Clinton V. City of New York - Critical Response

Critical Response

Michael B. Rappaport argued that the original meaning of the Constitution does not apply to certain parts of the nondelegation doctrine, relying on his interpretation of the Executive Power Vesting Clause. Under this view, "laws that authorize the withdrawal of money from the treasury and which have traditionally taken the form of authorizing a certain amount to be spent for particular programs ... are not subject to the nondelegation doctrine." He further criticized the majority opinion for failing to satisfactorily justify its application of a stricter standard to the delegation of cancellation authority than it had used in the past for other executive delegations. In Rappaport’s opinion, "...the Court’s approach to cancellation authority has no basis in text, structure and purpose, or precedent."

J. Stephen Kennedy wrote that the majority of the Supreme Court was sufficiently concerned with the constitutional challenges to the line item veto presented to declare the act wholly unconstitutional, instead of relying on other traditional and less sweeping ways of correcting acts of Congress. In his view, “the Court’s decision sent a clear message of finality for any future use of the line item veto.” Kennedy also noted that while the majority relied on a strict interpretation or literal textual reading of the Presentment Clause contained in Article I of the United States Constitution, Justice Scalia, in his dissent, “stray somewhat from his usual strict constructionist approach ... by stressing that the President’s act of cancellation would only occur after satisfaction of the Presentment Clause.”

Steven F. Huefner wrote that "Although the Presentment Clause analysis of the Line Item Veto Act has superficial appeal, it ultimately does not withstand scrutiny," arguing that the Court should have relied on the nondelegation doctrine in order to invalidate the Act, as it provided a superior basis for such a decision. Huefner named two main implications of the Court’s refusal to use the nondelegation doctrine. First, it suggests that the Court seems unready or unwilling to alter the existing interpretation of the nondelegation doctrine. Second, the Court has shown that it is willing to rely upon alternative rationales to achieve the same result "as would a more robust nondelegation doctrine rationale". This approach is significant because in theory, such a rationale could endanger previously accepted delegations to the executive.

Roy E. Brownell II criticized the Clinton administration for its exercise of the Line Item Veto Act, charging that it should have restricted its cancellation powers only to statutory provisions that remain in the realm of national security. He argued that had the Clinton administration limited its use of the Line Item Veto Act in this fashion, it would have ensured that when the constitutionality of the Act was inevitably challenged, the challenge would have been based on terms most favorable to the Executive. Brownell suggested that a test case brought forth on the grounds of national security would have likely acknowledged the existence of "National Security Rescission", "a narrow statutory construction limiting the area of presidential cancellation power to within the field of national security. Such a result...would have assured that the President maintained cancellation authority over a sixth of the federal budget."

Steven G. Calabresi argued that although the Court had denied this, the instant decision was really a "Nondelegation doctrine case masquerading as a bicameralism and presentment case." He also suggested that this decision was "the blockbuster separation of powers case of the Rehnquist years."