Friday, July 16, 2004

Youngstown and The President's Power to Torture


Yesterday I mentioned that the Supreme Court's 1952 decision in Youngstown Sheet and Tube Co. v. Sawyer. exploded the arguments made by the OLC (and the Defense Department) that the President of the United States is not bound by laws prohibiting torture. One important criticism of the OLC's Torture Memo is that it does not even mention Youngstown or attempt to distinguish it.

Several people have asked me why Youngstown is so important and whether it is even relevant to foreign affairs, because it concerns the seizure of domestic property. Because people seem unsure about Youngstown and what it means in a post-September 11th world, I thought I would spend a little time talking about Youngstown, its importance as a landmark decision restraining arbitrary power exercised in time of emergency, and why it is so important today as a means of countering Presidential Caesarism.

People who seek to concentrate and maximize Executive power don't much like Youngstown. They much prefer an earlier case from the 1930's, United States v. Curtiss-Wright Export Corporation, whose language gives the President broad authority in matters of foreign relations. But the Youngstown decision came later, and it arose in a crucial moment in American history, when a President claimed that war had changed everything and that emergency justified his actions as Commander-in-Chief.

Youngstown involved an Presidential Order by Harry Truman on April 8th, 1952, issued while the United States was fighting the Korean War. Truman ordered that steel mills be seized in order in anticipation of a strike against the nation's steel companies. "The indispensability of steel as a component of substantially all weapons and other war materials," Justice Black later wrote, "led the President to believe that the proposed work stoppage would immediately jeopardize our national defense and that governmental seizure of the steel mills was necessary in order to assure the continued availability of steel."

In fact, the President had authority from Congress under the Taft- Hartley act to order a 60 day cooling off period in order to persuade the striking steel workers to settle with management. Truman, however, had opposed this provision of the Taft-Hartley Act. Instead, he argued that he had inherent power as Commander-in-Chief of the Armed Forces to take over the steel mills in order to keep the supply of steel flowing. Congress had considered giving the President the power to seize property under the Taft-Hartley Act but had rejected it in favor of other procedures, including the cooling off period. As Justice Burton put it in his concurring opinion, "Collective bargaining, rather than governmental seizure, was to be relied upon. Seizure was not to be resorted to without specific congressional authority. Congress reserved to itself the opportunity to authorize seizure to meet particular emergencies."

Thus, the question before the Court was whether the President's powers as Commander-in-Chief gave him authority in an emergency to seize private property. There was some dispute among the Justices whether Congress had effectively prohibited the President from seizing steel mills without its prior authority or whether the Taft-Hartley Act was merely silent on that point.

The Truman Administration did not view its seizure of steel mills as purely a domestic question. Indeed, it thought the stakes for national security were quite high. Chief Justice Vinson's dissent well captured the tenor of the times:

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. . . . For almost two full years, our armed forces have been fighting in Korea, suffering casualties of over 108,000 men. Hostilities have not abated. . . . Congress, recognizing the "grim fact . . . that the United States is now engaged in a struggle for survival" and that "it is imperative that we now take those necessary steps to make our strength equal to the peril of the hour," granted authority to draft men into the armed forces. As a result, we now have over 3,500,000 men in our armed forces.

At oral argument before the Supreme Court, Assistant Attorney General Baldridge, arguing on behalf of the Truman Administration, made arguments about Presidential power that may sound quite familiar to those who have followed the pronouncements of the Bush Administration:

The Court: [I]s it not . . . your view that the powers of the Government are limited by and enumerated in the Constitution of the United States?

Mr. Baldridge: That is true, Your Honor, with respect to legislative powers.
The Court: But it is not true, you say, as to the Executive?

Mr. Baldridge: No. Section 1, of Article II of the Constitution . . . reposes all of the executive power in the Chief Executive. . . . In so far as the Executive is concerned, all executive power is vested in the President. In so far as legislative powers are concerned, the Congress has only those powers that are specifically delegated to it, plus the implied power to carry out the powers specifically enumerated.

The Court: So, when the sovereign people adopted the Constitution, it enumerated the powers set up in the Constitution but limited the powers of the Congress and limited the powers of the judiciary, but it did not limit the powers of the Executive. Is that what you say?

