In his 6-3 opinion for the Supreme Court in the landmark case, Youngstown Sheet & Tube Co. v. Sawyer (1952), Justice Hugo Black rejected President Harry Truman’s assertion of an inherent executive power to seize the steel industry as a means of thwarting a nationwide steel strike. Black’s opinion, a historic rebuke to sweeping claims of presidential authority, provided a textbook lesson on the constraining force of the separation of powers doctrine and why it prohibited President Truman from issuing an executive order that encroached on legislative power.
President Truman, it will be recalled, had ordered Secretary of Commerce Charles Sawyer to seize the steel industry for the purpose of ensuring the continuation of steel production which he believed critical to both the United States’ role in the Korean War and the task of rebuilding Europe in the aftermath of World War II. Justice Black declared that the president’s power, “if any, to issue the order must stem from an act of Congress or from the Constitution itself.”
Black proceeded to emphasize that no statute existed that “expressly” authorized Truman’s act, nor was there any law from which such power “can be fairly implied.” Consequently, Black noted, the “necessary authority must be found in some provision of the Constitution.” But Truman made no such claim. Instead, he asserted the aggregate of his powers under the Constitution, with reliance on the Vesting Clause, the Take Care Clause and the Commander in Chief Clause.
Black easily disposed of the Commander in Chief argument and trained his sights on the president’s assertion of an inherent power. He denied that the seizure order could be upheld by the “grant of executive power to the president.” As Black explained it, “In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” The Constitution, he stated, grants to Congress, not the president, the authority to make laws.
At bottom, Congress had not authorized the president to seize private property. That fact is what united the five separate concurring opinions. While the concurring opinions written by the majority emphasized different aspects of the separation of powers, the common denominator lay in the Justices’ insistence on the existence of law granting seizure authority to the president.
The majority agreed, moreover, that the president possessed no “inherent” power to seize the steel mills. The assertion of such a vague, undefined reservoir of “inherent” power, variously characterized as an emergency or prerogative power, would permit the president to act in the absence of law and even in defiance of it. In that case, the president might displace the laws of Congress, thus mortally wounding the separation of powers, which insists that the nation should be governed by known rules of law. That principle can be maintained, however, only if those who make the law have no power to execute it and those who execute it have no power to make it. That critical distinction would be eviscerated by an inherent executive power.
The Truman Administration’s assertion of an “inherent” power to confront a crisis raised the profile of Youngstown to a historic level. It harkened back to one of the most fundamental, dramatic and transcendent issues in the long history of Anglo-American jurisprudence: subordinating the executive to the rule of law. The issue of the president’s relationship to the law defined the Steel Seizure Case and confronted the Justices of the Supreme Court with an issue that judges have grappled with since the great English judge, Sir Edward Coke, in 1608, boldly declared to an outraged King James I that the King is indeed subject to the law.
The Administration’s assertion of an emergency executive power to take any action the president believed would serve the national welfare, hadn’t been heard in an English-speaking courtroom since the mid-17th Century reign of King Charles I. While the Court rejected the claim of a presidential prerogative power, there lingered the question of which branch of government possessed the authority to meet and resolve an emergency. After all, it is not possible for Congress to write laws to govern every conceivable emergency that might arise. And it is scarcely imaginable that a government could stand idly by in the face of a crisis that threatens lives and the future of the nation simply because it had not occurred to the legislature to act. In other words, the problem of emergency could not be wished away or relegated to the confines of an academic seminar. If the president does not possess a constitutionally based emergency power, then the question arises: What is the constitutional prescription for meeting an emergency? The framers’ answer lay in resort to the ancient doctrine of retroactive ratification, which we explain in our next column.
David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.
