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Tuesday, March 09, 2021

The Proper Characterization of Jackson's Youngstown Concurrence

I took a blogging breather after the frenzy of January and February. Now I'm busy finishing up my draft on Robert Jackson's understanding of the non-delegation doctrine. If all goes well, I'll have the draft ready at the end of March. Let me make one observation now though.

Jackson's Youngstown concurrence is often cited as the ur-text for a functional or flexible view of separation of powers. To take a recent example, Justice Kagan's dissent in Selia Law quoted Jackson's line that "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government" and the said: "The Framers took pains to craft a document that allow the structures of governance to change, as times and needs change."

But this understanding of Youngstown is oversimplified. The fact that Jackson believed in the non-delegation doctrine when power was delegated to the President himself means that he was not just saying that any established power-sharing arrangement between Congress and the President was fine. This misunderstanding is, though, understandable given the lack of attention paid until now about his views on non-delegation.

Posted by Gerard Magliocca on March 9, 2021 at 01:21 PM | Permalink


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This is very important issue. But, his concurring, is not about delegation of power or not. This is about emergency powers. For emergency powers, take the issue to the most extreme point. But, even concerning the most extreme point, he asserts clearly, that the president, can't exercise such power of seizing private property, without explicit delegation and legislation of Congress. He has conclusively ruled so.

The Solicitor General, has invoked in fact, not delegated powers. Not explicit provisions or laws, but rather, implicit, inherent powers. Like, the constitutional provision of article II, that all executive powers, are vested in the president. Or, that president, must faithfully execute the law. Or, simply for being the chief commander of the army (and precedents also by the way).

Even so, I quote him:

" Thus, even in war time, his seizure of needed military housing must be authorized by Congress"


"Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy"

But above all, here, well phrased by him, I quote:

" We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers"

End of quotations:

Means, that we have, a gray area, of having inherent power, not specified, not enumerated(generally speaking) yet, even so, it can't reach, emergency power of such, to seize without authorization or legislation of Congress, private property (even in war time).

Here to the ruling by the way:



Posted by: El roam | Mar 9, 2021 4:28:28 PM

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