The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: SCR 7064
INTRODUCER: Fiscal Policy Committee
SUBJECT: Federal Budget Line Item Veto
DATE: February 20, 2024 REVISED: 2/19/24
ANALYST STAFF DIRECTOR REFERENCE ACTION
Parsons Yeatman FP Submitted as Comm. Bill/Fav.
1. Parsons Twogood RC Favorable
I. Summary:
Line-item vetoes allow the head of an executive branch of government to reject certain
provisions of bills, while allowing other provisions to become law. Congress passed the Line
Item Veto Act (LIVA) of 1996 to give the President of the United States the ability to veto
certain appropriations by line item. The U.S. Supreme Court found LIVA unconstitutional,
noting that a change that gives the President this authority must come through an amendment to
the U.S. Constitution.
Article V of the U.S. Constitution provides the specific process for amending the document.
Congress may directly propose amendments to the Constitution, which is the method that has
been used for each of the 27 amendments ratified since the Constitution went into effect.
Alternatively, upon application by the legislatures of two-thirds of the states, Congress must call
a convention for the purpose of proposing amendments. A proposed amendment goes into effect
once ratified by the legislatures or state conventions of three-fourths of the states; the method of
ratification being solely the choice of Congress.
The concurrent resolution constitutes the state’s application to Congress under Article V of the
U.S. Constitution to call a convention for the sole purpose of considering and proposing a
constitutional amendment giving the President authority to eliminate one or more items of
appropriations while approving other portions of a bill.
This concurrent resolution does not have a fiscal impact on the state or local governments.
BILL: SCR 7064 Page 2
II. Present Situation:
Amending the United States Constitution
Article V of the U.S. Constitution1 provides the exclusive process for amending the document.2
Congress may directly propose amendments to the Constitution, the method used for each of the
27 amendments ratified since the Constitution went into effect. Alternatively, upon application
by the legislatures of two-thirds of the states,3 Congress must call a convention for the purpose of
proposing amendments. A proposed amendment goes into effect once ratified by the legislatures
or state conventions of three-fourths of the states;4 the method of ratification being solely the
choice of Congress.
State Applications for an Article V Constitutional Convention
Article V requires application to be made by a state’s legislature, meaning the representative
body authorized to make laws and not referring generally to a state’s legislative process.5 The
specific text does not refer to the authority of the President or a Governor to approve or veto
legislation6 and the Governor’s approval is not required.
Under Article V, Congress has the exclusive authority to review state applications and determine
whether they count toward the two-thirds requirement. While Congress has not specified the
form, structure, or content of a valid state application,7 the accumulation of pending applications
from the various states shows Congress groups applications according to the issues expressly
stated by the petitioning state rather than simply counting the total number of applications. For
example, the current 27 applications seeking a convention on a balanced federal budget
amendment are not combined with the four applications requesting a convention for an
1
“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this
Constitution, or, on the application of the Legislatures of two thirds of the several States, shall call a Convention for
proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when
ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the
other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the
Year One thousand eight hundred and eight shall be in any Manner affect the first and fourth Clauses in the Ninth Section of
the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” Art. V, U.S.
CONST
2
“The language of the article is plain, and admits of no doubt in its interpretation. It is not the function of courts or legislative
bodies, national or state, to alter the method in which the Constitution has fixed.” Hawke v. Smith, 253 U.S. 221, 227 (1920).
See Henry Paul Monaghan, We the People[s],Original Understanding, and Constitutional Amendment, 96 Colum. L. Rev.
121, 127 (1996); Arthur Earl Bonfield, Proposing Constitutional Amendments by Convention: Some Problems, 39 Notre
Dame L. Rev. 659 (1964).
3
Currently, 34 states.
4
Currently, 38 states.
5
Hawke, supra note 2 at 227.
6
Sen. Sam J. Ervin, Jr., Proposed Legislation to Implement the Convention Method of Amending the Constitution, 66 Mich.
L. Rev. 875, 888-889 (1968); See also art. I, s. 7, cl. 2, U.S. CONST.; art. III, s. 8(a), FLA. CONST.
7
Legislation previously was proposed but never enacted. See Kenneth F. Ripple, Article V and the Proposed Federal
Constitutional Convention Procedures Bills, 3 Cardozo L. Rev. 529, 530-533 (1981-1982); Ervin, supra note 6 at 885. See
also Mary M. Penrose, Conventional Wisdom: Acknowledging Uncertainty in the Unknown, 78 Tenn. L. Rev. 789, 796
(2011), citing separate prior legislation filed by Senator Sam Ervin and Senator Jesse Helms.
