Transcripts For CSPAN3 Supreme Court Landmark Case Youngstown Sheet And Tube V. Sawyer 20170808

Were quite unpopular. These decisions change our lives. Lets go through cases that illustrate very dramatically and visually what it means to live in a society of 310 million different people who helped stick together because they believe in a rule of law. Good evening and welcome to landmark cases our series that explores people behind the Supreme Courts most important decisions throughout the history. This week the 1952 steel seizure case. Its officially known as youngstown steel and tube versus sawyer. We are going to start with a piece of vintage film. This is harry truman on april 8th, 1952, as he announces the seizure of the nations Steel Industry. With american troops facing the enemy on the field of battle, i would not be living up to my oath of office if i failed to do whatever is required to provide them with weapons and ammunition they need for their survival. Therefore, i am taking two actions. First, im directing the secretary of commerce to take possession of the steel mills. The issue in this story is the power of the president and its limits. Not often is the president s authority directly attacked in a lawsuit, but that is what happened in the administration of harry s. Truman in the second year of the korean war when he ordered the federal government to seize the major steel mills in the United States. The legality of that action, debated with intense feeling, was finally resolved by the United States Supreme Court. This is the story of its ruling and the conflict that led to it, the story of a president s power contested. And thats what were going to talk about tonight, the president s power and what the Supreme Court had to say about its limitations. Let me introduce you to our two guests that will be with us for the next 90 minutes to talk about the steel seizure case. Michael gerhardt, university of North Carolina law school professor, author of a book called power of precedent and forgotten president s, their untold constitutional legacy. William howell is an american politics professor at university of chicago, and author of numerous books. Gentlemen, welcome. Thank you. For both of you, what are the very succinct issues about the steel seizure case . Whats the heart of this . At its heart, this is a story and a case about president ial power and its limits during times of war, and it puts before the court essential themes about the conditions under which president s during times of emergency can do things that may not be expressly stated in the constitution, and the limits congress and the courts can place on it. What makes it a landmark case . Well, i think the critical question the court is ultimately unable to avoid is constitutionally of the president s seizure of the steel mills. That in itself is kind of a titanic. It is a tremendous conflict which is really important at the time in a sense. I think what makes it historic are two things. One, it is about structure. It is about the basic relationship between the president and congress. Most of the other wonderful cases you are covering are about rights, but structure also has to do with protecting the American People in certain respects and requiring our leaders to follow certain guidelines. The other is i think it gives us a language to talk about structure. It gives us a very important sort of concepts we will use later in cases involving separation of powers down the road and are basic language for being able to talk about separation of powers will be traceable to this case. Okay. Lets get to the background. This took place in the time of the korean war, the korean conflict, which began when the north invaded south korea on june 25th, 1950. Now, it is important that there was never a declaration of war. Why is that significant in the case that unfolds . Well, the aftermath of world war ii, which was the last Time Congress actually declared a war, and what we have in this case is the u. N. National Security Council comes forward and recommends calls for military action that the United States gets involved in, but famously truman calls this not a war but a Police Action in response to a query from a reporter. This is really important because it set the framework for the discussion thats going to follow, and it opens up lots of opportunities for members of congress to criticize the president. It makes it a harder time for the president to walk this line between on the one hand wanting to argue on behalf of deference by the other parts of government, while also saying they shouldnt be meddling with his rights to wage war. Theres an important legal exemption between a state of war and an emergency situation . There could be. Thats one of the issues in the case, whether it qualifies as an emergency in the absence of a declaration of war. As was pointed out, one of the tricky things for president truman is he is backed into a corner because the more he talks about it as being war it is less popular for him. The nation has just come out of a horrible world war, we are about to enter into what he calls a Police Action which will cost thousands and thousands of lives. The more people become aware of that, it will be harder for truman. So truman has to figure out what am i going to emphasize publicly that allows me to maintain some popularity and power and still get done what i want to get done. What was Harry Trumans situation with the public by this point . It wasnt good by the time this court case rolls around. His Approval Ratings when he first assumed office were way off the chart. He was doing phenomenally well. They plummet dramatically in the aftermath of world war ii and he gets a bump up in 1948 and a slight bump up when the war gibbs up until the mid40s. By the time this Supreme Court case rolls around, his approval rate was in the low 20s. We dont see those numbers until the trail end of bush in the second term. What about also the, say, the economy at that point . Well, it was fragile. It was expanding, right, in the aftermath of world war ii. There was a tremendous amount of growth occurring, but one of the themes we will see played out is a concern that the war is going to disrupt this growth and it is going to lead to high inflation. So at the center of this case there are a set of concerns about price controls and wage controls, and to ensure that the economy is well functioning, which will matter both to keep the public happy with their government and also to ensure that the economy is funding the war and supporting the troops. There may be another thing to keep in mind here. This case is also ultimately about power, and so it is really interesting to think about with harry truman because by the time this case rolls around he is a lame duck. He is so unpopular he cant run again, and yet hes about to do something which is a tremendous exercise of authority in spite of that low popularity and hes going to try to get away with it. He knows hes not going to run again in march of that year. He could have run, as you say. And a month later hes going to do something which i think would make even people today amazed a president could try to do this. What about his relationship with congress . Never good, and certainly not good at this point in time either. So hes got a lot going on in the country, a lot going on politically. There was a lot of labor strikes going on, which is obviously going to spill over into this case. At the same time hes got a lot of difficulties within his party, of course, and with the other party as well. So he and congress dont really get along very well. He even vetoes one of the critical pieces of legislation but his veto is over ridden, a critical piece for this case called the taft hartley act. Congress basically responds by overriding his veto. It is a tense relationship and that may shave what hes going to do. You mentioned taft hartley and talk about that, because harry truman was pro union. Did he see it as antiunion . Yes, he absolutely did. Thats why he tried to veto it and later would be reluctant to follow it even if it applied in this case. So truman doesnt want to really alienate the unions, thats another dimension which is important in the context of this case and it is going to be very difficult to maintain his popularity with the unions while at the same time trying to figure out the Legal Authority hes going to use. I would just note, interesting in his announcement, he talked about failing to do the right thing. He doesnt talk about the law at all in that early statement about his authority to do this. Hes just trying to do the right thing here. Hes thinking in basic political terms. Yes, this is an argument in many ways about expediency. It is about maintaining an ongoing war effort, and hes asking Congress Excuse me, asking the Supreme Court to step aside and recognize that he and he alone has this obligation. Asking both branches really to step aside so he can do this. We have a facebook comment, and i will tell you at home in a minute how you can be involved in this program. Three ways you can do that. Already posting on facebook, Jessie Kilgore writes, look what he did to the coal unions during this time as well. Some might be interested in knowing he wanted to round up railroad strikers, drafting them into the military and killing labor leaders that would not run the trains. In fact, did he get involved with other industries . Concerns about strike have a long history in matters involving war. They were at the center of fdrs efforts to keep the domestic economy in order, and he comes to a set of agreements with unions that he sort of goes out and beseeches them not to strike and beseeches congress to give him a set of Statutory Authority to quash strikes to ensure anything related to the war, which was just about everything in the domestic economy in a total war like world war ii, wouldnt interrupt that effort. And in the aftermath, i mean we were talking about taft hartley which was enacted in 1948, republicans had two years where they got control of congress. One of the things theyre reacting to when they enact taft hartley was this massive influx of strikes that occurred in the aftermath of world war ii. So