Medellin and Youngstown
[William Dodge is a law professor at UC Hastings]
I’ve not seen anyone comment yet on what I thought was one of the more notable aspects of Chief Justice Roberts’s opinion, its application of Justice Jackson’s Youngstown analysis. The question is how to read congressional silence. Although I am greatly oversimplifying, Jackson seemed to read Congress’s failure to authorize what the President did in Youngstown as implicit disapproval (category 3). In Dames & Moore, by contrast, Justice Rehnquist read Congress’s silence as approval (category 1). Roberts’s opinion in Medellin seems to follow Jackson rather than Rehnquist and to treat silence as implicit disapproval (category 3).
As chance would have it, Rehnquist clerked for Jackson the term that Youngstown was decided and Roberts clerked for Rehnquist clerked the term that Dames & Moore was decided. I’m sure there is a great law review article to be written here (though I am not the one to write it).