Youngstown Sheet Research Articles

Robert Jackson's Non-Delegation Doctrine

This Essay explores Robert Jackson's theory of the non-delegation doctrine, which he first articulated in a brief that he filed as Solicitor General in Currin v. Wallace. The Supreme Court decided Currin without addressing Jackson’s broader arguments and his brief was forgotten. But the Currin brief deserves careful scrutiny both for the quality of its reasoning and for its two conclusions on non-delegation. First, Jackson argued that there are no internal limits on Congress’s discretion to delegate authority to executive agencies or independent boards. Second, he thought that there were such limits on Congress’s discretion to delegate authority to the President himself. The first point confirms, albeit in Jackson’s inimitable prose style, the legal consensus since 1935. His second point, though, would transform separation-of-powers law by extending constitutional limits to the authority that Congress may confer on the President for domestic affairs rather than focusing on only what Congress may take away from the President. Jackson’s brief in Currin also clarifies his canonical concurrence in Youngstown Sheet and Tube Co. v. Sawyer striking down President Truman’s seizure of the nation’s steel mills during the Korean War. In setting forth the first of his three categories for judging the legality of a presidential act, Justice Jackson explained: “When the President acts pursuant to an express or implied authorization of Congress, his authority is at his maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” This statement can be read to mean that a presidential action based on a congressional authorization is invalid only if the act is beyond the reach of the federal government. But that reading is wrong. Jackson qualified the phrase “all that Congress can delegate” with a footnote stating that executive action could be invalid because Congress cannot delegate authority to the President. Any ambiguities on that score are resolved by reading the Youngstown concurrence in conjunction with the Currin brief, where Solicitor General Jackson claimed that congressional delegations to the President could be unconstitutional. Embracing Jackson’s non-delegation doctrine would mean that federal statutes that delegate power over domestic affairs to the President would be subject to a constitutional attack on non-delegation grounds. The best example of such a vulnerable delegation is the National Emergencies Act, which gives the President unfettered discretion to declare an emergency and hence gain extraordinary powers. Under Jackson’s theory in the Currin brief and in Youngstown, a constitutional argument can be made against the parts of the National Emergencies Act involving domestic affairs. This non-delegation challenge would also draw from Justice Jackson’s discussion of emergency powers in Youngstown, which implied that an indefinite delegation of such broad authority by Congress to the President himself would be unlawful.

Adding Bite to the Zone of Twilight: Applying Kisor to Revitalize the Youngstown Tripartite

In the half century and more since Justice Jackson’s famous concurrence in Youngstown Sheet & Tube Co. v. Sawyer, the fog surrounding acceptable executive power in national security and foreign affairs has only thickened. Today, whether presidents are responding to the challenges of an amorphous global war on terrorism or a global pandemic, they act against a backdrop of ambiguous constitutional and statutory authorization and shifting precedent. While Justice Jackson outlined zones of presidential power by tying that power to congressional acts, the Court subsequently watered down the test by looking to other factors, like legislative intent. At other times, the Court appeared to jettison the Youngstown zones for uncertain statutory analyses. Responding to the changing precedent, some scholars and practitioners called for deference for executive actions in national security and beyond. Others called for using the same statutory tools as in any other case. A compromise is available. For courts seeking to remain faithful to Youngstown while recognizing calls for executive deference, I argue that they should look toward recent administrative law precedents. There, courts confront challenges similar to those in the national security and foreign affairs realms—unclear statutes and regulations, an inability to legislate with specificity, and political actors with more subject-matter expertise than the judiciary. The two-part test outlined in Kisor v. Wilkie, which focuses on whether a regulation is ambiguous and whether the character and context of the agency’s actions warrant deference, is the available compromise. The Kisor test would not only infuse clarity into Justice Jackson’s tripartite system, but would foster improved incentives for the political branches, such as encouraging the executive to utilize internal and external processes deserving of deference, while also serving as a measured restraint on the judiciary.

