Yesterday, an old Supreme Court ruling that William O. Douglas was part of came back into the spotlight when Donald Trump declared a national emergency to build a wall on the southern border of the United States.
A president declaring a national emergency is far from unprecedented. It has “happened 60 times since the power was codified in 1976… most have been uncontroversial,” according an article written yesterday by Scott Horsley of NPR.
But, as detailed by Horsley, the circumstances around this declaration are different. Many politicians (and citizens) are unhappy, to say the least. Maybe they’re justified. The matter of the border wall emergency is likely to be decided in the courts.
Which brings us to Douglas: as outlined in The Daily Beast and The Washington Post, the 1952 Supreme Court case Youngstown Sheet & Tube Co. v. Sawyer will likely play a key role in the arguments when that happens.
For a full synopsis of the case, go here. Essentially, steel workers were planning a strike during the Korean War. President Truman attempted to seize the steel mills and force them to continue production, citing steel as indispensable to the war effort, and claiming a work stoppage would “immediately jeopardize and imperil our national defense.”
With Douglas in the majority 6-3 opinion, the Supreme Court ruled against Truman. Justice Hugo Black, writing for the majority, stated, “[t]he President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.”
Erwin Chemerinsky, the Dean of Berkeley Law School, writes that the courts “should quickly and emphatically hold that President Trump’s attempt to fund the border wall by declaring a national emergency is illegal and unconstitutional.” In Youngstown, he says, “The Court stressed that Truman’s actions violated the separation of powers and usurped the powers of Congress. Likewise, President Trump’s attempt to spend money for building a wall without congressional appropriation of funds for this purpose directly violates the Constitution.”
Additionally, Youngstown addressed the issue of property being taken, also relevant for Trump’s wall. Three Texas landowners have already filed a lawsuit after being told the wall would be built on their land. Justice Black wrote in Youngstown, “There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress… from which such a power can be fairly implied.”
Truman wasn’t happy about losing. In a 1972 interview with Eric Sevareid (below), Douglas recounts how afterwards the justices “all went and poured a lot of Bourbon down Harry Truman,” to try and cheer him up.
Times were a little different back then. It seems unlikely anyone will throw Trump a party if his border wall gets shot down in court.