Chapter X Judicial Review

Edward S. Corwin has appraised as a misfortune the fact that “Constitutionalism has worked in this country to impress upon the discussion of public measures a legalistic--not to say theological--mold,” and has substituted “for the question of the beneficial use of the powers of government ... the question of their existence.”

The United States Supreme Court, rather than the judicial system, is popularly conceived to have a distinctive role to play in checking arbitrary government in time of emergency; and it endeavors to perform that role, albeit none too successfully at times by ruling on the constitutionality of the government power asserted during such period of crisis. However, as the chief appellate body in a judicial system which as a whole “handles a mere trickle of the great issues arising” during an emergency, the Supreme Court cannot reasonably be expected to formulate a coherent theory of democratic response to emergency whereby action designed to meet the exigencies of war can be harmonized with our constitutional system with only minimum risk to the preservation thereof.

THE SUPREME COURT’S APPROACH

In its effort to avoid the Scylla of judicial refusal to review the constitutionality of legislative or executive emergency action, and the Charybdis of declaring unconstitutional emergency action which might be vital to national survival,--i.e., in its efforts to “reconcile the irreconcilables” which Cardozo considered the essence of the judicial function--the Supreme Court has traveled various routes. The majority opinions of the Court, or the concurring or dissenting opinions of individual justices, have at times asserted that (a) the Constitution is a rigorously confining document to be inflexibly applied by the Court in measuring governmental action in war and peace; (b) there exists an emergency power which is above constitutional limitations; (c) the Constitution is a flexible charter permitting government action commensurate with need as measured by the Court.

All three of these approaches are characterized by a preoccupation with the question of the existence of the asserted emergency power. Under the first, the Court is guided by a narrow interpretation of the quantum of constitutional emergency power and appears disposed to appraise the validity of asserted authority independently of any consideration of the indispensability of the power exercised for successful resolution of the crisis. Involving covertly virtual acceptance of the principle, inter arma selent legis, the second is extremely dangerous; for if applied extensively, it would erode constitutional balance and restraint and perhaps terminate responsible government in time of peril. Insofar as it chooses to be guided by the third and purports to sanction only that which it concedes to be essential for combating an emergency, the Court not only assumes a task for which it is ill-suited but also frequently shirks its responsibilities in the performance thereof. Too often when it dares to condemn as ultra vires action believed unavoidable in the prosecution of a war, it postpones its invalidation until after hostilities have terminated. Such post mortem judicial observations afford most inadequate guides for ascertaining what will be constitutionally permissible in time of crisis.

Apart from a few brief illustrations of the aforementioned judicial approaches, we have placed major emphasis upon the Steel Seizure Case [Youngstown v. Sawyer, 343 U.S. 579 (1952)], for in that decision are to be found signally important indications of the most effective contribution which the Federal judiciary hereafter may make in sustaining responsible government. The need for a more extensive review of the Supreme Court’s appraisal of emergency power has been dispelled by Clinton Rossiter’s study of The Supreme Court and the Commander-in-Chief.

The Constitution as a Rigidly Restrictive Document: In one of the extremely rare instances in which a Supreme Court Justice has defied the Chief Executive engaged in prosecuting a war, Chief Justice Roger B. Taney in 1861, presiding as Circuit Court Judge at Baltimore, demanded that the military produce in court one John Merryman, who had been arrested. When Merryman’s jailers replied to Taney that by virtue of the President’s proclamation suspending the writ of habeas corpus, they had been directed not to respond to the writ, the venerable Chief Justice wrote a stinging opinion informing the President that the power to suspend the writ belonged to Congress alone and could not be exercised by the chief executive. Notwithstanding his ruling, Merryman was not released and the President continued his suspension of the writ, although Congress did not validate his action until 1863.

Perhaps a better example of Taney’s attitude toward the relaxing of constitutional restraints in wartime is to be found in an earlier, unpublished opinion, quoted by Swisher in his biography of the Chief Justice:

“A civil war or any other war does not enlarge the powers of the federal government over the states or the people beyond what the compact has given to it in time of war. A state of war does not annul the 10th article of the amendments to the Constitution, which declares that ‘the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people.’