Executive Review and the Youngstown Categories: Vulnerability of Environmental Regulations to Unbounded Executive Review

[C]omprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country . . . . -Justice Jackson The power of executive review remains imperfectly limited and defined—it therefore holds such potential dangers and advantages. By executive review I mean the power of the President to interpret the law and determine for himself whether a given law or provision is constitutional. Most commentators agree that this power exists legitimately in one form or another. But some argue that it is virtually unbounded, save for the president’s own sense of deference to the other branches and his self-interest to remain in office. Such a comprehensive power surely is as dangerous as that of which Justice Jackson warns in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, if not more so. Moreover, if fully utilized, executive review would leave the judiciary with no authority, save over itself. Unbounded executive review could also be used as a tool to undermine well-established legal doctrines which underpin entire fields of regulation, especially with respect to environmental law, as discussed herein. If left unchecked by any means with real bite, executive review has the potential to turn the Executive into a truly despotic branch. This Note endeavors to determine the ambit of the validity of executive review, as well as to find such a means to delimit the power of executive review, hopefully without simultaneously removing from it all practicality. Part II provides some of the classic arguments supporting the validity of executive review, as well as a few of my own inspired by the methods that Professor Akhil Amar advances in his book, America’s Unwritten Constitution: The Precedents and Principles We Live By. Part III outlines the different types of presidential action that rely on the power of executive review, and provides a framework for analyzing and scrutinizing the various uses and forms of executive review. While this Note does not systematically outline all of the arguments criticizing the validity of the power, to the extent that they attempt to refute the power altogether, they have been satisfactorily rebutted elsewhere. However, this Note builds upon some of those critiques in Part IV, in arguing for the limitation of executive review. Part IV first evaluates Professor Michael Stokes Paulsen’s arguments for essentially unbounded executive review. Next, it theoretically applies executive review in the environmental law context in order to highlight the need to limit the power, as it is perhaps the field most vulnerable to the potential abuses of executive review. Part IV then looks to recent judicial precedent as a possible foundation for limiting the power, and addresses some practical considerations relevant to any such limitation. Finally, Part V provides a brief conclusion.

Amicus Brief of the Constitution Project Submitted to D.C. Circuit Court of Appeals in Smith v. Trump

In Smith v. Obama (2016), the District Court found that Captain Smith’s action presents a political question for three reasons: first, it presented questions committed to the political branches of government; second, the courts are ill-equipped to resolve those questions; and third, there is no conflict between Congress and the President regarding the lawfulness of the war against ISIS. In this brief, amici ask the DC Circuit to reverse that ruling, arguing that the District Court erred in each of those findings. First, the Supreme Court has previously reached the merits to decide two seminal cases that are directly on point — Little v. Barreme (1804) and Youngstown Sheet & Tube Co. v. Sawyer (1952) — without even considering the possibility that either presented a political question. Second, judicial fact-finding incapacities present an evidentiary hurdle that a plaintiff can overcome by meeting the applicable burden of persuasion, not an insurmountable justiciability barrier that prevents a plaintiff from even attempting to do so. And third, the District Court could conclude that no conflict exists between Congress and the president only by holding sub silentio that the War Powers Resolution’s clear statement rule is unconstitutional — thus creating an issue of statutory validity that the Supreme Court has emphasized does not present a political question.

Duty vs. Discretion: What Youngstown Can Teach Us About Inherent Executive Enforcement Discretion

