William Baude (University of Chicago Law School) has posted Youngstown (16 pages) on SSRN. Here is the abstract:
In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court addressed a critical constitutional issue: When can the President act in ways that have not been authorized by Congress? The Court’s answer has enduring importance for executive power, as well as for judicial power, under the Constitution.
As discussed in The Constitution’s Text in Foreign Affairs, and more recently and briefly in The Vesting Clauses in Foreign Affairs, I think Justice Black’s Youngstown majority opinion was mostly right from an originalist perspective. Justice Jackson’s influential concurrence is more originalist than many people realize (read all the way to the end!) but also leads to Presidents claiming power beyond what the original meaning justifies — Dames & Moore v. Regan being a key example. And today the President might plausibly claim, under Jackson’s analysis and Dames & Moore, that Congress’ failure to pass legislation limiting the Iran operations indicates congressional “acquiescence” in the President’s actions.
Posted at 6:09 AM