William Rehnquist, the separation of powers, and the riddle of the Sphinx.

• Author: Bybee, Jay S.
• Position: Looking Backward, Looking Forward: The Legacy of Chief Justice Rehnquist and Justice O'Connor

INTRODUCTION I. THE ROOTS OF REHNQUIST'S SEPARATION OF POWERS JURISPRUDENCE A. Rehnquist as a Law Clerk for Justice Robert Jackson B. Rehnquist in the Office of Legal Counsel 1. OLC's role as an institution 2. Rehnquist's watch at OLC II. REHNQUIST ON THE COURT A. Associate Justice Rehnquist 1. The nondelegation doctrine and implied causes of action 2. Foreign affairs and national security 3. The appointments, bicameralism, and presentment cases B. Chief Justice Rehnquist III. ANOTHER ANSWER TO THE RIDDLE: TWO WILLIAM REHNQUISTS? CONCLUSION INTRODUCTION

William Rehnquist's tenure on the Supreme Court presents a Sphinx-like riddle for students of the separation of powers: "What animal is that which in the morning goes on four, at noon on two, and in the evening on three feet?" (1) One might well answer: "Rehnquist's separation of powers jurisprudence, as it is a difficult creature to characterize, arguably evolving over time." (2) In adolescence, it appeared an originalist on all fours, (3) in manhood it walked erect, a Byron White functionalist, (4) and in old age ... well, perhaps the Sphinx might just devour one after all! Indeed, it is difficult to identify a principle unifying the late Chief Justice's separation of powers cases.

And how does one explain the absence of any separation of powers revolution to accompany federalism's rebirth? (5) No separation of powers opinion ever announced, "We start with first principles." (6) Unlike federalism, well-favored and judicially policed by the Federalism Five, the separation of powers has arguably been neglected (salutarily, some might say). But that neglect, salutary or not, has been inconsistent. Rehnquist did police (or attempt to police) the horizontal "parchment barriers" of separation from time to time. (7) What principle explains Rehnquist's philosophy of the separation of powers?

To explain the pattern of his cases, we resort to Rehnquist's first principles and our own primary research to suggest Rehnquist was consistent at the most fundamental level: From his days as a law clerk to Justice Robert Jackson during Youngstown to his service as the head of the Justice Department's Office of Legal Counsel (OLC) through his tenure on the Supreme Court, Rehnquist's separation of powers jurisprudence has been marked by an inductive, common law approach to constitutional adjudication. It is an approach that eschews categorical, a priori bright-line rules but favors precedent and the lessons of history. (8) When Rehnquist believes the constitutional text speaks clearly, he follows its specific commands. (9) Absent such clarity, though, he would defer to Congress, "the dominant balancer of public policy in our democratic society," and not the courts. (10) By that same token, Rehnquist enforced the separation of powers by forcing Congress to take responsibility for its duty to make public policy and not impermissibly pass the buck to the executive branch or to the courts.

1. THE ROOTS OF REHNQUIST'S SEPARATION OF POWERS JURISPRUDENCE

   In this Part, we briefly assess the importance of Youngstown, decided during Rehnquist's clerkship for Justice Jackson, in the development of Rehnquist's views on the separation of powers. Then, we consider how Rehnquist approached the separation of powers during his tenure as Assistant Attorney General in the Office of Legal Counsel in order to evaluate whether his views have remained constant, such that a consistent principle might explain the pattern of his judicial decisions.

   1. Rehnquist as a Law Clerk for Justice Robert Jackson

      Rehnquist's first professional brush with the separation of powers came soon after the start of his legal career as a junior law clerk to Justice Robert Jackson. It was an auspicious start. Rehnquist began his clerkship in February 1952, just months prior to the famous Youngstown separation of powers litigation at the Supreme Court. In June 1950, North Korean troops had invaded South Korea, and the U.N. Security Council had authorized the use of force to repel the invaders. (11) President Harry Truman had declared a national emergency and ordered American troops into combat in a de facto war. (12) In April 1952, an unresolved labor dispute in the American steel industry risked widespread strikes and the attendant possibility of shortages in the nation's wartime steel supply. Significantly, Truman declined to invoke the Taft-Hartley Act and its procedures for resolving the labor dispute. Instead, Truman issued an executive order authorizing the Secretary of Commerce to seize the privately owned and operated steel mills to assure continued steel production. (13) He predicated the seizure order on his aggregate power as Commander in Chief of the armed forces and his inherent power as executive.

