Wednesday, November 26, 2008

Line by line

In a press conference yesterday, President-elect Obama had this to say about the federal budget:

"CHICAGO – The economy growing weaker, President-elect Barack Obama said Tuesday that recovery efforts will trump deficit concerns when he takes office in January. Yet he pledged a 'page-by-page, line-by-line' budget review to root out unneeded spending."

All the press coverage I've seen of this don't make the point that constitutionally speaking, the President's ability to formulate a federal budget is pretty much only advisory. Look at who is given the power, under our Constitution, over taxing, borrowing, spending, and the like:

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States..."
(Article 1, Section 8).

"No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public
Money shall be published from time to time."
(Article 1, Section 9).

The Section 9 excerpt doesn't specify Congress, as the Section 8 excerpt does, but since it's in Article I, which mostly deals with Congress, and since "Appropriations made by Law" would have to conform to the power to tax and spend, given to Congress, we can safely assume drawing money from the treasury is not an executive power.

As for this "page-by-page, line-by-line" review President-elect Obama promises, that too, is something he can only advise on, and even there he can only do so before a budget is made, not after Congress has passed it. When one hears a President speak of line-by-line review, it actually sounds a lot like he believes he has line item veto authority over spending bills that pass both Houses.

He doesn't; the Supreme Court said so ten years ago when they struck down a bill Congress passed in which they tried to give the line-item veto to the President. The case was Clinton v. City of New York 524 U.S. 417 (1998), and if anybody ever wants to give it a nickname, how about the "Strange Judicial Bedfellows" case. You've got Breyer and Ginsburg on opposite sides, same with Scalia and Thomas.

On the basis of his impressive victory, Barack Obama may indeed have the clout to induce Congress to formulate a federal budget as he would wish to see. But remember: once they've passed it, he can only say yea or nay. If the bill has provisions to spend on fifty different projects and Obama only approves of twenty-five of them, he can't go down the list and say, "This one's fine, no way on that one, cut the funding for this one about twenty percent." He's got to take it all or approve nothing.

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