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?”
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 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.”)
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!
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.