The Story of Clinton V. City of New York: Congress Can Take Care of Itself

54 Pages Posted: 4 Apr 2005

Date Written: April 2005


It is easy to dismiss the Line Item Veto Act of 1996 (LIVA) as a mere footnote in a larger tale of inter-branch dynamics. Effective for about a year before the Supreme Court declared it unconstitutional in Clinton v. City of New York, LIVA was part of the first plank in the Republicans' Contract with America, the policy agenda that propelled them into control of the House of Representatives in 1994. Legal scholars and law students may miss the significance of this story because it lies in the congressional action, not in the court proceedings. First, the story of LIVA and Clinton v. City of New York provides a clear understanding of how Congress can delegate authority to the executive branch while retaining a great deal of control over the exercise of delegated power. A close analysis of the structure of the cancellation authority delegated to the President shows that Congress did not use LIVA to abdicate its responsibility as the branch with the main authority over spending and tax policy. Instead, Congress crafted a structure that provided legislators with continuing and significant influence. Second, the story of LIVA provides a case study of congressional deliberation of thorny constitutional questions. The legislative history of LIVA clearly reveals that Congress did not completely resolve the constitutional objections to the law. Instead, Congress punted final resolution of these issues to the courts, providing in the statute an expedited process for any constitutional challenge to reach the Supreme Court. Congress' performance on this dimension of LIVA raises the question of whether legislators can fulfill their responsibility to consider constitutional ramifications of their actions. It may be the case that they shirk this duty not only because it takes time away from activity that constituents value more, but also because some hope the judiciary will strike certain laws down, allowing members of Congress to avoid blame for the failure to deliver on their promises in circumstances where they would prefer the status quo ante. On the other hand, the discussion in various committees and extended debate in the Senate demonstrate that members will spend some time on constitutional issues, but that constitutional arguments do not necessarily change minds.

Suggested Citation

Garrett, Elizabeth, The Story of Clinton V. City of New York: Congress Can Take Care of Itself (April 2005). USC Law, Legal Studies Research Paper No. 05-9. Available at SSRN: or

Elizabeth Garrett (Contact Author)

USC Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States
213-740-0064 (Phone)
213-740-5502 (Fax)

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