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Monday, April 05, 2021

The Canonization of Jackson's Youngstown Opinion

Why is Justice Jackson's concurring opinion famous? Much of the credit goes to Richard Nixon. The Nixon Administration's broad claims of executive power, combined with the abuses of Watergate, drew substantial attention to what Jackson said in Youngstown. For the first twenty years after Youngstown, Jackson's opinion did not receive special consideration (though you can find cites here and there.)

The tipping point was 1973. First, Judge Sirica's opinion on the Watergate tapes case quoted from the concurrence (though, oddly, the cite did not explain that that the quote was from the concurrence.) Second, Arthur Schlesinger's influential book on The Imperial Presidency discussed Jackson's opinion at length. Third, the DC Circuit's opinion largely affirming Judge Sirica also quoted from the concurrence.

After that, a fairly rapid consensus emerged that Jackson's opinion was the gold standard. The Supreme Court quoted from the opinion in the Nixon case. Congress expressly relied on the opinion in drafting both FISA and the National Emergencies Act. And you start seeing more cites to the concurrence in cases and law review articles. Most of these cites are not about the tripartite framework. Instead, they focus on Jackson's functional view of separation of powers more generally.

Dames & Moore, of course, adopted the tripartite framework as controlling authority. Here the coincidence of Justice Rehnquist being on the Court and his role as Jackson's law clerk during Youngstown probably mattered. Finally, the concurring opinion was discussed at the confirmation hearings for Chief Justice Roberts and for Justice Alito, in part because Congress and the President were then at odds about various issues related to torture, warrantless wiretapping, etc.

Posted by Gerard Magliocca on April 5, 2021 at 11:45 AM | Permalink


What really makes that opinion unique, is that comparison, between other common law states or western states on one hand, and the US on the other, concerning that central issue of the case (means, the inherent power of the president, to use emergency power, touching or with regard to domestic policy).

Here I quote one for example:

"That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history. Time out of mind, and even now in many parts of the world, a military commander can seize private housing to shelter his troops. Not so, however, in the United States, for the Third Amendment says, "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law." Thus, even in war time, his seizure of needed military housing must be authorized by Congress. It also was expressly left to Congress to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions .... ,,', Such a limitation on the command power, written at a time when the militia rather than a standing army was contemplated as the military weapon of the Republic, underscores the Constitution's policy that Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy. Congress, fulfilling that function, has authorized the President to use the army to enforce certain civil rights.1 2 On the other hand, Congress has forbidden him to use the army for the purpose of executing general laws except when expressly authorized by the Constitution or by Act of Congress."


Posted by: El roam | Apr 5, 2021 12:35:37 PM

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