Page:ACLU v. NSA Opinion (August 17, 2006), US District Court, East-Michigan.djvu/34



Our constitution was drafted by founders and ratified by a people who still held in vivid memory the image of King George III and his General Warrants. The concept that each form of governmental power should be separated was a well-developed one. James Madison wrote that: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. THE FEDERALIST NO. 47, at 301 (James Madison)."

The seminal American case in this area, and one on which the government appears to rely, is that of Youngstown Sheet & Tube Co. v. Sawyer, (1952) in which Justice Black, for the court, held that the Presidential order in question, to seize steel mills, was not within the constitutional powers of the chief executive. Justice Black wrote that: "The founders of this Nation entrusted the law-making power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand. Youngstown, 343 U.S. at 589."

Justice Jackson's concurring opinion in that case has become historic. He wrote that, although the Constitution had diffused powers the better to secure liberty, the powers of the President are not fixed, but fluctuate, depending upon their junctures with the actions of Congress. Thus, if the President acted pursuant to an express or implied authorization by Congress, his power was at it maximum, or zenith. If he acted in absence of Congressional action, he was in a zone of twilight reliant upon only his own independent powers. Youngstown, 343 U.S. at 636-638. But "when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for he can rely only upon his own Constitutional powers minus any Constitutional powers of Congress over the matter." Youngstown, 343 U.S. at 637 (Jackson, J., [*35]