Golden Gate University Law Review


This comment will explore the grounds upon which the line item veto might be constitutionally upheld. Preliminary reference will be made to the express constitutional framework within which an item veto would operate. Examination of the constitutional provisions pertaining to Congress's spending and general legislative powers and to the President's counteractive veto power provides the necessary foundation. Of more genuine significance, however, are the actual tests of the executive versus legislative power balance posed by functional equivalents of the item veto. Analysis of executive/legislative interplay in the field of spending either by the Supreme Court, or, absent that, by Congress, evidences what in fact underlies a proper power balance. Only by comparing the line item veto, an issue which has never been addressed by either Congress or the Supreme Court, to functionally analogous exercises of executive discretion can a reasonable argument be made for the item veto's constitutionality. Some of these functional equivalents, namely, certain impoundments and exercises of presidential budget allocation within congressional guidelines, have historically been either legislatively or judicially sanctioned. It is the premise of this comment that the constitutional justifications for these functionally similar exercises of executive power are indistinguishable from those for an item veto.