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.”
Oh.
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.
Yoo didn’t have the benefit of taking Con Law under George Cochran or Pete Wales. Yoo bad for Yoo.
When exactly are we “at war” these days? Apparently a Congressional declarations of war is no longer necessary. It seems to me the Constitution is pretty clear on who has the authority to declare war, but many very important political decisions have been (and are being made) premised on the notion that we are fighting at least two wars (in Iraq and in Afghanastan) and maybe a third (the war on terror), all without a hint of a Congressional declaration of war. How did the line between war and peace get so fuzzy, and who now holds the power to declare this country to be at war?
As for Mr. Yoo, why is anyone surprised that a political hack in the Bush Justice Department would write a “legal opinion” the White House could use to “legitimize” its decision to ignore the Geneva Convention (and the moral and ethical standards that were, up to then, this country’s great contribution to humanity) and authorize the use of torture? What do people think Mr. Yoo was hired to do, thwart the will of the administration in which he worked with a legitimate legal opinion?
The argument for distinguishing Youngstown would have to be that Yoo was considering torture to lie within the “theater of war”:
The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though “theater of war” be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities.
I think it’s a poor argument: Congress has power to set rules for the military, and torture is by its nature not a properly military act, leaving aside the 1949 Geneva Conventions. But regardless, it’s an argument Yoo didn’t even trouble to make.
And that points to why the OPR was right and Margolis was wrong; the issue isn’t whether Yoo honestly believed that Youngstown was distinguishable; the issue is that he knew, as a matter of fact, that any court addressing an alleged presidential power to torture would apply the Youngstown analysis, and he left that out of the memo altogether, even when claiming an Article II power to disregard any Congressional statute that set limits on the commander-in-chief power.
That’s not just crap lawyering, that’s unethical lawyering, and I have grave doubts about the ethics of any lawyer who disagrees.
Also — I thought I’d blogged this, but guess not — the Wikipedia article on Youngstown shows us a 1950s version of Yoo:
The assistant Attorney General may have done more harm to the government’s case than the steel companies had. Asked by Judge Pine for the source of the President’s authority, he offered “Sections 1, 2 and 3 of Article II of the Constitution and whatever inherent, implied or residual powers may flow therefrom”. When the Court asked if the government took the position that “when the sovereign people adopted the Constitution, . . . it limited the powers of the Congress and limited the powers of the judiciary, but it did not limit the powers of the Executive”, he assured Judge Pine that this was the case. He was, however, unable to name any cases that had held that the President had this power.
Sounds familiar. For the 1940s version of Yoo, one would have to look in the dock at the Nuremberg Trials.
Anderson, back away a moment and think about what you do as a lawyer:
OK, so assume that what a lawyer seeking to rationalize a get-out-of-jail card might reason, assuming he’s well informed, competent, and honest. He’s going to have to explain why Youngstown statements about presidential power in the face of congressional enactment and treaties don’t apply– because this torture occurred in the theater of war, or whatever (and make it explicit that we have entered a nightmare zone in which the theater of war is everywhere, permanent, and the rule of law is gone. Hello, Dick Cheney). But he doesn’t want to do that because– I’m not sure. Possibly because he understands the implications I’ve just stated. He makes no attempt whatever to explain why Youngstown is irrelevant. So pick ‘em– he’s either not well informed (I don’t buy that), or not competent or honest (I don’t know enough to pick between those).
I really think that’s where this leaves us.
Let’s shift gears slightly. Would it be a clear violation of ethical rules for Yoo to fail to cite Youngstown in a brief about all this? I think yes. He’s obligated to tell a court about controlling authority contrary to the position he’s taking. Would it be malpractice to recommend to a client (that’s what these opinions do) act as if Youngstown didn’t exist? Of course, particularly if you didn’t warn the client there’s this problem case out there.
We were writing at the same time, Anderson. Your post about “in the dock at Nuremberg” drives home a couple of things I can’t stop thinking about reading Youngstown.
Every one of those justices has in his mind first and foremost that the country has just gone through World War II, and second that the country is in combat in Korea in combat that may go– who knows where? The idea that the “war against terror” is somehow a greater threat allowing more impingement on liberty than that seems crazy to me.
But second, on that Court was the prosecutor at Nuremberg, Justice Jackson, who knew where these sorts of rationalizations would lead. Essentially every moment I was writing this post I had in my mind Justice Jackson and Nuremberg.
Agree w/ your analysis, NMC. I don’t understand why Yoo thought it any better to omit Youngstown than to come up with some b.s. distinction. Arrogance, possibly; he does not seem to think highly of the decision. But I think we agree that, whatever his motive, his lawyering was professionally incompetent, and that he had scienter at the very least that his analysis was incomplete — that he was not addressing what his client needed to be addressed.
If I may copy here part of a comment I left at the Volokh blog:
An attorney intentionally violates an obligation or standard when the attorney (1) engages in conduct with the purpose of obtaining a result that the obligation or standard unambiguously prohibits; or (2) engages in conduct knowing its natural and probable consequence, and that consequence is a result that the obligation or standard unambiguously prohibits.
That’s from the OPR report. The standard of candor and zealous representation requires an attorney to advise his client, not merely about the best-case scenario, but about the alternatives. Yoo cannot possibly have thought his memos covered “the alternatives” (for instance, that a court might not buy his “major organ failure” notion, or that it might think Youngstown had some bearing on executive authority to violate the Torture Act).
Margolis has cast shame on the legal profession by arguing that its ethical standard, and a lawyer’s duty to his client, are abysmally low.
