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. …