The steel seizure case and inherent presidential power.

• Author: Adler, David Gray
• Position: President Truman's 1952 seizure of US steel mills

The historic American debate on the nature and scope of executive authority, punctuated and dramatized by the renowned eighteenth-century exchange between James Madison and Alexander Hamilton, (2) and spiked in our time by sweeping assertions of unilateral presidential power in foreign affairs and warmaking, (3) and by claims of privilege, secrecy and immunity in domestic matters, (4) took center stage once more in the extraordinary case of Youngstown Sheet & Tube Co. v. Sawyer. (5) Justly celebrated in the pages of this volume, on the occasion of its 50th anniversary, for its landmark status and deserving rank in the pantheon of great cases--alongside Marbury, (6) McCulloch, (7) and Brown (8)--Youngstown has been assured of immortality in the annals of constitutional jurisprudence. The Steel Seizure Case, like the Pentagon Papers Case (9) and the Watergate Tapes Case, (10) was suffused with richly-textured historic dimensions. Moreover, it triggered high political drama and pitched conflict, generated great tides of public opinion, and plunged the Supreme Court into a white-hot cauldron of decision-making responsibility in which it faced issues of surpassing importance to the nation, including the fundamental question of the president's power, if any, to meet an emergency in the absence of statutory authorization. When measured against Youngstown, C. Herman Pritchett observed, "all other [separation of powers] cases pale into insignificance." (11) Youngstown featured the most thorough judicial exploration of presidential powers in the history of the Republic, (12) and it constituted the most significant judicial commentary in the 20th century on the limits of those powers. (13) Indeed, it represented "one of the rare occasions when the Court has rebuked a presidential act in wartime." (14) Perhaps it is best remembered, as Justice John Paul Stevens declared in Clinton v. Jones, as "the most dramatic example" of the Court's authority to review the legality of an executive action, (15) for in the end it "struck a blow for the separation of powers" and reaffirmed the principle of presidential subordination to the rule of law. (16)

It is doubtful that even the most prescient of soothsayers could have foreseen the emergence of a landmark case--a case that would eclipse all other separation of powers cases--in President Truman's announcement on April 8, 1952 that he had issued that day Executive Order No. 10340 directing Secretary of Commerce Charles Sawyer to seize the steel industry for the purpose of averting a nationwide strike, which he feared would jeopardize the United States' prosecution of its military efforts in the Korean War as well as other foreign policy and national security interests in Europe. (17) Chief Justice William H. Rehnquist, who at the time served as a clerk to Justice Robert H. Jackson, has observed that "the case had something of an O. Henry ending about it." (18) He wrote:

Using the traditional methods of predicting in advance how a court will decide a case, the result reached by the Supreme Court of the United States in the Steel Seizure Case was contrary to what one would have expected at the time the lawsuit was instituted. There were good reasons, amply supported by precedent, why the Court need never have reached the constitutional question in the case. If the Court were to reach the constitutional question, precedent did not dictate one answer in preference to another. The Supreme Court consisted of nine Justices appointed by two Democratic Presidents, reviewing a challenge to the actions of President Truman, himself a Democrat, who had appointed four of the nine justices. The Supreme Court has a commendable record of eschewing partisan politics in its decision making, but in a constitutionally uncharted area such as this, one might have at least thought that a tie would count for the runner, the runner being President Truman. (19) In a national radio and television address, President Truman grounded his seizure order in the authority vested in him by "the Constitution and laws of the United States, and as President of the United States and Commander in Chief of the armed forces." (20) Despite his reference to the laws of the United States, Truman acted without statutory authority. In fact, on the very next day, Assistant Attorney General Holmes Baldridge asserted in federal court in response to the steel companies' motion for a temporary restraining order, that the seizure was based upon "the inherent executive powers of the President" (21) and not on any statute. Throughout the subsequent legal proceedings, the Administration continued to adduce what it variously referred to as the president's "emergency," "inherent," or "residual" powers. Indeed, on April 18, Truman held a press conference for members of the Society of Newspaper Editors. The New York Times ran a story on the conference in which it reported the president's response to a reporter's question:

If it is proper under your inherent powers to seize the steel mills, can you, in your opinion, seize the newspapers and the radio stations? Mr. Truman replied that under similar circumstances the President had to do whatever he believed was best for the country. The President refused to elaborate. But White House sources said the President's point was that he had power in an emergency, to take over "any portion of the business community acting to jeopardize all the people." (22)

The Administration's theory of an inherent power was rebuked by the judiciary. Federal District Court Judge David A. Pine declared the seizure invalid and stated that he found nothing in the Constitution to support the assertion of an undefined, inherent power in the presidency. (23) The Supreme Court, by a 6-3 vote, affirmed Judge Pine's ruling, and while there were five concurring opinions, Justice Hugo Black's opinion for the Court also rejected the claim of an inherent emergency power. (24)

The explanation behind Youngstown's stature is not to be found in Oliver Wendell Holmes' famous maxim that "[g]reat cases like hard cases make bad law." (25) On the contrary, the Court's repudiation of President Harry Truman's claim of an inherent power to seize the steel mills spoke volumes for its commitment to constitutionalism and the principle of the rule of law. Nor is it to be found in Professor Gerald Gunther's generally sound observation that the "lasting impact [of the Court] ultimately turns on the persuasiveness of the reasons it articulates, not on the particular result it reaches," (26) for it is nevertheless true that the celebration of Youngstown is as much a reflection of the Court's panoramic survey of presidential power as it is a function of what the Court did when it rejected President Truman's assertion of a broad emergency power. (27) Youngstown's remarkable stature, its point of distinction, lies in the Court's commitment to the principle of executive subordination to the law, for if the Court could and would rebuke a presidential action vigorously defended and executed in the name of national security in the context of the Korean War, which itself was part of a larger, indeed global, campaign against the Cold War menace of communism, then the Court could and should restrain unfounded claims of presidential power in somewhat more tranquil settings, as it did in New York Times v. United States and United States v. Nixon and again, later, in Clinton v. Jones. (28)

In fact, few issues in our long Anglo-American constitutional history can match the high drama, resounding importance and transcendent interest of the attempts by the judiciary to rein in executive power and subject it to the principle of the rule of law, an effort, of course, that lies at the core of constitutionalism. Indeed, the issue of the president's relationship to the law defined the Steel Seizure Case and confronted the Justices of the Supreme Court with an issue with which judges have grappled since Sir Edward Coke's bold declaration in 1608 to an outraged King James I that the King is indeed subject to the law. (29) Youngstown featured an effort by the Truman Administration to revive the Stuart conception of an emergency power of the King. In its defense of President Truman's actions, Bernard Schwartz observed, "the Government advanced arguments that had not been heard in an English-speaking court since the time of Charles I." (30) In fact, the sweeping assertions of presidential power that were adduced by Assistant Attorney General Baldridge in the courtroom of Federal District Judge Pine echoed those made on behalf of the Crown in 1642 in the famous case of the Ship Money, in which it was claimed that the King possessed an absolute prerogative to take any action he believed necessary for the welfare of the nation. (31) Consider the following exchange between Baldridge and Pine:

The Court: So you contend the Executive has unlimited power in time of an emergency? Mr. Baldridge: He has the power to take such action as is necessary to meet the emergency. The Court: If the emergency is great, it is unlimited, is it? Mr. Baldridge: I suppose if you carry it to its logical conclusion, that is true.... The Court: And that the Executive determines the emergencies and the courts cannot even review whether it is an emergency. Mr. Baldridge: That is correct. The Administration reaffirmed its position at a later juncture in the argument:

The Court: So, when the sovereign people adopted the Constitution, it enumerated the powers set up in the Constitution, but limited the powers of the Congress and limited the powers of the judiciary, but it did not limit the powers of the Executive. Is that what you say? Mr. Baldridge: That is the way we read Article II of the Constitution. (32) In the Case of Ship Money the King's judges, predictably, not only embraced the King's argument but repeated it verbatim in the body of their opinions. (33) But Judge Pine, perhaps...