A Brief Look at Youngstown Sheet & Tube Co. v. Sawyer - The Wall But of Course

In April of 1952, President Trump was nearing his 6th birthday and the Korean “police” action - it was never a formally declared war on America’s part - was raging, having started in June of 1950 with North Korea’s invasion of South Korea. President Truman had been anxious to have America step into the breach and defend the embattled South. Truman was perhaps stung by Senator McCarthy’s denouncing that communist sympathizers worked for his administration. He had reportedly seen the Korean War as an opportunity to push his weight around and get things done and prove his credentials as a true fighter against communism.

Although I doubt Truman really had anything he needed to prove. He was on stage with Churchill when the iron curtain speech was given in Missouri in the late 40's, gazing in undisguised admiration at the great statesman's words of warning.

By the time April of 52 had rolled around, steel workers were chafing at wage levels and the fact that Truman was bringing back wage and price controls and reviving FDR's WW II policies which they felt had been too hard on labor. So, a strike was called and President Truman - who had also created the Economic Stabilization Agency to deal with wartime shortages that briefly sprung up in 1950 - quickly nationalized the steel industry.

Steel companies sued the administration, (within 30 minutes of President Truman's speech announcing the nationalization - and we think we're so wired today!), and the case ended up in the Supreme Court.

Youngstown Sheet & Tube Co. v. Sawyer was not a victory for Harry Truman.

Justice Black gave the majority opinion that flatly stated that the president could only act in cases authorized by the Constitution or by an act of Congress.

But it's Justice Robert Jackson's opinion in the case (which apparently is dense with the various and diverging opinions of 5 Justices) which has been referred to the most by subsequent governments. Jackson posited a descending scale of authority for emergency acts of the president as follows:

  • When the President acts with the express or implied consent of Congress is foremost.
  • Next is when Congress has been silent on the matter ('zone of twilight').
  • Finally, last in terms of authority is when the president defies Congressional orders.

Where would Trump's declaration of an emergency on immigration fit in Jackson's scale of executive authority? We're about to find out.

The battle lines amongst conservative columnists and experts have already been drawn, with the National Review's David French, while agreeing on the necessity of more border wall construction, saying President Trump does not the authority to build the wall without an act or authorization of Congress. On the other side are those like Senator Graham who declared it was time for Trump to use emergency powers and fund the wall without Congress due to the opposition's intransigence.

Which brings us to 1976's National Emergencies Act, signed into law by President Ford. The Act was actually meant to provide a check on the president's power to declare emergencies. As legal expert Patrick Thronson states:

each emergency activates powers in over 160 provisions of statutory law, dozens of presidential orders, and numerous other federal regulations.

Has the National Emergencies Act worked? Not so much. There are emergencies still on the books that were declared in the late 70's (against Iran who had just toppled the Shah and declared holy war on America, for example). So, declaring an emergency is a very powerful tool for any president and it allows them to act quickly and decisively. And thus, for those who support using emergency powers to get the wall funded, the question becomes does President Trump have the power to fund a wall without Congress if he declares a national emergency?

Congress - especially this 116th Congress but the previous one as well, meaning of course the Senate - has views on immigration that diverge greatly from those of Trump's administration. Right now, the gridlock in Washington is a reflection of that divergence. Yes, it's theatre by stubborn, vote-seeking septuagenarians. But there's real and deep policy differences here as well. A gridlock is in a sense forcing this debate to come to some sort of a resolution.

I said resolution. Not agreement in the sense that everyone feels at least somewhat included in the solution. That no longer seems possible.

As if being a symbol about immigration in 21st century America wasn't enough of a rhetorical load to bear, the W-thing is also about Executive Power and Congress' retreat from its Constitutional duties. I have to say I'm more on David French's side on this than on Senator Graham's, even as I see a border wall/barrier/whatever-the-hell-you-want-to-call-it as a logical, reasonable, and functional tool to help the overworked men and women on the Border Patrol and all the rest who labor to ensure America has rules that provide its immigration policy is followed.

The problem is that America is divided on what the nation's immigration policy should be. But not so nearly divided as the chasm between radical activists and those who would assert a Truman-like power to act unilaterally to solve what is indeed a real crisis.

This is headed for the Supreme Court.


Posted by Keeley at January 11, 2019 11:37 AM
Comments
Comment #436629
Keeley wrote: This is headed for the Supreme Court.
Perhaps that is what is needed.

