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

I. Introduction In Clinton v. City of New York,1 the Supreme Court invalidated the Line Item Veto Act,2 legislation that for the first time granted the President the power to "cancel" certain spending items and tax benefits from enacted appropriations bills. The Court found that this mechanism violated Article I's procedures governing the enactment of federal legislation.3 Unremarkably, as the Court explained in its conclusion, a bill must pass both the House of Representatives and the Senate, and then be presented to the President, in precisely the same form, before it becomes law: If one paragraph of that text had been omitted at any one of those three stages, [the law] would not have been validly enacted. If the Line Item Veto Act were valid, it would authorize the President to create a different law - one whose text was not voted on by either House of Congress or presented to the President for signature.4 In common with the Court's other recent decisions striking down innovative governance mechanisms as inconsistent with specific checks and balances designed to preserve the separation of powers,5 commentators undoubtedly will assail the Court's latest opinion for its narrow formalism.6 Indeed, even Justice Scalia took issue with the majority for its unreflective formalism, suggesting instead that the statute raised nondelegation concerns that required a less rigid constitutional analysis.7 This essay focuses on one narrow aspect of the 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 courts to sever unconstitutional provisions from previously enacted 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. II. Severability in the Courts Severability of unconstitutional provisions has a long tradition and powerful justifications.8 Judicial restraint counsels against striking down an entire piece of legislation on the basis of some constitutional infirmity in a minor provision. As the Supreme Court has emphasized, "a court should refrain from invalidating more of the statute than is necessary."9 In some instances, of course, a statute cannot or should not remain in force after a court has invalidated one of its central provisions, and the Supreme Court has offered various tests to decide the centrality of an invalidated provision.10 Nor has the judiciary limited itself to "editing" statutes containing unconstitutional provisions. For instance, courts sometimes sever portions of agency rules invalidated on constitutional or, more typically, statutory grounds rather than strike down a whole set of regulations promulgated during the same rulemaking proceeding.11 Although severability was originally a judicial invention, legislatures now frequently include severability clauses (sometimes referred to as "savings" clauses) in statutes.12 In fact, Congress occasionally even includes a "fallback" provision as a contingency designed to replace a particular section of uncertain constitutionality if a court invalidates and then severs that section.13 Less frequently, Congress may include an "inseverability" clause in an effort to prevent the courts from sustaining a piece of controversial legislation in the event that they invalidate one central provision.14 Oddly enough, courts do not invariably honor either of these explicit legislative commands. Generally, courts will abide by severability clauses when they appear in a statute, though that may simply reflect their tendency to sever invalidated provisions whether or not Congress included an express severability clause at the time of enactment. …