does not authorize the President to sign into law some provisions of an appropria- tions bill while "returning" other provisions to Congress. The President remains subject to the constitutional ob- ligation to approve or disapprove, in its entirety, an appropriations bill presented to him by Congress. His cancellation authority under the Act comes into exist- ence only after an appropriations bill has been passed by both Houses of Congress and approved, in toto, by the President. The effect of the Line Item Veto Act is to vest the Pres- ident with authority to determine, in accordance with statutorily prescribed standards and procedures, whether items of spending that Congress has appropriated will in fact be spent. That grant of authority is fully consis- tent with historical practice. From the beginning of the Republic, Congress has frequently conferred upon the ---------------------------------------- Page Break ---------------------------------------- 17 President substantial discretion over the expenditure of appropriated funds. The First Congress, for example, chose to fund the general operations of the federal govern- ment through lump-sum appropriations acts that did not require that the full amount of the appropriation be spent. The settled historical practices of Congress and the Ex- ecutive Branch regarding spending discretion strongly support the political Branches' shared judgment that the Line Item Veto Act is constitutional. This Court has repeatedly recognized that Congress may vest the Executive Branch with considerable discre- tion in the administration of federal laws. The Line Item Veto Act places constitutionally sufficient limits on the President's exercise of discretion over federal spending. The President must cancel items "in whole" rather than in part and must devote any cancelled amounts to deficit reduction. The Act also provides significant guidance to the President in his decision whether particular items should be cancelled. Finally, the Line Item Veto Act does not vest the President with the power to repeal any portion of an appropriations law. This Court has repeatedly upheld federal statutes authorizing the President to suspend their provisions, grant exemptions from their require- ments, or otherwise modify their operation. Like the statutes previously upheld, the Line Item Veto Act per- missibly vests the President with executive rather than legislative power. The fact that the President's cancella- tion of a particular item is irrevocable unless overturned by Congress does not alter the constitutional analysis. Indeed, that feature of the Act limits rather than expands the scope of the President's authority. The fact that the President's cancellation authority is conferred by the Line Item Veto Act rather than by individual appropria- tions laws also lacks constitutional significance. ---------------------------------------- Page Break ---------------------------------------- 18 ARGUMENT I. APPELLEES LACK STANDING TO CHAL- LENGE THE CONSTITUTIONALITY OF THE LINE ITEM VETO ACT Article III of the Constitution confines the jurisdiction of the federal courts to actual "Cases" and "Controver- sies," and "the doctrine of standing serves to identify those disputes which are appropriately resolved through the judicial process." Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). To satisfy the "case" or "controversy" requirement of Article III, which is the "irreducible constitutional minimum" of standing, a plaintiff must, generally speaking, demonstrate that he has suffered "injury in fact," that the injury is "fairly traceable" to the ac- tions of the defendant, and that the injury will likely be redressed by a favorable decision. Bennett v. Spear, No. 95-813 (Mar. 19, 1997), slip op. 6. "This Court has repeatedly held that an asserted right to have the Government act in accordance with law is not suf- ficient, standing alone, to confer jurisdiction on a federal court." Allen v. Wright, 468 U.S. 737, 754 (1984). Rather, Article III "requires the party who invokes the court's authority to 'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,' " Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979)), and that he "stand[s] to profit in some personal interest" by a judgment in his favor, Allen, 468 U.S. at 766 (quoting Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 39 (1976)). ---------------------------------------- Page Break ---------------------------------------- 19 "[T]he 'case or controversy' requirement defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded." Allen, 468 U.S. at 750. The "require[ment] that the party seeking review be himself among the injured," Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992) (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)), ensures that the federal courts resolve disputed legal questions "only in the last resort, and as a necessity in the deter- mination of real, earnest and vital controversy," Valley Forge, 454 U.S. at 471 (quoting Chicago & Grand Trunk Ry. v. Wellman, 143 U.S. 339, 345 (1892)). Article III's case-or-controversy requirement thus protects the sepa- ration of powers by ensuring that the Judicial Branch does not exercise a general superintendence over the workings of the federal government. See Allen, 468 U.S. at 760 (abandonment of standing requirements "would have the federal courts as virtually continuing monitors of the wisdom and soundness of Executive action") (quoting Laird V. Tatum, 408 U.S. 1, 15 (1972)); see also Defenders of Wildlife, 504 U.S. at 576 (role of federal courts is to determine "the rights of individuals"). The legal questions presented by the Line Item Veto Act-whether the Act violates Article I by enlarging the President's veto power under the Presentment Clause or by vesting the President with the power to repeal federal laws-are assuredly suitable for judicial resolution. If and when the President exercises his cancellation authority, moreover, his action is likely to result in judicially cog- nizable injury to persons who would otherwise be the recipients of the cancelled funds or tax benefits. See, e.g., Train v. City of New York, 420 U.S. 35, 40 (1975). 10 ___________________(footnotes) 10 Suits by potential recipients of federal funds would not be brought against the named defendants in this case, however, but ---------------------------------------- Page Break ---------------------------------------- 20 Persons whose monetary interests are adversely affected by the Act's implementation will possess the prototypical "concrete stake" in the outcome of litigation, and will therefore satisfy the requirements of Article III. Appellees, however, allege a very different sort of injury. The complaint in this case alleges that [t]he Act directly and concretely injures [appellees], in their official capacities, by (a) altering the legal and practical effect of all votes they may cast on bills containing such separately vetoable items, (b) divest- ing [appellees] of their constitutional role in the repeal of legislation, and (c) altering the constitutional bal- ance of powers between the Legislative and Executive Branches, both with respect to measures containing separately vetoable items and with respect to other matters coming before Congress. J.A. 12. Those asserted injuries do not satisfy the case-or- controversy requirement. A. Members Of Congress Will Suffer No Judicially Cognizable Injury As A Result Of The Implemen- tation Of The Line Item Veto Act As we explain above, a private litigant can invoke the federal judicial power only by demonstrating a concrete personal stake in the outcome of the dispute. The United States and its agencies, by contrast, routinely initiate liti- gation (including criminal prosecutions), or appeal adverse rulings, in order to vindicate a more generalized govern- mental and public interest in the effective administration of federal law and to fulfill the President's responsibility under Article II to "take Care that the Laws be faithfully executed." This Court has explained: ___________________(footnotes) against, the agency or agency official charged with the expenditure of the monies in question. See Train, 420 U.S. at 40. ---------------------------------------- Page Break ---------------------------------------- 21 Every government, entrusted, by the very terms of its being, with powers and duties to be exercised and dis- charged for the general welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other, and it is no sufficient answer to its appeal to one of those courts that it has no pecuniary interest in the matter. The obligations which it is under to promote the in- terest of all, and to prevent the wrongdoing of one resulting in injury to the general welfare, is often of itself sufficient to give it a standing in court. In re Debs, 158 U.S. 564, 584 (1895). See also, e.g., id, at 584-586; Coleman v. Miller, 307 U.S. 433, 441-442 (1939); SEC v. United States Realty & Improvement Co., 310 U.S. 434,459-460 (1940); INS v. Chadha, 462 U.S. 919, 931 (1983); Director, OWCP v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 132-133 (1995); cf. Diamond v. Charles, 476 U.S. 54, 62 (1986) ("[A] State has standing to defend the constitutionality of its statute."). Even where the named federal party is an individual government official, such a suit (or appeal) is properly regarded as one brought on behalf of the government, not as an effort to redress an injury done to the official in his individual capacity. 11 ___________________(footnotes) 11 In the context of suits brought against individual government officials, this Court has stressed the need for "careful adherence to the distinction between personal- and official-capacity suits." Kentucky v. Graham, 473 U.S. 159, 165 (1985). "Personal-capacity suits seek to im- pose personal liability upon a government official for actions he takes under color of * * * law." Ibid. By contrast, official-capacity suits are in substance suits against the government, and seek relief (e.g., the payment of public funds or the alteration of agency policy) against the government rather than the individual employee. See id. at 166; Hafer v. Meto, 502 U.S. 21, 25-26 (1991); Dugan v. Rank, 372 U.S. 609, 620 (1963). ---------------------------------------- Page Break ---------------------------------------- 22 Thus, federal courts are authorized to adjudicate private actions brought by plaintiffs who establish a concrete per- sonal interest in the outcome of the dispute, as well as suits brought by governmental entities to vindicate the public interest in the enforcement of the laws. Appellees, however, lack standing to sue under either theory. 1. This Court has consistently held that a plaintiff raising only a genera- lly available grievance about government-claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large-does not state an Article III case or controversy. ___________________(footnotes) A similar distinction may be drawn between personal- and official- capacity suits (or appeals) brought by governmental actors. A federal officer or employee, whether or not authorized to conduct litigation on behalf of the United States, has standing to sue in federal court to vindicate such personal interests as an entitlement to federal pay or benefits. See, e.g., Bowsher v. Synar, 478 U.S. 714, 721 (1986) (mem- bers of federal employees' union had standing to challenge the consti- tutionality of Gramm-Rudman-Hollings Act, based on showing that they would "sustain injury by not receiving a scheduled increase in benefits"); cf. Powell v. McCormack, 395 U.S. 486, 495-500 (1969) (suit concerning House of Representatives' refusal to seat elected Member was not moot where plaintiff retained claim for back salary). Where the alleged injury is the impairment of governmental functions, however, an official may invoke the jurisdiction of the federal courts only insofar as he is properly authorized to sue or appeal on behalf of the government. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 543-545 & n.6 (1986) (individual school board member lacked stand- ing to appeal where board decided against appeal of adverse judg- ment); cf. Karcher v. May, 484 U.S. 72, 77-78 (1987) (individuals who intervened in their capacities as presiding officers of New Jersey Legislature could not appeal in their other individual and professional capacities after losing their positions as presiding officers). ---------------------------------------- Page Break ---------------------------------------- 23 Defenders of Wildlife, 504 U.S. at 573-574. While rec- ognizing that, "[i]n some fashion, every provision of the Constitution was meant to serve the interests of all," this Court has emphatically rejected "[t]he proposition that all constitutional provisions are enforceable by any citizen simply because citizens are the ultimate beneficiaries of those provisions." Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 226-227(1974). A private plaintiff could establish the existence of a case or controversy by demonstrating that the cancellation of a particular budget item (or limited tax benefit) would adversely affect his own economic interests. See pages 19- 20, supra. A member of the public could not, however, obtain judicial review of an exercise of the President's cancellation authority by alleging that the cancellation had negated the vote of his own Senator or Representative; that it had subverted the will of Congress; or that, it had improperly shifted the balance of power between the Legislative and Executive Branches. Any such allegation would present a "generalized grievance" plainly insuscep- tible of judicial resolution. United States v. Richardson, 418 U.S. 166, 171 (1974). Appellees' claim to standing thus rests on the premise that a Member of Congress has a judicially cognizable per- sonal interest in the proper performance of his legislative duties, in the execution of an Act of Congress, or in the maintenance of the constitutionally prescribed balance of power between the President and Congress, even though his constituents possess no such interest. That premise is contrary to first principles of representative democ- racy. As then-judge Scalia explained, no officers of the United States, of whatever Branch, exercise their governmental powers as personal pre- rogatives in which they have a judicially cognizable ---------------------------------------- Page Break ---------------------------------------- 24 private interest. They wield those powers not as pri- vate citizens but only through the public office which they hold. Whatever the realities of private ambition and vainglory may be, in contemplation of law their personal interest in full and unfettered exercise of their authority is no greater than that of all the citi- zens for whose benefit (and not for the personal benefit of the officeholder) the authority has been conferred. Moore v. U.S. House of Representatives, 733 F.2d 946,959 (D.C. Cir. 1984) (Scalia, J., concurring in result), cert. denied, 469 U.S. 1106 (1985). Because Members of Con- gress exercise their powers as representatives and servants of the people-the "ultimate beneficiaries" (Reservists, 418 U.S. at 226-227) of the constitutional provisions on which appellees rely-the President's cancellation of budgetary items pursuant to the Line Item Veto Act would cause them no injury that is not shared by the public generally. See also United States v. Munoz- Flores, 495 U.S. 385, 394-395 (1990) (fundamental purpose of separation of powers is "to protect individual rights"); Bowsher v. Synar, 478 U.S. 714, 721 (1986) ("The declared purpose of separating and dividing the powers of government * * * was to diffuse power the better to secure liberty.") (brackets and internal quotation marks omitted). 12. Cf Hunt v. Washington State Apple Adver- tising Comm'n , 432 U.S. 333, 343 (1977) (association's ___________________(footnotes) 12 This analysis applies equally to suits brought by individual officials in the other Branches asserting impairment of their own governmental prerogatives. No one would suppose, for example, that a federal district judge would have standing to challenge statutory restrictions on the jurisdiction of the federal courts. The judge would also lack standing to petition for certiorari from a court of appeals decision reversing one of his rulings. Nor could the head of a Cabinet department assert standing to challenge an allegedly unlawful pres- idential directive regarding the exercise of his official duties. ---------------------------------------- Page Break ---------------------------------------- 25 standing to sue on behalf of its members requires, inter alia, that "its members would otherwise have standing to sue in their own right"). 2. As we explain above (see pages 20-21 & note 11, supra), suits to vindicate generalized public interests may be brought by authorized federal officials acting "in their official capacities"-i.e., on behalf of the government. For two reasons, however, appellees lack standing to sue on that basis. a. Article II of the Constitution entrusts litigation on behalf of the United States to the Executive rather than the Legislative Branch. The "discretionary power to seek judicial relief" is "authority that cannot possibly be re- garded as merely in aid of the legislative function of Con- gress. A lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to 'take Care that the Laws be faithfully executed.' " Buckley v. Valeo, 424 U.S. 1, 138 (1976) (per curiam) (quoting U.S. Const. Art. II, 3). Because Congress "may not 'in- vest itself or its Members with either executive power or judicial power,' " Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 274 (1991) (MWAA) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928)), neither Congress nor its Members may initiate litigation designed to vindicate the general public and governmental interest in the proper administration of federal law. Cf. Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 800 n.10 (1987) (exercise of prose- cutorial power by Congress would "eradicate fundamental separation-of-powers boundaries''). 13 ___________________(footnotes) 13 The Court in Chadha stated that "Congress is the proper party to defend the validity of a [federal] statute when an agency of govern- ---------------------------------------- Page Break ---------------------------------------- 26 Separation-of-powers principles thus foreclose any con- tention that Congress suffers a judicially cognizable im- pairment of its lawmaking function if an Executive Branch official fails to give an enacted law its proper legal effect. Indeed, if Congress retained a judicially cognizable inter- est in the administration of laws that it had enacted, that interest would be equally threatened by private violations as by Executive Branch noncompliance. If Congress could define noncompliance with federal law as an injury to itself or its Members, it could usurp the President's constitu- tional responsibility for the execution of the laws. 14 ___________________(footnotes) ment, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is * * * unconstitutional." 462 U.S. at 940; see also Arizonans Official English v. Arizona, 117 S. Ct. 1055, 1068 n.20 (1997); cf. United States v. Lovett, 328 U.S. 303, 304 (1946) (Con- gress appeared as amicus curiae after Solicitor General filed certiorari petition on behalf of the United States). In Chadha however, the Im- migration and Naturalization Service (INS)-while adhering through- out the litigation to the position that the challenged legislative veto provision was unconstitutional-had appealed from the court of appeals' decision invalidating that provision, and this Court held that the INS was a proper appellant. 462 U.S. at 929-931. In stating that Congress could appropriately appear in such circumstances to defend the consti- tutionality of the legislative veto provision, compare, e.g., Ornelas v. United States, 116 S. Ct. 1657,1661 n.4 (1996) (Court appointed private counsel to appear as amicus curiae in support of the court of appeals' judgment where neither the United States nor the private petitioner espoused the court of appeals' legal theory); Cheng Fan Kwok v. INS, 392 U.S. 206, 210 n.9 (1968) same); Lovett, 328 U.S. at 304, the Court did not suggest that Congress would have had authority to appeal from the court of appeals' decision if the responsible Executive Branch officials had declined to do so. Cf. Young, 481 U.S. at 817 (Scalia, J., concurring in judgment) ("Even complete failure by the Executive to prosecute law violators, or by the courts to convict them, has never been thought to authorize congressional prosecution and trial."). 14 Different considerations may be presented if Congress (or one House thereof) seeks judicial redress in aid of its legislative func- ---------------------------------------- Page Break ---------------------------------------- 27 b. Even if the Line Item Veto Act could be said to impair a distinct institutional interest of Congress itself, separate and apart from the generalized public interest in Executive Branch compliance with the Constitution and laws, appellees would lack standing to sue. A suit brought by an individual Member cannot properly be characterized as one filed on behalf of Congress, at least in the absence of some affirmative congressional action authorizing the Member to sue on its behalf. The federal legislative "[p]ower is not vested in any one individual, but in the aggregate of the members who compose the body, and [Congress's] action is not the action of any separate member or number of members, but the action of the body as a whole." United States v. Ballin, 144 U.S. 1,7 (1892). Cf. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, ___________________(footnotes) tions. See, e.g., 2 U.S.C. 288b(b) (Senate Legal Counsel "shall bring a civil action to enforce a subpoena of the Senate or a committee or sub- committee of the Senate * * * when directed to do so by the adoption of a resolution by the Senate"); cf. McGrain v. Daugherty, 273 U.S. 135, 174 (1927) ("[T]he power of inquiry-with process to enforce it-is an essential and appropriate auxiliary to the legislative function."); Buckley, 424 U.S. at 137-138. The cancellation authority conferred on the President by the Line Item Veto Act, however, effects no interference with Congress's per- formance of its lawmaking functions. The Act desk only with the manner in which appropriations bills will be implemented after they have been enacted into law. That would be true, moreover, even if appellees and the district court were correct in characterizing the President's exercise of cancellation authority under the Act as the power to "repeal" portions of appropriations laws. A purported pres- idential repeal of an enacted law would prevent the law from being faithfully executed, but it would not prevent Congress from performing its own responsibilities. Because Congress has no constitutional role in the execution of enacted laws, see Bowsher, 478 U.S. at 733 ("once Con- gress makes its choice in enacting legislation, its participation ends"), it has no judicially cognizable interest in the Line Item Veto Act's constitutional status. Cf. Buckley, 424 U.S. at 139-140. ---------------------------------------- Page Break ---------------------------------------- 28 544 (1986) (appellant's status as member of school board "does not permit him to 'step into the shoes of the Board' and invoke its right to appeal"; "[g]enerally speaking, members of collegial bodies do not have standing to perfect an appeal the body itself has declined to take"). An Executive Branch official could not sue to vindicate the institutional interests of the agency at which he worked absent some showing of authority to litigate on its behalf. Cf. FEC v. NRA Political Victory Fund, 513 U.S. 88,92-99(1994). Nor could such an official evade the limi- tations on his governmental litigating authority by suing in his own name and recasting the alleged impairment of agency functions as a personal injury to himself. The same principles apply here. Appellees' lack of standing is particularly clear in the instant case. Although appellees allege that the Line Item Veto Act "alter[s] the constitutional balance of powers be- tween the Legislative and Executive Branches," J.A. 12, they do not seek to vindicate the legal or policy judgments of Congress as a whole. To the contrary, their suit in- volves a constitutional challenge to a law that was enacted by Congress and that has been defended in the district court and this Court by the Senate and House of Repre- sentatives as amici curiae. Under those circumstances, appellees cannot plausibly claim to have standing to represent the interests of the Legislative Branch. 15 ___________________(footnotes) 15 Coleman v. Miller, supra, is not to the contrary. In Coleman, 21 (out of 40) state senators brought a mandamus action in the Kansas Supreme Court. 307 U.S. at 436. The gravamen of their suit was that the State's Lieutenant Governor, as presiding officer of the Senate, had improperly cast a tie-breaking vote in support of ratification of a pro- posed amendment to the United States Constitution. Id. at 435-436. The state supreme court entertained the suit on the merits, concluded that the Lieutenant Governor was authorized to cast the deciding vote, and held on that basis that the proposed amendment had been properly ---------------------------------------- Page Break ---------------------------------------- 29 ___________________(footnotes) ratified by the Kansas Legislature. Id. at 437. The plaintiffs then sought review in this Court, which held that "at least the twenty sena- tors whose votes, if their contention were sustained, would have been sufficient to defeat the resolution ratifying the proposed constitutional amendment, have an interest in the controversy which, treated by the state court as a basis for entertaining and deciding the federal ques- tions, is sufficient to give the Court jurisdiction to review that deci- sion." Id. at 446. Four Members of the Court would have held that the plaintiffs lacked standing. See id. at 460 (opinion of Frankfurter, J.). Coleman is distinguishable from the instant case in three significant respects. First, the Court did not address the standing of federal legis- lators, nor did it hold that the plaintiffs would have had standing to bring their suit in federal court; it simply held that it had jurisdiction to review the state supreme court's decision where the plaintiffs' "inter- est in maintaining the effectiveness of their votes" had been "treated by the state court as a basis for entertaining and deciding the federal questions." 