Executive Power in Youngstown's Shadows

Beginning of article

INTRODUCTION

"We can hardly expect that the lasting outgrowth of the steel controversy will be the Youngstown case." (1) This projection captures the sentiment of much of the early academic commentary (2) on the Supreme Court's decision invalidating President Truman's seizure of the nation's steel industry in the spring of 1952. (3) For Professor Edward S. Corwin, the decision was "a judicial brick without straw"--the opinion of the Court resting on a "purely arbitrary construct," (4) Justice Jackson's "rather desultory" concurring opinion containing "little that is of direct pertinence to the constitutional issue," (5) and the other concurring opinions contributing nothing "to the decision's claim to be regarded seriously as a doctrine of constitutional law." (6) Scholars who observed the crisis and pronounced the Court's decision "destined to be ignored" (7) might have been surprised at the thought that, fifty years later, a law review would devote all of its pages to a commemoration of the Youngstown case.

The claims of Youngstown's detractors likewise would surprise modern first-year law students, who find the case prominently featured in the separation of powers section of their constitutional law case books, (8) who highlight Justice Jackson's discussion of three categories of executive action, (9) and who extract from the majority and concurrences evidence of "formal" versus "functional" analysis in separation of powers disputes. (10) The weight of scholarship, too, has shifted. Many who study the balance of congressional and presidential power, especially in the area of foreign affairs, view Justice Jackson's concurrence in Youngstown as providing a sensible framework for resolving the conflicting claims of the two branches (11) and decry this framework's alleged erosion in subsequent case law. (12) One constitutional scholar even found Justice Jackson's opinion to be--as of 1996, at least--"the most truly intellectually satisfying ... opinion in our two-hundred-year constitutional history." (13) And some regard Youngstown not only as a significant case in the Supreme Court's separation of powers jurisprudence, but also as a turning point in the Court's handling of politically charged constitutional questions. (14)

In light of the importance the legal academy attaches to the Youngstown case, it is perhaps hazardous to submit that Professor Corwin had the better of the argument. I will not go so far as to say that. The Youngstown decision well deserves its status as a landmark case in our constitutional jurisprudence. But Youngstown, I will argue, is a landmark case for what it symbolizes, not for what it says. And it is dangerous for us to confuse the two.

What Youngstown symbolizes is the notion that actions do not achieve the status of law merely because they are the actions of the government. The case no doubt deters some executive conduct of questionable legality. And the case will always add weight to the proposition that the judiciary has the power, and in some cases the obligation, to review and invalidate the actions of a coordinate branch of government on separation of powers grounds. Courts invoke Youngstown in the most delicate of cases involving abuses of power, even when the case is quite far off point. (15)

But courts and scholars put Youngstown to more work than this. The case has special significance for disputes involving the relative powers of Congress and the President in foreign affairs matters--where the Constitution says little, controversies are frequent, judicial resolutions are few, and the stakes are high. (16) Although not itself a paradigmatic foreign affairs case, Youngstown is thought to bear on separation of powers questions touching on foreign affairs in a number of ways. First, for those who would argue that the President lacks any independent, "implied" powers to formulate and carry out foreign policy, the Court's opinion in Youngstown stands as the high water mark. (17) Second, Justice Jackson's concurrence offers something of a blueprint for resolving disputes between the President and Congress, bringing together, as the Court put it in 1981, "as much combination of analysis and common sense as there is in this area." (18) Scholars who argue that the Constitution lodges most foreign affairs powers in Congress find in Justice Jackson's concurrence a recognition of congressional primacy--that presidential powers fluctuate, "depending upon their disjunction or conjunction with those of Congress." (19)

I will argue that the lessons that the case--and in particular, Justice Jackson's concurrence--offers in the foreign affairs area are less clear and less helpful than is often believed. It is a mistake to assume that Youngstown carries a doctrinal weight equal to its rhetorical or symbolic power. First, to the extent that the Youngstown decision is thought to foreclose claims of implied presidential power in foreign affairs, the better reading of the case suggests otherwise. Second, Justice Jackson's tripartite framework for evaluating executive action is not a framework at all, nor did he necessarily intend it to be. (20)

