The Supreme Court and Presidential Power

• DOI: 10.1177/000271625630700111
• Date: 01 September 1956
• Author: Joseph Tanenhaus
• Published date: 01 September 1956
• Subject Matter: Articles

The Supreme Court and Presidential Power
By JOSEPH TANENHAUS
ON April 8, 1952, President Harry
THE STEEL DECISION
S. Truman, in order to forestall a
strike which he felt would imperil na-
The Supreme Court divided 6 to 3 in
tional defense and United Nations ac-
ruling Truman’s seizure of the steel in-
tion in Korea, directed his Secretary of
dustry ultra vires. Each of the six
Commerce &dquo;to take possession of and
voting against the President found it
operate&dquo; most of the nation’s steel mills.
necessary to explain his position in a
In the absence of statutory authoriza-
separate opinion, while the dissenting
tion for his seizure order, the Chief Ex-
justices joined in a single statement au-
ecutive relied on his powers under Ar-
thored by Chief Justice Vinson. Actu-
ticle II of the Constitution.
ally there was much greater agreement
Truman’s bold move touched off a
on fundamentals than the large number
hotly contested constitutional debate,
of opinions might suggest.
though the broad questions at issue
Survival in crisis, the entire Court
were old ones.
Is the President re-
was well aware, may depend upon
stricted to those powers specifically
speedy, effective executive action. The
granted to him by the Constitution and
Court was not sanguine, on the other
laws? Or is he, in Theodore Roose-
hand, about the risks inherent in plac-
velt’s words, &dquo;the steward of the peo-
ing the vast powers of the national gov-
ple,&dquo; obligated and entitled &dquo;to do
ernment in the hands of the President
whatever the needs of the people de-
alone.
All the justices fully realized
mand, unless the Constitution or the
that &dquo;emergency powers are consistent
laws explicitly forbid him to do it&dquo;? 1
with free government only when their
Despite the importance of these ques-
control is lodged elsewhere than in the
tions, there is, as the late Mr. Justice
Executive who exercises them&dquo; 3-and
Jackson pointed out, a &dquo;poverty of really
that the elsewhere must be Congress
4
useful and unambiguous authority ap-
The area of disagreement was narrow,
plicable to concrete problems of execu-
but important: What -kind of control
tive power as they actually present
must Congress retain?
themselves.&dquo; 2 The steel dispute reached
its culmination in early June of 1952
Congressional intent
with the Supreme Court’s decision in
Two members of the Court, Black
Youngstown Sheet and Tube Co. v.
and Douglas, felt that the only way to
Sawyer. As the most searching discus-
sion of Presidential
3

power in the an-
343 U. S. at 652 (Jackson concurring).
nals of the
4
In
Court, the steel seizure
a recent essay, Robert S. Hirschfield
case
is
argues that limitations on Presidential power
a good point at which to begin this
should be institutionalized, preferably by con-
analysis.
stitutional amendment. Robert S. Hirschfield,
"The Problem of Crisis Government in the
1
Theodore Roosevelt, An Autobiography
United States," Public Policy: A Yearbook of
(New York, 1914), p. 479.
the Graduate School of Public Administration
2
Youngstown Sheet and Tube Co. v. Saw-
of Harvard University, Vol. VI (Cambridge,
yer, 343 U. S. 579, 634 (1952).
Mass., 1955), pp. 66-84.
106

---

107
balance adequate power with meaning-
Its utilization in this instance they de-
ful responsibility is to restrict the Presi-
fended by stressing the magnitude of the
dent to those powers specifically granted
emergency facing the country. Wrote
to him by the Constitution and by legis-
the Chief Justice:
lation. Their seven colleagues thought
Those who suggest that this is a case in-
this too inflexible. They preferred not
volving extraordinary powers should be
to preclude every possible exercise of
mindful that these are extraordinary times.
inherent Presidential power. For the
A world not yet recovered from the devas-
seven the nub of the matter lay in this
tation of World War II has been forced to
question, Had Congress forbidden sei-
face the threat of another and more terri-
zure as a method of handling industrial
fying global conflict.... Secretary of De-
disputes? If it had, the only route
fense Lovett swore that &dquo;a work stoppage
in the steel industry will result immediately
open to the Court was plainly marked,
for it is
in serious curtailment of production of es-
a well-established principle
sential
that the President is bound by valid
weapons and munitions of all kinds.&dquo;
... Affidavits of the Chairman of the
congressional enactments, irrespective of
Atomic Energy Commission, the Secretary
what he might be entitled to do in their
of the Interior, defendant as Secretary of
absence.5 Moreover, it is the desire of
Commerce, and the Administrators of the
Congress that is stressed far more than
Defense Production Administration, the
technical violations. These have been
National Production Authority, the General
overlooked in the pat,6 and none were
Services Administration, and the Defense
involved here.
Transport Administration were also filed.
But whether Congress had intended
... The affidavits emphasize the critical
need for steel in
to prohibit seizure in disputes of this
our defense program, the
absence of
kind
appreciable inventories of steel,
was debatable.
Certainly the legis-
and the drastic results of
lative histories of the
any interruption
two major laws
in steel production.7
applicable, the Taft-Hartley Act and
the Defense Production Act of 1950,
Other
show that seizure had been considered
factors
and rejected. Congress had not, how-
Burton, Clark, Frankfurter, and Jack-
ever, specifically enjoined the President
son, of course, had no need to face the
from resorting to plant seizure. Four
question of what they would have done
justices who believed Truman’s action
had they agreed with the dissenters
illegal, Burton, Clark, Frankfurter, and
about the intent of Congress. Specula-
Jackson, concluded that Congress had
tion, while intriguing, is hazardous be-
made patent its opposition to seizure as
cause of the many factors peculiar to
a method for handling industrial dis-
this case.
Consider, for example, the
putes. The dissenters, Vinson, Minton,
following:
and Reed, thought Congress had offered
1. The President was not acting on
more than one possible course of ac-
behalf of a united people anxious to
tion, none mandatory, and had not
have him exercise...