307 U.S. at 438, 446. Because the separation-of-powers principles applicable to the federal government are not binding upon the States, see, e.g., Karcher, 484 U.S. at 82 (New Jersey Legislature was properly authorized under state law to represent the State's inter- est in litigation), Coleman is not controlling here. See Moore, 733 F.2d at 959 n.1 (Scalia, J., concurring in result). Second, the votes of the Coleman plaintiffs had legal significance as a bloc, since those votes "would have been sufficient to defeat the resolution" under the plain- tiffs' view of the Constitution. 307 U.S. at 446. The Coleman plaintiffs therefore might plausibly have been regarded as acting on behalf of the legislature, and their entitlement to do so was a matter of state rather than federal law. Finally, Coleman involved an asserted impropriety in the process by which votes were counted within the state legislature, rather than a defect in the administration of a duly enacted law. In the federal sphere, the separation of powers among the Branches and the autonomy of the Senate and House of Representatives on internal matters such as voting ( see U.S. Const. Art. I, 5) preclude recognition of a comparable judicially cognizable interest on the part of individual Members of Congress. ---------------------------------------- Page Break ---------------------------------------- 30 B. Because The President Has Not Yet Exercised His Cancellation Authority Under The Line Item Veto Act, Appellees Can Identify No Actual Or Imminent Injury Even if Members of Congress possessed a judicially cognizable interest in the proper administration of federal law, appellees' suit could not go forward. This Court has emphasized that "[a]llegations of possible future injury do not satisfy the requirements of Art. III. A threatened injury must be certainly impending to constitute injury in fact." Whitmore, 495 U.S. at 158 (internal quotation marks omitted); accord, e.g., Defenders of Wildlife, 504 U.S. at 564 & n.2. 16. Appellees acknowledge (Resp. to J.S. 4) that the President has not yet exercised the cancellation authority conferred by the Line Item Veto Act. Rather, the gravamen of their suit is that the President will, in the future, employ that authority so as to frustrate the proper implementation of appropriations bills enacted by Congress. That claim is too speculative to provide a basis for federal jurisdiction. The Line Item Veto Act, taken alone, has no legal effect on appellees or on any private actor. Nor does the Act restrict Congress's authority in fashioning future appro- priations measures. Congress retains the power to provide that the Act shall not apply to a particular appropriations law. Congress may also provide that the President's cancellation authority does not apply to an ___________________(footnotes) 16 The requirement that a plaintiff's injury be "actual or immi nent, not 'conjectural' or 'hypothetical,' " Whitmore, 495 U.S. at 155 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)), is closely related to the requirement that the claim be "ripe" for adjudication. Cf Reno v. Catholic Social Servs., Inc., 509 U.S. 43, 57 n.18 (1993) (noting that "ripeness doctrine is drawn both from Article III limitations on judicial power and born prudential reasons for refusing to exercise jurisdiction"). ---------------------------------------- Page Break ---------------------------------------- 31 individual line item in an appropriations law that is otherwise subject to the Act. Conversely, Congress may vest the President with broader discretion in the ad- ministration of a particular appropriations bill-e.g., by authorizing him to cancel budgetary items in part rather than in whole, or by permitting him to cancel items after the expiration of the initial five-day period. The Act simply establishes a "default rule," cf. Landgraf v. USI Film Prods., 511 U.S. 244, 272 (1994): it defines the extent of the President's discretion in the administration of appropriations measures in the absence of an express contrary provision contained in a particular law. Thus, even the legal effect of the Line Item Veto Act cannot accurately be assessed until a particular appro- priations bill becomes a law. Only then can the scope of the President's discretion in administering that law be compared to the discretion that he would possess if the Line Item Veto Act were not on the books. The Act's practical consequences, moreover, cannot be determined until the President has exercised his cancellation author- ity. At the present time, it remains unclear when the President will invoke the cancellation authority contained in the Line Item Veto Act; what items of spending, or limited tax benefits, he will choose to cancel; and whether those items will be made effective again through a dis- approval bill. It is, in particular, unclear when or whether legislative measures supported by appellees themselves will be cancelled pursuant to the Act's procedures. Thus, even if a Member of Congress could be said to suffer a judicially cognizable injury through the frustration of his own legislative preferences, no such injury is either pres- ent or imminent in the instant case. In explaining its contrary conclusion, the district court stated that, "[b]ecause [appellees] now find themselves in a position of unanticipated and unwelcome subservience to ---------------------------------------- Page Break ---------------------------------------- 32 the President before and after they vote on appropriations bills, Article III is satisfied." J.S. App. 14a; see also id. at 12a ("Under the Act the dynamic of lawmaking is fun- damentally altered. Compromises and trade-offs by in- dividual lawmakers must take into account the President's item-by-item cancellation power looming over the end pro- duct."). Appellees are free, however, to vote and to parti- cipate in legislative negotiations on the basis of their own stated conviction that the Act is unconstitutional and that any exercise of the President's cancellation authority will therefore be a legal nullity. No alteration in "the dynamic of lawmaking" is compelled by the Line Item Veto Act. Rather, any such change will result from the fact that other participants in the legislative process do not share appellees' view that the Act is constitutionally deficient. See Eastern Kentucky Welfare Rights Org., 426 U.S. at 42 ("case or controversy" requirement is not satisfied where plaintiff's injury "results from the independent action of some third party not before the court''). 17 Legislative deliberations frequently take place against a backdrop of substantial disagreement or uncertainty ___________________(footnotes) 17 The district court's reliance (see J.S. App. 13a) on MWAA was misplaced. Plaintiffs in MWAA asserted that the power of the MWAA's Board of Review to veto actions of the MWAA's Board of Di- rectors was unconstitutional because the Board of Review was com- posed of Members of Congress, in violation of separation-of-powers principles. See 501 U.S. at 259, 262. Plaintiffs filed suit, however, after the Airports Authority had adopted a "master plan" for the con- struction of a new terminal at National Airport. See id. at 261-262. Plaintiffs "alleged that the master plan allows increased air traffic at National [Airport] and a consequent increase in accident risks, noise, and pollution." Id. at 264. Although the Court held that the plain- tiffs were not required to await an actual exercise of the Board of Review's veto power before filing suit, see id. at 265 n.13, it did not suggest that the existence of the veto power was sufficient, standing alone, to constitute an injury in fact. ---------------------------------------- Page Break ---------------------------------------- 33 regarding the existing state of the law. Neither the Pres- ident nor Congress (or its individual Members) could unilaterally obtain an advisory opinion from this Court or a lower federal court regarding the constitutionality y of the Line Item Veto Act, even if the request for such an opinion was motivated by a desire to eliminate legal uncertainty about the manner in which they should exercise their respective powers and responsibilities. See Correspondence of the Justices, reprinted in 3 The Correspondence and Public Papers of John Jay 486-489 (H. Johnston ed. 1891); Muskrat v. United States, 219 U.S. 346, 354 (1911); United States Nat'1 Bank of Oregon v. Independent Ins. Agents of America, Inc., 508 U.S. 439, 446 (1993). That issue is no more suitable for judicial resolution in its present posture merely because several individual Members of Congress have written their re- quest in the form of a complaint and named as defendants two officers of the other political Branch who happen to hold a contrary view of the constitutional question. II. THE LINE ITEM VETO ACT DOES NOT VIO- LATE ARTICLE I OF THE CONSTITUTION A. The Act Does Not Conflict With The Con- stitutional Requirement That The President Approve Or Disapprove In Toto A Bill Present- ed To Him By Congress The Presentment Clause requires that "[e]very Bill" passed by Congress "shall, before it become a Law, be presented to the President." Art. I, 7, Cl. 2. 18. When a bill ___________________(footnotes) 18 Article I actually has two Presentment Clauses: Article I, Sec- tion 7, Clause 2, which applies to "Bill[s]," and Article I, Section 7, Clause 3, which applies to all "Order[s], Resolution[s], or Vote[s] to which the Concurrence of the Senate and House of Representative may be necessary." Clause 3 was adopted to prevent evasion of the presentment requirement "by the simple expedient of calling a pro- posed law a 'resolution' or 'vote' rather than a 'bill.' " Chadha, 462 U.S. ---------------------------------------- Page Break ---------------------------------------- 34 is presented to the President, the Presentment Clause gives him two options: if he "approve[s]" the bill, "he shall sign it," and if he does not approve the bill, "he shall re- turn it, with his Objections to that House in which it shall have originated." Ibid. 19. If the President signs the bill, it becomes a law. If the President instead returns the bill, it does not become law unless two-thirds of each House vote to override the President's veto. As the district court correctly recognized, see J.S. App. 5a-6a & n.3, 18a-19a, the President is required to sign or return, in toto, a bill presented to him by Congress; he is not empowered to sign some portions of the bill and return others. The Line Item Veto Act is consistent with that require- ment. Its title notwithstanding, the Act does not author- ize the President to sign into law some provisions of an appropriations bill while "returning" other provisions to Congress. 20. When a spending bill is presented to the President, he must "sign" or "return" it in toto. By its terms, the Act applies only to "bill[s] or joint resolution[s] that ha[ve] been signed into law pursuant to Article I, section 7, of the Constitution of the United States." ICA ___________________(footnotes) at 947. For the sake of simplicity, we refer exclusively to Clause 2 in the text, but the discussion applies equally to both Presentment Clauses. 19 If the President neither signs the bill nor returns it within ten days, the bill "shall be a Law, in like Manner as if he had signed it," unless Congress has by its adjournment prevented the bill's return, in which case the bill "shall not be a Law." Art. I, 7, Cl. 2; see gener- ally The Pocket Veto Case, 279 U.S. 655 (1929). 20 Although the word "veto" is commonly used to describe the President's power to "return" a disapproved bill to the House of Congress in which it originated, see Chadha, 462 U.S. at 925, the word "veto" does not appear in the Presentment Clause, or anywhere else in the Constitution. The presence of the term in the title of the Act has the same constitutional significance as the absence of the term from the Presentment Clause-none. ---------------------------------------- Page Break ---------------------------------------- 35 1021(a) (2 U.S.C. 691(a)); J.S. App. 32a. When the Pres- ident signs a bill, "[the] bill when so signed becomes from that moment a law." La Abra Silver Mining Co. v. United States, 175 U.S. 423, 454 (1899); United Mates v. Will, 449 U.S. 200,224-225 & n.29 (1980) (President's sig- nature marks "the precise time the statute became law"). Thus, the President's cancellation authority under the Act comes into existence only after the requirements of the Presentment Clause have been satisfied. See H.R. Conf. Rep. No. 491, 104th Cong., 2d Sess. 20 (1996) ("[T]he cancellation authority only becomes effective after the President has exercised the constitutional authority to enact legislation in its entirety."). The district court therefore correctly held that "statutes subject to can- cellation will have been 'approved' [by the President] in accordance with the Presentment Clause." J.S. App. 20a. 21 Because the cancellation authority created by the Act does not prevent any portion of an appropriations bill from becoming law, it is fully consistent with the constitutional requirement that the President sign or return a presented bill in toto. 22 ___________________(footnotes) 21 A bill returned to Congress can be enacted into law if, but only if, it is subsequently approved by two-thirds of each House. U.S. Const. Art. I, 7, Cl. 2. A presidential cancellation pursuant to the Line Item Veto Act, by contrast, can be overturned by new legislation passed by a simple majority of each House, see ICA 1026(6) (2 U.S.C. 691e(6)); J.S. App. 49a-50a, subject to a possible presidential veto and subsequent override. That is the method that Congress is required to employ whenever it disapproves of the manner in which the Executive Branch has exercised discretionary authority conferred by statute. See Chadha, 462 U.S. at 954-955, 958. 22 The requirement that the President must exercise his cancella- tion authority, if at all, within five days after the bill has become law is a proper mechanism by which Congress has limited the authority otherwise conferred by the Act upon the President to control spending. A prompt decision is necessary to avoid the potential disruption of ---------------------------------------- Page Break ---------------------------------------- 36 The cancellation authority vested in the President by the Line Item Veto Act may be similar, in practical effect, to the power that he would possess under a hypothetical statute conferring true item veto (i.e., partial "return") authority. 23. That similarity does not, however, cast doubt upon the Act's constitutional status. The requirements imposed by the Presentment Clause-while designed to protect substantive values, see Chadha, 462 U.S. at 958 n.23 ("The legislative steps outlined in Art. I are not empty formalities.'')-are procedural in nature. So long as ___________________(footnotes) federal spending programs that could arise from belated cancellations. It is hardly unprecedented for federal laws to require the Executive Branch to make determinations and exercise discretionary authority within a strictly limited period of time. For example, the Shipping Act of 1984 gives the President the power to suspend certain rate orders of the Federal Maritime Commission if he determines that a suspension is required "for reasons of national defense or foreign policy," but he must act within ten days after the receipt or effective date of the Commission order. 46 U.S.C, App. 1708(e). Similarly, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 authorized the Attorney General temporarily y to employ specified tran- sitional rules for the detention and release of criminal aliens, but only if she notified Congress within ten days of the enactment of the Act. Pub. L. No. 104-208, Div. C, 303(b)(2), 110 Stat. 3009-586. 23 The president's powers under the Act are markedly less sweep- ing, however, than those he would possess if the Constitution author- ized him to "return" some portions of an appropriations bill while signing other portions into law. The Act expires by its terms on January 1, 2005, see Pub. L. No. 104-130, 5, 110 Stat. 1212 (J.S. App. 69a), and it is subject to amendment or repeal at any time. Moreover, Congress retains the power to exempt particular appropriations bills (or individual items contained therein) from the coverage of the Act, see pages 30-31, supra, and thus retains ultimate control of the manner in which the Act is applied to an individual appropriations law. The Act also identifies certain findings that the President must make, and additional factors that he must consider, before exercising his cancella- tion authority. See pages 10-11, supra pages 44-45, infra. ---------------------------------------- Page Break ---------------------------------------- 37 future appropriations laws are enacted in conformance with those procedural requirements, the Presentment Clause is satisfied. Because the Line Item Veto Act governs the imple- mentation of appropriations statutes after they have be- come law, rather than the process by which they are enacted, the Act presents no genuine Presentment Clause issue. Rather, the Act must be scrutinized under the standards governing statutory grants of discretion to the Executive Branch in its administration of duly enacted laws. The Act operates to make the specified spending and revenue items discretionary, rather than mandatory, where the President finds that the Act's criteria have been met. 24. The Act thus vests the President with authority to determine, in accordance with statutorily prescribed standards and procedures, whether items of spending that Congress has authorized will in fact be spent. As we explain below, that grant of authority is fully consistent both with historical practice and with this Court's precedents. ___________________(footnotes) 24 In discussing the effect of the Act on future spending bills, we use the terms "discretionary" and "mandatory" to distinguish between spending authority that the Executive Branch has discretion not to exercise and spending authority that the Executive Branch is legally obligated to exercise. Those terms are often used in a different sense in the federal budget process "discretionary" spending signifies "pro- grams that are subject to annual funding decisions in the appropria- tions process," while "mandatory" spending (also known as "direct" spending) means "all spending that is made pursuant to laws other than appropriations laws." Senate Comm. on the Budget, 104th Cong., 2d Sess., The Congressional Budget Process: An Explanation 5, 6 (Comm. Print 1996). ---------------------------------------- Page Break ---------------------------------------- 38 B. The Act Is Consistent With The Historical Under- standing Of Congress's Power To Confer Spending Discretion On The Executive Branch "Long settled and established practice is a considera- tion of great weight" in the adjudication of constitutional questions. The Pocket Veto Case, 279 U.S. 655, 689 (1929); see also Mistretta v. United States, 488 U.S. 361,401 (1989) ("'traditional ways of conducting government * * * give meaning' to the Constitution") (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring)). As we explain above, the conferral upon the President of substantial discretion over the expenditure of appropriated funds has been a recurring practice of Congress under the Spending Clause from the beginning of the Republic. See pages 2-6, supra; Cincinnati Soap Co. v. United States, 301 U.S. 308, 322 (1937) ("Appropriation and other acts of Congress are replete with instances of general appropriations of large amounts, to be allotted and expended as directed by des- ignated government agencies."). Congress has sometimes conferred that discretion in individual appropriations acts. At other times Congress has given the President broad authority to withhold appropriated funds on a government-wide basis in order to pursue overarching budgetary goals of Congress's choos- ing. See pages 2-6, supra. When Congress has given the President discretion over appropriated funds, it often has chosen not to impose binding restrictions on how that discretion is to be exercised. Thus, when Congress has passed lump-sum appropriations bills, see Lincoln v. Vigil, 508 U.S. 182,192 (1993), or when it has given the President general authority to reduce government spending below appropriated levels, see pages 5-6, supra, the President has been left largely free to exercise his own judgment ---------------------------------------- Page Break ---------------------------------------- 39 regarding which spending programs to reduce and how much to reduce them. The degree of authority vested in the President has varied from time to time, in response to changing legislative judgments about the need for Executive Branch discretion. The extent of the Executive Branch's spending discretion in any particular instance has always been regarded, however, both by Congress and by the courts, as a matter for Congress itself to decide through the legislative process. The practices of the First Congress regarding Executive Branch spending discretion are particularly instructive. The acts of the First Congress "provide[ ] 'contemporaneous and weighty evidence' of the Consti- tution's meaning since many of the Members of the First Congress 'had taken part in framing that instrument.'" Bowsher v. Synar, 478 U.S. 714, 723-724 (1986) (quoting Marsh v. Chambers, 463 U.S. 783, 790 (1983)). As we ex- plain above (see pages 2-3, supra), the First Congress chose to fund the general operations of the federal govern- ment through lump-sum appropriations acts that did not require the Executive Branch to spend the full amount of the appropriations. See, e.g., Act of Sept. 29, 1789, ch. 23, 1, 1 Stat. 95 (appropriating "a sum not exceeding one hundred and thirty-seven thousand dollars for defraying the expenses of the department of war''). 25. The Members of the First Congress evidently saw no constitutional ___________________(footnotes) 25 The lump-sum appropriations passed by the First Congress did not vest the President with unlimited discretion over the use of the appropriated sums. Other statutes, such as those fixing the salaries of federal officers, required the expenditure of a portion of the appro- priations. See, e.g., Act of Sept. 11, 1789, ch. 13, 1-2, 1 Stat. 67-68 (salaries of executive officers). Nevertheless, Congress left the Pres- ident free to decide how (and whether) to spend the remainder of the appropriated funds. ---------------------------------------- Page Break ---------------------------------------- 40 impediment to vesting the Executive Branch with broad discretion over the disposition of appropriated funds. Viewed against this historical background, the Line Item Veto Act can hardly be characterized as "revolution- ary." J.S. App. 25a. Like its many statutory predecessors, the Act simply gives the President a measure of discretion over the expenditure of appropriated funds, discretion that may be exercised only in accordance with the procedural and substantive limitations imposed by Congress. In sum, the settled historical practices of Congress and the Ex- ecutive Branch regarding spending discretion add "great weight," The Pocket Veto Case, 279 U.S. at 689, to the political Branches' shared judgment that the Line Item Veto Act satisfies the requirements of Article I. C. The Act Does Not Delegate Legislative Power To The President The district court held that the Act violates the Presentment Clause by vesting the President with legis- lative power-specifically, the power to repeal laws. See J.S. App. 24a-26a. That holding is incorrect. When the President employs the cancellation authority conferred by the Act, he is not exercising legislative power, but is carrying out his core Article II function of "faithfully execut[ing]" the laws. 1. The requirements of the Presentment Clause do not apply to the President's administration of enacted laws. As the Court explained in Chadha, "[e]xecutive action under legislatively delegated authority that might re- semble 'legislative' action in some respects is not subject to the approval of both Houses of Congress and the President for the reason that the Constitution does not so require." 462 U.S. at 953 n.16. The lawmaking procedures required by the Presentiment Clause are "not necessary as a check on the Executive's administration of the laws ---------------------------------------- Page Break ---------------------------------------- 41 because his administrative activity cannot reach beyond the limits of the statute that created it-a statute duly enacted pursuant to Art. I, 1, 7." Ibid. When the President acts, "he presumptively acts in an executive or administrative capacity as defined in Art. II." Chadha, 462 U.S. at 951. The Article II character of the President's actions does not change when, as here, the President is exercising discretionary authority in the implementation of federal laws. While Article I vests "[a]ll legislative Powers" in Congress (Art. I, 1), it "do[es] not prevent Congress from obtaining the assistance of its coordinate Branches." Mistretta, 488 U.S. at 372. Instead, Congress is free to "leav[e] a certain degree of discretion to executive * * * actors" in the execution of federal laws. Touby v. United States, 500 U.S. 160, 165 (1991). Accordingly, this Court has long recognized that "no valid objection can be made" to "conferring authority or dis- cretion [on the President] as to * * * execution [of a federal law], to be exercised under and in pursuance of the law." Field v. Clark, 143 U.S. 649, 693-694 (1892) (internal quotation marks omitted). Although Congress may vest the Executive Branch with considerable discretion in the administration of fed- eral laws, it may not-either expressly or in practical effect-delegate to other Branches the "lawmaking func- tion" vested in it by Article I. See, e.g., Loving v. United States, 116 S. Ct. 1737, 1744 (1996) ("[T]he lawmaking func- tion belongs to Congress * * * and my not be conveyed to another branch."); id. at 1752 (Scalia, J., concurring in part and concurring in the judgment) ("Legislative power is nondelegable."); Touby, 500 U.S. at 165. Where Con- gress is alleged to have impermissible delegated its legis- lative powers to other officials, "[t]he focus of controversy * * * has been whether the degree of generality contained in the authorization for exercise of executive or judicial ---------------------------------------- Page Break ---------------------------------------- 42 powers in a particular field is so unacceptably high as to amount to a delegation of legislative powers." Mistretta, 488 U.S. at 419 (Scalia, J. dissenting). The nondelegation doctrine thus protects the separation of powers by en- suring that the President's executive authority is not so broad and unconstrained as to mount to the exercise of legislative power. In applying the nondelegation doctrine, this Court "has deemed it 'constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of th[e] delegated authority.'" Mistretta, 488 U.S. at 372-373 (quoting American Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946)). The touch- stone of analysis is whether Congress has provided an "intelligible principle" for the exercise of executive dis- cretion. Mistretta, 488 U.S. at 372; J. W. Hampton, 276 U.S. at 406. Applying the "intelligible principle" standard, the Court has repeatedly sustained the constitutionality of laws that vest the Executive Branch with discretion over the implementation of federal statutes and pro- grams. 