January 10, 2006
Focus of Hearings Quickly Turns to Limits of Presidential Power
By ADAM LIPTAK
WASHINGTON, Jan. 9 - The opinion is more than 50 years old, and it is not
even binding precedent. But just minutes into the Supreme Court confirmation
hearings of Judge Samuel A. Alito Jr., it took center stage and seemed to
lay the groundwork for the questions he will face concerning his views on
the limits of presidential power.
The 1952 opinion, a concurrence by Justice Robert H. Jackson, rejected
President Harry S. Truman's assertion that he had the constitutional power
to seize the nation's steel mills to aid the war effort in Korea. Whether
and how Justice Jackson's analysis should apply to broadly similar recent
assertions by the Bush administration, notably concerning its domestic
surveillance program, will plainly be a central theme when questioning of
Judge Alito begins Tuesday morning.
Senator Arlen Specter, the Republican chairman of the Judiciary Committee,
discussed only three decisions by name in his opening statement: Justice
Jackson's concurrence in the 1952 case, Youngstown Sheet and Tube Company v.
Sawyer, and two abortion cases, Roe v. Wade and Planned Parenthood v. Casey.
Quoting from the Jackson concurrence and referring to the surveillance
program, Mr. Specter said, "What is at stake is the equilibrium established
by our constitutional system."
Senator Patrick J. Leahy, the ranking Democrat on the committee, made a
similar assertion in noting that Judge Alito would replace Justice Sandra
Day O'Connor if he was confirmed. "She upheld," Mr. Leahy said, "the
fundamental principle of judicial review over the exercise of government
That was a reference to Justice O'Connor's decisive opinion turning back
another broad assertion of executive power in Hamdi v. Rumsfeld, a 2004 case
in which the court allowed a man held without charges as an enemy combatant
to challenge his detention, over the objections of the Bush administration.
"We have long since made clear that a state of war is not a blank check for
the president when it comes to the rights of the nation's citizens," Justice
O'Connor wrote for herself and three other justices in 2004. She cited one
case as precedent for that proposition: Youngstown.
Judge Alito, in his brief, mostly biographical opening statement, did not
address Youngstown or any other case. But he did seem to nod in the
direction of the current controversy. "No person in this country, no matter
how high or powerful, is above the law," he said, "and no person in this
country is beneath the law."
Chief Justice John G. Roberts Jr., at his confirmation hearings in
September, endorsed Justice Jackson's concurrence. It has, Judge Roberts
said, "set the framework for consideration of questions of executive power
in times of war and with respect to foreign affairs since it was decided."
Most of the discussion of executive power on Monday came from Democratic
senators. One Republican, Senator Lindsey Graham of South Carolina, argued
for an aggressive view of executive power.
"In a time of war," Mr. Graham said, "I want the executive branch to have
the tools to protect me, my family and my country."
In 1952, the Supreme Court faced a set of clashing interests in the
Youngstown case broadly similar to those in the current surveillance
controversy. That April, President Truman seized the nation's steel mills to
prevent an expected labor strike, saying that national security during the
Korean War required uninterrupted access to steel.
In June 1952, in a 6-to-3 decision, the Supreme Court rejected the various
legal rationales offered by the Truman administration for the seizures. Many
of those rationales have echoes in the justifications offered by the Bush
administration for its detention of enemy combatants, harsh interrogations
and domestic surveillance without court approval.
Writing for the court, Justice Hugo L. Black said the president's power was
extensive but not unlimited.
"Even though 'theater of war' be an expanding concept," Justice Black wrote,
"we cannot with faithfulness to our constitutional system hold that the
commander in chief of the armed forces has the ultimate power as such to
take possession of private property in order to keep labor disputes from
stopping production. This is a job for the nation's lawmakers, not for its
There are, of course, obvious differences between the Youngstown case and
recent efforts to combat terrorism. The seizure of the steel mills, for
instance, was a wholly domestic matter. The surveillance program, by
contrast, monitors international communications between the United States
and other nations. The Korean War was, moreover, a conventional one, while
terrorism involves a more amorphous threat.
It is not entirely clear why Justice Jackson's concurrence has had such a
lasting impact. It may be because he spoke with particular authority, having
argued for expansive executive power as President Franklin D. Roosevelt's
attorney general, much as Judge Alito did when he was a lawyer in the Reagan
"That comprehensive and undefined presidential powers hold both practical
advantages and grave dangers for the country," Justice Jackson wrote in the
concurrence, "will impress anyone who has served as legal adviser to a
president in time of transition and public anxiety."
He proposed three categories to judge the constitutionality of assertions of
executive power. His framework may be thought to endorse or reject the Bush
administration's position, depending on how various Congressional actions
The president's authority is at its maximum, Justice Jackson wrote, when he
"acts pursuant to an express or implied authorization of Congress." The
administration says a resolution authorizing the president to use military
force after the Sept. 11 attacks was such authorization.
In his opening statement, Mr. Graham said he was troubled by that argument.
"I've got some problems," he said, "with using a force resolution to the
point that future presidents may not be able to get a force resolution from
Congress if you interpret it too broadly."
Justice Jackson's second category was "a zone of twilight" in which Congress
has taken no action. In that case, he said, "any actual test of power is
likely to depend on the imperatives of events and contemporary imponderables
rather than on abstract theories of law."
The third category is where the president takes action at odds with the will
of Congress. A 1978 law, the Foreign Intelligence Surveillance Act, appears
to require court approval before monitoring of the sort the administration
In this third area, Justice Jackson said, the president's power is "at its
lowest ebb," and claims of presidential authority "must be scrutinized with