Katherine Shaw (University of Pennsylvania Carey Law School) has posted Power and Immunity in Youngstown and Trump v. United States (174 University of Pennsylvania Law Review Online 39 (2026)) on SSRN. Here is the abstract:
In Chief Justice John Roberts’s opinion for the Court in Trump v. United States, granting ex-presidents broad immunity from criminal prosecution, Justice Robert Jackson’s famous concurrence in Youngstown Sheet & Tube Company v. Sawyer loomed large. Indeed, Roberts cited Youngstown at least ten times, casting his immunity opinion as a faithful application of much of Jackson’s logic. But as this Essay shows, a close examination of the ways Roberts invoked Jackson reveals a cynical and disingenuous reliance on Jackson’s famous opinion—one that in fact inverted its core premises. The Essay also argues, however, that although the opinion’s application of Jackson’s concurrence to presidential immunity badly misapprehended the concurrence, it appeared to leave intact the positions of both the Youngstown majority and the Jackson concurrence on the sources of presidential power. In a moment in which the executive has sought to slip the bonds of constraint on presidential power, this enduring aspect of Youngstown provides a critically important limit on the presidency.
Highly recommended!
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