OCTOBER TERM, 1997
Syllabus
CLINTON, PRESIDENT OF THE UNITED STATES, ET AL.
v. CITY
OF NEW YORK ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA
No. 97-1374. Argued April 27, 1998-Decided June 25,1998
Last Term, this Court determined on expedited review that
Members of Congress did not have standing to maintain a
constitutional challenge to the Line Item Veto Act (Act), 2 U. S.
C. § 691
et seq., because they had not alleged a
sufficiently concrete injury.
Raines v.
Byrd,
521 U. S. 811.
Within two months, the President exercised his authority under the
Act by canceling §4722(c) of the Balanced Budget Act of 1997, which
waived the Federal Government's statutory right to recoupment of as
much as $2.6 billion in taxes that the State of New York had levied
against Medicaid providers, and § 968 of the Taxpayer Relief Act of
1997, which permitted the owners of certain food refiners and
processors to defer recognition of capital gains if they sold their
stock to eligible farmers' cooperatives. Appellees, claiming they
had been injured, filed separate actions against the President and
other officials challenging the cancellations. The plaintiffs in
the first case are the City of New York, two hospital associations,
one hospital, and two unions representing health care employees.
The plaintiffs in the second are the Snake River farmers'
cooperative and one of its individual members. The District Court
consolidated the cases, determined that at least one of the
plaintiffs in each had standing under Article III, and ruled,
inter alia, that the Act's cancellation procedures violate
the Presentment Clause, Art. I, § 7, cl. 2. This Court again
expedited its review.
Held:
1. The appellees have standing to challenge the Act's
constitutionality. They invoked the District Court's jurisdiction
under a section entitled "Expedited review," which, among other
things, expressly authorizes "any individual adversely affected" to
bring a constitutional challenge. § 692(a)(I). The Government's
argument that none of them except the individual Snake River member
is an "individual" within § 692(a)(I)'s meaning is rejected
because, in the context of the entire section, it is clear that
Congress meant that word to be construed broadly to include
corporations and other entities. The Court is also unpersuaded by
the Government's argument that appellees' challenge is
nonjusticiable. These cases differ from
Raines, not only
because the President's exercise of his cancellation authority has
removed any con-
418
Syllabus
cern about the dispute's ripeness, but more importantly because
the parties have alleged a "personal stake" in having an actual
injury redressed, rather than an "institutional injury" that is
"abstract and widely dispersed." 521 U. S., at 829. There is no
merit to the Government's contention that, in both cases, the
appellees have not suffered actual injury because their claims are
too speculative and, in any event, are advanced by the wrong
parties. Because New York State now has a multibillion dollar
contingent liability that had been eliminated by § 4722(c), the
State, and the appellees, suffered an immediate, concrete injury
the moment the President canceled the section and deprived them of
its benefits. The argument that New York's claim belongs to the
State, not appellees, fails in light of New York statutes
demonstrating that both New York City and the appellee providers
will be assessed for substantial portions of any recoupment
payments the State has to make. Similarly, the President's
cancellation of § 968 inflicted a sufficient likelihood of economic
injury on the Snake River appellees to establish standing under
this Court's precedents, cf.
Bryant v.
Yellen, 447 U.
S. 352, 368. The assertion that, because processing facility
sellers would have received the tax benefits, only they have
standing to challenge the § 968 cancellation not only ignores the
fact that the cooperatives were the intended beneficiaries of §
968, but also overlooks the fact that more than one party may be
harmed by a defendant and therefore have standing. Pp. 428-436.
2. The Act's cancellation procedures violate the Presentment
Clause. pp.436-449.
(a) The Act empowers the President to cancel an "item of new
direct spending" such as § 4722(c) of the Balanced Budget Act and a
"limited tax benefit" such as § 968 of the Taxpayer Relief Act, §
691(a), specifying that such cancellation prevents a provision
"from having legal force or effect," §§ 691e(4)(B)-(C). Thus, in
both legal and practical effect, the Presidential actions at issue
have amended two Acts of Congress by repealing a portion of each.
Statutory repeals must conform with Art. I,
INS v.
Chadha, 462 U.
S. 919, 954, but there is no constitutional authorization for
the President to amend or repeal. Under the Presentment Clause,
after a bill has passed both Houses, but "before it become[s] a
Law," it must be presented to the President, who "shall sign it" if
he approves it, but "return it," i.
e., "veto" it, if he
does not. There are important differences between such a "return"
and cancellation under the Act: The constitutional return is of the
entire bill and takes place
before it becomes law, whereas
the statutory cancellation occurs
after the bill becomes law
and affects it only in part. There are powerful reasons for
construing the constitutional silence on the profoundly important
subject of Presidential repeals as equivalent to an express
419
prohibition. The Article I procedures governing statutory
enactment were the product of the great debates and compromises
that produced the Constitution itself. Familiar historical
materials provide abundant support for the conclusion that the
power to enact statutes may only "be exercised in accord with a
single, finely wrought and exhaustively considered, procedure."
Chadha, 462 U. S., at 951. What has emerged in the present
cases, however, are not the product of the "finely wrought"
procedure that the Framers designed, but truncated versions of two
bills that passed both Houses. Pp. 436-441.
(b) The Court rejects two related Government arguments. First,
the contention that the cancellations were merely exercises of the
President's discretionary authority under the Balanced Budget Act
and the Taxpayer Relief Act, read in light of the previously
enacted Line Item Veto Act, is unpersuasive.
Field v.
Clark, 143 U.
S. 649, 693, on which the Government relies, suggests critical
differences between this cancellation power and the President's
statutory power to suspend import duty exemptions that was there
upheld: such suspension was contingent on a condition that did not
predate its statute, the duty to suspend was absolute once the
President determined the contingency had arisen, and the suspension
executed congressional policy. In contrast, the Act at issue
authorizes the President himself to effect the repeal of laws, for
his own policy reasons, without observing Article I, § 7,
procedures. Second, the contention that the cancellation authority
is no greater than the President's traditional statutory authority
to decline to spend appropriated funds or to implement specified
tax measures fails because this Act, unlike the earlier laws, gives
the President the unilateral power to change the text of duly
enacted statutes. Pp.442-447.
(c) The profound importance of these cases makes it appropriate
to emphasize three points. First, the Court expresses no opinion
about the wisdom of the Act's procedures and does not lightly
conclude that the actions of the Congress that passed it, and the
President who signed it into law, were unconstitutional. The Court
has, however, twice had full argument and briefing on the question
and has concluded that its duty is clear. Second, having concluded
that the Act's cancellation provisions violate Article I, § 7, the
Court finds it unnecessary to consider the District Court's
alternative holding that the Act impermissibly disrupts the balance
of powers among the three branches of Government. Third, this
decision rests on the narrow ground that the Act's procedures are
not authorized by the Constitution. If this Act were valid, it
would authorize the President to create a law whose text was not
voted on by either House or presented to the President for
signature. That mayor may not be desirable, but it is surely not a
document that may "become a law" pursuant to Article I, § 7. If
there is to be a new proce-
420
dure in which the President will playa different role, such
change must come through the Article V amendment procedures.
Pp.447-449.
985 F. Supp. 168, affirmed.
STEVENS, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and KENNEDY, SOUTER, THOMAS, and GINSBURG, JJ.,
joined. KENNEDY, J., filed a concurring opinion,
post, p.
449. SCALIA, J., filed an opinion concurring in part and dissenting
in part, in which O'CONNOR, J., joined, and in which BREYER, J.,
joined as to Part III,
post, p. 453. BREYER, J., filed a
dissenting opinion, in which O'CONNOR and SCALIA, JJ., joined as to
Part III,
post, p. 469.
Solicitor General Waxman argued the cause for the appellants.
With him on the briefs were Assistant Attorney General Hunger,
Deputy Solicitor General Kneedler, Malcolm L. Stewart, and Douglas
N. Letter.
Louis R. Cohen argued the cause for appellees Snake River Potato
Growers, Inc., et al. With him on the brief were Lloyd N. Cutler,
Lawrence A. Kasten, Donald B. Holbrook, Randon W Wilson, and
William H. Orton. Charles J. Cooper argued the cause for appellees
City of New York et al. With him on the briefs were M. Sean Laane,
Leonard J. Koerner, Alan G. Krams, David B. Goldin, and Peter F.
Nadel. *
JUSTICE STEVENS delivered the opinion of the Court.
The Line Item Veto Act (Act), 110 Stat. 1200, 2 U. S. C. § 691
et seq. (1994 ed., Supp. II), was enacted in April 1996
*Briefs of amici curiae urging reversal were filed for the
United States Senate by Thomas B. Griffith, Morgan J. Frankel, and
Steven F. Huefner; for Marci Hamilton, pro se, and David
Schoenbrod, pro se; for Congressman Dan Burton et al. by James M.
Spears; and for John S. Baker, Jr., pro se.
Briefs of
amici curiae urging affirmance were filed for
the Bar of the City of New York by
Louis A. Craco, Jr.,
James F.
Parver, and
David P. Felsher; for
Senator Robert C. Byrd et al. by
Michael Davidson and
Mark
421
and became effective on January 1, 1997. The following day, six
Members of Congress who had voted against the Act brought suit in
the District Court for the District of Columbia challenging its
constitutionality. On April 10, 1997, the District Court entered an
order holding that the Act is unconstitutional.
Byrd v.
Raines, 956 F. Supp. 25. In obedience to the statutory
direction to allow a direct, expedited appeal to this Court, see §§
692(b)-(c), we promptly noted probable jurisdiction and expedited
review, 520 U. S. 1194 (1997). We determined, however, that the
Members of Congress did not have standing to sue because they had
not "alleged a sufficiently concrete injury to have established
Article III standing,"
Raines v.
Byrd, 521 U. S. 811, 830
(1997); thus, "[i]n ... light of [the] overriding and time-honored
concern about keeping the Judiciary's power within its proper
constitutional sphere," id., at 820, we remanded the case to the
District Court with instructions to dismiss the complaint for lack
of jurisdiction.
Less than two months after our decision in that case, the
President exercised his authority to cancel one provision in the
Balanced Budget Act of 1997, Pub. L. 105-33, 111 Stat. 251, 515,
and two provisions in the Taxpayer Relief Act of 1997, Pub. L.
105-34, 111 Stat. 788, 895-896, 990-993. Appellees, claiming that
they had been injured by two of those cancellations, filed these
cases in the District Court. That Court again held the statute
invalid, 985 F. Supp. 168, 177182 (1998), and we again expedited
our review, 522 U. S. 1144 (1998). We now hold that these appellees
have standing to challenge the constitutionality of the Act and,
reaching the merits, we agree that the cancellation procedures set
forth in the Act violate the Presentment Clause, Art. I, § 7, cl.
2, of the Constitution.
I
We begin by reviewing the canceled items that are at issue in
these cases.
422
Section J, 722 (c) of the Balanced Budget Act
Title XIX of the Social Security Act, 79 Stat. 343, as amended,
authorizes the Federal Government to transfer huge sums of money to
the States to help finance medical care for the indigent. See 42 U.
S. C. § 1396d(b). In 1991, Congress directed that those federal
subsidies be reduced by the amount of certain taxes levied by the
States on health care providers.1 In 1994, the Department of Health
and Human Services (HHS) notified the State of New York that 15 of
its taxes were covered by the 1991 Act, and that as of June 30,
1994, the statute therefore required New York to return $955
million to the United States. The notice advised the State that it
could apply for a waiver on certain statutory grounds. New York did
request a waiver for those tax programs, as well as for a number of
others, but HHS has not formally acted on any of those waiver
requests. New York has estimated that the amount at issue for the
period from October 1992 through March 1997 is as high as $2.6
billion.
Because HHS had not taken any action on the waiver requests, New
York turned to Congress for relief. On August 5, 1997, Congress
enacted a law that resolved the issue in New York's favor. Section
4722(c) of the Balanced Budget Act of 1997 identifies the disputed
taxes and provides that they "are deemed to be permissible health
care related taxes and in compliance with the requirements" of the
relevant provisions of the 1991 statute.2
1 Medicaid Voluntary Contribution and Provider-Specific Tax
Amendments of 1991, Pub. L. 102-234, 105 Stat. 1793, 42 U. S. C. §
1396b(w).
2 Section 4722(c) provides:
"(c) WAIVER OF CERTAIN PROVIDER TAX PROVISIONS.-Notwithstanding
any other provision of law, taxes, fees, or assessments, as defined
in section 1903(w)(3)(A) of the Social Security Act (42 U. S. C.
1396b(w)(3)(A)), that were collected by the State of New York from
a health care provider before June 1, 1997, and for which a waiver
of the provisions of subparagraph (B) or (C) of section 1903(w)(3)
of such Act has been applied for, or that would, but for this
subsection require that such
423
On August 11, 1997, the President sent identical notices to the
Senate and to the House of Representatives canceling "one item of
new direct spending," specifying §4722(c) as that item, and stating
that he had determined that "this cancellation will reduce the
Federal budget deficit." He explained that §4722(c) would have
permitted New York "to continue relying upon impermissible provider
taxes to finance its Medicaid program" and that "[t]his
preferential treatment would have increased Medicaid costs, would
have treated New York differently from all other States, and would
have established a costly precedent for other States to request
comparable treatment." 3
Section 968 of the Taxpayer Relief Act of 1997
A person who realizes a profit from the sale of securities is
generally subject to a capital gains tax. Under existing law,
however, an ordinary business corporation can acquire a
corporation, including a food processing or refining company, in a
merger or stock-for-stock transaction in which no gain is
recognized to the seller, see 26 U. S. C. §§ 354(a), 368(a); the
seller's tax payment, therefore, is deferred. If, however, the
purchaser is a farmers' cooperative, the parties cannot structure
such a transaction because the stock of the cooperative may be held
only by its members, see § 521(b)(2); thus, a seller dealing with a
farmers' cooperative cannot obtain the benefits of tax
deferral.
a waiver be applied for, in accordance with subparagraph (E) of
such section, and, (if so applied for) upon which action by the
Secretary of Health and Human Services (including any judicial
review of any such proceeding) has not been completed as of July
23, 1997, are deemed to be permissible health care related taxes
and in compliance with the requirements of subparagraphs (B) and
(C) of section 1903(w)(3) of such Act." 111 Stat. 515.
3 App. to Juris. Statement 63a-64a (Cancellation No. 97-3). The
quoted text is an excerpt from the statement of reasons for the
cancellation, which is required by the Line Item Veto Act. See 2 U.
S. C. § 691a (1994 ed., Supp. II).
424
In § 968 of the Taxpayer Relief Act of 1997, Congress amended §
1042 of the Internal Revenue Code to permit owners of certain food
refiners and processors to defer the recognition of gain if they
sell their stock to eligible farmers' cooperatives.4 The purpose of
the amendment, as repeatedly explained by its sponsors, was "to
facilitate the transfer of refiners and processors to farmers'
cooperatives." 5 The
4 Section 968(a) of the Taxpayer Relief Act of 1997 amended 26
U. S. C. § 1042 by adding a new subsection (g), which defined the
sellers eligible for the exemption as follows:
"(2) QUALIFIED REFINER OR PROCESSOR.-For purposes of this
subsection, the term 'qualified refiner or processor' means a
domestic corporation-
"(A) substantially all of the activities of which consist of the
active conduct of the trade or business of refining or processing
agricultural or horticultural products, and
"(E) which, during the I-year period ending on the date of the
sale, purchases more than one-half of such products to be refined
or processed from-
"(i) farmers who make up the eligible farmers' cooperative which
is purchasing stock in the corporation in a transaction to which
this subsection is to apply, or
"(ii) such cooperative." 111 Stat. 896.
5H. R. Rep. No. 105-148, p. 420 (1997); see also 141 Congo Rec.
S18739 (Dec. 15, 1995) (Senator Hatch, introducing a previous
version of the bill, stating that it "would provide farmers who
form farmers cooperatives the opportunity for an ownership interest
in the processing and marketing of their products"); ibid. (Senator
Craig, cosponsor of a previous bill, stating that "[c]urrently,
farmers cannot compete with other business entities ... in buying
such [processing] businesses because of the advantages inherent in
the tax deferrals available in transactions with these other
purchases"; bill "would be helpful to farmers cooperatives"); App.
116-117 (Letter from Congresspersons Roberts and Stenholm (Dec. 1,
1995)) (congressional sponsors stating that a previous version of
the bill was intended to "provide American farmers a more firm
economic footing and more control over their economic destiny. We
believe this proposal will help farmers, through their
cooperatives, purchase facilities to refine and process their raw
commodities into value-added products .... It will encourage
farmers to help themselves in a more market-oriented environment by
vertically integrating. If this legislation is passed, we are
confident that, 10 years from now, we will look on this bill as one
of the most beneficial actions Congress took for U. S.
farmers").
425
amendment to § 1042 was one of the 79 "limited tax benefits"
authorized by the Taxpayer Relief Act of 1997 and specifically
identified in Title XVII of that Act as "subject to [the] line item
veto." 6
On the same date that he canceled the "item of new direct
spending" involving New York's health care programs, the President
also canceled this limited tax benefit. In his explanation of that
action, the President endorsed the objective of encouraging
"value-added farming through the purchase by farmers' cooperatives
of refiners or processors of agricultural goods," 7 but concluded
that the provision lacked safeguards and also "failed to target its
benefits to small-andmedium-size cooperatives." 8
II
Appellees filed two separate actions against the President 9 and
other federal officials challenging these two cancellations. The
plaintiffs in the first case are the City of New York, two hospital
associations, one hospital, and two unions representing health care
employees. The plaintiffs in the second are a farmers' cooperative
consisting of about 30 potato growers in Idaho and an individual
farmer who is a member and officer of the cooperative. The District
Court consolidated the two cases and determined that at least
one
6 § 1701(30), 111 Stat. 1101.
7 App. to Juris. Statement 71a (Cancellation No. 97-2). On the
day the President canceled § 968, he stated: "Because I strongly
support family farmers, farm cooperatives, and the acquisition of
production facilities by co-ops, this was a very difficult decision
for me." App. 125. He added that creating incentives so that
farmers' cooperatives can obtain processing facilities is a "very
worthy goal."
Id., at 130.
