PRESIDENTIAL ACTION IN THE DOMAIN OF CONGRESS: THE STEEL SEIZURE CASE
To avert a nationwide strike of steel workers that he believed would jeopardize the national defense, President Truman, on April 8, 1952, issued an executive order directing the Secretary of Commerce to seize and operate most of the steel industry of the country.778 The order cited no specific statutory authorization but invoked generally the powers vested in the President by the Constitution and laws of the United States. The Secretary issued the appropriate orders to steel executives. The President promptly reported his action to Congress, conceding Congress’s power to supersede his order, but Congress did not do so, either then or a few days later when the President sent up a special message.779 The steel companies sued, a federal district court enjoined the seizure,780 and the Supreme Court brought the case up prior to decision by the court of appeals.781 Six-to-three, the Court affirmed the district court order, each member of the majority, however, contributing an individual opinion as well as joining in some degree the opinion of the Court by Justice Black.782 The holding and the multiple opinions represent a setback for the adherents of “inherent” executive powers,783 but they raise difficult conceptual and practical problems with regard to presidential powers.
The Doctrine of the Opinion of the Court
The chief points urged in the Black opinion are the following: There was no statute that expressly or impliedly authorized the President to take possession of the property involved. On the contrary, in its consideration of the Taft-Hartley Act in 1947, Congress refused to authorize governmental seizures of property as a method of preventing work stoppages and settling labor disputes. Authority to issue such an order in the circumstances of the case was not deducible from the aggregate of the President’s executive powers under Article II of the Constitution; nor was the order maintainable as an exercise of the President’s powers as Commander in Chief of the Armed Forces. The power sought to be exercised was the law-making power, which the Constitution vests in the Congress alone. Even if it were true that other Presidents have taken possession of private business enterprises without congressional authority in order to settle labor disputes, Congress was not thereby divested of its exclusive constitutional authority to make the laws necessary and proper to carry out all powers vested by the Constitution “in the Government of the United States, or any Department or Officer thereof.”784
The Doctrine Considered
The pivotal proposition of the opinion of the Court is that, inasmuch as Congress could have directed the seizure of the steel mills, the President had no power to do so without prior congressional authorization. To this reasoning, not only the dissenters but Justice Clark, in a concurring opinion, would not concur, and in fact they stated baldly that the reasoning was contradicted by precedent, both judicial and presidential and congressional practice. One of the earliest pronouncements on presidential power in this area was that of Chief Justice Marshall in Little v. Barreme.785 There, a United States vessel under orders from the President had seized a United States merchant ship bound from a French port allegedly carrying contraband material; Congress had, however, provided for seizure only of such vessels bound to French ports.786 The Chief Justice wrote: “It is by no means clear, that the President of the United States, whose high duty it is to ‘take care that the laws be faithfully executed,’ and who is commander-in-chief of the armies and navies of the United States, might not, without any special authority for that purpose, in the then existing state of things, have empowered the officers commanding the armed vessels of the United States, to seize and send into port for adjudication, American vessels which were forfeited, by being engaged in this illicit commerce. But when it is observed, that [an act of Congress] . . . gives a special authority to seize on the high seas, and limits that authority to the seizure of vessels bound, or sailing to, a French port, the legislature seems to have prescribed that the manner in which this law shall be carried into execution, was to exclude a seizure of any vessel not bound to a French port.”787
Other examples are at hand. In 1799, President Adams, in order to execute the extradition provisions of the Jay Treaty, issued a warrant for the arrest of one Robbins, and the action was challenged in Congress on the ground that no statutory authority existed by which the President could act; John Marshall defended the action in the House of Representatives, the practice continued, and it was not until 1848 that Congress enacted a statute governing this subject.788 Again, in 1793, President Washington issued a neutrality proclamation; the following year, Congress enacted the first neutrality statute and since then proclamations of neutrality have been based on acts of Congress.789 Repeatedly, acts of the President have been in areas in which Congress could act as well.790
Justice Frankfurter’s concurring opinion791 listed 18 statutory authorizations for seizures of industrial property, all but one of which were enacted between 1916 and 1951, and summaries of seizures of industrial plants and facilities by Presidents without definite statutory warrant, eight of which occurred during World War I— justified in presidential orders as being done pursuant to “the Constitution and laws” generally—and eleven of which occurred in World War II.792 The first such seizure in this period had been justified by then Attorney General Jackson as being based upon an “aggregate” of presidential powers stemming from his duty to see the laws faithfully executed, his commander-in-chiefship, and his general executive powers.793 Chief Justice Vinson’s dissent dwelt liberally upon this opinion,794 which reliance drew a disclaimer from Justice Jackson, concurring.795
