By: Joaquin Suriel ‘25
I. Introduction
The purpose of this article is to give a brief introduction into the history and legal jurisprudence behind the landmark ruling in Youngstown Sheet and Tube Co. v. Sawyer. Special attention will be put on Justice Robert H. Jackson’s concurring opinion. Although a bit of a truism, his tripartite framework serves as an excellent lens to look through when assessing presidential power. His reasoning is clear and concise, and allows everyday citizens of the United States to engage in and formulate opinions about the judiciary, as his logic is straightforward. Special attention will be paid to George W. Bush, Obama, and Trump administrations, as partisanship has grown and gridlock has become the norm under their tenures. Several cases will be examined in which the president took a broad reading of his powers established in Article II, and how Justice Jackson’s framework can be applied to illuminate judicial reasoning as it pertains to the scope of presidential power.
II. Understanding Youngstown v. Sawyer
President Harry Truman issued executive order 10340 on April 8, 1952. On June 25, 1950 the United States began military operations to combat the northern part of the Korean peninsula’s effort to spread Communism throughout the country. As the war pressed on, the United States had to make strategic changes within its economy due to the escalating conflict. President Truman issued gradual tax hikes but wages remained virtually stagnant, leading to civil unrest from some of the nation’s invaluable blue-collar workers, many of whom participated in labor unions. One such group within this paradigm was the steel union. Indispensable to the war effort, they tried to leverage their position as essential workers by demanding higher wages: “By 149 late 1951 the unions were asking for wage increases above the 10% maximum set by the Wage Stabilization Board.”1 However, President Truman’s grip on the economy proved to be too much for the unions. The Office of Price Stabilization (OPS) had enacted price controls on industries such as steel, and the Wage Stabilization Board (WSB) acted to limit wages for those affected to what they reasoned to be a fair amount. Companies sparred with union leaders since they were in no better position than their workers. Unless they could capitalize on their profits, they would not concede to the union members the wages they demanded. The OPS refused to engage in reform after multiple rounds of negotiation,2 resulting in companies being unable to deliver better wages for the unions. As the strike continued into 1952, the WSB recommended in March that steelworkers receive increased wages.3 Fearing losses in quarterly profits, the steel mill owners stood by their principal positions, abnegating to increase wages without first capitalizing on their profits. Since steel was vital to the war effort, the strike ensued and President Truman found himself in a precarious situation. There is precedent for the President of the United States to have the power to put people back to work during a strike: “For instance, in 1917 President Wilson nationalized the railroad industry to keep workers from striking during WWI.”4 The 80th Congress passed the Taft-Hartley Act, severely limiting the powers of labor unions to go on strike. However, it constrained the President from being able to order them back to work. This act did allow the President to force them back to work after 80 days while workers negotiated with their workplace superiors. Finally, Congress implemented a new provision to the Selective Service stating: “Whenever the President after consultation with and receiving advice from the National Security Resources Board determines that it is in the interest of the national security for the Government to obtain prompt delivery of any articles or materials the procurement of which has been authorized by the Congress exclusively for the use of the armed forces of the United States.”5 Essentially, the President is able to use his enumerated power of Commander in Chief in Article II of the Constitution to make decisions that he deems necessary for national security. At 10:30 p.m. Eastern Time in a televised event, Truman announced that he had ordered Secretary of Commerce Charles W. Sawyer to seize the steel mills and continue production.6 He gave his rationale for why he would not be taking the other options given to him, and subsequently the labor unions terminated their strike. The steel companies sued, arguing that the President had overstepped his Constitutionally commissioned powers. The case was then litigated all the way to the Supreme Court. Although the lawsuit was argued against the President’s action, it was directed at the Secretary of Commerce and his department as he carried out the Executive Order. Oral arguments began on May 12. On June 2, 1952 the Court ruled 6-3 in favor of the plaintiffs.7 Justice Hugo Black wrote the majority opinion, agreeing that President Truman had no authority to take such action.8 Despite six justices agreeing in principle, seven of the nine justices wrote their own opinion, including all six in the majority. Only three of the six assenting justices endorsed Justice Black’s opinion. However, it was Justice Robert H. Jackson’s concurring opinion that proved to be the most famous and influential. In the landmark Supreme Court case of Youngstown Sheet and Tube Co. v. Sawyer, Justice Jackson stated that he believed the ebb of presidential power flowed with Congressional support. In what became known as the “Steel Seizure Case,” Justice Jackson created a “tripartite framework” for assessing the president’s authority. 