Presidential Rescission Authority: Efforts to Modify the 1974 Framework
CRS Report for Congress
Presidential Rescission Authority:
Efforts to Modify the 1974 Framework
Updated December 23, 2004
Virginia A. McMurtry
Specialist in American National Government
Government and Finance Division
Congressional Research Service ˜ The Library of Congress
Presidential Rescission Authority:
Efforts to Modify the 1974 Framework
Summary
The Impoundment Control Act (ICA) constituted Title X of the Congressional
Budget and Impoundment Control Act of 1974 (P.L. 93-344, 99 Stat. 297). The ICA
designated two categories of impoundments: deferrals, or temporary delays in
funding availability, and rescissions, or permanent cancellations of budget authority.
The act stipulated different procedures for congressional review and control of the
two types of impoundment actions. In the case of a rescission, the ICA provided that
the funds must be made available for obligation unless both houses of Congress took
action to approve the rescission request of the President within 45 days of continuous
session (not counting recesses of more than three days).
As experience with the Impoundment Control Act produced growing concern
with the existing framework, attention came to focus on three different approaches
to granting the President greater authority over the spending of funds provided by
Congress. With enhanced rescission, the burden of action was reversed, creating a
presumption favoring the President. Unlike the original framework of the 1974 act,
with enhanced rescission, budget authority identified in the President’s message
remains canceled unless Congress acts to disapprove the President’s action within a
prescribed period. Under expedited rescission, the intent was to ensure a vote in
Congress on rescission requests by various procedural requirements. Such proposals
usually contain a specific timetable along with expedited procedures to facilitate
congressional review and action on rescission messages from the President. A third
approach, called separate enrollment, more closely resembled a statutory item veto.
With separate enrollment, an appropriations bill was broken up into many individual
pieces by the enrolling clerk prior to presentation for the President’s signature. So,
each item of appropriation became a separate bill, giving the President de facto item
veto authority.
Since 1974, repeated attempts have been made in Congress to amend the ICA
or otherwise provide the President with expanded rescission or overt item veto
authority. After reviewing selected floor votes of interest, using Congressional
Research Service files and Library of Congress databases, this report assesses these
attempts to expand the President’s power. The majority of the votes examined (23
out of 36, or more than 60%) dealt with enhanced or expedited rescission proposals,
while 10 votes involved separate enrollment procedures.
Impoundment reform efforts culminated in the Line Item Veto Act of 1996
(P.L. 104-130, 110 Stat. 1200). However, it was held unconstitutional by the
Supreme Court in 1998. In the aftermath of that decision, there has been renewed
interest in other approaches that might pass constitutional muster. Several measures
have been introduced in subsequent Congresses to provide alternative statutory
means for conveying expanded rescission authority to the President.
This report will be updated as events warrant.
Contents
In troduction ......................................................1
Overview of Votes Covered..........................................2
Initial Efforts at Floor Votes.........................................3
House and Senate Votes in the 102nd Congress...........................7
House and Senate Votes in the 103rd Congress...........................9
Action in the 104th Congress........................................11
The 105th Congress and Beyond......................................12
List of Tables
or Expanded Rescission Authority, 98-108Congresses...........4
Presidential Recession Authority:
Efforts to Modify the 1974 Framework
Introduction
The Impoundment Control Act (ICA) constituted Title X of the Congressional
Budget and Impoundment Control Act of 1974 (P.L. 93-344, 99 Stat. 297). The ICA
designated two categories of impoundments: deferrals, or temporary delays in
funding availability, and rescissions, or permanent cancellations of budget authority.
The act stipulated different procedures for congressional review and control of the
two types of impoundment actions. In the case of a rescission, the ICA provided that
the funds must be made available for obligation unless both houses of Congress took
action to approve the President’s rescission request within 45 days of continuous
session (not counting recesses of more than three days).
As experiences with the Impoundment Control produced growing dissatisfaction
with the existing framework, attention came to focus on three different approaches
to granting the President greater authority over the spending of funds provided by
Congress. With enhanced rescission, the burden of action was reversed, creating a
presumption favoring the President. Unlike the original framework of the 1974 act,
with enhanced rescission, budget authority identified in the President’s message
remains canceled unless Congress acts to disapprove the action of the President
within a prescribed period. Under expedited rescission, the intent was to ensure a
vote in Congress on rescission requests by various procedural requirements. Such
proposals usually contain a specific timetable along with expedited procedures to
facilitate congressional review and action on rescission messages from the President.
A third approach, called separate enrollment, more closely resembled a statutory
item veto. With separate enrollment, an appropriations bill was broken up into many
individual pieces by the enrolling clerk prior to presentation for the President’s
signature. So, each item of appropriation became a separate bill, giving the President
de facto item veto authority.