This Article takes United States v. Texas, a case about the legality of President Obama’s “Deferred Action for Parents of Americans” (DAPA) immigration initiative, as an entry point for analyzing a significant and publically-salient, yet undertheorized, problem in constitutional law: executive discretion in enforcing the law. Although Republican and Democratic administration alike have long asserted a constitutionally-inherent power to decline to enforce civil and criminal laws, former-President Obama’s recent high profile exercises of this authority, including his enforcement policy on federal marijuana law and immigration law, have led to increased attention to enforcement discretion among popular and scholarly commentators. Surprisingly, however, academic commentators have almost completely ignored the relevance of a canonical separation of powers precedent to the constitutional debate surrounding executive nonenforcement: Youngstown Sheet & Tube Co. v. Sawyer. This Article is the first to systematically apply Justice Jackson’s famous Youngstown concurrence to the puzzle of the executive’s constitutional discretion in law enforcement. By doing so, the Essay provides a common lexicon within which commentators can debate the constitutionality of presidential nonenforcement in particular contexts, including DAPA. The Article's second contribution is to offer a positive theory of constitutionally-inherent enforcement discretion, including the power to supervise and prioritize law enforcement activities. I derive this theory from constitutional text, including the Executive Power Clause, the Take Care Clause, and the Due Process Clause. This inherent power, however, is malleable and defeasible rather than fixed and absolute. Congress can either explicitly or implicitly confer executive enforcement discretion to the constitutional maximum (Youngstown Category 1). Likewise, Congress can explicitly or implicitly cabin executive enforcement discretion, reducing it to the constitutional minimum (Youngstown Category 3). When the Executive is faced with Congressional silence, he acts in Youngstown Category 2. In the second category’s “zone of twilight,” however, executive enforcement discretion is limited to the President’s inherent constitutional powers. Based on my positive theory of constitutionally-sanctioned enforcement discretion, I argue that, in Category 2, the Take Care Clause does not preclude the Executive from exercising enforcement discretion, including the power to coordinate categorical enforcement priorities. Finally, I argue that, even in Category 3, the President’s inherent power of enforcement discretion ensures that he always retains at least some discretion to decline enforcement in individual cases, especially in the criminal context. Furthermore, in light of the powers concomitant to his constitutional duty to supervise, including the power to coordinate and prioritize enforcement, I argue offer a novel argument that the President’s inherent enforcement discretion power may extend beyond individualized discretion to countenance the creation of categorical civil enforcement priorities, even in Category 3. The Article concludes by applying the Youngstown framework and my positive theory of executive enforcement discretion to the question whether DAPA violates the Constitution. I conclude that DAPA most comfortably falls in Category 2, and that its provisions do not exceed the Executive’s inherent enforcement discretion under the Constitution.

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

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.

The President and Choices Not to Enforce

This paper was one of a number given in a panel on executive authority in a Duke Law School conference, Constitution Under Clinton: A Critical Assessment. As its title suggests, the principal subject of the panel was the President's authority, if any, to decline to implement statutes he regards as unconstitutional. The lead paper on the panel focused specifically on questions of the scope of the President's authority to engage in constitutional interpretation, relating that analysis to the role of the courts and their institutional responsibilities for deciding constitutional issues. This paper seeks to place this set of issues into a broader context of executive authority to prioritize in law enforcement. That is, executive authorities may decline to enforce particular statutes on the books in many contexts, independent of constitutional considerations -- because of resource constraints, because intervening developments render the statutes obsolete or inconsistent with other elements of the legal order, and so forth. Moreoever, the President's oath of office, an undertaking to preserve, protect and defend the Constitution of the United States, subsumes the proposition that the Constitution is among the laws whose faithful execution he is to assure. The suggested analysis draws on Justice Jackson's tripartite construction in Youngstown Sheet & Tube v. Sawyer: where the President would have to conclude that courts would find congressional authority to make judgments about constitutionality at its maximum, his own capacity for choosing not to enforce is essentially limited to the ordinary executive considerations such as prioritization; where its actions are unmistakably incompatible with the Constitution, as currently understood in judicial doctrine, his oath commands giving the Constitution preference; and in a zone of twilight, where the Constitution and judicial readings are unclear, he may rely on his reading of the Constitution (as well as on the more normal factors) until that reading has been overtaken by judicial decision.

The Law: Presidential Proclamation 6920: Using Executive Power to Set a New Direction for the Management of National Monuments