when truman was in power. So he had every reason to worry about the introduction of strikes and the ways in which they may interrupt the war. I think one thing related to that is roosevelt had a different set of statutory mechanisms available to him, Different Things he could rely on for authority to, for example, seize control of particular businesses or industries, and then when truman comes in he is going to end up with a different set of statutes, more restrictive in a sense than what roosevelt had to deal with. Well, i mentioned you getting involved, and that really makes this Program Works for us. Three ways to do it . First of all theres a conversation underway on facebook. Find cspan on facebook and you will see the posting about landmark cases and join the conversations there. You can tweet us and well mix tweets in throughout the next 90 minutes of our program. When you do, it is really important for you to use the landmarkcases. That will allow us to sort through and get your comments to air here. Finally, you can call us. We like to hear your voices. Here are two ways to do it, depending on where you live in the country. Eastern and central time zones, 2027488900. Mountain and pacific time zones, 2027488901. We will begin taking calls in about ten minutes or so, so you can get into queue. Next up is another documentary, and this is about youngstown, ohio, and its importance to the nations steel production. We will learn more about the Steel Industry at that time and the impact a strike could have on the nations economy and its war preparations. This is my hometown. It is called youngstown and it is in the state of ohio near the pennsylvania boundary. In youngstown we make steel. We make steel and talk steel. Look down any street in town and youll see the mill at the end of it. There are 25 miles of them along the mahoney river and today theyre busy day and night. Every eight hours the shift change, 15,000 men to the shift. The mahoney valley, named for the river, was pretty amazing. Just one after the other, you would see blast furnaces and you could see the operation and all of the factory buildings. It was hard to tell where one began and whether the other one ended. There was a company by the 1940s that was one of the largest Steel Companies in the nation and the largest employer in the state of ohio. According to 1950 census in the mahoney valley there were a little over 400,000 people. Of that, 70,000 worked in steel or a related industry. Of that 70,000, 40,000 worked in basic steel production. Certainly it is important because you need to manufacture munitions and that sort of thing, the proverbial hot war. The korean war was a hot war and they needed steel for munitions, tanks, for jeeps, for all of those things that you needed in the Second World War as well. So if the Steel Industry went on an industrywide strike it was going to be a real problem because it is basic to the things that an army and navy needs, and air force need to fight a war. Well, gentlemen, lets set the stage for what happened to actually cause the steelworkers to want to go out on strike. What were the conditions . Well, it was the view of the laborers that the industry was making a tremendous amount of money and that money wasnt being directed towards them, and so they were calling for wage increases. And they were making money because of war production . In no small part. I mean the Steel Industry was operating nearly at capacity at this time and producing a tremendous amount of steel, and so the workers thought that they were due an increase in wages. But this is at a time when the government was involved in setting wages and in setting prices, and so one of this is going to be a fight between not two parties but three, and the government is going to have an Important Role to play in balancing whether or not and deciding whether or not there ought to be a response an increase in the price of steel to cover the cost associated with an increase in wages. There was an institution establish called the wage stabilization board. What was its role in this case . Well, truman is going to try to use it to his advantage. Truman actually can get gets basically a deal, so to speak, in putting forth to the board what the wage demand would have been from the unions. The problem is he cant get the price at the level that he wants and it ends up being the Steel Companies want Something Like 12 to 13 a ton and they cant get anywhere close to that. The price stabilization, they wont go anywhere near that. So it creates a real problem. You cant get the companies and the unions therefore to arrive at any kind of a deal. You can only get something that looks much more favorable to the union, and truman realizes this and it is a problem. You have these two units, the office of price stabilization and the wage stabilization board, and each is charged with a different function, and this was done on purpose, in part to ensure they would be working together because the whole point is to tamp down inflation. They dont want wages to increase and prices to increase and then wages to escalate. But it makes for a mess in trying to handle the negotiations that proceed. So in the late months of 1951, this is all really starting to percolate and harry truman it seems would have several options to exercise other than seizure. He could have asked congress for its endorsement, he could have invoked taft hartley as im understanding it explained. He also could have turned it over as he did to this wage stabilization board and lived by what it said. All of those were options available. As the yearended, he was talking to the public and it seemed like other things were on the table except for seizure. For sure. So the union comes out on november 1st, 1951 and threatens and announces, which they had to do under taft hartley, a set of restrictions on the ability of unions to strike and they have to make announcements when they plan to strike. So they come out on november 1st saying, were planning to strike. And theres a cooling off period after that . And theres a cooling off period thereafter, exactly. December 31st truman announces he is going to go to the wage stabilization board and seek their counsel on what the increase in wage ought to be. And the union voluntarily then steps aside and backs off and delays the strike, which allowed for an additional cooling off period, but it gets hot pretty quickly just as soon as the office as soon as the wage stabilization board comes forward with its recommendation. So then bring us up to day to march and april of that year when this really becomes the decision to seize the steel mills. What happens that leads whats the ticktock . The ticktock is on march 20th the wage stabilization board comes forward and makes a recommendation that includes an increase of wages at 12 1 2 cents back dated to january 1st and two subsequent 2 1 2 cents increases and some fringe Wage Benefits as well that will be given, and theres predicted predictions varied but it looks like it is going to cost about 26 cents per worker per hour to the industry. There also is then the union shop is recognized by the wage stabilization board, and thats an important thing the union really cares about. And the management pivots quickly and says, we cant possibly cover this, we cant possibly incur these costs without a substantial increase in the price which will allow us to cover these costs. And so what happens . Well, theres some negotiations that go back and forth between march 20th and august 8th, and those negotiations april 8th . Excuse me, april 8th, yes. They fail. The president is intervening, hoping they will come to a voluntary agreement between labor and management. They fail and the as we saw, truman comes out on the 8th of april and announces hes going to seize the steel mills. So tensions are rising around the country. April 4th the talks collapse, and it is april 8th that harry truman goes to the public and announces he is doing this. What do we know from Historical Records about trumans advisers . Was he acting on his own accord from a sense of righteousness or getting a lot of advice . Hes getting a lot of advice and it is not all uniform. No. In the sense, theres a lot of lawyers spending a lot of time on this from all sorts of different parts of the administration, defense department, justice department, the white house, and they are looking at every avenue we just talked about and trying to figure out which, if any of those statutes we just talked about provides the means by which the president could take actual control over the operation of the steel mills. Almost one by one each of the statutes gets knocked out. Taft hartley ends up being the one that comes back around the most. Some of the others get dismissed because they seem to apply much more narrowly to circumstances and involve condemnation and a much more administrative procedure than the president wants to have. Part of the problem with taft hartley, besides the fact the president hates it is he has used some of the other mechanisms. The other is the cooling off period is extended too far, 99 days, and thats even more than the taft hartley act would have asked for so he doesnt feel he can use it either. In a way, as time goes on, the negotiations are failing, the legal arguments are in essence combatting against each other and theyre almost knocking each other out. Theres also a set of advisors who are economists as well. The council of economic advisers are coming and suggesting to truman, look, the Steel Industry can cover these costs. So hes getting advice that suggests, you can push through these wages and you ought to take a harder stance against management than certainly management would like, which is part of the reason why theyre at logger heads and we end up having to see the takeover. So the Union Announces it is going to strike on april 9th, and on april 8th, the night before, harry truman goes to address the nation. Lets watch. Plain fact is, though most people dont realize it, the Steel Industry has never been so profitable as it is today, at least not since the profiteering days of world war i. And yet in the face of these facts, the Steel Companies are now saying they ought