Elements of Law 3.0 Notes and Readings III-A (Institutional Architecture of Law and Governance: The United States and Law Making--The General Government; Separation of Powers and Checks and Balances)

(Pix (c) Larry Catá Backer 2013)

I have been posting about the development of a new course I have been developing for our first year law school students, "Elements of Law."  (Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).  The SYLLABUS can be accessed HERE.

With this post I continue to share with the class and interested "others" summary study notes for the course readings.  For this post we consider the first part of section III of the materials:  III.A. Institutional Architecture of Law and Governance:  The United States and Law Making--The General Government).   Comments and discussion most welcome.

The Table of Contents for all of the Lecture Notes may be accessed HERE: Elements of Law 3.0: Table of Contents for Lecture and Reading Notes for An Introduction to U.S. Legal Theory and Practice.

III.A. Institutional Architecture of Law and Governance:  The United States and Law Making--The General Government). 

Notes for:

--1. Division of Power: (a) Executive; (b) Legislative; (c) Judicial --U.S. Constitution, Arts. I-III.

--2. Separation of Powers and Checks and Balances
     --Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), 343 U.S. 579 (1952).

 The first two sections of this course provided a general introduction to the core issues of a legal education.  The first section considered the nature of law.  It introduced students to the basic definitions of  and then introduced students to the distinct forms of law that have risen in the West: customary law (common law), statutes, administrative regulations, and non-law law.  The second section introduced government to the mix.  It considered hierarchies of law and government. It considered the ways in which government is ordered through law and the hierarchies of law-- from constitution to administrative regulation and court decisions. We were then introduced to the division between the system of laws that comprise a domestic legal order and those that make up the international legal order.   We ended with a discussion of the ideologies of rule fo law within this construction of the law-state, with a focus on the procedural rights developed under the U.S. constitution. 

We have now set the stage for a more targeted discussion of the specifics of the organization of the American law-state.  For this class we review the organization of the general government of the United States--what is commonly now called its "federal" government.  Then we consider the three animating principles that support its design--separation of powers, checks and balances and division of power between general and state government (federalism).

Central to the establishment of the organization of the general government  were three key postulates of organizing government.  The first was that government's organization must be so structured that it would impede tyranny by the whole of government, by any part of it or by factions of individuals within it. The British imperial government was a model against which to structure such a government.  To that end, the power of government must not be concentrated and ought to be diffused among as many parts and actors as necessary and prudent. The second was that government must be efficient. The confederation of the newly independent colonies after 1783, organized through its Articles of Confederation,  was a model against which to structure a more efficient state apparatus.  The third was that the general government  was meant to provide the benefits of aggregation with as little loss of local sovereignty as possible.  To that end the construction of a unitary nation-state was to be avoided and the powers of the general government, as against the residuary powers of the states was to be carefully circumscribed.  The three premises were not entirely complementary.  At its limit, institutional power fracture reduces the possibilities of tyranny but requires that a substantial amount of inefficiency be built into government.  Efficient government  tends to foster majoritarian tyranny and the challenge to the residuary powers of states.  And the constraints on federal power tends to weaken both federal efficiency and avoid tyranny, it merely shifts those issues down to the state level.   

But the founders provided a minimal framework for reconciling these premises, left their resolution to politics and appeared to assume that the give and take of politics would shift the consensus around, within limits, during the course of the Republic's existence. And, indeed, to some large extent, that has been the case.  The one spectacular failure, marked by the American Civil War (1861-65), produced a somewhat radical restructuring of the state apparatus, the full measure of the potential of which was not realized until the economic and racial crises of the United States (1929-1969).   Much of the Federal Constitution is devoted to the organization of a government in which these three premises could be harmonized to the greatest extent possible.  The structural reconciliation is subsumed under the notion at the center of our study for today--separation of powers and checks and balances.  At its core both are framed around the division of the entire authority of the federal government into three distinct branches: executive, legislative and judicial (separation of powers).  Further, the extent of the powers of each was thought to be distinctly circumscribed in the text of the constitution itself, with the remainder of the extent of assertion of governmental power left to the states (federalism).  Lastly, the assertion of even the core of executive, legislative and judicial power, could not be successfully or fully undertaken without the cooperation of at least one of the other branches of government (checks and balances).

