More shut­down

Bid to take U.S. steel mills landed be­fore high court

Chicago Tribune (Sunday) - - NATION & WORLD - By Steve Hen­drix

■ Par­tial gov­ern­ment shut­down con­ta­gion spreads.

The pres­i­dent was frus­trated. He was at odds with Congress. The reg­u­lar work­ings of gov­ern­ment didn’t let him do what he des­per­ately wanted to do. So he went on na­tional tele­vi­sion to ex­plain why a pub­lic pol­icy im­passe amounted to a na­tional emer­gency al­low­ing him to take ex­tra­or­di­nary ac­tion.

“My fel­low Amer­i­cans, tonight our coun­try faces a grave dan­ger,” Pres­i­dent Harry S. Tru­man said from the White House on April 8, 1952. “These are not nor­mal times. These are times of cri­sis.”

Tru­man ex­plained why he had just di­rected his sec­re­tary of com­merce to seize con­trol of the coun­try’s steel mills. An on­go­ing dis­pute be­tween the com­pa­nies and their work­ers threat­ened to deny U.S. troops the weapons and tanks they needed to fight in the Korean con­flict.

“I would not be faith­ful to my re­spon­si­bil­i­ties as pres­i­dent if I did not use ev­ery ef­fort to keep this from hap­pen­ing,” he ar­gued.

Tru­man’s ac­tions 67 years ago sparked a fiery con­sti­tu­tional dis­pute that rock­eted to the Supreme Court. And now, as Pres­i­dent Don­ald Trump con­sid­ers claim­ing sim­i­lar emer­gency pow­ers to build his long-promised bor­der wall de­spite law­mak­ers’ re­fusal to fund it, schol­ars are look­ing back at Tru­man’s gam­bit and the le­gal prece­dent it cre­ated. Sud­denly, Youngstown Sheet & Tube Co. v. Sawyer, a great test of pres­i­den­tial power, is in vogue again.

“Youngstown is the right place to look,” con­sti­tu­tional scholar Jeffrey Rosen said. “But a lot has hap­pened since then.”

Trump used a White House ad­dress Tues­day to make the case that the United States is fac­ing a se­cu­rity cri­sis at its south­ern bor­der. Though he has threat­ened to de­clare a na­tional emer­gency to build his bor­der wall, he did not do so in his Oval Of­fice speech. In­stead, he de­manded that con­gres­sional lead­ers pro­vide $5.7 bil­lion he is seek­ing and end a par­tial gov­ern­ment shut­down over the spend­ing im­passe.

Tru­man’s con­flict was much dif­fer­ent. In 1950, North Korea had in­vaded South Korea, and Tru­man, declar­ing an emer­gency, had sent troops for what he hoped would be a short de­ploy­ment to de­fend a U.S. ally. But the Chi­nese joined the North, and the con­flict raged on.

At home, Tru­man strug­gled to keep in­fla­tion in check with a new law that al­lowed him wartime wage and price con­trols over strate­gic in­dus­tries. With the price of steel in check, the com­pa­nies re­fused to meet work­ers’ de­mands for a pay in­crease, and by the end of 1951, a strike was loom­ing.

Tru­man wanted to avoid dis­rupt­ing the steel sup­ply while U.S. troops were fight­ing, and he had a weapon to head off the strike. The 1947 Taft-Hart­ley Act gave the pres­i­dent au­thor­ity, through court or­der, to sus­pend a strike for 80 days in cases in which na­tional se­cu­rity was at risk. But Tru­man was a la­bor ally (Taft-Hart­ley had passed over his veto), and didn’t want to anger his base.

“His pro-union sym­pa­thy pre­vented him tak­ing the most legally safe route,” said Rosen, who is pres­i­dent and CEO of the Na­tional Con­sti­tu­tion Cen­ter. “He was forced by the po­lar­ized pol­i­tics of the time to make ex­cep­tional claims about ex­ec­u­tive au­thor­ity.”