… Re: Nuremberg and Jackson, I think the “emergency powers” clause of the Weimar Constitution must’ve been in the backs of their minds as well. The Framers certainly were under no illusions on what they called Caesarism.
and on the less lawyerly side, but nonetheless revealing, let us not forget the disgusting depths yoo is willing to “theoretically” go on presidential power, including massacres of civilians and the crushing of children’s genitalia. that this man is riding high in berkeley when he should be in an international court for war crimes is chilling evidence of priorities gone shockingly awry and morality criminally unhinged.
Let me posit that John Yoo wasn’t asked to write a memo opining on the extent to which the Government could lawfully use torture as an aid to interrogation. That decision had already been made and was being carried out. Instead, he was asked to write a memo providing legal cover for this decision. Such an assignment might have required that Yoo ignore Youngstown since to do otherwise would inject a basis on which a rational reader would have to question the conclusions reached. Undertaking to do so, with knowledge that there was authority contrary to the position taken, is clearly an unethical participation by the attorney in the client’s subsequent wrongdoing as an accessory before the fact or a co-conspirator.
This also explains why John Ashcroft, the then-Attorney General, and other senior administration officials, who would have had knowledge of the specific request made, refused to provide information to the OPR investigators.
The DOJ’s conclusion that no further referrals are warranted is clearly an attempt to sweep this issue under the rug with the promise that they won’t do it again.
This is one of the best discussions we have had on this forum. I appreciate and learn from all y’all’s comments. Keep ‘em coming.
Why is Johnny Yoo exempt from the Interntional Court for his torture memo when the judiciary of the nazi’s doing the same thing were prosecuted?
Also, what’s up with the missing Johnny Yoo memos?
Shorter Somslawyer: If Yoo is an ethical lawyer, he is a war criminal.
I agree with this. Although it is also possible that he is both.
NOTE TO JOE S. and others: Under my commenting guidelines, I do not allow comments with fake email addresses. I let this one slip by and rather than delete it after the fact, ask that Joe S. email me (your email address will remain anonymous and in fact I don’t need to know who you are).
“How did the line between war and peace get so fuzzy, and who now holds the power to declare this country to be at war?”
We have moved beyond such antiquated, indeed ‘quaint’, notions of separations of powers into the bold new age of the Strong President (which naturally encompasses the Strong Vice-President when the Strong President is unable or unwilling to make the Hard Decisions which need to be made). Only He holds the power to decide when (if ever) we will be at peace again. It’s clear, by the way, that Mr. Yoo feels relieved that his penetrating and trenchant legal reasoning was vindicated by Mr. Margolis’ decision. Not so much that he was afraid of being held legally liable for any supposed “wrong-doing”, but it was uncomfortable to be treated as a legal lightweight at faculty affairs. Thanks to this excellent decision a clear precedent has been set, and furthermore it is now clear that the term “war crimes” does not, by definition, apply to any action by any individual in the Executive Branch of the US government, nor to anyone acting on the orders of such. That’s a relief – now our long national nightmare is finally over.
The concept of a “war crime” has always seemed to me to be an elastic concept designed to give cover to the victors’ killing off their enemies’ leadership after the end of hostilities. If there is domestic law sufficient to prosecute Yoo, Bybee and others for their official actions in the name of the United States, then that prosecution should occur in a United States courtroom. Otherwise, we look like hypocrites – and worse, we will be.
Somslawyer, no one is going to take the fall for the decision to torture prisoners. That decision is just one of the reasons we have lost our moral authority and respectablility in international relations. People outside this country watch what we do more than they listen to what we say. What the United States did (to the horror of many of its citizens) was torture prisoners; and what the United States is now going to do about that (to the disgust of many of its citizens) is exactly nothing.
Unfortunately, Outsider, I agree entirely with your assessment. There’s no unringing that bell. Nor does it toll for Yoo.
The concept of legal seizures of anything, ranks right up there with whatever gets extorted in the process. Is it an ingrained notion that we can only look back on such things as violations of law by pass dictatorships because they were supported by political powers. Even when these things are discovered there’s little concern. Is there even a thought that anything could be done to correct the problem. Just guessing, probably not. So I’d add legal hit and run as a general term explaining much about the Bush years and the government it spawned. The man from Texas was a real cowboy. ” YA!-YOO!!
FOr those of you who seem to have difficulty in figuring out what it means to be “at war”, let me explain it to you. When a representative of any group, whether foreign or domestic, decides to attack citizens of the United States by flying airplanes into buildings, denoting “dirty” bombs, poisoning our water supply, or crippling our economy by destroying infrastructure, he, she or it has declared WAR on US. At that point, WAR has begun even if the planned act itself is not successful. And, at that point in time, our President is OBLIGATED to do whatever is needed to stop the attack AND punish the offender(s). To this end, he or she will have MY complete & total support for whatever action he or she deems is necessary to protect me and my family for the immediate threat as well as discourage similar acts in the future.
People like Lynda made Hitler possible.
Lynda, there are countries where a Supreme Leader gets to do whatever he deems necessary, with no legal constraints.
A little internet research might help you find them, and I’m sure you’d be happier there, living among other people who admire dictatorship, than you would be in the United States of America, a country conceived in liberty, and dedicated to the proposition that all men are created equal … even presidents.
Anderson, I was thinking more on the lines of “we gave that up when we said goodbye to George III.”
I am almost curious whether Lynda has the same unblinking complete faith and allegiance in President Obama, who is now our wartime leader.
Personally, I want them all subject to the rule of law.
Alright Lynda, being a victim of a corporate domestic attack and having war decleared on my family by our own Government I’ll sleep better knowing that you would support anything I feel I should do. Ya, right. Personally I’d like them subjected to the rule of law as well. I guess in real life personal desire is all we have. I’d go along with a military action to remove the scum from running our courts. The AG’s office or state federal agencies won’t do it. They piss on the constitution and everyone else seeking justice pisses in the wind.