26. The Court has approved grants of discretionary authority "under [statutory] standards phrased in sweep- ing terms," Loving, 116 S. Ct. at 1750, sustaining the constitutionality of laws giving the Executive Branch the authority to regulate broadcast licensing as required ___________________(footnotes) 26 See, e.g., Loving, supra; Touby, supra; Skinner v. Mid-America Pipeline Co., 490 U.S. 212 (1989); Mistretta, supra; FEA v. Algonquin SNG, Inc., 426 U.S. 548 (1976); Lichter v. United States, 334 U.S. 742, 785 (1948); American Power & Light Co., supra Yakus v. United States, 321 U.S. 414 (1944); FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944); NBC v. United States, 319 U.S. 190 (1943) New York Central Securities Corp. v. United States, 287 U.S. 12, 24 (1932); J.W. Hampton, supra Field, supra Synar v. United States, 626 F. Supp. 1374, 1383- 1384 & n.9 (D.D.C.) (per curiam) (three-judge court) (citing cases), aff'd sub nom. Bowsker v. Synar, 478 U.S. 714 (1986). ---------------------------------------- Page Break ---------------------------------------- 43 by "public interest, convenience, or necessity," NBC v. United States, 319 U.S. 190, 194, 225-226 (1943); to approve consolidation of carriers "in the public interest," New York Central Securities Corp. v. United States, 287 U.S. 12, 24 (1932); to recover "excessive profits" on military contracts, Lichter v. United States, 334 U.S. 742, 778-786 (1948); to fix prices that "will be generally fair and equit- able and will effectuate the purposes" of the law, Yakus v. United States, 321 U.S. 414, 420, 426-427 (1944); and to determine "just and reasonable" natural gas rates, FPC v. Hope Natural Gas Co., 320 U.S. 591,600-601 (1944). 2. It is far from clear that congressional appropria- tions of money are subject to the "intelligible principle" standard that generally applies to regulation of private conduct. This Court has observed that "certain categories of administrative decisions * * * traditionally have [been] regarded as 'committed to agency discretion.' " Lincoln, 508 U.S. at 191. "The allocation of funds from a lump-sum appropriation is" one such decision, since "a fundamental principle of appropriations law is that where Congress merely appropriates lump-sum amounts without statutorily restricting what can be done with those funds, a clear inference arises that it does not intend to impose legally binding restrictions." Id. at 192 (internal quota- tion marks omitted). Lump-sum appropriations have been used throughout the Nation's history, and their consti- tutionality "has never been seriously questioned." Cin- cinnati Soap Co., 301 U.S. at 322. So long as the activities on which appropriated funds are spent are themselves authorized by statute, and so long as the Executive Branch adheres to the constitutional directive that "[n]o Money shall be drawn from the Treasury, but in Conse- quence of Appropriations made by Law; Art. I, 9, Cl. 7; see OPM v. Richmond, 496 U.S. 414, 424-425 (1990), we believe that no constitutional infirmity would exist even if ---------------------------------------- Page Break ---------------------------------------- 44 an appropriations statute placed no further constraints on Executive Branch discretion. Even if the "intelligible principle" standard articulated in Mistretta is assumed to apply in this context, however, the Line Item Veto Act places constitutionally sufficient constraints on the Pres- ident's exercise of discretion over federal spending. a. To begin with, the Act permits the President to cancel items only "in whole" ICA 1021(a) (2 U.S.C. 691(a)); J.S. App. 32a, not in part, thereby requiring him to make "an all or nothing decision." H.R. Conf. Rep. No. 491, supra, at 33. And because the Act's "lockbox" feature (see page 10 & note 6, supra) requires that any cancelled amounts be devoted to deficit reduction, there is no author- ity to divert cancelled funds for other purposes. The Act's requirement that each budgetary item must be devoted either to a congressionally defined purpose or to deficit reduction is itself a substantial limitation on the Presi- dent's discretion. b. In addition, the Act provides significant guidance to the President in his choice between those two alterna- tives. The Act permits the President to cancel partic- ular spending and revenue items only if he determines that cancellation will "(i) reduce the Federal budget defi- cit; (ii) not impair any essential Government functions; and (iii) not harm the national interest." ICA 1021(a)(A) (2 U.S.C. 691(a)(A)); J.S. App. 33a. The Act thereby "estab- lishes clear preconditions to Presidential action," FEA v. Algonquin SNG, Inc., 426 U.S. 548, 559 (1976), using cri- teria that are at least as "intelligible" as those previously approved by this Court. See pages 42-43 & note 26, supra. The Act also requires the President to consider "the legislative history, construction, and purposes of the law which contains" the cancelled items as well as "any specific sources of information referenced, in such lawful"; to provide his estimate of the "fiscal, economic, and budget- ---------------------------------------- Page Break ---------------------------------------- 45 ary effect" of the cancellation; to estimate the "effect of the cancellation upon the objects, purposes and programs for which the canceled authority was provided"; and to set forth the geographic distribution of the cancelled spend- ing. ICA 1021(b), 1022(b) (2 U.S.C. 691(b), 691a(b)); J.S. App. 33a-35a. By directing the President to consider those additional matters, Congress has offered further guidance as to the factors that should inform his decision. The re- quirement that the President articulate his assessment of the pertinent criteria provides an additional safeguard against arbitrary action. Cf. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Finally, the Act places a substantial portion of the federal budget outside the scope of the President's cancellation authority altogether, by excluding spending for entitle- ment programs and other "direct spending" that results from previously enacted laws. ICA 1026(8) (2 U.S.C. 691e(8)); J.S. App. 51a ("item of new direct spending" de fined as "any specific provision of law that is estimated to result in an increase in budget authority or outlays for direct spending" over the budgetary "baseline") (emphasis added); see note 4, supra. Because "Congress [has] clearly delineate[d] the general policy, the public agency which is to apply it, and the boundaries of th[e] delegated author- ity;" Mistretta, 488 U.S. at 372-373 (internal quotation marks omitted), the exercise of cancellation authority under the Act represents the Article II power to execute the laws of the' United States, not the legislative power vested in Congress by Article I. 27 ___________________(footnotes) 27 The district court sought to distinguish the Line Item Veto Act from statutes previously upheld by this Court under the nondelegation doctrine on the ground that the Act "hands off to the President author- ity over fundamental legislative choices" and "spares Congress the burden of making those vexing choices of which programs to preserve and which to cut." J.S. App. 27a. The precise import of those state- ---------------------------------------- Page Break ---------------------------------------- 46 3. It is, of course, undisputed that "[a]mendment and repeal of statutes, no less than enactment, must conform with [the lawmaking requirements of] Art. I." Chadha, 462 U.S. at 954. The Line Item Veto Act, however, does not authorize the President to repeal legislation. Instead, by making individual items in spending legislation per- missive rather than mandatory (see page 37, supra), it simply gives the President discretionary authority over the implementation of future appropriations acts. This Court's precedents make clear that this kind of power, exercised pursuant to statutory authorization, is not tan- tamount to legislative repeal under Article I. a. In Field, importers challenged the constitutionality of a section of the Tariff Act of 1890 that authorized the President to "suspend" the Act's provisions (thereby rais- ing tariffs) if the President determined that foreign governments were imposing "reciprocally unequal and unreasonable" tariffs on specified commodities. Act of Oct. 1, 1890, ch. 1244, 3, 26 Stat. 612. The importers argued that the suspension provision unconstitutionally delegated lawmaking power to the President. 143 U.S. at 681. The Court rejected that contention, holding that "[t]he true [constitutional] distinction * * * is between the delegation of power to make the law * * * and ___________________(footnotes) ments is unclear. If the court meant that the fashioning of budgetary priorities is an inherently legislative (and thus nondelegable) function, the court's analysis cannot be squared with Congress's consistent (and heretofore unquestioned) practice of authorizing the Executive Branch to exercise considerable discretion over the expenditure of appropriated funds. Contrary to the district court's apparent belief (see id. at 27a- 28a), it is neither unprecedented nor unconstitutional for Congress to give the President discretion over "which programs to preserve and which to cut." If the district court meant that the discretion conferred by the Line Item Veto Act & standardless or otherwise unduly broad, it was incorrect for the reasons stated at pages 44 -45, supra. ---------------------------------------- Page Break ---------------------------------------- 47 conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law." Id. at 693-694 (internal quotation marks omitted). The Court has also sustained the related congressional practice of vesting the Executive Branch with discretion- ary authority to create exemptions from federal laws or otherwise limit their scope. For example, the former Interstate Commerce Act, while generally prohibiting carriers from offering long-haul discounts, "gave an authority to the Interstate Commerce Commission * * * to grant relief from this prohibition," authority that was "undefined except as the general purposes of that Act implied the basis for affording exemption." Addison v. Holly Hill Fruit Prods., Inc., 322 U.S. 607, 616 (1944). In the Intermountain Rate Cams, 234 U.S. 476, 486-489 (1914), the Court squarely rejected a claim that Congress had conveyed Article I legislative power to the Executive Branch by authorizing the Commission to create exemp- tions from the long-haul discount prohibition. A wide variety of federal laws currently authorize the Executive Branch to suspend their provisions, grant ex- emptions from their requirements, or otherwise modify their operation. 28. When the Executive Branch suspends ___________________(footnotes) 28 See, e.g., Touby, 500 U.S. at 162 (upholding statutory provision that authorizes Attorney General to remove substances from, as well as add substances to, statutory schedules of Controlled Substances Act); Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, Pub. L. No. 104-114, 306(c), 110 Stat. 821-822 (to be codified at 22 U.S.C. 6085(c)) (authorizing President to suspend provision of Helms- Burton Act exposing foreign firms to civil liability for use of con- fiscated American property in Cuba); 5 U.S. C. 5303(b)(1), 5304a(a) (authorizing President to replace statutory formula for federal em- ployee pay increases with formula chosen by President); 10 U.S.C. 7309(b) (authorizing President to make exceptions to ban on foreign construction of military vessells); 15 U.S.C. 78l(h) (authorizing SEC to "exempt in whole or in part any issuer or class of issuers" from ---------------------------------------- Page Break ---------------------------------------- 48 the operation of statutory provisions (as in Field) or otherwise modifies the operation of the statute (as in the Intermountain Rate Cases) pursuant to authority con- veyed in the statute itself, no Presentment Clause problem arises: the President is simply exercising his Article II power to "faithfully execute" the law according to its terms. See Field, 143 U.S. at 693 (President's suspensory power "was apart of the law itself as it left the hands of Congress"). As noted above, the lawmaking pro- cedures of the Presentment Clause are "not necessary as a check on the Executive's administration of the laws because his administrative activity cannot reach beyond the limits of the statute that created it-a statute duly enacted pursuant to Art. I, 1, 7." Chadha, 462 U.S. at 953 n.16. b. The district court found it significant (see J.S. App. 25a) that cancellation under the Act "rescind[s]" discre- tionary budget authority and renders items of new direct spending and limited tax benefits without "legal force or effect." ICA 1026(4)(A)-(C) (2 U.S.C. 691e(4)(A)-(C)); J.S. App. 48a-49a. Contrary to the district court's suggestion, Congress's use of that terminology does not transform the President's cancellation authority into a power of statu- tory repeal. Indeed, this Court has previously discussed with approval statutory provisions phrased in similar terms. In Field for example, this Court cited the example of a customs statute providing that specified tariff acts "shall be repealed" if the President declared that dis- criminatory foreign tariffs had been abolished. See 143 U.S. at 687 (citing Act of May 31, 1830, ch. 219, 2, 4 Stat. 425). Field also cited an import statute authorizing the ___________________(footnotes) specified provisions of Securities Exchange Act of 1934); 47 U.S.C. 227(b)(2) (authorizing FCC to establish exemptions from federal ban on pre-recorded telemarketing calls). ---------------------------------------- Page Break ---------------------------------------- 49 President to "declare the provisions of this act to be inoperative, and the same shall be afterwards inoperative and of no effect from and after thirty days born the date of said proclamation." Id. at 688 (citing Act of Mar. 6, 1866, ch. 12, 2, 14 Stat. 4). Far from regarding those statutes as constitutionally deficient, the Court cited them as historical support for the constitutionality of the tariff act at issue in Field. "See also 28 U.S.C. 2072(b) ("All laws in conflict with" rules of practice and procedure promulgated by this Court "shall be of no further force or effect after such rules have taken effect."); Sibbach v. Wilson & Co., 312 U.S. 1, 10 (1941) Henderson v. United States, 116 S. Ct. 1638, 1644 (1996); Synar v. United States, 626 F. Supp. 1374, 1387 (D.D.C. 1986), aff'd on other grounds sub nom. Bowsher v. Synar, supra. c. Nor does any constitutional infirmity result from the fact that the President's cancellation of a particular item is irrevocable unless overturned by a subsequent disapproval bill. 29. There is, in particular, no basis for the district court's suggestion that this feature of the Line Item Veto Act effects a particularly "expansive * * * delegation[ ] of power." J.S. App. 25a. To the contrary, the discretion thus conferred is plainly narrower than would be the case if the President were authorized to revisit the question whether particular expenditures should be made. ___________________(footnotes) 29 Thus, while the decision whether to undertake a criminal prose- cution "has long been regarded as the special province of the Executive Branch," Heckler v. Chaney, 470 U.S. 821, 832 (1985), prosecutorial officials may by their actions effectively preclude themselves from proceeding in a particular case-e.g., by entering into a plea agree- ment, cf. Santobello v. New York, 404 U.S. 257 (1971), or by failing to obtain an indictment within the statutory limitations period. See also note 22, supra (examples of laws requiring that Executive Branch discretion be exercised, if at all, within a narrow period of time). ---------------------------------------- Page Break ---------------------------------------- 50 d. If a particular appropriations law explicitly gave the President the choice whether to spend or to impound specified sums of money, it could hardly be contended that the President's impoundment of funds effected a repeal of the law or subverted the will of Congress. The fact that the President's cancellation authority is conferred by the Line Item Veto Act rather than by individual appropria- tions laws does not alter the constitutional analysis. As we explain above, the Line Item Veto Act does not estab- lish a rule of law that is binding on a future Congress regardless of legislative intent. Rather, the Act creates a "default rule" that budgetary items within its purview will be discretionary rather than mandatory to the extent pro- vided by the Act. Congress retains the power, however, to render the Act's provisions inapplicable, or otherwise to alter the scope of the President's discretion, with re- spect to any particular appropriations bill. See pages 30- 31, supra. There is consequently no basis for appellees' assertion that, under the Line Item Veto Act, "the President's signature [on an appropriations bill] no longer signifies his approval of the whole [appropriations] Act as one he will faithfully execute." Resp. to J.S. 6. Because Con- gress is presumed to legislate with an awareness of exist- ing law, see, e.g., Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990); Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184 - 185 (1988), an appropriations bill that does not other- wise specify the scope of the President's discretion must be understood to authorize him either to spend, or to cancel, each item covered by the Act. Thus, when the President exercises the cancellation authority conferred by the Act, he is neither repealing an appropriations law nor refusing to "faithfully execute" it; he is administering it in accordance with its terms. ---------------------------------------- Page Break ---------------------------------------- APPENDIX The Presentment Clause of the United States Constitution, Art. I, 7, Cl. 2, provides as follows: Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment pre- vent its Return, in which Case it shall not be a Law. (la) ---------------------------------------- Page Break ---------------------------------------- 51 CONCLUSION The judgment of the district court should b vacated and the case remanded with instructions to dismiss for lack of jurisdiction. Alternatively, the judgment of the district court should be reversed. Respectfully submitted. WALTER DELLINGER Acting Solicitor General FRANK W. HUNGER Assistant Attorney General EDWIN S. KNEEDLER Deputy Solicitor General MALCOLM L. STEWART Assistant to the Solicitor General DOUGLAS N. LETTER SCOTT R. MCINTOSH Attorneys MAY 1997 ---------------------------------------- Page Break ---------------------------------------- No. 96-1671-1 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 FRANKLIN D. RAINES, ET AL., APPELLANTS v. ROBERT C. BYRD, ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JURISDICTIONAL STATEMENT WALTER DELLINGER Acting Solicitor General FRANK W. HUNGER Assistant Attorney General EDWIN S. KNEEDLER Deputy Solicitor General MALCOLM L. STEWART Assistant to the Solicitor General DOUGLAS N. LETTER SCOTT R. MC INTOSH Attorneys Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED The Line Item Veto Act, Pub. L. No. 104-130, 110 Stat. 1200 (to be codified at 2 U.S.C. 691 et seq.), gives the President conditional authority to cancel certain spending and revenue items within five days after a bill containing such items has been enacted into law. The questions presented are as follows: 1. Whether individual Members of Congress have standing to challenge the constitutionality of the Act. 2. Whether the Act violates Article I of the Consti- tution. (I) ---------------------------------------- Page Break ---------------------------------------- II PARTIES TO THE PROCEEDINGS The appellants here, who were the defendants in the district court, are Franklin D. Raines, the Director of the Office of Management and Budget, and Robert E. Rubin, the Secretary of the Treasury. The appel- lees here, who were the plaintiffs below, are Senator Robert C. Byrd, Senator Daniel Patrick Moynihan, Senator Carl Levin, former Senator Mark O. Hatfield, Representative David E. Skaggs, and Representative Henry A. Waxman. ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinion below . . . . 1 Jurisdiction . . . . 1 Constitutional and statutory provisions involved . . . . 2 Statement . . . . 3 The questions presented are substantial . . . . 12 Conclusion . . . . 27 Appendix A . . . . 1a Appendix B . . . . 30a Appendix C . . . . 32a TABLE OF AUTHORITIES Cases: Allen v. Wright, 468 U.S. 737 (1984) . . . . 13, 18 American Power & Light Co. v. SEC, 329 U.S. 90 (1946) . . . . 21 Bender v. Williamsport Area Sch. Dist., 475 U.S. 534 (1986) . . . . 18 Bennett v. Spear, No.95-813 (Mar. 19,1997) . . . . 13 Buckley v. Valeo, 424 U. S. 1 (1976) . . . . 18 City of Los Angeles v. Lyons, 461 U.S. 95 (1983) . . . . 14 City of New Haven v. United States: 634 F. Supp. 1449 (D.D.C. 1986), aff'd, 809 F.2d 900 (D.C. Cir. 1987) . . . . 4 809 F.2d 900 (D.C. Cir. 1987) . . . . 5 FEA v. Algonquin SNG, Inc., 426 U. S. 548 (1976) .. 21 FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944) . . . . 21, 23 Field v. Clark 143 U.S. 649 (1892) . . . . 21 Flast v. Cohen, 392 U.S.83 (1968) . . . . 19 Hunt v. Washington State Apple Advertising Comm'n, 432 U. S. 333 (1977) . . . . 17 INS v. Chadha, 462 U.S. 919 (1983) . . . . 5, 24, 25 J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928) . . . . 21, 22 Laird v. Tatum, 408 U.S. 1(1972) . . . . 18 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page Lichter v. United States, 334 U.S. 742 (1948) . . . . 21, 23 Lincoln v. Vigil, 508 U.S. 182 (1993) . . . . 4, 23 Loving v. United States, 116 S. Ct. 1737 (1996 ) . . . . 20, 22, 26 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) . . . . 13, 14, 16, 18 Mistretta v. United States, 488 U.S. 361 (1989) . . . . 20, 21, 22 Moore v. U.S. House of Representatives, 733 F.2d 946 (D.C. Cir. 1984), cert. denied, 469 U.S. 1106 (1985) . . . . 17, 19 Muskrat v. United States, 219 U.S. 346 (1911) . . . . 19 NBC v. United States, 319 U.S. 190 (1943) . . . . 21, 22 National Treasury Employees Union v. United States, 101 F.3d 1423 (D.C. Cir. & 1996) . . . . 7 New York Central Securities Corp. v. United States, 287 U.S. 12 (1932) . . . . 21, 23 OPM v. Richmond, 496 U.S. 414 (1990) . . . . 23 Reno v. Catholic Social Servs., Inc., 509 U.S. 43 (1993) . . . . 14 Sierra Club v. Morton, 405 U.S. 727 (1972) . . . . 13 Skinner v. Mid-America Pipeline Co., 490 U.S. 212 (1989) . . . . 21 Synar v. United States, 626 F. Supp. 1374 (D.D.C.), aff'd sub nom. Bowsher v. Synar, 478 U.S. 714 (1986) . . . . 21 Touby v. United States, 500 U.S. 160 (1991) . . . . 20, 21 Train v. City of New York, 420 U.S. 35 (1975) . . . . 4, 16, 21 United States v. Richardson, 418 U.S. 166 (1974) . . 16 United States Nat'l Bank of Oregon v. Indepen- dent Ins. Agents of America, Inc., 508 U.S. 439 (1993) . . . . 15 Whitmore v. Arkansas, 495 U.S. 149 (1990) . . . . 9, 12, 14 Yakus v. United States, 321 U.S. 414 (1944) . . . . 21, 23 ---------------------------------------- Page Break ---------------------------------------- V Constitution and statutes: Page U.S. Const.: Art. I . . . . 12, 20, 21, 25, 26 7, Cl. 2 (Presentment Clause) . . . . 2, 3, 10, 25 9, Cl. 7 . . . . 23 Art. II, 3 . . . . 18 Art. III . . . . 10, 12, 15, 17, 18 Act of Sept. 29, 1789, ch. 23, 1, 1 Stat. 95 . . . . 3 Act of Feb. 11, 1791, ch. 6, 1, 1 Stat. 190 . . . . 3 Act of Mar. 3, 1809, ch. 28, 1-2, 2 Stat. 535-536 . . . . 4 Act of May 1, 1820, ch. 52, 5, 3 Stat. 568 . . . . 4 Act of Aug. 26, 1842, ch. 202, 23, 5 Stat. 533 . . . . 4 Act of Feb. 12, 1868, ch. 8, 32, 15 Stat. 36 . . . . 4 Act of Sept. 29, 1987, Pub. L. No. 100-119, 206(a), 101 Stat. 785-786 . . . . 5 Impoundment Control Act of 1974, Pub. L. No. 93-344, Tit. X, 88 Stat. 332 (codified as amended at 2 U.S.C. 681 et seq.) . . . . 4 1011(1), 2 U.S.C. 682 (1) . . . . 4 1011(3), 2 U.S.C. 682(3) . . . . 4 1012, 2 U.S.C. 683 (1982) . . . . 5 1013, 2 U.S.C. 684 (1982) . . . . 5 1021(a), 2 U.S.C. 691(a) . . . . 5, 22, 23 1021(a)(A) 2 U.S.C . . . . 7, 24 1021(a)(B) U.S.C. 691 (a)(B) . . . . 7 1021(c), 2 U.S.C. 691 (c) . . . . 7 1022 (b), 2 U.S.C. 691a (b) . . . . 24 1023 (a), 2 U.S.C. 691b (a) . . . . 7 1023 (b), 2 U.S.C. 691b (b) . . . . 6 1024, 2 U.S.C. 691c . . . . 6 1024 (a), 2 U.S.C. 691c (a) . . . . 6 1024 (b), 2 U.S.C. 691c (b) . . . . 6 1025, 2 U.S.C. 691d . . . . 7 1026 (4) (A), 2 U.S.C. 691e (4)(A) . . . . 6 1026 (4) (B), 2 U.S.C. 691e (4)(B) . . . . 6 1026 (4)(C), 2 U.S.C. 691e (4)(C) . . . . 6 1026 (6), 2 U.S.C. 691e (6) . . . . 7 1026 (7), 2 U.S.C. 691e (7) . . . . 6 1026 (8), 2 U.S.C. 691e (8) . . . . 6 1026 (9), 2 U.S.C. 691e (9) . . . . 6 ---------------------------------------- Page Break ---------------------------------------- VI Statutes-Continued: Page Line Item Veto Act, Pub. L. No. 104-130, 110 Stat. 1200 (to be codified at 2 U.S.C. 691 et seq.) . . . . 2, 3 2, 110 Stat. 1200-1211 (2 U.S.C. 691-691f ) . . . . 5 3(a)(1), 110 Stat. 1211 (2 U.S.C. 692(a)(l)) . . . . 9 3(c), 110 Stat. 1211 (2 U.S.C. 692(c)) . . . . 9 Miscellaneous: 89 Cong. Rec. 10,362 (1943) . . . . 3 Correspondence of the Justices, reprinted in 3 The Correspondence and Public Papers of John Jay (H. Johnston ed. 1891) . . . . 19 H.R. Conf. Rep. No. 491, 104th Cong., 2d Sess. (1996) . . . . 23 H.R. Rep. No. 1797, 81st Cong., 2d Sess. (1950) . . . . 3 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1996 No. FRANKLIN D. RAINES, ET AL., APPELLANTS v. ROBERT C. BYRD, ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JURISDICTIONAL STATEMENT OPINION BELOW The opinion of the district court (App., infra, 1a- 29a) is not yet reported. JURISDICTION The order of the district court was entered on April 10, 1997. A notice of appeal (App., infra, 30a-31a) was filed on April 11, 1997. The jurisdiction of this Court is invoked under Pub. L. No. 104-130, 3(b), 110 Stat. 1211 (App., infra, 57a) (to be codified at 2 U.S.C. 692(b)). (1) ---------------------------------------- Page Break ---------------------------------------- 2 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 1. The Presentment Clause of the United States Constitution, Art. 1, 7, Cl. 2, provides as follows: Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Jour- nal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. 