What a difference 30(ish) years makes.
In 1996, Congress defanged itself by giving President Clinton line-item veto authority over appropriations and legislation that Congress had passed (Line Item Veto Act of 1996). The GOP, which controlled both houses of Congress, pushed the bill through.
Two years later, the Supreme Court of the United States said wait a minute (6-3). Nope. No can do. Not constitutional.
But here we are in 2025. Chief Justice Roberts, using the shadow docket, has allowed President Trump to withhold about “$4 billion in congressionally approved foreign aid.”
In a brief order, the majority said the government met the standard for urgent preliminary relief, though it emphasized that Friday’s order “should not be read as a final determination on the merits.”
The fiscal year ends on September 30, 2025. The SCOTUS has given Trump line item veto: money not allocated before the fiscal year ends rolls back into coffers for reassignment.
This legal fight has been going on since February. That’s when both Roberts and Amy Coney Barrett joined Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson (5-4 decision) and sent Trump’s appeal back to the district court.
On September 8, Roberts granted an emergency stay allowing Trump to ignore the district court “order to pay certain congressionally appropriated funding.”
According to the SCOTUS blog, “it was the third time that the Trump administration had come to the Supreme Court seeking temporary relief in the challenge to the funding freeze.”
The first challenge to a lower court order happened on February 26, 2025 after U.S. District Judge Amir Ali ruled against the Administration. Trump appealed; the SCOTUS sent the case back. Ali then “ruled that the funding freeze likely violated both federal law and the Constitution.” Trump again appealed. And again. Roberts accepted the third appeal and then sat on it until Friday.
Contrast that with the SCOTUS decision in 1998 that a line item veto was contrary to the US Constitution. EVEN Clarence Thomas concurred.
The majority found that the Act was unconstitutional based on the Presentment Clause of the Constitution, which provides what Stevens argued was the only accepted way to promulgate a law. He felt that the Constitution implicitly disapproved of unilateral executive action in repealing parts of laws, although there was no textual evidence to support either side. After researching the historical background of the Presentment Clause and other constitutional provisions, Stevens held that a President must apply the veto power to an entire law rather than sections of it.
- John Paul Stevens (Author)
- William Hubbs Rehnquist
- Anthony M. Kennedy
- David H. Souter
- Clarence Thomas
- Ruth Bader Ginsburg
Anthony M. Kennedy wrote a concurrence. Stephen G. Breyer dissented. Antonin Scalia split the baby (authored a concurrence and dissent).
Once again, this SCOTUS demonstrates a radical vision of its both role and that of the Congress: both are subservient to the presidency.
The Impoundment Control Act (1974) grants the President the authority to appeal to Congress when he wants to impound (not spend) allocated monies. To me, this is the relevant portion of that Act and why the SCOTUS should have directed Trump to allocate the funds. From the GAO:
Once a recission is proposed to Congress, the President can withhold the budget authority for 45 days while Congress is in continuous session. Unless Congress completes action on a rescission bill to approve the proposed rescission within that time, the budget authority must be made available for obligation. 2 U.S.C. §§ 682(3), 683(b), 688.
Trump made no such appeal in a timely fashion. He just wrote an executive order, then ignored Congress until 45 days before the end of the fiscal year
Note: I am not a lawyer. I’m drawing political policy inference. If the line-item veto was unconstitutional in 1998, it’s unconstitutional today. The SCOTUS does not need a full argument from the DOJ to uphold that earlier ruling. Instead, in effect it overturned that decision due to the upcoming fiscal year end. Disgraceful.
Known for gnawing at complex questions like a terrier with a bone. Digital evangelist, writer, teacher. Transplanted Southerner; teach newbies to ride motorcycles. @kegill (Twitter and Mastodon.social); wiredpen.com