The steel seizure case: one of a kind?

• Author: Devins, Neal
• Position: Youngstown at fifty: a symposium

By confronting President Harry Truman and striking down his effort to seize the steel mills needed to prosecute the Korean War, (1) the Supreme Court adhered to its longstanding practice of accepting and deciding cases dealing with the war power. Yet over the next half century the courts systematically sidestepped this type of case. In this essay, we will explain why the Court asserted itself in 1952 and why the modern Court seems incapable, or unwilling, to decide fundamental constitutional issues regarding the allocation of the war power between Congress and the President.

Before turning to the 1952 steel seizure, we need to flag a dispute. Some defenders of presidential war power do not regard Youngstown as a foreign affairs case. Instead, they view it as a case about the "taking of private property without due process of law." (2) Others, who think that Congress and the courts should check presidential war-making, call Youngstown "the Brown v. Board of Education of foreign affairs litigation." (3) But no matter how one characterizes Youngstown's precedential significance, the Court's willingness to assert itself can be traced, in part, to the Justices' then-customary practice of adjudicating war-making disputes, disposing of them as they would any other legal or constitutional dispute.

Section I of this essay explains why we think this is so, calling attention to a host of factors contributing to the Court's repudiation of the seizure. Section II builds upon this analysis. Following a brief discussion of how Supreme Court decisionmaking is tied to social and political forces, we explore why today's Court is loath to assume its traditional role in our system of checks and balances. In particular, pointing to fundamental changes in executive-legislative relations over the past fifty years, we explain how the modern Court has altered its decisionmaking. In Section III, we suggest that this reversal, while understandable, is undermining our system of constitutional governance. In our view, no branch should hold a monopoly over the initiation of war.

1. JUDGES CONFRONT TRUMAN

   President Harry Truman took the initiative in June 1950 to order U.S. forces to Korea. By acting solely on his interpretation of presidential power, Truman became the first president to involve the Nation in a major war without receiving specific authorization from Congress. (4) Nevertheless, had the Steel Seizure Case reached the courts in late 1950 or early 1951, judges--leery to hinder prosecution of the war--might have sidestepped a judicial resolution of the issue. (5) At that time, Congress and the nation backed the president's initiative. (6) However, by the time Truman issued his 1952 executive order taking control of certain steel companies, a cluster of military, legal, and political factors conspired to markedly erode presidential power and embolden the judiciary.

   The context of the case put the President's power as Commander in Chief front and center. Truman's executive order was drafted almost entirely as a military imperative. The second paragraph pointed out that "American fighting men and fighting men of the United Nations are now engaged in deadly combat with the forces of aggression in Korea." (7) The weapons and materials needed for that effort "are produced to a great extent in this country, and steel is an indispensable component of substantially all of such weapons and materials." (8) A work stoppage, he warned, "would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field." (9) The first of seven paragraphs ordering the Secretary of Commerce to seize the steel mills directed him to take possession of all such plants "as he may deem necessary in the interests of national defense." (10)

   For proponents of unilateral presidential war-making, Truman's seizing of the steel mills could not have come at a worse time. By 1952, the United States had reached a stalemate in Korea, resulting in heavy American casualties and providing little hope for success. (11) With public opposition to his war swelling, Truman's standing in public opinion reached its nadir. (12) The Korean issue, "not crooks or Communists," "cut deepest" with the voters. (13) For example, the high point of the 1952 presidential campaign came on October 24 when Dwight D. Eisenhower denounced Truman's war, promising to end it by "go[ing] to Korea." (14)

