The Steel Seizure Case (Youngstown Sheet & Tube Co. v. Sawyer (1952) 343 US 579), is informative on a number of levels.
The case arose during the Korean War (1950-1953) when a labor dispute threatened to halt production of steel and steel products, vital to the war effort. President Harry S Truman, who was trying to conduct the war, was willing to take drastic measures to see that the steel supply was not interrupted, in order to insure the supply of ships, guns, tanks, and trucks, etc.
Using all the powers at his command, he ordered his Commerce Secretary, Sawyer, to commandeer the all of the nation's steel mills and assembly plants that were necessary for the war effort. Sawyer took over the Youngstown plant by issuing orders and sending men into the executive office to tell the company president that he could tell the owners that the plant was now being run by and for the government, and that they could leave. They ran straight to their lawyer.
Okay, suppose you were that lawyer and you had studied Constitutional Law except for the Youngstown case (because it hadn't happened yet, right?). What do you do? What legally relevant Con-law thoughts run through your mind?
Compare the challenge to the lawyers who went to bat for Mr. Hamdi in the recent celebrated alleged-terrorist detention case, where the suspect is locked up, put in prison, not brought to court, and not allowed to speak to a lawyer. The key is thrown away for years at a time.
There is no law exactly on point. If there were, the government might not have taken the drastic action that it did. There is all kinds of law surrounding the point, but this new situation is left uncovered just enough that the government thinks it has the right to make a move in the interests of national security.
"The Constitution is not a suicide pact," the president, Attorney-General, or Solicitor-General, might say.
How do you, as the lawyer tasked with meeting this challenge, respond?
You know that the president is going to invoke his power as commander-in-chief, and the military power. The president is supposed to act first and wait for Congress to enact the necessary measures later when the country is threatened with attack. Act first, legal niceties later. Survival is paramount.
As Youngstown's lawyer, your first problem is that this is a tough argument to beat. If the president (FDR) could legally round up American citizens of Japanese Ancestry (AJAs) on the West Coast within two months after the Japanese Empire's attack on Pearl Harbor, why cannot Pres. Truman take over a few steel plants under the same power, the war power?
You'd better come up with a constitutional argument more powerful than that!
What could it be?
Scratch your head, scratch, scratch. Remember, it needs to be a grand slam home run or the game, and your client's plant (and all the other steel mills in the country) is lost.
We need an injunction from a federal judge, you think, to stop the take-over, remove the government agents, and return the plant to our client, you think. That's fine as a procedural matter, as there is no adequate remedy at law, so going to equity (injunctions are equitable in nature, not legal, for historical reasons) is fine, otherwise there'll be irreparable damage to the business, and your client's hands are clean.
What is the killer argument that says the president abused his powers, since he is clearly not abusing his war powers?
This is the challenge that the student presenting the case in class found daunting. This is why we study this case as the introductory case to the major topic called "Separation of Powers."
The answer to the question is found in the opinion of the case, but it almost seems invisible. There's all sorts of talk about the history of the labor movement and the president's power as commander-in-chief and under the war power in general, which is broader than that of C-in-C. And finally we get to the key of the case, not quite buried, but not headlined as we might like.
Hence my insistence that we compare HST's takeover of the Steel Mills to Joseph Stalin's takeover of anything he wanted in the Soviet Union simply by signing a decree, a diktat, or a UKASE, which the divine Ms. M. advises is pronounced "OO-kass," for which I thank her mightily.
The president's power, we learn, is limited. He is not the U.S. Supreme Court, so he is not allowed to decide cases. Can you imagine the reaction if the president started taking cases away from the Supreme Court, just told the litigants to file their appeals with the White House? The nation would be up in arms, or at least I hope it would be. That is not legitimate under our plan of government, no matter how fair the decision on the merits to the parties might seem. The loser wouldn't think it fair, nor would the nation.
It is a question of power. Where it lies and who exercises it. Legitimacy, not equity is the main consideration.
But Truman didn't take over the Supreme Court's job, did he?
Whose job did he take over?
He didn't think he had taken over anybody's job. All he thought was that he needed steel and this was how you got it; you just had to take over the plants. If the Navy needed your pier to load or unload ships in order to ward off the attacking enemy, couldn't it do so under the power of eminent domain and pay you later for the taking, so that the due process clause was honored, albeit in arrears? Of course it could.