“Nor does a civil war or any other war absolve the judicial department from the duty of maintaining with an even and firm hand the rights and powers of the federal government, and of the states, and of the citizens, as they are written in the Constitution, which every judge is sworn to support.”

For the other expressions of this absolutist view, we must look to opinions handed down in the immediate postwar periods of 1866 and 1946. Ex parte Milligan involved the incarceration of a northerner suspected of Southern sympathies. Could such an individual be tried, convicted and sentenced to death by a military tribunal, in an area far behind the Northern lines, in fact, in a State which had never been invaded by the Southern armies? Scores of such instances of military trial and conviction of civilians had occurred in Northern states untouched by the war.

The majority opinion for the Supreme Court disposing of this issue was written by Justice Davis and constitutes as rigid a definition of the limits circumscribing the war powers as could possibly be stated:

“The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism; but the theory of necessity on which it is based is false; for the government, within the constitution, has all the powers granted to it, which are necessary to preserve its existence....

“... It could well be said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation.”

This opinion by a Lincoln appointee to the Court was offset in part by the concurring opinion of Lincoln’s former Secretary of the Treasury. Chief Justice Chase could conceive of a situation in which Congress might find such measures “essential to the prosecution of the war with vigor and success,” and would therefore be entitled under the Constitution to resort to them. Independent of statutory authorization the President, however, could not employ such power. He was limited to executing the measures adopted by Congress.

Some eighty years later, in 1941, martial law was declared in Hawaii. From that time through the Fall of 1945, the Islands were ruled by the military. After bitter and protracted litigation, in which the federal courts in Honolulu were particularly outspoken against the type of military rule practiced in the Islands, the cases of Duncan v. Kahanamoku and White v. Steer managed to surmount the obstacle course to the Supreme Court. Duncan and White were civilians who had been apprehended during the war and tried and convicted by the military, the former for assault against a Marine sentry, and the latter for embezzlement. Both were crimes under the Hawaiian civil code. Challenging the jurisdiction of the military to try these men, a lower federal court ordered their release upon petition for habeas corpus; and on appeal the validity of the District Court order was sustained by the Supreme Court in an opinion written by Justice Black. The case turned upon a narrow interpretation of the meaning of “martial law.” The term did not, Black said, embrace trial of civilians by military courts. He did leave the door ajar, however, implying that it is not inconceivable in a situation of dire necessity, that such trial of civilians by the military might be upheld.

In a concurring opinion, however, Justice Murphy restated the principle expressed in the Milligan case. Exalting civilian supremacy over the military, he reiterated the Milligan rule that civilians may not be tried by the military when the courts are open and functioning. Not only did he agree with Justice Black that the acts of the military contravened statutory law, but he also was of the belief they were proscribed by the due process clause and therefore manifestly unconstitutional. Unlike the Civil War Justices, however, he suggested that until the courts were able to resume their functions the military might retain custody of its prisoners.

Extra-Constitutional Sources of Emergency Power: Perhaps the most expansive argument for a constitutionally sanctioned, unqualified emergency power is that developed and expressed by Justice George Sutherland in a work published in 1919, before his accession to the bench, and restated in his opinion for the Court in United States v. Curtiss-Wright Export Corporation. In Constitutional Power and World Affairs, he asserted:

“As the highest duty of the nation is self-preservation, the rights of peace must then be held in subjection to the necessities of war. This does not result in a suspension of the Constitution, as some have petulantly suggested, but it may result in a suspension of constitutional rights of the individual because they conflict with the paramount powers of war....

“This power is tremendous; it is strictly constitutional; but it breaks down every barrier so anxiously erected for the protection of liberty, of property and of life.”

The later Supreme Court opinion only removes the inconsistencies from these passages, and recognizes the war powers as extra-constitutional in nature:

“It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have been vested in the federal government as necessary concomitants of nationality.”

Justice Jackson, dissenting in the Japanese relocation case, Korematsu v. United States, advocated complete judicial abnegation of any pretended power to review the necessity for emergency action. Favoring, however, a reversal of the judgment and a “discharge of the prisoner,” Jackson added that he couldn’t subscribe to the view that the existence of “reasonable military grounds” for such a wartime program made it constitutionally valid and subject to judicial enforcement. The Court cannot

“... require such a commander in such circumstances to act as a reasonable man; he may be unreasonably cautious and exacting. Perhaps he should be....

