A test of executive authority


“Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”

“The purpose of the Constitution was not only to grant power, but to keep it from getting out of hand.”

— Justice Robert H. Jackson

Youngstown Co. v. Sawyer, 1952

In the midst of the Korean War, President Harry Truman knew one thing clearly — the United States could not afford to lose its domestic supply of steel. If that happened, then the defense contractors would be unable to build more tanks, ship and airplanes, the tools of war necessary to maintain America’s position on the Korean peninsula. Highway work would stop. Even atomic research would be halted.

So when the nation’s steel workers threatened to strike over wage controls two years into that war, Truman felt that surely this was a situation in which he could act, during a time of war, to unilaterally seize the steel industry. It was a national emergency. At 10:30 a.m. on April 4, 1952, he took to the television and radio airwaves to announce that he was seizing the nation’s steel mills.

His speech was over just before the 11 a.m. news began, and before those news broadcasts even ended, lawyers for the steel industry had made their way to the home a federal judge to ask for an injunction. In proceedings before the federal court, the federal government took the position that the Constitution limited the powers of the legislative and judicial branches, but not the power of the executive. In light of that sweeping and broad position, the district court granted the injunction and the case made its way to the Supreme Court.

In one of the fastest case times in history, it was a mere two months from the President’s announcement at the beginning of April, through the lower federal court, to Supreme Court argument and decision, which was issued at the beginning of June. The law is frequently complicated, and this is one case where it is very difficult to give a brief summary of what the court decided. That’s because while the ruling itself was 6-3, there were five different opinions in the six Justice majority. Among them there were four different theories.

When the case is taught in law schools and cited by other courts, the concurring opinion of Justice Robert Jackson is usually the one discussed. Jackson provided the most coherent test to be applied to situations in which a president seeks to wield executive power in a time of crisis or national emergency. He said those presidential actions fell into three categories.

The first category were situations in which the president had direct or implied authority from Congress to take the action the president was taking. When the steel case was cited in a 2006 dissent by Justice Thomas, he argued that Congress’ terrorism legislation should be the basis for implied executive power to hold trials at Guantanamo (the majority of the court didn’t agree with him, though).

The second category were cases in which Congress had done nothing at all. He called this a “zone of twilight” and said that when Congress has failed to act, the question of whether a president has executive authority to take unilateral emergency action may not be a legal question, but rather “is likely to depend on the imperatives of events and contemporary imponderables.”

The third category is situations in which Congress specifically goes against the express or implied position of the Congress. Perhaps Congress has passed specific legislation, and the president goes directly against it. Perhaps Congress declines to take an action that the president desires. In these cases, Jackson said, “Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”

Truman later wrote that he was shocked by the court’s decision. But within minutes of it, he had returned control of the steel mills to their owners. The steel workers’ strike lasted almost two months, eventually ending when Truman threatened to use express powers under the Selective Service Act and thus forced negotiations that brought the labor impasse to a close.

The Youngstown Steel case has been used to review later presidential actions (such as the Guantanamo trials), and may well become an important case again if current events lead to a unilateral presidential action.


By David Hejmanowski

Contributing columnist

David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas.

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