|King George III|
Sir William Beechey
via Wikimedia Commons
IntroductionOn January 16, 2013, ft.com reported President Barack Obama had issued "sweeping," restrictive executive orders as to military-style guns and ammunition, tightening background checks, and proposing toughest gun control laws in two decades.
This Obama Administration action has drawn sharp criticism. Those opposed to this express a clear political preference for Second Amendment respect over legislation by Presidential decree.
Additionally, this Executive Branch mandate begs the question whether Obama's action violates Separation of Powers under the United States Constitution. Accordingly, one must understand this doctrine's legal precedent.
The Steel Seizure Case:
In 1951, labor negotiations between United Steelworkers of America, C. I. O., and steel companies fell apart. This prompted threats of union strikes, setting a deadline of December 31, that year.
Shortly after this, the Federal Mediation and Conciliation Service (FMCS) intervened. Despite its intention to bring about a resolution, FMCS failed.
On December 22, 1951, President Dwight Eisenhower referred the dispute to the Federal Wage Stabilization Board (FWSB). Eisenhower ordered FWSB to recommend settlement terms based on an investigation. This, too, did not bring about a settlement.
On April 4, 1952, the Union threatened a nation-wide strike to begin 12:01 a. m. on April 9. All parties knew and understood the centrality of steel in the production of weapons and war materials.
Eisenhower anticipated a strike would jeopardize national defense and security. Therefore, the President, within hours of the beginning of the strike, issued Executive Order 10340. Thus, Eisenhower ordered the Secretary of Commerce to seize most of the steel mills and keep them running. The Secretary followed suit, taking possession and managerial control of the mills.
Steel mill managers obeyed under protest, and filed suit against the nation's Executive. The Steel Mills asked the court to stop the Secretary's action on grounds that it violated the Constitution. The Government defended this action as an inherent power based on the Constitution as well as historical and legal precedent.
On April 30, 1952, the District Court ruled against the Government, and issued an order restraining the Secretary from enforcing Executive Order No. 10340. Later that day, the Court of Appeals stayed the injunction. On May 8, 1952, the United States Supreme Court agreed to review the dispute.
Separation of Powers:
A Doctrine Without Precedent
Would Judicial Activism By Any Other Name Smell As Sweet?The foregoing summarizes the basis for Youngstown v. Sayer, 343 U.S. 579 (1952) (the Steel Seizure Case). With respect to Separation of Powers, scholars and courts have attributed great weight to Justice Jackson's opinion. Id. at 634-55 (Jackson, J., concurring).
Ironically, Justice Jackson wrote his concurrence without the benefit of any legal precedent. This blog entry will focus on Jackson's concurrence to explain the Separation of Powers Doctrine of the United States Constitution.
Oliver Wendell Holmes wrote about "the life of the law" in 1881 before he became a Supreme Court Justice. Understanding Justice Holmes contributes to understanding Justice Jackson's concurrence in the Steel Seizure case. Holmes famously wrote,
The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.In the Steel Seizure case, Justice Jackson characterized the "comprehensive and undefined" power the Constitution grants the president as having "both practical advantages and grave dangers for the country . . . ."
Oliver Wendell Holmes, The Common Law, 1 (1881).
As if speaking through Justice Oliver Wendell Holmes, Justice Jackson wrote his concurrence based on insight he gained from prior experience in the Executive branch. This experience enabled Justice Jackson to understand,
The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies . . . and lose sight of enduring consequences upon the balanced power structure of our Republic.Justice Jackson referred with respectful candor to the nation's founding generation. Comparing the task of determining the intent of the american forefathers to a similar task with respect to the forefathers in the Old Testament, Justice Jackson explained the Framer's intent "must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh." Additionally, the intervening century and a half had not yielded any evidence to clarify the issue.
Justice Jackson acknowledged both the founding generation and the importance of precedent. This is, almost certainly, because Jackson formulated the Separation of Powers doctrine here without the benefit of legal precedent or evidence of the Framer's intent.
The purpose of Separation of Power under the Constitution, wrote Justice Jackson, is to better secure liberty. Nevertheless, the Constitution "also contemplates that practice will integrate the dispersed powers into a workable government." Political realities, explained Justice Jackson, prevent the nation's leaders from conforming their actions to judicial definitions of power.
Separation of Power:
Justice Jackson explained presidential power under the Constitution in three scenarios. In the first scenario, the president's power under Article II is at its maximum.
The Legal Doctrine
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. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power.With respect to President Obama's Executive Order about guns, if President Obama issued these orders based on an Act of Congress, then they would have "the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it."
In the second scenario, the president's power is sustainable, but less potent than the first scenario.
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.Turning to President Obama's Executive Order, if President Obama issued these orders while Congress has not yet spoken on the issue, then the totality of circumstances will dictate their lawfulness. The primary factor appears to be the urgency of the moment where the harm of waiting would outweigh the value of allowing Congress to act.
In the final scenario, the president's power is weakest.
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. 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.Turning to President Obama's Executive Order, if President Obama issued these orders that directly contradict Federal Law as enacted by Congress, then his Executive Orders would be exceedingly weak.
A Deeper AnalysisIn the Steel Seizure case, even though the United States was at war with Korea, the Supreme Court held President Eisenhower acted in violation of the Constitution.
The Federal Government in the Steel Seizure case relied on the president's war power to justify the steel mill takeover. But process of elimination placed Eisenhower's action in his model's third category.
The steel mill takeover did not fall in Jackson's first category because Eisenhower acted without congressional approval. Additionally, the takeover did not fall within Jackson's second category because Congress had enacted three laws on point, and the steel mill seizure did not comply with any of them.
Eisenhower did not act consistently with any of the following areas where Congress authorized the Executive to seize property:
- Seizure of a plant which fails to comply with obligatory orders placed by the Government;
- Condemnation of facilities, including temporary use under the power of eminent domain;
- Where the general economy of the country is to be protected, not exclusive governmental interests.
Justice Jackson repudiated three arguments from the Solicitor General to justify Eisenhower's actions.
- The Constitution did not grant the President all the executive power of which the government is capable. This directly contradicts the history of conflict with King Edward III of England, and the Declaration of Independence. It also contradicts the Separation of Powers Doctrine implicit in the Article I powers granted to Congress, Article II powers granted to the President, and Article III powers granted to the Judiciary.
- The Constitution did not grant the President absolute authority under the War Power. The clauses granting this power do not contain concrete limitations. Although not an empty formulation of words, there are no contours for the War Power. Even though America was at war in Korea, the War Power did not justify seizure of the steel mills.
- The Constitution did not grant limitless Presidential authority to execute the laws. This is so because "No person shall be . . . deprived of life, liberty or property, without due process of law . . . ." U.S. Const. amend. V.
OpinionAs a government of laws, not of men, Eisenhower did not have power to seize the mills. For all these reasons, former Attorney General Edwin Meese indicated legislation by Executive Order about guns ought to subject Obama to impeachment.
New Jersey Criminal Defense Attorney Michael Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding the right to keep and bear arms under the Second Amendment.
Call Now—(856) 812-0321.