Monday, July 01, 2024

Missing the Forest for the Trees

Gerard N. Magliocca

The Court's opinion in Trump v. United States quotes Justice Jackson's concurrence in Youngstown early and often. Unfortunately, the Court misses the point of that concurrence. In ruling against the President, Justice Jackson stated:

"I cannot be brought to believe that this country will suffer if the Court refuses further to aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress."

The Court's opinion today does just what Justice Jackson could not be brought to believe. And in doing so, the opinion portrays the presidency as a fragile institution in need of a judicial crutch. I cannot be brought to believe that either.   

UPDATE: I would also note, FWIW, that the Court erroneously says that Justice Jackson cited the President's removal power as a Category Three question. He, in fact, said that this could fall within Category Two or Category Three.



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