President Trump has finally roused a quiescent Congress. Trump’s declaration of a national emergency regarding the southern border and continued defense of Saudi Arabia after the murder of journalist Jamal Khashoggi have sparked significant congressional pushback. The Senate, by a vote of 59 to 41, joined the House in approving a joint resolution to terminate the emergency Trump had declared at the southern border. In a rare invocation of the War Powers Resolution, the Senate is also resisting the Trump Administration’s assistance to Saudi Arabia in the ongoing conflict between the Saudi Arabia-led coalition and Houthis in Yemen. The Senate, by a 54-to-45 vote, approved a joint resolution directing the President to withdraw U.S. armed forces from hostilities in Yemen, including providing midair refueling services to the Saudi-led coalition. The House is expected to pass the resolution soon.
In response to the passage of the national emergency resolution, Trump immediately tweeted “VETO!” and followed up with a formal veto. He is expected to veto the Yemen resolution too. The conflicts between Congress and the President over these resolutions tee up an important question: what do we do with vetoed bills?
The Constitution’s bicameralism and presentment requirements mean that the resolutions cannot be binding law without presidential concurrence. Yet, it is also deeply unsatisfying to say they are nullities, irrelevant to the ongoing separation of powers struggles between the legislature and executive. After all, a majority vote of both houses of Congress has a significant democratic pedigree: such votes are all that is required from the legislature to create supreme U.S. law (so long as the President agrees).
Here’s a possible solution: a Youngstown canon. When Congress passes a bill or resolution by a majority of both houses and the act is prevented from becoming law by a presidential veto, then the expressed congressional opposition to the President’s view should be used to narrowly construe the statutory or constitutional authority the President is claiming when that authority is ambiguous. Doing so respects Congress’s clearly expressed position, while also complying with the Constitution, as interpreted by the Supreme Court in INS v. Chadha.
A Youngstown Canon
The canon draws on Justice Jackson’s famous tripartite framework from Youngstown Sheet & Tube Co. v. Sawyer. In Youngstown, Jackson posited that “[p]residential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” Jackson defined three categories. In Category 1, “the President acts pursuant to an express or implied authorization of Congress, [and] his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Category 2 involves a “zone of twilight” where “the President acts in absence of either a congressional grant or denial of authority, [and] he can only rely upon his own independent powers.” In Category 3, “the President takes measures incompatible with the expressed or implied will of Congress, [and] his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”
The vetoed joint resolutions come close to Category 3, but not quite. As a formal matter, there is an awkwardness to treating a congressional expression of opposition that is not binding law as equivalent to congressional action that the Constitution instructs would be binding: a resolution passed with a supermajority of both houses of Congress over the President’s veto (like the War Powers Resolution itself). In the recent joint resolutions, Congress hasn’t succeeded in perfecting its opposition to the President by passing a statute because of the President’s veto and the lack of supermajorities in Congress. The House on Tuesday failed to override Trump’s veto of the termination of the national emergency.
The basic intuition of Category 3 survives, however, in the proposed Youngstown canon. Judges, executive branch lawyers, and commentators should consider Congress’s clearly expressed opposition to presidential policy by narrowly construing the underlying sources of authority on which the executive is relying when those sources are ambiguous. In the national emergency context, that would mean narrowly construing the authority granted to the President by the National Emergencies Act, and in the Yemen conflict context, that would mean narrowly construing the President’s constitutional power to use force unilaterally.
The Case for the Youngstown Canon
The proposed Youngstown canon provides a way to give some effect to congressional actions in defense of the separation of powers, while also complying with Supreme Court precedent. In INS v. Chadha in 1983, the Supreme Court invalidated a legislative veto, explaining that the “legislative power of the Federal Government” can only “be exercised in accord with a single, finely wrought and exhaustively considered, procedure”—namely, the bicameralism and presentment requirements in Article I of the Constitution. The reasoning of Chadhahas been understood to invalidate numerous legislative vetoes that Congress included in myriad statutes. Significantly, both the National Emergencies Act and the War Powers Resolution, as Congress initially drafted and adopted them, included legislative vetoes.
After Chadha, Congress has been forced to rely instead on joint resolutions, which are subject to bicameralism and presentment (and thus to presidential veto). The proposed canon complies with Chadha because it does not purport to treat the vetoed bills as binding law. Rather, it uses the vetoed bills as an interpretive gloss on the underlying statute or constitutional provisions from which the President claims power.
The justification for applying the Youngstown canon may be particularly strong in cases where Congress is attempting to respond to the disruption caused by Chadha. In the National Emergencies Act, for example, Congress intended to police its delegation to the President by preserving the ability to rein in the President though a procedure that was not subject to presidential veto. The Supreme Court upset this expectation in Chadha. Using the Youngstown canon to take into account Congress’s later attempts via joint resolution to restrain the President keeps faith with the intent of Congress in passing the Act not to delegate unlimited power. In other circumstances, including questions of constitutional power, theYoungstown canon may contribute to a historical gloss or congressional acquiescence inquiry, helping to make clear, for example, that Congress has not acquiesced in or approved of a particular claim of presidential power.
Notably, the Supreme Court has relied on less apposite congressional action in identifying congressional authorization to put the President in Category 1 of Youngstown. In Dames & Moore v. Regan in 1981, the Supreme Court considered the validity of presidential actions related to the end of the Iran Hostage crisis, including whether the President had authority to suspend claims against Iran that were pending in U.S. courts. The Court concluded that although two statutes that the President cited as authority did not authorize the suspension of the claims, they were nonetheless relevant “in the looser sense of indicating congressional acceptance of a broad scope for executive action in circumstances such as those presented in this case.” If statutes in the general vicinity of a claimed presidential power, but not directly on point, can render a President in Youngstown Category 1, then vetoed bills that express clear congressional opposition to a specific claimed presidential authority should at least be relevant to construing the scope of that authority when it is otherwise ambiguous.
The Youngstown canon could have immediate effect in the various lawsuits brought to challenge the national emergency declaration and anticipated border wall. Other commentators have suggested ways that congressional opposition could have indirect or atmospheric effects on the lawsuits, including, for example, helping to allay concerns that judges might have about political backlash for ruling against the President. The Youngstown canon is a more direct way to account for Congress’s actions. It can also serve as a counterpoint to the Trump Administration’s anticipated claims that Congress’s partial funding of “border fencing” in a budget deal to end the government shutdown signifies congressional support for broader border wall construction.
Taking Congress’s views into account in the war powers context is a bigger lift. The issue is unlikely to end up in court—or at least to be decided on the merits by a court—which leaves executive branch lawyers as the most likely interpreters of the scope of the President’s authority to continue the involvement of U.S. armed forces in hostilities in Yemen. Nonetheless, those lawyers also have a duty to uphold the Constitution, not just to serve their client, and taking into account Congress’s opposition to the President’s claim of war powers is consistent with that responsibility.
Building on my prior work on Youngstown, I am exploring other potential applications and implications of the Youngstown canon in a new project. The canon could apply far beyond statutory schemes disrupted by Chadha, and judges’ use of it could incentivize greater congressional action to protect its institutional prerogatives against presidential power grabs. The border wall and Yemen cases are not the only situations where the Youngstown canon would have force, but they’re surely a good start.
IMAGE: WASHINGTON, DC – MARCH 15: U.S. President Donald Trump holds an executive veto, his first as president, in the Oval Office of the White House March 15, 2019 in Washington, DC. President Trump vetoed the congressional resolution that blocks his national emergency declaration on the southern border. (Photo by Alex Wong/Getty Images)