Concept
Youngstown and Presidential Limits
As commander in chief
Youngstown and Presidential Limits
The sections above asked what a President may do with troops, and most of the answers concerned force used abroad. The Commander in Chief Clause does not stay abroad, though. Presidents have invoked the same title to justify action on American soil, and there the claim meets the fullest part of Congress's lawmaking power, because the legislature makes the rules that govern property, labor, and commerce at home. The question here is how far the title reaches into domestic life when a President acts in a field that Congress could regulate. The answer begins with one decision, Youngstown Sheet & Tube Co. v. Sawyer, known as the Steel Seizure Case. It arose when the President ordered the Secretary of Commerce to take possession of and operate most of the nation's steel mills, and the government defended the order as part of the aggregate of the President's powers as Chief Executive and Commander in Chief.1
Youngstown matters beyond its facts because it supplies the working vocabulary for nearly every later dispute between presidential and congressional power. Justice Jackson's concurrence sorted presidential action into three categories according to what Congress had done, and the Supreme Court has since endorsed that framework, as it did in Zivotofsky v. Kerry.2 The earlier sections of this chapter have already borrowed it, both in assessing deployments when Congress is silent and in placing a President who defies the War Powers Resolution at the lowest ebb of presidential power. The disputes over military tribunals and detention taken up later in this chapter are decided on the same footing. The opinion of the Court and Jackson's concurrence approach the problem differently, and it is the concurrence that later courts use.3
The case is taken in four steps. The first covers the facts and the Court's opinion, because Jackson's framework is easier to hold once the reader has seen the dispute it was built to sort. The second sets out Jackson's three categories. The third turns to what Jackson said about the Commander in Chief Clause itself, and the fourth to the dissent and the part that historical practice plays in these disputes. The first of those steps follows next, under the Steel Seizure Case.
The Steel Seizure Case
The dispute behind Youngstown Sheet & Tube Co. v. Sawyer began as an ordinary bargaining impasse during the Korean War, and the order of events matters because each step shows what the President had already tried and what Congress had already said. In the latter part of 1951, the steel companies and their employees, represented by the United Steelworkers of America, could not agree on the terms of new contracts. The union gave notice on December 18 that it would strike when the existing agreements expired on December 31, and the Federal Mediation and Conciliation Service stepped in without success. On December 22 the President referred the dispute to the Federal Wage Stabilization Board for recommendations, and the Board's report produced no settlement.4 On April 4, 1952, the union gave notice of a nationwide strike to begin at 12:01 a.m. on April 9. The President believed that steel was so indispensable to weapons and other war materials that a stoppage would immediately jeopardize national defense, and a few hours before the strike was to start he issued Executive Order 10340. The order directed the Secretary of Commerce to take possession of most of the steel mills and keep them running, and the Secretary at once issued possessory orders making the presidents of the seized companies operating managers for the United States. The President reported the seizure to Congress the next morning, and Congress took no action.5
The companies obeyed the Secretary's orders under protest and sued in the District Court for the District of Columbia, arguing that neither an act of Congress nor any provision of the Constitution authorized the seizure. The District Court issued a preliminary injunction on April 30, the Court of Appeals stayed that injunction the same day, and the Supreme Court granted certiorari on May 3 and set the case for argument on May 12.6 The Government's position was that the order rested on findings that a stoppage of steel production would bring a national catastrophe, and that in meeting the emergency the President acted within the aggregate of his powers as Chief Executive and Commander in Chief.7 Nobody claimed that express constitutional language granted the power, so the Government asked the Court to imply it from the Vesting Clause, the Take Care Clause, and the Commander in Chief Clause read together.8 The Government also conceded that the conditions of the two statutes authorizing the taking of property had not been met.9
Congress had also spoken on the subject, although not by authorizing the seizure. Before this controversy, it had refused to adopt seizure as a method of settling labor disputes, apparently because seizure, like compulsory arbitration, would interfere with the process of collective bargaining.10 The plan it adopted instead relied on mediation, conciliation, investigation by boards of inquiry, and public reports, with temporary injunctions as cooling-off periods in some cases, and when all of that failed the unions were free to strike after a secret vote by the employees.11 Congress had therefore considered the very tool the President used, withheld it, and built a different path. Black's opinion for the Court centers on where the Constitution locates the power rather than on this history, but the history explains why the seizure reads as an executive displacement of a legislative choice, and it becomes the decisive fact in Justice Jackson's concurrence, which the next section takes up.