But that was not the offer here.
Youngstown's lawyers, and certainly the judge, had a decisive advantage over you, which makes the challenge I'm posing unfair, I'm sorry to say. They had lived through the preceding decades of labor strife and legislative warring over how to deal with labor unions, strikes, and management practices, many of which had been declared Unfair Labor Practices in the National Labor Relations Act of 1934, known as the Wagner Act after Senator Robert F. Wagner of New York whose son became the mayor of New York City when I grew up there as a yout.' Labor was a huge component of the Democratic Party, which had been revitalized under FDR in reaction to Herbert Hoover's Republican Party, widely discredited for having brought on the Depression.
But then World War Two intervened and the country was past the Depression and on the road to prosperity. Republican power was increasing. Congress passed Taft-Hartley, the slave-labor act, as the unions called it. The president was given the power by Congress to impose a labor injunctions to enjoin strikes in critical industries and impose an 80-day cooling off period. Labor hated this. It made them work without a contract under the previous wages and conditions without their consent. That's why the called it slave labor.
Truman, as Mr. RK, our student briefer aptly pointed out, had vetoed Taft-Hartley, but Congress passed it again, over-riding his veto. Truman was a Democrat, and an unpopular one at the time, despite his being vice-president under FDR and the president who ordered the atomic bombing of Hiroshima and Nagasake, bringing a victorious end to the war. But the country was stricken with labor unrest and the Korean "police action" (no war had been declared) caused the drafting of young men, school teachers, etc. to fight on the mainland of Asia, confronting seemingly unlimited numbers of North Koreans as later augmented by human waves of Red Chinese.
The war wasn't going well. The U.S. fought with a coalition of troops from other nations including Turks, ROKs (R. of Korea, South), ROCs (R. of China, Taiwan), and many others under the banner of the U.N. Russia had unwisely boycotted the U.N. when the vote had come up to participate in the war, losing it's veto power, held by the winning nations of the previous war, WWII, which had ended six years before. North Korean troops pushed American forces south to Pusan, where they had their backs to the sea and were losing. MacArthur regrouped and invaded the enemy's midsection with the famous and daring amphibious landing at Inchon, which caught North Korea by surprise, cutting their supply lines in half, forcing a retrenchment and eventual stalemate at the 38th Parallel, the DMZ that exists today.
We still have over 30,000 troops stationed in Korea more than half a century later. School teachers and scoutmasters of mine were drafted into that war. Kids booed Pres. Truman when his picture appeared at the Saturday morning movies when the newsreels were shown. This is before TV sets invaded every home, when you went down the street to the most popular kid on the block's house, the one whose parents had the ten-inch black and white screen...
What the Youngstown lawyers knew, and the federal judge knew who issued the injunction restraining the president from taking over the steel mills, was that only five years before, Congress in 1947 (Taft-Hartley) had refused to enact legislation granting the president, any president, the power to take over a plant that had been struck or which had locked out the workers as the result of a labor dispute.
Truman was exercising a power that Congress had denied to all presidents the power of takeover of business plants, factories, property, etc., for the purpose of dealing with labor-management strife, i.e. a labor dispute.
So, what was wrong with that? Weren't the president's war powers enough to cover over this little hiatus in the law? The president was saying there was a national emergency, just as President George W. Bush, following 9-11, claimed that the nation was engaged in a War on Terrorism.
This leads us back to asking what powers each of the three branches of government, legislative, executive, and judicial, have.
What is the judicial power? To hear and determine the legal rights existing between individual parties, i.e., to decide cases.
What is the executive power that the president holds? To see to it that the laws are faithfully executed. Executed, executory, executive. It means "to carry out." The president carries out the laws enacted by whom?
Congress.
Congress has the legislative power, to set policy through the passage of general laws.
Congress does not decide cases. That duty is assigned to the federal courts.
Congress does not carry out the laws it passes. That duty is assigned to the executive. That's why we have a judiciary and an executive.
This division of power is supposed to protect our individual liberty. It means government is not supposed to ride rough-shod over us, as in the days of our former king, George III and others, of sad memory.
