Constitution Daily

Smart conversation from the National Constitution Center

Does the separation of powers need a rewrite?

August 22, 2016 by Nicandro Iannacci


Justice Robert Jackson (courtesy of the Library of Congress)
Justice Robert Jackson (courtesy of the Library of Congress)

Among the most important Supreme Court cases about the separation of powers is Youngstown Sheet & Tube Co. v. Sawyer. The decision was a slap in the face to a wartime president. More important, the famous concurring opinion penned by Justice Robert Jackson offered a durable framework for analyzing disputes between the executive and legislative branches. But a recent essay from Professor Laurence Tribe of Harvard Law School—a past speaker at the National Constitution Center—suggests that Jackson didn’t get it quite right.

In 1950, the United States entered the Korean War. At the time, President Harry Truman was concerned with the output of the nation’s steel mills, as he believed that a strike would cause severe problems for the war effort and the country’s economy.

However, the president’s efforts to avoid labor issues did not succeed. The United Steelworkers of America sought a new contract that would increase wages for its members; the Wage Stabilization Board attempted to have the workers and the industry agree on a compromise. Failing to do so, the union announced that a strike was on, and the steel companies began to shut down their mills.

President Truman decided that he needed to force the mills to stay open. In his executive order on April 8, 1952—now on display at the Center—Truman warns that “American fighting men and fighting men of the United Nations are now engaged in deadly combat with the forces of aggression in Korea,” and that a work stoppage “would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field.”

Within an hour of the announcement, attorneys for the steel industry sought a temporary restraining order to keep the president from carrying out the order. The case was appealed to the Supreme Court, where five hours of oral argument focused on whether the inherent powers of the presidency under Article II authorized the seizure of private property.

On June 2, 1952, the Court ruled 6-3 against Truman, with the strident textualist Justice Hugo Black authoring the majority opinion. However, the other five Justices in the majority wrote concurring opinions—including Justice Jackson, whose tripartite framework has endured as a guide for adjudicating disputes between the President and Congress.

“The actual art of governing under our Constitution does not, and cannot, conform to judicial definitions of the power of any of its branches based on isolated clauses, or even single Articles torn from context,” writes Jackson. “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. … Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress.”

Michael Gerhardt and William Howell discuss the Youngstown case on Landmark Cases
William Howell and Michael Gerhardt (right) discuss the Youngstown case with host Susan Swain on Landmark Cases

So it was that the “Youngstown triptych” was born. In Jackson’s articulation, the president’s power is “at its maximum” when he or she acts “pursuant to an express or implied authorization of Congress,” “at its lowest ebb” when he or she acts against “the expressed or implied will of Congress,” and in a “zone of twilight” when he or she acts “in absence of either a congressional grant or denial of authority.”

Though elegant, Jackson’s concurrence provides little guidance for judges to determine when the President has erred in the face of congressional silence. “In this area,” Jackson notes, “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.”

Into this ambiguity steps Professor Tribe. In a July piece for The Yale Law Journal Forum, Tribe not only highlights the difficulty of ascertaining Congress’s “will,” but also suggests that Jackson’s two-dimensional analysis fails to take into account other important constitutional principles.

“The truth is that Youngstown offers no meaningful baseline against which to assess the operative legal significance of Congress’s silence,” Tribe writes. “[R]eferences to the undefined ‘will of Congress’ leave the field wide open for unguided imputations to Congress of an inchoate set of floating intentions and purposes—and for giving those imputed intentions operative legal consequences.” Vaguely related statutes, joint resolutions, and other congressional actions can be cited as approval or rejection of executive actions, with no clear standard for judging either way. Indeed, as a result, courts may be running roughshod over the lawmaking process outlined in Article I, Section 7.

So when a case falls within the “zone of twilight,” what other factors should the Court consider in making its decision?

First, Tribe defends executive enforcement discretion, citing the ongoing debate over President Barack Obama’s executive actions on immigration. “Congress’s instructions … frequently bear little relation to the facts on the ground and may indeed be internally inconsistent,” he notes. In the case of immigration, Tribe explains, deporting the approximately 11 million immigrants living the U.S. illegally would require more money than Congress allocated for the task, as well as policing mechanisms that could raise liberty concerns. President Obama’s deferred deportation programs, then, are a permissible way of dealing with this inconsistency.

Tribe then suggests two other principles—federalism and individual rights—are worthy of consideration as well. While federalism cuts in favor of national executive power on immigration, Tribe argues that on an issue like marijuana legalization, courts should err on the side of states’ rights. Moreover, Jackson’s concurrence itself notes that executive power “must be matched against words of the Fifth Amendment,” leading Tribe to call for greater attention to individual rights. Tribe cites a lawsuit challenging the legality of the war on ISIL and a dispute over listing Jerusalem as part of Israel on a U.S. passport as cases where this could make a difference.

Both leading presidential candidates have suggested that executive power will be an important tool in the next administration. We can be confident, then, that the separation of powers will remain a potent issue in our constitutional debates for years to come. Perhaps Professor Tribe’s analysis can help a future Court sort it all out.

Nicandro Iannacci is a web content strategist at the National Constitution Center.

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