Day 429: Trump Bluffs on Veto, Demands Unconstitutional Power in Future

Donald Trump signed a $1.3 trillion omnibus budget bill on Friday, funding the government through September. The bill was wildly unpopular with huge chunks of Trump’s base, as it gave Democrats a lot of what they wanted in exchange for more money to the military. Trump got relative pennies for his southern border wall, and that money will largely be used to improve structures that are already in place.

Trump, sensing his base’s anger late in the week, abruptly threatened to veto the bill on Friday morning. Just one problem: many members of Congress had already left for recess, meaning a veto of a bipartisan bill would trigger a lengthy government shutdown that could only be blamed on Trump.

Begrudgingly, he signed the bill, though he vowed to never sign one like it again, and asked Congress to give up some of their power by giving him a line-item veto for spending bills.

A line-item veto would allow Trump to reject certain provisions of legislation without vetoing the entire bill. In essence, he could strike all Democratic-supported portions of a bill if he wanted.

One teeny-tiny problem: the Supreme Court has already ruled line-item vetoes unconstitutional.

When Bill Clinton was the president, Congress afforded him line-item veto rights. However, in Clinton v. City of New York, the Supreme Court found that the line-item veto afforded to Clinton was unconstitutional because it gave a president the right to unilaterally amend or repeal parts of enacted statutes, violating the Presentment Clause. That clause outlines how bills should be passed and signed. The Presentment Clause notes of a president: “If he approve he shall sign it, but if not he shall return it.” There’s no room for line-item vetoes in that language, the Court ruled.

While a differently crafted line-item veto bill, in theory, could try to get around the Clinton ruling, it will be difficult to overcome the underlying legal theory. Three members of the majority or concurring opinions, who make up very different ideologies, are still on the Court.

The new members of the Court could help overrule precedent, but Chief Justice John Roberts is a big believer in the necessity of stare decisis, which is a legal principle in which courts adhere to their precedent. On top of that, Justice Clarence Thomas was part of the Clinton majority, and he and Justice Samuel Alito vote together on virtually every case. On the complete opposite side of the spectrum, Justice Ruth Bader Ginsburg was also on the Clinton majority, and Justices Elena Kagen and Sonia Sotomayor overwhelmingly vote as a bloc. The swing vote on many cases, Justice Anthony Kennedy was also on the Clinton majority. A new bill overcoming right, left and center ideologies will be nearly impossible.

In short, Trump’s request for a line-item veto involves Congress voluntarily undercutting their own power, has already been ruled unconstitutional and would likely be ruled unconstitutional again if Congress was able to fashion a new law granting Trump that power.

Trump bluffed and ultimately did nothing. He said he won’t sign an omnibus bill like this again, but the truth is, he may not have a choice.

429 days in, 1033 to go

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