Perhaps that will happen, because many Democrats and similar ilk on the left, choose to despicably pit U.S. citizens and illegal immigrants against each other for votes, money, and power, as proven by these 12 things that the Democrats do.

How can 2,000 homicides per year by criminal non-citizens, over 42 deaths per day due to drug-overdoses, and hundreds of thousands of other crimes by criminal non-citizens NOT be an emergency?

GAO-Report-11-187 (www.gao.gov/assets/320/316959.pdf) states that there were 25,064 homicides by a study population of 249,000 convicted criminal non-citizens incarcerated in U.S. prisons and jails in only 5 states (AZ,CA,FL,NY,TX) between 2003 and 2009 (7 years), and the homicides occurred between AUG-1955 and APR-2010 (54.7 years).
However, GAO-Report-11-187 states that 90% of all arrests occurred after 1990 and before 2010 (after the shamnesty of 1986; i.e. 1990-to-2009 = 20 years; see chart below). The study population of 249,000 criminal non-citizens was only a portion of all criminal non-citizens in U.S. jails and prisons in only 5 states. I.C.E. estimates the total number of incarcerated non-citizens in the U.S. was about 1.9 million in 2016. There were 1.7 Million arrest reocords, and nearly 3 Million offenses for the study population of 249,000 criminal non-citizens, and the study only examined criminal convictions of criminal non-citizens occurring in 7 years from 2003-to-2009. Each criminal non-citizen had (on average) 7 arrests each, and each averaged 12 offenses each.

However, 90% of the crimes occurred after 1990 and before 2011, and the levels of illegal immigration increased significantly (increaesed by 180%) see graph below) from 3.4 Million in 1990 to 10.5 Million in 2005, and remained above 10.5 Million from 2005 to 2018. There are about 1.80 times more illegal immigrants in the U.S. in the 14 years from 2005-to-2018, than the previous 15 years from 1990-to-2004.

Therefore, based on the total of 17,250 homicides in 2016, assuming at least the same number of 25,064 homicides in the 14 years from 2005 to 2018 (for the study group of 249,000 criminal non-citizens) as there was for the 20 years from 1990 to 2009, and still assuming 90% of those 25,064 homicides occurred in the 14 years between 2005 an 2018, then (90% of 25,064 = 22,557 homicides) / 14) = 1,611 homicides per year (4.41 homicides per day) by criminmal non-citizens. 1,611 homicides / 25.3 Million non-citizens = 0.0000743 homicides per non-citizen per year. The overalll homicide rate in 2016 is (17,250 homicides / 323.4 Million) = 0.0000533 homicides per year.
Therefore, 0.0000637 / 0000533 = 1.20 (i.e. the homicide rate is 20% hgiher by criminal non-citizens, than by U.S. citizens).

That is a conservative estimate, because:

  • (a) that is for only 5 states (AZ,CA,FL,NY,TX);
  • (b)the same number of homicides from 1990-to-2010 was also assumed for 2005-to-2016, despite the population of illegal immigrants was 1.8 times greater from 2005-to-2018 than 1990-to-2005;
  • (c)the study group only represented 249,000 of all criminal non-citizens incarcerated in U.S. jails and prisons.
  • (d)the number of illegal immigrants in the U.S. is actually closer to 12 million in 2017 and 2018, and the number of illegal immigrants in the U.S. since 2005 has remained above 10.5 Million.
  • (e) the study only examined criminal convictions of criminal non-citizens for criminal non-citizens incarcerated in U.S. prisons and jails in the 7 years from 2003-to-2009.

However, consider the following numbers of criminal non-citizens incarcerated for homicide in 5 states (sources: www.nationalreview.com/corner/crime-illegal-immigration/ , www.gao.gov/assets/320/316959.pdf ):
In Arizona in year 2009, there were 240 criminal non-citizens incarcerated for homicide.
In California in year 2009, there were 2,430 criminal non-citizens incarcerated for homicide.
In Florida in year 2009, there were 480 criminal non-citizens incarcerated for homicide.
In New York at the end of year 2009, there were 1,350 criminal non-citizens incarcerated for homicide.
In Texas in year 2009, there were 900 criminal non-citizens incarcerated for homicide.
Therefore, there was a total of 5,400 criminal non-citizens incarcerated for homicide in year 2009 in 5 states (AZ,CA,FL,NY,TX).
Assuming each criminal non-citizen commited only one homicide, that represents 5,400 people killed by criminal non-citizens.
But that does yet not tells what the homicide rate for criminal non-citizens.
Therefore, consider the following for each of 5 states (AZ,CA,FL,NY,TX):

