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Saturday, November 18, 2023

A Missing Word in Youngstown

Now that I'm back working on the book, I want to discuss a modest new discovery that I've made about Justice Jackson's concurrence. It concerns his discussion of the Commander in Chief Clause.

The final version of the opinion says the following:

Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a
state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture. I do not, however, find it necessary or appropriate to consider the legal status of the Korean enterprise to discountenance argument based on it.

Now look at an earlier version of this passage, to which I've added italics

Nothing is plainer in our Constitution than that the power to declare war is entrusted only to the Congress. Any action which the President has constitutional power to initiate cannot be deemed in law to be a war and, hence is no foundation for a claim to war powers, unless an unconstitutional action brings enlarged constitutional powers. Nothing would seem to me more dangerous than a doctrine that a President can vastly augment his power over the internal affairs of the country by his own unauthorized commitment of this country to some foreign venture. Even though I do not fully understand the Government's "war power" argument based on the Korean enterprise, I do not accept it.

Thus, the earlier draft (from May 22, 1952) takes a stronger view of a war declaration's relevance for interpreting the Commander-in-Chief's powers. There is no qualification that "of course" we could be in a war without a formal declaration. And there is the suggestion that we should judge the President's Article II authority in part based on whether a war declaration exists.

In his May 29th draft, though, Jackson changed the passage to look almost exactly like the final version. With one exception. The word "unauthorized" was still in the paragraph. Indeed, this was still true in his final draft on June 2nd, but in that draft you see that he crossed out the word "unauthorized." It was one of the final edits.

I think this change was significant. An "unauthorized" commitment of troops could be understood as just stating the truism that the commitment was not authorized by Congress. But you could also read "unauthorized" to say that authorization matters and that not having one reduces or circumscribes the President's power in some circumstances.

As I said in a prior post, one unintended consequence of Jackson's opinion was to render war declarations obsolete by making clear that the President possessed broad power to act on his own. His last-minute edit contributed to that result.

Posted by Gerard Magliocca on November 18, 2023 at 09:12 AM | Permalink


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