   Dissatisfaction with the war destroyed Truman's popularity and had much to do with Eisenhower's landslide victory. It also called attention to the fact that, legally, Truman had been skating on thin ice throughout the Korean conflict. (15) He claimed to be acting in response to a resolution adopted by the United Nations Security Council. (16) But that claim was false. Truman had committed U.S. forces before the Council called for military action. As his Secretary of State Dean Acheson later admitted, "some American action, said to be in support of the resolution of June 27, was in fact ordered, and possibly taken, prior to the resolution." (17) More significant, Truman ignored Congress's statutory command in the U.N. Participation Act of 1945, that Congress (through legislation or a joint resolution) first approve the deployment of forces in a U.N. initiated action. (18) For this reason, Truman pointed to his December 1950 proclamation of a national emergency as legal authority for seizing the steel mills, not the U.N. authorization of military action. (19)

   Truman was on shaky legal footing for another reason. In large measure, his decision to seize the steel mills was tied to his refusal to make use of two statutory remedies prescribed by Congress. (20) By invoking the Taft-Hartley Act, for example, Truman could have temporarily enjoined steel workers from striking and, in this way, could have averted a work stoppage without seizing control of the steel mills. But Truman, a friend of labor, had earlier vetoed Taft-Hartley. (21) Indeed, instead of following Taft-Hartley procedures, Truman referred the steel dispute to the Wage Stabilization Board. And when that effort failed, Truman again refused to invoke Taft-Hartley--claiming both that it was unfair to labor (who had already postponed striking) and that the "greed[]" of steel companies threatened "our whole price control program." (22)

   Against this backdrop, Truman had a hard time convincing the nation that the steel seizure represented a national emergency instead of a labor dispute. Newspapers repeatedly declared that the "United States government was no longer a `neutral referee' in labor-management dispute[s]." (23) Time magazine accused Truman of acting "primarily as a politician, not as a President ... Politician Harry Truman was obviously operating on the axiom of political arithmetic that there are more votes in Big Labor than in Big Steel." (24) And the Nation argued that "a just settlement of a labor dispute" is not enough to excuse the president's "arbitrary exercise of executive power." (25)

   Making matters worse, Truman's initial defense of the steel seizure was grounded in an ambitious theory of unlimited presidential power, namely, "that the president's power was absolute unless some provision of the Constitution expressly denied authority to him." (26) One week after the seizure, at a news conference on April 17, a reporter asked: "Mr. President, if you can seize the steel mills under your inherent powers, can you, in your opinion, also seize the newspapers and/or the radio stations?" Truman never flinched: "Under similar circumstances the President has to act for whatever is for the best of the country. That's the answer to your question." (27) Three days later, at another news conference, Truman claimed that the president "has very great inherent powers to meet great national emergencies." (28) More telling, when asked if he recognized the "danger" to our liberties by substituting inherent presidential power for the written law, Truman responded: "Well, of course I do ... But when you meet an emergency in an emergency, you have to meet it." (29) In other words, Truman was not merely asserting authority over certain domestic activities, but was announcing an overarching theory of presidential emergency authority that cut across every area, domestic and foreign.

   The public reaction was swift and savage. The great majority of newspapers rejected this sweeping doctrine of executive power. An editorial in the New York Times rebuked Truman for creating "a new regime of government by executive decree," a system of government that was inconsistent "with our own democratic principle of government by laws and not by men." (30) The Washington Post predicted that Truman's action "will probably go down in history as one of the most high-handed acts committed by an American President." (31) Other newspapers weighed in with various forms of denunciation, excoriating Truman for trying to exercise "dictatorial powers." (32) The Atlanta Constitution called Truman's order "dangerous"; the Boston Herald objected to Truman's effort to "dictatorially" bypass Congress by making his own law; the Christian Science Monitor accused him of precipitating "a constitutional and political crisis"; and the Detroit Free Press warned that unless someone stopped Truman's exertion of power "our whole constitutional system is doomed to destruction." (33)

   Truman soon recognized that his definition of emergency power was too high-flying and ill-defined to sit well with the public. He pointed out, for example, that Congress could pass legislation "reject[ing] the course of action I have followed in this matter." (34) These efforts to define executive power in a less ominous light, however, were quickly dispelled by Justice Department attorneys. In district court, Assistant Attorney General Homer...