Those protections of checks and balances and federalism are only partially dependent on the application of the "rules" built into the constitution for the structure of state governmental organs.  As important  is the political sphere is determining the specific scope of relations among the branches.  Thus, for example, before the beginning of the 20th century and the reform of the federal constitution, the interests of states in the operation of the general government were protected because all members of the U.S. Senate were chosen by the organs of state government and owed their loyalty to the states they represented (Art. I §3).  Legislation  in Congress, then, could not be enacted, unless the interests of a majority of states acceded to it. On the other hand, members of the House of Representatives answer to the people of their district, and do so often, standing for re-election on short cycles (Art. I §2).  The President, on the other hand, answered to a national constituency, but one selected through an electoral college that represented the will (until the later 19th century) of the electors chosen by local people to represent them in the selection of the leader fo the general government (Art. II § 1).  Because they each answered to different constituencies, they might represent distinct interests that could guide their invocation of both their inherent power and set the tone of their willingness to cooperate with the other branches. Federal judges are appointed for life and do not directly answer to the people.  But they are selected by the president and confirmed by Congress, that may, to some extent undo any of the interpretive work of the federal courts (except where legislation is declared unconstitutional--but even then, the Congress and President can sometimes work around the specific point of constitutional contention).  And in any case, the Congress can, if sufficiently goaded, affect the judiciary through its control of the organization of the courts and its budget. Likewise, though Congress determines the federal budget (Art. I § 7), the President decides when and how it is spent, and recently, whether it will be spent at all. All three branches are also limited in their jurisdictional reach.  The powers of Congress are specified (Art. I. §§ 8,9), as are those of the President (Art. II §2).  The judicial branch is specifically limited in its authority to hear cases (Art. III, §2).  Moreover, the general government is constituted as a referee of sorts among states (Art. IV).  The residuary power of states is also limited (Art.I §10).   And,as we noted earlier, the Constitution establishes a hierarchy of authority with the legislative and judicial authority of the general government at the top (Art. VI).



The divisions were originally defended in the Federal Papers. 

|| Federalist No. 47 ||The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts; From the New York Packet. Friday, February 1, 1788.

Author: James Madison

To the People of the State of New York:

HAVING reviewed the general form of the proposed government and the general mass of power allotted to it, I proceed to examine the particular structure of this government, and the distribution of this mass of power among its constituent parts. One of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct. In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts. No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded.

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal re-probation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind. Let us endeavor, in the first place, to ascertain his meaning on this point. The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry. As the latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so this great political critic appears to have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty; and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system. That we may be sure, then, not to mistake his meaning in this case, let us recur to the source from which the maxim was drawn. On the slightest view of the British Constitution, we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. The executive magistrate forms an integral part of the legislative authority. He alone has the prerogative of making treaties with foreign sovereigns, which, when made, have, under certain limitations, the force of legislative acts. All the members of the judiciary department are appointed by him, can be removed by him on the address of the two Houses of Parliament, and form, when he pleases to consult them, one of his constitutional councils. One branch of the legislative department forms also a great constitutional council to the executive chief, as, on another hand, it is the sole depositary of judicial power in cases of impeachment, and is invested with the supreme appellate jurisdiction in all other cases. The judges, again, are so far connected with the legislative department as often to attend and participate in its deliberations, though not admitted to a legislative vote. From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers," he did not mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority. This, however, is not among the vices of that constitution. The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it. The judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any legislative function, though they may be advised with by the legislative councils. The entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort. The entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department. The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. "When the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner. " Again: "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.

Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR. " Some of these reasons are more fully explained in other passages; but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author.

If we look into the constitutions of the several States, we find that, notwithstanding the emphatical and, in some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct. . . .

