an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I’ve just read a fine article on Youngstown, the Steel Seizure case, by Patricia L. Bellia in the volume Presidential Power Stories, edited by Christopher Schroeder and Curtis Bradley. It reminded me of something that has been bothering me since the 2004 controversy over the torture memo. Everyone (including yours truly) criticized the August 2002 torture memo for not citing Youngstown, especially Justice Jackson’s classic concurrence. Later, John Yoo, the author of the memo, was quoted as saying that Youngstown could be distinguished because it was a “domestic” case. I wondered how anyone could so limit the reach of the case. True, Youngstown concerned a strike in the steel industry. But the justification for President Truman’s extreme action seizing the steel mills had to do with fighting the Korean War.
Imagine my surprise when I began research for my foreign affairs class and turned up support for the “domestic” theory. Bear with me for some examples and commentary. In his 1973 book The Imperial Presidency (of all places!) historian Arthur Schlesinger, Jr. remarks: “There is no question that the idea of independent presidential power received a severe rebuke [in Youngstown]. But the rebuke was by no means total. It was confined, in the first place, to domestic abuse of presidential power. Neither the majority nor even the minority saw the case as involving in any primary sense the President’s authority in foreign affairs.”
In his widely used 1996 treatise on foreign affairs and the Constitution, Louis Henkin contended that the Supreme Court “treated [Youngstown] as domestic, not as involving foreign affairs.” In the note that follows up, he stated “Youngstown has not been considered a ‘foreign affairs case.’ The President claimed to be acting within ‘the aggregate of his constitutional powers’, but the majority of the Supreme Court did not treat the case as involving the reach of his foreign affairs power.”
And here’s Henry Monaghan in 1993 in his excellent article “The Protective Power of the Presidency,” citing Schlesinger and Paul Kauper: “While the Court did not see the issue before it [in Youngstown] as involving in any significant way presidential authority in foreign affairs, its premise is fully applicable to presidential conduct in foreign as well as domestic affairs: no independent, free-standing presidential law-making authority exists as the rights of American citizens are concerned.” To be sure, Monaghan says Youngstown applies to foreign affairs, at least with respect to his inquiry into presidential “law-making authority.” But he supports the notion that the case was not about foreign affairs from the Court’s point of view.
In a 2002 article, Bellia wrote, “As is often observed, Youngstown was not a paradigmatic foreign affairs case, because it concerned the President’s power to order the seizure of domestic property. The arguments in Youngstown, however, implicated the power of the President to protect the country during a time of large-scale hostilities.”
Finally, here’s Yoo in War by Other Means: “We did not cite Justice Jackson’s individual views in Youngstown because earlier OLC opinions, reaching across several administrations, had concluded that it had no application to the President’s conduct of foreign affairs and national security. Youngstown reached the outcome it did because the Constitution clearly gives Congress, not the President, the exclusive power to make law concerning labor disputes. It does not address the scope of the commander-in-chief power involving military strategy or intelligence tactics in war.”
Where did these scholars get the idea that Youngstown is intrinsically “domestic?” The short answer, I think, is that they are using a special, non-standard (relative to the total corpus of constitutional doctrine) definition of the “foreign affairs power” that the Court has never formally endorsed. The clearest case is Professor Henkin. In his treatise, he presses the case that we must assume the existence of a broad foreign affairs power because only a broad power makes sense of the gap between what the Constitution says and the powers the government (including Congress but especially applicable to the president) has actually wielded throughout U.S. history. Treating Youngstown as domestic also accounts for the fact that Henkin does not perceive any conflict (as so many scholars have) between it and Curtiss-Wright, the paradigmatic pro-president case. For him, Curtiss-Wright is indeed a “foreign affairs” case.
How do I know I’m right? I suggest the Court never in any subsequent case endorsed the distinction that these scholars believe limits the reach of Youngstown and Jackson’s concurrence (their assertions are not backed up by case cites, but cites to other scholars, a warning sign). After Hamdi and Hamdan, it should be clear that the Court has not classified Youngstown as a “domestic” case having nothing to do with foreign affairs. The very idea is antithetical to the conception of Youngstown expressed by Justices Stevens and Kennedy in Hamdan. The reasoning of Yoo and possibly other OLC lawyers in the past is not sound in the cold light cast by the detainee cases. And I don’t think I’m being unfair citing cases decided after these scholars made their arguments. It was pretty clear by the 2004 reaction to the torture memos that most constitutional scholars always believed that Youngstown applied to the exercise of presidential power across the board, not just in “domestic” cases.
Let’s take a closer look at how Youngstown should be classified. Bellia does not address whether Youngstown was regarded as “domestic” or “foreign” when it was decided. Obviously one way to challenge the distinction is by questioning the implicit assumption that there is a sharp distinction between what is domestic and what is foreign. Youngstown itself suggests that “domestic” cases can have implications for foreign affairs and vice-versa. The case really started when Robert Lovett, the Secretary of Defense, told Truman a steel strike would harm the war effort. I think some sympathy is due Truman because no president can ignore this kind of advice (not that I endorse Truman’s subsequent actions). Truman’s executive order and the arguments made by DOJ lawyers in the case all relied on references to the “emergency” (Truman had declared a national emergency in December 1950 after China intervened) and the fighting still occurring in Korea. If we take the perspective of the executive branch, the connection between the steel seizure and the war seems hard to avoid. Are not foreign wars matters of “foreign affairs?”