8 App. to Juris. Statement 71a (Cancellation No. 97-2). Section
968 was one of the two limited tax benefits in the Taxpayer Relief
Act of 1997 that the President canceled.
9 In both actions, the plaintiffs sought a declaratory judgment
that the Line Item Veto Act is unconstitutional and that the
particular cancellation was invalid; neither set of plaintiffs
sought injunctive relief against the President.
426
of the plaintiffs in each had standing under Article III of the
Constitution.
Appellee New York City Health and Hospitals Corporation (NYCHHC)
is responsible for the operation of public health care facilities
throughout the City of New York. If HHS ultimately denies the
State's waiver requests, New York law will automatically require 10
NYCHHC to make retroactive tax payments to the State of about $4
million for each of the years at issue. 985 F. Supp., at 172. This
contingent liability for NYCHHC, and comparable potential
liabilities for the other appellee health care providers, were
eliminated by § 4722(c) of the Balanced Budget Act of 1997 and
revived by the President's cancellation of that provision. The
District Court held that the cancellation of the statutory
protection against these liabilities constituted sufficient injury
to give these providers Article III standing.
Appellee Snake River Potato Growers, Inc. (Snake River) was
formed in May 1997 to assist Idaho potato farmers in marketing
their crops and stabilizing prices, in part through a strategy of
acquiring potato processing facilities that will allow the members
of the cooperative to retain revenues otherwise payable to
third-party processors. At that time, Congress was considering the
amendment to the capital gains tax that was expressly intended to
aid farmers' cooperatives in the purchase of processing facilities,
and Snake River had concrete plans to take advantage of the
amendment if passed. Indeed, appellee Mike Cranney, acting on
behalf of Snake River, was engaged in negotiations with the
lOSee,
e. g., N. Y. Pub. Health Law §2807-c(18)(e)
(McKinney Supp.19971998) ("In the event the secretary of the
department of health and human services determines that the
assessments do not ... qualify based on any such exclusion, then
the exclusion shall be deemed to have been null and void ... and
the commissioner shall collect any retroactive amount due as a
result .... Interest and penalties shall be measured from the due
date of ninety days following notice from the commissioner"); §
2807-d(12) (1993) (same); §2807-j(1l) (Supp. 1997-1998) (same);
§2807-s(8) (same).
427
owner of an Idaho potato processor that would have qualified for
the tax benefit under the pending legislation, but these
negotiations terminated when the President canceled § 968. Snake
River is currently considering the possible purchase of other
processing facilities in Idaho if the President's cancellation is
reversed. Based on these facts, the District Court concluded that
the Snake River plaintiffs were injured by the President's
cancellation of § 968, as they "lost the benefit of being on equal
footing with their competitors and will likely have to pay more to
purchase processing facilities now that the sellers will not [be]
able to take advantage of section 968's tax breaks."
Id., at
177.
On the merits, the District Court held that the cancellations
did not conform to the constitutionally mandated procedures for the
enactment or repeal of laws in two respects. First, the laws that
resulted after the cancellations "were different from those
consented to by both Houses of Congress."
Id., at 178.11
Moreover, the President violated Article I "when he unilaterally
canceled provisions of duly enacted statutes."
Id., at
179.12 As a separate basis for
11 As the District Court explained: "These laws reflected the
best judgment of both Houses. The laws that resulted after the
President's line item veto were different from those consented to
by both Houses of Congress. There is no way of knowing whether
these laws, in their truncated form, would have received the
requisite support from both the House and the Senate. Because the
laws that emerged after the Line Item Veto are not the same laws
that proceeded through the legislative process, as required, the
resulting laws are not valid." 985 F. Supp., at 178-179.
12 "Unilateral action by any single participant in the
law-making process is precisely what the Bicameralism and
Presentment Clauses were designed to prevent. Once a bill becomes
law, it can only be repealed or amended through another,
independent legislative enactment, which itself must conform with
the requirements of Article I. Any rescissions must be agreed upon
by a majority of both Houses of Congress. The President cannot
single-handedly revise the work of the other two participants in
the lawmaking process, as he did here when he vetoed certain
provisions of these statutes."
Ibid.
428
its decision, the District Court also held that the Act
"impermissibly disrupts the balance of powers among the three
branches of government."
Ibid.
III
As in the prior challenge to the Line Item Veto Act, we
initially confront jurisdictional questions. The appellees invoked
the jurisdiction of the District Court under the section of the Act
entitled "Expedited review." That section, 2 U. s. C. § 692(a)(1)
(1994 ed., Supp. II), expressly authorizes "[a]ny Member of
Congress or any individual adversely affected" by the Act to bring
an action for declaratory judgment or injunctive relief on the
ground that any provision of the Act is unconstitutional. Although
the Government did not question the applicability of that section
in the District Court, it now argues that, with the exception of
Mike Cranney, the appellees are not "individuals" within the
meaning of § 692(a)(1). Because the argument poses a jurisdictional
question (although not one of constitutional magnitude), it is not
waived by the failure to raise it in the District Court. The fact
that the argument did not previously occur to the able lawyers for
the Government does, however, confirm our view that in the context
of the entire section Congress undoubtedly intended the word
"individual" to be construed as synonymous with the word "person."
13
The special section authorizing expedited review evidences an
unmistakable congressional interest in a prompt and authoritative
judicial determination of the constitution-
13 Although in ordinary usage both "individual" and "person"
often refer to an individual human being, see,
e. g.,
Webster's Third New International Dictionary 1152, 1686 (1986)
("individual" defined as a "single human being"; "person" defined
as "an individual human being"), "person" often has a broader
meaning in the law, see,
e. g., 1 U. S. C. § 1 ("person"
includes "corporations, companies, associations, firms,
partnerships, societies, and joint stock companies, as well as
individuals").
429
ality of the Act. Subsection (a)(2) requires that copies of any
complaint filed under subsection (a)(l) "shall be promptly
delivered" to both Houses of Congress, and that each House shall
have a right to intervene. Subsection (b) authorizes a direct
appeal to this Court from any order of the District Court, and
requires that the appeal be filed within 10 days. Subsection (c)
imposes a duty on both the District Court and this Court "to
advance on the docket and to expedite to the greatest possible
extent the disposition of any matter brought under subsection (a)."
There is no plausible reason why Congress would have intended to
provide for such special treatment of actions filed by natural
persons and to have precluded entirely jurisdiction over comparable
cases brought by corporate persons. Acceptance of the Government's
new-found reading of § 692 "would produce an absurd and unjust
result which Congress could not have intended."
Griffin v.
Oceanic Contractors, Inc., 458 U. S. 564, 574
(1982).14
We are also unpersuaded by the Government's argument that
appellees' challenge to the constitutionality of the Act is
nonjusticiable. We agree, of course, that Article III of the
Constitution confines the jurisdiction of the federal courts to
actual "Cases" and "Controversies," and that "the doctrine of
standing serves to identify those disputes which are appropriately
resolved through the judicial process." Whit-
14JUSTICE SCALIA objects to our conclusion that the Government's
reading of the statute would produce an absurd result.
Post,
at 454-455. Nonetheless, he states that '''the case is of such
imperative public importance as to justify deviation from normal
appellate practice and to require immediate determination in this
Court.'''
Post, at 455 (quoting this Court's Rule 11).
Unlike JUSTICE SCALIA, however, we need not rely on our
own
sense of the importance of the issue involved; instead, the
structure of § 692 makes it clear that
Congress believed the
issue warranted expedited review and, therefore, that Congress did
not intend the result that the word "individual" would dictate in
other contexts.
430
more v.
Arkansas, 495 U. S. 149, 155
(1990).15 Our disposition of the first challenge to the
constitutionality of this Act demonstrates our recognition of the
importance of respecting the constitutional limits on our
jurisdiction, even when Congress has manifested an interest in
obtaining our views as promptly as possible. But these cases differ
from
Raines, not only because the President's exercise of
his cancellation authority has removed any concern about the
ripeness of the dispute, but more importantly because the parties
have alleged a "personal stake" in having an actual injury
redressed rather than an "institutional injury" that is "abstract
and widely dispersed." 521 U. S., at 829.
In both the New York and the Snake River cases, the Government
argues that the appellees are not actually injured because the
claims are too speculative and, in any event, the claims are
advanced by the wrong parties. We find no merit in the suggestion
that New York's injury is merely speculative because HHS has not
yet acted on the State's waiver requests. The State now has a
multibillion dollar contingent liability that had been eliminated
by § 4722(c) of the Balanced Budget Act of 1997. The District Court
correctly concluded that the State, and the appellees, "suffered an
immediate, concrete injury the moment that the President used the
Line Item Veto to cancel section 4722(c) and deprived them of the
benefits of that law." 985 F. Supp., at 174. The self-evident
significance of the contingent liability is confirmed by the fact
that New York lobbied Congress for this relief, that Congress
decided that it warranted statutory attention, and that the
President selected for cancellation only this one provision in an
Act that occupies 536 pages of the Statutes at Large. His action
was comparable to the judgment of an appellate court setting aside
a verdict for the defendant and remanding for a new trial of a
multibillion
15 To meet the standing requirements of Article III, "[a]
plaintiff must allege personal injury fairly traceable to the
defendant's allegedly unlawful conduct and likely to be redressed
by the requested relief."
Allen v.
Wright, 468 U. S. 737, 751
(1984).
431
dollar damages claim. Even if the outcome of the second trial is
speculative, the reversal, like the President's cancellation,
causes a significant immediate injury by depriving the defendant of
the benefit of a favorable final judgment. The revival of a
substantial contingent liability immediately and directly affects
the borrowing power, financial strength, and fiscal planning of the
potential obligor.16
We also reject the Government's argument that New York's claim
is advanced by the wrong parties because the claim belongs to the
State of New York, and not appellees. Under New York statutes that
are already in place, it is clear that both the City of New York 17
and the appellee health care providers 18 will be assessed by the
State for substantial portions of any recoupment payments that the
State may have to make to the Federal Government. To the extent of
such assessments, they have the same potential liability as the
State does.19
16 Because the cancellation of the legislative equivalent of a
favorable final judgment causes immediate injury, the Government's
reliance on
Anderson v.
Green, 513 U. S. 557 (1995)
(per curiam), is misplaced. That case involved a challenge
to a California statute that would have imposed limits on welfare
payments to new residents during their first year of residence in
California. The statute could not become effective without a waiver
from HHS. Although such a waiver had been in effect when the action
was filed, it had been vacated in a separate proceeding and HHS had
not sought review of that judgment. Accordingly, at the time the
Anderson case reached this Court, the plaintiffs were
receiving the same benefits as long-term residents; they had
suffered no injury. We held that the case was not ripe because,
unless and until HHS issued a new waiver, any future injury was
purely conjectural.
Id., at 559 ("The parties [i.
e.,
the plaintiffs and California, but not HHS] have no live dispute
now, and whether one will arise in the future is conjectural").
Unlike New York in this case, they were not contingently liable for
anything.
17 App. 106-107.
18 See n. 10,
supra.
19 The Government relies on
Warth v.
Seldin,
422 U. S. 490
(1975), to support its argument that the State, and not appellees,
should be bringing this claim. In
Warth we held,
inter
alia, that citizens of Rochester did not have standing to
challenge the exclusionary zoning practices of another community
because their claimed injury of increased taxation turned
432
The Snake River farmers' cooperative also suffered an immediate
injury when the President canceled the limited tax benefit that
Congress had enacted to facilitate the acquisition of processing
plants. Three critical facts identify the specificity and the
importance of that injury. First, Congress enacted § 968 for the
specific purpose of providing a benefit to a defined category of
potential purchasers of a defined category of assets.20 The members
of that statutorily defined class received the equivalent of a
statutory "bargaining chip" to use in carrying out the
congressional plan to facilitate their purchase of such assets.
Second, the President selected § 968 as one of only two tax
benefits in the Taxpayer Relief Act of 1997 that should be
canceled. The cancellation rested on his determination that the use
of those bargaining chips would have a significant impact on the
federal budget deficit. Third, the Snake River cooperative was
organized for the very purpose of acquiring processing facilities,
it had concrete plans to utilize the benefits of § 968, and it was
engaged in ongoing negotiations with the owner of a processing
plant who had expressed an interest in structuring a taxdeferred
sale when the President canceled § 968. Moreover, it is actively
searching for other processing facilities for possible future
purchase if the President's cancellation is reversed; and there are
ample processing facilities in the State that Snake River may be
able to purchase.21 By depriving them of their statutory bargaining
chip, the cancellation inflicted a sufficient likelihood of
economic injury to establish standing under our precedents. See,
e. g.,
Investment
on the prospective actions of Rochester officials.
Id.,
at 509. Appellees' injury in this case, however, does not turn on
the independent actions of third parties, as existing New York law
will automatically require that appellees reimburse the State.
Because both the City of New York and the health care appellees
have standing, we need not consider whether the appellee unions
also have standing to sue. See,
e. g., Bowsher v.
Synar, 478 U.
S. 714, 721 (1986). 20 See n. 5,
supra.
21 App. 111-115 (Declaration of Mike Cranney).
433
Company Institute v.
Camp, 401 U. S. 617, 620
(1971); 3 K. Davis & R. Pierce, Administrative Law Treatise
13-14 (3d ed. 1994) ("The Court routinely recognizes probable
economic injury resulting from [governmental actions] that alter
competitive conditions as sufficient to satisfy the [Article III
'injury-in-fact' requirement] .... It follows logically that any
... petitioner who is likely to suffer economic injury as a result
of [governmental action] that changes market conditions satisfies
this part of the standing test").
Appellees' injury in this regard is at least as concrete as the
injury suffered by the respondents in
Bryant v.
Yellen, 447 U.
S. 352 (1980). In that case, we considered whether a rule that
generally limited water deliveries from reclamation projects to 160
acres applied to the much larger tracts of the Imperial Irrigation
District in southeastern California; application of that limitation
would have given large landowners an incentive to sell excess lands
at prices below the prevailing market price for irrigated land. The
District Court had held that the 160-acre limitation did not apply,
and farmers who had hoped to purchase the excess land sought to
appeal. We acknowledged that the farmers had not presented
"detailed information about [their] financial resources," and noted
that "the prospect of windfall profits could attract a large number
of potential purchasers" besides the farmers.
Id., at 367,
n. 17. Nonetheless, "even though they could not with certainty
establish that they would be able to purchase excess lands" if the
judgment were reversed, id., at 367, we found standing because it
was "likely that excess lands would become available at less than
market prices," id., at 368. The Snake River appellees have alleged
an injury that is as specific and immediate as that in
Yellen. See also
Duke Power Co. v.
Carolina
Environmental Study Group, Inc., 438 U. S. 59, 72-78
(1978).22
22 The Government argues that there can be an Article III injury
only if Snake River would have actually obtained a facility on
favorable terms. We have held, however, that a denial of a benefit
in the bargaining process
434
As with the New York case, the Government argues that the wrong
parties are before the Court-that because the sellers of the
processing facilities would have received the tax benefits, only
they have standing to challenge the cancellation of § 968. This
argument not only ignores the fact that the cooperatives were the
intended beneficiaries of § 968, but also overlooks the
self-evident proposition that more than one party may have standing
to challenge a particular action or inaction.23 Once it is
determined that a particular plain-
can itself create an Article III injury, irrespective of the end
result. See
Northeastern Fla. Chapter, Associated Gen.
Contractors of America v.
Jacksonville, 508 U. S. 656, 666
(1993). In that case an association of contractors challenged a
city ordinance that accorded preferential treatment to certain
minority-owned businesses in the award of city contracts. The Court
of Appeals had held that the association lacked standing "because
it failed to allege that one or more of its members would have been
awarded a contract but for the challenged ordinance."
Id.,
at 664. We rejected the Court of Appeals' position, stating that it
"cannot be reconciled with our precedents."
Ibid. Even
though the preference applied to only a small percentage of the
city's business, and even though there was no showing that any
party would have received a contract absent the ordinance, we held
that the prospective bidders had standing; the "injury in fact" was
the harm to the contractors in the negotiation process, "not the
ultimate inability to obtain the benefit."
Id., at 666.
Having found that both the New York and Snake River appellees
are actually injured, traceability and redressability are easily
satisfied-each injury is traceable to the President's cancellation
of § 4722(c) or § 968, and would be redressed by a declaratory
judgment that the cancellations are invalid.
23 Allen v.
Wright, 468 U. S. 737 (1984), and
Simon v.
Eastern Ky. Welfare Rights Organization,
426 U. S. 26
(1976), are distinguishable, as each of those cases involved a
speculative chain of causation quite different from the situation
here. In
Allen, parents of black public school children
alleged that, even though it was the policy of the Internal Revenue
Service (IRS) to deny tax-exempt status to racially discriminatory
schools, the IRS had "not adopted sufficient standards and
procedures" to enforce this policy. 468 U. S., at 739. The parents
alleged that the lax enforcement caused white students to attend
discriminatory
private schools and, therefore, interfered
with their children's opportunity to attend desegre-
435
tiff is harmed by the defendant, and that the harm will likely
be redressed by a favorable decision, that plaintiff has
standing-regardless of whether there are others who would
gated
public schools. We held that the chain of causation
between the challenged action and the alleged injury was too
attenuated to confer standing:
"It is, first, uncertain how many racially discriminatory
private schools are in fact receiving tax exemptions. Moreover, it
is entirely speculative ... whether withdrawal of a tax exemption
from any particular school would lead the school to change its
policies .... It is just as speculative whether any given parent of
a child attending such a private school would decide to transfer
the child to public school as a result of any changes in
educational or financial policy made by the private school once it
was threatened with loss of tax-exempt status. It is also pure
speculation whether, in a particular community, a large enough
number of the numerous relevant school officials and parents would
reach decisions that collectively would have a significant impact
on the racial composition of the public schools."
Id., at
758 (footnote omitted).
Similarly, in
Simon, the respondents challenged an IRS
Revenue Ruling that granted favorable tax treatment to nonprofit
hospitals that offered only emergency-room services to the poor.
The respondents argued that the Revenue Ruling" 'encouraged'
hospitals to deny services to indigents." 426 U. S., at 42. As in
Allen, we held that the chain of causation was too
attenuated:
"It is purely speculative whether the denials of service ...
fairly can be traced to [the IRS's] 'encouragement' or instead
result from decisions made by the hospitals without regard to the
tax implications.
