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Observing the continuing tragedy on America's Gulf Coast as reported day by day prompts me to think of the bold and decisive act by President Harry Truman in a case with which legal scholars are highly familiar.
The 1952 case of Youngstown Sheet & Tube Company vs. Sawyer was the outgrowth of a strike launched by steel workers during the Korean War.
Truman seized control of the steel mills, using a "theater of war" argument linked to his executive power as the nation's commander in chief during an emergency, in this case the Korean War.
The seizure resulted in steel company lawyers making a late night visit to a D.C. federal district court judge. This prompted a series of quick actions resulting with the U.S. Supreme Court deciding the case.
While the verdict went against Truman by a 6-3 margin, with Chief Justice Fred Vinson being one of the dissenters, the case cut so close to the heart of vital constitutional issues relating to presidential power that Justice Hugo Black's majority opinion was qualified by concurring opinions on the part of the five other justices, making it difficult to determine the details and limits of presidential power to seize private property in emergencies.
This decision stuck so hard in Truman's craw that he wrote about the case prominently in his memoirs. He was adamant in believing that he was within his rights as president to seize the steel mills, asserting that had there been a strong advocate on the court such as an Oliver Wendell Holmes or Benjamin Cardozo that the result would have been different.
That famous case came to mind as I watched regular nightly on the scene reports from CNN's Anderson Cooper in which the pain was glued to the faces of those suffering from the calamity that has been wrongly labeled a "spill" as in "crying over spilled milk" when even such strong words as national tragedy or calamity seem clearly inadequate.
The extent of the calamity became particularly evident in BP CEO Tony Hayward's testimony before Congress. As one television analyst who is also a lawyer put it, the impression from his non-responsive answers to repeated questions was that he had been "lawyered up," meaning rehearsed not to answer for fear of subsequent liability difficulties.
The incident did not bother Hayward to the point where he could not go out and participate in a yacht race. Don't chief executive officers deserve to have a good time?
From the outset of this tragedy British Petroleum has had one major interest, and that is protecting the oil conglomerate. When cleanup crews on Gulf beaches went to work what was BP's response? There was major concern over crew members wearing protective outfits.
BP was concerned by the legal picture and did not want to be associated in the public mind with the kind of dangers that prompted wearing such outfits.
Even when BP officials have attempted to appear caring and compassionate they have fallen all over themselves. For instance, there was the recent comment from a BP official that the super wealthy corporation cares about the "small people."
When it became apparent that BP was not doing an adequate job and that the tragedy was increasing by the day executive action was justified. How would you define what happened other than as a national emergency?
If executive action is not justified by a national emergency then when is it justifiable?
President Obama's recent speech to the nation about the Gulf oil tragedy was symptomatic of his problem. He is known for his collegiality, a major factor in him being chosen as president of the Harvard Law Review.
In his speech Obama kept referring to the many honors and distinctions held by those who were investigating the tragedy. Are the folks on the Gulf concerned about the backgrounds of people on Obama's watch?
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