The creation of law involves the representation and participation of many actors with varied interests and resources. Unilateral lawmaking, however, is unique in its independence from the traditional legislative process because it does not require input from a variety of actors, most notably Congress (Howell 2003; Moe and Howell 1999). Instead, this tactic gives presidents an avenue to act when an issue is high on their agenda but Congress is not inclined to proceed because of gridlock or other concerns (Howell and Lewis 2002; Mayer 2001). Proclamations are one type of executive power that presidents have used in such areas as international law, foreign trade, public lands, and matters of entry into the United States (Rottinghaus and Maier 2007). Their degree of importance differs, with some being merely declaratory in nature, while others have a substantive effect (Fisher 2007, 103-5). In the area of public lands, proclamations of national monuments are especially interesting because they are both declaratory (they proclaim the change in status of the public lands), and they have an impact on policy making (they preserve existing rights, restrict future ones, designate a managing authority, and provide implementation guidance). (1) Congress granted the president broad discretionary power to proclaim national monuments under the Antiquities Act of 1906 (16 U.S.C. [section] 431-433). The act provides for unilateral lawmaking because the president is not required to consult with Congress, the state in which the monument is located, or the public prior to designation. However, even though the proclamation is the result of independent executive action, it carries the force of Congress behind it because the president is acting pursuant to the authority vested in the act (Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 [1952]). (2) The use of independent action by the president is best understood within the context of the conditions that fostered it, as well the long-term effect on public policy (Howell 2003, 177). This article, therefore, uses Presidential Proclamation 6920, which established the Grand Staircase-Escalante National Monument, as an opportunity to look closely at a unique example of unilateral lawmaking that will have a lasting influence on public lands policy (Mayer and Price 2002, 368-69). (3) The land that makes up the monument had served as a source of congressional debate for more than twenty years, and with what was considered by some to be an act of stealth policy making, President Bill Clinton decided the fate of the controversial lands by issuing Proclamation 6920, surprising both Congress and the state of Utah. An outraged Congress duly explored the implications of executive power under the act, but ultimately decided not to curtail presidential authority to proclaim national monuments. With Proclamation 6920, President Clinton also succeeded in laying the groundwork for a change of direction for both national monuments and the Bureau of Land Management (BLM). Since 1933, the National Park Service (NPS) had been the agency responsible for managing national monuments, and had done so in a manner that preserved monuments by restricting land uses. (4) When President Clinton issued Proclamation 6920, he put express restrictions on future land uses that would impact nearly any type of resource development within the Grand Staircase-Escalante National Monument. However, instead of assigning management to the NPS, he gave responsibility to the BLM, an agency whose mission supports resource development and multiple resource (or use) management. This change would result in an expansion of permissible uses within monuments while restricting future uses as constrained by the language in the proclamation. The Use of Presidential Proclamations in Public Land Law Public lands are those owned by the U.S. government and held in trust for the public interest (U.S. …

Introduction

Introduction Melvin I. Urofsky Beforetalking aboutthis issue, letme con­ gratulate Elizabeth Brand Monroe, who was awarded the 2008 Hughes-Gossett Award for the best article in the Journal in the preced­ ing year. Professor Monroe’s “The Influence ofthe Dartmouth College Case on the Ameri­ can Law ofEducational Charities” appeared in early 2007 (vol. 32, no. 1), and the judges be­ lieved its importance lay in shedding light on how a case normally associated with contract law actually had great impact in other areas as well. This issue, like many of its predecessors, covers a wide area of Supreme Court history. Some ofthe material will be familiar to many of our readers, while other material will intro­ duce them to relatively new ideas about the Court’s history. While we all know that the Court consisted solely of white men until the appointment ofThurgoodMarshallby Lyn­ don Johnson and of Sandra Day O’Connor by Ronald Reagan, Todd Peppers reminds us that during the first several decades that the Court employed clerks, nearly all ofthem were white males as well. William O. Douglas hired the first woman clerk, Lucille Lomen (OT 1944) and did so reluctantly: During World War II, the men joined the armed forces, so Douglas hadto take eitherMs. Lomen or no one. Butthe first African-American clerk, William Cole­ man, was welcomed by Felix Frankfurter, and went on after his year with the Court to have a distinguished career as a lawyer. One of the joys of editing the Journal is that not only can I badger my friends into writ­ ing for it, but also, when I come across some­ thingunexpected, we can move quicklyand get it for our readers. I was down in Louisville do­ ing research when one ofthe law librarians told me about some relatively unknown materials in the John Marshall Harlan Papers there. We talked about them for a while, and last year we published Harlan’s Civil War memoirs, edited by Peter Scott Campbell. In this issue, Peter has edited another of Harlan’s reminiscences, which seemed to have been written late in his life at the request ofhis children. Edward Carter, ofBrighamYoungUniver­ sity, and his collaborator James Phillips pro­ vide us with some new research on the for­ mative years of George Sutherland, one ofthe most important Justices of the early twentieth v vi JOURNAL OF SUPREME COURT HISTORY century, who grew up as a non-Mormon in Utah. Galen Thorp’s piece focuses on William Wirt, a man who, although he is relatively un­ known today, argued literally dozens of cases before the Supreme Court as Attorney General as well as in private practice, including the Burr treason trial, Gibbons v. Ogden (1824), and CherokeeNation v. Georgia (1831). Thorp wrote this exhaustive study while a student of Professor Richard J. Lazarus at Georgetown University Law Center. With younger histori­ ans turning out such good work, the profession can look to the future with optimism. Bruce Altschuler takes a new look at a classic case, Youngstown Sheet & Tube Co. v. Sawyer (1952), the famous Steel Seizure Case. This decision is often cited as evidence that thejudiciary—“the least dangerous branch”— can, when necessary, rein in the efforts of a President to overreach his constitutional au­ thority. In his article, Altschuler asks whether, after more than a half-century, the case still retains the vitality attributed to it. Normally we do not publish the type of long articles that frequently appear in law re­ views. But when Theodore Vestal sent us his piece on how the Warren Court got caught up in Cold War diplomacy, we knew we should have it, and with Vestal’s agreement, we de­ cided to run it in two issues. Part One appears here, and Part Two will appear in the first issue of 2009. This is not a side ofthe Court that is often seen, but a great deal of recent scholar­ ship points to the influence that the Cold War had on the Warren Court in the 1950s and early 1960s. As always, enjoy! ...

