Justice Jackson's Three-Box Test for Presidential Power, Put to Work

Let me give you a gift. It is not a stock tip or a diet. It is a tool, and it fits on an index card. The next time a president of either party signs a big executive order and the cable channels start shouting that it is either brilliant or a coup, you can take out the card and settle the question in about three minutes. The tool comes from a concurring opinion written in 1952 by a Supreme Court justice who had been the Attorney General of the United States, who had prosecuted Nazi leaders at Nuremberg, and who understood presidential power from the inside. His name was Robert H. Jackson.

The cable hosts will never tell you about it, because it is too useful. It does not care who is president. It does not ask whether you like the policy. It asks one question: where does Congress stand? Let me give you the history, then the three boxes, and then we will do something rare in political commentary. We will run three clearly labelled hypothetical orders through the test and show our work.

The case: Truman and the steel mills

In 1952, the United States was fighting the Korean War. Steel was the backbone of the war effort, and the steelworkers' union and the steel companies were headed for a strike over wages and prices. President Harry Truman did not want a shutdown of the mills while troops were in combat. On April 8, 1952, he issued Executive Order 10340, directing Secretary of Commerce Charles Sawyer to seize the steel mills and run them under federal control.

Here is the detail that matters most. Congress had passed a law, the Taft-Hartley Act of 1947, that gave a president a method for dealing with strikes that threaten the national health or safety: an injunction that could delay a strike for eighty days. Truman did not use it. When Congress was debating that law, members had also considered giving the president seizure powers in labor disputes, and Congress had decided not to. So Truman took an action that Congress had been asked to approve and had passed on, using no specific statute.

The steel companies went to court. A federal district judge, David Pine, ruled against the seizure. The case moved to the Supreme Court at remarkable speed. The case, Youngstown Sheet and Tube Co. v. Sawyer, was argued in May 1952 and decided on June 2, 1952. The Court ruled six to three against the president. Justice Hugo Black wrote the opinion of the Court, saying that the president's power to issue an order must come either from an act of Congress or from the Constitution itself, and that neither supported the seizure. Chief Justice Fred Vinson, joined by Justices Stanley Reed and Sherman Minton, dissented. The majority included Black, Felix Frankfurter, William Douglas, Jackson, Harold Burton and Tom Clark, and several of them wrote separate opinions. It was Jackson's concurrence that outlived the rest.

The three boxes

Jackson did not try to define presidential power in one sentence. He said it fluctuates, depending on how the president's actions fit with what Congress has done. He set out three situations, and lawyers have called them boxes ever since.

Box one: the president acts with Congress's authorization, express or implied. Here the president's authority is at its maximum. He holds all the power he has under the Constitution, and he holds all the power Congress can give him. A challenger has the heaviest burden, because he has to argue that the federal government as a whole lacks the power.

Box two: Congress has said nothing, neither yes nor no. The president can rely only on his own powers, but Jackson noted that there is a "zone of twilight" where he and Congress may share authority or where it is uncertain. In that zone, the test of legality is likely to depend on the circumstances of the moment, and on how Congress and the executive have behaved over time.

Box three: the president acts against the expressed or implied will of Congress. Here his power is at its lowest ebb. He can rely only on his own constitutional powers, minus whatever Congress can constitutionally take away from him. To win in this box, he must show that the Constitution gives him a power so exclusive that Congress cannot touch it. Courts uphold actions in this box only in rare cases.

Truman's seizure fell in box three. Congress had considered seizure and refused to grant it, and it had provided a different remedy. Jackson wrote that the president was therefore relying on his own powers alone, and that his claim to be able to take over the mills as Commander in Chief did not extend to the domestic economy in peacetime-like conditions of a labor dispute. Think about what he was saying. Not that a president can never act in a crisis, but that a president who acts in the teeth of Congress needs more than a crisis.

Why the card works

Notice what the test does and does not do. It does not tell you whether a policy is wise. It does not choose a winner among parties. It sorts presidential actions by their relationship to the legislature, which is precisely what a separation-of-powers system is built to do. A conservative should like this, because it gives teeth to the idea that Congress writes the laws and the president carries them out. It is also the framework the Court has returned to again and again. In Dames and Moore v. Regan (1981), the Court used it to uphold President Carter's agreement to settle claims with Iran, finding implied approval from Congress's past conduct. In Medellin v. Texas (2008), it was used to find that a president could not enforce an international court's decision in Texas without legislation. In Zivotofsky v. Kerry (2015), it was used to hold that Congress could not override a president's decision about recognizing foreign governments, because that power belongs to the president alone.

Three hypotheticals

Every one of the following is invented for teaching. None describes a real order, and none refers to any real president. Pick your own side's president and the other side's, and ask yourself whether your answer changes. If it does, you have found your bias.

Hypothetical one: the strategic mineral

Congress passes a law saying that when the Secretary of Commerce certifies a shortage of a strategic mineral needed for defense, the president may restrict exports of that mineral for up to one year. A shortage is certified. The president signs an order restricting exports to a named list of countries.

