National Security Law Outline
Robert Chesney
Spring 2011
I. Principles Governing Separation of Powers Disputes pp 27-47
a. Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) SCOTUS 1952
i. Generally
1. Iconic case – Exhibit A of legislative power
a. This is the first thing people think of when there is a separation of powers issue between the President and Congress
i. But case doesn’t really solve anything, it just states truisms
b. Taken to stand for the limits of presidential power during wartime – the proposition that the President does not have a blank check
i. Does that bear out when you count up the holdings? Does the case really support that?
1. If the case doesn’t support what people say it does, does that matter?
a. If everyone accepts the perception is reality really otherwise?
2. About the distribution of power between the President and Congress regarding the military chain of command
3. Defining the Commander-in-Chief power/meaning and the broader set of powers the President yields
4. Do all the rules go away in a truly emergency situation?
ii. Facts:
1. During the height of the Korean War. Truman, without Congressional approval, had directed troops – largely those still stationed in Japan following WWII – to protect South Korea. By the time of this case the war was raging, but not going well. It was a full-on industrialized war.
2. The United Steel Workers of America threatened to strike after they rejected wage increases. The Truman administration believed that a strike of any length would cause severe destabilization of the national economy and would hurt the war effort – a threat to armaments. Truman decided to seize the production facilities, but kept the current operating management in place to run the plants under federal direction.
iii. WWII background:
1. The state that can better corral its economy wins wars
a. U.S. won WWII because U.S. did this really well
2. State needs legal frameworks to harness industrial power
a. Created by statute, a transfer of market power to government control
i. 16 statutes were passed to allow the President to nationalize industries in the first half of the 20th century
1. Statutes used in WWII because war was declared
3. Changes/control of market prices also needed
a. Wage and prices freezes, etc
i. Used to keep things fairly stable
1. But the economic system gets complicated as the war draws to a close
a. Congress lifted wage controls but not price controls
i. Led to strikes in the coal and telephone industries
ii. Response was Taft-Hartley (opposed by unions)
iv. Taft-Hartley Act (1947)
1. If there is a threat to national health or safety, this bill authorizes the president to order an 80 day suspension before a strike is permitted. During that period, the union must hold a secret ballot vote on the strike/owners’ final offer
a. Unions opposed because of the secret ballot part
2. Truman vetoed the bill, but his veto was overridden.
a. Truman was pro-union. He saw the bill as greed, there was room to cut into profits
3. There was an amendment proposed that would have given the president nationalization (seizure) powers, but it was rejected. Chesney argues that it is dangerous to determine Congress’s will when they don’t enact something, this does not necessarily mean that they did not want it.
a. Congressional intent is bullshit!
v. Truman’s Options:
1. Use Taft-Hartley and order an 80-day suspension and force a secret ballot.
a. Why doesn’t he do this?
i. He HATES this bill and also he doesn’t want to make the unions back down, he sees it as pro-ownership and thinks that the workers are getting screwed.
b. Tom Clark told him that he could nationalize the industry.
2. Go to Congress and get an Emergency Bill passed to get the power to seize the industry
a. If possible, unlikely because Congress didn’t like him or unions
b. AND it would look worse if he asks and they say no
3. Seize the steel industry anyway, by executive order, without being rebuffed in advance
a. This is what he does, but the court holds that this was unconstitutional usurpation of executive power.
4. Do nothing.
vi. What if Congress had given authorization?
1. Did Congress even have the power to give?
a. There is a 5th Amendment Takings Clause problem, the government doesn’t have the power without paying
2. It would have worked!
a. But Congress didn’t do this
vii. Where else can Truman get the authority if not from a statute?
1. The Constitution
a. Commander-in-Chief
b. Overall executive powers
c. Duty to take care the laws are fully executed
i. All in Article II (President)
1. These are things he can do without power from Congress
a. WITHOUT, not contrary to
i. These are powers in a vacuum, not when already told no
2. Mostly relies on the Commander-in-Chief power
a. Argues that army is worthless without bullets, nothing to command if have to surrender because no steel for planes, bullets, etc
3. Steel industry response
a. The industry is not in the military and commanding it makes sense if a government plant but not this because it is a private industry
i. A question of civilian-military connection
1. Does the importance to the military bring it into military realm?
viii. Holding:
1. Even though the court struck down the President’s actions in this instance, SEVEN justices agreed with the idea that in times of emergency the executive has some inherent powers.
a. However, only three justices thought this particular emergency created sufficient justification.
b. Only two justices believed that the executi
powers really are
1. This is practical, precedential, course of history
3. Douglas
a. The president cannot act without statutory authority.
b. Pretty much the same as Black – formalist, about lawmaking
4. Jackson’s Concurring Opinion: Most important from this case
a. Not an originalist
i. Functional, pragmatic
b. No luck with precedent and little guidance
c. There are three ways that the President’s power can intersect with Congress’:
i. Express or Implied Authorization of Congress
1. President’s power is at its maximum
2. President has the most power in this situation; he is wielding the power of statute and the constitution.
3. Remove the separation of powers dispute – combine Presidential power and Congressional declaration
a. Does not apply here
ii. Congressional Silence
1. This is the “zone of twilight” where both Congress and the President have powers. Frankfurter talked about congressional acquiescence, this would fall into this category.
2. When there is Congressional silence
3. If a President’s action falls into this “zone” do a constitutional analysis.
4. Look at the circumstances to know if Constitutional or not
a. Maybe this case should have been here because really there was Congressional silence
iii. Defying Congressional orders, when the president acts against statutory authority.
1. Presidential powers are at their “lowest ebb” here.
a. Congress has said no and the President is acting contrary to the will of Congress
2. This does NOT mean that his actions are unconstitutional.
a. Even without Congress the President doesn’t have no powers
b. If Congress prevented him from doing something that he is constitutionally authorized to do, it is still constitutional.
i. Have to analyze/unpack what Commander-in-Chief means
3. Jackson said that the seizure fell into this sphere:
a. Commander-in-chief power doesn’t mean president can seize power by sending troops somewhere, there needs to be war declared.
b. Rejects “inherent” powers because framers knew emergencies would exist and they provided no extra powers during them.
5. Burton
a. Thought that a declaration of war meant extra powers. He said that these actions would have been okay if Congress had declared war.
