Youngstown and the president’s emergency powers

President Donald Trump has threatened to exercise emergency lawmaking power to construct a $5.7 billion border wall; many legal experts have opined that no such constitutional power exists, citing the landmark 1952 Youngstown Sheet & Tube v. Sawyer decision as dispositive of the issue. Youngstown addressed the constitutionality of President Harry Truman's executive order seizing the nation's steel mills to avert, as he feared, a catastrophic labor stoppage. In language that rings louder still in 2019, the Supreme Court held that Truman's executive order was unconstitutional since the "Founders of this Nation entrusted the law-making power to the Congress alone in both good and bad times."

For a wholly alternative interpretation of Youngstown, consider the bizarre set of characters and circumstances that generated the Supreme Court's 1890 holding in Cunningham v. Neagle. Because of its significance in California history, the Los Angeles Times long ago featured an analysis of David Neagle's story and his principal antagonist, David Terry (LAT, Rasmussen, "One 19th Century Jurist Lacked Prudence," Feb. 15, 2004). Terry was notable in many ways, few among them laudatory: While he served for a time as chief justice of California's Supreme Court, he had a hair-trigger temper and was inclined to violence; a confederate soldier, he wished that California should enter the Union as a slave state; and for a slander set against him by David Broderick, a United States senator from California, Terry shot and killed him in a duel, 1859.

Neagle was a bodyguard assigned by President Benjamin Harrison to protect Associate Justice Stephen Field, who, attending to circuit riding responsibilities in California was accosted by Terry. Why? Field had upheld a court judgment against Terry's wife believed to have cost the couple many millions of dollars.

Terry's life ended in a railroad café in 1889.

At a scheduled train stop in Lathrop, California, passengers Field and Neagle were seated together enjoying breakfast. Terry entered. As he circled around Field, Neagle was convinced that Terry carried with him a bowie-knife and intended by it to do lethal harm to Field. "Stop, stop I am an officer," shouted Neagle, and "at this very instance Neagle fired two shots from his revolver into the body of Terry who immediately sank down and died in a few minutes." Tracy, John, "The Case of In re Neagle," The Michigan Alumnus Quarterly Review, 1958-1959.

California authorities subsequently arrested Neagle and charged him with murder. Neagle appealed to the state court requesting that his case be moved into federal courts. Yes, the state court wrote, but "only if there be found in aid of the defense of the prisoner some element of power and authority asserted under the government of the United States."

President Harrison had acted in pursuit of a law of Congress when he ordered that Neagle serve Field as bodyguard. Unfortunately, as the Supreme Court wrote, "there exists no statute authorizing any such protection as that which Neagle was intended to give Justice Field in the present case."

Then, at the very heart their analysis of Neagle's plea, the Supreme Court asked the most far-reaching of questions: Is the president's duty to take care that the laws be faithfully executed "limited to the enforcement of Acts of Congress ... or does it include the rights, duties, and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of government?"

In a 6-2 decision (with Field recusing in deference to concerns over conflict of interest), the Supreme Court held that the president's action was constitutionally equivalent to federal law, allowing, as Neagle prayed, for a federal resolution of his case.

One plausible reading of the Neagle precedent is this: In the absence of an act of Congress, when emergency circumstances require that a law be enacted, rather than wait the president is duty-bound to fill that legislative vacuum, i.e., to make the law Congress should have but has not made. Presidential power under these circumstances, then, morphs into what the constitutional framers feared most: a unitary executive exercising lawmaking power.

In the context of this reading of Neagle, of course, the Supreme Court's voiding of Truman's executive order works to restore the fundamental principle of separation of powers. Youngstown's core teaching deserves repeating: "The Founders of this Nation entrusted the law-making power to the Congress alone in both good and bad times."

But Youngstown's wholly alternative reading resides in Justice Robert Jackson's concurring opinion, one that six other justices arguably accepted. In Jackson's framework, if the president legislates in a fashion "incompatible with the expressed or implied will of Congress," his actions would be unconstitutional. In this way, since Congress had legislated a solution to the steel seizure emergency, the Taft-Hartley Act of 1947, the president's executive order was left prostrate by that act.

But Jackson's framework also posited a set of conditions that were they in play would have made Truman's seizure of the steel mills constitutional. By Jackson's reckoning, "where the President acts in absence of either a congressional grant or denial of authority ... there is a zone of twilight in which he and Congress may have concurrent authority. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility." From Jackson's perspective, then, had Congress not passed the Taft-Hartley Act, Truman's executive order would have been the law -- and constitutionally so in a "zone of twilight."

Thus, President Trump's claim to emergency lawmaking power, in light of Neagle and reaffirmed by Jackson's reasoning in Youngstown, is situated on solid constitutional ground. As matters presently stand, members of Congress seek border security but because of deep divisions over specifics have failed to act. Thus, "congressional inertia, indifference or quiescence" of the like that Jackson envisioned, provides a constitutional justification for concurrent lawmaking power in legislative and executive branches.

In the end, and dripping in irony, President Trump's determination to construct a wall is rooted in the very case that legal critics advance to deconstruct that wall, making this episode in Trump's presidency fit for the "Twilight Zone" itself.