What emerges from examination of the appointments clause and the presentation clause as applied by the Court is the principle that, once it has determined that a function or power is wholly or predominantly one vested in a particular branch, the Court will closely scrutinize any effort to vest that function or power, or a like or similar function or power, elsewhere. In particular, there seems to emerge from the opinions in these cases and others almost a presumption against enlargement of the participation by a competing branch in the performance of that function or power beyond what the Constitution itself requires as a blending. 143

Balancing in a separation of powers context. In the absence of a specific constitutional provision and sometimes as a guide in interpreting provisions, the Court, when called upon to determine whether one branch had impermissibly intruded into the province of another, will look to a two-stage rule of thumb. It first asks whether the action of the moving branch threatens to prevent another "from accomplishing its constitutionally assigned functions," and, second, where there is a "potential for disruption" it determines "whether that impact is justified by the overriding need to promote objectives within the constitutional power" of the moving branch. 144

The item veto by statute

We are now enabled to evaluate the questions which the Constitution would require to be raised and answered in the face of any proposal to implement an item veto through statutory means. Two means by which such a proposal could be accomplished can be suggested and each would raise somewhat problems on its own. But before attending to the two alternatives, general commentary is in order.

As we have noted above, the veto is considerd a legislative power, which the President may exercise only because the Constitution, because of a confluence of reasons of the Farmers, devolves upon him. Any proposal, therefore, which would bestow upon the President the power of the item veto would necessarily enlarge his legislative powers. This would constitute a not inconsiderable strengthening of the President's powers. At present, the bicameral form of law making and the committee system which both Houses of Congress have imposed on themselves join to present a significant barrier to successful enactment of legislation. The President's power to veto the final product and require a two-thirds vote of both Houses to override in another heavy burden to bear, but the President's exercise of it comes attended with costs. At present, he has two choices: sign a bill or return it. If a bill contains both provisions he wants and perhaps requires any provisions he does not want, his discretion to return it may be substantially burdened and curbed, and Congress may multiply his concerns by sending him omnibus bills or bills combining several features. If he could choose which part of a bill to sign and which part to return, his discretion would be considerably enlarged and Congress' recourse similarly limited.

143 See INS v. Chadha, supra, 2784.

144 Nixon v. Administrator of General Services, supra, 442-443; Nixon v. Fitzgerald, supra, 753-754.

It must be noted that what we are discussing is not the policy of the item veto but the degree to which it would alter power balances between the two branches.

Two constitutional objections could be made, in tandem, to this alteration.

First, the Constitution in Article I is quite detailed with respect to the mechanics of law making. It must be accomplished through the cooperation of the two Houses. All bills for raising revenues must originate in the House of Representatives. Each House is responsible for making its own rules of procedure. And at the conclusion of the process, bills must be presented to the President. It may be argued that, just as the appointments clause provided the exclusive means by which officers of the United States, properly defined, could be selected, the legislative process laid out through Article I constitutes the sole and exclusive, and undeviating, means of enacting laws. Just as, to continue, the Congress has a limited role with respect to executive offices in creating them and the Senate similarly in advising and consenting to appointees, so the President's role in the legislative process, his formally coercive role rather than his influence, is expressly limited to saying "Aye" or "Nay" at the conclusion. The Constitution, it may be said, provides him a choice of taking or leaving the entire product.

Thus, the argument is that the constitutional text provides a limited legislative role for the President; that role cannot be enlarged without violating the text.

Second, to so enlarge the legislative role of the President in the process of enacting legislation is to create a "potential for disruption" of the legislative process. Whatever one may think of the spirit of compromise in the legislative process, the give and take, the combining of disparate proposals in the interest of combatting strength with strength, the inclusion within a measure of one thing desired by Congress with another desired by the President, no one would contend either that it is not constitutional or that it is not the way legislative bodies have always functioned. The item veto would weigh the scales differently, would significantly alter how Congress legislates, would draw a different balance in how Congress performs its constitutionally assigned functions.

Consciously, the Framers included several curbs to impermissible executive coercion of the lawmaking process. Members of Congress were protected in their speech or debate and given immunity from criminal arrest. Article I, § 6, cl. 1. They were barred from appointment to civil offices which had been created or the emoluments of which had been increased during their terms of office, and they were barred from holding both congressional and executive office simultaneously. Article I, § 6, cl. 2. The item veto, it may be contended, would give the President power over the legislative process that could well alter both institutions in great measure.

