Robinson, John H.

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Notre Dame Journal of Law, Ethics & Public PolicyVolume 1Issue 2 Symposium on the Line-Item Veto Article 11-1-2012Ethics and the Line-Item VetoJohn H. RobinsonFollow this and additional works at: http://scholarship.law.nd.edu/ndjleppThis Introduction is brought to you for free and open access by the Notre Dame Journal of Law, Ethics & Public Policy at NDLScholarship. It has beenaccepted for inclusion in Notre Dame Journal of Law, Ethics & Public Policy by an authorized administrator of NDLScholarship. For more information,please contact lawdr@nd.edu.Recommended CitationJohn H. Robinson, Ethics and the Line-Item Veto, 1 Notre Dame J.L. Ethics & Pub. Pol'y 157 (1985).Available at: http://scholarship.law.nd.edu/ndjlepp/vol1/iss2/1FOREWORDETHICS AND THE LINE-ITEM VETOJOHN H. ROBINSON*In the Foreword to the Inaugural Issue of the NotreDame Journal of Law, Ethics & Public Policy, Professor DouglasKmiec offered the. world a journal that would rigorously andconsistently examine legal propositions through an ethicallens, thereby making practical application of the insights ofboth philosophy and the Judeo-Christian tradition to timelyissues of public concern.' The articles included in the inaugu-ral issue all, quite appropriately, focused on the relationshipbetween law and morality, some in general terms, others interms more closely tied to the role religion should play in de-termining public policy.At first glance it might seem odd that this issue, the im-mediate sequel to the inaugural issue, should be devoted tothe line-item veto. Isn't the item veto, after all, a perennialpolitical football, sought by presidents and resisted by succes-sive Congresses simply because the former want to increasetheir power and the latter resist any diminution in theirs?The short answer to that question is, "No." However tempt-ing it is to reduce issues of this sort to matters of merepower, the item veto raises questions that conscientious politi-cians must address before they can cast a responsible vote onitem veto proposals.Foremost among the questions raised by the item veto isthis one: What sort of duty does an elected representativehave in a representative democracy, and how well do the cur-rent modes of forming majorities in our national legislaturesquare with those duties? For a government that grounds itslegitimacy in large part on the representativeness of its law-makers, this question should be the first question that is* Faculty Research Associate, Thos. J. White Center on Law andGovernment. Assistant Professor of Philosophy, University of Notre Dame.Member of the Bar of Rhode Island. B.A., Boston College, 1967; M.A.,University of Notre Dame, 1972; Ph.D., University of Notre Dame, 1975;J.D., University of California, 1979.1. Kmiec, Why a Journal of Law, Ethics & Public Policy?, 1 NOTREDAME J. L. ETHics & PUB. POL'Y 1 (1984).JOURNAL OF LAW, ETHICS & PUBLIC POLICYasked of any legislative practice, yet it is virtually never askedat all. Might it not be argued, perhaps even asserted as self-evident, that representatives have at least a prima facie obliga-tion to their constituents to make an independent, personaljudgment on each proposal that comes before the legislature?Isn't this precisely what we would require of ourselves in adirect democracy, faulting ourselves for unconsidered voteswhere with diligence we could have explored for ourselvesthe costs and benefits of a proposal?If in the hypothesized direct democracy we had short-changed ourselves and our fellow citizens every time we gaveapproval to a proposal that we had not examined (in ex-change, perhaps, for others' support for proposals of our owncreation that they, in turn, had not examined), what is thereabout representative democracy that makes that process ac-ceptable? The question is perhaps answerable, but it surelydeserves to be asked. It can be argued that law-making in asociety as vast and heterogeneous as ours has become so com-plex that any attempt to analogize what goes on in Congressto how a direct democracy might work or fail to work is morelikely to mislead than it is to enlighten. The force of that ar-gument is, of course, a function of the actual complexity ofthe law-making process. If each legislator's attending to themerits of each proposal put before the legislature is impossi-ble, then it is also undesirable. If, on the other hand, an itemveto, in at least some of its forms, would encourage legisla-tors