The dissent was also fortunate in that the steel companies’ chief counsel, John W. Davis, a former Solicitor General of the United States, had filed a brief in 1914 in defense of Presidential action, which had taken precisely the view that the dissent now presented.796 “Ours,” the brief read, “is a self-sufficient Government within its sphere. (Ex parte Siebold, 100 U.S. 371, 395; in re Debs, 158 U.S. 564, 578.) ‘Its means are adequate to its ends’ (McCulloch v. Maryland, 4 Wheat., 316, 424), and it is rational to assume that its active forces will be found equal in most things to the emergencies that confront it. While perfect flexibility is not to be expected in a Government of divided powers, and while division of power is one of the principal features of the Constitution, it is the plain duty of those who are called upon to draw the dividing lines to ascertain the essential, recognize the practical, and avoid a slavish formalism which can only serve to ossify the government and reduce its efficiency without any compensating good. The function of making laws is peculiar to Congress, and the Executive can not exercise that function to any degree. But this is not to say that all of the subjects concerning which laws might be made are perforce removed from the possibility of Executive influence. The Executive may act upon things and upon men in many relations which have not, though they might have, been actually regulated by Congress. In other words, just as there are fields which are peculiar to Congress and fields which are peculiar to the Executive, so there are fields which are common to both, in the sense that the Executive may move within them until they shall have been occupied by legislative action. These are not the fields of legislative prerogative, but fields within which the lawmaking power may enter and dominate whenever it chooses. This situation results from the fact that the President is the active agent, not of Congress, but of the Nation. As such he performs the duties which the Constitution lays upon him immediately, and as such, also, he executes the laws and regulations adopted by Congress. He is the agent of the people of the United States, deriving all his powers from them and responsible directly to them. In no sense is he the agent of Congress. He obeys and executes the laws of Congress, not because Congress is enthroned in authority over him, but because the Constitution directs him to do so.”
“Therefore it follows that in ways short of making laws or disobeying them, the Executive may be under a grave constitutional duty to act for the national protection in situations not covered by the acts of Congress, and in which, even, it may not be said that his action is the direct expression of any particular one of the independent powers which are granted to him specifically by the Constitution. Instances wherein the President has felt and fulfilled such a duty have not been rare in our history, though, being for the public benefit and approved by all, his acts have seldom been challenged in the courts.”797
Power Denied by Congress
Justice Black’s opinion of the Court in Youngstown Sheet and Tube Co. v. Sawyer notes that Congress had refused to give the President seizure authority and had authorized other actions, which had not been taken.798 This statement led him to conclude merely that, since the power claimed did not stem from Congress, it had to be found in the Constitution. But four of the concurring Justices made considerably more of the fact that Congress had considered seizure and had refused to authorize it. Justice Frankfurter stated: “We must . . . put to one side consideration of what powers the President would have had if there had been no legislation whatever bearing on the authority asserted by the seizure, or if the seizure had been only for a short, explicitly temporary period, to be terminated automatically unless Congressional approval were given.”799 He then reviewed the proceedings of Congress that attended the enactment of the Taft-Hartley Act and concluded that “Congress has expressed its will to withhold this power [of seizure] from the President as though it had said so in so many words.”800
Justice Jackson attempted a schematic representation of presidential powers, which “are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” Thus, there are essentially three possibilities. “1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possess in his own right plus all that Congress can delegate. . . . 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. . . . 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject.”801 The seizure in question was placed in the third category “because Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure.” Therefore, “we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress.”802 That holding was not possible.
Justice Burton, referring to the Taft-Hartley Act, said that “the most significant feature of that Act is its omission of authority to seize,” citing debate on the measure to show that the omission was a conscious decision.803 Justice Clark relied on Little v. Barreme,804 in that Congress had laid down specific procedures for the President to follow, which he had declined to follow.805
Despite the opinion of the Court, therefore, it seems clear that four of the six Justices in the majority were more moved by the fact that the President had acted in a manner considered and rejected by Congress in a field in which Congress was empowered to establish the rules—rules the President is to see faithfully executed— than with the fact that the President’s action was a form of “law-making” in a field committed to the province of Congress. The opinion of the Court, therefore, and its doctrinal implications must be considered with care, as it is doubtful that the opinion lays down a constitutional rule. Whatever the implications of the opinions of the individual Justices for the doctrine of “inherent” presidential powers— and they are significant—the implications for the area here under consideration are cloudy and have remained so from the time of the decision.806
- E.O. 10340, 17 Fed. Reg. 3139 (1952).
