Michael Stokes Paulsen: Obama Follows in Truman’s (Unconstitutional) Footsteps





Michael Stokes Paulsen is distinguished university chair and professor of law at the University of St. Thomas.

 

Sixty years ago, on April 8, 1952, President Harry Truman directed his secretary of commerce, Charles Sawyer, to seize and take over operation of the nation’s steel companies, in order to give steelworkers a wage increase and avert a strike threatening steel production during the Korean War. Truman’s action led, in short order, to one of the most famous and important of all modern Supreme Court decisions—Youngstown Sheet & Tube Co. v. Sawyer, the “steel seizure case.” The decision dominated the nation’s headlines in the spring of 1952, just as the Obamacare case has gripped the nation’s attention this spring. Indeed, the two cases have more than that in common.

Youngstown is the landmark case that invalidated Truman’s action. The Court held, in sweeping and categorical terms, that the president may not rule by decree, conscripting private industry to carry out his commands. The chief executive may only execute laws passed by Congress, according to their terms. He may not make up laws of his own and then enforce them.

In February, President Obama an-nounced his intention to order private insurance companies to provide contraception and abortion drug coverage free, as his way of “accommodating” religious institutions’ conscientious objections to being forced to provide their employees coverage of those items under Obamacare. Like Truman six decades ago, Obama has proposed in effect to seize a national industry and tell it what to do, without any warrant in enacted law. Like Truman’s steel seizure, Obama’s insurance seizure is flat unconstitutional—as unconstitutional as anything any president has attempted to do—and Obama does not even have Truman’s excuse of a national security crisis.

Rewind to the spring of 1952: An unpopular president, conducting an unpopular, stalemated war he was not trying to win, was confronted with a political problem in a presidential election year—a looming steelworkers’ strike that could shut down the nation’s steel production for months. The steel industry was under wartime price controls and could not meet labor’s demands without raising steel prices. The government’s Wage Stabilization Board recommended a wage increase for labor, but the Office of Price Stabilization denied the companies’ request for a price increase. Neither labor nor management budged. A strike was imminent.

Truman’s solution was to issue an executive order directing Secretary Sawyer to take over the nation’s steel mills. Steel officials kept their positions, but were ordered to implement policies prescribed by the secretary, notably the wage increase, to please a core political constituency of the Democratic party, organized labor, in an election year.

Steel production was important to the war effort. But Truman’s brazen seizure of private businesses to be run by government decree was wholly unauthorized by law. Indeed, Congress had considered and rejected the idea of such direct government intervention in labor disputes. What Congress had authorized instead, in the Taft-Hartley Act of 1947, was for the president to order a “cooling off” period of up to 80 days during which neither labor nor management could take action against the other. But steel unions were ready to strike if management did not accede to their demands and did not want to cool their heels. Truman did not want to alienate labor, so he took over management.

The owners of the steel mills promptly sued, and the case raced to the Supreme Court on an extraordinary fast track. The Court ruled, 6-3, that Truman’s actions were unconstitutional. The president is not a lawmaker and cannot rule by decree. Even in wartime—even in the name of emergency—the president cannot command private industry except to the extent authorized by specific legislation. (The three dissenters thought that wartime emergency, supported by a generous reading of other statutes passed by Congress, justified Truman’s action, at least as a temporary measure.) Youngstown is now regarded as a landmark decision on the limits of presidential power.

Fast forward 60 years to a near clone of Truman’s steel seizure: A different president, battling unpopularity and desperately desiring to please a political constituency in an election year, miscalculates badly. His cabinet secretary at first orders that religious charities, hospitals, ministries, and colleges (essentially all religious organizations except “houses of worship”) provide abortion pills, sterilization, and contraception to their employees or students in their health care plans, or pay a fine—regardless of whether the religious group objects to providing such services as a matter of religious faith. The secretary’s order produces a firestorm of fury as a grotesque, unconstitutional interference with religious liberty.

It is then that the president, Barack Obama, seizes on the Truman-like “solution” of simply ordering private companies—insurance companies this time—to provide contraception, sterilization, and abortion drugs, and to provide them free, to workers whose employers object to providing them. In essence, he proclaims a right to conscript private businesses to do his bidding, even when Congress has nowhere authorized such action.

To be sure, the idea that insurance companies will provide services free is mere pretense. And it does nothing to cure the violation of First Amendment religious freedom. By entering into contracts with insurance companies to provide health insurance for employees or students, religious employers trigger the required coverage of services they oppose as a matter of faith. And insurance companies will simply pass the costs right back to the objecting religious organizations in the form of higher premiums. It’s a shell game. For the employers, the only legal alternative is to pay heavy fines.

But while the Obama shuffle is a ruse and a violation of the First Amendment, it is also a flagrant violation of Youngstown. A president may not simply decree that private companies be run in conformity with the president’s preferred policies and politics. Just as Truman could not lawfully seize steel mills and order a wage hike, Obama cannot command insurance companies to provide a “free” benefit if Congress has not conferred such authority. Obama’s contemplated conscription—which he won’t turn into an executive order until after the election—is an obvious and outrageous abuse of presidential power.

Recently, the professor-president lectured the Supreme Court that it would be “judicial activism” to hold any part of his health care program unconstitutional. As Youngstown demonstrates, however, the Court sometimes must exercise the duty to strike down actions of Congress or the president that exceed their constitutional powers. By Obama’s definition, Youngstown was judicial activism because it limited presidential power to seize an industry. But as Youngstown made clear, when political leaders make up powers not in the Constitution, it is the Court’s constitutional duty to rein them in.



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