Since 1974, repeated attempts have been made in Congress to amend the ICA,
or otherwise provide the President with expanded rescission or overt item veto
authority.1 This report reviews House and Senate floor votes on selected measures
to expand the President’s power to rescind appropriated funds or grant authority to
veto items in appropriations bills (see Table 1 below).
1 For a historical review of impoundment reform efforts, see CRS Issue Brief IB89148, Item
Veto and Expanded Impoundment Proposals, by Virginia A. McMurtry.
This impoundment reform effort culminated in the Line Item Veto Act of 1996
(P.L. 104-130, 110 Stat. 1200).2 However, it was held unconstitutional by the
Supreme Court in 1998. In the aftermath of that decision, there has been renewed
interest in previous approaches that might pass constitutional muster. Several
measures have been introduced in the subsequent Congresses to provide alternative
statutory means for conveying expanded rescission authority to the President.
Overview of Votes Covered
A review was made of selected votes of interest, using Congressional Research
Service files and Library of Congress databases. The examination is characterized
as “selected,” since the method of review could have missed some relevant instances,
but the proffered results are thought to be relatively comprehensive. Some of the
votes are on procedural issues, as indicated in the table, rather than on the proposal
itself. The votes occurred from the 98th to the 108th Congresses, covering the period
since the enactment of the Impoundment Control Act.
During the 22-year review period (1983-2004), at least 36 floor votes occurred
on selected measures to provide the President with expanded impoundment authority
(see Table 1). The majority of these votes, 23 out of 36, or more than 60%, dealt with
enhanced or expedited rescission proposals. Eight reflected the expedited rescissionrd
approach, while 15 incorporated enhanced rescission. Also counted were two 103
Congress votes on an amendment to the Budget Resolution for FY1994 containing
sense-of-the-Senate provisions in support of expedited or enhanced rescission.
Ten votes listed in Table 1 had to do with separate enrollment procedures. The
Mattingly bills in the 98th and 99th Congresses, providing early examples of this
approach, required that each item of an appropriation’s measure — i.e., “any
numbered section or unnumbered paragraph” — be enrolled as a separate bill. With
this version of separate enrollment (which again became central to the impoundment
reform debate in the 104th Congress), an appropriation bill is broken up into many
“billets” prior to presentation for the President’s signature. Other measures placed in
the separate enrollment category, such as the Evans amendments in the 100th
Congress, would have broken up omnibus continuing resolutions into components
akin to regular appropriations bills. While such proposals may not, strictly speaking,
be comparable, they were deemed to be within the scope of this report.
Three other votes listed in Table 1 are on or relate to measures characterized as
item veto proposals per se. Two proposals voted on in the 98th Congress contained
language identical (Gramm amendment) or similar (Gingrich amendment) to a
formulation first offered in the 75th Congress, when the Independent Offices
Appropriations for 1939 contained an amendment, approved by voice vote in the
House, but dropped before final passage, that sought to allow the President to
2 For further discussion of the legislative history of P.L. 104-130, see ibid.; and Philip G.
Joyce and Robert D. Reischauer, “The Federal Line-Item Veto: What Is It and What Will
It Do?” Public Administration Review, vol. 57, Mar./Apr. 1997, pp. 96-97.
eliminate or reduce appropriations by executive order.3 Over the years, many
proposals have been introduced to grant the President an item veto by constitutional
amendment, but the only floor vote on such a measure occurred in 1992.
Initial Efforts at Floor Votes
As indicated in Table 1, the first floor vote on an expanded rescission proposal
occurred in 1983, less than 10 years after enactment of the Impoundment Control
Act. Additional votes occurred in each succeeding Congress until the 105th, with the
frequency of floor considerations of expanded rescission or item veto proposals
increasing markedly after 1991. The discussion that follows highlights these events
Congress by Congress, beginning with the 102nd Congress. However, before turningst
to that review, it is useful to note briefly some preliminary developments in the 101
Congress.
In the 101st Congress, a new hybrid version of impoundment reform legislation
appeared, reflecting features of both enhanced and expedited rescission approaches
(but classified Table 1 according to their predominant components of enhanced4
rescission). The Legislative Line Item Veto Act of 1989 (S. 1553) sought to provide
the President with enhanced rescission (termed “item veto”) authority by amending
the ICA to allow transmission of a special rescission message within 10 days of
enactment of appropriations measures or to accompany the President’s annual budget
submission. Budget authority so rescinded remained canceled unless Congress
disapproved (with expedited procedures provided) within 20 days.
