Justice Jackson's draft opinions in The Steel Seizure Cases.

• Author: White, Adam J.

Mere moments into his introductory remarks at Judge Samuel Alito's Supreme Court confirmation hearings, after treading briefly across the familiar, weathered terrain of the abortion canon, Senate

Judiciary Committee Chairman Arlen Specter turned his attention to a half-century-old concurring opinion signed by a single Justice. (1) Justice Robert H. Jackson's opinion in Youngstown Sheet & Tube Co. v. Sawyer (2)--also known as The Steel Seizure Cases--is, of course, no ordinary lone concurrence. As the nation debates the Constitution's limits on executive action in the global war on terror, Justice Jackson's opinion has grown ubiquitous in legal discourse. Indeed, each time word of unilateral executive action makes headlines, legal commentators now greet it with a one-word rebuttal: "Youngstown"--a word synonymous with the doctrine that the Constitution allows for unilateral Presidential action, even in a time of war, only on the rarest of occasions. (3) Of course, Youngstown is not the first case to become unmistakably identified with a particular legal doctrine--see Roe, Brown, Lochner, Marbury--and surely it will not be the last. But just as surely, it is the only example of the public embracing a lone concurrence on a first-name basis.

When an opinion establishes itself in the canon by commanding a Supreme Court majority ab initio, its authoritative nature is largely self-evident. But when an opinion that initially garnered the signature of no other Justice (4) comes to public prominence years after the fact, the font of its authority is not so easily found. Perhaps the legal community embraced Justice Jackson's opinion because the author--Attorney General to President Roosevelt and Nuremburg Prosecutor--spoke with particular authority on the subject. Perhaps it was because Justice Jackson's most decorated clerk, William H. Rehnquist, paid homage to Justice Jackson and to Youngstown in his own opinions, (5) writings, (6) and speeches. (7) Or perhaps it was simply because the opinion sets forth as constitutional law a restatement of pure political pragmatism, easily recognized by all students of politics.

But all the more interesting is the question of how the opinion's author came to embrace the ideas found in that opinion. Ironically, this question is perhaps easier to answer than was the last because Justice Jackson left behind a detailed paper trail. (8) These papers offer a fascinating vantage point on the evolution of Justice Jackson's views in the few weeks that the case was before the Court. They recorded his changing views not only of the tripartite framework for which the opinion is famous, but also of the World War II legacy of FDR, the nature of the Constitution's limitations on the government in general, and even the propriety of the Justice's participation in adjudicating the case with which he would come to be most closely identified. And these papers appear to begin, at least in part, with a single handwritten note summarizing a district court case cited only twice in this century.

1. THE CHRONOLOGY

   The case that would become the fulcrum of war-powers jurisprudence (9) was the product of a drastically abbreviated schedule following the lower court proceedings. After brief stops at the district and circuit courts, the certiorari petitions were filed on May 2, 1952. (10) The Court granted the petitions the next day (11) and scheduled arguments for a mere nine days later, May 12-13. (12) Briefs were filed on May 10. (13) Justice Jackson did not waste time in committing ink to paper. His first typed drafts, preceded by undated handwritten outlines, are dated May 7 and May 8, (14) followed by drafts dated May 22 and 29, with varying amounts of written amendment, and an edited June 2 galley proof. The bench memo, written not by then-new clerk William Rehnquist, but by his senior, experienced co-clerk, George Niebank, is dated May 8. According to Rehnquist's account, neither clerk was aware of Jackson's position when the Court heard oral arguments. (15) Rehnquist's memory is confirmed by the drafts: all handwritten notes and edits, until the May 29 draft, are in Jackson's hand.

