Executive Power and Domestic Emergency: the Quest for Prerogative

• Date: 01 December 1952
• Published date: 01 December 1952
• DOI: 10.1177/106591295200500404
• Author: John P. Roche
• Subject Matter: Articles

EXECUTIVE POWER AND DOMESTIC EMERGENCY:
THE QUEST FOR PREROGATIVE*
JOHN P. ROCHE
Haverford College

’
INTRODUCTION
HE SUPREME COURT’S DECISION in the Steel Seizure case’ that
) President Truman had exceeded his constitutional vires when he
ordered Secretary of Commerce Sawyer to take over the steel industry
is in many ways a unique holding. Although executive prerogative has
been a constitutional tradition since the foundation of the Republic, the
Court’s opinion in the steel case marks the first instance since Lambdin P.
Milligan was unnoosed in 1866 that a President has been told that his
exercise of prerogative power was unconstitutional. The decision is, of
course, entirely without precedent in that Truman, unlike Lincoln, was
alive to learn his lesson.
This is not to suggest that Presidents have not been called to task
by the Court in earlier decisions, but rather to note that in such cases
as Panama Refining Company v. Ry,at~.,2 or Schechter Bros. v. United
States,3 the Court included Congress with the President in its interdiction,
while in Rathbun v. United States4 the Court construed the statute estab-
lishing the Federal Trade Commission in such a manner as to forbid
Roosevelt’s dismissal of Humphreys on the ground utilized. In these
instances, the President claimed a statutory basis for his actions, but
neither Lincoln, in his original order suspending habeas corpus and
establishing military commissions for the trial of disloyal civilians,5 nor
Truman, in his seizure of the steel industry, offered any statutory founda-
tion for his action. Each felt that he was exercising inherent executive
power -
prerogative -
in combating a domestic emergency.
Consequently, before analyzing what the Supreme Court said about
President Truman’s seizure, it will be worthwhile to examine in some detail
the precedents that exist for presidential exercise of prerogative power in
domestic emergencies. Once this has been done, the decision and its im-
plications will be discussed, and finally, certain conclusions will be suggested.
* This papcr was delivered at the convention of the American Political Science Association in
August, 1952.
1 Youngstown Sheet &
Tube Co. v. Sawyer, 72 Sup. Ct. 863 (1952).
2
293 U.S. 388 (1934).
3
295 U.S. 495 (1935).
4 295 U.S. 602 (1935). See the similar early case of Little v. Barreme, 2 Cranch 170 (1804).
5
Lincoln’s Proclamation of September 24, 1862, suspended habeas corpus and ordered military trials
for disloyal civilians. A year later Lincoln again suspended habeas corpus for such disloyal
persons, but this time his action was based on the Habeas Corpus Act of 1863. However, this
statute did not authorize trial by military commission. See Clinton L. Rossiter, The Supreme
Court and the Commander in Chief (Ithaca: Cornell University Press, 1951), pp. 26-28.
592

