The President, Congress and the Court

Justice Jackson said in his concurrence for Youngstown Sheet & Tube Co. vs. Sawyer that, “presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” Justice Jackson clearly explains his opinions about the relationship between Congress and the judicial branch. He states that the president is under executive law. He also stresses that no one, including the president, knows the “limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights.

When outlining the president’s ability to use power, he breaks it into three categories: If the president acts with implied authorization or consent of Congress, the president is using his authority and legitimacy to the maximum of his abilities. The president can also act when Congress has been silent, giving him more independent powers. When Congress is silent, it gives the president more responsibility. And third, the president can act against the expressed wishes of Congress, and have the lowest amount of legitimacy. Here, he felt that Truman acted on the third rule.

What’s interesting about Jackson is that he thinks the president should only have to act on the expressed views of Congress. The Judicial branch should act more as a power to help the legislative. When the president brushes the legislative aside, it can use the judicial branch’s power as a means to sway their expressed views.

As for the court’s power, Jackson doesn’t emphasis that a lot. He said if the court reviews the president’s plans as a first review, then that leaves the president vulnerable to attack and “in the least favorable of possible constitutional postures.” He also says that important issues may go out of the public light and pass away over time. He also said it is the “duty of the Court to be last, not first, to give them up…” In this case, the court is reviewing the president’s decisions for the first time and he is most vulnerable for attack, Jackson said.

I’ve always been taught that the three branches of government are supposed to be a system of checks and balances on one another. But here, it seems that Justice Jackson is saying that the president has the most power, the legislative serves as a check on the executive and the judicial is there when the legislative needs it. This doesn’t not sound like the checks and balances that I’m used to. It concerns me that Jackson feels that the Court’s role is so much less than the other two branches. The purpose for having three branches is so they can all check up on each other. If that isn’t there, then that means the president or the legislative branch is gaining more power than what is listed in the constitution.

The constitution states that the president receives most of his power from the allowance of Congress. Jackson agrees with this, but also lays out that the president has the most power and he can choose to disregard Congress. However, that will decrease his legitimacy. He also says that sometimes the powers of the president and Congress collide and the president and Congress argue about who has certain powers.

Again, when Jackson says, “presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress,” I think he hits it spot on. There are certain powers in the constitution that belong to the president or congress or the court. But there are often times when it’s unclear who receives what powers, and the decision to go into war is one of those powers.