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Executive Power and Domestic Emergency: the Quest for Prerogative

1952; University of Utah Press; Volume: 5; Issue: 4 Linguagem: Inglês

10.1177/106591295200500404

2325-8675

John P. Roche,

Legal and Constitutional Studies

T v HE SUPREME COURT'S DECISION in the Steel Seizure case1 that President Truman had exceeded his constitutional vires when he ordered Secretary of Commerce Sawyer to take over the steel industry is in many ways a unique holding. Although executive prerogative has been a constitutional tradition since the foundation of the Republic, the Court's opinion in the steel case marks the first instance since Lambdin P. Milligan was unnoosed in 1866 that a President has been told that his exercise of prerogative power was unconstitutional. The decision is, of course, entirely without precedent in that Truman, unlike Lincoln, was alive to learn his lesson. This is not to suggest that Presidents have not been called to task by the Court in earlier decisions, but rather to note that in such cases as Panama Refining Company v. Ryan,2 or Schechter Bros. v. United States,3 the Court included Congress with the President in its interdiction, while in Rathbun v. United States4 the Court construed the statute establishing the Federal Trade Commission in such a manner as to forbid Roosevelt's dismissal of Humphreys on the ground utilized. In these instances, the President claimed a statutory basis for his actions, but neither Lincoln, in his original order suspending habeas corpus and establishing military commissions for the trial of disloyal civilians,5 nor Truman, in his seizure of the steel industry, offered any statutory foundation for his action. Each felt that he was exercising inherent executive power -prerogative -in combating a domestic emergency. Consequently, before analyzing what the Supreme Court said about President Truman's seizure, it will be worthwhile to examine in some detail the precedents that exist for presidential exercise of prerogative power in domestic emergencies. Once this has been done, the decision and its implications will be discussed, and finally, certain conclusions will be suggested.