Mr. Baldridge: That is the way we read Article II of the Constitution. . . . It is our position that the President is accountable only to the country, and that the decisions of the President are conclusive. . . . [H]aving a broad grant of power[,] the executive, particularly in times of national emergency, can meet whatever situation endangers the national safety of the country. . . . I want to say that we had an emergency situation here. Somebody had to deal with it. [T]here would have been an indefinite stoppage of steel production. Are we to say, then, that there is no power in Government any place to meet as serious a situation as this, when it confronts the security of this nation? . . . [A]s of midnight on April 8th this seizure procedure appeared to be the only effective way to avoid a strike and to avoid a cessation for an indefinite period of production of steel necessary to national security and national defense.

When the Youngstown opinion came down on June 2nd, 1952, the Supreme Court decisively rejected Truman's assertion of unlimited Executive power, just as it would do in Hamdi v. Rumsfeld in 2004. The majority opinion was written by Justice Hugo Black. Black argued that Truman lacked power as Commander-in-Chief to seize the steel mills:

The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. 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.

Viewed only in the context of the steel seizure dispute, Black's majority opinion might be read very narrowly as a case that says that the Commander-in-Chief power does not apply to domestic questions that are properly the subject of Congressional legislation. But Youngstown has come to mean something more than this, or rather something different from this, and the concurring opinions, particularly the opinion of Justice Jackson, which I will discuss in a moment, have generally been viewed as the most important statements of the law.

That is important because the issue of whether the President may torture people overseas raises a specific problem that Black does not address: What happens when the President wants to do something under the Commander-in-Chief power because he claims there is an emergency and Congress has told him that he cannot do it? Justice Black did not reach this issue in his majority opinion. However, six of the other Justices did.

Justice Jackson's opinion, which my friend and co-author Sanford Levinson has called the greatest single opinion in the history of the Supreme Court, viewed Truman's conflict with Congress as a special case of a more general problem of how to set boundaries on Executive power. He offered a famous delineation of the possible relationships between the President and Congress:

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. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in 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, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

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. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

The OLC Torture memo raises the third case, where Congress has told the President he may not do something and the President insists on doing it anyway. The only defense the President has, Jackson says, is that Congress has no constitutional authority over the subject. In the Steel Seizure Case, that argument was unavailable; Congress clearly had authority to regulate wages and working conditions under the Commerce Clause. It is also unavailable, however, in the case of overseas torture. Although the President is Commander-in-Chief of the Armed Forces, Congress has power under Article I section 8, to regulate how the Armed Forces can treat enemy combatants or other persons captured in wartime. Here are the sources of Congress's power:

10. To define and punish piracies and felonies committed on the high seas, and offences against the law of nations:

11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water:

. . .

14. To make rules for the government and regulation of the land and naval forces:

We do not, in short, have a situation in which Congress has no power to legislate on the matter of captured soldiers, or on the behavior of the land and naval forces towards them. And because torture is an offense against the law of nations (as recognized by several international agreements to which the United States is a signatory), it also has power to define and punish torture.

Given these facts, Presidential orders to torture individuals clearly fit into situation three. The President cannot reasonably claim that the law against overseas torture is not directed to him. Moreover, he cannot deny that it was passed pursuant to Congressional authority granted by the Constitution and it specifically and directly prohibits him from torturing people. Thus, he cannot simply assert, as the torture memo does, that it is unconstitutional to apply it to him.

But, you may object, my argument is based on Jackson's opinion. Perhaps Jackson's is the most famous, most influential, and most hallowed opinion in the Youngstown case, but does it state the law? Most constitutional scholars agree that Jackson's opinion offers the basic framework for separation of powers disputes, including those in foreign affairs. But more importantly, the Supreme Court itself has said so in its 1981 decision in Dames and Moore v. Regan. While adopting Jackson's basic framework, the Supreme Court cautioned that the three categories Jackson mentioned were not "black and white."