The Court held that the President lacked constitutional power to issue the order.12 Its first step rejected the commander-in-chief theory. The Government cited cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war, and Black set them aside as beside the point, reasoning that even if the theater of war is an expanding concept, the Commander in Chief cannot as such take possession of private property to keep labor disputes from stopping production, because that is "a job for the Nation's lawmakers, not for its military authorities."13 The reasoning follows the function of the title. Command exists to direct forces in the field, where decisions cannot wait for a legislature. A strike at a domestic steel mill raises a different question, which is how private industry and its workers are to be governed, and the Constitution gives that question to Congress, which can authorize the taking of property for public use, regulate relations between employers and employees, prescribe rules for settling labor disputes, and fix wages and working conditions.14 If the title reached any private property whose output the military needs, the military importance of a product would let the President displace Congress across the economy, since nearly every industry supplies something an army uses.
The two poles of the rule differ in function and setting. In Youngstown the President ordered a domestic industry seized to prevent a work stoppage, with no statute behind the order and with Congress having declined to authorize seizure in labor disputes, and the commander-in-chief power did not support the order. The contrasting setting is the one Black acknowledged and left untouched: a military commander engaged in day-to-day fighting in a theater of war, making decisions about the conduct of that fighting.15
The Court's second step rejected the executive-power provisions as a source of authority. The President's power to see that the laws are faithfully executed refutes the idea that the President is to be a lawmaker, because the Constitution limits the President's part in lawmaking to recommending laws the President thinks wise and vetoing laws the President thinks bad.16 The order itself showed the difficulty. Like a statute, it recited reasons for a policy, proclaimed rules of conduct, and authorized an official to issue further rules needed to carry the policy into execution.17 The Take Care Clause supports carrying out a congressional policy in the manner Congress prescribes, and this order directed that a presidential policy be carried out in the manner the President prescribed.18 The emergency the President found did not alter that analysis, because the Founders entrusted the lawmaking power to Congress alone in both good and bad times.19
The vote was 6 to 3, and the separate opinions matter a great deal. Justice Black wrote for the Court, and Justices Frankfurter, Douglas, Jackson, Burton, and Clark each concurred, while Chief Justice Vinson dissented for himself and Justices Reed and Minton.20 A student who reads only the majority opinion will miss the framework that organizes later disputes, because Black's opinion does not sort the case by Congress's position. That sorting comes from Jackson's concurrence, which treats the seizure as presidential action against the expressed or implied will of Congress, and which the following section develops.21 A common mistake is to read the case as saying that the President has no power in wartime or that the Commander in Chief Clause is irrelevant at home. The holding is narrower: without statutory authority, the title and the executive-power clauses do not allow the President to make labor and property policy for the domestic economy.
Jackson's Three Categories
Black's opinion for the Court and Justice Jackson's concurrence in Youngstown reach the same result by different routes, and the route Jackson took is the one that later opinions follow.23 Jackson began by observing that a century and a half of debate about what the Framers would have intended has produced quotations on every side that largely cancel each other, so appeals to the bare text of Article II settle little.24 He turned to a more practical question, which is what Congress has done about the subject, and on that basis he sorted the situations in which a President may act into three groups. The Supreme Court has since endorsed the grouping, as it did in Zivotofsky v. Kerry.25 The premise is that presidential power varies with Congress's position, so the first task in any problem is to locate the President's action relative to what Congress has authorized, left open, or forbidden.
The first category covers a President who acts under an express or implied authorization from Congress. In that setting the President's authority is at its maximum, because it includes everything the President holds independently plus everything Congress can delegate.26 The reason is that when both political branches act together, the federal government is acting as a whole, and the only question left is whether the national government as an undivided unit has the power. A court that strikes down such an action is declaring a power missing from the government altogether, which is a far larger step than choosing between two branches. Jackson's own illustration was a seizure carried out under an Act of Congress, which he said would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, with the burden of persuasion resting heavily on anyone who attacked it.27 Because Congress rarely authorizes in so many words, the live dispute in a first-category problem is usually whether a statute implies authority for the conduct at issue.
