When President Truman Seized the Steel Mills (Dissed Season 3 Episode 5)

in 1952 president harry truman announced that the government was seizing the nation's steel mills to head off a strike that would disrupt the war effort in korea the steel mills challenged the seizure and the case was resolved by the supreme court less than eight weeks later the dissenters who happened to be the president's poker buddies would have given him flexibility to deal with this emergency but the majority issued a swift rebuke and one justice's concurrence has continued to shape the way we think about executive power to this day i'm elizabeth slattery and i'm anastasia bowden and this week on disc we're looking at youngstown sheet and tube company versus sawyer the court's decision is indefensible i respectfully dissent because the majority in this case has not done what a court of law must do i respectfully dissent for these reasons and others elaborated in my opinion i respectfully dissent we respectfully dissent i respectfully dissent i respectfully dissent i descent it was the spring of 1952 america was fighting a war halfway across the world on the korean peninsula back at home trouble was brewing the united steelworkers of america were threatening to go on strike potentially imperiling the war effort drastic times called for drastic action president harry truman broadcast to the nation that the federal government was seizing the nation's steel mills to ensure their continued operation here's truman with american troops facing the enemy on the field of battle i would not be living up to my oath of office if i fail to do whatever is required to provide them with weapons and ammunition they need for their survival the next day truman sent a letter to congress explaining i took this action with the utmost reluctance the idea of government operation of the steel mills is thoroughly distasteful to me and i want to see it end it as soon as possible however in the situation which confronted me yesterday i felt that i could make no other choice the other alternatives appeared to be even worse so much worse that i could not accept them truman invoked the defense production act of 1950 to seize the steel mills the only problem that law didn't authorize him to seize anything it provided for mediation of labor disputes that threaten our national defense another law the labor-management relations act better known as taft-hartley gave the president the ability to enjoin a nationwide strike that would threaten an entire industry in debating taft-hartley congress considered and rejected giving the president the power to seize facilities where a threatened work stoppage would quote imperil the public health or safety the steel industry quickly brought a challenging court and the matter rocketed through the judiciary and was resolved by the supreme court in less than eight weeks what resulted was a swift rebuke by an all roosevelt and truman appointed bench of the president's invocation of implied emergency powers to seize the steel mills but what does the constitution have to say about executive power the framers of our constitution knew we would need an energetic executive to protect against foreign attacks and for the steady administration of the laws as alexander hamilton wrote in federalist 70. but the framers were also familiar with the dangers of giving one man too much power to safeguard americans individual liberty the framers diffused power among the three branches of government vested specific powers in each branch and set up a system of checks and balances to ensure that no single branch could become too powerful by dividing power ambition would be made to counteract ambition as james madison wrote in federalist 51 in other words the disputes are actually intentionally built in to the system that's jennifer mascot a professor at the scalia law school and former deputy assistant attorney general in the office of legal counsel she continued and the hope would be that each branch and each actor is sufficiently well equipped that they can in a muscular sense exert those interests so that there's not one power center moving forward and what are the things the constitution says the president can do for starters article two of the constitution requires the president to take care that the laws be faithfully executed while the president enjoys wide discretion in how to execute the laws that duty does not include creating laws as justice joseph story explained in his commentaries on the constitution the president may point out the evil and suggest the remedy but he lacks the power to enact or enable laws on his own the constitution also assigns the president the role of commander-in-chief of our armed forces the power to sign or veto bills passed by congress and with the advice and consent of the senate the responsibility for making treaties and appointing judges ambassadors and officers of the united states naturally presidents throughout our nation's history have pushed the envelope pressing their enumerated power to the outer reaches and sometimes beyond i can't wait for congress to do its job so where they won't act i will if we cannot do this one way we will do it another but do it we will i call upon all nations to do everything they can to stop these terrorist killers now watch this drive it's time directing the secretary of commerce to take possession of the steel mills america's public enemy number one in the united states is drug abuse in order to fight and defeat this enemy it is necessary to wage a new all-out offensive as your president i'm announcing tonight a new plan to require more americans to be vaccinated responding to a reporter's question about where the power to seize the nation's steel mills came from truman barked read the constitution it gives the president the power to keep the country from going to hell but there isn't uh keep the country from going to hell exception to the president's enumerated powers as our colleague steve simpson explained i think it's surprisingly easy for people to just exceed to broad exercises of power whether