Monday, September 08, 2025
Civil-Military Relations in Youngstown
On Tuesday, Judge Breyer issued an opinion concluding that the National Guard deployment to LA violated the Posse Comitatus Act. Breyer’s analysis used Justice Jackson’s Youngstown concurrence in a novel way. Let me explain.
When we think of the principle that civil power must be superior to military power, the concern that comes to mind is that generals will take decisions that elected leaders should take. This is a problem (General Andrew Jackson, General Grant, and General MacArthur, for example). But in Youngstown, Justice Jackson focused on the risk that the President would use his military authority to subvert other civil institutions, most notably Congress. There is plenty of language in the opinion to that effect in explaining why Truman’s role as Commander-in-Chief did not authorize his seizure of the steel mills.
In that section of the opinion, Jackson said: “Congress has forbidden him [the President] to use the army for the purpose of executing general laws except when expressly authorized by the Constitution or by Act of Congress.” Judge Breyer emphasized the word “expressly” in this sentence. Categories One and Three of the concurrence refer to “express or implied” authorizations or prohibitions. Here, though, Breyer was suggesting, the authorization must be express because of the constitutional issues that would arise if the President used the military for law enforcement at home. (Granted, you can distinguish the Army from the National Guard in this context, though Jackson also talked about the militia in his opinion.)
If there are further Guard deployments at home for law enforcement purposes, this point may receive more attention.
Posted by Gerard Magliocca on September 8, 2025 at 08:39 AM | Permalink
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