The Youngstown Canon: Vetoed Bills and the Separation of Powers

As presidents make ever more expansive claims of executive power, Congress’s ability and willingness to counter the executive is limited. That makes all the more significant instances when Congress does overcome structural and political challenges to pass legislation to rein in the President. But thanks to the Supreme Court’s invalidation of legislative vetoes in INS v. Chadha, such congressional actions are necessarily subject to presidential veto. President Trump, for example, has vetoed joint resolutions aimed at restraining executive action relating to the border wall and war powers. Although vetoed bills are not binding law, this Article argues that neither are they legal nullities; instead, judges and other interpreters can use majoritarian congressional opposition to the executive as an interpretive tool. The result is a novel “Youngstown canon of construction”: When Congress passes a bill or resolution by a majority of both houses and the President exercises the veto, preventing the act from becoming law, then the expressed congressional opposition to the President’s view should be used to narrowly construe the underlying statutory or constitutional authority the President is claiming if that authority is ambiguous. The proposed canon would help to counteract overbroad claims of executive power in important areas such as war powers, the National Emergencies Act, treaty termination, and the scope of federal preemption of state laws.