‘A Splendid Place to Live’ Housing and the Youngstown Sheet and Tube Company

‘A Splendid Place to Live’ Housing and the Youngstown Sheet and Tube Company

Justice Jackson's Draft Opinions in the Steel Seizure Cases

Justice Robert H. Jackson's opinion in Youngstown Sheet & Tube - also known as The Steel Seizure Cases - is, of course, no ordinary lone concurrence. As the nation debates executive action in the Global War on Terror, that opinion has grown ubiquitous in legal discourse. Jackson's analysis - including the famous tripartite framework for the evaluation of Executive action - now borders on conventional wisdom. Nonetheless, as Jackson's draft opinions reveal, that analysis did not spring fully-formed from the Justice's mind. Rather, it was the product of his deliberation, draft, and re-draft. His papers reveal not only the substantive evolution of his views, but also his changing efforts to justify the wartime actions of FDR as well as his own participation in the case. His drafts reflect his own ambivalence toward judicial limitation on the powers of the President, particularly in his reference to Korematsu, as well as his deep concern - relatively muted in his final opinion - that Congress would be unwilling to check the President. In sum, they warn of the folly inherent in reducing Jackson's views to a bullet-point version of his tripartite framework. Jackson's views - like the institutions he analyzed - are not so simple.

The Judicial Bookshelf

The Judicial Bookshelf D. GRIER STEPHENSON, JR. Decisions by the Supreme Court that are accorded “landmark” status are chiefly remem­ bered for their holdings and effects. Such cases are also typically linked to a particular era of judicial history, as Marbury v. Madison1 was to the Marshall Court and Jefferson’s presidency, as Youngstown Sheet & Tube Co. v. Sawyer2 was to the Vinson Court and Truman’s presidency, and as Miranda v. Arizona3 was to the Warren Court and the tumultuous 1960s. But probably only serious students ofthe Court will recall that Marbury was decided in 1803, Youngstown in 1952, and Miranda in 1966. And fewer still will know, without first consulting a reference, that Marbury came down on February 24, the Steel Seizure Case on June 2, and Miranda on June 13. Scholars typically associate decisions with years, not the day ofthe month. Yet there are a few exceptions to this gen­ eralization. Activists on both sides ofthe abor­ tion controversy gather outside the Supreme Court Building each January 22nd, the anniver­ sary ofthe 1973 decision in Roe v. Wade.4 Stu­ dents of the presidency associate the transfer of executive power from Richard M. Nixon to Gerald R. Ford with July 24, 1974, when the Watergate tapes case5 was decided. And probably no date link is stronger than May 17, 1954, the day that Brown v. Board of Education (I)6 came down.7 That decision a half-century ago not only erased constitutional approval for state-enforced racial segregation in public schools (and, by implication, in all other official settings) but invigorated—jumpstarted , some would say—the modern civilrights movement. Among othermajordecisions, neitherRoe v. Wade nor Brown v. Board would ever have happened, however, without the Fourteenth Amendment. Ratified in 1868, this constitu­ tional legacy ofthe Civil War opened the door to substantial change in the relationship be­ tween the national and state governments. In combination with the Thirteenth Amendment of 1865, which abolished slavery, and the Fif­ teenth Amendment of 1870, which formally removed race as a criterion forvoting, the Four­ teenthAmendmenthasbeen calledthe “second American Constitution.”8 In particular, Brown was the end of a journey (and the start of another) that began with that amendment. In different ways, five recent books intersect the story ofthe Fourteenth Amendment at various points along the way. THE JUDICIAL BOOKSHELF 347 The major question surrounding the new Fourteenth Amendment in 1868 was the legal status of four million African Americans who had been slaves before December 1865 and the legal status of nearly half a million people of color, many residing in the middle Atlantic states, who had never been slaves or who had gained their freedom prior to the war. This photo depicts an Alexandria, Virginia slave pen in the 1860s. In contrast to the single objectives of the Thirteenth and Fifteenth Amendments, the Fourteenth was actually six amendments rolled into one. The first sentence of Section 1 ad­ dressed citizenship: “All persons born or nat­ uralized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Those twenty-eight words constitu­ tionally consigned to the trash heap of history Chief Justice Roger B. Taney’s conclusion in Scott v. Sandford9 that the framers ofthe Con­ stitution never intended African Americans to be included within the meaning of the word “citizens” and so they could “claim none of the rights and privileges which that instrument provide[d] for and secure[d] to citizens of the United States.”10 The second sentence of Section 1 pro­ claimed new, broad, but undefined restrictions on state power: No State shall make or enforce any law which shall abridge the privi­ leges or immunities of citizens ofthe United States; nor shall any State de­ prive any person of life, liberty, or property, without due process of law; nor deny to any person within its ju­ risdiction the equal protection of the laws. The first clause borrowed language from Article IV ofthe Constitution: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The second clause drew verbatim from the due 348...