"It is equally speculative whether the desired exercise of the
court's remedial powers in this suit would result in the
availability to respondents of such services. So far as the
complaint sheds light, it is just as plausible that the hospitals
to which respondents may apply for service would elect to forgo
favorable tax treatment to avoid the undetermined financial drain
of an increase in the level of uncompensated services." 426 U. S.,
at 42-43.
See also id., at 45 ("Speculative inferences are necessary to
connect [respondents'] injury to the challenged actions of
petitioners").
The injury in the present case is comparable to the repeal of a
law granting a subsidy to sellers of processing plants if, and only
if, they sell to farmers' cooperatives. Every farmers' cooperative
seeking to buy a processing plant is harmed by that repeal.
436
also have standing to sue. Thus, we are satisfied that both of
these actions are Article III "Cases" that we have a duty to
decide.
IV
The Line Item Veto Act gives the President the power to "cancel
in whole" three types of provisions that have been signed into law:
"(1) any dollar amount of discretionary budget authority; (2) any
item of new direct spending; or (3) any limited tax benefit." 2 U.
S. C. § 691(a) (1994 ed., Supp. II). It is undisputed that the New
York case involves an "item of new direct spending" and that the
Snake River case involves a "limited tax benefit" as those terms
are defined in the Act. It is also undisputed that each of those
provisions had been signed into law pursuant to Article I, § 7, of
the Constitution before it was canceled.
The Act requires the President to adhere to precise procedures
whenever he exercises his cancellation authority. In identifying
items for cancellation he must consider the legislative history,
the purposes, and other relevant information about the items. See 2
U. S. C. § 691(b) (1994 ed., Supp. II). He must determine, with
respect to each cancellation, that it will "(i) reduce the Federal
budget deficit; (ii) not impair any essential Government functions;
and (iii) not harm the national interest." § 691(a)(A). Moreover,
he must transmit a special message to Congress notifying it of each
cancellation within five calendar days (excluding Sundays) after
the enactment of the canceled provision. See § 691(a)(B). It is
undisputed that the President meticulously followed these
procedures in these cases.
A cancellation takes effect upon receipt by Congress of the
special message from the President. See § 691b(a). If, however, a
"disapproval bill" pertaining to a special message is enacted into
law, the cancellations set forth in that message become "null and
void."
Ibid. The Act sets forth a detailed expedited
procedure for the consideration of a "disapproval bill," see §
691d, but no such bill was passed for
437
either of the cancellations involved in these cases.24 A
majority vote of both Houses is sufficient to enact a disapproval
bill. The Act does not grant the President the authority to cancel
a disapproval bill, see § 691(c), but he does, of course, retain
his constitutional authority to veto such a bill.25
The effect of a cancellation is plainly stated in § 691e, which
defines the principal terms used in the Act. With respect to both
an item of new direct spending and a limited tax benefit, the
cancellation prevents the item "from having legal force or effect."
§§ 691e(4)(B)-(C).26 Thus, under the
24 Congress failed to act upon proposed legislation to
disapprove these cancellations. See S. 1157, H. R. 2444, S. 1144,
and H. R. 2436, 105th Cong., 1st Sess. (1997). Indeed, despite the
fact that the President has canceled at least 82 items since the
Act was passed, see Statement of June E. O'Neill, Director,
Congressional Budget Office, Line Item Veto Act After One Year, The
Process and Its Implementation, before the Subcommittee on
Legislative and Budget Process of the House Committee on Rules,
105th Cong., 2d Sess. (Mar. 11-12, 1998), Congress has enacted only
one law, over a Presidential veto, disapproving
any
cancellation, see Pub. L. 105-159, 112 Stat. 19 (1998)
(disapproving the cancellation of 38 military construction spending
items).
25 See n. 29,
infra.
26 The term "cancel," used in connection with any dollar amount
of discretionary budget authority, means "to rescind." 2 U. S. C. §
691e(4)(A). The entire definition reads as follows:
"The term 'cancel' or 'cancellation' means-
"(A) with respect to any dollar amount of discretionary budget
authority, to rescind;
"(B) with respect to any item of new direct spending-
"(i) that is budget authority provided by law (other than an
appropriation law), to prevent such budget authority from having
legal force or effect;
"(ii) that is entitlement authority, to prevent the specific
legal obligation of the United States from having legal force or
effect; or
"(iii) through the food stamp program, to prevent the specific
provision of law that results in an increase in budget authority or
outlays for that program from having legal force or effect; and
"(C) with respect to a limited tax benefit, to prevent the
specific provision of law that provides such benefit from having
legal force or effect." 2 U. S. C. § 691e(4) (1994 ed., Supp.
II).
438
plain text of the statute, the two actions of the President that
are challenged in these cases prevented one section of the Balanced
Budget Act of 1997 and one section of the Taxpayer Relief Act of
1997 "from having legal force or effect." The remaining provisions
of those statutes, with the exception of the second canceled item
in the latter, continue to have the same force and effect as they
had when signed into law.
In both legal and practical effect, the President has amended
two Acts of Congress by repealing a portion of each. "[R]epeal of
statutes, no less than enactment, must conform with Art. 1."
INS v.
Chadha, 462 U. S. 919, 954
(1983). There is no provision in the Constitution that authorizes
the President to enact, to amend, or to repeal statutes. Both
Article I and Article II assign responsibilities to the President
that directly relate to the lawmaking process, but neither
addresses the issue presented by these cases. The President "shall
from time to time give to the Congress Information on the State of
the Union, and recommend to their Consideration such Measures as he
shall judge necessary and expedient .... " Art. II, § 3. Thus, he
may initiate and influence legislative proposals.27 Moreover, after
a bill has passed both Houses of Congress, but "before it become[s]
a Law," it must be presented to the President. If he approves it,
"he shall sign it, but if not he shall return it, with his
Objections to that House in which it shall have originated, who
shall enter the Objections at large on their Journal, and proceed
to reconsider it." Art. I, § 7, cl. 2.28 His
27 See 3 J. Story, Commentaries on the Constitution of the
United States § 1555, p. 413 (1833) (Art. II, § 3, enables the
President "to point out the evil, and to suggest the remedy").
28 The full text of the relevant paragraph of § 7 provides:
"Every Bill which shall have passed the House of Representatives
and the Senate, shall, before it become a Law, be presented to the
President of the United States: If he approve he shall sign it, but
if not he shall return it, with his Objections to that House in
which it shall have originated, who shall enter the Objections at
large on their Journal, and pro-
439
"return" of a bill, which is usually described as a "veto," 29
is subject to being overridden by a two-thirds vote in each
House.
There are important differences between the President's "return"
of a bill pursuant to Article I, § 7, and the exercise of the
President's cancellation authority pursuant to the Line Item Veto
Act. The constitutional return takes place
before the bill
becomes law; the statutory cancellation occurs
after the
bill becomes law. The constitutional return is of the entire bill;
the statutory cancellation is of only a part. Although the
Constitution expressly authorizes the President to playa role in
the process of enacting statutes, it is silent on the subject of
unilateral Presidential action that either repeals or amends parts
of duly enacted statutes.
There are powerful reasons for construing constitutional silence
on this profoundly important issue as equivalent to an express
prohibition. The procedures governing the enactment of statutes set
forth in the text of Article I were the product of the great
debates and compromises that produced the Constitution itself.
Familiar historical materials provide abundant support for the
conclusion that the power to enact statutes may only "be exercised
in accord with a single, finely wrought and exhaustively
considered,
ceed to reconsider it. If after such Reconsideration two thirds
of that House shall agree to pass the Bill, it shall be sent,
together with the Objections, to the other House, by which it shall
likewise be reconsidered, and if approved by two thirds of that
House, it shall become a Law. But in all such Cases the Votes of
both Houses shall be determined by Yeas and Nays, and the Names of
the Persons voting for and against the Bill shall be entered on the
Journal of each House respectively. If any Bill shall not be
returned by the President within ten Days (Sundays excepted) after
it shall have been presented to him, the Same shall be a Law, in
like Manner as if he had signed it, unless the Congress by their
Adjournment prevent its Return, in which Case it shall not be a
Law."
29 "In constitutional terms, 'veto' is used to describe the
President's power under Art. I, § 7, of the Constitution."
INS v.
Chadha, 462 U. S. 919, 925, n. 2
(1983) (citing Black's Law Dictionary 1403 (5th ed. 1979)).
440
procedure."
Chadha, 462 U. S., at 951. Our first
President understood the text of the Presentment Clause as
requiring that he either "approve all the parts of a Bill, or
reject it in toto." 30 What has emerged in these cases from the
President's exercise of his statutory cancellation powers, however,
are truncated versions of two bills that passed both Houses of
Congress. They are not the product of the "finely wrought"
procedure that the Framers designed.
At oral argument, the Government suggested that the
cancellations at issue in these cases do not effect a "repeal" of
the canceled items because under the special "lockbox" provisions
of the Act,31 a canceled item "retain[s] real, legal
3033 Writings of George Washington 96 (J. Fitzpatrick ed.,
1940); see also W. Taft, The Presidency: Its Duties, Its Powers,
Its Opportunities and Its Limitations 11 (1916) (stating that the
President "has no power to veto part of a bill and let the rest
become a law"); cf. 1 W. Blackstone, Commentaries *154 ("The crown
cannot begin of itself any alterations in the present established
law; but it may approve or disapprove of the alterations suggested
and consented to by the two houses").
31 The lockbox procedure ensures that savings resulting from
cancellations are used to reduce the deficit, rather than to offset
deficit increases arising from other laws. See 2 U. S. C. §§
691c(a)-(b) (1994 ed., Supp. II); see also H. R. Conf. Rep. No.
104-491, pp. 23-24 (1996). The Office of Management and Budget
(OMB) estimates the deficit reduction resulting from each
cancellation of new direct spending or limited tax benefit items
and presents its estimate as a separate entry in the
"pay-as-you-go" report submitted to Congress pursuant to § 252(d)
of the Balanced Budget and Emergency Deficit Control Act of 1985
(or Gramm-Rudman-Hollings Act), 2 U. S. C. § 902(d). See §
691c(a)(2)(A) (1994 ed., Supp. II); see also H. R. Conf. Rep. No.
104-491, at 23. The "pay-as-you-go" requirement acts as a
self-imposed limitation on Congress' ability to increase spending
and/or reduce revenue: If spending increases are not offset by
revenue increases (or if revenue reductions are not offset by
spending reductions), then a "sequester" of the excess budgeted
funds is required. See 2 U. S. C. §§ 900(b), 901(a)(1), 902(b),
906(l). OMB does not include the estimated savings resulting from a
cancellation in the report it must submit under §§252(b) and 254 of
the Balanced Budget and Emergency Deficit Control Act of 1985, 2 U.
S. C. §§ 902(b), 904. See § 691c(a)(2)(B). By providing in this way
that such savings "shall not be included in the pay-as-you-go
balances," Congress ensures that "savings from the cancellation of
new
441
budgetary effect" insofar as it prevents Congress and the
President from spending the savings that result from the
cancellation. Tr. of Oral Arg. 10.32 The text of the Act expressly
provides, however, that a cancellation prevents a direct spending
or tax benefit provision "from having legal force or effect." 2 U.
S. C. §§ 691e(4)(B)-(C). That a canceled item may have "real, legal
budgetary effect" as a result of the lockbox procedure does not
change the fact that by canceling the items at issue in these
cases, the President made them entirely inoperative as to
appellees. Section 968 of the Taxpayer Relief Act no longer
provides a tax benefit, and §4722(c) of the Balanced Budget Act of
1997 no longer relieves New York of its contingent liability.33
Such significant changes do not lose their character simply because
the canceled provisions may have some continuing financial effect
on the Government.34 The cancellation of one section of a statute
may be the functional equivalent of a partial repeal even if a
portion of the section is not canceled.
direct spending or limited tax benefits are devoted to deficit
reduction and are not available to offset a deficit increase in
another law." H. R. Conf. Rep. No. 104-491, at 23. Thus, the
"pay-as-you-go" cap does not change upon cancellation because the
canceled item is not treated as canceled. Moreover, if Congress
enacts a disapproval bill, "OMB will not score this legislation as
increasing the deficit under pay as you go."
Ibid.
32 The Snake River appellees have argued that the lockbox
provisions have no such effect with respect to the canceled tax
benefits at issue. Because we reject the Government's suggestion
that the lockbox provisions alter our constitutional analysis,
however, we find it unnecessary to resolve the dispute over the
details of the lockbox procedure's applicability.
33 Thus, although "Congress's use of infelicitous terminology
cannot transform the cancellation into an unconstitutional
amendment or repeal of an enacted law," Brief for Appellants 40-41
(citations omitted), the actual effect of a cancellation is
entirely consistent with the language of the Act.
34 Moreover, Congress always retains the option of statutorily
amending or repealing the lockbox provisions and/or the
Gramm-Rudman-Hollings Act, so as to eliminate any lingering
financial effect of canceled items.
442
v
The Government advances two related arguments to support its
position that despite the unambiguous provisions of the Act,
cancellations do not amend or repeal properly enacted statutes in
violation of the Presentment Clause. First, relying primarily on
Field v.
Clark, 143 U. S. 649 (1892), the
Government contends that the cancellations were merely exercises of
discretionary authority granted to the President by the Balanced
Budget Act and the Taxpayer Relief Act read in light of the
previously enacted Line Item Veto Act. Second, the Government
submits that the substance of the authority to cancel tax and
spending items "is, in practical effect, no more and no less than
the power to 'decline to spend' specified sums of money, or to
'decline to implement' specified tax measures." Brief for
Appellants 40. Neither argument is persuasive.
In
Field v.
Clark, the Court upheld the
constitutionality of the Tariff Act of 1890. Act of Oct. 1, 1890,
26 Stat. 567. That statute contained a "free list" of almost 300
specific articles that were exempted from import duties "unless
otherwise specially provided for in this act."
Id., at 602.
Section 3 was a special provision that directed the President to
suspend that exemption for sugar, molasses, coffee, tea, and hides
"whenever, and so often" as he should be satisfied that any country
producing and exporting those products imposed duties on the
agricultural products of the United States that he deemed to be
"reciprocally unequal and unreasonable .... "
Id., at 612,
quoted in
Field, 143 U. S., at 680. The section then
specified the duties to be imposed on those products during any
such suspension. The Court provided this explanation for its
conclusion that § 3 had not delegated legislative power to the
President:
"Nothing involving the expediency or the just operation of such
legislation was left to the determination of the President ....
[W]hen he ascertained the fact that duties
443
and exactions, reciprocally unequal and unreasonable, were
imposed upon the agricultural or other products of the United
States by a country producing and exporting sugar, molasses,
coffee, tea or hides, it became his duty to issue a proclamation
declaring the suspension, as to that country, which Congress had
determined should occur. He had no discretion in the premises
except in respect to the duration of the suspension so ordered. But
that related only to the enforcement of the policy established by
Congress. As the suspension was absolutely required when the
President ascertained the existence of a particular fact, it cannot
be said that in ascertaining that fact and in issuing his
proclamation, in obedience to the legislative will, he exercised
the function of making laws .... It was a part of the law itself as
it left the hands of Congress that the provisions, full and
complete in themselves, permitting the free introduction of sugars,
molasses, coffee, tea and hides, from particular countries, should
be suspended, in a given contingency, and that in case of such
suspensions certain duties should be imposed." Id., at
693.
This passage identifies three critical differences between the
power to suspend the exemption from import duties and the power to
cancel portions of a duly enacted statute. First, the exercise of
the suspension power was contingent upon a condition that did not
exist when the Tariff Act was passed: the imposition of
"reciprocally unequal and unreasonable" import duties by other
countries. In contrast, the exercise of the cancellation power
within five days after the enactment of the Balanced Budget and Tax
Reform Acts necessarily was based on the same conditions that
Congress evaluated when it passed those statutes. Second, under the
Tariff Act, when the President determined that the contingency had
arisen, he had a duty to suspend; in contrast, while it is true
that the President was required by the Act to make three
determinations before he canceled a provision, see 2
444
u. S. C. § 691(a)(A) (1994 ed., Supp. II), those determinations
did not qualify his discretion to cancel or not to cancel. Finally,
whenever the President suspended an exemption under the Tariff Act,
he was executing the policy that Congress had embodied in the
statute. In contrast, whenever the President cancels an item of new
direct spending or a limited tax benefit he is rejecting the policy
judgment made by Congress and relying on his own policy judgment.35
Thus, the conclusion in
Field v.
Clark that the
suspensions mandated by the Tariff Act were not exercises of
legislative power does not undermine our opinion that cancellations
pursuant to the Line Item Veto Act are the functional equivalent of
partial repeals of Acts of Congress that fail to satisfy Article I,
§ 7.
The Government's reliance upon other tariff and import statutes,
discussed in
Field, that contain provisions similar to the
one challenged in
Field is unavailing for the same
reasons.36 Some of those statutes authorized the President to
"suspen[dJ and discontinu[eJ" statutory duties upon his
determination that discriminatory duties imposed by other nations
had been abolished. See 143 U. S., at 686-687 (discussing Act of
Jan. 7, 1824, ch. 4, §4, 4 Stat. 3, and Act of May 24, 1828, ch.
111,4 Stat. 308).37 A slightly different statute,
35 For example, one reason that the President gave for canceling
§ 968 of the Taxpayer Relief Act was his conclusion that "this
provision failed to target its benefits to small-and-medium size
cooperatives." App. to Juris. Statement 71a (Cancellation No.
97-2); see n. 8,
supra. Because the Line Item Veto Act
requires the President to act within five days,
every
exercise of the cancellation power will necessarily be based on the
same facts and circumstances that Congress considered, and
therefore constitute a rejection of the policy choice made by
Congress.
36 The Court did not, of course, expressly consider in
Field whether those statutes comported with the requirements
of the Presentment Clause.
37 Cf. 143 U. S., at 688 (discussing Act of Mar. 6, 1866, ch.
12, § 2, 14 Stat. 4, which permitted the President to "declare the
provisions of this act to be inoperative" and lift import
restrictions on foreign cattle and hides upon a showing that such
importation would not endanger U. S. cattle).
