Focus of Hearings Quickly Turns to Limits of Presidential Power





The opinion is more than 50 years old, and it is not even binding precedent. But just minutes into the Supreme Court confirmation hearings of Judge Samuel A. Alito Jr., it took center stage and seemed to lay the groundwork for the questions he will face concerning his views on the limits of presidential power.

The 1952 opinion, a concurrence by Justice Robert H. Jackson, rejected President Harry S. Truman's assertion that he had the constitutional power to seize the nation's steel mills to aid the war effort in Korea. Whether and how Justice Jackson's analysis should apply to broadly similar recent assertions by the Bush administration, notably concerning its domestic surveillance program, will plainly be a central theme when questioning of Judge Alito begins Tuesday morning.

In 1952, the Supreme Court faced a set of clashing interests in the Youngstown case broadly similar to those in the current surveillance controversy. That April, President Truman seized the nation's steel mills to prevent an expected labor strike, saying that national security during the Korean War required uninterrupted access to steel.

In June 1952, in a 6-to-3 decision, the Supreme Court rejected the various legal rationales offered by the Truman administration for the seizures. Many of those rationales have echoes in the justifications offered by the Bush administration for its detention of enemy combatants, harsh interrogations and domestic surveillance without court approval.

Writing for the court, Justice Hugo L. Black said the president's power was extensive but not unlimited.

"Even though 'theater of war' be an expanding concept," Justice Black wrote, "we cannot with faithfulness to our constitutional system hold that the commander in chief of the armed forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the nation's lawmakers, not for its military authorities."

Comment by Jackson Scholar John Barrett

Regarding Adam Liptak’s fine article, here are a few thoughts on one specific: his comment that “[i]t is not entirely clear why Justice Jackson’s [Youngstown] concurrence has had such a lasting impact.” Liptak offers one possible answer: “It may be because [Jackson] spoke with particular authority, having argued for expansive executive power as President Franklin D. Roosevelt’s attorney general, much as Judge Alito did when he was a lawyer in the Reagan administration.”

I agree that the lasting significance of Jackson’s Youngstown opinion, and particularly its analytical framework, is due in part to its attractively biographical dimension, which has two parts: (1) Jackson did have a high-level, personal, detailed background in high stakes exercises of executive power; and (2) he did demonstrate, in his judicial opinions from 1941 forward (e.g., in his dissenting opinion in Korematsu v. United States (1944), the Japanese American exclusion case), in his work as the chief U.S. prosecutor at Nuremberg (1945-46), and in Youngstown itself, a thoughtful, candid, judicial-role-based and practical perspective on those matters. Some other explanations for the lasting impact of Jackson’s opinion include: (3) Jackson’s uniquely large stature, then and since, based on his work at Nuremberg as an architect of legal principle, historical record, international law and, indeed, the world itself since 1945; (4) widespread bipartisan—indeed, non-partisan and even anti-partisan—high regard for Jackson, in his time and since; (5) the quality, clarity and utility of Jackson’s reflective prose in his Youngstown opinion; (6) by contrast, the formalistic, brief and, to most constitutional analysts, unsatisfying nature of Justice Black’s opinion for the Supreme Court majority in Youngstown; and (7) the fact that subsequent Supreme Courts and Justices, including Chief Justice Rehnquist, Justice O’Connor and, last September, then-Chief Justice nominee Judge John Roberts, all have invoked, employed and lauded Jackson’s Youngstown framework for thinking about the scope of a President’s constitutional powers.

In other words, Adam Liptak’s rhetorical question is akin to asking why the Mona Lisa is a great painting. My quick answer, akin to “Go to the Louvre and just look at the lines!,” is to point, as his own article does, to constitutional discourse and conduct in the courts, legislature, executive branch and among “We the People” since 1952—including the moment that is, right now, playing on C-SPAN.



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