      The steel industry promptly challenged Truman's order in federal district court, seeking a preliminary injunction against the seizure as a violation of the separation of powers--an executive acting ultra vires. Judge Pine rejected the government's broad assertion of executive power and granted the steel industry its request for a preliminary injunction. (14) The parties' cross-appeals quickly progressed to the Supreme Court. On May 16, 1952, the Court voted 6-3 in conference to reject Truman's claim of authority to seize the steel mills. (15) As Justice Jackson described the vote to his then-law clerks William Rehnquist and C. George Niebank, Jr., "Well boys, the President got licked." (16)

      Although Justice Black authored the Youngstown majority opinion for the Court, (17) it is Justice Jackson's concurrence that has endured, providing a framework for separation of powers analysis in executive/congressional tugs-of-war. It is to this concurrence we look for any possible abiding influence on the law clerk William Rehnquist.

      Jackson laid out three "somewhat over-simplified" groups of potential executive and congressional disputes. (18) In category one, the President acts at the apex of his power when he is acting "pursuant to an express or implied authorization of Congress"--i.e., all the power Congress can delegate to the President plus the power possessed by the President "in his own right." (19) In category-two conflicts, the President acts without a congressional grant or denial of power. This category requires the President to rely on his own independent power. It is a shadow land, Jackson's "zone of twilight." (20) In category-three conflicts, Congress has expressed or implied its will, but the President acts incompatibly. (21) Here, the President appears to be at the nadir of his power, Jackson's "lowest ebb" of presidential power, and must rely on his own authority "minus any constitutional powers of Congress over the matter." (22)

      Jackson's concurrence placed the mill seizure in the least favored camp, category three. (23) Congress had ordained procedures by which the Commander in Chief could resolve labor disputes and effect seizures of the steel mills, such as the Taft-Hartley Act, but the congressionally appointed procedures had to be followed. Truman's order was incompatible with Congress's expressed will, and his power as Commander in Chief did not give him independent authority to seize the mills.

      What effect did his participation in this case have on the young William Rehnquist's views of the separation of powers? It has been suggested that Youngstown may have "cemented" in the young Rehnquist "a pro-Congress bias in separation of powers cases" that might explain his later votes upholding creative power-sharing and delegating arrangements in Morrison v. Olson and Mistretta. (24) Doubtless, the experience of clerking for Jackson during Youngstown left an impression on Rehnquist. He often wrote and spoke about the historic case he witnessed unfold, (25) and he later invoked Jackson's concurrence as the author of the Court's opinion in Dames & Moore, (26) elevating its authority from merely that of a concurrence, even if he, quite arguably, substantially revised Jackson's analysis in the process. (27)

      Yet, there are good reasons to doubt the suggestion that Youngstown cemented "a pro-Congress bias" in Rehnquist. First, Jackson's concurrence is best understood as a mode of analysis, not a precedent dictating a pro-Congress outcome whenever invoked. By the concurrence's own terms, the three Youngstown categories are "somewhat over-simplified" classes of conflict between the President and Congress. As one progresses from one category to the next, the President shoulders an increasing burden to come forward and defend his claim that Congress, acting pursuant to its enumerated powers, is treading on the President's independent, substantive powers (e.g., the Commander-in-Chief power). To be sure, category three means the President carries a heavy burden to prevail against Congress. But it was not for executive power what strict scrutiny was for equal protection jurisprudence: "'strict' in theory and fatal in fact." (28) Youngstown left an impression on Rehnquist, as it was a landmark separation of powers decision. It did so, however, as a mode of analysis and not an outcome. (29)

      Second, even if one conceived of Jackson's concurrence as a set of outcomes determined by categorization rather than a mode of analysis, the documentary record casts doubt on the claim that it cemented in Rehnquist a pro-Congress bias. To begin, Jackson's law clerks had very little hand in drafting his opinions generally and little role in preparing the Youngstown concurrence specifically. (30) Thus, the Youngstown concurrence represented Jackson's, not Rehnquist's, work product. In fact, archival materials indicate law clerk Rehnquist suggested alternate non-separation of powers grounds on which Youngstown might have been resolved. In an apparently unsolicited memorandum to Justice Jackson, William Rehnquist and his co-clerk proposed they undertake additional research for Youngstown. Interestingly, all the issues proposed...