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tv   Supreme Court Landmark Case Youngstown Sheet and Tube v. Sawyer  CSPAN  November 21, 2015 7:00pm-8:31pm EST

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cases," exploring 12 supreme court decisions. >> the petitioner versus arizona. >> good evening and welcome to "landmark cases." our series that explores the people and stories behind some of the supreme court's most important decisions throughout our history. this week the 1952 seizure case. it's officially known as youngstown sheet and tube vs.
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sawyer. we're going to start with a piece of vintage film. it's from a documentary. and it features president harry truman on april 8th, 1952 as he announces to the nation his case. >> with american troops on the field of battle, i would not be living up to my oath of office if i failed to do whatever is required to provide them with weapons and ammunition they need for their survival. therefore, i'm taking two actions. first, i'm directing the secretary of commerce to take possession of the steel mills. >> the issue in this story is the power of the president and its limits. not often is the president's authority directly attacked in a lawsuit, but that is what happened in the administration of harry truman in the second year of the korean war when he
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ordered the federal government to seize a major steel mill for the united states. the legality of that action debated with intense feeling was finally resolved by the united states supreme court. this is the story of its ruling and the conflict that led to it. the story of a president's power contested. >> and that's what we're going to talk about tonight, the president's power and what the supreme court had to say. let me introduce you our two guests who will be with us for the next 90 minutes. michael gelhart, a law school professor. he's the author of the book "power of presidents." and william howell with the university of chicago american politics professor and the author of numerous books on presidential powers, including "thinking of the presidency." >> thank you. >> welcome back of you. what are the succinct issues of
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this case? what's the heart of it? >> at its heart is the story and a case about presidential powers and its limits during times of war. it's one of the central themes of the presidents and what they may limit during the time of the constitution. >> what makes it a landmark case? >> it was unable to avoid the constitutional of the president seizure of the steel mill. it was like the titanic, a tremendous conflict which is very important at the time. what makes it historic, one is about structure. the basic relationship between the president and congress. most of the time you're covering about rights but struck chure has to do with protecting the american people and follow certain guidelines.
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the other is giving us a language to talk about struck chure. gives us very cordoned sort of concepted that we're going the use later in cases involving sufficient powers down the road and our lack to be talking about this is going to be traceable to this case. >> let's get to the background. it took place in the time of the korean war, the korean conflict which on june 25, 1950. now, it's important that there was never a declaration of war. why is that significant in the case that unfolds? >> well, the last time that congress declared a war, world war ii. and what we have in this case is the u.n. special security council comes forward and recommends for military action that the united states gets involved in. but famously truman calls this not a war but a police action in response to a query from a reporter. and this is really important because it's at the framework of the discussion that's going to follow. and it opens up lots of opportunity for congress and
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makes it harder for the president to walk this line wanting to argue on deference and acquiesance while also claiming that they shouldn't be interfering or meddling with this constitutional right to wage war. >> so there's an important legal distinction between a state of war and an emergency situation? >> well, there could be. that's one of the issues in the case, whether this bill calls for it in the absence of war. one of the tricky things here for president truman is that he's backed into a corner because the more he talks about this as being war, it's going the be less popular for him the nation's just come out of a horrible war. we're about to enter into what he calls a price action which is going to cost thousands and thousands of lives.
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and the more people become aware of that it's going the be harder for truman. what's going to allow me to maintain some popularity and still get it done in time? >> what was the public sentiment? >> it wasn't good. his approval ratings when he first took office were way off the charts. he was doing phenomenal whelm -- he was doing phenomenal well. they plummet in the aftermath of world war ii. he gets bumped up when he gets re-elected in 1948. and a slight bump up when the what's going to allow me to war was beginning up into the mid 1940's. but by the time the supreme court case rolls around his ratings were in the mid 20's. we don't see those numbers until the tail end approaching his second term. >> what about also the economy at that point? >> well, it was fragile. it was expanding. there's a tremendous amount of growth occurring.
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but one of the themes that we're going to see played out is a conceern that the war is going to disrupt this and it's going to lead to high inflation. so at the center of this case -- our set of controls is price control and wage controls and to insure that the economy is well functioning and keep the public happy with their government and also to ensure that the economy is funding the war and supporting the troops. >> this case is also ultimately about power. so it's really interesting to think about for harry truman. by the time this case rolls around, he's a lame duck. he's so unpopular, he can't run again. yet he's about to do something which is a tremendous experience -- a tremendous exercise of authority in spite of that unpopularity. >> he's not going to win again in march of that year.
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he could have run, as you say. >> much later he's going to do something which i think would make people today amazed that a president could try to do that. >> what about his relationship with congress? >> never good. [laughter] and certainly not good at this point in time either. but he's got a lot going on in the country, a lot going on in. at the same time he's got a lot of conflict within his own party and the other party as well. he and congress don't get along very well, he vetoed a critical piece of legislation, but the veto was overridden. it's a very tense relationship and that may also shape what he's going to do. >> talk a little bit more about that because harry truman himself was pro-union. >> yes. that was one of the reason he tried to veto it and he tried to
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follow it even if it applied in the case. truman didn't want to alienate the union. and it's going to be very difficult to maintain his popularity with the unions while at the same time figuring out the legal authority he was going to use. talks about failing to do the right thing. doesn't really talk about the law at all about his authority to do this. he's just trying to do the right thing here. he's thinking basic political term. >> this is an argument about expedient, it's about maintaining an ongoing war. and he's asking congress -- excuse me, asking the supreme court to step aside and recognize that he and he alone has this obligation.