 In citing these cases, in which the legislative, executive, and judiciary departments have not been kept totally separate and distinct, I wish not to be regarded as an advocate for the particular organizations of the several State governments. I am fully aware that among the many excellent principles which they exemplify, they carry strong marks of the haste, and still stronger of the inexperience, under which they were framed. It is but too obvious that in some instances the fundamental principle under consideration has been violated by too great a mixture, and even an actual consolidation, of the different powers; and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper. What I have wished to evince is, that the charge brought against the proposed Constitution, of violating the sacred maxim of free government, is warranted neither by the real meaning annexed to that maxim by its author, nor by the sense in which it has hitherto been understood in America. This interesting subject will be resumed in the ensuing paper.Moreover, Congress may impeach and remove either the President or judges for misconduct.

Though the foundation of the organization of the general government of the United States is based on this separation of the powers of government among a legislative, executive and judicial branch, the exercise by each branch of the powers assigned to it could not be accomplished without the cooperation of one or both of the other branches.  This system of checks and balances disciplines the potential excesses of the exercise of power by each branch of government under a system of separation of powers.   Thus, for example, the President negotiates treaties but these must be ratified by the Senate.  The Congress adopts statutes, but they must be approved by the President; yet even when the President vetoes legislation, Congress may override the veto by a 2/3 vote of both houses of Congress.  The judicial branch interprets the laws and may invalidate legislation or presidential action beyond their constitutionally specified powers.  But judges are appointed by the President and confirmed by the Senate.  And Congress may modify the extent of the federal judiciary, limit judicial review under certain circumstances, and must pass a budget to support judicial activities. Taken together, separation of powers and checks and balances ensures that the unitary power of power of government is divided  along functional lines, and that even the exercise of functionally divided power must be undertaken with a least a minimum of cooperation by the other branches. Where the branches of government collide, a constitutional crisis is likely to occur and the ultimate power of voters to hold executive and legislators accountable is supposed to serve as the political check on excess or bad behavior, at least as the voters may see it.  (See, e.g., Abner Greene, "Checks and Balances in an Era of Presidential Lawmaking," The University of Chicago Law Review 61(1) 123-196 (Winter, 1994)).  Despite the structural constraints built into checks and balances  mechanics in the Constitution, people worry that the exigencies of particular eras may create a situation in which one branch of government might become much more powerful than others.  People sometimes then seek to consider whether the structural constraints of the constitution may be applied or interpreted in a way that readjusts the balances of power among the branches. (See, e.g., Eric Posner, "Balance of Powers Arguments and the Structural Constitution," Chicago Institute for Law and Economics Working Paper No. 622 (2d Series) (Nov. 2012) (arguing that balance of power theories are unworkable and normatively questionable, and that judges and scholars should abandon the balance them in favor of consider whether bureaucratic innovation is likely to improve policy outcomes.)). Alternatively, it is possible to understand that beyond the minimal structural framework of separation of powers and checks and balances, the actual inter relationship of the branches of government is left to politics and the ultimate preferences of voters, eventually and episodically expressed.


The complex interplay between the structural framework of separation of powers, checks and balances and the political realities of government have been considered by the Supreme Court. We consider these issues through the classic Steel Seizure Case, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). The facts of the case remind the student that sometimes constitutional cases involving issues of separation of powers may touch on some of the most important, and divisive, political confrontations of American society.  In this case, the facts emerge out of a long term clash between labor and capital in the remaking of post WWII American society fought at the height of one of the first and most intensive military engagements with  their  Cold War Marxist-Leninist counterparts (the Korean War) and centered in political strategic gamesmanship between President and Congress for control of the national political agenda.   (See Harry S Truman, Years of Trail and Hope (Doubleday, 1956)).

