The Steel Seizure Case and Presidential Authority

The Congressional Research Service report on the legality of the President's warrantless domestic spying program makes for an interesting read. Though measured in tone, the report is quite a damning document for the Bush administration. One particular line from the report has been widely quoted, though it is far from the most damning line. The report observes that the NSA program "may represent an exercise of presidential power at its lowest ebb." This language comes from Justice Jackson's famous concurring opinion in Youngstown Co. v. Sawyer, 343 U.S. 579 (1952), otherwise known as the steel seizure case. In that case, the Supreme Court held that President Truman did not have the authority to seize steel mills, despite the fact that a threatened strike risked cutting off the U.S. supply of steel in the midst of the Korean War.

In his opinion, Justice Jackson noted that "[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum." He further observed that when Congress is silent on a particular issue, such "inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility." But, siding against President Truman, Jackson concluded in his most famous passage:

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.

Jackson's conclusion is quite obviously relevant to the debate over the legality of Bush's NSA spying program. Indeed, it was quoted by Judiciary Committee Chairman Arlen Specter at the outset of Judge Alito's confirmation hearing yesterday.

The administration appears to have conceded that the NSA program does not comply with the Foreign Intelligence Surveillance Act (FISA), but has nevertheless asserted that the president has the inherent authority to conduct such surveillance. To avoid the implications of the Youngstown case, Bush's defenders have taken to belittling and dismissing the significance of Justice Jackson's words. For example, here's John Hinderaker at Powerline:

First, as a threshold matter, it is not clear
why precedential weight should be given to a
concurring opinion in which no other Justice
joined. The opinion of the Court was written
by Justice Hugh Black; it contains no similar
analysis. Justice Jackson's concurrence is
entitled to weight only to the extent that its
arguments are deemed persuasive.

This point is perhaps technically correct but it's also very misleading. The implication is that Jackson was describing principles to which no one else on the Court subscribed. Yet the case was decided 6-3 against Truman, and ALL of the justices echoed Jackson's general sentiment, at least in that particular passage. The following is a sampling of quotes from the other opinions:

Justice Black (writing for the court):

Nor can the seizure order be sustained because
of the several constitutional provisions that
grant executive power to the President. In the
framework of our Constitution, the President's
power to see that the laws are faithfully
executed refutes the idea that he is to be a
lawmaker.

Justice Frankfurter (concurring):

It cannot be contended that the President
would have had power to issue this order had
Congress explicitly negated such authority in
formal legislation.

Justice Douglas (concurring):

But the emergency did not create power; it
merely marked an occasion when power should
be exercised. And the fact that it was necessary
that measures be taken to keep steel in
production does not mean that the President,
rather than the Congress, had the constitutional
authority to act.

Justice Clark (concurring):

I conclude 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.

Justice Burton (concurring):

The controlling fact here is that Congress,
within its constitutionally delegated power, has
prescribed for the President specific procedures,
exclusive of seizure, for his use in meeting the
present type of emergency. Congress has
reserved to itself the right to determine where
and when to authorize the seizure of property in
meeting such an emergency. Under these
circumstances, the President's order of April 8
invaded the jurisdiction of Congress. It violated
the essence of the principle of the separation of
governmental powers.

As you can see, some of the other justices use language even stronger than Jackson's. I think that Jackson's words have endured because they represent a sort of "common denominator" among the various opinions. In other words, all of the concurring justices (and likely the dissenters as well, see below) would almost surely have agreed, at the very least, that when Congress has spoken on an issue, the president's "power is at its lowest ebb." That seems like such a self-evidently true statement, given the structure of our constitutional system of government, that it's remarkable to me that anyone is even attempting to take issue with it.

Indeed, even the dissenting justices didn't take issue with this principle. Justices Vinson, Reed, and Minton dissented on the grounds that Truman had not in fact taken any action that was contrary to Congressional will. Justice Vinson, writing for the dissenters, observed:

Much of the argument in this case has been
directed at straw men. We do not now have
before us the case of a President acting solely
on the basis of his own notions of the public
welfare. Nor is there any question of
unlimited executive power in this case. The
President himself closed the door to any
such claim when he sent his Message to
Congress stating his purpose to abide by
any action of Congress, whether approving
or disapproving his seizure action. Here,
the President immediately made sure that
Congress was fully informed of the
temporary action he had taken only to
preserve the legislative programs from
destruction until Congress could act. . . .

In his Message to Congress immediately
following the seizure, the President
explained the necessity of his action in
executing the military procurement and
anti-inflation legislative programs and
expressed his desire to cooperate with
any legislative proposals approving,
regulating or rejecting the seizure of the
steel mills. Consequently, there is no
evidence whatever of any Presidential
purpose to defy Congress or act in any
way inconsistent with the legislative will.

The dissenters pointed out that there was no statute on the books that specifically forbid the president from doing what Truman had done. The fact that Congress had considered and then rejected the idea of seizing the steel mills was, to them, not the equivalent of a law specifically barring the president from taking such action.

In the current controversy, however, there is a law on the books that specifically forbids the executive branch from conducting warrantless spying on U.S. citizens. And no one has ever questioned, at least until a few weeks ago, that Congress has the power to regulate spying on U.S. citizens within the U.S. So we appear to be presented with a situation in which the president has acted in direct contravention of expressed congressional will. It is unlikely that any of the justices in the Youngstown case would have found such action to be a lawful exercise of presidential authority under the Constitution.

The extreme nature of the President's legal position in this case was summed up well in a letter sent yesterday to Congress by 14 constitutional law professors and former federal officials. Here's the key passage from the letter.

The Department of Justice concedes that
the NSA program was not authorized by
any of the above provisions. It maintains,
however, that the program did not violate
existing law because Congress implicitly
authorized the NSA program when it
enacted the Authorization for Use of Military
Force (AUMF) against al Qaeda, Pub. L. No.
107-40, 115 Stat. 224 (2001). But the AUMF
cannot reasonably be construed to implicitly
authorize warrantless electronic surveillance
in the United States during wartime, where
Congress has expressly and specifically
addressed that precise question in FISA and
limited any such warrantless surveillance to
the first fifteen days of war.The DOJ also
invokes the President’s inherent
constitutional authority as Commander in
Chief to collect “signals intelligence” targeted
at the enemy, and maintains that construing
FISA to prohibit the President’s actions
would raise constitutional questions. But even
conceding that the President in his role as
Commander in Chief may generally collect
signals intelligence on the enemy abroad,
Congress indisputably has authority to
regulate electronic surveillance within the
United States, as it has done in FISA. Where
Congress has so regulated, the President can
act in contravention of statute only if his
authority is exclusive, and not subject to the
check of statutory regulation. The DOJ letter
pointedly does not make that extraordinary
claim.