More important, Justice Jackson's opinion sends mixed signals about who is best able to police executive conduct--Congress or the courts. Justice Jackson clearly envisioned a role for the courts in policing the boundaries between different categories of executive action, to determine which actions Congress has expressly or impliedly authorized or forbidden. Many scholars take this to mean that courts should narrowly construe statutes conferring foreign affairs authority on the Executive Branch; to do otherwise is to entrench a shift in power from Congress to the President. (21) Justice Jackson seemed to envision a smaller role for courts, however, when Congress is silent. In that situation, he suggested, "any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law." (22) Even some scholars who believe that Congress has primary foreign affairs power acknowledge a diminished role for courts in this category of cases; they assume that the President possesses some "initiating" (23) or "concurrent" (24) powers and can exercise those powers until Congress acts. (25) As a result, Congress bears the primary responsibility for policing the Executive Branch. Those who believe that the President has more substantial foreign affairs authorities, of course, are likely to share this view that a court's role in reviewing executive action in the face of congressional silence is limited. (26)

The guidance scholars draw from Justice Jackson's concurrence, I will argue, is precisely backwards. Courts faced with the question whether a statute authorizes challenged executive conduct should do no more than apply ordinary delegation principles, leaving Congress to legislate against the backdrop of those principles. To require courts to construe foreign affairs delegations narrowly solely to preserve supposed congressional foreign affairs prerogatives is to force courts to make policy judgments better left to Congress. When the question is how to evaluate presidential conduct not traceable under ordinary delegation principles to a statutory authorization, however, the calculus is different. Any such conduct must rest on the President's constitutional powers--whether Congress is silent or opposed. In other words, the notion that presidential powers "fluctuate" (27) is misleading. The Constitution either grants the President a particular power or it does not. Congressional silence cannot create power where none exists; at most, silence might indicate something about what Congress believes the President's constitutional authority to be.

To the extent that Justice Jackson's approach suggests that law has little role to play when Congress is silent, that approach contains the seeds of a misplaced political question doctrine, allowing courts to skirt questions of executive power even when other justiciability requirements are met. Once this route of judicial deference is open, it is all too tempting for courts to follow it--not only when Congress is silent, but when the President's conduct conflicts with congressional policy. In short, courts tend to avoid exploring the President's constitutional foreign affairs powers--express or implied--instead finding congressional authorization in questionable circumstances or simply assuming that presidential action should stand as long as Congress is silent. This failure to develop a coherent theory of presidential power, I argue, has an impact far beyond the specific questions about the distribution of powers in the few separation of powers cases that courts actually face. Executive Branch lawyers regularly encounter complicated questions about the President's foreign affairs power. To the extent that courts' consideration of executive power questions would limit the acceptable and persuasive forms of argument available to the Executive Branch, courts' silence compromises one of the most effective restraints on executive conduct. And to the extent that courts' consideration of executive power questions would affirm the Executive Branch's mode of analysis, courts' silence unnecessarily prompts others to doubt the legitimacy of Executive Branch views.

The Article has three parts. Part I introduces the circumstances of the steel crisis and outlines the Supreme Court's response to President Truman's seizure of the steel mills. As is well known, much of the reasoning in the concurring opinions of Justices who joined the majority is in tension with the rationale underlying the opinion of the Court. This tension fueled the critical commentary of the day. Among the questions observers expected the Court to resolve was whether the President can lay claim to powers not expressly enumerated in the Constitution. The Court appeared to answer that question in the negative, but the concurring opinions deprived that answer of its force. Indeed, for all of the rhetoric in the opinion to the contrary, the logic of Justice Jackson's concurrence depends on acceptance of at least some implied presidential powers.

In Part II, I discuss the significance of the Youngstown opinions in separation of powers controversies, particularly before the Supreme Court. I postpone treatment of cases touching on the proper allocation of power between the President and Congress in foreign affairs and national security matters. In the balance of cases, courts most often invoke the Youngstown opinions--particularly the concurrences of Justice Frankfurter and Justice Jackson--to justify a flexible, pragmatic approach to separation of powers questions. But this fact alone cannot account for Youngstown's prominence in our constitutional jurisprudence, because the language in the concurrences is sufficiently open-ended to support a number of different outcomes in any given case. What gives Youngstown its power is that it stands as an example of a court invalidating the actions of a coordinate branch of government on separation of powers grounds where the court perceives an abuse of office. When a court wields this weapon, it can take some cover in Youngstown's shadows. And the possibility of a court exercising this power disciplines the Executive Branch.

In Part III, I turn to Youngstown's role in questions involving the balance of presidential and legislative power in foreign affairs and national security. The Youngstown case is of special importance to scholars who believe that the Constitution is best read to lodge most foreign affairs powers with Congress. They criticize courts' treatment of disputes between the Executive and Congress on two grounds: that courts too broadly interpret congressional delegations; and that courts ignore opposition to executive conduct, painting executive action in a light favorable to the Executive Branch. As I will argue, what courts often treat as questions about congressional delegation and congressional intent are really questions about the President's constitutional powers. The approach of Justice Jackson's concurrence places too much reliance on courts to police executive action by locating ill-defined boundaries between categories that turn on Congress's implied will; and too little reliance on courts to identify and limit presidential powers based on inferences from the text and structure of the Constitution.

