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Sunday, May 23, 2021

Another Little Discovery About Youngstown

Thanks to Adam White, I can now see Justice Jackson's drafts of his Youngstown concurrence. (The Library of Congress is still closed to most researchers, but Adam shared his scans from a prior visit.) And I found something new in those drafts.

I've posted before about the idea that a non-delegation challenge can be mounted against some applications of the National Emergencies Act. The idea, which I've sketched out in a draft, relies in part on Jackson's analysis of the non-delegation doctrine as Solicitor General and in part on his discussion in Youngstown. One thing that I pointed out was that Jackson implied in Youngstown that there were limits on the emergency powers that Congress could delegate. I also noted that (in a separate essay) he mentioned that he thought legislative vetoes were constitutional. Was there a connection between those two points?

There was. In one of Justice Jackson's drafts (dated May 22, 1952), he said the following:

"I see no constitutional objection to statutory grants of power to within limits of constitutionality, making their operation contingent upon a declaration of emergency by the President. Nor do I see any constitutional reason why Congress may not keep effective control of such legislation by making the grant terminate at any time or upon any contingency, even its own joint resolution."

After explaining that he disagreed with FDR's view that legislative vetoes were unconstitutional, Jackson continued:

"In view of the ease, expedition, and safety with which Congress can grant and recall large emergency powers ample certainly to embrace this crisis . . ." he was unpersuaded that the Court should rule that President Truman possessed those powers without a statute. (I've added the emphasis on recall.)

What do I glean from this? That Jackson believed that the constitutionality of broad emergency delegations to the President depended in part on the ability of Congress to recall those delegations. The Court's invalidation of the legislative veto process in Chadha thus raises serious questions about whether the basic framework set forth by National Emergencies Act can withstand constitutional scrutiny under Justice Jackson's thinking in Youngstown. I will keep digging and see what else I find.


Posted by Gerard Magliocca on May 23, 2021 at 03:48 PM | Permalink


See Jackson's 1953 (the next year) Harvard Law Review article, "A Presidential Legal Opinion," which sheds more light on his AG history with FDR regarding Lend-Lease:

Posted by: John Q. Barrett | May 24, 2021 5:10:24 PM


I think Jackson just used the wrong term there. He was discussing the Lend-Lease Act, which did have a legislative veto by concurrent resolution. Roosevelt objected to this procedure using a similar argument to the one adopted in Chadha. Jackson explains that he did not agree with FDR on that point.

Posted by: Gerard | May 23, 2021 6:30:08 PM

It's only a draft, and so, I assume, not flyspecked for accuracy. But the draft as quoted refers to a "joint resolution," which is a statute requiring presidential approval, and so not what one usually thinks of as a legislative veto. This is of course in some tension with what you say he said about disagreeing with FDR's views, which suggests that at least at this point Jackson hadn't worked out a settled position (though some of that depends upon precisely what he said about the substance of his disagreement with 'FDR).

Posted by: Mark Tushnet | May 23, 2021 4:17:18 PM

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