Chapter X
719 “The Constitution as Instrument and as Symbol,” 30 American Political Science Review, 1936, 1071 at 1077.
720 Yet note Harold D. Lasswell’s suggestion: “It is important to view the court system as a whole and not limit ourselves entirely to the words uttered by the Supreme Court. The damage to private rights and civilian principles can be accomplished in the thousands of minor jurisdictions (Federal, State, Local) into which our country is divided. Much of this damage is not brought to the notice of the highest tribunal in the land, if at all, until years have elapsed. In one of our earliest crises of national security, for example, the Alien and Sedition Acts were passed (1798). Thousands of persons were imprisoned, and the Acts were presently repealed. Their constitutionality was never passed upon by the Supreme Court.” National Security and Individual Freedom (New York: McGraw-Hill, 1950), pp. 45-46.
721 Albert L. Sturm, “Emergencies and the President,” II Journal of Politics, 1949, 121, 141. Sturm said: “Since the judiciary handles a mere trickle of the great issues arising in periods of crisis, it has been unable to retain its traditional potency. When the national security is imperiled, the Supreme Court, along with the other branches of the government, becomes a part of the national mechanism for preserving the existing social order.” We doubt that the Supreme Court and the judicial system have adequately been integrated into this effort thus far.
722 Note, cf., Duncan v. Kahanamoku, 327 U.S. 304 (1946), in which Justice Black on behalf of the majority was careful to rest upon statutory interpretation his 1946 (post mortem) invalidation of certain aspects of military rule in the Hawaiian Islands during the War. Dissenting, Burton and Frankfurter asked the Justices in the majority whether the latter, if obliged to dispose of the case during the conduct of the war, would have reached the same conclusion and whether their holding would have been enforced by the Executive.
723 Op. cit., p. 131. Rossiter concludes that “As in the past, so in the future, President and Congress will fight our wars with little or no thought about a reckoning with the Supreme Court.... This is a sad moral to proclaim after so long a journey, but it is one that we should have firmly fixed in our constitutional understanding.”
The Supreme Court’s Approach
724 See Ex parte Merryman, Fed. Cas. No. 9487 (1861), 17 Fed. Cas., p. 144.
725 Carl B. Swisher, Roger B. Taney, New York: Macmillan, 1936, p. 567.
726 4 Wall. 2 (1866).
727 Ex parte Milligan, op. cit., at pp. 120-21, 126.
728 Id., at 139.
729 327 U. S. 304 (1946).
730 Id., at 328.
731 Constitutional Power and World Affairs (New York: Columbia University Press, 1919).
732 299 U. S. 304 (1936).
733 Op. cit., p. 97.
734 U. S. v. Curtiss-Wright, op. cit., pp. 316-318.
735 323 U. S. 214 (1944).
736 Id., at 244.
737 Id., at 246.
738 Id., at 248.
739 Edward S. Corwin, Total War and the Constitution (New York: Knopf, 1946), p. 80.
740 249 U. S. 47 (1919). Holmes’ reasoning was perhaps based on J. S. Mill’s analysis in his essay “On Liberty:” “No one pretends that actions should be as free as opinions. On the contrary, even opinions lose their immunity when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act.” On Liberty (New York: Dutton, 1950), Ch. III, p. 152.
741 Discussed subsequently in relation to the Dennis case.
742 249 U. S. 47 at p. 52 (1919).
743 Abrams v. United States, 250 U. S. 616 (1919).
744 Id., at 628-29.
745 Gitlow v. New York, 268 U.S. 652 (1925); Whitney v. California, 274 U.S. 357 (1927).
746 18 USC 2385.
747 183 F. 2d 201, 212-13 (1950). See, Robert G. McCloskey, “Free Speech, Sedition and the Constitution,” 45 APSR, 1951, pp. 662-673.
748 Dennis v. United States, 341 U.S. 494 (1951). This incidentally is one of many cases in which restrictive measures which doubtless would have been upheld during a wartime emergency, were sustained as a valid exercise of governmental power during peace time. In American Communications Association v. Douds, 339 U. S. 382 (1949), the Court upheld the Communist oath provision of the Taft-Hartley Act, not as justified in an emergency situation such as we then faced, and confront today, but as a normal power of Congress accruing to it under the Commerce Clause.
749 Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 426 (1934). This is a reiteration of a quotation from his “War Powers Under the Constitution,” 42 ABA REPORTS, 1917, 238. Also in 8 Doc. 105; 65th Cong., 1st Sess., pp. 7-8.
