At times during our nation’s history, the executive branch of the United States government has tested the limits of its power by taking actions that are not explicitly granted to the president or executive branch. For example, in Youngstown Sheet & Tube Co. v. Sawyer (the “Steel Seizure Case”) (1952), the Supreme Court addressed the issue of executive power during emergencies in the absence of express statutory or Constitutional authority. The Supreme Court decision spans more than 140 pages, including Justice Hugo Black’s opinion for the majority, holding that President Harry S. Truman had exceeded the limits of the president’s power, as well as concurring opinions from each of the five members of the Court agreeing with Black’s conclusions, and a long dissent by the Chief Justice. The decision and bases for the Steel Seizure Case are hard to discern from the six opinions written to support the majority. Justice Robert Jackson’s concurrence is often cited to assess the limits of executive power, as it sets forth a categorization that is the most comprehensible of the six opinions.
Background of the Case
Youngstown Iron Sheet and Tube Company was created on November 23, 1900, in Youngtown, Ohio. In 1950, President Truman sent American troops to South Korea consistent with a U.N. resolution, but without a formal declaration of war by Congress. In support of the war effort, President Truman created the Wage Stabilization Board with the goal of preventing labor strikes, but those efforts were not successful. The United States Steel Workers threatened a strike against all of the major steel producers, including Youngstown, and when negotiations failed, the union issued a notice of intent to strike when the existing collective bargaining agreement expired.
In order to avert the strike, President Truman issued an executive order directing his Secretary of Commerce, Charles W. Sawyer, to seize the steel mills:
The Secretary of Commerce is hereby authorized and directed to take possession of all or such of the plants, facilities, and other property of the companies named in the list attached hereto, or any part thereof, as he may deem necessary in the interests of national defense; and to operate or to arrange for the operation thereof and to do all things necessary for, or incidental to, such operation.
While President Truman could have acted to prevent the union from striking pursuant to the emergency authority granted under the Taft-Hartley Act, he disliked that Act, which had been passed over his veto, and he also did not believe the union was to blame for the threatened strike. Truman’s action against the mills was not based on any express authority:
but was based generally upon all powers vested in the President by the Constitution and laws of the United States and as President of the United States and Commander in Chief of the Armed Forces.
Immediately after the Secretary of Commerce issued the order seizing the steel mills, the mills sued Secretary Sawyer in the United States District Court for the District of Columbia, seeking a declaratory judgment and an injunction. The District Court issued a preliminary injunction, which the Court of Appeals for the D.C. Circuit stayed.
The Supreme Court Decision
The Supreme Court granted certiorari to consider the executive branch’s powers in an emergency. Associate Justice Hugo Black wrote the 6-3 decision, stating:
The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. Indeed, we do not understand the Government to rely on statutory authorization for this seizure.
Finding no Congressional or Constitutional authority, Black concluded that the president had no power or authority to issue orders to, or actually, seize the steel mills. Justice William O. Douglas concurred, finding that the action by the president in seizing the mills was a condemnation of property, and the only branch with the authority to pay for a condemnation was Congress. Each of the concurrences agreed with the decision but for different reasons. As noted, Justice Jackson set forth a framework for considering the limits of the president in three different circumstances. Justice Jackson’s concurrence began:
A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. 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. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.
Jackson next set out the president’s power in three situations: 1) when the president acts in accordance with “an express or implied authorization of Congress,” the president is at his broadest authority; 2) when the president acts without “either a congressional grant or denial of authority,” his power is based only upon reliance of his own independent powers” where there is potential for concurrent authority with Congress; and, 3) when the president acts against the express or implied will of Congress, “his power is at its lowest ebb.” Jackson found that the seizure by President Truman fell within the third category, and agreed with the Court’s decision.
Chief Justice Fred Vinson dissented, joined by Justices Stanley Reed and Sherman Minton. Citing the extraordinary circumstances under which President Truman issued the executive order and seized the mills, Vinson outlined the history of similar presidential action in comparable circumstances:
With or without explicit statutory authorization, Presidents have at such times dealt with national emergencies by acting promptly and resolutely to enforce legislative programs, at least to save those programs until Congress could act. Congress and the courts have responded to such executive initiative with consistent approval.
Upon the Supreme Court ruling in the Steel Seizure Case, Truman immediately returned the mills to the owners. The union struck soon after and remained on strike for fifty days, until President Truman threatened to use the powers under the Selective Service Act.
The Steel Seizure Case decision was a landmark one because it set limits on the president’s powers absent a Congressional act or Constitutional provision. Jackson’s framing of the three contexts in which a president may exercise power has subsequently been referenced often when assessing the extent of a president’s authority.
Dan Cotter is a Partner at Butler Rubin Saltarelli & Boyd LLP and an Adjunct Professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. He is also a Past President of The Chicago Bar Association. The article contains his opinions and is not to be attributed to Butler Rubin or any of its clients, The Chicago Bar Association, or John Marshall.