Box. One. Congress authorized this action in so many words. The president is acting with the full weight of his own power and Congress's.

Result. The order is very likely valid. A challenger could still argue that the law itself gives away too much of Congress's power, a nondelegation claim of the kind I discuss in Congress Should Write the Laws, and Other Radical Ideas From Article I. But the president did what the law said, and this is the strongest position a president can be in. The lesson: if you want to know whether an order is on solid ground, first look for the statute it cites.

Hypothetical two: the hurricane

A hurricane is bearing down on a coastal region. Congress has passed no law on this particular situation, and no law bars the step. The president orders federal agencies to move food, water and generators to staging areas ahead of the storm, directs the use of unoccupied federal buildings as shelters, and asks the military to lend trucks.

Box. Two. Congress has not spoken to this exact point.

Result. Probably valid, but it is a close-to-the-line question. Jackson said that in the twilight zone, the legality of the action depends on practicalities. Here, past practice is on the president's side: presidents have long used the executive branch to respond to emergencies, and Congress has funded such responses year after year. The details matter, though. If the order started spending money Congress never appropriated, the Appropriations Clause would bring it back into question, as I explained in Nixon Impounded the Money, Congress Fought Back, and the 1974 Law Still Rules. Box two is where careful lawyers earn their fees.

Hypothetical three: the forbidden sale

Congress passes a law, over a veto, forbidding the sale of a named class of advanced weapons to a named foreign government. The president believes the law is unwise and orders the sale to proceed anyway, citing his role in foreign affairs.

Box. Three. The president is acting against the express will of Congress.

Result. The order is in serious trouble. To win, the president must show that the power to make this particular decision belongs to him alone and Congress cannot regulate it. But Congress has well-known powers over foreign commerce, the military budget and the regulation of arms. Under Jackson's test, the president is relying on his own power minus Congress's, and Congress's side of the scale is heavy. Compare Zivotofsky, where the president did win in box three, because the Court found that recognizing foreign governments is a power the Constitution gives to the president and no one else. The difference is that the recognition power has no counterpart in a clause giving Congress a role. A weapons sale touches Congress's powers directly.

A field guide for sorting an order into a box

Sorting is the hard part, so here is a short procedure. You can do it with nothing but a search engine and the text of the order.

1. Read the opening paragraphs of the order. Presidents normally cite their authority at the start: "by the authority vested in me by the Constitution and the laws of the United States, including section such-and-such of title so-and-so." The statute named there is your clue to box one.
2. Look up that statute. Congress.gov hosts the United States Code. Does the section actually say what the order claims? An order that cites a statute but stretches its words past what they can hold is really a box two or box three order wearing a box one costume.
3. Search for a law that says no. Has Congress ever passed something that forbids the step, or that sets out a different way to reach the goal? A different procedure in the statute books, like the Taft-Hartley injunction in 1952, is a sign that Congress already spoke.
4. Look at the history. In box two, the pattern of practice matters. Has presidents of both parties done this kind of thing for decades, and has Congress gone along or funded it? Long, open practice that Congress knows about is strong evidence for the president.
5. Ask whether the power is exclusive. In box three, the only way to win is to show that the Constitution assigns the power to the president alone. Pardons are the classic example. The Constitution gives the president that power, and it is not Congress's to regulate away.

You will notice that the pardon question is a clean example of a power that does not fit the usual sorting, because the Constitution hands it to the president directly. I answer the common questions about it in Pardon Power Questions Answered, From Washington to Ex parte Garland.

The strongest objection

The best argument against Jackson's approach is that it gives too much to Congress and too little to the president in a real emergency. Presidents have a unique ability to act quickly, with secrecy, and with the whole of the executive branch behind them. Congress is slow and divided. Truman's dissenters thought that in wartime, a president should not need to wait. Some scholars add that Jackson's own text admits there is no neat way to sort a case, and that courts often disagree about which box an action belongs in.

Those are fair points. The test is not a computer. It is a way to ask the right questions. It also has a safeguard built into it: a president who faces an emergency can ask Congress for authority, move into box one, and act on the strongest ground in the system. Where Congress will not give it, there is a reason to ask whether the emergency is really what the president says.

The conservative lesson is the same as the one in The Living Constitution Sounds Reasonable Until You Ask Who Gets to Update It. Rules that bind the other side's president bind yours, too. A principle that only works when your party holds the White House is not a principle. It is a mood.

The bottom line

• Keep the card. Box one, with Congress: strongest. Box two, silence: it depends. Box three, against Congress: weakest.
• Look for the statute first. When an order is in the news, ask what law it cites. If the answer is a clear authorization, you are probably in box one.
• Run your own side through it. If you would cheer a president you like for an action and condemn it in a president you dislike, the test will show you.
• Remember what Youngstown said. A crisis does not cancel the Constitution, and a president who acts against Congress's will needs a power that is truly his alone.
• Call your representatives. If you want a president to have a power, the answer is to have Congress give it, in a law with a vote. See the bills page to follow what Congress is considering.