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>> we have a facebook comment and you will tell me in just a minute how you can be involved. already posting on facebook jackie gilmore writes look at what he does at that time. he wanted to propose drafting people to the military and killing labor leader who would not run the trains. did he get involved with other industries? >> well, concerns about strikes have a long history in matters involving war. they were at the center of f.d.r.'s effort. he comes to an agreement with the unions and goes out and beseeches them not to strike. and gives them the authority to quash strikes which is that everything related to the war wasn't interrupt that effort. and in the aftermath when we were talking about tarpley in 1948, the republicans they had two years where they got control of congress. one of the things they're reacting to in that case was that this massive influx of
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strikes that occurred in the aftermath of world war ii. so when truman was in power, he had a every reason to worry about the introduction of strikes. >> i think one that's related to that is roosevelt had a different set of mechanisms related to him. there were some things that he could seize control of businesses an industries. when truman comes in, he's going to have a different set of restricted statutes. >> i mentioned you getting involved. there are three ways that you can get involved. first of all, there's already a conversation underway on facebook. find c-span and you'll see the posting about landmark cases an join the conversation there. you can also tweet us and we'll tweet throughout the next 90 minutes of our program. when you do, it's important for you to use #landmarkcases. we'll get your comments to air
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here. finally, you can call us. we like to hear your voices. here are two ways you can do it depending upon where you live in the country. eastern and central time zones 202-890-8700. and we'll begin taking calls in about 10 minutes or so. this is about youngstown, ohio, and it's important to the nation's steel production. we're going to learn more about the steel industry at that time and the impact that a strike could have on the nation's economy and its war preparation. >> this is my hometown. it's called youngstown and it's in the state of ohio near the pennsylvania boundary. ♪ in youngstown, we make steel. we make steel and talk steel.
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look down any street in town and you'll see the mills at the end of it. there are 25 miles of them along the river. today they're busy day and night. every eight hours the shift changes. 15,000 men to the shift. >> the mahoney valley was amazing. you can see all the other factory buildings. it was hard to tell where one began and where the other one ended. the company by the 1940's was one of the largest steel companies in the nation and the largest employer in the state of ohio. in the 1950 census, there were in the mahoney valley a little over 4000,000 people. of that, 70,000 worked in steel or a related industry.
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of that 70,000, 40,000 were in basic steel production. certainly it's important because you need to manufacture munitions and that sort of thing for the proverbial hot war. the korean war was a hot war and they needed steel for munitions, tanks, for jeeps, for all of those things that you needed in the second world war. if they went on strike, that was going to be a real problem because of the things that an army and navy need, an air force needs to fight a war. >> let's set the stage to actually cause the steelworkers to want to go out on strike. what were the conditions? >> well, it was the view of the laborers that the industry was making a tremendous amount of money, and that money wasn't being directed towards them. they were calling for wage increases. >> and they were making money because of war production?
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>> in no small part. the steel industry was operating nearly at capacity, a tremendous amount of steel. and so the workers thought that they were due an increase in wages, but this was at a time when the government was involved in setting wages and in setting prices. and so it will have not two parties but three. and the government is going to have an important role to play in deciding whether or not there should be a response in the increase in the steel companies and the increase in wages. >> truman actually can get a deal, so to speak, and put it forth to the board what wage demand would have been from the unions. the problem is he couldn't get the price at the level that he wants and ends up being the steel company wants something
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like $12 or $13 a ton. they can't get close to that. the prices they won't go anywhere near that. but the companies and the unions don't arrival at a deal. >> you had the wage stabilization and the price stabilization. this was done on purpose in part to ensure that they wouldn't be working together is the whole point of the tamp down inflation. they don't want wages to increase and then wages -- and it escalates. but it makes for a mess in trying to handle the negotiations to proceed. >> the late months of 1951, this is all really starting to percolate.
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it seems truman would have several options to exercise seizures. so he could have asked congress for this endorsement. he could have bipassed partly to some other thing. he could have turned it over which he did to this watching stabilization board and lived by what it said. all of those were operations available. and the year end, he was talking to the public and it seemed like other things were on the table except the seizure. >> the union comes out on november 1, 1951 and announces which they had to do is set a restrictions on the unions to strike and a planned strike. but they come out on november 1, saying we're planning a strike. and then there's a cooling off. december 31, truman announces that he's going to see the council on what the increase in wage ought to be. the union voluntarily steps
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aside and backs off which allows for an additional cooling off period. but it gets hot pretty quickly as soon as the wage stabilization board controlled it with the recommendation. >> bring us up to date in march and april of this year when this comes to the decision to seize the steel mills. what happen that leads it to it? what's the tick-tock? >> they make a recommendation changes that includes an increase of wage at 12.5 cents, backdated. they're going to be given an improved wage. but it looked like it was going to cost about .26 cents per worker per hour to the industry.
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and the union shop is recognized by the wage stabilization board. and the management pivots quickly and says we can't possibly cover that. we can't possibly incur these costs without a substantial increase in the price allowed. >> and so what happened? >> it's negotiations. they go back and forth between march 20 and april 8. and they failed. the president is hoping they will come to agreement. as we saw truman comes out on the eighth of april and announces he's going to seize the steel mills. >> april 4, the talk escalates and it's april 8 that harry truman goes the public and announces that he's doing this. what do we know from historical records about truman's advisors?
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>> he is getting a lot of advice, and it's not really uniform. in the sense, there's a lot of lawyers spending a lot of time on this. they're trying to figure out which of any are we talking about where the president could take actual control of the operation of the steel mills. taft-harltley comes around the most. much more administrative procedure than the president wants to have. he says looks i've only dealt
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with in these other. the other is the cooling off period has gone too far. 99 days, and that's more than the taft-hartley act would have asked for. so he doesn't feel he could have asked that. as time goes on the negotiations are failing. they combat against each other and they're almost knocking each other out. >> there are a set of people who are coming in. they're suggesting to him, look, they can absorb these cost. he's getting this advice. you can push through with these wages. you ought to take a harder stance against management, which is probably the reason why we end up having to see the takeover. >> so the union announces that it's going to strike on april 9 and on april 8 harry truman goes to address the nation. let's watch.
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>> the plain fact is though most people don't realize it, the steel industry has never been so profitable than it is today. at least not since the profiteering days of world war i. and yet in the face of these companies, the steel companies are now saying they all to have a price increase of $12 per ton, giving them a prophet of $26 or $27 per ton. that is the most outrageous thing i have heard of. they don't want to rise prices because of the wage increase, they want to double money on the deal. you may think this steel doesn't affect you. you may think it's just a matter between the government and the few greedy companies. but it isn't.
