Respecting Our Multi-branch Lawmaking Process

In my inaugural entry for this column, I critiqued the Supreme Court’s reliance on an abstract conception of the “separation of powers.” Because the Constitution does not contain a “separation of powers” clause, but instead contains a collection of specific provisions that enforce the separation of powers in specific ways, I contended that the court should more carefully refer to the specific constitutional provisions that support its decisions. In this second column entry, I would like to bring a similar level of specificity to the separation-of-powers provisions that address the federal lawmaking process. A close look at those provisions indicate that, if 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. Consider the State of the Union Address, where the president commonly makes legislative recommendations. After the president’s address, a large segment of the country typically rallies behind the president’s legislative proposals, while a separate segment of the country typically takes the opposing position. What those competing segments share is a focus on the president’s legislative proposals, giving the president’s proposals vastly more attention than what might be offered to proposals from ordinary legislators.

The third clause is the vice president as presiding officer clause, which empowers the vice president to cast tie-breaking votes in the Senate. While the recommendation and presentment clauses grant the president the ability to influence legislation toward the start and end of the lawmaking process, the vice president affords the president opportunities to influence legislation during the middle of the lawmaking process. As the Supreme Court recognized in Trump v. United States, “the President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress.”

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).

First, recognizing the president’s role in the lawmaking process gives reason to question methods of statutory interpretation that focus on legislative intent and rely on legislative history, which justices such as Jackson have strongly advocated for. To the extent that a jurist’s focus on “legislative intent” means a focus on “congressional intent,” that focus is in serious tension with the multi-branch lawmaking process outlined in the Constitution. That is because, even if one assumes that the 535 legislators in Congress share an identifiable intent, that congressional intent might be at odds with the president’s intent. An exclusive focus on Congress’ intent is therefore constitutionally problematic. At minimum, any judicial focus on “legislative intent” should be broad enough to include the collective lawmaking intent of both Congress and the president.

Relatedly, a jurist who uses legislative history to elucidate legislative intent should be careful to consider legislative history from both Congress (e.g., committee reports and floor speeches) and the president (e.g., signing statements and presidential speeches). Otherwise, the jurist would risk systematically favoring the lawmaking views of one of the two branches that the Constitution empowers to collectively shape federal law.

Second, and unintuitively, recognizing the president’s role in the lawmaking process could help the court empower Congress. The court has recently signaled an interest in empowering Congress by overruling Chevron deference and embracing the major questions doctrine – two doctrinal moves that reduce the executive branch’s ability to sidestep Congress by unilaterally enacting regulatory policies. But the court is not likely to catch each and every executive-branch effort to sidestep Congress. And so the court might complement its recent doctrinal moves by giving presidents the incentive to more frequently turn to Congress as a partner in the multi-branch lawmaking process.

The court can give presidents incentives to turn to Congress by signaling that statutes will not be systematically interpreted in favor of Congress’s “intent,” but will instead be interpreted neutrally and in a way that can sometimes benefit the president. The situation might be analogized to a businessperson who has a new incentive to come to a contract-negotiation table, rather than pursue unilateral action, after learning that the contract will be interpreted neutrally and in favor of neither contracting party.

To be sure, jurists who worry that modern presidents already exercise too much power might object to interpreting the end-product of the multi-branch lawmaking process (i.e., legislative text) in a way that does not favor Congress over the president. Those jurists might instead think that the best way to respond to an overly powerful president is to empower Congress by treating Congress as if it unilaterally makes law. But that would be giving Congress more power than the Constitution affords. And the proper solution to any one branch exercising too much power is not to double the error by granting too much power to a separate branch. Instead, the proper solution is to ensure that no branch oversteps constitutional limits. And enforcing constitutional limits brings us to a third and final consequence that follows from recognizing the president’s role in the lawmaking process: a need to reconceptualize the nondelegation doctrine.

The nondelegation doctrine imposes a constitutional limit on statutory delegations of lawmaking discretion to the executive branch. The doctrine is not aggressively enforced, and it has been something of a dead letter in recent decades. Jurists who are concerned that modern presidents exercise too much authority, such as Justice Neil Gorsuch, have therefore looked to reinvigorating the nondelegation doctrine as a means of reining in the executive branch. It should come as a relief to those jurists, then, to note that respecting the president’s role in the lawmaking process would not give independent reason to abandon efforts to reinvigorate the nondelegation doctrine. However, respecting the president’s role in the lawmaking process would require the nondelegation doctrine to be reconceptualized so that it better accounts for the constitution’s design.

Today, the nondelegation doctrine is sometimes conceptualized as a limit on Congress’ ability to delegate Congress’ lawmaking power to the president. But that is a problematic framing because the Constitution does not grant Congress unilateral lawmaking power in the first place (bracketing potential complications relating to special topics such as federal property). Yes, Congress alone is vested with certain “legislative Powers,” but, as I have explained, to use those powers to make law, Congress must ordinarily work through a multi-branch lawmaking process that includes the president. Thus, a better conception of the nondelegation doctrine would be to understand it as limiting Congress and the president from agreeing to statutes that empower anyone else besides Congress and the president (acting in concert through the proper channels) from making law. That would mean limiting Congress’s and the president’s ability to statutorily empower the president to make law unilaterally.

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The court frequently treats Congress as if that branch makes law alone. But the Constitution sets out an arduous multi-branch lawmaking process that allows for the president to shape legislative text from top to bottom. Going forward, the court should better account for the Constitution’s multi-branch lawmaking process by more regularly referencing both the Congress and the president when referring to the creation of federal statutes. Doing so would help the court better respect the important interpretive consequences that flow from recognizing the president’s role in shaping federal law.