Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

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]