Justice Harlan vs Donald Trump - Andrew Weissmann

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This week saw the 80th anniversary of V-E Day—the liberation of Europe at the end of World War II. It also saw the continued expansion of overweening presidential power, with Stephen Miller toying with the suspension of habeas corpus by the White House, AND tweeting that "due process" does not apply to non-citizens and only in criminal cases (spoiler alert—that is not the law).

All this is to say that the power of the two branches of government that are not the executive branch—i.e., Congress and the Courts—has never been more important to our survival as a functioning and real democracy.

All of this was foretold in the lucid, dramatic, and prescient concurring opinion of Justice Harlan in the Youngstown Steel decision in 1952. Justice Harlan spoke eloquently about the perils of the increasing power of the American presidency, and the threat it posed to our democracy. I read from portions of that decision (which you can find here). You will not be disappointed, I promise you.

Here is a small piece to whet your appetite, from his famous concluding lines:

“With all its defects, delays, and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.

Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.”

Stay engaged. - Andrew Weissmann - 05/10/2025.


00:00 – Introduction: Why Presidential Power Matters
00:36 – The Danger of Suspending Habeas Corpus
01:45 – Real-World Impact: Detentions and Court Victories
02:23 – Presidential Immunity and Executive Overreach
03:08 – The Youngstown Case: A Landmark Decision
05:06 – Justice Harlan’s History and Perspective
06:18 – VE Day and the Fragility of Democracy
06:45 – Justice Jackson’s Warning on Executive Power
07:57 – Executive Power vs. Constitutional Limits
09:02 – Lessons from Germany’s Weimar Constitution
10:21 – Emergency Powers and the Temptation of Tyranny
11:38 – The Gap Between Paper Powers and Real Power
12:42 – The Presidency’s Modern Influence
13:45 – The Rise of Party Loyalty and Extra-Constitutional Power
15:01 – Congress Must Rise to the Moment
16:25 – The Court’s Duty to Uphold Democratic Institutions
17:14 – A Poignant, Prescient Decision for Today
18:22 – Harlan’s Warning from Nuremberg to Now
18:34 – “Where Law Ends, Tyranny Begins”
19:10 – Final Thoughts and a Call to Stay Engaged