I. THE YOUNGSTOWN DECISION AND THE SCOPE OF PRESIDENTIAL POWER

For modern students of constitutional law, the Youngstown decision often provides the first exposure to the Supreme Court's treatment of disputes concerning the appropriate distribution of powers among branches of the federal government. (28) It is convenient, then, for teachers to use the opinion of the Court by Justice Black and the concurring opinions, particularly those of Justice Jackson and Justice Frankfurter, to illustrate the divergent approaches to resolving separation of powers controversies that resurface in the Court's later decisions. Something is lost, however, in the effort to simplify the case to extract warring strands of formal and functional reasoning. What frustrated Corwin and his contemporaries was that the opinion of the Court and the concurring opinions of several Justices who joined it differed not only in the methodology they applied, but also in the answer they provided to what seemed to be the crucial question in the case--whether the President might possess authority, either as part of the "executive Power" the Constitution vests in him (29) or otherwise implied from the text and structure of the Constitution, to take certain action in a national emergency in the absence of specific congressional authorization. (30) Far from concluding that the President lacked such power in all circumstances, a majority of Justices on the Youngstown Court left the question open or embraced the concept of implied power. As I will argue in Parts II and III, this aspect of the case's treatment of presidential power is often ignored, or its significance misunderstood.

A. THE STEEL SEIZURE

The circumstances surrounding President Truman's executive order directing his Secretary of Commerce to take control of the steel industry in April of 1952 have been recounted extensively elsewhere. (31) In brief, the order responded to a dispute between the nation's steel companies and their employees over the terms of new collective bargaining agreements to replace those set to expire on December 31, 1951. When negotiations failed, the employees' representative, the United Steelworkers of America, C.I.O., gave notice of its intention to call a strike upon the expiration of the existing agreements. (32) On December 22, 1951, after other federal mediation efforts were unsuccessful, President Truman referred the dispute to the federal Wage Stabilization Board to recommend a settlement. (33) The steel companies rejected the settlement, and after further negotiations stalled, the union renewed its notice of a nationwide strike to begin on April 9. (34)

A day before the strike was to begin, the President issued Executive Order 10340. (35) The order's preamble stated that "steel is an indispensable component of substantially all ... weapons and materials" needed by U.S. armed forces then engaged in the Korean conflict. (36) As a result, "a work stoppage would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field." (37) The order directed the Secretary of Commerce "to take possession of all or such of the plants, facilities, and other property" of the steel companies "as he may deem necessary in the interests of national defense" (38) and authorized the Secretary to prescribe terms and conditions of employment. (39) In turn, the Secretary issued orders taking possession of most of the steel mills and directing the presidents of the companies to maintain their operations. (40) On April 9, 1952, the President reported these steps to Congress, which took no action. (41)

The steel companies immediately filed suit in federal district court in the District of Columbia, claiming that the President and Secretary of Commerce lacked authority to issue the orders in question and seeking preliminary and permanent injunctions against their enforcement. On April 29, the district court granted a preliminary injunction restraining the Secretary from "continuing the seizure and possession of the plants ... and from acting under the purported authority of Executive Order No. 10340." (42) The court of appeals immediately stayed the injunction, (43) and both the steel companies and the Government petitioned the Supreme Court for immediate review. Meanwhile, the White House had encouraged the industry and the union to reach an agreement and indicated that in the absence of such an agreement, the government would grant a wage increase. When the Supreme Court granted review, it continued but modified the court of appeals' stay of the district court's injunction: the Court directed the Secretary of Commerce not to alter the terms and conditions of employment. (44) At that point, the ongoing talks between the companies and the leaders of the union collapsed, and both sides awaited the Supreme Court's decision on the validity of the seizure. (45)

