A Clear Violation

The nine Justices of the U.S. Supreme Court filed out from behind their velour curtain on "decision Monday" this week and took their seats with routine solemnity. Chief Justice Fred Vinson looked out across the crowded chamber and announced that routine business would be postponed until after the reading of opinions in "the steel case." At his words, the chamber buzzed with electric anticipation.

On Vinson's right, Justice Hugo Lafayette Black put on his thick-rimmed glasses and picked up a sheaf of papers. In his Alabama half-drawl, he began reading the majority decision. Its conclusion:

P: President Truman's seizure of the steel industry last April 8 was a clear violation of the Constitution.

P: The mills must be restored to their owners forthwith.

It was a 6-3 decision: Justices Frankfurter, Douglas, Jackson, Clark and Burton concurred with Black; Chief Justice Vinson, Justices Reed and Minton disagreed, took a position in support of the President.

Ripe Question. Black's opinion was eloquently simple, and its austere logic fitted the gravity of the case. Said Black:

"The President's power to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied."

On the contrary, when the Court looked back through the record it found that Congress had, in fact, rejected an amendment to the Taft-Hartley Act in 1947 which would have authorized Government seizures in event of emergency. "The use of the seizure technique to solve labor disputes . . . was not only unauthorized by any congressional enactment; [but] Congress had refused to adopt that method of settling labor disputes."

Limited Functions, "It is clear that if the President had authority to issue the order he did, it must be found in some provisions of the Constitution . . . The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces ... We cannot with faithfulness to our constitutional system hold that the Commander in Chief . . . has the ultimate power, as such, to take possession of private property in order to keep labor disputes from stopping production. This is a job for the nation's lawmakers, not for its military authorities.

"Nor can the seizure order be sustained because of the . . . provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that 'all legislative powers herein granted shall be vested in a Congress of the United States . . .'"

Like a Statute. Then Black took up a key point of the Government's defense. The day after Harry Truman seized the steel plants he sent a message to Congress, asking Congress to take whatever action it desired in the steel case, and promising to abide by Congress's decision. Did this prove that he had no intention of usurping the powers of Congress? In an implied no, Black turned to look at the wording of the President's seizure order itself.

"The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress. It directs that a presidential policy be executed in a manner prescribed by the President. The preamble of the order itself, like that of many statutes, sets out reasons why the President believes certain policies should be adopted, proclaims these policies as rules of conduct to be followed, and again, like a statute, authorizes a Government official to promulgate additional rules . . . to carry that policy into execution. The power of Congress to adopt such public policies as those proclaimed by the order is beyond question . . . The Constitution did not subject this lawmaking power of Congress to presidential or military supervision or control...

"The founders of this nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power, and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand."

Designed Restrictions. Black's reading took 15 minutes. His deep, resonant voice was promptly replaced by the high-pitched concurring arguments of little

Justice Felix Frankfurter, who got to the same point by a more devious route. "To those who are overwhelmed by a sense of spontaneous emergency," he said, "let me say that this case did not arise spontaneously. These disputes are a long time in the making . . .

"A scheme of government like ours no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority. No doubt a government with distributed authority, subject to challenge in the courts of law ... labors under restrictions from which other governments are free. It has not been our tradition to envy such governments. In any event, our government was designed to have such restrictions. The price was deemed not too high in view of the safeguards which those restrictions afford."

Justice William O. Douglas tried to soften the blow by noting that "today a kindly President uses the seizure power," but another sort of President could misuse it "to regiment labor as oppressively as industry thinks it has been regimented by this seizure."

The Dissent. It was left to Chief Justice Vinson, Harry Truman's close friend and confidant, to build a case for the seizure. He took an hour to read his 44-page opinion in a voice that was often raised with emotion and occasionally heavy with sarcasm. Vinson flicked the majority for its "messenger-boy concept" of the President's relationship with Congress, and echoed most of the Government's own argument (TIME, May 5) that an emergency had forced the seizure.

Then, completely on his own, Vinson lumbered into an extraordinary proposition. Said he: the United Nations Charter and the North Atlantic Treaty bind the U.S. to resist armed attack against any member nation. Hence, "our treaties represent not merely,legal obligations, but show congressional recognition that mutual security for the free world is the best security against the threat of aggression on a global scale." His implication: the President's seizure was justified because the international obligations of the U.S. require a maximum flow of steel for its own defense and for its allies.

To this final stretch of logic Justice Jackson took violent exception. "No doctrine that the court could promulgate would seem to me more sinister and alarming," he said, "than that a President --whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the nation's armed forces to some foreign venture."

The court's majority decision was a full victory for Washington's Federal Judge David Pine, who had first set aside the President's seizure order in late April. At the time, Judge Pine observed that perhaps a steel strike--"with all its awful results"--might be preferable to "timorous" judicial action. On this point, too, the majority of the U.S. Supreme Court seemed to agree.

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