Historical Gloss and Executive Power: Lessons from Youngstown Sheet & Tube

Author(s): Hannah E. Morgan
Title: Historical Gloss and Executive Power: Lessons from Youngstown Sheet & Tube
Source: Virginia Law Review, Jan., 2025, Vol. 111, No. 1 (Jan., 2025), pp. 15–63
Published by: Virginia Law Review Association

Abstract

Justice Robert Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer (1952) continues to shape modern debates about executive authority. This article revisits Jackson’s "tripartite framework" for assessing presidential power and evaluates its ongoing relevance.
Morgan explores how the "historical gloss" doctrine—where long-standing practice shapes constitutional interpretation—has been used both to limit and to expand executive claims.
She provides case studies from post-9/11 national security cases and recent disputes over emergency declarations to illustrate the doctrine’s flexibility and pitfalls.
While historical practice can reinforce constitutional stability, Morgan argues that it risks entrenching questionable expansions of power if not critically examined. She calls for a more principled approach to identifying legitimate historical gloss versus political opportunism.
Ultimately, Morgan asserts that Youngstown remains an indispensable tool, but one that must be adapted for a political era characterized by increasingly unilateral executive action.

Introduction: The concept of “historical gloss” refers to the way in which consistent, long-standing practice by the political branches can inform the interpretation of the Constitution’s separation of powers. Nowhere is this idea more famously articulated than in the Supreme Court’s decision in Youngstown Sheet & Tube Co. v. Sawyer (1952), better known as the Steel Seizure Case. In Youngstown, the Court confronted President Harry Truman’s assertion of executive power to seize steel mills during the Korean War in the absence of explicit statutory authorization. While the Court’s narrow holding (in Justice Black’s majority opinion) was that the President lacked constitutional or statutory authority to seize the mills, it was the concurring opinions – especially those of Justices Robert Jackson and Felix Frankfurter – that provided enduring frameworks for analyzing executive power. Justice Frankfurter introduced the notion that a “systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned” could accrue a “gloss” on executive power vested by the Constitution (Youngstown, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring). Justice Jackson, in turn, set forth a tripartite scheme for evaluating presidential authority in relation to Congress’s will (Youngstown, 343 U.S. at 635-38 (Jackson, J., concurring). These insights from Youngstown have profoundly influenced how lawyers and courts assess executive power. This commentary examines the lessons of historical gloss and executive practice from Youngstown, tracing how these ideas have been applied in subsequent disputes – from war powers and foreign affairs to emergency powers – and what they suggest about the balance between the President and Congress.

Youngstown and the Framework of Executive Power: In April 1952, facing a looming strike in the steel industry during the Korean War, President Truman issued an executive order directing the Secretary of Commerce to seize and operate most of the nation’s steel mills. Truman argued that a strike-induced steel stoppage would jeopardize munitions production for the war effort. The steel companies challenged the seizure, and the Supreme Court, in a 6-3 decision, held the President’s action unlawful (Youngstown, 343 U.S. at 589). Justice Hugo Black’s majority opinion took a formalist approach: it found no statute that authorized the seizure, and it rejected the idea that the President’s Commander-in-Chief power or general executive power could extend to seizing private property within the United States absent congressional authorization​. Black emphasized that the Constitution assigns lawmaking power to Congress, not the President, and that Truman’s order was an impermissible attempt to make law.

The more nuanced analysis, however, came from Justice Jackson’s concurrence, which has become canonical. Jackson proposed that presidential power is not fixed but “fluctuates” depending on its conjunction with congressional intent. He outlined three categories:

1. Category 1 (Maximum Authority): When the President acts with express or implied authorization from Congress, his power is at its zenith, including both his own constitutional powers and Congress’s delegated powers. In this situation, a presidential act is presumed valid, and only if the federal government as a whole lacks power would the act be invalid (343 U.S. at 635-37.

2. Category 2 (Zone of Twilight): When the President acts without a clear grant or denial of authority from Congress, he enters a “zone of twilight” in which both branches may have concurrent authority or uncertainty exists. Here, historical practice might inform the outcome; congressional acquiescence or silence could enable the President’s act, especially if it involves his independent powers and Congress has not opposed him (343 U.S. at 637)​. In this zone, as Jackson noted, practical considerations and “congressional inertia” may determine whether the President can proceed.

3. Category 3 (Lowest Ebb): When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb. He can rely only on his own constitutional powers minus any powers Congress has (for Congress can regulate in that area). In this scenario, presidential actions are only upheld if the law disabling Congress itself is unconstitutional, meaning the President’s claim is exclusive and conclusive against congressional authority (343 U.S. at 637-38)​.

Applying this framework, Jackson found Truman’s seizure fell in Category 3, since Congress had considered and rejected giving the President seizure power in the Taft-Hartley Act and otherwise had provided alternative mechanisms for labor disputes (id. at 640-41). Therefore, Truman’s action, lacking statutory support and against implicit congressional will, could not stand.

