Ten Cases in Ten Days

In lieu of posting the ten most influential albums of my formative years, I'm posting ten judicial opinions that have shaped my view of constitutional law. Day 2 is Justice Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

In April 1952, the United Steelworkers of America called for a nationwide strike. Concerned that a disruption in steel production would threaten U.S. military operations in Korea, President Truman purported to seize control of the nation’s steel mills by executive order. A lower federal court halted the seizure temporarily, and the case moved quickly to the Supreme Court. Writing for a 6-3 majority, Justice Black concluded, “we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.”

While it is not binding precedent, Justice Jackson’s concurring opinion may be the most elegant and influential analysis of presidential power ever to issue from the Supreme Court. As Jackson explains, “[t]he actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.”

Before wading into the facts of the case, Justice Jackson divided executive action into three categories: “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate…. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

“When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

“When the President takes measures incompatible with the expressed or implied will of Congress, 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. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” As Congress had authorized the seizure of private property only in limited circumstances absent from the Youngstown case, the president’s seizure order fell squarely within this third category.

Justice Jackson concluded his concurrence with a warning for future jurists and legislators alike: “I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress…. We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.”

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