9 In Zone One, the President uses his executive power in Article II as well as Congress’s Article 1 lawmaking power to enact legislation. In this sphere, the President is acting at “maximum authority” because he has gone through the entire process of legislation making.10 He reasoned the Court applies the “strongest of presumptions” of constitutionality in this scenario.11 In order for the Court to rule an action of Congress unconstitutional, it would have to find a significant problem that transcends both congressional and presidential power simultaneously. The chances that both branches had acted in a constitutionally prohibited way would be unlikely. At the other end of the spectrum is Zone Three. In this zone Justice Jackson believes presidential authority is at its “lowest ebb” and the Court must “scrutinize with caution” any action taken within this sphere.12 To be classified in zone three of this framework the President would have to act unilaterally and without the consent of Congress. Legally, the President must rely on his Article II powers, which are saliently few compared to Congress. Within this zone the President would in many instances have to rely on his implied powers derived from the “take care”13 and “vesting”14 clauses. As these clauses are ambiguous, the President is at the mercy of judicial interpretation. Justice Jackson reasons that the Court must place a heedful eye when presidential action is taken within this domain in order to ensure Congressional power has not been usurped. It is the foremost duty of the court to maintain the separation of powers and 14 prevent the chief executive from growing tyrannical, so the court should be much more willing to strike down actions without Congressional consent. In Youngstown v. Sawyer President Truman did not cite the “take care”15 or “vesting”16 clauses, but rather his authority as “Commander in Chief”17 of the Armed Forces. Because he proceeded unilaterally, Justice Jackson reasoned he was operating within Zone Three of his framework, and his action had crossed Constitutional boundaries. Sandwiched in-between these two spheres is Zone Two, otherwise named the “Zone of Twilight.”18 When acting within this sector the President neither has approval nor dissent from Congress. Because of this, the Court is at an impasse. The president is most certainly not as powerful when receiving full Congressional support, but not as weak as when Congress refuses to work with the administration. Essentially, the United States Congress remained silent on the issue and it is up to the courts to put a check on the president. Youngstown Sheet and Tube Co. v. Sawyer limited presidential power. The framework laid out by Justice Jackson’s concurring opinion gives courts solid legal jurisprudence for tempering a president from individually enacting his agenda. This landmark case has been subject to much debate and analysis in both legal and scholarly realms.19 The “tripartite framework”20 is the single biggest consequence of this case, and it is worth testing Justice Jackson’s hypothesis to see how it applies to contemporary presidents.
III. Examining Cases under Contemporary Presidents
Examining cases from the turn of the millennium in the Bush, Obama, Trump, and Biden administrations can give a good gauge if presidential power changes with Congressional support in recent history.
Case A
In 2001 Salim Ahmed Hamdan, a Yemenise citizen who worked for Osama Bin Laden, was captured by military forces during the Afghanistan invasion. He was turned over to the United States, and in 2002 was sent to the Guantanamo Bay detention camp in Cuba. The United States charged Hamdan with conspiracy to commit terrorism.21 George Bush’s administration planned to try him in front of a military commission established by the Department of Defense, who declared he was a military combatant. JAG lawyer Charles Swift quickly petitioned for a writ of habeas corpus, arguing that his military commission was unconstitutional and violated both the Geneva Convention and United States Code of Military Justice Secretary of Defense Donald Rumsfeld was the named defendant in this case.22 The District Court of Appeals for the District of Columbia ruled that because Congress had delegated broad power to the President during the war, what had happened to Hamdem was not unconstitutional.23 They took an expansive reading of Article II powers and the authorization to use military force given by Congress. The Supreme Court issued a writ of certiorari to hear the case on November 7, 2005. It was argued on March 28, 2006. In a 5-3 decision reversing the District Court of Appeals, Justice Jackson’s framework in Youngstown is apparent. 23 After September 11th the United States saw a huge increase in power delegated to the President. This was by way of Congress' authorization of the use of military force.24 Although Congress had consigned significant authority to President Bush, it did not explicitly state he had the power to establish military tribunals. The Court ruled that Congress has to legislate and not delegate in matters relating to wartime efforts.25 This affirmed the Judiciary's position in maintaining the separation of powers between branches of government. Justice Jackson’s three-category framework applies to this scenario as it ensured that the president cannot take far reaching action without Congress’ explicit support. This case could fall under category two in Justice Jackson’s framework because it can be argued that Congress’ position is unclear, although most members of the Supreme Court