The Steel Seizure Case and Inherent Presidential Power

Article excerpt

The historic American debate on the nature and scope of executive authority, punctuated and dramatized by the renowned eighteenth-century exchange between James Madison and Alexander Hamilton, (2) and spiked in our time by sweeping assertions of unilateral presidential power in foreign affairs and warmaking, (3) and by claims of privilege, secrecy and immunity in domestic matters, (4) took center stage once more in the extraordinary case of Youngstown Sheet & Tube Co. v. Sawyer. (5) Justly celebrated in the pages of this volume, on the occasion of its 50th anniversary, for its landmark status and deserving rank in the pantheon of great cases--alongside Marbury, (6) McCulloch, (7) and Brown (8)--Youngstown has been assured of immortality in the annals of constitutional jurisprudence. The Steel Seizure Case, like the Pentagon Papers Case (9) and the Watergate Tapes Case, (10) was suffused with richly-textured historic dimensions. Moreover, it triggered high political drama and pitched conflict, generated great tides of public opinion, and plunged the Supreme Court into a white-hot cauldron of decision-making responsibility in which it faced issues of surpassing importance to the nation, including the fundamental question of the president's power, if any, to meet an emergency in the absence of statutory authorization. When measured against Youngstown, C. Herman Pritchett observed, "all other [separation of powers] cases pale into insignificance." (11) Youngstown featured the most thorough judicial exploration of presidential powers in the history of the Republic, (12) and it constituted the most significant judicial commentary in the 20th century on the limits of those powers. (13) Indeed, it represented "one of the rare occasions when the Court has rebuked a presidential act in wartime." (14) Perhaps it is best remembered, as Justice John Paul Stevens declared in Clinton v. Jones, as "the most dramatic example" of the Court's authority to review the legality of an executive action, (15) for in the end it "struck a blow for the separation of powers" and reaffirmed the principle of presidential subordination to the rule of law. (16)

It is doubtful that even the most prescient of soothsayers could have foreseen the emergence of a landmark case--a case that would eclipse all other separation of powers cases--in President Truman's announcement on April 8, 1952 that he had issued that day Executive Order No. 10340 directing Secretary of Commerce Charles Sawyer to seize the steel industry for the purpose of averting a nationwide strike, which he feared would jeopardize the United States' prosecution of its military efforts in the Korean War as well as other foreign policy and national security interests in Europe. (17) Chief Justice William H. Rehnquist, who at the time served as a clerk to Justice Robert H. Jackson, has observed that "the case had something of an O. Henry ending about it." (18) He wrote:

 
   Using the traditional methods of predicting in advance how a court will 
   decide a case, the result reached by the Supreme Court of the United States 
   in the Steel Seizure Case was contrary to what one would have expected at 
   the time the lawsuit was instituted. There were good reasons, amply 
   supported by precedent, why the Court need never have reached the 
   constitutional question in the case. If the Court were to reach the 
   constitutional question, precedent did not dictate one answer in preference 
   to another. The Supreme Court consisted of nine Justices appointed by two 
   Democratic Presidents, reviewing a challenge to the actions of President 
   Truman, himself a Democrat, who had appointed four of the nine justices. 
   The Supreme Court has a commendable record of eschewing partisan politics 
   in its decision making, but in a constitutionally uncharted area such as 
   this, one might have at least thought that a tie would count for the 
   runner, the runner being President Truman. …