But first, Tru­man or­dered the par­ties be­fore a spe­cial Wage Sta­bi­liza­tion Board to work out a deal. The board rec­om­mended a wage in­crease, but the steel com­pa­nies re­fused un­less they were al­lowed to hike steel prices. Tru­man ef­fec­tively ac­cused the in­dus­try of try­ing to prof­i­teer dur­ing an emer­gency, and af­ter fur­ther ne­go­ti­a­tions col­lapsed and the unions voted to walk out, he went on the air to an­nounce his in­tent to take over the mills. He had signed an ex­ec­u­tive or­der be­fore go­ing on cam­era.

“Our na­tional se­cu­rity and our chances for peace de­pend on our de­fense pro­duc­tion,” Tru­man said in that ad­dress. “Our de­fense pro­duc­tion de­pends on steel.”

The steel com­pa­nies re­port­edly had lawyers at the door of a fed­eral judge within an hour of the broad­cast. The ar­gu­ments and ap­peals flew up the ju­di­cial chain un­til land­ing be­fore the Supreme Court on May 12, 1952.

The gov­ern­ment ar­gued that even though the Con­sti­tu­tion did not ex­plic­itly em­power the pres­i­dent to seize pri­vate prop­erty, his role as com­man­der in chief gave him au­thor­ity to do so in times of na­tional emer­gency. The steel com­pa­nies ar­gued that not only did Tru­man lack the power to take over their mills, but also that Congress had con­sid­ered grant­ing him such pow­ers while de­bat­ing the Taft-Hart­ley Act and de­lib­er­ately re­jected it. In­stead, it had ap­proved an­other mech­a­nism to pro­tect na­tional se­cu­rity by giv­ing the pres­i­dent au­thor­ity to sus­pend a strike. Tru­man lost.

By a 6-3 vote, the jus­tices sided with the steel com­pa­nies. The “Pres­i­dent’s power, if any, to is­sue the or­der must stem ei­ther from an act of Congress or from the Con­sti­tu­tion it­self,” Jus­tice Hugo Black wrote in the ma­jor­ity opin­ion.

Rosen said the rul­ing in­stantly be­came “a canon­i­cal case of con­sti­tu­tional law.”

It was a sharp re­buke, and Tru­man im­me­di­ately or­dered the mills re­turned to com­pany con­trol, head­ing off a deep con­sti­tu­tional cri­sis. But it didn’t stop fu­ture pres­i­dents from test­ing the lim­its of their emer­gency pow­ers. Dur­ing a wild­cat postal strike in 1970, Pres­i­dent Richard Nixon de­clared a na­tional emer­gency and de­ployed the Na­tional Guard to de­liver the mail.

In 1976, Congress tried to rein in pres­i­dents with the Na­tional Emer­gen­cies Act, which placed var­i­ous lim­its on how ex­ec­u­tives could de­clare emer­gen­cies and how long they would be in ef­fect. Still, by re­new­ing some dec­la­ra­tions year af­ter year, from one ad­min­is­tra­tion to an­other, pres­i­dents have man­aged to use the power dozens of times. Jimmy Carter’s emer­gency sanc­tions against Iran are still in ef­fect, as are Ge­orge W. Bush’s against Zim­babwe and Barack Obama’s against Syria, among about 30 oth­ers.

Tru­man was shocked by his Supreme Court smack­down, in part be­cause he thought his ar­gu­ments were sound. “The pres­i­dent has the power to keep the coun­try from go­ing to hell,” he said in re­sponse to crit­ics. But more so be­cause the court was full of jus­tices ap­pointed by Democrats, in­clud­ing four Tru­man had el­e­vated him­self.

Tru­man would com­plain about the case for the rest of his life. But his per­sonal pique was mol­li­fied a few weeks af­ter the rul­ing, Rosen said, when Jus­tice Black in­vited him to a party at his house with other ju­rists.

“Hugo, I don’t much care for your law, but, by golly, this bour­bon is good,” he said.

“It’s im­pos­si­ble to imagine the Roberts court mak­ing up with Trump like that if they rule against him,” Rosen said.

FOTOSEARCH/GETTY

Pres­i­dent Tru­man was thwarted by the Supreme Court in his bid to take over steel mills dur­ing the Korean War.

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