Truman's Supreme Court Ruling On Emergency Powers

[ Posted Monday, February 18th, 2019 – 18:48 UTC ]

First of all, happy Presidents' Day to everyone!

Well, of course, I should say "everyone in states such as Hawai'i, Massachusetts, and Texas" and all the others who officially apostrophize the plural. To those living in California, Alaska, and George's own namesake state of Washington, we would have to wish a happy President's Day to you. To occupants of Michigan and New Jersey, we bid you all a happy Presidents Day. And we'd have to individually wish all the other variations, but instead we'll just go with our favorite and wish everyone in Arkansas a happy "George Washington's Birthday and Daisy Gatson Bates Day!" We wrote at length upon this chaos a few years back, while also pointing out that George Washington wasn't actually born on George Washington's Birthday (just for fun).

For the more traditionally-minded, we also offer up previous holiday columns such as what we still believe was our shortest column ever, one dedicated to all the forgotten presidents who served before George Washington took the helm, one about Washington's biggest contemporary critic (a grandson of Benjamin Franklin), and the one I wrote last year about presidential mythmaking. That last one is the most relevant today, since it begins with a warning about what can happen to a president's legacy over time:

Since it's fun to do, and since today's a good day for it, let's take a look at one particular moment in American history. A Republican president sits in the White House. His very presence terrifies liberals, who consider him an intellectual lightweight (and even that's being polite) and not up to the job in any way. He cares more for his television presence than actual policy matters, it seems. Both the president and his wife seem elitist to the core and disdainful of reining in their excesses after moving to the White House. He is seen as a total puppet, and the only question members of the media have to explore is who the puppetmaster pulling his strings currently is. He packed his White House with his buddies, and they spend a lot of time fighting with Washington insiders. The rest of the world is horrified that we elected such a man president. There are even rumors that his campaign cut a deal with a tyrannical foreign government in order to help him get elected. In fact, there are very real fears he could start a nuclear war at any time, since his foreign policy is both erratic and belligerent. About the only thing he can get done in Congress is to pass a massive tax cut. That's what the prevailing opinion was at the time, inside the Beltway. His name? Ronald Reagan.

But instead, today I'd like to look a bit further into the past, because there is one particular court case which everyone is going to be paying a lot of attention to in the upcoming weeks. The case is Youngstown Sheet & Tube Company v. Sawyer, usually now just referred to as the Youngstown case or "the steel case." The plaintiff was a steel company in Ohio and the defendant was the Secretary of Commerce Charles Sawyer. But the real defendant was President Harry Truman, who had directed the federal government to seize control of all the steel plants of the country, in order to avoid an imminent strike. Truman believed he had this power because American was in the midst of the Korean War at the time, therefore he reasoned he had presidential power to avoid disruptions to the war effort.

Truman could have used at least two other legal routes to stopping the strike, one under the Selective Service Act and one from the Taft-Hartley Act, but chose not to take those routes. Instead, he claimed broad constitutional executive power rather than relying on any law Congress had passed.

The case reached the Supreme Court with astonishing speed -- the high court heard arguments a little over a month after Truman seized the steel plants. The case set an important precedent because the court ruled against Truman, and by doing so limited executive power. In particular, it limited presidential emergency power. This is why everyone is going to be paying a lot of attention to the case in the coming weeks, after President Donald Trump declared a national emergency at the southern border. When the inevitable court case challenging this designation reaches the Supreme Court, they're going to be examining Youngstown under a microscope.

Which is why it behooves us to take a look at it now. The court ruled by a majority of 6-3, but almost every justice who ruled against the Truman administration wrote their own separate decision (there was only one dissenting opinion, but there were five separate concurring opinions). This would make it almost impossible to determine exactly what the court as a whole was actually ruling, since they definitely weren't speaking with one voice. Some of the justices wrote opinions that were sweeping in their definition of why Truman didn't actually have the power to seize a whole industry, but some were more nuanced.

Over time, however, one justice's decision has taken a prominent place when courts look back at this particular decision. Justice Robert H. Jackson wrote a summary of presidential powers and broke them down into three areas, which have stood the test of time in terms of being seen as the Supreme Court's real metric when it comes to measuring the legitimacy of presidential powers. Here is the relevant passage [scroll to "Page 343 U. S. 635"] from Jackson's opinion:

Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.

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. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

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, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.