“But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient....

“A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes a doctrine of the Constitution ... a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order....”

It is true that the existence of this power in the government in wartime, and the admitted inability of the Court to restrict it, is “an inherent threat to liberty.”

“But I would not lead people to rely on this Court for a review that seems to me wholly delusive. The military reasonableness of these orders can only be determined by the military superiors. If the people ever let command of the war power fall into irresponsible hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibilities to the political judgments of their contemporaries and to the moral judgments of history.”

Like Machiavelli, Jackson conducts an analysis in simple power terms. But while Machiavelli suggested it was possible to devise ways to circumscribe and check the exercise of emergency power by leaders in a republic, the modern liberal, true to the tradition of Locke, can conceive of no limits upon the actions of a war government but the force of public opinion.

The Constitution as a Flexible Charter: Although as recently as World War II all three strains of thought regarding emergency powers of the Chief Executive during wartime found effective expression in opinions of individual justices on the Court, the most persistent has been the attempt to compromise the range of views by positing a Constitution broad and flexible enough to encompass emergency action responsive to existing need, as measured by the Court. This has been described by Professor Corwin as “constitutional relativity.”

The “clear and present danger” doctrine, first enunciated by Justice Holmes in the Schenck case is an example of constitutional relativity. Its recent application illustrates what is to be expected when the Court, having accepted the obligation to determine the necessity for emergency action, subsequently is led by doubts as to the adequacy of its tools for measurement to redefine the conditions of an emergency in such a manner as virtually to evade the problem. It also points up some of the difficulties in consistently applying whatever criteria for measurement are developed by the Court.

Schenck had been convicted under the Espionage Act of 1917 for seeking to obstruct the draft. He had circularized a mailing list with literature opposing the World War I draft law. Included on the list were a number of persons in the military service at the time of receipt of the material. Holmes’ reasoned as follows:

“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree....

“It seems to be admitted that if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced.... If the act, ... its tendency and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime.”

Schenck remained in jail.

In a subsequent case under the same Act, involving a group of “radicals” who had disseminated a pamphlet condemning United States intervention in Russia and threatening to thwart that intervention by causing trouble on the home front, calling upon munitions workers to quit their jobs, and advocating revolution, Holmes dissented from a decision upholding their conviction. Rejecting as fallacious the conclusion of his colleagues that the surreptitious publishing of a “silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so,” Holmes maintained:

“An intent to prevent interference with the revolution in Russia might have been satisfied without any hindrance to carrying on the war in which we were engaged....

“Even if I am technically wrong and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper; I will add, even if what I think the necessary intent were shown; the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges but for the creed that they avow....”

The significance of this latter opinion would appear to derive from the fact that by employing the descriptive adjectives “silly” and “puny” Holmes transformed his clear and present danger doctrine into a vehicle for opposing conviction of persons for what would seem, on the face of the record, possibly a more aggravated offense than Schenck’s. Thus the “clear and present danger” test in application may become entangled with the sentiment of the person applying it. Secondly, it is important to note the appraisal which Holmes made as to the military significance of American intervention in Russia. In his estimation, had it been thwarted our war effort would not have been effected. As a dissenter Holmes, with the support of Brandeis, persisted in applying the “clear and present danger” test in a number of later decisions, notably the Gitlow case and the Whitney case.

In the post-World War II era, however, this test definitely appears to have been radically altered, if not conclusively rejected. Thus in Dennis v. United States, sustaining the conviction under the Smith Act of eleven top Communist Party leaders, Judge Learned Hand, presiding over the U.S. Court of Appeals for the Second Circuit, stated:

“The phrase, ‘clear and present danger,’ has come to be used as a shorthand statement of those among such mixed or compounded utterances which the Amendment does not protect.... It is a way to describe a penumbra of occasions, even the outskirts of which are indefinable, but within which, as is so often the case, the courts must find their way as they can. In each case they must ask whether the gravity of the ‘evil,’ discounted by its improbability, justified such invasion of free speech as is necessary to avoid the danger....