to have a price increase of 12 a ton, giving them a profit of 26 or 27 a ton. Thats about the most outrageous thing i ever heard of. They not only want to raise their prices to cover any wage increase, they want to double their money on the deal. You may think this steel dispute doesnt affect you. You may think it is just a matter between the government and a few greedy companies, but it isnt. If we granted the outrageous prices the Steel Industry wants, we would scuttle the whole price control program, and that comes pretty close to home. For both of you, what are you hearing the president doing in making the case to the public here and how will it figure into the case were going to discuss . Hes shaming management. Hes saying, these are a bunch of profiteers who are using this dispute as an opportunity to extract and to price gouge, and this in the background is a war, right . It is a careful line he is trying to draw. It is not really worth Police Action, and yet our troops are fighting and dying on the front lines and this industry is central to maintaining the war effort, and what is management doing . Theyre being unreasonable in their demand. And, of course, this is largely a political argument. So theres a bit of a divide here between the legal arguments hes going to have to make and the political argument hes clearly making. Hes going to make an argument to the American People, and that means speaking plainly to them, and it is designed i think to cast the blame for what is happening, of course, on the management and saying, look, theyre forcing us into this situation and theres a crisis in the sense that theyve helped make worse. Therefore, you know, my options for dealing with it are few and far between. It seems as though the Steel Company lawyers were wellprepared for this because sure. They moved quickly. What did they do . Well, before the evening was done theyre at the home of one of the judges in District Of Columbia trying to get what is called a temporary restraining order, an injunction to stop the fight. The judge basically says, im not going to do that without the government being present so he ordered a hearing the next morning. It was that quickly, they were knocking on the judges door the night of Harry Trumans announcement and the hearing was the next day. They got right in and the arguments were fast and furious on both sides. You have truman and his lawyer not truman, but his lawyers arguing about the need for expediency and restraint on the part of the judiciary so we can attend to this problem, and the lawyers of management declaring this gross abuse of executive power. We will learn more about the arguments made at this level of the court and how they impacted the publics perception of the case in a couple of minutes. Lets take your phone calls. First up is david who is watching us in tulsa. Hi, david. You are on the air. Welcome. Caller hi. I would like to ask a question. Did the cold war motivate truman in any way in his decision, and did it have an effect upon the Supreme Court as well . Either of us can take that. Yes, the cold war definitely was a factor. Let me just mention one aspect of it. This is also paralleling the mccarthy era. So theres a lot of concern about communist infiltrating the government, a lot of theres a tremendous amount of anticommunism sort of fervor out there, and this is partly also what not just gotten america into this military fight, but the president has to manage that as well. So hes clearly concerned with trying to stop the spread of communism, but hes also trying to deal with the alleged corruption in his own administration and some of the congressional leaders saying thats a problem hes got. So all of this is stuff hes trying to deal with. And the korean war in many ways was a proxy war with the soviet union. You have the soviet union and china in the background. The cold war is just beginning. The former ally also of world war ii has become the foe. This is just now beginning to be worked out. A viewer on twitter asked about the hot war. He asks this is roti davis. Do you think that the war was used as leverage by the Steel Industry to get what they wanted . The korean war. Was the war itself . I mean they certainly were producing at really high levels in no small part because of the war. You dont hear truman if anybody was going to make that argument, you would have heard truman make that argument. You dont see him say theyre leveraging the war to price gouge, but theyre using this showdown, the labor dispute to do so. Let me say it is because of the war that labor thinks that management is making a lot of money, which in some ways is the impetus for the demand for higher wages. Patrick is watching us in new york. Hi, patrick, youre on. Caller hi. Good evening. Thank you for taking my call. I briefly want to refer quickly to karamatsu that was on last week and that Justice Scalia said Something Like this could happen again. Let me fast forward to when Ronald Reagan replaced the air Traffic Controllers with military controllers because they went out on strike, albeit the air Traffic Controllers i believe were federal employees. My question now is, with the passage of the war powers act and even further the patriot act, do you see any problem or any issues with an executive order now by the president to do something similar like happened in youngstown . Well, thats an interesting question. With regard to the war powers resolution, president s generally ignore it. They dont they dont abide by it at all, except maybe to Pay Lip Service to it. Otherwise it doesnt really make much in effect on what they do. In terms of whether or not a president can do something this lets call it extreme, i think it depends on context. The other thing to note about this particular case i think is the extent to which the president s actions turn out to be unpopular. If the president were to do something and it were would be popular, it is a different dynamic. I think with truman, his as we point out in the beginning, his popularity is plummeting through this. And that is i think i think we have to at least acknowledge that as one of the arguable constraints on what is happening. The political economy too about how we go to war has also changed in really important ways. So the Steel Industry has a measure of independence that the military industrialized sector of today does not. Theres a gross level, much more regimented between the relationships between the Defense Industry and the production of munitions than there were 50 or 60 years ago. That plays a role as well. We should say there are contemporary disputes about how president s use their war powers at home, and we havent been talking about the nationalization of any industry throughout this. Ed is in danbury, connecticut, and youre on. Hi, ed. Caller hi. Truman lost the case, but steel was produced. So how did that come about and did the case have maybe an indirect effect even though he lost, the industry, unions or the public . Im going to ask you to not get too far ahead because we want to tell the story how they lost. Anything for that caller at this point or time or should we wait . It is coming, it is coming. They do strike and it gets resolved. All right. So stay with us. I guess thats the main message here. On the 50th anniversary of the steel seizure case, Duquesne University law school and the Harry Truman Library did a big retrospective and interviewed two of the clerks to Justice Jackson. One of them ended up having quite an interesting legal career himself. Next you will see a bit of an oral history of this case, just a clip from it, with bill renquist who became chief justice of the United States, but at the time in 1952 he was a clerk to Justice Jackson. He talks about where we are in the story right now and the lower level federal courts hearing this case and the argument that Harry Trumans representatives made. Lets listen. The government made some extraordinary claims at the very beginning in the District Court, that the president had all of the authority, that george iii had unless it was taken from him by the constitution. Well, you can imagine the press outcry about this. I mean, it just made headlines. It just gave a negative aspect the government abandoned that argument long before it got to the Supreme Court, but it just got the government off on the wrong foot. And there was an ambivalence about the korean war at that point, wasnt there . Very much so. There were people fighting and dying in korea, but very few sacrifices called for on the home front. World war i rather world war ii im not that old. World war ii, you know, you had 14 Million People under arms, but a lot of things restricted on the home front. The korean war, you just didnt have those restrictions on the home front. So theres just a real ambivalence as you say. With all of the Legal Counsel the president got before, how did the government get off to such a bad start in making the case in the federal courts . Well, there was an assistant attorney general who i think will live in infamy for having gotten into this mess, out of which the kbovt governmentner fully gets, i should say. He tries to make the argument partly on the base of Statutory Authority, but then he gets into a discussion really with a district judge in which the district judge does a fabulous job crossexamining baldridge and it ends up in the paper the next day because he basically answers yes when the district judge basically says, this is not limited, theres no limit to this or it is up to the executive to determine whether or not theres an emergency and when it ends. Basically the governments lawyer is saying, thats right. Is government is willing never to escape that, even in the court of appeals and ultimately the Supreme Court, the discussion keeps coming back to that, where is the limit on a president s authority inherently or otherwise to determine something is an emergency, but to use extraordinary power during it. For the record lets get that districts judges name on the air. It was walter bastian, correct . He is the first person they went to. It was actually judge pine. What do you want to say about this part of the process . Well, the president s lawyers are making