   The May 7 "draft" is better described as a compilation of short drafts, each one dedicated to a particular subject and numbered separately. The May 8 draft more closely resembles a single document. Also dated May 8 is a separate discussion of what would come to be the tripartite framework for the evaluation of presidential action, although in a significantly abbreviated format. (16) Jackson's next draft is a complicated cut-and-paste effort, the original version of which is dated May 22. A May 29 draft follows, and the June 2 draft closely resembles the final effort. No draft before May 29 contains more than a handful of citations, generally limited to New Deal Era cases like Schechter Poultry. (17)

2. THE INSPIRATION? (OR, "ALWAYS TO FOLLOW GUS" (18))

   Amidst the Jackson files is a slip of paper on which he wrote: "The President has no power, in absence of legislative authority[,] to prohibit landing of a submarine cable. Opinion of A. N. Hand[,] United States v. Western Union Telegraph Co[.,] 272 Fed 311." (19) This 1921 Augustus Hand opinion has been cited only twice in published opinions--in footnote two of Justice Jackson's opinion, (20) and in a 1927 New York appellate division case (21)--but it was cited in Youngstown Sheet & Tube Co.'s brief before the Court. (22) Its analysis is quickly recognizable to those familiar with Youngstown.

   Western Union involved the President's authority to prohibit the landing of international cables at the nation's coastline absent explicit congressional authority to do so. (23) Judge Hand explained that if the President had power to prohibit the landing of cables, that power "must be found expressly, or by implication, in the Constitution." (24) Hand declined to accept the argument that the President's power was coextensive with that of the federal government as a whole, (25) stating that "[c]ertainly many, if not most, executive powers flow from legislative enactments." (26) He rejected the notion that the vesting of executive power in the President included a substantive grant of inherent power, particularly with respect to war powers, for if the President were empowered to take action on these cables without Congressional authorization, then his power over the economy generally would be unbounded. (27) Because Congress regulates foreign commerce, Hand concluded, only Congress could regulate the cables in question. (28)

   What complicated matters in Western Union was that as far back as the Grant Administration, presidents had controlled the landing of cables without disagreement by Congress. Hand agreed with the government that Congress could authorize the President tacitly: "[u]nder such circumstances, unless congressional legislation regulating foreign telegraphic business can be invoked, it may be reasonably contended that Congress has acquiesced in the long-continued claims of the Executive." (29)

   Hand then explained the separation of powers in terms foreshadowing Justice Jackson's Youngstown opinion:

   I have thought it most questionable whether the power of the President to regulate cable connection is expressed or implied in the Constitution, but if Congress, which has control over foreign commerce, has chosen to allow the President to prevent physical connection between the shores of this country and of foreign nations by cables, telephones, radio devices, or pipe lines, the occasion and mode of such executive action would seem ... to be a political question, I should doubt whether the extent of the President's authority if based not upon an original prerogative but upon congressional acquiescence was a justiciable matter, and whether a court should interfere to define or support it; for the basis of the right would then depend on the interrelations and mutual accommodations of the Executive and Legislative Departments of the government, and not upon strict law. (30) In other words, where Congress and the President agree on the President's course of action, Judge Hand would defer to their arrangement. At the same time, because one of the company's three cables ran pursuant to a federal franchise granted in accordance with federal statutes, its connection was "an act within a field as to which Congress has generally legislated so as to free it from the executive control sought to be exercised." (31) Thus, where Congress and the President disagreed, Hand would defer to Congress, not to the President. And, as noted above, where the President acted amidst congressional silence, Hand would inquire into the meaning of that silence. (32)

   Jackson's note referring to Western Union is undated, and the case is not cited in draft opinions until the May 29 draft, (33) and even there not written in Jackson's hand. (34) Nonetheless, Hand's opinion clearly evokes the themes explored by Jackson, or, perhaps more accurately, vice versa. The stark similarities between Hand's and Jackson's analyses, as well as Justice Jackson's public admiration of Judge Hand, and the Youngstown Sheet & Tube Co. briefs citing of the case, strongly suggest that Jackson went about drafting his opinion with Judge Hand in mind, from May 10, when briefs were filed, if not from his first outlines.

3. THE TRIPARTITE FRAMEWORK

   Jackson's tripartite framework for evaluating executive action is the cornerstone of his Youngstown opinion. It merits reprinting in full:

   1. 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. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an...