« Not Nike’s “Satan Shoes:" Is it Trademark Infringement & Dilution? (Updated) | Main | FDR and the Legislative Veto »

Wednesday, March 31, 2021

Justice Jackson on Category Two

I want to continue with a line of research that bore fruit in my draft paper on the non-delegation doctrine: Reading the footnotes in Justice Jackson's Youngstown concurrence carefully.

In describing Category Two (the zone of twilight), Jackson said the following: "In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law." This sentence was qualified by a note that says, in full:

Since the Constitution implies that the writ of habeas corpus may be suspended in certain circumstances but does not say by whom, President Lincoln asserted and maintained it as an executive function in the face of judicial challenge and doubt. Ex parte Merryman, 17 Fed.Cas. 144, No. 9,487; Ex parte Milligan, 4 Wall. 2, 125, 18 L.Ed. 281; see Ex parte Bollman, 4 Cranch, 75, 101, 2 L.Ed. 554. Congress eventually ratified his action. Habeas Corpus Act of March 3, 1863, 12 Stat. 755. See Hall, Free Speech in War Time, 21 Col.L.Rev. 526. Compare Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160, with Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611, and Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, with the case at bar. Also compare Ex parte Vallandigham, 1 Wall. 243, 17 L.Ed. 589, with Ex parte Milligan, supra.

The first part of the note (on habeas corpus suspension) makes sense. There was no Act of Congress authorizing or forbidding the President from suspending the writ in 1861. President's Lincoln's act was therefore in Category Two and the elected branches hashed that dispute out in the midst of "the imperatives of events and contemporary imponderables."

The second part, though, is harder to understand. In Myers and Humphrey's Executor, for instance, Congress did clearly legislate about the positions at issue. The same was true in Hirabayashi. (Indeed, Jackson also cited Hirabayashi as an example of a Category One case in the footnote that accompanied the Category One passage in the text.) Why, then, are they included in the note? And why is Hirabayashi compared with Youngstown itself? More confusing still, Jackson cited Myers and Humphrey's Executor again in the note for his analysis of Category Three.

One thought is that he was saying that the pairs of cases that he cited could not be logically reconciled. Thus, they must rest on extra-judicial or pragmatic considerations. (For example, the Vallandigham decision rejecting an appeal by a civilian from a military tribunal in Ohio was decided during the Civil War, while Ex Parte Milligan went the opposite way in a case involving a military tribunal from Indiana once was the war was over.) Myers and Humphrey's Executor can also be described as inconsistent (to say the least). I'm not sure what to think about this for Hirabayashi, though, which does seem clearly distinguishable from Youngstown



Posted by Gerard Magliocca on March 31, 2021 at 02:18 PM | Permalink


The example of modern platforms that are gaining strong popularity lately inspires me, in this you can find not only your hobby https://777spinslot.com/paddy-power/

Posted by: Jack | Apr 6, 2021 3:20:33 PM

Vallandigham was seeking to appeal his conviction by a Military Commission to SCOTUS via a Writ of Certiorari, which ruled that it lacked jurisdiction to hear the appeal. Ex Parte Milligan - also convicted by a Military Commission - sought habeas corpus relief in federal court, which did have jurisdiction.

Posted by: Donald G Rehkopf | Apr 6, 2021 9:27:13 AM

Actually, the FTC act in humphrey's executor did *not expressly* limit the president's removal power. The court held that this limit was *implied* from the term provision and the structure of the board, for similar reasons as those underlying the court's holding that such a limit was constitutional

Posted by: Hash | Apr 1, 2021 12:24:03 PM

The comments to this entry are closed.