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that comes pretty close to home. >> for both of you why you hearing the president doing and making the case to the public here and how will it figure into the case that we're going to discuss? >> he's shaming management. he's saying these are a bunch of profiteers who are using this dispute as an opportunity to extract and to price gouge. and this in the background is a war, right? and yet our troops are fighting and dying on the frontlines and this industry is central to maintaining the war effort. >> there's a divide between the legal arguments and the political he's making. he's got to make an argument for
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the american people. they're forcing us into this situation and there's a crisis in a sense that they've helped make worse and therefore the options are few and far between. >> it seems as though the steel company lawyers were well prepared for this. what did they do? >> well, before the evening was done, they were at the hem of one of the judges trying to get an injunction. the judge says i'm not going to do that. >> the case was right here in the next day. >> they got right in. and the arguments were fast and furious on both sides. you have truman's lawyers with the need of expediency so that
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we can attend to this problem. and management declaring that gross abuse of executive power. >> let's start taking some of your phone calls. first up is david who is watching us in tulsa. hi, david, you're on the air. welcome. caller: hi. i'd like to ask a question. did the cold war motivate truman in any way in his decision? and did it have an effect by the supreme court as well? >> the cold war was a factor. this is also parallel the mccarthy area. there is a tremendous amount of anti-communism fervor, and this
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is part of it also, not just got america into this military fight but the president's going to manage it as well. he couldn't be concerned with trying to stop the spread of communism. >> and you've got the soviet union and china in the background and the cold war is just beginning. it's the former ally of the united states and has become the foe. this is just now beginning to work out. >> a viewer on twitter asked about the hot war. do you think that the war was used as leverage by the steel industry to get what they wanted? the korean war? >> the war itself? they were certainly producing at really high levels because of
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the war. you don't hear truman say that. and rather than you using this showdown, this dispute that's labor dispute. >> it's because of the war that labor is saying management is making a lot of money. >> patrick is watching us from new york. hi, patrick. caller: good evening. thank you for taking my call. i just briefly want to refer to last week. justice scalia said that this -- something like this could happen again. and let me just fast forward now to when ronald reagan replaced the air traffic controllers because they went out on strike. i believe they were federal employees. my question now is, with the
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passage of the war powers act and even further the patriot act, do you see any problem or any issues with an executive order now by the president to do something similar like happened in youngstown? >> well, that is an interesting question. president truman ignored it. otherwise they don't make much an effect on what they do. and in terms of whether the president can do something that extreme, i think it depends on context. the other thing to note about this particular case is the extent to which it the president's actions turn out to be unpopular. if the president were to do something that would be popular,
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it's a different dynamic. and i think with truman, as we said at the beginning, his popularity is plummeting through this. that is, at least acknowledged that as one of the arguable constraints. >> the economy about how we go to war also changed and really important ways. the steel industry has a measure of independence that the military industrialized sector of today does not. a level that is much more regimented between defense industry and production of munitions today than 50, 60 years ago. that is an important role. there are contemporary disputes about how presidents use their war powers at home and not >> ed is in connecticut. you're on. >> hi. truman lost the case but steel was produced. so how did that come about and did the case have maybe an indirect effect even though he
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lost to unions? >> i'm going to ask you to not get too far ahead. we want to tell the story how they lost. anything for that caller at this point in time or just wait? >> it's coming. it's coming. they do strike and it does get resolved. >> stay with us. that is the main message here. on the 50th anniversary, the steel seizure case, ducane university law school and harry truman library did a retrospective and interviewed two of the clerks to justice jackson. one of them ending up having an interesting legal career himself. next you will see a bit of an , oral history of this case, just a clip with bill request who became the supreme justice. in 1952, he was a clerk to justice jackson. he talked about where we are in the story right now and at the lower level federal court hearing this story and the argument that harry truman's
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representatives made. let's listen. >> the government made extraordinary claims at the very beginning at the district court. the president had all of the authority that george iii had a less it was taken from him by the constitution. you can imagine the press outcry about this. it made headlines. and it gave a negative aspect, the government abandon their argument before it got to the supreme court. it got the government on the wrong foot. >> ambivalence about the korean war at that point? >> very much so. people fighting and dying above very few sacrifices called on the home front. world war ii are not that old. had 14 million people under arms. a lot of things group restricted on the home front. the korean war, you do not have those restrictions.
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there was a real ambivalence, as you say. >> with all of the legal counsel, how did the government get off to such a bad start in making the case in the federal courts? >> there is a secretary of general who will live in infamy for having gotten into this mess. out of which the government never fully gets, i would say. he tries to make the argument partly on the basis of statutory authority. but then he gets into discussion with a district judge in which , the district judge cross-examining baldrige and ends up in the paper the next day because he answers the answers, yes. the judge said there is no real limit. it is up to the executive to determine if there is an emergency. the government saying it is right. government can never really escape that. even in the court of appeals. the discussion keeps coming back to that.
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where is the limit on a privileged authority inherently or otherwise to determine whether it is an emergency but use extraordinary power? >> for the record, let's get that district judge's name on the air. and it was walter bastian. correct? >> bastian is the first person they went to. >> right. >> what do you want to say about this part of the process? >> well, the president -- the president has a case on constitutional grounds. for all of the times that fdr had intervened during strikes and had done dozens of times, they always affirmed on authority. they never recognized the authority to nationalize an industry as truman had done. from the get go, truman's lawyers are overplaying their hands. >> what was the outcome of this legal proceeding? >> it did not go well for truman.
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it gets shut down in no uncertain terms. notice, all that was being asked was a preliminary injunction. there was a sense in which it can put this on hold right now. not, do we have to shut it down? but what management was primarily concerned about was whether or not the truman administration was going to increase wages. or change the terms of employment for the workers, while holding is the steel industry. and rather than simply making the case on the basis of irreparable damage which was what was at stake for asking for the listing of a preliminary injunction, the district judge goes all the way and says this is illegal through and through. we should shut it down. and they did. >> it's a real tactical mistake about the government among other things. i think the judge was going to get to that issue one way or another.
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but many experts, the government in this case, not to making the narrower argument. what we went through, some would say the steel industry is not entitled to preliminary injunction. that does not require getting into the constitutionality of the president's actions. >> so what happened next legally? how did it get from this level to the supreme court? >> he gets there fast. and that's another aspect of this case. it ends up in front of the court of appeal and they end up staying the judges order but then expediting case along so so it is a very short order. faster than the typical case. justice rehnquist and his fellow clerks heard the argument. having a feeling this case might be coming to them at some point. >> you say it's unusual. but the court can really respond
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very quickly if it needs to. what makes this particularly unusual that they did? >> precisely the certain sense that we've been talking about. there are boots on the ground. in korea. that is not lost on anybody. plus the steel industry is real concerned about losing control over the business. no matter which way you look, everybody wants it done yesterday. >> the steel is continuing to be produced because there's an injunction so nothing happened to production during this? >> it's continuing to be produced. the whole arguement that adds to this urgency with the war in the background, the full argument is we cannot stand for an interruption of the flow of steel because it was not be up to produce tanks and airplanes to wage the war. the war is very much in the background. >> pat is watching in milton, washington. your question? hi, pat? >> i'm sorry, yes. >> you have a question for us? >> i know that harry truman was
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not a college educated president. i think he was the only one. he certainly was not an attorney. did this have any impact on his thinking, i do not know. i do not mean to sound snobbery because i admire the man. he was president when i was, you know -- i think it was a pretty good guy. i just understand he was not a college educated man and i wondered does this have an impact. >> thank you for that question. >> it's a fair question. it does not have much impact. we have a number of president that did not have a formal education that was sharp. i think truman was perfectly sharp, intelligent guy. and this is, i do not think it happens because he does not understand the issues or not sophisticated.
