Youngstown revisited: external threat no excuse for internal power grab

Michael J. Kelly [Creighton University School of Law]: "President Truman used American involvement in the Korean War as justification for seizing privately owned U.S. steel mills when a labor strike threatened to cripple that industry and bring production to a halt - thereby threatening the country's continued ability to wage war. In short, the president used an external threat as an excuse for an internal power grab. The Supreme Court stopped him in his tracks. The Youngstown case still stands today for the proposition that the president cannot increase his power at home by fighting abroad.

But President Bush is trying to do just that. By using the external threat of more attacks from foreign terrorists, he believes that he has found an excuse to support his illegal, unwarranted domestic surveillance program. In Youngstown, the Court found that Congress' consideration of a strike-busting mechanism during the Taft-Hartley debates, and their subsequent rejection of this method, prohibited the president from seizing the mills - as this was a taking of property, which only Congress could do. In the domestic surveillance case, Congress likewise considered a method for undertaking spying activity (amounting to search and seizure); but here they actually adopted legislation - the Foreign Intelligence Surveillance Act, which embodied the method in a statutory framework.

Obviously, the teaching of Youngstown is lost on President Bush, or, more likely, he is betting that a new Supreme Court would not dare limit this latest expansion of his power. Perhaps he is right, now that Roberts and Alito have joined the Court. We know how the Youngstown Court would have ruled, but we're not sure yet about this one."

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