Youngstown Sheet & Tube Co. v. Sawyer and the Syrian Crisis
Over sixty years ago, the Supreme Court decided one of the most significant cases in American history regarding presidential power. Commonly known as the Steel Seizure Case, the Court denied President Truman’s attempt to seize private property, without congressional authority, for executive-defined “national security” purposes. The rebuff of executive authority was remarkable in its own right; but its lasting legacy was the complete inability of several justices of the Court to draw clear lines for future cases, thereby foreshadowing future interaction between the branches. Sixty years later, with a president seeking Congress’ blessing for military action in a sectarian conflict on the other side of the world, the different opinions are more relevant than ever.
Unlike President Obama, President Truman did not ask for Congress’ authorization prior to acting. Instead, he asked them after the fact, immediately after the seizure, which occurred in the middle of the Korean War.
The Court said no and stated that Truman needed authorization from Congress. Justice Black wrote a formalistic majority opinion that focused on the absence of congressional action ahead of time. He pointed to past congressional actions that seemed to deny the president the exact type of authority that Truman sought. Most importantly though, he argued that the power claimed by Truman did not inhere in Article II of the Constitution. The implicit powers that come with being Commander-in-Chief do not provide the president with a blank check, especially because Article I locates war-making and lawmaking authority with Congress. He also denied the power of precedent when it came to unilateral presidential action; past presidents may have acted beyond their constitutional authority, but that did not change the meaning of the Constitution.
Each concurring opinion was unique in its own right. Justice Frankfurter expressed skepticism about clearly defining presidential power in the context of this case. He also pointed to post facto congressional authorization as a legitimate practice, but emphasized how Congress did not act even after Truman seized the mills.
Justice Douglas’ opinion may be the most relevant in a post-9/11 world, where the limits of the War on Terror remain unknown and civil wars in the smallest countries may tangentially affect national security in some way. Douglas warned that emergency does not create power and that necessity does not place power in the hands of the president rather than Congress. Bullish on the separation of powers, Justice Douglas emphasized how the separate branches protect against arbitrary exercises of power, which are most prevalent when the nation may be under duress. The Constitution cannot change for the purposes of political convenience born from emergency situations.
The most famous opinion came from Justice Jackson. He divided presidential power, as it relates to congressional action, into three categories, with the most presidential power existing in the first situation. The categories were when: (1) the president acts pursuant to express or implied congressional authorization; (2) the president acts when Congress is silent; (3) the president acts in defiance of Congress’ will. In the first scenario, the president acts according to inherent executive authority in Article II and Congress’ blessing. In the second situation, the president acts based on Article II powers alone, which few have been able to define clearly given the textual ambiguity in Article II itself. The last situation requires the most scrutiny because the president’s action is only legitimate if the goal of the action is beyond Congress’ authority (and impliedly within Article II).
Running through Jackson’s framework is the idea that the president, while Commander-in-Chief of the military, does not, because of that title, become military commander of the entire country to the point that the president can ignore the existing legal framework. In other words, representative government still reigns sovereign because the president’s military authority is not extra-legal. Interestingly, however, Jackson does state that presidential power is broader when turned outward rather than inward (domestic) because Congress has significant authority, as enumerated in Article I, in the latter situation. Thus, even in Jackson’s eyes, there is wiggle room when foreign affairs of the highest order are involved.
What does all of this mean for the present debate occurring about action in Syria? While the facts are significantly different considering Truman’s situation involved a unilateral action on American soil related to a war effort abroad, it suggests that should Congress decide not to authorize military action, the president may be fighting a battle over legal legitimacy as well as a battle over public opinion. The risk of Congressional rejection would put the president in Justice Jackson’s third category, especially considering that Article II is silent about humanitarian missions and because Congress will be tasked with funding whatever mission takes place. From a legal standpoint, one could argue that the president would have been on sounder legal footing if he acted in Jackson’s second category, because the ambiguity inherent in Article II allows for more creative legal arguments. On the other hand, the president’s decision to seek congressional authorization comports with the spirit running through Jackson’s opinion regarding norms of representative government.
