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

Abstract

Justice Jackson's concurring opinion in the Youngstown 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 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 and/or found ways around constitutional limits. In most cases, Congress and the courts failed to set meaningful limits on executive power. The result is that national security power has increasingly been concentrated in the hands of the president, cloaked by the dubious claim 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 and by applying constitutional limits to joint action by the elected branches. This would restore meaning to the tripartite framework as an effective tool to define and set limits on executive power.