“WELL, BOYS, THE PRESIDENT GOT LICKED”: THE SEPARATION OF POWERS AND THE STEEL SEIZURE CASE
This is “My Constitution,” a podcast from the Center for C-SPAN Scholarship & Engagement at Purdue University. In this episode, we’ll discuss two ideas embedded in the U.S. Constitution: separation of powers and checks and balances.
(sounds of gunfire)
In June 1950, North Korea invaded South Korea. U.S. forces became involved not because Congress invoked its power under Article I, but in response to an appeal from the United Nations Security Council. The Korean War was thus an undeclared war. President Truman called it a “police action.” Over 36,000 Americans lost their lives, and approximately 103,000 were wounded. Thousands of Americans are still listed as missing in action. The number of people who perished during the war exceeds 2.5 million.
In April 1952, with American forces in Korea and in response to a threatened strike, President Truman decided to have the federal government seize control of American steel mills. The President argued that stopping steel production would imperil the national defense and the ability of other countries to effectively fight the war. He also argued that if American steel mills were shuttered, the lives of Americans fighting in Korea would be put in danger. In an address to the nation, President Truman did not hide his anger.
The steel industry has never been so profitable as it is today, at least, not since the profiteering days of World War I. And yet, in the face of these facts, the steel companies are now saying they ought to have a price increase of 12 dollars a ton, giving them a profit of 26 or 27 dollars a ton. That's about the most outrageous thing I ever heard of. They not only want to raise their prices to cover their any wage increase, they want to double their money on the deal. You may think this steel dispute doesn't affect you. You may think it's just a matter between the government and a few greedy companies, but it isn't. If we granted the outrageous prices the steel industry wants, we would scuttle the whole price control program and that comes pretty close to home.
Two months later, the United States Supreme Court issued a number of opinions in a case resulting from the President’s decision to take over the steel mills. Youngstown Sheet & Tube Company v. Sawyer is considered one of the most important cases in the history of the Court. Here’s University of Chicago Political Scientist, William Howell:
At its heart, this is a story in a case about presidential power and its limits during times of war. And it puts before the course central themes about the conditions under which presidents during times of emergency, could do things that may not be expressly stated in the Constitution and the limits that Congress and the courts can place on it.
Let’s set the stage for understanding this important case by looking at some of the arguments for separating power between different governmental institutions, and also for developing mechanisms that allow one branch of government to oversee or “check” the actions of another.
And where do we go to look for this? Well, the Constitution, of course.
Two ingredients shaped the package of constitutional reforms that were delivered to the American public by the founding generation. One was the experience of that generation with colonial government and with the Articles of Confederation that we discussed in the first two podcasts. The second was supplied by a number of important thinkers.
You may have heard their names…Aristotle, John Locke, Montesquieu…but what could these people from so many centuries ago have to do with the American Constitution? First, let’s look at Greek philosopher, Aristotle. According to Aristotle, government has three functions. The terms he used to describe this division of power were “deliberative,” “magisterial,” and “judicial.” Scholars have drawn parallels between Aristotle’s description of government and more contemporary attempts to categorize governmental functions as legislative, executive, and judicial.
Another thinker that contributed to the process was John Locke. We discussed his contributions to the Declaration of Independence in the first podcast in this series. Locke focused on dividing power between the executive and legislative branches in order to preserve liberty and prevent tyranny.
A third thinker was the French philosopher, Montesquieu. Born in the late seventeenth century, he spoke with great passion for separating power between different parts of government. He favored a division of power between executive, legislative, and judicial branches, none of which were to be controlled by the same individual or groups of individuals.
So where do we see these ideas in the Constitution? To a large extent, the Framers introduced the new American government one piece at a time. First came the legislative portion in Article I. It was followed by Article II’s discussion of the executive. Then a discussion of the judicial branch of government in Article III.
Let’s look at the language in the first three Articles. The Framers reserve their strongest words to introduce the legislative branch. It reads, “All legislative power herein granted shall be vested in a Congress of the United States.” Article II reads, “The executive power shall be vested in a President of the United States of America.” Article III says, “The judicial power shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” So in simple terms, Congress is authorized to make laws; our president is authorized to execute Congress’ laws, and the job of the court system is to judge the law. The Founders also foresaw possible problems if an elected member of Congress was also serving in the executive or judicial branch at the same time, so they set up a barrier to that in Article I.