    ARIZONA: In Arizona in year 2009, there were 240 criminal non-citizens incarcerated for homicide.
  • In Arizona, in year 2009, there were 3,484 criminals incarcerated for homicide.
  • In Arizona, in year 2009, there are (based on Pew Research Center) 350,000 illegal immigrants in Arizona.
  • In Arizona, in year 2009, the state population is 6.3 Million.
  • Therefore, the homicide rate of illegal immigrants in Arizona in year 2009 is = (240 / 350,000) = 0.000686 .
  • And the homicide rate of U.S. citizens in Arizona in year 2009 is = (3,484 - 240) / (6.3 Million - 350,000) = 0.000545 .
  • Therefore, the homicide rate of criminal non-citizens in Arizona in year 2009 is (0.000686 / 0.000545) = 1.26 which is 26% higher than the homicide rate by U.S. citizens.

    CALIFORNIA: In California in year 2009, there were 2,430 criminal non-citizens incarcerated for homicide.
  • In California, in year 2009, there were 28,030 criminals incarcerated for homicide.
  • In California, in year 2009, there are (based on Pew Research Center) 2.5 Million illegal immigrants in California.
  • In California, in year 2009, the state population is 37 Million.
  • Therefore, the homicide rate of illegal immigrants in California in year 2009 is = (2,430 / 2.5 Million) = 0.000972 .
  • And the homicide rate of U.S. citizens in California in year 2009 is = (28,030 - 2,430) / (37 Million - 2.5 Million) = 0.000742 .
  • Therefore, the homicide rate of criminal non-citizens in California in year 2009 is (0.000972 / 0.000742) = 1.31 which is 31% higher than the rate of homicide by U.S. citizens.
    FLORIDA: In Florida in year 2009, there were 480 criminal non-citizens incarcerated for homicide.
  • In Florida, in year 2009, there were 12,684 criminals incarcerated for homicide.
  • In Florida, in year 2009, there are (based on Pew Research Center) 875,000 illegal immigrants in Florida.
  • In Florida, in year 2009, the state population is 18.8 Million.
  • Therefore, the homicide rate of illegal immigrants in Florida in year 2009 is = (480 / 875,000) = 0.000549 .
  • And the homicide rate of U.S. citizens in Florida in year 2009 is = (12,684 - 480) / (18.8 Million - 875,000) = 0.000681 ) .
  • Therefore, the homicide rate of criminal non-citizens in Florida in year 2009 is (0.000549 / 0.000681) = 0.81 which is 19% lower than the rate of homicide by U.S. citizens.
    NEW YORK: In New York in year 2009, there were 1,350 criminal non-citizens incarcerated for homicide.
  • In New York, in year 2009, there were 10,254 criminals incarcerated for homicide.
  • In New York, in year 2009, there are (based on Pew Research Center) 800,000 illegal immigrants in New York.
  • In New York, in year 2009, the state population is 19.3 Million.
  • Therefore, the homicide rate of illegal immigrants in New York in year 2009 is = (1,350 / 800,000 ) = 0.0016875 .
  • And the homicide rate of U.S. citizens in New York in year 2009 is = (10,254 - 1,350) / (19.3 Million - 800,000) = 0.000481 .
  • Therefore, the homicide rate of criminal non-citizens in New York in year 2009 is (0.0016875 / 0.000481) = 3.51 which is 351% higher than the rate of homicide by U.S. citizens.
    TEXAS: In Texas in year 2009, there were 900 criminal non-citizens incarcerated for homicide.
  • In Texas, in year 2009, there were 16,178 criminals incarcerated for homicide.
  • In Texas, in year 2009, there are (based on Pew Research Center) 1.65 Million illegal immigrants in Texas.
  • In Texas, in year 2009, the state population is 25 Million.
  • Therefore, the homicide rate of illegal immigrants in Texas in year 2009 is = (900 / 1.65 Million) = 0.0005455 .
  • And the homicide rate of U.S. citizens in Texas in year 2009 is = (16,178 - 900) / (25 Million - 1.65 Million) = 0.000654 .
  • Therefore, the homicide rate of criminal non-citizens in Texas in year 2009 is (0.0005455 / 0.000654) = 0.83 which is 17% less than the rate of homicide by U.S. citizens.

For those five states above, the overall homicide rate by criminal non-citizens (currently incarcerated in U.S. jails and prisons) is significantly higher than the homicide rate of U.S. citizens (especially in New York and California).

