ArtII.S1.C1.5 The President's Powers and Youngstown Framework

Article II, Section 1, Clause 1:

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court considered the relationship between the President’s powers and the powers Congress can exercise.1 In a concurring opinion, Justice Robert Jackson set forth a framework that the Court has subsequently adopted to assess claims of presidential power.

Youngstown concerned an executive order that President Harry S. Truman issued on April 8, 1952, directing the Secretary of Commerce to seize and operate the Nation’s steel industry in order to avert a nationwide strike that he believed would jeopardize national defense during the Korean War.2 In the executive order, President Truman cited no specific statutory authorization but invoked generally the powers vested in the President by the Constitution and laws of the United States. The Secretary issued the order to steel executives and the President reported his action to Congress, conceding Congress’s power to supersede the order, which Congress did not do.3 The steel companies sued, a federal district court enjoined the seizure,4 and the Supreme Court agreed to hear the case prior to a decision by the court of appeals.5

By a 6-3 vote, the Court held the seizure unconstitutional. In the controlling opinion, Justice Hugo Black rejected the Solicitor General’s argument that the President’s action was justified as an exercise of his executive power under Article II, Section 1; by his duty to enforce the laws; and by his power as Commander in Chief.6 Instead, Justice Black observed that not only was there no statute that expressly or impliedly authorized the President to take possession of the property, but also Congress had refused to authorize seizures of property to prevent work stoppages and settle labor disputes when it considered the Taft-Hartley Act in 1947.7 Because neither the aggregate of the President’s Article II executive powers nor his powers as Commander in Chief supported the action, Justice Black reasoned that the President had sought to exercise a lawmaking power, which the Constitution vests solely in Congress:8 Even if other Presidents had taken possession of private business enterprises without congressional authority to settle labor disputes, Congress retained its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested in it by the Constitution.9 Consequently, while Congress could have directed the President to seize the steel mills, the President could not seize them absent congressional authorization, even if he believed that such an action “was necessary to avert a national catastrophe.” 10

In his concurring opinion, Justice Jackson outlined a framework for assessing the President’s powers depending on its “disjunction or conjunction with those of Congress.” 11 Justice Jackson divided presidential actions into three categories that looked at the extent to which the President was acting in concert with Congress. With regard to the first category, he stated:

When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances and in these only, may he be said . . . to personify the federal sovereignty. If his act is held unconstitutional under thise circumstancies it usually means that the Federal Government as an undivided whole lacks power.12

Describing the second category, Justice Jackson stated:

When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes at least as a practical matter, enable, if not invite, measure on independent responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.13

The third category addressed situations where the President’s actions were contrary to will of Congress. Justice Jackson observed:

When the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution for what is at stake is the equilibrium established by our constitutional system.14

Justice Jackson viewed the steel seizure as falling into the third category because Congress had adopted statutory policies inconsistent with President Truman’s steel seizure. Accordingly, under Justice Jackson’s framework, the President’s action could only be sustained if the power to seize strike-bound industries was within the President’s domain and beyond Congress’s control.15

Since the decision in Youngstown, the Court has used Justice Jackson’s framework when assessing assertions of presidential power.16 For example in Zivotofsky v. Kerry, the Court applied Justice Jackson’s “tripartite framework” to find that because the challenged presidential action “falls into Justice Jackson’s third category, his claim must be ‘scrutinized with caution,’ and he may rely solely on powers the Constitution grants to him alone.” 17

Footnotes
1
343 U.S. 579 (1952). For additional discussion on Youngstown, see Maeva Marcus, Truman and the Steel Seizure Case: The Limits of Presidential Power (1977). back
2
E.O. 10340, 17 Fed. Reg. 3139 (1952). back
3
H. Doc. No. 422 (1952); H. Doc. No. 496 (1952). back
4
103 F. Supp. 569 (D.D.C. 1952). back
5
The court of appeals stayed the district court’s injunction pending appeal. 197 F.2d 582 (D.C. Cir. 1952). For the Supreme Court decision bringing the action up, see 343 U.S. 937 (1952). back
6
Youngstown, 343 U.S. at 587–88. back
7
Id. at 586. back
8
Id. at 588. back
9
Id. 585–89. back
10
Id. at 585–86. back
11
Id. at 635 (Jackson, J., concurring). See also Trump v Mazars USA, LLP, No. 19-715, slip op. at (U.S. July 9, 2020) ( “Congress and the President—the two political branches established by the Constitution—have an ongoing relationship that the Framers intended to feature both rivalry and reprocity.” ). Justice Jackson’s concurrence has been described as having “canonical status.” Georgia v. Public.Resource.Org, Inc., No. 18-1150, slip op. at 48, n.10 (U.S. Apr. 27, 2020) (Thomas, J., dissenting). back
12
Youngstown, 343 U.S. at 635–37 (Jackson, J., concurring). back
13
Id. at 637. back
14
Id. at 637–38 (footnotes omitted). back
15
Id at 639, 640. Myers v. United States, 272 U.S. 52 (1926); United States v. Curtiss-Wright Corp., 299 U.S. 304 (1936). In Dames & Moore v. Regan, 453 U.S. 654, 659–62, 668–69 (1981), the Court turned to Youngstown as embodying “much relevant analysis” on an issue of presidential power. In Hamdan v. Rumsfeld, 548 U.S. 557, 593 n.23 (2006), the Court cited Youngstown with approval, as did Justice Anthony Kennedy, in a concurring opinion joined by three other Justices, id. at 638. back
16
See Zivotofsky v. Kerry, 576 U.S. 1, 10 (2015). back
17
Id. back