The majority opinion, written by Justice Black provided:

In the latter part of 1951, a dispute arose between the steel companies and their employees over terms and conditions that should be included in new collective bargaining agreements. Long-continued conferences failed to resolve the dispute. On December 18, 1951, the employees' representative, United Steelworkers of America, C. I. O., gave notice of an intention to strike when the existing bargaining agreements expired on December 31. The Federal Mediation and Conciliation Service then intervened in an effort to get labor and management to agree. This failing, the President on December 22, 1951, referred the dispute to the Federal Wage Stabilization Board to investigate and make recommendations for fair and equitable terms of settlement. This Board's report resulted in no settlement. On April 4, 1952, the Union gave notice of a nation-wide strike called to begin at 12:01 a. m. April 9. The indispensability of steel as a component of substantially all weapons and other war materials led the President to believe that the proposed work stoppage would immediately jeopardize our national defense and that governmental seizure of the steel mills was necessary in order to assure the continued availability of steel. Reciting these considerations for his action, the President, a few hours before the strike was to begin, issued Executive Order 10340, a copy of which is attached as an appendix, post, p. 589. The order directed the Secretary of Commerce to take possession of most of the steel mills and keep them running. The Secretary immediately issued his own possessory orders, calling upon the presidents of the various seized companies to serve as operating managers for the United States. They were directed to carry on their activities in accordance with regulations and directions of the Secretary. The next morning the President sent a message to Congress reporting his action. Cong. Rec., April 9, 1952, p. 3962. Twelve days later he sent a second message. Cong. Rec., April 21, 1952, p. 4192. Congress has taken no action.

Obeying the Secretary's orders under protest, the companies brought proceedings against him in the District Court. Their complaints charged that the seizure was not authorized by an act of Congress or by any constitutional provisions. The District Court was asked to declare the orders of the President and the Secretary invalid and to issue preliminary and permanent injunctions restraining their enforcement. Opposing the motion for preliminary injunction, the United States asserted that a strike disrupting steel production for even a brief period would so endanger the well-being and safety of the Nation that the President had "inherent power" to do what he had done -- power "supported by the Constitution, by historical precedent, and by court decisions." The Government also contended that in any event no preliminary injunction should be issued because the companies had made no showing that their available legal remedies were inadequate or that their injuries from seizure would be irreparable. Holding against the Government on all points, the District Court on April 30 issued a preliminary injunction restraining the Secretary from "continuing the seizure and possession of the plants . . . and from acting under the purported authority of Executive Order No. 10340." 103 F.Supp. 569. On the same day the Court of Appeals stayed the District Court's injunction. . . . Deeming it best that the issues raised be promptly decided by this Court, we granted certiorari on May 3 and set the cause for argument on May 12. (Steel Seizure Case)

The issue was quite straightforward:

We are asked to decide whether the President was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation's steel mills. The mill owners argue that the President's order amounts to lawmaking, a legislative function which the Constitution has expressly confided to the Congress and not to the President.  The Government's position is that the order was made on findings of the President that his action was necessary to avert a national catastrophe which would inevitably result from a stoppage of steel production, and that in meeting this grave emergency the President was acting within the aggregate of his constitutional powers as the Nation's Chief Executive and the Commander in Chief of the Armed Forces of the United States.  (Steel Seizure Case ).

The analysis was also straightforward (we do not discuss the initial issue here--whether the case was ripe for decision by the Supreme Court at the preliminary injunction stage of litigation).  It is an excellent example of formalist reasoning in U.S. judicial interpretation of statutes and constitutions.  The formalist analysis undertaken by Justice Black is both short and elegant.

He starts with the general rule--the extent of the President's power derives either from an act of Congress or from the Constitution. (Steel Seizure Case §II). There is no statute that expressly authorities the President to issue a valid Executive Order of the sort at issue here. Moreover the parties to the litigation did not suggest that there was any Congressional statute appears from which such power could be implied. However, there are two statutes that permit the President to do what he intends--seize the mills and ensure continuous production of war material. But the President chose not to invoke them.  The reasons were obvious then--they took too long and cost too much money ("The Government refers to the seizure provisions of one of these statutes (§ 201 (b) of the Defense Production Act) as "much too cumbersome, involved, and time-consuming for the crisis which was at hand."" Ibid).  But they were also less obvious--in the early 1950s, as the Cold War began, efforts to distinguish the democratic and capitalist West from the Marxist Leninist Totalitarian Soviet bloc included references to the way in which the West protected private property while the Soviets seized the hard earned factories and other productive forces of individuals.  It would appear odd for the American President to do something quite similar to what the Soviets had been doing in Eatsern Europe in aid of the American war effort against a Soviet satrap in North Korea 