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this turns out to be a quandary for him. and ultimately a failure for him because he does fervently believe he is right. that is what he said and the television address. he said he is right. the president, no matter the level of education, believes that. >> he's engaged in pragmatic terms. he is aligned with labor. he's concerned about an on going war that he's trying to manage. and he is trying to see a way forward. when his casting about, looking for the tools to take the action to him that makes sense. and it is that pragmatism that defined the actions he takes. >> before we get to the case -- the supreme court itself in 1952 was quite an interesting institution. give us the framework of the court at that time. who were the overall, the political appointees that were made? what was he facing? >> the court itself is an interesting point in time. it's got nine democrats on it.
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five appointed by president roosevelt and four by president truman. he felt like all of them were friends of his especially the ones he appointed. and he also pointed the last person ever to be democratic appointee of chief justice. vinson it is called at the vinson court. it has nine really strong people particularly the eight people under the chief justice, very strong egos and very intellectual and very opinionated. and somehow, then send -- vinson's has to keep his crew together. by the time it rolls around, is largely failing to keep them around. he does not have a regular consensus. >> the descriptions of the court suggest it was really important about by faction, was it? >> well, certainly was as was the democratic party. the democratic party was riveted in ways it is not today.
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there are southern conservative democrats and northern liberals. and many of these people were appointed under fdr with an eye toward support for new deal legislation. it carries over into their unified support for a host of challenges, new challenges presented and we see the emergence of disagreements. >> particularly, i read there was a black justice, black faction and a felix frankfurter faction? >> yes. they have very different views about constitutional law and generally. almost everything. quite different personalities. and so when you start zeroing in on the court, you will find even though they are all democrats, they do not all necessarily like each other or respect each other. and by the way, president truman is just bypassed just as a black and justice jackson and appointing his old friend
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vinson. black and jackson have not forgotten that. there's a little bit of personal antipathy with the president. there is politics here. and also the fact all of these justices we pointed out were appointed because of their support for the new deal. what we are seeing as how the test for appointing somebody in the first place may not be relevant 10 years down the road. the issues will be different and they will evolve. these groups the democrats will describe a lot of this. >> truman thinks he's going to come out just fine. in no small part because these were democratic appointees and they served in his administration and our people with whom he had personal ties. >> because he has a conversation one of them. >> do we know that for historic record at that chief justice and the president were talking about this? >> we have one recent book that suggests that they have a conversation. it can't be disproven for obvious reasons none of the people are alive today. there's no record of the conversation. there is a suggestion that might
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be credible because vinson is advising truman on a number of issues. he is an old advisor of truman. that is why he is chief justice. there is one suggestion, one allegation that truman talks to vinson it we do not know in person or on phone or how and vinson tells him not to worry, the court will side with you. >> would that happen today? do people watching this know that there might be conversations now right now we have a president and a chief justice of different parts but could you see a president picking up the phone and getting a sense of where things are going? >> we have different ethical rules and different conventions governing how the judiciary should act as opposed to this. assuming that the rules and measures are followed, i think the answer would be no. >> we have a much more thorough vetting process. it's not clear they need to get on the phone in ways they may have had to a half century ago. >> because people would have a better sense of the positions? >> democrats are -- loyal
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democrats are appointing loyal conservatives today. >> there's one other name of the justice i want to tell people about. it's an interesting personal story and that is tom clark who had been harry truman's attorney general, right? >> yes. he had been truman's attorney general and given him advice. in the past no matter what was going on in the present. clark going to end up not being popular with truman. truman figures he has clark in his pocket. he will be really angry at the court. particularly angry at clark. one person he will never forget. >> and years later his son, ramsey clark, was named attorney general by johnson. do you know of any other father father-son appointments? it seems like interesting. [laughter] >> i just thought it was interesting. it was interesting to point out
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there was a family legacy there. so we are going to learn a little bit more about this. let's take some our calls. next is chris from brooklyn. caller: hi. thank you for c-span and thank you for the series. you know, i think that one of the things that people really think about when they think about this case is there were a lot of other options then then seizing steel mills. and there were a dozen or so governors involved in a lot of local politics. quite frankly, harry truman did not have gravitas that fdr was. korean war was not a declared war. and i think justice jackson's commentary about the powers of president in the twilight or apex are pretty apt. truman was not that strong of a president going into this.
