Gerard N. Magliocca's "The Actual Art of Governing"

Gerard N. Magliocca is Distinguished Professor and Lawrence A. Jegen III Professor at the Indiana University Robert H. McKinney School of Law. He has written six books and many articles on American constitutional history. His book, Washington's Heir: The Life of Justice Bushrod Washington (2022) won the Erwin N. Griswold Book Prize awarded by the Supreme Court Historical Society.

Magliocca applied the "Page 99 Test" to his latest book, The Actual Art of Governing: Justice Robert H. Jackson's Concurring Opinion in the Steel Seizure Case, with the following results:

Page 99 of The Actual Art of Governing talks about how the invention of nuclear weapons increased executive power. Harry Truman was the first president with the exclusive authority to blow up the world. Moreover, President Truman argued that his unilateral decision to seize and operate the nation’s steel mills during the Korean War was justified in part by the need to safeguard America's nuclear program. Taken to its logical conclusion, the President’s nuclear authority could justify almost any unilateral executive action. If the President can destroy mankind by himself, then why can’t he do something less consequential on his own like raising taxes?

Turns out that page 99 nicely captures one of my book’s central themes. The Actual Art of Governing is about Justice Robert H. Jackson’s concurring opinion in the Supreme Court's Youngstown decision rejecting President Truman’s steel seizure as unconstitutional. Justice Jackson’s concurrence is the most influential opinion ever written on the separation of powers between Congress and the President. One reason why is that the opinion self-consciously updated the Constitution’s structure for an age in which the President was far more powerful at home and abroad than the Framers could have imagined. For example, Jackson wrote about the fact that Congress could and sometimes did give the President significant (though temporary) emergency powers. He also explained that the President was fully capable of persuading Congress to give him additional authority through his role of the head of state, the leader of his party, and his dominant media presence. As a result, courts should exercise great caution in giving the President emergency authority without such a statute or in circumstances that were at odds with legislative practice. At the same time, Jackson said that the President must have broad latitude to act on his own overseas given America’s role as a global superpower.

Learn more about The Actual Art of Governing at the Oxford University Press website.

The Page 99 Test: The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash.

The Page 99 Test: American Founding Son.

The Page 99 Test: Washington's Heir.

--Marshal Zeringue