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Monday, December 21, 2020

Decoding Youngstown

In my prior post, I explained that Robert Jackson's brief in Currin v. Wallace argued that there were constitutional limits on Congress's power to delegate power to the President but not to agencies. This point is highly relevant, I think, to something he said in his Youngstown opinion.

Describing the first of his three categories for evaluating executive power, Justice Jackson said: "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate." [footnote omitted for now]

What does "can delegate" mean in that sentence? I've always thought that meant that Congress cannot authorize the President to do something that the Constitution independently forbids (say, violate the First Amendment.) But Jackson says a few sentences later that if the President's action "is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power." Why does he say usually? Why not always?

The answer, I think, is that Justice Jackson believed that Congress could not delegate some of its valid powers to the President. The brief in Currin supports that thought, but also consider the footnote that accompanies his sentence in Youngstown on the power that Congress "can delegate." Footnote 2 in his Youngstown opinion discusses Curtiss-Wright, which was a nondelegation case. Jackson said Curtiss-Wright "recognized internal and external affairs as being in separate categories, and held that the strict limitation upon congressional delegations of power to the President over internal affairs does not apply with respect to delegations of power in external affairs." What "strict limitation upon congressional delegations of power to the President over internal affairs?" Presumably the ones identified in Panama Refining, Schechter Poultry, and Jackson's brief in Currin.

Thus, Jackson's analysis in Youngstown (which everybody seems to admire) is partly about non-delegation, And his opinion and directs our attention to an unresolved problem--what are the limits of congressional delegation to the President that adds to his powers? The Supreme Court's cases instead focus on when Congress may subtract from his powers (for instance, Morrison v. Olson). But is that what we should be focused on?

More on Currin tomorrow. Grading is the nemesis of blogging, but hopefully I can do both.

  

 

Posted by Gerard Magliocca on December 21, 2020 at 10:50 AM | Permalink

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