Saturday, October 15, 2022

National Airport and Category Two of Youngstown

Gerard N. Magliocca

My next book will be on Justice Robert Jackson's concurrence in Youngstown. I want to share one new (I think) discovery that I've made about his opinion.

In Jackson's memoir about Franklin Roosevelt, he tells the story of how FDR got National (now Reagan) airport built. Congress could not agree on where the airport should go and how much money should be spent. Roosevelt eventually asked Jackson (then serving as acting Attorney General) to get it done. Jackson was able to scrounge up the money from various unused funds and found a suitable site. He admitted that Congress did not authorize construction of the airport, but added that Congress did not prohibit this course of action either. He concluded that the President may have violated the Constitution, but that no harm was done and that no lawsuit was brought.

Why am I telling you this? In Jackson's files on Youngstown, there is a paper with some notes sketching out the famous three categories. Under what is now Category Two, the final notation is "airport."


I don't think that Jackson wrote "airport" here because he was about to take a trip. National Airport was the example that he initially had in mind in crafting Category Two. But he did not mention this in the final opinion. Reasoning from the airport example (where no court was involved at all) adds some new context to Category Two, I think.


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