Finally, the Founders reinforced institutional separateness by the way members of the national government were elected. The president and vice-president serve four-year terms and are elected by members of the Electoral College. Senators serve six-year terms and are elected in state-wide election. Members of the House of Representatives are up for election every two years. They run in congressional districts formed within individual states.
Now back to our French thinker, Montesquieu. Not only was he a proponent of separation of powers, he also advocated arming each branch of government with tools that could be used to constrain the actions of the other two. Think of this as a further “check” on the potential of government to infringe on liberty. One example of this is the language in Article II, Section 2, giving the Senate the power to approve treaties the president negotiates with foreign powers. In fact, the president must get 2/3 of the Senate to cooperate in order to ratify a treaty. Many times, the Senate has endorsed the president. One of the most famous examples of that not happening was President Woodrow Wilson’s attempt to establish a “League of Nations” at the end of World War I. Here’s military historian Richard Faulkner:
This is the ugliest war in human history. And there is a wide belief, especially in France and in Italy, that they need to get something in return for the sacrifices that they have pushed. The most important people that Wilson's not able to win over are the American people. That his idea of a League of Nations that will keep a great war from happening again does not resonate with the American people. We have made the world safe for democracy. We've done everything we possibly can, and the Europeans don't seem to want to really buy what we're selling and so when he comes back to the United States to try to sell his idea of the League of Nations, the Senate shuts him down.
Another example of a check on the power of one branch of government by another can be found in Article I, Section 7, which gives the president the power to approve or veto legislation passed by Congress. You’ve probably heard what is termed as “veto threats” by presidents. Here’s an example from President Barack Obama in his 2015 State of the Union address:
We can't slow down businesses or put our economy at risk with government shutdowns or fiscal showdowns. We can't put the security of families at risk by taking away their health insurance, or unraveling the new rules on Wall Street, or refighting past battles on immigration when we've got to fix a broken system. And, if a bill comes to my desk that tries to do any of these things, I will veto it. It will have earned my veto.
President Trump made a similar veto threat in addressing the 2019 Right to Life March in Washington, DC:
Today I have signed a letter to Congress to make clear that if they send any legislation to my desk that weakens the protection of human life, I will issue a veto, and we have the support to uphold those vetoes.
With this context behind us, let’s return to the president’s decision to seize the steel mills.
All of the justices hearing the steel seizure case had been appointed by Democratic presidents. Four of the nine had been appointed by President Truman. Justice Hugo Black had even served with the president in the Senate. So you might expect President Truman to get his way in this case, but it didn’t turn out that way. He lost 6-3. The Court’s opinion was written by Justice Black. He wrote that the president’s action was not supported by congressional legislation or the Constitution. He also noted that Congress had rejected the approach adopted by the president and that Congress, not the president, had the power to seize private property.
A member of the Court since 1937, Justice Black argued that the president’s role in the legislative process was limited. Quoting Justice Black, “The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.” Other members of the Court also addressed the issue of presidential power. The most important was written by Justice Robert Jackson. At his 2005 Supreme Court confirmation hearing, then Judge John Roberts was asked about the limits of presidential power. He laid out the important Jackson principles.
..And the framework that was set forth in Justice Jackson's concurring opinion, which is the opinion that has sort of set the stage for subsequent cases, analyzes the issue in terms of one of three categories. If the president is acting in an area where Congress is supported, expressly supportive of his action, the president's powers at its maximum. If the president is acting in areas such as you postulate under the Bybee memo where the president is acting contrary to congressional authority, what Justice Jackson said is the president's authority is at its lowest ebb. It consists solely of his authority under the Constitution, less whatever authority Congress has. And then, of course, there's the vast middle area where courts often have to struggle because they can't determine whether Congress has supported a particular exercise or not.
One of Justice Jackson’s law clerks in the 1950s was a 27-year-old named William Rehnquist, who would go on to become Chief Justice of the United States. He had vivid memories of the day the justices made their decision.
