Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

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]