Giuliani and Romney had a nice little debate yesterday about the line-item veto. In essence, Romney criticized Rudy for successfully challenging the constitutionality of the line-item veto, and thereby depriving the president of an important tool in the fight against wasteful spending. Rudy made two basic defenses: (1) the Supreme Court found the tool unconstitutional and (2) as mayor of New York it was his duty to bring the suit so the city would get more money.
As I said in my short post on the debate, I thought Rudy debated the issue more nimbly. But the debate aside, who has the better of the underlying argument?
The answer, I think, turns on whether the Supreme Court decided the line-item veto correctly. Giuliani’s argument that the Court’s decision absolves him of any blame strikes me as specious. The Supreme Court’s role as final arbiter of constitutional questions is a limited and pragmatic one. Its decisions resolve lawsuits and establish precedent, but they don’t end all argument. Roe v. Wade certainly didn’t end the constitutional argument about abortion, and conservatives would be justifiably reluctant to vote for the plaintiff in that case even though she won in the Supreme Court. More generally, I think it’s fair for conservatives to hold accountable a candidate who successfully advances a position about the constitution that conservatives disagree with.
Many conservatives agree with Justice Scalia’s dissent in the line-item case; others think the case was decided correctly. That issue is well beyond the scope of this post. My point is that Giuliani was wrong to the extent he argued that the Court’s decision, in itself, absolves him of criticism for bringing the case.
Giuliani’s second defense was that bringing the case served the interests of constituents. This argument may also be problematic. A mayor shouldn’t press an erroneous view of the law, much less the Constitution, in order to benefit his city. However, Giuliani’s position was at least colorable, and the issue needed to be resolved. But, again, by making his first argument, Giuliani showed too much deference to the Supreme Court. It probably worked on television, but I don’t think it works analytically.
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