The Case for a Big Power Swap

By Michael Kinsley

Bitter arguments between the President and the Congress are built into our constitutional system. What isn't necessarily built in are the bitter arguments of recent years over the constitutional division of labor itself. Controversies over a wide range of issues -- independent-counsel prosecutions, Supreme Court nominees, funding of the Nicaraguan contras, the Persian Gulf War, the federal budget deficit -- all turned into fights about the separation of powers between the Legislative and Executive branches.

During the era of divided government, conservatives developed an enormous and historically uncharacteristic enthusiasm for presidential power. Conservative legal scholars produced elaborate theories establishing to their own satisfaction that the independent counsel is unconstitutional; that the President not only needs but already has a line-item veto over congressional appropriations; and so on. This trend culminated in President Bush's breathtaking assertion -- never put to the test -- that he could send half a million American troops into battle halfway around the globe without so much as a nod to Congress's constitutional power to "declare war."

Now divided government is gone. And already we can see the Republican enthusiasm for Executive authority fading and a new respect growing for the prerogatives of the legislature.

But Democrats also face a test of their principles. And with control of both branches, the Democrats are in a position to put their principles into practice. Democrats could serve the Constitution and the country by making a "grand bargain" between Congress and the White House. In foreign policy, the President should acknowledge and begin honoring Congress's war power. In domestic and budgetary policy, Congress should restore meaning to the President's veto power by giving him the line-item veto. Fair enough?

Congress's war power has become the most flagrantly disregarded provision in the Constitution. There have always been debates over the extent of the President's authority to respond to unexpected emergencies. But the real erosion began after World War II. During the cold war era, there were claims that the hair-trigger nuclear stalemate made the notion of consulting Congress obsolete. From Vietnam through the invasion of Panama, there were arguments about what was and was not a "war." In the 1980s the issue was usually whether Congress was trying to "micromanage" foreign-policy issues short of actually sending in the troops. By 1991, however, President Bush could claim with a straight face that he didn't need congressional approval for Operation Desert Storm: a deliberate, unhurried, post-cold war decision to start a war.

In the end, Congress approved Desert Storm. But only after America's prestige and hundreds of thousands of troops had been committed and the President had made clear he would go ahead with or without that approval. And since then there has been no talk of asking Congress's approval for further adventures in Somalia and Bosnia. As legal scholar John Hart Ely explains in a forthcoming book on this subject, restoring the war power is no special favor to the Legislative Branch. "The legislative surrender was a self-interested one: accountability is pretty frightening stuff." It's been too easy for members of Congress to play the hindsight game, supporting military adventures that turn out well and blaming the President for ones that turn out badly.

President Clinton faces the challenge of creating a post-cold war foreign policy. He seems to want it to be activist, including the possibility of military action in support of democracy and human rights. Especially given his own lack of military experience, he should be happy to abandon any claim to the right to commit U.S. troops unilaterally (except in genuine emergencies) -- a right he does not possess under the Constitution in any event.

The line-item veto is also a matter of forcing a delinquent branch of government to take responsibility for its actions (or rather, its inactions). In this case, the guilty party is the Executive Branch. For 12 years we have been hearing from Presidents that the budget deficit is the legislature's fault because "Congress appropriates every dime." That's true. But Presidents submit an annual budget, and neither Bush nor Ronald Reagan ever came close to submitting a balanced one.

) Critics of Congress have a point when they say the legislature has eviscerated the President's constitutional veto power by submitting gigantic, combination-platter spending bills, often at the last minute. The President then has a Hobson's choice of signing on to the whole thing or shutting down the government. The line-item veto, which 43 Governors (including the Governor of Arkansas) have in one form or another, would give the President authority to approve or disapprove individual spending proposals. It would also, thereby, deny him the luxury of blaming Congress for excessive spending.

A genuine line-item veto would require a constitutional amendment. But Congress could achieve the same result by agreeing to submit every appropriation and tax item as a separate bill for the President to sign or veto. Senator Bill Bradley has suggested adopting this practice as a two-year experiment. The Democratic-controlled Congress should have tried this experiment back when Republicans controlled the White House. It would have been a sparkling exercise in bluff calling. Now they can grant the power to one of their own. Politically, it would be no special favor to Clinton. But if he is serious about leading us out of the deficit, it is a burden he should be willing to accept.