This is called our system of checks and balances. Each to his own branch. None to step on the toes of another without being held to account. Youngstown's lawyers needed to hold the president to account for major toe-stepping as to Congress, but for what offense? What power of Congress did President Truman usurp without permission?
Some proposed legislation is enacted, and some is rejected, and others never actually brought to the floor of Congress for a vote.
Did the Congress authorize the president to take over companies whose production was threatened by a labor dispute?
No. That power had been requested and discussed, but the request was defeated, denied, when Taft-Hartley was passed. Yet the president was purporting to exercise a power he had been expressly denied.
What to do?
Point out this fact and decry it.
This is what the Youngstown lawyers almost did. They went to the home of a federal judge in the District of Columbia and explained the situation, briefly. It had been all over the newspapers, so he already knew what Truman had done. U.S. District Judge David A. Pine then ordered a hearing into the Youngstown attorneys' request: that the government not raise wages during the period of the takeover. Judge Pine thought the problem was broader than just that of raising wages. He questioned the constitutional issue of whether the president had the power to take over the plants in the first place.
Judge Pine reached the constitutional issue that the Youngstown lawyers had been reluctant to urge. The government lawyer, according to William Rehnquist, in his book on the Supreme Court, below, then made "a serious public relations mistake." He argued that the textual guarantees found in the Constitution bound only Congress, not the president. The president was above the law, above even the Constitution.
The headlines the next day proclaimed that the President argues he's above the Courts. As the hearing continued the following day, Judge Pine asked the president's attorney, Assistant Attorney-General Holmes Baldridge, who had been arguing that the president claimed broad "inherent" power, by virtue of the nature of his office, to seize the steel mills the following question:
"Are you saying that the President claims no statutory authority for this seizure?" asked Judge Pines.
That was true, said Baldridge. When an emergency arises it's the president's duty to step in, he argued.
"Do you mean that the President can determine whether an emergency exists and that the courts cannot review it to see whether there is really an emergency?" asked Judge Pine.
"That is correct," said Mr. Baldridge.
The next day's page one headline in the Washington Post shouted: JUSTICE DEPARTMENT REPEATS ITS CLAIM PRESIDENT HOLDS "UNLIMITED POWER."
At this point, Mr. Rehnquist points out, "What had been a contest over President Truman's seizure of the Nation's steel industry shifted into a conflict over principles of constitutional government." p 160.
"When Baldridge advanced his theory of absolute power, Judge Pine interrupted with, "Is that your concept of government?" Baldridge said that it was.
"Then the Constitution limits Congress and it limits the Judiciary, but does not limit the Executive?" asked the judge.
"That's the way we read the Constitution," replied the Assistant Attorney-General.
"I have never heard that expressed in any authoritative case before," said Judge Pine.
The above quotes are taken directly from Mr. Rehnquist's book, below. He goes on to say that the next day the Post editorial page called the President's position a lot of "hooey" because we live in an era of perpetual emergencies and if the President's argument is accepted he will be all-powerful. Everyone else's rights will be valid at the pleasure of the president. The President cannot be allowed to be a law unto himself.
This is what the Steel Seizure case is about. Whether Truman is Stalin. Whether the President is above the law. The issue recurs in the post-9-11 Terrorist cases. Must the President act within the law.
Judge Pines thought the President was not above the law and enjoined the takeover at the District Court level; thence the appeal to the top.
The government appealed directly to the U.S. Supreme Court, asking it to skip the normal intermediate next step of litigating in the U.S.Court of Appeals. The Supreme Court took up the challenge. The case began and ended inside of two months, from District Court to Supreme Court decision, most unusual for a constitutional, Supreme Court, challenge.
The law clerk for Justice Robert Jackson, the justice who wrote one of the most interesting concurring opinions in all of Con-law literature, was a young man who had recently graduated first in his class from Stanford Law School . Number Three behind him was a young woman who was having difficulty finding a job in a law firm other than as a secretary-typist, named Sandra Day, later Sandra Day O'Connor, the daughter of western ranchers ('cowgirl,' she likes to style herself) from New Mexico. Her book is called "Lazy B." Rehnquist's, in which he recounts the Steel Seizure case is called "The Supreme Court," Vintage, 1987).