a case on constitutional grounds, and for all of the times that fdr had intervened during strikes and taken over industries, which he had done dozens of times and the courts affirmed those actions for the most part, they always affirmed them with regards to Statutory Authority. They never recognized the president s Constitutional Authority to nationalize an industry as truman had done. So from the getgo theres a sense in which trumans lawyers are over playing their hand. What was the outcome of this legal proceeding . It does not go well for truman. It gets shut down in no Uncertain Terms. Now, notice, all of it was being asked for was a preliminary injunction. So it was a sense in which what was at stake was can we put it on hold right now, not do we have to shut it down . What management was primarily concerned about was whether or not the Truman Administration was going to increase wages or change the wage the terms of employment for the workers while holding the Steel Industry. Rather than simply making the case on the basis of irreparable damage, which is what is at stake in asking for the lifting of the imposition of a preliminary injunction, the district judge goes all the way and says, look, this thing is illegal through and through. We should shut this thing down. And he does. It is a tactical mistake by the government among other things, although i think the judge was going to get to that issue one way or the other. But many experts have criticized the government in this case for not making the sort of narrower argument in the courts below which we just sort of went through, which is to simply say the Steel Industry is not entitled to preliminary injunction. That doesnt require getting into the constitutionality of the government of the president s actions. Not at all. So what happened next legally . How did they get from this level to the Supreme Court . It gets there fast, and thats another aspect of this case. It ends up in front of the u. S. Court of appeals, the District Of Columbia. They end up staying it, the judges order, but then expediting the case along until it gets to the United States Supreme Court. It is there in very short order before the United States Supreme Court. He and his fellow clerks went over and heard the District Of Columbia argument, having a feeling this case might be coming to them at some point. So you say it is unusual, but the court really can respond very quickly if it needs to. What makes this particularly unusual that they did it this way . Well, precisely the circumstances we have been talking about. There are boots on the ground in korea, and that is not lost on anybody. Plus, the Steel Industry is real concerned about losing control over its business, and so no matter which way you look everybody wants this done yesterday. And while it is happening steel is continuing to be produced because theres an injunction and so nothing has happened to production during this . It is continuing to be produced, but the whole argument as to the urgency with the war being in the background, the whole argument is that we cannot stand for an interruption of the flow of steel because it is going to lead to an inability to produce the tanks and the munitions and the planes needed to wage the war. The war is very much in the background here. Pat is watching in milton, washington. Your question . Hey, pat . Caller im sorry, yes. You have a question for us . Caller yes. I know that harry truman was not a collegeeducated president. I think he was the only one. I think. What lincoln, too. Caller my question is he certainly was not an attorney. Did this have any impact on his thinking or i dont know. I dont mean to sound snobbery, because i admired the man. Im an old lady and he was president when i was, you know yeah, i think he was a pretty good guy, but i understand he was not a College Educated man. I wondered, does this have any impact do you think . Thank you for asking the question. It is a fair question, although im not sure it does have much impact. We have a number of president s who didnt have formal education who are sharp people, and i think president truman was perfectly sharp, an intelligent guy. This is i dont think it happens because he doesnt understand the issues or hes not sophisticated. I think this turns out to be a quandary for him and ultimately a failure for him because he does fervently believe hes right. Thats what he said in the television address. He believes hes right, and so the president , no matter the level of education, may well believe that. And he is engaging this in pragmatic terms. He is aligned with labor. He is concerned about an ongoing war he is trying to manage, and hes trying to see a way forward. When hes casting about for statutory authorization, he is looking for the tools he needs to take the action that to him makes sense. It is that pragmatism that is defining the action he takes. Well, before we get to the case of the Supreme Court, the Supreme Court itself in 1952 was quite an interesting institution. So give us sort of the framework of the court at that time. Who were the overall the political appointees that were made . What was he facing when the case went to the court . So the court itself is and at an interesting point in time. It has nine democrats on it, five appointed by roosevelt, four by president truman. Truman felt that all of them were friends of his, particularly the ones he appointed, and he also appointed the last person ever to be a democratic appointee as chief justice, fred vincent. So this is called the vincent court. They have nine strong people, particularly the eight people other than the chief justice, very strong egos, very intellectual, very opinionated. Somehow vincent has to keep this crew together as best he can. Hes by the time this case rolls around, he is largely failing to keep them together. He doesnt have a record of consensus as far as the court is concerned. The descriptions of the court suggest that it was really torn apart by factions. Was it . Well, it certainly was, as was the Democratic Party. I mean, the Democratic Party was riven in ways then they are not today. So there are southern conservative democrats in the party, northern liberals, and many of the people were appointed with under fdr with an eye toward their support of new deal legislation. To the extent that carries over into unified support of a host of new challenges if presented isnt clear, and we see the emergence of disagreements between them. Particularly ive read there was a black justice black faction and justice frankfurter faction. Yes, and they have different views of constitutional law generally and for that matter almost everything. Theyre also quite different personalities. So i think when you start zeroing in on the court, you will find out even though theyre all democrats, they dont all necessarily like each other. They dont all necessarily respect each other, and, by the way, president truman is just a bypass both justice black and Justice Jackson in appointing his old friend vincent as chief justice. My guess is theyve not forgotten that, so theres a bit of personal antipathy with the president. So theres politics here and the fact that all of the justices, we point out, they were appointed because of their support for the new deal. What we are seeing is how the test for appointing somebody in the first place might not be relevant ten years down the road. The issues are going to be different. Theyre going to evolve. Now this group of democrats are going to be disagreeing about all sorts of things. Truman misses a lot of this though. He thinks hes going to come out just fine, in no small part because they were democratic appointees and they served in his administration and they were people with whom he had personal ties. And because he has a conversation with one of them, chief Justice Vincent. Do we know that from historical record, that the chief justice and the president were talking about it . We have at least one recent book that suggests they have a conversation. It cant be disproven for obvious reasons, none of the people are alive today and theres no record of the conversation, but theres a suggestion which might be credible because vincent is advising truman on all sorts of things. He is the chief justice, hes an old political buddy of truman, thats why hes chief justice. Theres one suggestion, one allegation that truman talks to vincent. We dont know if in person or on the phone or how, and vincent tells him, dont worry, the court is going to side with you. Would it happen today . Would people watching this know that there might be conversations now, right now we have a president and a chief justice of different parties, years later his son, ramsey clark, was named attorney general by lyndon johnson, correct . So do you know of any other father son attorney general appointments in history . It seems like an interesting historical footnote. Outside of my knowledge. It was interesting to point out there was a family legacy there. So we are going to learn a little bit more about this, but i want to take some more calls because we have more people lined up. Next is chris watching us in brooklyn. Youre on the air. Caller oh, hi. Thank you for cspan and thank you for the series. You know, i think that one of the things that people really think about when they think about this case is that there were a lot of other options than seizing steel mills and that there were a dozen or so governors involved and a lot of local politics, and, quite frankly, harry truman was not, you know, the gravitas that fdr was and korea was not a declared war. I think Justice Jacksons commentary about the powers of the president being at their twilight or, you know, their apex are you know, are pretty apt. Truman was just not that strong of a president going into this. So if youre guests can comment, i would appreciate that. Trumans playing from a place of weakness. That is true. And he had a number of statutory laws that he could have pointed to to draw what he wanted. We talked about taft hartley. Some others. None of them provided a Clear Pathway to take the actions that he wanted to take which is why in the end when he comes before the court, he is arguing