Power Denied by Congress

Justice Black’s opinion of the Court in Youngstown Sheet and Tube Co. v. Sawyer notes that Congress had refused to give the President seizure authority and had authorized other actions, which had not been taken.798 This statement led him to conclude merely that, since the power claimed did not stem from Congress, it had to be found in the Constitution. But four of the concurring Justices made considerably more of the fact that Congress had considered seizure and had refused to authorize it. Justice Frankfurter stated: “We must . . . put to one side consideration of what powers the President would have had if there had been no legislation whatever bearing on the authority asserted by the seizure, or if the seizure had been only for a short, explicitly temporary period, to be terminated automatically unless Congressional approval were given.”799 He then reviewed the proceedings of Congress that attended the enactment of the Taft-Hartley Act and concluded that “Congress has expressed its will to withhold this power [of seizure] from the President as though it had said so in so many words.”800

Justice Jackson attempted a schematic representation of presidential powers, which “are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” Thus, there are essentially three possibilities. “1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possess in his own right plus all that Congress can delegate. . . . 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. . . . 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject.”801 The seizure in question was placed in the third category “because Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure.” Therefore, “we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress.”802 That holding was not possible.

Justice Burton, referring to the Taft-Hartley Act, said that “the most significant feature of that Act is its omission of authority to seize,” citing debate on the measure to show that the omission was a conscious decision.803 Justice Clark relied on Little v. Barreme,804 in that Congress had laid down specific procedures for the President to follow, which he had declined to follow.805

Despite the opinion of the Court, therefore, it seems clear that four of the six Justices in the majority were more moved by the fact that the President had acted in a manner considered and rejected by Congress in a field in which Congress was empowered to establish the rules—rules the President is to see faithfully executed— than with the fact that the President’s action was a form of “law-making” in a field committed to the province of Congress. The opinion of the Court, therefore, and its doctrinal implications must be considered with care, as it is doubtful that the opinion lays down a constitutional rule. Whatever the implications of the opinions of the individual Justices for the doctrine of “inherent” presidential powers— and they are significant—the implications for the area here under consideration are cloudy and have remained so from the time of the decision.806


343 U.S. at 585–87. back
343 U.S. at 597. back
343 U.S. at 602. back
343 U.S. at 635–38. In Hamdan v. Rumsfeld, 548 U.S. 557, 638 (2006), Justice Kennedy, in a concurring opinion joined by three other Justices, endorsed “the three-part scheme used by Justice Jackson” as “[t]he proper framework for assessing whether Executive actions are authorized.” The Court in this case found “that the military commission convened [by the President, in Guantanamo Bay, Cuba] to try Hamdan lacks power to proceed because its structure and procedures violate [the Uniform Code of Military Justice].” Id. at 567. Thus, as Justice Kennedy noted, “the President has acted in a field with a history of congressional participation and regulation.” Id. at 638. back
343 U.S. at 639, 640. back
343 U.S. at 657. back
6 U.S. (2 Cr.) 170 (1804). back
343 U.S. at 662, 663. back
In Dames & Moore v. Regan, 453 U.S. 654, 668–69 (1981), the Court recurred to the Youngstown analysis for resolution of the presented questions, but one must observe that it did so saying that “the parties and the lower courts . . . have all agreed that much relevant analysis is contained in” Youngstown. See also id. at 661–62, quoting Justice Jackson’s Youngstown concurrence, “which both parties agree brings together as much combination of analysis and common sense as there is in this area.” back