It looks like one Supreme Court case has taken center stage in the confirmation hearings. Surprisingly, the case is not related to abortion. It is related to Executive power: YOUNGSTOWN SHEET & TUBE CO. V SAWYER (1952). The New York Times explains:
The 1952 opinion, a concurrence by Justice Robert H. Jackson, rejected President Harry S. Truman’s assertion that he had the constitutional power to seize the nation’s steel mills to aid the war effort in Korea. Whether and how Justice Jackson’s analysis should apply to broadly similar recent assertions by the Bush administration, notably concerning its domestic surveillance program, will plainly be a central theme when questioning of Judge Alito begins Tuesday morning.
Senator Arlen Specter, the Republican chairman of the Judiciary Committee, discussed only three decisions by name in his opening statement: Justice Jackson’s concurrence in the 1952 case, YOUNGSTOWN SHEET & TUBE CO. V SAWYER (1952), and two abortion cases, Roe v. Wade and Planned Parenthood v. Casey.
Quoting from the Jackson concurrence and referring to the surveillance program, Mr. Specter said, “What is at stake is the equilibrium established by our constitutional system.”
Here is a summary of the Youngstown case.
In April 1952, President Truman ordered seizure of the nation’s steel mills in order to forestall a strike which, he claimed, would have seriously harmed the nation during the Korean conflict. Although there was a law on the books, the Taft-Hartley Act, which gave the president the power to impose an eighty-day “cooling off” period when a strike was threatened, Truman refused to use that law, since he had opposed its passage in the first place. He also chose not to ask Congress for special legislation. Instead, he chose to take over control of the companies under his emergency war powers as commander-in-chief.
The steel companies did not deny that the government could take over their property in emergencies. Rather, they claimed that the wrong branch of the government had proceeded against them; in essence, they sued the president on behalf of Congress on the basis that the presidential action had violated the constitutional doctrine of separation of powers. Six members of the Court agreed, and Justice Hugo Black’s majority opinion made a strong case for requiring the president, even in wartime, to abide by established rules.
From a constitutional standpoint, Youngstown remains one of the “great” modern cases, in that it helped to redress the balance of power among the three branches of government, a balance that had been severely distorted by the enormous growth of the executive branch and its powers first during the Depression, then during the war and the subsequent postwar search for global security.
The background to the case
The United States found itself in a “police action” in Korea in 1950 when troops from North Korea invaded the Republic of Korea. The Truman administration sent troops to South Korea without asking for a declaration of war on North Korea.
The Truman administration chose not to impose price controls, as the federal government had done during World War II; instead the administration attempted to avoid inflationary pressures through creation of a Wage Stabilization Board that sought to keep down the inflation of consumer prices and wages while avoiding labor disputes whenever possible. Those efforts failed, however, to avoid a threatened strike of all of the major steel producers by the United Steel Workers of America when the steel industry rejected the board’s proposed wage increases unless they were allowed greater price increases than the government was prepared to approve.
The Truman administration believed that a strike of any length would cause severe dislocations for defense contractors and for the domestic economy as a whole. Unable to mediate the differences between the union and the industry, Truman decided to seize their production facilities, while keeping the current operating management of the companies in place to run the plants under federal direction.
Truman might have invoked the national emergency provisions of the Taft-Hartley Act to prevent the union from striking, rather than seizing the plants. The administration rejected that option, however, both from a distaste for the Act, which had been passed over Truman’s veto five years earlier, and because the administration saw the industry, rather than the union, as the cause of the crisis.
The administration also rejected use of the statutory procedure provided under Section 18 of the Selective Service Act of 1948 that might have permitted seizure of the industry’s steel plants on the ground that compliance with this procedure was too time-consuming and the outcome of compliance too uncertain. Truman chose not to go to Congress to obtain additional statutory authorization for a seizure of the steel industry for the same reasons. That left invocation of the President’s inherent authority to act in response to a national emergency.
The Steelworkers favored government seizure of the plants under any available theory to a Taft-Hartley injunction against it; Arthur Goldberg, General Counsel for the Steelworkers and the Congress of Industrial Organizations, argued that the President had the inherent power to seize the plants, as well as the statutory authority under the Selective Service Act and the Defense Production Act. The steel industry, on the other hand, appears to have been taken by surprise, as it had apparently assumed until shortly before Truman made his announcement on April 8, 1952 that he would take the less risky step of seeking a national emergency injunction under the Taft-Hartley Act instead. The industry was, as events showed, ready to act once he announced the seizure by a national television and radio broadcast.
And more from the New York Times:
Writing for the court, Justice Hugo L. Black said the president’s power was extensive but not unlimited.
“Even though ‘theater of war’ be an expanding concept,” Justice Black wrote, “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 in order to keep labor disputes from stopping production. This is a job for the nation’s lawmakers, not for its military authorities.”
There are, of course, obvious differences between the Youngstown case and recent efforts to combat terrorism. The seizure of the steel mills, for instance, was a wholly domestic matter. The surveillance program, by contrast, monitors international communications between the United States and other nations. The Korean War was, moreover, a conventional one, while terrorism involves a more amorphous threat.
It is not entirely clear why Justice Jackson’s concurrence has had such a lasting impact. It may be because he spoke with particular authority, having argued for expansive executive power as President Franklin D. Roosevelt’s attorney general, much as Judge Alito did when he was a lawyer in the Reagan administration.
“That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country,” Justice Jackson wrote in the concurrence, “will impress anyone who has served as legal adviser to a president in time of transition and public anxiety.”
He proposed three categories to judge the constitutionality of assertions of executive power. His framework may be thought to endorse or reject the Bush administration’s position, depending on how various Congressional actions are understood.
The president’s authority is at its maximum, Justice Jackson wrote, when he “acts pursuant to an express or implied authorization of Congress.” The administration says a resolution authorizing the president to use military force after the Sept. 11 attacks was such authorization.
In his opening statement, Mr. Graham said he was troubled by that argument. “I’ve got some problems,” he said, “with using a force resolution to the point that future presidents may not be able to get a force resolution from Congress if you interpret it too broadly.”
Justice Jackson’s second category was “a zone of twilight” in which Congress has taken no action. In that case, he said, “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.”
The third category is where the president takes action at odds with the will of Congress. A 1978 law, the Foreign Intelligence Surveillance Act, appears to require court approval before monitoring of the sort the administration has acknowledged.
In this third area, Justice Jackson said, the president’s power is “at its lowest ebb,” and claims of presidential authority “must be scrutinized with caution.”
And this:
