Emergency Powers and the Youngstown Concurrence

Gerard N. Magliocca

My book on The Actual Art of Governing: Justice Robert H. Jackson's Concurring Opinion in the Steel Seizure Case was published today. I'll be doing some posts in the coming weeks that connect some of the book's themes to ongoing constitutional disputes.

In his concurrence, Justice Jackson emphasized that the Framers did not provide for emergency powers, save for Congress's authority to suspend habeas corpus. "They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies."

Emergency power instead came from Acts of Congress that evolved as part of "the practical working of our Government." He summarized the emergency statutes as of 1939, when Attorney General Murphy described them, and said: "Under this procedure, we retain Government by law-special, temporary law, perhaps, but law nonetheless. The public may know the extent and limitations of the powers than can be asserted, and persons affected may be informed from the statute of their rights and duties."

Here the concurrence was telling us how to interpret emergency statutes. First, they cannot be understood by reference to original public meaning. They can only be construed by reference to practice. Second, they must be temporary or have some clear endpoint. Third, they must provide adequate notice to the public.

The imposition of tariffs under the IEEPA flunks these tests. No President until now understood that law to authorize tariffs. In other words, there is no supportive practice. There is no endpoint to an emergency that is based on trade deficits. We will always have trade deficits with some nations. And there is nothing in the statute or in this year's Executive Orders that provides notice. Tariffs go up, go down, get postponed, and so on with no warning and no reasons. Legal Realists used to say that the law was what the judge had for breakfast. Now the law is what the President had for breakfast. 

As a result, the lead brief from respondents in the tariff case was right to open and close with references to Justice Jackson's opinion. The Court should do the same.