The Volokh Conspiracy

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Faking Out The Supreme Court


One of my favorite Scalia lines came in Clinton v. City of New York. In dissent, Justice Scalia would have upheld the constitutionality of the Line-Item Veto Act.  He explains that the law in fact does not give the President the ability to veto individual lines of a budget–a power that some Governors have. That law, Scalia reasons, would violate the Presentment Clause. Instead, Scalia counters that the President's power is far more narrow, and comports with the Presentment Clause. Why then does Justice Stevens's majority opinion find the statute unconstitutional? Scalia blames the title of the law!

The title of the Line Item Veto Act, which was perhaps designed to simplify for public comprehension, or perhaps merely to comply with the terms of a campaign pledge, has succeeded in faking out the Supreme Court.

Congress called it the "Line Item Veto Act," so the Court treated it as such. Congress faked out the Supreme Court! Classic Scalia line. I haven't taught the case in nearly a decade, but the zinger is still fresh in my mind. There is a reason why no one on the current Court comes close–though Roberts had some excellent prose in Loper Bright (more on that later). 

In Fischer v. United States, Chief Justice Roberts used a similar faker-imagery, with just the opposite effect. He explained that the Court should not read the obstruction statute in such a manner that it would be an "elaborate pumpfake":

If, as the Government asserts, (c)(2) covers "all forms of obstructive conduct beyond Section 1512(c)(1)'s focus on evidence impairment," Brief for United States 13, there would have been scant reason for Congress to provide any specific examples at all. The sweep of subsection (c)(2) would consume (c)(1), leaving that narrower provision with no work to do. Indeed, subsection (c)(1) would be an elaborate pumpfake: a list of four types of highly particularized conduct, performed with respect to a record, document, or object and "with the intent to impair the object's integrity oravailability for use in an official proceeding," followed in the very next subsection—in the same sentence, no less—by a superseding prohibition on all means of obstructing, influencing, or impeding any official proceeding.

In other words, the government's reading renders Section 1512(c)(1) a pumpfake, and we should avoid pumpfakery. By contrast, the title of the Line Item Veto Act was a pumpfakery that faked out the Court. Go figure.