On June 9, 1941--six months before the Japanese attack at Pearl Harbor that would bring the United States into the Second World War--President Franklin Roosevelt issued an executive order seizing an aircraft manufacturing plant operated by North American Aviation, Inc. in Inglewood, California. The seizure was necessary, wrote President Roosevelt, in order to prevent a strike by union employees from crippling aircraft production that was vital to the national defense. No act of Congress authorized the seizure, and the existing procedures for condemnation of private property were not followed, making President Roosevelt's actions technically "illegal." President Roosevelt also imposed 48-hour work weeks and barred payment of double-time pay for weekend and holiday pay in the nation's manufacturing plants, all by executive order and in violation of the Fair Labor Standards Act, because he deemed the actions necessary to the nation's war effort.
A decade later, on April 8, 1952, President Harry Truman ordered the seizure of the nation's steel mills in order to avert a strike that would cripple the steel production necessary to our military involvement in Korea. Like Roosevelt before him, Truman's order did not comply with the statutory requirements for condemnation of private property. Unlike Roosevelt's actions, though, Truman's seizure order was challenged all the way to the Supreme Court, which ultimately held in Youngstown Sheet & Tube Co. v. Sawyer that none of the President's constitutional powers--as chief executive obligated to take care that the laws be faithfully executed, or as commander-in-chief--were sufficient to sustain the seizure. Justice Jackson, in a landmark concurring opinion, found "alarming" the claim that the President could "vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture."
Sentiments such as Justice Jackson's now serve as the foundation for the claims of "illegality" being leveled against President Bush in the wake of the disclosure in last Friday's New York Times that the President has authorized surveillance on international calls originating in the United States to Al Queda operatives abroad. The President's order "violated" the requirements of the Foreign Intelligence Surveillance Act, and was therefore "illegal," assert the President's detractors.
Before accepting such contentions, it is worth exploring a bit more the subtle nuances of Justice Jackson's opinion, for he did not say that the President was not without authority absent statutory authorization. Obviously, the President's authority is at its peak when he acts both pursuant to his own authority under the Constitution and by virtue of additional statutory authority given to him by Congress. Less strong, but no less certain, is when the President acts by virtue of his own constitutional powers, in the face of congressional silence. Finally, Justice Jackson even conceded that, at times, the President could act pursuant to his Article II constitutional powers even contrary to an explicit act of Congress. Congress cannot pass a law that curtails powers the President has directly from the Constitution itself. The problem for Truman, according to Justice Jackson, was not that he exceeded statutory authority, but that his constitutional war powers did not, under the circumstances, permit him to trump the mechanisms of the relevant congressional statute. Congress had not authorized the war, and the nation's steel mills were too far removed from the "theater of war" to fall under the President's power as Commander-in-Chief.
A careful review of the Youngstown holding in general, and of Justice Jackson's concurring opinion in particular, yields several important distinctions that vindicate President Bush's latest actions in the war against terrorism. First, Congress has authorized the use of force in terms broad enough to permit the President's actions. The Supreme Court has already held in the Hamdi case that the statute was broad enough to give the President authority to detain U.S. citizens as enemy combatants; surely it is therefore broad enough to serve as authority for the much lesser intrusion on personal liberty at issue with a wiretap of international calls made to our enemies.
Second, as September 11 made very clear, the United States is a "theater of war." The agents of our stateless, terrorist enemies are here on U.S. soil, aiming to strike at our infrastructure, our citizens, and our very way of life at every possible opportunity. Even if the Use of Force Authorization was not sufficient to sustain the President's executive order, his own powers as Commander-in-Chief and as President, derived directly from the Constitution itself, permit this carefully circumscribed effort at thwarting the next devastating terrorist attack against our nation.
In other words, the President's legal advisors were correct in counseling that these actions were within his lawful constitutional authority, and the quick claims by the President's detractors of "illegality" have a stench of political opportunism or, worse, demagoguery about them that is not only inappropriate but dangerous in time of war. That this war has not produced the burdens on our civilian population as wars in times past--we know nothing of the sacrifices of rationing, of a large-scale draft, or of victory gardens and war bonds that were the hallmarks of the Second World War, for example--should not lead us to forget that we are in a war as dangerous to our survival as a free people as any we have faced.
After suspending the writ of habeas corpus during the Civil War, an action that was believed to be authorized only by act of Congress, President Abraham Lincoln asked whether all the laws but one were to go unexecuted lest that one be violated. The preservation of the Union required the action, even if Congress had not authorized it, and Lincoln was statesman enough to understand that his own powers as Commander-in-Chief could not be circumscribed by statute, even though those actions might be claimed to be "illegal." President Roosevelt understood this as well, and took actions that exceeded and were even contrary to existing statutes. Thank God he did, or we might not be living in a land as protective of our liberties as this is.
John C. Eastman teaches constitutional law at Chapman University School of Law and is the director of the Claremont Institute Center for Constitutional Jurisprudence. "First Principles" is a monthly column addressing current legal issues in light of our nation's founding principles.