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Steel Seizure Case

February 13, 2006

Andrew P’s comment about the Truman’s seizure of steel mills during the Korean war prompted me to do some reading on it. I was not previously aware of the case. (Truman sought to gain control of steel mills threatened by a labor strike.)

I thought I would share some of the key points from this opinion (against President Truman) because I thought they were exemplary for their clarity and sober analysis of Presidential power. Hopefully this will be a non-partisan post.

His first sentence in Justice Jackson’s opinion (scroll way, way down):

That comprehensive and undefined presidential powers hold both
practical advantages and grave dangers for the country will impress
anyone who has served as legal adviser to a President in time of
transition and public anxiety.

These are such times, no doubt. I know I sound like a Bush boot-licker, but I really am motivated more out of a sense of charity towards those in power who must make very hard decisions that have very serious real-world consequences. He continues:

The opinions of judges, no less than executives and publicists, often
suffer the infirmity of confusing the issue of a power’s validity with
the cause it is invoked to promote, of confounding the permanent
executive office with its temporary occupant. The tendency is strong to
emphasize transient results upon policies… and lose sight of enduring consequences upon the
balanced power structure of our Republic.

Several of you have written to me wondering what I and other
conservatives would do if say Hillary Clinton claimed such executive
power. I can only reply that in this case of it, I would applaud it.
National security is a very important issue to me, and from what we
know of the NSA wiretaps, Bush’s position, upon reflection,  is
acceptable to me on a legal and moral basis. Like many of the
fear-mongering assaults from the left, this too seemed to vanish into a
non-issue when examined closely.

Consider the situation our leaders are faced with:

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
U.S. 579, 635]

respected sources on each side of any question. They largely cancel each other.
And court decisions are indecisive because of the judicial
practice of dealing with the largest questions in the most narrow way.

The actual art of governing under our Constitution does not and
cannot conform to judicial definitions of the power of any of its
branches based on isolated clauses or even single Articles torn from
context. While the Constitution diffuses power the better to secure
liberty, it also contemplates that practice will integrate the
dispersed powers into a workable government. It enjoins upon its
branches separateness but interdependence, autonomy but reciprocity.
Presidential powers are not fixed but fluctuate, depending upon their
disjunction or conjunction with those of Congress. We may well begin by
a somewhat over-simplified grouping of practical situations in which a
President may doubt, or others may challenge, his powers, and by
distinguishing roughly the legal consequences of this factor of

He then goes into his famous three scenarios that contemplate the balance of power between the President and the Legislative branch from the view of the Judiciary:

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.
In these circumstances,

U.S. 579, 636]

and in these only, may he be said (for what it may be worth) to
personify the federal sovereignty. If his act is held unconstitutional
under these circumstances, it usually means that the Federal Government

U.S. 579, 637]

as an undivided whole lacks power. A seizure executed by the
President pursuant to an Act of Congress would be supported by the
strongest of presumptions and the widest latitude of judicial
interpretation, and the burden of persuasion would rest heavily upon
any who might attack it.

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
U.S. 579, 638]

the Congress from acting upon the subject.
Presidential claim to a power at once so conclusive and preclusive
must be scrutinized with caution, for what is at stake is the
equilibrium established by our constitutional system.

People of good will can debate where the Bush’s wiretap program falls. I think it’s safe to say that post 9/11 we find ourselves in that "twilight zone" of uncertainty. What is to be done? Jackson continues:

I did not suppose, and I am not persuaded, that history leaves it open
to question, at least in the courts, that the executive branch, like
the Federal Government as a whole, possesses only delegated powers. The
purpose of the Constitution was not only to grant power, but to keep it
from getting out of hand. However, because the President does not enjoy
unmentioned powers does not mean that the mentioned ones should be
narrowed by a niggardly construction. Some clauses could be made almost
unworkable, as well as immutable, by refusal to indulge some latitude
of interpretation for changing times. I have heretofore, and do now,
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.

It’s fascinating to me that those who are more likely to promote a "post-modern" view of the world, where truth is more subjective and personal, tend to adhere to a "docrinaire textualism" in regards to the Constitution ("I’m a Fourth Amendment guy"). I guess I’m "reasonable, practical implications guy". I’m happy to find that the law can allow for that too.

3 Comments leave one →
  1. Rufus T. Flinger (Timmy C) permalink
    February 13, 2006 6:03 pm


    Didn’t the court reject Truman’s steel seizure as an overreach of Presidental power?

