The President and the Chains of the Constitution
A simple warning to President Trump: Human nature hasn’t changed. Presidents are not exempt from the problem of hubris. When married to the awesome power of the presidency, there’s the human tendency to throw caution to the wind, to embrace the notion that the end justifies the means, and to somehow believe one’s own infallibility. And, for the presidency, it’s a nonpartisan affliction.
Watergate and the steel seizure are but two of any number of historical examples of presidential overreach.
Most of us are at least somewhat aware of the Watergate scandal that forced Republican Richard Nixon out of the White House. Buoyed by a landslide election victory, President Nixon lied about prior knowledge of the infamous break-in and then foolishly fostered a cover-up. Sen. Sam Ervin, who chaired the Watergate Committee investigation, discovered, “The president has extended executive privilege way out past the atmosphere.” The bipartisan congressional committee exposed the presidential overreach, and Nixon resigned.
Less familiar to us now is the story of how Democrat Harry Truman met his Constitutional comeuppance. In 1952, President Truman was nearing the end of his beleaguered presidency. The Korean War was dragging on, and the domestic labor force was disgruntled over inflationary pressures. These forces came to a head in the all-important steel industry, as the steel unions threatened a strike which would cripple the war effort. Truman faced an agonizing decision. The obvious path to averting an immediate strike was for him to invoke the recently enacted Taft-Hartley Act, under which the president can enforce a “cooling off period.” But, as a partisan Democrat, Truman had bitterly opposed Taft-Hartley, and the thought of seeking relief here was anathema to him. But the alternative was to allow the unions to strike and shut down the war effort.
It was against this backdrop that Truman decided on a daring course of action, which relied on an unprecedented expansion of executive power. If he could declare a wartime emergency and employ the U. S. military to seize the steel mills, Truman could avert the strike without invoking Taft-Hartley. In order to justify his scheme, Truman sought and received sanction from his Attorney General. He also unofficially (and quite unethically) sought and received quiet assurance from Supreme Court Chief Justice Fred Vinson that his plan could survive Constitutional scrutiny.
President Truman’s Comeuppance
As Truman’s plan unfolded, the steel industry sought legal counsel from another Democrat, John W. Davis, the 1924 presidential candidate and senior partner of a leading Wall Street firm. Davis was a Democrat of quite a different stripe than Truman. He was a conservative who had led the fight within his party and in the courts against Roosevelt’s New Deal. By 1952 at age seventy-nine, Davis had argued 138 cases before the Supreme Court, more than any American since Daniel Webster, and was widely revered as “The Lawyer’s Lawyer.”
In response to Republic Steel’s request for an opinion, Davis wrote a detailed, eleven page opinion which concluded emphatically that the president did not have such power. Davis’s opinion convinced the steel mills to band together and bring suit against the government, and they hired Davis to argue their case.
In the meantime, the crisis intensified as Truman addressed the nation in a demagogic radio speech attacking the intransigence of the industry executives. The stage was now set for an historic showdown, as the Supreme Court agreed to hear the case.
On May 12, arguments in what was now Youngstown Steel v. Sawyer were presented before the court. As Davis, clad in his formal morning suit, argued forcefully against “this reassertion of kingly prerogative, the struggle against which illumines all the pages of Anglo-Saxon history,” a reporter for the Herald Tribune was moved to write that Davis seemed “to personify the spirit of constitutionalism, his voice that of history itself.” Before a hushed court chamber, Davis concluded dramatically with Thomas Jefferson’s words, “In questions of power, let no more be said of confidence in man, but bind him down from mischief by the chains of the Constitution.”
Despite the premature reassurances of Chief Justice Vinson, the Court rendered a decisive 6-3 ruling against Truman. The majority held steadfastly to the sanctity of private property against unlawful confiscation by the government.
Watergate and the steel seizure are but two of any number of historical examples of presidential overreach. With the cumulative expansion of presidential power, it has become ever easier for the president to succumb to the lure of hubris and to fall into Constitutional overreach. A wise president will be mindful of the necessity for these “chains of the Constitution,” and the public should be forever grateful that they “bind him down from mischief.” President Trump, please tread carefully.
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Garland S. Tucker III, retired Chairman/CEO Triangle Capital Corporation, author of Conservative Heroes: Fourteen Leaders Who Shaped America- Jefferson to Reagan (ISI Books) and The High Tide of American Conservatism: Davis, Coolidge and the 1924 Election (Emerald Books).
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