445
Act of May 31, 1830, ch. 219, § 2, 4 Stat. 425, provided that
certain statutory provisions imposing duties on foreign ships
"shall be repealed" upon the same no-discrimination determination
by the President. See 143 U. S., at 687; see also id., at 686
(discussing similar tariff statute, Act of Mar. 3, 1815, ch. 77, 3
Stat. 224, which provided that duties "are hereby repealed,"
"[s]uch repeal to take effect ... whenever the President" makes the
required determination).
The cited statutes all relate to foreign trade, and this Court
has recognized that in the foreign affairs arena, the President has
"a degree of discretion and freedom from statutory restriction
which would not be admissible were domestic affairs alone
involved."
United States v.
Curtiss-Wright Export
Corp., 299 U. S.
304, 320 (1936). "Moreover, he, not Congress, has the better
opportunity of knowing the conditions which prevail in foreign
countries."
Ibid.38 More important, when enacting the
statutes discussed in
Field, Congress itself made the
decision to suspend or repeal the particular provisions at issue
upon the occurrence of particular events subsequent to enactment,
and it left only the determination of whether such events occurred
up to the President.39 The Line Item Veto Act authorizes the
President himself to effect the repeal of laws, for his own policy
reasons, without observing the procedures set out in Article I, §
7. The fact that Congress intended such a result is of no
38 Indeed, the Court in
Field v.
Clark, 143 U. S. 649 (1892), so
limited its reasoning: "[I]n the judgment of the legislative branch
of the government, it is often desirable, if not essential for the
protection of the interests of our people, against the unfriendly
or discriminating regulations established by foreign governments,
... to invest the President with large discretion in matters
arising out of the execution of statutes relating to trade and
commerce with other nations."
Id., at 691.
39 See also J.
W Hampton, Jr., &
Co. v.
United States, 276 U. S. 394, 407 (1928)
("Congress may feel itself unable conveniently to determine exactly
when its exercise of the legislative power should become effective,
because dependent on future conditions, and it may leave the
determination of such time to the decision of an Executive").
446
moment. Although Congress presumably anticipated that the
President might cancel some of the items in the Balanced Budget Act
and in the Taxpayer Relief Act, Congress cannot alter the
procedures set out in Article I, § 7, without amending the
Constitution.40
Neither are we persuaded by the Government's contention that the
President's authority to cancel new direct spending and tax benefit
items is no greater than his traditional authority to decline to
spend appropriated funds. The Government has reviewed in some
detail the series of statutes in which Congress has given the
Executive broad discretion over the expenditure of appropriated
funds. For example, the First Congress appropriated "sum[s] not
exceeding" specified amounts to be spent on various Government
operations. See,
e. g., Act of Sept. 29, 1789, ch. 23, 1
Stat. 95; Act of Mar. 26, 1790, ch. 4, § 1, 1 Stat. 104; Act of
Feb. 11, 1791, ch. 6, 1 Stat. 190. In those statutes, as in later
years, the President was given wide discretion with respect to both
the amounts to be spent and how the money would be allocated among
different functions. It is argued that the Line Item Veto Act
merely confers comparable discretionary authority over the
expenditure of appropriated funds. The critical
40 The Government argues that the Rules Enabling Act, 28 U. S.
C. § 2072(b), permits this Court to "repeal" prior laws without
violating Article I, § 7. Section 2072(b) provides that this Court
may promulgate rules of procedure for the lower federal courts and
that "[a]lllaws in conflict with such rules shall be of no further
force or effect after such rules have taken effect." See
Sibbach v.
Wilson &
Co., 312 U. S. 1, 10 (1941)
(stating that the procedural rules that this Court promulgates, "if
they are within the authority granted by Congress, repeal" a prior
inconsistent procedural statute); see also
Henderson v.
United States, 517 U. S. 654, 664 (1996)
(citing § 2072(b)). In enacting § 2072(b), however, Congress
expressly provided that laws inconsistent with the procedural rules
promulgated by this Court would automatically be repealed upon the
enactment of new rules in order to create a uniform system of rules
for Article III courts. As in the tariff statutes, Congress itself
made the decision to repeal prior rules upon the occurrence of a
particular event-here, the promulgation of procedural rules by this
Court.
447
difference between this statute and all of its predecessors,
however, is that unlike any of them, this Act gives the President
the unilateral power to change the text of duly enacted statutes.
None of the Act's predecessors could even arguably have been
construed to authorize such a change.
VI
Although they are implicit in what we have already written, the
profound importance of these cases makes it appropriate to
emphasize three points.
First, we express no opinion about the wisdom of the procedures
authorized by the Line Item Veto Act. Many members of both major
political parties who have served in the Legislative and the
Executive Branches have long advocated the enactment of such
procedures for the purpose of "ensur[ing] greater fiscal
accountability in Washington." H. R. Conf. Rep. 104-491, p. 15
(1996).41 The text of the Act was itself the product of much debate
and deliberation in both Houses of Congress and that precise text
was signed into law by the President. We do not lightly conclude
that their action was unauthorized by the Constitution.42 We have,
however, twice had full argument and briefing on the question and
have concluded that our duty is clear.
Second, although appellees challenge the validity of the Act on
alternative grounds, the only issue we address concerns the "finely
wrought" procedure commanded by the Constitution.
Chadha,
462 U. S., at 951. We have been
41 Cf. Taft, The Presidency,
supra n. 30, at 21 ("A
President with the power to veto items in appropriation bills might
exercise a good restraining influence in cutting down the total
annual expenses of the government. But this is not the right
way").
42 See
Bowsher, 478 U. S., at 736 (STEVENS, J.,
concurring in judgment) ("When this Court is asked to invalidate a
statutory provision that has been approved by both Houses of the
Congress and signed by the President, particularly an Act of
Congress that confronts a deeply vexing national problem, it should
only do so for the most compelling constitutional reasons").
448
favored with extensive debate about the scope of Congress' power
to delegate lawmaking authority, or its functional equivalent, to
the President. The excellent briefs filed by the parties and their
amici curiae have provided us with valuable historical
information that illuminates the delegation issue but does not
really bear on the narrow issue that is dispositive of these cases.
Thus, because we conclude that the Act's cancellation provisions
violate Article I, § 7, of the Constitution, we find it unnecessary
to consider the District Court's alternative holding that the Act
"impermissibly disrupts the balance of powers among the three
branches of government." 985 F. Supp., at 179.43
Third, our decision rests on the narrow ground that the
procedures authorized by the Line Item Veto Act are not authorized
by the Constitution. The Balanced Budget Act of 1997 is a 500-page
document that became "Public Law 105-33" after three procedural
steps were taken: (1) a bill containing its exact text was approved
by a majority of the Members of the House of Representatives; (2)
the Senate approved precisely the same text; and (3) that text was
signed into law by the President. The Constitution explicitly
requires that each of those three steps be taken before a bill may
"become a law." Art. I, § 7. If one paragraph of that text had been
omitted at anyone of those three stages, Public Law 105-33 would
not have been validly enacted. If the Line Item Veto Act were
valid, it would authorize the President to create a different
law-one whose text was not voted on by either House of Congress or
presented to the President for signature. Something that might be
known as "Public Law 105-33 as modified by the President" mayor
43 We also find it unnecessary to consider whether the
provisions of the Act relating to discretionary budget authority
are severable from the Act's tax benefit and direct spending
provisions. We note, however, that the Act contains no severability
clause; a severability provision that had appeared in the Senate
bill was dropped in conference without explanation. H. R. Conf.
Rep. No. 104-491, at 17,41.
449
may not be desirable, but it is surely not a document that may
"become a law" pursuant to the procedures designed by the Framers
of Article I, § 7, of the Constitution.
If there is to be a new procedure in which the President will
playa different role in determining the final text of what may
"become a law," such change must come not by legislation but
through the amendment procedures set forth in Article V of the
Constitution. Cf.
U. S.
Term Limits, Inc. v.
Thornton, 514
U. S. 779, 837 (1995).
The judgment of the District Court is affirmed.
It is so ordered.
JUSTICE KENNEDY, concurring.
A Nation cannot plunder its own treasury without putting its
Constitution and its survival in peril. The statute before us,
then, is of first importance, for it seems undeniable the Act will
tend to restrain persistent excessive spending. Nevertheless, for
the reasons given by JUSTICE STEVENS in the opinion for the Court,
the statute must be found invalid. Failure of political will does
not justify unconstitutional remedies.
I write to respond to my colleague JUSTICE BREYER, who observes
that the statute does not threaten the liberties of individual
citizens, a point on which I disagree. See
post, at 496-497.
The argument is related to his earlier suggestion that our role is
lessened here because the two political branches are adjusting
their own powers between themselves.
Post, at 472,482-483.
To say the political branches have a somewhat free hand to
reallocate their own authority would seem to require acceptance of
two premises: first, that the public good demands it, and second,
that liberty is not at risk. The former premise is inadmissible.
The Constitution's structure requires a stability which transcends
the convenience of the moment. See
Metropolitan Washington
Airports Authority v.
Citizens for Abatement of Aircraft
Noise, Inc., 501
U. S. 252, 276-277 (1991);
Bowsher v.
Synar,
450
478 U. S. 714,
736 (1986);
INS v.
Chadha, 462 U. S. 919, 944945,
958-959 (1983);
Northern Pipeline Constr. Co. v.
Marathon
Pipe Line Co., 458
U. S. 50, 73-74 (1982). The latter premise, too, is flawed.
Liberty is always at stake when one or more of the branches seek to
transgress the separation of powers.
Separation of powers was designed to implement a fundamental
insight: Concentration of power in the hands of a single branch is
a threat to liberty. The Federalist states the axiom in these
explicit terms: "The accumulation of all powers, legislative,
executive, and judiciary, in the same hands ... may justly be
pronounced the very definition of tyranny." The Federalist No. 47,
p. 301 (C. Rossiter ed. 1961). So convinced were the Framers that
liberty of the person inheres in structure that at first they did
not consider a Bill of Rights necessary. The Federalist No. 84, pp.
513, 515; G. Wood, The Creation of the American Republic 1776-1787,
pp. 536-543 (1969). It was at Madison's insistence that the First
Congress enacted the Bill of Rights. R. Goldwin, From Parchment to
Power 75-153 (1997). It would be a grave mistake, however, to think
a Bill of Rights in Madison's scheme then or in sound
constitutional theory now renders separation of powers of lesser
importance. See Amar, The Bill of Rights as a Constitution, 100
Yale L. J. 1131, 1132 (1991).
In recent years, perhaps, we have come to think of liberty as
defined by that word in the Fifth and Fourteenth Amendments and as
illuminated by the other provisions of the Bill of Rights. The
conception of liberty embraced by the Framers was not so confined.
They used the principles of separation of powers and federalism to
secure liberty in the fundamental political sense of the term,
quite in addition to the idea of freedom from intrusive
governmental acts. The idea and the promise were that when the
people delegate some degree of control to a remote central
authority, one branch of government ought not possess the power to
shape their destiny without a sufficient check from the other two.
In this vision, liberty demands limits on the ability of anyone
451
branch to influence basic political decisions. Quoting
Montesquieu, the Federalist Papers made the point in the following
manner:
"'When the legislative and executive powers are united in the
same person or body,' says he, 'there can be no liberty, because
apprehensions may arise lest the same monarch or senate
should enact tyrannical laws to execute them in a
tyrannical manner.' Again: 'Were the power of judging joined with
the legislative, the life and liberty of the subject would be
exposed to arbitrary control, for the judge would then be
the legislator. Were it joined to the executive power,
the judge might behave with all the violence of an
oppressor.'" The Federalist No. 47, supra, at 303.
It follows that if a citizen who is taxed has the measure of the
tax or the decision to spend determined by the Executive alone,
without adequate control by the citizen's Representatives in
Congress, liberty is threatened. Money is the instrument of policy
and policy affects the lives of citizens. The individual loses
liberty in a real sense if that instrument is not subject to
traditional constitutional constraints.
The principal object of the statute, it is true, was not to
enhance the President's power to reward one group and punish
another, to help one set of taxpayers and hurt another, to favor
one State and ignore another. Yet these are its undeniable effects.
The law establishes a new mechanism which gives the President the
sole ability to hurt a group that is a visible target, in order to
disfavor the group or to extract further concessions from Congress.
The law is the functional equivalent of a line item veto and
enhances the President's powers beyond what the Framers would have
endorsed.
It is no answer, of course, to say that Congress surrendered its
authority by its own hand; nor does it suffice to point out that a
new statute, signed by the President or
452
enacted over his veto, could restore to Congress the power it
now seeks to relinquish. That a congressional cession of power is
voluntary does not make it innocuous. The Constitution is a compact
enduring for more than our time, and one Congress cannot yield up
its own powers, much less those of other Congresses to follow. See
Freytag v.
Commissioner, 501 U. S. 868, 880
(1991); cf.
Chadha, supra, at 942, n. 13. Abdication of
responsibility is not part of the constitutional design.
Separation of powers helps to ensure the ability of each branch
to be vigorous in asserting its proper authority. In this respect
the device operates on a horizontal axis to secure a proper balance
of legislative, executive, and judicial authority. Separation of
powers operates on a vertical axis as well, between each branch and
the citizens in whose interest powers must be exercised. The
citizen has a vital interest in the regularity of the exercise of
governmental power. If this point was not clear before
Chadha, it should have been so afterwards. Though
Chadha involved the deportation of a person, while the case
before us involves the expenditure of money or the grant of a tax
exemption, this circumstance does not mean that the vertical
operation of the separation of powers is irrelevant here. By
increasing the power of the President beyond what the Framers
envisioned, the statute compromises the political liberty of our
citizens, liberty which the separation of powers seeks to
secure.
The Constitution is not bereft of controls over improvident
spending. Federalism is one safeguard, for political accountability
is easier to enforce within the States than nationwide. The other
principal mechanism, of course, is control of the political
branches by an informed and responsible electorate. Whether or not
federalism and control by the electorate are adequate for the
problem at hand, they are two of the structures the Framers
designed for the problem the statute strives to confront. The
Framers of the Consti-
453
tution could not command statesmanship. They could simply
provide structures from which it might emerge. The fact that these
mechanisms, plus the proper functioning of the separation of powers
itself, are not employed, or that they prove insufficient, cannot
validate an otherwise unconstitutional device. With these
observations, I join the opinion of the Court.
JUSTICE SCALIA, with whom JUSTICE O'CONNOR joins, and with whom
JUSTICE BREYER joins as to Part III, concurring in part and
dissenting in part.
Today the Court acknowledges the" 'overriding and timehonored
concern about keeping the Judiciary's power within its proper
constitutional sphere.'"
Ante, at 421, quoting
Raines
v.
Byrd, 521
U. S. 811, 820 (1997). It proceeds, however, to ignore the
prescribed statutory limits of our jurisdiction by permitting the
expedited-review provisions of the Line Item Veto Act to be invoked
by persons who are not "individual[s]," 2 U. S. C. § 692 (1994 ed.,
Supp. II); and to ignore the constitutional limits of our
jurisdiction by permitting one party to challenge the Government's
denial to an
other party of favorable tax treatment from
which the first party might, but just as likely might not, gain a
concrete benefit. In my view, the Snake River appellees lack
standing to challenge the President's cancellation of the "limited
tax benefit," and the constitutionality of that action should not
be addressed. I think the New York appellees have standing to
challenge the President's cancellation of an "item of new direct
spending"; I believe we have statutory authority (other than the
expedited-review provision) to address that challenge; but unlike
the Court I find the President's cancellation of spending items to
be entirely in accord with the Constitution.
I
The Court's unrestrained zeal to reach the merits of this case
is evident in its disregard of the statute's expedited-
454
Opinion of SCALIA, J.
review provision, which extends that special procedure to "[a]ny
Member of Congress or any individual adversely affected by [the
Act]." § 692. With the exception of Mike Cranney, a natural person,
the appellees-corporations, cooperatives, and governmental
entities-are not "individuals" under any accepted usage of that
term. Worse still, the first provision of the United States Code
confirms that insofar as this word is concerned, Congress speaks
English like the rest of us: "In determining the meaning of any Act
of Congress, unless the context indicates otherwise ... the wor[d]
'person' ... include[s] corporations, companies, associations,
firms, partnerships, societies, and joint stock companies,
as
well as individuals." 1 U. S. C. § 1 (emphasis added). And
doubly worse, one of the definitional provisions of this very Act
expressly distinguishes "individuals" from "persons." A tax law
does not create a "limited tax benefit," it says, so long as
"any difference in the treatment of persons is based
solely on-
"(I) in the case of businesses and associations, the size
or form of the business or association involved;
"(II) in the case of individuals, general demographic
conditions, such as income, marital status, number of dependents,
or tax return filing status .... " 2 U. S. C. § 691e(9)(B)(iii)
(1994 ed., Supp. II) (emphasis added).
The Court majestically sweeps the plain language of the statute
aside, declaring that "[t]here is no plausible reason why Congress
would have intended to provide for such special treatment of
actions filed by natural persons and to have precluded entirely
jurisdiction over comparable cases brought by corporate persons."
Ante, at 429. Indeed, the Court says, it would be "absurd"
for Congress to have done so.
Ibid. But Congress treats
individuals more favorably than corporations and other associations
all the time. There is nothing whatever extraordinary-and
surely nothing so
455
bizarre as to permit this Court to declare a "scrivener's
error"-in believing that individuals will suffer more seriously
from delay in the receipt of "vetoed" benefits or tax savings than
corporations will, and therefore according individuals (but not
corporations) expedited review. It may be unlikely that this is
what Congress actually had in mind; but it is what Congress said,
it is not so absurd as to be an obvious mistake, and it is
therefore the law.
