Oct 272007

Like me, The Main Adversary has been greatly influenced by George Will’s arguments against the line-item veto.

But having thought it over a little more, there is at least one point I’d argue with.

But were a president empowered to cancel provisions of legislation, what he would be doing would be indistinguishable from legislating. He would be making, rather than executing, laws, and the separation of powers would be violated.

I don’t think this is true.

When a court strikes down legislation, that is not considered the same as legislating. We make a distinction between initiating a piece of legislation and saying no to it.

When a state supreme court told a state legislature that it had six months to write a law to enable gay marriage, THAT was legislating. That was a usurpation of the law-making power. But when it overturns a law banning gay marriage, whether we agree with it or not, that is not a usurpation of the legislature’s job. Rather, it is a check on the legislative power.

When a state supreme court tells a legislature that it must raise taxes to provide funds for schools, that, too, is legislating. When a state supreme court overturns a law providing funds for private schools, that could well be within its powers to act as a check on the law-making power.

By George Will’s logic, we could have no checks and balances, because any time the courts or the executive say no, that would be indistinguishable from legislating.

I don’t see how the fact that it’s one provision of a law vs a whole law that’s being vetoed would change things on those grounds. It is true that the line-item veto has been declared to be unconstitutional — but it can hardly be on the grounds that it’s indistinguishable from legislating. There is a very clear distinction between the two.

  • You just described two recent judicial events here in Maryland courts ordering the legislature to fund schools and court ruling on gay marriage.

    The Maryland court ordered the governor to fully fund a legally mandated school funding program that our legislature passed without dedicating a funding source.

    And the Maryland Supreme Court threw the gay marriage issue back to the legislature rightly ruling that that issue should be decided in the political arena.