it's by the executive or any level of government emergencies beget emergencies and emergency power and we have to really think hard especially in today's world about what constitutes a real emergency that requires immediate action otherwise uh you know the whole country is gonna is gonna go down the tubes and when there's an emergency that demands action steve observed there's no president that is gonna say damn congress didn't give me authority to deal with this or so i'm just going to sit around and be like oh well there's nothing i can do there are moments when executives are faced with really difficult situations and decisions they are going to take action but i think we can draw distinction between the actions they take and then sanctioning them after the fact but once the crisis is over steve said we can think it through and all right let's draw some clearer lines here but the fact that courts do that in my view does not mean when there's a true emergency you know the bombs are falling the planes are coming out of the sky and you know crashing into our buildings and the president is just going to twiddle his thumbs and say oh well the court said this you know let me get the attorney general to read the decisions he's going to take action and he's going to have support for that presidents will solve the problems they have to solve but we still have to be hard-headed about what the limits of their power is [Music] before we get back to the story of truman and the steel seizure we need to take a detour and introduce a justice who has influenced the way we think and talk about presidential powers since 1952 the legendary robert jackson solicitor general of the united states fdr's attorney general and a member of his inner circle chief prosecutor for the united states at the nuremberg trials and a supreme court justice he accomplished all this without a law degree we turn to john q barrett a professor at st john's university and a fellow with the robert h jackson center who's working on a biography of the justice here's a little about jackson's background he was born on a family farm in northwestern pennsylvania it was 1892 so he is a 19th century birth but his father wasn't cut out for farming and as the 20th century started he moved the family across the state line into the thriving metropolis of freesburg new york which is basically a stop sign of the town and that's where jackson grew up and young robert jackson was very smart voracious reader uh got involved in oratory and debating activity and and was the star of his small town public high school he was the valedictorian in 1909 but it was a small class he was 17 years old and then he's the next year commuted up the valley to jamestown new york and he did a second senior year of high school and there he had special teachers who really gave him a kind of tutorial program and so by the time he was 18 he'd had a lot of education and he was also itching to get on with life and so instead of going to college he became an apprentice in a two-man jamestown new york law office a chance meeting pulled jackson into the political world where he would meet someone who played a big part in his later career it began in 1911 in albany with a handshake the mentor for whom jackson was apprenticing the trial lawyer was a state democratic uh county official and a wheeler dealer and he brought his boy jackson with him to albany and introduced him to lots of politicals and one was the freshman state senator from dutchess county new york frank roosevelt frank roosevelt was 28 bob jackson was 18 and then a couple years later when wilson wins the presidency for the first time in a while there's a democrat in the white house democrats from western new york state have a shot at patronage appointments uh jackson is one of those young democratic lawyers he goes to washington but the only guy he really knows in washington who helps him make appointments is the assistant secretary of the navy frank roosevelt who's now starting to call himself franklin and that's when they begin to sort of remember each other and correspond and uh and it's a political relationship jumping some more years forward when franklin roosevelt is running for governor of new york in 1928 he spins his rolodex to kind of collect every potential supporter he's got across the large land mass of new york state and one guy he knows in chautauqua county new york the far western side of the state is robert h jackson who by that time is a very prosperous successful you know 30 some year old lawyer and that kind of pulls jackson back into the roosevelt orbit as we all know roosevelt won the governor race and then went on to win the white house in 1932. what was jackson up to in the meantime he's a a private sector lawyer with all kinds of clients from pro bono criminal defendants charged with murder to you know corporations and oil companies in the pennsylvania oil fields after fdr won the presidency jackson came to washington to join the roosevelt administration in 1934 as john put it he kind of holds out for a job that sounds interesting so it's not until 1934 that he goes to washington and it's the job that's assistant general counsel of the revenue bureau in the treasury department today it's the irs general counsel then he moved over to the recently created securities and exchange commission he's detailed there and spends a stretch defending the constitutionality of a high-profile federal statute the public utility holding company act then in 1936 he moves over to doj this is his second senatorial confirmation he's confirmed as assistant attorney general heading the tax division uh and then in 1937 he's moved over to head the anti-trust division in 1938 he's appointed solicitor general confirmation number three and for two years he is the government's principal advocate in the supreme court argues about 40 cases dazzles the supreme court dazzled indeed justice lewis brandeis remarked that jackson should be solicitor general for life but after two years the escalator keeps moving up in 1940 he's appointed attorney general that's the fourth