to take responsibility for each item that their vote en-dorses, and if thereby their duty to their constituents wouldbe more fully discharged, then the item veto is deserving ofconsideration in a journal devoted to law, ethics, and publicpolicy.Another question raised by item veto proposals is this:What obligation do officials have to the Constitution? Moreprecisely, what obligation do they have to the system ofchecks and balances that the founders so artfully wove intothe horizontal separation of power among the legislative, ex-ecutive, and judicial branches of the national government?They all take an oath to support and defend the Constitu-tion;2 we rarely note the surface oddity of making the Consti-tution and not the nation or the people the object of our offi-cials' sworn fealty. It may be that Robert Bellah is correct inseeing the Constitution as the equivalent of the Covenant in2. See 5 U.S.C. §3331 and U.S. CONST. art. VI, cl. 3; Cf. U.S. CONST.art. II, §1, cl. 8 (presidential oath).[Vol. I158FOREWORDthe experience of the Mosaic Jews and in the practice of colo-nial protestantism.3 In any event, all of our national officialsowe a duty to the Constitution that transcends both their loy-alty to party and their desire to see any particular politicalpurpose achieved. When, therefore, it is alleged that some-thing as important as the appropriations process is no longerconsistent with what the Constitutions requires, that allega-tion deserves attention, lest realpolitik displace the Constitu-tion as the ultimate test of the legitimacy of a legislative prac-tice. Such an allegation is, of course, central to theConstitutional case for an item veto, just as the claim that theitem veto would radically alter the balance of powers is cen-tral to the Constitutional case against the item veto.Whatever the merits of the cases pro and con, it is hard tosee how a responsible elected official could fail to look be-yond issues of short-term self-interest to the abiding ques-tions of constitutional structure that the item veto debateraises.On a somewhat less lofty plane, it is more than merelyarguable that the national legislative process itself is out ofcontrol, that the colossal deficits of recent years suggest a se-rious failure of both intelligence and will on the part of thosewhom we have elected to exercise both wisdom and courage,and that this failure is a culpable one, victimizing this genera-tion by the foolish or venal allocation of funds and the nextgeneration by the debt and decay that they will inherit.It is, perhaps, this sense of a process run amok that givesline-item proposals their current urgency as it is their per-ceived utility as budget-improving devices that will determinetheir political fate. Here too an ethical concern surfaces forthe conscientious public official. At what point do legislators'duties reach beyond the service of their immediate constitu-encies within the limits of business as usual and impose uponthem a duty to take responsibility for the process itself inwhich business as usual is conducted? The strongest candidatefor that point would be the point at which business as usualbegins to disserve the nation at large, when the consequenceof each legislator's maximizing the return on his district's in-vestment in him, or on hers in her, is some palpable loss toall, both currently and prospectively. But the factual premiseof current line-item advocates is that we are at such a point inour political history right now. Insofar as legislators share3. R. BELLAH, THE BROKEN COVENANT: AMERICAN CIVIL RELIGION INTIME OF TRIAL 30-35 (1975).19851JOURNAL OF LAW, ETHICS & PUBLIC POLICYthat premise, they are, it seems, duty-bound to take line-itemproposals seriously, even if their mastery of the process as itis currently constituted lets them get for their respective dis-tricts their fair share, and more, of the federal pie.The articles included in this issue address these questionsand others. What is more, they run the gamut of positionsthat can be taken on the item veto. Aaron Wildavsky, for ex-ample, argues that an item veto would increase Congressionalbudgetary irresponsibility while creating a drastic alterationin the separation of powers that would ultimately weaken theability of the federal government to resist the manifold pres-sures to let federal spending outstrip revenues.4 As an alter-native remedy to the deficit problem, Wildavsky proposes aglobal spending limit. Once that limit is in place, he seessome value