Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

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,[753] 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.[754]

THE STEEL SEIZURE CASES[755]

When, on April 8, 1952, President Truman issued Executive Order 10340 directing seizure of the steel industry,[756] 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”[757] 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.[758] 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.[759] 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.[760]

Three weeks later the steel companies instituted new proceedings before Judge David A. Pine of the District Court, District of Columbia.[761] Injunctive relief was now sought on grounds that the seizure of the mills, not having been authorized by statute, was unconstitutional.[762] 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.[763]

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.”[764]

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.[765] 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.[766] In many instances, however, such action has frequently violated explicit provisions of the Constitution or of congressional statutes.[767]

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.”[768]

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.”[769] 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.”[770]

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.[771] The order was granted[772] on May 2, and the following day the Supreme Court granted certiorari, staying the District Court order pending final disposition of the cases.[773]

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.[774] 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.[775] The remainder of the brief enumerates the historical and judicial precedent affording a legal justification of the steel seizure[776] 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.[777]

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.”[778] 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[779]—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.[780] At the other end, as in this case, the presidential action violates a clear congressional intent.[781]

Here “... the statutory processes have been ignored ...,”[782] 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.[783]

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.[784] “The President’s power to issue the order must stem either from an act of Congress or from the Constitution itself.”[785] The seizure order could not be sustained by any of the constitutional grants of executive power to the President.[786] 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.”[787] 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.[788]

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.”[789]

Each of the six justices who concurred in Black’s majority opinion in the Steel Seizure cases stated his reasons in full.[790] 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.”[791] Justice Jackson founded his opinion upon the concept of our government as a “balanced power structure.”[792] 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.”[793] 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....”[794]

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.”[795]

Also concurring, Mr. Justice Clark relied on the precedent of Little v. Barreme.[796] Although “the Constitution does grant to the President extensive authority in times of grave and imperative emergency”[797] and in the absence of Congressional action “the President’s independent power to act depends upon the gravity of the situation confronting the nation,”[798] 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....”[799]

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.[800] 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.[801]

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[802] by issuing Executive Order No. 10843 pursuant to section 206 of the Act.[803] 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[804] setting forth a summary of the negotiations up to October 19 and the issues in dispute between the parties.[805] 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.”[806]

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.[807] 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.[808] 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.[809] 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.”[810]

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.[811]

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.”[812]

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.

Chapter XI
CONCLUSIONS

The doctrine of constitutional dictatorship is inappropriate for analysis of the problem of democratic response to emergency.

Judicial review of a chief executive’s finding that an emergency exists amounts to involvement of Supreme Court Justices in a genre of decision-making which should more properly be performed by the President and Congress, although the 1959 Steel Seizure decision reveals the effective role which the Supreme Court may play in holding the President to the forms of emergency action prescribed by the Congress, if the Congress has so prescribed them.

The recurrent trouble which the nation has confronted in taking timely and effective emergency action at the national level stems from the existence on the statute books of a confusing array of provisions for the declaration of various kinds of emergency, and the excessively precise definition of the techniques which must be employed in coping with the emergency. This invites efforts at evasion of statutory limitations as in the instance of the 1952 steel strike, or requires recurrent special legislation dealing with successive particularized emergencies. Also, in forewarning the private parties in dispute, in the case of a strike, of the precise time-table and program of action to which the executive must adhere, it may lessen their incentive to settle the dispute, for the course of action prescribed by statute may, depending upon the situation, strengthen the bargaining position of one of the disputants.

The recent use of the concurrent resolution in Congress provides a key to the means for equipping the President with the broad discretion he should have to identify conditions warranting emergency action, and to select the appropriate tools to deal with an emergency, while simultaneously keeping him under Congressional surveillance and control.

We propose a generic statute to empower the President to proclaim a national or regional emergency. Under such a proclamation the President may issue rules and regulations which have the force of law. A proclamation of emergency would be placed before the Congress within twenty-four hours of its issuance. If Congress were not in session, it would be called into session within five days from the time of the declaration of emergency. The proclamation of emergency would stand unless revoked by concurrent resolution by both Houses of Congress within five days of Congress’ coming into special session.

The rules and regulations issued under the proclamation would be similarly subject to revocation by concurrent resolution and Congress should possess the item veto in this respect; i.e., it may revoke one rule, while permitting others to stand. An emergency proclamation and regulations issued under it, would automatically expire after thirty days, but would be subject to reissuance by the President, provided the Congress concurred. Congress, upon the issuance of an emergency proclamation would establish a scrutiny committee on emergency powers, patterned after the Joint Committee on Atomic Energy. Congress would maintain continuous scrutiny of the administration of powers exercised under the proclamation. The Committee’s primary responsibility would be to keep Congress sufficiently advised as to whether powers had been responsibly administered.

There is nothing novel about this proposal. The British have operated under similar statutes in peace and war for fifty years with a record of great success in two respects:

(1) They reacted efficiently to emergencies ranging from a dock strike, and a general strike to two world wars;

(2) Powers during an emergency have been responsibly administered under Parliamentary observation and control.

Under this plan, the Executive can act, fully cloaked with legitimacy to respond to emergencies ranging from a hydrogen attack to a capital transit strike, and might employ techniques ranging from replacement of state and local administrations which have been destroyed by hydrogen bombings, to compelling motor-car men to return to work.

Such a statute exemplifies our commitment to democratic government and democratic theory in a number of ways. It provides legislative sanction for executive action and precludes the coming into being of a situation which in the words of Locke, “the executive has to act in the absence of law,” and it gives the President sufficiently broad and generic power. As contrasted with the unrealistically detailed and restrictive emergency provisions of existing statues, the President is empowered to deal with an emergency without the need to resort to the use of Locke’s prerogative: to act under the law, in the absence of the law, or even contrary to the law. In effect it renders unnecessary and unlikely that a future President will define the alternatives which Lincoln once perceived: to act under the Constitution and lose the Union, or to save the Union by transgressing against the Constitution.

Some persons will fear that a President might take action unnecessarily under such a proclamation of emergency. The answer to this is three-fold: first, it is in the nature of our political system that we must repose a certain amount of faith in the basic integrity and wisdom of the Chief Executive; secondly, the President must operate within carefully prescribed procedural limitations; and third, the President has only today to declare a nation-wide state of martial law in order to equip himself with vast power to take emergency action virtually free from concurring legislative participation.

The vital lesson which emerges from this study is that it is possible to equip government to cope with the crises of Twentieth Century existence without surrendering the two vital principles of constitutionalism that have marked the course of American political development: the maintenance of legal limits to arbitrary power, and political responsibility of the government to the governed.