In Youngstown Sheet & Tube Co. v. Sawyer, the U.S. Supreme Court struck down as unconstitutional President Truman's 1952 executive order authorizing federal government seizure and operation of the nation's steel mills. In this article, Professors Bryant and Tobias apply this landmark precedent to the provisions of President Bush's November 13, 2001 military courts executive order that purport to authorize indefinite detention of covered individuals and to preclude them from invoking the jurisdiction of the federal courts.
In this article, the authors first examine the constitutional text, history, and relevant Supreme Court authority supporting the conclusion that Congress, not the Executive, is the political branch responsible for prescribing, within constitutional limits, the scope of federal judicial jurisdiction. They next discuss the legal responses of Congress and President Bush to the September 11 terrorist attacks. After exploring the events leading up to President Truman's steel seizure order, the authors review the Justices' opinions in Youngstown. They then apply the constitutional lessons of Youngstown to the detention and jurisdiction provisions of President Bush's military courts order, finding that these provisions violate the Constitution. They conclude by urging the Bush Administration not to invoke these provisions but rather to submit to federal judicial scrutiny of detainment or trials in all cases otherwise within the jurisdiction of the federal courts.
Christopher Bryant and Carl Tobias,
29 Hastings Const. L.Q. 373
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol29/iss3/1