There are other studies and many Democrats that suggest illegal immigrants have a lower crime rate than U.S. citizens, but they are not supported by the GAO-Report-11-187 (created in 2011).
That may have been true at one time, but not today.
Therefore, claims that illegal immigrants have a lower crime rate than U.S. citizens appears is FALSE (based on homicides).
Crime rates for some other crime categories are far, far worse for criminal non-citizens (i.e. drugs, illegal immigrant violations, human trafficking, etc.) than the crime rates of U.S. citizens.

Claims by Democrats that there are no significant net monetary losses due to illegal immigrants is also false (estimated net losses are $296 Billion (source: www.washingtontimes.com/news/2016/sep/21/mass-immigration-costs-govt-296-billion-year-natio/ ); $2,249 per household. And those costs do not include all costs (i.e. due to crime; job displacement; illegal voting, etc.).

ILLEGAL IMMIGRANTS in the U.S. from 1945 to 2016:


  • YEAR: 0=====1M===2M===3M===4M===5M===6M===7M===8M===9M===10M===11M===12Million
  • 2018: ########################################################### 11.3M
  • 2017: ########################################################### 11.3M
  • 2016: ########################################################### 11.3M
  • 2015: ######################################################## 11.0M
  • 2014: ########################################################### 11.3M
  • 2013: ########################################################### 11.3M
  • 2012: ###########################################################] 11.4M
  • 2011: ############################################################ 11.5M
  • 2010: ############################################################] 11.6M
  • 2009: ####################################################### 10.8M (recession)
  • 2008: ############################################################] 11.6M
  • 2007: ############################################################# 11.8M
  • 2006: ############################################################ 11.5M
  • 2005: ###################################################### 10.5M
  • 2004: ################################################# 9.3M
  • 2003: ################################################### 9.7M
  • 2002: ################################################## 9.4M
  • 2001: ####################################### 7.8M
  • 2000: ########################################### 8.5M
  • 1999: ##################################### ~7.0M
  • 1998: ################################ ~6.0M
  • 1997: ############################# ~5.5M
  • 1996: ######################### ~5.0M
  • 1995: ####################### ~4.2M
  • 1994: ##################### ~3.9M
  • 1993: ################### ~3.5M
  • 1992: ################# 3.4M
  • 1991: ############### ~2.6M
  • 1990: ############## ~2.1M
  • 1989: #############
  • 1988: ############
  • 1987: ############
  • 1986: ########### 2.1M (1986 Amnesty)
  • 1985: ###########
  • 1984: ########### 2.1M
  • 1983: ###########
  • 1982: ############
  • 1981: #############
  • 1980: ############## 3.0M
  • 1979: #############
  • 1978: ############
  • 1977: ##########
  • 1976: ########
  • 1975: #######
  • 1974: ##### 1.1M
  • 1973: ####
  • 1972: ####
  • 1971: ###
  • 1970: ###
  • 1969: ### 0.54M

A Harvard-Harris Poll (17-to-19-JAN-2018; 980 persons polled (source: www.washingtontimes.com/news/2018/jan/23/roughly-80-of-all-voters-say-us-needs-secure-borde/ ):
  • 79%: (87%Rep, 79%Ind, 72%Dem): Want Merit Based Immigration
  • 79%: (93%Rep, 80%Ind, 68%Dem): Want Secure Borders
  • 61%: (84%Rep, 64%Ind, 40%Dem): Say Current Border is Inadequate
  • 68%: (78%Rep, 65%Ind, 62%Dem): Want to End the VISA Lottery
  • 54%: (85%Rep, 54%Ind, 30%Dem): Want physical and electronic border barrier
  • 60%: (93%Rep, 80%Ind, 68%Dem): Say NO to DACA Relatives
QUESTION: What is the real issue? What is the common-thread in all that the Democrats do? Why do Democrats do despicably pit U.S. citizens and illegal immigrants against each other ?
ANSWER: for the votes, money, and power. It’s not easy to get much lower that that.

Posted by: d.a.n at January 11, 2019 12:54 PM
Comment #436630

Gawd, another thread ruined by a Neo-Nazi post.

Posted by: phx8 at January 11, 2019 2:17 PM
Comment #436631

Gawd, another ridiculous example of shouting ‘nazi’ at everybody and everything that does not conform to your own narrow views.

D*mn those nazi’s at the Government Accountability Office and Harvard!

Posted by: kctim at January 11, 2019 3:28 PM
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