Robert Jackson

What happens when the president acts without Congress or even explicitly against them?

For this, we turn immediately to the most famous framework in constitutional law, Justice Robert Jackson's concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer.

If you wanna understand presidential power, this is the hydraulic system of the American Republic.

Let's set the stage for Youngstown because the history explains the mechanism.

First in his class.

And then he lands a clerkship with US Supreme Court Justice Robert Jackson, who was a strong advocate for First Amendment rights and civil liberties.

So he just had a supreme self-confidence.

And it was during his clerkship with Jackson, five months in, where Rehnquist would show what kind of conservative he was.

When the president acts, how do we measure the constitutionality of that action?

Almost every presidential action must be analyzed through the lens of Justice Robert Jackson's famous three-part concurring opinion in Youngstown Sheet & Tube Co.

During the Korean War, President Truman unilaterally seized the nation's steel mills to prevent a labor strike, claiming inherent executive power as commander-in-chief.

The Supreme Court struck the seizure down, but Jackson's framework became the gold standard for analyzing executive power.

The president's primary constitutional job is to execute the law, but the exam questions always arise when the president acts without Congress or even against Congress.

This is where we bring in the ghost of Justice Robert Jackson and his definitive three-part framework from Youngstown Sheet & Tube Company v. Sawyer.

The facts here are legendary.

It's 1952, the height of the Korean War.

But the enduring legacy of Youngstown is not the majority opinion.

It is the concurring opinion of Justice Robert Jackson, which established the definitive framework for analyzing presidential power.

Jackson recognized that presidential power is not fixed.

It fluctuates depending upon its relationship with congressional action.

And particularly the case of West Virginia Board of Education versus Barnett is, I think, it is the case that we should be looking to to see what the First Amendment is.

really should have always meant and should continue to mean if we are going if it is going to do its one job and i firmly believe this and you know if i'm on the other side of people when i say this so be it but the first amendment's one job is to keep us from becoming a totalitarian society that's its primary job everything else is secondary and if your free speech doctrine if your free speech law isn't keeping us from sliding into fascism but is instead accelerating our path to fascism then it's not working So what do we have in 1943? We have Justice Robert Jackson, who in two years later is going to become such a key figure in the Nuremberg trials, someone who is paying attention to what is happening in Nazi Germany.

who is paying attention over and over again to the idea that democratic ideals, including freedom of speech, can be appropriated for fascist ends.

He is aware of it in a way that I think is probably singular among Supreme Court justices.