“... When does the conspiracy become a ‘present danger’? The jury has found that the conspirators will strike as soon as success seems possible, and obviously, no one in his senses would strike sooner. [Meanwhile, the Communist leaders claim the right to continue their activities.] That position presupposes that the Amendment assures them freedom for all preparatory steps and in the end, the choice of initiative, dependent upon the moment when they believe us, who must wait the blow, to be the worst prepared to receive it.”

By substituting “probability” for “imminence” in time, Hand substantially changed the clear and present danger doctrine. On appeal the Supreme Court, with certain modifications, in effect affirmed Hand’s redefinition.

In connection with these examples of judicial application of the “clear and present danger” doctrine it is equally pertinent to set forth Chief Justice Hughes’ famous dictum that “the war power of the Federal Government ... is a power to wage war successfully,” and to refer to the decisions arising out of World War II Japanese curfew and relocation and rent control. The Court’s approach is epitomized by Black’s reasoning in his majority opinion in Korematsu v. United States:

“But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger....

“... hardships are a part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure.”

Whether the Court is competent to fulfill the role of protector of the Constitution in wartime is highly debatable. Is the Court capable of performing the task, even if time were available? Obviously not. It does not have the information requisite for determination of current needs and the adequacy and appropriateness of government actions to meet them. It cannot be presumed to possess the fund of knowledge essential for appraising issues largely military in nature, and, consequently upon the advent of actual hostilities, it invariably displays a reluctance to countermand the executive and legislative branches, no matter how extreme their action. Furthermore, the judicial process with its haphazard accretion of cases, the manifest capacity of government to make cases moot, or failure to prosecute, frequently makes it impossible for the Court even to review significant controversies produced by action of the political departments. For every Milligan or Duncan who manages to bring his case to the Court (usually for post mortem relief), there are hundreds who submit to abusive governmental action without ever contesting the validity thereof. This alone affords adequate demonstration that the court is ineffective in maintaining constitutionalism in time of war. For fulfillment of this objective vigilance on the part of Congress and the Executive no less than the electorate is imperative.

In a democracy the function of defending liberty cannot safely be relegated to any single institution.

A MORE EFFECTIVE EMERGENCY ROLE FOR THE JUDICIARY

Judicial oversight of government emergency action has suffered from concentration upon the question of the existence of power. In the context of emergency the Court can best preserve for itself and the Federal judicial system a meaningful role in preserving constitutional processes if it is invited to measure the consistency of executive action both to executive standards and congressional grants of power, rather than to rhetorically assert a right to admonish a government--Congress and President, armed, mobilized and engaged in war, that the measures which it employs for protection of the nation are unconstitutional. In testing the vires of administrative action the courts are acting in an area vital to the preservation of responsible government, and in which cooperative legislative-executive validation of judicially disapproved action represents the essence of constitutionalism rather than constitutional immorality.

THE STEEL SEIZURE CASES

When, on April 8, 1952, President Truman issued Executive Order 10340 directing seizure of the steel industry, he set in motion a train of events which were to culminate in an historic series of concurring opinions which may herald a significant change in emphasis on the part of the Court. The effect of the majority and concurring opinions in this case is effectively to curb and subject to Congressional sanction a kind of “homemade prerogative” which the President had asserted, and to reassert the primacy of the Court’s role as a balancing agent in the constitutional system. Four days before issuance of the Executive Order, the C.I.O. United Steelworkers of America had given notice of a nation-wide strike to begin on April 9. Alleging in his Order that such a strike would undermine American attempts to fulfill international responsibilities, to maintain a steady supply of war materials to the fighting force in Korea, and to maintain the domestic economy of the nation, the President invoked “the authority vested in me by the Constitution and laws of the United States, and as President of the United States and Commander-in-Chief of the armed forces of the United States,” as his legal justification for directing the Secretary of Commerce “to take possession of” the steel plants.

On April 9th, Judge Alexander Holtzoff in the United States District Court for the District of Columbia rejected the application of Youngstown Sheet & Tube Co., et al., for an injunction and declaratory judgment protecting the mills from seizure by the Secretary of Commerce. The District Court stated two grounds in support of its ruling. (1) While it might technically run against Secretary of Commerce Sawyer, an injunction “actually and in essence ... would be an injunction against the President.” (2) The steel companies had not shown irreparable harm.