a set of arguments that is a mix. He wants to say what i am doing is not new. This historical precedent for what i am doing. And the court should recognize the legality of it. Next is a call from eric in virginia. Caller hi. Thank you for taking my call. I am calling from a different perspective. An engineering point of view. The difficulties faced by any times that there is a strike or shut down, it would take several weeks to shut down the steel mill and probably several weeks to start it up. So timing, you just cant turn off the switch and walk away from a steel mill. You have got a lot of things to do to protect the equipment and enable you to come back up, thats all. Thank you for adding that wh between april 4th and april 8th. Its april 4th that the negotiations break down and the strike is about to happen on theyre going to start shutting it down four days later. This delay is in part because of these concerns. Steve is in clover dale, virginia. Hi, steve, youre on. Caller thank you all so much for taking my call. I was wondering about the same time the United Nations is kind of new i was wondering it it was a new body and if they had outside the United States interest that was maybe influencing the decisions of not just truman but the government and how that may have played a role, like the secretary general was doing things in the congo and kind of colonial rule and things and england were falling apart and as history was progressing and they were losing their power and it was kind of this grab from the u. S. And the industry and things and just kind of like a last grasp, maybe the government was used by business, maybe it was even though i know he was going against business, the outside interest i guess is my question may have influenced our government. Thank you. And truman. Appreciate it. I dont know of any evidence that suggests that somehow what truman was doing was acting on the behest of the united nati s nations. Interestingly when the United Nations and the charter was signed it was signed with a promise that when the nation goes to war that the domestic constitutional obligations remain in place and so some of the controversy associated with this particular war and truman calling it a Police Action rather than recognizing it as a war and seeking due authorization and rather pointing to the u. N. As justification is borne out. The oral argument was set for may 12th, 1952, about a month after the seizure and they set aside five hours for oral argument. Today the typical oral argument is one hour. Can you comment on the five . Thats a huge sign that this is a big case and that tells everybody its a big case, but i should also note that the relatively short period between arguments in the lower courts and the Supreme Court doesnt give the government a lot of time to think of new arguments so they will recycle things including the arguments about the basic authority the government has here. Thats going to be one problem in a sense the government has got. I think that the fact that theyve set aside so much time is also going to in a sense allow the court to give this case well, really tell the American People we know its an important case, weve excited it and were going to give it a thorough consideration. There were a number of attorneys who took part in the argument during the five hours, i want to read the names. John davis who was an attorney for the Steel Companies, Phillip Pearl man, u. S. Solicitor general, Arthur Goldberg a name that will be familiar to some in history, united steelworkers of america general counsel, Clifford Obrien and harold heiss and the orlando of railway conductors. So who in that list do you want to comment upon . Well, its a stellar list. You have some of the great lawyers of that generation beginning of course with john davis who is famous for all sorts of reasons, he also was solicitor general of the United States before this. He argued one of our earlier cases, didnt he, the shank case . Yes, and he is going to be arguing a big case you are going to be talking about very soon as well, brown. Davis is one of the great lawyers of course of his generation of first name in the famous law firm davis polk in new york city. What also we find with davis is that the Steel Industry had had multiple lawyers up until this case and they were realizing having multiple lawyers isnt helping them necessarily so they get davis to consolidate the arguments, he comes in and he is thought to be a really excellent advocate in the case. To some extent overshadowing pearl man who is going to follow who happens to be the first jewish solicitor general of the United States and is acting attorney general at the time. Of course, goldberg has a very short argument in the case later, but i should say once chief Justice Rehnquist mentioned he thought the best argument in the whole case was goldbergs argument which was overshadowed because others had more time. One of the viewers watching tweeted, tom curry who is a journalist we know well, he tweets about john w. Davis who argued the steel seizure cases won only 29 of the popular vote as a democratic candidate in 1924. He was everywhere. He did a lot of things. Also been in congress, i believe. So very distinguished gentleman and really a veteran of the Supreme Court bar. So hes going to get up and hes actually not going to be questioned very much by the justices in spite of that long period of time. Pearlman stands up and he is battered with questions. Well, thats the sense of our next video. Were going to return to that oral argument with excuse me, that oral history with former chief justice bill rehnquist. He is interviewed in 2002 by ken gornly recently appointed president of duquesne. Lets listen to william rehnquist. Well, the fact that john w. Davis argued for over an hour and i think was asked only one question. I mean, he had a style of advocacy that you dont hear nowadays but it was very impressive. And then solicitor general pearlman got a whole bunch of questions from the court. The clerks werent present at the conference, but george niebank, my coclerk and i were just dying to find out what happened as i suspect all the other clerks were, too. So we followed Justice Jackson into his office when he got back and he would tell us what happened in rchs can. He said, well, boys, the president got licked. The president got licked. 63. And the leading with the opinion by black, which came which was affirming in no Uncertain Terms the defeat of trumans case and in many ways constituted a reaffirmation of the District Court ruling which was sweeping in its indictment. The other justices in the majority opinion will break for a variety of reasons which im sure we will lay out, but its a real blow for truman. I want to did about court procedure. We always hear about the Supreme Court that conferences in violet, that no aides can go into the room when the justices are in conference, but here we have Justice Jackson going right out and talking to his clerks about what happened in that room. Is that common . I think thats pretty common. They are not in the room when it happens, the clerks obviously you know, this is a big case and im sure all the other justices are doing the same thing, going back to their chambers telling their clerks what happened. The fact that black announces this decision will be yet another blow to truman. They served together in the United States senate and they were friendly or so truman thought or truman confused friendship with agreement. Thats going to be just one of the many blows he gets here. So the very specific two questions that were before the court are these, first of all, is it appropriate for the court to make a final determination on the constitutionality of the president s actions when the case is at the preliminary injunction state . So its a Court Authority question. And the answer to that question was . The court says the answer to that question is yes, i guess thats the critical answer here. And that in itself is historic. This isnt in some respects thought to be the great the first great separation of powers conflict in the 20th century. This is probably the biggest loss a president has had up until this time in terms of American History and the Supreme Court. So keep in mind not too long before the Roosevelt Administration has won a dont yus victory in the carmatsu case, less than a decade later the president is going to lose big time. Black is somebody who turns out to be have a distinct viewpoint when it comes to constitutional law, separations of powers, he is what calls a formal list. He believes theres executive power, the taking of property is legislative and the president doesnt have that power inherently or otherwise, easy case, its over, three pages. And question number two before the court is really at the heart of what weve been talking about, was the president acting within his constitutional power when he issued an order directing the commerce secretary to take possession of and operate most of the nations steel mills and the court said patently no. The president has no constitutional right to behave in the way that he did and he lacks Statutory Authority to intervene as he did. Its worth noting that in addition to recognizing a host of statutory options available to the president , including taft heartily, they went back and note that when the congress was enacting taft heartily they were debating whether or not to give the kind of authority that truman claimed he had to the president and they voted down that amendment. So you have this moment that black reaches back to in the legislative history of taft heartily to point out in no Uncertain Terms that he lacked the will of congress behind him. And we will talk a little bit more about the nuances of that 63 decision but first lets hear from paul in white stone, new york. Hi, paul. Caller yes. Go ahead with your question but hit the volume control on your remote, please. Were getting feedback. Caller oh. Let me stand a little bit away. My question is this can you hear me . Yes, sir. Caller okay. How did the Steel Company management get away with claiming that they couldnt afford to give the steelworkers a raise . Im going to stop you there because of that