Executive Power in Youngstown's Shadows
Bellia, Patricia L., Constitutional Commentary
"We can hardly expect that the lasting outgrowth of the steel controversy will be the Youngstown case." (1) This projection captures the sentiment of much of the early academic commentary (2) on the Supreme Court's decision invalidating President Truman's seizure of the nation's steel industry in the spring of 1952. (3) For Professor Edward S. Corwin, the decision was "a judicial brick without straw"--the opinion of the Court resting on a "purely arbitrary construct," (4) Justice Jackson's "rather desultory" concurring opinion containing "little that is of direct pertinence to the constitutional issue," (5) and the other concurring opinions contributing nothing "to the decision's claim to be regarded seriously as a doctrine of constitutional law." (6) Scholars who observed the crisis and pronounced the Court's decision "destined to be ignored" (7) might have been surprised at the thought that, fifty years later, a law review would devote all of its pages to a commemoration of the Youngstown case.
The claims of Youngstown's detractors likewise would surprise modern first-year law students, who find the case prominently featured in the separation of powers section of their constitutional law case books, (8) who highlight Justice Jackson's discussion of three categories of executive action, (9) and who extract from the majority and concurrences evidence of "formal" versus "functional" analysis in separation of powers disputes. (10) The weight of scholarship, too, has shifted. Many who study the balance of congressional and presidential power, especially in the area of foreign affairs, view Justice Jackson's concurrence in Youngstown as providing a sensible framework for resolving the conflicting claims of the two branches (11) and decry this framework's alleged erosion in subsequent case law. (12) One constitutional scholar even found Justice Jackson's opinion to be--as of 1996, at least--"the most truly intellectually satisfying ... opinion in our two-hundred-year constitutional history." (13) And some regard Youngstown not only as a significant case in the Supreme Court's separation of powers jurisprudence, but also as a turning point in the Court's handling of politically charged constitutional questions. (14)
In light of the importance the legal academy attaches to the Youngstown case, it is perhaps hazardous to submit that Professor Corwin had the better of the argument. I will not go so far as to say that. The Youngstown decision well deserves its status as a landmark case in our constitutional jurisprudence. But Youngstown, I will argue, is a landmark case for what it symbolizes, not for what it says. And it is dangerous for us to confuse the two.
What Youngstown symbolizes is the notion that actions do not achieve the status of law merely because they are the actions of the government. The case no doubt deters some executive conduct of questionable legality. And the case will always add weight to the proposition that the judiciary has the power, and in some cases the obligation, to review and invalidate the actions of a coordinate branch of government on separation of powers grounds. Courts invoke Youngstown in the most delicate of cases involving abuses of power, even when the case is quite far off point. (15)
But courts and scholars put Youngstown to more work than this. The case has special significance for disputes involving the relative powers of Congress and the President in foreign affairs matters--where the Constitution says little, controversies are frequent, judicial resolutions are few, and the stakes are high. (16) Although not itself a paradigmatic foreign affairs case, Youngstown is thought to bear on separation of powers questions touching on foreign affairs in a number of ways. First, for those who would argue that the President lacks any independent, "implied" powers to formulate and carry out foreign policy, the Court's opinion in Youngstown stands as the high water mark. …