A Supreme Court Justice Wrote the Greatest “No Kings” Essay in History

In 1952 one Supreme Court justice wrote the greatest essay against one-man rule. Robert H. Jackson’s concurring opinion in Youngstown Sheet and Tube Company v. Sawyer explained why Harry S. Truman could not seize and operate the nation’s steel mills to prevent a strike during the Korean War simply because the president thought that a strike would threaten national security. This opinion is a milestone in the rule of law and is regularly cited by conservative and liberal Supreme Court justices alike. In a dissent last month from a deportation decision, Justice Sonia Sotomayor quoted the Youngstown concurrence’s observation that “ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules.” This vital principle is eroding but can be restored by ordinary statutory construction rather than by all-or-nothing constitutional rulings.

Despite the Youngstown concurrence’s fame, two critical portions of Jackson’s opinion are never quoted by the high court. The first is his comment “I cannot be brought to believe that this country will suffer if the Court refuses further to aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress.” This was a striking statement from a man who had served as one of President Franklin D. Roosevelt’s closest advisers. Presidents are more powerful than they were in 1952. Yet the court has ignored Jackson’s warning and further expanded the president’s power at the expense of Congress. In the 1980s, Congress was stripped of its ability to delegate authority to the president subject to the check of a legislative veto. Last year, the court held that a president can commit at least some “official” crimes without fear of punishment. And this year the court permitted presidents to fire without cause the leaders of independent agencies.

The other forgotten part of Jackson’s opinion is this criticism of Truman’s unilateral seizure of the steel mills:

The executive action we have here originates in the individual will of the President, and represents an exercise of authority without law. No one, perhaps not even 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.

This line encapsulates the problem that the country faces, which is that much of what now passes for law is nothing more than the individual will of the president. Today he likes Switzerland. Tomorrow he may hate the Swiss and slap tariffs on their goods. Today he thinks that some children born here are not entitled to citizenship. Tomorrow he might decide that children born here to tourists from Greenland should get an exception. Today he could think that a problem is under control. Tomorrow he might wake up and cry “Emergency!” to claim broad new powers in search of a solution. No one, perhaps not even the president, knows the limits of the power he may seek, and those affected cannot learn the limits of their rights. Liberals and conservatives in Congress and on the Supreme Court are both responsible for this sorry situation after decades of unwise choices and neglect.

Nevertheless, the courts have tools to bring law back. The president’s most important actions to date are based on unprecedented interpretations of old statutes, including a 1952 law that defines national citizenship. Acts of Congress on citizenship, tariffs, and some aspects of immigration can be interpreted in a more conventional way to preclude arbitrary decisions by one man. Sometimes this will still permit the president to pursue his objectives, but only if he follows the safeguards set forth in other statutes. Sometimes Congress might be free to pass new laws that confer more sweeping power on the president. But that legislative process would be representative and conform to the Youngstown concurrence’s admonition that “with all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.”

In a 1937 speech celebrating the Founding Fathers, Robert Jackson said: “We may well remind ourselves that there is not only a past and a present—there is also a future. And we are among its founders.” What future do we want?