Today the House of Representatives passed the “President Executive Overreach on Immigration Act,” which is meant to stop DAPA. This bill has absolutely no chance of passing in the Senate, even after the Republicans take over, as the Democrats will filibuster it. It won’t even come up for a vote.
But, if you’ll indulge a thought experiment for a moment, imagine that this bill passes both Houses of Congress, and the President vetoes it. How would that work under Youngstown? To the extent the President is relying on some species of inherent power, we look to see whether he agrees, or disagrees with Congress. Generally, to understand the will of Congress, you look to what bills they pass, and are enacted into law. But here, the President would veto the very law that would limit his own power. Congress did everything within their power to make clear they did not agree with the President’s actions, and attempted to defund it. In response, the President vetoed it.
In my mind, this drops us from Youngstown Zone 2 to Zone 3. Congress opposes the President’s, in a way far more clear than what was at issue in Youngstown itself, where Congress spoke to a related issue a few years earlier. This is also much clearer than the congressional opposition in Dames & Moore v. Regan. The President can’t veto bills that constrain him, as a means to eliminate questions of doubt about whether Congress agrees, or disagrees.
If you follow me so far, let’s continue the thought experiment. Assume in the new Congress, the bill passes the House, and 54 members vote for cloture in the Senate (not enough). What does that mean for purposes of Youngstown? Are majority votes in both houses sufficient to express congressional opposition? After all, under the Constitution, you only need a majority. As the majority party is fond of reminding us, the filibuster does not appear in the Constitution.
Before you are quick to dismiss this assertion, please recall that President Obama made *just this argument* to justify DACA. He insists that the Dream Act had enough votes to pass the Senate, but was filibustered (it got 59 votes for cloture). He used this near-passage as a justification for that expansion of executive power.
If it’s good for the goose, it’s good for the gander. If the president can cite bipartisan support (based on a majority vote) without a bill in Congress for executive action, then the Court could cite bipartisan support (based on a majority vote) without a bill in Congress for Youngstown Zone 3.