In Re State of the Union:
Chief Justice Roberts and Associate Justices Thomas, Breyer, and Alito attended President Bush's State of the Union address Tuesday night. Dana Milbank has an amusing report of the four Justices' "rulings" about when they should applaud:
  At times, Alito followed the lead of the other three justices who sat with him in the front row. When Bush said "We love our freedom, and we will fight to keep it," Thomas looked at Roberts, who looked at Breyer, who gave an approving shrug; all four gentlemen stood and gave unanimous applause.
  At other times, Alito showed independence from his senior colleagues. When Bush delivered the stock line "The state of our union is strong," Alito dissented while the other three robed justices in the front row applauded. When Bush declared that "liberty is the right and hope of all humanity," Alito was the only member of the judicial quartet to provide his concurring applause.
  It seemed from their frequent conferences that the justices had agreed on some ground rules: Any mention of Iraq or hot domestic disputes were off limits; broad appeals to patriotism were deemed applause-worthy. But there were disputes. When Bush said "We will never surrender to evil," the justices conferred briefly. Breyer shook his head, but Roberts overruled him, and Breyer reluctantly stood with his three colleagues.
  Of course, the applause that really matters is Kennedy's, and he wasn't there. Link via How Appealing.
Billy Budd:
Has anyone else noticed that Bush asked for the line-item veto? Can anyone else think of a reason why no one might have told the President, "hey, uh, sir ... it's a great idea and all ... but we tried it 10 years ago ... and ... well ... uh ... it's not exactly ... er ... Constitutional."
2.1.2006 12:14am
Armen (mail) (www):
They also all affirmed Bush's accolades of Senior Justice O'Connor...Thomas even smiled.
2.1.2006 12:21am

And by my count, there are still at least 5 votes on the Court against the line item veto (eg, even if Roberts flipped the CJ's vote).
2.1.2006 12:25am
Nobody Special:
Political circumstances may have changed, causing a vote in favor of the line item veto to develop.

Plus, the concept plays well, and then he can be like "well, I tried," all without having to actually live with cutting something, when the district court tells him to hold his horses.
2.1.2006 12:28am
Jack John (mail):
Bush: "Far from being a hopeless dream, the advance of freedom is the great story of our time. In 1945, there were about two dozen lonely virgins in the world. Today there are 122."

God, his priorities are so off. We have crushing debt piling up and here he is talking about the systemic failure of abstinence education.

I'm not sure that one can argue the line-item veto isn't unconstitutional after the way that case was decided. I mean, it's grounded in the text and the structure, and even Stevens was on board. It's right there, limiting the scope of Congressional power: the Presidential veto is in Article 1, not Article 2; no law-making without that process. It's not really about what powers the President can have, it's about what powers Congress doesn't have and so can't give away.
2.1.2006 12:32am
Marcus1 (mail) (www):
I'm speaking off the top of my head, but it seems a big problem with the line-item veto would be that Congress could give it to presidents it liked but then withhold it from presidents it didn't like. That would seem to give Congress an awful lot of power to jimmy with the balance of power between Congress and the Executive.
2.1.2006 12:35am
Should SCOTUS justices even go to this type of event? Obviously those who did were in the minority of the current sitting judges. Does anyone know of the historical attendance/avoidance of justices at SOTU addresses?
2.1.2006 12:49am
boonelsj (mail):
Remind me again why, with Republican control of both houses of Congress (and pretty good party discipline), he needs a line-item veto?

