Youngstown Goes to War
Paulsen, Michael Stokes, Constitutional Commentary
I. THE ENDURING SIGNIFICANCE OF YOUNGSTOWN
In the spring of 2001--before the war came--the student editors of the Minnesota Law Review were casting about ideas for a symposium topic for 2002. I suggested an issue commemorating the fiftieth anniversary of Youngstown Sheet & Tube Co. v. Sawyer, (1) the famous "Steel Seizure Case" decided by the Supreme Court on June 2, 1952. A quizzical e-mail came back, asking, "Why does Youngstown matter? Where is it taking us?"
I laughed sadly, not quite sure whether to be disappointed at the student editors' ignorance of Youngstown's historical and ongoing significance, angry at their constitutional law professors' failure to communicate that significance to them, or simply amused as the naivete and short-term perspective of second-year law students looking for immediate "hot topic" relevance at a time when constitutional issues of foreign policy, war powers, national security, and separation of powers were not foremost in people's minds.
A lot has changed since then. In the world after September 11, 2001, there can no longer be any doubt: Youngstown Sheet & Tube Co. v. Sawyer is one of the most significant Supreme Court decisions of all time. The decision resolved a major constitutional crisis, and it did so during time of war and at a crucial juncture in the nation's political history. It resolved the crisis correctly, with both immediate and long-term important effect. Youngstown's holding--that the President of the United States possesses no inherent, unilateral legislative power in time of war or emergency--and equally so the analysis the Court's majority and principal concurring opinions have proven enduringly relevant to nearly every constitutional issue of war and peace, foreign policy, domestic legislative power, presidential power, and even judicial power that has confronted the United States in the past fifty years. Youngstown is one of the truly "great" cases--in every sense of the word--in the American constitutional law canon.
Consider for a moment what the decision did: Youngstown holds that the President, as chief executive, may not "execute" laws of his own making: the President of the United States may not constitutionally legislate on his own authority, ever. The President is not a legislator except in the limited capacities in which Article I and Article II authorize his participation in the legislative process via the veto, the discretion to recommend measures, and the power to adjourn Congress in case of disagreement between the two houses with respect to the time of adjournment. He may not enact domestic legislation unilaterally, by executive decree, but may only carry into effect enactments of the legislature or execute his own constitutional powers--which pointedly do not include any general legislative powers. And this remains true even in the case of war or national emergency.
This is a huge constitutional principle, and one that is absolutely foundational to American constitutional government. It is a principle that seems perfectly obvious today. But it was one that was at some risk in the immediate post-World War II era, in the aftermath of the rise of the New Deal's "administrative state" and in the dawn of the incipient "national security state" created by nuclear weaponry and the Cold War. Youngstown strangled, at a crucial moment in our nation's history, the shocking assertion--and this was precisely President Harry S Truman's assertion--that the President possesses inherent domestic legislative power during time of (unauthorized) war initiated by the President. Had Youngstown gone the other way--had it gone wrong and Truman's claim of unilateral presidential legislative power prevailed--we would be living under a significantly different, more dangerous, constitutional regime than the one we have today.
Further, Youngstown holds, by necessary implication, that the President is not and cannot be the sole judge of the scope of his own constitutional and statutory powers. The Supreme Court can and will (sometimes) rule on such constitutional questions. And it can and will (sometimes) rule against the President of the United States, even in times of war or national emergency. This significant and seemingly obvious point is obvious today only because Youngstown was in fact decided by the Supreme Court fifty years ago, because of the way in which it was decided (against President Truman's seizure of the nation's steel mills), and because Truman acquiesced in the Court's ruling. Thus, the judiciary's view prevailed in a major constitutional confrontation with the President of the United States concerning the scope of presidential power.
None of this was at all obvious or inevitable in 1952. Indeed, each of these features of Youngstown is rather remarkable. Youngstown showed that the judiciary will not (necessarily) abstain from decision of constitutional questions concerning the scope of the President's constitutional powers, even in matters touching on war, foreign affairs, national security, and national emergency. This is a principle of tremendous significance, even though it has been compromised and abandoned--sporadically, selectively, and inconsistently--over the course of the past half-century, through the vehicle of the Court's "political question" doctrine.
The fact that the Court was willing, arguably for the first time in our Nation's history, not only to issue a ruling on the merits but to rule against the President of the United States on a question of the scope of the President's constitutional powers makes Youngstown of singular importance. Youngstown is to executive power what Marbury v. Madison (2) is to legislative power, only more so. Marbury was, at most, a weak assertion of judicial power over the legislature, and not at all an assertion of judicial supremacy over the other branches of the federal government. (3) The Court in Marbury pointedly refrained from asserting any general constitutional control of executive actions, (4) asserting (but not actually exerting) authority over executive branch officials only in the most limited context of non-discretionary "ministerial" actions. (5) Youngstown, in contrast, is a bold assertion of judicial power over the conduct of the President in matters concerning the scope of the President's constitutional authority. It is probably the Supreme Court's first genuine assertion and exercise of the Court's modern claim of constitutional interpretive supremacy over the actions of the President of the United States, in a case where such a claim really mattered. (6) The claim of judicial supremacy was not made in express terms, as the Court would come to make it six years later, in Cooper v. Aaron, and repeatedly in cases in the five decades since Youngstown. (7) Rather, the claim of supremacy in Youngstown was implicit in the Court's action: it upheld an injunction against the enforcement of the President's orders, nullifying a presidential executive order in time of war.
