As we head into the third year of dealing with the COVID-19 pandemic, many Americans are growing weary of the restrictions on daily life — with no end in sight. From the president of the United States all the way down to the county level, executives have taken extraordinary action in response to the pandemic. Now, with calls to treat everything from gun violence to racial injustice to climate change as emergencies, it seems executives are hooked on emergency powers.
But President Biden should look to history and what happened with one of his predecessors who tried to rely on emergency powers. As the saying goes, “Those who cannot remember the past are condemned to repeat it.”
In April 1952, in an effort to prevent a threatened strike by steelworkers, President Harry Truman announced in a television broadcast that the government was seizing control of the nation’s steel mills. America was fighting in the Korean War, and Truman said he had no choice but to seize control of the steel mills to ensure our troops had the weapons and ammunition they needed. The only problem was that Truman had no constitutional or legal authority to seize the mills.
Congress had given Truman an alternative way to deal with this situation. The Taft-Hartley Labor Management Relations Act authorized the president to enjoin a nationwide strike that would threaten an entire industry. Congress considered and rejected giving the president the power to seize facilities where a threatened work stoppage would “imperil the public health or safety.” Undeterred, Truman seized the mills “with utmost reluctance,” he wrote in a letter to Congress.
Less than 30 minutes after Truman’s announcement, lawyers for the steel mills were knocking on the front door of a district court judge’s home, demanding a temporary restraining order. The steel mills got an injunction to stop the government from operating the mills just days later. The U.S. Court of Appeals for the D.C. Circuit then granted the government’s request to halt that injunction while the government petitioned the Supreme Court’s review. The justices quickly scheduled the case for argument, and just eight weeks after the seizure, the Supreme Court issued its ruling in Youngstown Sheet & Tube Company v. Sawyer.
Truman argued that a strike by steelworkers would imperil the war effort, and, as president and commander in chief, he had inherent power to safeguard the safety of our nation. But a court appointed by Roosevelt and Truman disagreed, issuing a swift rebuke. The majority held that no law or constitutional provision gave Truman the power to seize the steel mills, and that Congress alone was “entrusted with the lawmaking power … in both good and bad times.” Justice Robert Jackson explained in a concurring opinion, “The Framers knew what emergencies were, knew the pressures they engender for authoritative action, knew too how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies.”
Jackson continued, “Congress may and has granted extraordinary authorities which lie dormant in normal times but which may be called into play by the executive in war or upon proclamation of a national emergency.” Congress had not granted Truman any such extraordinary authority, and he lacked the power to act on his own.
This blow from the Supreme Court came on the heels of Truman’s administration unraveling. He announced he would not seek reelection as public support for the Korean War vanished, and his approval rating plummeted to just 22 percent — the all-time lowest presidential approval rating.
This certainly was not the last time a president would claim power that didn’t belong to him. Thankfully, the Supreme Court has preserved the separation of powers in cases such as Richard Nixon’s attempt to impound congressional appropriated funds, Barack Obama’s “recess” appointments when the Senate wasn’t in recess, Donald Trump’s eviction moratorium (which Biden inherited and extended), and most recently Biden’s vaccine mandate for private employers.
Let Truman’s spectacular failure be a lesson for Biden: As his approval rating continues to drop, closing out his first year with the second-lowest rating for a president’s first year, and Americans’ tolerance of COVID-19 mandates and restrictions diminishes, he should reject calls to invoke any purported emergency powers to deal with policy matters that are best left to Congress.
Elizabeth Slattery is a senior legal fellow at Pacific Legal Foundation and co-host of “Dissed,”a podcast about the Supreme Court. The latest episode explores the steel seizure case. Follow her on Twitter @EHSlattery.