In 1952, Justice Robert Jackson issued a concurring opinion in the case of Youngstown Sheet & Tube Co. v. Sawyer, in which a majority of the Supreme Court held that President Harry Truman could not invoke executive power to seize several of the major U.S. steel manufacturing companies in order to prevent a nation-wide steel strike that the Truman administration claimed would disrupt the participation of the United States in the Korean war.
Jackson’s opinion in Youngstown sketched a framework for executive power under the Constitution, identifying three examples of executive decisions against the backdrop of congressional authority. He set forth a continuum of executive power, ranging from instances in which executive decisions were “conclusive and preclusive” of the authority of other branches, to ones in which Congress and the executive shared powers and the branches operated in a “twilight zone” of concurrent authority, to ones in which an executive decision was in contradiction to a congressional effort to restrain it. When Jackson’s opinion appeared it garnered some appreciative commentary in academic circles but did not otherwise attract much attention.
Jackson’s Youngstown concurrence was revived, however, in two memorable opinions in American constitutional law and politics. The first was United States v. Nixon, in which Chief Justice Burger quoted a statement by Jackson that the dispersion of powers among the branches of government by the Constitution was designed to ensure a “workable government.” Burger concluded that allowing President Nixon to assert executive privilege against a subpoena in a criminal proceeding merely on the basis of a “general interest in confidentiality” would gravely interfere with the function of the courts and render the government “unworkable.” The second was Trump v. United States, in which Jackson’s statement in Youngstown that in some instances the president’s power to make executive decisions was “conclusive and preclusive” was used by Chief Justice Roberts to show that granting presidents absolute immunity for their official acts was necessary to enable them to execute their duties fearlessly and fairly.