2. The Line Item Veto Act, Pub. L. No. 104-130, 110 Stat. 1200 (to be codified at 2 U.S.C. 691 et seq.), is reproduced at App., infra, 32a-59a. ---------------------------------------- Page Break ---------------------------------------- 3 STATEMENT This case involves a challenge to the constitution- ality of the Line Item Veto Act, Pub. L. No. 104 -130, 110 Stat. 1200 (to be codified at 2 U.S.C. 691 et seq.). Although the authority vested in the President by the Line Item Veto Act has never been exercised, the dis- trict court permitted several Members of Congress to proceed with a constitutional challenge to the Act. On the merits, the court concluded that the Act authorizes the President to "repeal" Acts of Con- gress, in violation of the Presentment Clause, U.S. Const. Art. I, 7, Cl. 2, and is therefore unconstitu- tional. Congress has vested this Court with imme- diate appellate jurisdiction over the district court's decision. App., infra, 57a. 1. Beginning in 1789, and continuing into the Nineteenth and Twentieth Centuries, Congress es- tablished the basic practice of passing appropriations laws that provide for expenditures "not exceeding" specified amounts. See, e.g., Act of Sept. 29, 1789, ch. 23, 1, 1 Stat. 95; Act of Feb. 11, 1791, ch. 6, 81, 1 Stat. 190. By appropriating funds "not exceeding" fixed amounts, Congress left the Executive Branch with discretion to spend less than the appropriated amount if the full measure of the appropriation proved unnec- essary. See, e.g., H.R. Rep. No. 1797, 81st Cong., 2d Sess. 9 (1950) ("Appropriation of a given amount for a particular activity constitutes only a ceiling upon the amount which should be expended for that activity."); 89 Cong. Rec. 10,362 (1943) (Sen. Truman) ("When the Congress appropriates funds * * * none of us hold[s] that we give a mandate to expend the funds appropri- ated."). In addition, from an early date, Congress con- ferred further discretion over spending by authoriz- ---------------------------------------- Page Break ---------------------------------------- 4 ing the transfer of appropriated funds within depart- ments of the Executive Branch. See, e.g., Act of Mar. 3, 1809, ch. 28, 1-2, 2 Stat. 535-536; Act of May 1, 1820, ch. 52, 5, 3 Stat. 568; Act of Aug. 26, 1842, ch. 202, 23, 5 Stat. 533; Act of Feb. 12, 1868, ch. 8, 2, 15 Stat. 36 (repealing transfer authority). Congress gives the Executive Branch Similar discretion when- ever it passes "lump-sum" appropriations bills. See Lincoln v. Virgil, 508 U.S. 182, 191-192 (1993). During the early 1970s, the Nixon Administration attempted to assert broad Executive Branch control over spending by impounding funds that had been appropriated for a wide variety of federal programs. That effort led to a series of lawsuits challenging various impoundments. See City of New Haven v. United States, 634 F. Supp. 1449, 1454-1455 (D.D.C. 1986) (summarizing cases), aff'd, 809 F.2d 900 (D.C. Cir. 1987). The courts resolved those disputes by construing the applicable appropriations statutes to determine whether Congress intended for the Presi- dent to have discretion whether or not to expend the impounded funds. See, e.g., Train v. City of New York, 420 U.S. 35, 44-46 (1975). In response to the impoundment controversy, Con- gress enacted the Impoundment Control Act of 1974 (ICA), Pub. L. No. 93-344, Tit. X, 88 Stat. 332 (codified as amended at 2 U.S.C. 681 et seq.). The Impoundment Control Act distinguishes between two forms of impoundment: deferrals (delays in spending during the course of a fiscal year) and rescissions (perma- nent withholding of appropriated funds). See 2 U.S.C. 682(1) and (3). The Act authorized the President to engage in deferrals but made that authority subject ---------------------------------------- Page Break ---------------------------------------- 5 to a one-House legislative veto. 2 U.S.C. 684 (1982). 1 The Act prohibited the President from engaging in unilateral rescissions. Instead, it authorized the President to propose rescissions to Congress under a mechanism for expedited legislative consideration. 2 U.S.C. 683 (1982). 2. The Line Item Veto Act, enacted in April 1996 as an amendment to the Impoundment Control Act, is designed to enhance the limited rescission authority provided in that Act. Once a bill or joint resolution "has been signed into law pursuant to Article I, section 7, of the Constitution of the United States," the Line Item Veto Act gives the President the authority to "cancel in whole" specific spending and revenue items contained in that law. ICA 1021(a) (2 U.S.C. 691(a)); App., infra, 32a. 2 The President's authority under the Act extends to three budgetary categories: "dollar amount[s] of dis- cretionary budget authority," "item[s] of new direct spending," and "limited tax benefit[s]." ICA 1021(a) (2 U.S.C. 691(a)) App., infra, 32a-33a. A "dollar amount of discretionary budget authority" is the en- tire amount specified for one purpose in an appropria- tions law, accompanying committee report or state- ___________________(footnotes) 1 This Court's decision in INS v. Chadha, 462 U.S. 919 (1983), made clear that the Impoundment Control Act's leg- islative veto provision was unconstitutional. See City of New Haven v. United States, 809 F.2d 900, 905 (D.C. Cir. 1987) (government conceded unconstitutionality of Section 684's leg- islative veto provision). Congress subsequently amended the Act to eliminate that provision. Act of Sept. 29, 1987, Pub. L. No. 100-119, 206(a), 101 Stat. 785-786. 2 Section 2 of the Line Item Veto Act added a new Part C to the Impoundment Control Act. The citations in the text to "ICA" are to Sections of that new Part C. ---------------------------------------- Page Break ---------------------------------------- 6 ment of managers, or authorizing law. ICA 1026 (7) (2 U.S.C. 691e(7)); App., infra, 50a-51a. An "item of new direct spending" is a specific provision that will result in "an increase in budget authority or outlays" for entitlements, food stamps, or other programs funded other than through annual appropriations. ICA 1026 (8) (2 U.S.C. 691e(8)); App., infra, 51a. A "limited tax benefit" is a revenue-losing provision that gives a tax reduction to 100 or fewer beneficiar- ies, or a provision that provides "temporary or perma- nent transitional relief" to ten or fewer beneficiaries. ICA 1026(9) (2 U.S.C. 691e(9)); App., infra, 52a-54a. Cancellation of a dollar amount of discretionary budget authority operates to rescind that authority. ICA 1026(4)(A) (2 U.S.C. 691e(4)(A)); App., infra, 48a. Cancellation of an item of new direct spending or a limited tax benefit prevents the cancelled spending or revenue provision from having "legal force or effect." ICA 1026(4)(B) and (C) (2 U.S.C. 691e(4)(B) and (C)); App., infra, 48a-49a. The President may not use cancelled funds for any purpose other than deficit reduction. ICA 1023(b), 1024 (2 U.S.C. 691b(b), 691c); App., infra, 36a-39a. Deficit reduction is ac- complished through a statutory "lockbox" procedure, under which the Office of Management and Budget (OMB) must calculate the deficit reduction from the cancellation and "lock in" the savings by adjusting the calculations submitted to Congress under the Gramm-Rudman-Hollings Act. ICA 1024(a) and (b) (2 U.S.C. 691c(a) and (b)); App., infra, 37a-38a. The President is authorized to cancel an item if he determines that doing so will "(i) reduce the Federal budget deficit; (ii) not impair any essential Govern- ment functions; and (iii) not harm the national ---------------------------------------- Page Break ---------------------------------------- 7 interest." ICA 1021(a)(A) (2 U.S.C. 691(a)(A)); App., infra, 33a. The President must notify Congress of any cancellation within five calendar days after the enactment of the law providing the item that is being cancelled. ICA 1021(a)(B) (2 U.S.C. 691(a)(B)); App., infra, 33a. A cancellation under the Act, takes effect upon Con- gress's receipt of the President's notification. ICA 1023(a) (2 U.S.C. 691b(a)); App., infra, 36a. The Act provides for highly expedited consideration by each House of Congress of a bill to set aside a cancella- tion after receipt of the President's notification. ICA 1025, 1026(6) (2 U.S.C. 691d, 691e(6)); App., infra, 39a-47a, 49a-50a. If a disapproval bill is enacted into law, all disapproved cancellations become null and void and the cancelled items become effective. ICA 1023(a) (2 U.S.C. 691b(a)); App., infra, 36a. A dis- approval bill, if it becomes law, is not subject to the President's cancellation authority under the Act. ICA 1021(c) (2 U.S.C. 691(c)); App., infra, 34a. 3. The Line Item Veto Act took effect on January 1, 1997. See App., infra, 2a, 58a-59a. Appellees-six Members of Congress, one of whom has since left office-filed suit the following day. 3. They named as defendants Franklin D. Raines, the Director of OMB, and Robert E. Rubin, the Secretary of the Treasury. Complaint at 1; see App., infra, 2a. 4. Appel- ___________________(footnotes) 3 A similar constitutional challenge was brought by a federal labor union immediately after the Act was signed into law in April 1996. That action was dismissed on standing and ripeness grounds. See National Treasury Employees Union v. United States, 101 F.3d 1423 (D.C. Cir. 1996). 4 Appellees alleged that "defendant Raines is responsible for executing the President's cancellations of budgetary and spending authority under the Act," and that " defendant Rubin ---------------------------------------- Page Break ---------------------------------------- 8 lees alleged that "the Act confers on the President powers of veto, revision, and repeal of federal law that violate Article I of the Constitution." Complaint at 2 ( "Par" 1). They further alleged that [t]he Act directly and concretely injures [appel- lees], in their official capacities, by (a) altering the legal and practical effect of all votes they may cast on bills containing such separately vetoable items, (b) divesting [appellees] of their constitutional role in the repeal of legislation, and (c) altering the constitutional balance of powers between the Legislative and Executive Branches, both with respect to measures con- taining separately vetoable items and with re- spect to other matters coming before Congress. Id. at 4-5("Par" 14). The complaint did not allege that the President had exercised his cancellation authority under the Act. 4. The district court denied the government's motion to dismiss the complaint and entered summary judgment in favor of appellees. App., infra, 1a-29a. a. The district court first held that appellees had standing to bring their suit. App., infra, 9a-12a. The court relied on prior D.C. Circuit decisions holding that Members of Congress have "standing to chal- lenge measures that affect their constitutionally prescribed lawmaking powers," although it recog- nized that "the Supreme Court has never endorsed ___________________(footnotes) is responsible for executing the President's cancellations of 'limited tax benefits' under the Act and for executing and enforcing the tax laws of the United States." Complaint at 3-4 ( "Par" 11-12). ---------------------------------------- Page Break ---------------------------------------- 9 the Circuit's analysis of standing in such cases." Id. at 10a-11a. Applying those circuit precedents, the district court held that "[appellees'] claim of injury in this case, namely, that the Act dilutes their Article I voting power, is likewise of the kind that suffices to confer standing under Article III." Id. at 1la. By virtue of the Act, the court explained, "[appellees'] votes mean something different from what they meant before, for good or ill, and [appellees] who perceive it as the latter are thus 'injured' in a constitutional sense whenever an appropriations bill comes up for a vote, whatever the President ultimately does with it." Id. at 11a-12a. The district court also held that appellees' claims were ripe for adjudication despite the fact that the President had not yet exercised any cancellation authority under the Act. App., infra, 12a-15a. The court explained that, "[b]ecause [appellees] now find themselves in a position of unanticipated and unwel- come subservience to the President before and after they vote on appropriations bills, Article III is satis- fied." Id. at 14a. The court noted as well that "the budgetary process is already underway," and that "appropriations votes are inevitable, and 'certainly impending.'" Ibid. (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). 5 ___________________(footnotes) 5 Section 3(a)(1) of the Line Item Veto Act expressly authorizes suits by Members of Congress challenging the constitutionality of any provision of the Act. App., infra, 56a (2 U.S.C. 692(a)(l)). Section 3(c) of the Act directs both the district court and this Court to expedite disposition of such suits "to the greatest possible extent." Id. at 57a (2 U.S.C. 692(c)). The district court construed those provisions as ren- dering inapplicable any prudential constraints on the court's ---------------------------------------- Page Break ---------------------------------------- 10 b. On the merits, the district court concluded that the Line Item Veto Act is unconstitutional. App., infra 16a-29a. The court first observed that, under the Presentment Clause, U.S. Const. Art. 1, 7, Cl. 2, the President must approve or disapprove in toto any bill passed by both houses of Congress. App., infra, 18a. The court acknowledged that any appropriations law whose provisions are subject to cancellation under the Act "will have been 'approved' in accordance with the Presentment Clause." Id. at 20a. The court concluded, however, that, "following approval [of an appropriations bill], a cancellation by the President is a legislative repeal that itself must comply with Presentment Clause procedures." Ibid. The court reasoned: Where the President signs a bill but then pur- ports to cancel parts of it, he exceeds his consti- tutional authority and prevents both Houses of Congress from participating in the exercise of lawmaking authority. The President's cancella- tion of an item unilaterally effects a repeal of statutory law such that the bill he signed is not the law that will govern the Nation. That is precisely what the Presentment Clause was de- signed to prevent. Id. at 21a-22a. The district court also acknowledged that the President may be vested with discretionary authority to impound, or to decline to spend, funds previously appropriated by Congress. App., infra, 22a-23a. Ap- pellants contended that the President's cancellation ___________________(footnotes) exercise of jurisdiction, leaving only the requirements of Article III. See id. at 9a n.5, 14a n.8, 16a. ---------------------------------------- Page Break ---------------------------------------- 11 authority under the Act is simply a form of prospec- tive impoundment authority, one that makes individ- ual spending items in an appropriations law dis- cretionary rather than mandatory for a limited period following the law's enactment. The district court rejected that argument, stating that cancellation under the Act "is simply not the same thing as impoundment," but instead "is equivalent to repeal" of the underlying appropriations law. Id. at 24a-25a. The court explained: Cancellation forever renders a provision of federal law without legal force or effect, so the President who canceled an item and his succes- sors must turn to Congress to reauthorize the foregone spending. Whereas delegated author- ity to impound is exercised from time to time, in light of changed circumstances or shifting executive (or legislative) priorities, cancella- tion occurs immediately and irreversibly. Id. at 25a. The court also sought to distinguish the Line Item Veto Act from statutes previously upheld by this Court on the ground that, in its view, the Act "hands off to the President authority over funda- mental legislative choices" and "spares Congress the burden of making those vexing choices of which programs to preserve and which to cut." Id. at 27a. ---------------------------------------- Page Break ---------------------------------------- 12 THE QUESTIONS PRESENTED ARE SUBSTANTIAL The district erred both in holding that appellees' objections to the Line Item Veto Act are justifiable in an Article III court and in declaring the Act to be unconstitutional. Members of Congress have no judi- cially cognizable interest in the operation or the out- come of the legislative process. Judicial interven- tion is particularly unwarranted where, as here, the President has yet to take any action that is claimed to offend Article I. Appellees' request for a declaration by the district court that the Act is unconstitutional is not a "Case" or "Controversy" within the meaning of Article III; it is a classic request for an advisory opinion. If the Court were nevertheless to find this case justifiable, the judgment of the district court should be set aside on the merits. Contrary to the district court's holding, the Line Item Veto Act does not authorize the President to "repeal" any portion of a validly enacted federal law. Rather, the Act is simply the latest exercise of Congress's long-standing and well-settled power to vest the Executive Branch with discretion over the expenditure of appropriated funds. 1. Article III of the Constitution confines the jurisdiction of the federal courts to actual "Cases" and "Controversies," and "the doctrine of standing serves to identify those disputes which are appropri- ately resolved through the judicial process." Whit more v. Arkansas, 495 U.S. 149, 155 (1990). To satisfy the "case" or "controversy" require- ment of Article III, which is the "irreducible constitutional minimum" of standing, a plaintiff must, generally speaking, demonstrate that he has suffered "injury in fact," that the injury is ---------------------------------------- Page Break ---------------------------------------- 13 "fairly traceable" to the actions of the defen- dant, and that the injury will likely be redressed by a favorable decision. Bennett v. Spear, No. 95-813 (Mar. 19, 1997), slip op. 6. "[T]he 'case or controversy' requirement defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Govern- ment is founded." Allen v. Wright, 468 U.S. 737, 750 (1984). "This Court has repeatedly held that an as- serted right to have the Government act in accor- dance with law is not sufficient, standing alone, to confer jurisdiction on a federal court." Id. at 754. The "require[ment] that the party seeking review be himself among the injured," Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992) (quoting Sierra Club v. Morton, 405 U.S. 727,735 (1972)), ensures that the federal courts are confined to determining "the rights of individuals" and do not usurp the role of the political branches in "[v]indicating the public in- terest (including the public interest in Government observance of the Constitution and laws)," id. at 576. The complaint in this case alleges that [t]he Act directly and concretely injures [appel- lees], in their official capacities, by (a) altering the legal and practical effect of all votes they may cast on bills containing such separately vetoable items, (b) divesting [appellees] of their constitutional role in the repeal of legislation, and (c) altering the constitutional balance of powers between the Legislative and Executive Branches, both with respect to measures con- taining separately vetoable items and with re- spect to other matters coming before Congress. ---------------------------------------- Page Break ---------------------------------------- 14 Complaint at 4-5 ("Par" 14). For two reasons, appellees' asserted injuries are insufficient to satisfy the case or controversy requirement. a. This Court has emphasized that "[a]llegations of possible future injury do not satisfy the requirements of Art. III. A threatened injury must be certainly impending to constitute injury in fact." Whitmore, 495 U.S. at 158 (internal quotation marks omitted); accord, e.g., Defenders of Wildlife, 504 U.S. at 564 & n.2. 6. The gravamen of appellees' suit is that the President will, in the future, employ the authority conferred by the Line Item Veto Act so as to ef- fect what they characterize as a partial "repeal" of appropriations laws enacted by Congress. Even if Members of Congress possessed a judicially cogniza- ble interest in the proper administration of federal law, appellees' claims would be far too speculative to provide a basis for federal jurisdiction. At the present time, it remains unclear when the President will invoke the cancellation authority contained in the Line Item Veto Act; what items of spending, or limited tax benefits, he will choose to cancel; and whether those items will be reenacted into law through a disapproval bill. It is, in particular, unclear when or whether legislative measures sup- ported by appellees themselves will be cancelled pur- suant to the Act's procedures. Thus, even if a ___________________(footnotes) 6 The requirement that a plaintiff's injury be "actual or imminent, not 'conjectural' or 'hypothetical,'" Whitmore, 495 U.S. at 155 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)), is closely related to the requirement that the claim be "ripe" for adjudication. Cf. Reno v. Catholic Social Servs., Inc., 509 U.S. 43, 57 n.18 (1993) (noting that "ripeness doctrine is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction"). ---------------------------------------- Page Break ---------------------------------------- 15 Member of Congress could be said to suffer a judi- cially cognizable injury through the frustration of his own legislative preferences, no such injury is either present or imminent in the instant case. 7 b. Even if this suit had been brought as a challenge to an actual exercise of the President's cancellation authority, appellees would lack standing. This Court has consistently held that a plaintiff raising only a generally available grievance about government- claiming only harm to his and every citizen's interest in proper application of the Constitution ___________________(footnotes) 7 In explaining its contrary conclusion, the district court stated that, "[b]ecause [appellees] now find themselves in a position of unanticipated and unwelcome subservience to the President before and after they vote on appropriations bills, Article III is satisfied." App., infra, 14a; see also id. at 12a ("Under the Act the dynamic of lawmaking is fundamentally altered. Compromises and trade-offs by individual lawmakers must take into account the President's item-by-item cancella- tion power looming over the end product."). Appellees are free, however, to vote and to participate in legislative negotia- tions on the basis of their own stated conviction that the Act is unconstitutional and that any exercise of the President's cancellation authority will therefore be a legal nullity. No alteration in "the dynamic of lawmaking" is compelled by the Line Item Veto Act. Rather, any such change will result from the fact that other participants in the legislative process do not share appellees' view that the Act is constitutionally deficient. Legislative deliberations frequently take place, however, against a backdrop of substantial disagreement or uncertainty regarding the existing state of the law. Article III's proscrip- tion on the issuance of advisory opinions by the federal courts, see, e.g., United States Nat'1 Bank of Oregon v. Independent Ins. Agents of America, Inc., 508 U.S. 439, 446 (1993), may not be evaded by characterizing that uncertainty as a current injury to Members of Congress. See page 19, infra. ---------------------------------------- Page Break ---------------------------------------- 16 and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large-does not state an Article III case or controversy. Defenders of Wildlife, 504 U.S. at 573-574. A pri- vate plaintiff could, of course, establish the existence of a case or controversy by demonstrating that the cancellation of a particular budget item (or limited tax benefit) would adversely affect his own economic interests. See, e.g., Train v. City of New York, 420 U.S. 35, 40 (1975). A member of the public could not, however, obtain judicial review of an exercise of the President's cancellation authority merely by alleging that the cancellation had improperly negated the vote of his own Senator or Representative; that it had sub- verted the will of Congress; or that it had impermis- sible shifted the balance of power between the Legis- lative and Executive Branches. Any such allegation would present a "generalized grievance" plainly in- susceptible of judicial resolution. United States v. Richardson, 418 U.S. 166,171 (1974). Appellees' claim to standing thus rests on the premise that a Member of Congress has a judicially cognizable interest in the proper performance of his legislative duties, in the execution of an Act of Con- gress, or in the maintenance of the constitutionally prescribed balance of power between the President and Congress, even though his constituents possess no such interest. That premise is contrary to first principles of representative democracy. As then- Judge Scalia explained, no officers of the United States, of whatever Branch, exercise their governmental powers as personal prerogatives in which they have a ---------------------------------------- Page Break ---------------------------------------- 17 judicially cognizable private interest. They wield those powers not as private citizens but only through the public office which they hold. What- ever the realities of private ambition and vainglory may be, in contemplation of law their personal interest in full and unfettered exercise of their authority is no greater than that of all the citi- zens for whose benefit (and not for the personal benefit of the officeholder) the authority has been conferred. Moore v. U.S. House of Representatives, 733 F.2d 946, 959 (D.C. Cir. 1984) (Scalia, J., concurring in result), cert. denied, 469 U.S. 1106 (1985). Because Members of Congress exercise their powers as representatives and servants of the people, any impairment of their legislative functions causes them no injury that is not shared by the public generally. Cf. Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977) (association's standing to sue on behalf of its members requires, inter alia, that "its members would otherwise have standing to sue in their own right''). 