The only individual who has sued, and thus the only appellee who
qualifies for expedited review under § 692, is Mike Cranney. Since
§ 692 does not confer jurisdiction over the claims of the other
appellees, we must dismiss them, unless we have jurisdiction under
another statute. In their complaints, appellees sought declaratory
relief not only under § 692(a), but also under the Declaratory
Judgment Act, 28 U. S. C. § 2201, invoking the District Court's
jurisdiction under 28 U. S. C. § 1331. After the District Court
ruled, the Government appealed directly to this Court, but it also
filed a notice of appeal to the Court of Appeals for the District
of Columbia Circuit. In light of the Government's representation
that it desires "[t]o eliminate any possibility that the district
court's decision might escape review," Reply Brief for Appellants
2, n. 1, I would deem its appeal to this Court a petition for writ
of certiorari before judgment, see 28 U. S. C. § 2101(e), and grant
it. Under this Court's Rule 11, "[a] petition for a writ of
certiorari to review a case pending in a United States court of
appeals, before judgment is entered in that court, will be granted
only upon a showing that the case is of such imperative public
importance as to justify deviation from normal appellate practice
and to require immediate determination in this Court." In light of
the public importance of the issues involved, and the little sense
it would make for the Government to pursue its appeal against one
appellee in this Court and against the others in the Court of
Appeals, the entire case, in my view, qualifies for certiorari
review before judgment.
456
Opinion of SCALIA, J.
II
Not only must we be satisfied that we have statutory
jurisdiction to hear this case; we must be satisfied that we have
jurisdiction under Article III. "To meet the standing requirements
of Article III, '[a] plaintiff must allege
personal injury
fairly traceable to the defendant's allegedly unlawful conduct and
likely to be redressed by the requested relief.'"
Raines,
521 U. S., at 818, quoting
Allen v.
Wright, 468 U. S. 737, 751
(1984).
In the first action before us, appellees Snake River Potato
Growers, Inc. (Snake River) and Mike Cranney, Snake River's
Director and Vice-Chairman, challenge the constitutionality of the
President's cancellation of § 968 of the Taxpayer Relief Act of
1997. The Snake River appellees have standing, in the Court's view,
because § 968 gave them "the equivalent of a statutory 'bargaining
chip,'" and "[b]y depriving them of their statutory bargaining
chip, the cancellation inflicted a sufficient likelihood of
economic injury to establish standing under our precedents."
Ante, at 432. It is unclear whether the Court means that
deprivation of a "bargaining chip" itself suffices for standing, or
that such deprivation suffices in the present case because it
creates a likelihood of economic injury. The former is wrong as a
matter of law, and the latter is wrong as a matter of fact, on the
facts alleged.
For the proposition that "a denial of a benefit in the
bargaining process" can suffice for standing the Court relies in a
footnote, see
ante, at 433, n. 22, on
Northeastern Fla.
Chapter, Associated Gen. Contractors of America v.
Jacksonville, 508 U. S. 656 (1993).
There, an association of contractors alleged that a city ordinance
according racial preferences in the award of city contracts denied
its members equal protection of the laws.
Id., at 658-659.
The association's members had regularly bid on and performed city
contracts, and would have bid on designated set-aside contracts but
for the ordinance.
Id., at 659. We held that the association
had
457
standing even without proof that its members would have been
awarded contracts absent the challenged discrimination. The reason,
we explained, is that "[t]he 'injury in fact' in an equal
protection case of this variety is the denial of equal treatment
resulting from the imposition of the barrier, not the ultimate
inability to obtain the benefit."
Id., at 666, citing two
earlier equal protection cases,
Turner v.
Fouche,
396 U. S. 346,
362 (1970), and
Richmond v. J.
A. Croson Co.,
488 U. S. 469,
493 (1989). In other words,
Northeastern Florida did not
hold, as the Court suggests, that harm to one's bargaining position
is an "injury in fact," but rather that, in an equal protection
case, the denial of equal treatment is. Inasmuch as Snake River
does not challenge the Line Item Veto Act on equal protection
grounds,
Northeastern Florida is inapposite. And I know of
no case outside the equal protection field in which the mere
detriment to one's "bargaining position," as opposed to a
demonstrated loss of some bargain, has been held to confer
standing. The proposition that standing is established by the mere
reduction in one's chances of receiving a financial benefit is
contradicted by
Simon v.
Eastern Ky. Welfare Rights
Organization, 426
U. S. 26 (1976), which held that low-income persons who had
been denied treatment at local hospitals lacked standing to
challenge an Internal Revenue Service (IRS) ruling that reduced the
amount of charitable care necessary for the hospitals to qualify
for tax-exempt status. The situation in that case was strikingly
similar to the one before us here:
The denial of a tax benefit to a third party was alleged to
reduce the chances of a financial benefit to the plaintiffs. And
standing was denied.
But even if harm to one's bargaining position
were a
legally cognizable injury, Snake River has not alleged, as it must,
facts sufficient to demonstrate that
it personally has
suffered that injury. See
Warth v.
Seldin, 422 U. S. 490, 502
(1975). In
Eastern Ky. Welfare Rights, supra, the plaintiffs
at least had
applied for the financial benefit which had
alleg-
458
Opinion of SCALIA, J.
edly been rendered less likely of receipt; the present suit, by
contrast, resembles a complaint asserting that the plaintiff's
chances of winning the lottery were reduced, filed by a plaintiff
who never bought a lottery ticket, or who tore it up before the
winner was announced. Snake River has presented no evidence to show
that it was engaged in bargaining, and that that bargaining was
impaired by the President's cancellation of § 968. The Court says
that Snake River "was engaged in ongoing negotiations with the
owner of a processing plant who had expressed an interest in
structuring a taxdeferred sale when the President canceled § 968,"
ante, at 432. There is, however, no evidence of
"negotiations," only of two "discussions." According to the
affidavit of Mike Cranney:
"On or about May 1997, I spoke with Howard Phillips, the
principal owner of Idaho Potato Packers, concerning the possibility
that, if the Cooperative Tax Act were passed, Snake River Potato
Growers might purchase a Blackfoot, Idaho processing facility in a
transaction that would allow the deferral of gain. Mr. Phillips
expressed an interest in such a transaction if the Cooperative Tax
Act were to pass. Mr. Phillips also acknowledged to me that Jim
Chapman, our General Manager, had engaged him in a previous
discussion concerning this matter." App. 112.
This affidavit would have set forth something of significance if
it had said that Phillips had expressed an interest in the
transaction "if
and only if the Cooperative Tax Act were to
pass." But of course it is most unlikely he said that; Idaho Potato
Packers (IPP) could get just as much from the sale without the Act
as with the Act, so long as the price was right. The affidavit
would also have set forth something of significance if it had said
that Phillips had expressed an interest in the sale "at a
particular price if the Cooperative Tax Act were to pass." But it
does not say that either.
459
Nor does it even say that the President's action caused IPP to
reconsider. Moreover, it was Snake River, not IPP, that terminated
the discussions. According to Cranney, "[t]he President's
cancellation of the Cooperative Tax Act caused me to terminate
discussions with Phillips about the possibility of Snake River
Potato Growers buying the Idaho Potato Packers facility."
Id., at 114. So all we know from the record is that Snake
River had two discussions with IPP concerning the sale of its
processing facility on the tax deferred basis the Act would allow;
that IPP was interested; and that Snake River ended the discussions
after the President's action. We do not know that Snake River was
prepared to offer a price-tax deferral or no-that would cross IPP's
laugh threshold. We do not even know for certain that the tax
deferral was a significant attraction to IPP; we know only that
Cranney thought it was. On these facts-which never even bring
things to the
point of bargaining-it is pure conjecture to
say that Snake River suffered an impaired bargaining position. As
we have said many times, conjectural or hypothetical injuries do
not suffice for Article III standing. See
Lujan v.
Defenders of Wildlife, 504 U. S. 555, 560
(1992).
Nor has Snake River demonstrated, as the Court finds, that "the
cancellation inflicted a sufficient likelihood of economic injury
to establish standing under our precedents."
Ante, at 432.
Presumably the economic injury the Court has in mind is Snake
River's loss of a bargain purchase of a processing plant. But there
is no evidence, and indeed not even an allegation, that before the
President's action such a purchase was
likely. The most that
Snake River alleges is that the President's action rendered it
"more difficult for plaintiffs to purchase qualified processors,"
App. 12. And even if that abstract "increased difficulty" sufficed
for injury in fact (which it does not), the existence of
even
that is pure speculation. For all that appears,
no owner
of a processing plant would have been willing to sell to Snake
460
Opinion of SCALIA, J.
River at
any price that Snake River could afford-and the
impossible cannot be made "more difficult." All we know is that a
potential seller was "interested" in talking about the subject
before the President's action, and that after the President's
action Snake River itself decided to proceed no further. If this
establishes a "likelihood" that Snake River would have made a
bargain purchase but for the President's action, or even a
"likelihood" that the President's action rendered "more difficult"
a purchase that was realistically within Snake River's grasp, then
we must adopt for our standing jurisprudence a new definition of
likely: "plausible."
Twice before have we addressed whether plaintiffs had standing
to challenge the Government's tax treatment of a third party, and
twice before have we held that the speculative nature of a third
party's response to changes in federal tax laws defeats standing.
In
Simon v.
Eastern Ky. Welfare Rights,
426 U. S. 26 (1976), we
found it "purely speculative whether the denials of service ...
fairly can be traced to [the IRS's] 'encouragement' or instead
result from decisions made by the hospitals without regard to the
tax implications."
Id., at 42-43. We found it "equally
speculative whether the desired exercise of the court's remedial
powers in this suit would result in the availability to respondents
of such services."
Id., at 43. In
Allen v.
Wright, 468 U.
S. 737 (1984), we held that parents of black children attending
public schools lacked standing to challenge IRS policies concerning
tax exemptions for private schools. The parents alleged,
inter
alia, that "federal tax exemptions to racially discriminatory
private schools in their communities impair their ability to have
their public schools desegregated."
Id., at 752753. We
concluded that "the injury alleged is not fairly traceable to the
Government conduct ... challenge[d] as unlawful," id., at 757, and
that "it is entirely speculative ... whether withdrawal of a tax
exemption from any particular school would lead the school to
change its policies," id., at 758. Likewise, here, it is purely
speculative whether a tax
461
deferral would have prompted any sale, let alone one that
reflected the tax benefit in the sale price.
The closest case the Court can appeal to as precedent for its
finding of standing is
Bryant v.
Yellen, 447 U. S. 352 (1980).
Even on its own terms,
Bryant is distinguishable. As that
case came to us, it involved a dispute between a class of some 800
landowners in the Imperial Valley, each of whom owned more than 160
acres, and a group of Imperial Valley residents who wished to
purchase lands owned by that class. The point at issue was the
application to those lands of a statutory provision that forbade
delivery of water from a federal reclamation project to irrigable
land held by a single owner in excess of 160 acres, and that
limited the sale price of any lands so held in excess of 160 acres
to a maximum amount, fixed by the Secretary of the Interior, based
on fair market value in 1929, before the valley was irrigated by
water from the Boulder Canyon Project.
Id., at 366-367. That
price would of course be "far below [the lands'] current market
values."
Id., at 367, n. 17. The Court concluded that the
would-be purchasers "had a sufficient stake in the outcome of the
controversy to afford them standing."
Id., at 368. It is
true, as the Court today emphasizes, that the purchasers had not
presented "detailed information about [their] financial resources,"
but the Court thought that unnecessary only because "purchasers of
such land would stand to reap significant gains on resale."
Id., at 367, n. 17. Financing, in other words, would be easy
to come by. Here, by contrast, not only do we have no notion
whether Snake River has the cash in hand to afford IPP's
bottom-line price, but we also have no reason to believe that
financing of the purchase will be readily available. Potato
processing plants, unlike agricultural land in the Imperial Valley,
do not have a readily available resale market. On the other side of
the equation, it was also much clearer in
Bryant that if the
suit came out in the would-be purchasers' favor, many of the
landowners would be willing to sell. The alternative would be
462
Opinion of SCALIA, J.
withdrawing the land from agricultural production, whereas
sale-even at bargain-basement prices for the land-would at least
enable recoupment of the cost of improvements, such as drainage
systems.
Ibid. In the present case, by contrast, we have no
reason to believe that IPP is not operating its processing plant at
a profit, and will not continue to do so in the future; Snake River
has proffered no evidence that IPP or any other processor
would
surely have sold if only the President had not canceled the tax
deferral. The only uncertainty in
Bryant was whether any of
the respondents would wind up as buyers of any of the excess land;
that seemed probable enough, since "respondents are residents of
the Imperial Valley who desire to purchase the excess land for
purposes of farming."
Ibid. We have no basis to say that it
is "likely" that Snake River would have purchased a processing
facility if § 968 had not been canceled.
More fundamentally, however, the reasoning of
Bryant
should not govern the present case because it represents a crabbed
view of the standing doctrine that has been superseded.
Bryant was decided at the tail-end of "an era in which it
was thought that the only function of the constitutional
requirement of standing was 'to assure that concrete adverseness
which sharpens the presentation of issues,'"
Spencer v.
Kemna, 523 U. S.
1, 11 (1998), quoting
Baker v.
Carr, 369 U. S. 186, 204
(1962). Thus, the
Bryant Court ultimately afforded the
respondents standing simply because they "had a sufficient stake in
the outcome of the controversy," 447 U. S., at 368, not because
they had demonstrated injury in fact, causation, and
redressability. "That parsimonious view of the function of Article
III standing has since yielded to the acknowledgment that the
constitutional requirement is a 'means of "defin[ing] the role
assigned to the judiciary in a tripartite allocation of power," ,
and 'a part of the basic charter ... provid[ing] for the
interaction between [the federal] government and the governments of
the several States,'"
Spencer, supra, at 11-12, quoting
Valley Forge
463
Christian College v.
Americans United for Separation
of Church and State, Inc., 454 U. S. 464, 474, 476
(1982). While Snake River in the present case may indeed have
enough of a "stake" to assure adverseness, the matter it brings
before us is inappropriate for our resolution because its
allegations do not establish an injury in fact, attributable to the
Presidential action it challenges, and remediable by this Court's
invalidation of that Presidential action.
Because, in my view, Snake River has no standing to bring this
suit, we have no jurisdiction to resolve its challenge to the
President's authority to cancel a "limited tax benefit."
III
I agree with the Court that the New York appellees have standing
to challenge the President's cancellation of § 4722(c) of the
Balanced Budget Act of 1997 as an "item of new direct spending."
See
ante, at 430-431. The tax liability they will incur
under New York law is a concrete and particularized injury, fairly
traceable to the President's action, and avoided if that action is
undone. Unlike the Court, however, I do not believe that Executive
cancellation of this item of direct spending violates the
Presentment Clause.
The Presentment Clause requires, in relevant part, that "[e]very
Bill which shall have passed the House of Representatives and the
Senate, shall, before it become a Law, be presented to the
President of the United States; If he approve he shall sign it, but
if not he shall return it." U. S. Const., Art. I, § 7, cl. 2. There
is no question that enactment of the Balanced Budget Act complied
with these requirements: the House and Senate passed the bill, and
the President signed it into law. It was only
after the
requirements of the Presentment Clause had been satisfied that the
President exercised his authority under the Line Item Veto Act to
cancel the spending item. Thus, the Court's problem with the Act is
not that it authorizes the President to veto parts of a bill and
sign others into law, but rather that it authorizes
464
Opinion of SCALIA, J.
him to "cancel"-prevent from "having legal force or
effect"-certain parts of duly enacted statutes.
Article I, § 7, of the Constitution obviously prevents the
President from canceling a law that Congress has not authorized him
to cancel. Such action cannot possibly be considered part of his
execution of the law, and if it is legislative action, as the Court
observes, "'repeal of statutes, no less than enactment, must
conform with Art. 1.'"
Ante, at 438, quoting from
INS
v.
Chadha, 462
U. S. 919, 954 (1983). But that is not this case. It was
certainly arguable, as an original matter, that Art. I, § 7, also
prevents the President from canceling a law which itself
authorizes the President to cancel it. But as the Court
acknowledges, that argument has long since been made and rejected.
In 1809, Congress passed a law authorizing the President to cancel
trade restrictions against Great Britain and France if either
revoked edicts directed at the United States. Act of Mar. 1, 1809,
§ 11, 2 Stat. 528. Joseph Story regarded the conferral of that
authority as entirely unremarkable in
The Orono, 18 F. Cas.
830 (No. 10,585) (CCD Mass. 1812). The Tariff Act of 1890
authorized the President to "suspend, by proclamation to that
effect" certain of its provisions if he determined that other
countries were imposing "reciprocally unequal and unreasonable"
duties. Act of Oct. 1, 1890, § 3, 26 Stat. 612. This Court upheld
the constitutionality of that Act in
Field v.
Clark,
143 U. S. 649
(1892), reciting the history since 1798 of statutes conferring upon
the President the power to,
inter alia, "discontinue the
prohibitions and restraints hereby enacted and declared," id., at
684, "suspend the operation of the aforesaid act," id., at 685, and
"declare the provisions of this act to be inoperative," id., at
688.
As much as the Court goes on about Art. I, § 7, therefore, that
provision does not demand the result the Court reaches. It no more
categorically prohibits the Executive
reduction of
congressional dispositions in the course of implementing statutes
that authorize such reduction, than it categorically
465
prohibits the Executive
augmentation of congressional
dispositions in the course of implementing statutes that authorize
such augmentation-generally known as substantive rulemaking. There
are, to be sure, limits upon the former just as there are limits
upon the latter-and I am prepared to acknowledge that the limits
upon the former may be much more severe. Those limits are
established, however, not by some categorical prohibition of Art.
I, § 7, which our cases conclusively disprove, but by what has come
to be known as the doctrine of unconstitutional delegation of
legislative authority: When authorized Executive reduction or
augmentation is allowed to go too far, it usurps the nondelegable
function of Congress and violates the separation of powers.
It is this doctrine, and not the Presentment Clause, that was
discussed in the
Field opinion, and it is this doctrine, and
not the Presentment Clause, that is the issue presented by the
statute before us here. That is why the Court is correct to
distinguish prior authorizations of Executive cancellation, such as
the one involved in
Field, on the ground that they were
contingent upon an Executive finding of fact, and on the ground
that they related to the field of foreign affairs, an area where
the President has a special "'degree of discretion and freedom,'"
ante, at 445 (citation omitted). These distinctions have
nothing to do with whether the details of Art. I, § 7, have been
complied with, but everything to do with whether the authorizations
went too far by transferring to the Executive a degree of
political, lawmaking power that our traditions demand be retained
by the Legislative Branch.