in a presidential item veto. Peter Schultz, on theother hand, believes that the deficit problem is not funda-mentally an institutional phenomenon, amenable to correc-tion via such institutional devices as the item veto. To hismind, deficits are political phenomena, traceable to our dualcommitment to an expensive welfare program and an evenmore expensive defense capability. Like Wildavsky, Schultzsees in the item veto an invitation to greater congressionalirresponsibility, but unlike Wildavsky, Schultz puts no stockin a global spending limit, preferring instead presidential re-sort to the impoundment power, the constitutionality ofwhich Schultz defends, as a means of limiting congressionalprofligacy.5Congressman Edwards opposes the item veto because itwill, in his judgment, effect a major shift in policy-makingpower from the legislature to the president and because sucha shift, whatever efficiency it facilitated, would lead to such aconsolidation of power in the hands of one person as tothreaten the liberty of us all. 6 According to Congressman Ed-wards it is not simply because Congress is jealous of its powerthat it resists the item veto, but because congressional reten-tion of its legislative prerogatives is the constitutionally pro-vided check on executive usurpation and the constitutionallyprovided mechanism by which the people are assured that4. Wildavsky, Item Veto Without a Global Spending Limit: Locking theTreasury After the Dollars Have Fled, 1 NOTRE DAME J. L. ETHICS & PUB.POL'Y 165 (1985).5. Schultz, An Item Veto: A Constitutional and Political Irelevancy, 1NOTRE DAME J. L. ETHICS & PUB. POL'Y 177 (1985).6. Edwards, The Case Against the Line-Item Veto, 1 NOTRE DAME J. L.ETHICS & PUB. POL'Y 191 (1985).[Vol. IFOREWORDthose over whom they have the most control, their represent-atives, have the crucial say in the setting of policy, especiallyspending policy. Senator Dixon, in contrast, favors a qualifieditem veto as one way of reducing the federal deficit and asthe best way of exposing logrolling and pork-barrelling to thelight of day. He also sees the item veto as the unique meansof restoring the presidential veto to its full vigor, so that thepresident can once again play the role in the appropriationsprocess that the authors of the Constitution intended him toplay.7 The qualification that Senator Dixon builds into hisitem veto proposal is a considerable one: it allows a bare ma-jority of Congress to override a veto, not the two-thirdssupermajority required by Article I, Section 7 for the over-riding of a plenary veto. He believes that this device will givethe President a chance to call the Congress's attention to pro-visions in omnibus spending bills that almost surely receivedscant attention as the bill progressed through the two houses,and that this would bring about a reduction in wastefulspending without effecting a radical shift in the balance ofpower between the legislative and executive branches of thefederal government.With reference to the two student comments on the itemveto, Nancy Townsend views the item veto as neither implicitin the Constitution as it now stands nor desirable.8 Instead,she advocates a Single Subject Amendment on the groundsthat such an amendment would effect all the good that theline-item veto would produce with none of its constitutionalcosts. Walter Brown focuses on what can be learned abouthow to formulate an item veto amendment from the inter-pretation that courts in the states that have item veto provi-sions have given to those variously-worded texts.9In a journal committed to bringing the Judeo-Christiantradition to bear on contemporary policy questions, it is ap-propriate to note the religious dimension of the line-item de-bate. In this case, as in the case of most political disputes, thetradition will substantially "underdetermine" the outcome ofthe dispute; that is, it will not dispositively point to a particu-lar resolution as uniquely and exclusively consistent with or7. Dixon, The Case for the Line-Item Veto, 1 NORE DAME J. L. ETHICS& PUB. POL'Y 207 (1985).8. Townsend, Single Subject Restrictions as an Alternative to the LineItem Veto Authority, 1 NOTRE DAME J. L. ETHICS & PUB. POL'Y 227 (1985).9. Brown, Where's the Pork: Restoring Balance with a Line Item Veto, 1NOTRE DAME J. L. ETHICS & PUB. POL'y 259 (1985).19851JOURNAL OF LAW, ETHICS & PUBLIC POLICYimplied by the tradition. This is not a defect in the Judeo-Christian tradition; it is, instead, characteristic of the relationthat