The second category covers a President who acts when Congress has neither granted nor denied authority. Here the President can rely only on independent constitutional powers, but Jackson described a zone of twilight in which the President and Congress may have concurrent authority, or in which the distribution of authority is uncertain.28 Congress cannot legislate in advance for every contingency, so silence is common, and silence settles neither that the President has no power nor that the President has all of it. What fills the gap is practical weight: congressional inertia, indifference, or quiescence may, as a matter of practice, enable or even invite independent presidential action, and any real test of power is likely to turn on the imperatives of events rather than on abstract legal theory.29 That is why the earlier discussion of deployments beyond defense produced competing arguments instead of holdings, and why a later part of this chapter returns to congressional acquiescence when it takes up the dissent.
The third category covers a President who takes measures incompatible with the expressed or implied will of Congress. The President's power is then at its lowest ebb, because the President can rely only on the constitutional powers of the office minus any constitutional powers of Congress over the matter.30 The subtraction explains the label. A statute adds nothing to the President's side of the ledger when it points the other way, and the full weight of Congress's own powers sits on the opposite side. Jackson drew the consequence directly: a court can sustain exclusive presidential control in such a case only by disabling Congress from acting on the subject, and a claim of power that is both conclusive and preclusive must be scrutinized with caution, because what is at stake is the equilibrium of the constitutional system.31 A ruling for the President in this posture would not merely settle one dispute. It would remove a subject from Congress's reach for every future Congress, which is the reason the burden is so heavy.
Jackson then ran the steel seizure through the categories by elimination. The first category was closed by admission, since the Government conceded that no congressional authorization existed for the seizure.32 The second was closed because Congress had not left the seizure of private property an open field. It had covered the subject with three statutory policies inconsistent with this seizure: seizure of a plant that fails to comply with obligatory government orders, condemnation of facilities (including temporary use) under eminent domain, and a separate course for protecting the general economy rather than exclusively governmental interests.33 The President invoked none of them, and in choosing a different and inconsistent way, the President could not claim that the failure of Congress to legislate had invited or necessitated the action.34 What remained was the third category, where the President could be sustained only by holding that seizure of strike-bound industries lies within the executive's domain and beyond Congress's control.35 The majority carried the analysis one step further and asked whether the Vesting, Take Care, or Commander in Chief Clauses gave the President exclusive authority in this area, and it found no such preclusive power.36 A frequent error is to treat any lack of statutory authorization as third-category territory. Lack of authorization alone yields the twilight, and the third category requires that Congress has spoken to the subject in a way that is incompatible with the President's course.
The same relational reasoning appears outside the military setting. In New York Times Co. v. United States, the Executive argued that its foreign-affairs and commander-in-chief powers supported a court order barring publication of classified material, although Congress had deliberately not given the Executive that remedy. Justice Marshall's concurring opinion accepted that the President holds broad powers in both roles, but he said it would be utterly inconsistent with separation of powers for a court to use its contempt power to prevent behavior Congress had specifically declined to prohibit.37 The reason is the same incentive problem that drives the third category: an Executive that can obtain through an injunction what Congress refused to enact has found a way to make law without Congress.
The contrast with Black's approach explains why Jackson's concurrence became the working framework. Black first asked whether the President had made policy, which is a legislative function, or had executed policy, which is an executive function. Having found that the order made policy, he held it invalid, because an executive officer cannot exercise a legislative function unless the Constitution vests that power in the President.38 That inquiry is formalist, since it classifies the act by the branch whose function it resembles and draws clear lines between the branches. Jackson started from the actual relationship between the President and Congress instead, and a functionalist of his kind leaves an arrangement alone when the elected branches have reached one they accept, turning to the constitutional boundaries when a real clash with Congress arises.39 Under the formalist test the answer does not depend on what Congress did. Under Jackson's test the same executive act can be valid when Congress has authorized it and invalid when Congress has foreclosed it, which is the result the hypothetical above reaches.
Later courts have therefore taken the concurrence rather than the majority opinion as their guide. The framework has been applied beyond war powers. In Medellin v. Texas the Court considered a presidential effort to make non-self-executing treaties enforceable in state courts by unilateral order, and it held that the assertion of authority, so far as it rested on those treaties, fell within the third category because it conflicted with the implicit understanding of the ratifying Senate.40 Later cases have followed Jackson's analysis, as in Dames & Moore v. Regan, although it is better understood as a spectrum than as three sealed categories.41 The reason is that both authorization and opposition can be implied, and a single statute may support part of what the President did while cutting against another part. A strong answer names the closest category and then says how near the action sits to the boundary.
