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Abstract:
Justice Robert H. Jackson's opinion in Youngstown Sheet & Tube - also known as The Steel Seizure Cases - is, of course, no ordinary lone concurrence. As the nation debates executive action in the Global War on Terror, that opinion has grown ubiquitous in legal discourse. Jackson's analysis - including the famous tripartite framework for the evaluation of Executive action - now borders on conventional wisdom.

Nonetheless, as Jackson's draft opinions reveal, that analysis did not spring fully-formed from the Justice's mind. Rather, it was the product of his deliberation, draft, and re-draft. His papers reveal not only the substantive evolution of his views, but also his changing efforts to justify the wartime actions of FDR as well as his own participation in the case. His drafts reflect his own ambivalence toward judicial limitation on the powers of the President, particularly in his reference to Korematsu, as well as his deep concern - relatively muted in his final opinion - that Congress would be unwilling to check the President. In sum, they warn of the folly inherent in reducing Jackson's views to a bullet-point version of his tripartite framework. Jackson's views - like the institutions he analyzed - are not so simple.

Jackson, Youngstown, Steel Seizure, Executive, Unitary, Foreign, War Power, Law

Abstract:
Justice Robert H. Jackson's opinion in Youngstown Sheet & Tube - also known as The Steel Seizure Cases - is, of course, no ordinary lone concurrence. As the nation debates executive action in the Global War on Terror, that opinion has grown ubiquitous in legal discourse. Jackson's analysis - including the famous tripartite framework for the evaluation of Executive action - now borders on conventional wisdom.

Nonetheless, as Jackson's draft opinions reveal, that analysis did not spring fully-formed from the Justice's mind. Rather, it was the product of his deliberation, draft, and re-draft. His papers reveal not only the substantive evolution of his views, but also his changing efforts to justify the wartime actions of FDR as well as his own participation in the case. His drafts reflect his own ambivalence toward judicial limitation on the powers of the President, particularly in his reference to Korematsu, as well as his deep concern - relatively muted in his final opinion - that Congress would be unwilling to check the President. In sum, they warn of the folly inherent in reducing Jackson's views to a bullet-point version of his tripartite framework. Jackson's views - like the institutions he analyzed - are not so simple.

Jackson, Youngstown, Steel Seizure, Executive, Unitary, Foreign, War Power

Abstract:
Some proponents of current judicial nominees, including President Bush himself, suggest that the Senate is obligated to act on judicial nominations, either confirming them or explicitly rejecting them. In this essay, I consider whether the Framers would agree with such an assertion (leaving aside the question of whether the Framers' understanding of "advice and consent" comports with the objective "original meaning" of "advice and consent"). My analysis focuses primarily on two long-overlooked pieces of evidence: First, I consider the actual practice of "advice and consent" in the Commonwealth of Massachusetts (the example cited by Nathaniel Gorham, the original proponent of "advice and consent," at the Constitutional Convention), by examining Massachusetts state records from the 1780s. Second, I look for insight into "advice and consent" by considering James Madison's failed alternative proposal, the discretionary Senate majority veto. Both of these inquiries suggest the same conclusion: "Advice and consent," as likely understood by the Framers, did not include an implicit Senate obligation to act on judicial nominations.

Advice, consent, framers, judicial, nominations, senate, judiciary, Hamilton, Madison, constitution, textualism, originalism, history