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if you are guess the comment. >> truman was coming from a point of weakness. that's for sure. the things you're talking about are reflected in his approval rating. he had a number of laws to draw from. we've talked about the taft-hartley act. amendments in the service act but none of them provided a clear pathway to take the actions he wanted to take which is why when he comes before the court, arguments a mix of constitutional authority and also the relevance of past practice. he wants to say what i'm doing is not new. there is historical precedent. the courts should recognize the legality of it. >> next is a call from vienna, virginia, eric. >> hi. thank you for taking my call. i'm calling from a different perspective, engineering point of view. i don't know if you understand the difficulties faced by any
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time there is a strike or shutdown of a plant, it would take weeks or several weeks to shut down the steel mill and probably several weeks to start it up. timing, you just cannot turn off the switch and walk away. you have got to a lot of things to do to protective equipment and enable you to, back up. that is all. >> thank you for adding that dimension to the discussion. >> which explains the delay between april 4th and april 8th. april 4th they break down. and the strike is about to happen on shutting it down four days later. a delay in part of these concerns. >> steve is in cloverdale, virginia. hi, steve, you're on. >> thank you all so much for taking my call. i'm just wondering about the same time the united nations is
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new -- i was wondering if it was a new body and outside the united states interests that were maybe influencing the decisions of not just truman but the government and how it may have played a role like doing things like the secretary-general? and the rural and things of things falling apart. as sister is progressing, and they were losing their power and it was a grab from the u.s. the industry and a last grasp maybe the government was used by business and maybe he was against this. outside interests i guess is my question. if it may have influenced our government and harry truman. >> i appreciate it. >> i don't know of any evidence that suggests what truman was doing was acting on the behest of the united nations. interestingly, when the united nation's charter was signed, the
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promise of that when the nation goes to war, domestic constitutional obligation remain in place and so some of the controversy associated with this particular war and truman calling its police action rather than recognizing as a war and rather pointing to the u.n. as justification is apt. >> the oral argument was set for may 12, 1952, about a month after the seizure. and they set aside five hours for oral argument. today, the typical oral argument is can you comment on five? one hour. >> that is a huge sign that this is a big case. that tells everybody it's a big case. i should also note that the relatively short period between arguments does not give the government a lot of time to think of new arguments. they will recycle some things, including the argument about basic authority that the
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president has got. one problem in a sense the government has got. i think the fact they set aside so much time is also going to in a sense allow the court to give this case, really tell the american people, we know it is an important case. we expedited and will given consideration. >> there were a number of attorneys who took part in the argument. i want to read the names. there are couple of famous john one. davis was an attorney for the steel industry. philip perlman. arthur goldberg. united steelworkers of america general counsel. clifford o'brien and harold heist. the brotherhood of local firemen and the order of railway conductors. who in that list you want to comment on? >> it's a stellar list. you've got some of the great lawyers of that time, beginning with john davis.
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he was famous for all sorts of reasons and he was solicitor general of the u.s. before this. >> argued one of our earlier cases. >> yes. and he's going to argue brown as well. so davis is one of the great lawyers, of course, of his generation. the name of the famous law firm davis-poll in new york city. what also we find with the davis is a does still industry had multiple lawyers up until this case. and they realize that having multiple layers is not helping them, necessarily. davis to consolidate the argument and he comes in at how to be a really excellent advocate in the case. to some extent overshadowing who was the first jewish solicitor general of the united states and acting attorney general at the time. and goldberg has a very short argument in the case later. i should say chief justice rehnquist mentioned to me, the best argument he thought was goldberg's, which is
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overshadowed because the others have more time. >> one of our viewers tweeted is tom curry, a journalist we know well, he tweets john davis who argued the case won 29% of the popular vote as a democratic candidate in 1924. >> he was everywhere. he did a lot of things. he had been in congress i believe. very distinguished gentleman and really a veteran of the supreme court bar. he is going to get up and, he is not going to be questioned very much by the justice despite that. perlman stands up and he is battered with questions. >> that's the sense of our next video. we're going to return to the oral arguments -- oral history with former chief justice bill rehnquist and he is interviewed again in 2002 by ken gormley, the head of a law firm and is now president of duquesne. let's listen to william rehnquist.
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>> of the fact he argued for over an hour and was asked only one question. i mean he had a style of advocacy you do not hear nowadays. it was very impressive. and then solicitor general perlman got a whole bunch of questions from the court. the clerks were not present at the conference, but but george, my co-clerk and i were dying to find out what happened as i suspect the other clerks were, too. we followed jackson and his office when he got back as we often did and would tell us what happened in conference. he told us, the president got licked. >> the president got licked. >> 6-3. and the leading with the opinion by black, which came -- which was affirming in no uncertain terms the defeat of truman's case. and in many ways, a
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reaffirmation of a district court ruling, which was sweeping and it's a dimon. the other justices and the majority will break for variety of reasons. it is a real blow for truman. >> i want to ask about court procedure. we always hear about the supreme court that conferences in violet, that no aides could go into the room when justices are in conference. here we have the justice talking to his clerks about what happened in the room. is that common? >> that's pretty common. they're not in the room when it happens. obviously this is a big case and i'm sure all of the other justices are doing the same thing and tell them their clerks what happened. the fact the black announces this decision will be another blow to truman. they were in the senate together and friendly. truman confused friendship with agreements. that's what be one of the many blows. >> so the specific two questions that were before the court are
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these -- first of all, is it appropriate for the court to make a final determination on the constitutionality of the president's actions when the cases that the preliminary injunction state? it is a court authority question. the answer to that is -- >> well the court says the answer to that question is yes. and i guess that's the critical answer here. that in itself is historic. this is in some respects thought to be the first great separation of powers conflict in the 20th century. this is probably the biggest loss a president has had up until this time in american history in the supreme court. keep in mind not to long before, the roosevelt administration one of the dubious victory and now not too long after, less than a decade, the president will lose big time. maybe there is a lesson here. the court's thinking we have given presidents too much flat. black turns out to have a very distinct viewpoint when it comes to constitutional law and separation of powers.
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he is what is called a formalist. he believes that the legislative set of powers and executive. the president does not have that power. and currently or otherwise. three pages. >> and question number two is at the heart of what we've been talking about. was the president acting within his constitutional power when he issued an order directing the commerce secretary to take possession often operate most of the nation's still mills? >> patently, no. the president has no right to behave in the way he did and he lacked statutory authority to intervene as he did. it's worth noting that in addition to recognizing a host of statutory options available to the president including taft-hartley, they went in notes and when the congress was in acting taft-hartley they , were debating whether to do precisely the authority truman claimed he had to the president
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and vote it down that amendment. you have this moment that black reaches back to in the legislative history that point out in no uncertain terms he lacked the will of commerce behind him. >> we'll talk about the nuances of that 6-3 decision. first to paul in new york. hello, paul. >> yes. >> go ahead with your question but hit the volume control on your remote, please. we're getting feedback. >> oh. let me stand a little bit away. my question is this. can you hear me? >> yes, sir. >> how did the company management get away with claiming that they couldn't afford to give the steelworkers a raise -- >> i'm going to stop you there because of that feedback. for future callers make sure that your audio is muted so we don't get the delay from the satellite.
