YOUNGSTOWN SHEET
& TUBE CO. ET AL. v. SAWYER
343
MR. JUSTICE BLACK delivered the opinion of the Court.
We are asked to decide whether the
President was acting within his constitutional power when he issued an order
directing the Secretary of Commerce to take possession of and operate most of
the Nation's steel mills. The mill owners argue that the President's order
amounts to lawmaking, a legislative function which the Constitution has
expressly confided to the Congress and not to the President. The Government's [***1165] position is that the order was made on
findings of the President that his action was necessary to avert a national
catastrophe which would inevitably result from a stoppage of steel production,
and that in meeting this grave emergency the President was acting within the
aggregate of his constitutional powers as the Nation's Chief Executive and the
Commander in Chief of the Armed Forces of the United States. The issue emerges here from the
following series of events:
In the latter part of 1951, a
dispute arose between the steel companies and their employees over terms and
conditions that should be included in new collective bargaining
agreements. Long-continued
conferences failed to resolve the dispute.
On December 18, 1951, the employees' representative, United Steelworkers
of America, C. I. O., gave notice of an intention to strike when the existing
bargaining agreements expired on December 31. The Federal Mediation and Conciliation
Service then intervened in an effort to get labor and management to agree. This failing, the President on December
22, 1951, referred the dispute to the Federal Wage Stabilization [*583] Board n1 to investigate and make
recommendations for fair and equitable terms of settlement. This Board's report
resulted in no settlement. On April 4, 1952, the
n1 This Board was established under Executive Order
10233, 16 Fed. Reg. 3503.
Obeying the Secretary's orders
under protest, the companies brought proceedings against him in the District
Court. Their complaints charged
that the seizure was not authorized by an act of Congress or by any
constitutional provisions. The
District Court was asked to declare the orders of the President and the
Secretary invalid and to issue preliminary and permanent injunctions
restraining their enforcement.
Opposing the motion for preliminary
[*584] injunction, the
United States asserted that a strike disrupting steel production for even a
brief period would so endanger the well-being and safety of the Nation that the
President had "inherent power" to do what he had done -- power
"supported by the Constitution, by historical precedent, and by court
decisions." The Government also contended that in any event no preliminary
injunction should be issued because the companies had made no showing that their
available legal remedies were inadequate or that their injuries from seizure
would be irreparable. Holding
against the Government on all points, the District Court on April 30 issued a
preliminary injunction restraining the Secretary from "continuing the
seizure and possession of the plants . . . and from acting under the [***1166] purported authority of Executive Order
No. 10340." 103 F.Supp. 569. On the same day the Court of Appeals stayed
the District Court's injunction. 90 U. S. App. D. C. , 197 F.2d 582. Deeming it
best that the issues raised be promptly decided by this Court, we granted
certiorari on May 3 and set the cause for argument on May 12. 343
Two crucial issues have developed:
First. Should final determination of the constitutional validity of the
President's order be made in this case which has proceeded no further than the
preliminary injunction stage? Second.
If so, is the seizure order within the constitutional power of the President?
I.
It is urged that there were
non-constitutional grounds upon which the District Court could have denied the
preliminary injunction and thus have followed the customary judicial practice
of declining to reach and decide constitutional questions until compelled to do
so. On this basis it is argued that
equity's extraordinary injunctive relief should have been denied because (a)
seizure of the companies' properties did not inflict irreparable damages, [*585] and (b) there were available legal
remedies adequate to afford compensation for any possible damages which they
might suffer. While separately
argued by the Government, these two contentions are here closely related, if
not identical. Arguments as to both
rest in large part on the Government's claim that should the seizure ultimately
be held unlawful, the companies could recover full compensation in the Court of
Claims for the unlawful taking.
Prior cases in this Court have cast doubt on the right to recover in the
Court of Claims on account of properties
[**866] unlawfully taken by
government officials for public use as these properties were alleged to have
been. See e. g., Hooe v.
II.
The President's power, if any, to
issue the order must stem either from an act of Congress or from the
Constitution itself. 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 to which our attention has been directed from which such a
power can fairly be implied.
Indeed, we do not understand the Government to rely on statutory authorization
for this seizure. There are two statutes which do authorize the President [*586] to take both personal and real property
under certain conditions. n2 However, the Government admits that these
conditions were not met and that the President's order was not rooted in either
of the statutes.
[***1167] The Government
refers to the seizure provisions of one of these statutes (§ 201 (b) of the Defense Production Act)
as "much too cumbersome, involved, and time-consuming for the crisis which
was at hand."
n2 The Selective Service Act of 1948, 62 Stat. 604,
625-627, 50 U. S. C. App. (Supp. IV) § 468; the Defense Production Act of 1950,
Tit. II, 64 Stat. 798, as amended, 65 Stat. 132.
Moreover, the use of the seizure
technique to solve labor disputes in order to prevent work stoppages was not
only unauthorized by any congressional enactment; prior to this controversy,
Congress had refused to adopt that method of settling labor disputes. When the Taft-Hartley Act was under
consideration in 1947, Congress rejected an amendment which would have
authorized such governmental seizures in cases of emergency. n3 Apparently it
was thought that the technique of seizure, like that of compulsory arbitration,
would interfere with the process of collective bargaining. n4
Consequently, the plan Congress
adopted in that Act did not provide for seizure under any circumstances. Instead, the plan sought to bring about
settlements by use of the customary devices of mediation, conciliation,
investigation by boards of inquiry, and public reports. In some instances temporary injunctions
were authorized to provide cooling-off periods. All this failing, unions were left free
to strike after a secret vote by employees as to whether they wished to accept
their employers' final settlement offer. n5
n3 93 Cong. Rec. 3637-3645.
n4 93 Cong. Rec. 3835-3836.
n5 Labor Management Relations Act, 1947, 61 Stat. 136,
152-156, 29
[*587] It is clear that if the President had
authority to issue the order he did, it must be found in some provision of the
Constitution. And it is not claimed
that express constitutional language grants this power to the President. The contention is that presidential
power should be implied from the aggregate of his powers under the
Constitution. Particular reliance
is placed on provisions in Article II which say that "The executive Power
shall be vested in a President . . ."; that "he shall take Care that
the Laws be faithfully [**867] executed"; and that he "shall
be Commander in Chief of the Army and Navy of the
The order cannot properly be
sustained as an exercise of the President's military power as Commander in
Chief of the Armed Forces. The Government attempts to do so by citing a number
of cases upholding broad powers in military commanders engaged in day-to-day
fighting in a theater of war. Such
cases need not concern us here.
Even though "theater of war" be an expanding concept, we
cannot with faithfulness to our constitutional system hold that the Commander
in Chief of the Armed Forces has the ultimate power as such to take possession
of private property in order to keep labor disputes from stopping
production. This is a job for the
Nation's lawmakers, not for its military authorities.
Nor can the seizure order be
sustained because of the several constitutional provisions that grant executive
power to the President. In the
framework of our Constitution, the President's power to see that the laws are
faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in
the lawmaking process to the recommending of laws he thinks wise and the
vetoing of laws he thinks bad. And
the Constitution is neither silent nor equivocal about who shall make laws
which the President is to execute. The
[*588] first section of the
first article says that "All legislative Powers herein granted shall be
vested in a Congress of the
The President's order does not
direct that a congressional policy be executed in a manner prescribed by
Congress -- it directs that a presidential policy be executed in a manner
prescribed by the President. The
preamble of the order itself, like that of many statutes, sets out reasons why
the President believes certain policies should be adopted, proclaims these
policies as rules of conduct to be followed, and again, like a statute,
authorizes a government official to promulgate additional rules and regulations
consistent with the policy proclaimed and needed to carry that policy into
execution. The power of Congress to
adopt such public policies as those proclaimed by the order is beyond
question. It can authorize the taking
of private property for public use.
It can make laws regulating the relationships between employers and
employees, prescribing rules designed to settle labor disputes, and fixing
wages and working conditions in certain fields of our economy. The Constitution does not subject this
lawmaking power of Congress to presidential or military supervision or control.
It is said that other Presidents
without congressional authority have taken possession of private business enterprises
in order to settle labor disputes.
But even if this be true, Congress has not thereby lost its exclusive
constitutional authority to make laws necessary and proper to carry out the
powers vested by the Constitution
[*589] "in the
Government of the United States, or any Department or Officer thereof."
The Founders of this Nation
entrusted the lawmaking power to the Congress alone in both good and bad
times. It would do no good to
recall the historical events, the fears of power and the hopes for freedom that
lay behind their choice. Such a
review would but confirm our holding that this seizure order cannot stand.
The judgment of the District Court
is
Affirmed.
MR. JUSTICE FRANKFURTER.
Although the considerations
relevant to the legal enforcement of the principle of separation of powers seem
to me more complicated and flexible than may appear from [**868] what MR. JUSTICE BLACK has written, I
join his opinion because I thoroughly agree with the application of the
principle to the circumstances of this case. Even though such differences in attitude
toward this principle may be merely differences in emphasis and nuance, they
can hardly be reflected by a single opinion for the Court. Individual expression of views in
reaching a common result is therefore important.
APPENDIX TO OPINION OF THE COURT.
EXECUTIVE ORDER
Directing the Secretary of Commerce to Take Possession of and Operate
the Plants and Facilities of Certain Steel Companies
WHEREAS on December 16, 1950, I
proclaimed the existence of a national emergency which requires that the
military, naval, air, and civilian defenses of this country be strengthened as
speedily as possible to the end that we may be able to repel any and all
threats against our national
[*590] security and to fulfill
our responsibilities in the efforts being made throughout the United Nations
and otherwise to bring about a lasting peace; and
[***1169] WHEREAS American fighting men and
fighting men of other nations of the United Nations are now engaged in deadly
combat with the forces of aggression in Korea, and forces of the United States
are stationed elsewhere overseas for the purpose of participating in the
defense of the Atlantic Community against aggression; and
WHEREAS the weapons and other
materials needed by our armed forces and by those joined with us in the defense
of the free world are produced to a great extent in this country, and steel is
an indispensable component of substantially all of such weapons and materials;
and
WHEREAS steel is likewise indispensable
to the carrying out of programs of the Atomic Energy Commission of vital
importance to our defense efforts; and
WHEREAS a continuing and
uninterrupted supply of steel is also indispensable to the maintenance of the
economy of the
WHEREAS a controversy has arisen
between certain companies in the United States producing and fabricating steel
and the elements thereof and certain of their workers represented by the United
Steel Workers of America, CIO, regarding terms and conditions of employment;
and
WHEREAS the controversy has not
been settled through the processes of collective bargaining or through the
efforts of the Government,
including those of the Wage Stabilization Board, to which the
controversy was referred on December 22, 1951, pursuant to Executive Order No.
10233, and a strike has been called for 12:01 A.M., April 9, 1952; and
WHEREAS a work stoppage would
immediately jeopardize and imperil our national defense and the defense [*591] of those joined with us in resisting
aggression, and would add to the continuing danger of our soldiers, sailors,
and airmen engaged in combat in the field; and
WHEREAS in order to assure the
continued availability of steel and steel products during the existing
emergency, it is necessary that the
NOW, THEREFORE, by virtue of the
authority vested in me by the Constitution and laws of the
1. The Secretary of Commerce is
hereby authorized and directed to take possession of all or such of the plants,
facilities, and other property of the companies named in the list attached
hereto, or any part thereof, as he
may deem necessary in the interests of national defense; and to operate or to
arrange for the operation thereof and to do all things necessary for, or
incidental to, such operation.
[**869] 2. In carrying out this order the
Secretary of Commerce may act through or with the aid of such public or private
instrumentalities or persons as he may designate; and all Federal agencies
shall cooperate with the Secretary of Commerce to the fullest extent possible
in carrying out the purposes of this order.
3. The Secretary of Commerce shall
determine and prescribe terms and conditions of employment under which the
plants, facilities, and other properties possession of which is taken pursuant
to this order shall be operated.
The Secretary of Commerce shall recognize the rights of workers to
bargain collectively through representatives of their own choosing and to
engage in concerted activities for the purpose of collective bargaining,
adjustment of grievances, or other mutual aid or protection, provided [*592] that such activities do not interfere
with the operation of such plants, facilities, and other properties.
4. Except so far as the Secretary
of Commerce shall otherwise provide
[***1170] from time to time,
the managements of the plants, facilities, and other properties possession of which
is taken pursuant to this order shall continue their functions, including the
collection and disbursement of funds in the usual and ordinary course of
business in the names of their respective companies and by means of any
instrumentalities used by such companies.
5. Except so far as the Secretary
of Commerce may otherwise direct, existing rights and obligations of such
companies shall remain in full force and effect, and there may be made, in due
course, payments of dividends on stock, and of principal, interest, sinking
funds, and all other distributions upon bonds, debentures, and other
obligations, and expenditures may be made for other ordinary corporate or
business purposes.
6. Whenever in the judgment of the
Secretary of Commerce further possession and operation by him of any plant,
facility, or other property is no longer necessary or expedient in the interest
of national defense, and the Secretary has reason to believe that effective
future operation is assured, he shall return the possession and operation of
such plant, facility, or other property to the company in possession and
control thereof at the time possession was taken under this order.
7. The Secretary of Commerce is
authorized to prescribe and issue such regulations and orders not inconsistent herewith
as he may deem necessary or desirable for carrying out the purposes of this
order; and he may delegate and authorize subdelegation of such of his functions
under this order as he may deem desirable.
Harry S. Truman.
The White House, April 8, 1952.
CONCURBY:
FRANKFURTER; DOUGLAS;
CONCUR:
[*593] [**888contd]
[EDITOR'S NOTE: The page numbers of this document may appear to be out
of sequence; however, this
pagination accurately reflects the pagination of the original published
document.] MR. JUSTICE FRANKFURTER, concurring.
Before the cares of the White
House were his own, President Harding is reported to have said that government
after all is a very simple thing.
He must have said that, if he said it, as a fleeting inhabitant of
fairyland. The opposite is the
truth. A constitutional democracy
like ours is perhaps the most difficult of man's social arrangements to manage
successfully. Our scheme of society
is more dependent than any other form of government on knowledge and wisdom and
self-discipline for the achievement of its aims. For our democracy implies the reign of
reason on the most extensive scale.
The Founders of this Nation were not imbued with the modern cynicism
that the only thing that history teaches is that it teaches nothing. They acted on the conviction that the
experience of man sheds a good deal of light on his nature. It sheds a good deal of light not merely
on the need for effective power, if a society is to be at once cohesive and
civilized, but also on the need for limitations on the power of governors over
the governed.
[**889] To that end they rested the structure of
our central government on the system of checks and balances. For them the doctrine of separation of
powers was not mere theory; it was a felt necessity. Not so long ago it was fashionable to
find our system of checks and balances obstructive to effective
government. It was easy to ridicule
that system as outmoded -- too easy.
The experience through which the world has passed in our own day has
made vivid the realization that the Framers of our Constitution were not
inexperienced doctrinaires. These
long-headed statesmen had no illusion that our people enjoyed biological or
psychological or sociological immunities from the hazards of concentrated
power. It is absurd to see a
dictator in a representative product of the sturdy democratic traditions of the
The Framers, however, did not make
the judiciary the overseer of our government. They were familiar with the revisory
functions entrusted to judges in a few of the States and refused to lodge such
powers in this Court. Judicial
power can be exercised only as to matters that were the traditional concern of
the courts at
[*595]
The path of duty for
this Court, it bears repetition, lies in the opposite direction. Due regard for the implications of the
distribution of powers in our Constitution and for the nature of the judicial
process as the ultimate authority in interpreting the Constitution, has not
only confined the Court within the narrow domain of appropriate
adjudication. It has also led to "a
series of rules under which it has avoided passing upon a large part of all the
constitutional questions pressed upon it for decision." Brandeis, J., in Ashwander
v.
So here our first inquiry must be
not into the powers of the President, but into the powers of a District Judge
to issue a temporary injunction in the circumstances of this case. Familiar as that remedy is, it remains
an extraordinary remedy. To [**890] start with a consideration of the
relation between the President's powers and those of Congress -- a most
delicate matter that has occupied the thoughts of statesmen and judges since
the Nation was founded and will continue to occupy their thoughts as long as
our democracy lasts -- is to start at the wrong end. A plaintiff is not
entitled to an injunction if money damages would fairly compensate him for any
wrong he may have suffered. The
same considerations by which the Steelworkers, in their brief amicus, [***1172] demonstrate, from the seizure here in
controversy, consequences
[*596] that cannot be
translated into dollars and cents, preclude a holding that only compensable
damage for the plaintiffs is involved.
Again, a court of equity ought not to issue an injunction, even though a
plaintiff otherwise makes out a case for it, if the plaintiff's right to an
injunction is overborne by a commanding public interest against it. One need not resort to a large
epigrammatic generalization that the evils of industrial dislocation are to be
preferred to allowing illegality to go unchecked. To deny inquiry into the President's
power in a case like this, because of the damage to the public interest to be
feared from upsetting its exercise by him, would in effect always preclude inquiry
into challenged power, which presumably only avowed great public interest
brings into action. And so, with
the utmost unwillingness, with every desire to avoid judicial inquiry into the
powers and duties of the other two branches of the government, I cannot escape
consideration of the legality of Executive Order No. 10340.
The pole-star for constitutional
adjudications is John Marshall's greatest judicial utterance that "it is a
constitution we are expounding." McCulloch v.
The issue before us can be met,
and therefore should be, without attempting to define the President's powers
comprehensively. I shall not
attempt to delineate what belongs to him by virtue of his office beyond the
power even of Congress to contract; what authority belongs to him until
Congress acts; what kind of problems may be dealt with either by the Congress
or by the President or by both, cf. La Abra Silver Mng. Co. v. United
States, 175 U.S. 423; what power must be exercised by the Congress and
cannot be delegated to the President.
It is as unprofitable to lump together in an undiscriminating hotch-potch
past presidential actions claimed to be derived from occupancy of the office,
as it is to conjure up hypothetical future cases. The judiciary may, as this case proves,
have to intervene in determining where authority lies as between the democratic
forces in our scheme of government.
But in doing so we should be wary and humble. Such is the teaching of this Court's
role in the history of the country.
It is in this mood and with this
perspective that the issue before the Court must be approached. We must therefore put to one side
consideration of what powers the President would have had if there had been no
legislation whatever bearing on the
[**891] authority asserted
by the seizure, or if the seizure had been only for a short, explicitly
temporary period, to be terminated automatically unless Congressional approval
were given. These and other
questions, [***1173] like or unlike, are not now here. I would exceed my authority were I to
say anything about them.
The question before the Court
comes in this setting. Congress has
frequently -- at least 16 times since 1916 -- [*598] specifically provided for executive seizure
of production, transportation, communications, or storage facilities. In every case it has qualified this
grant of power with limitations and safeguards. This body of enactments -- summarized in
tabular form in Appendix I, post, p. 615 -- demonstrates that Congress
deemed seizure so drastic a power as to require that it be carefully
circumscribed whenever the President was vested with this extraordinary
authority. The power to seize has
uniformly been given only for a limited period or for a defined emergency, or
has been repealed after a short period.
Its exercise has been restricted to particular circumstances such as
"time of war or when war is imminent," the needs of "public
safety" or of "national security or defense," or "urgent
and impending need." The period of governmental operation has been
limited, as, for instance, to "sixty days after the restoration of
productive efficiency." Seizure statutes usually make executive action
dependent on detailed conditions: for example, (a) failure or refusal of the
owner of a plant to meet governmental supply needs or (b) failure of voluntary
negotiations with the owner for the use of a plant necessary for great public
ends. Congress often has specified
the particular executive agency which should seize or operate the plants or
whose judgment would appropriately test the need for seizure. Congress also has
not left to implication that just compensation be paid; it has usually
legislated in detail regarding enforcement of this litigation-breeding general
requirement. (See Appendix I, post,
p. 615.)
