A renowned First Amendment lawyer and constitutional law expert says that a Korean War-era Supreme Court precedent shows why President Donald Trump’s Monday assertion of “total” authority is a “prime example” of “constitutional illiteracy.”
In a succinct letter to the editor published Tuesday in The New York Times, Floyd Abrams suggested that President Trump read up on Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) before offering additional views on his authority during the coronavirus pandemic. (Floyd Abrams is the father of Law&Crime founder Dan Abrams.)
“President Trump’s assertion that ‘when somebody is the president of the United States, the authority is total’ is not just a breezy overstatement of his powers; it is a prime example of constitutional illiteracy,” Floyd Abrams wrote. “One case the president might peruse before offering more views about the supposedly unlimited breadth of his powers arose in 1952 when President Harry S. Truman, during the Korean War, sought to avoid a strike of workers in steel plants that Truman understandably feared could have impaired the ongoing war effort. His response was to seize the steel mills.”
Law&Crime columnist Elura Nanos likewise concluded in advance of Monday’s Coronavirus Task Force briefing that Trump’s promise to override states and reopen the economy was proof that he is “constitutionally illiterate.” That take was a response to Trump’s Monday morning tweets, which turned out to be a preview of what he would say at the briefing.
“For the purpose of creating conflict and confusion, some in the Fake News Media are saying that it is the Governors decision to open up the states, not that of the President of the United States & the Federal Government. Let it be fully understood that this is incorrect,” the Trump tweets said. “It is the decision of the President, and for many good reasons. With that being said, the Administration and I are working closely with the Governors, and this will continue. A decision by me, in conjunction with the Governors and input from others, will be made shortly!”
Abrams noted that the Youngstown Sheet & Tube Co. v. Sawyer precedent is particularly striking and on point because it came down at a time when American lives were at stake.
“The Supreme Court, even in the midst of that war when the lives of American soldiers were at stake, held that Truman’s action was unconstitutional since it was neither authorized by any statute nor by the Constitution itself,” he added. “The same would be true if the president, without congressional authorization, were to order the states to abandon their ongoing efforts to limit the spread of the coronavirus pandemic.”
Law&Crime briefly mentioned Youngstown Sheet & Tube Co. v. Sawyer in the aftermath of Trump’s Monday remarks, noting in particular Justice Felix Frankfurter’s words: “It is not a pleasant judicial duty to find that the President has exceeded his powers, and still less so when his purposes were dictated by concern for the Nation’s wellbeing, in the assured conviction that he acted to avert danger.” This polite language is a harkening to a different era of interpersonal relations, but the bottom line is that the court still found Truman in the wrong legally.
But what was not immediately mentioned is that Monday was not the first time during the Trump presidency that this precedent proved relevant. The president, more than a year ago, threatened to bypass Congress to build The Wall. Trump asserted that he had the authority to do so on national emergency grounds.
Decades ago, then-President Truman, fearing the implications of a protracted steel worker strike, asserted control over steel mills on national security grounds. The Korean War raged on, and U.S. intervention in it continued. Here’s what happened:
To avert a nationwide strike of steel workers in April 1952, which he believed would jeopardize national defense, the President [Truman] issued an Executive Order directing the Secretary of Commerce to seize and operate most of the steel mills. The Order was not based upon any specific statutory authority, but was based generally upon all powers vested in the President by the Constitution and laws of the United States and as President of the United States and Commander in Chief of the Armed Forces. The Secretary issued an order seizing the steel mills and directing their presidents to operate them as operating managers for the United States in accordance with his regulations and directions. The President promptly reported these events to Congress; but Congress took no action. It had provided other methods of dealing with such situations, and had refused to authorize governmental seizures of property to settle labor disputes. The steel companies sued the Secretary in a Federal District Court, praying for a declaratory judgment and injunctive relief. The District Court issued a preliminary injunction, which the Court of Appeals stayed.
Given President Trump’s assertions of executive power during a time of pandemic, it’s not hard to imagine a similar scenario playing out today (e.g., issuance of an executive order directing the governors to reopen for business, citing total authority or “all powers vested in the President by the Constitution and laws of the United States” etc., in the interest of national defense against the damages wrought by an “invisible enemy”).
But Supreme Court Justice Hugo Black wrote that President Truman had no such constitutional power to seize private property on the grounds that he is the Commander in Chief of the Armed Forces. He said that the problem of that day and age was one for Congress to solve.
“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,” Justice Black wrote. “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.”
“Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker,” Black continued. “The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute.”
Floyd Abrams is far from the only lawyer to respond to President Trump’s bold assertions of total authority. Vice President Mike Pence’s Monday pronouncement that “the authority of the President of the United States during national emergencies is unquestionably plenary” didn’t escape critique either.
The nonpartisan group Lawyers Defending American Democracy, for instance, said such proclamations are far from the truth.
“President Trump proclaimed yesterday that the President ‘calls the shots’ and that the power of the President is ‘total.’ Vice President Pence backed him up, saying that the power of the President in an emergency is ‘plenary,'” the group began. “Sorry, Mr. President, the U.S. Constitution did not establish a monarchy. Far from it.”
“The powers of the President are prescribed by the Constitution, and further limited by the powers of the other co-equal branches — Congress and the federal courts — as well as those powers reserved for the states, and ultimately, the people,” the group continued. “More than 800 years of Anglo-American law dating back to the Magna Carta make clear that no American leader has ‘total’ or ‘plenary’ power. President Trump cannot reverse this history by proclaiming it at a press briefing. But he also cannot be allowed to undermine it through executive fiat, bad faith arguments of enabling legal advisors, the acquiescence of Congressional leaders or, above all, the silence of lawyers.”
“As attorneys we must stand together as guardians of our Constitution, the laws of our nation, and the principles of our government,” the undersigned legal professionals concluded. “We stand together to say ‘NO’ to the ridiculous attempts by the President to place a crown on his own head.”
[Image via JIM WATSON/AFP via Getty Images]
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