Sotomayor: Steel Seizure Case Should Be Considered in Challenges to Executive Power

Judge Sonia Sotomayor has been exceedingly careful not to say anything about any law that could possibly come before her as a Supreme Court justice, much to the evident frustration of some of the senators questioning her today — despite the fact that, as I noted before, they know she can’t and won’t answer the questions. But one might read between the lines and presume that Sotomayor thinks that at least some of the Justice Department’s more extreme OLC memos that concluded the president has extraordinary power as commander-in-chief to ignore congressional law and Supreme Court precedent went too far.

Sen. Russ Feingold (D-Wisc.), for example, asked her whether it was strange that the OLC memos, in concluding that the president need not comply with the anti-torture statute, never mentioned the landmark controlling case, Youngstown Sheet & Tube Co. v. Sawyer, in which the court struck down President Truman’s decision to ignore controlling law and seize private private steel mills in support of the war effort.

“Does it strike you as odd that those analyses would not mention the Youngstown case? ” asked Feingold.

Sotomayor responded, “I have never been an adviser to a president so I don’t want to comment on what was done or not done, and it’s likely that some question, and I know at least one existing case, is likely to come before the court.” But she didn’t completely avoid the issue, adding, “I would be surprised if the court didn’t consider the Youngstown framework in a decision involving this question. Because that case’s framework is the framework for how these decisions are generally approached.”

Read into it what you will, but it sure sounded like she agreed with Feingold that it was odd that the OLC memos didn’t mention Youngstown.

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