June 2, 1952 – The Supreme Court Decides Youngstown Sheet & Tube Co. v. Sawyer

This seminal decision, Youngstown Sheet & Tube Co. v. Sawyer, known as “The Steel Seizure Case” is one of the most influential opinions of the 20th Century on assessing the legality of presidential orders. In particular, the concurrence of Justice Robert Jackson has been discussed even more often than Justice Hugo Black’s majority opinion. [Curtis A. Bradley, in “Clear Statement Rules and Executive War Powers,” 33 Harv. J.L. & Pub. Pol’y 139, 148 (2010) somewhat wryly points out that “Jackson’s concurrence is now so celebrated that it is becoming almost de rigueur among legal academics to criticize it…”]

Executive orders and proclamations – directives or actions by the President – are not defined by the Constitution. There is no specific provision in the Constitution or in any statute that authorizes the President to issue them. The power is presumptively derived from rather vague language about executive authority in Article II of the Constitution. Nevertheless, presidents have been using such instruments since George Washington issued a proclamation on April 22, 1793, declaring the neutrality of the United States in the war between England and France. When such actions are founded on the authority of the President derived from the Constitution or statute, they may have the force and effect of law. (Staff of House Committee on Government Operations, 85th Congress, 1st Session, “Executive Orders and Proclamations: A Study of a Use of Presidential Powers” (Committee Print 1957).

In 1952, the United States was involved in the Korean War. President Harry Truman sought to mitigate inflationary pressure by creating a Wage Stabilization Board. The United Steel Workers of America threatened a strike that would have imperiled steel production at a time when nearly all military weapons required steel. Truman issued Executive Order 10340 directing the Secretary of Commerce to take possession of and operate most of the nation’s steel plants. The steel companies obeyed the order under protest and brought an action to enjoin the government from enforcing the order. Just two months after President Truman’s order, the Supreme Court ruled the government’s action was unconstitutional.

Justice Black wrote for the majority, opining that the case presented two crucial issues:

First. Should final determination of the constitutional validity of the President’s order be made in this case which has proceeded no further than the preliminary injunction stage? Second. If so, is the seizure order within the constitutional power of the President?”

Justice Hugo Black

The Court held: (1) “Seizure and governmental operation of these going businesses were bound to result in many present and future damages of such nature as to be difficult, if not incapable, of measurement.” That being so, the court was prepared to rule on the constitutional issues presented. (2) The President did not have the inherent authority to seize private property in the absence of either specifically enumerated authority under Article Two of the Constitution or statutory authority conferred on him by Congress.

There were five concurring opinions, and the one written by Justice Jackson, providing a taxonomy of presidential power, is what has made this case so significant. [For example, Michael Stokes Paulsen, in “Youngstown Goes to War,” 19 Const. Comment., 215, 217-18 (2002) compared the case to Marbury v. Madison in terms of influence.]

Justice Robert Jackson

Justice Jackson posited three tiers of presidential power:

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.

2. When the President acts in absence of either a congressional grant or denial of authority, he can rely only 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 [emphasis added].

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.

[Justice Jackson viewed President Truman’s action as falling within the third category, as “incompatible with the expressed or implied will of Congress.” Justices Frankfurter, Burton, and Clark agreed.]

Court decisions establishing penumbras, twilight zones, and the like, are inherently ambiguous, and therefore tend to stimulate all sorts of future litigation. Jackson’s framework is a case in point. Significantly, Justice Jackson did not provide much guidance on how to distinguish congressional approval from congressional silence, especially with his designation of some congressional authorization as “implied.” How exactly is approval “implied” and how does one determine the extent to which it exists?

Furthermore, even if a statute indirectly addresses the power in question, “statutory interpretation” – given the notorious inclusion, as here, of ambiguities, penumbras, and zones, can have unanticipated complications. (Justice Jackson suggests, in his concurrence, that “…because the President does not enjoy unmentioned powers does not mean that the mentioned ones should be narrowed by a niggardly construction. Some clauses could be made almost unworkable, as well as immutable, by refusal to indulge some latitude of interpretation for changing times.”)