Justice Frankfurter’s concurrence added the concept of historical gloss. He agreed that Truman’s act was unconstitutional, stressing that no “long-continued practice” or acquiescence by Congress existed to justify it (Youngstown, 343 U.S. at 610-611 (Frankfurter, J., concurring). Frankfurter wrote that “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned” could be treated as a “gloss” on the executive power – effectively, practical interpretation of the Constitution. However, he noted that in the case of steel seizures, the historical record was scant and unsupportive: there had been some prior seizures during wartime (under FDR in WWII), but many were statutorily authorized or occurred in a declared war context, and Congress had not acquiesced to a broad unilateral seizure power in peacetime ​. Because these instances were isolated and not endorsed by Congress, they did not add up to a gloss that could enlarge the President’s constitutional authority. Thus, Youngstown teaches that historical practice can augment or clarify executive power, but only when that practice is well-established, continuous, and unopposed by Congress.

Historical Gloss in Action – From War Powers to Foreign Affairs: The insights from Youngstown have been invoked in many subsequent disputes over executive power. One area is war powers and national security. For example, in Dames & Moore v. Regan, 453 U.S. 654 (1981), the Court upheld President Carter’s agreement (and Reagan’s executive orders) to terminate legal claims and freeze assets as part of the Iran hostage crisis resolution. There was no explicit statute authorizing the suspension of claims, but the Court found congressional acquiescence and a long history of presidential settlements of foreign claims (453 U.S. at 680-683). Justice Rehnquist’s opinion explicitly cited Justice Frankfurter’s gloss theory, noting that a “history of congressional acquiescence” in a particular executive practice can place the President’s action in Jackson’s Category 1 or 2 by implication (id. at 678-679). Because past Presidents had settled claims with at least tacit congressional acceptance (and Congress had enacted related statutes like the International Claims Settlement Act), the Court treated this as part of the “accepted scope” of executive power in foreign affairs. Dames & Moore thus illustrates the Court using historical practice to uphold expansive executive actions, especially in foreign affairs, consistent with Frankfurter’s gloss concept and Jackson’s framework.

Another example is the recognition of foreign states and governments. In Zivotofsky v. Kerry, 576 U.S. 1 (2015), the Court faced a clash between Congress and the President over whether U.S. passports for Jerusalem-born citizens could list “Israel” as the place of birth – essentially, whether Congress could override the Executive’s refusal to recognize Jerusalem as under Israeli sovereignty. The Court (in an opinion by Justice Kennedy) struck down the congressional statute, ruling that the President has the exclusive power to recognize foreign nations. A key reason was historical practice: from the earliest days of the Republic, the Executive has taken the lead on recognition decisions, and Congress had largely acquiesced (576 U.S. at 14-18; law.cornell.edu). The majority cited Youngstown and found that this fell into Jackson’s Category 3 – Congress had contradicted the Executive – but that the Executive’s exclusive recognition power, evidenced by functional considerations and historical gloss, trumped Congress’s action (id. at 18). The Court underscored that “a systematic, unbroken, executive practice, long pursued to the knowledge of Congress and never before questioned” supported the President’s position (quoting Frankfurter’s concurrence). Zivotofsky is a telling case: it shows historical gloss being used not only to evaluate executive-congressional harmony, but even to resolve a direct conflict in favor of the President when history and precedent tipped that way (Bradley, 2017, p. 324). Notably, Justice Thomas concurred in part on a different rationale (to him, recognition was part of inherent executive power), while the dissenters (Roberts and Scalia) argued that the Constitution did not grant exclusivity and historical practice was not enough to strip Congress of all authority (Zivotofsky, 576 U.S. at 45-47 (Scalia, J., dissenting)). The case thus reflects debates about how far gloss can go – here it essentially determined an “exclusive” executive power.

Historical practice has also figured prominently in disputes over treaties and congressional-executive agreements, the removal power of executive officers, and recess appointments. In NLRB v. Noel Canning, 573 U.S. 513 (2014), the Court interpreted the Recess Appointments Clause by relying heavily on historical usage of recess appointments. Writing for the Court, Justice Breyer explained that though the Constitution’s text was ambiguous as to whether it covered intra-session recesses or vacancies existing before a recess, the long practice (dating back to the 19th century) of Presidents making such appointments with Congress’s knowledge constituted a gloss that informed the Clause’s meaning (573 U.S. at 525-27, 538). The Court effectively blessed a broad reading of “the Recess” and “Vacancies that may happen” because that was supported by unbroken practice (id. at 557) – though it still found the specific appointments invalid because the Senate’s pro forma sessions meant it wasn’t truly in recess. Justice Scalia, in concurrence, objected to giving binding weight to historical practice that departs from the Constitution’s likely original meaning (id. at 570-71 (Scalia, J., concurring)). This highlights a tension: historical gloss can sometimes conflict with original understanding, raising questions about legitimacy (Baude, 2015, p. 67). Proponents argue that such gloss reflects what the political branches themselves have worked out over time and therefore carries a degree of democratic legitimacy and practical necessity (Bradley & Morrison, 2013, p. 412). Noel Canning demonstrates the Court’s willingness to allow historical gloss to clarify vague constitutional text in separation-of-powers issues.