At the very least, the conversation between these Justices provides a window through which to view the interaction between Congress and the President in the coming weeks.
Who Decides?
Tracing the history of the Free Exercise Clause, and particularly what is known amongst legal scholars as “exemptions analysis,” is like riding a roller coaster. When the law started to run up against unorthodox practices with greater frequency, starting with Reynolds v. United States, the Court opted for the approach that it later took in Employment Division v. Smith. In Reynolds, the Court prioritized generally applicable laws over religiously motivated conduct in direct contravention of the law (in that case, a criminal prohibition against bigamy). The Reynolds Court made clear its concern over the idea that religious belief will relieve citizens of civil obligations that are linked to the social order.
Fast forward nearly a century and the Court makes an about face. Instead of deferring to legislative judgments, the Court decided to create a system of individualized assessment for each individual claim. The Court ushered in an era of “strict scrutiny” of laws that burden religiously inspired conduct. Absent a compelling interest, the state could not substantially burden a religious believer. This is how and why Amish parents were victorious when they challenged a Wisconsin law compelling attendance of their adolescent children at the local public high school. After Wisconsin v. Yoder, the action regarding religious exemptions from the law took place in the courts.
Nearly twenty years later, the Smith decision became the law (and still is to this day). Smith stands for the principle that neutral and generally applicable laws are presumptively constitutional even if they incidentally burden religiously motivated conduct. This rule applies across the board unless the law in question targets a specific religious belief (Church of Lukumi v. Hialeah) or the case involves another constitutionally protected interest, such as parental due process rights (how Justice Scalia distinguishes Yoder). It also does not apply if the law in question contains a system of individualized assessments, especially for secular claimants (how Justice Scalia managed to not overrule Sherbert v. Verner). A keen observer will notice that the exceptions to the rule imply that the law in question was not neutral and generally applicable in the first place. Regardless, the majority opinion in Smith prefers the work of legislatures when it comes to protecting religious freedom.
Interestingly, Justice O’Connor, while agreeing with the result in Smith, did not advocate the rule announced by the majority. Instead, she preferred strict scrutiny as the best method for preserving religious liberty to the fullest, which she labels a preeminent constitutional norm. For O’Connor, the Free Exercise Clause took the regulation of religious liberty out of the hands of the legislature for the precise reason that serves as the underlying premise of the majority’s opinion: namely that incidental burdens on religion are not in fact “prohibiting” free exercise. Somewhat obviously, Justice O’Connor points out that the Free Exercise Clause does not distinguish between indirect and direct burdens. And courts are more likely to protect religious liberty, especially for the unorthodox.
While this roller coaster of precedent could take another turn in the future, especially given the numerous conflicts between religious liberty and general regulations, as well as new marriage laws in various states, it is interesting to note that the debate between each side centers around choosing between the legislature and the courts. But nowadays, many legal challenges in the religious liberty context center around problematic regulations promulgated by an agency in the executive branch, which most likely received its authority from the legislature (federal or state). The knock against leaving these questions in the hands of the legislature is that religious freedom should not be subject to the whim of the majority; conversely, critics of judicial adjudication argue that judges are unelected, unaccountable, and not capable of drawing clear lines.
Notably, one could object to leaving these issues in the hands of executive regulators on both of these grounds. Regulations that are the product of executive bureaucratic decision-making are only indirectly and remotely democratic, and regulators are at least arguably only as accountable as judges, if not less so given insulation from the public eye.
One can only wonder whether Justice Scalia would be as deferential to the legislature now that experience has demonstrated that the legislature is significantly unlikely to actually write the law that leads to litigation. Given his general frustration with legislative delegation, perhaps he will modify Smith should the issue present itself in the future.
Modest Commentary 