Anyway, I'm more worried that now I may never see the return on that money I've got invested in human-animal hybrid research...
2.1.2006 12:51am
I just went back and skimmed through Clinton v. City of New York (the line-item veto case). I had forgotten how broadly Justice Kennedy wrote his concurrence with respect to the separation of powers issue. In light of some other current issues (including other issues mentioned in the SOTU), people might find it interesting to check it out. I submit this teaser:

"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).
. . .
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 any one branch to influence basic political decisions."
2.1.2006 1:02am
Kovarsky (mail):
even a republican controlled congress needs to make compromises to get legislation. so, in order to get provision A passed, republicans will give democrats provision B. the inclusion of provision B will secure for republicans the votes they need to pass A, so you get a piece of legislation including A &B.

without a line item veto, the president has to accept the congressional compromise - take A &B together or not at all. with the line-item veto the president can (basically) retroactively undue the compromise.

unless i misunderstand the theory, i don't think the degree to which the line-item veto is effective at usurping compromise varies depending on whether there is a narrow majority or minority of the same party in congress.
2.1.2006 1:12am
In fact, the more I think about it, the more relevant this case might be to current events. As the majority and Justice Kennedy saw it, the precise problem with the line-item veto is that by giving the President to ability to cancel provisions that had already been signed into law, it delegated to the President the power to amend and repeal statutes. And in their view, the amendment or repeal of a statute must be carried out through the legislative procedures specified in Article I, and Congress could not constitutionally authorize the President to amend or repeal statutes outside of those Article I procedures.

Hmmm ... perhaps it is not such a mystery why the President wants to act as if this case does not exist.
2.1.2006 1:19am
KMAJ (mail):

One flaw in your premise, until the president signs it, it is not law. The line item veto occurs before it becomes law with his signature. Comgress can then override his veto with a two thirds vote. I would assume the line item veto works just like a regular veto as far as the override provisions go.

Is Clinton v. City of New York the only line item veto precedent ? Could it be challenged ? If it could, on what grounds would one challenge it ? I remember hearing somewhere about something called 'enhanced recission authority', is that a line item veto with a new name or is it different ?
2.1.2006 1:55am
Two Disclaimers: (1) Veering slightly off topic here. (2) I think Cindy Sheehan is both wrong and nuts.

That being said - I really hope a blogger here addresses Cindy Sheehan's arrest for "demonstrating in the Capitol" or "unlawful conduct." She wore a shirt that had a non-vulgar anti-war phrase on it, which she kept covered until taking her seat.

How is her arrest lawful? I can't think of a decent ground. Are the charges brought under laws that are valid TPM restrictions? Is the Capitol Building not a public forum? Is the shirt action and not speech? Does the action/speech fall into a proscribable category? I think "no" on all of these. Please, someone enlighten me.
2.1.2006 3:39am
jgshapiro (mail):
Why is everyone on this thread assuming that the president was talking about a statutory line-item veto? I thought Bush was appealing for a constitutional amendment. I don't remember him asking for this ability to be granted by statute.

Twas a time, not so long ago, when there was a movement for amendments giving the president a line item veto and requiring a balanced budget. Together, these were supposed to make it more likely that Congress would appropriate within its means. I just assumed Bush was lobbing the former idea out for new debate.

BTW, the president cannot necessarily undo a compromise needed to get approriations passed, because even a line-item veto can be overruled. If the majority refused to join in overruling a veto of some sort of grand compromise, you can bet they would have a hell of a time getting the minority to agree on a compromise necessary to get the *next* budget passed.

A line-item veto is not intended to allow the president to undo such 'grand compromises'. What a line-item veto does is allow the president to undo items slipped into the budget bill without a vote (earmarks) that could never have survived a vote on the merits. There are probably other ways to do this, but I imagine it is politically easier for the president to say no and force a vote than for your buddy on the same side of the aisle (or even on the other side of the aisle) to do so.
2.1.2006 3:47am
jgshapiro (mail):
Here is what he said:
By passing these reforms, we will save the American taxpayer another $14 billion next year and stay on track to cut the deficit in half by 2009. I am pleased that members of Congress are working on earmark reform, because the federal budget has too many special interest projects. And we can tackle this problem together if you pass the line-item veto.
No reference to passing a statute (or an amendment, for that matter).
2.1.2006 3:51am
Scaldis Noel:
I recall reading something, I believe on the Corner, that the version of the line item veto that is gaining some momentum is the enhanced recission authority. I believe that e.r.a. allows the president to withhold funding from specific line items, not actually eliminate them from the legislation. If I recall correctly, the article I read said that this was a statutory power presidents had until the mid 70s, until the law was changed.
2.1.2006 7:37am

First, to be clear, I was describing the Court's reasoning in Clinton, not necessarily my own. Indeed, I wouldn't mind at all a constitutional mechanism which the President could use to eliminate earmarks, and as I understand it there are several possibilities.

