David Weisberg has this outstanding post on Justice Jackson's concurrence in the Youngstown case, responding to this post by Eric Segall. I want to add two quick points.
First, to the extent Jackson was attacking originalism, his target was an especially unpersuasive version of originalism that is accepted by basically no modern originalists. Here again is the famous "dreams of Pharaoh" quote from his concurrence:
Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result, but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other. (343 US at 634-635, footnote omitted.)
No modern originalist thinks the inquiry is "what our forefathers … would have envisioned had they foreseen modern conditions." To the extent this is an attack on originalism (as Professor Segall contends), it's an attack on an outdated and discredited version.
(As an aside, Jackson was in any event wrong about Hamilton and Madison cancelling each other, at least as applied to the dispute in Youngstown. Although Hamilton was likely the most pro-executive of the framers, I'm not aware of any comment by Hamilton that even remotely suggests that he would have thought the President could, on his own authority, direct seizure of private property within the United States. Hamilton and Madison disagreed on whether the British monarch's executive power was at least in part a template for the U.S. President's executive power, but the British monarch did not have power to seize private property within the realm.)
Second, Professor Segall disparages Justice Black's majority opinion in Youngstown as a "foolish formalism and rarely cited for anything of importance." I disagree on two counts. There's nothing foolish about Justice Black's opinion. He makes a point that is fundamental to our constitutional structure: the President is not a lawmaker. This proposition arises directly from the vesting clauses of Article I and Article II: the Congress has legislative (lawmaking) power and the President has executive (law execution) power. That is the Constitution's single most important limitation on the power of the executive/President. To be sure, the implications of that proposition are not always clear in particular cases. But that does not undermine that core truth of the proposition as a constitutional lodestar. And in Youngstown the implications were in fact perfectly clear. The President could not, on his own say-so, alter the property rights of people within the United States (as President Truman purported to do).
And it's not true that Black's opinion lacks force for today's courts. One of the most important modern cases for presidential power is Medellin v. Texas, in which (among other things) the George W. Bush administration claimed that a unilateral presidential policy to enforce a non-self-executing treaty could override a contrary state law. Relying on Justice Black's opinion, the Court's majority rejected this claim of executive power:
The President’s authority to act, as with the exercise of any governmental power, “must stem either from an act of Congress or from the Constitution itself.” [quoting Youngstown]. . . . The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them. The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress. . . .'
The requirement that Congress, rather than the President, implement a non-self-executing treaty derives from the text of the Constitution . . . . Once a treaty is ratified without provisions clearly according it domestic effect . . . whether the treaty will ever have such effect is governed by the fundamental constitutional principle that the power to make the necessary laws is in Congress; the power to execute in the President. . . . see U.S. Const., Art. I, § 1 (“All legislative Powers herein granted shall be vested in a of the United States”). . . . Indeed, “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” Youngstown, 343 U.S., at 587.
(For more on the centrality of Justice Black's Youngstown opinion to constitutional structure, see my article The Vesting Clauses in Foreign Affairs, 91 George Washington Law Review at 1518-1523) The short of it is that, as the Supreme Court in Medellin recognized, Justice Black identified a core constitutional principle that retains its force today, even though Justice Jackson's eloquent concurrence remains the favorite of academic commentators.
Posted at 6:09 AM