Congress in 1947 was again called
upon to consider whether governmental seizure should be used to avoid serious
industrial shutdowns. Congress
decided against conferring such power generally and in advance, without special
Congressional enactment to meet each particular need. Under the urgency of telephone and coal
strikes in [*599] the winter of 1946, Congress addressed
itself to the problems raised by "national emergency" strikes and
lockouts. n1 The termination of wartime seizure powers on December 31, 1946,
brought these matters to the attention of Congress with vivid impact. A proposal that the President be given
powers to seize plants to avert a shutdown where the "health or
safety" of the Nation was endangered, was thoroughly canvassed by Congress
and rejected. No room for doubt
remains that the proponents as well as the opponents of the bill which became
the Labor Management Relations Act of 1947 clearly understood that as a result
of that legislation the only recourse for preventing a shutdown in any basic
industry, after failure of mediation, was Congress. n2 Authorization [***1174] for seizure as [*600] an available remedy [**892] for potential dangers was unequivocally
put aside. The Senate Labor
Committee, through its Chairman, explicitly reported to the Senate that a
general grant of seizure powers had been considered and rejected in favor of
reliance on ad hoc legislation, as a particular emergency might call for
it. n3 An amendment presented in the House providing that, where necessary
"to preserve and protect the public health and security," the
President might seize any industry in which there is [*601] an impending curtailment of production,
was voted down after debate, by a vote of more than three to one. n4
n1 The power to seize plants under the War Labor Disputes
Act ended with the termination of hostilities, proclaimed on Dec. 31, 1946,
prior to the incoming of the Eightieth Congress; and the power to operate
previously seized plants ended on June 30, 1947, only a week after the
enactment of the Labor Management Relations Act over the President's veto. 57 Stat. 163, 165, 50 U. S. C. App.
(1946 ed.) § 1503. See 2
Legislative History of the Labor Management Relations Act, 1947 (published by
National Labor Relations Board, 1948), 1145, 1519, 1626.
n2 Some of the more directly relevant statements are
the following: "In most instances the force of public opinion should make
itself sufficiently felt in this 80-day period to bring about a peaceful
termination of the controversy.
Should this expectation fail, the bill provides for the President laying
the matter before Congress for whatever legislation seems necessary to preserve
the health and safety of the Nation in the crisis." Senate Report No. 105,
80th Cong., 1st Sess. 15.
"We believe it would be most unwise for the
Congress to attempt to adopt laws relating to any single dispute between
private parties." Senate Minority Report, id., Part 2, at 17.
In the debates Senator H. Alexander Smith, a member of
the Senate Committee on Labor and Public Welfare, said, "In the event of a
deadlock and a strike is not ended, the matter is referred to the President,
who can use his discretion as to whether he will present the matter to the
Congress, whether or not the situation is such that emergency legislation is required.
"Nothing has been done with respect to the
Smith-Connally Act. There is no
provision for taking over property or running plants by the Government. We simply provide a procedure which we
hope will be effective in 99 out of 100 cases where the health or safety of the
people may be affected, and still leave a loophole for congressional
action." 93 Cong. Rec. 4281.
The President in his veto message said, ". . . it
would be mandatory for the President to transfer the whole problem to the
Congress, even if it were not in session.
Thus, major economic disputes between employers and their workers over
contract terms might ultimately be thrown into the political arena for
disposition. One could scarcely
devise a less effective method for discouraging critical strikes." 93
Cong. Rec. 7487.
n3 Senator Taft said:
"If there finally develops a complete national
emergency threatening the safety and health of the people of the
"We have felt that perhaps in the case of a
general strike, or in the case of other serious strikes, after the termination
of every possible effort to resolve the dispute, the remedy might be an
emergency act by Congress for that particular purpose.
". . . But while such a bill [for seizure of
plants and union funds] might be prepared, I should be unwilling to place such
a law on the books until we actually face such an emergency, and Congress
applies the remedy for the particular emergency only. Eighty days will provide plenty of time
within which to consider the possibility of what should be done; and we believe
very strongly that there should not be anything in this law which prohibits
finally the right to strike." 93 Cong. Rec. 3835-3836.
n4 93 Cong. Rec. 3637-3645.
In adopting the provisions which
it did, by the Labor Management Relations Act of 1947, for dealing with a
"national emergency" arising out of a breakdown in peaceful
industrial relations, Congress was very familiar with Governmental seizure as a
protective measure. On a balance of
considerations, Congress chose not to lodge this power in the President. It chose not to make available in
advance a remedy to which both industry and labor were fiercely hostile. n5 In
deciding that authority to seize should be given [***1175] to the President only after full
consideration of the particular situation should show such legislation to be
necessary, [**893] Congress presumably acted on experience
with similar industrial conflicts in the past. It evidently assumed that industrial
shutdowns in basic industries are not instances of spontaneous generation, [*602] and that danger warnings are
sufficiently plain before the event to give ample opportunity to start the
legislative process into action.
n5 See, for instance, the statements of James B.
Carey, Secretary of the C. I. O., in opposition to S. 2054, 77th Cong., 1st
Sess., which eventually became the War Labor Disputes Act. Central to that Act, of course, was the
temporary grant of the seizure power to the President. Mr. Carey then said:
"Senator BURTON. If this would continue forever it might
mean the nationalization of industry?
"Mr. CAREY.
Let us consider it on a temporary basis. How is the law borne by labor? Here is the Government-sponsored strike
breaking agency, and nothing more.
. . . .
"Our suggestion of a voluntary agreement of the
representatives of industry and labor and Government, participating in calling
a conference, is a democratic way.
The other one is the imposition of force, the other is the imposition of
seizure of certain things for a temporary period; the destruction of collective
bargaining, and it would break down labor relations that may have been built up
over a long period."
Hearing before a Subcommittee of the Senate Committee
on the Judiciary on S. 2054, 77th Cong., 1st Sess. 132.
In any event, nothing can be
plainer than that Congress made a conscious choice of policy in a field full of
perplexity and peculiarly within legislative responsibility for choice. In formulating legislation for dealing
with industrial conflicts, Congress could not more clearly and emphatically
have withheld authority than it did in 1947. Perhaps as much so as is true of any
piece of modern legislation, Congress acted with full consciousness of what it
was doing and in the light of much recent history. Previous seizure legislation had
subjected the powers granted to the President to restrictions of varying degrees
of stringency. Instead of giving
him even limited powers, Congress in 1947 deemed it wise to require the
President, upon failure of attempts to reach a voluntary settlement, to report
to Congress if he deemed the power of seizure a needed shot for his
locker. The President could not
ignore the specific limitations of prior seizure statutes. No more could he act in disregard of the
limitation put upon seizure by the 1947 Act.
It cannot be contended that the
President would have had power to issue this order had Congress explicitly
negated such authority in formal legislation. Congress has expressed its will to
withhold this power from the President as though it had said so in so many
words. The authoritatively
expressed purpose of Congress to disallow such power to the President and to
require him, when in his mind the occasion arose for such a seizure, to put the
matter to Congress and ask for specific authority from it, could not be more
decisive if it had been written into § § 206-210 of the Labor Management
Relations Act of 1947. Only the
other day, we treated the Congressional gloss upon those sections as part of
the Act. Bus Employees v. Wisconsin
Board, 340 U.S. 383, 395-396.
[*603] Grafting upon the
words a purpose of Congress thus unequivocally expressed is the regular
legislative mode for defining the scope of an Act of Congress. It would be not merely infelicitous
draftsmanship but almost offensive gaucherie to write such a restriction upon the
President's power in terms into a statute rather than to have it
authoritatively expounded, as it was, by controlling legislative history.
By the Labor Management Relations
Act of 1947, Congress said to the President, "You may not seize. Please
report to us and ask for seizure power if you think it is needed in a specific
situation." This of course calls for a report on the unsuccessful efforts
to reach a voluntary settlement, as a basis for discharge by Congress of its
responsibility -- which it has unequivocally reserved -- to fashion further
remedies than it provided. n6 But it is now claimed that the President has
seizure power by virtue of the Defense Production Act of 1950 and its [***1176] Amendments. n7 And the claim is based on
the occurrence of new events -- Korea and the need for stabilization, etc. --
although it was well known that seizure power was withheld by the Act of 1947,
and although the President, whose specific requests for other authority were in
the main granted by Congress, never suggested that in view [**894] of the new events he needed the power of
seizure which Congress in its judgment had decided to withhold from him. The utmost that the Korean conflict may
imply is that it may have been desirable to have given the President further
authority, a freer hand in these matters.
Absence of authority in the President to deal with a crisis does
not [*604] imply want of power in the Government. Conversely the fact that power exists in
the Government does not vest it in the President. The need for new legislation does not
enact it. Nor does it repeal or
amend existing law.
n6 Clearly the President's message of April 9 and his
further letter to the President of the Senate on April 21 do not satisfy this
requirement. Cong. Rec., April 9,
1952, pp. 3962-3963; id., April 21, 1952, p. 4192.
n7 64 Stat. 798 et seq., 65 Stat. 131 et seq.,
50 U. S. C. App. § 2061 et
seq.
No authority that has since been
given to the President can by any fair process of statutory construction be
deemed to withdraw the restriction or change the will of Congress as expressed
by a body of enactments, culminating in the Labor Management Relations Act of
1947. Title V of the Defense
Production Act, entitled "Settlement of Labor Disputes," pronounced
the will of Congress "that there be effective procedures for the
settlement of labor disputes affecting national defense," and that
"primary reliance" be placed "upon the parties to any labor
dispute to make every effort through negotiation and collective bargaining and
the full use of mediation and conciliation facilities to effect a settlement in
the national interest." n8 Section 502 authorized the President to hold
voluntary conferences of labor, industry, and public and government
representatives and to "take such action as may be agreed upon in any such
conference and appropriate to carry out the provisions of this title,"
provided that no action was taken inconsistent with the Labor Management
Relations Act of 1947. n9 This provision n10 was said by the Senate Committee [*605] on Banking and Currency to contemplate a
board similar to the War Labor Board of World War II and "a national
labor-management conference such as was held during World War II, when a
no-strike, no-lock-out pledge was obtained." n11 Section [***1177] 502 was believed necessary [*606] [**895] in addition to existing means for
settling disputes voluntarily because the Federal Mediation and Conciliation
Service could not enter a labor dispute unless requested by one party. n12
Similar explanations of Title V were given in the Conference Report and by
Senator Ives, a member of the Senate Committee to whom Chairman Maybank during
the debates on the Senate floor referred questions relating to Title V. n13
Senator Ives said:
"It should be remembered in
this connection that during the period of the present emergency it is expected
that the Congress will not adjourn, but, at most, will recess only for very
limited periods of time. If,
therefore, any serious work stoppage should arise or even be threatened, in
spite of the terms of the Labor-Management Relations Act of 1947, the Congress
would be readily available to pass such legislation as might be needed to meet
the difficulty." n14
[*607]
The Defense Production Act
affords no ground for the suggestion that the 1947 denial to the President of
seizure powers has been impliedly repealed, and its legislative history
contradicts such a suggestion.
Although the proponents of that Act recognized that the President would
have a choice of alternative methods of seeking a mediated settlement, they
also recognized that Congress alone retained the ultimate coercive power to
meet the threat of "any serious work stoppage."
n8 § §
501, 502, 64 Stat. 798, 812, 50 U. S. C. App. § § 2121, 2122.
n9 § §
502, 503, 64 Stat. 798, 812, 50 U. S. C. App. § § 2122, 2123.
n10 The provision of § 502 in S. 3936, as reported by the
Senate Committee on Banking and Currency, read as follows: "The President
is authorized, after consultation with labor and management, to establish such
principles and procedures and to take such action as he deems appropriate for
the settlement of labor disputes affecting national defense, including the
designation of such persons, boards or commissions as he may deem appropriate
to carry out the provisions of this title." That language was superseded
in the Conference Report by the language that was finally enacted. H. R. Rep. No. 3042, 81st Cong., 2d
Sess. 16, 35. The change made by
the Conference Committee was for the purpose of emphasizing the voluntary
nature of the cooperation sought from the public, labor, and management; as
Senator Ives explained under repeated questioning, "If any group were to
hold out, there would be no agreement [on action to carry out the provisions of
this title]." 96 Cong. Rec. 14071.
Chairman Maybank of the Senate Committee on Banking and Currency said,
"The labor disputes title of the Senate was accepted by the House with
amendment which merely indicates more specific avenues through which the
President may bring labor and management together." Id., at 14073.
n11 S. Rep. No. 2250, 81st Cong., 2d Sess. 41; H. R.
Rep. No. 3042, 81st Cong., 2d Sess. 35.
It is hardly necessary to note that Congressional authorization of an
agency similar to the War Labor Board does not imply a Congressional grant of
seizure power similar to that given the President specifically by § 3 of the War Labor Disputes Act of
1943. The War Labor Board, created
by § 7 of the 1943 Act, had
only administrative sanctions. See
57 Stat. 163, 166-167; see Report of Senate Committee on Labor and Public
Welfare, The Disputes Functions of the Wage Stabilization Board, 1951, S. Rep.
No. 1037, 82d Cong., 1st Sess. 6.
The seizure power given by Congress in § 3 of the 1943 Act was given to the
President, not to the War Labor Board, and was needed only when the War Labor
Board reported it had failed; the seizure power was separate and apart from the
War Labor Board machinery for settling disputes. At most the Defense Production Act does
what § 7 of the War Labor
Disputes Act did; the omission of any grant of seizure power similar to
§ 3 is too obvious not to have
been conscious. At any rate, the
Wage Stabilization Board differs substantially from the earlier War Labor
Board. In 1951 the Senate Committee
studying the disputes functions of the Wage Stabilization Board pointed out the
substantial differences between that Board and its predecessor and concluded
that "The new Wage Stabilization Board . . . does not rely on title V of
the Defense Production Act for its authority." S. Rep. No. 1037, 82d
Cong., 1st Sess., supra, at 4-6.
n12 S. Rep. No. 2250, 81st Cong., 2d Sess. 41.
n13 See 96 Cong. Rec. 14071.
n14 Id., at 12275. Just before the paragraph quoted in the
text, Senator Ives had said:
"In fact, the courts have upheld the
constitutionality of the national emergency provisions of the Labor-Management
Relations Act of 1947, which can require that workers stay on the job for at
least 80 days when a strike would seriously threaten the national health and
safety in peacetime.
"By the terms of the pending bill, the
Labor-Management Relations Act of 1947 would be controlling in matters
affecting the relationship between labor and management, including collective
bargaining. It seems to me, however, that this is as far as we should go in
legislation of this type."
That conclusion is not changed by
what occurred after the passage of the 1950 Act. Seven and a half months later, on April
21, 1951, the President by Executive Order 10233 gave the reconstituted Wage
Stabilization Board authority to investigate labor disputes either (1)
submitted voluntarily by the parties, or (2) referred to it by the
President. n15 The Board can only
make "recommendations to the parties as to fair and equitable terms of
settlement," unless the parties agree to be bound [***1178] by the Board's recommendations. About a
month thereafter Subcommittees of both the House and Senate Labor Committees
began hearings on the newly assigned disputes functions of the Board. n16
Amendments [**896] to deny the [*608] Board these functions were voted down in
the House, n17 and Congress extended the Defense Production Act without
changing Title V in relevant part. n18 The legislative history of the Defense
Production Act and its Amendments in 1951 cannot possibly be vouched for more
than Congressional awareness and tacit approval that the President had charged
the Wage Stabilization Board with authority to seek voluntary settlement of
labor disputes. The most favorable
interpretation of the statements in the committee reports can make them mean no
more than "We are glad to have all the machinery possible for the
voluntary settlement of labor disputes." In considering the Defense
Production Act Amendments, Congress was never asked to approve -- and there is
not the slightest indication that the responsible committees ever had in mind
-- seizure of plants to coerce settlement of disputes. [*609] We are not even confronted by an
inconsistency between the authority conferred on the Wage Board, as formulated
by the Executive Order, and the denial of Presidential seizure powers under the
1947 legislation. The Board has
been given merely mediatory powers similar to those of agencies created by the
Taft-Hartley Act and elsewhere, with no other sanctions for acceptance of its
recommendations than are offered by its own moral authority and the pressure of
public opinion. The Defense
Production Act and the disputes-mediating agencies created subsequent to it
still leave for solution elsewhere the question what action can be taken when
attempts at voluntary settlement fail.
To draw implied approval of seizure power from this history is to make
something out of nothing.
n15 16 Fed. Reg. 3503. The disputes functions were not
given to the Wage Stabilization Board under Title V, see note 11, supra,
but apparently under the more general Title IV, entitled "Price and Wage
Stabilization."
n16 See Hearings before a Subcommittee of the House
Committee on Education and Labor, Disputes Functions of Wage Stabilization
Board, 82d Cong., 1st Sess. (May 28-June 15, 1951); Hearings before the
Subcommittee on Labor and Labor-Management Relations of Senate Committee on
Labor and Public Welfare, Wage Stabilization and Disputes Program, 82d Cong.,
1st Sess. (May 17-June 7, 1951).
The resulting Report of the Senate Committee, S. Rep. No. 1037, 82d
Cong., 1st Sess. 9, recommended that "Title V of the Defense Production
Act be retained" and that "No statutory limitations be imposed on the
President's authority to deal with disputes through voluntary machinery;
such limitations, we believe, would infringe on the President's constitutional
power." (Emphasis added.) The Committee found, id., at 10, that the
"Wage Stabilization Board relies completely on voluntary means for
settling disputes and is, therefore, an extension of free collective
bargaining. The Board has no powers of legal compulsion." "Executive
Order No. 10233," the Committee found further, "does not in any way
run counter to the . . . Taft-Hartley Act.
It is simply an additional tool, not a substitute for these laws."
Of particular relevance to the present case, the Committee declared:
"The recommendations of the Wage Stabilization
Board in disputes certified by the President have no compulsive force. The parties are free to disregard
recommendations of the Wage Stabilization Board . . . .
"There is, of course, the President's authority
to seize plants under the Selective Service Act [a power not here used], but
this is an authority which exists independently of the Wage Stabilization Board
and its disputes-handling functions.
In any case, seizure is an extraordinary remedy, and the authority to
seize, operates whether or not there is a disputes-handling machinery." Id.,
at 5.
n17 97 Cong. Rec. 8390-8415.
n18 65 Stat. 131.
It is one thing to draw an
intention of Congress from general language and to say that Congress would have
explicitly written what is inferred, where Congress has not addressed itself to
a specific situation. It is quite
impossible, however, when Congress did specifically address [***1179] itself to a problem, as Congress did to
that of seizure, to find secreted in the interstices of legislation the very
grant of power which Congress consciously withheld. To find authority so explicitly withheld
is not merely to disregard in a particular instance the clear will of
Congress. It is to disrespect the
whole legislative process and the constitutional division of authority between
President and Congress.
The legislative history here
canvassed is relevant to yet another of the issues before us, namely, the
Government's argument that overriding public interest prevents the issuance of
the injunction despite the illegality of the seizure. I cannot accept that
contention. "Balancing the [**897] equities" when considering whether
an injunction should issue, is lawyers' jargon for choosing between conflicting
public interests. When Congress
itself has struck [*610] the balance, has defined the weight to
be given the competing interests, a court of equity is not justified in
ignoring that pronouncement under the guise of exercising equitable discretion.
Apart from his vast share of
responsibility for the conduct of our foreign relations, the embracing function
of the President is that "he shall take Care that the Laws be faithfully
executed . . . ." Art. II, §
3. The nature of that
authority has for me been comprehensively indicated by Mr. Justice Holmes. "The duty of the President to see
that the laws be executed is a duty that does not go beyond the laws or require
him to achieve more than Congress sees fit to leave within his power." Myers
v. United States, 272 U.S. 52, 177. The powers of the President are not
as particularized as are those of Congress. But unenumerated powers do not mean
undefined powers. The separation of
powers built into our Constitution gives essential content to undefined
provisions in the frame of our government.
To be sure, the content of the
three authorities of government is not to be derived from an abstract
analysis. The areas are partly
interacting, not wholly disjointed.
The Constitution is a framework for government. Therefore the way the framework has
consistently operated fairly establishes that it has operated according to its
true nature. Deeply embedded
traditional ways of conducting government cannot supplant the Constitution or
legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception
of American constitutional law to confine it to the words of the Constitution
and to disregard the gloss which life has written upon them. In short, a systematic, unbroken,
executive practice, long pursued to the knowledge of the Congress and never before
questioned, engaged in by Presidents who have also sworn to uphold the
Constitution, making as it were such exercise of power part [*611] of the structure of our government, may
be treated as a gloss on "executive Power" vested in the President by
§ 1 of Art. II.