The Court has formulated a balancing test for assessing whether the potential for disruption is too great. It requires, as stated above, a determinaiton whether the impact is justified by the overriding need to promote objectives within the constitutional powers of Congress and the President. This determination would require consideration of the degree of impact, of the objectives and the necessity to promote then, and of less severe alternatives. In the ab

sence of a concrete proposal, we would at this point forego undertaking that consideration.

It may be objected that, while congressional incursions into the executive branch, as found by the Court in Buckley and Chadha, or into the judicial branch as found by the Court in United States v. Will, 145 may require judicial policing, a congressional enactment that limits its own powers, such as is here posited of the item veto, necessitates no judicial review or at most one of the most relaxed scrutiny, inasmuch as it would be through Congress' own actions that it gave up power. For two reasons, however, this objection is not well taken.

First, the Court has held impermissible the suggestion that the President by signing legislation which intrudes into his province has waived his right to object to the legislation.146 No reason appears why a different rule should prevail with respect to Congress. Second, and more important, the values and functions of the separation of powers are not primarily for the benefit of each branch or of its temporary occupants. The purpose of separation is the protection and preservation of individual liberty, because the Framers perceived that liberty would not be safe in a government in which one individual or one group of individuals made the laws, executed the laws, and judged allegations of violation of the laws. 147 It is usually not the branch intruded upon which raises the constitutional issue in court but a private party who has suffered an injury thereby. Chadha is a prime example, as are the moving parties in Buckley, Myers, Humphrey's Executor, and Weiner.

Illustrative of both reasons is judicial handling of the nondelegation doctrine. Under this doctrine, the courts have over the years attempted to mark out the boundaries of the permissible degree of delegation of legislative power to the executive and judicial branches. While on only two instances have delegations been found unconstitutional,148 the doctrine continues to figure prominently in constitutional law 149 making clear that at some point it is unconstitutional for Congress to give up its powers.

Item veto by delegation

It may be suggested that Congress could simply delegate the President the power to veto items in appropriations bills or in general bills. The model would presumably be the Impoundment Control Act 150 under which the President either defers or rescinds certain items of appropriations and Congress responds accordingly. While the scholars and the courts are in disagreement whether the Act itself delegates authority to the President or whether it provides the means by which the Congress responds to presidential exercises of authority under other legislation, the appropriateness of

145 449 U.S. 200 (1980).

146 INS v. Chadha, supra, 2779 n. 13; see also Buckley v. Valeo, supra.

147 The Federalist, Nos. 47, 48 (Madison).

148 Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).

149 E.g. National Cable Television v. United States, 415 U.S. 336 (1974), and see Industrial Union Dept. v. American Petroleum Institute, 448 U.S. 607, 671 (1980) (Justice Rehnquist concurring), and American Textile Mfgrs. Institute v. Donovan, 452 U.S. 490, 543 (1981) (Justice Rehnquist dissenting).

150 88 Stat. 332 (1974), 2 U.S.C. §§ 681-688.

the Act as a model for the item veto is questionable for a very fundamental reason. Delegation of legislative authority is always made to the President or to some other executive branch officer (or to a judicial officer) in the context of the execution of the law. In other words, Congress has passed a law which authorizes the exercise of some power and some officer must execute it. The President may raise or lower tariffs. 151 The price of agricultural commodities may be fixed,152 or excess profits may be recovered in war time.153 Whatever the action being taken, it is in the context of the execution of an enacted statute.

The attempted delegations to the President of an item veto would not involve his executive functions; it would rather enlarge his legislative responsibilities, his power to participate in the legislatuve process. As such as it would be subject to the objections set out above to a general enlargement of those legislative powers and it would not be subject to the counter arguments that successful delegations of legislative power to the executive could supply. In other words, the Impoundment Control Act is not a precedent and neither is the host of cases in the Supreme Court sustaining past delegations. To say this is not to say the conferral of the item veto cannot be sustained, but it is to say that it must surmount the argument made above without the favorable weight of the delegation preceents.