Of course, the clerks weren't present at the Conference, but George Niebank, my co-clerk and I were just dying to find out what happened, as I suspect all the other clerks were, too. So we followed Justice Jackson into his office when he got back, just as we always did, and he would tell us what happened at Conference, and he said, “Well, boys, the president got licked.” (laugh)
Human beings are often shaped by events in their lives. From 1945 to 1946, Jackson served as Chief U.S. Prosecutor at the Nuremberg War Trials when a number of leading Nazis were put on trial to answer for their crimes. University of North Carolina law professor Michael Gerhardt:
So he's gone through World War II and experiences with tyrants and with people that have no bounds or boundaries on their power. He is even gonna have a line in here, “The power of this sort has no beginning or end.” My guess is that it may have a little bit to do with his own personal experience under having to deal with the horrible wrongs committed by people that are not electorally responsible or constitutionally bound.
In our second podcast, we argued that because the Framers were acutely conscious of the dangers of unchecked power, they deliberately hobbled the powerful new government. They divided power between the executive, legislative, and judicial branches, and gave each the power to check the actions of the others. In 1952, the Supreme Court took these ideas seriously.
Further information on some of the issues discussed in this program, including questions to ponder, our sources, and additional clips from the C-SPAN Archives, can be found on the website of the Center for C-SPAN Scholarship & Engagement. The address is cla.purdue.edu/cspan. The Center is affiliated with the Brian Lamb School of Communication at Purdue University.
PODCAST GOAL
To acquaint the student with the separation of powers and checks and balances.
NOTE
Our podcast discusses the influence of two ingredients on the Founding generation. While he discusses experience and philosophy, Matthew Glassman (in his work Separation of Powers: An Overview) takes the position that the impact of the various philosophical traditions we discuss is “unclear” (Glassman, 2016, p. 3).
QUESTIONS TO PONDER
One of the criticisms of the structure of government in this country is that it increases the possibility of gridlock (the inability to sometimes get things done) in American politics. How much of the blame for this should be placed at the feet of the Framers and their insistence on dividing and checking power?
Matthew Glassman has written that underlying the ideas discussed in this podcast, “is a simple proposition about human nature: as noted by James Madison, men are not angels, and left unrestrained they will tend to abuse power.” Do you have a similar view of human nature? If so, why? Be specific. If not, why not? Again, be specific. Additional Information on this topic can be found by reading Federalist No. 51. This linkhttps://avalon.law.yale.edu/18th_century/fed51.aspwill take you to Federalist No. 51. The site is hosted as part of the Avalon Project at Yale Law School. A fascinating, and quite bleak, discussion of human nature can be found in the work of political thinker, Thomas Hobbes. Hobbes, an English thinker, lived from 1588-1679. His most famous work is called Leviathan. Here’s a brief discussion of Leviathan by journalist, Robert McCrumhttps://www.theguardian.com/books/2017/nov/20/the-100-best-nonfiction-books-no-94-leviathan-thomas-hobbes-1651.
In this podcast, we briefly reviewed the opinions of Justice Black and Justice Jackson. What do you think of the arguments presented by Chief Justice Vinson in dissent? Additional information on this topic can be found in both the "Supreme Court Cases" and "Additional Materials" sections of this document.
OUR SOURCES
Article II. (n.d.). Legal Information Institute. https://www.law.cornell.edu/constitution/articleii
Bellia, P. L. (2008, May). The story of the steel seizure case. https://www3.nd.edu/~ndlaw/faculty/belliap/SteelSeizureDraftSSRN.pdf
Concurring opinion, Youngstown v. Sawyer, 343 U.S. 579 (June 2, 1952). (n.d.). Robert H. Jackson Center. https://www.roberthjackson.org/opinion/concurring-opinion-youngstown-v-sawyer-343-u-s-579-june-2-1952/
Emanuel, S. (2016). Emanuel law outlines: Constitutional law (34th ed., pp. 122-123). Frederick, MD: Wolters Kluwer.
Fiorina, M.P., Peterson, P. E., Johnson, B., & Mayer, W. G. (2011). America’s new democracy (6th ed., pp. 22, 35). New York City, NY: Pearson.