Twice in the 101st Congress, the provisions of S. 1553 were offered as an
amendment during Senate floor debate. After several unsuccessful attachment
attempts in the fall of 1989, Senator Dan Coats sought to incorporate the provisions
of S. 1553 into a November 9, 1989, amendment to the conference report for the
Department of Transportation Appropriations Act for FY1990.5 However, the Senate
rejected (51-40) a motion to waive section 306 of the Congressional Budget Act of
1974 (which prohibits consideration of budget process legislation not reported by the
Budget Committee), and a point of order raised against the amendment was
sustained. A second attempt was made to offer provisions of S. 1553 as an
amendment, this time to a measure amending the Federal Aviation Act of 1958. Led
by Senator John McCain on June 6, 1990, it failed (43-50) on the same procedural6
grounds.
3 See Representative Clifton Woodrum, remarks in the House, Congressional Record, vol.
4 S. 1553 was introduced by Senator Dan Coats on Aug. 4, 1989. A House companion
measure, H.R. 3271, was introduced by Representative Tom Tauke on Sept. 13, 1989.
5 Congressional Record, daily edition, vol. 135, Oct. 9, 1989, pp. S15336-S15358.
6 Senate debate on S. 341, concerning air travel rights for blind individuals. Congressional
Record, daily edition, vol. 136, June 6, 1990, pp. S7457-S7478.
1. Selected Votes on or Relating to Measures to Provide Item Veto or Expanded Rescission
Authority, 98th-108th Congresses*
CongressMeasureSponsorDate/ChamberVoteType of Proposal
108th Amendment to H.R. 4663Ryan of WI06/24/04174-237Expedited rescission
House
104thS. 4, conference reportClinger/Dole3/28/96232-177Enhanced rescission
House
104thS. 4, conference reportClinger/Dole3/27/9669-31Enhanced rescission
Senate
104thS. 4, as amendedDole3/23/9569-29Separate enrollment
Senate
104thH.R. 2, as amendedClinger2/6/95 294-134Enhanced rescission
iki/CRS-RL30223 House
g/wrd
s.or103H.R. 4600, as amendedSpratt7/14/94342-69Strengthened
leakHouseexpedited rescission
rdAmendment to H.R. 4600Stenholm7/14/94298-121Strengthened expedited
://wiki103 House rescission
http
103rdAmendment to H.R. 4600Solomon7/14/94205-218Enhanced rescission
House
103rdAmendment 542 to S. 1134Bradley6/24/9353-45Separate enrollment
Senate(Budget Act waiver)
103rdH.R. 1578Spratt4/29/93258-157Expedited rescission
House
103rdAmendment to H.R. 1578Castle4/29/93198-219Enhanced rescission
House
103rdAmendment 264 to S.Con.Res. 18Bradley3/25/9373-24Separate enrollment
Senate
Senate
CongressMeasureSponsorDate/ChamberVoteType of Proposal
103rdAmendment 200 to S.Con.Res. 18Cohen3/25/9334-65Expedited rescission
Senate(to table)
103rdAmendment 73 to S. 460McCain3/10/9345-52 Enhanced rescission
Senate(Budget Act waiver)
102ndH.R. 2164Carper10/3/92312-97Expedited rescission
House
102ndH.Res. 580Solomon9/30/92213-204Enhanced rescission
(Rule accompanying H.J.Res. 553)House(rule)
102ndAmendment 3013 to H.R. 5677McCain/Coats9/17/9240-56Enhanced rescission
Senate(Budget Act waiver)
102ndH.Res. 530 (Rule accompanying Solomon7/30/92240-176 Enhanced rescission
H.R. 5678)House(previous question)
iki/CRS-RL30223nd
g/w102H.Res. 527 (Rule accompanying Solomon7/28/92207-199 Enhanced rescission
s.orH.R. 5620)House(previous question)
leak102ndH.Res. 517 (Rule accompanying Solomon7/22/92236-171 Enhanced rescission
://wikiH.R. 5503)House(previous question)
http102ndAmendment to H.R. 2637Walker7/21/92144-248Separate enrollment
House
102ndAmendment to H.J.Res. 290Kyl6/11/92170-258Item veto
House
102ndAmendment 1698 to S. 479McCain2/27/9244-54Enhanced rescission
Senate(Budget Act waiver)
101stAmendment 1955 to S. 341McCain6/6/9043-50Enhanced rescission
Senate(Budget Act waiver)
101stAmendment 1092 to H.R. 3015Coats et al.11/9/8940-51Enhanced rescission
Senate(Budget Act waiver)
Senate
CongressMeasureSponsorDate/ChamberVoteType of Proposal
100thAmendment 650 to H.J.Res. 324Evans7/31/8741-48Separate enrollment
Senate
99thAmendment 2853 to S. 2706Quayle/Exon9/19/8634-62Expedited rescission
Senate(Budget Act waiver)
99thS. 43Mattingly et al.7/24/8558-40Separate enrollment
Senate(cloture)
99thS. 43Mattingly et al.7/18/8557-42Separate enrollment
Senate(cloture)
98thAmendment 3045 to H.R. 2163Mattingly5/3/8456-34Separate enrollment
Senate(out of order)
98thAmendment to H.R. 2708Gekas2/23/84145-243Separate enrollment
House (variation)
iki/CRS-RL30223th
g/w98Amendment to H.R. 2878Gingrich1/31/84144-248Item veto
s.or House
leak98th Amendment to H.R. 2165Gramm1/24/84131-245Item veto
://wiki House
http98thAmendment 2625 to H.J.Res. 308Armstrong11/16/8349-46Enhanced rescission
Senate(to table)
*Source: Bills and votes identified by use of Library of Congress SCORPIO databases and from Congressional Research Service files. Other data
from Congressional Record.
