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Executive Orders: Issuance and Revocation

The proper framework for analyzing executive orders in the judicial context may be found in Youngstown Sheet & Tube Co. v. Sawyer. There, the Supreme Court dealt with President Truman’s executive order directing the seizure of steel mills, which was issued in an effort to avert the effects of a workers’ strike during the Korean War. Invalidating this action, the majority held that under the Constitution, “the President’s power to see that laws are faithfully executed refutes the idea that he is to be a lawmaker.” Specifically, Justice Black maintained that presidential authority to issue such an executive order “must stem either from an act of Congress or from the Constitution itself.” Applying this reasoning, Justice Black’s opinion for the Court determined that as no statute or Constitutional provision authorized such presidential action, the seizure order was in essence a legislative act. The Court further noted that Congress had rejected seizure as a means to settle labor disputes during consideration of the Taft-Hartley Act. Given this characterization, the Court deemed the executive order to be an unconstitutional violation of the separation of powers doctrine, explaining “the founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times.”

While Justice Black’s majority opinion in Youngstown seems to refute the notion that the President possesses implied constitutional powers, it is important to note that there were five concurrences in the case, four of which maintained that implied presidential authority adheres in certain contexts. Of these concurrences, Justice Jackson’s has proven to be the most influential, even surpassing the impact of Justice Black’s majority opinion.

Justice Jackson’s Concurrence

Jackson established a tri-partite scheme for analyzing the validity of presidential actions in relation to constitutional and congressional authority. Jackson’s first category focuses on whether the President has acted according to an express or implied grant of congressional authority. If so, according to Jackson, presidential “authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate,” and such action is “supported by the strongest of presumptions and the widest latitude of judicial interpretation." Secondly, Justice Jackson maintained that, in situations where Congress has neither granted or denied authority to the President, the President acts in reliance only “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.” In the third and final category, Justice Jackson stated that in instances where presidential action is “incompatible with the express or implied will of Congress,” the power of the President is at its minimum, and any such action may be supported

 3 Congressional Research Service