implementing this framework saw it as being in category three. The president cannot misconstrue phrases in legislation to get his way, and the Supreme Court made sure to keep the branches of government in check. Justice Kennedy cited Justice Jackson in his concurring opinion, saying that his focus on Congressional action is the appropriate method of assessing the legality of unilateral action. Furthermore, Justice Kennedy wrote, “The proper framework for assessing whether executive actions are authorized is the three-part scheme used by Justice Jackson in his opinion in Youngstown Sheet & Tube Co. v. Sawyer.”26 This structure allows for a close analysis when examining presidential power. He reasons that Bush had acted within the third category of Jackson’s framework, as he overstepped his authority as contained in Article 36 of the UCMJ.27 This statute allows the president to build on prior regulations, but it does not allow him to be as liberal in his rational as he did: “the Court observes that Congress' choice of language in the uniformity provision of 10 U.S.C. § 836(b) 27 10 USCS § 836 (Aug. 10, 1956) 155 contrasts with the language of § 836(a).”28 Thus, Jackson’s framework provides a precedent for future judicial opinions. Though the other Justice’s are not citing Justice Jackson, they reasoned that the president cannot disregard congressional limitations as laid out in the Constitution. For example, Justice Stevens also found that the president’s actions extended beyond his authority laid out by the Congress as it pertains to the previous set of laws, and that a compelling state interest was not sufficient enough to hold in this situation. Therefore, the Court’s eye was placed on Congress as they could not find strong legal footing to support the President. After carefully examining Congress’ intent in their legislation, they ruled against Rumsfeld. This ruling was the first time since Youngstown that the Court had ruled a wartime act by a President unconstitutional, and their rationale contains legal jurisprudence profoundly similar to the pyramid created by Justice Jackson.
Case B
Since the turn of the millennium, a higher degree of scrutiny has been placed on Presidential power. Perhaps the most prominent legislation passed in the last fifteen years was the Patient Protection and Affordable Care Act under Barack Obama. 29 This law was highly controversial as it amended the U.S. tax code to impose an individual mandate for health insurance. Individuals who were not exempt had to pay a tax penalty if they did not get minimum coverage. After the law was signed, plaintiffs such as the National Federation of Independent Business argued that “(1) the individual mandate exceeded Congress' enumerated powers under the Commerce Clause; (2) the Medicaid expansions were unconstitutionally coercive; and (3) the employer mandate impermissibly interfered with state sovereignty.”30 In NFIB v. Sebelius, the Supreme Court ruled unanimously that the provisions of the law in question were constitutional. 156 Although the various justices each had different reasoning for upholding the law, for the purposes of this article it is best to focus on what John Robert’s jurisprudence was, who wrote the opinion of the court. He reasoned that it was within Congress’ power to enact most provisions, citing their power to tax.31 If Barack Obama had tried to alter the tax code or sign executive orders shaping major healthcare policy, it would have been impossible to carry out. It is simply not within his Article II powers to do so. However, because Barack Obama went through Congress, who has the explicit power to tax,32 John Roberts upheld the law to be constitutional. NFIB v. Sebelius is a good case study for examining Justice Jackson’s tripartite framework. Had he taken unilateral action, he would be operating in Zone Three of the framework. However, because he worked with Congress, it falls into Zone One, which gives the federal government leeway in the lawmaking process. The Court examined both the president’s power to execute the law and Congress’ power to make legislation and tax. When considering all of these as a whole, John Roberts reasoned it was within their authority. Chief Justice Roberts references McCulloch v. Maryland to offer a refutation to those who believe it violates principles of federalism. Insofar as the federal government reigns supreme when in conflict with state issues, Roberts states that the court’s duty is to examine if the “Constitution grants Congress powers it now asserts.”33 Whereas the justices found sufficient evidence of Congressional power, the states have to defer to national demands. This leads to a substantial point that lends credence to the kind of rationale Justice Jackson so elegantly put into words. The basis of federalism in our government hinges on questions pertaining to federal power within the tripartite framework. If the court rules an issue is within the jurisdiction of the president, he can act and shape policy as he sees fit. If he is not given discretion by the court, he must obtain Congress’ support to enact legislation and be shielded from legal challenges from the states. If neither of these happen, power is given to the states to use their discretion when implementing or forming new policy. Thus, Justice Jackson’s framework can help illuminate if an issue falls within federal or state power. As it pertains to NFIB v. Sebelius, however, Justice Jackson’s pyramid demonstrates that even when there is real controversy surrounding legislation, the Court is much more willing to defer to the President with congressional support.
