November 16, 2007


The Entertaining Evolution of Mitt & Rudy (Steve Chapman, 10/18/07, Real Clear Politics)

Contrary to Romney's recollection, it was not Giuliani who took away the line-item veto but the Supreme Court. Among the justices who voted to strike it down were two justices revered on the right: William Rehnquist and Clarence Thomas.

They voted that way because the line-item veto defied the clear intent of the framers -- who stipulated that the president may sign a bill or veto a bill, but may not sign the whole and then veto a part, as this measure allowed. Anytime a Republican presidential candidate floats the proposition that Clarence Thomas is not conservative enough on matters of constitutional interpretation, he's not doing himself any favors.

But that's not the least believable notion advanced by Romney. His implication is that when an unconstitutional law serves worthy purposes, conservatives should forget the Constitution and keep the law. In Romney's eyes, Giuliani's sin was not being wrong about the statute, but being right. Had he just stayed out of court, the nation could have enjoyed indefinitely the benefits of an illegal expansion of President Clinton's authority.

Almost as outlandish as Romney's attack is Giuliani's defense, which is to cast himself as a lonely guardian of the Constitution. In fact, Giuliani used the Constitution mainly for target practice. Notes famed lawyer Floyd Abrams, "Over 35 separate successful lawsuits were brought against the city under Giuliani's stewardship arising out of his insistence on doing the one thing that the First Amendment most clearly forbids: using the power of government to restrict or punish speech critical of government itself."

When he challenged the line-item veto, in a case involving Medicaid funds, the mayor's chief concern was not legal principle but cash. "In an interview today," reported The New York Times in 1997, "Mr. Giuliani said he was filing the suit because the president's veto had jeopardized the state's system for financing care for the needy, most of whom live in New York City." Giuliani said, "What I'm concerned about is that New York is being treated unfairly and that we get the money we are entitled to."

There was his line in the sand: He would not tolerate any infringement on the separation of powers that cost his constituents money. Under him, the city's position was exactly what it would have been if Democrat David Dinkins, who lost to Giuliani in 1993, had still been mayor.

So there are the adversaries on the line-item veto: Mitt Romney dismissing a violation of the clear language of the Constitution, and Rudy Giuliani making a rare defense of the Constitution in an effort to keep a place at the federal trough. But their disagreement at least provides a definitive answer on which candidate is the authentic conservative: Neither.

Posted by Orrin Judd at November 16, 2007 5:00 AM

Rudy must really be worrying you.

First, what Chapman ridicules as Giuliani only being concerned with the money, not the principle, is what lawyers call "standing." The Constitution requires that people bringing suit in federal court actually have something tangible on the line and not be suing just to interject themselves into somebody else's business -- a proposition that the courts are too lax about.

Second, I'd guess that both you and I would disagree with Floyd Abrams about what constitutes a violation of the First Amendment (and not so much guess as know from experience).

Posted by: Ibid at November 16, 2007 8:51 AM