Anyway, you should read Clinton. As I understand it, the "line item veto" in that case was actually an authorization for the President to "cancel in whole" spending provisions that had already been signed into law. So, it did indeed occur after, not before, the President had signed the overall spending bill.

Whether that mechanism actually deserves the term "line item veto" is a question of semantics. What I am actually interested in is the Court's reasoning, and Justice Kennedy's concurrence in particular. As I noted, the important principle seems to be that Congress cannot constitutionally delegate the power to amend or repeal statutes that have been signed into law, because that would violate the separation of powers.

And I trust it is obvious to you why that principle has applications to other current issues.
2.1.2006 8:17am

I'm a little confused by your reasoning. Congress cannot "pass" an Amendment, but it can "pass" a statute. So, it seems to me the President is clearly talking about a statute, as he would be whenever he urges Congress to "pass" some measure in the SOTU.
2.1.2006 8:23am
nyejm (mail) (www):
Did it bother anyone else that the Line Item Veto Act did not have any riders attached to it?
2.1.2006 10:01am

Do you have a link or a cite to the statute? I was wondering about that, too.
2.1.2006 10:17am
SimonD (www):
I really don't think we should be giving much thought t amateur psychology from the columnist who wondered aloud who Humphrey's Executor was.
2.1.2006 10:35am
Marcus1 (mail) (www):
Sheehan, according to her story on dailykos, was arrested when she sat on a bus going through the capital, not at the event itself. For whatever that is worth.

I'm not sure how they arrest her, though I can maybe see excluding her. It seems in a lot of these cases, though, that the police don't really care whether their actions are legal or not.
2.1.2006 12:11pm
Mr Diablo:
What do we need a line-item veto for anyway? Bush has already made it clear that by adding notes to bills he is signing (as Dahlia Lithwick pointed out on Slate), he is acting as though he has the power to unilaterally amend acts of Congress by simply invoking executive power.

And besides, it's not like this administration gives a crap about what the Court says. These guys treated the Gitmo cases as VINDICATION of the WH position. The Bush colored glasses act as pretty amazing blinders.
2.1.2006 12:18pm
Quilltip (mail):
Setting aside the question of the legality of a statute granting the president power to veto specific provisions in a bill, such a grant of power seems unnecessary. Nothing stops a president from vetoing a bill in toto and telling Congress that he will continue to do so until certain provisions are excised. While such ultimatums, no doubt, would force the president and Congress to stand behind their positions in a very public way, and thus expose themselves to the attendant political pressures, I don't know that that is such a bad thing. What Bush needs is not a line item veto that buries debate, but the will and courage to veto fat-laden bills.
2.1.2006 1:16pm
While I have no personal knowledge of this...
It's very common for events that require tickets to have some kind of legal boilerplate. Usually some of it is listed on the back of the ticket, or if not it is available in some way to the original purchaser. (Often ignored.) In this case Cindy Sheehan was not the original receiver of the ticket and might never have been informed of the legal requirements. For a televised event such as this with so many high-ranking members of government in attendance, it's quite likely there was both a stipulation allowing all kinds of searches for concealed weapons as well as for disruptive devices (air horns) or indecorous materials (sloganeering t-shirts).
It was by no means a public gathering.
2.1.2006 1:18pm

Of course, such ticket disclaimers and statements of implied consent are often unenforceable.
2.1.2006 1:24pm
David Matthews (mail):
Re: The Sheehan Removal.