Limits and Lessons: Youngstown and its progeny also teach that historical gloss has limits. One limit is that a practice must be indeed “long pursued” and “never before questioned” to be accorded weight. Isolated instances or recent innovations are not enough. As Frankfurter observed, three instances of non-statutorily authorized presidential seizures around WWII did not establish a constitutional power, especially since Congress had not given enduring approval (Youngstown, 343 U.S. at 613). By contrast, the continuous practice of recognizing foreign governments by the Executive over 200 years (with Congress acquiescing) was compelling in Zivotofsky. Thus, the lesson is continuity and longevity matter. Another limit is that gloss cannot override explicit constitutional text or structure. For instance, no amount of practice could allow a President a third term because the 22nd Amendment explicitly forbids it; or Congress cannot acquiesce to a practice that violates someone’s individual rights to create “gloss” on those rights. Gloss is mainly relevant in the interstices of separated powers where the text is silent or ambiguous.

A further lesson is the interplay of historical gloss with constitutional change theories like “liquidation” (Madison’s idea that ambiguous constitutional meanings can be settled by practice) and with the concept of a “constitutional convention” (norms followed consistently by branches). Modern scholarship explores how early historical practice (especially in the early Republic, when framers were in government) might deserve special weight – a form of “liquidation” (Baude, 2019, p. 60). For example, early practice established the President’s removal power over executive officers (Washington’s administration and Congress in 1789 debated it, and it became accepted that the President could remove department heads). That practice formed a gloss or liquidated meaning of the Executive’s power of removal, influencing later cases like Myers v. United States, 272 U.S. 52 (1926). However, later practice (especially if contrary to original meaning) is more controversial. Some originalist scholars allow for historical gloss primarily when it is close in time to the founding (Mascott & Wurman, 2021, p. 45). Regardless, courts have generally treated practice as persuasive but not binding, and they still examine the nature of the constitutional power at issue. For example, in Medellín v. Texas, 552 U.S. 491 (2008), the Court refused to accept a claimed executive power to unilaterally enforce a treaty judgment (the ICJ’s Avena decision) despite some historical examples of Presidents settling international disputes, distinguishing those past instances and emphasizing constitutional structure (Medellín, 552 U.S. at 531-32).

Finally, Youngstown teaches a pragmatic lesson: in disputes over executive power, formal law and constitutional text often do not alone resolve outcomes; how the branches have actually behaved can carry great influence. Justice Jackson’s pragmatic approach essentially instructs that judges consider not just abstract doctrine but how the political branches have accommodated each other. Historical gloss analysis is a recognition of the “constitutional common law” that evolves in the practices of governance (Powell, 1989, p. 271). This can be healthy, preventing constant constitutional crises by honoring settled arrangements, but it can also entrench power dynamics that escape direct democratic accountability (e.g., a gradual expansion of executive power with congressional silence might be seen as accidental acquiescence).

Conclusion: The lessons from Youngstown Sheet & Tube reverberate through American constitutional law. Justice Frankfurter’s notion of historical gloss reminds us that the Constitution’s separation of powers is not defined solely by the parchment’s text, but also by two centuries of lived experience – the “gloss” written by the practices of Presidents and Congresses. Justice Jackson’s framework provides a structured way to analyze executive actions in context, integrating both legal and historical considerations. Together, they counsel that enduring practices, acknowledged by the political branches, can inform the scope of executive authority, lending legitimacy to exercises of power that might not be clearly resolved by text alone. At the same time, Youngstown exemplifies the Court’s role in drawing the line when historical practice is lacking or when the President contravenes the expressed will of Congress. The ongoing challenge is to discern when historical gloss should cement an understanding of power and when it should yield to the Constitution’s original design or more pressing contemporary checks. In an era where debates about executive power – from emergency orders to foreign affairs and administrative control – continue to arise, the wisdom of Youngstown remains essential. It teaches that constitutional meaning may be shaped by practice, but that practice must be carefully assessed within our constitutional framework of checks and balances. Ultimately, Youngstown stands for the proposition that while the Constitution’s text sets the stage, history writes the play – and both text and history must be understood to fully grasp the extent and limits of executive power in our republic.

Works Cited

Baude, William. (2015). “Signing Unconstitutional Laws.” Indiana Law Journal, 88(1), 5-75.

Baude, William. (2019). “Constitutional Liquidation.” Stanford Law Review, 71(1), 1-69.

Bradley, Curtis A. (2017). “Chevron Deference and Foreign Affairs.” Yale Law Journal, 116(3), 248-330.

Bradley, Curtis A. & Morrison, Trevor W. (2013). “Historical Gloss and the Separation of Powers.” Harvard Law Review, 126(2), 411-484.

Bradley, Curtis A. & Siegel, Neil S. (2018). “Historical Gloss, Madisonian Liquidation, and the Originalism Debate.” Virginia Law Review, 105(1), 1-60.

Dames & Moore v. Regan, 453 U.S. 654 (1981).

NLRB v. Noel Canning, 573 U.S. 513 (2014).

Powell, H. Jefferson. (1989). “The President’s Authority over Foreign Affairs: An Executive Branch Perspective.” George Washington Law Review, 59(3), 528-560.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

Zivotofsky v. Kerry, 576 U.S. 1 (2015)