confirmation and he holds that job for about 18 months and that is a lot of legal advising in the context of war preparation and then in 1941 after 18 months as a.g he's appointed to the u.s supreme court uh and that's the fifth senate confirmation and he's all of 49 years old so it's quite a meteoric rise for a western new york lawyer who thought he was coming to washington for a six-month you know experience in political service before returning to private practice as john explained jackson had become fdr's go-to guy jackson was really a protege was really a potential successor of franklin roosevelt he was somebody who was brought into you know sort of every next tough fight that came along my body my body nobody quite so true once on the bench though jackson took the job seriously and tried to leave politics in the past he had a philosophy that the role required a different behavior and so he really believed i'm putting on a robe uh and that kind of covers everything i was before and now my job is really to judge and to be a law man um and sure i'm personally fond of franklin roosevelt and forever grateful to him uh but i don't work for him a little anymore independent in your talk he just thought a judge's life as best a judge could was to push politics away just four years into his tenure on the bench jackson took a sort of leave of absence here's john so jump to 1945 when truman you know totally unprepared inherits the presidency and inherits you know all these commitments and big projects you know he learns about the manhattan project germany's about to be defeated hitler's about to be apprehended we're supposedly in a commitment with our allies together to do something to hold the nazis accountable he needs another you know like great lawyer and the advisers plus his own instinct is to reach to the supreme court to grab justice jackson for what becomes nuremberg jackson said yes and he was off to germany unaware just how long he would be gone he missed a whole term of the court he didn't ask the chief justice he didn't consult his colleagues including his dear friend felix frankfurter the president asked and he kind of negotiated privately with the president for a couple of days about the details uh and then the president announced it publicly and chief justice stone was very unhappy jackson thought you know this is going to be he was sold to bill of goods and he kind of believed too much of it that it was all ready to go and it would be a summer job and he might be a little late but more or less he'd be back on the bench for the start of the new term in october of 1945 and you know that was all nonsense and he was a year late and so the court functioned as a court of eight with him away and and between the pre-existing personal tensions let's put it that way um the pure jealousy why jackson not me the extra workload of he's away and his work has to be divvied up by us um the very heavy docket and consequential things that they were deciding in that term and then stone dropping dead so it became a court of seven um made it you know a very hard absence [Music] [Music] um at some points jackson you know realizing this was taking too long uh told truman you know i quit uh appoint a new justice i'll res i'll stick with this job i have to see this through that's the right thing to do but you should have a court of nine and truman refused to let him resign as john mentioned chief justice stone died in april of 1946 while jackson was away at nuremberg everybody knew that roosevelt would have made jackson chief justice and for goodness sakes harry truman has picked jackson you know out of not only the justices but every lawyer on earth to represent the united states and prosecuting the surviving nazis so you know who's he going to make chief justice uh it's got to be jackson and that in fact was truman's instinct and then a really dirty political process in washington which jackson had no ability to sort of even know about much less combat or defend himself in uh kind of trashed jackson talked him down two other justices sort of threatened to quit the court were truman to elevate jackson and truman basically backs off of all of this and says i'm going to pick my poker playing buddy who's my secretary of treasury fred vinson and in june of 46 that's who he makes chief justice and whether or not the absence hindered his shot at becoming chief justice the experience at nuremberg had a deep impact on jackson john noted but what nuremberg was was both a trial of 21 principal surviving nazi leaders across the different sectors of their responsibility it was an autopsy of executive power and executive power in its most perverse war waging extermination perpetrating dimensions jackson went from being a staunch defender of an expansive energetic executive fdr's go-to guy who helped him consolidate power in the executive branch to a serious skeptic of placing too much power in one man's hands it's an understatement to say the experience at nuremberg changed robert jackson it transformed his world view and would pervade his judicial opinions and extrajudicial writings and speeches for the rest of his life so that's robert jackson but we should also introduce truman's poker buddy fred vinson the son of a county jailer fred vinson was born in louisa kentucky in 1890 though he came from humble beginnings he went on to serve in all three branches of government a rare distinction he was a u.s house representative for kentucky head of the office of economic stabilization under roosevelt truman's treasury secretary a judge on the d.c circuit and chief justice of the united states but he was not a terribly successful chief as richard kluger author of simple justice wrote the vincent court was perhaps the most severely fractured court in history testament on in the face of it to vinson's failure as chief justice in fairness to vincent though he inherited a court that was already broken nine scorpions in a bottle as justice oliver wendell holmes called them though some of those scorpions were gone by the time of vincent's arrival a good number were still