And the nullification stuck. This is perhaps the most significant feature of the case of all. Youngstown is remarkable in that President Truman accepted and obeyed the Court's decision, even though he apparently disagreed with it quite strongly, establishing the political precedent of judicial supremacy through presidential acquiescence in the Supreme Court's interpretations of the Constitution. (8) Again, this is a commonplace today. But it is a commonplace, I submit, only because of Youngstown Sheet & Tube Co. v. Sawyer and Truman's acquiescence. No prior Supreme Court decision genuinely claimed judicial supremacy over the President in matters involving interpretation of the President's constitutional powers and prerogatives. No prior judicial confrontation with the executive resulted in so complete a victory for the Court. (9)
Judicial triumphs tend to beget more judicial triumphs--and sometimes judicial triumphalism and hubris. It is probably only a slight exaggeration to say that if there had been no Youngstown there would have been no Brown v. Board of Education, (10) no Cooper v. Aaron, (11) no Warren Court criminal procedure and civil rights revolution, no United States v. Nixon, (12) no Roe v. Wade (13) and Planned Parenthood v. Casey. (14) Still more, had Youngstown played out differently in the end--had Truman resisted or evaded the Court's judgment against his seizure of the steel industry--the aftermath of the Nixon Tapes case might have played out differently, too. Had Truman successfully held on to the steel mills in the face of an adverse decision, Nixon probably would have held on to the tapes, too, no matter what the Court said. And perhaps the Court would not even have tried to order Nixon to produce the tapes in the first place. Finally, if Youngstown had been decided the other way, The Pentagon Papers Case (15) probably would have played out differently, too. The federal government probably would have won in court the power to enjoin a newspaper's publication of materials the government deems detrimental to national security (or affirmance of an executive order banning such publication). (16) Or, had Youngstown been decided as it was but Truman successfully defied the judgment, Nixon might have seized the printing presses of The New York Times and The Washington Post and ignored any judicial decrees to the contrary. (17)
In short, Youngstown in no insubstantial measure accounts for the modern reality of judicial supremacy in constitutional interpretation; for presidential, congressional, and popular acquiescence to that reality; for the resultant possibility of the results in Brown, Nixon, and The Pentagon Papers Case and possibly many others; for the fact that presidential war powers remain constitutionally limited and that such limitations are, at least in substantial part, honored even in an era of nuclear weapons and even under conditions of emergency; and for the current dominant paradigm through which most important constitutional questions of war, foreign affairs, and separation-of-powers issues in general are understood and evaluated by Congress, the President, and the courts. That is a lot to say for one case. (18)
The enduring significance of Youngstown may have been underplayed in the years between the denouement of the Cold War in (roughly) September 1991 and the beginning of the present war almost exactly ten years later, in September 2001. A child of the 1990s--and law students at the turn of the twenty-first century--might be forgiven for not immediately grasping why a case about temporary presidential seizure of steel mills during the Korean War remains relevant today. (It is a bit harder to forgive their constitutional law professors.) In the world after September 11, however, it is clear that Youngstown, in addition to being one of the most significant constitutional decisions in our nation's history, is also directly and proximately relevant to some of the most important constitutional issues confronting the United States government on Youngstown's fiftieth anniversary, at a time when our nation is once again at war.
In the remainder of this essay, I will answer the student editor's compound question--"Why does Youngstown matter? Where is it taking us?"--with specific reference to the world in which we find ourselves after September 11, 2001. Specifically, I will address Youngstown's relevance to war, and especially to presidential power to conduct the present War on Terrorism.
