National Security Law from Youngstown

The case of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) is a major source of national security case law. The background of the case is the Korean War. Steel was an indispensable resource in the battle to keep the northern communists at bay. Stateside, labor disputes were taking place. A workers’ strike threatened to interrupt the supply of steel needed to carry on the war. Congress had considered, in 1947, authorizing domestic seizures in the Taft-Harley Act as a means of preventing labor stoppages, but ultimately those provisions did not become law. The Taft-Harley Act became law over the President’s veto. On April 3, 1952 (a few hours before the nationwide strike was scheduled to begin), without Congressional authority, President Truman issued an executive order requiring the Secretary of Commerce to take over the majority of America’s steel mills until such time as they no longer constitute an obstacle to the country’s war operations.

The steel mills protested the taking and sued Sawyer (the Secretary of Commerce) in the D.C. District Court. The District Court held the executive order unconstitutional. The Supreme Court of the United States upheld the District Court.

The Supreme Court Justices’ votes in Youngstown as illustrated by Oyez.

The opinion of the Court was written by Justice Black and joined by Frankfurter, Douglas, Jackson, and Burton. Justice Frankfurter, Justice Douglas, Justice Jackson, and Justice Burton each wrote concurring opinions. Though Justice Clark concurred in the result, he did not join the Court’s opinion. Three justices dissented: Chief Justice Vinson wrote the dissenting opinion joined by Justice Reed and Justice Minton.

Textualism (Black)

The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (opinion of the Court)

The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that “The executive Power shall be vested in a President”; that “he shall take Care that the Laws be faithfully executed”; and that he “shall be Commander in Chief of the Army and Navy of the United States.” The order cannot properly be sustained as an exercise of the President’s military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though “theater of war” be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities. 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. The first section of the first article says that “All legislative Powers herein granted shall be vested in a Congress of the United States.”

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (opinion of the Court)

Historical Gloss (Frankfurter)

Apart from his vast share of responsibility for the conduct of our foreign relations, the embracing function of the President is that “he shall take Care that the Laws be faithfully executed . . . .” Art. II, § 3. The nature of that authority has for me been comprehensively indicated by Mr. Justice Holmes. “The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.” Myers v. United States, 272 U. S. 52, 177. The powers of the President are not as particularized as are those of Congress. But unenumerated powers do not mean undefined powers. The separation of powers built into our Constitution gives essential content to undefined provisions in the frame of our government.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 610 (1952) (Frankfurter, J., concurring).

Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. 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 § 1 of Art. II.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952)

A Taking in the Constitutional Sense (Douglas)

The legislative nature of the action taken by the President seems to me to be clear. When the United States takes over an industrial plant to settle a labor controversy, it is condemning property. The seizure of the plant is a taking in the constitutional sense… The President has no power to raise revenues. That power is in the Congress by Article I, Section 8 of the Constitution. The President might seize and the Congress by subsequent action might ratify the seizure. But until and unless Congress acted, no condemnation would be lawful. The branch of government that has the power to pay compensation for a seizure is the only one able to authorize a seizure or make lawful one that the President has effected. That seems to me to be the necessary result of the condemnation provision in the Fifth Amendment.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 630-32 (1952) (Douglas, J., concurring)

The Three Tiers of Presidential Power (Jackson)

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.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring)

Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).

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, 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 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 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.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring)

No Imminent Invasion (Burton)

In the case before us, Congress authorized a procedure which the President declined to follow. Instead, he followed another procedure which he hoped might eliminate the need for the first. Upon its failure, he issued an executive order to seize the steel properties in the face of the reserved right of Congress to adopt or reject that course as a matter of legislative policy. This brings us to a further crucial question. Does the President, in such a situation, have inherent constitutional power to seize private property which makes congressional action in relation thereto unnecessary? We find no such power available to him under the present circumstances. The present situation is not comparable to that of an imminent invasion or threatened attack. We do not face the issue of what might be the President’s constitutional power to meet such catastrophic situations.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 659 (1952)

Times of Grave and Imperative National Emergency (Clark, concurring in judgment)

In my view—taught me not only by the decision of Mr. Chief Justice Marshall in Little v. Barreme, but also by a score of other pronouncements of distinguished members of this bench—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. As Lincoln aptly said, “[is] it possible to lose the nation and yet preserve the Constitution?” In describing this authority I care not whether one calls it “residual,” “inherent,” “moral,” “implied,” “aggregate,” “emergency,” or otherwise. I am of the conviction that those who have had the gratifying experience of being the President’s lawyer have used one or more of these adjectives only with the utmost of sincerity and the highest of purpose.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 662 (1952) (Clark, J., concurring in judgment)

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