Executive Power Truman and the Steel Seizure Cases

Executive Power

1. Truman and the Steel Seizure Cases

   1. Historical Background

      1. FDR and Truman’s accession

         1. FDR dies in office in his fourth term in office and even though he knew he was going to die in office, put zero trust in Truman and didn’t involve him in anything.

         2. FDR was already losing popularity when he died. Truman never had a mandate and Congress was never for him (Dems lost in the election), even though Truman won reelection.

         3. Truman lost in the Taft-Hartley act – a statute that was passed on the basis of Congressional findings that the Wagner Act had left labor unions too powerful, so Congress passed the act to limit the role of the gov’t in the labor union and clipped the labor unions.

         4. Truman vetoed Taft-Hartley, but his veto was overridden by Congress. This statute contains the procedures that arguably Truman was supposed to follow but didn’t for intervening in strikes during a national emergency. The statute allows the president to petition the district court to enjoin the strike and the injunction would then have a length of 180 days. A strike injunction protects the status quo during the course of the injunction.

      2. Truman believed in Union’s demands

         1. Truman thought that there was considerable justice in the union’s demands and thought that an injunction preserving the status quo would not be enough – so he seizes the steel mills and directs them to operate as they had been operating.

         2. But the one thing that the gov’t takes upon itself to do is to adjust wages and working conditions during the course of the seizure. So he is looking for some way to get the steel workers to work without forcing them to comply with what he considered to be unfair conditions and wages.

      3. Steel Seizure case in the Courts

         1. The case becomes for the court to explore exactly what the executive power is, as well as dealing with a war that isn’t a declared war.

         2. It’s a war that the US is doing in conjunction with the UN, which is a new organization. So the court in examining questions of executive power has the option to say whether if Congress had declared war it would be different.

         3. Black (Majority)

            1. Black’s opinion is for the majority, but how can he be writing for the majority when there is no agreement on approach? But the approach he takes is very formalistic – the power to seize is a legislation power and the executive doesn’t have it.

         4. Jackson

            1. The most influential approach is Jackson’s, which is the most enduring as well. But he is writing only for himself, as a justice rather than as an advocate, since the Department used his ideas of broad executive power to make his case.

            2. Jackson is drawing far more on the past realities of FDR’s administration rather than Truman’s. He is concerned with the ways in which the modern presidency gives the president far more power than before. The media, head of the political party, all give the president more power, even though Truman himself was not that good at manipulating those powers. He is drawing this image from his experiences with FDR at the height of his power.

            3. He is concerned that claims of power, particularly if they are taken as precedent by the court, will have the tendency to increase that power.

            4. Jackson had spent time off the court to preside over the Nuremberg trials and is drawing on lots of historical experience in writing the opinion – where the Nazis had assumed great federal power, which destroyed the Weimar gov’t.

            5. He is creating a notion of executive power that does not stand independent from Congress’s legislation.

      4. 2 significant anti-communist acts vs. Truman’s veto of Taft-Hartley

         1. Hatch Act – bars communists from gov’t service

         2. Smith Act – regarded as first anti-sedition statute ever passed by US

         3. 1947 – Taft-Hartley Act passed targeting labor unions – thought to be major communist orgs

         4. Truman is speaking out of both sides of his mouth – anti-communist hysteria and supporting labor union.

            1. Truman keeps capitulating to anti-communists.

            2. Truman also pitches a civil rights oriented measures to help Black army veterans – period of many more lynchings taking place. Asserting that WWII had changed the status of blacks in the South.

            3. The Congress at this point was controlled by a coalition of conservative democrats and republicans. Joe McCarthy claimed that he had a list of 205 communists in the State Department, and although this was a lie it catapults him in the middle of the anti-communist movement.

   2. Steel Seizure case – describes ebb and flow of executive power in relation to Congress

      1. Background on Youngstown

         1. First cases of incorporation theory of Bill of Rights were in state prosecution and convictions of anarchists, speaking in ways of overthrowing the gov’t or disrespect. The Supreme Court had problems not applying the first amendment to state acts. This starts also building the case law that starts to deconstruct worst parts of Southern criminal procedure in the South.

         2. This is also part of the context in which Youngstown is evaluating presidential v. Congressional power, and McCarthy was already accusing people of being part of a military and diplomatic conspiracy. In this period, it’s McCarthy and the Senate that have the power, not the president.

         3. McCarthy and others used power of Senate and House to investigate areas that might be in need of Congressional action to monitor performance of Executive. The power to investigate turned the country inside-out. Look at constitutional structure.

         4. To get power in Congress, you have to have been in Congress for a long time – Southern Democrats had significant seniority that put them in charge of controlling committees. The developed structure of the legislative branch, which exists nowhere in the constitution, enable long-standing politicians to amass lots of power. These structures can also drive events, and have never been significantly challenged.

      2. Powers at issue

         1. How odd is it that even by 1952 we don’t know the scope of executive power in the US. Hamilton (less executive power) v. Madison (stronger executive power)?

         2. War power:

            1. What is the importance of absence of declaration of war in Korean Conflict. If only Congress has the power to declare war, if the President is getting us involved w/o Congressional declaration, then the President is abusing the constitution and we need to limit President’s abuse of power.

            2. Or are the conditions of modern warfare such that it has changed from the Framer’s convention and that the President needs the power to be able to conduct foreign relations in this way. Is Congress acquiescing through passing appropriations statutes?

      3. Black’s opinion

         1. He looks as if the answers can be seen on the face of the constitution, which is not really the case.

         2. Realistically, there is always implied Executive power and how do you determine how broad it is in a given circumstance?

      4. Jackson’s opinion - He tries to delineate executive power through its relationship with Congressional power.

         1. The maximum Presidential power is when Congress has authorized Presidential action either expressly or impliedly. The President is personifying the federal sovereignty, and if the act is unconstitutional then it means that the Federal Gov’t as an undivided whole lacks power. This would be the area in which Presidential action would be presumed constitution – burden would rest on anyone questioning it.

         2. The answer is less clear when the Presidents is acting in the absence of either a congressional grant or denial of authority, he can rely upon his own independent powers. There is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Congressional inertia or indifference or quiescence may enable or invite independent presidential action. Any actual test of power depends on imperatives of events and contemporary imponderables rather than on abstract theories of law. Conflicts here will have to be resolved morally and politically by the people – there is no clear cut law – resolved by how much meaning court is prepared to read into constitutional text and legislative history.

         3. The lowest ebb of Presidential power is when his action is incompatible with Congress and expressly against the wishes of Congress. He can rely only on his own independent powers minus Congressional powers of Congress. To sustain exclusive presidential control in such a case can only be done by disabling Congress from action

      5. Does the collective action problem justify the executive taking action on certain issues independently to break the collective action problem?

      6. Whether Taft-Hartley puts case in Jackson’s #2 or #3?

         1. National and safety and health is the framework, not war. The legislative history of not adopting seizure as a mechanism was not done in contemplation of situations like the Korean conflict. If you are going to use Congressional action to take away from Executive power (situation #3), then you would want clear Congressional action to move from #2 (zone of twilight) to #3.

         2. Had Congress directly focused on this type of situation to be absolutely sure of what Congress meant.

         3. Does this also turn on your view of the war – as a real security risk and national emergency, or as a conflict far from the US that didn’t pose a real threat? Does the level of crisis posed matter?

         4. The President does not have a monopoly on war powers. Congress appropriates funds for the war, declares war, and is empowered to make rules for the “Government and Regulation” of the armed forces.

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