Before this evening's broadcast, let's talk about Youngstown Sheet & Tube Co. v Sawyer—the case that struck down Harry Truman's executive order Executive Order 10340, that limited the president's power to seize property in the midst of a national emergency: HERE WE GO! (1/19)
OKAY! So it was April 1952 and the US was in the Korean War, and the steel mills were about to go on strike. To make sure the US has a steady steel supply, President Truman issued EO 10340, that the Secretary of Commerce was going to seize control of US steel mills. (2/19)
(Important to note: Truman could have tried to use portions of the recently-passed Taft–Hartley Act to stop the steel union from striking, bc it was meant to be a way to restrict union activity, but instead chose just to seize the steel mills.) (3/19)
The steel mills, angry about being nationalized, immediately challenged it. (The move was unpopular w/the public as well.) The case eventually reached the Supreme Court and was argued May 12. On June 2, SCOTUS ruled 6-3 against the gov't—the seizure was unconstitutional. (4/19)
Even though the decision was 6-3, the majority opinion was joined by five concurrences. Basically, 6 of the justices agreed the seizure was wrong, but they all had slightly different arguments as to why. Hugo Black wrote a fairly absolutist majority opinion... (5/19)
Hugo 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." ROAST HIM HUGO (6/19)
William O. Douglas's concurrence is a lot like Hugo Black's opinion: "The branch of government [Congress] 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 had effected." (7/19)
Felix Frankfurter was less harsh on Truman, and said the President might have unemunerated, or inferred, powers, but even though "the powers of the President are not as particularized as are those of Congress... unenumerated powers do not mean undefined powers." (8/19)
Harold Hitz Burton said the seizure was wrong, but was open to the President having emergency power in like "an imminent invasion or threatened attack." Ultimately, he didn't "face the issue of what might be the President's constitutional power to meet" such threats here. (9/19)
Tom C. Clark thought the president did have power to act on his own in emergencies, but not when Congress has "laid down specific procedures to deal with the type of crisis confronting the President" as "he must follow those procedures in meeting the crisis." (10/19)
Clark wrote "that in the absence of such action by Congress, the President's independent power to act depends upon the gravity of the situation confronting the nation." But the Taft–Hartley Act was exactly the action Clark meant, so the seizure was still a hard no. (11/19)
BUT! Robert H. Jackson's concurrence was the most important, because it actually (meaningfully) addressed the limits of executive power. It lays out 3 scenarios for assessing executive power based on how Congress acts when the President faces an issue. (12/19)
The first scenario: if Congress agrees with the President on an issue and tells him to act, the President is at his most powerful, because he has his executive power and Congress's power behind him. Sounds about right! (13/19)
The second scenario: if Congress does not act on an issue, then the President acts in a "zone of twilight," where how far his power extends is dependent on the exact situation, and the Court would have to look at on a case-by-case basis. (14/19)
The Robert H. Jackson Twilight Zone is mysterious—what happens when the President must act, but Congress doesn't have a stance? His powers are certainly at their most vague. But there is one more scenario... (15/19)
The third scenario: if Congress disagrees with the President on an issue and tells him NOT to act, the President is at his least powerful, because "he can rely only upon his own constitutional powers minus any constitutional powers of Congress..." (16/19)
So. IF A PRESIDENT, perhaps, WAS GOING TO DO SOMETHING, SOMETHING CONGRESS EXPLICITLY DISAGREED WITH AND TRIED TO PREVENT HIM FROM DOING, HOW MUCH POWER DOES HE HAVE? Oh—Robert "I 💙 the Twilight Zone" Jackson just told me: "his power is at its lowest ebb." (17/19) #LowestEbbWall
The courts have the power to, and almost certainly,will, invalidate executive action in that third scenario, as they did with Truman in 1952. That's checks and balances. (18/19) #LowestEbbWall
So next time a President you know acts against the will of Congress, please remind him of that. Robert "I love the Twilight Zone" Jackson sends his regards! (19/19) #TrumpAddress #PresidentialAddress #NationalEmergency #LowestEbbWall
BONUS! Spend your evening like me, rereading the opinions for Youngstown Sheet & Tube Co. v. Sawyer. They're great fun and are far better written, I guarantee! #BoycottTrumpPrimeTime #BoycottTrumpsAddress #LowestEbbWall
