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.
For the over half-million people currently homeless in the United States, the U.S. Constitution has historically provided little help: it is strongly...
Gradualism should have won out in Dobbs v. Jackson Women’s Health, exerting gravitational influence on the majority and dissenters alike. In general...
En række amerikanske præsidentkandidater og kongresmedlemmer er i de sidste år begyndt at argumentere for, at USA burde lancere militære angreb mod...
Today, legal culture is shaped by One Big Question: should courts, particularly the US Supreme Court, have a lot of power? This question is affecting...
Constitutional review is the power of a body, usually a court, to assess whether law or government action complies with the constitution. Originating...
A resilience agenda is an essential part of protecting national security in a digital age. Digital technologies impact nearly all aspects of everyday...
During times of crisis, governments often consider policies that may promote safety, but that would require overstepping constitutionally protected...
The United States has granted reparations for a variety of historical injustices, from imprisonment of Japanese Americans during the Second World War...
This Article develops a new way of understanding the law in order to address contemporary debates about judicial practice and reform. The...
In an era defined by partisan rifts and government gridlock, many celebrate the rare issues that prompt bipartisan consensus. But extreme consensus...
In New York State Rifle & Pistol Association v. Bruen, Justice Thomas’s majority opinion announced that the key to applying originalist methodology...
In Poland, Venezuela, Rwanda, and several other countries, governments have in the past years altered basic rules of their constitutional system to...
In Chile, many commentators, academics and political leaders have spent years arguing that the limited nature of the social rights in the national...
In our increasingly polarized society, claims that prosecutions are politically motivated, racially motivated, or just plain arbitrary are more common...