feedback. For future callers make sure that your audio is muted so we dont get the delay from the satellite. Can you answer what he asked so far, how did the steel this was in many ways a political argument. This is where management is engaged in a political fight as is truman, but thats not prominently featured in the court case itself. Thats not one of the arguments that they bring to bear within the courts as a justification for why truman could not seize the steel mills. Here is the 63 decision and the majority were justices hugo black, fee politics frankfurter, william douglas, job ert jackson, Harold Burton and tom clark and the minority chief Justice Vincent voted with the president who appointed him, justices stanley reed and sherman minton. Were going to return to another oral argument and this is from one of the other clerks, his name is george nibak in exchange between justices jackson and clark this their decisions in this case. After they announced the decision at that time tom clark sat on one side of jackson, probably on the left, and tom clark announced his concurrence, i dont remember whether he wrote an opinion or not, but jackson leaned over to him and whispered, im glad to see that youve decided to be a judge, tom. Now, jackson told me that. You reacted when you heard that. That was very interesting, yes. Of course, jackson talking about this from his own experience, he was attorney general under roosevelt, during which time he made some arguments, very similar to those he was about to reject in this case. Same thing happened in carmatsu. For jackson it was important to recognize the distinction between how he looked at the world as a political appointee attorney general and how he looked at the world as a judge. Clark had been attorney general and now he is a justice and therefore he can think differently about the merits of an issue thats what jackson is saying to him. And when jackson was attorney general he was also operating at a different time. This was pre taft heartily and in the midst of a total war. Part of where hes going to try to justify coming out differently is because things have changed. So as you said justice hugo black wrote the majority decision but there were a number of written concurrences and in the end does that muddle the interpretation of the case . It ends up not muddling it too much because theres one concurrence thats going to stand out, it will be the concurrence of Robert Jackson. Jackson does not seven on the court very long, unfortunately dies in the early 50s, but one of the great distinctions he is going to have in the short time he spends on the court is hes thought to be the greatest writer perhaps that the court has ever seen. His concurrence is not just well written, but it puts together a framework thats going to become the lens in a sense, the filter through which were going to look against all separation of power cases. Because that framework is so important we will read you he established three scenarios for executive action and how much power a president would have under those to withstand the legal challenges and as our guests have said these have become the benchmarks by which future executive actions have been judged. First of all, he writes in his concurrence when the president acts to express or implied authorization of congress, his authority is at its maximum. A second scenario, when the president acts in absence of a congressional grant or denial of authority he can rely only upon his own independent powers but there is a zone of twilight and those words become important, that he and congress may have concurrent authority. And the third scenario, when the president takes measures incompatible with the express or implied will of congress his power is at its lowest ever. Whats so important about that framework . There is a lot thats important. Let me give one other background detail. Jackson has also returned to the court at this point after having served as a chief prosecutor at unusual berg. So he has gone through world war ii and has experiences with tyrants and with people that have no bounds or boundaries on their power, he is even going to have a line in here a power of this sort has no beginning or end, my guess is it may have a little bit to do with his own personal experience having to deal with the horrible wrongs committed by people that are not electorally responsible or constitutionally bound. But in this context whats important here is the framework actually is going to lead us to be able to look at any given situation, particularly in the realm of Foreign Affairs, where a president is acting and ask, okay, has congress spoken and if so whats it said . Has it authorized this or not . Knowing what congress has said or authorized will help us evaluate the strength of the Constitutional Foundation for the president to act. And hes scaling back from blacks formalism by recognizing the value of practice. So hes going to put this case in that third category where congress plainly has spoken and has spoken against the power thats that truman claims to have. But in this zone of twilight he recognizes that when president s act the congressional silence may invite enable if not invite is the precise language Legal Authority to follow, right . Invite president s to continue acting in this particular dom n domain. So hes sensitive to the imperatives of war, the imperatives of practice, the delegations of authority and the politics that surround them in ways that black certainly was not. Virtually every justice is going to agree with the exclusion of hugo black that historical practice has some relevance here. Thats significant and it gives rise to a methodology which jackson sort of exemplifies had his concurrence which we call functionalism or balancing. Thats what youre seeing in the jackson opinion. So we talked about this earlier, but now its at the time where it is most relevant. Joshua asks us if congress have declared war would president truman have had the Legal Authority to seize the steel mills . Its not clear that it would follow. The declaration would give the authority. Nonetheless, you see these justices looking critically and kept clee upon trumans claims that, one, that there really was there would be an emergency if the production of steel halted, that that would are upt in an important way the ability of the nation to continue the coordination of the war effort just as you see them raising concerns about the imminence of the threat that the north korean war actually presented. That if the enemy were at our doorsteps they hint at various places that they may come out differently. There is a recognition of the importance of expediency both in terms of the war effort generally and the ability of the nation to continue to wage it, but theyre not as impressed as truman would have them. In our final 25 minutes we are going to talk about the impact of this decision on the immediate time frame and then also on the course of history and cases that have involved president ial power, but before we do that time for a few more calls. Maurice is watching us in memphis. Caller gooeng good evening, everyone. My thunder was somewhat stolen on Justice Jackson, i called to speak about him. I thought that he was probably one of the most eloquent draftsman to ever sit on the court, but he was also the last justice who read the law and he was not a graduate from law school. And also i think one of the great statements in american constitutional law and history was his majority opinion for the court in West Virginia state board of education versus barnett. When you do get to brown versus board hopefully someone will speak of his memoranda of law that he drafted in anticipation of a concurrence that he was going to issue in brown, but i believe his concurrence in this case has a much more far Historical Impact than blacks majority opinion. I would agree with what youve said about Justice Jackson. So he is somebody without much really maybe any formal legal training, maybe as a law professor that should tell me a great deal, but hes in there, in this mix, every bit as influential, every bit as informed and intelligently engaged as any other justice and i think thats a real monument to him. And the second thing i think its worth really stressing is his extraordinaire eloquence, his ability to capture in sparse language beautiful really profound thoughts. Roughly about a week ago i heard Justice Scalia say the justice he most admired was Robert Jackson which is really perhaps quite remarkable given that ideological they arent in the same camp. Justice scalia himself a fine writer is saying, look, i think theres nobody better than jackson. Really a great anybody who was interested should read the jack son opinions for just how well they can cut through legalese, so to speak and get to the heart of legal issues. Robert is in springfield, new jersey. Hi, robert. Caller since the judge town case in what cases has the Supreme Court cited the threetiered approach formulated by Justice Jackson and his con consider ens . Brief answer. We only have 20 some odd minutes left i cant list them all for you. Its going to get cited a lot. One thing i should note, this is part of what one might say is a particular key to jacksons concurrence, the concurrence may not bind people to very much. That is to say the framework is there and what it allows is people to use their own judgment to determine what has Congress Said on this or not and that may be a particularly significant aspect of this. Its influential but it doesnt necessarily constrain very much. I hope well talk about this. How we characterize that zone of twilight is going to change over time and the president s ability to exercise authority and count on judicial backing is going to become more capacious than jackson zone of twilight gives you a lot of lat too you had. It does. The framework really is expecting or depending on congress to use some of its judgment and authority, its relying heavily on congress yes. Yes. One of the things that the court is saying here is that we wont step in and do for you that which you wont do for yourself. We will reliably come down when. Another robert, this one in chappaqua, new york. Caller