Justice Black also notes that Congress specifically rejected the sort of action the President attempted through the Executive Order device.  "When the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency. 3 Apparently it was thought that the technique of seizure, like that of compulsory arbitration, would interfere with the process of collective bargaining." (Ibid).  Under Taft-Hartley, Congress chose mediation, conciliation and boards of inquiry.  "In some instances temporary injunctions were authorized to provide cooling-off periods.  All this failing, unions were left free to strike after a secret vote by employees as to whether they wished to accept their employers' final settlement offer." (Ibid). But Taft Hartley ACt action was politically dangerous for a President from a Democratic Party who would likely lose labor union support if he relied on Taft Hartley.  That ACt had been the culmination of Republican Party efforts to hobble the more aggressive and labor friendly provisions of the pre-WWII National Labor Relaitons Act.  That effort was made possible by a media campaign heavy on the emphasis of the infiltraiton of labor union organizaitons by organized crime (and less on the collusion of businesses with the enemy powers during WWII, but that is another story, and one many of whose protagonists remained bitter about to their dying days).

For the formalist, all of these political calculations summed to zero.  The President failed to invoke the only statutory avenues available to him,.  Therefore the only other basis to support the Executive Order had to be found in the Constitution and to the powers conferred on the President.  Justice Blacj notes that no one claimed that the Constitution expressly permitted the President to issue the Executive Order.

The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that "The executive Power shall be vested in a President . . ."; that "he shall take Care that the Laws be faithfully executed"; and that he "shall be Commander in Chief of the Army and Navy of the United States." (Steel Seizure Case Part II)

Justice Black rejects the contention that the President's military powers exctends to the issueance of the Executive Order with effect outside the zone of combat.  In words that would echo in perhaps perverse ways in Hamdi, discussed in our last class, Justice Black noted:

Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces 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.  (Ibid).

Justice Black rejected the argument that the power to issue the Executive order was inherent in the general executive power of the President.  For Justice Black, the Executive Order functioned like a statute and not like the execution of one.  The Congress, not the president, retained the power to make law.  The President's efforts to take that power onto himself in this context exceeded his authority.

The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property for public use. It can make laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions in certain fields of our economy. The Constitution does not subject this lawmaking power of Congress to presidential or military supervision or control. (Ibid).

He also rejected what in other circumstances other majorities of Supreme COurt justices had found constitutionally compelling--congressional acquiescence.   But that is the essence of formalism; such acquiescence is messy and functional in the sense that it represents an unwholesome deviation from the letter of the structure of the law. "It is said that other Presidents without congressional authority have taken possession of private business enterprises in order to settle labor disputes. But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution * * * * * " (Ibid.).

And thus, for Justice Black, the resolution of the case naturally followed: "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." (Ibid).

Interestingly, though Justice Black's opinion settled the matter, it has been the concurring and dissenting opinions that have been much more influential on the conceptualization of separation of powers in the aftermath of the decision.

Justice Frankfurter was sensitive both to the issues of separation of powers and checks and balances, which he believed this decision furthered to avoid concentrations of power.  For him, there is a sense that the decision had political implications--the defense of separation of powers preserved the democratic character of the state as envisioned by the Founders. This was particularity important in the early 1950sw, when the mortal political enemy of the United States was characterized as foundationally anti-democratic. " It is absurd to see a dictator in a representative product of the sturdy democratic traditions of the Mississippi Valley. The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority." (Ibid).