House and Senate Votes in the 102nd Congress
There were floor votes on nine propositions widely viewed as reflecting support,
at least indirectly, for the item veto, enhanced or expedited rescission, or separate
enrollment approaches in the 102nd Congress. In all but one of these cases, the
substance of the expanded rescission, item veto, or separate enrollment provision was
offered as an amendment during floor debate on another measure.
There were two more attempts in the Senate to achieve a vote on the Legislative
Line Item Veto Act (reintroduced as S. 196), by offering its provisions as a floor
amendment; both failed on Budget Act waiver votes. On February 26, 1992, Senator
McCain offered the proposal as an amendment during debate on the National
Cooperative Research Act. Extended debate ensued, during which the chairman of
the Senate Appropriations Committee, Senator Robert Byrd, spoke at length in
opposition to the proposed amendment. The following day, the Senate rejected (44-
54) a motion to waive section 306 of the Budget Act. Subsequently, the point of
order raised under section 306 was sustained.7 Senators McCain and Coats again
tried to offer the provisions of S. 196 as an amendment on September 17, 1992,
during floor debate on the Labor/HHS/Education Appropriations bill for 1993. The8
needed motion to waive section 306 of the Budget Act failed by vote of 40-56.
During the 102nd Congress, six of the seven attempts in the House also involved
floor amendments, but the contexts varied. On June 11, 1992, during debate on
H.J.Res. 290, proposing a balanced budget constitutional amendment, the House
voted on an amendment containing item veto authority for the President.
Representative Jon Kyl offered the amendment (to the proposed constitutional
amendment) to allow the President to exercise item veto authority when signing any
measure containing spending authority (broadly defined), to limit total outlays for a
fiscal year to 19% of the gross national product of that year, and to require a three-
fifths vote of Congress to approve any additional funds. The House rejected the Kyl
amendment by a vote of 170-258.9
Three times in July 1992, Representative Gerald Solomon and others attempted
to have an amendment to provide “Legislative Line Item Veto Rescission Authority”
made in order during debate in the House on various appropriations measures. Each
attempt occurred as an effort to defeat the previous question on the special rule for
considering the measure, which did not make consideration of the Solomon10
amendment in order. As indicated in Table 1, the closest vote occurred on July 28,
1992, when the previous question was ordered by a margin of fewer than 10 votes
(207-199). Although supporters of the Solomon amendment sought to characterize
the procedural vote as a measure of sentiment on the item veto, the floor debate
indicates that some voted against moving the previous question on the rule for other
7 Congressional Record, daily edition, vol. 138, Feb. 27 1992, pp. S2457-S2477.
8 Congressional Record, daily edition, vol. 138, Sept. 17, 1992, pp. S13684-S13697.
9 Congressional Record, daily edition, vol. 138, June 11, 1992, pp. H4595-H4605.
10 See Congressional Record, daily edition, vol. 138, July 22, 1992, pp. H6356-H6364; July
reasons. Likewise, some Members who favored enhanced rescission might have
voted for the previous question for reasons unrelated to their position on the item
veto.
On July 21, 1992, during debate in the House on H.R. 2637 (to withdraw lands
for the Waste Isolation Pilot Project), Representative Robert Walker offered an
amendment, which he characterized as an item veto effort (but which is listed in the
chart as a separate enrollment measure). The Walker amendment sought to provide
that the funds authorized by the bill subsequently were to be appropriated only in an
act or joint resolution containing no other appropriation to carry out any other law.
