Plagiarism in the Supreme Court

In a prior post I said that Justice Jackson's concurrence in Youngstown drew on a memo written by Assstant Solicitor General Golden Bell in 1937. For example, Bell used the phrase "zone of twilight" to describe presidential power, and Jackson probably got the idea from there.

I can now say that there many other similarities between Bell's memo and Jackson's opinion. Jackson borrowed cites and quotes from Bell and even copied his analysis at one point. Here is Bell's description of United States v. Curtiss-Wright Export Corp.

It must be remembered, however, that the Curtiss-Wright case involved, not the question of the President’s power to act without congressional authority, but the question of his right to act under and in accord with an act of Congress. In that case the constitutionality of the act under which the President had proceeded was assailed on the ground that it delegated legislative powers to the President. Much of the decision is dicta, and the ratio decidendi is contained in the following language.

 "When the President is to be authorized by legislation to act in respect of a matter intended to affect a situation in foreign territory, the legislator properly bears in mind the important consideration that the form of the President's action - or, indeed, whether he shall act at all - may well depend, among other things, upon the nature of the confidential information which he has or may thereafter receive, or upon the effect which his action may have upon our foreign relations. This consideration, in connection with what we have already said on the subject, discloses the unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed. As this court said in Mackenzie v. Hare, 239 U.S. 299, 311, `As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other countries. We should hesitate long before limiting or embarrassing such powers.' (Italics supplied.)" Id., at 321-322.

It is apparent, therefore, that the case leaves much of the controverted question still unsettled. It places internal and external affairs in separate categories, and holds that the strict rule applied by the court to congressional delegations of power to the President in connection with internal affairs does not apply to such delegations of power in connection with external affairs. It intimates that the President might act in external affairs without congressional authority, but it leaves undecided the question whether the Congress can enact a statute in derogation of the President’s power in this field.

Here is Jackson's version (in Footnote Two of the concurrence)

United States v. Curtiss-Wright Corp., 299 U.S. 304, involved, not the question of the President's power to act without congressional authority, but the question of his right to act under and in accord with an Act of Congress. The constitutionality of the Act under which the President had proceeded was assailed on the ground that it delegated legislative powers to the President. Much of the Court's opinion is dictum, but the ratio decidendi is contained in the following language:

"When the President is to be authorized by legislation to act in respect of a matter intended to affect a situation in foreign territory, the legislator properly bears in mind the important consideration that the form of the President's action - or, indeed, whether he shall act at all - may well depend, among other things, upon the nature of the confidential information which he has or may thereafter receive, or upon the effect which his action may have upon our foreign relations. This consideration, in connection with what we have already said on the subject, discloses the unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed. As this court said in Mackenzie v. Hare, 239 U.S. 299, 311, `As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other countries. We should hesitate long before limiting or embarrassing such powers.' (Italics supplied.)" Id., at 321-322.

That case does not solve the present controversy. It 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. It was intimated that the President might act in external affairs without congressional authority, but not that he might act contrary to an Act of Congress.

Today we would call this plagiarism. Jackson did not cite Bell's memo. Would this have been considered plagiarism in 1952? I don't know.