Checks and Imbalances, Ellen Weinstein, illustrator, Harv. L. Bull., Summer, 2011

And finally, Justice Jackson added in his explication of the “zone of twilight” clause, that, when Congress is silent on an issue, “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.” Although this zone would thus seem to encompass any set of entirely new circumstances, it begs the question of the range or boundaries of congressional silence. As Justice Jackson suggested, applying “flexible tests” to the “zone of twilight” could establish that there are statutory policies consistent with the new actions. Flexibility in determining the extent of prior silence is, however, influenced by the importance of the case and/or the political leanings of the courts.

It has been contended that recent cases may have altered Jackson’s taxonomy. Medellin v. Texas, 128 S. Ct. 1346, 1368 (2008) includes the statement “Justice Jackson’s familiar tripartite scheme provides the accepted framework for evaluating executive action.” However, at least one scholar argues that Medellin along with Hamdan (Hamdan v. Rumsfeld, 548 U.S. 557, 593 n.23 (2006)) actually “effectively eliminat[ed] the ‘zone of twilight.’” [See Michael J. Turner, “Fade to Black: The Formalization of Jackson’s Youngstown Taxonomy by Hamdan and Medellin,” Am. U.L. Rev. 58 (3), February 2009: 665-698, 665. Turner reads Hamdan to hold that when Congress and the President disagree, Congress prevails. He further argues that Medellin “establishes a new interpretation of Jackson’s taxonomy by requiring a longstanding practice of congressional acquiescence to a specific executive action before it can exist in the ‘zone of twilight.’”]

On the other hand, Edward T. Swaine, in “The Political Economy of Youngstown” (S. Cal. L. Rev., Vol. 83(2), 263, 2010) considers both Hamdan and Medellin proof that the Court is still subscribing to Justice Jackson’s framework!

OctoPOTUS, illustration by Jonathan Burton for U. of Chicago Magazine review of Posner and Vermeule’s book

Eric A. Posner and Adrian Vermeule, in their book The Executive Unbound: After the Madisonian Republic (Oxford University Press, 2011) put forth yet another view. They contend that existing law is “neither here nor there” when it comes to challenges of executive orders. Opposing parties strike out at them when they believe a president is weak and they can prevail, and when the practical effects of reversing an order won’t be worse than letting it stand. What constrains presidents, they argue, is the need for both political legitimacy and political approval. Just as Lincoln refused to take action on slavery until he felt the public would accept it, so too modern presidents have a sense of acceptable norms as well as prevailing political winds. This political savvy, Posner and Vermeule maintain, is at least as important a check on presidential power as any bright line law. As Vermeule explained in an interview published in the “Harvard Law Bulletin”:

A paradox of the presidency: Despite their sweeping legal powers, all modern presidents and their advisers are slaves to opinion polls and other measures of ambient public opinion. Partly this is an effort to anticipate the next round of elections, but it is also an attempt to burnish the president’s legacy and more generally to lead from the front. For the most part, presidents can take the crowd only where it is willing to go.”

Thus, whether or not the “zone of twilight” is still in operation, or somewhere in “The Twilight Zone” may, in fact, be a moot question.

Want to know more? Youtube has a number of videos on the case, including this 2002 interview with Justice William Rehnquist, who was clerking for Justice Jackson at the time the matter came before the Court, and who agrees that public opinion played a role in the decision:

If you want to know more about Executive Orders generally, you can hardly do better than checking The American Presidency Project, available online at a site run by the University of California at Santa Barbara. Among other documents it collects, it provides access to almost the entire collection of Executive Orders, beginning in 1826. The Project also has a nice chart showing how many orders each president has issued. Or, check the Disposition Tables List at the National Archives site, with information about Executive Orders beginning with those signed by FDR, and including the following: Executive Order Number, date of signing by the President, Federal Register volume, page number, and issue date, title, amendments if any, and current status if applicable. (The texts of Executive orders beginning with Executive Order 7316 of March 13, 1936 were required to be published in the Federal Register, and they also appear in the sequential editions of Title 3 of the Code of Federal Regulations (CFR).) In addition, at the National Archives site, there is a subject index beginning with the Clinton Administration.


