This week marks the 65th anniversary of what was to become a turning point in constitutional history, President Harry S. Truman’s order seizing the nation’s steel mills during a labor dispute. Allen Pusey has an article on the episode at the ABA Journal.
The case was to result in the Supreme Court’s 6 – 3 decision later the same year in Youngstown Sheet & Tube v. Sawyer, rebuking Truman for his lawless action. It was one of American history’s key wins for the successful assertion of a Constitutional rule of law that binds the executive branch as against claims of inherent emergency power.
But Truman’s audacious behavior was itself based on the adventures in Caesarism of earlier presidents going back at least to Woodrow Wilson, and especially those of his immediate predecessor, Franklin D. Roosevelt. Among other wartime acts of seizure defended on national security rationales, Roosevelt had sent in armed troops on Dec. 27, 1944 to seize (on grounds of defiance of war labor advisories) the Chicago‐based catalog and retail company Montgomery Ward. Known for its clothes and household items, Montgomery Ward was almost no one’s idea of a vital war industry. But its head, businessman Sewell Avery, had made himself a leading thorn in FDR’s side in opposition to the President’s New Deal policies. A famous photo showed Sewell Avery being carried bodily out on the street by military men while sitting in his executive chair.
Truman’s lawyers pointed to the various earlier seizures to back their view that a President simply must possess such powers as chief executive and commander in chief, certainly in wartime. (The Korean War was in progress.) Pusey:
…the government pressed the issue of constitutional authority. Before an astonished federal judge, lawyers argued that a president has unlimited power in a national crisis and the power to define that crisis. That executive authority had been ratified, they said, by decades of judicial silence on the matter.
Judge David A. Pine’s ruling was blunt: “Apparently, according to [the government’s] theory, several repetitive, unchallenged, illegal acts sanctify those committed thereafter. I disagree.”
When the case reached the high court, it was the concurrence by Justice Robert Jackson — himself a New Dealer — that was to go echoing down as one of the Court’s great pronouncements:
The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image. Continental European examples were no more appealing. And if we seek instruction from our own times, we can match it only from the executive powers in those governments we disparagingly describe as totalitarian. I cannot accept the view that this clause is a grant in bulk of all conceivable executive power…
This is a story that could easily have had an unhappy ending. Truman apparently expected to win the showdown, and the Court itself was full of New Dealers, many of whom had shown much deference to the government. Instead, the steel seizure cases came to stand as a milestone in constitutional law, making clear that claims of emergency, even in wartime, do not justify whatever assertions of arbitrary power a President may care to make. That’s worth celebrating these many years later.