Guest Post: Nielsen & Leão, "Federal Judicial Power Through the Lens of Youngstown"

From Thomas Nielsen, a federal law clerk, and Luiza Leão, who just completed a federal clerkship and is an incoming appellate litigation associate at a large law firm.

Over the past several months, the Executive Branch has challenged a number of court orders enjoining it from implementing various Trump Administration initiatives. Simultaneously, the Supreme Court has limited the lower courts’ authority to enter universal injunctions, reasoning that they violate the limits of the courts’ equitable authority. Congress has also expressed an interest in regulating the federal courts’ power to enter and enforce injunctive relief. Those developments suggest that the division between the federal judicial power and the power of the political branches is being scrutinized in unprecedented ways.

How will, and how should, courts parse these thorny separation-of-powers issues? The Supreme Court’s Article II jurisprudence provides a starting point. Whereas Article I contains enumerated powers, Articles II and III are more open-ended. Article II vests the “executive Power” in a single President and then, in section two, enumerates several specific powers the President possesses. But it does not state that those powers are in any way exclusive. Similarly, Article III vests the “judicial Power” in “one supreme Court” and whichever inferior courts Congress chooses to establish and then, in section two, lists a series of “Cases” and “Controversies” to which that power extends. But it does not otherwise define the nature or scope of the power itself.^[1] Perhaps that is why the Supreme Court has had to analyze Article II and III questions by reasoning from constitutional structure and the inherent nature of the executive and judicial functions, rather than constitutional text.

Justice Robert Jackson’s influential concurrence in Youngstown Sheet & Tube Co. v. Sawyer provides a blueprint for thinking about the President’s Article II powers, particularly vis-à-vis Congress. The Court lacks a similarly comprehensive framework for thinking through Article III powers. But we don’t think it needs to reinvent the wheel. The Court has on occasion suggested that Youngstown is relevant to separation-of-powers questions implicating Article III. In this post, we build on that idea, sketching out how the Youngstown framework might provide a useful taxonomy for thinking about Article III problems as well as Article II ones.

Why does that matter? In theory, since Marbury v. Madison, the Court has not only dictated the boundaries between the other two branches, but also the final arbiter of the scope of its own power. But in practice, the Court is keenly aware that its power only stretches as far as the other two branches will allow, since it needs them to accept its holdings as binding. In that sense, the judicial power is always and inevitably clouded by separation of powers concerns. In times when the Executive and Legislative branches are reworking their dynamic, then, the Court’s own scope of authority is also in flux. As a result, a principled framework for analyzing the reaches and limits of judicial power, even if it is the courts that have a final say over the analysis, serves an analogous function to Youngstown itself.

The remainder of this post proceeds as follows. First, we use Youngstown’s three categories to describe various forms of court action. Next, we apply the framework to briefly analyze the Supreme Court’s recent decision on nationwide injunctions—Trump v. CASA. A few closing thoughts follow.

I. Applying Youngstown to Article III

Justice Jackson’s Youngstown concurrence famously laid out the now-familiar tripartite framework. When the President defies Congress, “his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” When the President acts “pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Finally, when the President acts in the face of congressional silence, he is limited to his own inherent powers—but there is a “zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” We address each in turn.

1. “Conclusive and Preclusive” Judicial Powers. — Youngstown and its stepchild Trump v. United States recognized a small class of core presidential powers so committed to Article II that they operate notwithstanding a congressional command to the contrary. So too with certain core judicial powers. To be sure, Article III courts generally don’t exist or possess jurisdiction without Congress passing a statute saying as much. In that sense, nearly all judicial actions are premised on two congressional commands: the creation of the court, and the vesting of subject-matter jurisdiction. But once Congress has done those things, Article III implies that federal courts possess certain “judicial Power[s]” so central to the adjudicative function that Congress cannot cabin them. Those powers are self-executing: they are developed by courts in the absence of a specific congressional command. They are also “conclusive and preclusive:” Congress cannot interfere with them.

The “core of the judicial power” untouchable by Congress is the “adjudicat[ion] and reso[lution] [of] Article III cases and controversies.” One component of that power is definitional: the judiciary has the authority to determine what constitutes a “Case” or “Controversy” within the cognizance of Article III, and Congress has little if any authority to expand what counts.^[2] Relatedly, the judiciary can declare that certain constitutional claims—like those arising from the Republican Guarantee Clause or the Impeachment Clause—are outside the ambit of Article III because their enforcement is committed to the political branches. Congress cannot compel courts to hear cases that the Supreme Court has declared nonjusticiable.

