"We Say It's Expediency"

Above & beyond the haggling over wages and prices, Harry Truman's seizure of the U.S. steel industry has raised a great constitutional question: What are the limits of presidential power? In peace and war, U.S. Presidents have often demonstrated that the authority of their office can be stretched far beyond the specific provisions of the Constitution. But it remained for the Truman Administration, speaking last week through its counsel in a federal courtroom, to argue that the presidential power is practically unlimited.

No Check or Balance? This historic contention, which seems headed for a historic decision in the Supreme Court, was made in Washington district court before Federal Judge David A. Pine, a small, stoop-shouldered veteran of the bench. Now 60, Judge Pine once clerked for Wilson's Attorney General James McReynolds, who later became one of the crustiest conservative Justices of the Supreme Court and a target of Franklin Roosevelt's famed failure, the court-packing plan. A lifelong Democrat, elevated to the district court by Roosevelt in 1940, Pine is known for his independent thinking, dry humor, incisive judgments on the law. These qualities were evident last week as he heard steel company and Government lawyers debate two injunctions requested by the steelmen: 1) ordering the President to return their properties on the ground that they were illegally seized, and 2) forbidding any Government-imposed wage increases.

The steel lawyers based their case on the charges that the President had acted without authority of law or Constitution, and that they had been deprived of their property without due process of law. The Government's reply: acting through his inherent powers, the President can take any action necessary to meet a national emergency.

The President may not be enjoined, argued Assistant Attorney General Holmes Baldridge. There is no precedent for it and, in fact, the Constitution "prohibits the courts from encroaching on executive authority." In the steel seizure, "the President is an indispensable party . . . Whether [or not] he acts through an alter ego [i.e., Commerce Secretary Charles Sawyer, federal boss of the steel mills], the courts will not interfere."

One to Think Over. Obviously surprised by such a sweeping assertion of presidential powers, Judge Pine prodded Attorney Baldridge into some awkward corners:

Judge Pine: Do you contend that the Executive has unlimited power in an emergency?

Baldridge: If you carry it to its logical conclusion, that's what it is. But there are two limitations--one is the ballot box; the other is impeachment.

Pine: Is it your concept of Government . . . that the Constitution limits Congress, and it limits the Judiciary but does not limit the Executive?

Baldridge: That's the way we read the Constitution.

Pine: Do you mean that if the President empowered Mr. Sawyer to take you into custody and execute you, you'd have no power to enjoin him?

Baldridge: I'll have to think that one over.

Pine: We've had crises before in this country, and we've had Government machinery adequate to cope with them . . . You are arguing for expediency . . .

Baldridge: You might call it that if you like. We say it's expediency backed by power.

That was plainly the key to the Government's whole case. Coupled with the Government's broad reading of the Constitution, it was, said Judge Pine, an interpretation that "I have never heard expressed in any authoritative case before." Then, after two days of hearings, Judge Pine promised a prompt decision that would undoubtedly be appealed to the higher courts.

The court's apparent skepticism and Congress' sharpening disapproval may have given pause to the Government bosses of the steel mills. At any rate, Commerce Secretary Sawyer held up a wage raise for the steelworkers. And Price Stabilizer Ellis Arnall announced that steel is entitled to a price rise of $3 a ton--a coating of sugar for the wage pill that the Government had promised to force on the companies.

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