Executive Power in Youngstown's Shadows

Abstract:     
Fifty years after it was handed down, the Supreme Court's decision in Youngstown Sheet & Tube Co. v. Sawyer is among the most important of the Court's separation of powers cases. This Article explores two quite different legacies of the Youngstown case. First, Youngstown has a symbolic or rhetorical power, in that it stands as an example of a court invalidating the actions of a coordinate branch of government in a politically delicate context. When a court wields this weapon, it can take some cover in Youngstown's shadows, and the possibility of a court exercising this power disciplines the executive branch. Second, the Youngstown case, and particularly Justice Jackson's concurrence, is of special importance to "congressional primacy" scholars, who believe that the Constitution is best read to lodge most foreign affairs powers with Congress.

The Article argues that Youngstown offers fewer lessons for analyzing problems of presidential power in foreign affairs than congressional primacy scholars suggest. In particular, the case offers no general theory of the scope of the President's constitutional powers with respect to foreign affairs. Moreover, contrary to scholars' assertions, the case provides no basis for courts to construe statutory delegations of authority to the executive in the foreign affairs area any more narrowly than statutory delegations of authority in purely domestic contexts. In fact, Justice Jackson's opinion in Youngstown contains the seeds of a misplaced political question doctrine, in that it allows courts to skirt questions about the President's constitutional authority in foreign affairs.

Keywords: Constitutional law, separation of powers

JEL Classifications: K1, K19

Accepted Paper Series