Friday, October 10, 2008
A "Domestic" Case? Mysteries of Youngstown
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.
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.
But don't take my word for it --
Ask John Yoo.
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