The House rejected the amendment by a vote of 144-248.11
On September 30, 1992, another effort was made in the House to offer the
enhanced rescission provisions as a floor amendment to an appropriations measure,
this time to H.J.Res. 553, the short-term continuing resolution providing a five-day
funding extension. Representative Solomon urged defeat of the previous question on
H.Res. 580 (the accompanying rule). However, the majority leadership apparently
urged those wishing to signify support for the amendment effort to oppose the rule
itself rather than attempt to defeat the previous question. Thus, the rule was agreed
to by a margin of fewer than 10 votes (213-204), while the previous question was
agreed to by vote of 231-186.12 Shortly before the votes on the previous question and
the rule occurred, Representative Butler Derrick, chairman of the Rules
Subcommittee on the Legislative Process, which had held two days of hearings on
expanded rescission and item veto measures, spoke. Concluding, he said: “I think
that there is a possibility that we might get a vote of some sort on this line-item veto
proposal before we get out of here, although I cannot say that definitely. There are
discussions going on about that.”13
The promised House debate and vote on an expanded rescission proposal
occurred before the 102nd Congress adjourned in early October 1992. H.R. 2164, the
Expedited Consideration of Proposed Rescissions Act, was viewed as a compromise
measure. With over 220 cosponsors, it was called up under a suspension of the rules
on October 2, 1992. On the following day, H.R. 2164 passed the House by a vote of
312-97.14 This version of expedited rescission applied to proposals from the
President submitted within three days of his signing an appropriations act. The
proposed rescission could not reduce a program below the budget level of the
previous year or by more than 25% for new programs. Funds would become available
again after a vote in either house to reject the proposed rescission.
11 Congressional Record, daily edition, vol. 138, July 21, 1992, pp. H6326-H6327.
12 Congressional Record, daily edition, vol. 138, Sept. 30, 1992, pp. H9894-H9903.
13 Ibid., p. H9894.
14 Congressional Record, daily edition, vol. 138, Oct. 2, 1992, pp. H10805-H10816; Oct. 3,
House and Senate Votes in the 103rd Congress
On March 10, 1993, Senator McCain once again attempted to offer an
amendment containing the provisions of the Legislative Line Item Veto Act
(reintroduced as S. 9). This effort occurred during floor consideration of S. 460, the
National Voter Registration Act. Following considerable debate on the amendment,
the Senate rejected (45-52) the motion to waive section 306 of the Budget Act.15
The House continued to favor expedited rescission proposals in the 103rd
Congress, although there were votes on proposals reflecting the enhanced rescission
approach as well. Initial action occurred on April 2, 1993, when the House briefly
considered H.R. 1578, a revised version of expedited rescission, which had been
reported by the Rules Committee with an amendment in the nature of a substitute.
The rule (H.Res. 149) providing for consideration of the bill was, however,
unexpectedly withdrawn without a vote. Action on the identical rule and bill was
scheduled to resume on April 21. However, for the second time, House leaders
hastily pulled the bill from the floor, seemingly because of continuing concern that
a vote on the rule would not pass. On April 28, the rule, which had generated some
controversy, again came to the floor, was debated, and voted upon, ultimately passing
by only four votes. On April 29, 1993, the House continued consideration of H.R.
1578, eventually passing it by a vote of 258-157. In contrast to H.R. 2164 in the
previous Congress, H.R. 1578, as reported by the Rules Committee, allowed the
President to propose rescission of up to 100% of any program, and also contained a
section pertaining to expedited judicial review. Most significantly, H.R. 1578, as
reported, detailed expedited procedures for a vote on an Appropriations Committee
substitute as an alternative to the President’s rescission package. During
consideration of H.R. 1578, the Castle amendment in the nature of a substitute16
providing enhanced rescission authority, was rejected (198-219).
Meanwhile, on March 25, 1993, the Senate adopted two sense-of-the-Senate
amendments relating to rescission reform as a part of the Budget Resolution for
FY1994: the Bradley amendment, regarding separate enrollment for items in
appropriations and tax measures, and an amendment introduced by Senator William
Cohen, supporting expedited rescission authority with regard to items of
appropriation, tax expenditures, and direct spending. The former was approved by
a vote of 73-24 after Senator Byrd, chairman of the Appropriations Committee, rather
unexpectedly stated his support: “I know what is in the amendment. It would extend17
the veto to tax expenditures. I think we all ought to vote for this amendment.” The
conference version retained a single sense-of-the-Senate provision in this regard,
stating that the “President should be granted line-item veto authority over items of
appropriations and tax expenditures” to expire at the end of the 103rd Congress.