Three weeks later the steel companies instituted new proceedings before Judge David A. Pine of the District Court, District of Columbia. Injunctive relief was now sought on grounds that the seizure of the mills, not having been authorized by statute, was unconstitutional. The government’s presentation was completely prejudiced by the insistence of the Assistant Attorney General that the President’s actions be upheld on grounds of his “inherent” emergency powers.

The Court: “And is it ... your view that the powers of the Government are limited by and enumerated in the Constitution of the United States?”

Mr. Baldridge: “That is true, Your Honor, with respect to legislative powers.”

The Court: “But it is not true, you say, as to the Executive?”

Mr. Baldridge: “No.”

The Court: “So, when the sovereign people adopted the Constitution, it enumerated the powers set up in the Constitution but limited the powers of the Congress and limited the powers of the judiciary, but it did not limit the powers of the Executive. Is that what you say?”

Mr. Baldridge: “That is the way we read Article II of the Constitution.”

Judge Pine ruled that the President’s action was unsupported by law and granted the injunction.

While the government’s claim to an inherent emergency power may have been extreme, it was a natural culmination of the trend of judicial and scholarly interpretation of emergency powers through the Second World War. Two authoritative sources existed, each providing plausible underpinning for executive assertion of inherent emergency powers--unlimited by Constitution, Congress or Court. The first was judicial language such as the Sutherland dicta in United States v. Curtiss-Wright. The second embraced commentaries by persons generally considered qualified to write exegeses on the Constitution, wherein the previously unchallenged exercise of emergency power by the President has been viewed as controlling precedent legitimizing the acquisition of such power. Thus, as of 1952, in the minds of many, the President had built up imposing historical precedent for the exercise of executive discretion adequate to accomplish whatever purposes appeared to him essential to counter an emergency. In many instances, however, such action has frequently violated explicit provisions of the Constitution or of congressional statutes.

Justice Frankfurter indicated his acceptance of the validity of this line of reasoning when in his concurring opinion in the Steel Seizure cases he asserted that “... 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 Sec. 1 of Ar. II.”

By the ruling sustained, however, the District Court and the majority of the Supreme Court lent color of authority to the steel companies’ contention that “There could be no more dangerous principle--nor one more foreign to the Constitution--than a rule that past illegality can through some legerdemain serve as authority to legalize present illegality.” Justice Jackson disposed of the Solicitor General’s contention that although Congress had not provided for seizure of the steel mills, the practice of past Presidents did authorize it, by stating that while it was not surprising that the Government should seek support for nebulous, inherent powers in the customs and unadjudicated claims of preceding administrations, “a judge cannot accept [executive self-assertions of power] ... as authority in answering a constitutional question.... Prudence has counseled that actual reliance on such nebulous claims stop short of provoking a judicial test.”

The government went into the Court of Appeals, District of Columbia Circuit, seeking an order staying the injunction pending submission of a petition for certiorari to the Supreme Court. The order was granted on May 2, and the following day the Supreme Court granted certiorari, staying the District Court order pending final disposition of the cases.

Avoiding the bold and indiscreet assertion of undefined inherent powers which had so prejudiced the government’s case in the District Court, Solicitor General Philip B. Perlman on appeal to the Supreme Court submitted a brief devoted to establishing the existence of an emergency of sufficient magnitude to warrant extraordinary action on the part of the executive. As assurance of the President’s willingness to subject himself to the desires of Congress, the brief cited his communication to the Senate of April 21, 1952, offering to adhere to any positive line of action prescribed by Congress. The remainder of the brief enumerates the historical and judicial precedent affording a legal justification of the steel seizure and concludes with an argument to the effect that the proper remedy available to the steel companies was suit for just compensation in the Court of Claims.

