Why Not Impoundment?
The Obama administration has announced another effort to give the president some sort of line-item veto authority. Since the Supreme Court has made clear that a statutory line-item veto is unconstitutional--Republicans gave it to Bill Clinton in 1996 and it was ruled unconstitutional in 1998--Obama is asking for enhanced rescission authority. Basically, the president would ask for spending cuts and Congress would be forced to vote upon them as a package.
I have no problem with this legislation; I do believe that insofar as the budget is concerned that the president needs more authority vis a vis Congress. However, I think there really is a much simpler way of getting around the constitutional problem--just repeal the part of the Budget Act which prohibits impoundment.
In essence, impoundment means that if the president doesn't want to spend money appropriated by Congress he simply impounds it; i.e., doesn't spend it. It has exactly the same effect as a line-item veto and is unquestionably constitutional--every president up until Nixon had and routinely used impoundment to control spending.
But in 1973, Nixon became heavy-handed in his use of impoundment, which outraged members of Congress of both parties. Legislation was drafted to eliminate impoundment and force the president to spend every penny appropriated by Congress exactly as Congress intended. All the president could do to change congressional priorities was ask for a rescission or deferral. But there was no way of forcing Congress to act on these requests and most were simply ignored.
Under ordinary circumstances, Nixon would have vetoed the impoundment bill as an infringement on long established presidential authority. But unfortunately the Watergate scandal broke just as the congressional fight over impoundment legislation reached its peak. The best that Nixon and congressional Republicans could do was to attach budget reform measures to the impoundment bill. The resulting law, one of the last signed by Nixon before resigning, was the Congressional Budget and Impoundment Control Act of 1974. Since almost everyone just calls it the Budget Act of 1974, people have forgotten that restricting impoundment was actually the central purpose of the legislation.
Therefore, it would seem to me that simply getting rid of or amending the section of the Budget Act relating to impoundment could give the president de facto line item veto power in a way that would be much more effective than enhanced rescission authority and would certainly be constitutional.