With statements from President Trump that a national emergency declaration could be an option to build a border wall, one of the Supreme Court's landmark decisions is getting a lot of attention.
The President has said in comments prior to this week he would consider using a national emergency declaration to force the border wall, or border barrier, issue.
House Intelligence Committee Adam Schiff quickly responded that such a move would run afoul of the Supreme Court's Youngstown Sheet precedent. “Look, if Harry Truman couldn’t nationalize the steel industry during wartime, this President doesn’t have the power to declare an emergency and build a multibillion-dollar wall on the border, so, that’s a nonstarter,” he told CNN.
As of Monday, a national emergency declaration remains as an option in the partial government shutdown stalemate. Trump has urged Democrats in Congress to reconsider voting for his border project and Senator Lindsey Graham wants a three-week pause of the temporary shutdown before the President acts using his powers to declare a border emergency.
So the specter of Youngstown Sheet and Tube Co. v. Sawyer (1952) will hover over the border wall and government shutdown controversies until the situation is resolved.
Politicians and academics have been actively engaged in arguments about the relevance of the Youngstown Sheet decision to a hypothetical national emergency declaration diverting funds already given by Congress to the executive branch for designated or undesignated purposes. Either way, the executive branch would need to buy privately held land to build a barrier or wall, which ties directly to the Court's Youngstown Sheet decision in 1952.
If you aren't familiar with the Youngstown Sheet precedent, during the Korean conflict, President Truman grew concerned about labor unrest in the steel industry affecting the war readiness of the United States military. Truman had established the Wage Stabilization Board using an executive order, and he signed the Defense Production Act in 1950 in attempts to mobilize the economy and prevent unrest in the steel industry.
However, steel industry workers went on strike on April 4, 1952, and four days later, Truman issued an executive order seizing the steel mills. Within hours, lawsuits were filed and the case moved forward quickly. The Supreme Court heard oral arguments on May 12, 1952. The steel industry argued President Truman could not seize the steel mills without a clear grant of authorization from Congress.
Justice Hugo Black delivered the majority opinion in Youngstown Sheet, with four other Justices concurring in part with their own opinions. Black’s decision found that “[t]he President’s power, if any, 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…from which such a power can be fairly implied.”
But Justice Robert Jackson’s concurrence is the most-cited part of the decision. Jackson placed presidential authority into three categories of legitimacy. First, and most legitimate, were cases in which “[t]he President acts pursuant to an express or implied authorization of Congress.” Second, is when Congress has been silent on the issue. And finally, the least legitimate category occurred “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.”
Since the Youngstown decision, Congress passed the National Emergencies Act in 1976 after the Vietnam and Watergate eras to better define the roles of the President and Congress when a national emergency is declared.
The 1976 act required the President to cite which “statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act.” But the President retained the power to declare and then continue a national emergency with notice to Congress.
If there is an executive order from the Trump White House about building a border barrier and the inevitable court challenges, the Youngstown Sheet decision, the National Emergencies Act and existing laws about presidential powers during emergencies will be central parts of the legal arguments.
In our current We The People podcast, scholars Sai Prakash and Mark Tushnet talked about the Youngstown Sheet case in relation to a possible Trump executive order.
Tushnet thought that a President could have some leeway to move forward with a wall project even under the “lowest ebb” test. “The lowest ebb, as I read Jackson, is a situation where Congress has affirmatively prohibited the President from doing the action the President has taken.” The Taft-Hartley and Selective Service acts, Tushnet said, prohibited Truman from taking the steel mills. He said the lowest ebb test didn't prohibit a President from acting in any fashion, and if Congress didn't directly prohibit a Trump border wall project, Jackson's second test could apply to a border wall scenario as well as Jackson's first test - if existing laws were interpreted to permit military construction projects during a national emergency.
Prakash told us that “congressional disapproval didn't have to be expressed” for Jackson's lowest-ebb test to be applied, but much of the border wall debate would be about how the courts interpreted the statutes cited in any potential executive order. “A lot of this will turn on the judicial perception of the actual question, which will be colored more by the statutes and the stretches being made but also perhaps by the judges' perceptions of the President's motives,” Prakash said.
In any event, as the lively discussion in our podcast indicated, there will be a good deal of Youngstown Sheet debate in the popular and academic press if an executive order is forthcoming. Prakash also noted that one of the enduring facets of Justice Jackson's executive power test was its ability to fit different situations. “There's a wonderful indeterminacy to Jackson's three categories,” he said. “None of those categories tells you whether the President wins or loses. They just give you percentages.”
Scott Bomboy is the editor in chief of the National Constitution Center.