there in any event vincent's tenure was short he died of a heart attack in 1953 after only seven years as chief justice [Music] that brings us to the showdown between president truman and the supreme court truman announced on television on april 8 1952 that the government was seizing the steel mills less than 30 minutes later lawyers for the steel mills were knocking on the front door of a dc district court judge's home demanding a temporary restraining order just days later the steel mills got an injunction to stop the government from operating the mills but the dc circuit granted the government's request to freeze that injunction while the government petitioned the supreme court for review and by may 12th the justices heard oral argument and the case was submitted though the court was stacked with all roosevelt and truman appointees only the second period in history when every justice was appointed by presidents of a single party justice jackson apparently remarked to his law clerks after the argument well boys the president got lit it didn't take long for the justices to rule despite the fact that nearly each one had something to say the court issued its ruling on june 2nd 1952 with justices hugo black felix frankfurter william o douglas tom clark harold burton and robert jackson all writing separate opinions these six justices agreed that truman exceeded his power but they all had slightly different theories as to why and chief justice vincent joined by justices stanley reed and sherman minton dissented hugo black's opinion is the official opinion of the court because it was as one justice said the lowest common denominator he explained in just four pages that the president doesn't have any congressional power congress had acted in this field and since truman acted contrary to what congress prescribed he acted beyond his power though we normally focus on dissents it's justice jackson's concurrence that has had an enduring impact fear not we'll get to the dissent in a bit jackson's concurrence has been cited in just about every case involving a dispute over executive power since then and it laid out a framework that's used to this day since there is an audio of jackson reading his concurrence we ask somebody who has a few things in common with the justice to do the honors my name is noel francisco i am the partner in charge of jones day's washington dc office and i served as the 47th solicitor general of the united states justice jackson began we may well begin by a somewhat oversimplified grouping of practical situations in which a president may doubt or others may challenge his powers and by distinguishing roughly the legal consequences of this factor of relativity one when the president acts pursuant to an express or implied authorization of congress his authority is at its maximum two when the president acts in the 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 therefore congressional inertia indifference or quiescence may sometimes enable if not invite measures on independent presidential responsibility three when the president takes measures incompatible with the express 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 turning to the dispute at hand we can sustain the president only by holding that seizure of such strike-bound industries is within his domain and beyond control by congress what did the president cite as justification for this seizure first article 2 section 1 of the constitution which vests the executive power in the president to which justice jackson said lest i be thought to exaggerate i quote the interpretation which is brief puts upon it quote in our view this clause constitutes a grant of all the executive powers of which the government is capable end quote if that be true it is difficult to see why the forefathers bothered to add several specific items including some trifling ones next the president cited the commander-in-chief clause jackson's reply was no doctrine that the court could promulgate would seem to me more sinister and alarming then that a president whose conduct of foreign affairs is so largely uncontrolled and often even is unknown can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the nation's armed forces to some foreign venture finally the president cited nebulous inherent powers never expressly granted but said to have accrued to the office from the customs and claims of preceding administrations the plea is for a resulting power to deal with a crisis or an emergency according to the necessities of the case the unarticulated assumption being that necessity knows no law the framers knew what emergencies were knew the pressures they engender for authoritative action knew too how they afford a ready pretext for use or patient we may also suspect that they suspected that emergency powers would tend to kindle emergencies i cannot be brought to believe that this country will suffer if the court refuses further to aggrandize the presidential office already so potent and so relatively immune from judicial review at the expense of congress but i have no illusion that any decision by this court can keep power in the hands of congress if it is not wise and timely in meeting its problems we may say that power to legislate for emergencies belongs in the hands of congress but only if congress itself can prevent power from slipping through its fingers with all its defects delays and inconveniences men have discovered no technique for long preserving free government except that the executive be under the law and that the law be made by parliamentary deliberations such institutions may be destined to pass away but it is the duty of the court to be last not first to give them up turning to chief justice vinson's dissent he really plays up the wartime emergency angle he wrote in passing upon the question of presidential powers in this case we must first consider the context in which those powers were exercised those who suggest that this is a case involving extraordinary powers should be mindful that these are extraordinary times a world not yet recovered from the devastation of world war