Another component of that power is interpretive: courts may exercise judicial review to construe statutes and the Constitution. The Court has described “the Federal Judiciary’s authority to exercise judicial review” as deriving from “the necessity to do so in the course of carrying out the judicial function of deciding cases.” True, Congress can always override the Court’s interpretation of a statute after the fact. But judicial review is “conclusive and preclusive” because it makes the Supreme Court the ultimate interpreter of what the law requires. Once a federal court has interpreted the meaning of a statutory or constitutional provision, that interpretation is binding on the parties before it unless a higher federal court states otherwise—even if the parties include members of the other two branches. And when it comes to interpreting the supreme law of the land—the Constitution—Congress may not override the Court’s interpretations, even when it is acting pursuant to its own constitutionally created lawmaking authority.

The Court has recognized additional components of the core judicial power. One is the ability to independently determine the rule of decision to apply in a pending case (though the Court has significantly watered down that restriction). Another is the ability to conclusively resolve a dispute by entering a final judgment subject only to review, if at all, by another judicial actor. Yet another is the power to adjudicate claims which “from [their] nature, [are] the subject of [] suit[s] at the common law, or in equity, or admiralty”—claims which Congress may not reallocate to executive-branch agencies for resolution. Each of these components shares a common feature: it is inextricably bound up with the “power of judging” that lies at the heart of the Article III Vesting Clause.

Incidental to the courts’ dispute-resolution power is a collection of powers over the “orderly and expeditious disposition of cases.” The Supreme Court has labeled those powers “inherent” to the federal courts: once a court exists and is capable of exercising “judicial Power,” it must have the ability to exercise that power effectively. Consequently, all federal courts possess the power to control admission to their bar and “discipline attorneys who appear before [them],” to sanction misconduct, and to punish summary and civil contempt.^[3] True, as Justice Scalia remarked in a dissent, Congress may “prescribe the means by which the courts may protect the integrity of their proceedings,” just as it may “specify the manner in which the inherent or constitutionally assigned powers of the President will be exercised” in cases falling within Youngstown’s “conclusive and preclusive” category. But Congress may not “impair” the “effectiveness of those powers” without improperly intruding on the core of Article III.

Finally, while Article III allocates core dispute-resolution and case-management powers to both the Supreme Court and any lower courts Congress chooses to establish, the Supreme Court possesses additional indefeasible powers. The Constitution creates “one Supreme Court” and directly vests it with original jurisdiction over cases “in which a State shall be Party” and cases “affecting Ambassadors” and “other Public Ministers and Consuls.” That constitutional grant of jurisdiction endows the Supreme Court with special powers in a small class of cases. First, Marbury established that Congress may not expand the Court’s original jurisdiction beyond that granted by Article III. Second, the Court has invoked avoidance principles to strongly suggest that Congress may not contract the Court’s original jurisdiction via statute. Third, the Court likely has the exclusive authority to develop and apply procedural rules in original-jurisdiction cases. All federal courts possess a “limite[d]” authority to ‘formulate procedural rules not specifically required by the Constitution or the Congress.” But Congress has the power to extensively regulate the lower federal courts as well as the Supreme Court’s appellate jurisdiction, meaning that ad hoc judicial rules cannot override Congress’s. Congress lacks comparable power over the Supreme Court’s original jurisdiction, implying that the Court’s choice of rules in those cases is its own.

2. Judicial Power Authorized by Congress. — Youngstown recognized that the President is on his firmest footing when he acts pursuant to valid delegations of power from Congress. The judicial powers are at a maximum when courts do the same. In such cases, courts may exercise the sum of the power Congress has granted to them and all powers granted by Article III.

This category encompasses much of the work the federal courts do. Congress has the ability, pursuant to its enumerated powers and the Necessary and Proper Clause, to impose statutory obligations, empower plaintiffs to sue to enforce those obligations, and create remedies for their violations. So when Congress, say, gives a trial judge discretion to award enhanced damages for patent violations “according to the circumstances of the case,” the court wields a combination of its core Article III power to resolve a dispute (which might encompass the power to award actual damages as found by a jury) and congressionally conferred authority. Similarly, when Congress “entrusts to an equity court the enforcement of prohibitions contained in a regulatory enactment, it must be taken to have acted cognizant of the historic power of equity to provide complete relief [to the parties] in light of the statutory purposes.”

The Supreme Court likely acts with maximum power when it promulgates rules of evidence and procedure, too. Since 1789, Congress has empowered the Court to establish procedural rules for itself and the lower federal courts. But the Court has also announced new rules for individual adjudications, even without congressional authorization, referring to the power as an exercise of its “supervisory power” over the lower courts. Though the source of that power is not clear, it appears to derive from Article III’s structure, and specifically its creation of “one supreme Court” at the apex of the federal court system.

