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Hastings Constitutional Law Quarterly

Abstract

For over a century, Presidents, regardless of their political affiliations, have sought the authority to exercise a line item veto on legislation passed by Congress. Such power was desired because it was believed that the line item veto would increase the President's leverage in negotiations with Congress and help them root out special interest provisions buried in omnibus bills. Despite Presidents' desire to attain a line item veto, Congress did not grant such authority because its constitutionality was at issue. Constitutional scholars asserted that the line item veto would violate the separation of powers doctrine because the President would be permitted to exercise lawmaking functions that belong solely to Congress. Although Congress hesitated for many years to grant the President line item veto authority, it finally authorized the President to exercise such power through the Line Item Veto Act of 1996.

The fact that the line item veto is now law has not halted the debate as to its constitutionality. This Note assesses the constitutionality of the Act by proposing and analyzing three characterizations of the line item veto. First, the line item veto may be characterized as a lawmaking authority. Although Congress can constitutionally delegate some authority to the President to make laws, the Act is not a permissible delegation of lawmaking power. Second, while the line item veto may function as an effectuation of the President's Article I veto, it is unconstitutional because it infringes on Congress' legislative powers. Finally, the line item veto may constitute power for the President to impound funds. Of the three characterizations, the impoundment theory is the strongest argument in support of the line item veto's constitutionality because the Constitution does not explicitly bar such authority. However, the impoundment theory fails because it redistributes the balance of power between Congress and the President in favor of the President. This Note concludes that regardless of the line item veto's characterization, the Line Item Veto Act is an unconstitutional violation of the separation of powers.

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