When The Judge is an Inquisitor: Summary of “The Earth Moves: Galileo and the Roman Inquisition” by Dan Hofstadter

In the introductory Author’s Note to The Earth Moves, Dan Hofstadter claims that he is “primarily interested in the arts” rather than the sciences, and that “Galileo’s position within the general context of Baroque civilization has not much concerned historians of science.” Hofstadter promises to “offer a brief picture” of that position. Instead, he devotes only a small portion of his narrative to placing Galileo into the context of the Baroque, but he does produce a taut, almost lawyer-like description of Galileo’s famous confrontation with the Inquisition.

Modern dramatists like Bertolt Brecht have portrayed the proceedings before the Roman Inquisition as a sort of 17th century Scopes monkey trial, where science confronted irrational religion and Biblical literalism. Hofstadter demonstrates that this approach makes for good theater but inaccurate history.

Most modern readers may not be aware of the sequence of the key events that led to Galileo’s dispute with his church. Keep these dates in mind as you read what follows:

1517: Martin Luther publishes his 95 Theses, initiating the Protestant Revolution and emphasizing the ability of individuals to interpret the Bible.

1543: Copernicus (a Polish Catholic priest) publishes De Revolutionibus Orbium Coelestium, (On the Revolution of the Heavenly Spheres) proposing a model of the cosmos with the sun rather than the earth at its center.

1545-1563: The Council of Trent initiates the Catholic Church’s Counter Revolution, responding to the Protestant Revolution, and rules that only theologians, and not members of the laity, could interpret the Bible.

1609: Galileo builds some of the first powerful telescopes, enabling him to see that the surface of the moon was not smooth, that Venus exhibited phases like the moon, and that Jupiter had at least four moons of its own.

Note that the Copernican model of the cosmos had been known and discussed in intellectual and astronomical circles in Europe for 66 years when Galileo first turned his telescopes to the heavens.

Galileo did not invent the telescope, but he built far better instruments than any of his contemporaries. Hofstadter goes into substantial detail to show how Galileo’s design improved upon that of his predecessors. He also shows that Galileo’s were difficult to use. Moreover, Galileo was loath to allow others to use his instruments because there was no strong intellectual property protection available, and he feared others would copy his designs and erode his near monopoly. Thus Galileo was able to see things that his rival scientists and churchmen could not see.

Galileo’s telescope (Picture from Museum of Science, Florence)

The Catholic Church took the position that the heliocentric model of the cosmos was contrary to scripture, which in several places describes the sun as moving around the earth from east to west, except for the notable exception when it stopped in its path to enable Joshua to complete his conquest of Jericho.

Galileo’s telescopic discoveries did not actually prove the heliocentric model, but it did enhance the model’s plausibility. The mountains and valleys he saw on the moon showed that Aristotle’s conception of the heavenly bodies as perfect crystalline spheres was incorrect. The phases of Venus made more sense if it were rotating around the sun rather than the earth. And Jupiter’s moons clearly showed that at least four heavenly objects revolved around something other than the earth.

Galileo’s journal entries describing his revolutionary discovery of four moons orbiting Jupiter, from NASA science education site

In any event, by 1616 the Inquisition became concerned about some of Galileo’s discoveries and essays sympathetic to the idea of the earth’s motion. They issued a decree condemning Copernicanism as “foolish and absurd in philosophy, and formally heretical” because it contradicted scripture. They were suspicious of Galileo’s thinking on this matter even though he had not published an explicit defense of Copernicus. [A private letter he wrote in 1613 indicates that he was a convinced Copernican.] Cardinal Bellarmine was intelligent enough to understand that the Copernican model was simpler and mathematically more elegant than the earth centric (Ptolemaic) model. Yet because of the scriptural references, he felt that the Church could not adopt a new model unless the proof for it was incontrovertible. He warned Galileo that he could look at the heliocentric model as a mathematical curiosity that could be considered “suppositionally,” but he admonished the scientist not to hold, teach, or defend it.

