Mike Ramsey links to this post by Stephen Griffin on his new book on Foreign Affairs. Stephen criticizes Justice Jackson's famous concurrence:
Students of debates over presidential power know this relates to Justice Jackson’s concurring (now controlling) opinion in the Steel Seizure case. Jackson specifically rejected the vesting clause thesis and assumed that founding era debates such as the Pacificus-Helvidius clash showed that it was fruitless to rely on historical evidence to resolve separation of powers problems. But Jackson did not consider the narrower possibility that the vesting clause underwrote presidential power with respect to foreign policy. And he was simply too quick in concluding that the Pacificus-Helvidius debate was a wash. The belief that the Pacificus-Helvidius debate showed deep divisions among the framers as to presidential power in foreign affairs, including the war power, has been one of the main stumbling blocks preventing scholars from seeing that there was a univocal founding era judgment that only Congress could commence “war.” Ramsey and Casto have shown that careful scholarship can improve our knowledge of the past even with respect to texts that have long been available and discussed for decades.
I regard Jackson's opinion as a strong contender for the most overrated Supreme Court opinion of all time. And due in part to the power of the scholarship of my co-blogger, Mike Ramsey, and my former colleage Sai Prakash, more people are coming to view Jackson's opinion as problematic.
That said, I should note that part of the reasons I think Jackson viewed the Vesting Clause so negatively is that the government and the dissent in Youngstown so overstated the authority the Clause conferred on the President. Both Mike Ramsey and I agree (and I assume Sai Prakash as well) with the majority in Youngstown that the President's action was unconstitutional and not justified by the Vesting Clause.
Posted at 8:07 AM