[I]t is doubtless the case that executive action in any particular instance falls, not neatly in one of three pigeonholes, but rather at some point along a spectrum running from explicit congressional authorization to explicit congressional prohibition. This is particularly true as respects cases such as the one before us, involving responses to international crises the nature of which Congress can hardly have been expected to anticipate in any detail.

However, Section 2340A-- the prohibition of torture overseas, does not present the problem the Court was worried about in Dames and Moore v. Regan, for it is an explicit congressional prohibition specifically designed to respond to treaty obligations which ban the use of torture. Congress well understood that people are always tempted to use torture in times of emergency, and always tempted to exaggerate the emergency in order to justify torture. That is why it banned the practice. If you disagree with Congress's decision, you should work to change the law.

Even without Dames and Moore, it is worth noting that six Justices in Youngstown-- Jackson, Frankfurter, Clark, and the three dissenters, Vinson, Reed and Minton-- agreed on a key point: If Congress, acting within its constitutional authority, had prohibited Truman from seizing the steel mills, he would not have power to disobey them even when acting under his powers as Commander-in-Chief. The three dissenters did not dispute this: they merely disagreed with the majority about whether Congress had prohibited seizures of property. Indeed, the dissenters argued, far from disobeying Congress, Truman was only moving to preserve the situation until Congress could act. Of the three remaining Justices, none indicated disagreement with the basic principle that the President's powers are circumscribed when he acts directly contrary to constitutionally authorized Congressional command. Black and Douglas decided the case on other grounds, and Burton specifically refused to address the question as it pertained to activities overseas.

Presidents, like all powerful people, do not like to have their authority or their power limited. And over the years, some scholars, drawn to and perhaps overly enamored of executive power, have sought to downplay or even jettison Youngstown, arguing that the President should be clothed with absolute and unreviewable authority in matters of national security. That was the argument of the Truman Administration in 1952; it was the argument of the Nixon Administration in the 1970's, and it is the argument of the Bush Administration today. But Justice Jackson's wisdom is still sound. Jackson himself had been Attorney General under Franklin Roosevelt, and he had made his share of arguments for a strong executive. But once he became a Justice, charged with defending America's Constitution, he saw things from a different perspective:

That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety. While an interval of detached reflection may temper teachings of that experience, they probably are a more realistic influence on my views than the conventional materials of judicial decision which seem unduly to accentuate doctrine and legal fiction. But as we approach the question of presidential power, we half overcome mental hazards by recognizing them. The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies - such as wages or stabilization - and lose sight of enduring consequences upon the balanced power structure of our Republic.

Jackson was wise enough to understand that every Executive sees himself as the savior of the nation, every Executive believes that the emergency he faces justifies his policies, and every Executive thinks he needs unlimited power in order to preserve the United States from its enemies. Giving the Executive manifold powers, as our Constitution does, only makes the Executive hungry for more. The point of the Constitutional structure, however, is to hold arbitrary power in check.

September 11th changed everything, we are told. But it is important to remember that the Justices who decided Youngstown had also seen war, plenty of war. Pearl Harbor was only a decade previous, and since that day the United States had been twice at war, and had continuously sent its forces around the globe to protect its interests. These Justices well understood the importance of national security to national survival. Indeed, they were all appointees of Roosevelt and Truman, Presidents who had taken the country to war. Yet they saw beyond the urgencies of the moment, and the ubiquitous declarations that war had changed everything. They upheld the principle of checks and balances, and rejected the claim of an unlimited Executive. And they helped preserve our democratic system of government in the process.


Thank you for taking the time to explain this at such length. I am essentially unschooled in legal matters, but I found your explanation clear.


Thank you for the very well done discussion of Youngstown Sheet and Tube. I have been out of law school since 1966, have never had to cite or refer to Youngstown for any reason during the years I have practiced, but, having had the benefit of "Fred The Red Cohen" for Con Law Professor, I nonetheless have never lost sight of that case and what it stood for. It came as a surprise to me to find that much younger lawyers in the Administration, who undoubtedly had a law school education as good as or better than mine, and who have done better for themselves than a solo practice in a rural Texas community, could totally ignore the case when discussing, or "briefing" the questions of whether the President can hold people indefinitely, order torture, etc. Maybe these Administration lawyers were ill on the days Youngstown was assigned. Or maybe they have opted-in to the "faith-based" approach to legal research and writing. Or perhaps they have bought into the Intentionally Ignorant and Voluntarily Stupid aspect of Republicanism. In any case, it was the kind of omission that should get them an F for their work.

