Justice Jackson knew the score in 1952

Wouldn't it be nice to have our constitutionally elected public officials at least show some modest familiarity with the basic concepts of the founding document that established, and defined their limited powers? Is that too much to ask?" Yet perhaps as a medievalist trained in paleography I expect too much from these guys. Well, fortunately for George, Dick, and Alberto there is a Cliff-notes version!

Short, sweet, and readily available, the opinion of Justice Black of the U.S. Supreme Court in the case of Youngstown Sheet & Tube Co. v. SawyerSupreme Court of the United States,1952,

Justice Black (1952) concurring opinion:

"Youngstown Sheet & Tube Co. v. Sawyer
Supreme Court of the United States,

"The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.

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. If his act is held unconstitutional under these circumstances, it usually
means that the Federal Government as an undivided whole lacks power. A 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, and
the burden of persuasion would rest heavily upon any who might attack it.

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. In this area, any actual test of
power is likely to depend on the imperatives of events and contemporary
imponderables rather than on abstract theories of law.

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.
Courts can sustain exclusive Presidential control in such a case only by disabling
the Congress from acting upon the subject. Presidential claim to a power at once
so conclusive and preclusive must be scrutinized with caution, for what is at stake
is the equilibrium established by our constitutional system.


The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.

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. If his act is held unconstitutional under these circumstances, it usually
means that the Federal Government as an undivided whole lacks power. A 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, and
the burden of persuasion would rest heavily upon any who might attack it.

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. In this area, any actual test of
power is likely to depend on the imperatives of events and contemporary
imponderables rather than on abstract theories of law.

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.
Courts can sustain exclusive Presidential control in such a case only by disabling
the Congress from acting upon the subject. Presidential claim to a power at once
so conclusive and preclusive must be scrutinized with caution, for what is at stake
is the equilibrium established by our constitutional system.