The Worst Supreme Court Decisions in History is the title of a new book I am writing. It begins by identifying what makes a Supreme Court decision bad, an issue on which reasonable people can disagree. For me, the most important criterion for what makes a Supreme Court decision bad is its long-term consequences. Precedents are particularly pernicious when they cannot be fixed later, when their unanticipated consequences become apparent.
By this criterion, Clinton v. City of New York is one of the worst Supreme Court decisions in history. In that 1998 decision, the Supreme Court held, 6–3, that the line-item veto, which empowered presidents to veto portions of a bill without vetoing others, violated the Constitution. According to the court, the line-item veto impermissibly allowed the president to amend laws unilaterally.
The court was wrong. The line-item veto did not give the president the power to enact laws not passed by Congress. On the contrary, it only allowed presidents to veto parts of them. The presidential veto power created by the Constitution is an important check against bad laws, particularly those that misspend tax money.
True, in theory it is possible that Congress would not have passed the rest of a bill without the portion that the president vetoed. But that speculative possibility could have easily been handled by holding that the rest of the bill did not go into effect automatically but had to go back to be reconsidered by Congress. Instead, the court reinstated the part that the president had vetoed, thereby nullifying the president’s veto power unless he or she was willing to veto the whole thing.
The recent 4,000-page $1.7 trillion monstrosity of omnibus spending, including a long list of absurd projects, illustrates why the court’s decision in Clinton v. New York was so harmful. What the court did not take into account back in 1998 is that by requiring a president to veto all or none of a bill, the Court was giving Congress a huge incentive to enact veto-proof spending by bundling thousands of pages into a single bill that must be passed a few days before the government runs out of money and would shut down. By that one ill-advised decision, the Supreme Court destroyed “regular order,” the process by which Congress used to pass budgets and individual spending bills, and undermined the presidential veto as an effective check on Congress.
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It is nearly impossible to correct this mistake. Because it is a technical “separation of powers” decision about the relationships among branches of government, it is hard to imagine a mass movement to overrule it by constitutional amendment. An amendment to reinstate the line-item veto was proposed in 2006 but it got nowhere. Why would it? While some members of Congress complain about the destruction of regular order and “monstrous” spending in “omnibus” bills to fund the government, most members are happy to have a way to enact their pet projects in a way that a president cannot veto. True, President Joe Biden never met any special interest spending to which he objected, but some more courageous presidents have vetoed reckless spending bills.
But if the consequences of Clinton v. City of New York are so bad, why can’t the Supreme Court just overrule it, like it did Roe v. Wade? Two reasons: (1) the consequences of destroying the budgetary process by undermining the presidential veto as a check on Congress are not obvious, and (2) as long as presidents abide by existing law, which does not provide for a line-item veto after the court’s decision, no case or controversy will arise in which the court can reconsider its ill-advised decision.
So, yes, Clinton v. City of New York is surely one of the worst Supreme Court decisions in history. Its unintended consequences enabled Congress to spend its way to our $31.5 trillion national debt, almost 10 times greater than the $3.8 trillion of national debt in 1998 when the case was decided.