Matthew J. Steilen, SUNY at Buffalo Law School, has posted Life and Afterlife in the Steel Seizure Case, which is forthcoming in the Buffalo Law Review:
--Dan ErnstThis Essay examines the proper role of the Supreme Court in deciding disputes between Congress and the President. Progressive commentators have recently argued that the Court ought to dismiss these cases as political questions, at least where doing so would give effect to congressional regulations of the President. The Court's interference is criticized as anti-democratic. The Essay advances a different conception of the Supreme Court's role by examining the famous Steel Seizure Case. In that case, the Court upheld an injunction barring President Truman from seizing the nation's steel mills, on grounds that doing so conflicted with a federal statute. The subsequent embrace of Justice Jackson's concurrence shows how Supreme Court decisions can guide the political resolution of disputes between Congress and the President. In its "afterlife"--its use by members of Congress, Executive Branch lawyers, and in later litigation--Jackson's concurrence has acquired a kind of democratic authority. It was quoted in legislative debates preceding the passage of the War Powers Resolution, the National Emergencies Act, and the Presidential Recordings Act, among other statutes. Justice Jackson’s broad, theoretical language and flexible framework proved useful to representatives. By constructing his concurrence this way, Jackson helped give it an afterlife and an essential place in structuring the political maintenance of our Constitution's separation of powers.
Robert H. Jackson (LC)