Congressional definition of "bill"

The second method by which Congress might statutorily confer the item veto on the President was suggested by Congressman Sumners in his opinion for the House Judiciary Committee in 1938, already referred to. The Congressman focused upon the word "Bill," in Article I, § 7, cl. 2, prescribing the President's veto power. "Does the word 'bill' necessarily mean all the separate items assembled under one caption, each of which might have been the subject matter of a separate bill but which for convenience sake in expediting the public's business are assembled under one caption?

"To hold that the word 'bill' necessarily means all the items assembled under one caption would be a construction operative against the purpose of plan of the Constitution. The construction would compel the President officially to approve items which he does not in fact approve in order to avoid striking down other items which he does approve. On the other hand, such a construction would force him to disapprove items which in fact he does approve in order to reach other items which he disapproves. If, however, Congress draws an appropriation bill so that without doing hurt to the effectiveness of legislation the President is permitted to disapprove separate items and approve the remainder permitting those items which have been agreed to by the House of Congress and approved by the President to become law, that would be in harmony with the plan and purpose of the Constitution. . . .

151 Field v. Clark, 143 U.S. 649 (1892); J.W. Hampton & Co. v. United States, 276 U.S. 394 (1928)).

152 United States v. Rock Royal Co-operatives, 307 U.S. 533 (1939). 153 Lichter v. United States, 334 U.S. 742 (1948).

"It would be necessary, as I view it, before the President would be authorized to veto a separate item in an appropriation bill, for the Houses of Congress by appropriate resolution to indicate to the President that they have drawn the bill so that each item may be regarded as a separate bill for the purpose of his examination and approval or disapproval, and that it is the will of Congress that the bill be thus examined and acted upon.'

" 154

Central to this argument is the proposition that when the Framers drew up the veto clause, they assumed the word "bill" meant "a legislative instrument setting forth one or more propositions of law, all related, however, to a single subject matter." 155 We may infer that the Framers "did not foresee omnibus bills and legislative riders to appropriation bills.156 The practice of attaching riders to appropriation bills and other measures apparently began in 1820, when a bill for the admission of Missouri was attached to a bill for the admissin of Maine, and apparently proliferated during and after the Civil War. 157 Germaneness rules and the constitutional requirement in some States that a bill's title correctly state the single import of the bill are attempts to halt the practice.

However much truth may be to these contentions, however, it is difficult to see where they advance any argument. Whatever the Framers may have thought the word "bill" to encompass in 1787, they neither expressly nor implicitly constitutionalized any version of the meaning. The word, insofar as it has meaning within the intendment of the Constitution, is what Congress, each House being authorized under Article I, § 5, cl. 2, to determine the rules of its proceedings, considers a bill to be and what it sends to the President. When, after all, the Framers were concerned about the evasion of the presentation clause, they inserted the specific provision of clause 3 of § 7, so as to include the submission of everything that woud have the force of law to the President, focusing on inclusion rather than division. The most extreme meaning to be attached to this argument is that the President now has the power of item veto because Congress has exceeded what the Framers intended.

Important it is to notice, however, that the item veto is to be aserted whether in constitutional amendment form or in statutory form, not only against riders on appropriations bills or other bills or against nongermane provisions of bills, but as well against any provision of a bill. Inasmuch as appropriations bills appear to be the focus of most of the consideration of the item veto question, it is well to note that most appropriations bills now, and in the recent past, have been department-wide and in most cases multi-department bills. In the early days, appropriations bills started out as a lump-sum appropriations for the entire government in one bill usually consisting of a single paragraph.158 There then developed itemization of appropriations in extreme specificity.159 The lesson

154 Append. 200, 201 (1938). For similar arguments, see Zinn, op. cit., 34-35; "Item Veto" Hearings, op. cit., 49-54 (Congressman Stewart Udall), 54-55 (Congressman Multer).

155 Zinn, op. cit., 34.

156 Ibid.

157 Mason, op. cit., 48 n.1.

158 E.g., 1 Stat. 190 (1791); 1 Stat. 104 (1790); 1 Stt. 95 (1789).

159 Abascal & Kramer, "Presidential Impoundment, Part I: Historical Genesis and Constitutional Framework," 62 Geo. L. J. 1549, 1578-1583 (1974).