BILL: SCR 7064 Page 3
amendment barring discrimination in public schools to satisfy the necessary two-thirds
requirement and call a convention.8
Article V requires neither a state application nor the congressional call for a convention to
include the specific text of a proposed amendment. Article V authorizes applications to Congress
to call a convention “for proposing [a]mendments,” apparently requiring the convention to study,
debate, and compose the terms of a proposed amendment within the scope of issues authorized in
the call.9 As Article V does not restrict the scope of a state’s application, states may request a
general convention for any purpose or a convention limited only to certain issues.10
There is no court decision on whether a time limit applies to state applications. However, the
U.S. Supreme Court determined Congress has sole authority to set a time limit for states to ratify
proposed amendments.11 Federalist Papers 43 and 8512 imply that applications for a convention
should be reasonably contemporaneous, addressing a particular problem or issue recognized by
at least two thirds of the states as requiring consideration of constitutional amendment.
Calling an Article V Convention on Application by the States
Article V states that “Congress…on the Application of the Legislatures of two thirds of the
several states, shall call a Convention…” (emphasis supplied). As the U.S. Supreme Court has
interpreted the text as “plain” and its interpretation “admits of no doubt,”13 the general consensus
appears to be that once two-thirds of the states apply for a convention on a common topic,
Congress has no discretion and must call for the requested convention.14
Article V is silent on such matters as the selection of delegates by the states, voting requirements
at the convention, and the procedural rules of the convention. Under the Supremacy Clause,15
because Congress would be exercising its national power provided in Article V, congressional
action on these issues would be controlling, particularly on national matters such as the date,
time, place, and financing of the convention. Congress also could determine the number of votes
allocated to each state and establish uniform requirements for the selection, guidance, removal,
and replacement of state delegates. Absent congressional action, each state may be able to decide
such matters for itself.
8
See Selected Memorials, Office of the Clerk of the United States House of Representatives, available at
https://clerk.house.gov/SelectedMemorial (last visited Jan. 30, 2024).
9
Michael A. Almond, Amendment by Convention: Our Next Constitutional Crisis, 53 N.C. L. Rev. 491, 513 (1975); Robert
M. Rhodes, A Limited Federal Constitutional Convention, 26 Fla. L. Rev. 1 (1973).
10
William W. Van Alstyne, A Response to Justice Thomas Brennan’s Remarks at the Thomas M. Cooley Law School Article
V Symposium, 28:1 Thomas M. Cooley L. Rev. 51, 54 (2011); Ripple, supra note 7 at 548; William W. Van Alstyne, The
Limited Constitutional Convention – The Recurring Answer, 1979 Duke Law Journal 985; Rhodes, supra note 9 at 18.
11
Coleman v. Miller, 307 U.S. 433, 454 (1939); Dillon v. Gloss, 256 U.S. 368, 375-376 (1921).
12
See James Madison, The Federalist No. 43 (January 23, 1788); Alexander Hamilton, The Federalist No. 85 (May 28,
1788).
13
Hawke, supra note 2 at 227.
14
Michael B. Rappaport, The Constitutionality of a Limited Convention: An Originalist Analysis, 81 Constitutional
Commentary 53, 80 (2012); Gerald Gunther, Constitutional Brinksmanship: Stumbling toward a Convention, 65 A.B.A. J.
1046, 1048 (1979); Almond, supra at 498; Ervin, supra note 6 at 885; Bonfield, supra note 2 at 675. See also Alexander
Hamilton, The Federalist No. 85 (May 28, 1788).
15
Art. VI, cl. 2, U.S. CONST.
BILL: SCR 7064 Page 4
Florida Control of Delegates to an Article V Constitutional Convention
The Article V Constitutional Convention Act16 provides guidelines for Florida to qualify,
appoint, remove, and recall delegates to an Article V constitutional convention. These statutes
would control absent express directions by Congress on the same issues, whether in the
convention call itself or established in separate federal legislation.17
Veto Power and Line-item Vetoes
The President, along with the governor of every state,18 has the ability to reject bills and return
them back to the respective legislative body — an action otherwise known as a veto.19 This
power, outlined in the federal and state constitutions respectively, is limited to signing or
returning bills in their entirety.20 Line-item vetoes are a subset of the general veto power; their
purpose is to reject specific portions of a bill.21
Line-item veto power is most commonly associated with striking certain appropriations from a
legislatively created budget, while accepting the other spending provisions.22 In that context, an
executive officer without line-item veto authority may either reject the entire proposed budget or
approve it. Forty-four states’ constitutions specifically include an executive line-item veto
power.23 Several presidents have argued the necessity of more executive budgetary influence,
specifically in the form of line-item veto power.24
Line Item Veto Act of 1996 (LIVA)
LIVA was passed by Congress in 1996 and took effect in 1997.25 LIVA gave the President the
ability to “cancel certain items in appropriations and entitlement measures and also certain
narrowly applicable tax breaks” within legislation while otherwise signing into law the rest of the
16
Ss. 11.93-11.9352, F.S.