Such was the case of United States
v. Midwest Oil Co., 236 U.S. 459. The contrast between the circumstances
of that case and this one helps to draw a clear line between authority not
explicitly conferred yet authorized to be exercised by the President and the
denial of such authority. In both
instances it was the concern of Congress under express constitutional grant to
make rules and regulations for the problems with which the President
dealt. In the one case he was
dealing with the protection of property belonging to the United States; in the
other with the enforcement of the Commerce Clause and with raising and
supporting armies and maintaining the Navy. In the [***1180] west Oil case, lands which
Congress had opened for entry were, over a period of 80 years and in 252
instances, and by Presidents learned and unlearned in the law, temporarily
withdrawn from entry so as to enable Congress to deal with such
withdrawals. No remotely comparable
practice can be vouched for executive seizure of property at a time when this
country was not at war, in the only constitutional way in which it can be at
war. It would pursue the irrelevant
to reopen the controversy over the constitutionality of some acts of Lincoln
during the Civil War. See J. G.
Randall, Constitutional Problems under Lincoln (Revised ed. 1951). Suffice it to say that he seized
railroads in territory where armed hostilities had already interrupted the
movement of troops to the beleaguered Capital, and his order was ratified by the
Congress.
The only other instances of seizures
are those during the periods of the first and second World Wars. n19 In his
eleven seizures [**898] of industrial facilities, President
Wilson [*612] acted, or at least purported to act, n20
under authority granted by Congress.
Thus his seizures cannot be adduced as interpretations by a President of
his own powers in the absence of statute.
n19 Instances of seizure by the President are
summarized in Appendix II, post, p. 620.
n20 One of President Wilson's seizures has given rise
to controversy. In his testimony in
justification of the Montgomery Ward seizure during World War II, Attorney
General Biddle argued that the World War I seizure of Smith & Wesson could
not be supported under any of the World War I statutes authorizing seizure. He
thus adduced it in support of the claim of so-called inherent Presidential
power of seizure. See Hearings before House Select Committee to Investigate the
Seizure of Montgomery Ward, 78th Cong., 2d Sess. 167-168. In so doing, he followed the ardor of
advocates in claiming everything.
In his own opinion to the President, he rested the power to seize
Montgomery Ward on the statutory authority of the War Labor Disputes Act, see
40 Op. Atty. Gen. 312 (1944), and the Court of Appeals decision upholding the
Montgomery Ward seizure confined itself to that ground. United States v. Montgomery
Ward & Co., 150 F.2d 369. What Attorney General Biddle said about Smith
& Wesson was, of course, post litem motam. Whether or not the World War I statutes
were broad enough to justify that seizure, it is clear that the taking officers
conceived themselves as moving within the scope of statute law. See Letter from Administrative Div.,
Advisory Sec. to War Dep't. Bd. of Appraisers, National Archives, Records of
the War Department, Office of the Chief of Ordnance, O. O. 004.002/194 Smith
& Wesson, Apr. 2, 1919; n. 3, Appendix II, post, p. 620. Thus, whether or not that seizure was
within the statute, it cannot properly be cited as a precedent for the one
before us. On this general subject,
compare Attorney General Knox's opinion advising President Theodore Roosevelt
against the so-called "stewardship" theory of the Presidency. National Archives, Opinions of the
Attorney General, Book 31, Oct. 10, 1902 (R. G. 60); Theodore Roosevelt,
Autobiography, 388-389; 3 Morison, The Letters of Theodore Roosevelt, 323-366.
Down to the World War II period,
then, the record is barren of instances comparable to the one before us. Of twelve seizures by President
Roosevelt prior to the enactment of the War Labor Disputes Act in June, 1943,
three were sanctioned by existing law, and six others [*613] were effected after Congress, on
December 8, 1941, had declared the existence of a state of war. In this case, reliance on the powers
that flow from declared war has been commendably disclaimed by the Solicitor
General. Thus the list of executive
assertions of the power of seizure in circumstances comparable to the present
reduces to three in the six-month period from June to December of 1941. We need not split hairs in comparing
those actions to the one before us, though much might be said by way of
differentiation. Without passing on
their validity, as we are not called upon to do, it suffices to say that these
three isolated instances do not add up, either in number, scope, duration or
contemporaneous [***1181] legal justification, to the kind of
executive construction of the Constitution revealed in the Midwest Oil
case. Nor do they come to us
sanctioned by long-continued acquiescence of Congress giving decisive weight to
a construction by the Executive of its powers.
A scheme of government like ours
no doubt at times feels the lack of power to act with complete, all-embracing,
swiftly moving authority. No doubt
a government with distributed authority, subject to be challenged in the courts
of law, at least long enough to consider and adjudicate the challenge, labors
under restrictions from which other governments are free. It has not been our tradition to envy
such governments. In any event our
government was designed to have such restrictions. The price was deemed not too high in
view of the safeguards which these restrictions afford. I know no more impressive words on this
subject than those of Mr. Justice Brandeis:
"The doctrine of the
separation of powers was adopted by the Convention of 1787, not to promote
efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction,
but, [*614] by means of the inevitable friction
incident to the distribution of the governmental powers among three
departments, to save the people from
[**899]
autocracy." Myers v. United States, 272 U.S. 52, 240,
293.
It is not a pleasant judicial duty
to find that the President has exceeded his powers and still less so when his
purposes were dictated by concern for the Nation's well-being, in the assured
conviction that he acted to avert danger.
But it would stultify one's faith in our people to entertain even a
momentary fear that the patriotism and the wisdom of the President and the
Congress, as well as the long view of the immediate parties in interest, will
not find ready accommodation for differences on matters which, however close to
their concern and however intrinsically important, are overshadowed by the
awesome issues which confront the world.
When at a moment of utmost anxiety President Washington turned to this
Court for advice, and he had to be denied it as beyond the Court's competence
to give, Chief Justice Jay, on behalf of the Court, wrote thus to the Father of
his Country:
"We exceedingly regret every
event that may cause embarrassment to your administration, but we derive
consolation from the reflection that your judgment will discern what is right,
and that your usual prudence, decision,
and firmness will surmount every obstacle to the preservation of the
rights, peace, and dignity of the United States." Letter of August 8,
1793, 3 Johnston, Correspondence and Public Papers of John Jay (1891), 489.
In reaching the conclusion that
conscience compels, I too derive consolation from the reflection that the
President and the Congress between them will continue to safeguard the heritage
which comes to them straight from George Washington.
[*615] APPENDIX I [SEE CHARTS IN ORIGINAL]
[*629] [**886contd]
[EDITOR'S NOTE: The page numbers of this document may appear to be out
of sequence; however, this
pagination accurately reflects the pagination of the original published
document.] [***1196] *MR. JUSTICE
DOUGLAS, concurring.
There can be no doubt that the
emergency which caused the President to seize these steel plants was one that
bore heavily on the country. But
the emergency did not create power; it merely marked an occasion when power
should be exercised. And the fact
that it was necessary that measures be taken to keep steel in production does
not mean that the President, rather than the Congress, had the constitutional
authority to act. The Congress, as
well as the President, is trustee of the national welfare. The President can act more quickly than
the Congress. The President with
the armed services at his disposal can move with force as well as with
speed. All executive power -- from
the reign of ancient kings to the rule of modern dictators -- has the outward
appearance of efficiency.
Legislative power, by contrast, is
slower to exercise. There must be
delay while the ponderous machinery of committees, hearings, and debates is put
into motion. That takes time; and
while the Congress slowly moves into action, the emergency may take its toll in
wages, consumer goods, war production, the standard of living of the people,
and perhaps even lives. Legislative
action may indeed often be cumbersome, time-consuming, and apparently
inefficient. But as Mr. Justice
Brandeis stated in his dissent in Myers v. United States, 272
U.S. 52, 293:
"The doctrine of the separation of powers was adopted by the
Convention of 1787, not to promote efficiency but to preclude the exercise of
arbitrary power. The purpose was,
not to avoid friction, but, by means of the inevitable friction incident to the
distribution of the governmental powers among three departments, to save the
people from autocracy."
[*630] We therefore cannot decide this case by
determining which branch of government can deal most expeditiously with the
present crisis. The answer must depend on the allocation of powers under the
Constitution. That in turn requires
an analysis of the conditions giving rise to the seizure and of the seizure
itself.
The relations between labor and
industry are one of the crucial problems of the era. Their solution will doubtless entail
many methods -- education of labor leaders and business executives; the
encouragement of mediation and conciliation by the President and the use of his
great office in the cause of industrial peace; and the passage of laws. Laws entail sanctions -- penalties for
their violation. One type of
sanction is fine and imprisonment.
Another is seizure of property.
An industry may become so lawless, so irresponsible as to endanger the
whole economy. Seizure of the
industry may be the only wise and practical solution.
The method by which industrial
peace is achieved is of vital importance not only to [**887] the parties but to society as well. A determination that sanctions should be
applied, that the hand of the law should be placed upon the parties, and that
the force of the courts should be directed against them, is an exercise of
legislative power. In some nations
that power is entrusted to the executive branch as a matter of course or in
case of emergencies. We chose another course. We chose to place the legislative power
of the Federal Government in the Congress.
The language of the Constitution is not ambiguous or qualified. It places not some legislative
power in the Congress; Article I, Section 1 says "All legislative Powers
herein granted shall be vested in a Congress of the United States, which shall
consist of a Senate and House of Representatives."
The legislative nature of the
action [***1197] taken by the President seems to me to be
clear. When the United States [*631] takes over an industrial plant to settle
a labor controversy, it is condemning property. The seizure of the plant is a taking in
the constitutional sense. United
States v. Pewee Coal Co., 341 U.S. 114. A permanent taking would
amount to the nationalization of the industry. A temporary taking falls short of that
goal. But though the seizure is
only for a week or a month, the condemnation is complete and the United States
must pay compensation for the temporary possession. United States v. General
Motors Corp., 323 U.S. 373; United States v. Pewee Coal Co.,
supra.
The power of the Federal
Government to condemn property is well established. Kohl v. United States, 91
U.S. 367. It can condemn for any public purpose; and I have no doubt but that
condemnation of a plant, factory, or industry in order to promote industrial
peace would be constitutional. But
there is a duty to pay for all property taken by the Government. The command of the Fifth Amendment is
that no "private property be taken for public use, without just
compensation." That constitutional requirement has an important bearing on
the present case.
The President has no power to
raise revenues. That power is in
the Congress by Article I, Section 8 of the Constitution. The President might seize and the
Congress by subsequent action might ratify the seizure. n1 But until and unless
Congress acted, no condemnation would be lawful. The branch of government that has the
power to pay compensation for a seizure is the only one able to authorize a
seizure or make lawful one that
[*632] the President has
effected. n2 That seems to me to be the necessary result of the condemnation
provision in the Fifth Amendment.
It squares with the theory of checks and balances expounded by MR.
JUSTICE BLACK in the opinion of the Court in which I join.
n1 What a President may do as a matter of expediency
or extremity may never reach a definitive constitutional decision. For example, President Lincoln suspended
the writ of habeas corpus, claiming the constitutional right to do so. See Ex parte Merryman, 17 Fed.
Cas. No. 9,487. Congress ratified his action by the Act of March 3, 1863. 12 Stat. 755.
n2 Mr. Justice Brandeis, speaking for the Court in United
States v. North American Co., 253 U.S. 330, 333, stated that the
basis of the Government's liability for a taking of property was legislative
authority, "In order that the Government shall be liable it must appear
that the officer who has physically taken possession of the property was duly
authorized so to do, either directly by Congress or by the official upon whom
Congress conferred the power."
That theory explains cases like United States
v. Causby, 328 U.S. 256, where the acts of the officials resulting in a
taking were acts authorized by the Congress, though the Congress had not
treated the acts as one of appropriation of private property.
Wartime seizures by the military in connection with
military operations (cf. United
States v. Russell, 13 Wall. 623) are also in a different category.
If we sanctioned the present
exercise of power by the President, we would be expanding [**888] Article II of the Constitution and
rewriting it to suit the political conveniences of the present emergency.
Article II which vests the "executive Power" in the President defines
that power with particularity.
Article II, Section 2 makes the Chief Executive the Commander in Chief
of the Army and Navy. But our history and tradition rebel at the thought that
the grant of military power carries with it authority over civilian
affairs. Article II, Section 3
provides that the President [***1198] shall "from time to time give to
the Congress Information of the State of the Union, and recommend to their
Consideration such Measures as he shall judge necessary and expedient."
The power to recommend legislation, granted to the President, serves only to
emphasize that it is his function to recommend and that it is the function of
the Congress to legislate. Article
II, [*633] Section 3 also provides that the
President "shall take Care that the Laws be faithfully executed."
But, as MR. JUSTICE BLACK and MR. JUSTICE FRANKFURTER point out, the power to
execute the laws starts and ends with the laws Congress has enacted.
The great office of President is
not a weak and powerless one. The
President represents the people and is their spokesman in domestic and foreign
affairs. The office is respected
more than any other in the land. It gives a position of leadership that is
unique. The power to formulate
policies and mould opinion inheres in the Presidency and conditions our
national life. The impact of the
man and the philosophy he represents may at times be thwarted by the Congress. Stalemates may occur when emergencies
mount and the Nation suffers for lack of harmonious, reciprocal action between
the White House and Capitol Hill.
That is a risk inherent in our system of separation of powers. The tragedy of such stalemates might be
avoided by allowing the President the use of some legislative authority. The Framers with memories of the
tyrannies produced by a blending of executive and legislative power rejected
that political arrangement. Some
future generation may, however, deem it so urgent that the President have
legislative authority that the Constitution will be amended. We could not sanction the seizures and
condemnations of the steel plants in this case without reading Article II as
giving the President not only the power to execute the laws but to make
some. Such a step would most
assuredly alter the pattern of the Constitution.
We pay a price for our system of
checks and balances, for the distribution of power among the three branches of
government. It is a price that
today may seem exorbitant to many.
Today a kindly President uses the seizure power to effect a wage
increase and to keep the steel furnaces in production. Yet tomorrow another [*634] President might use the same power to
prevent a wage increase, to curb trade-unionists, to regiment labor as
oppressively as industry thinks it has been regimented by this seizure.
[**869contd]
[EDITOR'S NOTE: The page numbers of this document may appear to be out
of sequence; however, this
pagination accurately reflects the pagination of the original published
documents.] MR. JUSTICE JACKSON, concurring in the judgment and opinion of the
Court.
That comprehensive and undefined
presidential powers hold both practical advantages and grave dangers for the
country will impress anyone who has served as legal adviser to a President in
time of transition and public anxiety.
While an interval of detached reflection may temper teachings of that
experience, they probably are a more realistic influence on my views than the
conventional materials of judicial decision which seem unduly to accentuate
doctrine and legal fiction. But as
we approach the question of presidential power, we half overcome mental hazards
by recognizing them. The opinions
of judges, no less than executives and publicists, often suffer the infirmity
of confusing the issue of a power's validity with the cause it is invoked to
promote, of confounding the permanent executive office with its temporary
occupant. The tendency is strong to
emphasize transient results upon policies -- such as wages or stabilization --
and lose sight of enduring consequences upon the balanced power structure of
our Republic.
A judge, like an executive
adviser, may be surprised at the poverty of really useful and unambiguous authority [***1199] applicable to concrete problems of
executive power as they actually present themselves. Just what our forefathers did envision,
or [**870] would have envisioned had they foreseen
modern conditions, must be divined from materials almost as enigmatic as the
dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate
and scholarly speculation yields no net result but only supplies more or less
apt quotations from [*635] respected sources on each side of any
question. They largely cancel each
other. n1 And court decisions are indecisive because of the judicial practice
of dealing with the largest questions in the most narrow way.
n1 A Hamilton may be matched against a Madison. 7 The Works of Alexander Hamilton,
76-117; 1 Madison, Letters and Other Writings, 611-654. Professor Taft is counterbalanced by
Theodore Roosevelt. Taft, Our Chief
Magistrate and His Powers, 139-140; Theodore Roosevelt, Autobiography,
388-389. It even seems that
President Taft cancels out Professor Taft.
Compare his "Temporary Petroleum Withdrawal No. 5" of
September 27, 1909, United States v. Midwest Oil Co., 236 U.S.
459, 467, 468, with his appraisal of executive power in "Our Chief
Magistrate and His Powers" 139-140.
The actual art of governing under
our Constitution does not and cannot conform to judicial definitions of the
power of any of its branches based on isolated clauses or even single Articles
torn from context. While the
Constitution diffuses power the better to secure liberty, it also contemplates
that practice will integrate the dispersed powers into a workable
government. It enjoins upon its
branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but
fluctuate, depending upon their disjunction or conjunction with those of
Congress. We may well begin by a
somewhat over-simplified grouping of practical situations in which a President
may doubt, or others may challenge, his powers, and by distinguishing roughly
the legal consequences of this factor of relativity.
1. When the President acts
pursuant to an express or implied authorization of Congress, his authority is
at its maximum, for it includes all that he possesses in his own right plus all
that Congress can delegate. n2
[***1200] In these
circumstances, [*636] and in these only, may he be said (for
what it may [**871] be worth) to personify the federal
sovereignty. If his act is held
unconstitutional under these circumstances, it usually means that the Federal
Government [*637] as an undivided whole lacks power. A seizure executed by the President
pursuant to an Act of Congress would be supported by the strongest of
presumptions and the widest latitude of judicial interpretation, and the burden
of persuasion would rest heavily upon any who might attack it.
n2 It is in this class of cases that we find the
broadest recent statements of presidential power, including those relied on
here. United States v. Curtiss-Wright
Corp., 299 U.S. 304, involved, not the question of the President's power to
act without congressional authority, but the question of his right to act under
and in accord with an Act of Congress.
The constitutionality of the Act under which the President had proceeded
was assailed on the ground that it delegated legislative powers to the
President. Much of the Court's
opinion is dictum, but the ratio decidendi is contained in the
following language:
"When the President is to be authorized by
legislation to act in respect of a matter intended to affect a situation in
foreign territory, the legislator properly bears in mind the important
consideration that the form of the President's action -- or, indeed, whether he
shall act at all -- may well depend, among other things, upon the nature of the
confidential information which he has or may thereafter receive, or upon the
effect which his action may have upon our foreign relations. This consideration, in connection with
what we have already said on the subject, discloses the unwisdom of requiring
Congress in this field of governmental power to lay down narrowly definite
standards by which the President is to be governed. As this court said in Mackenzie
v. Hare, 239 U.S. 299, 311, 'As a government, the United States is
invested with all the attributes of sovereignty. As it has the character of nationality
it has the powers of nationality, especially those which concern its relations
and intercourse with other countries.
We should hesitate long before limiting or embarrassing such powers.'
(Italics supplied.)" Id., at 321-322.
That case does not solve the present controversy. It recognized internal and external
affairs as being in separate categories, and held that the strict limitation
upon congressional delegations of power to the President over internal affairs
does not apply with respect to delegations of power in external affairs. It was intimated that the President
might act in external affairs without congressional authority, but not that he
might act contrary to an Act of Congress.
Other examples of wide definition of presidential
powers under statutory authorization are Chicago & Southern Air Lines,
Inc. v. Waterman Steamship Corp., 333 U.S. 103, and Hirabayashi
v. United States, 320 U.S. 81. But see, Jecker v. Montgomery,
13 How. 498, 515; United States v. Western Union Telegraph Co.,
272 F. 311; aff'd, 272 F. 893; rev'd on consent of the parties, 260 U.S. 754; United
States Harness Co. v. Graham, 288 F. 929.
2. When the President acts in
absence of either a congressional grant or denial of authority, he can only
rely upon his own independent powers, but there is a zone of twilight in which
he and Congress may have concurrent authority, or in which its distribution is
uncertain. Therefore, congressional
inertia, indifference or quiescence may sometimes, at least as a practical
matter, enable, if not invite, measures on independent presidential
responsibility. In this area, any
actual test of power is likely to depend on the imperatives of events and
contemporary imponderables rather than on abstract theories of law. n3
n3 Since the Constitution implies that the writ of
habeas corpus may be suspended in certain circumstances but does not say by
whom, President Lincoln asserted and maintained it as an executive function in the
face of judicial challenge and doubt.
Ex parte Merryman, 17 Fed. Cas. 144; Ex parte Milligan, 4
Wall. 2, 125; see Ex parte Bollman, 4 Cranch 75, 101. Congress
eventually ratified his action.