hi. My recollection is that the government took over the railroads during world war i. What is the difference between what occurred then and the decision that was made with the youngstown case . Well, its a very different war. This is a big part of it. I mean, one of the interesting and important cases to come out of the seizures that occurred in world war 2 is the claiming of montgomery ward. It isnt just about regards but there is a claim in total war where every dimension of the economy is implicated in the war effort that the case that we need an uninterrupted flow of Economic Production hes able to make, fdr is able to make, again, in ways that truman falters in his limited constrained Police Action. Whole different set of statutes are operating in a declaration of war which is pertinent in the sense that it reflects what we just said which is full engagement with the war effort. With the 63 decision the steel mills were returned to their private owners. Harry truman addressed the nation once again on this about a week after the Supreme Court decision, you will see that next, but youre also going to hear from ohio senator robert taft who is the taft in taft heartily so lets watch. Mr. Truman has refused to use the legislative means given him by congress to deal with the strike. For some reason the president doesnt want to use the law. There is no reason why he shouldnt, it could be used quickly. I recommend that the congress adopt the taft heartily approach, i think it would be unwise, unfair and quite possibly ineffective. The issue is fairly up to you gentlemen of the congress. I hope the congress will meet it by enacting fair and effective legislation. That was june 10th, 1952. So whats your reaction to what you just heard there . There of course is the basic political disagreement that the two men have, but its also radical constitutional difference. I think taft heartily would have to be twisted to some extent to apply to this particular circumstance. It could but it wasnt clear that it applied to strikes like labor strikes at all. I should say strikes particularly of an industry like this, but maybe more importantly i think what truman is saying is this taft heartily would have constrained him so much, not just the showing it would have made, the reduced amount of time for the cooling off, those sorts of things and what truman was looking for was a statute that would have given a lot more authority to the executive than taft heartily did. Taft heartily is buying him 80 days, thats it, and he got 80 days from the unions, voluntarily giving it up. But after the Supreme Court decision the steelworkers did go out on strike. Promptly. Putting a stop to production in time of war and our next video were going to watch some of the impact of that. The 1952 steel strike in youngstown was actually part of nationwide labor stoppage. The companies that operated plants in youngstown such as youngstown sheet and tube, Republic Steel and u. S. Steel also had plants in a number of other locations so from the east coast through the industrial midwest all would have stopped work at the same time as those in youngstown. So here we see picketers, members of a local union, 2163 which represented workers in the hot end of youngstown sheet and tube Campbell Works and theyre playing cards. So picketing duty for active Union Members was an important feature of lengthy strikes, not necessarily in order to prevent replacement workers from entering the plant because the Steel Companies did not attempt to operate their plants during strikes during this period, but as an expression of Union Solidarity to show their support for the decisions that had been taken by the leadership that resulted in work stoppages of considerable length. The steelworkers strike of 1952 included over 500,000 members who were out for more than seven weeks, this represented the longest and costliest strike in collective bargaining in the Steel Industry up until that time. So what was the impact and how was it resolved . Well, the strike goes on for about 50 days. There is not a whole lot of evidence, though, that it has the kind of bearing on the war effort that truman claimed that it would. That the skepticism raised by those who said, look, truman, youre overplaying your case with regard to the need for expediency and just how urgent everything is sort of borne out. After 50 days during the 50 day Period Congress tries to come forward and they hold hearings and suggest they are going to pass some laws but never get around quite to it and eventually Labor Management come to terms with a wage increase and there is a change in the price that doesnt look especially different from the kinds of terms that were being debated four or five months prior. And we also want to talk about the impact on harry truman. There is some great story harry truman stories about this. Greg tells us one of them, is it true that truman said to justice black hugo i dont much care for your law but by golly this bourbon is right. That seems to be reported in a lot of places. So black actually arranges for a dinner for truman to join the court because black understands that truman is angry and miffed and he is trying to find a way to bring them together and truman does say that to black and as far as we can tell or know from the historic record truman is pretty forgiving to most of the just sis but as we said before hes going to save a special epithet for tom clark that he will go to his grave thinking. Once again we will return to george niebank and his memories of that dinner in alexandria, virginia, hosted by justice hugo black that harry truman attended. Lets with a much. Justice black used to have a dinner for the Supreme Court over in his home in alexandria after the close of every session and they were this particular evening all the justices were there and they had dinner and the president used to come and president truman was there, and they got to talking evidently about the steel seizure case. Truman said to them, you know, he said, i almost came up to argue that case myself. Justice douglas cleaned over and clapped him on the knee and said, why didnt you do it . Happily he didnt. He didnt, but this case wrangled harry truman for the rest of his life. We have a 1961 letter from truman to Justice Tom Clark in which he writes, all of you were very kind to me and i was glad to have the chance to discuss various things that had taken place in the past, particularly justice blacks comments about my statement on the fact that the decision of the court in the steel case was in line with the dred scott decision. I still think that was true. Well, he had his principles and again, we can disagree with them and one might think he was not correct to think this way, but he believed in what he was doing and so one can judge him on the basis, but im not sure arguing the case would have made any difference at all to the Supreme Court. I think that the justice fully stood that their friendships with them but those friendships did not shape the outcome. Youngstown to this day is held in incredibly high regard. The Supreme Court justices, the nominees to the Supreme Court the last three or four in their confirmation hearings regularly go back and ex toll the virtues of jacksons concurrent opinion. There are certain things Supreme Court nominees have to say as a basic thing in order to get the job and one of them is they agree with jackson in youngstown. One of our regular viewers posts on twitter the clip from chief Justice Roberts confirmation hearing stating the same youngstown framework. Our last couple minutes we will talk about the impact today and thats a good starting point, but first lets hear from bob in harrisburg, pennsylvania. Caller thank you for taking my question. Id like to question mr. Howell. In 1902 there was a coal strike in the United States, it started in the summer, it lasted into the autumn and then october of 1902 Teddy Roosevelt who was president summoned the head of the mine workers and the owners of the coal mines to the white house and he basically threatened the mine owners to seize the mines if they dont compromise more. My question to mr. Howell is is there any historical evidence to suggest that president truman and his advisors were guided in their behavior by the stance of Teddy Roosevelt just 50 years earlier in 1902. Thats a great question. I honestly dont know. Truman was regularly and his advisors were regularly inviting both sides to the white house to hash out the terms of a possible settlement, but the extent to which he was drawing upon Teddy Roosevelts example, i simply dont know. Its a great question. Truman does cite in some of his defenses of his actions he does cite lincolns suspension of habeas corpus, he cites louisiana purchase. There are a few things that he does cite along the way as sort of what well call Union Natural president ial actions which were what he thought were similar to what he had done. And fred is in chicago. Hi, fred, whats your question . Caller yes. Well, my question basically is what that last person mentioned. If you would speak to the concurring opinion by justice frankfurter who was under the history of executives taking over various industries, for instance, during lincolns administration, lincolns office took over all the telegraph Company Lines emanating out of washington, d. C. To other parts of the country. Thats the first one. Id like to have you speak to that concurring opinion of justice frankfurter. And two, how many of the justices in 1951 or whatever this case came down were appointed by republicans . Were they all appointed by democrats ie Frank Roosevelt and harry truman . Yes to the later question. In terms of the frankfurter concurrence, its a famous concurrence as well. One thing to note at the outset is besides black everybody else is going to agree that historical practice has some relevance and what frankfurter is going to say is that he thinks the principle way which historical practice will have relevance if theres a long standing unbroken tradition or practice of doing something. In his view there was not a long standing unbroken practice of president s doing this kind of thing. And you have in the meantime the congress