AuthorFisher, Louis

Table of Contents Introduction 442 I. Destroyers-Bases Deal (1940) 445 II. Executive Privilege (1941) 449 III. Ex parte Quirin (1942) 452 IV. Compulsory Flag Salutes (1940-43) 457 V. Hirabayashi v. United States (1943) 461 VI. Korematsu v. United States (1944) 463 VII. Chicago & Southern Air Lines, Inc. u. Waterman Steamship Corp. (1948) 470 VIII. Defending Ellen Knauff (1948-51) 472 IX. Other Deportation-Exclusion Cases (1948-54) 476 X. Johnson v. Eisentrager (1950) 480 XI. Youngstown Co. v. Sawyer (1952) 482 XII. United States v. Reynolds (1953) 488 XIII. Dalehitev. United States (1953) 495 Conclusion 497 INTRODUCTION

In determining the scope of presidential power, the Supreme Court and scholars turn with great frequency to the concurrence by Justice Robert -Jackson in the Steel Seizure Case of 1952. (1) A recent example is the 2015 Jerusalem passport case of Zivotofsky v. Kerry. (2) In deciding the President's authority to grant formal recognition to a foreign sovereign, the Court turned to "Justice Jackson's familiar tripartite framework from Youngstown Sheet & Tube Co. v. Sawyer." (3) The Court explained that Jackson's framework divides the exercise of presidential power into three categories: the "[fjirst when 'the President acts pursuant to an express or implied authorization of Congress, (placing) his authority... at its maximum'"; (4) the second when the lack of statutory authority creates a "zone of twilight" in which the President and "Congress may have concurrent authority and where 'congressional inertia, indifference, or quiescence may' invite the exercise of [presidential] power"; (5) and the third, when the President acts in ways "incompatible with the expressed or implied will of Congress," requiring the President to "rely only on his own constitutional powers minus any constitutional powers of Congress over the matter." (6) This framework and the Court's analysis in Zivotofsky are analyzed in Part XI.

The political and legal career of Robert H. Jackson followed an extraordinary path of increasingly senior positions within the executive branch, culminating in his appointment to the Supreme Court in July 1941. (7) He served on the Court until October 9, 1954. (8) For eighteen months he served as chief prosecutor at the Nuremberg trials of Nazi defendants. (9) As a result, he did not participate in a number of Court decisions that dealt directly with executive power. He took no part in the issue of martial law in Hawaii, decided by the Court on February 25, 1946, in Duncan v. Kahanamoku, (10) nor did he participate in the Court's decision on the President's authority to recognize foreign governments, (11) the use of a military commission to try General Tomoyuki Yamashita, (12) or the related cases of Homtna v. Patterson, (13) Homma v. Styer, (14) and Hlrota v. MacArthur. (15)

Eugene Gerhart, author of a biography on Jackson, characterized his decisions in a Nazi saboteur case (Cramer v. United States) (16) and a Japanese American case (Korematsu v. United States) (17) in this manner: "Jackson, at least, cannot be charged with yielding to war hysteria." (18) It would indeed be unfair to accuse Jackson of succumbing in any full sense to war hysteria, but frequently (as will be explained) he expressed the view that in times of war the judiciary should not exercise its customary independence to review and possibly invalidate executive and military judgments. (19)

Philip Halpern described Jackson's writing as "pithy and pungent; yet he never sacrificed clarity of thought for a well-turned phase." (20) That was not always the case. Jack Goldsmith has pointed out that "Jackson's analysis of the separation of powers between the Executive and Congress [could be] dense and somewhat ambiguous." (21) In contrast, Jackson's "analysis of the separation of powers between the Judiciary and the Executive was much clearer." (22) There is much to be said for Goldsmith's position, but clear statements can also be erroneous statements, a point to be developed in this Article.