The second and third steps do most of the work, and their order matters. A student who stops at the observation that no statute authorizes the action will place a third-category case in the twilight and will miss that Congress already occupied the field.
Command Power at Home
Jackson's three categories show how Congress's position moves the President's authority up or down, but his concurrence in Youngstown also addresses what the Commander in Chief Clause means on its own terms, because the Government invoked it to defend the steel seizure. The argument rested on the President's own act: he had sent American troops to Korea on his own responsibility, and that commitment, the Government said, gave him an affirmative power to seize the means of producing the steel those troops needed.43 Jackson tested the argument by asking where it leads. If a President's decision to commit forces abroad could enlarge his control over the country's internal affairs, then a President whose conduct of foreign affairs is so largely uncontrolled, and often not even known, could expand his mastery at home simply by committing the armed forces to some foreign venture, and Jackson regarded no doctrine the Court might announce as more sinister and alarming.44 The objection rests on incentive. Only the President decides whether troops go abroad, so a rule that let the deployment itself generate domestic power would hand the officeholder the key to his own expansion.
Jackson's first reply came from the words of the clause. The President is Commander in Chief of the Army and Navy, and Jackson found indications that the Constitution did not contemplate making him also Commander in Chief of the country, its industries, and its inhabitants, adding that the President has no monopoly of whatever war powers there may be.45 The reasoning follows from what command is. A commander gives orders to people who have been placed in a chain of command, and the officers, soldiers, and ships are subject to those orders because Congress raised and organized them. Private owners and workers stand outside that chain, so a title that is real at the head of the forces has nothing to attach to when the President reaches for the economy. An opinion in Ex parte Milligan, taken up later in this chapter, reasoned the same way about the army itself: commanding an army requires control of no persons other than its officers, soldiers, and camp followers, and what is called the war power of the President amounts to the power of commanding the armies and fleets that Congress causes to be raised.46
Jackson then turned to the rest of the Constitution, which confirms that military command was not meant to displace representative government in internal affairs.47 Several provisions point the same way:
- Congress holds the powers to raise and support armies and to provide and maintain a navy, which lays on Congress primary responsibility for supplying the armed forces.48
- Congress alone controls the raising of revenue and its appropriation, and it may decide how and by what means money is spent for military and naval procurement.49
- Congress may make rules for the government and regulation of the land and naval forces, and through those rules it may reach even command functions to some unknown extent.50
- Congress holds the power to provide for calling forth the militia to execute the laws, suppress insurrections, and repel invasions, a limit written when the militia was the contemplated military weapon of the Republic.51
- Congress has authorized the President to use the army to enforce certain civil rights and has forbidden its use to execute the general laws unless the Constitution or an Act of Congress expressly authorizes it.52
- The Third Amendment permits the quartering of soldiers in a house during war only in a manner prescribed by law.53
Each provision keeps a different lever in Congress's hands. Supply and funding decide whether there are forces to command and what they can be given, the rules for the forces govern how they are run, and the militia clause decides when state forces come under federal command. The Third Amendment shows the pattern most sharply because it reaches the place where soldiers and citizens meet most directly, the home. Time out of mind, a military commander could seize private housing to shelter troops, and Jackson observed that in the United States even the wartime seizure of needed military housing must be authorized by Congress.54 A commander's need for shelter is as pressing in war as at any other time, so the Amendment reflects a deliberate choice to route even urgent military demands on private property through the legislature. If the Commander in Chief Clause carried a power to take whatever the forces need, that choice would mean nothing, because any President could claim the same necessity. Jackson concluded that the Constitution's policy is for Congress, not the Executive, to control use of the war power as an instrument of domestic policy.55
None of this empties the clause. Jackson said the occasion should not be used to circumscribe, much less contract, the President's lawful role as Commander in Chief, and he would indulge the widest latitude of interpretation to sustain the President's exclusive function to command the instruments of national force, at least when that force is turned against the outside world for the security of society.56 The same passage withholds that indulgence when force is turned inward against a lawful economic struggle between industry and labor, with no rebellion in the picture.57 The line follows the target of the force. Outward, the President is directing the forces against an enemy, which is the function that justifies placing command in one person who can decide quickly. Inward, the President is regulating the lives and property of citizens, which is the function the Constitution gives to a representative Congress. Jackson explained that the two titles were lodged in one person to ensure civilian control of the military, and he warned that no penance could expiate the sin against free government of holding that a President can escape legal control of executive powers by assuming a military role.58