8 ___________________(footnotes) 8 This is not to say that impairment of effective govern- ance can never give rise to the sort of "injury" that is re- dressable by an Article III court. An Executive Branch official who is authorized to conduct litigation on behalf of the gov- ernment can assuredly file suit, or appeal adverse rulings, to vindicate the governmental and public interest in the effective administration of federal law. That is quite different, how- ever, from the proposition that an individual official himself suffers a judicially cognizable injury through the impairment of governmental functions. Any claim to standing of an individual Member of Congress is thus subject to two distinct objections. First, litigation on behalf of the United States is entrusted to the Executive rather ---------------------------------------- Page Break ---------------------------------------- 18 A holding that an individual Member has a personal interest in the operation or outcome of the legislative process that can be vindicated by an Article III court would also subvert the separation of powers principles that the case or controversy requirement is intended to serve. That requirement ensures that the Judicial Branch does not exercise a general superintendence over the workings of the federal government. See Allen, 468 U.S. at 760 (explaining that abandonment of standing requirements "would have the federal courts as virtually continuing monitors of the wisdom and soundness of Executive action") (quoting Laird v. Tatum, 408 U.S. 1, 15 (1972)). Rather, the federal courts are to resolve constitutional and other legal issues only in the course of determining "the rights of individuals." Defenders of Wildlife, 504 U.S. at 576. To hold that a Member's interest in the proper operation of the legislative process is itself an indi- ___________________(footnotes) than the Legislative Branch. The "discertionary power to seek judicial relief" is "authority that cannot possibly be regarded as merely in aid of the legislative function of Congress. A law- suit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitu- tion entrusts the responsibility to 'take Care that the Laws be faithfully executed.' " Buckley v. Valeo, 424 U.S. 1, 138 (1976) (per curiam) (quoting U.S. Const. Art. II, 3). Second, a suit brought by an individual Member cannot properly be characterized as one filed on behalf of Congress (let alone the United States), particularly where (as here) the suit attacks the constitutionality of a federal statute. Cf. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 544 (1986) (appel- lant's status as member of school board "does not permit him to 'step into the shoes of the Board' and invoke its right to appeal"; "[g]enerally speaking, members of collegial bodies do not have standing to perfect an appeal the body itself has declined to take"). ---------------------------------------- Page Break ---------------------------------------- 19 vidual right would effectively negate that limitation. See Moore, 733 F.2d at 959 (Scalia, J., concurring in result). The terms "Cases" and "Controversies" were in- tended by the Framers to confine the federal courts to resolving those disputes that "are traditionally thought to be capable of resolution through the judi- cial process." Flast v. Cohen, 392 U.S. 83, 97 (1968). The personal disagreement by individual Members of Congress with the considered judgment of the President and of Congress as a whole regarding the validity of an Act of Congress is plainly not within the traditional purview of the courts. Neither the President nor Congress (or its individual Members) could unilaterally obtain an advisory opinion from this Court or a lower federal court regarding the constitutionality of the Line Item Veto Act, even if the request for such an opinion was motivated by a desire to eliminate legal uncertainty about the man- ner in which they should exercise their respective powers and responsibilities. See Correspondence of the Justices, reprinted in 3 The Correspondence and Public Papers of John Jay 486-489 (H. Johnston ed. 1891); Muskrat v. United States, 219 U.S. 346, 354 (1911). That issue is no more suitable for judicial resolution in its present posture merely because several individual Members of Congress have written their request in the form of a complaint and named as defendants two officers of the other political Branch who happen to hold a contrary view of the consti- tutional question. 9 ___________________(footnotes) 9 It is, moreover, the President, not the Director of OMB or the Secretary of the Treasury, in whom the Act vests the power to cancel items of spending or limited tax benefits. ---------------------------------------- Page Break ---------------------------------------- 20 There is, finally, no principled limitation on the theory that Members of Congress have a judicially cognizable interest in the operation or outcome of the legislative process. Any contention that the Presi- dent's conduct violates statutory requirements or prohibitions can be recast as a claim that the votes of Members of Congress have been nullified. Presiden- tial action that is alleged to transgress the Consti- tution can frequently be characterized as shifting the balance between the Executive and Legislative Branches. And any statutory assignment of power to the President can be said to affect future interactions between the political Branches, since the President will have no incentive to negotiate for authority that he already possesses. The district court erred in rec- ognizing such an unprecedented expansion of power in the federal courts. 2. The district court also erred in concluding that the Line Item Veto Act violates the Presentment Clause. a. Although Article I of the Constitution vests "[a]ll legislative Powers" in Congress, it "do[es] not prevent Congress from obtaining the assistance of its coordinate Branches" in furtherance of its respon- sibilities. Mistretta v. United States, 488 U.S. 361, 372 (1989). Congress is therefore free to "leav[e] a certain degree of discretion to executive or judicial actors" in the execution of federal laws. Touby v. United States, 500 U.S. 160, 165 (1991). This Court has repeatedly sustained the constitutionality of laws that vest the Executive Branch with discretion over the implementation of federal statutes and programs, notwithstanding claims that Congress had imper- missible "delegated" its legislative powers. See, e.g., Loving v. United States, 116 S. Ct. 1737 (1996); Touby, ---------------------------------------- Page Break ---------------------------------------- 21 supra; Skinner v. Mid-America Pipeline Co., 490 U.S. 212 (1989); Mistretta, supra; FEA v. Algonquin SNG, Inc., 426 U.S. 548 (1976); Lichter v. United States, 334 U.S. 742, 785 (1948); American Power & Light Co. v. SEC, 329 U.S. 90 (1946); Yakus v. United States, 321 U.S. 414 (1944); FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944); NBC v. United States, 319 U.S. 190 (1943); New York Central Securities Corp. v. United States, 287 U.S. 12 (1932); J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928); Field v. Clark, 143 U.S. 649 (1892); Synar v. United States, 626 F. Supp. 1374, 1383-1384 & n.9 (D. D. C.) (per curi- am) (three-judge court) (citing cases), aff 'd sub nom. Bowsher v. Synar, 478 U.S. 714 (1986). As we have explained above, Executive Branch dis- cretion has long been an integral part of Congress's exercise of its spending powers under Article I. See pages 3-4, supra. Although the withholding of appro- priated funds has frequently engendered litigation, the point of dispute invariably has been one of statu- tory construction-i.e., whether Congress in fact gave the Executive Branch authority to withhold the contested funds. See, e.g., Train, 420 U.S. at 44-46. The political Branches and the courts have shared the assumption that Congress is free to confer that au- thority if it wishes to do so. The Line Item Veto Act is simply the latest chapter in Congress's efforts to enlist the Executive Branch's assistance in controlling spending by giving the President discretionary authority over federal expenditures. By virtue of the Act, the President may decline to give effect to specified spending and revenue items in a federal law, during a brief period following the law's enactment, if the President deter- mines that canceling a particular item will "reduce ---------------------------------------- Page Break ---------------------------------------- 22 the Federal budget deficit," will not "impair any essential Government functions," and will not "harm the national interest." ICA 1021(a)(A) (2 U.S.C. 691(a)(A)); App., infra, 33a. The Act operates to make the specified spending and revenue items discre- tionary, rather than mandatory, where the President finds that the Act's criteria have been met. For purposes of Article I, the Line Item Veto Act is no different from any other federal statute that gives the President discretion to decide whether or not to expend funds that have been appropriated by Congress. b. When Congress vests the Executive Branch with discretion over the implementation of federal laws, the nondelegation doctrine generally provides the constitutional standards that govern the per- missible scope of the Executive Branch's role. The touchstone of the nondelegation doctrine is whether Congress has provided an "intelligible principle" by which the executive discretion may be exercised. Mistretta, 488 U.S. at 372; J.W. Hampton, 276 U.S. at 406. This Court "has deemed it constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of th[e] delegated authority." Mis- tretta, 488 U.S. at 372-373 (internal quotation marks omitted). Under that approach, the Court has fre- quently "upheld * * * delegations under standards phrased in sweeping terms." Loving, 116 S. Ct. at 1750. 10 ___________________(footnotes) 10 For example the Court has sustained the constitutional- ity of statutes giving the Executive Branch the authority to regulate broadcast licensing as required by "public interest, convenience, or necessity" (NBC, 319 U.S. at 194, 225-226); to ---------------------------------------- Page Break ---------------------------------------- 23 The Line Item Veto Act places constitutionally sufficient constraints on the President's exercise of discretion over federal spending. 11. To begin with, the Act permits the President to cancel items only "in whole" (ICA 1021(a) (2 U.S.C. 691(a)); App., infra, 32a), not in part, thereby requiring him to make "an all or nothing decision." H.R. Conf. Rep. No. 491, 104th Cong., 2d Sess. 33 (1996). And because the Act's ___________________(footnotes) approve consolidation of carriers "in the public interest" (New York Central Securities Corp., 287 U.S. at 16, 24); to recover "excessive profits" on military contracts (Licher, 334 U.S. at 778-786); to fix prices that "will be generally fair and equitable and will effectuate the purposes" of the law (Yakus, 321 U.S. at 420, 426-427); and to determine "just and reasonable" natural gas rates (Hope Natural Gas Co., 320 U.S. at 600-601). 11 It is far from clear that congressional appropriations of money are subject to the nondelegation principles that gener- ally apply to regulation of private conduct. This Court has observed that "certain categories of administrative decisions *** traditionally have [been] regarded as 'committed to agency discretion.' " Lincoln v. Vigil, 508 U.S. 182, 191 (1993). "The allocation of funds from a lump-sum appropriation is" one such decision, since "a fundamental principle of appropria- tions law is that where Congress merely appropriates lump-sum amounts without statutorily restricting what can be done with those funds, a clear inference arises that it does not intend to impose legally binding restrictions." Id. at 192 (internal quota- tion marks omitted). So long as the activities on which appro- priated funds are spent are themselves authorized by statute, and so long as the Executive Branch adheres to the constitu- tional directive that "[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law," Art. I, 9, Cl. 7; see OPM v. Richmond, 496 U.S. 414, 424-425 (1990), we believe that no constitutional infirmity would exist even if an appropriations law placed no further con- straints on Executive Branch discretion. Even if the nondele- gation standard articulated in Mistretta is assumed to apply in this context, however, it is easily satisfied here. ---------------------------------------- Page Break ---------------------------------------- 24 "lockbox" feature (see page 6, supra) requires the President to devote any cancelled amounts to deficit reduction, the President has no authority to spend money on any project beyond the specific amount appropriated by Congress. The Act's requirement that each budgetary item must be devoted (in its entirety) either to a congressionally defined purpose or to deficit reduction is itself a substantial limitation on the President's discretion. In addition, however, the Act provides meaningful guidance to the President in his choice between those two alternatives. The Act permits the President to cancel particular spending or revenue items only if he determines that the cancellation will "(i) reduce the Federal budget deficit; (ii) not impair any essential Government functions; and (iii) not harm the national interest." ICA 1021(a)(A) (2 U.S.C. 691(a)(A)); App., infra, 33a. The Act also requires the President to support any cancellation by providing Congress with, inter alia, the reasons for the cancellation; the es- timated fiscal, economic, and budgetary effects of the cancellation; and the estimated effect of the can- cellation upon the objects, purposes, and programs for which the cancelled authority was provided. ICA 1022(b) (2 U.S.C. 691a(b)); App., infra, 34a-35a. c. Thus, contrary to the district court's conclu- sion, the Line Item Veto Act does not authorize the President to exercise "legislative authority" or to "repeal" a law. App., infra, 24a, 25a. An Executive Branch official administering an Act of Congress "does not exercise 'legislative' lower." INS v. Chadha, 462 U.S. 919, 953 n.16 (1983). "The bicameral process is not necessary as a check on the Execu- tive's administration of the laws because his admin- ---------------------------------------- Page Break ---------------------------------------- 25 istrative activity cannot reach beyond the limits of the statute that created it-a statute duly enacted pursuant to Art. I, 1, 7." Ibid. When an Executive Branch official declines to exercise discretionary spending authority conferred by statute, he does not thereby "repeal" that statute-he implements it according to its terms. 12 The district court also sought to distinguish the Line Item Veto Act from statutes previously upheld by this Court on the ground that the Act "hands off to the President authority over fundamental legislative choices" and "spares Congress the burden of making those vexing choices of which programs to preserve and which to cut." App., infra, 27a. The precise import of those statements is unclear. If the court meant that the fashioning of budgetary priorities is an inherently legislative (and thus nondelegable) function, the court's analysis cannot be squared with Congress's consistent (and heretofore unquestioned) practice of authorizing the Executive Branch to exer- cise considerable discretion over the expenditure of appropriated funds. If the district court meant that the discretion conferred by the Line Item Veto Act is ___________________(footnotes) 12 The Presentment Clause and related provisions of Article I establish "a single, finely wrought and exhaustively considered, procedure" for the enactment of a law. Chadha, 462 U.S. at 951. It is, of course, undisputed that the Line Item Veto Act itself was enacted into law in conformity with that "finely wrought" procedure. It is equally clear that the Act does not exempt any other federal law from the requirements of the Presentment Clause. The President's cancellation au- thority comes into play only after the requirements of the Presentment Clause, including the President's approval of the presented bill, have been satisfied. ---------------------------------------- Page Break ---------------------------------------- 26 standardless or otherwise unduly broad, it was in- correct for the reasons stated at pages 23-24, supra. Finally, no constitutional infirmity results from the fact that the President must exercise, or decline to exercise, his cancellation authority within the five- day period after enactment of an appropriations law. There is, in particular, no basis whatever for the district court's suggestion that this feature of the Line Item Veto Act effects a particularly "expan- sive * * * delegation[ ] of power." App., infra, 25a. To the contrary, the discretion thus conferred is quite plainly narrower than would be the case if the President were vested with continuing authority to revisit the question whether particular expenditures should be made. * * * * * This Court recently observed that "[s]eparation- of-powers principles are vindicated, not disserved, by measured cooperation between the two political branches of the Government, each contributing to a lawful objective through its own processes." Loving, 116 S. Ct. at 1751. The Act at issue here represents such an exercise in "measured cooperation." The district court's conclusion that the Act is at odds with Article I should be rejected. ---------------------------------------- Page Break ---------------------------------------- 27 CONCLUSION The Court should note probable jurisdiction. Respectfully submitted. WALTER DELLINGER Acting Solicitor General FRANK W. HUNGER Assistant Attorney General EDWIN S. KNEEDLER Deputy Solicitor General MALCOLM L. STEWART Assistant to the Solicitor General DOUGLAS N. LETTER SCOTT R. Mc INTOSH Attorneys APRIL 1997 ---------------------------------------- Page Break ---------------------------------------- APPENDIX A UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA No. 97-0001 (TPJ) SEN. ROBERT C. BYRD, ET AL., PLAINTIFFS v. FRANKLIN D. RAINES, ET AL., DEFENDANTS MEMORANDUM AND ORDER [Filed Apr. 10, 1997] This action challenges the validity of legislation entitled the Line Item Veto Act, Pub. Law No. 104- 130, 110 Stat. 1200 (1996) (to be codified at 2 U.S.C. 681 note, 691 et seq.) ("the Act"), which empowers the President unilaterally to "cancel" certain appro- priations and tax benefits after signing them into law. The Act represents an effort by Congress to enlist presidential assistance in controlling rampant federal spending by conferring upon the President what it termed a species of "enhanced rescission" power, expanding the authority he formerly possessed under the Impoundment Control Act of 1974. Plaintiffs, four (la) ---------------------------------------- Page Break ---------------------------------------- 2a Senators and two Congressmen, 1. contend that the mechanism chosen by Congress to its desired end contravenes the text and purpose of Article I, section 7, clause 2, known as the "Presentment Clause" of the Constitution. Rather than making expenditures of federal funds appropriated by Congress matters of presidential discretion, the Act effectively permits the President to repeal duly enacted provisions of federal law. This he cannot do. Accordingly, the Court will grant plaintiffs' motion for summary judgment, deny defendants' motion, and declare the Act unconstitutional. I. Operation of the Line Item Veto Act Following years of importuning by successive Presidents and vacillation by earlier Congresses, President Clinton approved the Line Item Veto Act as passed by the 104th Congress on April 9, 1996. Immediately after it became effective on January 1, 1997, the plaintiff Senators and Congressmen filed this action to declare it void. Named defendants are the Director of the Office of Management and Budget and the Secretary of the Treasury-the officials alleged, respectively, to be responsible for executing the President's "cancellations" of spending items and limited tax benefits under the Act. The United States Senate and the Bipartisan Legal Advisory Group of the United States House of Representatives ___________________(footnotes) 1 Senators Robert C. Byrd, Daniel Patrick Moynihan, Carl Levin, and Mark O. Hatfield, and Representatives David E. Skaggs and Henry A. Waxman. All but Senator Hatfield are currently sitting Members of the 105th Congress. ---------------------------------------- Page Break ---------------------------------------- 3a have appeared jointly as amici curiae to defend the constitutionality of the Act. The Act, which sunsets on January 1, 2005, allows the President, after signing a bill into law, to "cancel in whole"- (1) any dollar amount of discretionary budget authority; (2) any item of new direct spending or (3) any limited tax benefit. 2 U.S.C. 691(a). "Dollar amounts of discretionary budget authority" include any dollar amount set forth in an appropriation law, including those to be found separately in tables, charts, or explanatory text of statements or committee reports accompanying leg- islation. 2 U.S.C. 691e(7). Thus the President's cancellation power applies to legislative history as well as to statutory text itself. "Items of new direct spending" generally include "entitlement" payments to individuals or to state and local governments. 2 U.S.C. 691e(8); H.R. Conf. Rep. No. 491, 104th Cong., 2d Sess. at 36 (1996). "Limited tax benefits" are those revenue-losing provisions that apply to 100 or fewer beneficiaries in any fiscal year, or tax provisions that provide temporary or permanent transitional relief for 10 or fewer beneficiaries from a change in the Internal Revenue Code. 2 U.S. C. 691e(9). The Act directs the congressional Joint Committee on Taxation to identify limited tax bene- fits contained in bills and joint resolutions, and pro- vides that those bills and resolutions may include a separate section in which identified tax benefits are not subject to cancellation. 2 U.S.C. 5691f(a) - (c). The most critical definition is found in 691e(4), The term "cancel" or "cancellation" means "to re- ---------------------------------------- Page Break ---------------------------------------- 4a scind" any dollar amount of discretionary budget authority or to prevent items of new direct spending or limited tax benefits "from having legal force or effect." Id. To exercise the cancellation power the President must first determine that it will- (i) reduce the Federal budget deficit; (ii) not impair any essential Government func- tions; and (iii) not harm the national interest. 2 U.S.C. 691(a)(A). The President effects a cancella- tion by transmitting a "special message" to Congress within five calendar days (excluding Sundays) after enactment of the law containing the item(s) in question. 2 U.S.C. 691(a) (B). The Act spells out the content requirements for a special message and pro- vides that it shall be printed in the Federal Register. 2 U.S.C. 691a. Once an item has been canceled, no further action by Congress is required; cancellation takes effect upon Congress' receipt of the special message. 2 U.S.C. 691b(a). Congress may thereafter intro- duce a "disapproval bill" to reenact any canceled items within five days of receiving the special mes- sage, and must pass it within 30 days. 2. 2 U.S.C. 691d(b), (c)(1). The President can, of course, exer- cise a conventional veto of any disapproval bill, but Congress can then reinstate the status quo ante by overriding that veto. ___________________(footnotes) 2 The President has no authority to cancel items contained in an enacted disapproval bill; he must take it or leave it as presented to him. ---------------------------------------- Page Break ---------------------------------------- 5a Historical Background The Act is best understood against the historical backdrop of the efforts of the President and Congress over the years to control government spending and, in more recent times, to reduce an ever-increasing federal budget deficit. It is a product of many years of inter-branch conflict and compromise over how to accomplish those goals. Since the outset of the 19th Century, American Presidents have labored to influ- ence Congress' spending habits, and many have lob- bied in particular for the authority to veto selected provisions of bills presented for their signature. See 12 Op. Off. Legal Counsel 128, 157-65 (1988). Congress has considered both amending the Constitution and enacting several alternative legislative measures to give the President the increased authority he has sought and Congress has intermittently resisted. Although Presidents have uniformly acknowledged that the Constitution affords no inherent authority for a line-item veto. 3. indeed, as explained below, it ___________________(footnotes) 3 See, e.g., 33 Writings of George Washington 96 (1940) ("From the nature of the Constitution, I must approve all the parts of a Bill, or reject it in toto."); William Howard Taft, The Presidency: Its Duties, Its Powers, Its Opportunities and Its Limitations 11 (1916) ("[The President] has no power to veto parts of the bill and allow the rest to become a law. He must accept it or reject it . . . ."); 12 Op. Off. Legal Counsel 128, 157- 65 (1988) (reviewing other Presidents' views and experience). Although some commentators have argued that the Constitu- tion does provide inherent authority for a line item veto, see Stephen Glazier, Reagan Already Has Line-Item Veto, Wall St. J., Dec. 4, 1987, at A14, col. 4; L. Gordon Crovitz, The Line- Item Veto: The Best Response When Congress Passes One Spending "Bill" A Year, 18 Pepp. L. Rev. 43 (1990), most scholars have concluded that the text of Article I, Sec. 7, un- ---------------------------------------- Page Break ---------------------------------------- 6a clearly forbids anything but rejection of a bill in toto-they have managed to exert their will by "impounding"- or simply not spending-appropriated funds. In some instances, Presidents have refused to spend money on measures that conflicted with their foreign policy objectives, or that would advance an unconstitutional purpose. Most of the time, however, Presidents simply preferred not to spend the money for the purposes for which Congress had allocated it. See, e.g., David A. Martin, Protecting the Fisc: Exec- utive Impoundment and Congressional Power, 82 Yale L.J. 1636, 1644-45 (1973). Some impoundments have been challenged successfully in federal court; others have either been judicially sanctioned or not contested at all. See City of New Haven v. United States, 634 F. Supp. 1449, 1454 (D.D.C. 1986), aff'd 809 F.2d 900 (D.C. Cir. 1987). Although presidential impoundments throughout the 19th century occurred in a state of uncertainty as to their legality, Congress has in this century con- ferred a measure of legitimacy upon them and given some directions as to their use. In the Anti- Deficiency Acts of 1905 and 1906, requiring "appor- ___________________(footnotes) equivocally precludes such authority. See, e.g., Bruce Fein & William Bradford Reynolds, Wishful Thinking on a Line-Item Veto, Legal Times, Nov. 13, 1989, at 30; Lawrence Tribe and Philip Kurland, Letter to Sen. Edward Kennedy, 135 Cong. Rec. S.14,387 (daily ed. Oct. 31, 1989); 12 Op. Off. Legal Counsel 128 (1988); 9 Op. Off. Legal Counsel 28 (1985). Moreover, at least two courts have stated in dicta that the President pos- sesses no inherent item veto. See Lear Siegler, Inc. v. Lehman, 842 F.2d 1102, 1124 (9th Cir.), reh'g en banc ordered, 863 F.2d 693 (9th Cir. 1988), withdrawn on other grounds, 893 F.2d 205 (9th Cir. 1989) (en banc); Thirteenth Guam Legislature v. Bordallo, 430 F. Supp. 405, 410 (D. Guam App. Div. 1977), aff'd, 588 F.2d 265 (9th Cir. 1978). ---------------------------------------- Page Break ---------------------------------------- 7a tionment" aimed at saving money for the end of a fiscal year, Congress also allowed the President to waive spending appropriations in the event of emer- gencies or unusual circumstances. Act of March 3, 1905, ch. 1484, 4, 33 Stat. 1257; Act of Feb. 27, 1906, ch. 510, 3, 34 Stat. 48. When Congress amended the Anti-Deficiency Act in 1950, it created a mechanism for the Executive Branch to recommend the rescis- sion of any reserves not required to carry out the purposes underlying an appropriation. General Ap- propriation Act of 1951, ch. 896, 1211(c)(2), 64 Stat. 595 (current version at 31 U.S.C. 1512(c)(1)). Congress has not, however, always been sanguine about Presidents' refusal to spend appropriated funds. During the Nixon administration, for example, the President's extensive resort to impoundment prompted many lawsuits. See City of New Haven, 634 F. Supp. at 1454 ("by 1974, impoundments had been vitiated in more than 50 cases and upheld in only four"). President Nixon's reluctance to spend appro- priated funds also provoked passage of the Impound- ment Control Act of 1974 (the "ICA"), Pub. L. No. 93- 344, 88 Stat. 332, a statute critical to an understand- ing of the present Act. The ICA recognized two types of impoundment "deferral" and "rescission." Deferral affects the tim- ing of expenditures, and is accomplished by "withhold- ing or delaying the obligation or expenditure of budget authority (whether by establishing reserves or otherwise) provided for projects or activities," or any other type of Executive action or inaction accom- plishing the same result. 