In addition, on a doctrinal level, Truman went all in. The government’s lawyers used every argument available to them. Every piece of relevant text in Article II was cited in defense of the executive order. Thus, the majority opinions had to wend a laborious way through discrediting each argument made from the vesting clause, the commander in chief clause, the take care clause, and so on. The DOJ lawyers went further and argued Truman’s action was justified by the “aggregate” of his powers. In short, if Truman had a foreign affairs power through one or all of these clauses, that argument was used. If he possessed such a power outside these clauses, it would have been used. The DOJ lawyers were interested in winning, not maintaining a difficult distinction between domestic and foreign affairs cases. That they didn’t use an argument from a “foreign affairs power” indicates that it didn’t exist, at least not in the substantial form imagined by the scholars above.
This means that Youngstown applies across the board to all exercises of presidential power. That’s why today the case is often placed first in casebook chapters on separation of powers. Because of the facts, of course, the case is especially relevant in situations where the president acts solely on the basis of his constitutional powers in the face of congressional silence or opposition.
If this is right, the quotations above illustrate how some very able scholars can be misled by their own conceptual schemes. Youngstown was apparently classified as “domestic” because it could not be fit into the scheme in which the president was understood to have broad powers in foreign affairs. Certainly that’s how Truman understood his powers. He was never reconciled to the decision and made a comment in his memoirs to the effect that the president must always do what is best for the country. Truman sounds like he would have fit in with those scholars who believe the president has broad inherent powers to defend the national security of the United States. It does sound plausible, but then again, he lost after trying every argument he could think of.
In her latest article, Bellia makes a provocative comment about how OLC lawyers have tended to view Youngstown. Noting the controversy over the failure to cite Youngstown in the torture memo, she suggests, “One could argue, however, that the shadow the Steel Seizure case casts on executive decision-making in foreign affairs cases is so long that the executive branch can only avoid the case’s implications by refusing to acknowledge it at all.” (!!) This helps explain Yoo’s remark that OLC has consistently rejected the standard approach to Youngstown reflected in the casebooks. But is Yoo correct in what he asserts about OLC opinions? I hope not! It’s never pleasant telling the president no, but one would hope that OLC would not depart too much from the mainstream, especially when it is likely to lead to poor predictions about what the Court is likely to do. At least after Dames & Moore, Jackson’s concurrence (characterized by Yoo as for himself alone) was the law. But it clearly didn’t fit in with Yoo’s conceptual scheme.
And a final mystery. When exactly did Jackson’s concurrence become the touchstone that it is today? Clearly not when Youngstown was decided, for, as noted by Bellia and earlier by Maeva Marcus, there is plenty of evidence the constitutional scholars of the time were unimpressed. By 1973, Schlesinger wrote that Jackson’s opinion was “brilliant then and classic now.” If nothing else, Schlesinger was a reliable barometer of elite opinion. Sometime in the intervening twenty years, a consensus had formed around the greatness of Jackson’s concurrence. It would be interesting to hear from those who learned about Youngstown in law schools in the 1960s and 1970s. Was Jackson’s opinion always perceived as important? By the time I learned the case, Dames & Moore had been decided, and Jackson’s concurrence was canonical. At least it was outside the precincts of OLC. Posted
by Stephen Griffin [link]
Where the OLC means Yoo, there seems to be an assumption that conclusions drawn by that department were pronouncements of law rather than predictions of possible court interpretation. That is, I think the Yoo school of advising assumes an ideologically supportive and generally deferential bench will more or less accept carte blanche whatever arguments the department makes. I don't for a moment think Yoo or the administration believed many of the egregious arguments extending Presidential power could withstand reasoned discourse by a neutral bench. Instead they convinced themselves and each other that they had the bench in their pocket, particularly in the height of the so-called "war" on terror, and all they needed to do was give the court some plausible reason to support the President's actions. That there exists some academic support for the "domestic" distinction is really only secondary in such a scheme.
Luckily it turned out not to be quite that easy, even with the bench arguably leaning farther right than any time since Lochner.
Steve is right that some of the original academic commentary on Youngstown did not focus on Jackson's concurring opinion--see, e.g., Paul Freund (a Jackson friend and former colleague) in the fall '52 Harvard Law Review. But attention came while Jackson was still around and long before the 1960s, 1970s or Dames & Moore. E.g., a 1/10/54 Washington Post editorial (perhaps written by skilled journalist, Court-watcher and Hughes biographer Merlo Pusey) on executive agreements quotes at length, as “perhaps the most helpful approach” to presidential-legislative tests of power, the 3-part framework from RHJ’s concurring opinion.
Well first off, I think there's three categories here rather than two: domestic, foreign affairs powers, and war powers.
The foreign affairs power is about treaties and relations with other nations, and in the context of the torture memos and all things detainee, it's a chimera fabricated from misrepresntations of Foster v. Nielsen (as in Medellin), the Head Money Cases, Curtis v. Wright, and a dash of Eisentrager. See their briefs in the Hamdan case for that stuff.
The war power is described concisely in Yoo's 2001.09.25 OLC memo on the topic and it's just a pure fraud that ignored the plain language of Art. I regarding the authority of Congress in military affairs. The claim is that the President can do absolutely anything he wants to regardless of the law entirely at his own discretion, and the claim isn't really Yoo's so much as Addington and Cheney's. It's nothing more or less than an attempt tosubvert both the law and the Constituion entirely in EXACTLY the way the Nazi regime subverted all law in Germany -- and that's a fact.
When you put them on the spot they'll try to qualify it by say that in theory congress could refuse to provide any troops at all, but that's just BS. What they really mean is that if the President wants to systematically gang rape two year old children and eat them for dinner, that's just perfectly OK. Ditto a modern Auschwitz.