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‘Merely Organized to Convict’
Sage advice for Holder from his professed role model.


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Andrew C. McCarthy

Attorney General Eric Holder keeps on the wall of his office a portrait of Justice Robert Jackson, who was attorney general under FDR. Holder explains that Jackson is one of his heroes. The display is both an homage and a reminder to consider the justice’s reservoirs of wisdom, which ran deep.

Or maybe it’s just for show. For all the professed admiration, the attorney general mentions only Justice Jackson’s famous concurring opinion in the “Steel Seizure” case, regarding the limits of executive power. In that 1952 case, Youngstown Sheet & Tube v. Sawyer, the Supreme Court invalidated President Truman’s attempt to nationalize the steel mills in order to avert a work stoppage that might have harmed the Korean War effort.

Justice Jackson’s concurrence laid out a very general three-part test, arguing that the president’s constitutional power ebbs and flows with congressional support, silence, or opposition. In modern times, it has become a favorite of Democratic lawyers — at least during Republican administrations. As is their wont, they exaggerate the parts they like: Jackson did not, as they suggest, declare the president was without power if Congress opposes him. He acknowledged that even at this “low ebb” — presidential action that contravenes a congressional statute — the measure of lawfulness is the Constitution, not the statute. Regardless, Holder claims that Jackson’s opinion “remains the gold standard to this day for defining the extent to which the president can operate consistent with the rule of law.”

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That would probably surprise Justice Jackson. The concurrence was never the gold standard. No other justice signed it when it was published, and Jackson himself described his three-prong analysis as “somewhat over-simplified.” Moreover, the Supreme Court substantially refined the applicable test about 30 years later, in Dames & Moore v. Regan. The Court was duly respectful to Jackson — Dames & Moore was written by William Rehnquist, who had been Jackson’s law clerk. The justices did not, however, find his Steel Seizure prescription adequate to the task of resolving private claims that arose out of President Carter’s settlement of the Iranian hostage crisis.

No matter. Jackson was a giant, in both the political and legal worlds, and those worlds are ever more entangled. In our more litigious era, we continue to grapple with international terrorism. Largely, it is a military challenge, but one on which we struggle to impose some sort of judicial framework. In selecting a role model, then, Attorney General Holder has chosen well.

But he ought to get better acquainted with other parts of his hero’s oeuvre. As I’ve previously suggested, he could start with Jackson’s 1948 opinion explaining why judges should stay out of national-security matters. As Jackson put it in Chicago & Southern Air Lines v. Waterman S.S. Corp., speaking not just for himself but for the entire Court:

The very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.



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