Executive Power in Youngstown\u27s Shadows

Fifty years after it was handed down, the Supreme Court\u27s decision in Youngstown Sheet & Tube Co. v. Sawyer is among the most important of the Court\u27s separation of powers cases. This Article explores two quite different legacies of the Youngstown case. First, Youngstown has a symbolic or rhetorical power, in that it stands as an example of a court invalidating the actions of a coordinate branch of government in a politically delicate context. When a court wields this weapon, it can take some cover in Youngstown\u27s shadows, and the possibility of a court exercising this power disciplines the executive branch. Second, the Youngstown case, and particularly Justice Jackson\u27s concurrence, is of special importance to congressional primacy scholars, who believe that the Constitution is best read to lodge most foreign affairs powers with Congress. The Article argues that Youngstown offers fewer lessons for analyzing problems of presidential power in foreign affairs than congressional primacy scholars suggest. In particular, the case offers no general theory of the scope of the President\u27s constitutional powers with respect to foreign affairs. Moreover, contrary to scholars\u27 assertions, the case provides no basis for courts to construe statutory delegations of authority to the executive in the foreign affairs area any more narrowly than statutory delegations of authority in purely domestic contexts. In fact, Justice Jackson\u27s opinion in Youngstown contains the seeds of a misplaced political question doctrine, in that it allows courts to skirt questions about the President\u27s constitutional authority in foreign affairs