Conservative Washington Post columnist George Will in Scottsdale, Arizona on December 1, 2022 (Gage Skidmore/Flickr)
President Donald Trump and his MAGA allies are having an intense debate with critics over the role the executive branch, under the U.S. Constitution, should play in the United States' federal government. MAGA Republicans, pushing the far-right Unitary Executive Theory, claim that some federal judges are failing to honor the powers the Constitution gives the executive branch — while Trump critics believe that he is making way too many executive decisions without getting Congress' input.
Trump often justifies his executive orders by saying that he is addressing "emergencies." But conservative Washington Post columnist George Will, in his January 23 column, argues that U.S. Supreme Court rulings of the past make a strong case against using "emergency" claims to justified overreach in the executive branch.
Will focuses heavily on Justice Robert F. Jackson, a Franklin Delano Roosevelt appointee who served on the High Court from 1941-1954 and before that, was U.S attorney general under FDR.
"Today, the nation is inured to presidential claims of urgent needs — 'emergencies,' 'existential' dangers — being used for evasions of the Constitution," Will argues. "Said Jackson, our institutions for keeping the executive under the law might be 'destined to pass away,' but 'it is the duty of the Court to be last, not first, to give them up.'"
Jackson is the subject of a new biography by University of Virginia law professor G. Edward White titled "Robert H. Jackson: A Life in Judgment." And according to Will, the book "arrives amid disputes involving judicial review of governmental, and especially presidential, actions presented as urgent for national security."
"Concerning this, Jackson believed judicial deference should be high, but not unlimited," Will explains. "In 1940, before Jackson joined the Court, it ruled, 8-1, that a Pennsylvania school district could make saluting the flag mandatory. Some Jehovah's Witnesses objected to this as idolatry. The Court's opinion was written by Justice Felix Frankfurter. He thought coercing the Jehovah's Witnesses was mistaken, but he generally favored judicial restraint, and considered the school district’s objective had a rational basis: 'National unity is the basis of national security.'"
Will cites another example of Jackson's judicial outlook.
"In 1952, the Court and Jackson again confronted the task of reconciling constitutional principles and a president's claim of urgency," Will explains. "With the Korean War raging, (President) Harry Truman said an impending nationwide steelworkers strike would 'jeopardize national defense,' so he issued an executive order for government to seize and operate most mills. The companies sued, arguing that no act of Congress or constitutional provision validated Truman's action. Truman's lawyers argued that his authorization 'could be implied from the aggregate of his powers under the Constitution,' especially as commander in chief. The Court disagreed, 6-3."
Will adds, "Concurring, Jackson said that Truman's action flowed from neither an express nor implied authorization by Congress, and was against Congress' will as expressed in a 1947 labor relations law that made no provision for such presidential action."
George Will's full Washington Post column is available at this link (subscription required).