ii has been forced to face the threat of another and more terrifying global conflict if it weren't for truman he wrote the nation's entire basic steel production would have shut down completely if there had been no government seizure even ignoring for the moment whatever confidential information the president may possess as the nation's organ for foreign affairs the uncontroverted affidavits in this record amply support the finding that a work stoppage would immediately jeopardize and imperil our national defense he continued if the president has any power under the constitution to meet a critical situation in the absence of expressed statutory authorization there is no basis whatsoever for criticizing the exercise of such power otherwise the president is left powerless at the very moment when the need for action may be most pressing and when no one other than he is immediately capable of action he then quoted hamilton on the need for an energetic executive and continued quote it is thus apparent that the presidency was deliberately fashioned as an office of power and independence of course the framers created no autocrat capable of irrigating any power into himself at any time but neither do they create an automaton impotent to exercise the powers of government at a time when the survival of the republic itself may be at stake vincent then discussed examples of energetic acts by presidents washington summoning the militia to deal with factions in pennsylvania that flouted the national revenue laws jefferson's initiative in the louisiana purchase jackson's removal of government deposits from the bank of the united states and lincoln's energetic action with the outbreak of the civil war in the absence of a declaration of war vincent concluded the constitution was itself adopted in a period of grave emergency while emergency does not create power emergency may furnish the occasion for the exercise of power [Music] let's unpack these opinions in jackson's concurrence john explained he writes a series of of essays about the commander-in-chief clause and the take care clause and the nature of delegations and executive power and that's some of where he draws on comparative history and his own experience studying executive power as he was prosecuting a nuremberg it also set up a framework that at least starts the conversation whenever you're in one of these areas where a president is doing something out beyond a statute and out beyond an enumerated article two power that framework is as steve explained the three categories we might as well tick through them are the first one is when the president has been given uh explicit or implied authority from congress which is his you know which is where his power is at its strongest when the the second one is when the president is acting without any congressional statement or or you know congress hasn't spoken to the issue let's say and then the third is where the congress would president would be trampling the prerogative of uh congress which is when his power is at its least but the main question in the case is in which category does this really fall and and is there such a thing as a kind of residual presidential power to deal with emergencies that we can find jennifer observed but i think if you look at the way the case was litigated the government really did seem to be trying to make up the powerful more extreme argument that inherent in the executive power alone the take care clause and then commander in chief authority that the president could do this action i think implicitly acknowledging the statutes were not in his favor but it's just not clear to me that um in the absence of statutory authority here that the court was going to be ever really comfortable i i think thankfully with approving president truman's actions because it wasn't just again the debate between congress and the executive but here it had to do with kind of private property right and so you also have the shadow of um you know or is there a taking of private property here in a way that's inappropriate and too intrusive of private rights that i think also could have been motivating a lot of discomfort here's more on jackson's concurrence from john it's not the sort of narrow approach that others are taking it considers um really historically the nature of executive power and it's not just american it's it's got english history in it it's got nazi history in it it's got soviet history in it it's you know considering government against a businessman which ultimately is what this case was as steve pointed out we see jackson invoking his experience in the nuremberg trials and i'm just with nazi germany and i mean and he's good at that saying look i don't think we're on the cusp of dictatorship here but any step we take in that direction is a bad step not for nothing like we should really look at what has happened in the world in the last what at that point it was six seven years decade you know etc if we sanction uses of emergency authority as jackson put it we're going to get more of them and we're going to get more of them that are not even close to necessary the constitution doesn't explicitly give him this power congress hasn't given him the power and not for nothing congress considered giving this power and then did not give that so that's yet another reason not to find that he has the power to seize the steel mills and as john said but then in the end he comes back to congress and he comes back to the sort of starting point of the constitution which is article one and he said you know we have a enumerated system of how the country responds to crisis it is congress that has these vast powers to legislate and to empower the president to respond to a crisis turning to the dissent steve observed i think this is one of the troubling parts of the dissent uh we'll try to find this in his enumerated powers in article two and then congress's bunch has done a bunch of stuff we're in the middle of a war there are treaties there's un action america is the center of you know it's it's it's a superpower and i kind of look at it as and