The Supreme Court, Separation of Powers, and the Protection of Individual Rights during Periods of War or National Security Emergency

The Supreme Court, Separation of Powers, and the Protection of Individual Rights during Periods of War or National Security Emergency* ROBERT F. TURNER To paraphrase Lincoln, there is little that I could say on the history ofthe Supreme Court’s handling ofcivil-liberties issues during periods ofwar or national emergency that could add or detract from the truly masterlyjob ChiefJustice William Rehnquist has already done in All the Laws But One.1 I highly recommend that book to any who have not yet read it. Because the ChiefJustice has provided such an outstanding overview ofthe subject, I shall depart a bit from what I might otherwise have said on this topic. While I do not intend to challenge the Chief Justice’s book—I would give it a grade of AH—one of my goals this evening is to challenge another popular book. In 1990, my very able friend Professor Harold Koh, ofYale Law School, published a volume called The National Security Constitution. It was se­ lectedby the American Political Science Asso­ ciation forthe 1991 RichardE.NeustadtAward as “the bestbook on the Americanpresidency,” and has been tremendously influential in the academic community.2 In the book, Professor Koh argues against what he called “unchecked executive discretion”3 in foreign affairs. He ar­ gues two points that I believe are fundamen­ tally mistaken. First, he perceives a struggle within the judiciary between two foreign pol­ icyparadigms, each representedby a landmark twentieth-century Supreme Court decision. He then argues thatthe courts have been too reluc­ tant to intervene in this area. Professor Koh’s central thesis is that the Court’s landmark 1936 decision in United States v. Curtiss-Wright Export Corporation* 324 JOURNAL OF SUPREME COURT HISTORY The Court’s 1936 decision in Curtiss-Wright con­ cerned an alleged violation of a prohibition of sales of arms or munitions to certain countries in South America. These men and women worked the produc­ tion line at a St. Louis plant making airplanes for the Curtiss-Wright Corporation. was essentially, to use his word, “trumped” by Justice Robert H. Jackson’s concurring opin­ ion in the 1952 case of Youngstown Sheet & Tube Co. v. Sawyer, often referred to as the “Steel-Seizure Case.”5 Candidly, I think Professor Koh has pre­ sented us with a false dichotomy. I see no fun­ damental conflict between Curtiss-Wright and Youngstown. For more than sixty years, the Supreme Court has been guided by CurtissWright in dealing with issues of foreign af­ fairs. The case has been cited time and again by the Court in literally scores of decisions since 1936, making it the most frequently cited foreign-affairs case in our history. Indeed, it is evident that Justice Jackson himself saw no conflict between his views in the Steel Seizure case and in the earlier Curtiss-Wright case, since he expressly cited Curtiss-Wright as con­ trolling authority for foreign-affairs cases in which the President acts with the concurrence of Congress6—a fact pattern he proceeded to distinguish from that ofthe Steel Seizure case. Those of you who are knowledgeable about Curtiss-Wright will likely realize by the time I am finished that 1 believe the Court achieved the right result—but for the wrong reasons. It remains the seminal case in the area of foreign affairs, however, and I think rightly so. 1 believe that Professor Koh has made a simple but serious error. Because administra­ tion lawyers, in attempting to justify President Truman’s order directing Commerce Secretary Charles Sawyer to seize privately owned steel mills during the Korean War, made reference to his “Commander-in-Chief” and “war” powers, Koh asks us to view the case as comparable to Curtiss-Wright. Butas Columbia Law School’s Professor Louis Henkin correctly observed in his 1972 volume on Foreign Affairs and the Constitution, “Youngstown has not been con­ sidered a ‘foreign affairs case.’”7 Indeed, the distinction is clear from even a cursory reading ofboth Justice Hugo Black’s majority opinion and Justice Jackson’s concur­ rence. Consider this language from the opinion ofthe Court: The order cannot properly be sus­ tained as an exercise ofthe President’s military power as Commander in Chief of...