750 Hirabayashi v. United States, 320 U.S. 81, esp. 93 (1942); Korematsu v. United States, 323 U.S. 214 (1944).
751 Bowles v. Willingham, 321 U.S. 503, esp. 519 (1944).
752 Op. cit., 219. Cf. his narrow view of the meaning of martial law in Duncan v. Kahanamoku, supra, pp. 22-23.
A More Effective Emergency Role for the Judiciary
753 Ex parte Endo, 323 U.S. 283 (1944); Brannan v. Stark, 342 U.S. 451 (1952), are examples of the Supreme Court performing at this modest but effective level.
754 The Prize Cases, 2 Black 635 (1863), and Hirabayashi v. United States, op. cit., and Korematsu v. United States, op. cit., are examples of the judiciary’s willingness to accept post hoc Congressional validation of an executive emergency program.
The Steel Seizure Cases
755 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579.
756 17 Fed. Reg. 3139.
757 The phrase is that of James Willard Hurst. The Growth of American Law, (Boston: Little, Brown and Co., 1950), p. 397.
758 Youngstown Sheet & Tube Co. v. Sawyer, op. cit., at 582.
759 Youngstown Sheet & Tube Co., et al., v. Sawyer, 103 F. Supp. 978.
760 Id., at 980, 981.
761 Youngstown Sheet & Tube Co., et al., v. Sawyer, 103 F. Supp. 569.
762 Id., at 573.
763 Mr. A. Holmes Baldridge, the Assistant Attorney General, conducting the government’s defense, rejected every opportunity offered by the District Court to justify the seizure order under a particular clause of the Constitution, or a specific statute. See Youngstown Sheet & Tube Co. v. Sawyer, Dockets No. 744 and 745, 1952. Transcript of Record, passim. (Washington, 1952). In his brief filed with Judge Pine on April 25, Mr. Baldridge claimed for “The President of the United States of America... inherent power in such a situation to take possession of the steel companies in the manner and to the extent which he did by his Executive Order of April 8, 1952. This power is supported by the Constitution, by historical precedent, and by court decisions.” Defendant’s Opposition to Plaintiff’s Motion for a Preliminary Injunction—Filed April 25, 1952, p. 113.
764 Transcript of Record, op. cit., p. 377. In addition, the following colloquy is illuminating:
The Court: “... As I understand it, you do not assert any statutory power.”
Mr. Baldridge: “That is correct.”
The Court: “And you do not assert any express constitutional power.”
Mr. Baldridge: “Well, Your Honor, we base the President’s power on Sections 1, 2 and 3 or Article II of the Constitution, and whatever inherent, implied or residual powers may flow therefrom....”
The Court: “So you contend the Executive has unlimited power in time of emergency.”
Mr. Baldridge: “He has the power to take such action as is necessary to meet the emergency.”
The Court: “If the emergency is great, it is unlimited, is it?”
Mr. Baldridge: “I suppose if you carry it to its logical conclusion, that is true.”
765 299 U.S. 304, 316-18 (1936).
766 Most of the literature on the subject of emergency power presents an analysis of the range of actual power previously asserted by the President in time of emergency.
767 Scores of examples of such action can be gleaned from the studies cited above, and the dissenting opinion of Chief Justice Vinson in the Steel Seizure cases, op. cit., at 667-710. E.g., Lincoln directed the payment of unappropriated funds from the treasury to private individuals, in clear violation of Article I, Sec. 9, Cl. 7 of the Constitution. In patent disregard of Article I, Sec. 8, Cl. 12, delegating to Congress the power “to raise and support armies,” he increased the strength of the Army and Navy by presidential proclamation. Binkley, op. cit., pp. 111-14. Corwin has pointed to many administrative agencies established by President Roosevelt without prior legislative sanction (Total War and the Constitution, op. cit., pp. 50-52) and has alleged that the transfer of destroyers to Britain directly violated “at least two statutes and represented an exercise by the President of a power which by the Constitution is specifically assigned to Congress.” (The President: Office and Powers, op. cit., p. 289; 4th ed., 1957, p. 238).
768 343 U.S. 579 at 611.
769 Petitioners’ Brief, p. 66.
770 343 U.S. 579 at 646.
771 Sawyer v. United States Steel Co., et al., 197 F. 2d 582 (1952). Both the government and the steel companies petitioned the Supreme Court for certiorari.