FWIW, the Congressional Security folks were booting everyone with political t-shirts, pro and con:
2.1.2006 1:28pm
Professor Kerr:

I believe the statute is DC Code Sec. 10-503.16(b).
2.1.2006 1:36pm

For everyone's use, here is that provision:

"(b) It shall be unlawful for any person or group of persons willfully and knowingly:

(1) To enter or to remain upon the floor of either House of the Congress, to enter or to remain in any cloakroom or lobby adjacent to such floor, or to enter or to remain in the Rayburn Room of the House or the Marble Room of the Senate, unless such person is authorized, pursuant to rules adopted by that House or pursuant to authorization given by that House, to enter or to remain upon such floor or in such cloakroom, lobby, or room;

(2) To enter or to remain in the gallery of either House of the Congress in violation of rules governing admission to such gallery adopted by that House or pursuant to authorization given by that House;

(3) To enter or to remain in any room within any of the Capitol Buildings set aside or designated for the use of either House of the Congress or any member, committee, subcommittee, officer, or employee of the Congress or either House thereof with intent to disrupt the orderly conduct of official business;

(4) To utter loud, threatening, or abusive language, or to engage in any disorderly or disruptive conduct, at any place upon the United States Capitol Grounds or within any of the Capitol Buildings with intent to impede, disrupt, or disturb the orderly conduct of any session of the Congress or either House thereof, or the orderly conduct within any such building of any hearing before, or any deliberations of, any committee or subcommittee of the Congress or either House thereof;

(5) To obstruct, or to impede passage through or within, the United States Capitol Grounds or any of the Capitol Buildings;

(6) To engage in any act of physical violence upon the United States Capitol Grounds or within any of the Capitol Buildings; or

(7) To parade, demonstrate, or picket within any of the Capitol Buildings."

If this is the right provision (and it seems right), I wonder if this would be classified as an intent to disrupt the orderly conduct of business case, or simply a "demonstration" case.
2.1.2006 2:08pm
Marcus1 (mail) (www):
Medis, others,

Did you catch the Dahlia Lithwick article today? Interesting (if plodding) piece, re: Bush ignoring cases or spinning their meaning in reverse. The relevant portion:
Should we dismiss these statements just because President Bush is so brazen in his claims? So willing to take legal positions that are undefended because they're legally indefensible? Will all this just go away someday, when a court dismisses these statements as excessive and unfounded? No. Because President Bush isn't trying to win this war in the courts. Thus far, he has faced each legal setback as though it never happened; or—more often—he's recast it as a victory. He doesn't care what the courts someday make of his signing statements, just as he didn't care what the courts made of his enemy-combatant claims. He views the courts as irrelevant in his pursuit of this war. These signing statements are dangerous because they repeat and normalize—always using seemingly boilerplate language—claims about the boundless powers of a "unitary executive." By questioning the principle of court review in the McCain statement, Bush again erodes the notion of judicial supremacy—an idea we have lived with since Marbury v. Madison. When he asserts that he—and not the courts—is the final arbiter of his constitutional powers, he is calling for a radical shift in the system of checks and balances.
The bolded passage linked to this article. My (brief) take is here.
2.1.2006 9:16pm

I think Dahlia is mostly right, although I do wonder to what degree the President's subordinates can rely on these signing statements as instructions, and obviously that does not give them much legal cover in any event.

However, I agree that there is only so much that the courts can do when a President decides to disregard the law. As I have frequently noted, that is primarily an issue for Congress. And given that setup, I actually appreciate his signing statements--they should help clarify for Congress what is really at stake. But if Congress is still not willing to do anything ... I think we have run out of remedies.
2.1.2006 11:27pm
vallalilly (mail):

Not everybody has accepted the idea of judicial supremacy because it isn't called for in the constitution. There are to be three co-equal branches; I went to public school so may be they were wrong. And you may or may not recall the reaction of President Jackson upon hearing a SCOTUS ruling. He said, paraphrasing, they made their ruling now lets see them enforce it.

And never mind those Dred Scott and Plessey rulings, thank GOD bigger minds have rejected a slavish devotion to precedent.

The struggle between the braches continues but all in all I think it is the power of Americans to control their own government that has been so badly eroded by the supremacy of the judiciary.
2.6.2006 1:21pm