Fiorina, M. P., Peterson, P. E., Johnson, B., & Mayer, W. G. (2011). The new American
democracy (7th ed., pp. 36-37) New York City, NY: Pearson.
Glassman, M. E. (2016, January 08). Separation of powers: An overview. Congressional Research Service. https://fas.org/sgp/crs/misc/R44334.pdf
Green, W. C. (n.d.). Frederick Vinson. The Free Speech Center. https://www.mtsu.edu/first-amendment/article/1367/frederick-vinson
Korean War fast facts. (2019, June 10). CNN. https://edition.cnn.com/2013/06/28/world/asia/korean-war-fast-facts/index.html
Linder, D. (2019). Separation of powers. Exploring Constitutional Law. http://law2.umkc.edu/faculty/projects/ftrials/conlaw/separationofpowers.htm
Marcus, M. (2012). Truman and the steel seizure case: The limits of presidential power (pp. 195-215). Durham, NC: Duke University Press.
O'Brien M. (2017). Constitutional law and politics: Struggles for power and governmental authority (10th ed.) (Vol. 1). New York, NY: W.W. Norton & Company.
Rehnquist, W. H. (2002). The Supreme Court. New York: Vintage Books.
Rushay, S. (2018, August 11). Sam Rushay: Truman questioned his own Supreme Court appointments. Columbia Daily Tribune. https://www.columbiatribune.com/opinion/20180811/sam-rushay-truman-questioned-his-own-supreme-court-appointments
Separation of powers. (n.d.). Legal Information Institute. https://www.law.cornell.edu/wex/separation_of_powers
Separation of powers. (n.d.). Legal Information Institute. https://www.law.cornell.edu/wex/separation_of_powers_0
Treaties: A historical overview. (n.d.). United States Senate. https://www.senate.gov/artandhistory/history/common/briefing/Treaties.htm
Vinson, Frederick Moore. (n.d.). CQ Press Supreme Court Collection. http://library.cqpress.com/scc/document.php?id=bioenc-427-18170-979616&v=bdc5b523b19c0512
Waimberg, J. (2015, November 16). Youngstown Steel: The Supreme Court stands up to the President. National Constitution Center. https://constitutioncenter.org/blog/youngstown-steel-the-supreme-court-stands-up-to-the-president
Youngstown Sheet and Tube Company v. Sawyer (1952). (n.d.). Bill of Rights Institute. https://billofrightsinstitute.org/educate/educator-resources/lessons-plans/landmark-supreme-court-cases-elessons/youngstown-sheet-and-tube-company-v-sawyer-1952/
UNITED STATES SUPREME COURT CASES
Youngstown Sheet & Tube Company v. Sawyer (1952) -- https://www.oyez.org/cases/1940-1955/343us579. This link will take you to the US Supreme Court’s decision in the “steel seizure” case. In addition to a description of the case, the Oyez site includes a link to the Court’s opinions.
ADDITIONAL CLIPS AND PROGRAMS FROM THE C-SPAN ARCHIVES
Checks and Balances – Intentions of the Founders. Two historians discuss “the framing of the Constitution and . . . the founders’ thoughts on the balance of power in the US government today.” Contributors include Douglas Brinkley of Rice University and Annette Gordon-Reed of Harvard.
George Mason. Author, William Hyland, Jr. discusses his book on George Mason, George Mason: The Founding Father Who Gave Us the Bill of Rights. Hyland’s talk includes a discussion of Montesquieu who played a vital role in the development of the idea of separation of powers.
Principles of the U.S. Constitution. Separation of powers is one of the topics discussed by Paul McNulty in this lecture on “the development of the US Constitution.” McNulty is president of Grove City College. He served in the administration of President George W. Bush.
Supreme Court Landmark Case Youngstown Sheet and Tube v. Sawyer. Part of C-SPAN’s Landmark Cases series, this program discusses the case at the heart of this podcast. The participants include William Howell of the University of Chicago and Michael Gerhardt of the University of North Carolina.
Woodrow Wilson and the Treaty of Versailles. Bard College history professor Sean McMeekin discusses the 28th president and the 1919 Treaty of Versailles.