At SCOTUSblog, Chad Squitieri (Catholic): Respecting our multi-branch lawmaking process. From the introduction:
[I]f the court wishes to better respect the Constitution’s design, the court should abandon its practice of regularly treating Congress as if that branch can unilaterally make law.
Let’s start with some examples of the phenomenon in question. Judicial references to “Congress” simply making law are ubiquitous and have been offered by justices of different interpretive stripes. In 2025, Justice Sonia Sotomayor wrote on behalf of a unanimous court that “Congress enacted ERISA to ‘protect . . . the interests of participants in employee benefit plans and their beneficiaries.’” That same year, Justice Amy Coney Barrett contended “that Congress did not intend for courts to consider” particular factors. More recently, Chief Justice John Roberts wrote in Learning Resources v. Trump that “[t]he Government points to no statute in which Congress used the word ‘regulate’ to authorize taxation.” In the same cases, Justice Ketanji Brown Jackson added that “probing Congress’s intent is the right inquiry.” And in another high-profile example, Roberts contended in King v. Burwell that “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”
Many more examples could be offered. And to the extent those examples are only intended to suggest that Congress plays a role in making law, the examples are not particularly problematic. A problem does arise, however, when those routine references to congressional lawmaking allow a jurist to slip into thinking that Congress makes law alone. That is because, at least in the mine-run of cases, the Constitution does not empower Congress to unilaterally make law. Instead, the Constitution ordinarily requires Congress to make law in concert with the president. Thus, by routinely focusing on “Congress” as the relevant lawmaker, the court gives short shrift to the president’s role in the lawmaking process and risks systematically favoring one of the two political branches that the Constitution empowers to shape federal statutes.
At least three constitutional provisions speak to the president’s influence in the lawmaking process. The first is the presentment clause, which requires bills to be presented to the president for his potential veto. Because legislators in Congress know that they must present bills to the president, the presentment clause allows for the president’s legislative agenda to influence legislative text long before it is formally sent for presidential review. A legislator aiming to turn a bill into law, for example, would be wise to determine whether the bill is consistent with the president’s legislative agenda, as that can influence how the bill is drafted. A bill consistent with the president’s legislative agenda might be drafted to squeak by with simple majorities in the House and Senate (or a 60-vote majority in the Senate if the self-imposed filibuster is in play). A bill at odds with the president’s legislative agenda, by comparison, should be drafted in a way that can secure two-thirds support in each legislative chamber – which is the constitutionally required supermajority for overriding a presidential veto.
The second clause speaking to the president’s role in the lawmaking process is the recommendations clause, which states that the president “shall . . . recommend to [Congress’] Consideration such Measures as he shall judge necessary and expedient.” This can give the president an important first-mover advantage. …
The third clause is the vice president as presiding officer clause, which empowers the vice president to cast tie-breaking votes in the Senate. …
To be sure, although the president has tremendous influence in the lawmaking process, it does not follow that the president will always get his way in that process. Congress might ignore a presidential recommendation, override a presidential veto, or make political alliances so that the vice president is not given the chance to cast tie-breaking votes. But even in those situations, the president’s mere participation in the process can influence what ultimately becomes law. As an example, and to refer again to the dynamics imposed by the presentment clause, legislators who expect a presidential veto might account for it by initially drafting legislative text so that it can secure the necessary two-thirds veto-override support in Congress. Thus, a bill that might have been written one way had the president not been involved in the lawmaking process might be written very differently simply because of the president’s role.
In short, the president plays an important part in the lawmaking process. Given as much, the Supreme Court should abandon its practice of regularly referring to “Congress” as if that branch makes law alone. Rather, the court should more routinely refer to both branches involved in the multi-branch lawmaking process. The court can do so by referring to statutes “passed by Congress and signed by the President,” or to national policy “made by Congress and the President in the legislative process,” to borrow two helpful phrases used by Justice Brett Kavanaugh.
My call for the court to stop treating Congress as a unilateral lawmaker is not simply a matter of semantics. Substantial interpretive consequences flow from recognizing the president’s role in the lawmaking process. I will conclude by briefly discussing three such consequences here (you can find additional analysis of two of these points in a forthcoming Alabama Law Review article).
Agreed. In particular, the President’s role in signing or vetoing legislation (particularly in the modern era with the unlikelihood of an override) gives the President something of the role of the ratifiers of the Constitution or constitutional amendments. In effect, Congress proposes legislation, which becomes law if the President approves.
In my view, this understanding supports a textualist/originalist approach to statutory interpretation (similar to my view of constitutional interpretation, for the same reason). Congress’ proposal to the President is the text (as understood at the time), not the subjective views that Congress may have or the effects the law may come to have in the future. The President acts on the text, approving it or not approving it. It is the text that becomes law, because that is what Congress and the President agreed on.
Posted at 6:01 AM