Habeas Corpus Act of March 3, 1863, 12 Stat. 755. See Hall, Free Speech in War Time, 21
Col. L. Rev. 526. Compare Myers v. United States, 272 U.S. 52,
with Humphrey's Executor v. United States, 295 U.S. 602; and Hirabayashi
v. United States, 320 U.S. 81, with the case at bar. Also compare Ex parte Vallandigham,
1 Wall. 243, with Ex parte Milligan, supra.
3. When the President takes
measures incompatible with the expressed or implied will of Congress, his power
is at its lowest ebb, for then he can rely only upon his own constitutional
powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive
presidential control in such a case only by disabling [*638] the Congress from acting upon the
subject. n4 Presidential claim to a power at once so conclusive and preclusive
must be scrutinized with caution, for what is at stake is the equilibrium
established by our constitutional system.
n4 President Roosevelt's effort to remove a Federal
Trade Commissioner was found to be contrary to the policy of Congress and
impinging upon an area of congressional control, and so his removal power was
cut down accordingly. Humphrey's
Executor v. United States, 295 U.S. 602. However, his exclusive
power of removal in executive agencies, affirmed in Myers v. United
States, 272 U.S. 52, continued to be asserted and maintained. Morgan v. Tennessee Valley
Authority, 115 F.2d 990, cert. denied, 312 U.S. 701; In re Power to
Remove Members of the Tennessee Valley Authority, 39 Op. Atty. Gen. 145;
President Roosevelt's Message to Congress of March 23, 1938, The Public Papers
and Addresses of Franklin D. Roosevelt, 1938 (Rosenman), 151.
Into which of these
classifications does this executive seizure of the steel industry fit? It is
eliminated from the first by admission, for it [***1201] is conceded that no congressional
authorization exists for this seizure. That takes away also the support of the
many precedents and declarations which
[**872] were made in
relation, and must be confined, to this category. n5
n5 The oft-cited Louisiana Purchase had nothing to do
with the separation of powers as between the President and Congress, but only
with state and federal power. The
Louisiana Purchase was subject to rather academic criticism, not upon the
ground that Mr. Jefferson acted without authority from Congress, but that
neither had express authority to expand the boundaries of the United States by
purchase or annexation. Mr.
Jefferson himself had strongly opposed the doctrine that the States' delegation
of powers to the Federal Government could be enlarged by resort to implied
powers. Afterwards in a letter to
John Breckenridge, dated August 12, 1803, he declared:
"The Constitution has made no provision for our
holding foreign territory, still less for incorporating foreign nations into
our Union. The executive in seizing
the fugitive occurrence which so much advances the good of their country, have
done an act beyond the Constitution.
The Legislature in casting behind them metaphysical subtleties, and risking
themselves like faithful servants, must ratify and pay for it, and throw
themselves on their country for doing for them unauthorized, what we know they
would have done for themselves had they been in a situation to do it." 10
The Writings of Thomas Jefferson 407, 411.
[*639]
Can it then be defended
under flexible tests available to the second category? It seems clearly eliminated from that
class because Congress has not left seizure of private property an open field
but has covered it by three statutory policies inconsistent with this seizure.
In cases where the purpose is to supply needs of the Government itself, two
courses are provided: one, seizure of a plant which fails to comply with
obligatory orders placed by the Government; n6 another, condemnation of
facilities, including temporary use under the power of eminent domain. n7 The
third is applicable where it is the general economy of the country that is to
be protected rather than exclusive governmental interests. n8 None of these
were invoked. In choosing a
different and inconsistent way of his own, the President cannot claim that it
is necessitated or invited by failure of Congress to legislate upon the
occasions, grounds and methods for seizure of industrial properties.
n6 Selective Service Act of 1948, § 18, 62 Stat. 625, 50 U. S. C. App.
(Supp. IV) § 468 (c).
n7 Defense Production Act of 1950, § 201, 64 Stat. 799, amended, 65 Stat.
132, 50 U. S. C. App. (Supp. IV) §
2081. For the latitude of the condemnation power which underlies this
Act, see United States v. Westinghouse Co., 339 U.S. 261, and
cases therein cited.
n8 Labor Management Relations Act, 1947, §
§ 206-210, 61 Stat. 136, 155,
156, 29 U. S. C. (Supp. IV) § §
141, 176-180. The analysis,
history and application of this Act are fully covered by the opinion of the
Court, supplemented by that of MR. JUSTICE FRANKFURTER and of MR. JUSTICE
BURTON, in which I concur.
[*640] This leaves the current seizure to be
justified only by the severe tests under the third grouping, where it can be
supported only by any remainder of executive power after subtraction of such
powers as Congress may have over the subject. In short, we can sustain the President
only by holding that seizure of such strike-bound industries is within his
domain and beyond control by Congress.
Thus, this Court's first review of such seizures occurs under
circumstances which leave presidential power most vulnerable to attack and in
the least favorable of possible constitutional postures.
I did not suppose, and I am not
persuaded, that history leaves it open to question, at least in the courts,
that the executive branch, like the Federal Government as a whole, possesses
only delegated powers. The purpose of the Constitution was not only to grant
power, but to keep it from getting
[***1202] out of hand. However, because the President does not
enjoy unmentioned powers does not mean that the mentioned ones should be
narrowed by a niggardly construction.
Some clauses could be made almost unworkable, as well as immutable, [**873] by refusal to indulge some latitude of
interpretation for changing times.
I have heretofore, and do now, give to the enumerated powers the scope
and elasticity afforded by what seem to be reasonable, practical implications
instead of the rigidity dictated by a doctrinaire textualism.
The Solicitor General seeks the
power of seizure in three clauses of the Executive Article, the first reading,
"The executive Power shall be vested in a President of the United States
of America." Lest I be thought to exaggerate, I quote the interpretation
which his brief puts upon it: "In our view, this clause constitutes a
grant of all the executive powers of which the Government is capable." If
that be true, it is difficult to see why the [*641] forefathers bothered to add several
specific items, including some trifling ones. n9
n9 ". . . he may require the Opinion, in writing,
of the principal Officer in each of the executive Departments, upon any Subject
relating to the Duties of their respective Offices . . . ." U.S. Const., Art.
II, § 2. He ". . . shall Commission all the
Officers of the United States." U.S. Const., Art. II, § 3.
Matters such as those would seem to be inherent in the Executive if
anything is.
The example of such unlimited
executive power that must have most impressed the forefathers was the
prerogative exercised by George III, and the description of its evils in the
Declaration of Independence leads me to doubt that they were creating their new
Executive in his image. Continental
European examples were no more appealing.
And if we seek instruction from our own times, we can match it only from
the executive powers in those governments we disparagingly describe as
totalitarian. I cannot accept the
view that this clause is a grant in bulk of all conceivable executive power but
regard it as an allocation to the presidential office of the generic powers
thereafter stated.
The clause on which the Government
next relies is that "The President shall be Commander in Chief of the Army
and Navy of the United States . . . ." These cryptic words have given rise
to some of the most persistent controversies in our constitutional
history. Of course, they imply
something more than an empty title.
But just what authority goes with the name has plagued presidential advisers
who would not waive or narrow it by nonassertion yet cannot say where it begins
or ends. It undoubtedly puts the
Nation's armed forces under presidential command. Hence, this loose appellation is
sometimes advanced as support for any presidential action, internal or
external, involving use of force, the
[*642] idea being that it
vests power to do anything, anywhere, that can be done with an army or navy.
That seems to be the logic of an
argument tendered at our bar -- that the President having, on his own
responsibility, sent American troops abroad derives from that act
"affirmative power" to seize the means of producing a supply of steel
for them. To quote, "Perhaps
the most forceful illustration of the scope of Presidential power in this connection
is the fact that American troops in Korea, whose safety and effectiveness are
so directly involved here, were sent to the field by an exercise of the
President's constitutional powers." Thus, it is said, he has invested
himself with "war powers."
I cannot foresee all that it might
entail if the Court should indorse this argument. Nothing in our Constitution is plainer
than that declaration of a war is entrusted only to Congress. Of course, a state of war may in fact
exist without a formal [***1203] declaration. But no doctrine that the Court could
promulgate would seem to me more sinister and alarming than that a President
whose conduct of foreign affairs is so largely uncontrolled, and often even is
unknown, can vastly enlarge his mastery over the internal affairs of the
country by his own commitment of the Nation's armed forces to some foreign
venture. n10 [*643] I do not, however, [**874] find it necessary or appropriate to
consider the legal status of the Korean enterprise to discountenance argument
based on it.
n10 How widely this doctrine espoused by the
President's counsel departs from the early view of presidential power is shown
by a comparison. President
Jefferson, without authority from Congress, sent the American fleet into the
Mediterranean, where it engaged in a naval battle with the Tripolitan
fleet. He sent a message to
Congress on December 8, 1801, in which he said:
"Tripoli, the least considerable of the Barbary
States, had come forward with demands unfounded either in right or in compact,
and had permitted itself to denounce war on our failure to comply before a
given day. The style of the demand
admitted but one answer. I sent a small
squadron of frigates into the Mediterranean . . . with orders to protect our
commerce against the threatened attack. . . . Our commerce in the Mediterranean was
blockaded and that of the Atlantic in peril. . . . One of the Tripolitan cruisers having
fallen in with and engaged the small schooner Enterprise, . . . was
captured, after a heavy slaughter of her men . . . . Unauthorized by the Constitution,
without the sanction of Congress, to go beyond the line of defense, the vessel,
being disabled from committing further hostilities, was liberated with its
crew. The Legislature will doubtless
consider whether, by authorizing measures of offense also, they will place our
force on an equal footing with that of its adversaries. I communicate all material information
on this subject, that in the exercise of this important function confided by
the Constitution to the Legislature exclusively their judgment may form itself
on a knowledge and consideration of every circumstance of weight." I
Richardson, Messages and Papers of the Presidents, 314.
Assuming that we are in a war de
facto, whether it is or is not a war de jure, does that empower the
Commander in Chief to seize industries he thinks necessary to supply our army?
The Constitution expressly places in Congress power "to raise and support
Armies" and "to provide and maintain a Navy." (Emphasis
supplied.) This certainly lays upon Congress primary responsibility for
supplying the armed forces. Congress alone controls the raising of revenues and
their appropriation and may determine in what manner and by what means they
shall be spent for military and naval procurement. I suppose no one would doubt that
Congress can take over war supply as a Government enterprise. On the other hand, if Congress sees fit
to rely on free private enterprise collectively bargaining with free labor for
support and maintenance of our armed forces, can the Executive, because of
lawful disagreements incidental to that process, seize the facility for
operation upon Government-imposed terms?
There are indications that the
Constitution did not contemplate that the title Commander in Chief of
the [*644] Army and Navy will constitute him
also Commander in Chief of the country, its industries and its
inhabitants. He has no monopoly of
"war powers," whatever they are.
While Congress cannot deprive the President of the command of the army
and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for
the "Government and Regulation of land and naval Forces," by which it
may to some unknown extent impinge upon even command functions.
That military powers of the
Commander in Chief were not to supersede representative government of internal
affairs seems obvious from the Constitution and from elementary American
history. Time out of [***1204] mind, and even now in many parts of the
world, a military commander can seize private housing to shelter his
troops. Not so, however, in the
United States, for the Third Amendment says, "No Soldier shall, in time of
peace be quartered in any house, without the consent of the Owner, nor in time
of war, but in a manner to be prescribed by law." Thus, even in war time,
his seizure of needed military housing must be authorized by Congress. It also was expressly left to Congress
to "provide for calling forth the Militia to execute the Laws of the
Union, suppress Insurrections and repel Invasions . . . ." n11 Such a
limitation on the command power, written at a time when the militia rather than
a standing army was contemplated as the
[**875] military weapon of
the Republic, underscores the Constitution's policy that Congress, not the
Executive, should control utilization of the war power as an instrument of
domestic policy. Congress,
fulfilling that function, has authorized the President to use the army to
enforce certain civil rights. n12 On the other hand, Congress has forbidden him
to use the army for the purpose
[*645] of executing general
laws except when expressly authorized by the Constitution or by Act of
Congress. n13
n11 U.S. Const., Art. I, § 8, cl. 15.
n12 14 Stat. 29, 16 Stat. 143, 8 U. S. C. § 55.
n13 20 Stat. 152, 10 U. S. C. § 15.
While broad claims under this
rubric often have been made, advice to the President in specific matters
usually has carried overtones that powers, even under this head, are measured
by the command functions usual to the topmost officer of the army and navy.
Even then, heed has been taken of any efforts of Congress to negative his
authority. n14
n14 In 1940, President Roosevelt proposed to transfer
to Great Britain certain overage destroyers and small patrol boats then under
construction. He did not presume to
rely upon any claim of constitutional power as Commander in Chief. On the contrary, he was advised that
such destroyers -- if certified not to be essential to the defense of the
United States -- could be "transferred, exchanged, sold, or otherwise
disposed of," because Congress had so authorized him. Accordingly, the destroyers were
exchanged for air bases. In the
same opinion, he was advised that Congress had prohibited the release or transfer
of the so-called "mosquito boats" then under construction, so those
boats were not transferred. Acquisition
of Naval and Air Bases in Exchange for Over-age Destroyers, 39 Op. Atty.
Gen. 484. See also Training of British Flying Students in the United States,
40 Op. Atty. Gen. 58.
We should not use this occasion to
circumscribe, much less to contract, the lawful role of the President as
Commander in Chief. I should
indulge the widest latitude of interpretation to sustain his exclusive function
to command the instruments of national force, at least when turned against the
outside world for the security of our society. But, when it is turned inward, not
because of rebellion but because of a lawful economic struggle between industry
and labor, it should have no such indulgence. His command power is not such an
absolute as might be implied from that office in a militaristic system but is
subject to limitations consistent with a constitutional Republic whose law and
policy-making branch [*646] is a representative Congress. The purpose of lodging dual titles in
one man was to insure that the civilian would control the military, not to
enable the military to subordinate the presidential office. No penance would ever expiate the sin
against free government of holding that a President can escape control of
executive powers by law through assuming his military role. What the power of command may include I
do not try to envision, but I think it is not a military prerogative, without
support of law, to seize persons or property because they are important or even
essential for the military and naval establishment.
The third clause in which the
Solicitor General finds seizure powers
[***1205] is that "he
shall take Care that the Laws be faithfully executed . . . ." n15 That
authority must be matched against words of the Fifth Amendment that "No
person shall be . . . deprived of life, liberty or property, without due
process of law . . . ." One gives a governmental authority that reaches so
far as there is law, the other gives a private right that authority shall go no
farther. These signify about all
there is of the principle that ours is a government of laws, not of men, and
that we submit ourselves to rulers only if under rules.
n15 U.S. Const., Art. II, § 3.
The Solicitor General lastly
grounds support of the seizure upon nebulous, inherent powers never expressly
granted but said to have accrued to the office from the customs and claims of
preceding administrations. The plea
is for a resulting power to deal
[**876] with a crisis or an
emergency according to the necessities of the case, the unarticulated
assumption being that necessity knows no law.
Loose and irresponsible use of
adjectives colors all nonlegal and much legal discussion of presidential
powers. [*647] "Inherent" powers,
"implied" powers, "incidental" powers, "plenary"
powers, "war" powers and "emergency" powers are used, often
interchangeably and without fixed or ascertainable meanings.
The vagueness and generality of
the clauses that set forth presidential powers afford a plausible basis for
pressures within and without an administration for presidential action beyond
that supported by those whose responsibility it is to defend his actions in
court. The claim of inherent and
unrestricted presidential powers has long been a persuasive dialectical weapon
in political controversy. While it
is not surprising that counsel should grasp support from such unadjudicated claims
of power, a judge cannot accept self-serving press statements of the attorney
for one of the interested parties as authority in answering a constitutional
question, even if the advocate was himself. But prudence has counseled that actual
reliance on such nebulous claims stop short of provoking a judicial test. n16
n16 President Wilson, just before our entrance into
World War I, went before the Congress and asked its approval of his decision to
authorize merchant ships to carry defensive weapons. He said:
"No doubt I already possess that authority
without special warrant of law, by the plain implication of my constitutional
duties and powers; but I prefer, in the present circumstances, not to act upon
general implication. I wish to feel
that the authority and the power of the Congress are behind me in whatever it
may become necessary for me to do.
We are jointly the servants of the people and must act together and in
their spirit, so far as we can divine and interpret it." XVII Richardson, op.
cit., 8211.
When our Government was itself in need of shipping
whilst ships flying the flags of nations overrun by Hitler, as well as
belligerent merchantmen, were immobilized in American harbors where they had
taken refuge, President Roosevelt did not assume that it was in his power to
seize such foreign vessels to make up our own deficit. He informed Congress: "I am
satisfied, after consultation with the heads of the interested departments and
agencies of the Government, that we should have statutory authority to take
over any such vessels as our needs may require . . . ." 87 Cong. Rec. 3072
(77th Cong., 1st Sess.); The Public Papers and Addresses of Franklin D.
Roosevelt, 1941 (Rosenman), 94. The
necessary statutory authority was shortly forthcoming. 55 Stat. 242.
In his first inaugural address President Roosevelt
pointed out two courses to obtain legislative remedies, one being to enact
measures he was prepared to recommend, the other to enact measures "the
Congress may build out of its experience and wisdom." He continued,
"But in the event that the Congress shall fail to take one of these two
courses, and in the event that the national emergency is still critical, I
shall not evade the clear course of duty that will then confront me. I shall ask the Congress for the one
remaining instrument to meet the crisis -- broad Executive power to wage a
war against the emergency, as great as the power that would be given to me if
we were in fact invaded by a foreign foe." (Emphasis supplied.) The Public
Papers and Addresses of Franklin D. Roosevelt, 1933 (Rosenman), 15.
On March 6, 1933, President Roosevelt proclaimed the
Bank Holiday. The Proclamation did
not invoke constitutional powers of the Executive but expressly and solely
relied upon the Act of Congress of October 6, 1917, 40 Stat. 411, § 5 (b), as amended. He relied steadily on legislation to
empower him to deal with economic emergency. The Public Papers and Addresses of
Franklin D. Roosevelt, 1933 (Rosenman), 24.
It is interesting to note Holdsworth's comment on the
powers of legislation by proclamation when in the hands of the Tudors. "The extent to which they could be
legally used was never finally settled in this century, because the Tudors made
so tactful a use of their powers that no demand for the settlement of this
question was raised." 4 Holdsworth, History of English Law, 104.
[*648] [***1206] The Solicitor General, acknowledging
that Congress has never authorized the
[**877] seizure here, says
practice of prior Presidents has authorized it. He seeks color of legality from claimed
executive precedents, chief of which is President Roosevelt's seizure on June
9, 1941, of the California plant of the North American Aviation Company. Its superficial similarities with the
present case, upon analysis, yield to distinctions so decisive that it [*649] cannot be regarded as even a precedent,
much less an authority for the present seizure. n17
n17 The North American Aviation Company was under
direct and binding contracts to supply defense items to the Government. No such contracts are claimed to exist
here. Seizure of plants which
refused to comply with Government orders had been expressly authorized by
Congress in § 9 of the
Selective Service Act of 1940, 54 Stat. 885, 892, so that the seizure of the
North American plant was entirely consistent with congressional policy. The company might have objected on
technical grounds to the seizure, but it was taken over with acquiescence,
amounting to all but consent, of the owners who had admitted that the situation
was beyond their control. The strike
involved in the North American case was in violation of the union's collective
agreement and the national labor leaders approved the seizure to end the
strike. It was described as in the
nature of an insurrection, a Communist-led political strike against the
Government's lend-lease policy.
Here we have only a loyal, lawful, but regrettable economic disagreement
between management and labor. The
North American plant contained government-owned machinery, material and goods
in the process of production to which workmen were forcibly denied access by
picketing strikers. Here no
Government property is protected by the seizure. See New York Times of June 10,
1941, pp. 1, 14 and 16, for substantially accurate account of the proceedings
and the conditions of violence at the North American plant.
The North American seizure was regarded as an
execution of congressional policy.
I do not regard it as a precedent for this, but, even if I did, I should
not bind present judicial judgment by earlier partisan advocacy.
Statements from a letter by the Attorney General to
the Chairman of the Senate Committee on Labor and Public Welfare, dated
February 2, 1949, with reference to pending labor legislation, while not cited
by any of the parties here, are sometimes quoted as being in support of the
"inherent" powers of the President. The proposed bill contained a mandatory
provision that during certain investigations the disputants in a labor dispute
should continue operations under the terms and conditions of employment existing
prior to the beginning of the dispute.
