Curtiss-Wright versus Youngstown

Abstract

This chapter seeks to establish the symbolic terms of a transition that remains incomplete. By the outset of the twentieth century, America's ascendance as a major power exerted corresponding pressure on the Constitution's original conception of meaningful separation of powers applied to foreign and domestic affairs alike. Increased engagement in world affairs, diplomacy, colonization, imperialism, and wars major and minor inevitably shifted power to the executive at the expense of Congress and the courts. At the same time, courts had become less equipped to play their still-traditional role. By the mid-twentieth century, these and other factors pressured the judiciary to retreat from its envisioned role. At least a partial retreat did begin, and this would become more marked as the century progressed. It would not, however, become sufficiently systematic, unbroken, or unopposed to count as a legitimate customary amendment to the Constitution's original scheme. Then and now, two iconic cases embody the challenge in best determining the Court's role in foreign affairs and its ongoing repudiation: United States v. Curtiss-Wright Export Corp. and Youngstown Sheet ﹠ Tube Co. v. Sawyer.