15 Congressional Record, daily edition, vol. 139, Mar. 10, 1993, pp. S2576-S2601.
16 Congressional Record, daily edition, vol. 139, Apr. 28, 1993, pp. H2084-H2104; April 29,
17 Congressional Record, daily edition, vol. 139, Mar. 25, 1993, p. S3686.
On June 24, 1993, during debate on S. 1134, the Omnibus Budget
Reconciliation measure, Senator Bill Bradley again offered an amendment calling for
item veto authority by requiring separate enrollment of items in appropriations bills
and tax expenditures in revenue bills. This time, however, it was not sense-of-the-
Senate language, but, rather, an actual amendment of the Impoundment Control Act
to create statutory authority for the new procedures. The motion to waive the Budget
Act point of order failed of the necessary three-fifths majority by a vote of 53-45;
subsequently, a point of order was sustained, and the amendment fell.18
As adopted in May 1994, H.Con.Res. 218, the Budget Resolution for FY1995,
also contained sense-of-the-Congress provisions, including support for expedited
rescission. This provision was in the resolution as reported by the House Budget
Committee.19 The language reiterated that legislation granting the President
expedited rescission authority, such as H.R. 1578 already passed by the House,
should be enacted.20
On June 23, 1994, the House Rules Committee reported H.R. 4600, the
Expedited Rescissions Act of 1994, which was identical to H.R. 1578 as passed by
the House on April 29, 1993. The report accompanying H.R. 4600 explained that,
by considering an identical measure in the second session, the “House hopes to
impress upon the Senate the importance of its own support for and action on these
budget process reforms.”21
On July 14, 1994, the House passed H.R. 4600, with an amendment in the
nature of a substitute, by a vote of 342-69. Sponsored by Representative Charles
Stenholm, this substitute amendment, which expanded upon the existing provisions
in the bill for expedited rescission (e.g., adding “targeted tax benefits”), was agreed
to by a vote of 298-121. The Solomon substitute amendment, which sought to give
the President enhanced rescission authority akin to an item veto, was rejected by a
vote of 205-218.22
18 Congressional Record, daily edition, vol. 139, June 24, 1993, pp. S7920-57921.
19 U.S. Congress, House Committee on the Budget, Budget Resolution for FY1995, report
to accompany H.Con.Res. 218, 103rd Cong., 2nd sess., H.Rept. 103-428 (Washington: GPO,
20 Since this language was contained in the measure as reported, there was no separate floor
vote on the sense-of-the-Congress provision in support of expedited rescission, and hence
no mention of it in Table 1.
21 U.S. Congress, House Committee on Rules, Amending the Congressional Budget and
Impoundment Control Act of 1974 to provide for the Expedited Consideration of Certainrdnd
Proposed Rescissions of Budget Authority, report to accompany H.R. 4600, 103 Cong., 2
sess., H.Rept. 103-557, Part 1 (Washington: GPO, 1994), p. 2.
22 Congressional Record, daily edition, vol. 140, July 14, 1994, pp. H5700-H5730.
Action in the 104th Congress
During the 1994 congressional election campaign, many Republican incumbent
Representatives and candidates endorsed an election platform document called the
Contract with America, which pledged action on a number of measures, including a
“legislative line item veto,” within the first 100 days, should a Republican majority
be elected. When the 104th Congress convened with a Republican majority in both
houses of Congress, action on an expanded rescission measure became a high
priority.
In the House, H.R. 2, an enhanced rescission measure, was introduced on
January 4, 1995, and referred jointly to the Committees on Government Reform and
Oversight and on Rules; both committees reported the measure, as amended, in late
January. House floor debate began on February 2, and the House passed H.R. 2, as
amended, by a vote of 294-134 on February 6. In the Senate, S. 4, an enhanced
rescission bill, and S. 14, an expedited rescission bill, were likewise introduced on
January 4, 1995; both were referred jointly to the Committees on the Budget and on
Governmental Affairs. Both committees acted to report both bills, without
recommendation, and Senate floor consideration commenced in March 1995. On
March 23, 1995, the Senate passed S. 4, as amended, by a vote of 69-29; during floor
action, an amendment incorporating the separate enrollment approach was approved
as a substitute for the original enhanced rescission language. The amended version
provided for the separate enrollment of items of appropriations and items of new
direct spending and certain limited tax benefits. Nearly a year elapsed before the
conference committee filed its report, on March 21, 1996, but, within a week, both
houses had approved S. 4 as reported from conference. The conference substitute
reflected compromise between the two versions, basically incorporating the enhanced
rescission approach of the House and the broader coverage of the Senate measure. On
April 9, 1996, President Clinton signed the Line Item Veto Act into law as P.L. 104-23
While the new law remained in effect, its provisions augmented the rescission
authority provided earlier to the President by adding a new part at the end of the
Impoundment Control Act on “line item veto.” Whenever the President signed a bill
or joint resolution, he could cancel in whole: (1) any dollar amount of discretionary
budget authority; (2) any item of new direct spending; and (3) certain limited tax
benefits. Under the Line Item Veto Act, the subject matter of a President’s rescission
authority expanded. Moreover, with the enhanced rescission framework, the burden
of action changed: rescissions proposed by the President remained permanent unless
Congress acted to disapprove; any bill or joint resolution of disapproval was subject
to a presidential veto, requiring a two-thirds vote in each house for the override.