It made no provision as to how continuance should be enforced and
specified no penalty for disobedience.
The Attorney General advised that in appropriate circumstances the
United States would have access to the courts to protect the national health,
safety and welfare. This was the
rule laid down by this Court in Texas & N. O. R. Co. v. Brotherhood
of Railway Clerks, 281 U.S. 548. The Attorney General observed:
"However, with regard to the question of the power
of the Government under Title III, I might point out that the inherent power of
the President to deal with emergencies that affect the health, safety and
welfare of the entire Nation is exceedingly great. See Opinion of Attorney General Murphy
of October 4, 1939 (39 Op. A. G. 344, 347); United States v. United
Mine Workers of America, 330 U.S. 258 (1947)." See Hearings before the
Senate Committee on Labor and Public Welfare on S. 249, 81st Cong., 1st Sess.
263.
Regardless of the general reference to "inherent
powers," the citations were instances of congressional authorization. I do not suppose it is open to doubt
that power to see that the laws are faithfully executed was ample basis for the
specific advice given by the Attorney General in this letter.
[***1207]
The appeal, however, that
we declare the existence of inherent powers ex necessitate to meet an
emergency asks us to do what many think would be wise, although [*650] it is something the forefathers
omitted. They knew what emergencies
were, knew the pressures they engender for authoritative action, knew, too, how
they afford a ready pretext for usurpation. We may also suspect that they suspected
that emergency powers would tend to kindle emergencies. Aside from suspension
of the privilege of [**878] the writ of habeas corpus in time of
rebellion or invasion, when the public safety may require it, n18 they made no
express provision for exercise of extraordinary authority because of a crisis.
n19 I do not think we rightfully may so amend their work, and, if we could, I
am not convinced it would be wise to do so, although many modern nations have
forthrightly recognized that war and economic crises may upset the normal
balance between liberty and authority.
[*651] Their experience with
emergency powers may not be irrelevant to the argument here that we should say
that the Executive, of his own volition, can invest himself with undefined
emergency powers.
n18 U.S. Const., Art. I, § 9, cl. 2.
n19 I exclude, as in a very limited category by
itself, the establishment of martial law.
Cf. Ex parte Milligan,
4 Wall. 2; Duncan v. Kahanamoku, 327 U.S. 304.
Germany, after the First World
War, framed the Weimar Constitution, designed to secure her liberties in the
Western tradition. However, the
President of the Republic, without concurrence of the Reichstag, was empowered
temporarily to suspend any or all individual rights if public safety and order
were seriously disturbed or endangered.
This proved a temptation to every government, whatever its shade of
opinion, and in 13 years suspension of rights was invoked on more than 250
occasions. Finally, Hitler
persuaded President Von Hindenberg to suspend all such rights, and they were
never restored. n20
n20 1 Nazi Conspiracy and Aggression 126-127;
Rossiter, Constitutional Dictatorship, 33-61; Brecht, Prelude to Silence, 138.
The French Republic provided for a
very different kind of emergency government known as the "state of
siege." It differed from the German emergency dictatorship, particularly
in that emergency powers could not be assumed at will by the Executive but
could only be granted as a parliamentary measure. And it did not, as in Germany, result in
a suspension or abrogation of law but was a legal institution governed by special
legal rules and terminable by parliamentary authority. n21
n21 Rossiter, Constitutional Dictatorship, 117-129.
Great Britain also has fought both
World Wars under a sort of temporary dictatorship created by legislation. n22
As Parliament is not bound by written constitutional limitations, it
established a crisis government simply by
[*652] delegation to its
Ministers of a larger measure than usual of its own unlimited power, which is
exercised under its supervision by Ministers whom it may dismiss. This has been called the
"high-water mark in the voluntary surrender of liberty," but, as
Churchill put it, "Parliament stands custodian of these surrendered
liberties, and its most sacred duty will be to restore them in their
fullness [***1208] when victory has crowned our exertions
and our perseverance." n23 Thus, parliamentary control made emergency
powers compatible with freedom.
n22 Defence of the Realm Act, 1914, 4 & 5 Geo. V,
c. 29, as amended, c. 63; Emergency Powers (Defence) Act, 1939, 2 & 3 Geo.
VI, c. 62; Rossiter, Constitutional Dictatorship, 135-184.
n23 Churchill, The Unrelenting Struggle, 13. See also id., at 279-281.
This contemporary foreign
experience may be inconclusive as to the wisdom of lodging emergency powers
somewhere in a modern government.
But it suggests that emergency powers are consistent with free
government only when their control is lodged elsewhere than in the Executive
who exercises them. That is the
safeguard that would be nullified by our adoption of the "inherent
powers" formula. Nothing in my
experience convinces me that such risks are warranted by any real necessity,
although such powers would, of course, be an executive convenience.
In the practical working of our
Government we already have evolved a technique within the framework of the
Constitution by which normal executive powers may be considerably expanded to
meet an emergency. Congress may and has granted extraordinary [**879] authorities which lie dormant in normal
times but may be called into play by the Executive in war or upon proclamation
of a national emergency. In 1939, upon congressional request, the Attorney
General listed ninety-nine such separate statutory grants by Congress of
emergency or wartime executive powers. n24 They were invoked from time to time
as need appeared. Under this
procedure we retain Government
[*653] by law -- special,
temporary law, perhaps, but law nonetheless. The public may know the extent and
limitations of the powers that can be asserted, and persons affected may be
informed from the statute of their rights and duties.
n24 39 Op. Atty. Gen. 348.
In view of the ease, expedition
and safety with which Congress can grant and has granted large emergency
powers, certainly ample to embrace this crisis, I am quite unimpressed with the
argument that we should affirm possession of them without statute. Such power either has no beginning or it
has no end. If it exists, it need
submit to no legal restraint. I am
not alarmed that it would plunge us straightway into dictatorship, but it is at
least a step in that wrong direction.
As to whether there is imperative
necessity for such powers, it is relevant to note the gap that exists between
the President's paper powers and his real powers. The Constitution does not disclose the
measure of the actual controls wielded by the modern presidential office. That instrument must be understood as an
Eighteenth-Century sketch of a government hoped for, not as a blueprint of the
Government that is. Vast accretions
of federal power, eroded from that reserved by the States, have magnified the
scope of presidential activity.
Subtle shifts take place in the centers of real power that do not show
on the face of the Constitution.
Executive power has the advantage
of concentration in a single head in whose choice the whole Nation has a part,
making him the focus of public hopes and expectations. In drama, magnitude and finality his
decisions so far overshadow any others that almost alone he fills the public
eye and ear. No other personality
in public life can begin to compete with him in access to the public mind
through modern methods of communications.
By his prestige as head of state and his influence upon public opinion
he exerts a leverage upon those who are supposed [*654] to check and balance his power which
often cancels their effectiveness.
Moreover, rise of the party system
has made a significant extraconstitutional supplement to real executive
power. No appraisal of his
necessities is realistic which overlooks that he heads a political system as
well as a legal system.
[***1209] Party loyalties
and interests, sometimes more binding than law, extend his effective control
into branches of government other than his own and he often may win, as a
political leader, what he cannot command under the Constitution. Indeed, Woodrow Wilson, commenting on
the President as leader both of his party and of the Nation, observed, "If
he rightly interpret the national thought and boldly insist upon it, he is
irresistible . . . . His office is
anything he has the sagacity and force to make it." n25 I cannot be
brought to believe that this country will suffer if the Court refuses further
to aggrandize the presidential office, already so potent and so relatively
immune from judicial review, n26 at the expense of Congress.
n25 Wilson, Constitutional Government in the United
States, 68-69.
n26 Rossiter, The Supreme Court and the Commander in
Chief, 126-132.
But I have no illusion that any decision
by this Court can keep power in the hands of Congress if it is not wise and
timely in meeting its problems. A
crisis that challenges the President equally, or perhaps primarily, challenges
Congress. If not good law, there
was worldly wisdom in the maxim attributed to Napoleon that "The tools
belong to the man who can use them." We may say that power to legislate
for [**880] emergencies belongs in the hands of
Congress, but only Congress itself can prevent power from slipping through its
fingers.
The essence of our free Government
is "leave to live by no man's leave, underneath the law" -- to be
governed by those impersonal forces which we call law. Our Government [*655] is fashioned to fulfill this concept so
far as humanly possible. The Executive,
except for recommendation and veto, has no legislative power. The executive action we have here
originates in the individual will of the President and represents an exercise
of authority without law. No one,
perhaps not even the President, knows the limits of the power he may seek to
exert in this instance and the parties affected cannot learn the limit of their
rights. We do not know today what
powers over labor or property would be claimed to flow from Government
possession if we should legalize it, what rights to compensation would be
claimed or recognized, or on what contingency it would end. With all its defects, delays and
inconveniences, men have discovered no technique for long preserving free government
except that the Executive be under the law, and that the law be made by
parliamentary deliberations.
Such institutions may be destined
to pass away. But it is the duty of
the Court to be last, not first, to give them up. n27
n27 We follow the judicial tradition instituted on a
memorable Sunday in 1612, when King James took offense at the independence of
his judges and, in rage, declared: "Then I am to be under the law
-- which it is treason to affirm." Chief Justice Coke replied to his King:
"Thus wrote Bracton, 'The King ought not to be under any man, but he is
under God and the Law.'" 12 Coke 65 (as to its verity, 18 Eng. Hist. Rev.
664-675); 1 Campbell, Lives of the Chief Justices (1849), 272.
MR. JUSTICE BURTON, concurring in
both the opinion and judgment of the Court.
My position may be summarized as
follows:
The validity of the President's
order of seizure is at issue and ripe for decision. Its validity turns upon its relation to
the constitutional division of governmental power between Congress and the
President.
[*656] The Constitution has delegated to
Congress power to authorize action to meet a national emergency of the kind we
face. n1 Aware of this responsibility,
[***1210] Congress has
responded to it. It has provided at
least two procedures for the use of the President.
n
"Article. I.
"Section. 1. All legislative Powers herein
granted shall be vested in a Congress of the United States . . . .
. . . .
"Section. 8. The Congress shall have Power . . .
;
. . . .
"To regulate Commerce with foreign Nations, and
among the several States . . . ;
. . . .
"To make all Laws which shall be necessary and
proper for carrying into Execution the foregoing Powers, and all other Powers
vested by this Constitution in the Government of the United States, or in any
Department or Officer thereof."
It has outlined one in the Labor
Management Relations Act, 1947, better known as the Taft-Hartley Act. The accuracy with which Congress there
describes the present emergency demonstrates its applicability. It says:
"Whenever in the opinion of
the President of the United States, a threatened or actual strike or lockout
affecting an entire industry or a substantial part thereof engaged in
trade, commerce, transportation,
transmission, or communication among the several States or with foreign nations,
or engaged in the production of goods for commerce, will, if permitted to occur
or to continue, imperil the national health or safety, he may appoint a board
of inquiry to inquire into the issues involved in the dispute and to make a
written report to him within
[**881] such time as he
shall prescribe. . . ." n2
n2 61 Stat. 155, 29 U. S. C. (Supp. IV) § 176.
[*657] In that situation Congress has
authorized not only negotiation, conciliation and impartial inquiry but also a 60-day
cooling-off period under injunction, followed by 20 days for a secret ballot
upon the final offer of settlement and then by recommendations from the
President to Congress. n3
n3 61 Stat. 155-156, 29 U. S. C. (Supp. IV) §
§ 176-180.
For the purposes of this case the
most significant feature of that Act is its omission of authority to seize an
affected industry. The debate
preceding its passage demonstrated the significance of that omission. Collective bargaining, rather than
governmental seizure, was to be relied upon. Seizure was not to be resorted to
without specific congressional authority.
Congress reserved to itself the opportunity to authorize seizure to meet
particular emergencies. n4
n4 The Chairman of the Senate Committee sponsoring the
bill said in the Senate:
"We did not feel that we should put into the law,
as a part of the collective-bargaining machinery, an ultimate resort to
compulsory arbitration, or to seizure, or to any other action. We feel that it would interfere with the
whole process of collective bargaining. If such a remedy is available as a
routine remedy, there will always be pressure to resort to it by whichever
party thinks it will receive better treatment through such a process than it
would receive in collective bargaining, and it will back out of collective
bargaining. It will not make a bona-fide attempt to settle if it thinks it will
receive a better deal under the final arbitration which may be provided.
"We have felt that perhaps in the case of a
general strike, or in the case of other serious strikes, after the termination
of every possible effort to resolve the dispute, the remedy might be an
emergency act by Congress for that particular purpose.
"I have had in mind drafting such a bill, giving
power to seize the plants, and other necessary facilities, to seize the unions,
their money, and their treasury, and requisition trucks and other equipment; in
fact, to do everything that the British did in their general strike of 1926. But while such a bill might be prepared,
I should be unwilling to place such a law on the books until we actually face
such an emergency, and Congress applies the remedy for the particular emergency
only. Eighty days will provide
plenty of time within which to consider the possibility of what should be done;
and we believe every strongly that there should not be anything in this law
which prohibits finally the right to strike." 93 Cong. Rec. 3835-3836.
Part of this quotation was relied upon by this Court
in Bus Employees v. Wisconsin Board, 340 U.S. 383, 396, note 21.
[*658] [***1211] The President, however, chose not to use
the Taft-Hartley procedure. He
chose another course, also authorized by Congress. He referred the controversy to the Wage
Stabilization Board. n5 If that course had led to a settlement of the labor
dispute, it would have avoided the need for other action. It, however, did not do so.
n5 Under Titles IV and V of the Defense Production Act
of 1950, 64 Stat. 803-812, 50 U. S. C. App. (Supp. IV) § § 2101-2123; and see Exec. Order No.
10233, 16 Fed. Reg. 3503.
Now it is contended that although
the President did not follow the procedure authorized by the Taft-Hartley Act,
his substituted procedure served the same purpose and must be accepted as its
equivalent. Without appraising that
equivalence, it is enough to point out that neither procedure carried statutory
authority for the seizure of private industries in the manner now at issue. n6
The exhaustion of both procedures fails to cloud the [*659] clarity of the congressional reservation
of seizure for its own consideration.
n6 Congress has authorized other types of seizure
under conditions not present here.
Section 201 of the Defense Production Act authorizes the President to
acquire specific "real property, including facilities, temporary use
thereof, or other interest therein . . ." by condemnation. 64 Stat. 799, as amended, 65 Stat. 132,
see 50 U. S. C. App. (Supp. IV) §
2081. There have been no declarations of taking or condemnation
proceedings in relation to any of the properties involved here. Section 18 of the Selective Service Act
of 1948 authorizes the President to take possession of a plant or other
facility failing to fill certain defense orders placed with it in the manner
there prescribed. 62 Stat. 625, 50
U. S. C. App. (Supp. IV) §
468. No orders have been so placed with the steel plants seized.
[**882] The foregoing circumstances distinguish
this emergency from one in which Congress takes no action and outlines no
governmental policy. In the case
before us, Congress authorized a procedure which the President declined to
follow. Instead, he followed
another procedure which he hoped might eliminate the need for the first. Upon its failure, he issued an executive
order to seize the steel properties in the face of the reserved right of
Congress to adopt or reject that course as a matter of legislative policy.
This brings us to a further
crucial question. Does the
President, in such a situation, have inherent constitutional power to seize private
property which makes congressional action in relation thereto unnecessary? We
find no such power available to him under the present circumstances. The present situation is not comparable
to that of an imminent invasion or threatened attack. We do not face the issue of what might
be the President's constitutional power to meet such catastrophic
situations. Nor is it claimed that
the current seizure is in the nature of a military command addressed by the President,
as Commander-in-Chief, to a mobilized nation waging, or imminently threatened
with, total war. n7
n7 The President and Congress have recognized the
termination of the major hostilities in the total wars in which the Nation has
been engaged. Many wartime
procedures have expired or been terminated.
The War Labor Disputes Act, 57 Stat. 163 et seq.,
50 U. S. C. App. § §
1501-1511, expired June 30, 1947, six months after the President's
declaration of the end of hostilities, 3 CFR, 1946 Supp., p. 77. The Japanese Peace Treaty was approved by
the Senate March 20, 1952, Cong. Rec., Mar. 20, 1952, p. 2635, and proclaimed
by the President April 28, 1952, 17 Fed. Reg. 3813.
[*660]
The controlling fact here
is that Congress, within its constitutionally delegated power, has prescribed
for the President specific procedures, exclusive of seizure, for his use in
meeting the present type of emergency. Congress has reserved to itself the
right to determine where and when to authorize the seizure of property in
meeting such an emergency. Under these circumstances, [***1212] the President's order of April 8 invaded
the jurisdiction of Congress. It
violated the essence of the principle of the separation of governmental
powers. Accordingly, the injunction
against its effectiveness should be sustained.
MR. JUSTICE CLARK, concurring in
the judgment of the Court.
One of this Court's first
pronouncements upon the powers of the President under the Constitution was made
by Mr. Chief Justice John Marshall some one hundred and fifty years ago. In Little v. Barreme, n1
he used this characteristically clear language in discussing the power of the
President to instruct the seizure of the Flying Fish, a vessel bound
from a French port: "It is by no means clear that the president of the
United States whose high duty it is to 'take care that the laws be faithfully
executed,' and who is commander in chief of the armies and navies of the United
States, might not, without any special authority for that purpose, in the then
existing state of things, have empowered the officers commanding the armed
vessels of the United States, to seize and send into port for adjudication,
American vessels which were forfeited by being engaged in this illicit
commerce. But when it is observed
that [an act of Congress] gives a special authority to seize on the high seas,
and limits that [**883] authority to the seizure of vessels
bound or sailing to a French port, the legislature seem to have
prescribed that [*661] the manner in which this law shall be
carried into execution, was to exclude a seizure of any vessel not bound
to a French port." n2 Accordingly, a unanimous Court held that the
President's instructions had been issued without authority and that they could
not "legalize an act which without those instructions would have been a
plain trespass." I know of no subsequent holding of this Court to the
contrary. n3
n1 2 Cranch 170 (1804).
n2 Id., at 177-178 (emphasis changed).
n3 Decisions of this Court which have upheld the
exercise of presidential power include the following: Prize Cases, 2
Black 635 (1863) (subsequent ratification of President's acts by Congress); In
re Neagle, 135 U.S. 1 (1890) (protection of federal officials from personal
violence while performing official duties); In re Debs, 158 U.S. 564
(1895) (injunction to prevent forcible obstruction of interstate commerce and
the mails); United States v. Midwest Oil Co., 236 U.S. 459 (1915)
(acquiescence by Congress in more than 250 instances of exercise of same power
by various Presidents over period of 80 years); Myers v. United
States, 272 U.S. 52 (1926) (control over subordinate officials in executive
department) [but see Humphrey's Executor v. United States, 295
U.S. 602, 626-628 (1935)]; Hirabayashi v. United States, 320 U.S.
81 (1943), and Korematsu v. United States, 323 U.S. 214 (1944)
(express congressional authorization); cf.
United States v. Russell, 13 Wall. 623 (1871) (imperative
military necessity in area of combat during war; United States v. Curtiss-Wright
Export Corp., 299 U.S. 304 (1936) (power to negotiate with foreign
governments); United States v. United Mine Workers, 330 U.S. 258
(1947) (seizure under specific statutory authorization).
The limits of presidential power
are obscure. However, Article II,
no less than Article I, is part of "a constitution intended to endure for
ages to come, and, consequently, to be adapted to the various crises of
human affairs." n4 Some of our Presidents, such as Lincoln, "felt
that measures otherwise unconstitutional might become lawful by becoming
indispensable to the preservation of the Constitution through the preservation
of the nation." n5 [*662] [***1213]
Others, such as Theodore
Roosevelt, thought the President to be capable, as a "steward" of the
people, of exerting all power save that which is specifically prohibited by the
Constitution or the Congress. n6 In my view -- taught me not only by the
decision of Mr. Chief Justice Marshall in Little v. Barreme, but
also by a score of other pronouncements of distinguished members of this bench
-- the Constitution does grant to the President extensive authority in times of
grave and imperative national emergency. In fact, to my thinking, such a grant
may well be necessary to the very existence of the Constitution itself. As Lincoln aptly said, "[is] it possible
to lose the nation and yet preserve the Constitution?" n7 In describing
this authority I care not whether one calls it "residual,"
"inherent," "moral," "implied,"
"aggregate," "emergency," or otherwise. I am of the conviction that those who
have had the gratifying experience of being the President's lawyer have used
one or more of these adjectives only with the utmost of sincerity and the
highest of purpose.
n4 Mr. Chief Justice Marshall, in McCulloch v. Maryland,
4 Wheat. 316, 415 (1819).
n5 Letter of April 4, 1864, to A. G. Hodges, in 10
Complete Works of Abraham Lincoln (Nicolay and Hay ed. 1894), 66.
n6 Roosevelt, Autobiography (1914 ed.), 371-372.
n7 Letter of April 4, 1864, to A. G. Hodges, in 10
Complete Works of Abraham Lincoln (Nicolay and Hay ed. 1894), 66.