- H. Doc. No. 422, 82d Congress, 2d sess. (1952), 98 CONG. REC. 3912 (1952); H. Doc. No. 496, 82d Congress, 2d sess. (1952), 98 CONG. REC. 6929 (1952).
- 103 F. Supp. 569 (D.D.C. 1952).
- The court of appeals had stayed the district court’s injunction pending appeal. 197 F.2d 582 (D.C. Cir. 1952). The Supreme Court decision bringing the action up is at 343 U.S. 937 (1952). Justices Frankfurter and Burton dissented.
- Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In the majority with Justice Black were Justices Frankfurter, Douglas, Jackson, Burton, and Clark. Dissenting were Chief Justice Vinson and Justices Reed and Minton. For critical consideration of the case, see Corwin, The Steel Seizure Case: A Judicial Brick Without Straw, 53 COLUM. L. REV. 53 (1953); Roche, Executive Power and Domestic Emergency: The Quest for Prerogative, 5 WEST. POL. Q. 592 (1952). For a comprehensive account, see M. MARCUS, TRUMAN AND THE STEEL SEIZURE CASE: THE LIMITS OF PRESIDENTIAL POWER (1977).
- Indeed, the breadth of the Government’s arguments in the district court may well have contributed to the defeat, despite the much more measured contentions set out in the Supreme Court. See A. WESTIN, THE ANATOMY OF A CONSTITUTIONAL LAW CASE 56–65 (1958) (argument in district court).
- 343 U.S. at 585–89.
- 6 U.S. (2 Cr.) 170 (1804).
- 1 Stat. 613 (1799).
- Little v. Barreme, 6 U.S. (2 Cr.) 170, 177–78 (1804).
- 10 ANNALS OF CONG. 596, 613–14 (1800). The argument was endorsed in Fong Yue Ting v. United States, 149 U.S. 698, 714 (1893). The presence of a treaty, of which this provision was self-executing, is sufficient to distinguish this example from the steel seizure situation.
- Cf. E. CORWIN, THE PRESIDENT ’ S CONTROL OF FOREIGN RELATIONS ch. 1 (1916).
- E. Corwin, The Steel Seizure Case: A Judicial Brick Without Straw, 53 COLUM. L. REV. 53, 58–59 (1953).
- Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 593 (1952).
- 343 U.S. at 611–13, 620.
- 89 CONG. REC. 3992 (1943).
- 343 U.S. at 695–96 (dissenting opinion).
- Thus, Justice Jackson noted of the earlier seizure, that “[i]ts superficial similarities with the present case, upon analysis, yield to distinctions so decisive that it cannot be regarded as even a precedent, much less an authority for the present seizure.” 343 U.S. at 648–49 (concurring opinion). His opinion opens with the sentence: “That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety.” Id. at 634.
- Brief for the United States at 11, 75–77, United States v. Midwest Oil Co., 236 U.S. 459 (1915).
- Quoted in Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 689–91 (1952) (dissenting opinion).
- 343 U.S. at 585–87.
- 343 U.S. at 597.
- 343 U.S. at 602.
- 343 U.S. at 635–38. In Hamdan v. Rumsfeld, 548 U.S. 557, 638 (2006), Justice Kennedy, in a concurring opinion joined by three other Justices, endorsed “the three-part scheme used by Justice Jackson” as “[t]he proper framework for assessing whether Executive actions are authorized.” The Court in this case found “that the military commission convened [by the President, in Guantanamo Bay, Cuba] to try Hamdan lacks power to proceed because its structure and procedures violate [the Uniform Code of Military Justice].” Id. at 567. Thus, as Justice Kennedy noted, “the President has acted in a field with a history of congressional participation and regulation.” Id. at 638.
- 343 U.S. at 639, 640.
- 343 U.S. at 657.
- 6 U.S. (2 Cr.) 170 (1804).
- 343 U.S. at 662, 663.
- In Dames & Moore v. Regan, 453 U.S. 654, 668–69 (1981), the Court recurred to the Youngstown analysis for resolution of the presented questions, but one must observe that it did so saying that “the parties and the lower courts . . . have all agreed that much relevant analysis is contained in” Youngstown. See also id. at 661–62, quoting Justice Jackson’s Youngstown concurrence, “which both parties agree brings together as much combination of analysis and common sense as there is in this area.”