17
See art. VI, cl. 2, U.S. CONST., the “Supremacy Clause.”
18
Governors: Powers and Authority, National Governors Association, https://www.nga.org/governors/powers-and-authority/
(last visited Jan. 30, 2024); “If he approve [the bill] he shall sign it, but if not he shall return it, with his Objections...” Art. I,
s. 7, cl. 2, U.S. CONST.
19
Legal Information Institute, Veto, Cornell Law School, https://www.law.cornell.edu/wex/veto (last visited Jan. 31, 2024);
see also Governors: Powers and Authority, National Governors Association, https://www.nga.org/governors/powers-and-
authority/ (last visited Jan. 30, 2024).
20
The Presidential Veto and Congressional Veto Override Process, National Archives and Records Administration,
https://www.archives.gov/files/legislative/resources/education/veto/background.pdf (last accessed Jan. 30, 2024).
21
Legal Information Institute, Line-item veto, Cornell Law School, https://www.law.cornell.edu/wex/line-item_veto (last
visited Jan. 30, 2024).
22
Id.
23
Separation of Powers: Executive Veto Powers, National Conference of State Legislatures (updated Nov. 16, 2022),
https://www.ncsl.org/about-state-legislatures/separation-of-powers-executive-veto-powers (last visited Jan. 30, 2024).
24
Schmitt at 171-72; see also Virginia A. McMurtry, Item Veto and Expended Impoundment Proposals: History and Current
Status, Congressional Research Services (updated June 18, 2010),
https://crsreports.congress.gov/product/pdf/RL/RL33635/20 (last visited Jan. 30, 2024).
25
Virginia A. McMurtry, Item Veto and Expended Impoundment Proposals: History and Current Status, Congressional
Research Services (updated June 18, 2010), https://crsreports.congress.gov/product/pdf/RL/RL33635/20 (last visited Jan. 30,
2024).
BILL: SCR 7064 Page 5
bill.26 While LIVA was in effect, then-President Clinton exercised this line item veto power 82
times within federal appropriations acts.27
In 1998, the U.S. Supreme Court struck down LIVA as unconstitutional, because it violated the
Presentment Clause.28 The Court emphasized that the Presentment Clause requires the President
to either accept and sign into law a whole bill, or reject and return to Congress a whole bill;29 by
striking certain provisions, the President improperly amends legislation.30 The Court further
explained that an executive removal of any portion of text passed by both chambers results in a
document which does not comply with the Framers’ procedures outlined in the Constitution.31
The Court held that if a change were to be made to the President’s role in “determining the final
text” of legislation, it would need to be done through the procedures for constitutional
amendments outlined in Article V.32
Florida Line-item Veto Provisions
The Florida Constitution states that the “governor shall be the chief administrative officers of the
state responsible for the planning and budgeting for the state.”33 The governor is granted the
power to veto specific line items in a general appropriations act or any specific appropriation in a
substantive act containing an appropriation.34 The Legislature can override a governor’s line-
item veto with a two-thirds vote of each house, just as it can with a standard veto.35
III. Effect of Proposed Changes:
The concurrent resolution is the state’s application to Congress under Article V of the U.S.
Constitution to call a convention for the sole purpose of considering and proposing a
constitutional amendment authorizing the President to eliminate one or more items of
appropriation while approving other portions of a bill.
The concurrent resolution states that it is a continuing application until the required two-thirds of
the states’ legislatures have made similar applications on the same subject, and proposes that
other state legislatures similarly apply to Congress to call for a convention regarding such an
amendment. The concurrent resolution also provides that the application is revoked and
withdrawn, nullified, and superseded as if never passed, retroactive to the date of passage, if the
application is used to support calling a convention on any other subject.
26
Id. at 8.
27
Id. at 11.
28
Clinton v. City of New York, 524 U.S. 417, 421 (1998).
29
Id. at 440.
30
Id. at 442.
31
“Something that might be known as ‘Public Law 105-33 as modified by the President’ may or may not be desirable, but it
is surely not a document that may ‘become a law’ pursuant to the procedures designed by the Framers of Article I, § 7 of the
Constitution.” Id. at 448-49.
32
Id. at 449.
33
Art. IV, s. 1(a), FLA.CONST.
34
Art. III, s. 8(a) and s. 19(b), FLA.CONST.
35
Art. III, s. 8(c), FLA.CONST.
BILL: SCR 7064 Page 6
The concurrent resolution requires copies of the application to be dispatched to the U.S.
President, the President of the U.S. Senate, the Speaker of the U.S. House of Representatives,
each member of the Florida delegation to the U.S. Congress, and the presiding officer of each
house of the legislature of each state.
IV. Constitut