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President George W. Bush got a lot of applause from Republican lawmakers during his State of the Union address Jan. 31 when he urged Congress to “pass the line-item veto” as a way of reducing pork-barrel spending. One small problem with the idea: The Supreme Court declared the line-item veto flat-out unconstitutional in 1998. The lawyers who successfully argued against the line-item veto before the high court back then were surprised to hear President Bush resurrect the idea now. “I thought, There they go again,” says Louis Cohen, senior counsel at WilmerHale, who represented Idaho potato growers affected by a line-item veto executed by President Bill Clinton. “I really think the idea is dead.” So what was Bush thinking? Could he be hoping that with his nominees John Roberts Jr. and Samuel Alito Jr. safely confirmed — both of whom were labeled as pro-executive power — the new Supreme Court will look more favorably toward the increased powers the line-item veto gives a president? Not likely, since neither the math nor the ideology seems to support that theory. It was an odd alliance that struck down the line-item veto in 1998: then-Chief Justice William Rehnquist, and Justices John Paul Stevens, Anthony Kennedy, David Souter, Clarence Thomas, and Ruth Bader Ginsburg. Even if Alito and Roberts support the line-item veto, it would still be a 5-4 vote against if all the other justices remain in place. But those who argued the case think neither Alito nor Roberts, given the chance, would necessarily embrace the line-item veto. “This is not an issue where there is a clear division between liberals and conservatives,” says Cohen. Charles Cooper of Cooper & Kirk, who also argued against the veto, recalls that as a Reagan Justice Department official — with Alito as his deputy — he told his bosses “with trembling hands” that the line-item veto was unconstitutional.
Tony Mauro can be contacted at [email protected].

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