Trump’s Venezuela Legal Defense Rests on Youngstown ‘Gloss’ Idea

President Donald Trump’s decision to invade Venezuela and oust its president puts a spotlight on a US Supreme Court case that famously blocked President Harry Truman’s seizure of American steel mills. The case highlights the tension among presidential aggrandizement, Congress’s war powers, and the (often secret) legal opinions undergirding a president’s ambitions.

Youngstown Sheet & Tube Co. v. Sawyer came in 1952 during the Korean War, but the case isn’t about Truman’s decision to go to war. Youngstown was about the president’s efforts to sustain the war.

The production of war material relied heavily upon the American steel industry, but unionized American steelworkers planned a strike for better wages. After negotiations hit an impasse, Truman announced that he would use his inherent powers as president to seize the steel mills to keep them running.

The majority opinion by Justice Hugo Black held that the president lacked the authority to seize the steel mills. Several justices wrote concurring opinions, which raise three lessons about presidential powers that resonate during this military action.

The President Is Not the “Commander in Chief of the country”

Justice Robert Jackson sought to disentangle two of the president’s constitutional responsibilities: He is sworn to “take Care” that the laws are faithfully executed, and he is the commander in chief of the Army and Navy. The president, Jackson argued, can’t use the second to subsume the first through vague assertions of national security and emergency.

Jackson (who not long before this case had been the top prosecutor in Nuremberg against the most senior Nazi officials who aggrandized their own power and relied heavily on emergency decrees) recognized the dangers that a president could invest himself with undefined emergency powers and inherent authority. The president is commander in chief of the Army and Navy, not of the country.

The Primacy of Congress

To effectuate the proper balance of war powers between Congress and the president, Jackson proposed a three-part framework to assess the constitutional legitimacy of a president’s action.

The president enjoys the most authority when acting pursuant to authority granted by Congress (Zone 1), for it includes “all that he possesses in his own right plus all that Congress can delegate.”

On the other hand, the president has the least authority when taking actions incompatible with what Congress has instructed (Zone 3). Between these is the “zone of twilight” (Zone 2) where the president and Congress might have concurrent authority, and congressional inertia might invite more presidential responsibility.

Historical “Gloss”

Justice Felix Frankfurter was perhaps more of a realist than Justice Jackson. In a separate concurring opinion, he wrote that the “accretion of dangerous power does not come in a day.” Instead, it is the result of unchecked disregard of the restrictions that the founders implemented to fence in presidential assertions of authority.

But how to discern those restrictions? The Constitution lists numerous war powers, and reserves most of them for the more deliberative body, Congress. Yet the Constitution’s text hardly provides all the answers to new challenges of presidential aggrandizement. So Justice Frankfurter urged that it was useful to look to “the gloss which life has written upon” those powers.

In other words, when the Constitution doesn’t clearly provide an answer on the legitimacy of a president’s war powers, past precedent and historical practice may be useful guides.

Lessons from Youngstown

In which of Justice Jackson’s zones does Trump’s Venezuela invasion reside? Congress hasn’t passed a law either for or against the invasion.

Still, this isn’t the Zone 2 “zone of twilight” that would permit presidential leeway. That’s because Congress has acted more generally by ratifying the UN Charter, a treaty binding the US, which is among the laws that the president must “take Care” to follow.

Article 2(4) of the UN Charter requires nations to refrain from the use of force against the territorial sovereignty of other nations. The armed invasion of Venezuela and ouster of its president surely qualify, and none of the Administration’s stated rationales indicate anything other than a violation of Article 2(4).

That would seemingly put the Venezuela invasion in Jackson’s Zone 3, where the president’s authority is at its lowest. But that sorting isn’t the end of the story. The president and his adherents are likely to rely on gloss-based arguments that they had authority to invade anyway despite contrary instruction from Congress.

Ambitious administration lawyers supporting ambitious presidents will likely shy away from Justice Jackson’s Congress-centric framework and instead emphasize an earlier more president-friendly case, United States v. Curtiss-Wright Export Corporation.

This 1936 case has been interpreted by administration lawyers as permitting the president as the “sole organ” of the nation in foreign affairs to sometimes take actions contrary to Congress’s instructions. Yale Law School Professor Harold Hongju Koh describes this line of arguments used to endorse presidential adventurism as “Curtiss-Wright so I’m right.”

Another gloss-based argument is that the president can “override” Article 2(4) of the UN Charter or any other ratified treaty obligations. This argument was developed in a once-secret 1989 legal opinion by Bill Barr at the Justice Department’s Office of Legal Counsel several months before the US invasion of Panama to arrest General Manuel Noriega.

Barr’s argument served as a successful basis for the 1992 case, United States v. Alvarez-Machain, where the Supreme Court held that US law enforcement’s kidnapping of a foreign national in another country in violation of international law and taking him to the US wasn’t a barrier to his federal prosecution. The Barr opinion, heavily criticized by scholars, was reportedly relied upon as a legal basis for the Venezuela invasion.

The Venezuela invasion is just the most recent example of increasing presidential aggrandizement of war powers. Youngstown teaches that the debate over the military action’s legality will be informed both by Justice Jackson’s textual approach based on the Constitution’s separation of powers and Justice Frankfurter’s approach to apply the “gloss” of history and practice to fill constitutional gaps.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Franklin D. Rosenblatt is an associate professor at Mississippi College School of Law, a retired Army JAG Lieutenant Colonel, and president of the National Institute of Military Justice.

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