The Steel Case: Presidential Responsibility and Judicial Irresponsibility

• DOI: 10.1177/106591295300600104
• Published date: 01 March 1953
• Date: 01 March 1953
• Author: Glendon A. Schubert
• Subject Matter: Articles

THE STEEL CASE: PRESIDENTIAL RESPONSIBILITY
AND JUDICIAL IRRESPONSIBILITY *
GLENDON A. SCHUBERT, JR.
Michigan State College
I
HE KOREAN WAR
began on June 25, 1950. Three months later,
Congress passed the Defense Production Act, approved by the Presi-
dent on September 8, 1950. On December 16, 1950, the President de-
clared the existence of a national emergency. A
year later, negotiation of a
new industry-wide collective bargaining contract between the major steel
companies and the United Steelworkers of America reached an impasse,
and a strike was called effective December 31, 1951. Acting under the
Defense Production Act of 1950 (as amended), the President referred the
dispute on December 22, 1951, to the Wage Stabilization Board, and the
union voluntarily deferred the strike which had previously been set.
Ninety-nine days later, consequent to the refusal of the steel companies to
accept the recommendations of the Wage Stabilization Board, the union
called a strike for April 9, 1952. A few hours before the strike deadline,
the President issued his Executive Order 10340, directing the secretary of
commerce to take possession of the steel industry. The union immediately
called off the contemplated strike and full-scale production of steel con-
tinued without further interruption until April 29, 1952. On the following
day, Judge David Pine of the federal District Court for the District of
Columbia ruled, in a suit brought by the steel companies to invalidate the
seizure, that Executive Order 10340 was unconstitutional; and later that
same day, April 30, the Court of Appeals voted in a five-four decision to
stay the preliminary injunction ordered by the district court pending an
attempt by both parties to have the Supreme Court review the case. That
Court granted certiorari on May 3 and handed down its decision on June
2, 1952, affirming the lower court. The strike began immediately after the
announcement of the Supreme Court’s decision, and lasted almost two
months. The Korean war also continued unabated; the elimination of
steel production had obviously resulted in both a serious cut in defense
and munitions production and widespread bottlenecks whose effect, in
terms of the domestic economy, would be highly inflationary; the grave
possibility of a full-scale war with the U.S.S.R. remained unchanged. This,
in brief compass, is the outline of the circumstances surrounding the deci-
sion in what has been widely heralded as the greatest constitutional crisis
of our generation.
Any social conflict of these dimensions can obviously be dealt with
from various points of view and many centers of interest. The limited
* For an opposing view see John P. Roche, "Executive Power and Domestic Emergency... ,"
Western
Political Quarterly, December, 1952.
61

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62
purpose of this article is to analyze the decision of the Supreme Court
in the light of United States constitutional law as it existed on June 1, 1952.
It follows that such intimately related questions as the wisdom of presi-
dential seizure as a means of settling labor disputes, the political impli-
cations for the 1952 presidential election of recourse to the &dquo;national
emergency strike&dquo; provisions of the Taft-Hartley Act, the scope of the
constitutional powers of the commander in chief in time of peace, and
the constitutional experience of other countries with executive dictator-
ship, all are excluded from the terms of reference. Nor does this analysis
examine what some other President, under different circumstances, at
another time, might seek to do. This paper is confined to the facts con-
cerning what former President Truman and the Supreme Court did, insofar
as these facts appear in the legal record of the case.
II
As is customary for the incumbent Supreme Court, its decision could
rather accurately be forecast by an examination of the source and nature
of the questions directed to counsel from the bench. The elderly Mr.
John W. Davis, attorney for the steel companies, was listened to in
respectful silence, and permitted to deliver his almost inaudible but
melodramatic peroration without interruption. Not so in the case of the
acting attorney general, Philip B. Perlman, however. The carping and
leading questions shot at the administration’s lawyer by five of the justices
made it quite evident, even before argument of the case was well under
way, where their sympathies lay. These five justices, plus Justice Clark,
comprised the majority when the decision of the Court was announced
three weeks later.
Here are a few examples of judicial restraint, impartiality, and faith-
fulness to the ideal of due process of law, a norm which is notoriously
disregarded whenever possible by administrative and executive officers but
scrupulously adhered to by lawyers and officers in the judicial branch.
Justice William O. Douglas, the hero of self-styled liberals, suggested to
Mr. Perlman that if the President’s Executive Order were constitutional,
then there was &dquo;no apparent need for Congress.&dquo; Mr. Perlman, of course,
disagreed When Mr. Perlman remarked that the United States was at
war, Justice Jackson quickly challenged him and asked if the President had
not &dquo;expressly disclaimed that&dquo; and had not called the fighting in Korea
a &dquo;police action&dquo;; he added that he wondered what the administration’s
position actually was and &dquo;what you are inviting us into.&dquo; 2 Justice Burton
queried: &dquo;You may say you have exhausted the Taft-Hartley Act because
1

New York Times, May 13, 1952, p. 1, col. 8.
2
New York Times, May 14, 1952, p. 1, col. 8.

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63
you haven’t used it and used something else?&dquo; 3 Mr. Perlman replied that
Taft-Hartley injunctions were not used when the government was the
nominal employer, and the following interchange then took place:
Justice Burton still unsatisfied, asked whether Mr. Perlman was not saying that
the President, choosing an alternative other than that declared by Congress, had
&dquo;deliberately by-passed the Taft-Hartley Act, and used another&dquo; course.
Mr. Perlman replied emphatically that &dquo;that question and the way you put it contain
implications that are not warranted.&dquo;
4
Justice Frankfurter suggested that in the view of the government, legis-
lation such as the Defense Production Act was &dquo;redundant,&dquo; and that
if Mr. Perlman had permission to go to the justice’s farm at any time to pick
all the apples and cherries he wanted, he did not need permission to do that at any
special time.
&dquo;That’s not the Government’s position,&dquo; said Mr. Perlman.
&dquo;Then I don’t understand it,&dquo; said Justice Frankfurter brusquely.
&dquo;I’m sorry,&dquo; Mr. Perlman shot back.’
Justice Black’s questions, also, were antagonistic to the administration. On
the other hand, both the Chief Justice and Justice Minton, who later dis-
sented, displayed evident sympathy for the general position of the ad-
ministration. When, for instance, counsel for the railroad unions (as
ctmicus curie) denied that the President had inherent power to seize the
railroads, the following colloquy took place:
Justice Minton asked, &dquo;The President has no inherent power&dquo; to do that?
&dquo;No,&dquo; said Mr. Heiss.
&dquo;Congress has?&dquo;
&dquo;Congress possesses the power,&dquo; said Mr. Heiss.
&dquo;Inherent,&dquo; said Justice Minton, &dquo;Because it is not expressed.&dquo;
He added that nobody would deny that this court had inherent power since Marbury
v. Madison, and that counsel was contending that Congress and the courts had inherent
power and the President had not, although Congress and the courts were in session only
part of the year and the President sat 365 days.’
III
Justice Black, as the senior associate justice voting with the majority,
delivered what was termed &dquo;the opinion of the Court.&dquo; Although there
is little indication, other than an express avowal to this effect, in their
four separate concurring opinions, Justices Frankfurter, Douglas, Jackson,
and Burton joined in the Black opinion as well as in the judgment of the
Court. Justice Clark, who also delivered a separate concurring opinion,
joined in the judgment only. Justices Reed and Minton joined in a
dissenting opinion delivered by Chief Justice Vinson. It is not an easy
thing to say what these seven opinions add up to. It is certain, however,
that at least in this case, the total is something considerably less than the
3
Ibid., p. 22, col. 8.
4

Ibid., p. 22, col. 3.
5

Ibid., p. 22, cols. 3-4.
6

Ibid., p. 22, col. 6.

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64
sum of the parts. Thus by a division of six to three, the Supreme Court
decided that the President of the United States had no power to authorize
his Executive Order 10340 of April 8, 1952, and that consequently his
order was unconstitutional.
It should be stated unequivocally that the policy underlying the
principle leading to the rule applied in this case by the majority is: that
seizure power should be attributed to the Congress rather than to the
President because Congress, consisting of many individuals, is responsible
and can be trusted; the President, however, is one man and hence, pre-
sumptively irresponsible and not to be trusted. The worse for us that neither
Coke, Blackstone, nor John Stuart Mill is a reliable guide for insight into
the political institutions of these United States as they have evolved at
mid-point in the twentieth century.
Eighteenth-century theory to the contrary notwithstanding, the Presi-
dency has emerged as not only...