Laying It on the Line: A Dialogue on Line Item Vetoes and Separation of Powers (with H. Jefferson Powell), 47 Duke Law Journal 1171 (1998)
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.
Date of Authorship for this Version
Rubenfeld, Jed, "Laying It on the Line: A Dialogue on Line Item Vetoes and Separation of Powers" (1998). Faculty Scholarship Series. 4176.