Supreme Court Rips Truman [1952]

Robert Borosage, Tom Paine [excerpt]
The Steel Seizure case — Youngstown Sheet and Tube v Sawyer, 343 U.S. 579 (1952), remains the leading case on
presidential power. In Youngstown,
a six-member majority of the Court joined in overturning President Truman's
executive order nationalizing the steel plants to end a strike during the
Korean War. Justice Black wrote the opinion for the Court, but the historically
influential opinions were penned by Justices Robert H. Jackson and Felix
Frankfurter, both Democratic appointees. Frankfurter laid
out the argument for a sort of common law of constitutional amendment:
Deeply embedded traditional ways of conducting government cannot supplant
the Constitution or legislation, but they give meaning to the words of a text
or supply them. It is an inadmissibly narrow conception of American
constitutional law to confine it to the words of the Constitution and to
disregard the gloss which life has written upon them. In short, a
systematic, unbroken, executive practice, long pursued to the knowledge of the
Congress and never before questioned, engaged in by Presidents who have
also sworn to uphold the Constitution, making as it were such exercise of power
part [343 U.S. 579, 611] of the structure of our government, may be treated
as a gloss on "executive Power" vested in the President by 1 of Art.
II.
In Youngstown, Jackson concurred, arguing that the president's powers vary as to whether he acts with
congressional authority (his greatest power), in the absence of it, or in
opposition to it:
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.
When a president egregiously abuses his power — particularly in areas
relating to the rights of American citizens — remedies are often difficult. The
Supreme Court is reluctant to arbitrate a power struggle between two co-equal
branches. That is why the Constitution prescribes the specific remedy of
impeachment for crimes and abuses of power — "high crimes and
misdemeanors" — and empowers the House and Senate to sit in judgment
whether the actions are to be accepted or condemned.
What the Court said in Youngstown is that if presidents assert a prerogative, such the power to make war without
a congressional declaration — systematically, with unbroken regularity, with
the knowledge of the Congress and are never questioned — then that practice
becomes a Constitutional power that cannot be infringed upon by the Congress or
the Courts.