The outward-facing core is where the clause does work of its own. A President who directs joint naval exercises with an allied country exercises the authority Article II gives over the Navy, and may arrange the exercises by executive agreement instead of a treaty that would need two-thirds of the Senate, because the decision uses a power the Constitution assigns to the President and therefore neither usurps the Senate's role nor aggrandizes the executive.59 Advice to Presidents on specific matters has likewise tended to measure command powers by the functions usual to the topmost officer of the army and navy, with attention to any efforts of Congress to negate his authority.60 The steel mills sit on the other side of the line. The Government's claim was that the mills' output mattered to troops in the field, and Jackson answered that, whatever the power of command may include, it is not a military prerogative, without support of law, to seize persons or property because they are important or even essential to the military and naval establishment.61
The exercises direct the forces themselves, while the mills belong to private owners who are not in the forces, and that difference in the object of the order is the fact that moves the result. A common mistake is to read Jackson's generosity toward command of the forces as covering anything the military needs. The latitude attaches to command of the instruments of force, and a seizure justified only by the military importance of what is seized receives none.
Two limits keep this account accurate. Jackson did not try to say everything the power of command includes, and he acknowledged that Congress's rules for the forces may reach command functions to some unknown extent, so the concurrence marks the clause's weak inward reach without drawing a precise boundary.62 The Youngstown majority, having found the seizure contrary to congressional policy, went on to ask whether the Vesting, Take Care, or Commander in Chief Clauses gave the President exclusive authority over the matter, and it found no such authority.63 Whether the clause protects any zone of operational command that Congress cannot direct remains a live question, and the later sections of this chapter on tribunals and detention return to it.
Dissent and Historical Practice
Jackson's categories explain why the steel seizure failed, but three Justices saw the case differently, and their opinion supplies the strongest argument for the President. It matters for two reasons. It states the best case that a President facing an emergency deserves deference, and it rests that case largely on historical practice, a kind of evidence that appears in nearly every later dispute over executive power. This section gives the dissent a fair statement, explains why the Justices in the majority rejected it, and then draws out how much weight practice that Congress has tolerated can carry.
Chief Justice Vinson, joined by Justices Reed and Minton, began from the premise that the President had a duty to carry out the legislative programs Congress had enacted to finance and supply the Korean War. Those programs depended on continued steel production and on stable steel prices. The dissent treated the central fact of the case as the threatened shutdown of the Nation's entire basic steel industry, a situation far removed from the seizure of a farm, a corner grocery, or a single plant.65 The President also faced a bind. A shutdown could have been averted by granting the price concessions the steel companies requested, but granting them would have disrupted the price stabilization program Congress had also enacted, so the President acted to execute both programs instead of letting either fail.66 The dissent worked to keep its claim modest. It disclaimed any defense of unlimited executive power and pointed out that the President had reported the seizure to Congress at once and had announced a purpose to abide by whatever Congress did, so the seizure was a temporary step to preserve the programs until Congress could act.67 Behind the argument stood a view of the office itself: the Framers had made the Presidency an office of power and independence, and they had created neither an autocrat nor an automaton unable to act when the survival of the Republic might be at stake.68
The historical half of the dissent surveyed Presidents from Washington to Franklin Roosevelt who had acted first in emergencies. Washington summoned the militia to secure enforcement of the revenue laws when they were openly flouted in parts of Pennsylvania, and he issued the Proclamation of Neutrality while congressional policy on the European war remained uncertain.69 Wilson created a War Labor Board without waiting for direction from Congress, enforced its decisions in part by seizing industrial plants, and ordered the seizure of the nation's railroads.70 Roosevelt ordered the seizure of an aviation plant at Inglewood, California, six months before Pearl Harbor, and the dissent noted that the Attorney General who defended that order on the aggregate of the President's constitutional and statutory powers was Robert Jackson, later the author of the concurrence discussed above.71 From these episodes the dissent drew its conclusion: Presidents had acted promptly to enforce the laws whether or not Congress had provided the method in advance, Congress and the courts had consistently supported them, and the power of seizure had therefore been accepted throughout the Nation's history.72
