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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Tuesday, November 17, 2015

Steel Seizure Cases

Have had a lot to say about past Landmark Cases and already had an entry for Brown v. Bd. Somewhat less to say about this one though it is an important case, of course, and the segment was overall interesting and well discussed. The Vinson Court itself is somewhat of an also ran, a time of transition from the New Deal and WWII / the Warren Court.  There are a few important cases there, including the opening gambit of the modern day Establishment Clause cases, race cases like the restrictive covenant issue and key Communist cases. But, like more than one Truman appointee (Burton and Minton are particularly forgettable), think many don't give too much concern to this era.

Anyways, the basic conflict here was that Truman deemed it necessary to seize steel mills during the Korean War because he feared an inability to settle a dispute would lead to a strike dangerous to the war effort. Justice Breyer discussed the matter in his latest book, providing a look at the President's mind-set.  It turned out that after Truman lost that a strike did occur, but the parade of horribles Truman feared did not seem to appear.  Still, how was Truman to know?  Hindsight is 20/20 and all that.  And, Truman figured he had a strong case, various appointees on the bench plus the others were Democrats and Vinson reportedly told him it was okay.  Imagine his shock when he lost 6-3.

Justice Black wrote the opinion of the Court but each justice in the majority wrote his own opinion while the Chief Justice wrote for the three dissenters.  Black felt it fairly simple:
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.* 
 Justice Douglas appears to have had an opinion most comparable. He argued that the seizure of property was a legislative function, particularly since Congress needs to provide the funds to compensate. There might be special wartime seizures in connection to military operations but that would be a different matter. The other justices, as Justice Frankfurter noted, felt "the principle of separation of powers ... more complicated and flexible than may appear" from Justice Black's opinion.  Their approach was more tied to history and the fact that Congress specifically addressed the matter at hand, in the eyes of the majority, they specifically decided not to give the President the right to handle labor disputes in this fashion. Thus, we have Justice Jackson's now famous three tier approach applied here "at the lowest ebb," since the Congress didn't leave the matter open.

And, unlike something like directing a battle, this is not something where the President has solitary power. As Justice Burton argued: "controlling fact here is that Congress, within its constitutionally delegated power, has prescribed for the President specific procedures, exclusive of seizure, for his use in meeting the present type of emergency."  Justice Clark said somewhat similar. The dissent argued that the President as commander-in-chief could seize the mills to successfully address a wartime emergency.  Various precedents, contra Justice Frankfurter in particular, were comparable.  There was an opening or the President did have executive power to even meet Justice Jackson's third tier. 

As noted in the recent DeShaney post, ultimately, this is a matter of judgment, line drawing in separation of powers.  More than one justice, with an eye on WWII in particular, was concerned with the limits of executive power, here in a specific domestic sphere and not even in the midst of a declared war.  In time, the power of the President seemed to be paramount, Congress not defending its sphere as much as here. In fact, in various cases, Congress seems to want to give the President more power than he (so far) might want. The detainee cases in recent years was a matter of the judiciary overruling not only the President but ultimately Congress to some degree.  Some limits for internal matters can be found such as Bond v. U.S. limiting the reach of the chemical weapons law or the consular notification death penalty cases.

Well, I did have a decent amount to say after all. A final word -- among those arguing the case was John Davis, who defended segregation and Arthur Goldberg, who later was on the Court plus had a later infamous oral argument post-career that people found rather horrible. Here, however, it is said he did a very good job.


* Apparently, going by Justice Black's opinion a few years earlier, said "job" does include deciding to detain over a hundred thousand presumptively loyal  Japanese residents, 2/3 or so citizens.

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