3. Judicial Power in the Zone of Twilight. — Finally, like presidential power, judicial power can also occupy a “zone of twilight” where the proper allocation of authority between the judiciary and Congress is unclear. In such cases, courts possess a degree of intrinsic authority once Congress has created them and granted them subject-matter jurisdiction. But Congress has concurrent authority over the relevant issue, forcing courts to make difficult judgments about where the power of one branch ends and that of the other begins. (Or punt the issue using constitutional avoidance principles.) Put another way, while judicial power here might be self-executing in the absence of clear congressional authorization, Congress may act to expand, contract, or modify that judicial power.

A key issue in the zone of twilight, and a chestnut of federal-courts exams, is Congress’s ability to strip jurisdiction over substantive constitutional issues. For the most part, Congress’s ability to regulate jurisdiction is uncontroversial. The Court has long recognized that Congress may narrow the federal jurisdiction created by Article III by statute, split jurisdiction between multiple federal courts, vest exclusive jurisdiction in the federal (rather than state) courts and vice versa, and divest the Supreme Court of appellate jurisdiction—even in pending cases. On the other hand, federal courts generally possess conclusive and preclusive authority over constitutional interpretation. Were Congress to entirely strip jurisdiction over a constitutional issue, those dueling powers would come into conflict. Scholars have struggled to pin down a rule that could provide a principled basis for resolving the issue definitively.​​ A century ago, Justice Brandeis took the compromise view that so long as some court, state or federal, was available to hear a constitutional claim, such a jurisdiction strip would be constitutional (perhaps assuming the Supreme Court would remain available to review the state court’s resolution of the claim). But the Court has bent over backwards to avoid resolving the question of whether a statute entirely foreclosing judicial review of a constitutional claim would be lawful, making it a quintessential twilight-zone issue. In the few cases where the Court has been confronted with the question, it has interpreted statutory jurisdiction strips as silent on whether Congress meant to entirely bar review of constitutional claims. Then, invoking constitutional avoidance, the Court has read the statutes as not foreclosing review of those claims.

A similar tension exists in the context of causes of action and remedies. The Constitution is mostly silent about what remedies exist for violations of the rights it guarantees, with the exception of habeas relief in the case of federal executive detention and just compensation for takings. But Article III’s grant of “judicial Power” may itself provide a basis for court-created remedies. At the same time, remedy creation is a power that courts have traditionally shared with Congress. As noted, Congress can fashion causes of action and damages remedies for statutory and constitutional violations—subject to justiciability limits and the Court’s interpretation of the scope of any constitutional right Congress aims to protect. Congress can also authorize courts to issue equitable remedies—though it’s clear that courts can also do equity in a variety of contexts where Congress has not specifically authorized it, especially where constitutional rights are concerned.

When Congress is silent, the haziness of the federal courts’ remedial power makes it a paradigmatic twilight zone. In the shadow of that silence, the judiciary for a time regularly extrapolated causes of action by implication. Though these “heady days” are long gone, certain causes of action live on with Congress’s silent acquiescence. So does (perhaps barely) the Bivens cause of action for specific constitutional violations, again with congressional acquiescence. Yet it is not clear how far the power to imply a cause of action extends, or whether Congress can infringe upon a judicially derived damages remedy for a constitutional violation. As Justice Scalia remarked, once courts have implied a cause of action to vindicate a constitutional right, “(presumably) [such] an imagined ‘implication’ cannot even be repudiated by Congress.” If Bivens has been derived from judicial expounding of the constitutional text (similar to other Fourth Amendment remedial rules), it is possible that Congress cannot abridge it and that the courts alone can define its scope.

Equitable relief presents an even duskier twilight. Historically, the federal courts’ equitable power has been more fluid, rooted in an understanding that equity goes where law cannot. For starters, “equity does not have causes of action.” And a system whose doors are closed unless a litigant shows that he has “no adequate remedy at law” presupposes a degree of judicial discretion to entertain disputes and remediate harms where the law is silent. So the Court has at various points in history embraced an expansive view of the federal courts’ power to craft novel remedies at equity without clear congressional authorization. And even as the Court has sharply cut back on implying legal causes of action, it has taken a less mechanistic view of equity.

The boundaries between courts and Congress are thus murkier where equity is concerned. Under its broad power over the lower courts and the Supreme Court’s appellate docket, Congress can foreclose courts from awarding equitable relief for statutory violations—just as it can bar courts from implying legal rights of action. But Congress can also probably restrict equitable relief even in constitutional cases: because of equity’s status as a “gloss” around law rather than law itself, courts are not really expounding the Constitution when they craft or accord equitable relief. That distinction makes equitable remedies different from the Bivens line of cases, where Congress may not be able to abrogate the Court’s rulings if they derive from an interpretation of the Constitution’s text. At the same time, when Congress has not spoken, courts have a greater power to experiment with equitable remedies than they do with legal ones.