Justice Rehnquist says that law clerk Rehnquist thought the government had much the better argument. Rehnquist has alway, it seems to me, been the consummate G-man, government. In so many contests between individual rights and government power, government seems, in his view, to have the better argument. Rarely does he seem to be on the cutting edge of forging new or strengthened individual civil rights such as in freedom or liberty cases involving race, gender, reproduction, affirmative action, government ordered classifications of people, and the like. Rehnquist seems to be the sea-anchor on due process and equal rights advances. To him they may not seem like advances, but liberal incursions into vested rights and traditional expectations, long relied on. No rapid change for the conservative Mr. Rehnquist. No activist judge he, except what do you call Bush v. Gore?
After the Supreme Court met in conference to decide the outcome of the Youngstown case, Justice Jackson called in his clerks, and told them, "Well, boys, the President got licked."
The result was 6:3 to uphold Judge Pine's ruling that the seizure was unconstitutional, with the three Truman appointees voting for the President's seizure of the mills.
The mature Rehnquist says in his book that the government's position was better than the Court gave it credit for. "On the merits," he says, "Justice Black's opinion was quite logical, but also quite abstract."
"Since the seizure of the steel mills was an exercise of what Black described as the lawmaking power, it was beyond the president's authority unless the Congress had authorized it.
"This very neat analysis obviously bothered most of the justices who joined Black's opinion, and it certainly bothered Jackson. He prepared an opinion that was more like an essay than a standard judicial opinion, but it proved valuable to subsequent courts and lawyers in discussing the relationship between the president and Congress.
"Jackson took the position, not surprisingly, that the president's powers are at their zenith when exercised to execute a law that Congress has enacted; here the legislative and executive powers are combined, and they are potent indeed.
"The president occupies a middle ground when he seeks to use the executive power to accomplish a goal in an area where Congress has not legislated, and therefore where Congress cannot be said to have either approved or disapproved of the use of presidential power for the purpose for which it is used.
"The president's authority is at its nadir when he acts to accomplish a goal in an area where Congress has already legislated in such a manner as to be inconsistent with the legislation of Congress."
Upon announcement of decision, Mr. Rehnquist reports in his book p. 188, President Truman immediately wrote to his Commerce Secretary, Sawyer, directing him to return custody of the mills to the owners and the Secretary promptly did so.
Rehnquist writes that he had been quite surprised as a law clerk when Justice Jackson advised that the president had lost. The law on the equitable issues was clearly in favor of the government, Rehnquist understood, while the constitutional issue was "more or less up for grabs." The whole trend of the Court's decisions in the previous fifteen years leaned toward the government [That would be since the Switch in Time that Saved Nine (W. Coast Hotel v. Parrish) and the Carolene case, 1937.].
"Why, then, did six members of the Court vote against the government in this case?," he asks.
"I think that this is one of those celebrated constitutional cases where what might be called the tide of public opinion suddenly began to run against the government, for a number of reasons, and that this tide of public opinion had a considerable influence on the Court" [citing all the heavy newspaper publicity].
Rehnquist points out that the Korean conflict (not 'war,' but 'police action') was quite different in the way it was regarded by the Nation's public than World War Two, a real war of survival in which we had been attacked at Pearl Harbor and Germany, which had defeated France and was bombing London, declared war on us the next day. We had a draft, price controls, rent controls, production controls still in place from the real war. Truman forbade MacArthur to use air strikes north of the Yalu River separating North Korea from China, the source of the enemy's supplies and soldiers. Rehnquist says that if this case had arisen during WWII, the government "probably would have fared better in the Supreme Court even without being able to resort to the president's war power."
And finally, the standing of President Harry Truman in public opinion was at its nadir. "To err is Truman," it was said, according to Rehnquist. He was blamed for getting us into another war, a losing quagmire, so soon after the last. FDR would never have done this. There were influence-peddling scandals. There was "the mess in Washington."
Rehnquist writes that the justices are not able to insulate themselves from public opinion and "it would probably be unwise to try. We read newspapers and magazines, we watch news on television, we talk to our friends about current events...Judges are influenced by them, and I think that such influence played an appreciable part in causing the Steel Seizure Case to be decided the way it was." p. 192.
The Truman Presidential Library has a broadcast item on his action here.