I turn, then, to the crux of the matter: whether Congress's
authorizing the President to cancel an item of spending gives him a
power that our history and traditions show must reside exclusively
in the Legislative Branch. I may note, to begin with, that the Line
Item Veto Act is not the first statute to authorize the President
to "cancel" spending items. In
Bowsher v.
Synar,
478 U. S. 714
(1986), we addressed the
466
Opinion of SCALIA, J.
constitutionality of the Balanced Budget and Emergency Deficit
Control Act of 1985, 2 U. S. C. § 901
et seq. (1982 ed.,
Supp. II!), which required the President, if the federal budget
deficit exceeded a certain amount, to issue a "sequestration" order
mandating spending reductions specified by the Comptroller General,
§ 902. The effect of sequestration was that "amounts sequestered
... shall be
permanently cancelled." § 902(a)(4) (emphasis
added). We held that the Act was unconstitutional, not because it
impermissibly gave the Executive legislative power, but because it
gave the Comptroller General, an officer of the Legislative Branch
over whom Congress retained removal power, "the ultimate authority
to determine the budget cuts to be made," 478 U. S., at 733,
"functions ...
plainly entailing execution of the law in
constitutional terms," id., at 732-733 (emphasis added). The
President's discretion under the Line Item Veto Act is certainly
broader than the Comptroller General's discretion was under the
1985 Act, but it is no broader than the discretion traditionally
granted the President in his execution of spending laws.
Insofar as the degree of political, "lawmaking" power conferred
upon the Executive is concerned, there is not a dime's worth of
difference between Congress's authorizing the President to
cancel a spending item, and Congress's authorizing money to
be spent on a particular item at the President's discretion. And
the latter has been done since the founding of the Nation. From
1789-1791, the First Congress made lump-sum appropriations for the
entire Government-"sum[s] not exceeding" specified amounts for
broad purposes. Act of Sept. 29, 1789, ch. 23, 1 Stat. 95; Act of
Mar. 26, 1790, ch. 4, § 1, 1 Stat. 104; Act of Feb. 11, 1791, ch.
6, 1 Stat. 190. From a very early date Congress also made
permissive individual appropriations, leaving the decision whether
to spend the money to the President's unfettered discretion. In
1803, it appropriated $50,000 for the President to build "not
exceeding fifteen gun boats, to be armed,
467
manned and fitted out, and employed for such purposes as in his
opinion the public service may require," Act of Feb. 28, 1803, ch.
11, § 3, 2 Stat. 206. President Jefferson reported that "[t]he sum
of fifty thousand dollars appropriated by Congress for providing
gun boats remains unexpended. The favorable and peaceable turn of
affairs on the Mississippi rendered an immediate execution of that
law unnecessary," 13 Annals of Congo 14 (1803). Examples of
appropriations committed to the discretion of the President abound
in our history. During the Civil War, an Act appropriated over $76
million to be divided among various items "as the exigencies of the
service may require," Act of Feb. 25, 1862, ch. 32, 12 Stat.
344-345. During the Great Depression, Congress appropriated $950
million "for such projects and/or purposes and under such rules and
regulations as the President in his discretion may prescribe," Act
of Feb. 15, 1934, ch. 13, 48 Stat. 351, and $4 billion for general
classes of projects, the money to be spent "in the discretion and
under the direction of the President," Emergency Relief
Appropriation Act of 1935, 49 Stat. 115. The constitutionality of
such appropriations has never seriously been questioned. Rather,
"[t]hat Congress has wide discretion in the matter of prescribing
details of expenditures for which it appropriates must, of course,
be plain. Appropriations and other acts of Congress are replete
with instances of general appropriations of large amounts, to be
allotted and expended as directed by designated government
agencies."
Cincinnati Soap Co. v.
United States,
301 U. S. 308,
321-322 (1937).
Certain Presidents have claimed Executive authority to withhold
appropriated funds even
absent an express conferral of
discretion to do so. In 1876, for example, President Grant reported
to Congress that he would not spend money appropriated for certain
harbor and river improvements, see Act of Aug. 14, 1876, ch. 267,
19 Stat. 132, because "[u]nder no circumstances [would he] allow
expenditures upon works not clearly national," and in his view, the
appropriations
468
Opinion of SCALIA, J.
were for "works of purely private or local interest, in no sense
national," 4 Congo Rec. 5628. President Franklin D. Roosevelt
impounded funds appropriated for a flood control reservoir and
levee in Oklahoma. See Act of Aug. 18, 1941, ch. 377, 55 Stat. 638,
645; Hearings on S. 373 before the Ad Hoc Subcommittee on
Impoundment of Funds of the Committee on Government Operations and
the Subcommittee on Separation of Powers of the Senate Committee on
the Judiciary, 93d Cong., 1st Sess., 848-849 (1973). President
Truman ordered the impoundment of hundreds of millions of dollars
that had been appropriated for military aircraft. See Act of Oct.
29, 1949, ch. 787, 63 Stat. 987, 1013; Public Papers of the
Presidents of the United States, Harry S. Truman, 1949, pp. 538-539
(w. Reid ed. 1964). President Nixon, the Mahatma Gandhi of all
impounders, asserted at a press conference in 1973 that his
"constitutional right" to impound appropriated funds was
"absolutely clear." The President's News Conference of Jan. 31,
1973, 9 Weekly Compo of Pres. Doc. 109-110 (1973). Our decision two
years later in
Train v.
City of New York, 420 U. S. 35 (1975),
proved him wrong, but it implicitly confirmed that Congress may
confer discretion upon the Executive to withhold appropriated
funds, even funds appropriated for a specific purpose. The statute
at issue in
Train authorized spending "not to exceed"
specified sums for certain projects, and directed that such "[s]ums
authorized to be appropriated ... shall be allotted" by the
Administrator of the Environmental Protection Agency, 33 U. S. C.
§§ 1285, 1287 (1970 ed., Supp. III). Upon enactment of this
statute, the President directed the Administrator to allot no more
than a certain part of the amount authorized. 420 U. S., at 40.
This Court held, as a matter of statutory interpretation, that the
statute
did not grant the Executive discretion to withhold
the funds, but required allotment of the full amount authorized.
Id., at 44-47.
The short of the matter is this: Had the Line Item Veto Act
authorized the President to "decline to spend" any item
469
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.
IV
I would hold that the President's cancellation of § 4722(c) of
the Balanced Budget Act of 1997 as an item of direct spending does
not violate the Constitution. Because I find no party before us who
has standing to challenge the President's cancellation of § 968 of
the Taxpayer Relief Act of 1997, I do not reach the question
whether that violates the Constitution.
For the foregoing reasons, I respectfully dissent.
JUSTICE BREYER, with whom JUSTICE O'CONNOR and JUSTICE SCALIA
join as to Part III, dissenting.
I
I agree with the Court that the parties have standing, but I do
not agree with its ultimate conclusion. In my view the Line Item
Veto Act (Act) does not violate any specific textual constitutional
command, nor does it violate any implicit
470
separation-of-powers principle. Consequently, I believe that the
Act is constitutional.
II
I approach the constitutional question before us with three
general considerations in mind.
First, the Act represents a
legislative effort to provide the President with the power to give
effect to some, but not to all, of the expenditure and
revenue-diminishing provisions contained in a single massive
appropriations bill. And this objective is constitutionally
proper.
When our Nation was founded, Congress could easily have provided
the President with this kind of power. In that time period, our
population was less than 4 million, see U. S. Dept. of Commerce,
Census Bureau, Historical Statistics of the United States: Colonial
Times to 1970, pt. 1, p. 8 (1975), federal employees numbered fewer
than 5,000, see id., pt. 2, at 1103, annual federal budget outlays
totaled approximately $4 million, see id., pt. 2, at 1104, and the
entire operative text of Congress' first general appropriations law
read as follows:
"Be it enacted ... [t]hat there be appropriated for the service
of the present year, to be paid out of the monies which arise,
either from the requisitions heretofore made upon the several
states, or from the duties on import and tonnage, the following
sums, viz. A sum not exceeding two hundred and sixteen thousand
dollars for defraying the expenses of the civil list, under the
late and present government; a sum not exceeding one hundred and
thirty-seven thousand dollars for defraying the expenses of the
department of war; a sum not exceeding one hundred and ninety
thousand dollars for discharging the warrants issued by the late
board of treasury, and remaining unsatisfied; and a sum not
exceeding ninetysix thousand dollars for paying the pensions to
invalids." Act of Sept. 29, 1789, ch. 23, § 1, 1 Stat. 95.
471
At that time, a Congress, wishing to give a President the power
to select among appropriations, could simply have embodied each
appropriation in a separate bill, each bill subject to a separate
Presidential veto.
Today, however, our population is about 250 million, see U. S.
Dept. of Commerce, Census Bureau, 1990 Census, the Federal
Government employs more than 4 million people, see Office of
Management and Budget, Budget of the United States Government,
Fiscal Year 1998: Analytical Perspectives 207 (1997) (hereinafter
Analytical Perspectives), the annual federal budget is $1.5
trillion, see Office of Management and Budget, Budget of the United
States Government, Fiscal Year 1998: Budget 303 (1997) (hereinafter
Budget), and a typical budget appropriations bill may have a dozen
titles, hundreds of sections, and spread across more than 500 pages
of the Statutes at Large. See,
e. g., Balanced Budget Act of
1997, Pub. L. 105-33, 111 Stat. 251. Congress cannot divide such a
bill into thousands, or tens of thousands, of separate
appropriations bills, each one of which the President would have to
sign, or to veto, separately. Thus, the question is whether the
Constitution permits Congress to choose a particular novel
means to achieve this same, constitutionally legitimate,
end.
Second, the case in part requires us to focus upon the
Constitution's generally phrased structural provisions, provisions
that delegate all "legislative" power to Congress and vest all
"executive" power in the President. See Part IV;
infra. The
Court, when applying these provisions, has interpreted them
generously in terms of the institutional arrangements that they
permit. See,
e. g.,
Mistretta v.
United
States, 488 U. S.
361, 412 (1989) (upholding delegation of authority to
Sentencing Commission to promulgate Sentencing Guidelines);
Crowell v.
Benson, 285 U. S. 22, 53-54 (1932)
(permitting non-Article III commission to adjudicate factual
472
disputes arising under federal dock workers' compensation
statute). See generally,
e. g., OPP Cotton Mills, Inc. v.
Administrator of Wage and Hour Div., Dept. of Labor,
312 U. S. 126,145
(1941) ("In an increasingly complex society Congress obviously
could not perform its functions" without delegating details of
regulatory scheme to executive agency);
Youngstown Sheet
&
Tube Co. v.
Sawyer, 343 U. S. 579, 635 (1952)
(Jackson, J., concurring) (Constitution permits "interdependence"
and flexible relations between branches in order to secure
"workable government"); J.
W Hampton, Jr., &
Co.
v.
United States, 276 U. S. 394, 406 (1928)
(Taft, C. J.) ("[T]he extent and character of ... assistance
[between the different branches] must be fixed according to common
sense and the inherent necessities of the governmental
coordination");
Crowell v.
Benson, supra, at 53
("[R]egard must be had" in cases "where constitutional limits are
invoked, not to mere matters of form but to the substance of what
is required").
Indeed, Chief Justice Marshall, in a well-known passage,
explained,
"To have prescribed the means by which government should, in all
future time, execute its powers, would have been to change,
entirely, the character of the instrument, and give it the
properties of a legal code. It would have been an unwise attempt to
provide, by immutable rules, for exigencies which, if foreseen at
all, must have been seen dimly, and which can be best provided for
as they occur." McCulloch v. Maryland, 4 Wheat. 316,
415 (1819).
This passage, like the cases I have just mentioned, calls
attention to the genius of the Framers' pragmatic vision, which
this Court has long recognized in cases that find constitutional
room for necessary institutional innovation.
Third, we need not here referee a dispute among the other
two branches. And, as the majority points out:
473
" 'When this Court is asked to invalidate a statutory provision
that has been approved by both Houses of the Congress and signed by
the President, particularly an Act of Congress that confronts a
deeply vexing national problem, it should only do so for the most
compelling constitutional reasons.'" Ante, at 447, n. 42
(quoting Bowsher v. Synar, 478 U. S. 714, 736 (1986)
(STEVENS, J., concurring in judgment)).
Cf.
Youngstown Sheet and Tube Co., supra, at 635
(Jackson, J., concurring) ("Presidential powers are not fixed but
fluctuate, depending on their disjunction or conjunction with those
of Congress ... [and when] the President acts pursuant to an
express or implied authorization of Congress, his authority is at
its maximum").
These three background circumstances mean that, when one
measures the
literal words of the Act against the
Constitution's
literal commands, the fact that the Act may
closely resemble a different, literally unconstitutional,
arrangement is beside the point. To drive exactly 65 miles per hour
on an interstate highway closely resembles an act that violates the
speed limit. But it does not violate that limit, for small
differences matter when the question is one of literal violation of
law. No more does this Act literally violate the Constitution's
words. See Part III,
infra.
The background circumstances also mean that we are to interpret
nonliteral separation-of-powers principles in light of the need for
"workable government."
Youngstown Sheet and Tube Co., supra,
at 635 (Jackson, J., concurring). If we apply those principles in
light of that objective, as this Court has applied them in the
past, the Act is constitutional. See Part IV,
infra.
III
The Court believes that the Act violates the literal text of the
Constitution. A simple syllogism captures its basic reasoning:
474
Major Premise: The Constitution sets forth an exclusive method
for enacting, repealing, or amending laws. See ante, at
438-440.
Minor Premise: The Act authorizes the President to "repea[l] or
amen[d]" laws in a different way, namely by announcing a
cancellation of a portion of a previously enacted law. See
ante, at 436-438.
Conclusion: The Act is inconsistent with the Constitution. See
ante, at 448-449.
I find this syllogism unconvincing, however, because its Minor
Premise is faulty. When the President "canceled" the two
appropriation measures now before us, he did not
repeal any
law nor did he
amend any law. He simply
followed the
law, leaving the statutes, as they are literally written,
intact.
To understand why one cannot say,
literally speaking,
that the President has repealed or amended any law, imagine how the
provisions of law before us might have been, but were not, written.
Imagine that the canceled New York health care tax provision at
issue here, Pub. L. 105-33, § 4722(c), 111 Stat. 515 (quoted in
full
ante, at 422-423, n. 2), had instead said the
following:
"Section One. Taxes ... that were collected by the State of New
York from a health care provider before June 1, 1997, and for which
a waiver of the provisions [requiring payment] have been sought ...
are deemed to be permissible health care related taxes ...
provided however that the President may prevent the
justmentioned provision from having legal force or effect if he
determines x, y, and z" (Assume x, y, and z to be the same
determinations required by the Line Item Veto Act).
Whatever a person might say, or think, about the
constitutionality of this imaginary law, there is one thing the
English language would prevent one from saying. One could not say
that a President who "prevent[s]" the deeming language
475
from "having legal force or effect," see 2 U. S. C. § 691e(4)(B)
(1994 ed., Supp. II), has either
repealed or
amended
this particular hypothetical statute. Rather, the President has
followed that law to the letter. He has exercised the power
it explicitly delegates to him. He has executed the law, not
repealed it.
It could make no significant difference to this linguistic point
were the italicized proviso to appear, not as part of what I have
called Section One, but, instead, at the bottom of the statute
page, say, referenced by an asterisk, with a statement that it
applies to every spending provision in the Act next to which a
similar asterisk appears. And that being so, it could make no
difference if that proviso appeared, instead, in a different,
earlier enacted law, along with legal language that makes it
applicable to every future spending provision picked out according
to a specified formula. See,
e. g., Balanced Budget and
Emergency Deficit Control Act of 1985 (Gramm-Rudman-Hollings Act),
Pub. L. 99-177, 99 Stat. 1063, 2 U. S. C. § 901
et seq.
(enforcing strict spending and deficit-neutrality limits on future
appropriations statutes); see also 1 U. S. C. § 1 (in
"any
Act of Congress" singular words include plural, and vice versa)
(emphasis added).
But, of course, this last mentioned possibility is this very
case. The earlier law, namely, the Line Item Veto Act, says that
"the President may ... prevent such [future] budget authority from
having legal force or effect." 2 U. S. C. §§ 691(a), 691e(4)(B)
(1994 ed., Supp. II). Its definitional sections make clear that it
applies to the 1997 New York health care provision, see § 691e(8),
just as they give a special legal meaning to the word "cancel," §
691e(4). For that reason, one cannot dispose of this case through a
purely literal analysis as the majority does. Literally speaking,
the President has not "repealed" or "amended" anything. He has
simply
executed a power conferred upon him by Congress,
which power is contained in laws that were enacted in compliance
with the exclusive method set forth in the Constitution. See
Field v.
Clark, 143 U. S. 649, 693 (1892)
(President's
476
power to raise tariff rates "was a part of the law itself, as it
left the hands of Congress" (emphasis added)).
Nor can one dismiss this literal compliance as some kind of
formal quibble, as if it were somehow "obvious" that what the
President has done "amounts to," "comes close to," or is "analogous
to" the repeal or amendment of a previously enacted law. That is
because the power the Act grants the President (to render
designated appropriations items without "legal force or effect")
also "amounts to," "comes close to," or is "analogous to" a
different legal animal, the delegation of a power to choose one
legal path as opposed to another, such as a power to appoint.
To take a simple example, a legal document, say, a will or a
trust instrument, might grant a beneficiary the power (a) to
appoint property "to Jones for his life, remainder to Smith for 10
years so long as Smith ... etc., and then to Brown," or (b) to
appoint the same property "to Black and the heirs of his body," or
(c) not to exercise the power of appointment at all. See,
e.
g., 5 W. Bowe & D. Parker, Page on Law of Wills § 45.8 (rev. 3d
ed. 1962) (describing power of appointment). To choose the second
or third of these alternatives prevents from taking effect the
legal consequences that flow from the first alternative, which the
legal instrument describes in detail. Any such choice, made in the
exercise of a delegated power, renders that first alternative
language without "legal force or effect." But such a choice does
not "repeal" or "amend" either that language or the document
itself. The will or trust instrument, in delegating the power of
appointment, has not delegated a power to amend or to repeal the
instrument; to the contrary, it requires the delegated power to be
exercised in accordance with the instrument's terms.