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. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Or, to summarize further, presidential power is most legitimate when Congress has already authorized the president to act. If Congress has not acted one way or the other, then the presidents' legitimacy is up in the air, and will be determined by the circumstances surrounding the issue. But if Congress has indeed acted and the president is acting against the will of Congress, then the courts would have to decide either that the president had indeed overreached and was usurping congressional power, or that Congress didn't actually have the power to act in this instance and that therefore the power was solely the president's alone.

The second choice isn't going to apply in the case of Trump's border wall and the so-called national emergency at the southern border. Congress has indeed acted, so this choice won't apply.

The real argument is going to be whether Trump is acting with congressional approval, or against the will of Congress. Trump is already arguing the first case, and Democrats have begun arguing the latter case.

As Trump sees it, Congress passed the National Emergencies Act back in the 1970s, and by doing so has expressly allowed him to act. He saw a national emergency, he declared it, and now he will be able to move money around to fight this national emergency. This is all in keeping with the language of the Act, and if Congress didn't want to give the executive branch so much power then it should have been more specific when it passed the National Emergencies Act in the first place. But Congress did act, Trump followed the rules laid out in the Act, therefore he is acting with full congressional approval.

As Democrats see it, Congress already acted when it denied him most of the money he demanded to build his precious wall. Trump has made the case that there's an emergency since he was sworn in (indeed, since he began campaigning), and yet in the over two years he has been in office, he has never managed to convince Congress of this emergency -- even when both houses were in the hands of Republicans for two years. He tried again to convince them to give him his money by shutting the government down, and that didn't work either. Congress passed bills denying Trump his money (or most of it, at any rate), therefore he cannot say that Congress has failed to act and declare a national emergency now, because there is no urgency in an issue he's been pushing for two years and because Congress specifically used its power of the purse to deny him the money. Therefore the case should be seen as falling in the third of Jackson's categories of measuring presidential power and overreach.

Both sides have a case to make. Trump is right in pointing out that the National Emergencies Act has no definition or limitation whatsoever on what constitutes a national emergency. It is left solely up to the president to determine. Furthermore, there is indeed a method for Congress to overturn such an action -- but they'd need a two-thirds, veto-proof majority to do so. So already the president's powers aren't in any way absolute, even under the National Emergencies Act. But because Congress gave up this power forty years ago and have not since seen fit to amend it with any limitations, the president is already acting in accord with legislation that Congress passed.

Democrats will point to the unprecedented use of the power by Trump. Never before has a president used a national emergency declaration to get some budgetary item that Congress previously denied to him. Nobody ever thought a president would be brazen enough to do so, which is why no Congress saw the need to amend the National Emergencies Act previously. All former presidents were trusted to know what was an actual emergency and what was not, and for the most part no Congress has strenuously objected to any of these declarations. But nobody foresaw a president like Trump, so here we are now.

It's anyone's guess how the courts are going to see all of this. The judiciary is always very leery of inserting itself into purely political fights, which this certainly seems to be. But at the same time, judges do have a duty to rein in the other two constitutional branches when they overreach.

By the time the Supreme Court rules on the case, there will likely be a further development. The House is almost certainly going to pass a resolution condemning Trump's national emergency declaration, and the Senate may also pass such a resolution (there have been at least ten Republican senators who have disagreed with Trump's stance already, and Democrats only need four of them to cross the aisle to pass such a resolution, if they all vote for it). However, nobody expects the resolution to pass either house with a two-thirds majority. So the resolution will pass, Trump will veto it, and that will be that.

For courts looking at the case, this will be a further data point -- a majority of Congress disagreeing with the president's declaration, but not by enough to overturn it. How this will influence their legal reasoning is also anyone's guess, but it will likely happen before some of the rulings are handed down.

This Presidents' Day (or President's Day or all the others...), many will be taking to the streets to denounce Trump's "national emergency." This is rather unique -- I don't believe I can remember any other time when giant anti-presidential protests occurred on Presidents' Day (it does fall, after all, in February, which isn't the most gentle month for outdoor protests).

Before all is said and done on Trump's national emergency, though, my guess is that we'll all become a lot more knowledgeable about a different president -- Harry Truman. His own case had plenty of twists and turns (for instance, it was pointed out that "wartime" powers didn't exist, since the Korean War was the first in a long string of conflicts that America fought in that was never actually declared a "war" by Congress). The Youngstown case was a lot more serious that what is going on currently, since it involved the federal government taking over an entire industry. Imagine what people would say if Trump decided to seize Apple or Google today, for comparison. Truman did have laws at his disposal which could have allowed him to take almost the same actions, but he chose not to use them. At the heart of the issue was a labor dispute, not a federal budget decision. Truman was claiming a lot more executive power than Trump currently is attempting.

