Page:CRS Report 95-772 A.djvu/7

CRS-7  Justice Clark, who concurred in the result, held that in the absence of action by Congress to deal with the type of crisis confronting the President, his independent power to act turns upon the gravity of the situation confronting the nation. However, when Congress has laid down specific procedures to deal with such a crisis, the President must follow these procedures. In this case, Clark found that the President did not avail himself of his authority under the Selective Service Act of 1948 to seize plants which fail to produce goods required by the armed forces.

Chief Justice Vinson, with the concurrence of Justices Reed and Minton dissented. They would have upheld the seizure as an appropriate method, not prohibited by the Labor Management Relations Act or any other act of Congress, of faithfully executing and preserving the defense program enacted by Congress, until the latter could take appropriate action.

Of all the opinions in Youngstown, Justice Jackson's has become the most enduring and influential. Justice Jackson's concurrence in Youngstown, which sets forth a framework for analysis of exercises of presidential power through executive orders, has become the standard by which courts test such executive actions. In his concurrence, Justice Jackson stated:

 Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat oversimplified 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.

When the President acts pursuant to an express or implied authorization of Congress, this 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.

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.

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 