One half century ago, President Harry S. Truman promulgated an Executive Order that authorized federal government seizure and operation of the nation's steel mills to support United States participation in the Korean conflict.1 The president relied on his power as commander-in-chief of American armed forces, other executive authority provided by Article II in the United States Constitution, the need for sustaining the American military effort, and temporal exigencies. Eight weeks later, the United States Supreme Court held that Truman lacked any power to seize the property of American steel companies in Youngstown Sheet & Tube Co. v. Sawyer.
On November 13, 2001, President George W. Bush promulgated an Executive Order that authorized trial by military commissions of non-United States citizens whom the American government suspects of terrorism in domestic cases and concomitantly denied these persons access to the federal courts. Bush, like Truman, premised this action on executive power, namely his authority as commander-in-chief, the necessity to wage the war against terrorism following the September 11 attacks, and time restraints.
Although, the respective presidential initiatives five decades apart can be distinguished, the two endeavors are in fact strikingly analogous. For example, both the Truman and Bush efforts raised profound separation of powers concerns. Both presidents resorted to their executive authority derived from Article II as justifications for extraordinary domestic actions, when fighting undeclared "wars." The leaders, therefore, exercised legislative power in derogation of the Constitution's express proviso that assigns Congress, not the president, lawmaking responsibility.
The specific Bush Administration claim to executive authority would prescribe federal court jurisdiction, an enumerated power that Articles I and III confer on Congress in explicit terms, while it would proscribe even threshold judicial consideration of the initiative's constitutionality. This assertion of authority is at once unsupported, imperial, and sweeping. Indeed, the November order could undermine not only legislative, but also judicial power, and, thus, jeopardize the finely wrought balance among the federal government's tripartite, coequal branches. Because the Bush endeavor more substantially invades Congress' province and concentrates federal authority in the president than the corresponding Truman Administration action, Youngstown applies with greater force to the fundamental questions the recent initiative presents.
These propositions mean the Executive Order issued last November 13, 2001 warrants analysis through the prism of Youngstown on the landmark decision's fiftieth anniversary. Our article undertakes this effort and ascertains that the president has no power to bar those individuals who are covered by the Bush Order from invoking the jurisdiction of the federal courts.
We first explore the origins and development of the critical issues, which implicate the Constitution, judicial jurisdiction, and interbranch authority, and find that specific language in the Constitution bestows on Congress, rather than the chief executive, almost plenary power to establish the federal courts and to delineate their jurisdiction.
The article next evaluates legal measures that responded to the September 11 terrorist strikes. Our focus is the USA PATRIOT ACT and the Bush Order for which we survey considerable background information.
The third part examines the "police action" in Korea during the early 1950s. We canvass numerous presidential administrations' requests that Congress authorize executive branch seizure of various industrial enterprises as a technique for settling labor-management disputes and review ways in which lawmakers treated these overtures. This segment then analyzes the Truman Administration order that seized the steel mills. The portion ends with an assessment of the Supreme Court opinion in Youngstown, which invalidated the seizure, and the meaning subsequently accorded that crucial decision.
Section four applies Youngstown to the November Executive Order and ascertains that the directive is unconstitutional, insofar as it precludes federal courts from exercising jurisdiction granted by federal statute.
The article concludes by urging the Bush Administration not to invoke the Order's provision that purportedly eliminates any federal court scrutiny of, or intervention in, detainment or trials authorized by the directive. We believe that this assertion of power would erode legislative and judicial authority, upsetting the meticulously calibrated equilibrium among the federal government's three coordinate branches.
Christopher Bryant & Carl Tobias, Youngstown Revisited, 29 Hast. Const. L.Q. 373 (2002)
Co-written with Christopher Bryant.