Executive power in Youngstown's shadows.

• Author: Bellia, Patricia L.
• Position: President Truman's 1952 seizure of US steel mills

INTRODUCTION

"We can hardly expect that the lasting outgrowth of the steel controversy will be the Youngstown case." (1) This projection captures the sentiment of much of the early academic commentary (2) on the Supreme Court's decision invalidating President Truman's seizure of the nation's steel industry in the spring of 1952. (3) For Professor Edward S. Corwin, the decision was "a judicial brick without straw"--the opinion of the Court resting on a "purely arbitrary construct," (4) Justice Jackson's "rather desultory" concurring opinion containing "little that is of direct pertinence to the constitutional issue," (5) and the other concurring opinions contributing nothing "to the decision's claim to be regarded seriously as a doctrine of constitutional law." (6) Scholars who observed the crisis and pronounced the Court's decision "destined to be ignored" (7) might have been surprised at the thought that, fifty years later, a law review would devote all of its pages to a commemoration of the Youngstown case.

The claims of Youngstown's detractors likewise would surprise modern first-year law students, who find the case prominently featured in the separation of powers section of their constitutional law case books, (8) who highlight Justice Jackson's discussion of three categories of executive action, (9) and who extract from the majority and concurrences evidence of "formal" versus "functional" analysis in separation of powers disputes. (10) The weight of scholarship, too, has shifted. Many who study the balance of congressional and presidential power, especially in the area of foreign affairs, view Justice Jackson's concurrence in Youngstown as providing a sensible framework for resolving the conflicting claims of the two branches (11) and decry this framework's alleged erosion in subsequent case law. (12) One constitutional scholar even found Justice Jackson's opinion to be--as of 1996, at least--"the most truly intellectually satisfying ... opinion in our two-hundred-year constitutional history." (13) And some regard Youngstown not only as a significant case in the Supreme Court's separation of powers jurisprudence, but also as a turning point in the Court's handling of politically charged constitutional questions. (14)

In light of the importance the legal academy attaches to the Youngstown case, it is perhaps hazardous to submit that Professor Corwin had the better of the argument. I will not go so far as to say that. The Youngstown decision well deserves its status as a landmark case in our constitutional jurisprudence. But Youngstown, I will argue, is a landmark case for what it symbolizes, not for what it says. And it is dangerous for us to confuse the two.

What Youngstown symbolizes is the notion that actions do not achieve the status of law merely because they are the actions of the government. The case no doubt deters some executive conduct of questionable legality. And the case will always add weight to the proposition that the judiciary has the power, and in some cases the obligation, to review and invalidate the actions of a coordinate branch of government on separation of powers grounds. Courts invoke Youngstown in the most delicate of cases involving abuses of power, even when the case is quite far off point. (15)

But courts and scholars put Youngstown to more work than this. The case has special significance for disputes involving the relative powers of Congress and the President in foreign affairs matters--where the Constitution says little, controversies are frequent, judicial resolutions are few, and the stakes are high. (16) Although not itself a paradigmatic foreign affairs case, Youngstown is thought to bear on separation of powers questions touching on foreign affairs in a number of ways. First, for those who would argue that the President lacks any independent, "implied" powers to formulate and carry out foreign policy, the Court's opinion in Youngstown stands as the high water mark. (17) Second, Justice Jackson's concurrence offers something of a blueprint for resolving disputes between the President and Congress, bringing together, as the Court put it in 1981, "as much combination of analysis and common sense as there is in this area." (18) Scholars who argue that the Constitution lodges most foreign affairs powers in Congress find in Justice Jackson's concurrence a recognition of congressional primacy--that presidential powers fluctuate, "depending upon their disjunction or conjunction with those of Congress." (19)

I will argue that the lessons that the case--and in particular, Justice Jackson's concurrence--offers in the foreign affairs area are less clear and less helpful than is often believed. It is a mistake to assume that Youngstown carries a doctrinal weight equal to its rhetorical or symbolic power. First, to the extent that the Youngstown decision is thought to foreclose claims of implied presidential power in foreign affairs, the better reading of the case suggests otherwise. Second, Justice Jackson's tripartite framework for evaluating executive action is not a framework at all, nor did he necessarily intend it to be. (20)

More important, Justice Jackson's opinion sends mixed signals about who is best able to police executive conduct--Congress or the courts. Justice Jackson clearly envisioned a role for the courts in policing the boundaries between different categories of executive action, to determine which actions Congress has expressly or impliedly authorized or forbidden. Many scholars take this to mean that courts should narrowly construe statutes conferring foreign affairs authority on the Executive Branch; to do otherwise is to entrench a shift in power from Congress to the President. (21) Justice Jackson seemed to envision a smaller role for courts, however, when Congress is silent. In that situation, he suggested, "any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law." (22) Even some scholars who believe that Congress has primary foreign affairs power acknowledge a diminished role for courts in this category of cases; they assume that the President possesses some "initiating" (23) or "concurrent" (24) powers and can exercise those powers until Congress acts. (25) As a result, Congress bears the primary responsibility for policing the Executive Branch. Those who believe that the President has more substantial foreign affairs authorities, of course, are likely to share this view that a court's role in reviewing executive action in the face of congressional silence is limited. (26)

The guidance scholars draw from Justice Jackson's concurrence, I will argue, is precisely backwards. Courts faced with the question whether a statute authorizes challenged executive conduct should do no more than apply ordinary delegation principles, leaving Congress to legislate against the backdrop of those principles. To require courts to construe foreign affairs delegations narrowly solely to preserve supposed congressional foreign affairs prerogatives is to force courts to make policy judgments better left to Congress. When the question is how to evaluate presidential conduct not traceable under ordinary delegation principles to a statutory authorization, however, the calculus is different. Any such conduct must rest on the President's constitutional powers--whether Congress is silent or opposed. In other words, the notion that presidential powers "fluctuate" (27) is misleading. The Constitution either grants the President a particular power or it does not. Congressional silence cannot create power where none exists; at most, silence might indicate something about what Congress believes the President's constitutional authority to be.

To the extent that Justice Jackson's approach suggests that law has little role to play when Congress is silent, that approach contains the seeds of a misplaced political question doctrine, allowing courts to skirt questions of executive power even when other justiciability requirements are met. Once this route of judicial deference is open, it is all too tempting for courts to follow it--not only when Congress is silent, but when the President's conduct conflicts with congressional policy. In short, courts tend to avoid exploring the President's constitutional foreign affairs powers--express or implied--instead finding congressional authorization in questionable circumstances or simply assuming that presidential action should stand as long as Congress is silent. This failure to develop a coherent theory of presidential power, I argue, has an impact far beyond the specific questions about the distribution of powers in the few separation of powers cases that courts actually face. Executive Branch lawyers regularly encounter complicated questions about the President's foreign affairs power. To the extent that courts' consideration of executive power questions would limit the acceptable and persuasive forms of argument available to the Executive Branch, courts' silence compromises one of the most effective restraints on executive conduct. And to the extent that courts' consideration of executive power questions would affirm the Executive Branch's mode of analysis, courts' silence unnecessarily prompts others to doubt the legitimacy of Executive Branch views.

The Article has three parts. Part I introduces the circumstances of the steel crisis and outlines the Supreme Court's response to President Truman's seizure of the steel mills. As is well known, much of the reasoning in the concurring opinions of Justices who joined the majority is in tension with the rationale underlying the opinion of the Court. This tension fueled the critical commentary of the day. Among the questions observers expected the Court to resolve was whether the President can lay claim to powers not expressly enumerated in the Constitution. The Court appeared to answer that question...