To give the other side its due, the usually excellent Douglas Kmiec writes today that Mayor Giuliani was wrong about the constitutionality of the line-item veto. What Kmiec leaves out is that in the battle of high court conservatives, Clarence Thomas and William Rehnquist outpointed Justice Scalia. In most cases wher ethey disagree, I tend to side with Thomas over Scalia.
Now I have been a long-time proponent of the line-item veto, going back to a column I wrote on it when I was in college circa 1983 or so. But it is worth noting that even back then, I (and everybody else) assumed that it would require a constitutional amendment to implement such a veto. I was on the Hill as a member of the Leadership’s press operations when the statutory line-item veto was passed, and even then I thought it was unconstitutional as written even though I fervently hoped the court would find it otherwise. Kmiec’s arguments just don’t wash: The Constitution gives Congress the power of the purse, and the president is NOT entitled to pick and choose mere parts of bills to approve and not approve. Yes, I think he OUGHT to have the means of doing so, but that doesn’t mean that he DOES have such means, constitutionally. President Nixon was WRONG when he impounded certain spending, and the principle is roughly the same here.
In short, Romney was wrong and Giuliani was right.