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can you answer? how did the steel companies get away? >> this is a political argument. this is where the management is engaging in a political fight, as is truman. that is not prominently featured in the court case is self. that's not what of the arguments they bring. as justification for why truman cannot seize the steel mills. >> is the 6-3 decision. the majority were felix black, williamgo a douglas, robert jackson, and tom clark. the minority was chief justice vinson voted with justices stanley reed and sherman. we will return to another oral argument and this is from one of the other clerks, his name is george nieback. it is an exchange between justices jackson and clark in
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their decision. let's listen. >> after they announced the decision at that time, at that time clark sat on one side of jackson, probably on the left, and tom clark announced his concurrence and i do not remember if he wrote to the opinion or not. but jackson leaned over to truman and whispered, i'm glad you see you have decided to be a judge, tom. now jackson told me that. >> you reacted when you heard that. >> it was very interesting, yes. and of course jackson is talking about this from his own experience. he was attorney general under roosevelt during which time he made some arguments very similar to those he is about to reject in this case. same thing happened. with the korematsu case. and for jackson, it was very important to recognize the distinction between how he looked at the world, political appointee and how he looked at
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the world as a judge. the attorney general and now a justice and therefore he could think differently about the merits of an issue. that's what jackson is saying. >> when jackson was attorney general he was operating at a different time. this is pre-taft-hartley, and it is in the midst of a total war. part of where he's going to justify where he is coming up with a differently because things have changed. >> as you said, justice hugo black wrote the majority decision. there were also number of written concurrences. in the end, does that muddle the interpretation of the case? >> it ends up not muddling so much. there's one concurrence that will stand out, the concurrence of robert jackson. jackson does not serve on the court very long, unfortunately dies in the early 1950's. but one of the great distinctions he will have in the short time on the court is he thought to be the greatest writer, perhaps, the court has
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ever seen. the concurrence not adjust well -- is not just well-written, but will put together a framework that will be the lens or filter through which we look at all separation of powers cases. >> because that framework is so important, we're going to take a minute and read you -- he established three scenarios for executive action and how much power a president would have to withstand legal challenges. as our guests have said, the benchmark by which future executives actions have been judged. let's look at them. first of all, he writes in his concurrence -- when the president ask to express or implied authorization of congress, his authority is at its maximum. the second a scenario -- when the president asked an absence of conditional authority he can only rely upon his own independent powers, but there is a zone of twilight that he and congress may have concurrent authority. and the third scenario -- when the president takes measures incompatible with the
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expressed or implied will of congress, his power is at its lowest add the. what is so important about their framework? >> there's a lot that's important. let me give one other background detail. jackson returned to the court at this point after having served as chief prosecutor. he has gone through world war ii and experiences with tyrants. and with people who have no bounds, boundaries of their power, a line in here, power that has no beginning or end. my guess it has to do with his personal experience having to deal with the horrible wrongs by people not constitutionally bound. and this context, what is important is the framework actually is going to lead us to be able to look at any given situation particularly in the realm of foreign affairs where the president asks, has congress spoken?
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if so, has authorized this or not? knowing what congress has done or authorized help us evaluate the strength of the car digital foundations of the president to act areas >> and he's scaling back from black's formalism by recognizing the value of practice. he's going to put this case in this third category where congress has spoken and spoken against the power that truman claims to have. and in the zone of twilight, he recognizes that when presidents act, their silence might invite, enable if not invite, legal authority to follow. invite presidents to continue in this domain. and he is sensitive to war, imperatives of practice, delegation of authority, the politics that surround them in ways that black was not. >> every justice is going to
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agree with the exclusion of hugo black that it has practice here. -- relevance here. that's significant and it gives rise to a methodology which jackson exemplifies which we call functionalism or bounds. -- balancing. that is what you are seeing in the jackson opinion. >> so we talked about this earlier but now it's at a time that it's relevant. joshua asked, if congress has declared war, would truman have the legal authority? >> it's not clear that it would follow. the declaration would've given the authority. nonetheless, you see the justices looking critically and skeptically upon truman's claims that one, that there really was an emergency if the production of steel halted and an important way stop the nation to continue the war effort. just as you see them raising concerns about the eminence of this threat that the north
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korean were presented. if the enemies were at our doorsteps, they may come out differently. there is recognition of the importance of expediency in terms of the war effort generally and ability of the nation to continue to wage it. but there are not as impressed as truman would have. >> in our final 25 minutes we're going to talk about the impact of this decision on the immediate time frame and then also on the course of history and cases that have involved presidential power. before we do that time for a few , more calls. maurice is watching us from memphis. >> good evening. my thunder was somewhat stolen on justice jackson. i called to speak about him. i thought that he was probably one of the most eloquent to ever sit on the court. but he was also the last justice who read the law and he was not a graduate from law school.
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and also i think one of the great statements in constitutional law was his majority opinion for the court in west virginia state court of education versus barnett. when you get to brown versus board, hopefully someone will speak of his memorandum of law he drafted in anticipation of concurrence as he was going to issue brown. but, i believe his concurrence in this case has a much more far historical impact than black's majority opinion. >> i would agree with what you have said about justice jackson. he is somebody without much or maybe any legal training. as law professor that should tell me a great deal. but he is in their in this mix. every bit as influential, every bit as informed and
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intelligently engaged as any other justice. that is a real monument to him. the second thing worth stressing is his extraordinary ability to capture and relatively parse language, beautiful, really profound thoughts. about a week ago, i heard justice scalia said though just as most admire was robert jackson. quite remarkable given ideologically they are not in the same camp. just a fine writer is saying, there's nobody better than jackson. really anybody interested should read the jackson and how well they can cut through legalese so to speak and get to the issues. >> robert is in springfield, missouri. >> yes, thank you. since the youngstown case, in what cases have the supreme court cited the three-tier approach formulated by justice
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jackson and his concurrence? >> thank you. we're going to talk about that a little more. >> i can't list them all. it's going to get cited a lot. the one thing i should note this , is part of what one might say is a particular key to the concurrence. the concurrence may not bind people very much. that is to say, the framework is there, but what it allows is people to use their own judgment and determine what congress said or not. and that maybe an aspect of this. it is influential, it does not necessarily constraint very much. >> i hope we'll talk about this. how we characterize that zone of twilight is going to change over time and the president's ability to exercise authority and count on judicial backing will be more contentious than jackson. >> zone of twilight gives you a lot of latitude, doesn't it? >> it to does. the other thing is the framework
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is expecting or depending on congress to use some of its judgment or authority. it's relying heavily on congress -- >> one thing is we will step in and do for you what you will not do for yourself. we will come down. >> another robert, this one in new york. hi, robert. >> my recollection is that the government took over the railroads during world war i. what is the difference between what occurred then and the decision made in the youngstown case? >> well, it's a very different war. that is a big part of it. one of the interesting important parts that come out is the claiming of montgomery ward. it is not just about railway but there is a claim in internal
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war, where every dimension of the economy is implicated in the war effort. the case that we need on an interactive flow of production, fdr is able to make in ways that truman falters and is limited constraint action. >> a whole different set of statues are operating in the declaration of war which is pertinent in the sense it reflects what we just said, which is full engagement with the war effort. >> with the 6-3 decision, the steel mills were returned to their private owners. harry truman addressed the nation once again about a week after the supreme court of has this decision. you will hear from the ohio senator. robert cap. -- robert have to. >> mr. truman refused to use the legislative means given to him by congress to deal with the -- for some reason the president doesn't want to use the law. there is no reason why he shouldn't. it can be used quickly. >> i think it would be unwise, unfair and quite possibly
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ineffective. >> the issue is fairly up to you gentlemen of the congress. i hope the congress will meet it by enacting fair and effective legislation. >> that was june 10, 1952. so what's your reaction to what you just heard there? >> well there of course is the basic political disagreement that the two men have. but it's also a radical constitution difference. i think taft-hartley would have to be twisted to some extent to really apply to this particular circumstance. it could but it is not clear it apply to strikes. like labor, labor -- labor strikes at all. strikes particularly in industry like this. but maybe more importantly what truman is saying taft heartily -- taft-hartley would've constraint him so much.