After notifying Congress in a special message, a 30-day review period followed,
23 For a summary of its provisions and sources for its legislative history, see CRS Report 96-
print: available from author [ext. 7-8678]); and McMurtry, Item Veto and Expanded
Impoundment Proposals.
during which expedited procedures applied.24 The act also contained a “lockbox”
procedure to help ensure that any savings from cancellations would go toward deficit
reduction.
The 105th Congress and Beyond
The Line Item Veto Act became effective on January 1, 1997. The following
day, six Members of Congress filed a lawsuit in federal district court challenging the
constitutionality of the new law. On April 10, 1997, Judge Thomas Penfield Jackson
ruled that the Line Item Veto Act was unconstitutional because it violated provisions25
of the Presentment Clause of the Constitution.
Since the Line Item Veto Act contained provisions specifically designed to
expedite judicial review, the district court decision was appealed directly to the
Supreme Court, where oral arguments were heard on May 27, 1997. On June 26,
1997, the Supreme Court announced its decision in the case of Raines v. Byrd, setting
aside the judgment of the lower court on jurisdictional grounds by ruling that the
Senators and Representatives lacked legal standing to bring the case. However, the
Supreme Court confined its decision to this technical matter and did not consider the
merits of the underlying constitutional issues. 26
Shortly after Judge Jackson’s April 1997 decision, rescission reform measuresth
were again introduced in the 105 Congress. On April 15, Representative David
Skaggs introduced H.R. 1321, the Expedited Rescissions Act of 1997, noting: “This
bill is similar to one that passed the House but was not taken up by the Senate in
bills ....” The next day, Senator Ernest Hollings introduced a separate enrollment
bill (S. 592), identical to that passed by the Senate in 1995.28 Joint resolutions29
providing for an item veto constitutional amendment also were introduced.
24 For summary of the expedited procedures, see CRS Report 96-973, The Line Item Veto
Act: Procedural Issues, by Louis Fisher and Virginia A. McMurtry (out-of-print: available
from author [ext. 7-8678]). For a more detailed discussion of procedures, see U.S.
Congress, House Committee on Rules, The Use and Application of the Line Item Veto,thst
committee print, 105 Cong., 1 sess. (Washington: GPO, Jan. 2, 1997).
25 Byrd v. Raines, 956 F.Supp. 25 (D.D.C. 1997).
26 Raines v. Byrd, 521 U.S. 811 (No. 96-1671, June 26, 1997).
27 Rep. David Skaggs, “Line Item Veto Act Held Unconstitutional by Federal District
Court,” Congressional Record, daily edition, vol. 143, Apr. 15, 1997, pp. H1459-H1460,
H1514.
28 Sen. Ernest Hollings, “Line-Item Veto Legislation,” Congressional Record, daily edition,
vol. 143, Apr. 16, 1997, p. S3272.
29 See Rep. Jo Ann Emerson, “Introduction of the Bipartisan Line Item Veto Constitutional
Amendment,” Congressional Record, daily edition, vol. 143, Apr. 16, 1997, p. E674; and
Sen. Wayne Allard, “The Line Item Veto Constitutional Amendment,” Congressional
Record, daily edition, vol. 143, Apr. 24, 1997, pp. S3686-S3687.
After the President used the cancellation authority for the first time in the
summer of 1997, additional suits were filed in the district court, and soon reached the
Supreme Court on appeal. On June 25, 1998, the Supreme Court held that the Line
Item Veto Act was unconstitutional because its cancellation provisions were in
violation of procedures set forth in the Constitution’s presentment clause found in
Article I, section 7.30
Once the Supreme Court struck down the Line Item Veto Act, other legislative
approaches, such as expedited rescission or separate enrollment, received renewed
attention. In June of 1998, three bills were introduced.31 Upon the convening of the
106th Congress in 1999, four measures were introduced proposing constitutional
amendments giving the President line item veto authority along with four bills to
provide alternative statutory means for conveying expanded impoundment authority
to the President.32
In the 107th Congress, two measures proposing an item veto constitutional
amendment were introduced. H.J.Res. 23 sought to allow the President to disapprove
any item of appropriation in any bill. H.J.Res. 24 sought to allow the President to
decline to approve (i.e., to item veto) any in whole dollar amount of discretionary
budget authority, any item of new direct spending, or any limited tax benefit.