B. THE COURT'S DECISION

On June 2, 1952, less than three weeks after hearing oral argument in the case, the Court affirmed the district court's judgment by a 6 to 3 vote. Writing for the majority, Justice Black devoted a mere three-and-a-half pages to resolving the constitutional question. (46) The Court reasoned that "[t]he President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself." (47) Because it found no statute that expressly or impliedly authorized the President to take possession of the steel mills, nor any express constitutional language granting the power, the Court turned to the claim that "presidential power should be implied from the aggregate of ... powers under the Constitution. (48) The Court focused on three provisions of Article II: section 2, designating the President as Commander in Chief of the armed forces; section 1, stating that "The Executive Power shall be vested in a President"; and section 3, providing that the President "shall take Care that the Laws be faithfully executed." The Court declined to sustain the order under any of these provisions. The Court viewed the power to dictate the terms under which the government could take possession of private property as a "lawmaking" power--as resting within Congress's "exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution" in the federal government. (49) Because the seizure of property was "a job for the Nation's lawmakers, not for its military authorities," the designation of the President as Commander in Chief could not justify the action. (50) And the provisions granting the President the executive power and requiring that he take care that the laws be faithfully executed "refute[] the idea that he is to be a lawmaker." (51) The Court acknowledged the Government's argument that "other Presidents without congressional authority have taken possession of private business enterprises in order to settle labor disputes"; even if this were true, "Congress has not thereby lost its exclusive constitutional authority" to make laws. (52)

Taken at face value, the opinion for the Court suggests that the President possesses only those powers specifically enumerated in the constitutional text, and that some of those constitutional powers (including the "executive Power" and the Commander in Chief authority) should be construed narrowly. No other powers can be inferred from the constitutional text or from the structure the Constitution creates. But all four of the Justices who joined Justice Black's majority opinion--Justices Frankfurter, Douglas, Jackson, and Burton--wrote separately, highlighting varying degrees of disagreement with Justice Black's rationale. (53) Indeed, in an unusual separate statement appended to the Court's opinion, Justice Frankfurter noted the importance of "[i]ndividual expression of views in reaching a common result," because "differences in attitude toward [the] principle [of separation of powers] can hardly be reflected by a single opinion for the Court." (54) Only Justice Douglas's opinion explicitly embraced Justice Black's characterization of the President's action as "legislative" in nature. (55) He reasoned that the Court "could not sanction the seizures and condemnations of the steel plants in this case without reading Article II as giving the President not only the power to execute the laws but to make some," a step that would "most assuredly alter the pattern of the Constitution." (56) In light of the commitment of the lawmaking power to Congress, the President could not claim an implied power to seize the steel mills. Even if the President could take certain action as a matter of "expediency or extremity," (57) that action would not be lawful until ratified by Congress.

For the other three Justices who joined Black's opinion--Justices Frankfurter, Jackson, and Burton--and for Justice Clark, who concurred only in the judgment, (58) the case turned not on the characterization of the seizure as a legislative act or on a rejection of broad presidential powers, but on the perception that the President's action in seizing the steel mills conflicted with the authorities Congress had provided the President to deal with potential industrial disruptions. In a now famous passage of his opinion, Justice Jackson suggested that presidential powers "are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress." (59) He offered the following grouping of presidential actions and their legal consequences:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate....

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. (60)

Justice Jackson viewed President Truman's action as falling within the third category, as a measure "incompatible with the expressed or implied will of Congress." (61) Justices Frankfurter and Burton agreed, as did Justice Clark.

Three statutes were relevant to the analysis. First, with the Taft-Hartley Act, Congress had authorized the President to respond to a threatened work stoppage that would "imperil the national health or safety" by appointing a board of inquiry to gather facts on the dispute (62) and, upon receiving that board's report, seeking injunctive relief for an eighty-day period. (63) Second, the Selective Service Act of 1948 permitted the President to take possession of facilities that failed to fill orders placed by the Government for goods required for national defense purposes. (64) Third, the Defense Production Act of 1950 authorized the President to stabilize prices and wages in industries for various purposes, including to prevent disruption of resources necessary for the national defense, (65) and to mediate labor disputes affecting the national defense. (66) As amended in 1951, the statute authorized the President to institute condemnation proceedings to requisition property when needed for the national defense. (67)

Justices Frankfurter, Jackson, and Burton, as well as Justice Clark, emphasized that the President's seizure of the steel mills did not comport with the requirements of these statutes. President Truman had vetoed the Taft-Hartley Act (68) and elected not to invoke its provisions during the steel crisis. (69) In any event, the statute did not specifically authorize seizure; in fact, the House had considered and rejected an amendment that would have authorized the President to seize an industry to preserve the public health and security. (70) One of the Senate sponsors of the legislation specifically noted that the Senate Labor committee had considered and rejected including a seizure provision. (71) The President could not invoke the Selective Service Act, because the Government had not placed any orders directly with the steel plants. (72) And although the President had relied on the Defense Production Act and his Executive Order implementing it to refer the steel dispute to the Wage Stabilization Board, (73) he had not instituted condemnation proceedings under the Act's provisions. (74)

