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Home > Journals > Michigan Law Review > MLR > Volume 51 > Issue 2 (1952)

 

Abstract

Questions relating to the legislative authority of Congress and of the several states have given rise to an immense mass of constitutional litigation ever since the time that the Supreme Court in Marbury v. Madison asserted its power of judicial review. Many of these cases have turned on the division of legislative authority between Congress and the state legislatures under our federal system. Yet within this same span of time relatively few cases have arisen to challenge the assertions of presidential power, and in only a few instances has the Court found occasion to speak at length on the questions relating to the Chief Executive's powers under the Constitution and the division of authority between him and Congress. This is not to indicate that the question of executive authority has been an unimportant one in American history. Problems relating thereto have arisen more frequently than indicated by the .number of litigated cases. Various Presidents have asserted on occasions a broad position in respect to the prerogatives of their office and have taken actions, often under circumstances that effectively precluded judicial review, premised on such a position. The broad view of presidential prerogative was stated in its classic form by President Theodore Roosevelt when he enunciated his famous theory that the President as a general steward has the power and the duty to take such steps as he deems essential to the welfare of the nation, subject only to the explicit prohibitions of the Constitution: But the authoritative cases that came before the Supreme Court dealt only with facets of presidential power in limited areas and invited no panoramic survey of executive authority. Largely untouched by judicial decision and opinion were the questions relating to the President's prerogative in the :field of domestic affairs. We may put aside the many cases that arose for judicial determination of executive authority within the framework of statutes pursuant to which Congress had delegated power to the President, although it is not irrelevant to observe that the invalidation in several instances of statutes delegating too broad an authority to the executive assumed without question the hegemony of Congress in areas of legislative power and policy. But the very important problem of executive power, unaided by legislative scaffolding, to deal with important nonmilitary problems of domestic concern, particularly those assuming the proportions of an internal emergency, had never squarely presented itself until the Court was confronted with President Truman's seizure of the steel mills in Youngstown Sheet & Tube Company v. Sawyer.

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