2 U.S.C. 682(1). Deferral is permitted for contingencies, to effect savings achieved through changes or efficiency, or as specifi- cally provided by law. 2 U.S.C. 684(b). Under the ---------------------------------------- Page Break ---------------------------------------- 8a ICA, the President effects a deferral, just as he cancels an item under the Line Item Veto Act, by transmitting to Congress a special message contain- ing statutorily required information. 2 U.S.C. 684(a). Also like cancellations under the Act, deferrals become effective upon Congress' receipt of the special message; unlike cancellations, however, they expire with the end of the fiscal year. 4. Id. A rescission, under the ICA, is the cancellation of budget authority. 2 U.S.C. 682(3). In contrast to a cancellation under the Line Item Veto Act the ICA requires the President to propose a rescission by transmitting a special message to Congress, which Congress may enact or not, as it chooses, within 45 days. 2 U.S.C. 683(b). The perceived deficiency of the rescission process under the ICA that inspired passage of the Line Item Veto Act was the necessity of congressional acquiescence. Whenever Congress neglected or declined to pass a bill enacting into law a proposed rescission-a most frequent occurrence- the rescission expired. The cancellation procedure embodied in the Line Item Veto Act thus came to be known as "enhanced rescission," the enhancement consisting of elimina- tion of the need for congressional action. Two princi- pal alternatives to the Act considered and rejected by the 104th Congress were "expedited rescission" and "separate enrollment." The first, exemplified by S.14 ___________________(footnotes) 4 Originally, deferrals were automatically effective but subject to a one-House legislative veto. 88 Stat. 335. In light of INS v. Chadha, 462 U.S. 919 (1983), the legislative veto component of the ICA was invalidated, City of New Haven v. Pierce, 809 F.2d 900 (D.C. Cir 1987), and Congress subsequently amended the ICA to eliminate the offending procedure. ---------------------------------------- Page Break ---------------------------------------- 9a in the 104th Congress, would have preserved the recommendation process but guaranteed that Con- gress actually and promptly vote on the President's rescission proposals. S. Rep. No. 9, 104th Cong., 1st Sess., at 15 (1995). The second would have treated each item of spending as a separate "bill" for the President to sign or veto. Separate handling of hun- dreds of items appeared to present insuperable practi- cal obstacles, however, and potential constitutional difficulties as well. See 141 Cong. Rec. S.4217, S.4224- 35, S.4244 (daily ed. Mar. 21, 1995). Both Houses of Congress also considered and rejected proposed con- stitutional amendments to impart line item veto authority. S.J. Res. 2, 14, 15, and 16, and H.J. Res. 4, 6, and 17, 104th Cong. (1995). II. Before addressing the merits of the case, the Court is obliged to confront defendants' objections as to its justifiability. In a motion to dismiss the complaint defendants contend that plaintiffs lack standing to press their claim. They also assert that the case is not ripe for judicial resolution, and that the "equita- ble discretion" doctrine requires dismissal. None of these assertions is correct under the law of this Circuit. Standing 5 Defendants argue that plaintiffs fail to present a live case or controversy, first, because separation-of- powers considerations counsel against judicial intru- sions into disputes between officials of the political ___________________(footnotes) 5 Only Article III standing, as opposed to prudential limita- tions, is at issue in light of Congress' creation of an express right of action in 692(a)(1) of the Act. ---------------------------------------- Page Break ---------------------------------------- 10a branches and, second, because at this point no presi- dential cancellation has yet been attempted or threat- ened, and there has, thus, been no discernible injury. The parties agree on the standard to be applied: plaintiffs must allege, as "an irreducible minimum," (1) an injury personal to them, (2) that has actually been inflicted by defendants or is certainly impending, and (3) that is redressable by judicial decree. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472 (1982). See also Lujan v. Defenders of Wildlife, 504 U.S. 555,560 (1992). Defendants acknowledge that, pursuant to this well-settled standard, this Circuit has repeatedly recognized Members' standing to challenge measures that affect their constitutionally prescribed lawmak- ing powers. See, e.g., Michel v. Anderson, 14 F.3d 623, 625 (D.C. Cir. 1994) (Members had standing to challenge House Rule permitting delegates to vote in Committee of the Whole based on its alleged vote- diluting effect); Moore v. U.S. House of Representa- tives, 732 F.2d 946, 950-53 (D.C. Cir. 1984) (standing to assert violation of constitutional requirement that revenue-raising bills originate in the House), cert. denied, 469 U.S. 1106 (1985); Vander Jagt v. O'Neill, 699 F.2d 1166, 1168-71 (D.C. Cir.) (standing to challenge leadership's committee-seating assign- ments), cert. denied, 464 U.S. 823 (1983). In each case the D.C. Circuit found no separation-of-powers im- pediments to adjudication of the merits because, as in the present case, Members' alleged injuries arose from interference with the exercise of identifiable constitutional powers. See Moore, 733 F.2d at 951. Although the Supreme Court has never endorsed the ---------------------------------------- Page Break ---------------------------------------- 11a Circuit's analysis of standing in such cases, for this Court's purposes these precedents are controlling. 6 Plaintiffs' claim of injury in this case, namely, that the Act dilutes their Article I voting power, is like- wise of the kind that suffices to confer standing under Article III. Previously, when a Member voted for an appropriations bill containing multiple items, he or she could be certain that any variation of the package once passed would require another vote by both chambers of Congress. Under the Act, however, as plaintiffs describe it, the Member's same vote oper- ates only to present the President with a "menu" of items from which he can select those worthy of his approval, not a legislative fait accompli that he must accept or reject in whole, as in the past. As one Senator characterizes it, his vote for an "A-B-C" bill might lead to the post hoc creation of an "A-B" law, an "A-C" law, or a "B-C" law, depending on the Presi- dent's use of his newly conferred cancellation author- ity, for which neither he nor his colleagues would have voted so reconfigured. Thus, plaintiffs' votes mean something different from what they meant before, for good or ill, and plaintiffs who perceive it as the latter are thus "injured" in a constitutional sense ___________________(footnotes) 6 Defendants rely on two concurring opinions by D.C. Circuit Judges in arguing that plaintiffs' injury is not suffi- ciently personal to create a justifiable controversy. See Moore, 733 F.2d at 957-61 (Scalia, J., concurring); Vander Jagt, 699 F.2d at 1179-82 (Bork, J., concurring). Yet, as the three-judge court, of which then-Judge Scalia was a member, recognized in Synar v. United States, 626 F. Supp. 1374, 1382 (D.D.C. 1986), aff'd sub nom. Bowsher W. Synar, 478 U.S. 714 (1986), this Circuit's cases unequivocally establish that Members have "a personal interest . . . in the exercise of their governmental powers." 626 F. Supp. at 1381 & n.7. ---------------------------------------- Page Break ---------------------------------------- 12a whenever an appropriations bill comes up for a vote, whatever the President ultimately does with it. Circuit precedent has recognized only interference with the "constitutionally mandated process of enact- ing law" as sufficient to confer standing upon Mem- bers to maintain legal action for redress. Moore, 733 F.2d at 951. According to plaintiffs, their right to formulate an appropriations bill that meets with the approval of a majority of both Houses alone, ignoring presidential preferences, is mandated by the Present- ment Clause itself. Under the Act the dynamic of lawmaking is fundamentally altered. Compromises and trade-offs by individual law makers must take into account the President's item-by-item cancellation power looming over the end product. The Court con- cludes that plaintiffs have standing because they allege that the Act "interferes with their 'constitu- tional duties to enact laws regarding federal spend- ing' and infringes upon their lawmaking powers under Article I, Section 7." Synar v. United State, 626 F. Supp. 1374, 1382 (D.D.C. 1986), aff'd sub nom. Bow- sher v. Synar, 478 U.S. 714 (1986). Ripeness Defendants' primary justifiability contention is that plaintiffs must wait until the President cancels an item to bring this lawsuit. Their facial challenge to the Act would elicit an advisory opinion, defendants argue, because whether the President will exercise his authority at all (and whether various other conse- quences will follow) is entirely speculative. Indeed, courts may not exercise jurisdiction consistent with Article III where a dispute is so unformed as to fail the "case or controversy" requirement. See Duke Power Co. v. Carolina Environmental Study Group, ---------------------------------------- Page Break ---------------------------------------- 13a Inc., 438 U.S. 59, 81 (1978); Regional Rail Reorganize zation Act Cases, 419 U.S. 102, 138 (1974). And in constitutional cases, courts must be particularly careful not to render decisions that are unnecessary. See United States v. National Treasury Employees Union, 115 S. Ct. 1003, 1019 (1995). The injury that gives shape to a dispute need not have occurred, how- ever, so long as it is "certainly impending." Whit- more v. Arkansas, 495 U.S. 149, 158 (1990). In focusing solely on the President's actual exer- cise of his cancellation power, defendants overlook plaintiffs' allegation of ongoing harm that befalls them irrespective of whether the President ever can- cels an item. 7. The Supreme Court considered an analogous claim ripe in Metropolitan Wash. Airports Auth. v. Citizens for the Abatement of Airport Noise, Inc., 501 U.S. 252 (1991), where a Board of Review composed of Members of Congress possessed an as-yet unexercised power to veto decisions of MWAA's Board of Directors. "The threat of the veto hangs over the Board of Directors like the sword over Damocles, creating a 'here-and-now subservience' to the Board of Review sufficient to raise constitutional questions," the Court held. Id. at 265 n.13. See also ___________________(footnotes) 7 Even if an actual cancellation by the President were re- quired to cause injury, Article III arguably would not require plaintiffs to wait for that event to invoke the Court's juris- diction. See Abbott Labs v. Gardner, 387 U.S. 136, 140 (1967); Buckley v. Valeo, 424 U.S. 1, 117 (1976) (challenge was ripe in anticipation of "impending future rulings and determina- tions"). The President has expressed his intention to invoke his new powers under the Act this year. See 141 Cong. Rec. S.8202-03 (daily ed. June 13, 1995) (containing letter from President to Speaker of the House). ---------------------------------------- Page Break ---------------------------------------- 14a Bowsher v. Synar, 478 U.S. 714, 727 n.5 (1986). Because plaintiffs now find themselves in a position of unanticipated and unwelcome subservience to the President before and after they vote on appropriations bills, Article III is satisfied, and this Court may accede to Congress' directive to address the constitu- tional cloud over the Act as swiftly as possible. 8 Plaintiffs' declarations make clear that the budget- ary process is already underway. The President presented his budget proposal in early February, and Members will consider and vote on appropriations between now and October 1, 1997, when the new fiscal year begins. Moreover, Congress is likely to vote on supplemental appropriations for this fiscal year in the next few months. To be sure, appropriations votes are inevitable, and "certainly impending." Whitmore, 495 U.S. at 158. Defendants' argument that the case is not ripe because further factual development is required is also unpersuasive. The issues in this case are legal, and thus will not be clarified by further factual development. In what context and when the President cancels an appropriation item is immaterial. The Court will be no better equipped to weigh the con- stitutionality of the President's cancellation of an ___________________(footnotes) 8 As in the case of standing, plaintiffs need only satisfy the Article III component of ripeness because Congress unmistaka- bly declared the case fit for judicial review in 692(c) of the Act. Accordingly, this Circuit's conclusion in National Trea- sury Employees Union v. United States, 101 F.3d 1423, 1431 (D.C. Cir. 1996) ("NTEU"), that prudential (as well as constitu- tional) considerations made the union's challenge to the Act not ripe is inapposite. ---------------------------------------- Page Break ---------------------------------------- 15a item of spending or a limited tax benefit after the fact; the central issue is plain to see right now. 9 Finally, defendants assert that plaintiffs' claim is not ripe because the Act might be repealed, or sus- pended with respect to particular appropriations; a disapproval bill might subsequently vindicate a Mem- ber's vote as he intended it; or, if not, Congress could override a presidential veto of a disapproval bill. There are two answers to this argument. First, it ignores the "sword of Damocles" effect that pervades the process irrespective of whether the President ever cancels an item. Second, just because Congress as a whole can suspend or repeal the Act, or pass a disapproval bill, does not mean that an individual Member's injury is illusory. A Member cannot pro- cure any such relief on his own. Indeed, the possibil- ity of relief from Congress as a whole is just the sort of speculative prospect that the Court would reject if it were instead offered in support of standing. Just as the NTEU plaintiffs did not have standing simply because the Act made certain injuries possible, 101 F.3d at 1429-30, the present plaintiffs' standing is not undermined by virtue of the fact that the Act makes certain remedies conceivable. ___________________(footnotes) 9 Moreover, fitness for review is a prudential component of the ripeness doctrine, an inquiry Congress obviated by calling for expedited judicial action. See Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985); NTEU, 101 F.3d at 1431. But even if the Court were to take into account prudential ripeness factors, they actually militate in plaintiffs' favor, because resolving the issue now will avert the cloud that would hang over any canceled item that Congress fails to disapprove. ---------------------------------------- Page Break ---------------------------------------- 16a Equitable Discretion Defendants urge the Court to exercise its equitable discretion to dismiss the complaint because of separation-of-powers concerns, which apply not only in cases involving internal rules of Congress, see Skaggs v. Carle, 898 F. Supp. 1, 2 (D.D.C.), appeal docketed, No. 95-5323 (D.C. Cir. Sept. 25, 1995), but also in cases involving challenges to the validity of the legislation itself, see Riegle v. Federal Open Market Comm., 656 F.2d 873, 881 (D.C. Cir.), cert. denied, 454 U.S. 1082 (1981). In this case, however, the Court's equitable power to abstain from taking jurisdiction has been fore- closed by Congress' own determination to invite a lawsuit. See 2 U.S.C. 692(a)(1). There is therefore neither reason nor occasion to exercise discretion by avoiding the case. See Synar, 626 F. Supp. at 1382 ("Section 274 specifically provides for [declaratory] relief to [Members of Congress], thus eliminating whatever equitable discretion might exist and leaving only the limitations of Article III."). III. The Court now turns to the issue presented, namely, whether the Act's conferral of cancellation power upon the President violates the Presentment Clause. The Act enjoys a presumption of validity, and the Court may not undertake to evaluate its wisdom. See INS v. Chadha, 462 U.S. 919, 944 (1983). Even if the Act were to appear salutary-or even exigent, given the intractable (and interminable) budget controversy-that fact cannot affect the Court's in- quiry. Id. Though a court does not lightly resolve to invalidate a law of the United States, it must never- ---------------------------------------- Page Break ---------------------------------------- 17a theless vindicate the Constitution and the govern- mental framework it envisions. "The Framers recog- nized that, in the long term, structural protections against abuse of power were critical to preserving liberty." Bowsher v. Synar, 478 U.S. 714, 730 (1986). Accordingly, the Supreme Court has "not hesitated to invalidate provisions of law which violate [the separa- tion of powers]," Metropolitan Wash. Airports Auth. v. Citizens for the Abatement of Airport Noise, Inc., 501 U.S. 252, 273 (1991), and this Court can do no less. This case is indisputably one of first impression. The issue it poses will undoubtedly be finally resolved by the Supreme Court, but at present such Supreme Court precedent as can be found only intimates what the result will be. It is by that jurisprudence, how- ever, that this Court must be guided, and the lesson of those cases appears to be that not even the most beguiling of upgrades to the machinery of national government will be countenanced unless it comports with the constitutional design. Shorn of its political and policy-laden implications, this case turns on the narrow and subtle question of whether the President's power under the Act is simply a present-day enlargement of his historically sanctioned impoundment power as it has existed from time to time, as defendants urge, or rather a radical transfer of the legislative power to repeal statutory law, as plaintiffs believe. As explained below, the Court agrees with plaintiffs that, even if Congress may sometimes delegate authority to impound funds, it may not confer the power permanently to rescind an appropriation or tax benefit that has become the law of the United States. That power is possessed by Congress alone, and, according to the Framers' care- ful design, may not be delegated at all. ---------------------------------------- Page Break ---------------------------------------- 18a The Presentment Clause The Presentment Clause requires that any bill making or changing federal law must be first passed by both Houses of Congress and then presented to the President in toto, in which form he acts upon it, either to make it (or allow it to become) a law, or to return it to Congress for reconsideration. 10. U.S. ___________________(footnotes) 10 In the Framers' words: Every Bill which shall have passed the House of Repre- sentatives and the Senate shall, before it become a Law, be presented to the President of the United States; If he approve it he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have origi- nated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Recon- sideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its return, in which Case it shall not become a Law. U.S. Const. art. I, 7, cl. 2. At the behest of James Madison, the Framers included the following clause to ensure that Congress could not evade the presentment requirement simply by passing legislation in forms other than bills: Every Order, Resolution, or Vote to Which the Concur- rence of the Senate and House of Representatives may be ---------------------------------------- Page Break ---------------------------------------- 19a Const. art. I, 7, cl. 2. Plaintiffs focus on the lan- guage of "approval;" the President's primary duty under the Presentment Clause, they say, is one of approval or disapproval. If he approves of the bill, in toto, his signature is but a ministerial formality. If he does not approve of it, in toto, his duty obliges him to return it with his "objections" to the House in which it originated, or at least to leave it be. If he signs it while disapproving of it-or parts of it-as the Act purports to authorize him to do, then he does so, according to plaintiffs, in violation of the Present- ment Clause. For defendants, the operative words are, "he shall sign it." It is the bright-line act of signing alone that converts a bill into law. Approval is a highly subjec- tive, and a temporal, concept. A President may "ap- prove" of a bill for many reasons, not all of which import enthusiasm for its legislative consequences. A President may sign a bill of which he actually disapproves (as undoubtedly many Presidents have done) for political, diplomatic, or other purposes unre- lated to his judgment of its merit. The Court agrees with defendants that the act of signing a bill is the critical requirement of the Presentment Clause. The President's judgment of approval coincides with his decision to sign a bill; it has no independent operative significance. Whether a ___________________(footnotes) necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives according to the Rules and Limitations prescribed in the Case of a Bill. U.S. Const. art I, 7, cl. 3. ---------------------------------------- Page Break ---------------------------------------- 20a bill is or is not a law of the United States cannot depend on the President's state of mind when he affixes his signature. He may object to various appropriations and limited tax benefits-that is, he may disapprove of them-but nevertheless sign a bill and thereby remain in full compliance with the Pre- sentment Clause. Likewise, no subsequent action by the President is capable of retroactively undermining the approval he registered with his signature. By that time the Article I approval process has run its course, and the bill indisputably has become a law of the United States. See United States v. Will, 449 U.S. 200, 224-25 & n.29 (1980); La Abra Silver Mining Co. v. United States, 175 U.S. 423,454 (1899); Burgess v. Salmon, 97 U.S. 381,384-85 (1878). Yet, although the Court agrees that statutes sub- ject to cancellation will have been "approved" in ac- cordance with the Presentment Clause, the Act is vulnerable to the additional charge that, following approval, a cancellation by the President is a legisla- tive repeal that itself must comply with Presentment Clause procedures. The Court must resolve this issue in light of the Supreme Court's admonishment that "[t]he legislative steps outlined in Art. I are not empty formalities; they were designed to assure that both Houses of Congress and the President par- ticipate in the exercise of lawmaking authority." Chadha, 462 U.S. at 958 n.22. It is insufficient, there- fore, for defendants to argue that, notwithstanding the resemblance between a cancellation and a statu- tory repeal, the Act should stand because the same result could be accomplished through clearly consti- tutional means. Rather, "the purposes underlying the Presentment Clause . . . must guide resolution of ---------------------------------------- Page Break ---------------------------------------- 21a the question whether a given procedure is constitu- tional." Id. at 946. Fundamentally, the Presentment Clause enforces "bicameralism" and circumscribes the President's ability to act unilaterally. See Field v. Clark, 143 U.S. 649,692-93 (1892). It embodies "the Framers' de- cision that the legislative power of the Federal Gov- ernment be exercised in accord with a single, finely wrought and exhaustively considered, procedure." Chadha, 462 U.S. at 951. The President's contribu- tion to the process is his approval of (or objection to) legislation as Congress presents it to him. His is merely a qualified check on the will of the legislature. See 1 The Records of the Federal Convention of 1787 at 97-105 (Max Farrand ed., 1987). The President must consider the whole of the bill presented, which, in today's world of omnibus appropriations and myriad riders, is an undeniably difficult task. Nevertheless, upon considering a bill, he must reach a final judg- ment: either "approve it," or "not." U.S. Const. art I. 7, cl. 2. Once he has by his signature transformed the whole bill into a law of the United States, the President's sole duty is to "take Care that the Laws be faithfully executed." U.S. Const. art. II, 3. See also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) ("[T]he President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker."). Where the President signs a bill but then purports to cancel parts of it, he exceeds his constitutional authority and prevents both Houses of Congress from participating in the exercise of lawmaking authority. The President's cancellation of an item unilaterally effects a repeal of statutory law such that the bill he signed is not the law that will govern the Nation. ---------------------------------------- Page Break ---------------------------------------- 22a That is precisely what the Presentment Clause was designed to prevent. Delegation of Spending Authority vs. Exercise of Lawmaking Power Defendants dismiss the notion that the Act repre- sents an abdication of Congress' Article lawmaking I power, arguing that it merely ratifies traditional impoundment authority of the President in a novel form. Defendants and amici both allude to a long history of presidential impoundments, many of which have been tested by courts, and as to which the issue has been confined primarily to whether Congress intended to delegate discretion to the President not to spend money it had appropriated; that is, whether its appropriations were permissive or mandatory. See, e.g., Train v. City of New York, 420 U.S. 35, 41 (1975); City of New Haven v. United States, 634 F. Supp, 1449, 1454 n.6 (D.D.C. 1986) (citing case:), aff'd 809 F.2d 900 (D.C. Cir. 1987). The effect of the ICA was to make all appropriations presumptively mandatory. The Line Item Veto Act merely reverses that pre- sumption, at least for a period of five days. During that limited period, the President has the option to "cancel" any appropriation-he may not change it in any manner-after which it remains in the law as he signed it, to be faithfully executed with the remaind- er. 11. If he cancels it with an appropriate message to Congress, it is extinguished, as if it had never been part of the bill, unless Congress revives it with a new bill, passed like any other by both Houses of Congress ___________________(footnotes) 11 Defendants cite no analog, as a species of impoundment or anything else, however, to the power to "cancel" limited tax benefits found in the Act. ---------------------------------------- Page Break ---------------------------------------- 23a and presented anew to the President. In the mean- time no money can be spent for it, just as would have been the case had it been "deferred" or "rescinded" in accordance with the ICA. The Line Item Veto Act is, therefore, according to defendants, merely an advance delegation by Congress to the President of a brief period of discretion to spend or not, as his judgment dictates, subject to the broad injunctions that his decision not to spend operate to reduce the deficit, and will not impair any essential Government functions or harm the national interest. It is, they say, "evolu- tionary, not revolutionary," Def. Motion for Summary Judgment at 3, in the perpetual contest of will be- tween Congress and the President in matters of the federal budget. It has long been held that Congress may-indeed, of necessity, must-delegate vast authority to the Ex- ecutive Branch of government to make and to change rules for the governance of national affairs, so long as they are in furtherance of the will of Congress. When courts have inquired into whether Congress has abdi- cated its legislative function in cases of allegedly overbroad delegations, their sole concern is whether Congess itself articulated "intelligible principles" by which delegated authority is to be exercised. See Mistretta v. United States, 488 U.S. 361, 372; J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406, 409 (1928). Since 1935, the Supreme Court has "upheld, without exception, delegations under stan- dards phrased in sweeping terms." Loving v. United States, 116 S. Ct. 1737, 1750 (1996). Defendants are therefore correct that, if the Act's conferral of can- cellation power, at least with respect to appropria- tions, can be equated with a delegation of impound- ment authority, their burden under the delegation ---------------------------------------- Page Break ---------------------------------------- 24a standard is not "a tough one." National Fed'n of Fed. Employees v. United States, 905 F.2d 400, 404 (D.C. Cir. 1990). 