War Powers Resolution and Youngstown Sheet: How Much Power Should the President Have?

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On June 2, 1952, Justice Jackson delivered a concurrent opinion in the case of Youngstown Sheet and Tube Co. v. Sawyer that would essentially shape the symbiotic relationship between the president and Congress and the ability of the Court to influence the law.

Justice Jackson, in writing one of nine different opinions, states that the relationship of the Congress and the presidency is one of flexibility and fluctuation. In particular, Jackson states that there are three instances in which “a President may doubt, or others may challenge, his powers and they are as follows:

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 possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty…

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. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility…

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…

Essentially, what these state are that the president has three tiers of power when it comes to its relationship with the Congress. The first stipulation incurs that the president’s power is at its maximum when they act in accordance with Congressional approval or within their constitutional limits as President of the United States. The second point outlines the fact that the president’s power is only moderately influential without the consent or approval of Congress, he may only use those powers that are granted to himself independently by Article II or those that are, at certain times, grey areas between the president and Congress. Thirdly, the president’s “power is at his lowest ebb” when he acts in conflict with the will of Congress since he may only rely on the independent powers of Article II.

While Jackson outlines this definition of power as it relates to Congress and the President. Jackson also identifies the relationship of the president and the Supreme Court as it relates to how the president maintains their respect or abuse of Congressional will. Firstly, Jackson states, “any seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation.” What this implies is that the Court would support the president with the widest, broadest interpretation of the law so long as he is acting in accordance with Congressional will. Secondly, if the President acts against the “implied will of Congress,” the Court will “only sustain exclusive presidential control…by disabling the Congress from acting upon the subject.” Along with this differentiation, the Court also recognized the fact that there exist “inherent president powers ex necessitate” in the even of a crisis. Seemingly, what this reveals about the Court is that is it more willing to grant the president more power when he acts in pursuance of Congressional will but becomes more scrutinized when the executive acts against it. It seems this is instance where the role of the Court is not only interpreting the law, but helping to create it. By becoming more scrutinized when a president acts against the will of Congress they are almost insuring that their powers become more exclusive and that the wishes of Congress are maintained.

Justice Jackson’s opinion also deals with the convention role of separation of powers in our government. He states, “Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress.” However, what he says definitively is that nothing is clearer in our Constitution than the fact that the declaration of war belongs to Congress. The president, thus, has the Constitutional right to be the commander in chief of the Army and Navy, yet Congress is the only one who has the ability to provide him with that Army and Navy. This interpretation is extremely narrow in regards to the separation of powers as defined by the Constitution. However, because Justice Jackson has interpreted that there do exist inherent powers of the president and that there are grey areas in which Congressional actions and Presidential action collide, there exists a certain vagueness that provides loopholes in the president’s ability to make decisions and implement his will. This represents a question that refers back to previous journals: Do we wish to have a strong unitary executive or not?

This implication is vast for the regular conduct of government. By implying that the president has inherent powers, it also insinuates that there are these loopholes that the president may use to go around the will of Congress and implement his will. These loopholes are no better exemplified than by the War Powers Resolution of 1973. Because of the vague language like “consult” and “every possible instance,” it leaves the president’s requirements at his discretion. It also allows for the president to commit troops without the prior approval of Congress. There are also problems inherent with the War Powers Resolution. For example, the sixty-day requirement for the president to report his actions to Congress could result in troops becoming overly committed in a nation, thus making them unable to reasonably withdraw troops.

What can be concluded from both of these documents is that our government in flawed. There exist many loopholes, which the president and Congress can exploit to their benefit. In regards to presidential power, Justice Jackson states, “The executive action we have here originates in the individual will of the President, and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance... What is true is that nations that have leaders who abuse power are “destined to pass away.” What remains to be seen is whether or not our nation will suffer that same fate.