Id., §
45.9, pp. 516-518.
The trust example is useful not merely because of its
simplicity, but also because it illustrates the logic that must
apply when a power to execute is conferred, not by a private trust
document, but by a federal statute. This is not the
477
first time that Congress has delegated to the President or to
others this kind of power-a contingent power to deny effect to
certain statutory language. See,
e. g., Pub. L. 95-384, §
13(a), 92 Stat. 737 ("Section 620(x) of the Foreign Assistance Act
of 1961
shall be of no further force and effect upon the
President's determination and certification to the Congress that
the resumption of full military cooperation with Turkey is in the
national interest of the United States and [other criteria]")
(emphasis added); 28 U. S. C. § 2072 (Supreme Court is authorized
to promulgate rules of practice and procedure in federal courts,
and "[a]ll laws in conflict with such rules
shall be of no
further force and effect") (emphasis added); 41 U. S. C. § 405b
(subsection (a) requires the Office of Federal Procurement Policy
to issue "[g]overnment-wide regulations" setting forth a variety of
conflict of interest standards, but subsection (e) says that "if
the President determine[s]" that the regulations "would have a
significantly adverse effect on the accomplishment of the mission"
of Government agencies, "the requirement [to promulgate] the
regulations ...
shall be null and void") (emphasis added);
Gramm-Rudman-Hollings Act, §252(a)(4), 99 Stat. 1074 (authorizing
the President to issue a "final order" that has the effect of
"permanently cancell[ingJ" sequestered amounts in spending
statutes in order to achieve budget compliance) (emphasis added);
Pub. L. 104-208, 110 Stat. 3009-695 ("Public Law 89-732 [dealing
with immigration from Cuba]
is repealed ... upon a
determination by the President ... that a democratically elected
government in Cuba is in power") (emphasis added); Pub. L. 99-498,
§ 701, 100 Stat. 1532 (amending § 758 of the Higher Education Act
of 1965) (Secretary of Education "may" sell common stock in an
educational loan corporation; if the Secretary decides to sell
stock, and "if the Student Loan Marketing Association acquires from
the Secretary" over 50 percent of the voting stock, "section 754
[governing composition of the Board of Directors]
shall be of no
further force or effect") (emphasis
478
added); Pub. L. 104-134, §2901(c), 110 Stat. 1321-160 (President
is "authorized to suspend the provisions of the [preceding]
proviso" which suspension may last for
entire effective
period of proviso, if he determines suspension is "appropriate
based upon the public interest in sound environmental management
... [or] the protection of national or locallyaffected interests,
or protection of any cultural, biological or historic
resources").
All of these examples, like the Act, delegate a power to take
action that will render statutory provisions "without force or
effect." Every one of these examples, like the present Act,
delegates the power to choose between alternatives, each of which
the statute spells out in some detail. None of these examples
delegates a power to "repeal" or "amend" a statute, or to "make" a
new law. Nor does the Act. Rather, the delegated power to nullify
statutory language was
itself created and defined by
Congress, and included in the statute books on an equal footing
with (indeed, as a component part of) the sections that are
potentially subject to nullification. As a Pennsylvania court put
the matter more than a century ago: "The legislature cannot
delegate its power to make a law; but it can make a law to delegate
a power."
Locke's Appeal, 72 Pa. 491, 498 (1873).
In fact, a power to appoint property offers a closer analogy to
the power delegated here than one might at first suspect. That is
because the Act contains a "lockbox" feature, which gives legal
significance to the enactment of a particular appropriations item
even if, and even after, the President has rendered it without
"force or effect." See 2 U. S. C. § 691c (1994 ed., Supp. II); see
also
ante, at 440-441, n. 31 (describing "lockbox"); but cf.
Letter from Counsel for Snake River Cooperative, dated Apr. 29,
1998 (available in Clerk of Court's case file) (arguing "lockbox"
feature inapplicable here due to special provision in Balanced
Budget Act of 1997, the constitutionality and severability of which
have not been argued). In essence, the "lockbox" feature: (1)
points to a
479
Gramm-Rudman-Hollings Act requirement that, when Congress enacts
a "budget busting" appropriation bill, automatically reduces
authorized spending for a host of federal programs in a pro rata
way; (2) notes that cancellation of an item (say, a $2 billion
item) would, absent the "lockbox" provision, neutralize (by up to
$2 billion) the potential "budget busting" effects of other bills
(and therefore potentially the President could cancel items in
order to "save" the other programs from the mandatory cuts,
resulting in no net deficit reduction); and (3) says that this
"neutralization" will not occur (i.
e., the pro rata
reductions will take place just as if the $2 billion item had not
been canceled), so that the canceled items truly provide
additional budget savings over and above the
Gramm-Rudman-Hollings regime. See generally H. R. Conf. Rep. No.
104-491, pp. 23-24 (1996) ("lockbox" provision included "to ensure
that the savings from the cancellation of [items] are devoted to
deficit reduction and are not available to offset a deficit
increase in another law"). That is why the Government says that the
Act provides a "lockbox," and why it seems fair to say that,
despite the Act's use of the word "cancel," the Act does not
delegate to the President the power truly to
cancel a line
item expenditure (returning the legal status quo to one in which
the item had never been enacted). Rather, it delegates to the
President the power to decide
how to spend the money to
which the line item refers-either for the specific purpose
mentioned in the item, or for general deficit reduction via the
"lockbox" feature.
These features of the law do not mean that the delegated power
is, or is just like, a power to appoint property. But they do mean
that it is not, and it is not just like, the repeal or amendment of
a law, or, for that matter, a true line item veto (despite the
Act's title). Because one cannot say that the President's exercise
of the power the Act grants is, literally speaking, a "repeal" or
"amendment," the fact that the Act's procedures differ from the
Constitution's exclusive pro-
480
cedures for enacting (or repealing) legislation is beside the
point. The Act
itself was enacted in accordance with these
procedures, and its failure to require the President to satisfy
those procedures does not make the Act unconstitutional.
IV
Because I disagree with the Court's holding of literal
violation, I must consider whether the Act nonetheless violates
separation-of-powers principles-principles that arise out of the
Constitution's vesting of the "executive Power" in "a President,"
U. S. Const., Art. II, § 1, and "[a]ll legislative Powers" in "a
Congress," Art. I, § 1. There are three relevant
separation-of-powers questions here: (1) Has Congress given the
President the wrong kind of power, i.
e., "nonExecutive"
power? (2) Has Congress given the President the power to "encroach"
upon Congress' own constitutionally reserved territory? (3) Has
Congress given the President too much power, violating the doctrine
of "nondelegation?" These three limitations help assure "adequate
control by the citizen's Representatives in Congress," upon which
JUSTICE KENNEDY properly insists. See
ante, at 451
(concurring opinion). And with respect to
this Act, the
answer to all these questions is "no."
A
Viewed conceptually, the power the Act conveys is the right kind
of power. It is "executive." As explained above, an exercise of
that power "executes" the Act. Conceptually speaking, it closely
resembles the kind of delegated authority-to spend or not to spend
appropriations, to change or not to change tariff rates-that
Congress has frequently granted the President, any differences
being differences in degree, not kind. See Part IV -C,
infra.
The fact that one could also characterize this kind of power as
"legislative," say, if Congress itself (by amending the
appropriations bill) prevented a provision from taking effect, is
beside the point. This Court has frequently found that the
481
exercise of a particular power, such as the power to make rules
of broad applicability,
American Trucking Assns., Inc. v.
United States, 344 U. S. 298, 310-313
(1953), or to adjudicate claims,
Crowell v.
Benson,
285 U. S., at 50-51, 54;
Wiener v.
United States,
357 U. S. 349,
354-356 (1958), can fall within the constitutional purview of more
than one branch of Government. See
Wayman v.
Southard, 10 Wheat. 1, 43 (1825) (Marshall, C. J.)
("Congress may certainly delegate to others, powers which the
legislature may rightfully exercise itself"). The Court does not
"carry out the distinction between legislative and executive action
with mathematical precision" or "divide the branches into
watertight compartments,"
Springer v.
Philippine
Islands, 277 U.
S. 189, 211 (1928) (Holmes, J., dissenting), for, as others
have said, the Constitution "blend[s]" as well as "separat[es]"
powers in order to create a workable government. 1 K. Davis,
Administrative Law § 1.09, p. 68 (1958).
The Court has upheld congressional delegation of rulemaking
power and adjudicatory power to federal agencies,
American
Trucking Assns. v.
United States, supra, at 310
313;
Wiener v.
United States, supra, at 354-356,
guidelinewriting power to a Sentencing Commission,
Mistretta
v.
United States, 488 U. S., at 412, and
prosecutor-appointment power to judges,
Morrison v.
Olson, 487 U.
S. 654, 696-697 (1988). It is far easier
conceptually to
reconcile the power at issue here with the relevant constitutional
description ("executive") than in many of these cases. And cases in
which the Court may have found a delegated power and the basic
constitutional function of another branch conceptually
irreconcilable are yet more distant. See,
e. g., Federal Radio
Comm'n v.
General Elec. Co., 281 U. S. 464 (1930)
(power to award radio licenses not a "judicial" power).
If there is a separation-of-powers violation, then, it must
rest, not upon purely conceptual grounds, but upon some important
conflict between the Act and a significant separation-of-powers
objective.
482
B
The Act does not undermine what this Court has often described
as the principal function of the separation of powers, which is to
maintain the tripartite structure of the Federal Government-and
thereby protect individual libertyby providing a "safeguard against
the encroachment or aggrandizement of one branch at the expense of
the other."
Buckley v.
Valeo, 424 U. S. 1, 122 (1976)
(per curiam); Mistretta v.
United States, supra, at
380-382. See The Federalist No. 51, p. 349 (J. Cooke ed. 1961) (J.
Madison) (separation of powers confers on each branch the means "to
resist encroachments of the others"); 1 Davis,
supra, §
1.09, at 68 ("The danger is not blended power[;] [t]he danger is
unchecked power"); see also,
e. g., Bowsher v.
Synar,
478 U. S. 714
(1986) (invalidating congressional intrusion on Executive Branch);
Northern Pipeline Constr. Co. v.
Marathon Pipe Line
Co., 458 U. S.
50 (1982) (Congress may not give away Article III "judicial"
power to an Article I judge);
Myers v.
United States,
272 U. S. 52
(1926) (Congress cannot limit President's power to remove Executive
Branch official).
In contrast to these cases, one cannot say that the Act
"encroaches" upon Congress' power, when Congress retained the power
to insert, by simple majority, into any future appropriations bill,
into any section of any such bill, or into any phrase of any
section, a provision that says the Act will not apply. See 2 U. S.
C. § 69lf(c)(1) (1994 ed., Supp. II);
Raines v.
Byrd,
521 U. S. 811,
824 (1997) (Congress can "exempt a given appropriations bill (or a
given provision in an appropriations bill) from the Act"). Congress
also retained the power to "disapprov[e]," and thereby reinstate,
any of the President's cancellations. See 2 U. S. C. § 691b(a). And
it is Congress that drafts and enacts the appropriations statutes
that are subject to the Act in the first place-and thereby defines
the outer limits of the President's cancellation authority. Thus
this Act is not the sort of delegation "without ...
sufficient check" that concerns JUSTICE KEN-
483
NEDY. See
ante, at 450 (concurring opinion). Indeed, the
President acts only in response to, and on the terms set by, the
Congress.
Nor can one say that the Act's basic substantive objective is
constitutionally improper, for the earliest Congresses could, see
Part II,
supra, and often did, confer on the President this
sort of discretionary authority over spending, see
ante, at
466-467 (SCALIA, J., concurring in part and dissenting in part).
Cf. J.
W Hampton, 276 U. S., at 412 (Taft, C. J.)
("[C]ontemporaneous legislative exposition of the Constitution when
the founders of our Government and the framers of our Constitution
were actively participating in public affairs ... fixes the
construction to be given to its provisions"). And, if an individual
Member of Congress, who, say, favors aid to Country A but not to
Country B, objects to the Act on the ground that the President may
"rewrite" an appropriations law to do the opposite, one can
respond: "But a majority of Congress voted that he have that power;
you may vote to exempt the relevant appropriations provision from
the Act; and if you command a majority, your appropriation is
safe." Where the burden of overcoming legislative inertia lies is
within the power of Congress to determine by rule. Where is the
encroachment?
Nor can one say the Act's grant of power "aggrandizes" the
Presidential office. The grant is limited to the context of the
budget. It is limited to the power to spend, or not to spend,
particular appropriated items, and the power to permit, or not to
permit, specific limited exemptions from generally applicable tax
law from taking effect. These powers, as I will explain in detail,
resemble those the President has exercised in the past on other
occasions. See Part IV -C,
infra. The delegation of those
powers to the President may strengthen the Presidency, but any such
change in Executive Branch authority seems minute when compared
with the changes worked by delegations of other kinds of authority
that the Court in the past has upheld. See,
e. g.,
American
484
Trucking Assns., Inc. v.
United States, 344 U. S. 298 (1953)
(delegation of rulemaking authority);
Lichter v.
United
States, 334 U. S.
742 (1948) (delegation to determine and regulate "excessive"
profits);
Crowell v.
Benson, 285 U. S. 22 (1932)
(delegation of adjudicatory authority);
Commodity Futures
Trading Comm'n v.
Schor, 478 U. S. 833 (1986)
(same).
C
The "nondelegation" doctrine represents an added constitutional
check upon Congress' authority to delegate power to the Executive
Branch. And it raises a more serious constitutional obstacle here.
The Constitution permits Congress to "see[k] assistance from
another branch" of Government, the "extent and character" of that
assistance to be fixed "according to common sense and the inherent
necessities of the governmental co-ordination." J.
W Hampton,
supra, at 406. But there are limits on the way in which
Congress can obtain such assistance; it "cannot delegate any part
of its legislative power except under the limitation of a
prescribed standard."
United States v.
Chicago, M., St.
P. & P. R. Co.,
282 U. S. 311, 324
(1931). Or, in Chief Justice Taft's more familiar words, the
Constitution permits only those delegations where Congress "shall
lay down by legislative act an
intelligible principle to
which the person or body authorized to [act] is directed to
conform."
J. W Hampton, supra, at 409 (emphasis added).
The Act before us seeks to create such a principle in three
ways. The first is procedural. The Act tells the President that, in
"identifying dollar amounts [or] ... items ... for cancellation"
(which I take to refer to his selection of the amounts or items he
will "prevent from having legal force or effect"), he is to
"consider," among other things,
"the legislative history, construction, and purposes of the law
which contains [those amounts or items, and] ... any specific
sources of information referenced in
485
such law or ... the best available information .... " 2 U. S. C.
§ 691(b) (1994 ed., Supp. II).
The second is purposive. The clear purpose behind the Act,
confirmed by its legislative history, is to promote "greater fiscal
accountability" and to "eliminate wasteful federal spending and ...
special tax breaks." H. R. Conf. Rep. No. 104-491, p. 15
(1996).
The third is substantive. The President must determine that, to
"prevent" the item or amount "from having legal force or effect"
will "reduce the Federal budget deficit; ... not impair any
essential Government functions; and ... not harm the national
interest." 2 U. S. C. § 691(a)(A) (1994 ed., Supp. II).
The resulting standards are broad. But this Court has upheld
standards that are equally broad, or broader. See,
e. g.,
National Broadcasting Co. v.
United States, 319 U. S. 190, 225-226
(1943) (upholding delegation to Federal Communications Commission
to regulate broadcast licensing as "public interest, convenience,
or necessity" require) (internal quotation marks omitted);
FPC v.
Hope Natural Gas Co., 320 U. S. 591, 600-603
(1944) (upholding delegation to Federal Power Commission to
determine "just and reasonable" rates);
United States v.
Rock Royal Co-operative, Inc., 307 U. S. 533, 577 (1939) (if
milk prices were "unreasonable," Secretary of Agriculture could
"fi[x]" prices to a level that was "in the public interest"). See
also
Lichter v.
United States, 334 U. S. 742, 785-786
(1948) (delegation of authority to determine "excessive" profits);
American Power &
Light Co. v.
SEC,
329 U. S. 90,
104-105 (1946) (delegation of authority to Securities and Exchange
Commission to prevent "unfairly or inequitably" distributing voting
power among security holders);
Yakus v.
United
States, 321 U. S.
414, 427 (1944) (upholding delegation to Price Administrator to
fix commodity prices that would be "fair" and "equitable").
Indeed, the Court has only twice in its history found that a
congressional delegation of power violated the "nondele-
486
gation" doctrine. One such case,
Panama Refining Co. v.
Ryan, 293 U. S. 388 (1935), was in a sense a special case,
for it was discovered in the midst of the case that the particular
exercise of the power at issue, the promulgation of a Petroleum
Code under the National Industrial Recovery Act, did not contain
any legally operative sentence.
Id., at 412-413. The other
case,
A. L. A. Schechter Poultry Corp. v.
United
States, 295 U. S.
495 (1935), involved a delegation through the National
Industrial Recovery Act, 48 Stat. 195, that contained not simply a
broad standard ("fair competition"), but also the conferral of
power on private parties to promulgate rules applying that standard
to virtually all of American industry, id., at 521-525. As Justice
Cardozo put it, the legislation exemplified "delegation running
riot," which created a "roving commission to inquire into evils and
upon discovery correct them."
Id., at 553, 551 (concurring
opinion).
The case before us does not involve any such "roving
commission," nor does it involve delegation to private parties, nor
does it bring all of American industry within its scope. It is
limited to one area of Government, the budget, and it seeks to give
the President the power, in one portion of that budget, to tailor
spending and special tax relief to what he concludes are the
demands of fiscal responsibility. Nor is the standard that governs
his judgment, though broad, any broader than the standard that
currently governs the award of television licenses, namely, "public
convenience, interest,
or necessity." 47 U. S. C. § 303
(emphasis added). To the contrary, (a) the broadly phrased
limitations in the Act, together with (b) its evident deficit
reduction purpose, and (c) a procedure that guarantees Presidential
awareness of the reasons for including a particular provision in a
budget bill, taken together, guide the President's exercise of his
discretionary powers.
