Executive Power in Youngstown\u27s Shadows

Fifty years after it was handed down, the Supreme Court\u27s decision in Youngstown Sheet & Tube Co. v. Sawyer is among the most important of the Court\u27s 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\u27s shadows, and the possibility of a court exercising this power disciplines the executive branch. Second, the Youngstown case, and particularly Justice Jackson\u27s 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\u27s constitutional powers with respect to foreign affairs. Moreover, contrary to scholars\u27 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\u27s opinion in Youngstown contains the seeds of a misplaced political question doctrine, in that it allows courts to skirt questions about the President\u27s constitutional authority in foreign affairs

Executive Power in Youngstown\u27s Shadows

Fifty years after it was handed down, the Supreme Court\u27s decision in Youngstown Sheet & Tube Co. v. Sawyer is among the most important of the Court\u27s 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\u27s shadows, and the possibility of a court exercising this power disciplines the executive branch. Second, the Youngstown case, and particularly Justice Jackson\u27s 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\u27s constitutional powers with respect to foreign affairs. Moreover, contrary to scholars\u27 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\u27s opinion in Youngstown contains the seeds of a misplaced political question doctrine, in that it allows courts to skirt questions about the President\u27s constitutional authority in foreign affairs

Courts, Congress, and the Conduct of Foreign Relations

In the US constitutional system, the president generally conducts foreign relations. But not always. In recent years, the courts and Congress have repeatedly taken steps to interact directly with foreign governments. Nonexecutive conduct of foreign relations occurs when the courts or Congress engage in or take actions that result in the opening of a direct channel of official communications between the US nonexecutive branch and a foreign executive branch. Nonexecutive conduct of foreign relations raises serious constitutional questions, but to date there is no clear rubric for analyzing the constitutionality of the judiciary’s or Congress’s actions. Moreover, nonexecutive conduct of foreign relations is likely to become more frequent due to changes in technology, foreign governments’ increasing sophistication about the US government, hyperpartisanship in the United States, and what might be called the “Trump effect.” Building on Justice Robert Jackson’s iconic tripartite framework from Youngstown Sheet & Tube Co v Sawyer, this Article proposes a converse Youngstown framework for determining when nonexecutive conduct of foreign relations is constitutional. The converse Youngstown framework judges the constitutionality of the courts’ or Congress’s actions in light of executive authorization or condonation (Category 1), executive silence (Category 2), or executive opposition (Category 3). The converse Youngstown framework offers significant advantages over the current ad hoc approach to analyzing nonexecutive conduct of foreign relations, and it avoids some of the pitfalls that critics have identified with traditional Youngstown analysis. First, it more accurately reflects the fact that the president isn’t the only actor who exercises foreign relations initiative. Second, it avoids much of the indeterminacy that plagues traditional Youngstown analysis. Finally, it simplifies the constitutional analysis of nonexecutive conduct of foreign relations by explaining why easy cases are easy, allowing courts to engage in constitutional avoidance in some cases, and showing how Congress and the courts may sometimes trump the executive, even in Category

\u3cem\u3eYoungstown\u3c/em\u3e, \u3cem\u3eHamdan\u3c/em\u3e, and Inherent Emergency Presidential Policymaking Powers

This brief article explores the contribution that Hamdan v Rumsfeld may have made to clarifying what should happen in the large interstices of the rules created by the Youngstown case for determining the validity of claims of Presidential power. It offers its own view of the scope of Presidential powers in extreme emergencies involving the incapacitation of the legislative branch

Executive Orders: Issuance, Modification, and Revocation

Executive orders, presidential memoranda, and proclamations are used extensively by Presidents to achieve policy goals, set uniform standards for managing the executive branch, or outline a policy view intended to influence the behavior of private citizens. The U.S. Constitution does not define these presidential instruments and does not explicitly vest the President with the authority to issue them. Nonetheless, such orders are accepted as an inherent aspect of presidential power. Moreover, if they are based on appropriate authority, they have the force and effect of law. This report discusses the nature of these written instruments, executive orders in particular, with a focus on the scope of presidential authority to execute such instruments, as well as judicial and congressional responses to their issuance

Zivotofsky II and National Security Decisionmaking at the Lowest Ebb

This Note examines assertions of exclusive presidential power in light of the Supreme Court’s 2015 decision in Zivotofsky ex rel. Zivotofsky v. Kerry. This Note argues that, contrary to the suggestion of some commentators, the decision enhances the President’s ability to disregard legislative restrictions at flashpoints of national security decisionmaking. As Zivotofsky II saw, the President exclusively holds the power to recognize foreign countries. More significant, however, are the analytic moves that the Court introduces when assessing a President’s defiance of an act of Congress—a setup where the President’s power reaches its “lowest ebb.” The Zivotofsky II Court reshaped the lowest-ebb posture by relying heavily on historical practice and functionalist arguments to support its conclusion that the President enjoys exclusive authority over foreign recognition. Such arguments have never before been invoked by the Court to invalidate an act of Congress in the field of foreign affairs and systematically favor the executive in future separation-of-powers standoffs. Moreover, even if courts read Zivotofsky II narrowly, executive branch lawyers will not. And because justiciability doctrines often insulate executive action from judicial review, the primary (if not the only) legal assessment of hard national security choices will be made by lawyers in the executive branch. To illustrate the importance of Zivotofsky II’s impact on executive power, this Note presents three case studies in areas where the political branches have ambiguous or overlapping authority and where the structural advantages of the executive branch are uniquely important—covert actions, electronic surveillance, and the disposition of captured enemy combatants

Industrial Terrorism and the Unmaking of New Deal Labor Law

The passage of the Wagner (National Labor Relations) Act of 1935 represented an unprecedented effort to guarantee American workers basic labor rights--the rights to organize unions, to provoke meaningful collective bargaining, and to strike. Previous attempts by workers and government administrators to realize these rights in the workplace met with extraordinary, often violent, resistance from powerful industrial employers, whose repressive measures were described by government officials as a system of industrial terrorism. Although labor scholars have acknowledged these practices and paid some attention to the way they initially frustrated labor rights and influenced the jurisprudence and politics of labor relations in the late 1930s and early 1940s, the literature has neither adequately described the extent and intensity of this phenomenon nor fully explored its effects. This Article remedies that shortcoming. Focusing on three industries where the practice of industrial terrorism was especially well developed and its influence especially pronounced, this Article shows how the practitioners of industrial terrorism and their allies in Congress were able to turn the legacy of violence and disorder, which they authored by their violent resistance to the Wagner Act, into the basis of an extraordinary counterattack on labor rights. It shows how this attack culminated in 1947 with the enactment of the profoundly reactionary Taft-Hartley Act and remade the landscape of American labor relations

Will \u3cem\u3eYoungstown\u3c/em\u3e Survive?

The article examines the landmark United States Supreme Court case Youngstown Sheet & Tube Co. v. Sawyer, specifically in the context of the Symposium Proceedings accompanying this issue. The article traces the history of the case and its aftermath, exploring its role in later presidential powers cases before the Supreme Court. The article also discusses the relevance of the Steel Seizure case in the era of terrorism