12 But defendants are mistaken in asserting that Article I concerns disappear once the President has signed a bill into law, and, consequently, that the delegation doctrine is the only hurdle for them to surmount. Their analysis assumes that Congress conferred a delegable power. It did not; it ceded basic legislative authority. The Constitution vests "all legislative Powers" of the United States in Congress, U.S. Const. art. I, 1, including the power to repeal. Chadha, 462 U.S. at 954. As Chadha made clear, there are formal aspects of the legislative process that Congress may not alter. Just as Congress could not delegate to one of its chambers the power to veto select provisions of law, it may not assign that authority to the President. Before the question of a delegation's excessiveness ever arises, then, a court must be convinced that Congress did not attempt to alienate one of its basic functions. In no case where the Supreme Court decided that a delegation of broad authority was saved by Congress' articulation of intelligible principles was the Court faced with an equivalent of the cancellation power given to the President by the Line Item Veto Act. Cancellation under the Act is simply not the same thing as impoundment, or any other suspension of a ___________________(footnotes) 12 See, e.g., Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 219 (1989) (upholding delegation of authority to establish and collect pipeline safety fees); Lichter v. United States, 334 U.S. 742, 778 (1948) (upholding grant of power to recover excessive wartime profits); and Yakus v. United States, 321 U.S. 414, 424 (1944) (upholding broad delegation of price-fixing authority). ---------------------------------------- Page Break ---------------------------------------- 25a statutory provision. Instead, cancellation is equiva- lent to repeal 13. and "'repea1 of statutes, no less than enactment, must conform with Art. I." Chadha, 462 U.S. at 954. Cancellation forever renders a provision of federal law without legal force or effect, so the President who canceled an item and his successors must turn to Congress to reauthorize the foregone spending. Whereas delegated authority to impound is exercised from time to time, in light of changed circumstances or shifting executive (or legislative) priorities, cancellation occurs immediately and irre- versibly in the wake of the operationalizing "ap- proval" of the bill containing the very same measures being rescinded. Thus the cancellation power conferred by the Act is indeed revolutionary, as plaintiffs assert. Never before has Congress attempted to give away the power to shape the content of a statute of the United States, as the Act purports to do. As expansive as its delegations of power may have been in the past, none has gone so far as to transfer the function of repealing a provision of statutory law. The power to "make" the laws of the nation is the exclusive, non- delegable power of Congress which the Line Item Veto purports to alienate in part for eight years. That it can be recaptured if Congress repeals the Act, or suspends it (either in general, or in particular circumstances) does not alter the fact that, until Congress does so by a separate bill which the ___________________(footnotes) 13 As noted supra, p.4, 691e(4) of the Act defines the verb "cancel" as meaning "to rescind." Webster's Third New Inter- national Dictionary 1924 (G.&C. Merriam Co. 1981) defines the verb "repeal" as meaning "l: to rescind or revoke (as a sen- tence or law) from operation or effect." ---------------------------------------- Page Break ---------------------------------------- 26a President signs (or as to which his veto is over- ridden), the President has become a co-maker of the Nation's laws. The duty of the President with re- spect to such laws is to "take care that [they] be faithfully executed." U.S. Const. art II, 3. Cancel- ing, i.e., repealing, parts of a law cannot be considered its faithful execution. 14 Moreover, if cancellation power could constitution- ally be delegated as to appropriations and limited tax benefits, defendants have yet to show a tenable con- stitutional distinction between appropriation and tax laws, on the one hand, and all other laws, on the other. In fact, defendants deny any obligation to suggest such a distinction at all. At oral argument they in- sisted that there is virtually no limit to the express Article I powers Congress may delegate if it chooses, so long as it articulates "intelligible principles" by which its delegee is to be guided. If that is so-if Congress can delegate to the President the power to reconfigure an appropriations or tax benefit bill-why can he not also cancel provisions of an environmental protection or civil rights law he disfavors, and upon exactly the same "principles" as are to guide his exercise of cancellation authority under the Line Item Veto Act? As authority for the proposition that it is constitu- tionally permissible for Congress to delegate to the President the power to render a law of the United ___________________(footnotes) 14 Defendants suggest that, in canceling future appropria- tions, the President will, in fact, be faithfully executing the Line Item Veto Act to reduce the deficit. But the Act contains no mandate to the President to reduce the deficit. It merely conditions cancellations for whatever reason upon, inter alia, their having a deficit-reducing effect.. ---------------------------------------- Page Break ---------------------------------------- 27a States inoperable, defendants cite the case of Field v. Clark, 143 U.S. 649 (1892). Aside from the fact that the presidential action approved by the Supreme Court in Field v. Clark was merely the "suspension" of duly enacted tariffs, not their cancellation, the case is also distinguishable on the ground that the Supreme Court recognized the practice of "legislat- ing in contingency;" that is, where Congress itself determines in advance when conditions yet to occur should cause the law to cease to be operative. The President is merely the instrument of its will. Id. at 683-92. See also United States v. Rock Royal Co-op, Inc., 307 U.S. 533, 577-78 (1939); Currin v. Wallace, 306 U.S. 1, 15-16 (1939); The Brig Aurora, 11 U.S. (7 Cranch) 382,388 (1813). 15. The Line Item Veto Act, in contrast, hands off to the President authority over fundamental legislative choices. Indeed, that is its reason for being. It spares Congress the burden of making those vexing choices of which programs to ___________________(footnotes) 15 As Supreme Court further explained in J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 407 (1928), 30 years later: Congress may feel itself unable conveniently to deter- mine exactly when its exercise of the legislative power should become effective, because dependent on future con- ditions, and it may leave the determination of such time to the decision of an executive, or, as often happens in mat- ters of state legislation, it may be left to a popular vote of the residents of a district to be affected by the legislation. While in a sense one may say that such residents are exercising legislative power, it is not an exact statement, because the power has already been exercised legislatively by the body vested with that power under the Constitution, the condition of its legislation going into effect being made dependent by the legislature on the expression of the voters of a certain district. ---------------------------------------- Page Break ---------------------------------------- 28a preserve and which to cut. Thus, by placing on itself the "onus" of overriding the President's cancella- tions, see H.R. Conf. Rep. No. 491, 104th Cong., 2d Sess. at 16 (1996), Congress has turned the constitu- tional division of responsibilities for legislating on its head. The Court therefore agrees with plaintiffs. In those Supreme Court cases which this Court finds most instructive for its purposes, most notably Chadha, the Supreme Court has repeatedly counseled that when the Constitution speaks to the matter, the Constitution alone controls the way in which govern- mental powers shall be exercised. 16. The formalities of the constitutional framework must be respected; the several estates subject to it must function within the spheres the Constitution allots to them. IV. In passing the Act, Congress and the President addressed the significant problem of runaway spend- ing, striving to create a more efficient process. But "the Framers ranked other values higher than effi- ciency." Chadha, 462 U.S. at 959. As the Court elaborated: With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitu- tion. ___________________(footnotes) 16 See also Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991); Bowsher v. Synar, 478 U.S. 714 (1986); cf. U.S. Term Limits v. Thornton, 115 S. Ct. 1842 (1995). ---------------------------------------- Page Break ---------------------------------------- 29a Id. Various legislative alternatives remain available to give the President a more significant role in restraining government spending. For example, the "expedited rescission" model favored by many Members of the 104th Congress would retain the President's role as a recommender of rescissions, see U.S. Const. art. II, 3, and force Congress to vote on such proposals. And, of course, Congress remains free to attempt passage of a constitutional amendment if it determines that the President should have unilat- eral revisionary power. For the foregoing reasons, it is, this 10th day of April, 1997, ORDERED, that defendants' motion to dismiss the complaint and motion for summary judgment are denied; and it is FURTHER ORDERED, that plaintiffs' motion for summary judgment is granted; and it is FURTHER ORDERED, that the Line Item Veto Act, Pub. Law No. 104 -130, 110 Stat. 1200 (1996), is adjudged and declared unconstitutional. /s/ THOMAS PENFIELD JACKSON THOMAS PENFIELD JACKSON U.S. District Judge ---------------------------------------- Page Break ---------------------------------------- 30a APPENDIX B IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Civil Action No. 97-0001 (TPJ) SENATOR ROBERT C. BYRD, ET AL., PLAINTIFFS v. FRANKLIN D. RAINES, DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET, ET AL., DEFENDANTS [Filed: Apr. 11,1997] NOTICE OF APPEAL Franklin D. Raines, Director, Office of Manage- ment and Budget, and Robert E. Rubin, Secretary of the Treasury, defendants, appeal to the United States Supreme Court from the Memorandum and Order issued by this Court on April 10, 1997. Respectfully submitted, FRANK W. HUNGER Assistant Attorney General ERIC H. HOLDER, JR., United States Attorney GARY G. GRINDLER Deputy Assistant Attorney General ---------------------------------------- Page Break ---------------------------------------- 31a DAVID J. ANDERSON /s/ NEIL H. KOSLOWE NEIL H. KOSLOWE Special Litigation Counsel D.C. Bar No. 361792 /s/ADAM ISSENBERG ADAM ISSENBERG Trial Attorney Civil Division-Room 1036 Department of Justice P. O. BOX 883 Washington, D.C. 20044 Telephone: (202) 514-3418 Attorneys for Defendants ---------------------------------------- Page Break ---------------------------------------- 32a APPENDIX C Public Law 104-130, 104th Congress An Act To give the President line item veto authority with respect to appropriations, new direct spending, and limited tax benefits Be it enacted by the Senate and House of Repre- sentatives of the United States of America in Con- gress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the "Line Item Veto Act". SEC. 2. LINE ITEM VETO AUTHORITY. (a) IN GENERAL.-Title X of the Congressional Budget and Impoundment Control Act of 1974 (2 U.S.C. 681 et seq.) is amended by adding at the end the following new part: "PART C-LINE ITEM VETO "LINE ITEM VETO AUTHORITY "SEC. 1021. (a) IN GENERAL. -Notwithstanding the provisions of parts A and B, and subject to the provisions of this part, the President may, with respect to any bill or joint resolution that has been signed into law pursuant to Article I, section 7, of the Constitution of the United States, cancel in whole- "(1) any dollar amount of discretionary budget authority; "(2) any item of new direct spending; or ---------------------------------------- Page Break ---------------------------------------- 33a "(3) any limited tax benefit; if the President "(A) determines that such cancellation will - "(i) reduce the Federal budget deficit; "(ii) not impair any essential Govern- ment function; and "(iii) not harm the national interest; and "(B) notifies the Congress of such cancellation by transmitting a special message, in accordance with section 1022, within five calendar days (ex- cluding Sundays) after the enactment of the law providing the dollar amount of discretionary bud- get authority, item of new direct spending, or limited tax benefit that was canceled. "(b) IDENTIFICATION OF CANCELLATIONS.- In identifying dollar amounts of discretionary budget authority, items of new direct spending, and limited tax benefits for cancellation, the President shall- "(1) consider the legislative history, construc- tion, and purposes of the law which contains such dollar amounts, items, or benefits; "(2) consider any specific sources of informa- tion referenced in such law or, in the absence of specific sources of information, the best available information; and "(3) use the definitions contained in section 1026 in applying this part to the specific provisions of such law. ---------------------------------------- Page Break ---------------------------------------- 34a "(c) EXCEPTION FOR DISAPPROVAL BILLS.- The authority granted by subsection (a) shall not apply to any dollar amount of discretionary budget authority, item of new direct spending, or limited tax benefit contained in any law that is a disapproval bill as defined in section 1026. "SPECIAL MESSAGES "SEC. 1022. (a) IN GENERAL.- For each law from which a cancellation has been made under this part, the President shall transmit a single special message to the Congress. _ "(b) CONTENTS "(1) The special message shall specify- "(A) the dollar amount of discretionary budget authority, item of new direct spending, or limited tax benefit which has been canceled, and provide a corresponding reference number for each cancellation; "(B) the determinations required under section 1021(a), together with any supporting material; "(C) the reasons for the cancellation; "(D) to the maximum extent practicable, the estimated fiscal, economic, and budgetary effect of the cancellation; "(E) all facts, circumstances and consid- erations relating to or bearing upon the cancel- lation, and to the maximum extent practicable, the estimated effect of the cancellation upon ---------------------------------------- Page Break ---------------------------------------- 35a the objects, purposes and programs for which the canceled authority was provided; and "(F) include the adjustments that will be made pursuant to section 1024 to the discre- tionary spending limits under section 601 and an evaluation of the effects of those adjust- ments upon the sequestration procedures of section 251 of the Balanced Budget and Emer- gency Deficit Control Act of 1985. "(2) In the case of a cancellation of any dollar amount of discretionary budget authority or item of new direct spending, the special message shall also include, if applicable- "(A) any account, department, or establish- ment of the Government for which such budget authority was to have been available for obliga- tion and the specific project or governmental functions involved; "(B) the specific States and congressional districts, if any, affected by the cancellation; and "(C) the total number of cancellations im- posed during the current session of Congress of States and congressional districts identified in subparagraph (B). "(c) TRANSMISSION OF SPECIAL MESSAGES TO HOUSE AND SENATE "(1) The President shall transmit to the Congress each special message under this part within five calendar days (excluding Sundays) ---------------------------------------- Page Break ---------------------------------------- 36a after enactment of the law to which the can- cellation applies. Each special message shall be transmitted to the House of Representatives and the Senate on the same calendar day. Such special message shall be delivered to the Clerk of the House of Representatives if the House is not in session, and to the Secretary of the Senate if the Senate is not in session. "(2) Any special message transmitted under this part shall be printed in the first issue of the Federal Register published after such transmit- tal. "CANCELLATION EFFECTIVE UNLESS DISAPPROVED "SEC. 1023. (a) IN GENERAL.- The cancellation of any dollar amount of discretionary budget author- ity, item of new direct spending, or limited tax benefit shall take effect upon receipt in the House of Rep- resentatives and the Senate of the special message notifying the Congress of the cancellation. If a dis- approval bill for such special message is enacted into law, then all cancellations disapproved in that law shall be null and void and any such dollar amount of discretionary budget authority, item of new direct spending, or limited tax benefit shall be effective as of the original date provided in the law to which the cancellation applied. "(b) COMMENSURATE REDUCTIONS IN DISCRETION- ARY BUDGET AUTHORITY. -UPON the cancellation of a dollar amount of discretionary budget authority under subsection (a), the total appropriation for each relevant account of which that dollar amount is a part ---------------------------------------- Page Break ---------------------------------------- 37a shall be simultaneously reduced by the dollar amount of that cancellation. "DEFICIT REDUCTION "SEC. 1024. (a) IN GENERAL.- "(1) DISCRETIONARY BUDGET AUTHORITY. OMB shall, for each dollar amount of discretionary budget authority and for each item of new direct spending canceled from an appropriation law under section 1021(a)- "(A) reflect the reduction that results from such cancellation in the estimates re- quired by section 251(a)(7) of the Balanced Bud- get and Emergency Deficit Control Act of 1985 in accordance with the Act, including an esti- mate of the reduction of the budget authority and the reduction in outlays flowing from such reduction of budget authority for each outyear; and "(B) include a reduction to the discre- tionary spending limits for budget authority and outlays in accordance with the Balanced Budget and Emergency Deficit Control Act of 1985 for each applicable fiscal year set forth in section 601(a)(2) by amounts equal to the amounts for each fiscal year estimated pur- suant to subparagraph (A). "(2) DIRECT SPENDING AND LIMITED TAX BENEFITS.- (A) OMB shall, for each item of new direct spending or limited tax benefit canceled from a law under section 1021(a), estimate the defi- cit decrease caused by the cancellation of such ---------------------------------------- Page Break ---------------------------------------- 38a item or benefit in that law and include such esti- mate as a separate entry in the report prepared pursuant to section 252(d) of the Balanced Budget and Emergency Deficit Control Act of 1985. "(B) OMB shall not include any change in the deficit resulting from a cancellation of any item of new direct spending or limited tax benefit, or the enactment of a disapproval bill for any such cancellation, under this part in the estimates and reports required by sections 252(b) and 254 of the Balanced Budget and Emergency Deficit Control Act of 1985. "(b) ADJUSTMENTS TO SPENDING LIMITS.- After ten calendar days (excluding Sundays) after the expiration of the time period in section 1025(b)(l) for expedited congressional consideration of a disapproval bill for a special message containing a cancellation of discretionary budget authority, OMB shall make the reduction included in subsection (a)(l)(B) as part of the next sequester report required by section 254 of the Balanced Budget and Emergency Deficit Control Act of 1985. "(c) EXCEPTION. -Subsection (b) shall not apply to a cancellation if a disapproval bill or other law that disapproves that cancellation is enacted into law prior to 10 calendar days (excluding Sundays) after the expiration of the time period set forth in section 1025(b)(1). "(d) CONGRESSIONAL BUDGET OFFICE ESTI- MATES.- AS soon as practicable after the President makes a cancellation from a law under section 1021(a), the Director of the Congressional Budget Office shall provide the Committees on the Budget of the House of ---------------------------------------- Page Break ---------------------------------------- 39a Representatives and the Senate with an estimate of the reduction of the budget authority and the reduc- tion in outlays flowing from such reduction of budget authority for each outyear. "EXPEDITED CONGRESSIONAL CONSIDERATION OF DISAPPROVAL BILLS "SEC. 1025. (a) RECEIPT AND REFERRAL OF SPE- CIAL MESSAGE.- Each special message transmitted under this part shall be referred to the Committee on the Budget and the appropriate committee or com- mittees of the Senate and the Committee on the Budget and the appropriate committee or committees of the House of Representatives. Each such message shall be printed as a document of the House of Representatives. "(b) TIME PERIOD FOR EXPEDITED PROCEDURES "(1) There shall be a congressional review period of 30 calendar days of session, beginning on the first calendar day of session after the date on which the special message is received in the House of Representatives and the Senate, during which the procedures contained in this section shall apply to both Houses of Congress. "(2) In the House of Representatives the pro- cedures set forth in this section shall not apply after the end of the period described in paragraph (l). "(3) If Congress adjourns at the end of a Con- gress prior to the expiration of the period de- scribed in paragraph (1) and a disapproval bill was then pending in either House of Congress or a committee thereof (including a conference com- ---------------------------------------- Page Break ---------------------------------------- 40a mittee of the two Houses of Congress), or was pending before the President, a disapproval bill for the same special message may be introduced with- in the first five calendar days of session of the next Congress and shall be treated as a dis- approval bill under this part, and the time period described in paragraph (1) shall commence on the day of introduction of that disapproval bill. "(c) INTRODUCTION OF DISAPPROVAL BILLS.- (1) In order for a disapproval bill to be considered under the procedures set forth in this section, the bill must meet the definition of a disapproval bill and must be introduced no later than the fifth calendar day of session following the beginning of the period de- scribed in subsection (b)(l). "(2) In the case of a disapproval bill introduced in the House of Representatives, such bill shall include in the first blank space referred to in section 1026(6)(C) a list of the reference numbers for all cancellations made by the President in the special message to which such disapproval bill relates. "(d) CONSIDERATION IN THE HOUSE OF REPRESENTA- TIVES.