Omnibus budget reform bills, such as H.R. 5259, contained provisions for expedited
rescission procedures. On March 28, 2001, during House consideration of
H.Con.Res. 83 (FY2002 budget resolution), the Blue Dog Coalition substitute was
offered, which contained a sense-of-the-Congress provision calling for modified line
item veto authority to require congressional votes on rescissions submitted by the
President; the amendment was rejected 204-221.33
Early in the 108th Congress, H.R. 180, an omnibus budget reform measure, was
introduced by Representative Paul Ryan, containing provisions for expedited
procedures for congressional action on proposals from the President to rescind budget
authority identified as “wasteful spending” (Section 252). Later in 2003 two
constitutional amendment proposals to authorize an item veto for the President were
introduced (108th Congress, H.J.Res. 60 and S.J.Res. 25).
30 Clinton v. City of New York et al., 524 U.S. 417 (No. 97-1374, June 25, 1998).
31 These 105th Congress bills included H.R. 4174 and S. 2220, providing expedited
procedures for considering rescissions, and S. 2221, reflecting the separate enrollment
perspective. Previously, In April 1997 shortly after the district court decision, H.R. 1321,rd
an expedited rescission measure similar to that passed by the House in the 103 Congress
was introduced. Likewise, S. 592, a separate enrollment measure identical to S. 4 as passedth
by the Senate in the 104 Congress, was introduced.
32 In the 106th Congress, the item veto constitutional amendment proposals included
H.J.Res. 9, H.J.Res. 20, H.J.Res. 30, and S.J.Res.31. Two House bills provided for
expedited rescissions (H.R. 3442 and H.R. 3523), and two Senate bills incorporated the
separate enrollment approach (S. 100 and S. 139).
33 Congressional Record, daily edition, vol. 147, Mar. 28, 2001, pp. H1229-H1240. This
vote was not included in Table 1, since it was on a substitute budget resolution, not a
discrete amendment endorsing expedited rescission procedures.
In the second session of the 108th Congress additional budget reform measures
with familiar provisions that would grant expedited rescission authority to the
President were introduced. H.R. 3800, the Family Budget Protection Act of 2004,
contained expedited rescission provisions in Section 311; and H.R. 3925, the Deficit
Control Act of 2004, included such provisions in Section 301. On June 16, 2004, an
editorial in the Wall Street Journal endorsed H.R. 3800, offering special praise for
its expedited rescission provisions: “Presidents would have the power of rescission
on line items deemed wasteful, which would then be sent back to Congress for an
expedited override vote.”34 On June 24, 2004, provisions from H.R. 3800 were
offered as a series of floor amendments during House consideration of H.R. 4663, the
Spending Control Act of 2004. An amendment offered by Representative Paul Ryan
that sought to establish expedited rescission authority for the President to propose the
elimination of wasteful spending identified in appropriations bills was rejected by a
recorded vote of 174-237,35 as indicated in Table 1.
The congressional budget resolution for FY2005 (S.Con.Res. 95), as approved
by the Senate on March 11, 2004,36 also contained Sense of the Senate provisions in
Section 501 relating to budget process reform. In particular, it called for enactment
of legislation to restrain government spending, including such possible mechanisms
as “enhanced rescission or constitutional line-item veto authority for the President.”37
It is anticipated that expanded impoundment proposals may receive renewed
congressional attention in the 109th Congress. President Bush reiterated his support
for restoring presidential line item veto authority in his “Agenda for America”
speech to the Republican national convention on September 2, 2004. At his first
post-election news conference, on November 4, 2004, in response to a question about
reducing the deficit, he stated, in part, that the president needed a line item that
“passed constitutional muster,” in order “to maintain budget discipline.”38 In
response to a question about the lack of vetoes during his first term, at a press
conference the following month, the President answered that Congress passed bills
that met his budget targets, but that a line item veto would be useful. He stated:
So how can you veto a series of appropriations bills if the Congress has
done what you’ve asked them to do? Now, I think the president ought to have
the line item veto because within the appropriations bills, there may be39
differences of opinion on how the money is being spent.
34 “GOP Budget Revolt,” Wall Street Journal, June 16, 2004, pp. A12, A14.
35 Roll No. 313, Congressional Record, daily edition, vol. 150, June 24, 2004, pp. H5013-
H5014.
36 Roll No. 58, Congressional Record, daily edition, vol. 150, Mar. 11, 2004, p. S2699.
37 See 108th Cong., S.Con.Res. 95 ES, pp. 53-54.
38 Transcript, New York Times, Nov. 5, 2004, p. A17.
39 Transcript available electronically at [http://www.whitehouse.gov/news/releases/2004/12/