My thesis is that Youngstown is highly relevant to war powers, supplying the proper paradigms for applying the Constitution's overlapping allocations of war power to Congress and the President. Both Justice Black's majority opinion and Justice Jackson's more celebrated concurrence state sound principles of law, completely consistent with each other, that properly guide present interpreters in evaluating the Constitution's division of powers concerning war and peace. Properly viewed, Youngstown creates a paradigm of three-branch constitutional interpretation with respect to these issues, an approach consonant with the Constitution's separation-of-powers generally. The scope of presidential war power depends on the President's interpretation of the scope of his constitutional powers in this area; on Congress's interpretation of the scope of the President's constitutional powers in this area (in addition to its specific delegations of power to the President); and on the judiciary's interpretation of the scope of the President's and Congress's constitutional powers in light of the interpretation of these powers by those other branches. (19)
On this view, the War Powers Resolution of 1973 (the "WPR") (20) and the September 18, 2001 "Authorization for Use of Military Force" (which I will call "The 9-18-01 Resolution") (21) are critical acts of congressional constitutional interpretation with important implications for evaluating the scope of presidential war power. The War Powers Resolution is in many respects a highly contestable congressional constitutional interpretation of the scope of presidential war powers in the absence of a declaration of war or functionally-equivalent congressional authorization of war. Some features of the War Powers Resolution are obviously unconstitutional. (22) But in at least one respect the War Powers Resolution is plainly legitimate and fits neatly within the three-category paradigm established by Justice Jackson's Youngstown concurrence. (23) The War Powers Resolution establishes a rule of construction concerning congressional action and inaction that effectively excludes what I will call, borrowing from Justice Jackson's taxonomy, "Category II wars"--that is, wars that might otherwise be thought legally justified by implicit presidential war-making authority resulting from "congressional inertia, indifference, or quiescence." (24) The War Powers Resolution says, almost in so many words, that insofar as legitimate presidential war-making power might be thought to depend on an inference from congressional action or inaction, Congress has adopted a standing statutory rule specifically repudiating any such inference. As far as Congress is concerned, there are to be no more "Category II wars" thought to be impliedly authorized by treaty provisions, appropriations acts, or any other legislative action (or inaction) short of specific authorization. (25) Moreover, to the extent the President would interpret the Constitution as permitting him to introduce armed forces into combat situations on his own authority, Congress's interpretation is that the Constitution does not authorize such unilateral action--and certainly not beyond sixty days. (26)
In this respect, the September 18, 2001 "Authorization for Use of Military Force" constitutes a major paradigm shift--a watershed constitutional event. While the 9-18-01 Resolution is, in form, an authorization purporting to fit within the parameters of the War Powers Resolution, (27) the Resolution creates very nearly plenary presidential power to conduct the present war on terrorism, through the use of military and other means, against enemies both abroad and possibly even within the borders of the United States, as identified by the President, and without apparent limitation as to duration, scope, and tactics. The September 18 Resolution has both "Youngstown Category I" and "Youngstown Category II" elements, and triggers broad presidential constitutional power under both heads. The President is specifically authorized (Category I) and delegated power in broad terms to use force against persons, nations, or organizations he determines planned, authorized, committed or aided the attacks of September 11, 2001, or who harbor such persons or organizations. That is a sweeping delegation of the war power. Moreover, the Resolution declares, in its final "whereas" clause, that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." (28) This near-unanimous congressional interpretation of the Constitution (29) essentially authorizes the President to conduct, in Youngstown terms, a "Category II war" on terrorism going beyond even the sweeping terms of the specifically-authorized "Category I war" against those the President determines are responsible for, or assisted, the attacks of September 11, 2001. Indeed, given how sweeping and unequivocal this congressional endorsement of presidential constitutional power is, one might well refer to this aspect of the 9-18-01 Resolution as recognizing presidential power to wage a "Category I 1/2 War."
Part II of this essay discusses the majority and principal concurring opinions in Youngstown and defends the proposition that these opinions can be seen as establishing a consistent paradigm of three-branch constitutional interpretation in matters of war and foreign affairs. Part III then looks at the War Powers Resolution of 1973 and the 9-18-01 Resolution as different applications of this paradigm, with important implications for the present War on Terrorism and for our understanding of war powers generally.
II. YOUNGSTOWN AS THREE-BRANCH CONSTITUTIONAL INTERPRETATION
Everybody seems to agree that Youngstown established the dominant paradigm for evaluating disputes between Congress and the President over the scope of their respective constitutional powers. Ironically, though, nobody seems to agree on what that paradigm is.
It has become fashionable for some academic commentators, and even for the Court itself, to note the eclipse of Justice Hugo Black's majority opinion by Justice Robert Jackson's concurrence, in terms of influence in establishing the governing paradigm. (30) To be sure, Jackson's concurrence is marvelous. The opinion is characteristically lucid, full of the grace and sophistication that makes Jackson's writing so persuasive and enjoyable to read. Its analysis is (in the main) cautious and precise. The opinion provides the tremendously influential and useful three-category framework that offers a workable and simple, but not grossly oversimplified, general approach to separation of powers issues involving presidential versus congressional authority. To greatly compress: Under Jackson's analysis, "[p]residential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress" (31) and thus fall along a continuum, roughly marked by three broad categories of congressional action: "Category I" consists of situations where Congress has authorized presidential action, triggering the President's core Article II "executive power" to carry into effect legislative action in addition to …
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Publication information: Article title: Youngstown Goes to War. Contributors: Paulsen, Michael Stokes - Author. Journal title: Constitutional Commentary. Volume: 19. Issue: 1 Publication date: Spring 2002. Page number: 215+. © 1998 Constitutional Commentary, Inc. COPYRIGHT 2002 Gale Group.
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