Today, in a tight 50-50 vote, the Senate narrowly avoided passing a rule that could have resulted in another vote, that would have (among other things) blocked the President from expending any funds to expand DACA. The Democrats let four of their vulnerable candidates vote “yes,” but were saved by Begich. Before the House went on recess, they passed a similar measure.

Let’s assume a counterfactual for the moment. Let’s assume that the bill somehow managed to pass the Senate, and the House. Effectively, both Houses of Congress told the President not to expand DACA. Then, the President vetoes that bill, and does it anyway. Would this have any impact on how we understand the President’s prosecutorial “discretion” in this context?

I would argue, under Youngstown, that the answer is absolutely yes. We are clearly now in Youngstown Zone 3. Congress said no to an expansion of executive power, the President vetoed that bill, and did it anyway. Here, the President, to the extent he is relying on his nebulously-defined executive powers, is acting at his “lowest ebb.”

Now, let’s consider what actually happened. The bill overwhemingly passed the House, and it may come damn close to passing the Senate. Should the fact that half of the Senate, and a huge majority of the House supports stopping the President? I would argue the answer is probably yes. Maybe we’re in the zone of twilight here, but we are treading in the lowest ebb.