Professor Robert Chesney
National Security Law
Fall, 2009
Unit 1 – Constitutional Allocation of National Security Powers
A. Principles Governing Separation of Powers Disputes
1. Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case – 1952)
i. Background
· The country was at war with Korea and the war effort called for more weapons, which were made from steel; Steel industry demanded an increase for all the extra work it was doing; A strike was looming and a 3-way dispute broke out between the steel union, the steel companies and the government (companies didn’t want to spend extra money for the increase in labor/production and the Government balked); Union announced it was going to strike
· President Truman didn’t want to invoke the Taft-Hartley Act of ’47, the Selective Service Act of ’48, or Title II of the Defense Production Act of 1950, all of which gave the executive branch extensive authority to regulate wages, settle disputes and run the steel shops if it had to
· This is what Truman in effect did anyway by authorizing Secretary of Commerce Sawyer to take possession of the steel industry and keep the mills operating to provide continued steel during the national emergency
ii. Mill Owner Argument
· President’s order amounts to law-making, which is a legislative function the Constitution has expressly given to Congress
iii. President’s Argument
· The order was made on findings of the president that the action was needed to avert a national catastrophe (which would result from the stoppage of production)
· The president was acting within the aggregate of his constitutional powers as the Nation’s Chief Executive and the Commander in Chief of the Armed Forces of the US
iv. Supreme Court’s decision (Justice Black)
· President’s power to issue such an order must stem from 1) An Act of Congress or 2) The Constitution itself
o The use of the seizure technique to solve labor disputes in order to prevent work stoppages was dismissed by Congress through its rejection of an amendment to the Taft-Hartley Act allowing such governmental seizures in cases of emergency
o It is argued that presidential power should be implied from the aggregate of his powers under the Constitution; Reliance is placed on Article II à a) “the executive power shall be vested in a President,” b) “he shall take care that the laws be faithfully executed” and c) he shall be commander in chief of the army and navy of the US”
a. The order cannot be sustained as an exercise of the President’s military power as Commander in Chief (this is a job for lawmakers)
b. The order cannot be sustained due to provisions granting executive power to the President à Via the framework of our constitution, the President’s power to see that the laws are faithfully executed refutes the notion that he is a lawmaker; Article I: Congress may “make all laws which shall be necessary and proper for carrying into execution the foregoing powers…”
· The President’s order does not direct a Congressional policy to be executed in a manner prescribed by Congress, it directs a Presidential policy to e executed in a manner prescribed by the President
· Even if other Presidents have taken possession of private businesses in order to settle labor disputes without congressional authority, it does not mean that Congress has lost exclusive Constitutional authority to make laws “necessary and proper”
v. Justice Frankfurter (concurrence)
· Historical Practice
o It is an inadmissibly narrow conception of constitutional law to confine it to the words of the Constitution and disregard the gloss which life has written upon them
a. A systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned…may be treated as a gloss on executive power vested in the president
o There is no historical practice that exists to justify the seizure
· The issue in this case should be determined without attempting to define the President’s powers comprehensively
vi. Justice Douglas (concurrence)
· The President is attempting to take legislative action here. When the US takes over an industrial plant to settle a labor controversy, it is “taking” the property in the Constitutional sense
o The 5th A. requires that the government pay for all property it “takes” (no private property can be taken for pubic use without just compensation) à The problem is that Congress, not the President, has the power to pay such compensation and is also the only branch able to authorize a seizure or make lawful one that the President has already affected
· Situations like this can be avoided if the President is given some legislative authority but the Framers refused to do so (they had memories of the tyrannies produced by a blending of executive and legislative power)
o In order to sanction the seizures, the SC would need to read Article II as giving the President not only the power to execute the laws, bit also to make them (not willing to do this)
vii. Justice Jackson (concurrence)
· Presidential powers are not fixed, but fluctuate depending on their disjunction or conjunction with those of Congress:
o Class 1 à When the President acts pursuant to an express or implied authorization of Congress, his authority is at a maximum, for it includes all that he possesses in his own right plus all that Congress can delegate
o Class 2 à 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
a. Any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law
o Class 3 à When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for them he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.
· This case falls into Class 3
o There is no Congressional authorization for the seizure and Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure. The cu
rgency at hand)
x. Justices Vinson, Reed and Minton (Dissenting)
· The record shows that a work stoppage would immediately jeopardize and imperil our national defense
· The President was performing his duties under the Constitution to “take care that the laws be faithfully executed”
o A work stoppage in steel production would imperil the nation by preventing execution of the legislative programs for procurement of military equipment
o While a shutdown could be averted by granting the price concessions requested by the PLs, granting them would disrupt the price stabilization program also enacted by Congress (rather than fail to execute either legislative program, the President acted t execute both)
· The President’s purpose was to faithfully execute the laws by acting in a national emergency to maintain the Status Quo…Thereby preventing the collapse of the legislative programs until Congress could act (he immediately informed Congress of his temporary actions)
o He acted only to save the situation until Congress could act
· In this case, there is no statute prohibiting the action taken by the President in a matter threatening the very safety of the Nation
o Executive inaction in such a situation is foreign to the concept of Energy and Initiative in the Executive as created by the Founding Fathers
· While emergency does not create power, emergency may furnish the occasion for the exercise of power
xi. NOTE: If we take Justice Black’s description of the Separation of Powers literally, the President can never be a lawmaker as per the nondelegation doctrine. The SC has held that a delegation of power is OK if there is a governmental necessity and an “intelligible principle” to guide the delegate’s discretion (in only 2 cases, the SC has applied the nondelegation doctrine to strike down statutory delegations to the executive)
· Therefore, Justice Black’s opinion cannot be taken literally à The president MAY exercise delegated law-making power and when he does, his authority is at a “maximum” since he is not only acting with his own authority, but also all that Congress can delegate
· The problem in this case was that their was neither a statutory delegation nor constitutional power for the seizure
xii. NOTE: The Korean War was an undeclared war fought overseas
· Rhenquist, who was Jackson’s law clerk at the time, believed that the “profound ambivalence” about the undeclared war was a major factor in the decision (he believes it would have come out differently during the declared WWII)