[**884]
I conclude that where
Congress has laid down specific procedures to deal with the type of crisis
confronting the President, he must follow those procedures in meeting the
crisis; but that in the absence of such action by Congress, the President's
independent power to act depends upon the gravity of the situation confronting
the nation. I cannot sustain the
seizure in question because here, as in Little v. Barreme,
Congress had prescribed methods to be followed by the President in meeting the
emergency at hand.
[*663] Three statutory procedures were
available: those provided in the Defense Production Act of 1950, the Labor
Management Relations Act, and the Selective Service Act of 1948. In this case the President invoked the
first of these procedures; he did not invoke the other two.
The Defense Production Act of 1950
provides for mediation of labor disputes affecting national defense. Under this
statutory authorization, the President has established the Wage Stabilization
Board. The Defense Production Act,
however, grants the President no power to seize real property except through
ordinary condemnation proceedings, which were not used here, and creates no
sanctions for the settlement of labor disputes.
The Labor Management Relations
Act, commonly known as the Taft-Hartley Act, includes provisions adopted for
the purpose of dealing with nationwide strikes. They establish a procedure whereby the
President may appoint a board of inquiry and thereafter, in proper cases, seek
injunctive relief for an 80-day period against a threatened work stoppage. The President can invoke that procedure
whenever, in his opinion, "a threatened or actual strike . . . affecting
an entire industry . . . will, if permitted to occur or to continue, imperil
the national health or safety." n8 At the time that Act was passed,
Congress specifically rejected a proposal to empower the President to seize any
"plant, mine, or facility" in which a threatened work stoppage would,
in his judgment, "imperil the public health or security." n9 Instead,
the Taft-Hartley Act directed the President, in the event a strike had not been
settled during the 80-day injunction period, to submit to Congress "a full
and comprehensive report . . .
[***1214] together with such
recommendations as he may see fit to make for consideration and [*664] appropriate action." n10 The
legislative history of the Act demonstrates Congress' belief that the 80-day
period would afford it adequate opportunity to determine whether special
legislation should be enacted to meet the emergency at hand. n11
n8 61 Stat. 155, 29 U. S. C. (Supp. IV) § 176.
n9 93 Cong. Rec. 3637-3645; cf. id., at
3835-3836.
n10 61 Stat. 156, 29 U. S. C. (Supp. IV) § 180.
n11 E. g., S. Rep. No. 105, 80th Cong., 1st
Sess. 15; 93 Cong. Rec. 3835-3836; id., at 4281.
The Selective Service Act of 1948
gives the President specific authority to seize plants which fail to produce
goods required by the armed forces or the Atomic Energy Commission for national
defense purposes. The Act provides
that when a producer from whom the President has ordered such goods
"refuses or fails" to fill the order within a period of time
prescribed by the President, the President may take immediate possession of the
producer's plant. n12 This language is significantly broader than [*665] [**885] that used in the National Defense Act of
1916 and the Selective Training and Service Act of 1940, which provided for
seizure when a producer "refused" to supply essential defense
materials, but not when he "failed" to do so. n13
n12 The producer must have been notified that the
order was placed pursuant to the Act.
The Act provides in pertinent part as follows:
"(a) Whenever the President after consultation with
and receiving advice from the National Security Resources Board determines that
it is in the interest of the national security for the Government to obtain
prompt delivery of any articles or materials the procurement of which has been
authorized by the Congress exclusively for the use of the armed forces of the
United States, or for the use of the Atomic Energy Commission, he is
authorized, through the head of any Government agency, to place with any person
operating a plant, mine, or other facility capable of producing such articles
or materials an order for such quantity of such articles or materials as the
President deems appropriate. Any
person with whom an order is placed pursuant to the provisions of this section
shall be advised that such order is placed pursuant to the provisions of this
section.
. . . .
"(c) In case any person with whom an order is
placed pursuant to the provisions of subsection (a) refuses or fails --
. . . .
"(2) to fill such order within the period of time
prescribed by the President or as soon thereafter as possible as determined by
the President;
"(3) to produce the kind or quality of articles
or materials ordered; or
"(4) to furnish the quantity, kind, and quality
of articles or materials ordered at such price as shall be negotiated between
such person and the Government agency concerned; or in the event of failure to
negotiate a price, to furnish the quantity, kind, and quality of articles or
materials ordered at such price as he may subsequently be determined to be
entitled to receive under subsection (d);
"the President is authorized to take immediate
possession of any plant, mine, or other facility of such person and to operate
it, through any Government agency, for the production of such articles or
materials as may be required by the Government." 62 Stat. 625, 50 U. S. C.
App. (Supp. IV) § 468. The Act
was amended in 1951 and redesignated the Universal Military Training and
Service Act, but no change was made in this section. 65 Stat. 75.
n13 39 Stat. 213; 54 Stat. 892.
These three statutes furnish the
guideposts for decision in this case.
Prior to seizing the steel mills on April 8 the President had exhausted
the mediation procedures of the Defense Production Act through the Wage
Stabilization Board. Use of those
procedures had failed to avert the impending crisis; however, it had resulted
in a 99-day postponement of the strike.
The Government argues that this accomplished more than the maximum
80-day waiting period possible under the sanctions of the Taft-Hartley Act, and
therefore amounted to compliance with the substance of that Act. Even if one were to accept this somewhat
hyperbolic conclusion, the hard fact remains that [***1215] neither the Defense Production Act nor
Taft-Hartley authorized the seizure challenged here, and the Government made no
effort to comply with the procedures
[*666] established by the
Selective Service Act of 1948, a statute which expressly authorizes seizures
when producers fail to supply necessary defense materiel. n14
n14 The Government has offered no explanation, in the
record, the briefs, or the oral argument, as to why it could not have made both
a literal and timely compliance with the provisions of that Act. Apparently the Government could have
placed orders with the steel companies for the various types of steel needed
for defense purposes, and instructed the steel companies to ship the materiel
directly to producers of planes, tanks, and munitions. The Act does not require that government
orders cover the entire capacity of a producer's plant before the President has
power to seize.
Our experience during World War I demonstrates the
speed with which the Government can invoke the remedy of seizing plants which
fail to fill compulsory orders. The
Federal Enameling & Stamping Co., of McKees Rocks, Pa., was served with a
compulsory order on September 13, 1918, and seized on the same day. The Smith & Wesson plant at
Springfield, Mass., was seized on September 13, 1918, after the company had
failed to make deliveries under a compulsory order issued the preceding
week. Communication from Ordnance
Office to War Department Board of Appraisers, entitled "Report on Plants
Commandeered by the Ordnance Office," Dec. 19, 1918, pp. 3, 4, in National
Archives, Records of the War Department, Office of the Chief of Ordnance, O. O.
004.002/260. Apparently the Mosler
Safe Co., of Hamilton, Ohio, was seized on the same day on which a compulsory
order was issued. Id., at 2;
Letter from counsel for Mosler Safe Co. to Major General George W. Goethals,
Director of Purchase, Storage and Traffic, War Department, Dec. 9, 1918, p. 1,
in National Archives, Records of the War Department, Office of the General
Staff, PST Division 400.1202.
[**886]
For these reasons I concur
in the judgment of the Court. As
Mr. Justice Story once said: "For the executive department of the
government, this court entertain the most entire respect; and amidst the
multiplicity of cares in that department, it may, without any violation of
decorum, be presumed, that sometimes there may be an inaccurate construction of
a law. It is our duty to expound
the laws as we find them in the records of state; [*667] and we cannot, when called upon by the
citizens of the country, refuse our opinion, however it may differ from that of
very great authorities." n15
n15 The Orono, 18 Fed. Cas. No. 10,585 (Cir.
Ct. D. Mass. 1812).
DISSENTBY:
VINSON
DISSENT:
[**929] MR. CHIEF JUSTICE VINSON, with whom MR.
JUSTICE REED and MR. JUSTICE MINTON join, dissenting.
The President of the United States
directed the Secretary of Commerce to take temporary possession of the Nation's
steel mills during the existing emergency because "a work stoppage would
immediately jeopardize and imperil our national defense and the defense of those
joined with us in resisting aggression, and would add to the continuing danger
of our soldiers, sailors, and airmen engaged in combat in the field." The
District Court ordered the mills returned to their private owners on the ground
that the President's action was beyond his powers under the Constitution.
This Court affirms. Some members of the Court are of the
view that the President is without power to act in time of crisis in the
absence of express statutory authorization. Other members of the Court affirm on the
basis of their reading of certain statutes. Because we cannot agree that affirmance
is proper on any ground, and because of the transcending importance of the
questions presented not only in this critical litigation but also to the powers
of the President and of future Presidents to act in time of crisis, we are
compelled to register this dissent.
I.
In passing upon the question
of [***1216] Presidential powers in this case, we
must first consider the context in which those powers were exercised.
[*668] Those who suggest that this is a case
involving extraordinary powers should be mindful that these are extraordinary
times. A world not yet recovered
from the devastation of World War II has been forced to face the threat of
another and more terrifying global conflict.
Accepting in full measure its
responsibility in the world community, the United States was instrumental in
securing adoption of the United Nations Charter, approved by the Senate by a
vote of 89 to 2. The first purpose
of the United Nations is to "maintain international peace and security,
and to that end: to take effective collective measures for the prevention and
removal of threats to the peace, and for the suppression of acts of aggression
or other breaches of the peace, . . . ." n1 In 1950, when the United
Nations called upon member nations "to render every assistance" to
repel aggression in Korea, the United States furnished its vigorous support. n2
For almost two full years, our armed forces have been fighting in Korea,
suffering casualties of over 108,000 men.
Hostilities have not abated.
The "determination of the United Nations to continue its action in
Korea to meet the aggression" has been reaffirmed. n3 Congressional
support of the action in Korea has been manifested by provisions for increased
military manpower and equipment and for economic stabilization, as hereinafter
described.
n1 59 Stat. 1031, 1037 (1945); 91 Cong. Rec. 8190
(1945).
n2 U. N. Security Council, U. N. Doc. S/1501 (1950);
Statement by the President, June 26, 1950, United States Policy in the Korean
Crisis, Dept. of State Pub. (1950), 16.
n3 U. N. General Assembly, U.N. Doc. A/1771 (1951).
Further efforts to protect the free
world from aggression are found in the congressional enactments of the Truman
Plan for assistance to Greece and Turkey n4 and [*669] the Marshall Plan for economic aid
needed to build up the strength of our friends in Western Europe. n5 In 1949,
the Senate approved the North Atlantic Treaty under which each member nation
agrees that an armed attack against one is an armed attack against all. n6
Congress immediately implemented
[**930] the North Atlantic
Treaty by authorizing military assistance to nations dedicated to the
principles of mutual security under the United Nations Charter. n7 The concept
of mutual security recently has been extended by treaty to friends in the
Pacific. n8
n4 61 Stat. 103 (1947).
n5 62 Stat. 137 (1948), as amended, 63 Stat. 50
(1949), 64 Stat. 198 (1950).
n6 63 Stat. 2241, 2252 (1949), extended to Greece and
Turkey, S. Exec. E, 82d Cong., 2d Sess. (1952), advice and consent of the
Senate granted. 98 Cong. Rec. 930.
n7 63 Stat. 714 (1949).
n8 S. Execs. A, B, C and D, 82d Cong., 2d Sess.
(1952), advice and consent of the Senate granted. 98 Cong. Rec. 2594, 2595, 2605.
Our treaties represent not merely
legal obligations but show congressional recognition that mutual security for
the free world is the best security against the threat of aggression on a
global scale. The need for mutual
security is shown by the very size of the armed forces outside the free
world. Defendant's brief informs us
that the Soviet Union maintains the largest air force in the world and
maintains ground forces much larger than those presently available to the
United States and the countries joined with us in mutual security
arrangements. Constant
international tensions are cited to demonstrate how precarious is the peace.
Even this brief review of our
responsibilities in the world community discloses the enormity of our
undertaking. Success of these
measures may, as has often been
[*670] [***1217] observed, dramatically influence the
lives of many generations of the world's peoples yet unborn. Alert to our responsibilities, which
coincide with our own self-preservation through mutual security, Congress has
enacted a large body of implementing legislation. As an illustration of the magnitude of
the over-all program, Congress has appropriated $ 130 billion for our own
defense and for military assistance to our allies since the June, 1950, attack
in Korea.
In the Mutual Security Act of
1951, Congress authorized "military, economic, and technical assistance to
friendly countries to strengthen the mutual security and individual and
collective defenses of the free world, . . ." n9 Over $ 5 1/2 billion were
appropriated for military assistance for fiscal year 1952, the bulk of that
amount to be devoted to purchase of military equipment. n10 A request for over
$ 7 billion for the same purpose for fiscal year 1953 is currently pending in
Congress. n11 In addition to direct shipment of military equipment to nations
of the free world, defense production in those countries relies upon shipment
of machine tools and allocation of steel tonnage from the United States. n12
n9 65 Stat. 373 (1951).
n10 65 Stat. 730 (1951); see H. R. Doc. No. 147, 82d
Cong., 1st Sess. 3 (1951).
n11 See H. R. Doc. No. 382, 82d Cong., 2d Sess.
(1952).
n12 Hearings before Senate Committee on Foreign
Relations on the Mutual Security Act of 1952, 82d Cong., 2d Sess. 565-566
(1952); Hearings before House Committee on Foreign Affairs on the Mutual
Security Act of 1952, 82d Cong., 2d Sess. 370 (1952).
Congress also directed the
President to build up our own defenses.
Congress, recognizing the "grim fact . . . that the United States
is now engaged in a struggle for survival" and that "it is imperative
that we now take those necessary steps to make our strength equal to the peril
of the hour," granted authority to draft men into [*671] the armed forces. n13 As a result, we
now have over 3,500,000 men in our armed forces. n14
n13 65 Stat. 75 (1951); S. Rep. No. 117, 82d Cong.,
1st Sess. 3 (1951).
n14 Address by Secretary of Defense Lovett before the
American Society of Newspaper Editors, Washington, April 18, 1952.
Appropriations for the Department
of Defense, which had averaged less than $ 13 billion per year for the three
years before attack in Korea, were increased by Congress to $ 48 billion for
fiscal year 1951 and to $ 60 billion for fiscal year 1952. n15 A request for $
51 billion for the Department of
[**931] Defense for fiscal
year 1953 is currently pending in Congress. n16 The bulk of the increase is for
military equipment and supplies -- guns, tanks, ships, planes and ammunition --
all of which require steel. Other defense programs requiring great quantities
of steel include the large scale expansion of facilities for the Atomic Energy
Commission n17 and the expansion of the Nation's productive capacity
affirmatively encouraged by Congress. n18
n15 Fiscal Year 1952, 65 Stat. 423, 760 (1951); F. Y.
1951, 64 Stat. 595, 1044, 1223, 65 Stat. 48 (1950-1951); F. Y. 1950, 63 Stat.
869, 973, 987 (1949); F.Y. 1949, 62 Stat. 647 (1948); F. Y. 1948, 61 Stat. 551
(1947).
n16 See H. R. Rep. No. 1685, 82d Cong., 2d Sess. 2
(1952), on H. R. 7391.
n17 See H. R. Rep. No. 384, 82d Cong., 1st Sess. 5
(1951); 97 Cong. Rec. 13647-13649.
n18 Defense Production Act, Tit. III. 64 Stat. 798, 800 (1950), 65 Stat. 138
(1951).
Congress recognized the impact of
these defense programs upon the economy.
Following the attack in Korea, the President asked for authority to
requisition property and to allocate and fix priorities for scarce goods. In the Defense Production Act of 1950,
Congress granted the powers requested and, in addition, granted power to
stabilize prices and wages and to provide for settlement [*672] of labor disputes arising in the
defense [***1218] program. n19 The Defense Production Act
was extended in 1951, a Senate Committee noting that in the dislocation caused
by the programs for purchase of military equipment "lies the seed of an
economic disaster that might well destroy the military might we are straining to
build." n20 Significantly, the Committee examined the problem "in
terms of just one commodity, steel," and found "a graphic picture of
the over-all inflationary danger growing out of reduced civilian supplies and
rising incomes." Even before Korea, steel production at levels above
theoretical 100% capacity was not capable of supplying civilian needs
alone. Since Korea, the tremendous
military demand for steel has far exceeded the increases in productive capacity. This Committee emphasized that the shortage
of steel, even with the mills operating at full capacity, coupled with
increased civilian purchasing power, presented grave danger of disastrous
inflation. n21
n19 Note 18, supra, Tits. IV and V.
n20 S. Rep. No. 470, 82d Cong., 1st Sess. 8 (1951).
n21 Id., at 8-9.
The President has the duty to
execute the foregoing legislative programs. Their successful execution depends upon
continued production of steel and stabilized prices for steel. Accordingly,
when the collective bargaining agreements between the Nation's steel producers
and their employees, represented by the United Steel Workers, were due to
expire on December 31, 1951, and a strike shutting down the entire basic steel
industry was threatened, the President acted to avert a complete shutdown of
steel production. On December 22,
1951, he certified the dispute to the Wage Stabilization Board, requesting that
the Board investigate the dispute and promptly report its recommendation as to
fair and equitable terms of settlement. The Union complied with the
President's [*673] request and delayed its threatened
strike while the dispute was before the Board. After a special Board panel had
conducted hearings and submitted a report, the full Wage Stabilization Board
submitted its report and recommendations to the President on March 20, 1952.
The Board's report was acceptable
to the Union but was rejected by plaintiffs. The Union gave notice of its intention
to strike as of 12:01 a. m., April 9, 1952, but bargaining between the parties
continued with hope of settlement until the evening of April 8, 1952. After bargaining had failed to avert the
threatened shutdown of steel production, the President issued the following
Executive Order:
"WHEREAS on December 16,
1950, I proclaimed the existence of a national emergency which requires that
the military, naval, air, and civilian defenses of [**932] this country be strengthened as speedily
as possible to the end that we may be able to repel any and all threats against
our national security and to fulfill our responsibilities in the efforts being
made throughout the United Nations and otherwise to bring about a lasting
peace; and
"WHEREAS American fighting
men and fighting men of other nations of the United Nations are now engaged in
deadly combat with the forces of aggression in Korea, and forces of the United
States are stationed elsewhere overseas for the purpose of participating in the
defense of the Atlantic Community against aggression; and
"WHEREAS the weapons and
other materials needed by our armed forces and by those joined with us in the
defense of the free world are produced to a great extent in this country, and
steel is an indispensable component of substantially all of such weapons and
materials; and
[*674] "WHEREAS steel is likewise indispensable [***1219] to the carrying out of programs of the
Atomic Energy Commission of vital importance to our defense efforts; and
"WHEREAS a continuing and
uninterrupted supply of steel is also indispensable to the maintenance of the
economy of the United States, upon which our military strength depends; and
"WHEREAS a controversy has
arisen between certain companies in the United States producing and fabricating
steel and the elements thereof and certain of their workers represented by the
United Steel Workers of America, CIO, regarding terms and conditions of
employment; and
"WHEREAS the controversy has
not been settled through the processes of collective bargaining or through the
efforts of the Government, including those of the Wage Stabilization Board, to
which the controversy was referred on December 22, 1951, pursuant to Executive
Order No. 10233, and a strike has been called for 12:01 A.M., April 9, 1952;
and
"WHEREAS a work stoppage
would immediately jeopardize and imperil our national defense and the defense
of those joined with us in resisting aggression, and would add to the
continuing danger of our soldiers, sailors, and airmen engaged in combat in the
field; and
"WHEREAS in order to assure
the continued availability of steel and steel products during the existing
emergency, it is necessary that the United States take possession of and
operate the plants, facilities, and other property of the said companies as
hereinafter provided:
"NOW, THEREFORE, by virtue of
the authority vested in me by the Constitution and laws of the [*675] United States, and as President of the
United States and Commander in Chief of the armed forces of the United States,
it is hereby ordered as follows:
"1. The Secretary of Commerce
is hereby authorized and directed to take possession of all or such of the
plants, facilities, and other property of the companies named in the list
attached hereto, or any part thereof, as he may deem necessary in the interests
of national defense; and to operate or to arrange for the operation thereof and
to do all things necessary for, or incidental to, such operation. . . ." n22
n22 Exec. Order 10340, 17 Fed. Reg. 3139 (1952).