In the light of the facts of the case counsel for the steel companies could most efficiently sustain their contentions by emphasizing the impropriety of executive seizure in plain opposition to the obvious intent of Congress expressed in a statute anticipating such emergency and explicitly providing a different solution. They avoided challenging the constitutionality in the absence of a statute of an emergency power to seize private productive facilities. In fact, the steel companies openly conceded the existence of broad emergency power. They made it clear that their view “does not mean that the Government is powerless to deal with the threat to steel production which arises from the current labor dispute.” If necessary “... Congress can legislate appropriately and specifically to protect the nation from threatened disaster.” The determining factor in assessing the legitimacy of government action in this case, however, was the nature of the legislative-executive relationship involved. Presidential action, the companies argued, could be arranged on a “spectrum” of legitimacy--at one end, cooperative executive-legislative action. Congress and President might unite in the execution of a program or Congress subsequently might ratify a prior exercise of power by the executive. At the other end, as in this case, the presidential action violates a clear congressional intent.

Here “... the statutory processes have been ignored ...,” and an early but eminent constitutional precedent was cited as squarely meeting the instant situation. An Act passed by Congress in 1799 suspended commercial intercourse between the United States and France during the undeclared naval war between the two nations. The act provided that no American vessel should be permitted to proceed to any French port under penalty of forfeiture, and authorized the seizure of all American ships bound to any French ports. President Adams instructed commanders of United States armed vessels to seize all American ships bound to or from French ports. Acting under these presidential instructions, Captain Little stopped and seized on the high seas a vessel bound from a French port. The Court through Chief Justice John Marshall held that Congress had prescribed by its legislation the manner of which seizures were to be carried into execution and had excluded the seizure of any vessel bound from rather than to a French port. And even though the executive construction was calculated to increase the effectiveness of the legislation, the executive had no right to expand the law as enacted.

Justice Black for the majority of the Court rejected the notion that unchallenged emergency action by former Presidents provided any solid legal precedent for Truman’s seizure of the steel mills. “The President’s power to issue the order must stem either from an act of Congress or from the Constitution itself.” The seizure order could not be sustained by any of the constitutional grants of executive power to the President. The President, rather than basing his order upon a specific statute, had chosen to direct “that a presidential policy be executed in a manner prescribed by the President.” Black did not question “the power of Congress to adopt such public policies as those proclaimed by the order.” The action of the President in initiating such a policy was, however, an unconstitutional arrogation of “lawmaking power” to the executive.

Justice Black avoided citation of judicial precedent in that portion of his opinion which invalidated the President’s action. The reason for this is clear, and has been stated succinctly by Professor Edward S. Corwin in comments upon the Steel Seizure cases:

“The doctrine of the case, as stated in Justice Black’s opinion of the Court, while purporting to stem from the principle of separation of powers, is a purely arbitrary construction created out of hand for the purpose of disposing of this particular case, and is altogether devoid of historical verification.”

Each of the six justices who concurred in Black’s majority opinion in the Steel Seizure cases stated his reasons in full. By far the most lucid, best reasoned, and most adequate of any of the opinions appears to be that of Justice Jackson. He avoided the oversimplification of issues which weakens Black’s opinion. Filling the theoretical lacunae which Black in his hasty advance to the target (invalidation of Truman’s action) left in his wake, Jackson recognized that the real issue of the case was not that the President had taken emergency action unsupported by a declaration of legislative policy, but that his measures had been “incompatible with the expressed or implied will of Congress.” Justice Jackson founded his opinion upon the concept of our government as a “balanced power structure.” The Constitution disperses power among the branches of government, but contemplates that practice will achieve the integration essential to effective government. “Interdependence” rather than “separateness” is the relationship that must exist. The powers of a President in time of emergency are not, as the Government had argued, comprehensive and undefined; neither are they fixed, “but fluctuate, depending upon their disjunction or conjunction with those of Congress.” Jackson enumerates alternatives of Presidential-Congressional relationships which may determine the extent of executive power:

“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....

“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....

“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....”

The seizure of the steel mills by President Truman in face of a contrary congressional policy fell into the third of these categories and left presidential power “most vulnerable to attack and in the least favorable of possible constitutional postures.” The Court could sustain the President’s action “only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress.”

Also concurring, Mr. Justice Clark relied on the precedent of Little v. Barreme. Although “the Constitution does grant to the President extensive authority in times of grave and imperative emergency” and in the absence of Congressional action “the President’s independent power to act depends upon the gravity of the situation confronting the nation,” the lesson of Little v. Barreme and sound constitutional exposition demand that “where Congress has laid down specific procedures to deal with the type of crisis confronting the President, he must follow those procedures in meeting the crisis....”

