Document Type

Article

Publication Date

March 2007

Abstract

Virtually all legal analysts believe that the tripartite framework from Justice Jackson’s Youngstown concurrence provides the correct framework for resolving contests between Congress (when it regulates pursuant to its powers to make rules and regulations for the land and naval forces, for instance) and the president when he acts pursuant to his commander-in-chief powers. This Article identifies a core assumption of the tripartite framework that, up to now, has not been recognized and that consequently has not been adequately analyzed or justified. While Jackson’s framework importantly recognizes that Congress’s regulatory powers may overlap with the president’s commander-in-chief powers, the framework assumes that, as regards this overlap, lawful congressional enactments categorically trump the commander-in-chief’s contrary desires. After explaining that this assumption of “categorical congressional supremacy” (CCS) is a mechanism for sorting out conflicts that arise when two governmental institutions share overlapping power, the Article identifies five additional“conflict-sorting” rules that are found in other contexts in American law where governmental institutions have overlapping powers. With the understanding that Jackson’s concurrence in effect made a choice among several candidate conflict-sorting principles, the Article then explains why his opinion did not adequately justify the particular conflict-sorting principle it adopted.

To be clear, the Article does not conclude that CCS is the wrong conflict-sorting principle, but instead makes the negative argument that the case has not yet been made as to what sorting principle should resolve conflicts between Congress and the commander-in-chief. The Article closes by identifying the type of analysis that has been relied on to select conflict-sorting principles in other contexts. The Article suggests that the same institution-sensitive, context-specific analysis should be used to decide whether CCS should be formally adopted, modified, or rejected.

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