Practice carries weight in this argument for a reason that follows from how the branches interact. A power that Presidents exercise openly over a long period, while Congress watches and funds the government that exercises it, looks like a power both branches treat as part of the office, and a court that ignored that shared understanding would be second-guessing an arrangement the elected branches worked out themselves. That is the logic of Jackson's second category, where congressional quiescence may enable independent presidential action, and it explains why the dissent stressed that Congress and the courts had answered earlier seizures with consistent approval.73
The Justices in the majority did not reject practice as a form of evidence. Justice Frankfurter's concurrence accepted that long practice can put a gloss on executive power, and then explained why this practice could not: Congress had repeatedly considered and rejected a general power of seizure, most recently in the Taft-Hartley Act of 1947, and that history showed a conscious choice to withhold seizure authority and to require ad hoc legislation instead.74 Past executive seizures therefore lacked the unbroken acquiescence a gloss requires, since no comparable seizure of private property in peacetime had been accepted by Congress.75 Justices Burton and Clark added that where Congress has prescribed specific procedures for an emergency, the President must follow them, and Jackson placed the seizure in the third category and rejected claims of inherent or emergency power that would leave the President under no legal restraint.76 The two sides thus disagreed about what Congress had done. The dissent saw a Congress that had never prohibited seizure, while the majority Justices saw a Congress that had weighed seizure, refused it, and built a different method.
The mechanism behind the majority's answer is worth stating step by step. A legislature's silence can be read as consent only when it had the chance to object and chose to say nothing. Where Congress has studied a course of action and rejected it, there is no silence left to interpret, because Congress has made a decision, and treating earlier seizures as approval would turn that decision into its opposite. Incentive reasoning points the same way: if repeated executive acts could cancel Congress's choice, a President who controls how often the practice recurs could enlarge the office simply by repeating the practice. So acquiescence is a fact about Congress's silence, and it loses its force the moment Congress speaks.
A second limit on the dissent's history concerns the kind of act that the practice records. The dissent's tally also swept in at least 125 occasions on which Presidents ordered the armed forces to act or hold positions abroad without a declaration of war, among them the 1941 occupation of Iceland, and Congress was informed of that occupation on the day American forces arrived.77 Those episodes concern deployment of the forces abroad, the ground on which, as the preceding section explained, Jackson would extend the widest latitude to the commander. They say little about seizing domestic property, because practice supports only action of its same kind. A list of past episodes helps a President only to the extent the episodes resemble the act now in dispute.
The same factor can run in the President's favor, and the pair shows which fact moves the answer. In Dames & Moore v. Regan President Carter suspended pending claims against Iran in American courts as part of the settlement that secured the release of American hostages, and the Court sustained the suspension because Congress had a long history of acquiescing in similar executive settlements of claims.78 The Court later described that history as a practice reaching back to 1799 and running over two hundred years, with congressional acquiescence throughout, which led it to call the President's control of claims settlement indisputable.79 In both Dames & Moore and the steel case the President pointed to earlier Presidents who had done the same thing. In the claims cases Congress had tolerated the practice for generations and had never refused it, so the tolerance tipped a close case toward the President. In the steel case Congress had considered and refused the very method the President used, so the same kind of argument had nothing to build on.
Acquiescence is never dispositive, even on the favorable side, and the later decision in Hamdan v. Rumsfeld shows the other direction. That case is taken up in full later in this chapter. There the Court declined to read the existing statutes as authorizing the President's military commissions, and its opinion remarked that nothing prevented the President from returning to Congress to seek the authority believed necessary.80 Congress then enacted the Military Commissions Act at the President's request, which shows why courts are reluctant to infer approval from a vague statute.81 When the consequences for individual liberty and for the balance between the branches are large, Congress can always say clearly what it wants, so a court need not guess. The usual exam error is to treat a President's list of past episodes, or a loosely worded statute, as settling the question for the executive. Practice and general statutory language can tip a close case, but they do not outweigh a clear congressional decision or a requirement that Congress speak plainly.
The first step decided the steel case, and the fourth points toward Hamdan. Steps two and three explain why the claims-settlement practice helped the President in Dames & Moore while the history of plant seizures did not.