About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

20 Cardozo L. Rev. 947 (1998-1999)
The Nondelegation Doctrine and the Separation of Powers: A Political Science Approach

handle is hein.journals/cdozo20 and id is 969 raw text is: THE NONDELEGATION DOCTRINE
David Epstein* & Sharyn O'Halloran**
The passage of the Line Item Veto Act' (LIVA) and its
subsequent demise at the hands of the United States Supreme
Court2 have led to a resurgence of interest in the nondelegation
doctrine. LIVA granted the President unprecedented authority to
cancel not only specific spending items in appropriations bills, but
certain targeted tax benefits as well. Opponents of LIVA consis-
tently argued that it infringed on the separation of powers by dele-
gating legislative authority to the Executive, and they urged the
courts to strike it down as a violation of the nondelegation doc-
trine. LIVA's supporters portrayed it as good public policy and a
permissible delegation of authority. Clinton v. City of New York3
thus serves as a convenient lens through which to view competing
theories of the nondelegation doctrine in particular, and the role of
delegation in a system of separate powers more generally.
Even though LIVA was eventually overturned on grounds
other than the nondelegation doctrine,' the majority opinion dis-
tinguished Clinton from Field v. Clark by embracing what Richard
* Department of Political Science and Stanford Graduate School of Business, Colum-
bia and Stanford University.
** Department of Political Science and the School of International and Public Affairs
and Hoover Institution, Columbia and Stanford University.
The authors gratefully acknowledge funding by the National Science Foundation
under grant 95-11628 and by the John M. Olin Foundation.
1 2 U.S.C. §§ 691-692 (Supp. II 1996). LIVA amends the Congressional Budget and
Impoundment Control Act of 1974, Pub. L. No. 93-344, 88 Stat. 297 (codified as amended
in scattered sections of 31 U.S.C.). The Supreme Court held LIVA unconstitutional in
Clinton v. City of New York, 118 S. Ct. 2091 (1998).
2 See Clinton v. City of New York, 118 S. Ct. 2091 (1998).
3 Id.
4 LIVA was ruled unconstitutional for violating the presentment clause. In the ma-
jority opinion, Justice Stevens stated: If the Line Item Veto Act were valid, it would
authorize the President to create a different law-one whose text was not voted on by ei-
ther House of Congress or presented to the President for signature. Id. at 2108.
5 143 U.S. 649 (1892) (upholding Congress's delegation of the authority to reduce tar-


What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most