- (1) Any committee of the House of Repre- sentatives to which a disapproval bill is referred shall report it without amendment, and with or without recommendation, not later than the seventh calendar day of session after the date of its introduction. If any committee fails to report the bill within that period, it is in order to move that the House discharge the committee from further consideration of the bill, except that such a motion may not be made after the committee has reported a disapproval bill with respect to the same special message. A motion to discharge may be made only by a Member favoring the bill (but ---------------------------------------- Page Break ---------------------------------------- 41a only at a time or place designated by the Speaker in the legislative schedule of the day after the calendar day on which the Member offering the motion an- nounces to the House his intention to do so and the form of the motion). The motion is highly privileged. Debate thereon shall be limited to not more than one hour, the time to be divided in the House equally be- tween a proponent and an opponent. The previous question shall be considered as ordered on the motion to its adoption without intervening motion. A motion to reconsider the vote by which the motion is agreed to or disagreed to shall not be in order. "(2) After a disapproval bill is reported or a committee has been discharged from further consid- eration, it is in order to move that the House resolve into the Committee of the Whole House on the State of the Union for consideration of the bill. If reported and the report has been available for at least one calendar day, all points of order against the bill and against consideration of the bill are waived. If discharged, all points of order against the bill and against consideration of the bill are waived. The motion is highly privileged. A motion to reconsider the vote by which the motion is agreed to or disagreed to shall not be in order. During consideration of the bill in the Committee of the Whole, the first reading of the bill shall be dispensed with. General debate shall proceed, shall be confined to the bill, and shall not exceed one hour equally divided and controlled by a proponent and an opponent of the bill. The bill shall be considered as read for amendment under the five- minute rule. Only one motion to rise shall be in order, except if offered by the manager. No amend- ment to the bill is in order, except any Member if sup- ---------------------------------------- Page Break ---------------------------------------- 42a ported by 49 other Members (a quorum being present) may offer an amendment striking the reference number or numbers of a cancellation or cancellations from the bill. Consideration of the bill for amendment shall not exceed one hour excluding time for recorded votes and quorum calls. No amendment shall be sub- ject to further amendment, except pro forma amend- ments for the purposes of debate only. At the con- clusion of the consideration of the bill for amendment, the Committee shall rise and report the bill to the House with such amendments as may have been adopted. The previous question shall be considered as ordered on the bill and amendments thereto to final passage without intervening motion. A motion to reconsider the vote on passage of the bill shall not be in order. "(3) Appeals from decisions of the Chair re- garding application of the rules of the House of Rep- resentatives to the procedure relating to a dis- approval bill shall be decided without debate. "(4) It shall not be in order to consider under this subsection more than one disapproval bill for the same special message except for consideration of a similar Senate bill (unless the House has already rejected a disapproval bill for the same-special message] or more than one motion to discharge described in paragraph (1) with respect to a disapproval bill for that special message. "(e) CONSIDERATION IN THE SENATE.- "(1) REFERRAL AND REPORTING.- Any disap- proval bill introduced in the Senate shall be referred to the appropriate committee or commit- tees. A committee to which a disapproval bill has ---------------------------------------- Page Break ---------------------------------------- 43a been referred shall report the bill not later than the seventh day of session following the date of introduction of that bill. If any committee fails to report the bill within that period, that committee shall be automatically discharged from further consideration of the bill and the bill shall be placed on the Calendar. "(2) DISAPPROVAL BILL FROM HOUSE.- When the Senate receives from the House of Rep- resentatives a disapproval bill, such bill shall not be referred to committee and shall be placed on the Calendar. "(3) CONSIDERATION OF SINGLE DISAPPROVAL BILL.- After the Senate has proceeded to the consideration of a disapproval bill for a special message, then no other disapproval bill originating in that same House relating to that same message shall be subject to the procedures set forth in this subsection. "(4) AMENDMENTS.- "(A) AMENDMENTS IN ORDER.- The only amendments in order to a disapproval bill are- "(i) an amendment that strikes the reference number of a cancellation from the disapproval bill; and "(ii) an amendment that only inserts the reference number of a cancellation in- cluded in the special message to which the disapproval bill relates that is not already contained in such bill. ---------------------------------------- Page Break ---------------------------------------- 44a "(B) WAIVER OR APPEAL.- An affirmative vote of three-fifths of the Senators, duly chosen and sworn, shall be required in the Senate- "(i) to waive or suspend this para- graph; or "(ii) to sustain an appeal of the ruling of the Chair on a point of order raised under this paragraph. "(5) MOTION NONDEBATABLE.- A motion to proceed to consideration of a disapproval bill under this subsection shall not be debatable. It shall not be in order to move to reconsider the vote by which the motion to proceed was adopted or rejected, although subsequent motions to proceed may be made under this paragraph. "(6) LIMIT ON CONSIDERATION.- (A) After no more than 10 hours of consideration of a dis- approval bill, the Senate shall proceed, without intervening action or debate (except as permitted under paragraph (9)), to vote on the final disposi- tion thereof to the exclusion of all amendments not then pending and to the exclusion of all motions, except a motion to reconsider or to table. "(B) A single motion to extend the time for consideration under subparagraph (A) for no more than an additional five hours is in order prior to the expiration of such time and shall be decided without debate. ---------------------------------------- Page Break ---------------------------------------- 45a "(C) The time for debate on the disapproval bill shall be equally divided between the Majority Leader and the Minority Leader or their desig- nees. "(7) DEBATE ON AMENDMENTS.- Debate on any amendment to a disapproval bill shall be limited to one hour, equally divided and controlled by the Senator proposing the amendment and the major- ity manager, unless the majority manager is in favor of the amendment, in which case the minor- ity manager shall be in control of the time in opposition. "(8) NO MOTION TO RECOMMIT.- A motion to recommit a disapproval bill shall not be in order. "(9) DISPOSITION OF SENATE DISAPPROVAL BILL.- If the Senate has read for the third time a disapproval bill that originated in the Senate, then it shall be in order at any time thereafter to move to proceed to the consideration of a disapproval bill for the same special message received from the House of Representatives and placed on the Calendar pursuant to paragraph (2), strike all after the enacting clause, substitute the text of the Senate disapproval bill, agree to the Senate amendment, and vote on final disposition of the House disapproval bill, all without any intervening action or debate. "(10) CONSIDERATION OF HOUSE MESSAGE.- Consideration in the Senate of all motions, amend- ments, or appeals necessary to dispose of a mes- sage from the House of Representatives on a ---------------------------------------- Page Break ---------------------------------------- 46a disapproval bill shall be limited to not more than four hours. Debate on each motion or amendment shall be limited to 30 minutes. Debate on any appeal or point of order that is submitted in con- nection with the disposition of the House message shall be limited to 20 minutes. Any time for debate shall be equally divided and controlled by the proponent and the majority manager, unless the majority manager is a proponent of the motion, amendment, appeal, or point of order, in which case the minority manager shall be in control of the time in opposition. "(f) CONSIDERATION IN CONFERENCE.- "(1) CONVENING OF CONFERENCE.- In the case of disagreement between the two Houses of Con- gress with respect to a disapproval bill passed by both Houses, conferees should be promptly ap- pointed and a conference promptly convened, if necessary. "(2) HOUSE CONSIDERATION.- (A) Notwith- standing any other rule of the House of Repre- sentatives, it shall be in order to consider the report of a committee of conference relating to a disapproval bill provided such report has been available for one calendar day (excluding Satur- days, Sundays, or legal holidays, unless the House is in session on such a day) and the accompanying statement shall have been filed in the House. "(B) Debate in the House of Representatives on the conference report and any amendments in disagreement on any disapproval bill shall each be limited to not more than one hour equally divided ---------------------------------------- Page Break ---------------------------------------- 47a and controlled by a proponent and an opponent. A motion to further limit debate is not debatable. A motion to recommit the conference report is not in order, and it is not in order to move to reconsider the vote by which the conference report is agreed to or disagreed to. "(3) SENATE CONSIDERATION.- Consideration in the Senate of the conference report and any amendments in disagreement on a disapproval bill shall be limited to not more than four hours equally divided and controlled by the Majority Leader and the Minority Leader or their desig- nees. A motion to recommit the conference report is not in order. "(4) LIMITS ON SCOPE.- (A) When a disagree- ment to an amendment in the nature of a substi- tute has been referred to a conference, the confer- ees shall report those cancellations that were included in both the bill and the amendment, and may report a cancellation included in either the bill or the amendment, but shall not include any other matter. "(B) When a disagreement on an amendment or amendments of one House to the disapproval bill of the other House has been referred to a committee of conference, the conferees shall report those cancellations upon which both Houses agree and may report any or all of those cancellations upon which there is disagreement, but shall not include any other matter. ---------------------------------------- Page Break ---------------------------------------- 48a "DEFINITIONS "SEC. 1026. As used in this part: "(l) APPROPRIATION LAW.- The term `appropria- tion law' means an Act referred to in section 105 of title 1, United States Code, including any general or special appropriation Act, or any Act making sup- plemental, deficiency, or continuing appropriations, that has been signed into law pursuant to Article I, section 7, of the Constitution of the United States. "(2) CALENDAR DAY.- The term 'calendar day' means a standard 24-hour period beginning a mid- night. "(3) CALENDAR DAYS OF SESSION.- The term 'cal- endar days of session' shall mean only those days on which both Houses of Congress are in session. "(4) CANCEL.- The term 'cancel' or 'cancellation' means- "(A) with respect to any dollar amount of discretionary budget authority, to rescind; "(B) with respect to any item of new direct spending- "(i) that is budget authority provided by law (other than an appropriation law), to prevent such budget authority from having legal force or effect; "(ii) that is entitlement authority, to prevent the specific legal obligation of the United States from having legal force or effect; or ---------------------------------------- Page Break ---------------------------------------- 49a "(iii) through the food stamp program, to prevent the specific provision of law that results in an increase in budget authority or outlays for that program from having legal force or effect; and "(C) with respect to a limited tax benefit, to prevent the specific provision of law that provides such benefit from having legal force of effect. "(5) DIRECT SPENDING.- The term 'direct spend- ing' means- "(A) budget authority provided by law (other than an appropriation law); "(B) entitlement authority and "(C) the food stamp program. "(6) DISAPPROVAL BILL.- The term 'disapproval bill' means a bill or joint resolution which only disapproves one or more cancellations of dollar amounts of discretionary budget authority, items of new direct spending, or limited tax benefits in a special message transmitted by the President under this part and- "(A) the title of which is as follows: 'A bill disapproving the cancellations transmitted by the President on _, the blank space being filled in with the date of transmission of the relevant special message and the public law number to which the message relates; "(B) which does not have a preamble; and "(C) which provides only the following after the enacting clause: 'That Congress disapproves of ---------------------------------------- Page Break ---------------------------------------- 50a cancellations _', the blank space being filled in with a list by reference number of one or more cancellations contained in the President's special message, 'as transmitted by the President in a special message on -' , the blank space being filled in with the appropriate date, `regarding _.', the blank space being filled in with the public law number to which the special message relates. "(7) DOLLAR AMOUNT OF DISCRETIONARY BUDGET AUTHORITY.- (A) Except as provided in subparagraph (B), the term 'dollar amount of discretionary budget authority' means the entire dollar amount of budget authority- "(i) specified in an appropriation law, or the entire dollar amount of budget authority required to be allocated by a specific proviso in a appropria- tion law for which a specific dollar figure was not included; "(ii) represented separately in any table, chart, of explanatory text included in the state- ment of managers or the governing committee report accompanying such law; "(iii) required to be allocated for a specific program, project, or activity in a law (other than an appropriation law) that mandates the expendi- ture of budget authority from accounts, programs, projects, or activities for which budget authority is provided in an appropriation law; "(iv) represented by the product of the esti- mated procurement cost and the total quantity of items specified in an appropriation law or included ---------------------------------------- Page Break ---------------------------------------- 51a in the statement of managers or the governing committee report accompanying such law; and "(v) represented by the product of the estimated procurement cost and the total quantity of items required to be provided in a law (other than an appropriation law) that mandates the expenditure of budget authority from accounts, programs, projects, or activities for which budget authority is provided in an appropriation law. "(B) The term 'dollar amount of discretionary budget authority' does not include- "(i) direct spending "(ii) budget authority in an appropriation law which funds direct spending provided for in other law; "(iii) any existing budget authority re- scinded or canceled in an appropriation law or "(iv) any restriction, condition, or limitation in an appropriation law or the accompanying state- ment of managers or committee reports on the expenditure of budget authority for an account, program, project, or activity, or on activities in- volving such expenditure. "(8) ITEM OF NEW DIRECT SPENDING.- The term 'item of new direct spending' means any specific provision of law that is estimated to result in an increase in budget authority or outlays for direct spending relative to the most recent levels calculated pursuant to section 257 of the Balanced Budget and Emergency Deficit Control Act of 1985. ---------------------------------------- Page Break ---------------------------------------- 52a "(9) LIMITED TAX BENEFIT.- (A) The term 'limited tax benefit' means- "(i) any revenue-losing provision which provides a Federal tax deduction, credit, exclusion, or preference to 100 or fewer beneficiaries under the Internal Revenue Code of 1986 in any fiscal year for which the provision is in effect; and "(ii) any Federal tax provision which pro- vides temporary or permanent transitional relief for 10 or fewer beneficiaries in any fiscal year from a change to the Internal Revenue Code of 1986. "(B) A provision shall not be treated as described in subparagraph (A)(i) if the effect of that provision is that- "(i) all persons in the same industry or engaged in the same type of activity receive the same treatment; "(ii) all persons owning the same type of property, or issuing the same type of investment, receive the same treatment; or "(iii) any difference in the treatment of persons is based solely on- "(I) in the case of businesses and associations, the size or form of the business or association involved; "(II) in the case of individuals, general demographic conditions, such as income, marital status, number of dependents, or tax return filing status; ---------------------------------------- Page Break ---------------------------------------- 53a "(III) the amount involved; or "(IV) a generally-available election un- der the Internal Revenue Code of 1986. "(C) A provision shall not be treated as described in subparagraph (A)(ii) if- "(i) it provides for the retention of prior law with respect to all binding contracts or other legally enforceable obligations in existence on a date contemporaneous with congressional action specifying such date; or "(ii) it is a technical correction to previ- ously enacted legislation that is estimated to have no revenue effect. "(D) For purposes of subparagraph (A)- "(i) all businesses and associations which are related within the meaning of sections 707(b) and 1563(a) of the Internal Revenue Code of 1986 shall be treated as a single beneficiary; "(ii) all qualified plans of an employer shall be treated as a single beneficiary; "(iii) all holders of the same bond issue shall be treated as a single beneficiary, and "(iv) if a corporation, partnership, associa- tion, trust or estate is the beneficiary of a provi- sion, the shareholders of the corporation, the part- ners of the partnership, the members of the asso- ciation, or the beneficiaries of the trust or estate shall not also be treated as beneficiaries of such provision. ---------------------------------------- Page Break ---------------------------------------- 54a "(E) For purposes of this paragraph, the term 'revenue-losing provision' means any provision which results in a reduction in Federal tax revenues for any one of the two following periods- "(i) the first fiscal year for which the pro- vision is effective; or "(ii) the period of the 5 fiscal years begin- ning with the first fiscal year for which the pro- visions is effective. "(F) The terms used in this paragraph shall have the same meaning as those terms have generally in the Internal Revenue Code of 1986, unless otherwise expressly provided. "(10) OMB.- The term 'OMB' means the Director of the Office of Management and Budget. "IDENTIFICATION OF LIMITED TAX BENEFITS "SEC. 1027. (a) STATEMENT BY JOINT TAX COM- MITTEE.- The Joint Committee on Taxation shall re- view any revenue or reconciliation bill or joint resolu- tion which includes any amendment to the Internal Revenue Code of 1986 that is being prepared for filing by a committee of conference of the two Houses, and shall identify whether such bill or joint resolution contains any limited tax benefits. The Joint Commit- tee on Taxation shall provide to the committee of conference a statement identifying and such limited tax benefits or declaring that the bill or joint resolution does not contain any limited tax benefits. Any such statement shall be made available to any Member of Congress by the Joint Committee on Taxation immediately upon request. ---------------------------------------- Page Break ---------------------------------------- 55a "(b) STATEMENT INCLUDED IN LEGISLATION.- (1) Notwithstanding any other rule of the House of Representatives or any rule or precedent of the Senate, any revenue or reconciliation bill or joint resolution which includes any amendment to the Internal Revenue Code of 1986 reported by a com- mittee of conference of the two Houses may include, as a separate section of such bill or joint resolution, the information contained in the statement of the Joint Committee on Taxation, but only in the manner set forth in paragraph (2) "(2) The separate section permitted under para- graph (1) shall read as follows: 'Section 1021(a)(3) of the Congressional Budget and Impoundment Control Act of 1974 shall _ apply to _.', with the blank spaces being filled in with- "(A) in any case in which the Joint Com- mittee on Taxation identifies limited tax benefits in the statement required under subsection (a), the word 'only' in the first blank space and a list of all of the specific provisions of the bill or joint resolution identified by the Joint Committee on Taxation in such statement in the second blank space; or "(B) in any case in which the Joint Com- mittee on Taxation declares that there are no limited tax benefits in the statement required under subsection (a), the word 'not' in the first blank space and the phrase 'any provision of this Act' in the second blank space. "(c) PRESIDENT'S AUTHORITY.- If any revenue or reconciliation bill or joint resolution is signed into ---------------------------------------- Page Break ---------------------------------------- 56a law pursuant to Article I, section 7, of the Con- stitution of the United States- "(1) with a separate section described in sub- section (b)(2), then the President may use the authority granted in section 1021(a)(3) only to cancel any limited tax benefit in that law, if any, identified in such separate section; or "(2) without a separate section described in subsection (b)(2), then the President may use the authority granted in section 1021(a)(3) to cancel any limited tax benefit in that law that meets the definition in section 1026. "(d) CONGRESSIONAL IDENTIFICATION OF LIMITED TAX BENEFITS.- There shall be no judicial review of the congressional identification under subsection (a) and (b) of a limited tax benefit in a conference report.". SEC. 3. JUDICIAL REVIEW. (a) EXPEDITED REVIEW.- (1) Any Member of Congress or any individual adversely affected by part C of title X of the Congressional Budget and Impoundment Control Act of 1974 may bring an action, in the United States District Court for the District of Colum- bia, for declaratory judgment and injunctive relief on the ground that any provision of this part violates the Constitution. (2) A copy of any complaint in an action brought under paragraph (1) shall be promptly delivered to the Secretary of the Senate and the Clerk of the House of Representatives, and each ---------------------------------------- Page Break ---------------------------------------- 57a House of Congress shall have the right to inter- vene in such action. (3) Nothing in this section or in any other law shall infringe upon the right of the House of Representatives to intervene in an action brought under paragraph (1) without the necessity of adopting a resolution to authorize such interven- tion. (b) APPEAL TO SUPREME COURT.- Notwithstand- ing any other provision of law, any order of the United States District Court for the District of Columbia which is issued pursuant to an action brought under paragraph (1) of subsection (a) shall be reviewable by appeal directly to the Supreme Court of the United States. Any such appeal shall be taken by a notice of appeal filed within 10 calendar days after such order is entered; and the jurisdictional state- ment shall be filed within 30 calendar days after such order is entered. No stay of an order issued pursuant to an action brought under paragraph (1) of subsection (a) shall be issued by a single Justice of the Supreme Court. (c) EXPEDITED CONSIDERATION.- It shall be the duty of the District Court for the District of Colum- bia and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any matter brought under subsection (a). SEC. 4. CONFORMING AMENDMENTS. (a) SHORT TITLES.- Section l(a) of the Con- gressional Budget and Impoundment Control Act of 1974 is amended by- ---------------------------------------- Page Break ---------------------------------------- 58a (1) striking "and" before "title X" and in- serting a period; (2) inserting "Parts A and B of" before "title X"; and (3) inserting at the end the following new sentence: "Part C of title X may be cited as the 'Line Item Veto Act of 1996'.". (b) TABLE OF CONTENTS.- The table of Contents set forth in section l(b) of the Congressional Budget and Impoundment Control Act of 1974 is amended by adding at the end the following: "PART C-LINE ITEM VETO "Sec. 1021. Line item veto authority. "Sec. 1022. Special messages. "Sec. 1023. Cancellation effective unless disap- proved. "Sec. 1024. Deficit reduction. "Sec. 1025. Expedited congressional consideration of disapproval bills. "Sec. 1026. Definitions. "Sec. 1027. Identification of limited tax benefits.". (c) EXERCISE OF RULEMAKING POWERS.- Section 904(a) of the Congressional Budget Act of 1974 is amended by striking "and 1017" and inserting ", 1017, 1025, and 1027". SEC. 5. EFFECTIVE DATES. This Act and the amendments made by it shall take effect and apply to measures enacted on the earlier of- (1) the day after the enactment into law, pursuant to Article I, section 7, of the Constitu- ---------------------------------------- Page Break ---------------------------------------- 59a tion of the United States, of an Act entitled "An Act to provide for a seven-year plan for deficit reduction and achieve a balanced Federal budget."; or (2) January 1, 1997; and shall have no force or effect on or after January 1, 2005. Approved April 9,1996. ---------------------------------------- Page Break ----------------------------------------