But as important, Justice Frankfurter also used the opinion to restate a vision of judicial engagement that left the court out of the political battles between President and Congress. "The Framers, however, did not make the judiciary the overseer of our government. They were familiar with the revisory functions entrusted to judges in a few of the States and refused to lodge such powers in this Court. Judicial power can be exercised only as to matters that were the traditional concern of the courts at Westminster, and only if they arise in ways that to the expert feel of lawyers constitute "Cases" or "Controversies."" (Ibid).  To that end, Justice Framkfurter considered the history of legislation to the point at which the Executive Order was issued. "Congress has expressed its will to withhold this power from the President as though it had said so in so many words. The authoritatively expressed purpose of Congress to disallow such power to the President and to require him, when in his mind the occasion arose for such a seizure, to put the matter to Congress and ask for specific authority from it, could not be more decisive if it had been written into §§ 206-210 of the Labor Management Relations Act of 1947." (Ibid).

But there is a bit of remorse.  There is a price to be paid when efficiency is sacrificed to avoid tyranny.

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 be challenged in the courts of law, at least long enough to consider and adjudicate the challenge, 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 these restrictions afford. (Ibid).

In contrast to the opinions of Justices Black and Frankfurter, the dissenting opinions of the Chief Justice and Justice's Reed and Mointon provide an excellent example of a functionalist approach to interpretative of statutory and constitutional provisions.  For them, the overriding issue was to preserve the union.  To this end every structure of the Constitutional arrangement must be bent.  The failure to do so would preserve a perfectly and elegantly structured by eventually defunct Republic to the benefit of none of its citizens.  Here they draw a line beyond which efficiency concerns must trump the fear of tyranny--with echoes to the rationale of the ancient roman senatus consulta (a form of which we discussed when we reviewed the Institutes).Foer them the power of eminent domain and that of of the President's military powers were sufficient to justify this action in aid of the war effort. (Ibiod., dissent §§II, III).

The broad executive power granted by Article II to an officer on duty 365 days a year cannot, it is said, be invoked to avert disaster. Instead, the President must confine himself to sending a message to Congress recommending action. Under this messenger-boy concept of the Office, the President cannot even act to preserve legislative programs from destruction so that Congress will have something left to act upon. There is no judicial finding that the executive action was unwarranted because there was in fact no basis for the President's finding of the existence of an emergency for, under this view, the gravity of the emergency and the immediacy of the threatened disaster are considered irrelevant as a matter of law. (Ibid., dissent, § VI).

But the opinion that has proven the most influential, and the one that the Supreme COurt has relied on since for its analytical framework when considering interpretive issues relating to the structural elements of separation of powers in the constitution, is that created in the concurring opinion of Justice  Jackson.  His three part balancing test merges elements of formalist and finctionalist components  that permit some judicial interpretive flexibility within a fairly well defined forma framework provided by the formal structures of the Constitution itself. 

First the functionalist chapeau to the three part analytical framework:

The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context.  While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government.  It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.  Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.  We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers,

Then the three part functional-formal standard:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. * * * *
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law. * * * *
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. 4 Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. (Ibid. Jackson, J., concurring)

Justice Jackson then applies this analytical framework tot he case.  He eliminates the first category by admission of the parties.   In what might for some be a more questionable analysis, Justice Jackson eliminates applicability of the second category on grounds similar to those used by Justice Frankfurter--a determination that Congress has not merely failed to acquiesce, it has made its opposition to the action represented by the Executive Order clear.

It seems clearly eliminated from that class because Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure. In cases where the purpose is to supply needs of the Government itself, two courses are provided: one, seizure of a plant which fails to comply with obligatory orders placed by the Government; another, condemnation of facilities, including temporary use under the power of eminent domain. The third is applicable where it is the general economy of the country that is to be protected rather than exclusive governmental interests. None of these were invoked. In choosing a different and inconsistent way of his own, the President cannot claim that it is necessitated or invited by failure of Congress to legislate upon the occasions, grounds and methods for seizure of industrial properties. (Ibid).