In his dissenting opinion Chief Justice Vinson maintained that the majority justices had each assumed the unarticulated major premise that the emergency was not of sufficient gravity to warrant the mode of action adopted by the President. The Chief Justice chided his colleagues for not weighing the magnitude of the emergency accurately. But this seems hardly a warrantable criticism of a group of opinions which manifested little concern with substantive constitutional limitations upon executive emergency action, but rather emphasized the necessity for compliance with a congressional program anticipating such an emergency and prescribing the mode of response to it.

THE STEEL STRIKE OF 1959

In 1959 the nation’s great steel industry once again occupied the center of a dispute which had far reaching consequences.

The dispute was that between representatives of the twelve largest steel producers in the United States and representatives of the United Steelworkers of America, the union representing most of the non-supervisory employees employed in the steel industry.

As the time for negotiating new contracts between the union and the steel companies drew near the deadline date of June 30, 1959, it became evident to representatives of both labor and management that no agreement for new contracts would be reached. Shortly before the June 30th deadline the parties agreed at the request of President Eisenhower, to extend the old agreements for two weeks. By July 15, there was still no settlement, and a strike by 500,000 steelworkers began immediately.

From July until early November the steelworkers refused to return to their jobs. Although negotiations continued between union and management representatives no settlement of the dispute was reached. The President sought during the 116 day old strike to have the strike settled without recourse to the Labor-Management Relations Act (Taft-Hartley) of 1947. On September 8, President Eisenhower wrote a letter to the United Steelworkers of America and to the steel companies in which he expressed disappointment that so little progress toward settlement of the steel dispute had been made, and he urged the parties to act expeditiously to reach agreement.

As the impact of the strike was felt in an ever-widening sector of the American economy, the President of the United States took the first step under the Labor Management Relations Act of 1947 by issuing Executive Order No. 10843 pursuant to section 206 of the Act. He appointed a board of inquiry to inquire into the issues involved in the dispute and to make a written report to him. In the Executive Order, the President expressed the opinion that the strike, if permitted to continue would imperil the national health and safety. In his statement explaining his issuance of the Executive Order, the President pointed to the “shutting off” of practically all new supplies of steel, the unemployment of hundreds of thousands of employees in steel and related industries, and the imminent threat to the economic health of the nation if production was not quickly resumed.

The Board of Inquiry submitted its written report to the President on October 19 setting forth a summary of the negotiations up to October 19 and the issues in dispute between the parties. The Board concluded that “we see no prospects for an early cessation of the strike. The Board cannot point to any single issue of any consequence whatsoever upon which the parties are in agreement.”

Upon receiving the report, the President directed the Attorney General to petition any district court having jurisdiction over the parties to enjoin the continuance of the strike and to order such other relief as might be necessary or appropriate.

On October 20, 1959, the Attorney General filed a petition in the United States District Court for the Western District of Pennsylvania, seeking an injunction against the union and the steel companies pursuant to section 208 of the Taft-Hartley Act. The Government’s petition described the requisite statutory steps which had been taken by the President, and alleged that prolongation of the widespread strike in the steel industry would imperil the health and safety of the country. In summary form the petition stated some of the consequences of the strike on employment, both in the steel industry and many other areas of the economy, on the availability of essential steel products, and on vital national defense projects. The strike had shut down approximately 85 percent of the steel producing capacity of the United States. More than 765,000 persons had been made idle by the strike. If it were allowed to continue, strike-caused unemployment would have reached three million by January 1, 1960.

A considerable amount of evidence was presented concerning the effect of the strike on the national defense program. The District Court found that certain steel products needed in connection with some aspects of the defense program were unavailable because of the steel strike.

Particular stress was put on the impact of the tie-up on the output of missiles, nuclear submarines and advanced types of rocket engines. The Defense Department reported that two plants supplying component’s for the Polaris missile had been forced to stop production for lack of alloy steel and four others had given notice of the need to do the same within a few days. Moreover, the top priority Project Mercury, an essential part of the nation’s space program was being injured. Exported steel products, vital to the support of the nation’s overseas bases, for NATO, and similar collective security groups would be cut off; continuance of the strike would impair these programs, thus imperiling the national safety.