The next morning, April 9, 1952,
the President addressed the following Message to Congress:
"To the Congress of the
United States:
"The Congress is undoubtedly
aware of the recent events which have taken [**933] place in connection with the
management-labor dispute in the steel industry. These events culminated in the action
which was taken last night to provide for temporary operation of the steel
mills by the Government.
"I took this action with the
utmost reluctance. The idea of
Government operation of the steel mills is thoroughly distasteful to me and I
want to see it ended as soon as possible.
However, in the situation which confronted me yesterday, I felt that I
could make no other choice. The
other alternatives appeared to be even worse -- so much worse that I could not
accept them.
"One alternative would have
been to permit a shutdown in the steel industry. The effects of such a shut-down would
have been so immediate and damaging with respect to our efforts to support our
Armed Forces and to protect our national security that it made this alternative
unthinkable.
[*676] "The only way that I know of, other
than Government operation, by which a steel shut-down could have been avoided
was to grant the demands of the steel industry for a large price increase. I believed and the officials in charge
of our stabilization agencies believed that this would have wrecked our
stabilization [***1220] program. I was unwilling to accept the
incalculable damage which might be done to our country by following such a
course.
"Accordingly, it was my
judgment that Government operation of the steel mills for a temporary period
was the least undesirable of the courses of action which lay open. In the circumstances, I believed it to
be, and now believe it to be, my duty and within my powers as President to follow
that course of action.
"It may be that the Congress
will deem some other course to be wiser.
It may be that the Congress will feel we should give in to the demands
of the steel industry for an exorbitant price increase and take the
consequences so far as resulting inflation is concerned.
"It may be that the Congress
will feel the Government should try to force the steel workers to continue to
work for the steel companies for another long period, without a contract, even
though the steel workers have already voluntarily remained at work without a
contract for 100 days in an effort to reach an orderly settlement of their
differences with management.
"It may even be that the
Congress will feel that we should permit a shut-down of the steel industry,
although that would immediately endanger the safety of our fighting forces
abroad and weaken the whole structure of our national security.
[*677] "I do not believe the Congress will
favor any of these courses of action, but that is a matter for the Congress to
determine.
"It may be, on the other
hand, that the Congress will wish to pass legislation establishing specific
terms and conditions with reference to the operation of the steel mills by the
Government. Sound legislation of
this character might be very desirable.
"On the basis of the facts
that are known to me at this time, I do not believe that immediate
congressional action is essential; but I would, of course, be glad to cooperate
in developing any legislative proposals which the Congress may wish to
consider.
"If the Congress does not
deem it necessary to act at this time, I shall continue to do all that is
within my power to keep the steel industry operating and at the same time make
every effort to bring about a settlement of the dispute so the mills can be
returned to their private owners as soon as possible." n23
[**934] Twelve days passed without action by
Congress. On April 21, 1952, the
President sent a letter to the President of the Senate in which he again
described the purpose and need for his action and again stated his position that
"The Congress can, if it wishes, reject the course of action I have
followed in this matter." n24 Congress has not so acted to this date.
n23 Cong. Rec., April 9, 1952, pp. 3962-3963.
n24 Cong. Rec., April 21, 1952, p. 4192.
Meanwhile, plaintiffs instituted
this action in the District Court to compel defendant to return possession of
the steel mills seized under Executive Order 10340. In this litigation for return of
plaintiffs' properties, we assume that defendant Charles Sawyer is not immune
from judicial restraint and that plaintiffs are entitled to equitable relief if
we find that the Executive Order
[*678] under which defendant
acts is unconstitutional. We also
assume without deciding that the courts may go behind a President's finding of
fact that an emergency exists. But
there is not the slightest basis for suggesting that the President's finding in
this case can be undermined.
Plaintiffs moved for a preliminary injunction before answer or
hearing. Defendant opposed the
motion, filing uncontroverted affidavits of Government officials describing the
facts underlying the President's order.
Secretary of Defense Lovett swore
that "a work stoppage in the steel industry will result immediately in
serious curtailment of production of
[***1221] essential weapons
and munitions of all kinds." He illustrated by showing that 84% of the
national production of certain alloy steel is currently used for production of
military-end items and that 35% of total production of another form of steel
goes into ammunition, 80% of such ammunition now going to Korea. The Secretary of Defense stated that:
"We are holding the line [in Korea] with ammunition and not with the lives
of our troops."
Affidavits of the Chairman of the
Atomic Energy Commission, the Secretary of the Interior, defendant as Secretary
of Commerce, and the Administrators of the Defense Production Administration,
the National Production Authority, the General Services Administration and the
Defense Transport Administration were also filed in the District Court. These affidavits disclose an enormous
demand for steel in such vital defense programs as the expansion of facilities
in atomic energy, petroleum, power, transportation and industrial production,
including steel production. Those
charged with administering allocations and priorities swore to the vital part
steel production plays in our economy.
The affidavits emphasize the critical need for steel in our defense
program, [*679] the absence of appreciable inventories
of steel, and the drastic results of any interruption in steel production.
One is not here called upon even
to consider the possibility of executive seizure of a farm, a corner grocery
store or even a single industrial plant. Such considerations arise only when one
ignores the central fact of this case -- that the Nation's entire basic steel
production would have shut down completely if there had been no Government
seizure. Even ignoring for the moment whatever confidential information the
President may possess as "the Nation's organ for foreign affairs,"
n25 the uncontroverted affidavits in this record amply support the finding that
"a work stoppage would immediately jeopardize and imperil our national
defense."
n25 Chicago & Southern Air Lines v. Waterman
S. S. Corp., 333 U.S. 103, 111 (1948), and cases cited.
Plaintiffs do not remotely suggest
any basis for rejecting the President's finding that any stoppage of
steel production would immediately place the Nation in peril. Moreover, even self-generated doubts
that any stoppage of steel production constitutes an emergency are of
little comfort here. The Union and
the plaintiffs bargained for 6 months with over 100 issues in dispute -- issues
not limited to wage demands but including
[**935] the union shop
and other matters of principle between the parties. At the time of seizure there was not,
and there is not now, the slightest evidence to justify the belief that any
strike will be of short duration.
The Union and the steel companies may well engage in a lengthy
struggle. Plaintiffs' counsel tells
us that "sooner or later" the mills will operate again. That may satisfy the steel companies
and, perhaps, the Union. But our
soldiers and our allies will hardly be cheered with the assurance that the
ammunition upon which their lives depend will be forthcoming -- "sooner or
later," or, in other words, "too little and too late."
[*680] Accordingly, if the President has any
power under the Constitution to meet a critical situation in the absence of
express statutory authorization, there is no basis whatever for criticizing the
exercise of such power in this case.
II.
The steel mills were seized for a
public use. The power of eminent
domain, invoked in this case, is an essential attribute of sovereignty and has
long been recognized as a power of the Federal Government. Kohl v. United States, 91
U.S. 367 [***1222] (1876). Plaintiffs cannot complain that
any provision in the Constitution prohibits the exercise of the power of
eminent domain in this case. The
Fifth Amendment provides: "nor shall private property be taken for public
use, without just compensation." It is no bar to this seizure for, if the
taking is not otherwise unlawful, plaintiffs are assured of receiving the
required just compensation. United
States v. Pewee Coal Co., 341 U.S. 114 (1951).
Admitting that the Government
could seize the mills, plaintiffs claim that the implied power of eminent
domain can be exercised only under an Act of Congress; under no circumstances,
they say, can that power be exercised by the President unless he can point to
an express provision in enabling legislation. This was the view adopted by the
District Judge when he granted the preliminary injunction. Without an answer,
without hearing evidence, he determined the issue on the basis of his
"fixed conclusion . . . that defendant's acts are illegal" because
the President's only course in the face of an emergency is to present the
matter to Congress and await the final passage of legislation which will enable
the Government to cope with threatened disaster.
Under this view, the President is
left powerless at the very moment when the need for action may be most pressing
and when no one, other than he, is immediately [*681] capable of action. Under this view, he is left powerless
because a power not expressly given to Congress is nevertheless found to rest
exclusively with Congress.
Consideration of this view of
executive impotence calls for further examination of the nature of the
separation of powers under our tripartite system of Government.
The Constitution provides:
Art. I,
Section 1. "All legislative
Powers herein granted shall be vested in a Congress of the United States, . . .
."
Art. II,
Section 1. "The executive
Power shall be vested in a President of the United States of America. . .
."
Section 2. "The President
shall be Commander in Chief of the Army and Navy of the United States, . . .
."
"He shall have Power, by and
with the Advice and Consent of the Senate, to make Treaties, provided two
thirds of the Senators present concur; .
. . ."
Section 3. "He shall from
time to time give to the Congress Information of the State of the Union, and
recommend to their Consideration such Measures as he shall judge necessary and
expedient; . . . he shall take Care that the Laws be faithfully executed, . . .
."
[**936] Art. III,
Section 1. "The judicial
Power of the United States, shall be vested in one supreme Court, and in such
inferior Courts as the Congress may from time to time ordain and
establish."
The whole of the "executive Power" is vested in the
President. Before entering office,
the President swears that he "will faithfully execute the Office of
President of the [*682] United States, and will to the best of
[his] Ability, preserve, protect and defend the Constitution of the United
States." Art. II, § 1.
This comprehensive grant of the
executive power to a single person was bestowed soon after the country had
thrown the yoke of monarchy. Only
by instilling initiative and vigor in all of the three departments of
Government, declared Madison, could tyranny in any form be avoided. n26
Hamilton added: "Energy in the Executive is a leading character in the
definition of good government. It
is essential to the protection of the community against foreign attacks; it is
not less essential to the steady administration of the laws; [***1223] to the protection of property against
those irregular and high-handed combinations which sometimes interrupt the
ordinary course of justice; to the security of liberty against the enterprises
and assaults of ambition, of faction, and of anarchy." n27 It is thus
apparent that the Presidency was deliberately fashioned as an office of power
and independence. Of course, the
Framers created no autocrat capable of arrogating any power unto himself at any
time. But neither did they create
an automaton impotent to exercise the powers of Government at a time when the
survival of the Republic itself may be at stake.
n26 The Federalist, No. XLVIII.
n27 The Federalist, No. LXX.
In passing upon the grave
constitutional question presented in this case, we must never forget, as Chief
Justice Marshall admonished, that the Constitution is "intended to endure
for ages to come, and, consequently, to be adapted to the various crises
of human affairs," and that "its means are adequate to its
ends." n28 Cases do arise presenting questions which could not have been
foreseen by the Framers. In such
cases, the Constitution has been treated as a living document adaptable to new
situations. n29 [*683] But we are not called upon today to
expand the Constitution to meet a new situation. For, in this case, we need only look to
history and time-honored principles of constitutional law -- principles that
have been applied consistently by all branches of the Government throughout our
history. It is those who assert the
invalidity of the Executive Order who seek to amend the Constitution in this
case.
n28 McCulloch v. Maryland, 4 Wheat. 316,
415, 424 (1819).
n29 United States v. Classic, 313 U.S.
299, 315-316 (1941); Home Building & Loan Assn. v. Blaisdell,
290 U.S. 398, 442-443 (1934).
III.
A review of executive action
demonstrates that our Presidents have on many occasions exhibited the
leadership contemplated by the Framers when they made the President Commander
in Chief, and imposed upon him the trust to "take Care that the Laws be
faithfully executed." With or without explicit statutory authorization,
Presidents have at such times dealt with national emergencies by acting promptly
and resolutely to enforce legislative programs, at least to save those programs
until Congress could act. Congress
and the courts have responded to such executive initiative with consistent
approval.
Our first President displayed at
once the leadership contemplated by the Framers. When the national revenue laws were
openly flouted in some sections of Pennsylvania, President Washington, without
waiting for a call from the state government, summoned the militia and took
decisive steps [**937] to secure the faithful execution of the
laws. n30 When international disputes engendered by the French revolution
threatened to involve this country in war, and while congressional policy
remained uncertain, Washington issued his Proclamation of Neutrality. Hamilton, whose defense of the
Proclamation [*684] has endured the test of time, invoked
the argument that the Executive has the duty to do that which will preserve
peace until Congress acts and, in addition, pointed to the need for keeping the
Nation informed of the requirements of existing laws and treaties as part of
the faithful execution of the laws. n31
n30 4 Annals of Congress 1411, 1413 (1794).
n31 IV Works of Hamilton (Lodge ed. 1904) 432-444.
President John Adams issued a
warrant for the arrest of Jonathan Robbins in order to execute the extradition
provisions of a treaty. This action
was challenged in Congress on the ground that no specific statute prescribed
the method to be used in executing the treaty. John [***1224] Marshall, then a member of the House of
Representatives, made the following argument in support of the President's
action:
"The treaty, which is a law,
enjoins the performance of a particular object. The person who is to perform this object
is marked out by the Constitution, since the person is named who conducts the
foreign intercourse, and is to take care that the laws be faithfully executed.
The means by which it is to be performed, the force of the nation, are in the
hands of this person. Ought not
this person to perform the object, although the particular mode of using the
means has not been prescribed? Congress, unquestionably, may prescribe the
mode, and Congress may devolve on others the whole execution of the contract;
but, till this be done, it seems the duty of the Executive department to
execute the contract by any means it possesses." n32
Efforts in Congress to discredit the President for his action failed.
n33 Almost a century later, this Court had
[*685] occasion to give its
express approval to "the masterly and conclusive argument of John
Marshall." n34
n32 10 Annals of Congress 596, 613-614 (1800); also
printed in 5 Wheat., App. pp. 3, 27 (1820).
n33 10 Annals of Congress 619 (1800).
n34 Fong Yue Ting v. United States, 149
U.S. 698, 714 (1893).
Jefferson's initiative in the
Louisiana Purchase, the Monroe Doctrine, and Jackson's removal of Government
deposits from the Bank of the United States further serve to demonstrate by
deed what the Framers described by word when they vested the whole of the
executive power in the President.
Without declaration of war,
President Lincoln took energetic action with the outbreak of the War Between
the States. He summoned troops and
paid them out of the Treasury without appropriation therefor. He proclaimed a naval blockade of the
Confederacy and seized ships violating that blockade. Congress, far from denying the validity
of these acts, gave them express approval.
The most striking action of President Lincoln was the Emancipation
Proclamation, issued in aid of the successful prosecution of the War Between
the States, but wholly without statutory authority. n35
n35 See Prize Cases, 2 Black 635 (1863);
Randall, Constitutional Problems Under Lincoln (1926); Corwin, The President:
Office and Powers (1948 ed.), 277-281.
In an action furnishing a most apt
precedent for this case, President Lincoln without statutory authority directed
the seizure of rail and telegraph lines leading to Washington. n36 Many months
later, Congress [**938] recognized and confirmed the power of
the President to seize railroads and telegraph lines and provided criminal
penalties for interference with Government operation. n37 This Act did not
confer on the President any additional powers of seizure. Congress plainly
rejected the view that the President's acts had been without legal sanction
until [*686] ratified by the legislature. Sponsors of the bill declared that its
purpose was only to confirm the power which the President already possessed.
n38 Opponents insisted a statute authorizing seizure was unnecessary and might
even be construed as limiting existing Presidential powers. n39
n36 War of the Rebellion, Official Records of the
Union and Confederate Armies, Series I, Vol. II (1880), pp. 603-604.
n37 12 Stat. 334 (1862).
n38 Senator Wade, Cong. Globe, 37th Cong., 2d Sess.
509 (1862); Rep. Blair, id., at 548.
n39 Senators Browning, Fessenden, Cowan, Grimes, id.,
at 510, 512, 516, 520.
Other seizures of private property
occurred during the War Between the States, just as they had occurred during
previous wars. n40 In United [***1225] States v. Russell, 13 Wall.
623 (1872), three river steamers were seized by Army Quartermasters on the
ground of "imperative military necessity." This Court affirmed an
award of compensation, stating:
"Extraordinary and unforeseen occasions arise, however, beyond all
doubt, in cases of extreme necessity in time of war or of immediate and
impending public danger, in which private property may be impressed into the
public service, or may be seized and appropriated to the public use, or may
even be destroyed without the consent of the owner.
. . . .
"Exigencies of the kind do arise in time of war or impending
public danger, but it is the emergency, as was said by a great magistrate, that
gives the right, [*687] and it is clear that the emergency must
be shown to exist before the taking can be justified. Such a justification may be shown, and
when shown the rule is well settled that the officer taking private property
for such a purpose, if the emergency is fully proved, is not a trespasser, and
that the government is bound to make full compensation to the owner." n41
n40 In 1818, the House Committee on Military Affairs
recommended payment of compensation for vessels seized by the Army during the
War of 1812. American State Papers,
Claims (1834), 649. Mitchell
v. Harmony, 13 How. 115, 134 (1852), involving seizure of a wagon train
by an Army officer during the Mexican War, noted that such executive seizure
was proper in case of emergency, but affirmed a personal judgment against the
officer on the ground that no emergency had been found to exist. The judgment was paid by the United
States pursuant to Act of Congress.
10 Stat. 727 (1852).
n41 13 Wall., at 627-628. Such a compensable taking
was soon distinguished from the noncompensable taking and destruction of
property during the extreme exigencies of a military campaign. United States v. Pacific R. Co.,
120 U.S. 227 (1887).
In In re Neagle, 135 U.S. 1
(1890), this Court held that a federal officer had acted in line of duty when
he was guarding a Justice of this Court riding circuit. It was conceded that there was no
specific statute authorizing the President to assign such a guard. In holding that such a statute was not
necessary, the Court broadly stated the question as follows:
"[The President] is enabled to fulfil the duty of his great
department, expressed in the phrase that 'he shall take care that the laws be
faithfully executed.'
"Is this duty limited to the
enforcement of acts of Congress or of treaties of the United States according
to their express terms, or does it include the rights, duties and
obligations growing out of the Constitution itself, our international
relations, and all the [**939] protection implied by the nature of the
government under the Constitution?" n42
The latter approach was emphatically adopted by the Court.
n42 135 U.S., at 64.
President Hayes authorized the
wide-spread use of federal troops during the Railroad Strike of 1877. n43
President Cleveland also used the troops in the Pullman Strike [*688] of 1895 and his action is of special
significance. No statute authorized
this action. No call for help had
issued from the Governor of Illinois; indeed Governor Altgeld disclaimed the
need for supplemental forces. But
the President's concern was that federal laws relating to the free flow of
interstate commerce and the mails be continuously and faithfully executed without
interruption. n44 To further this aim his agents sought and obtained the
injunction upheld by this Court in In re Debs, 158 U.S. 564 (1895). The
Court scrutinized each of the steps taken by the President to insure execution
of the "mass of legislation" dealing with commerce and the mails and
gave his conduct full approval.
Congress likewise took note of this use of Presidential power to
forestall apparent obstacles
[***1226] to the faithful
execution of the laws. By separate
resolutions, both the Senate and the House commended the Executive's action.
n45
n43 Rich, The Presidents and Civil Disorder (1941),
72-86.
n44 Cleveland, The Government in the Chicago Strike of
1894 (1913).
n45 26 Cong. Rec. 7281-7284, 7544-7546 (1894).
President Theodore Roosevelt
seriously contemplated seizure of Pennsylvania coal mines if a coal shortage
necessitated such action. n46 In his autobiography, President Roosevelt
expounded the "Stewardship Theory" of Presidential power, stating
that "the executive as subject only to the people, and, under the
Constitution, bound to serve the people affirmatively in cases where the
Constitution does not explicitly forbid him to render the service." n47
Because the contemplated seizure of the coal mines was based on this theory,
then ex-President Taft criticized President Roosevelt in a passage in his book
relied upon by the District Court in this case. Taft, Our Chief Magistrate and His
Powers (1916), 139-147. In the same
book, however, President Taft agreed that
[*689] such powers of the
President as the duty to "take Care that the Laws be faithfully
executed" could not be confined to "express Congressional
statutes." Id., at 88. In
re Neagle, supra, and In re Debs, supra, were cited as conforming
with Taft's concept of the office, id., at pp. 88-94, as they were later
to be cited with approval in his opinion as Chief Justice in Myers v. United
States, 272 U.S. 52, 133 (1926). n48
n46 Theodore Roosevelt, Autobiography (1916 ed.),
479-491.
n47 Id., at 378.
n48 Humphrey's Executor v. United States,
295 U.S. 602, 626 (1935), disapproved expressions in the Myers opinion
only to the extent that they related to the President's power to remove members
of quasi-legislative and quasi-judicial commissions as contrasted with
executive employees.
