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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 AND THE SEPARATION OF POWERS: A POLITICAL SCIENCE APPROACH David Epstein* & Sharyn O'Halloran** INTRODUCTION 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- 947

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