Youngstown: pages from the book of disquietude.

AuthorBobbitt, Philip
PositionPresident Truman's 1952 seizure of US steel mills

This essay is dedicated to Lloyd N. Cutler

INTRODUCTION

The Youngstown holding is widely admired. One reads with pride those passages in which the Supreme Court denies to a president with whom they are in considerable political sympathy the power to enlarge executive authority by militarizing the homeland. And yet one wonders, as we confront in the 21st century a lethal foreign enemy who has demonstrated the ability to infiltrate and assault the domestic environment, precisely what restraints ought to govern a presidential response to that enemy.

PART ONE: A MODAL ANALYSIS OF THE YOUNGSTOWN CASE

  1. THE FORMS OF ARGUMENT

    It is customary among certain theorists to say that there are six forms of argument that supply the rationales for constructions of the constitutional law of the United States. These forms are called the historical (relying on the intentions of the framers and ratifiers of the constitutional provision to be construed), textual (looking to the meaning of the words of the provision alone, as these would be interpreted by the average man in the street today), structural (inferring rules from the relationships that the Constitution as a whole mandates among the various structures it sets up), prudential (seeking to balance the costs and benefits of a particular rule, especially regarding those risks borne by the deciding Constitutional institution), doctrinal (applying rules generated by the precedents that guide a particular constitutional institution) and ethical (deriving rules from the commitments to human rights proclaimed in the Declaration of Independence and the powers to protect those rights reflected in the Constitution). (1)

    Sometimes these archetypal forms function as modalities of constitutional law; that is, they make up the ways in which the truth or falsity of a legal proposition is determined, though they are neither true nor false in themselves. There is some debate as to whether there is a hierarchy among these modalities; my own view is that there is not. They are, I would say, incommensurable but not incomparable. (2)

    When the rationale for a constitutional decision such as is given in a judicial opinion is described in terms of the modalities employed, it is sometimes said to be the product of modal analysis.

  2. MODAL ANALYSIS

    Modal analysis calls into question the assumption that justification legitimates law. Many movements and many volumes have been founded on this unquestioned assumption, such as, for example, the notorious pseudo-question called the "Countermajoritarian Objection" which depends upon the alleged deficit in the legitimacy of judicial review that is attributed to its nonconformity with majoritian practices. A good deal of constitutional commentary is an effort to produce justifications for particular holdings or non-judicial decisions on the grounds that such governmental actions lack legitimacy in the absence of non-legal, extra-modal justifications. The increasing irrelevance of, for example, the annual Forewords to the Harvard Law Review--or indeed of law reviews and law journals generally--may in part be laid at the door of the unthinking pursuit of this objective.

    Casting off from this assumption permits us to abandon also the idea that the rationale for a decision is--or should be--a recapitulation of the reasons why the decision was reached in the first place. If judicial opinions, for example, are legitimated by certain conventional argumentative practices, then the rationale is an effort to provide guidance for future legitimating occasions--future rationales for future decisions--and not a kind of talking cure for judicial neuroses.

    Modal analysis does away with the allegedly fundamental characterization of law as an epiphenomenon, a symptom of extra-legal relations, and replaces this characterization with a description of law as a discrete social activity, no more or less fundamental than other activities that it both shapes and takes shape from. Thus modal analysis is an implicit attack on Legal Realism no less than Marxism; such analysis treats the insights of the former as the disturbing answers to irrelevant questions ("why did the judge decide as he did?"), and the dialectic of the latter as a circular privileging of certain social phenomena--including Marxism itself--over others leading, as circular hierarchies do, to an endless regress. For similar reasons, modal analysis is no more sympathetic to Formalism or McCloskeyan democratic theory. Legitimation does not depend upon the correspondence between behavior and theory; that is, it does not depend upon justification.

  3. THE SUPREME COURT OPINIONS

    Revisiting Youngstown Sheet and Tube v. Sawyer (3) provides an excellent opportunity to undertake a modal analysis because the various Supreme Court opinions in that case provide modal exemplars of a remarkable purity of form. If the style of a particular judge, as well as the different notions of style in particular eras, can be explained as a preference for one type of argument over others, then Youngstown presents a stylistic display of unusual clarity and beauty, as we shall see. Three great judges with sharply etched styles (Black/textual, Frankfurter/prudential, Jackson/structural) are joined by three other judges whose opinions are scarcely less severe in their adherence to particular constitutional modalities (Douglas/prudential, Clark/doctrinal, Vinson et alia/historical and ethical.)

    THE BLACK OPINION

    The opinion for the majority is written by Justice Black. (4) It can be summarized as follows: the President is empowered by the Constitutional text to execute laws; there is no executive power in the text of the Constitution that authorizes the Executive to legislate laws; therefore only action by Congress or a constitutional provision can supply the necessary precondition to executive action; there is no statutory or explicit constitutional basis for conscripting the assets of the steel industry; thus the President's action is unlawful because it is unauthorized. (5)

    The textual approach that pervades this opinion can be conveyed by a few excerpts:

    The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied.... .... [Therefore i]t is clear that if the President had authority to issue the order he did, it must be found in some provision of the Constitution. And it is not claimed that express constitutional language grants this power to the President.... [The Government relies] on provisions in Article II which say that "[t]he executive [p]ower shall be vested in a President" ...; that "he shall take [clare that the [l]aws be faithfully executed"; and that he "shall be Commander in Chief of the Army and Navy of the United States." The order cannot be properly sustained as an exercise of the President's military power as Commander in Chief [despite cases upholding broad powers in a theatre of war.] Such cases need not concern us here.... Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President.... [T]he President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.... It is said that other Presidents without congressional authority have taken possession of private business enterprises in order to settle labor disputes. But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution "in the Government." (6) The unusual characteristics of this opinion--its disdain for precedent, its utter lack of any expression of concern for the practical consequences of permitting the Youngstown strike to continue in wartime, its extravagant reading of the necessary and proper clause so at odds with the structural rendering in McCulloch, and, most characteristically, its syntactical reliance on the implication that the phrase "faithfully execute the law" requires legislation that must come from another's hand--all derive from a textual approach to constitutional construction. Any precedent that is inconsistent with the text is a mistake; that there is a long line of mistakes is hardly a persuasive rationale for perpetuating their holdings. Nor do appeals to prudence fare any better under this approach. The text alone is in the hands of the People; if they wish to run mortal risks by refusing to amend that text, what right does a judge have to reverse their judgment?

    We should not be misled by rhetorical feints in the direction of structural argument such as the phrase, "In the framework of our Constitution," because this flourish only serves to introduce the textual argument that "the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker." (7) Similarly, though Justice Black writes that "we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property," (8) the only reason given for this assertion is that, "This is a job for the Nation's lawmakers, not for its military authorities."

    Opinions like this used to drive Justice Frankfurter wild (and madden a good many other law professors who taught or had taught at the Harvard Law School). The rejection of practicality seemed to them either reckless or disingenuous, or both. What is the craft in the argument just given? Why exactly is this "a job for the Nation's lawmakers" and not for its military authorities? And yet Black's opinion does capture rather well the attitude one would expect from the great mass of our...

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