The Executive Line Item Veto and the Judicial Power to Sever: What's the Difference?

Abstract

This essay focuses on one narrow aspect of the recent controversy surrounding the line item veto that has gone largely unnoticed to date--namely, the similarity between the President's exercise of that authority and the widely accepted power of the judiciary to sever unconstitutional provisions from previously enacted federal legislation. Courts routinely sever invalidated provisions from statutes even without an express delegation of authority to do so. In effect, the judiciary has asserted a limited line item veto power over legislation. Naturally, the two techniques of postenactment statutory "editing" without formally amending the legislation have different origins and applications, but they also share striking commonalities that cast serious doubt on the majority's Presentment Clause analysis in Clinton v. City of New York, 118 S. Ct. 2091, 2108 (1998).