Laying It on the Line: A Dialogue on Line Item Vetoes and Separation of Powers
In this Dialogue, constitutional pundits Confident and Doubtuful debate the Line Item Veto Act of 1996. They wrangle about the application of the Article I, 7 processes to the Act, the relevence of the legislative bargaining process to its constitutionality, and the merits of formalism and functionalism. As Confident becomes No-Longer-So-Confident, Doubtuful proposes a way to reconcile the seemingly irreconcilable "formalist" and "funcitonalist" 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 1 powers. At the time of writing this Dialogue, the Line Item Veto Act was, as the prologue indicates, awaiting a pronouncement fromt 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 formailism and functionalism.
H. Jefferson Powell & Jed Rubenfeld, Laying It on the Line: A Dialogue on Line Item Vetoes and Separation of Powers, 47 Duke Law Journal 1171-1211 (1998)
Available at: https://scholarship.law.duke.edu/faculty_scholarship/433