The Price of Experience: The Constitution After September 11, 2001

The terrorist attacks of September 11, 2001, will change how we read the Constitution, and they will diminish the value of the elegant abstraction of a famous court decision like Youngstown Sheet & Tube Co. v. Sawyer. That new perspective will change far more than national security and separation of powers. Our understanding of the religion clauses, of the role of governors, of ethnic discrimination, and of what constitutes a compelling governmental interest are likely to change or may have already changed. The opinions of the Supreme Court are not the only sources of wisdom about reading the Constitution. Empiricism rests upon experience. In contrast, innocence is a priori reasoning untested by empiricism. Measured by the standard of wisdom bought with experience, the abstract erudition of Supreme Court decisions, including Youngstown, is unimpressive. For the thousands murdered at the World Trade Center and the Pentagon, the orations in Youngstown about the separation of powers rang hollow: These victims lost not only liberty, but life. The carnage of September 11th will transform a new generation of Americans as much as Pearl Harbor transformed an earlier one.September 11th was an intense, common experience that informed us about the balance between individual liberty and collective security. To believe in the existence of evil is no longer to be regarded as superstitious, antiquarian, or fanatical. September 11th reminds us that the text of the Constitution is replete with references to war, because the same Framers who devised the separation of powers and later wrote the Bill of Rights also saw the need to be vigilant in a dangerous world. It is an exaggeration to say that everything is different now. The words of the Constitution have not changed since September 11th. It has always been the case that the first duty that Article II, section 2 imposes on the President is to be Commander-in-Chief. What has changed, through experience, is our collective understanding of why the government's highest obligation under the Constitution is to defend its citizens.With the collective experience of September 11th, we can now see, after years of self-indulgence masquerading as virtue, that liberty and security are more than abstractions to be manipulated in elegantly written Supreme Court opinions. A world of danger cannot be dismissed with pretty words. Youngstown is a poorly reasoned decision on both takings and separation-of-powers grounds. Was President Truman's seizure of the steel mills a legislative act, or was it a military act taken pursuant to his powers as Commander-in-Chief, in the defense of the free world in America's first open conflict of World War III? Justice Black's opinion for the Court so thoroughly denigrates the latter possibility that it runs the risk of overstating the case about the boundaries of presidential power in matters that genuinely do threaten national security, let alone matters that jeopardize the security of the entire free world. Read in this way, Youngstown is a power grab by the Court and Congress.Youngstown has an unstated premise that the threat to liberty from foreign aggression is less than the threat to liberty when the President claims expansive powers to defend the nation from such aggression. September 11th was an awakening, an epiphany, to the empirical fact - not the abstract notion - that America had underestimated the danger of deadly aggression on its soil. The collective experience of witnessing thousands of American civilians slaughtered on American soil by foreign terrorists on September 11, 2001, is far more important to reading the Constitution today than is a case that has been portrayed as the backlash to the legally clumsy attempt, by a famously unpopular President, to invoke national security as the justification for seizing steel mills during a labor dispute in 1952, an election year in which control of the White House subsequently shifted from one party to the other. So what guidance could we expect to glean from Youngstown after September 11, 2001, if President Bush were temporarily to conscript private property in the name of winning the war on terrorism? Not much, most likely. A modern replay of Youngstown during the war on terrorism would likely have a different result. September 11th is the page of history to Youngstown's volume of logic.

