Saturday, June 21, 2008

Bellia on the Steel Seizure Case

The Story of the Steel Seizure Case is a chapter in Presidential Power Stories (Christopher H. Schroeder & Curtis A. Bradley, eds. 2008), written by Patricia Bellia of the Notre Dame Law School. Photo credit.
Youngstown Sheet & Tube & Co. v. Sawyer, in which the Supreme Court invalidated President Truman's seizure of the nation's steel industry, has tremendous rhetorical and symbolic significance in justifying judicial policing of executive action in a range of contexts. Yet as a matter of doctrine, it is difficult to see why the case occupies this position. The decision leaves open a major question about executive power - whether the President can ever claim a nontextual constitutional power to act in an emergency absent, or even contrary to, congressional action. Even the most enduring opinion of the case, Justice Jackson's concurrence, can support both narrow and broad judicial constructions of presidential power.

The story of the Steel Seizure case provides important context for modern readers who might perceive a chasm between what the decision stands for and what it says. In resolving the Steel Seizure case, the district court and the Supreme Court could have avoided deciding the underlying constitutional question at several turns. That fact is significant. After the executive branch's own actions provoked the district court to forcefully reject the government's claims, the government moderated its claims, thus inviting the Supreme Court to uphold the seizure on narrow factual grounds. The significance of the Steel Seizure case lies in part in the fact that the Court chose to forgo this path.

In celebrating the Steel Seizure case's implications for the judiciary, however, we should not overlook its messages to the political branches, particularly the messages of Justice Jackson's concurrence. The concurrence is famous for the framework it supplies for courts to evaluate presidential power claims - a framework that turns out to be less robust in theory and more malleable in practice than those who celebrate it might prefer. The concurrence's most pointed messages about how to preserve the balance of power between Congress and the President, however, are directed to the political branches. The story of the Steel Seizure case holds lessons not only for those who decide separation of powers questions, but also for those who generate them.

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