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Laying It on the Line: A Dialogue on Line Item Vetoes and Separation of Powers
Rubenfeld, Jed Powell, H.
Rubenfeld, Jed
Powell, H.
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47DukeLJ98.pdf
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Abstract
In this Dialogue, constitutional pundits Confident and Doubtful debate the Line Item Veto Act of 1996. They wrangle about the application of the Article I, § 7 process to the Act, the relevance of the legislative bargaining process to its constitutionality, and the merits of formalism and functionalism. As Confident becomes No-Longer-So- Confident, Doubtful proposes a way to reconcile the seemingly irreconcilable "formalist" and "functionalist" Supreme Court decisions. Marshalling the constitutional text for support, Doubtful argues that the Court should take a checks and balances approach to congressional delegations of power to the executive, while maintaining a rigorous separation of powers review of Article I powers. At the time of the writing of this Dialogue, the Line Item Veto Act was, as the prologue indicates, awaiting a pronouncement from the Supreme Court. In Clinton v. City of New York, the Act was invalidated. However, the Dialogue stands not only as a strong dissent to the majority's opinion in that case, but as a powerful argument for a new conception of formalism and functionalism.