The line-item veto? That almost certainly won’t determine who the GOP nominee is. But you can see why Mitt Romney brought it up in the Michigan debate. Romney is trying to distinguish himself from Rudy Giuliani as the more conservative choice. To question Giuliani’s commitment to fiscal restraint, he brought up the fact that then-mayor Giuliani joined the lawsuit successfully challenging the constitutionality of the Line Item Veto Act of 1996 – “the best tool the president has had” for cutting spending, said Romney. In 1998 the Supreme Court struck down the law by a vote of 6 to 3 in an opinion written by Justice Stevens and joined by Clarence Thomas and (in part) by Antonin Scalia. In reply to Romney, the former mayor turned the issue into one about … Bill Clinton. “Look,” he said, “the line item veto was unconstitutional. I fought Bill Clinton, I beat Clinton. It was unconstitutional.” Giuliani didn’t say this, but he also fought and defeated the Republican Congress: the Line Item Veto Act was one of only two items in the Contract with America that it actually passed. Clinton is a leading figure in the story because he used the law to veto some spending measures, including one for New York City, which drew Giuliani, which is to say the city, into the case as a plaintiff. The back-and-forth between Romney and Giuliani established that both would want a constitutional item veto. Presumably, they both have in mind the item veto President Bush has supported, and which appears not to be at odds with the Court’s ruling in Clinton v. City of New York. (It is going nowhere in this Congress.) Interestingly, the opening Giuliani gave Romney, but which the former Massachusetts governor failed to exploit, came when Giuliani made a deep bow to the Court. Said Giuliani: “You don’t get to believe about it, the Supreme Court has ruled on it. You can bang your head on the stone wall all you want.” Here Giuliani seemed to say that once the Court has spoken on an issue, you don’t get to “believe about” that issue as you still might like to. In one sense that’s true, since there’s a new case you have to take into account. But in another very important sense it’s not. Maybe Giuliani will be advised, by some aide quoting Lincoln, that a Court decision is not a thus sayeth the Lord, and thus beyond objection – that if citizens think the Court is wrong about something, they may contend against its ruling, including by re-litigating the matter, also by proposing (in a constitutional case) a constitutional amendment. Which brings us, Your Honor, to Roe v. Wade …
