Justice Jackson's Draft Opinions in the Steel Seizure Cases

22 Pages Posted: 2 Mar 2006

See all articles by Adam White

Adam White

American Enterprise Institute; George Mason University - Antonin Scalia Law School, Faculty

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Justice Robert H. Jackson's opinion in Youngstown Sheet & Tube - also known as The Steel Seizure Cases - is, of course, no ordinary lone concurrence. As the nation debates executive action in the Global War on Terror, that opinion has grown ubiquitous in legal discourse. Jackson's analysis - including the famous tripartite framework for the evaluation of Executive action - now borders on conventional wisdom.

Nonetheless, as Jackson's draft opinions reveal, that analysis did not spring fully-formed from the Justice's mind. Rather, it was the product of his deliberation, draft, and re-draft. His papers reveal not only the substantive evolution of his views, but also his changing efforts to justify the wartime actions of FDR as well as his own participation in the case. His drafts reflect his own ambivalence toward judicial limitation on the powers of the President, particularly in his reference to Korematsu, as well as his deep concern - relatively muted in his final opinion - that Congress would be unwilling to check the President. In sum, they warn of the folly inherent in reducing Jackson's views to a bullet-point version of his tripartite framework. Jackson's views - like the institutions he analyzed - are not so simple.

Keywords: Jackson, Youngstown, Steel Seizure, Executive, Unitary, Foreign, War Power, Law

JEL Classification: K10, K30, K40

Suggested Citation

White, Adam, Justice Jackson's Draft Opinions in the Steel Seizure Cases. Albany Law Review, Vol. 69, No. 4, 2006, Available at SSRN: https://ssrn.com/abstract=877977

Adam White (Contact Author)

American Enterprise Institute ( email )

1150 17th Street, N.W.
Washington, DC 20036
United States

George Mason University - Antonin Scalia Law School, Faculty

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