One of the memorable lines from Justice Scalia came in Clinton v. City of New York. In his dissent, Justice Scalia argued in favor of the constitutionality of the Line-Item Veto Act. He pointed out that the law did not actually grant the President the power to veto individual lines of a budget, as some Governors could do. Scalia believed that such a law would violate the Presentment Clause. Instead, he argued that the President’s veto power was limited and aligned with the Presentment Clause. So why did Justice Stevens’s majority opinion deem the statute unconstitutional? Scalia attributed it to the misleading title of the law!
The Line Item Veto Act’s title, whether intended for clarity or to fulfill a campaign promise, managed to deceive the Supreme Court.
Congress labeled it the “Line Item Veto Act,” and the Court interpreted it accordingly. Congress had tricked the Supreme Court! Classic Scalia wit. While I haven’t discussed this case in years, that sharp remark still stands out in my memory. It’s no wonder why no current Justice comes close to Scalia’s style, although Roberts had some impressive language in Loper Bright (more on that later).
In Fischer v. United States, Chief Justice Roberts employed a similar deceptive imagery, but with a different outcome. He argued against interpreting the obstruction statute in a way that would be a “elaborate pumpfake”:
If, as the Government contends, (c)(2) encompasses “all forms of obstructive conduct beyond Section 1512(c)(1)’s focus on evidence impairment,” Brief for United States 13, there would have been little reason for Congress to provide any specific examples at all. The breadth of subsection (c)(2) would overshadow (c)(1), rendering that narrower provision redundant. In fact, subsection (c)(1) would be an elaborate pumpfake: a list of four highly specific types of conduct, carried out with regard to a record, document, or object and “with the intent to impair the object’s integrity or availability for use in an official proceeding,” followed immediately in the next subsection—in the same sentence, no less—by a broader prohibition on all forms of obstructing, influencing, or impeding any official proceeding.
Essentially, the government’s interpretation renders Section 1512(c)(1) a pumpfake, and we should avoid such deception. In contrast, the Line Item Veto Act’s title was a deceptive move that fooled the Court. Quite ironic.
