This Essay examines the proper role of the Supreme Court in deciding disputes between Congress and the President. Progressive commentators are now urging the Court 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 antidemocratic. This 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 was inconsistent with congressional will and without any basis in the President’s independent constitutional authority. The subsequent embrace of Justice Jackson’s concurrence shows how Supreme Court decisions can have an effect outside the immediate confines or “life” of a case. In its “afterlife”—its use by members of Congress, officers and employees in the executive branch, and legal educators and other members of the public—Jackson’s concurrence has acquired a kind of democratic authority. In Congress, for example, it was quoted in legislative debates preceding the passage of the War Powers Resolution, the National Emergencies Act, and the Presidential Recordings and Materials Preservation Act, among other statutes. Justice Jackson’s broad, theoretical language and flexible framework proved useful to legislators seeking to regulate the President. By constructing his concurrence this way, Jackson helped to give it a central place in structuring the political maintenance of our Constitution’s separation of powers.
Life and Afterlife in the Steel Seizure Case,
Buff. L. Rev.
Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol70/iss2/6