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593
THE QUEST FOR PREROGATIVE
The Court’s opinion in the Steel Seizure case was preceded and
accompanied by the most frenetic display of precedent-chopping that the
American public has been subjected to since President Roosevelt’s 1937
attempt to &dquo;pack&dquo; the Supreme Court. The supporters of President
Truman invoked the shades of Presidents Jefferson, Cleveland, and Frank-
lin D. Roosevelt, with Lincoln and Theodore Roosevelt to give an air
of bipartisanship to the undertaking. The steel seizure was equated
with the Louisiana Purchase, the Emancipation Proclamation, Franklin
D. Roosevelt’s &dquo;destroyer deal,&dquo; and other successful exercises of executive
authority. On the other hand, President Truman’s opponents, while
not issuing a call for regicides, compared him unfavorably with Charles
I, denied that the United States Constitution endowed the executive with
any &dquo;prerogative,&dquo; and maintained that the seizure of the steel companies
was one more step on the road to unconstitutional, unlimited government
- government of &dquo;men and not of laws.&dquo; However, it is interesting to
note that, unlike some of the bitter judicial controversies of the thirties,
the division of opinion on the legality of seizure did not fall into the neat
categories of &dquo;left&dquo; against &dquo;right,&dquo; or &dquo;liberal&dquo; versus &dquo;reactionary&dquo;; indi-
viduals and organizations of unquestioned &dquo;liberalism,&dquo; such as Norman
Thomas and the American Civil Liberties Union, while not accepting the
position of the steel companies on the merits of the dispute, condemned
the government’s constitutional claims.
One of the major assertions of the steel companies was that the Presi-
dent’s seizure order was without constitutional basis or precedent. On
the other hand, the solicitor-general of the United States, in his plea before
the Supreme Court, maintained that President Truman’s action, far
from being sui generic, was just another exercise of an authority that
could be traced back to the administration of President Washington. To
a student of constitutional law, this is a major, if not the crucial issue in
the steel seizure litigation. Which, if any, of these antithetical claims does
a dispassionate examination of American constitutional history support?
The question may be formulated in more precise terms: To what
extent does an analysis of the American constitutional tradition buttress
the assertion that there is, incorporated in the initial phraseology of
Article II of the Constitution, an independent grant of executive power?
The exhaustive and definitive research of Professors Corwin Binkley,7
6 Edward S. Corwin, The President: Office and Powers (New York: New York University Press, 1948).
This is the definitive study of the American presidency, and where Corwin has gone into some
matter exhaustively, I have contented myself with citing his research rather than engaging in the
conspicuous scholarship of citing each source, statute, or executive order separately. The historical
section of this paper does not pretend to be more than a synthesis of the work that has been
done on one facet of the presidency, although certainly the scholars who did the original investi-
gation should not be held responsible for any interpretations advanced herein! For a different
approach see Albert L. Sturm, "Emergencies and the Presidency," in The Presidency in Transition,
ed. Robert S. Rankin (Gainesville, Fla.: Journal of Politics, University of Florida, 1949), pp. 121-44.
7
Wilfred E. Binkley, President and Congress (New York: Alfred A. Knopf, 1947).

---

594
Hart,8 and Rossiter,9 has well explored the main lines and byways of the
argument. One school of constitutional theorists, accepting the view
of prerogative so brilliantly expounded by Alexander Hamilton in 1793,
has maintained that the President is endowed by the Constitution with
a high degree of autonomy and discretion - with &dquo;the executive power
of the United States&dquo; not with &dquo;the executive power herein granted.&dquo; The
other viewpoint, that of Madison in 1793 and of Jefferson-the-philosopher
(who must be distinguished from Jefferson-the-President, who was occa-
sionally prepared to &dquo;rise above&dquo; the principle of strict construction), has
urged that the President, like the Congress, has only those powers
enumerated in the Constitution, and that there is, consequently, no
.
executive &dquo;prerogative.&dquo;
It would be highly pretentious here to attempt a re-tread of the
scholarship in this area. Suffice it to say that Professor Corwin has con-
cluded that the Framers of the Constitution intended to establish a
&dquo;balanced constitution,&dquo; which &dquo;carried with it the idea of a divided
initiative in the matter of legislation and a broad range of autonomous
executive power or ’prerogative.’ &dquo; 1° However, the intent of the Framers,
while of antiquarian interest, does not control the present interpretation
of the Constitution.’,, Thus, while one may accept as bona fide the birth
certificate of prerogative, it is necessary to examine further the history of
executive power in order to determine the usages of prerogative, how this
conception has been applied in specific instances, and how it has been
received by the Court. More particularly it is important to consider
precedents in the field of domestic emergencies where the President has
taken action independent of any specific constitutional or congressional
authorization.
This formulation immediately excludes two rich seams of precedent
from consideration: first, those actions taken by the President in the field
of foreign affairs which, like the Louisiana Purchase, were not based on any
affirmative grant of power; and, second, such actions as various Presidents
have taken in domestic emergencies under specific congressional authoriza-
8 James K. Hart, The American Presidency in Action: 1789 (New York: The Macmillan Co., 1949).
9
Clinton L. Rossiter, The Supreme Court and the Commander in Chief; Constitutional Dictatorship
(Princeton: Princeton University Press, 1948), chap. 14.
10
Edward S. Corwin, The President, op. cit., pp. 15-16. Corwin’s italics have been deleted. See the
same author’s concise analysis of this early period in Twilight of the Supreme Court (New
Haven: Yale University Press, 1934), pp. 123-30.
11
See the interesting dispute on this point between Chief Justice Hughes and Justice Sutherland in
Home Bldg. &
Loan v. Blaisdell, 290 U.S. 398 (1934). A cynical insight into the degree to which
a "Framer" felt himself bound by the intent of the "Framers" can be found in the Circuit Court’s
...