I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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It all depends on who’s ox is gored: John Yoo and Youngstown

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) is the leading case on presidential power in wartime, and specifically on the president’s authority with regard to congressional power when the nation was at war.  Justice Black’s opinion frames the issue in those terms:

We are asked to decide whether the President was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation’s steel mills. … The Government’s position is that the order was made on findings of the President that his action was necessary to avert a national catastrophe which would inevitably result from a stoppage of steel production, and that in meeting this grave emergency the President was acting within the aggregate of his constitutional powers as the Nation’s Chief Executive and the Commander in Chief of the Armed Forces of the United States.

The opinions (there was a majority opinion, a dissent, and five opinions concurring in the majority) grappled in a serious way with the scope of presidential power in wartime (there are extensive quotes from the opinions at the bottom of the post to illustrate this point).

One of the most remarkable things about John Yoo’s opinions about torture and presidential power that he wrote while at the Justice Department was that they did not bother to discuss, distinguish, or even mention Youngstown. Brad DeLong has lead a major part of the charge against John Yoo, by demanding the administration at Berkeley consider whether Yoo was fit to continue as a law professor.  DeLong argued that Yoo had so violated professional norms his tenure should be revoked; one point he has raised is about Yoo’s failure to even mention Youngstown in the torture memos.

Yoo’s memos concern presidential powers in a time of war. One famous precedent with which any lawyer would have to grapple is the Supreme Court’s decision in Youngstown, concerning President Truman’s seizure of the country’s steel mills to keep them rolling during the Korean War. The Supreme Court ruled his action unconstitutional. The Youngstown case set out the Supreme Court’s judgment as to how far the president’s inherent powers go in a wartime emergency and to what degree those powers are subject to congressional authority.

In his memos, however, Yoo never mentioned Youngstown—either to distinguish it as sufficiently different that the decision does not control, or to argue that it was wrongly decided and should be overturned. This, the lawyers say, is compelling evidence that Yoo was acting not so much as a lawyer but as a political hatchet man.

Last year, Yoo did see fit to mention Youngstown in a Wall Street Journal op-ed about whether the president had the power to ignore legislation– in that instance, federal wiretapping statutes.  He thought the Justice Department “absurd” to take the position that legislation like that limited presidential power, and jeered at citation to Youngstown— “Youngstown correctly found that the Constitution gives Congress, not the president, the exclusive power to make law concerning labor disputes.”


It’s about labor disputes.

Not about the scope of presidential power in wartime.

I think what we have here is equivalent to a con law professor telling us that Brown is an education law case about pupil assignments, and I’m reminded of Justice Holmes’s remark in “The Path of the Law” that the color of the hat one wears when signing a contract is not relevant to questions about the nature of the contract being signed.  It is untenable to say that the issue’s origin as a labor dispute– a threatened strike– means that the case did not deal with questions of presidential power in wartime.

So there it was, till yesterday.  Yesterday, John Yoo, through counsel (Miguel A. Estrada and Scott P. Martin of Gibson, Dunn &  Crutcher.  Folks may remember the two year battle over Estrada’s nomination as a circuit judge during the Bush adminsistration) filed a brief in a case where Yoo was sued by Jose Padilla for facilitating the torture of Padilla through writing those torture memos.  On pages 23 and 24 of the brief (which I am going to assume that Mr. Yoo, a lawyer, has read), there’s this about Youngstown:

The holding of that case, of course, is that by seizing steel mills, President Truman had impermissibly encroached onto congressional lawmaking authority. See id. at 588- 89. “The Founders of this Nation,” the Court held, “entrusted the law making power to the Congress alone in both good and bad times.” Id. at 589 (emphasis added).

What? No mention of labor law?  Just something about Presidential power as against Congressional enactments?  I think we can give Yoo and his lawyers two points here for mentioning the presidential versus congressional power issue, but what should we deduct for failing to mention the wartime context?

More language from Youngstown

On the off-chance that the language quoted above does not convince that this opinion is about presidential power in wartime, here’s some more language from the opinions.

From the Douglas concurrence

But as Mr. Justice Brandeis stated in his dissent in Myers v. United States, 272 U.S. 52, 293

    “The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.” [343 U.S. 579, 630]

We therefore cannot decide this case by determining which branch of government can deal most expeditiously with the present crisis. The answer must depend on the allocation of powers under the Constitution.

From the Jackson concurrence

The Solicitor General seeks the power of seizure in three clauses of the Executive Article, the first reading, “The executive Power shall be vested in a President of the United States of America.” Lest I be thought to exaggerate, I quote the interpretation which his brief puts upon it: “In our view, this clause constitutes a grant of all the executive powers of which the Government is capable.” If that be true, it is difficult to see why the forefathers bothered to add several specific items, including some trifling ones.

The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.

From the Clark concurrence

In Little v. Barreme, [Chief Justice John Marshall] used this characteristically clear language in discussing the power of the President to instruct the seizure of the Flying Fish, a vessel bound from a French port: “It is by no means clear that the president of the United States whose high duty it is to `take care that the laws be faithfully executed,’ and who is commander in chief of the armies and navies of the United States, might not, without any special authority for that purpose, in the then existing state of things, have empowered the officers commanding the armed vessels of the United States, to seize and send into port for adjudication, American vessels which were forfeited by being engaged in this illicit commerce. But when it is observed that [an act of Congress] gives a special authority to seize on the high seas, and limits that authority to the seizure of vessels bound or sailing to a French port, the legislature seem to have prescribed that the manner in which this law shall be carried into execution, was to exclude a seizure of any vessel not bound to a French port.”  Accordingly, a unanimous Court held that the President’s instructions had been issued without authority and that they could not “legalize an act which without those instructions would have been a plain trespass.”

The limits of presidential power are obscure. However, Article II, no less than Article I, is part of “a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” Some of our Presidents, such as Lincoln, “felt that measures otherwise unconstitutional might become lawful by becoming indispensable to the preservation of the Constitution through the preservation of the nation.” Others, such as Theodore Roosevelt, thought the President to be capable, as a “steward” of the people, of exerting all power save that which is specifically prohibited by the Constitution or the Congress. In my view – taught me not only by the decision of Mr. Chief Justice Marshall in Little v. Barreme, but also by a score of other pronouncements of distinguished members of this bench – the Constitution does grant to the President extensive authority in times of grave and imperative national emergency. In fact, to my thinking, such a grant may well be necessary to the very existence of the Constitution itself. As Lincoln aptly said, “[is] it possible to lose the nation and yet preserve the Constitution?” In describing this authority I care not whether one calls it “residual,” “inherent,” “moral,” “implied,” “aggregate,” “emergency,” or otherwise. I am of the conviction that those who have had the gratifying experience of being the President’s lawyer have used one or more of these adjectives only with the utmost of sincerity and the highest of purpose.

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; but that in the absence of such action by Congress, the President’s independent power to act depends upon the gravity of the situation confronting the nation.

From the Vinson dissent

The President of the United States directed the Secretary of Commerce to take temporary possession of the Nation’s steel mills during the existing emergency because “a work stoppage would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field.” The District Court ordered the mills returned to their private owners on the ground that the President’s action was beyond his powers under the Constitution.

This Court affirms. Some members of the Court are of the view that the President is without power to act in time of crisis in the absence of express statutory authorization. Other members of the Court affirm on the basis of their reading of certain statutes. Because we cannot agree that affirmance is proper on any ground, and because of the transcending importance of the questions presented not only in this critical litigation but also to the powers of the President and of future Presidents to act in time of crisis, we are compelled to register this dissent.

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