772 Id. Four of the nine judges dissented. The majority, citing United States v. Russell, 13 Wall. 623 (1871) and United States v. Pee Wee Coal Co., Inc., 341 U.S. 114 (1951), found judicial precedent for emergency requisitioning of property by the executive, unsupported by statute, with a concomitant right to compensation on the part of the property owners. Since the government claimed that continued production of steel was vital to the national security, and admitted the right of the companies to compensation, the majority thought the preliminary injunction should be stayed. Id., at 585.
773 343 U.S. 937. Burton, J., with Frankfurter, J., concurring, noted their belief that certiorari should be denied until the cases had been fully heard, on their merits, in the Court of Appeals. Id., at 938-39.
774 Youngstown Sheet & Tube Co. v. Sawyer, Dockets No. 744 and 745, 1952, Brief for Petitioner. Perlman speaks of “inherent constitutional power,” however. Id., at 113.
775 Id., at 19-20.
776 Id., at 102-150.
777 Id., at 26.
778 Id., at 73.
779 Id., at 49.
780 Id., at 48.
781 Id., at 49.
782 Id., at 16.
783 Little v. Barreme, 2 Cranch 170 (1804). (The above discussion of the case closely parallels that in Petitioner’s Brief, pp. 44-46.)
784 Id., at 588.
785 Id., at 585.
786 Id., at 587.
787 Id.
788 Id.
789 “The Steel Seizure Case: A Judicial Brick Without Straw,” 53 Columbia Law Review, 53-66, 64-65 (1953).
790 Frankfurter, J., op. cit., 589 and 593-614; Jackson, J., 634-55; Burton, J., 655-60; Clark, J., 660-67; Douglas, J., 629-34.
791 Id., at 637. This identical element is present in Justice Clark’s concurring opinion, and perhaps it is more clearly stated. Id., 660-61. Corwin says: “Only Justice Clark, however, guided by Marshall’s opinion in the early case of Little v. Barreme, had the courage to draw the appropriate conclusion: Congress having entered the field, its ascertainable intention supplied the law of the case.” Op. cit., at 65.
792 Id., at 634.
793 Id., at 635.
794 Id., at 635-637.
795 Id., at 640.
796 Op. cit.
797 Youngstown Sheet & Tube Co. v. Sawyer, op. cit., at 632.
798 Id.
799 Id.
800 Op. cit., 667-710, 708. Reed and Minton, JJ. concurred in Vinson’s dissent.
The Steel Strike of 1959
Notes
801 Texts of Comments in the Steel Dispute—The President’s Letter, New York Times, September 9, 1959. The Union reply appears in the same issue; that of the major steel firms appeared in the New York Times, September 10, 1959. Reprinted in the Congressional Record for September 15, 1959, pp. 18102-18103.
802 61 Stat. 136, 155 as amended, 29 U.S.C. 176-180.
803 Section 206 states: “Whenever in the opinion of the President of the United States, a threatened or actual strike or lock-out affecting an entire industry or a substantial part thereof engaged in trade, commerce, transportation, transmission, or communication among the several States or with foreign nations, or engaged in the production of goods for commerce, will, if permitted to occur or to continue, imperil the national health or safety, he may appoint a board of inquiry to inquire the issues involved in the dispute and to make a written report to him within such time as he shall prescribe. Such report shall include a statement of the facts with respect to the dispute, including each party’s statement of its position but shall not contain any recommendations. The President shall file a copy of such report with the Service and shall make its contents available to the public.”
804 The board was originally directed to make its report on October 16, 1959, but the time was extended until October 19 by Executive Order No. 10848.
805 Report to the President of the Board of Inquiry, Oct. 19, 1959, pp. 11-33.
806 Id., p. 28.
807 United Steelworkers of America, Petitioner v. United States of America, Brief for the United States in Opposition, p. 5.
808 Id., pp. 11-14. Affidavits of Acting Secretary of Defense Thomas Gates; A. R. Luedecke, General Manager of the Atomic Energy Commission; Hugh L. Dryden, Deputy Administrator of NASA.
809 Government Brief, “The Findings of the District Court,” pp. 23-26; 71-81.
810 Govt’s brief, p. 26.
811 See Anthony Lewis “Supreme Court Agrees to Rule in Steel Dispute,” New York Times, Tuesday, October 30, 1959, p. 1, col. 3.
812 United Steelworkers of America v. U.S., 361 U.S. 39 (1959).