    Truman’s argument sounds a lot like Bush, as Justice Black describes it… Needing to ignore the law because it was too cumbersome or time consuming:

    There are two statutes which do authorize the President [343 U.S. 579, 586] to take both personal and real property under certain conditions. 2 However, the Government admits that these conditions were not met and that the President’s order was not rooted in either of the statutes. The Government refers to the seizure provisions of one of these statutes ( 201 (b) of the Defense Production Act) as “much too cumbersome, involved, and time-consuming for the crisis which was at hand.”

    But the court said to Truman that he couldn’t just ignore the law and in effect act like a legislature:

    Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. 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 limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute.

    And later Justice Jackson says, that “war powers” don’t allow Truman this over-reach either:

    “Thus, it is said, he has invested himself with “war powers.”

    I cannot foresee all that it might entail if the Court should indorse this argument. Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture.

    Nor can the idea that “it’s an emergency” help Truman’s case:

    The appeal, however, that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, although [343 U.S. 579, 650] it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation…

    Their experience with emergency powers may not be irrelevant to the argument here that we should say that the Executive, of his own volition, can invest himself with undefined emergency powers.”

    And lastly in concurring with the majority, Justice Frankeferter:

    A scheme of government like ours no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority.

    Isn’t that what Bush is seeking? But then he goes on:

    No doubt a government with distributed authority, subject to be challenged in the courts of law, at least long enough to consider and adjudicate the challenge, labors under restrictions from which other governments are free. It has not been our tradition to envy such governments. In any event our government was designed to have such restrictions. The price was deemed not too high in view of the safeguards which these restrictions afford.
    I know no more impressive words on this subject than those of Mr. Justice Brandeis:

    “The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, [343 U.S. 579, 614] by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.” Myers v. United States, 272 U.S. 52, 240, 293.

    It is not a pleasant judicial duty to find that the President has exceeded his powers and still less so when his purposes were dictated by concern for the Nation’s well-being, in the assured conviction that he acted to avert danger.

    But that is what the Supreme Court decieded in a strong 5-3 decision.

  2. Count Grecula permalink
    February 14, 2006 2:58 pm

    Rufus- I appreciate all the work you put into your comments, but I feel that you completelly missed the point of this post. I thought it was an eloquent statement of the complexities and ambiguities of Presedential power during wartime. I thought we could agree at least on that. Yet your only purpose here seems to be to cull through the decision to show how clear it is that Bush has crossed the line into becoming a tyrant.

    Your points are good points, but they don’t refute the ones I make as much as raise new ones you then ask me to refute. I don’t want to be evasive, but it is my blog, and I can frame debate however I want.

    I would really appreciate it if you try to refute the points that I make, rather than supply a stream of “more or less apt quotations” from the opposite side, even from the same decision.

    I’m looking for a “scope and elasticity afforded by what seem to be reasonable, practical implications” whereas I feel opponents of the President are looking to a “rigidity dictated by a doctrinaire textualism.”

    Also, nowhere do I get the sense that you appreciate that the President’s ” purposes were dictated by concern for the Nation’s well-being, in the assured conviction that he acted to avert danger.” Instead you, Ken and many others only see this as some nefarious power grab. I think it’s well within the “twilight zone” at the minimum, a clear and reasonable extension of his CiC duties in a way the seizures were not.

    I should add that I think this case was probably decided correctly, but I’m not sure how the specifics of Truman’s case relate to Bush’s. If the AUMF is a congressional declaration of war, then the President is empowered to execute it. Interception of enemy communications, even ones to US Persons, seems reasonable and practical to me, especially since FISA’s intent was to regulate domestic surveillance during peacetime. I believe (and I could be wrong) that the Korean War was an “undeclared police action” or some such at the behest of the UN, which also makes it difference.

  3. Rufus T. Flinger (Timmy C) permalink
    February 15, 2006 10:41 am

    Hey Count:

    “I don’t want to be evasive, but it is my blog, and I can frame debate however I want… I would really appreciate it if you try to refute the points that I make, rather than supply a stream of “more or less apt quotations” from the opposite side, even from the same decision.”

    Sorry, I don’t want you to feel that in my questioning some of the fames you set that I don’t hear them, and that I just talk past you, which would do very little good to anyone.

    I’ll work on that.


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