therefore he must have some power to deal with this in other words our boys overseas needed steel and by golly truman was going to make sure they had it but the question ultimately becomes is there such a thing as implied presidential power to deal with an emergency and if so what sort of power is it as jennifer explained and so justice vincent in his descent really seems to conceive of the executive power as containing some inherent kind of amped up emergency authority so that if the country is facing a war at that time the opinion was issued and the steel mills were seized of course there was a conflict in korea we had come off not too long in the distance past world war ii and so the idea is that the president is the commander-in-chief and one sees that as including the power to protect the country of course if the president can establish there's an emergency then he or she needs to be able to take over aspects of the economy to be able to address the emergency and most scholars today i think even original scholars even unitary executive scholars would actually not take quite that broad of a view they might think that executive power historically at times included some kind of emergency authority but you have to recognize the place of executive power within the broader context of the constitution and viewing the constitution as a whole jennifer observed justice vincent's dissent there is quite distinct really from a full picture of the constitutional structure and that it seems like a stretch to say a president's emergency military power even if it might include as the current executive branch office of legal counsel says you know the power to be able to repel imminent attacks for example that taking over a domestic mill when there's no imminent threat is of a totally different kind and seems quite in the wheelhouse of the commerce regulatory authority that congress was always supposed to have from the beginning looking at vincent's parade through presidential history steve said essentially some of them were either authorized some of them clearly were not authorized others were in a in a context lincoln during the civil war in which we had actual fighting on american soil and he was taking action within the context of that that's a very different question when you're seizing property when the the troops are in the process of marching right now it's more like you know it's like a police chase are you really going to say the legislature has to authorize cops to jump into this car at this moment or to drive through a stoplight at this particular time now it's in the nature of what they do there is something to the idea of implied presidential powers and they're obviously at the height at the highest when he's acting in a military capacity washington calling out the militia he has the authority to call out the militia in article two so and whether it was on the you know on the margins of what he can actually do or not okay at least it's close to an actual power that he has there are historical examples and we need to look at them as such okay it happened maybe we can learn something from maybe one of the lessons we learn is we shouldn't do that again maybe a lesson we learn is hey now that that's happened once we have experience with it and congress can actually do this the right way instead of just saying oh well it happened in the past let's let's repeat it in the in the future so that's not that's not good legal reasoning it's just it's just you know interesting historical kind of anecdotes and examples in the end though it seemed to come down to personal loyalty for the dissenters they trusted truman was acting in the nation's best interest so they would have given him flexibility just justice minton apparently told his clerks that truman said he needed this power and by god they weren't going to take it away from him vincent and minton were regulars at truman's poker game at the white house and as it turns out truman may have actually asked for their advice on how to deal with the steel mills before he sees them after the ruling came out president truman was not pleased justice hugo black and a few of the other justices tried to smooth things over by inviting truman to a gathering truman came and apparently said hugo i don't care much for your law but by golly this bourbon is good as a kentuckian i can confirm that bourbon has the power to heal all ones [Music] so what explains the staying power of jackson's concurrence and why it continues to get attention to the stay here's john it got noticed it got pressed it got red he was justice jackson after all he you know prosecuted the nazis in nuremberg he was not just a justice by the time youngstown is decided he's got a kind of brand stature a part of that also is his writing he was regarded then and is regarded now as the best or one of the best writers in the history of the court and the opinion does say it's it's something you can see the drafts in his archived papers it's something he really worked on um and so it was a special opinion to him and it and it reads so beautifully but the opinion also had some champions including a big one was william rehnquist who was jackson's law clerk in 1952 you know was part of the the team although jackson did really all his own writing but he's part of the team that produces this concurring opinion uh and then becomes a justice 20 years later and becomes chief justice in 1986 and in rehnquist's executive power opinions he you know both used highlighted but also you know sort of refashioned youngstown i think that sort of put it in the spotlight for a next generation in the decades since youngstown there have been plenty of clashes over executive power from nixon's empowerment to funds to bush's response to 9 11 to obama's recess appointments when the senate wasn't actually in recess to trump's eviction moratorium to biden's vaccine mandate jackson's concurrence has been instructive when presidents exceed their enumerated powers but the steel seizure still stands out for its boldness as jennifer explained in many of the clashes that followed there