Case C(i)
As polarization has increased in the United States presidents have relied increasingly on unilateral action to accomplish meaningful change. Although President Trump seemed to rely heavily on executive action, he used his power no more than previous presidents.34 Despite taking the same amount of measures, Trump has lost in the courts more than any president in modern history. 35 For example, while most presidents have around a 70% win rate when trying to change regulatory policy, Donald Trump had a win rate of approximately 23%. The phrase live by the pen, die by the pen has been a popular one when explaining why it is easy for president’s to come into office and change previous bureaucratic policy. Typically, in their first year of office presidents try to reverse executive orders that they disagree with. However, this has not been easy to do in recent history. One of the policies where President Trump heavily disagreed with Barack Obama was regarding his DACA program. Because Obama had signed DACA into law via executive order, Trump just as quickly tried to discontinue it. However, in Department of Homeland Security v. Regents of the University of California the Supreme Court upheld President Obama’s program in a 5-4 decision. They concluded that his action was “(1) judicially reviewable and (2) done in an arbitrary and capricious manner, in violation of the Administrative Procedure Act (APA).” 37 In essence, the Court found President Trump did not go through the proper channels when trying to exterminate this program. John Roberts felt that Trump had erratically decided to end the program, and his administration did not produce the evidence needed to terminate it. This has become a growing theme in recent presidential administrations. In order to change major policy in the United States, the president must consider all of his options and not act with unnecessary haste when trying to alter policy. Justice Jackson’s concurring opinion is once again an indispensable tool to analyze why the Court ruled in such a manner. Because President Trump had tried to independently change significant policy, the Court had reason to examine him with a critical lens. He was operating within the second category of Jackson’s framework as this was not an issue Congress had litigated themselves. However, if President Trump had passed legislation with Congress’ help that effectively terminated the DACA program and created a new system, it would have been more difficult for the Supreme Court to find fault with his administration. Passing legislation with Congress’ assent is difficult, and thus it would not have been a violation of separation of powers as Congress is the proper channel when forming policy.
Case C(ii)
Additionally, one of President Trump’s key campaign promises was to build a wall at the southern border of the United States to stop illegal immigrants from Mexico from entering the country. Perhaps the most well known constitutional power of congress is their power of the purse. Because they control where funding goes, President Trump appealed to them to secure financial backing for his wall. When Congress refused to appropriate the necessary funds, it resulted in the longest government shutdown in U.S history. President Trump cited his authority over issues involving national defense to construct the wall. The U.S. Court of Appeals for the Ninth Circuit was the most recent court to rule on the issue. They held it to be an unlawful action for the President of the United States to sequester money for a wall that was not Congressionally authorized. As Justice Jackson would say, his authority was at its “lowest ebb.”38 He was acting without the explicit consent of Congress, and the Court was able to find his action unconstitutional. The Court felt the President was overstepping his constitutionally limited powers by entering into a domain under which Congress has explicit authority. Due to the rise in partisanship, presidents have tried to expand the scope of their power. The courts are aware of this issue; therefore they have become ever more wary of presidents overstepping their fettered authority. It is more certain now than ever before that the courts will examine Congress to determine if the president is acting in a proper manner. If President Trump had secured funding from Congress, his wall would have been constitutionally permissible.
IV. Concluding Remarks
Ultimately, Justice Jackson’s hypothesis is correct and can be seen in the modern age. The courts have been increasingly willing to strike down unilateral presidential action. Starting with Hamdan v. Rumsfeld, the courts have not bought the excuses of implied presidential power, even during wartime. Instead, they like to place tougher scrutiny on this type of action when related to major policy change. Whether subconsciously or purposefully, the ebb of presidential power in the court’s eyes does hinge on the level of support from Congress. In an increasingly polarized climate, presidents have relied on unilateral action to accomplish their policy preferences. If the courts strike down these actions at an increasingly high rate, it may appear that the government is not functioning because it will have little ability to meet the complexities facing the country. However, this is what the Framers intended. They did not want a president to become ‘imperial’ and be able to single handedly create policy. The American system is one of checks and balances. It is designed to prevent tyranny from one single branch. It would rather stop a bad actor from doing bad than help a good one doing good. Although it is frustrating, the Supreme Court, and the entire judicial system, act as a safeguard for the Constitution. Precedent holds immense weight in the legal system, and the framework created through Youngstown v. Sawyer protects the citizens of the United States from an imperial president. Though it may seem obvious that the President’s power is stronger with the help of Congress, Jackson’s logic is incredibly sound and inescapable when analyzing constitutional questions involving presidential power.