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not just the showing it would have made. those sorts of things that truman was looking for was a statute that would give more authority to the executive. >> taft-hartley is buying him 80 days, that's it. and he got 80 days from the unions -- voluntarily giving it up. >> after the supreme court decision the steelworkers did go out on strike. >> promptly. >> putting a stop to production in time of war and our next video we're going to watch some of the impact of that. >> the 1952 steel strike in youngstown was actually part of nationwide labor stoppage. the companies that operated plants in youngstown, such as youngstown sheet and tube and republic steel and u.s. steel had plans of the number of other locations. so from the east coast through the industrial midwest, all would have stopped work at the same time as those in youngstown. so here, we see picketers,
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members of a local union, 2163, which represented workers in the hot end of youngstown. and they are playing cards. picketing duty for active union members was an important feature strikes, not necessarily in order to prevent replacement workers from entering the plant, because the steel companies not attempt to operate their plans during strikes during this period. ,but as an expression of the , union solidarity to show their support for the decisions taken by the leadership that resulted in work stoppages of considerable length. the steelworkers strike of 1952 included over 500,000 members
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who were out for more than seven weeks. this represented the longest and costliest strike in collective bargaining and the steel industry. up until that time. >> what was the impact and how was it resolved? >> the strike goes on for 50 days. there's not a whole lot of evidence that it has the kind of bearing on the war effort that truman claimed that it would. skepticism by those that claim truman, your overplaying your hand. with regard to the need for expediency and how urgent everything gets. it is borne out. during the 50 day. congress tried to come forward , and suggest they will pass laws but never get around to it. eventually, labor-management come to terms with a wage increase and change of the price that does not look especially different from the kinds of
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terms being debated 4-5 months prior. >> we want to talk about the impact of harry truman. a great story about this. greg tells us one of them, is it true that truman said to justice black, hugo, i don't care for your law, but this bourbon is good? >> that seems to be reported in a lot of places i have to assume that's true. black arranges for a dinner for truman to join the court. because black understands that truman is angry and miffed and trying to find a way to bring them together. and truman does say that to black and as far as we can tell and no from historical records, truman is pretty forgiving to most of the justices. as we said before he is going to , save special activities for tom clark. he will go to his grave thinking -- >> once again we're going to return to george nieback and his memories of that dinner and alexandria virginia hosted by
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justice black that harry truman attended. let's watch. >> justice black used to have a dinner for the supreme court over at his home in alexandria after the close of every session. this particular evening all , of the justices were there and had dinner and the president used to come. president truman was there. they got to talk about the steel seizure case. and truman said to them, i almost came up to argue the case myself. [laughter] >> and justice douglas clapped him on the knee and said why didn't you do it? [laughter] >> happily, he did not. >> he didn't. but this case wrangled harry truman for the rest of his life. we have a letter from truman to
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justice tom clark in which he writes -- all of you were very kind to me and i was glad to have the chance to discuss various things that have taken place in the past, particularly justice black's comments about my decision on the still case being in line with the dred scott decision. i still think that was true. >> well, he had his principles. again we can disagree with them. , one might think he was not correct to think this way. but he believed in what he was doing. and so one can judge him on that basis. but, i'm not sure arguing the case would've made any difference at all. i think the justices fully understood the friendships with him, that those friendships are not shake -- shape the outcome. >> and youngstown to this day is held in incredibly high regard. the supreme court justices, the nominees for the supreme court, the last three or four, and
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their confirmation hearings, wade regularly go back and extol the virtues of jackson's concurring opinion. pointed to again and again in cases following. >> there are certain things the supreme court nominees have to say as a basic thing to get the job and one of them is they agreed with jackson in youngstown. >> one of our viewers posts on twitter stating the same youngstown framework. the man currently leading the court referred to it. in his confirmation hearing. our last couple of minutes we will talk about the impact today. that is a good starting point. first from bob in pennsylvania. >> good evening. thank you for taking my question. i would like to question mr. howell. in 1902 there was a coal strike in the united states. it started in the summer and lasted into autumn. october 1902, teddy roosevelt who was president summoned the head of the mine workers and owners of the coal mines to the
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white house. he basically threatened the mine owners to seize the minds if they do not compromise more. my question to mr. howell, any historical evidence to suggest president truman and his advisers were guided in their behavior by the stance of teddy roosevelt? just 50 years earlier. >> it's a great question. i honestly don't know. truman and his advisers were regularly inviting both sides to the white house to hash out the terms of a possible settlement. the extent to which withdrawing upon teddy roosevelt's example, i simply do not know. it is a great question. >> truman sites in some defenses of his actions he cites , lincoln's suspension of the hebeas corpus. he cites the louisiana purchase. there are a few things he cites along the way as unilateral presidential actions, what he thought were similar to what he had done.
