An Extraordinary Case

Sharply at noon one day last week, a crier in a cutaway coat cracked his gavel in the crowded marble chambers of the U.S. Supreme Court. The electric buzzing of voices gave way to a soft shuffling, as lawyers and spectators got to their feet. Out from a break in a heavy red velour curtain came black-robed Chief Justice Fred Vinson, followed by the eight associate Justices. After each had settled into a high-back leather chair, Vinson hunched forward and read from the court calendar: "No. 744, Youngstown Sheet and Tube Company, et al., versus Charles Sawyer. No. 745, Charles Sawyer versus the Youngstown Sheet and Tube Company, et al."

It was a tense moment in the history of man's attempt to govern himself under law. Technically, the court was about to hear argument on the injunction granted in Federal Judge Daniel Pine's court to the steel industry (TIME, May 12), restraining Secretary of Commerce Charles Sawyer from seizing the mills; the injunction had been stayed by the Appeals Court pending the Supreme Court decision. Actually, the nine Justices were there to decide whether the President of the U.S. had violated the fundamental law of the land.

The Greatest Spot. The case against the President lay in the hands of the chief counsel of the United States Steel Corp. He was John William Davis, at 79 a man of square-shouldered dignity, whose full, pink face was set off by heavy white eyebrows and silky white hair.

As a young man, he had twice been elected to Congress from West Virginia. From 1913 to 1918 he was Woodrow Wilson's solicitor general, went to London (1918-21) as U.S. ambassador, came home to be nominated (after 103 ballots) as the Democratic candidate for President, and was roundly beaten by Cal Coolidge. Senior partner of a first-line Manhattan law firm, he had argued 136 cases before the Supreme Court. He looked thoroughly at home in his black sack coat and striped trousers, as he sat calmly in the lawyers' sector waiting for the proceedings to begin.

Across the aisle from Davis sat Harry Truman's ablest defender, U.S. Solicitor General (and Acting Attorney General) Philip Benjamin Perlman. In appearance, Perlman, 62, was rough where Davis was smooth. His swallow-tailed coat was ill-fitting, and he wore it awkwardly; his heavy features and unruly hair marked him as one of the homeliest men in Washington. But Phil Perlman is a thoroughgoing lawyer. He began studying law while he was a newspaper reporter in Baltimore, was appointed assistant attorney general and secretary of state of Maryland while in his late 203. Maryland's ex-Senator Millard Tydings helped him get the job of U.S. solicitor general in 1947. ("The greatest spot in the world for a lawyer," he says. "An opportunity to represent the greatest government in the world before the greatest court in the world.") Since then he has argued more cases than any other solicitor general in history; out of a total of 61, he has lost only ten.

Bind the Man Down. At a nod from Vinson, John Davis strode forward to build his case against Harry Truman. Had the President seized the steel plants under authority of any statute? He had not. He had, in fact, declined to use the Taft-Hartley Act, Congress's remedy for heading off important labor-management disputes. "Having that weapon at hand, any effort on his part to forge a new and different weapon only aggravates the claim of usurpation which we are compelled to make. There was no statutory framework for this seizure. What then?

"What then?" he repeated rhetorically. "There can be only one other source of power under which seizure can be deduced --the Constitution." Like a preacher reciting Holy Writ, Davis listed the presidential powers granted in Article II of the Constitution. When he came to the passage charging the President with faithful execution of the laws, he looked up sharply. "What must he take care that he execute faithfully? The laws. He cannot himself proclaim the law and then execute it. The masters of the law are the members of Congress."

Toward the end of his case, Counselor Davis paused, set his gaze on the high, coffered ceiling, and softly quoted the words that Jefferson wrote in the Kentucky Resolutions, which in a sentence sums up the theory that public officials are servants of the law: "In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."

Power & Circumstance. Davis walked back to his seat and mopped his lips with a white linen handkerchief as Phil Perlman lumbered up to the lectern. Perlman plunged directly into his principal defense: the President seized Big Steel because the safety of the U.S. demanded that the plants be kept open. Truman was not usurping powers of Congress; he had invited Congress to pass a law covering the situation the day after the seizure. "The President said he would abide by whatever Congress did," said Perlman. "He made that crystal-clear." Birdlike little Justice Frankfurter squeaked in agitation. "Are you suggesting that because Congress did not act that that confirmed the President's action?" he asked. You could infer, said Perlman weakly, that Congress was content to let the President's action stand.

"Did the President depend on any specific power?" asked slow-moving Justice Black. "We rely first on the Constitution," said Perlman.

"You're not relying on the war powers?" pressed Douglas. "No, sir," replied Perlman, "we think the power is in the Constitution . . . We say that the sources of power must be considered in the light of the circumstances."

Frankfurter was almost airborne with agitation. Shaking his finger at Perlman, he piped: "Sources don't derive from circumstances !"

The End of It. When Perlman tried to show that Franklin Roosevelt seized the plants of the strikebound North American Aviation Corp. in 1941 on precisely the same grounds, he was brought up short by Justice Jackson, who was Roosevelt's Attorney General at the time. North American had direct Government contracts and a lot of Government-owned material and machinery, said Jackson, and anyway, the owners "all but acquiesced in the seizure." None of this applied in steel. Replied Perlman with a twinkle: "We think what Your Honor said [in that case] is fully applicable here." Cracked Frankfurter: "He wasn't His Honor when he said it."

Pressed on the constitutional issue, Perlman doubled back on his earlier answer about war powers and shouted: "This is an extraordinary case--an extraordinary case calling for all the authority of Government to avert a national catastrophe.' We are at war. This is wartime." Jackson's eyebrows went up. Hasn't the President "expressly disclaimed" that this is war, and called Korea "a police action"? Perlman, trapped in another one of Harry

Truman's conveniences of the moment, struggled gamely: "You can say without contradiction by anybody that we are in a war condition."

It was Jackson who most clearly voiced the question that has nagged at the U.S. ever since Harry Truman's impulsive seizure of April 8: "The trouble is, where do you put the limitation? I don't see where any commodity, not just steel, couldn't be affected. I just don't know where the end of it is." Perlman's reply was softly serious, and in the letter and spirit of a government of law. "The end of it," he said, "is always in this court."

Strange Friends. The sharp questioning of the solicitor general did not necessarily mean that the court had made up its mind against Harry Truman. There is a possibility that the court can duck the whole constitutional issue and rule that the steel companies ought not to get their injunction unless they can first prove "irreparable" damages. But Washington's hunch last week was that the court was not likely to miss the chance to hammer out one of the most important constitutional decisions in U.S. history. Said Justice Jackson wryly, as the court rose to retreat behind its dark red curtain: "Arguments just begin when counsel are through."

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