1
The relevant similarities and differences among and between this
case and other "nondelegation" cases can be listed
487
more systematically as follows: First, as I have just said, like
statutes delegating power to award broadcast television licenses,
or to regulate the securities industry, or to develop and enforce
workplace safety rules, the Act is aimed at a discrete problem:
namely, a particular set of expenditures within the federal budget.
The Act concerns, not the entire economy, cf.
Schecter Poultry
Corp., supra, but the annual federal budget. Within the budget
it applies only to
discretionary budget authority and
new direct spending items, that together amount to
approximately a third of the current annual budget outlays, see Tr.
of Oral Arg. 18; see also Budget 303, and to "limited tax benefits"
that (because each can affect no more than 100 people, see 2 U. S.
C. § 691e(9)(A) (1994 ed., Supp. II)), amount to a tiny fraction of
federal revenues and appropriations. Compare Analytical
Perspectives 73-75 (listing over
$500 billion in overall
"tax expenditures" that OMB estimated were contained in federal law
in 1997) and Budget 303 (federal outlays and receipts in 1997 were
both over $1.5
trillion) with App. to Juris. Statement 71a
(President's cancellation message for Snake River appellees'
limited tax benefit, estimating annual "value" of benefit, in terms
of revenue loss, at about
$20 million).
Second, like the award of television licenses, the particular
problem involved-determining whether or not a particular amount of
money should be spent or whether a particular dispensation from tax
law should be granted a few individuals-does not readily lend
itself to a significantly more specific standard. The Act makes
clear that the President should consider the reasons for the
expenditure, measure those reasons against the desirability of
avoiding a deficit (or building a surplus), and make up his mind
about the comparative weight of these conflicting goals. Congress
might have expressed this matter in other language, but could it
have done so in a
significantly more specific way? See
National Broadcasting Co. v.
United States, supra, at
216 ("[P]ublic interest, convenience, or necessity" standard is
488
" 'as concrete as the complicated factors for judgment in such a
field of delegated authority permit''') (quoting
FCC v.
Pottsville Broadcasting Co., 309 U. S. 134, 138
(1940)). The statute's language, I believe, is sufficient to
provide the President, and the public, with a fairly clear idea as
to what Congress had in mind. And the public can judge the merits
of the President's choices accordingly. Cf.
Yakus v.
United States, 321 U. S., at 426 (standards were
"sufficiently definite and precise to enable ... the public to
ascertain ... conform[ity]").
Third, insofar as monetary expenditure (but not "tax
expenditure") is at issue, the President acts in an area where
history helps to justify the discretionary power that Congress has
delegated, and where history may inform his exercise of the Act's
delegated authority. Congress has frequently delegated the
President the authority to spend, or not to spend, particular sums
of money. See,
e. g., Act of Sept. 29, 1789, ch. 23, 1 Stat.
95; Act of Mar. 26, 1790, ch. 4, § 1, 1 Stat. 104; Act of Feb. 11,
1791, ch. 6, 1 Stat. 190; Emergency Relief Appropriation Act of
1935, 49 Stat. 115 (appropriating over $4 billion to be spent "in
the discretion and under the direction of the President" for
economic relief measures); see also
ante, at 466-467
(SCALIA, J., concurring in part and dissenting in part) (listing
numerous examples).
Fourth, the Constitution permits Congress to rely upon context
and history as providing the necessary standard for the exercise of
the delegated power. See,
e. g., Federal Radio Comm'n v.
Nelson Brothers Bond &
Mortgage Co. (Station
WIBO), 289 U. S.
266, 285 (1933) ("public interest, convenience, or necessity
[standard] ... is to be interpreted by its context");
Fahey
v.
Mallonee, 332 U. S. 245, 253 (1947)
(otherwise vague delegation to regulate banks was "sufficiently
explicit, against the background of custom, to be adequate").
Relying upon context, Congress has sometimes granted the President
broad discretionary authority over
489
spending in laws that mention no standard at all. See,
e.
g., Act of Mar. 3, 1809, ch. 28, § 1,2 Stat. 535-536 (granting the
President recess authority to transfer money "appropriated for a
particular branch of expenditure in [a] department" to be "applied
[instead] to another branch of expenditure in the same
department"); Revenue and Expenditure Control Act of 1968, §§
202(b), 203(b), 82 Stat. 271-272; (authorizing the President
annually to reserve up to $6 billion in outlays and $10 billion in
new obligation authority); Second Supplemental Appropriations Act,
1969, § 401, 83 Stat. 82; Second Supplemental Appropriations Act,
1970, §§ 401,501,84 Stat. 405407. In this case, too, context and
purpose can give meaning to highly general language. See
Federal
Radio Comm'n v.
Nelson Bros., supra, at 285;
Fahey v.
Malonee, supra, at 250-253; cf.
Lichter v.
United States, 334 U. S., at 777 (Congress
has "at least expressed ... satisfaction with the existing
specificity of the Act");
Train v.
City of New York,
420 U. S. 35, 44-47 (1975) (disallowing President Nixon's
efforts to impound funds because Court found Congress did not
intend him to exercise the power in that instance).
On the other hand, I must recognize that there are important
differences between the delegation before us and other broad,
constitutionally acceptable delegations to Executive Branch
agencies-differences that argue against my conclusion. In
particular, a broad delegation of authority to an administrative
agency differs from the delegation at issue here in that agencies
often develop subsidiary rules under the statute, rules that
explain the general "public interest" language. Doing so diminishes
the risk that the agency will use the breadth of a grant of
authority as a cloak for unreasonable or unfair implementation. See
1 K. Davis, Administrative Law § 3:15, pp. 207-208 (2d ed. 1978).
Moreover, agencies are typically subject to judicial review, which
review provides an additional check against arbitrary
implementation. See,
e. g., Motor Vehicle Mfrs. Assn. of
United
490
States, Inc. v.
State Farm Mut. Automobile Ins. Co.,
463 U. S. 29, 40-42 (1983). The President has not so narrowed
his discretionary power through rule, nor is his implementation
subject to judicial review under the terms of the Administrative
Procedure Act. See,
e. g., Franklin v.
Massachusetts,
505 U. S. 788,
801 (1992) (APA does not apply to President absent express
statement by Congress).
While I believe that these last mentioned considerations are
important, they are not determinative. The President, unlike most
agency decisionmakers, is an elected official. He is responsible to
the voters, who, in principle, will judge the manner in which he
exercises his delegated authority. Whether the President's
expenditure decisions, for example, are arbitrary is a matter that
in the past has been left primarily to those voters to consider.
And this Court has made clear that judicial review is less
appropriate when the President's own discretion, rather than that
of an agency, is at stake. See
Dalton v.
Specter,
511 U. S. 462,
476 (1994) (Presidential decision on military base closure
recommendations not reviewable; President could "approv[e] or
disapprov[e] the recommendations for whatever reason he sees fit");
Franklin, 505 U. S., at 801 (President's decision whether or
not to transmit census report to Congress was unreviewable by
courts for abuse of discretion); cf. id., at 799-800 (it was
"important to the integrity of the process" that the decision was
made by the President, a "constitutional officer" as opposed to the
unelected Secretary of Commerce). These matters reflect in part the
Constitution's own delegation of "executive Power" to "a
President," Art. II, § 1; cf.
Clinton v.
Jones,
520 U. S. 681,
710-711 (1997) (BREYER, J., concurring in judgment) (discussing
unitary Executive), and we must take this into account when
applying the Constitution's nondelegation doctrine to questions of
Presidential authority.
Consequently I believe that the power the Act grants the
President to prevent spending items from taking effect does not
violate the "nondelegation" doctrine.
491
Most, but not all, of the considerations mentioned in the
previous subsection apply to the Act's delegation to the President
of the authority to prevent "from having legal force or effect" a
"limited tax benefit," which term the Act defines in terms of
special tax relief for fewer than 100 (or in some instances 10)
beneficiaries, which tax relief is not available to others who are
somewhat similarly situated. 2 U. S. C. § 691e(9) (1994 ed., Supp.
II). There are, however, two related significant differences
between the "limited tax benefit" and the spending items considered
above, which make the "limited tax benefit" question more
difficult. First, the history is different. The history of
Presidential authority to pick and to choose is less voluminous.
Second, the subject matter (increasing or decreasing an
individual's taxes) makes the considerations discussed at the end
of the last section (i.
e., the danger of an arbitrary
exercise of delegated power) of greater concern. But these
differences, in my view, are not sufficient to change the
"nondelegation" result.
For one thing, this Court has made clear that the standard we
must use to judge whether a law violates the "nondelegation"
doctrine is the same in the tax area as in any other. In
Skinner v.
Mid-America Pipeline Co., 490 U. S. 212 (1989), the
Court considered whether Congress, in the exercise of its taxing
power, could delegate to the Secretary of Transportation the
authority to establish a system of pipeline user fees. In rejecting
the argument that the "fees" were actually a "tax," and that the
law amounted to an unconstitutional delegation of Congress' own
power to tax, the unanimous Court said that:
"From its earliest days to the present, Congress, when enacting
tax legislation, has varied the degree of specificity and the
consequent degree of discretionary authority delegated to the
Executive ....
492
"We find no support ... for [the] contention that the text of
the Constitution or the practices of Congress require the
application of a different and stricter non delegation doctrine in
cases where Congress delegates discretionary authority to the
Executive under its taxing power .... Even if the user fees are a
form of taxation, we hold that the delegation of discretionary
authority under Congress' taxing power is subject to no
constitutional scrutiny greater than that we have applied to other
nondelegation challenges. Congress may wisely choose to be more
circumspect in delegating authority under the Taxing Clause than
under other of its enumerated powers, but this is not a heightened
degree of prudence required by the Constitution." Id., at
221-223.
For another thing, this Court has upheld tax statutes that
delegate to the President the power to change taxes under very
broad standards. In 1890, for example, Congress authorized the
President to "suspend" the provisions of the tariff statute,
thereby raising tariff rates, if the President determined that
other nations were imposing "reciprocally unequal and unreasonable"
tariff rates on specialized commodities. Act of Oct. 1, 1890, ch.
1244, § 3, 26 Stat. 612. And the Court upheld the statute against
constitutional attack.
Field v.
Clark, 143 U. S., at
693-694 ("[N]o valid objection can be made" to such statutes
"conferring authority or discretion" on the President) (internal
quotation marks omitted); see also Act of Dec. 19, 1806, ch. 1, 2
Stat. 411 (President "authorized" to "suspend the operation of" a
customs law "if in his judgment the public interest should require
it"); Act of June 4, 1794, ch. 41, § 1, 1 Stat. 372 (empowering
President to lay an embargo on ships in ports "whenever, in his
opinion, the public safety shall so require" and to revoke related
regulations "whenever he shall think proper"). In 1922 Congress
gave the President the authority to adjust tariff rates to
"equalize" the differences in costs of production at home and
abroad, see Tariff Act of 1922, ch. 356,
493
§ 315(a), 42 Stat. 941-942. The Court also upheld this
delegation against constitutional attack. See J.
W Hampton,
Jr., &
Co. v.
United States, 276 U. S. 394 (1928).
These statutory delegations resemble today's Act more closely
than one might at first suspect. They involve a duty on imports,
which is a tax. That tax in the last century was as important then
as the income tax is now, for it provided most of the Federal
Government's revenues. See U. S. Dept. of Commerce, Census Bureau,
Historical Statistics of the United States: Colonial Times to 1970,
pt. 2, at 1106 (in 1890, when Congress passed the statute at issue
in
Field, tariff revenues were 57% of the total receipts of
the Federal Government). And the delegation then thus affected a
far higher percentage of federal revenues than the tax-related
delegation over extremely "limited" tax benefits here. See
supra, at 487.
The standards at issue in these earlier laws, such as
"unreasonable," were frequently vague and without precise meaning.
See,
e. g., Act of Oct. 1, 1890, § 3, 26 Stat. 612. Indeed,
the word "equalize" in the 1922 statute, 42 Stat. 942, could not
have been administered as if it offered the precision it seems to
promise, for a tariff that literally "equalized" domestic and
foreign production costs would, because of transport costs, have
virtually ended foreign trade.
Nor can I accept the majority's effort to distinguish these
examples. The majority says that these statutes imposed a specific
"duty" upon the President to act upon the occurrence of a specified
event. See
ante, at 443. But, in fact, some of the statutes
imposed no duty upon the President at all. See,
e. g., Act
of Dec. 19, 1806, ch. 1, 2 Stat. 411 (President "authorized" to
"suspend the operation of" a customs law "if in his judgment the
public interest should require it"). Others imposed a "duty" in
terms so vague as to leave substantial discretion in the
President's hands. See Act of Oct. 1, 1890, 26 Stat. 612
(President's "duty" to suspend tariff law was triggered "whenever"
and "so often as" he was "satisfied"
494
that "unequal and unreasonable" rates were imposed); see also
Field v.
Clark, supra, at 691 (historically in the
flexible tariff statutes Congress has "invest[ed] the President
with large discretion").
The majority also tries to distinguish these examples on the
ground that the President there executed congressional policy while
here he rejects that policy. See
ante, at 444. The President
here, however, in exercising his delegated authority does not
reject congressional policy. Rather, he
executes a
law in which Congress has specified its desire that the President
have the very authority he has exercised. See Part III,
supra.
The majority further points out that these cases concern
imports, an area that, it says, implicates foreign policy and
therefore justifies an unusual degree of discretion by the
President. See
ante, at 445. Congress, however, has not
limited its delegations of taxation authority to the "foreign
policy" arena. The first Congress gave the Secretary of the
Treasury the "power to mitigate or remit" statutory penalties for
nonpayment of liquor taxes "upon such terms and conditions as shall
appear to him reasonable." Act of Mar. 3, 1791, ch. 15, § 43, 1
Stat. 209. A few years later, the Secretary was authorized, in lieu
of collecting the stamp duty enacted by Congress, "to agree to an
annual composition for the amount of such stamp duty, with any of
the said banks, of one per centum on the amount of the annual
dividend made by such banks." Act of July 6, 1797, ch. 11, § 2, 1
Stat. 528. More recently, Congress has given to the Executive
Branch the authority to "prescribe all needful rules and
regulations for the enforcement of [the Internal Revenue Code],
including all rules and regulations as may be necessary by reason
of any alteration of law in relation to internal revenue." 26 U. S.
C. § 7805(a). And the Court has held that such rules and
regulations, "which undoubtedly affect individual taxpayer
liability, are ... without doubt the result of entirely appropriate
delegations of discretionary authority
495
by Congress."
Skinner v.
Mid-America Pipeline Co.,
490 U. S., at 222. I do not believe the Court would hold the
same delegations at issue in J.
W Hampton and
Field
unconstitutional were they to arise in a more obviously domestic
area.
Finally, the tax-related delegation is limited in ways that tend
to diminish any widespread risk of arbitrary Presidential
decisionmaking:
(1) The Act does not give the President authority to change
general tax policy. That is because the limited tax benefits are
defined in terms of deviations from tax policy, i.
e.,
special benefits to fewer than 100 individuals. See 2 U. S. C. §
691e(9)(A)(i) (1994 ed., Supp. II); see also Analytical Perpectives
84 (defining "tax expenditure" as "a preferential exception to the
baseline provisions of the tax structure").
(2) The Act requires the President to make the same kind of
policy judgment with respect to these special benefits as with
respect to items of spending. He is to consider the budget as a
whole, he is to consider the particular history of the tax benefit
provision, and he is to consider whether the provision is worth the
loss of revenue it causes in the same way that he must decide
whether a particular expenditure item is worth the added revenue
that it requires. See
supra, at 484-485.
(3) The delegated authority does not destroy any individual's
expectation of receiving a particular benefit, for the Act is
written to say to the small group of taxpayers who may receive the
benefit, "Taxpayers, you will receive an exemption from ordinary
tax laws, but only if the President decides the budgetary loss is
not too great."
(4) The "limited tax benefit" provisions involve only a small
part of the federal budget, probably less than one percent of total
annual outlays and revenues. Compare Budget 303 (federal outlays
and receipts in 1997 were both over $1.5
trillion) with App.
to Juris. Statement 71a (President's cancellation message for Snake
River appellees' limited tax ben-
496
efit, estimating annual "value" of benefit, in terms of revenue
loss, at about
$20 million) and Taxpayer Relief Act of 1997,
§ 1701, 111 Stat. 1099 (identifying only 79 "limited tax benefits"
subject to cancellation in the entire tax statute).
(5) Because the "tax benefit" provisions are part and parcel of
the budget provisions, and because the Act in defining them,
focuses upon "revenue-losing" tax provisions, 2 U. S. C. §
691e(9)(A)(i) (1994 ed., Supp. II), it regards "tax benefits" as if
they were a special kind of
spending, namely spending that
puts back into the pockets of a small group of taxpayers, money
that "baseline" tax policy would otherwise take from them. There
is, therefore, no need to consider this provision as if it
represented a delegation of authority to the President, outside the
budget expenditure context, to set major policy under the federal
tax laws. But c:t:
Skinner v.
Mid-America Pipeline,
supra, at 222-223 (no "different and stricter" nondelegation
doctrine in the taxation context). Still less does approval of the
delegation in this case, given the long history of Presidential
discretion in the budgetary context, automatically justify the
delegation to the President of the authority to alter the effect of
other laws outside that context.
The upshot is that, in my view, the "limited tax benefit"
provisions do not differ enough from the "spending" provisions to
warrant a different "nondelegation" result.
v
In sum, I recognize that the Act before us is novel. In a sense,
it skirts a constitutional edge. But that edge has to do with
means, not ends. The means chosen do not amount literally to the
enactment, repeal, or amendment of a law. Nor, for that matter, do
they amount literally to the "line item veto" that the Act's title
announces. Those means do not violate any basic
separation-of-powers principle. They do not improperly shift the
constitutionally foreseen balance of power from Congress to the
President. Nor, since
497
they comply with separation-of-powers principles, do they
threaten the liberties of individual citizens. They represent an
experiment that may, or may not, help representative government
work better. The Constitution, in my view, authorizes Congress and
the President to try novel methods in this way. Consequently, with
respect, I dissent.
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