Having established that the President's action was inconsistent with the mechanisms Congress provided the President for responding to threatened industrial disruptions, each of the Justices went on to discuss whether the President's action could nevertheless be sustained as an incident of the President's constitutional authority. Here again, the concurring opinions are in tension with Justice Black's majority opinion. Focusing on the Take Care Clause of Article II, section 3, and the Vesting Clause of Article II, section 1, Justice Frankfurter rejected Justice Black's suggestion that past executive practice is irrelevant to an assessment of the President's constitutional authority:

 
   The Constitution is a framework for government. Therefore the way the 
   framework has consistently operated fairly establishes that it has operated 
   according to its true nature.... In short, a systematic, unbroken, 
   executive practice, long pursued to the knowledge of the Congress and never 
   before questioned, engaged in by Presidents who have also sworn to uphold 
   the Constitution, making as it were such exercise of power part of the 
   structure of our government, may be treated as a gloss on "executive Power" 
   vested in the President by [section] 1 of Art. II. (75) 

Justice Frankfurter concluded, however, that the instances of past seizures1 the Government identified did not amount "in number, scope, duration or contemporaneous legal justification" to the kind of unquestioned executive practice that could be viewed as a gloss on executive power. (76) Similarly, Justice Jackson argued that it was important to give "to the enumerated powers the scope and elasticity afforded by what seem to be reasonable, practical implications instead of the rigidity dictated by a doctrinaire textualism." (77) But he too rejected the notion that the historical precedents the Government cited provided "color of legality" for President Truman's actions. (78)

As this discussion indicates, a majority of the Justices, even those who joined Justice Black's opinion, declined to embrace Justice Black's assertions that the President lacks any implied powers, and that courts should narrowly construe the President's enumerated powers. (79) For Justices Frankfurter, Jackson, Burton, and Clark, the fact that Congress had provided procedures for dealing with industrial strife that were at odds with President Truman's actions in the case was decisive. On their reading, the dispute was not so much about implied presidential power as it was about implied and "plenary" presidential power. (80) In other words, the question was not whether the President had the power to initiate a course of conduct when Congress had not acted, but whether that course of conduct could be sustained when Congress had prescribed a far different course. Justice Frankfurter thought it unnecessary to pass on the scope of the President's powers:

 
   The issue before us can be met, and therefore should be met, without 
   attempting to define the President's powers comprehensively.... We must ... 
   put to one side consideration of what powers the President would have had 
   if there had been no legislation whatever bearing on the authority asserted 
   by the seizure.... (81) 

Justice Burton likewise viewed President Truman's action as distinct from steps taken when "Congress takes no action and outlines no governmental policy." (82) Justices Burton and Clark even observed that there might be situations where an exercise of a presidential power not specifically enumerated could survive in the face of congressional opposition. Justice Burton acknowledged the possibility that implied powers exist, but found them "unavailable" to the President in the current situation, which was "not comparable to that of an imminent invasion or threatened attack," (83) while Justice Clark explicitly embraced the concept of implied powers: "In my view ... the Constitution does grant to the President extensive authority in times of grave and imperative national emergency. In fact, to my thinking, such a grant may well be necessary to the very existence of the Constitution itself." (84) And the three dissenting Justices were of course prepared to recognized an implied, (85) and arguably plenary, (86) power in Youngstown itself.

Justice Jackson's position on the subject was perhaps the most ambiguous, but even his opinion can be read as accepting that the President possesses at least some implied powers. He rejected the notion that the Court could declare the existence of "inherent" presidential powers as broad as necessary to meet any emergency. But in disclaiming the existence of inherent powers, Justice Jackson appeared to be responding to two specific claims about presidential power. The first claim, most forcefully pressed in United States v. Curtiss-Wright Export Corp., (87) was that the President's foreign affairs powers are not delegated by the Constitution, but are implicit in the nature of sovereignty and inherent in the office itself. (88) The second claim was that powers "never expressly granted" can "accru[e] to the office [of the President] from the customs and claims of preceding administrations." (89) To accept these particular claims about presidential power, one must acknowledge that presidential power can derive from sources other than the Constitution. (90) Justice Jackson was not prepared to do so. But to reject these inherent power claims, one need not also reject the argument that the constitutional text and structure themselves imply the existence of powers not expressly enumerated. Indeed, Justice Jackson's recognition of a "zone of twilight" in which the President and Congress "may have concurrent authority, or in which its distribution is uncertain," presupposes …