Dueling Decisions

In a government of divided powers, the respective roles of the president and Congress in determining American foreign policy often are disputed. Rival Supreme Court decisions on this matter, U.S. v. Curtiss‐Wright Export Corporation (1936), and Youngstown Sheet and Tube Co. v. Sawyer (1952), were resurrected and argued with renewed vigor following the Iran‐contra affair. Despite attempts by the defenders of each decision to discredit or reinterpret the rival case, both decisions stand as reasonable, if incompatible, interpretations of constitutional meaning.

Building a Cooperative Economy: a Strategy for Community Based Economic Development

central city ghettos and poor rural areas is now beginning to take hold wherever localities have been hit by problems of economic decline. At the same time, increasing interest is being expressed in worker coopera? tives and employee owned businesses as means for stimulating and controlling local economic development efforts.1 The purpose of this article is to outline a strategy for local develop? ment that combines the best features of community based economic development and cooperative ownership. While in comparison to con? ventional businesses, cooperatives have proven to be more efficient and to provide a higher degree of employee satisfaction, they have been plagued historically by problems of initial organization and insufficient supplies of capital. Because of its efficiency advantage, the adoption of the cooperative form of ownership could increase the rate of success for community development efforts, but in order to do so the problems of cooperative ownership must be overcome. What role can the commu? nity movement and the major institution it has fostered, the community development corporation, play in the creation and nurturing of cooper? ation enterprises? Why is a public sector role necessary in the building of a cooperative economy and what should that role be? These are the central issues to be taken up in this article after reviewing the advan? tages of cooperative ownership and the solutions to the problems of cooperative ownership implemented in the Mondragon system of coop? eratives. *0034-6764/84/1201 -339/$ 1.50/0. Recently in Youngstown, Ohio, an attempt was made to combine worker and commu? nity ownership in a proposal to purchase the Campbell plant of the Youngstown Sheet and Tube steel mill. [Zwerdling, 1981, pp. 195-200] The proposal failed because the federal government refused to give needed loan guarantees.

RELIGIOUS LEADERS AS POLICY ADVOCATES: THE YOUNGSTOWN STEEL MILL CLOSING

ABSTRACTReligious organizations have always played a major role in the formulations of public policy. In the case of plant closings and mass unemployment, religious organizations have always assumed a leadership role in comforting and caring for workers and families under distress from job loss. Recently, religious organizations have broken from this traditional role to become advocates and actors in the politics of plant closings, economic development, and worker ownership. In this article, the efforts of religious organizations spawned by the closing of Youngstown Sheet and Tube are examined.

Method of making pipe having a liner layer of mixed resins : Woodson, C.S. (Youngstown Sheet and Tube Company) US Pat 3 988 412 (26 October 1976)

Method of making pipe having a liner layer of mixed resins : Woodson, C.S. (Youngstown Sheet and Tube Company) US Pat 3 988 412 (26 October 1976)

YOUNGSTOWN YS-T50 to YS-T140 STEELS

Abstract YS-T 50 to YS-T 140 Steels comprise a series of high-strength, cold-rolled steels designed to meet performance and weight-saving objectives. They are an extension of Youngstown's series of hot-rolled high-strength steels (see Youngstown YS-T Steel, Alloy Digest SA-261, March 1971). The YS-T 50 to YS-T 140 steels have minimum yield strengths ranging from 50,000 psi to 140,000 psi. This datasheet provides information on composition, physical properties, hardness, elasticity, tensile properties, and bend strength. It also includes information on heat treating, machining, and joining. Filing Code: SA-331. Producer or source: Youngstown Sheet and Tube Company.

Computer simulation and optimal scheduling of a soaking pit-slabbing mill system

Through the use of PASS IV and a heuristic programming technique, a computer simula-tion and optimal scheduling has been developed for a soaking pit-slabbing mill system. The simulation and optimization were carried out for the East Chicago Plant of the Youngs-town Sheet and Tube Company. The system considered included the pouring of heats, the stripping of molds, soaking pit operation, the slabbing mill, and hand conditioning of the semifinished slabs. Through the simulation and optimization developed, it was possible to identify the possible production bottlenecks and to assess the projected capital investment programs, along with determining the optimal operational decision rules. The basic ideas presented here should have a broad applicability to the modelling and optimization of other complex steel processing systems.