The difficulty in analyzing Jackson's interpretation of executive power comes in part from his style of writing. He was widely considered the best writer during his service on the Court, (23) and possibly one of only a half dozen Justices over two centuries praised for mastery of the English language. (24) However, Dennis Hutchinson has observed that Jackson "could be substantively elusive, notwithstanding all his style and eloquence." (25) He "often preferred ringing imagery to close analysis, a natural tendency, perhaps, in a trial lawyer, but a liability for an appellate judge." (26) Bernard Schwartz noted that so "felicitous" is Jackson's style that "at times it makes the reader overlook weaknesses in the substance." (27) Walter Murphy found it difficult to understand Jackson because of "his marvelous ability to weave words." (28) He said Fred Rodell attributed to Jackson "an extraordinary command of language which enabled him to clothe even the scrawniest of his ideas in verbal raiment that gave them a verisimilitude of solidity." (29)


    The destroyers-bases deal is often described as an example of a President asserting independent power to circumvent legal restrictions imposed by Congress. (30) In a message to Congress on September 3, 1940, President Franklin D. Roosevelt announced he had entered into an agreement to transfer fifty "over-age" destroyers to Great Britain in return for ninety-nine-year leases to a number of British air and naval bases in North and South America. (31) A book published by Robert Shogun, Hard Bargain, carries this subtitle: How FDR Twisted Churchill's Arm, Evaded the Law, and Changed the Role of the American Presidency. (32)

    Shogun's study is insightful, but the theme of illegality that pervades the book is never substantiated. Roosevelt is said to be responsible for the "flouting of constitutional principles." (33) He "flouted international law, as well as the laws of his own country." (34) Chapter 9 of the book is called Getting Around the Law, (35) but a particular law that was circumvented is never identified. (36) Nowhere does Shogun identify a law that Roosevelt evaded or violated.

    Throughout the process of reaching agreement with Great Britain, Attorney General Robert H. Jackson provided key legal advice to Roosevelt. Jackson's opinion of August 27, 1940, gave the impression that Roosevelt could rely on independent presidential authority. (37) Jackson addressed questions of "constitutional and statutory authority." (38) He referred to the President's power as Commander in Chief, but found it unnecessary "to rest upon that power alone to sustain the present proposal." (39)

    Jackson explored a second source of authority: "control of foreign relations which the Constitution vests in the President as a part of the Executive function." (40) However, Articles I and II of the Constitution allocate external relations to both Congress and the President. (41) They do not concentrate that power solely in the President, as Jackson incorrectly suggested. (42) To reach that position of executive power, he relied on what he regarded as language that had been "explicitly and authoritatively defined" by Justice Sutherland in United States u. Curtiss-Wright Export Corp., (43) which referred to "the very delicate, plenary and exclusive power of the President as the sole organ of the Federal Government in the field of international relations." (44)

    In a book published in 1941, Jackson correctly described Curtiss-Wright as "a Christmas present to the President of a power over foreign affairs larger than the Government had really contended for." (45) Not only did the Court support a statute that authorized President Roosevelt to maintain an arms embargo in an area in South America, it referred to

    the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations--a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution. (46) What Jackson failed to analyze is how the Court decided to designate the President as the "sole organ" in external affairs. Not only was the Court's language clearly dicta, but it was judicial error. (47) The sole-organ doctrine is derived from a speech given by John Marshall in 1800 while serving as a member of the House of Representatives. (48) With Jeffersonians prepared to either impeach or censure President John Adams for turning over to Great Britain an Englishman charged with murder. Marshall said, "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. ...The [executive] department... is entrusted with the whole foreign intercourse of the nation." (49) The term sole organ is ambiguous. Sole means exclusive and plenary, but what is organ? Does it mean communicating to other nations U.S. policy after it has been decided by both elected branches?

    When read in full. Marshall's speech did not advocate plenary or exclusive presidential power in the field of international relations. He merely explained that President Adams was carrying out an extradition provision in the Jay Treaty. (50) Adams was not making foreign policy unilaterally. Marshall's floor statement was so tightly reasoned that Jeffersonians did not attempt a rebuttal. They abandoned their campaign for impeachment or censure. (51)

    In his opinion as attorney general, Jackson seemed to understand that the Court in Curtiss-Wright overstated the President's authority over international affairs. Jackson observed, "The President's power over foreign relations while 'delicate, plenary, and exclusive' is not unlimited." (52) Yet how could a plenary and exclusive power be limited? Jackson's...

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