Legal Commentary

How do I know I?m right? I suggest the Court never in any subsequent case endorsed the distinction that these scholars believe limits the reach of Youngstown and Jackson?s concurrence (their assertions are not backed up by case cites, but cites to other scholars, a warning sign). After Hamdi and Hamdan, it should be clear that the Court has not classified Youngstown as a ?domestic? case having nothing to do with foreign affairs. The very idea is antithetical to the conception of Youngstown expressed by Justices Stevens and Kennedy in Hamdan. The reasoning of Yoo and possibly other OLC lawyers in the past is not sound in the cold light cast by the detainee cases. And I don?t think I?m being unfair citing cases decided after these scholars made their arguments. It was pretty clear by the 2004 reaction to the torture memos that most constitutional scholars always believed that Youngstown applied to the exercise of presidential power across the board, not just in ?domestic? cases.

Let?s take a closer look at how Youngstown should be classified. Bellia does not address whether Youngstown was regarded as ?domestic? or ?foreign? when it was decided. Obviously one way to challenge the distinction is by questioning the implicit assumption that there is a sharp distinction between what is domestic and what is foreign. Youngstown itself suggests that ?domestic? cases can have implications for foreign affairs and vice-versa. The case really started when Robert Lovett, the Secretary of Defense, told Truman a steel strike would harm the war effort. I think some sympathy is due Truman because no president can ignore this kind of advice (not that I endorse Truman?s subsequent actions). Truman?s executive order and the arguments made by DOJ lawyers in the case all relied on references to the ?emergency? (Truman had declared a national emergency in December 1950 after China intervened) and the fighting still occurring in Korea. If we take the perspective of the executive branch, the connection between the steel seizure and the war seems hard to avoid. Are not foreign wars matters of ?foreign affairs??

In addition, on a doctrinal level, Truman went all in. The government?s lawyers used every argument available to them. Every piece of relevant text in Article II was cited in defense of the executive order. Thus, the majority opinions had to wend a laborious way through discrediting each argument made from the vesting clause, the commander in chief clause, the take care clause, and so on. The DOJ lawyers went further and argued Truman?s action was justified by the ?aggregate? of his powers. In short, if Truman had a foreign affairs power through one or all of these clauses, that argument was used. If he possessed such a power outside these clauses, it would have been used. The DOJ lawyers were interested in winning, not maintaining a difficult distinction between domestic and foreign affairs cases. That they didn?t use an argument from a ?foreign affairs power? indicates that it didn?t exist, at least not in the substantial form imagined by the scholars above.

This means that Youngstown applies across the board to all exercises of presidential power. That?s why today the case is often placed first in casebook chapters on separation of powers. Because of the facts, of course, the case is especially relevant in situations where the president acts solely on the basis of his constitutional powers in the face of congressional silence or opposition.

If this is right, the quotations above illustrate how some very able scholars can be misled by their own conceptual schemes. Youngstown was apparently classified as ?domestic? because it could not be fit into the scheme in which the president was understood to have broad powers in foreign affairs. Certainly that?s how Truman understood his powers. He was never reconciled to the decision and made a comment in his memoirs to the effect that the president must always do what is best for the country. Truman sounds like he would have fit in with those scholars who believe the president has broad inherent powers to defend the national security of the United States. It does sound plausible, but then again, he lost after trying every argument he could think of.

In her latest article, Bellia makes a provocative comment about how OLC lawyers have tended to view Youngstown. Noting the controversy over the failure to cite Youngstown in the torture memo, she suggests, ?One could argue, however, that the shadow the Steel Seizure case casts on executive decision-making in foreign affairs cases is so long that the executive branch can only avoid the case?s implications by refusing to acknowledge it at all.? (!!) This helps explain Yoo?s remark that OLC has consistently rejected the standard approach to Youngstown reflected in the casebooks. But is Yoo correct in what he asserts about OLC opinions? I hope not! It?s never pleasant telling the president no, but one would hope that OLC would not depart too much from the mainstream, especially when it is likely to lead to poor predictions about what the Court is likely to do. At least after Dames & Moore, Jackson?s concurrence (characterized by Yoo as for himself alone) was the law. But it clearly didn?t fit in with Yoo?s conceptual scheme.

And a final mystery. When exactly did Jackson?s concurrence become the touchstone that it is today? Clearly not when Youngstown was decided, for, as noted by Bellia and earlier by Maeva Marcus, there is plenty of evidence the constitutional scholars of the time were unimpressed. By 1973, Schlesinger wrote that Jackson?s opinion was ?brilliant then and classic now.? If nothing else, Schlesinger was a reliable barometer of elite opinion. Sometime in the intervening twenty years, a consensus had formed around the greatness of Jackson?s concurrence. It would be interesting to hear from those who learned about Youngstown in law schools in the 1960s and 1970s. Was Jackson?s opinion always perceived as important? By the time I learned the case, Dames & Moore had been decided, and Jackson?s concurrence was canonical. At least it was outside the precincts of OLC.

Full post as published by Balkinization on October 10, 2008 (boomark / email).