So while it is unknowable how the courts (all the way up to the Supreme Court) are going to rule in this case, it will still be seen as a constitutional struggle that sets an important precedent, one way or the other. If the courts rule for Trump, then Congress may eventually decide to amend the National Emergencies Act by including allowable definitions of "emergency" (which would likely be limited to something like "foreign conflicts or natural disasters, but not budgetary decisions"). If the courts rule against Trump, then neither he nor any future president is likely to ever try to take this route again. Either way, it will be an important decision.

The only thing that is certain, at this point, is that we're all going to get a lot more conversant with the Youngstown case. Because Justice Jackson's definition of the three cases of presidents claiming power may be the ultimate deciding factor, no matter which way the courts choose to interpret it.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


9 Comments on “Truman's Supreme Court Ruling On Emergency Powers”

  1. [1] 
    neilm wrote:

    I think the big idea is to bog the whole fiasco down in multiple court cases (authority, eminent domain, kitchen sink) and wait the clock out.

    I think that the Democrats threatening to use this weapon (e.g. your list of potential "emergencies" last week) is likely to backfire at the polls in 2020, so should be left out of all future discussion - let the Republicans wet themselves about that scenario.

    Who knows how this Supreme Court will rule - but let's hope they take a long time over it - if I were Roberts I'd try to stall this past November 2020 if I could.

  2. [2] 
    John M wrote:

    "At the heart of the issue was a labor dispute, not a federal budget decision. Truman was claiming a lot more executive power than Trump currently is attempting."

    I'm not so sure about that. A case could be made that it is a much bigger question that that. That Trump is trying to usurp for the presidency a specific power that is mandated by the constitution itself to be exclusive to Congress. Namely, that of allocating and distributing federal funds for a specific purpose. By design, the one crucial way for one branch of government to provide a check on the power of another branch of government and prevent tyranny or dictatorship. In other words, a violation of the separation of powers doctrine in defiance of the very structure of the government itself as spelled out by the constitution.

  3. [3] 
    TheStig wrote:

    I agree Neilm 1.

    Trump's wall is only popular with Trump's base. It's THE litmus test for them, but they are only about 40% of voters. Trump's wall is fundamentally unpopular. Moreover, support for the wall is regional, and in the wrong part of the Electoral College Map from Trump's point of view.

    So, the Democrats should rejoice and let Trump fight his unpopular crusade. Keep it in The News, by keeping up the oversight process, but let Trump embrace his tar baby as much as he wants. Plenty of other parties will be happy to skirmish with Trump in the courts, acting as forced draft to the fire.

    Switching analogies here, Trump has stepped in bear trap. The only way out of the Trap is to gnaw his leg off by alienating his own base.

    Cruel, but effective....and that's not the only problem that Trump has to worry about. Some of his own supporters in the Senate and House are going to start working the math.

  4. [4] 
    TheStig wrote:

    Oh my, accidentally sent of comment 3 before a final edit for typos. :-(

  5. [5] 
    TheStig wrote:

    I should have mentioned that the map linked in comment 3 is constructed from Fox News polling data.

  6. [6] 
    C. R. Stucki wrote:


    I'm betting your mom would say that's more "Big You and Little Me", or was sit the other way about?

  7. [7] 
    nypoet22 wrote:


    why are you so interested in stifler's i mean stig's mom? ah, pie.


  8. [8] 
    C. R. Stucki wrote:


    Zero interest in Stig's mom. He shared that piece of maternal wisdom with me in the previous blog to justify his disputing my characterization of a Huffpo article as "kinda long", without him having ever read it!

  9. [9] 
    neilm wrote:

    Cruel, but effective....and that's not the only problem that Trump has to worry about. Some of his own supporters in the Senate and House are going to start working the math.

    I use Lindsay Graham as the dipstick in the Trump engine (yes, I deliberately chose that analogy so I could call Graham dipstick).

    Graham was originally scathing in his hatred towards Trump. Graham is a very funny man, and he unleashed on Trump:

    2015: "Donald Trump gets his foreign policy from watching television - the Cartoon Network."

    2015: “You know how you make America great again? Tell @realDonaldTrump to go to hell”


    But dissing Trump caused a backlash in Graham's home state, and he started hearing about it, so he flipped and now vies to be Trump's #1 fanboy.

    This will only last as long as Trump is popular with the base, a slackening of support will see Graham, and many like him, flip back and the knives will come out.

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