As introduced in the previous post, the 1952 Steel Seizure Case is a cornerstone of the Court’s separation of powers jurisprudence. The case arose out of President Harry Truman’s decision to seize the steel mills to prevent a labor strike that, he claimed, threatened steel production for the war effort in Korea. The Court was presented with the difficult problem of resolving, in a legal setting, the essentially political wrangling between Congress and the President, with the latter pressing his constitutional power claims to the maximum. At another level, the case exposed the fault lines between the American view of the Constitution as both the source and the basic formal law of government, and the classical view of constitutions as mere reflections of formal and informal political accommodations already made otherwise.To superimpose at least some structure of constitutional “law” on this political flux, Jackson envisioned what he admitted was a “somewhat over-simplified grouping of practical situations.” First, if the President acts under his claimed constitutional powers along with an express or implied authorization of Congress, his power is at its maximum, and his action likely is constitutional, unless, as when reserved powers of the states are invaded, the federal government as a whole could not act. Second, if the President acts under his claimed powers alone, without action by Congress, various practical considerations driven by events, along with past presidential action amounting to constitutional custom, may allow independent presidential action. Third, if the President acts under his claimed powers, but Congress through its own power has expressly or implicitly limited the President, his power is at its lowest, and his action may well be unconstitutional. It is the third category that presents the clash of constitutional powers and is most likely to trigger conflict legally and politically.

There are several questions that are not clearly answered under Jackson’s approach. First, if the President is acting under powers allocated to him under the Constitution, can Congress alter that allocation by mere statute? Marbury v. Madison appears to reject that authority.

Second, the type of executive power claimed matters. The typical case of this nature does not involve a congressional limitation of some expressly granted executive power, such as that to grant pardons. Instead, Jackson was thinking of executive action that is rooted in what a President will claim is implied from other, rather ambiguous executive powers in the Constitution, such as the “executive power [that is] vested in” the President, the “commander-in-chief” power, or the power to “take care that the laws be faithfully executed.” It is the President’s assertion of such a reservoir of potentially unbounded discretion that is most troubling.

Third, Jackson failed to specify the guidelines courts would have to consider to define the constitutional content of such ambiguous powers. He admitted that it was difficult to get a clear picture of the original understanding of the particulars of the President’s powers. To what extent do “deeply embedded traditional ways of conducting government…give meaning to the words of [the Constitution] or supply them,” as Justice Frankfurter noted? A “systematic, unbroken, executive practice, long pursued to the knowledge of Congress and never before questioned…[can become] part of the structure of our government.”

Fourth, what constitutes “implicit” limitation by Congress, and how can one distinguish between that (or “implied” congressional authorization) and congressional inaction so as to differentiate between the second and third of Jackson’s categories?

In the Steel Seizure Case, Jackson placed Truman’s action in the third, and weakest, category of executive power. He explained that, in 1947, the Senate had voted against an amendment in the Taft-Hartley Act to give Presidents the authority to seize businesses to settle strikes. Moreover, the Defense Production Act of 1950, re-authorized in 1951, and the Selective Service Act gave similar powers to the President if needed for defense. Thus, Jackson (and several other justices) concluded, Congress at least implicitly had denied the President authority to seize the mills under his own constitutional powers alone. It should be noted that Truman claimed that the procedure authorized under the Defense Production Act was too cumbersome and time-consuming to be effective in the emergency he claimed existed. Jackson was not persuaded and noted drily, “emergency powers beget emergencies.”

Jackson’s analysis has weaknesses. It ignored the dissent’s numerous accounts of seizures of businesses by solely executive action during war and otherwise, including some for the purpose of settling labor disputes. It also ignored the silence of Congress in the face of this specific action, when Truman twice called on Congress to tell him what to do. That more looks like tacit acquiescence (Jackson’s first category), or at least congressional inaction (his second category).

Congressional action is a range between express prohibition of specific executive action and utter silence. What is one to make of a proposal to oppose presidential action that is passed by both houses, but is vetoed by the President? What about a proposal to do so that is passed by the House and gets a majority vote in the Senate but cannot get past a filibuster? Then there is the proposal to authorize presidential action that passes one house but not the other and is then dropped in the House-Senate conference to draft the bill. Does that show that Congress intended to prohibit the President from such action? Even a proposal to authorize presidential action by statute may be rejected because Congress believes that the President already has that authority through his own powers under the Constitution.

The more Presidents insist on acting unilaterally, the more likely the matter will eventually reach the Supreme Court in our system where, as Alexis de Toqueville observed, “Scarcely any political question arises…that is not resolved, sooner or later, into a judicial question.” The Court has used Justice Jackson’s approach in many cases, from upholding President Jimmy Carter’s executive agreement with Iran to take the claims of American companies against the Khomeini government out of the federal courts in favor of a joint U.S.-Iran Claims tribunal, to rejecting President George W. Bush’s order to require Texas to review the murder conviction of Ernesto Medellin because the International Court of Justice said so.

In one case, Hamdan v. Rumsfeld in 2006, the Court rejected the George W. Bush administration’s procedures to try captured unlawful enemy combatants, such as Osama Bin Laden’s driver, by military commission. Demonstrating the malleability of Justice Jackson’s approach, both the majority and the main dissent in Hamdan used that opinion for support. If the Steel Seizure Case framework holds, this last example especially shows that Congress must step in, as vigorously as their political circumstances permit, to show their opposition to executive overreach. It is not enough for them to remain passive because the President can veto a bill or the opposing party’s Senators might filibuster it. Even something less than a successfully passed bill that expressly limits the President may be enough to persuade a sympathetic court to vote to re-establish constitutional balance as a counter to run-away executive unilateralism.

The current administration has lost an unusually large number of unanimous votes before the Supreme Court, including on separation of powers issues, such as the President’s assertion that he could define when the Senate was “in recess.” These rebukes show that even President Obama’s appointees are skeptical about some of the bolder claims of executive power. But Congress must take the first step and act. The resigned tone with which Justice Jackson concluded his opinion summarizes the matter well, “But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems….We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.”

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at:

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3 replies
  1. Ron
    Ron says:

    Excellent essay on why Congress must, as forcefully as possible, object to any instance of perceived executive overreach. By simply objecting verbally in front of microphones, without legislative action to void presidential overreach, we may someday find ourselves with a legislature in name only and a King unencumbered by any balance and able to void any attempt by Congress or the Court to check the King’s authority to rule by fiat.

  2. Carlo Falci
    Carlo Falci says:

    Hey, I think your site might be having browser compatibility issues. When I look at your website in Ie, it looks fine but when opening in Internet Explorer, it has some overlapping. I just wanted to give you a quick heads up! Other then that, wonderful blog!


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