StanCollender'sCapitalGainsandGames Washington, Wall Street and Everything in Between

Last Word on Impoundment

25 May 2010
Posted by Bruce Bartlett

I don't want to get into an argument with Stan, whose knowledge of the Budget Act is certainly superior to my own. Nor am I in the mood to research the legislative history of that legislation. But I do think that Stan misunderstands the precise meaning of the word impoundment. In this respect, I quote Justice Scalia from Clinton v. New York, the 1998 case that found statutory line-item veto unconstitutional:

The short of the matter is this: Had the Line Item Veto Act authorized the President to “decline to spend” any item of spending contained in the Balanced Budget Act of 1997, there is not the slightest doubt that authorization would have been constitutional. What the Line Item Veto Act does instead–authorizing the President to “cancel” an item of spending–is technically different. But the technical difference does not relate to the technicalities of the Presentment Clause, which have been fully complied with; and the doctrine of unconstitutional delegation, which is at issue here, is preeminently not a doctrine of technicalities. The title of the Line Item Veto Act, which was perhaps designed to simplify for public comprehension, or perhaps merely to comply with the terms of a campaign pledge, has succeeded in faking out the Supreme Court. The President’s action it authorizes in fact is not a line-item veto and thus does not offend Art. I, §7; and insofar as the substance of that action is concerned, it is no different from what Congress has permitted the President to do since the formation of the Union.

Given that impoundment was used by virtually every president dating back to the earliest days of the Republic, I think it's a stretch for Stan to say the practice was illegal. On the other hand, impoundment is clearly a less satisfactory means of controlling spending than a line-item veto, which explains why Grant, FDR and JFK all asked Congress for line-item veto authority.

Lastly, I would say that I don't think that the line-item veto is any cure-all for our budget woes--the vast bulk of spending would be exempt and earmarks constitute only about one half of one percent of spending. But I think it's a tool presidents should have to strengthen their hand in terms of shaping the composition of spending even if it wouldn't do much to reduce the amount.

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