The contrast between law and equity creates a bit of a paradox: while the Court has recognized Congress’s absolute primacy over legal remedies, Congress may not be able to entirely override the remedies the Court has already implied—at least for constitutional violations. Yet in the context where the Court has recognized an intrinsic, and at times expansive, judicial power to accord equitable relief, Congress probably possesses the ability to significantly abrogate, if not extinguish, that power—even for constitutional violations. That paradox underscores the difficulty of resolving questions arising within the “zone of twilight” between the judiciary and Congress.

II. Theory In Practice: Universal Injunctions

The Article III–Youngstown typology provides an especially useful framework for thinking about edge cases. Luckily, we live in times that afford us an abundance of examples. Just last week, the Supreme Court ruled in Trump v. CASA that universal injunctions likely fall outside the scope of equitable relief Congress authorized federal courts to issue under the 1789 Judiciary Act. Many have claimed that the decision virtually outlawed universal injunctions. That’s not necessarily true, and a Youngstown-type classification helps to explain why.

Start with CASA’s actual holding: when the First Congress granted the federal courts jurisdiction over “all suits . . . in equity,” that grant did not authorize universal injunctions as a general matter. As we explained above, the federal courts’ power to do equity is self-executing once Congress grants them equitable jurisdiction. Congress can restrict or expand that power, but as long as it is silent on the matter, equitable remedies are within the zone of twilight. In 1999, the Supreme Court limited the contours of the courts’ self-executing equitable power: it held in Grupo Mexicano that Congress’s conferral of equity jurisdiction in the Judiciary Act only encompassed the power to grant equitable relief roughly analogous to the relief available in the English Court of Chancery in 1789. Grupo Mexicano, in other words, was a judicial gloss on the federal courts’ intrinsic authority to develop equitable remedies where Congress is silent. CASA built on Grupo Mexicano to conclude that federal courts cannot enter universal injunctions unless necessary to afford “complete relief” for the specific parties in a given case—the relevant limitation in 1789. But CASA did not pass on the question of whether Congress could affirmatively authorize courts to issue such injunctions across the board.

Congress may have done just that in the Administrative Procedure Act. The APA authorizes courts to “set aside” agency actions, which courts generally accomplish by “vacating” an agency rulemaking or order. Often, such vacatur is “universal,” meaning that it applies generally to the agency action, rather than to its specific effects on the parties seeking relief. As with anything else these days, the permissibility of universal vacatur is up for debate. But if Congress has spoken clearly on the matter, courts operate at the maximum of their authority when they universally vacate a rule under the APA.

There is a catch, however, and that’s where the federal courts’ “conclusive and preclusive” powers come into play. Even though the Trump Administration sought an answer on the issue, CASA is silent on whether Article III itself bars universal injunctions. In his CASA concurrence, Justice Thomas suggested that Article III limits all judicial relief to the specific parties before the court. Should the Court in the future agree with him, then not even Congress could authorize universal relief. True, the Court could narrowly characterize the APA’s “set aside” language as not encompassing universal vacatur, avoiding a difficult separation of powers question. But it could also conclude that, to the extent the APA does authorize universal vacatur, such relief runs afoul of the “judicial Power” conferred by the Constitution. If the Court chose the latter route, its word would be final, and Congress could not modify its interpretation of Article III.

III. Concluding Thoughts

These are unprecedented times for the separation of powers. As the three branches of government haggle over the scope of presidential power under Article II, they are simultaneously redefining the scope of the courts’ power under Article III. Judges and Justices are grappling with that question in differing ways: in CASA, for instance, Justice Barrett and Justice Jackson sparred over contrasting visions of the judicial function, showing that even the most learned jurists are uncertain about what is, in effect, the “judicial Power of the United States.” A synthesis of competing sources of judicial power—congressional authorization, congressional silence, and the courts’ conclusive and preclusive powers under Article III—will be helpful in clarifying the boundaries between the courts and the political branches, especially as those boundaries are being both tested and redrawn. As the rule of law itself faces significant challenges, a framework that contextualizes how the rule of law operates across the branches of government might help us hold on to it.

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^[1] True, the authority vested by Article II is unitary, such that executive agencies are susceptible to presidential control, whereas the authority vested by Article III is plural, in the sense that both the Supreme Court and the lower courts Congress creates may wield an indivisible “judicial Power.” But both clauses imply similar delineations of the powers they establish: Congress may create executive agencies and lower courts, but once created, those entities must retain the core characteristics of their respective branches.

^[2] Indeed, that fact has led critics of the Court’s justiciability rulings to argue that the Court has improperly divested Congress of its legislative power over causes of action.

^[3] Criminal contempt raises thornier issues because it requires the aid of the Executive Branch to prosecute and is properly considered as less “core” than the power to punish summary or civil contempt. In 1924, the Court opined that Congress could impose procedural requirements on the criminal contempt power by, for example, requiring a jury in contempt prosecutions, but it noted in dicta that similar efforts to regulate other forms of contempt would likely be unconstitutional.