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>> fred is in chicago. what's your question? >> my question is what the last person mentioned. if you would speak to the concurring opinion by justice frankfurter who presented a history of executives taking over various industries, during lincoln's administration, lincoln's office took over the telegraph company lines emanating out a war and other parts of the country. and i would like of your speaker speak on frankfurter. how many of the justices in 1951 or whatever this case came down were appointed by republicans? were they all appointed by democrats i.e. frank roosevelt and harry truman? >> yes to the latter question. in terms of the frankfurter
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concurrence it is famous as , well. one thing to note at the outset, besides black everybody else is going to agree that historical context has some relevance. and what frankfurter will say is the principal way in which the practice will hold relevance if there is a long-standing, unbroken tradition a practice of doing something. in his view, there was not a long-standing practice of presidents doing this kind of thing. >> your congress intervening. very different wars by the truman administration. >> we have talked about this as a presidential power and separation of powers case. one conservative blog that was reading about this suggested that the fragmented opinions have left government seizure of private property vulnerable. legally. >> i don't know about that. i think that this is -- this is so contextual.
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this depends somewhat much on what we have been saying. the network of statutes that applied then and the circumstance that the president faced. typically deals with condemnation and as a whole separate body of law. the president explicitly rejected condemnation as an alternative in this situation. >> you mentioned that the citations of this case in subsequent opinions are too numerous for us to mention. we picked a couple just so folks can see some of the very recognizable cases where the youngstown seizure case has been cited. they include -- united states versus nexen in 1974 about president nixon's executive power. clinton versus jones case before the supreme court. in 2004, hamdi versus rumsfeld.
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and in 2014, nlbr versus canning which was a recess appointments case. i want to show one more piece of video and then we will wrap this up. we've been talking about the fight between congress and the president over who has authority. let's bring that to the modern age. we had the opportunity to interview key members of congress for this series. next you will see senator leahy , and representative goodlatte on the use of the collective -- executive power of presidents. let's watch. >> any president has used executive power. an easy answer is congress it does not like it, pass a law. >> i would like to see the court step up more and make decisions like that when the congress or the private sector challenges the power of the executive branch. we have a president today who came to the congress as
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presidents do with his long list of things, every president does that. that they would like the congress enact, change for he did something different. that i have never seen before. at the end of that, he said that if you do not do it, i will. >> gentlemen, comments from both of you. >> well, i think, again, jackson's concurrence is putting congress on notice to say look we will most reliably stand with you when you speak clearly about what to the appropriate boundaries are of executive authority. and when you do not speak and when there is an unbroken chain of historical precedent which will come back and great -- super court cases there's room , for presidents to maneuver in presidents certainly have. this case is sometimes recognized as a moment when the judiciary checked -- stepped in and checked a wartime president. in that sense, it appears to be important and it also -- the
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primary way in which is meant to invoke is by reference of framework. a way of thinking. when you think about president's ability to exercise power through a will of congress, it is incredibly nebulous. it is very hard to navigate. you can find, presidents can find lots of opportunity to act. >> you gave a stream of opinions in which it was cited and the court went on to rule against the executive. but there are other cases in which the court decided it in upheld what it is that this has done. professor howell has written brilliantly about the fact that it is much harder for congress to act that it is for the president to act. if were left with a framework that depends on congress acting then we have a problem in congress has a problem. it is never going to be the -- be able to act as quickly or efficiently as the president is especially in times of emergency. >> as we're getting toward the end of the program, i want to tell you about some upcoming cases.
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we will have 12 altogether. we will do this until mid-december. it will re-air on c-span and available to watch on our website. if you been watching, you know that we have published a book, collection of pieces that are backgrounds to these cases written by tony mauro who was been covering the court for 30 years. it is a book called "landmark cases" and available for $8.95. it is available on her website, search landmark cases. you'll find out how to order. quicklyt it to you very see could happen for the rest of the series and for background of earlier cases we have done. let's hear from larry in colorado. you are on. >> good evening. what a wonderful episode. i wondered if these perennial battles between congress, legislative, judicial, and executive branch -- where are we at today?
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a slow situation. who holds the power right now? what determines, aside from he designates the justice, how these things are going to go? thank you. >> thank you, larry. >> i think we're seeing a lot more flow than ebb right now. and part of what's going on is one of the appropriate boundaries of war. again, most of the concurring opinions recognized the salience of war and the importance of expediency and we live in an era with multiple deployments abroad and boundaries between peace and war are not so clear. natural questions arise about what the reservoir is a presidential power in president's ability. >> maybe two additional thoughts. again this case gives us the , language we can use in talking about the cases but it doesn't tell us the direction in which we are going to go. it does not tell us what outcome
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we will come up with. we can have a similar language, we can all street -- all speak french said to speak but may be , saying different things at the end of the day. i think that's a difference of youngstown. important in terms of the facts and outcome and gives us this lexicon we can use down the road. the other thing i would say is we should not forget that the court, itself, functions within a historical and social context. and that also was important in youngstown. the public perception, the justices' perception of this action was not lost. rehnquist writes he think the judges were aware and it may have helped shape in their opinions or attitudes about whether or not they could rule against him. >> that's important for people to understand. when you have the opportunity to talk to the justice or hear them, they all talk as if they insulate themselves from opinion.
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>> i would prefer to justice rehnquist that we read newspapers. and pay attention to the news. we are aware of all of those things. i will just -- if it is in their heads, they still have to use the language. they still have to get to this language to be able to frame and put together, in these words and these concepts, that they may be thinking about. >> we have one minute left. a very different country now. it's a different court? >> it's a very different court. it is dominated by republicans. as opposed to democrats. although, again, the parties themselves -- they represent different positions and attitudes in so far as policy is concerned. i think saying a lot of republicans does not tell you very much about how you look at particular issues.
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the court is also different because it has so much more president now to deal with. in the cases that come before. you mentioned other cases. now, when a case comes up with a conflict between president and congress and it may relate to foreign affairs, there's a precedent. there were not that many. argued lee, none. at best one or two. that is again why became such a groundbreaking case. the courts are saying that we are going to go to hear these kinds of cases. >> for the last 30 seconds, i will ask you to sum this up for us. why is this a significant? >> it points to a moment that the courts will periodically intervene and check presidential power. again, it sets up a framework by which to evaluate and adjudicate what occurs across the various frames of government. it is really a landmark case in
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that it involves provincial power. >> terrific guests. william howell. thank you for all of your questions by phone and by tweets. also, on the facebook page. thanks for being with us. ♪


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