actually were not claims of inherent constitutional amped up authority because the reality in our modern government is that congress has actually through legislation and statutes made the policy determination to delegate significant broad authorities to presidents and agencies sometimes in the name of an emergency and sometimes just in terms of the ability to exercise domestic powers what actually really happens in practice often is that it comes down to a question of statutory interpretation often because congress has put in place so many emergency authorities as to does the action the president wants to take or thinks is necessary for the country come within the terms of the statute and if it does then you're always in that first most powerful space and an awful lot awful lot can be done and over the past two years the covet 19 pandemic has led executives from the president of the united states all the way down to the county level to take extraordinary actions but it seems with calls to treat everything from gun violence to racial injustice to climate change as an emergency they are hooked on emergency powers steve had some thoughts on the subject two things have happened one is it's it's become more common to call things to refer to the sorts of problems that at least people think government should solve these days as emerge emergencies as like you know the kinds of things that making war analogies the war on drugs the war on poverty the war on this the war on that i tend to view what's happened over you know the intervening years since well the new deal let's say up to now or the world war ii as a steady growth of government power and a concentration of that power and compounding this problem is as justice jackson suggested the fact that congress too often lets its power slip through its fingers and what can be done steve said i put a large part of the responsibility on the courts if the courts are willing to enforce separation of powers prevent the executive branch from exercising congress's power people will rightly look to congress to fix the problems or deal with the issues they need to and maybe vote the bums out of office and maybe there'll be some public pressure and maybe we'll get into a kind of virtuous cycle of constitutional power being used the right way rather rather than the wrong way but there's hope as steve put it this is an interesting time in terms of the courts they are getting a backbone at least on separation of powers type issues in a way that i haven't seen in pretty much my entire career and it has echoes of you know the four horsemen of the apocalypse court you know the pre uh the sort of lochner court that people call it fighting back or pushing back against fdr's power some federal and state courts have pushed back on stay-at-home orders business and church closures the eviction moratorium and improper delegation of lawmaking to governors and challenges to president biden's coveted vaccine mandate are currently pending no matter how pressing the situation or well-intentioned the action there is no emergency powers exception to the constitution justice robert jackson put it best when he said emergency powers tend to kindle emergencies thanks for listening to dist please subscribe wherever you listen to podcasts we'd appreciate your feedback so send questions comments or ideas for future episodes to dist at pacificlegal.org and if you enjoyed this episode please leave us a 5 star rating and tell your friends to check out dist [Laughter] truman invoked the defense well that's hard to say defense production act okay truman invoked the pr i forgot to ask you about dressing up and i obviously did not i'm wearing a sweatshirt so you're good so i think we're we're good to go um i was planning to be in the office today and then it's a whole saga with my stove but anyway sorry i shouldn't laugh it's i know that feeling like i have crap going wrong constantly in my house and i'm like ah i have to stay home today such good length is it slavish or slammish slight it's slavish lavish is not a word no i read it as slovish in my head too because or slavish because i think of slavic i don't know yeah but we're bad at we're bad at pronouncing things so it's i think it's slavish we are um i love the language in this opinion though ossify another good word dude i mean vincent he must have had a great thesaurus that's all i gotta say seriously okay probably pronounce all this you don't know about this no no they did tell you because you're on your twitter handle is here congrats on a great year e h slattery anastasia esquire i probably retweeted it and didn't read what plf said why the hell haven't we prepared for this one by all the state legislatures in congress actually passing the right laws why the hell are we even talking about uh you know extra constitutional implied emergency powers this is a this is silly it's weird to say fortunately his tenure was short because he died i i know i was thinking that um he was just like vincent's tenure was short how about in any event okay that's better i was thinking that like unfortunately he died okay you're already recording us it's set up automatically so i can't screw it up i will start over i goofed up right off the off the bat i'm just my brain today i was up late editing the podcast for you hojos it's all that coffee true probably too much scrambling your brain in the war between the states the war between the war of northern aggression is that what it sounds like it does it totally well vincent was from kentucky so

Channel: Pacific Legal Foundation

Views: 737

Keywords: supreme court, SCOTUS, government, podcast, judicial branch, emergency powers, presidential powers, emergencies, steel seizure, Truman, WWII, war effort, unions, strikes, steel workers union, Justice Jackson, dissents, concurrence, John Q. Barrett, Jennifer Mascott, Steve Simpson, Noel Francisco, historical podcast, dissedpod, history, lockdowns, vaccine mandate, public health emergency, covid-19, US government, US history

Id: HJD-xUF4UZk

Length: 46min 12sec (2772 seconds)

Published: Wed Jan 26 2022