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,[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?”