Swaine: The Political Economy of Youngstown

Edward T. Swaine (George Washington Univ. - Law) has posted The Political Economy of Youngstown (Southern California Law Review, forthcoming). Here's the abstract:

The time is ripe for a non-doctrinal assessment of Justice Jackson’s famous three-category framework for challenges to presidential action, elaborated in Youngstown Sheet & Tube Co. v. Sawyer (also known as the Steel Seizure Case). Recent national security controversies have given the Youngstown framework a whole new lease on life, and its relevance for courts, Congress, and executive branch officials has never been higher. During the same period, empirical and analytical studies of presidential policymaking have advanced beyond personality-driven accounts of particular administrations. Together, these developments offer a terrific opportunity to assess how well the Youngstown framework fulfills its objective of advancing congressional interests and constraining presidential power.

A political economy approach better explains the problem to which Justice Jackson was responding - the capacity of presidential unilateralism to establish policy that can withstand statutory correction, regardless of whether it has a legal basis - and also explains more formally how Youngstown’s categories offer a practical, if legally unorthodox, constraint. The assessment becomes more negative, though, once those categories are treated endogenously - that is, once the political branches are modeled as behaving dynamically and reacting to the framework itself. For example, both empirical surveys of executive orders and case studies suggest that the President may react to the risk of legislative disapproval (which under Youngstown will likely result in judicial disapproval as well) by avoiding Congress altogether or by seeking only its indirect blessing. Because these and other results disserve the framework’s objectives, this Article proposes several more benign alternatives - and, in general, advocates re-seizing Steel Seizure.