ordinarily obtains between religious traditions and par-ticular social or political rules. A tradition is, in fact, betrayedwhen it is made to appear that it inflexibly requires just oneout of a range of defensible responses to a perceived prob-lem. While the Judeo-Christian tradition cannot direct an an-swer to the line-item debate, it can direct us in our efforts toset the context in which we resolve that issue for ourselves.At the most general level, the tradition unequivocally as-serts that the function of government is to establish justiceand that it is in the light of that overarching objective thatmicro-decisions concerning the relation between parts of thegovernment are to be addressed. In the Biblical tradition jus-tice is not the product of an idealized social contract that hy-pothetical rational bargainers would reach if they could bestripped of their biases. It is, instead, the product of the per-formance of an actual covenant struck at Sinai betweenYahweh, The God of justice, and his chosen people. Thepeople perform according to the covenant when they do jus-tice, and the measure of their justice is their treatment of theweakest and most vulnerable people in their midst: thewidow, the orphan, the poor, and the alien. Especially in theprophetic books, it is whole societies and not simply individu-als who are judged according to this criterion of justice: thatsociety is a just society where the powerless are protected, notexploited. 10In modern times at least one Christian confession, Ro-man Catholocism, has attempted to apply this biblical stan-dard, mediated by the teachings of Jesus and by centuries ofreflection upon that teaching, to current social, political, andinternational structures. The inspiration for this process canbe found in a series of papal encyclicals and bishops' pastoralsdating from Rerum Novarum, written in 1891, and in the Sec-ond Vatican Council's Pastoral Constitution on the Church inthe Modern World (Gaudium et Spes). The fruits of this pro-cess, however, must of necessity be found in the way in whichconscientious Christians in positions of power and influenceemploy that biblical vision as a criterion to test the acceptabil-ity of the structures in which we live and of proposed changesin those structures. This testing process requires that the nec-10. See National Conference of Catholic Bishops, Pastoral letter onCatholic Social Teaching and the U.S. Economy, §§27-44 (First Draft1984); reprinted in 14 ORIGINs 344 (1984).[Vol. IFOREWORDessarily general mandates of the tradition be made somewhatmore specific, even though the specificity achieved therebywill be both more fallible and more provisional than is truewhen the tradition is couched solely in generalities. As to anissue as deeply embedded in a particular political context asthe item veto issue is, perhaps the most relevant specificationof the Judeo-Christian tradition is this: it is the well-being ofthe powerless, not the aggrandizement of the powerful, thatought to be determinative of disputes about the allocation ofpolitical power in our system of government. Government"for the people" is not a mere shibboleth. It is instead a normto be used in choosing between alternative ways of distribut-ing political power.On this analysis, the question for the religiously sensitivelegislator is, will the item veto make the government moreresponsive to the people, especially to the least well offamong them, or will it remove it further from them? Thatthis question is extremely difficult to answer does not invali-date it, it simply warns us against accepting facile and self-serving answers to it. Over and over again, those who governmust be reminded that the enormous power that they wield isnot an end in itself, is not theirs to use as they please, but isentrusted to them to be used for the common good, espe-cially for the good of those least able to help themselves. Per-haps only our common biblical heritage can insinuate intothe debate among the powerful over political power, this nec-essary reminder that it is the effect of their power-brokeringon the powerless that is the ultimate test of the acceptabilityof the deals they strike and of the compromises they reach. Ifthe articles in this issue help to put the item veto debate inthat context, they will have served a useful purpose.1985]

Ethics and the Line-Item Veto

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Ethics and the Line-Item Veto

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