The Hollowing out of Youngstown Sheet: How Congress and the Courts Can Restore Limits on Presidential Power

Abstract

Justice Jackson's concurring opinion in the Youngstown Sheet steel seizure case is seen as a rejection of unlimited presidential power and a suggestion that presidents should, when possible, act with Congress rather than acting unilaterally. However, his famous tripartite framework can be exploited. After 9/11, both the Bush and Obama administrations claimed statutory authorization when none existed in order to lend legitimacy to what were in fact unilateral actions. In most cases, Congress and the courts declined to challenge implausible theories of statutory interpretation relied on by the executive branch. The result is that national security power has increasingly been concentrated in the hands of the president, cloaked by the fiction that presidents are acting pursuant to statutory authority. Congress and the courts can and should give meaning to Jackson’s tripartite framework by rejecting implausible claims that executive branch action is supported by statutory authority. This would restore meaning to the tripartite framework as an effective tool to define and set limits on executive power.