The questionable part, of course, is provided by the analysis of the dissenting justices.  It may not be as clear cut that Congress refused to acquiesce here. The difficulty here, of course, is to attempt to draw a judgement from a number of actions that may or may not be related to produce something like a plausible set of intentions by a Congress that in make up was not anywhere the same of those whose actions contributed to the interpretation of intent. It might as easily have been possible, as the dissenting justices suggested, that having noticed Congress of the seizure by Executive Order, the Congress could have acted to either affirm or reject the action through legislation or other assertion of power. The issue of interpreting intention from prior actions remains one of the more contentious actions of the Court, and sometimes contributes to its least convincing actions.

Having eliminated the first two the only justification available is in the third category.  But this is one where Presidential power is at its weakest and the test is at its most severe, "where it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject. * * * * " (Ibid). Justice Jackson is not impressed with the government's argument which he characterizes thus:

That seems to be the logic of an argument tendered at our bar -- that the President having, on his own responsibility, sent American troops abroad derives from that act "affirmative power" to seize the means of producing a supply of steel for them. To quote, "Perhaps the most forceful illustration of the scope of Presidential power in this connection is the fact that American troops in Korea, whose safety and effectiveness are so directly involved here, were sent to the field by an exercise of the President's constitutional powers." Thus, it is said, he has invested himself with "war powers." * * * * (Ibid).

 Justice Jackson then notes that if, indeed, the United States is at war, then it is the responsibility of Congress, and not the president, to support the military effort.

I suppose no one would doubt that Congress can take over war supply as a Government enterprise. On the other hand, if Congress sees fit to rely on free private enterprise collectively bargaining with free labor for support and maintenance of our armed forces, can the Executive, because of lawful disagreements incidental to that process, seize the facility for operation upon Government-imposed terms? (Ibid).

Where the President sought to take these powers to himself, then the tyranny dangers against which the Constitution provides protection ought to guide the result.  Here there is an echo of Justice Frankfurter's concerns, but in a more analytical framework. Thus Justice Jackson's dismissive: "There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants." (Ibid).  From the perspective of the early 21st century, it is possible to suggest that the line has been moved a bit closer to Presidential discretion in matters of this kind, but with Congressional acquiescence (e.g., U.S.A. Patriot Act). Likewise, Justice Jackson rejects resort to what he describes as resort to use of "nebulous, inherent powers never expressly granted but said to have accrued to the office from the customs and claims of preceding administrations. The plea is for a resulting power to deal with a crisis or an emergency according to the necessities of the case, the unarticulated assumption being that necessity knows no law."(Ibid).  These, Justice Jackson argues, are political arguments, not legal arguments, and better deployed elsewhere.

With a nod to functional issues of efficiency in times of crisis, Justice Jackson notes that perhaps a different result might have been appropriate in the event of an imminent invasion or preparation for total war--the situation marked by the period leading to the entry of the United States into the global military conflict upon the Japanese attack at Pearl Harbor in 1941. "The present situation is not comparable to that of an imminent invasion or threatened attack. We do not face the issue of what might be the President's constitutional power to meet such catastrophic situations. Nor is it claimed that the current seizure is in the nature of a military command addressed by the President, as Commander-in-Chief, to a mobilized nation waging, or imminently threatened with, total war." (Ibid).  But the Korean War was not the Second World War, and the seizure of steel mills was not the same as the coordinated use of industry to aid a total war effort. In these circumstances separation of powers principles and the premise of protecting against tyranny  trumps efficiency concerns in the conduct of a foreign military intervention--even at the cost of American lives and the possible protraction of hostilities.

On the afternoon of the announcement of the Supreme Court decision, the steel mills were returned to their owners and almost immediately thereafter the unions struck.  For a discussion of the background to the strike and its aftermath, see HERE.  Truman, in his memoirs, continued to argue that the case was wrongly decided and cost service personnel their lives as the war effort was seriously affected.  For an interesting discussion on the way in which the Supreme Court may have retreated from its interventionist role in the Steel Seizure case, see, Neal Devins and  Louis Fisher, "The Steel Seizure Case: One of a Kind?," Constitutional Commentary 19:63-86 (2002).