Tactlessness

I'll have more to say about my forthcoming book in the coming months. For now, I want to highlight one aspect of Justice Jackson's Youngstown concurrence.

A theme in the concurring opinion is that the President can, in practice, exercise unauthorized powers so long as they stop short of provoking a court case. Here are the two relevant passages:

"The vagueness and generality of the clauses that set forth presidential powers afford a plausible basis for pressures within and without an administration for presidential action beyond that supported by those whose responsibility it is to defend his actions in court. The claim of inherent and unrestricted presidential powers has long been a persuasive dialectical weapon in political controversy. While it is not surprising that counsel should grasp support from such unadjudicated claims of power, a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself. But prudence has counseled that actual reliance on such nebulous claims stop short of provoking a judicial test."

"It is interesting to note Holdsworth's comment on the powers of legislation by proclamation when in the hands of the Tudors. 'The extent to which they could be legally used was never finally settled in this century, because the Tudors made so tactful a use of their powers that no demand for the settlement of this question was raised.'" [This is in Footnote 16]

The current Administration is not following this advice. The first Trump Administration presents an interesting contrast. Back then, the Executive was mostly bark. Tariffs were threatened but not invoked. Emergency powers were bandied about but rarely used.  But now prudence and tact have left the building. Thus, there are many judicial tests underway. And many of them will not go well for presidential power.