1. Lecture 17 Separation of Powers
Part 3: Foreign Affairs:
Korea and the Middle East

2. This lecture We will cover The Korean War Mideast Policy Pages 310-329
The Steel Seizure Case
Mideast Policy
Pages

3. Youngstown Sheet & Tube Company v. Sawyer (1952)
Background
Post World War II saw a lot of strikes
In this case, the United Steelworkers and steel company owners were in a bitter labor dispute and threatened a strike
This was during the Korean War- steel was needed- a strike could hurt the war effort
President Truman ordered the Commerce Secretary to seize control of the steel mills
There was no statutory authority to seize the mills during a labor dispute
Taft-Hartley gave the President authority for an 80 day cooling off period
Truman hated Taft-Hartley
Congress did not come back and ratify this

4. Youngstown Sheet & Tube Company v. Sawyer- II
Question: Did the President have the authority to seize the steel mills?
Arguments
For the steel mill owners
The remedy for the President was the Taft-Hartley act, not this action
Other remedies were available
Seizing property is not within the President’s power
This is a legislative power not given to the President
Not authorized by Congress or the Constitution

5. Youngstown Sheet & Tube Company v. Sawyer- III
Arguments
For President Truman and the United States
In times of emergency, the President can use his powers in ways he sees fit to carry out his duties
“Take care that the laws be faithfully executed” in In re Neagle give the president these powers since he is acting in the national interest
Hirabayashi gives the President a “Wide scope for the exercise of judgment and discretion”
Taft-Hartley does not preclude other remedies available to the President to keep steel production up and running
Note that the war was still going on when this decision was handed down

6. Youngstown Sheet & Tube Company v. Sawyer- IV
All the justices were Democrat appointees
Youngstown Sheet & Tube Company v. Sawyer- IV
Justice Black writes for a 6-3 Court
All but two justices wrote opinions here
The President’s power must either conform to an act of Congress or the Constitution itself
Neither gives the President power to seize these steel mills
The President should have gotten Congressional approval
Then it would have been approved
His executive powers as Commander in Chief do not automatically give him this power
The President’s action was more legislative than executive
The President does not have these powers

7. Youngstown Sheet & Tube Company v. Sawyer- V
Jackson, J. concurring
He was FDR’s Attorney General and a judge at Nuremburg
He has the three categories of the President versus Congress
Powers maximum when he is acting pursuant to express or implied authority of Congress
When the President is acting either in absence of grant or denial of Congressional authority, he can only rely on his independent powers (silent)
When the President takes power incompatible with the expressed or implied will of Congress, his powers are at its lowest ebb
He can only act on his constitutional powers minus Congress’ constitutional powers
This falls in the third category
No act of Congress, and other statutes cover this situation
He rejects Truman’s arguments on inherent powers

8. Youngstown Sheet & Tube Company v. Sawyer- VI
Vinson, C.J. dissenting
Joined by Reed and Minton
They rely on the Defense Production Act
Provides for settlement of labor disputes related to war production
They note the importance of steel in war production
They bring up that the draft is unpleasant as well
They rely on “take care that the laws are faithfully executed”
Acting in the interest of the country

9. Dames & Moore v. Regan (1981) Dames & Moore v. Regan (1981)
During the Iran hostage crisis, President Carter ordered Iranian assets seized
Dames & Moore filed a lawsuit against Iran for failure to pay for services rendered
To settle the hostage crisis, the U.S. agreed to terminate all lawsuits involving Iranian assets
A claims tribunal was set up to handle claims
After the claims were settled, the money went back to Iran
President Carter and President Reagan did so by executive order
Dames & Moore did not get there money
Question: Did the President have the authority to do these actions by executive order?