Thank you for your careful and detailed post on Youngstown. A previous poster assumed the current White House legal eagles ignored this ruling out of ignorance.

I fear they never read it, since it interfered with their ideology.

Thanks again.

In my semi-retirement I recently audited an undergraduate course on the political history of the U.S. Supreme Court. We focused heavily on Youngstown Steel. Justice Black's opinion of the Court was followed by concurring opinions of Justices Frankfurter, Douglas, Jackson, Burton and Clark. Chief Justice Vinson's dissent was joined by Justices Reed and Minton. All of these opinions are worthwhile reviewing to examine the issue of executive powers of the commander in chief. The dissent is a must read primarily for the facts before the Court (as recently pointed out by J.B. and Professor Levinson in their article "What Are the Facts of Marbury v. Madison?" in Constitutional Commentary) as well as a discussion of earlier Supreme Court cases that addressed the powers of the commander in chief. (By the way, this article is a "must read" for all beginning law students to better understand cases.)

David McCullough's "Truman" discusses the steel crisis at p.p. 896-902, stating that this 6-3 decision "was a humiliating defeat, and at the hands of old friends and fellow spirits. It was a liberal Court. Hugo Black had been an ardent New Dealer. All nine justices had been appointed either by Truman or Roosevelt." Black had invited Truman and the Justices to a party after the decision. Truman was "a bit testy .... But after the bourbon and canapes were passed, he turned to Hugo and said, 'Hugo, I don't much care for your law, but, by golly, this bourbon is good." (This was according to Justice Douglas.) I wonder if this same spirit prevails today with the Court's recent decisions on the powers of the commander in chief. Truman subscribed to "The Buck Stops Here" regarding his Presidency. The same cannot be said of Bush Jr.

I agree with every word of this characterization, and have been thoroughly shocked at the way "war powers" has come to mean "unlimited authority" in the last few.

But at the same time, having to inject some realism into the situation, has it even been discussed that several of our best known public officers have engaged in a conspiracy to violated 2340, as such should be prosecuted, fined, and possibly imprisoned, and we can be virtually guaranteed given the DOJ's preparation of this memo (and especially, in my opinion, the ridiculous appointment of Jay Bybee to the 9th circuit apparently as a reward) that no prosecution of that type will ever occur.

How exactly do I get to commit crimes, and then, prior to any official response, get my local DA or State's Attorney to write an article on why my crime wasn't a crime? Apparently con men would call someone in this position a "fix." How do I get a fix like GW has?

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It is a privilege to be able to post questions to someone such as yourself, and yet with due respect I have some doubts. Perhaps you can resolve them.

The provisions of Article I that give Congress a role in reglating military matters are few and thin, and it is unclear what the context for them was in 1787. Do we know what the Framers meant by them?


10. To define and punish piracies and felonies committed on the high seas, and offences against the law of nations:

You take the last eight words to be a grant of power to regulate the manner in which the executive shall comply with international law and with treaties. If the Framers meant that, it is odd that they tacked it onto a sentence about piracy. It probably covers the punishment of misconduct by private persons and foreign agents, not U.S. officials. Why would the Framers empower Congress to punish U.S. officials who violate international law? Wouldn't the remedy be to remove them? And if this clause provides an alternative remedy, punishment, why is it not more clearly stated?

And this:
14. To make rules for the government and regulation of the land and naval forces:

Did this mean something beyond the housekeeping tasks involved in setting up a military? Is it a grant of power to impose limits on the executive's conduct of war? And how do we know? Is there guidance in the historical record?

We do not nowadays think much of "grants of power" to Congress, since in the domestic arena, Congress has, as a practical matter, virtually free reign to legislate about all matters not expressly withheld from it. But there we have the Commerce Clause; here there is nothing like the Commerce Clause. Moreover, here there is Article II to contend with. You would have expected any limitations on the executive to be made clear.

So can you give any further guidance?

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