On these facts, the District Court made the conclusory finding that the strike imperiled the national health and safety and issued an injunction. The court rejected the union’s argument that the statute is unconstitutional because it authorizes the court to issue an injunction which does not enforce a pre-existing legal obligation, but merely creates such an obligation. The court did not pass on the union’s further argument that it should, in the exercise of its equitable discretion, refuse to issue an injunction in this case.

The union promptly filed an appeal and moved the District Court for a brief stay to enable the Union to apply to Judge Staley of the Court of Appeals for the Third Circuit for a stay pending appeal.

The Court of Appeals affirmed the judgment of the District Court. Chief Judge Biggs, writing for the majority, analyzed and rejected the union’s contention that there was no “case or controversy” before the federal court which it could adjudicate in the sense required by the Constitution. Turning to the critical findings of the District Court dealing with the impact of the steel strike, the majority concluded, after a detailed review of the entire record, that the findings of the lower court were not clearly erroneous. Significantly, the majority noted that:

“We cannot accept the Union’s argument in this respect. If our conclusion is correct that there is sufficient evidence in the record of the present or future danger to national health or safety, we conclude that the danger is great enough and calls for a remedy as sweeping as the law will permit. Whether the remedy provided by the Labor-Management Relations Act is sufficient to accomplish a cessation of labor strife is a question not for this court but for Congress. We conclude, therefore, that the court below did not abuse its discretion in granting the relief which the United States prayed for.”

The Supreme Court acted with unusual speed. The Court set Tuesday, November 3, 1959 at 11 a.m. as the time for oral argument. All briefs had to be on file by noon, Monday, November 2, 1959. The injunction issued by the U. S. District Court for the Western District of Pennsylvania on October 21, 1959 as modified by the United States Court of Appeals for the Third Circuit on October 22, 1959, was stayed pending the issuance of the judgment of Supreme Court. The petition for certiorari, was filed by the union counsel at 1 p.m. The Government’s response, asking the court to deny review and thus let the injunction stand, arrived about 4 p.m.

Half an hour later the nine Justices met in conference, the session lasting 40 minutes. Reporters learned of the unscheduled meeting from the ringing of gongs that call the Justices to all formal conferences. Out of the session came an order in the case entitled United Steel Workers of America, Petitioner v. United States, et al.

The Supreme Court’s opinion was brief. In the Per Curiam Opinion, the Court stated its acceptance of, and concurrence in, the findings of the lower Federal Courts which had adjudicated the case:

“... Petitioner here contests the findings that the continuation of the strike would imperil the national health and safety. The parties dispute the meaning of the statutory term ‘national health’; the Government insists that the term comprehends the country’s general well-being, its economic health; petitioner urges that simply the physical health of the citizenry is meant. We need not resolve this question, for we think the judgment ... is amply supported on the ground that the strike imperils the national safety. Here we rely upon the evidence of the strike’s effect on specific defense projects; we need not pass on the Government’s contention that ‘national safety’ in this context should be given a broader construction and application.

“... The statute was designed to provide a public remedy in times of emergency; we cannot construe it to require that the United States either formulate a reorganization of the affected industry to satisfy its defense needs without the complete reopening of closed facilities, or demonstrate in court the unfeasibility of such a reorganization. There is no room in the statute for this requirement which the petitioner seeks to impose on the Government.”

The steel strike was finally settled on January 4, 1960, following all-night negotiations between the Vice-President, the Secretary of Labor, representatives of the steel companies and representatives of the steel companies and representatives of the steelworker’s union. Vice-President Nixon and Secretary of Labor Mitchell, acting under instructions from President Eisenhower, had been conducting negotiations for several weeks with the parties to the dispute.

While all parties involved were gratified to have this long and costly strike ended, the method of settlement does not confirm the efficacy of the emergency provision of the Taft-Hartley Act. Indeed, it is further confirmation of the fact that the American approach to emergency powers has imposed upon successive executives, not only the incentive, but the absolute need to resort to extra-statutory means for settling emergencies.