10. Dames & Moore v. Regan- II
Arguments
For Dames & Moore
Presidential action here was unprecedented
The President has no inherent authority, or constitutional or statutory
Another act did not give the President this authority
For Treasury Secretary Don Regan
The President’s actions were consistent with the IEEPA
The President has long had the authority to settle these types of claims

11. Dames & Moore v. Regan- III
Chief Justice Rehnquist writes for an 8-1 Court
This case was written in eight days
He finds the President was given specific authorization to do so under the IEEPA
The IEEPA implicitly approved
Or Congress never disapproved
Rehnquist borrows extensively from Jackson’s opinion
This case was decided narrowly and is limited to the facts in this case
The President has primary authority over foreign policy

12. Zivotofsky v. Kerry (2015) Zivotofsky v. Kerry (2015)
This case makes a return appearance to the Court
The Court there ruled that this was not a political question and courts could rule
Background
In 1948, President Truman recognized the State of Israel
But the question of their sovereignty over Jerusalem was not recognized
So if someone is born there, a passport will record the place of birth as Jerusalem
Congress passed a law in 2002 to say that a passport should say Israel as place of birth
Bush issued a signing statement saying that it would be unconstitutional if mandatory
Zivotofsky was born in Jerusalem and his parents wanted the passport to say Israel as his place of birth, not Jerusalem

13. Zivotofsky v. Kerry- II
Question: Does a statute requiring the Secretary of State to use Israel instead of Palestine infringe on the President’s foreign policy powers?
Exclusive power of the President?
Can Congress command the President to do otherwise
Arguments
For Zivotofsky
This would fall into Jackson’s third category
Congress can legislate in foreign affairs- immigration (Article 1, Section ?)
There is no recognition clause in the Constitution- it is more ceremonial
For Secretary of State John F. Kerry
The President has exclusive authority to recognize foreign nations and their boundaries
Congress has not role here under the Constitution
This law encroaches on that power

14. Zivotofsky v. Kerry- III
Justice Kennedy writes for a 6-3 (or 5-4 ish) Court
To succeed in Jackson’s third category
The President’s power must be exclusive and conclusive
Article II, Section 3 gives the President the power to receive ambassadors
Is this merely ceremonial or of consequence?
Hamilton said ceremonial in Federalist #69
However, scholars have seen this in terms of recognizing the sovereignty of a nation
Hamilton changes his mind- French Revolution
The constitution gives Congress no role in recognition powers
The nation must speak with one voice
The President holds the exclusive recognition power

15. Zivotofsky v. Kerry- IV More from Kennedy
Congress has its foreign policy powers listed in Article 1, Section 8
Also by requiring confirmation of ambassadors
However, this is not an “unbound power”
Curtiss-Wright does not go as far as Kerry says it does
Historical examples
France after French Revolution
Which China?
If Congress could override the President, it would effectively have the recognition power- one voice
The law was meant to change policy on Israel as to its capital
Congress is not allowed to do this

16. Zivotofsky v. Kerry- V
Breyer concurs, but still says this was a political question
Thus not appropriate for the Court to resolve
Thomas concurs and dissents
The President cannot be forced on the passport issue
But can on the consular papers issue because Congress has that enumerated power under Article 1, Section 8, Clause 4 do with naturalization
The issue of a passport deals with foreign affairs, while the consular documents deal with immigration and naturalization

17. Zivotofsky v. Kerry- VI
Chief Justice Roberts and Justice Alito dissent
He is not pleased with this ruling
He says it is the first time the Court has accepted a direct defiance of an act of Congress
Curtiss-Wright did not contravene a statute, but gave broad delegation authority
Slippery slope argument about letting a President defy an act of Congress

18. Zivotofsky v. Kerry- VII
Scalia dissents, joined by Roberts and Alito
Congress has this power based on the naturalization clause
He says this has nothing to do with the recognition clause
It only deals with naturalization
Putting Israel on a passport does not equal recognition of Jerusalem as part of Israel
What was the intent of Congress with this law?
The law also was following on a law that was to move the U.S. Embassy to Jerusalem

19. Next lecture We will finish up Chapter 5 Pages 329-340
Covers the War on Terror cases