intervening. So you have very different wars that are pointed to by the Truman Administration, again, the statutory length and the aftermath of world war ii. Weve talked about this as a president ial power and separation of powers case. One conservative blog that i was reading about this suggested that the fragmented opinions have left government seizure of private property vulnerable legally. Well, i dont know about that. I think that this is this is so contextual, i mean, this depends so much on what weve just been saying, the statutory the network of statutes that applied then and the circumstances the president faced, the takings clause typically deals with condemnation and that is a whole separate body of law, but the president didnt president explicitly rejected condemnation as an alternative in this situation. You mentioned that the citations of this case and subsequent opinions are too numerous for us to mention. We picked a couple just so folks can see some of the very recognizable cases where the youngstown steel seizure case has been cited. They include United States versus nixon in 1974 which was of course about president nixons executive power, in 1997 it was cited in the clinton v. Jones case before the Supreme Court. In 2004 hamdi versus rumsfeld also cited the decision in this case, actually the concurring opinion, i believe, jacksons concurring opinion, and 2014 nlrb the National Labor Relations Board versus canning which was a recess appointments case. Weve been talking about the between congress and the president on who has authority so lets bring that to the modern age. We have the opportunity to interview key members of congress in the judiciary committees for this series. Next youll see senator leahy and representative goodlatte on the use of executive power by president s. Lets watch. Any president has used executive power. The easy answer is that the congress doesnt like it, pass a law. Id like to see the court step up more and make decisions like that when the congress or the private sector challenges the power of the executive branch. We have a president today who came to the congress as president s do with his long list of things, every president does that, that they would like the congress to enact, change different policies, but he did Something Different that i had never seen before. At the end of that he said, and if you dont do it, i will. Gentlemen, comments from both of you. Well, i think, again, jacksons concurrence is putting congress on notice to say that, look, we will most reliably stand with you when you speak clearly about what the appropriate boundaries are of executive authority. And when you dont speak and when there is an unbroken chain of historical precedent which is going to come out back in Subsequent Court cases theres room for president s to maneuver and president s certainly have. So this case is sometimes recognized, often recognized as a moment when the judiciary stepped in and checked a wartime president. In that sense it appears to be big and important, but it also the primary way in which it tends to be invoked is again by reference to a framework, a way of thinking. When you think about the president s ability to exercise power and exercise unilateral powers by reference to a will of congress that is incredibly nebulous, very hard to navigate, president s can find lots of opportunities to act. Its also been cited you gave a stream of opinions in which it was cited and the court to went to sort of rule against the executive, but there are other cases in which the court has cited it and upheld what the executive has done. Professor howell has written brilliantly about the fact that its much harder for congress to act than it is for the president to kt a. If were left with a framework that depends on congress acting, we have a problem. That is to say congress has got a problem because its never going to be able to act as quickly or efficiently or as clearly as the president is especially in times of emergency. As were getting toward the end of the program i want to tell you about some upcoming cases we have 12 all together we will be at this until the middle of december doing live programs and it will reair on span and be able for you to watch on our website. If youve been watching you know that we have published a book of a collection of pieces that are backgrounds to these cases written by tony morrow who has been covering the court for 30 years, thats in a book called landmark cases available for 8. 95 on our cost on our website. Go to cspan. Org, search landmark cases, we will get it to you quickly so you have it for the rest of this series and you can see some of the background of earlier cases we have done. Lets hear from larry in englewood, colorado. Caller good evening. Another wonderful episode. I wonder if these perennial battles between congress, legislative, judicial and executive branch where are we at today on it . This is an ebb and a flow situation. Who holds the power right now and what determines aside from who designates the justice how these things are going to go . Thank you, larry. I think were seeing a lot more flow than ebb right now and part of whats going on is what are the appropriate boundaries of war. Again, most of the concurring opinions recognize the salience of war and the importance of expediency and we live in an era where there are multiple wars on terror and military deployments aboard and the boundaries between peace and war are not clear. The president s ability to push outwards on the boundaries of his, some day her authority. Maybe two additional thoughts. I mean, again, this case gives us the language that we can use for talking about these kinds of situations but it doesnt tell us the direction in which were going to go. It doesnt tell us what outcome were going to come up with. We can have a similar language, we can all speak french so to speak but we might be saying Different Things at the end of the day and i think thats the significance of youngstown. Its important obviously in terms of its facts and its outcome but it also gives us this lexicon that we can use down the road but the other thing i would say is we also i think should not forget that the court itself functions within a historical and social context and that also was important in youngstown. The public perception, the justices perception of the popularity of this particular president ial action i think wasnt lost. Justice rehnquist writes in his own memoire about the fact that he thinks all the justices were aware of that and that may have helped in some ways shape their opinions or attitudes about whether or not they could rule against him and in a sense get away with it. Thats important for people to understand because when you actually have the opportunity to talk to the justice or hear them they all act as though they insulate themselves from public opinion, but that in reality doesnt happen. I would defer to chief Justice Rehnquist who said, yes, but we also read newspapers and we also pair attention to the news and we are aware of all those things. He said we cant get it out of our heads. I will just defer to him in that regard, but what the justices also have to do is if its in their heads they still have to use the language, this he still have to get to this language in youngstown to be able to frame and put together in these words and concepts what they may be thinking about insofar as the particular contest in front of them is about. We have a minute left. Its a different country now. What about the court itself, is it a different kind of court . Its a very different court. This is a court thats dominated by republicans as opposed to democrats, although, again, the parties themselves they represent different particular positions and attitudes insofar as policies and the constitution is concerned. So i think saying there is a lot of republicans doesnt necessarily tell you very much about how they necessarily look at particular issues but the court is also different because it has so much more precedent now to deal with in these cases that come before it, you mentioned hamdi, some other cases. Now when a case comes up that has a conflict between the president and congress and it may relate to Foreign Affairs there are precedence. There really werent that many, maybe arguably none, maybe at best one or two cases the court could rely on in youngstown and thats again why it became such a significant case. Its a Ground Breaking sense in that the court is saying were going to hear these kinds of cases. For the last 30 seconds i will ask you to sum this up for us, William Howell, why is this case significant . I think what weve said is that it points to a moment that the courts will periodically intervene and check president ial power generally and president ial power during war more specifically and again it sets up a framework by which to evaluate and adjudicate disputes that occur across the various brampls of government. Its a landmark case in matters involving president ial power. Once again two terrific guests, William Howell and michael gerhardt. Thank you for being here tonight. Thanks for all your questions by phone, by tweets and also on the facebook page. They really add to our discussion. Thanks for being with us. Landmark cases returns live next february on cspan. Join us to hear more stories of the people who sparked Ground Breaking cases and the justices and lawyers who were key to the Supreme Courts review. Next on American History tv on cspan 3, rabbi david dalin on the eight jewish justices who have served on the nations highest court since 1916. Hosted by the national archives, this is an hour and a half. Upstairs in the rotunda the original constitution of the United States signed by the delegates to the Constitutional Convention in 1787 is on display and every day of the week thousands of people come to view it. Many of them bend down to examine the parchment through its glass protection, some trying to read the 18th century script. The constitution is the foundation of our government and it is the standard to which the Supreme Court of the United States looks when it decides the cases that come before it. The many Supreme Court case files both a