Cardinal Bellarmine

Cardinal Bellarmine

Galileo was headstrong and truculent, and he was convinced that the heliocentric model was correct. Moreover, he was a better theologian than anyone in the Roman curia at the time. He remained a devout Catholic, but he argued that the Bible was written for simple people as well as for sophisticated intellectuals and that men could divine God’s plan through His works as well as through His words. If God’s words (scripture) seemed to contravene what was manifest in His works, the words would have to be interpreted in some non-literal way.

In 1632 Galileo published Dialog Concerning the Two Chief World Systems. In order to pass censors, the book takes the form of a Platonic dialog in which the interlocutors discuss the relative merits of the Ptolemaic and heliocentric models of the cosmos. However, the spokesman for the Ptolemaic model is clearly a simpleton (named, aptly, Simplicio), whereas the spokesman for the Copernican model is erudite and trenchant.

The Roman inquisitors were not so dense that they could not infer the obvious thrust of Galileo’s arguments. Accordingly, they demanded that he appear before them. If the Inqusition’s procedures had been anything like an American court’s, the stage would have been set for a dramatic confrontation of ideas. However, as Hofstadter points out, the Inquisition had no interest in debating the relative scientific merits of either position. It mattered not one whit to the Inquisitors whether Galileo’s scientific position was correct. The only issue before them was one of obedience: did he “hold, teach, or defend” the Copernican view. And if they found that he had had the temerity to attempt to interpret the Bible, he would be guilty of violating the teachings of the Council of Trent.

Hofstadter asserts that Galileo was naïve to think that he could convince the Inquisitors through the strength of his scientific arguments. Indeed, the records of the proceedings contain only a few desultory references to the merits of the scientific issues. The only thing that injected some doubt into the outcome was some political maneuvering Galileo’s friends attempted to influence the pope. Fortunately for Galileo, he was not charged with heresy, a capital offense, but merely “rashness,” a lesser offense. The verdict was never really in doubt, but the punishment was less severe that it might have been. Because he ultimately recanted and admitted his “error,” Galileo was only confined to a sort of house arrest for the rest of his life.

Holy Relic of Science: Galileo’s finger, on display at the Museo di Storia del Scienza in Florence, Italy

Evaluation: Hofstadter’s book is even-handed, thorough, and sympathetic. He shows Galileo in all his brilliance and pig-headedness. As promised in the introduction, he makes a small effort to set the Galileo trial in the context of the Baroque period of art, with references to the construction of great domed cathedrals, but I’m not sure these references contribute much to the story. He is, however, effective in showing that the Copernicans had difficulty in overturning not only Ptolemy’s cosmology but also the world-view of Dante’s Divine Comedy, which was shared by most people of the time. In all, this is a solid historical narrative and a good introduction to an important event in the history of science and its relation to religion and the law.

Rating: 4/5

Published by W. W. Norton & Company, inc., 2009

Myths About the Justifications for Maintaining the Electoral College

In an article in the Washington Post dated November 2, 2012, Oxford University’s Winant Professor of American Government, George C. Edwards III, discusses five common misconceptions about the electoral college:

1. The framers created the electoral college to protect small states.

2. The electoral college ensures that the winner has broad support.

3. The electoral college preserves stability in our political system by discouraging third parties.

4. In direct elections, candidates would campaign only in large cities.

5. Electors must vote for the candidate who wins their state.

Click here to read his entire discussion, and why he contends these preconceptions about the electoral college are simply not true.

In each state, whichever party garners a majority of popular votes, regardless of how narrow the margin, wins all the electoral votes.