In 1909, President Taft was informed
that government-owned oil lands were being patented by private parties at such
a rate that public oil lands would be depleted in a matter of months. Although Congress had explicitly
provided that these lands were open to purchase by United States citizens, 29
Stat. 526 (1897), the President nevertheless ordered the lands withdrawn from
sale "in aid of proposed legislation." In United States v. Midwest
Oil Co., 236 U.S. 459 (1915), the President's action was sustained as
consistent with executive practice throughout our history. An excellent brief was filed in the case
by the Solicitor General, Mr. John W. Davis, together with Assistant Attorney
General Knaebel, later Reporter for this Court. In this brief, the situation confronting
President Taft was described as "an emergency; there was no time to wait
for the action of Congress."
[**940] The brief then
discusses the powers of the President under the Constitution in such a case:
"Ours is a self-sufficient
Government within its sphere. ( Ex
parte Siebold, 100 U.S., 371, 395; in re Debs, 158 U.S., 564, 578.)
'Its means are adequate to its ends' ( McCulloch v. Maryland, 4
Wheat., 316, 424), [*690] and it is rational to assume that its active
forces will be found equal in most things to the emergencies that confront
it. While perfect flexibility is
not to be expected in a Government of divided powers, and while division of
power is one of the principal features of the Constitution, it is the plain
duty of those who are called upon to draw the dividing lines to ascertain the
essential, recognize the practical, and avoid a slavish formalism which can
only serve to ossify the Government and reduce its efficiency without any
compensating good. The function of
making laws is peculiar to Congress, and the Executive can not exercise that
function to any degree. But this is
not to say that all of the subjects concerning which laws might be
made [***1227] are perforce removed from the possibility
of Executive influence. The
Executive may act upon things and upon men in many relations which have not,
though they might have, been actually regulated by Congress. In other words, just as there are fields
which are peculiar to Congress and fields which are peculiar to the Executive,
so there are fields which are common to both, in the sense that the Executive
may move within them until they shall have been occupied by legislative
action. These are not the fields of
legislative prerogative, but fields within which the lawmaking power may enter
and dominate whenever it chooses.
This situation results from the fact that the President is the active
agent, not of Congress, but of the Nation.
As such he performs the duties which the Constitution lays upon him
immediately, and as such, also, he executes the laws and regulations adopted by
Congress. He is the agent of the
people of the United States, deriving all his powers from them and responsible
directly to them. In no [*691] sense is he the agent of Congress. He obeys and executes the laws of
Congress, not because Congress is enthroned in authority over him, but because
the Constitution directs him to do so.
"Therefore it follows that in
ways short of making laws or disobeying them, the Executive may be under a
grave constitutional duty to act for the national protection in situations not
covered by the acts of Congress, and in which, even, it may not be said that
his action is the direct expression of any particular one of the independent
powers which are granted to him specifically by the Constitution. Instances wherein the President has felt
and fulfilled such a duty have not been rare in our history, though, being for
the public benefit and approved by all, his acts have seldom been challenged in
the courts. We are able, however,
to present a number of apposite cases which were subjected to judicial
inquiry."
The brief then quotes from such cases as In re Debs, supra, and In
re Neagle, supra, and continues:
"As we understand the
doctrine of the Neagle case, and the cases therein cited, it is clearly
this: The Executive is authorized to exert the power of the United States
when he finds this necessary for the protection of the agencies, the
instrumentalities, or the property of the Government. This does not mean an authority to
disregard the wishes of Congress on the subject, when that subject lies within
its control and when those wishes have been expressed, and it certainly does
not involve the slightest semblance of a power to legislate, much less to
'suspend' [**941] legislation already passed by
Congress. It involves the
performance of specific acts, not of a
[*692] legislative but
purely of an executive character -- acts which are not in themselves laws, but
which presuppose a 'law' authorizing him to perform them. This law is not expressed, either in the
Constitution or in the enactments of Congress, but reason and necessity compel
that it be implied from the exigencies of the situation.
"In none of the cases which
we have mentioned, nor in the cases cited in the extracts taken from the Neagle
case, was it possible to say that the action of the President was directed,
expressly or impliedly, by Congress.
The situations dealt with had never been covered by any act of Congress,
and there was no ground whatever for a contention that the possibility of their
occurrence had ever been specifically considered by the legislative mind. In none of those cases did the action of
the President amount merely to the execution of some specific law.
"Neither does any of them
stand apart in principle from the case at bar, as involving the exercise of
specific constitutional powers of the President in a degree in which this [***1228] case does not involve them. Taken collectively, the provisions of
the Constitution which designate the President as the official who must
represent us in foreign relations, in commanding the Army and Navy, in keeping
Congress informed of the state of the Union, in insuring the faithful execution
of the laws and in recommending new ones, considered in connection with the
sweeping declaration that the executive power shall be vested in him,
completely demonstrate that his is the watchful eye, the active hand, the overseeing
dynamic force of the United States." n49
[*693] This brief is valuable not alone because
of the caliber of its authors but because it lays bare in succinct reasoning
the basis of the executive practice which this Court approved in the Midwest
Oil case.
n49 Brief for the United States, No. 278, October
Term, 1914, pp. 11, 75-77, 88-90.
During World War I, President
Wilson established a War Labor Board without awaiting specific direction by
Congress. n50 With William Howard Taft and Frank P. Walsh as co-chairmen, the
Board had as its purpose the prevention of strikes and lockouts interfering
with the production of goods needed to meet the emergency. Effectiveness of War
Labor Board decision was accomplished by Presidential action, including seizure
of industrial plants. n51 Seizure of the Nation's railroads was also ordered by
President Wilson. n52
n50 National War Labor Board. Bureau of Labor Statistics, Bull. 287
(1921).
n51 Id., at 24-25, 32-34. See also, 2 Official
U.S. Bull. (1918), No. 412; 8 Baker, Woodrow Wilson, Life & Letters (1939),
400-402; Berman, Labor Disputes and the President (1924), 125-153; Pringle, The
Life and Times of William Howard Taft (1939), 915-925.
n52 39 Stat. 619, 645 (1916), provides that the
President may take possession of any system of transportation in time of
war. Following seizure of the
railroads by President Wilson, Congress enacted detailed legislation regulating
the mode of federal control. 40
Stat. 451 (1918).
When Congress was considering the statute authorizing
the President to seize communications systems whenever he deemed such action
necessary during the war, 40 Stat. 904 (1918), Senator (later President)
Harding opposed on the ground that there was no need for such stand-by powers
because, in event of a present necessity, the Chief Executive "ought
to" seize communications lines, "else he would be unfaithful to his
duties as such Chief Executive." 56 Cong. Rec. 9064 (1918).
Beginning with the Bank Holiday
Proclamation n53 and continuing through World War II, executive leadership and
initiative were characteristic of President [**942] Franklin D. Roosevelt's administration. In 1939, upon the outbreak [*694] of war in Europe, the President
proclaimed a limited national emergency for the purpose of strengthening our
national defense. n54 In May of 1941, the danger from the Axis belligerents
having become clear, the President proclaimed "an unlimited national
emergency" calling for mobilization of the Nation's defenses to repel aggression.
n55 The President took the initiative in strengthening our defenses by
acquiring rights from the British Government to establish air bases in exchange
for overage destroyers. n56
n53 48 Stat. 1689 (1933).
n54 54 Stat. 2643 (1939).
n55 55 Stat. 1647 (1941).
n56 86 Cong. Rec. 11354 (1940) (Message of the
President). See 39 Op. Atty. Gen.
484 (1940). Attorney General Jackson's opinion did not extend to the transfer
of "mosquito boats," solely because an express statutory prohibition
on transfer was applicable.
In 1941, President Roosevelt acted
to protect Iceland from attack by Axis powers, when British forces were
withdrawn, by sending our forces to occupy Iceland. Congress was informed of this action on
the same day that our forces reached Iceland. n57 The occupation of Iceland was
but one of "at least 125 incidents [***1229] " in our history in which
Presidents, "without congressional authorization, and in the absence of a
declaration of war, [have] ordered the Armed Forces to take action or maintain
positions abroad." n58
n57 87 Cong. Rec. 5868 (1941) (Message of the
President).
n58 Powers of the President to Send the Armed Forces
Outside the United States, Report prepared by executive department for use of
joint committee of Senate Committees on Foreign Relations and Armed Services,
82d Cong., 1st Sess., Committee Print, 2 (1951).
Some six months before Pearl
Harbor, a dispute at a single aviation plant at Inglewood, California,
interrupted a segment of the production of military aircraft. In spite of the comparative
insignificance of this work stoppage to total defense production as contrasted
with the complete paralysis now threatened by a shutdown of the entire basic
steel industry, and even though
[*695] our armed forces were
not then engaged in combat, President Roosevelt ordered the seizure of the
plant "pursuant to the powers vested in [him] by the Constitution and laws
of the United States, as President of the United States of America and
Commander in Chief of the Army and Navy of the United States." n59 The
Attorney General (Jackson) vigorously proclaimed that the President had the
moral duty to keep this Nation's defense effort a "going concern."
His ringing moral justification was coupled with a legal justification equally
well stated:
"The Presidential
proclamation rests upon the aggregate of the Presidential powers derived from
the Constitution itself and from statutes enacted by the Congress.
"The Constitution lays upon
the President the duty 'to take care that the laws be faithfully executed.'
Among the laws which he is required to find means to execute are those which
direct him to equip an enlarged army, to provide for a strengthened navy, to
protect Government property, to protect those who are engaged in carrying out
the business of the Government, and to carry out the provisions of the
Lend-Lease Act. For the faithful
execution of such laws the President has back of him not only each general
law-enforcement power conferred by the various acts of Congress but the
aggregate of all such laws plus that wide discretion as to method vested in him
by the Constitution for the purpose of executing the laws.
"The Constitution also places
on the President the responsibility and vests in him the powers of Commander
in [**943] Chief of the Army and of the Navy. These
weapons for the protection of the continued existence of the Nation are placed
in his sole command [*696] and the implication is clear that he should
not allow them to become paralyzed by failure to obtain supplies for which
Congress has appropriated the money and which it has directed the President to
obtain." n60
At this time, Senator Connally proposed amending the Selective Training
and Service Act to authorize the President to seize any plant where an
interruption of production would unduly impede the defense effort. n61
Proponents of the measure in no way implied that the legislation would add to
the powers already possessed by the President n62 and the amendment was opposed
as unnecessary since the President already had the power. n63 The amendment
relating [***1230] to plant seizures was not approved at
that session of Congress. n64
n59 Exec. Order 8773, 6 Fed. Reg. 2777 (1941).
n60 See 89 Cong. Rec. 3992 (1943). The Attorney General also noted that the
dispute at North American Aviation was Communist inspired and more nearly
resembled an insurrection than a labor strike. The relative size of North American
Aviation and the impact of an interruption in production upon our defense effort
were not described.
n61 87 Cong. Rec. 4932 (1941). See also S. 1600 and S. 2054, 77th
Cong., 1st Sess. (1941).
n62 Reps. May, Whittington; 87 Cong. Rec. 5895, 5972
(1941).
n63 Reps. Dworshak, Feddis, Harter, Dirksen, Hook; 87
Cong. Rec. 5901, 5910, 5974, 5975 (1941).
n64 The plant seizure amendment passed the Senate, but
was rejected in the House after a Conference Committee adopted the
amendment. 87 Cong. Rec. 6424
(1941).
Meanwhile, and also prior to Pearl
Harbor, the President ordered the seizure of a shipbuilding company and an
aircraft parts plant. n65 Following the declaration of war, but prior to the
Smith-Connally Act of 1943, five additional industrial concerns were seized to
avert interruption [*697] of needed production. n66 During the
same period, the President directed seizure of the Nation's coal mines to
remove an obstruction to the effective prosecution of the war. n67
n65 Exec. Order 8868, 6 Fed. Reg. 4349 (1941); Exec.
Order 8928, 6 Fed. Reg. 5559 (1941).
n66 Exec. Order 9141, 7 Fed. Reg. 2961 (1942); Exec.
Order 9220, 7 Fed. Reg. 6413 (1942); Exec. Order 9225, 7 Fed. Reg. 6627 (1942);
Exec. Order 9254, 7 Fed. Reg. 8333 (1942); Exec. Order 9351, 8 Fed. Reg. 8097
(1943).
n67 Exec. Order 9340, 8 Fed. Reg. 5695 (1943).
The procedures adopted by President
Roosevelt closely resembled the methods employed by President Wilson. A National War Labor Board, like its
predecessor of World War I, was created by Executive Order to deal effectively
and fairly with disputes affecting defense production. n68 Seizures were
considered necessary, upon disobedience of War Labor Board orders, to assure
that the mobilization effort remained a "going concern," and to
enforce the economic stabilization program.
n68 Exec. Order 9017, 7 Fed. Reg. 237 (1942); 1
Termination Report of the National War Labor Board 5-11.
At the time of the seizure of the
coal mines, Senator Connally's bill to provide a statutory basis for seizures
and for the War Labor Board was again before Congress. As stated by its sponsor, the purpose of
the bill was not to augment Presidential power, but to "let the country
know that the Congress is squarely behind the President." n69 As in the
case of the legislative recognition of President Lincoln's power to seize,
Congress again recognized that the President already had the necessary
power, for there was no intention
to "ratify" past actions of doubtful validity. Indeed, [**944] when Senator Tydings offered an
amendment to the Connally bill expressly to confirm and validate the seizure of
the coal mines, sponsors of the bill
[*698] opposed the amendment
as casting doubt on the legality of the seizure and the amendment was defeated.
n70 When the Connally bill, S. 796, came before the House, all parts after the
enacting clause were stricken and a bill introduced by Representative Smith of
Virginia was substituted and passed.
This action in the House is significant because the Smith bill did not
contain the provisions authorizing seizure by the President but did contain
provisions controlling and regulating activities in respect to properties
seized by the Government under statute "or otherwise." n71 After a
conference, the seizure provisions of the Connally bill, enacted as the
Smith-Connally or War Labor Disputes Act of 1943, 57 Stat. 163, were agreed to
by the House.
n69 89 Cong. Rec. 3807 (1943). Similar views of the President's
existing power were expressed by Senators Lucas, Wheeler, Austin and
Barkley. Id., at 3885-3887,
3896, 3992.
n70 89 Cong. Rec. 3989-3992 (1943).
n71 S. 796, 78th Cong., 1st Sess., § § 12, 13 (1943), as passed by the House.
Following passage of the
Smith-Connally Act, seizures to assure continued production on the basis of
terms recommended by the War Labor Board were based upon that Act as well as
upon the President's power under the Constitution and the laws generally. A question did arise as to whether the
statutory language relating to "any plant, mine, or facility equipped for
the manufacture, production, or mining
[***1231] of any articles or
materials" n72 authorized the seizure of properties of Montgomery Ward
& Co., a retail department store and mail-order concern. The Attorney General (Biddle) issued an
opinion that the President possessed the power to seize Montgomery Ward
properties to prevent a work stoppage whether or not the terms of the
Smith-Connally Act authorized such a seizure. n73 This opinion was in line
with [*699] the views on Presidential powers maintained
by the Attorney General's predecessors (Murphy n74 and Jackson n75) and his successor
(Clark n76). Accordingly, the President ordered seizure of the
Chicago properties of Montgomery Ward in April, 1944, when that company refused
to obey a War Labor Board order concerning the bargaining representative of its
employees in Chicago. n77 In Congress, a Select Committee to Investigate
Seizure of the Property of Montgomery Ward & Co., assuming that the terms
of the Smith-Connally Act did not cover this seizure, concluded that the
seizure "was not only within the constitutional power but was the plain
duty of the President." n78 Thereafter, an election determined the
bargaining representative for the Chicago employees and the properties were
returned to Montgomery Ward & Co.
In December, 1944, after continued defiance of a series of War Labor
Board orders, President Roosevelt ordered the seizure of Montgomery Ward
properties throughout the country. n79 The Court of Appeals for the Seventh
Circuit upheld this seizure on statutory grounds and also indicated its
disapproval of a lower court's denial of seizure power apart from express
statute. n80
n72 57 Stat. 163, 164 (1943).
n73 40 Op. Atty. Gen. 312 (1944). See also Hearings
before House Select Committee to Investigate Seizure of Montgomery Ward &
Co., 78th Cong., 2d Sess. 117-132 (1944).
n74 39 Op. Atty. Gen. 343, 347 (1939).
n75 Note 60, supra.
n76 Letter introduced in Hearings before Senate
Committee on Labor and Public Welfare on S. 249, 81st Cong., 1st Sess. 232
(1949) pointing to the "exceedingly great" powers of the President to
deal with emergencies even before the Korean crisis.
n77 Exec. Order 9438, 9 Fed. Reg. 4459 (1944).
n78 H. R. Rep. No. 1904, 78th Cong., 2d Sess. 25
(1944) (the Committee divided along party lines).
n79 Exec. Order 9508, 9 Fed. Reg. 15079 (1944).
n80 United States v. Montgomery Ward &
Co., 150 F.2d 369 (C. A. 7th Cir. 1945), reversing 58 F.Supp. 408 (N. D.
Ill. 1945). See also Ken-Rad Tube & Lamp Corp. v. Badeau, 55
F.Supp. 193, 197-199 (W. D. Ky. 1944), where the court held that a seizure was
proper with or without express statutory authorization.
[*700] [**945] More recently, President Truman acted to
repel aggression by employing our armed forces in Korea. n81 Upon the
intervention of the Chinese Communists,
the President proclaimed the existence of an unlimited national
emergency requiring the speedy build-up of our defense establishment. n82
Congress responded by providing for increased manpower and weapons for our own
armed forces, by increasing military aid under the Mutual Security Program and
by enacting economic stabilization measures, as previously described.
n81 United States Policy in the Korean Crisis (1950),
Dept. of State Pub. 3922.
n82 15 Fed. Reg. 9029 (1950).
This is but a cursory summary of executive
leadership. But it amply
demonstrates that Presidents have taken prompt action to enforce the laws and
protect the country whether or not Congress happened to provide in advance for
the particular method of execution.
At the minimum, the executive actions reviewed herein sustain the action
of the President in this case. And
many of the cited examples of Presidential practice go far beyond the extent of
power necessary to sustain the President's order to seize the steel mills. The
fact that temporary executive seizures of industrial [***1232] plants to meet an emergency have not
been directly tested in this Court furnishes not the slightest suggestion that
such actions have been illegal.
Rather, the fact that Congress and the courts have consistently
recognized and given their support to such executive action indicates that such
a power of seizure has been accepted throughout our history.
History bears out the genius of
the Founding Fathers, who created a Government subject to law but not left subject
to inertia when vigor and initiative are required.
[*701] IV.
Focusing now on the situation
confronting the President on the night of April 8, 1952, we cannot but conclude
that the President was performing his duty under the Constitution to "take
Care that the Laws be faithfully executed" -- a duty described by
President Benjamin Harrison as "the central idea of the office." n83
n83 Harrison, This Country of Ours (1897), 98.
The President reported to Congress
the morning after the seizure that he acted because a work stoppage in steel
production would immediately imperil the safety of the Nation by preventing
execution of the legislative programs for procurement of military
equipment. And, while a shutdown
could be averted by granting the price concessions requested by plaintiffs,
granting such concessions would disrupt the price stabilization program also
enacted by Congress. Rather than
fail to execute either legislative program, the President acted to execute
both.
Much of the argument in this case
has been directed at straw men. We
do not now have before us the case of a President acting solely on the basis of
his own notions of the public welfare.
Nor is there any question of unlimited executive power in this
case. The President himself closed
the door to any such claim when he sent his Message to Congress stating his
purpose to abide by any action of Congress, whether approving or disapproving
his seizure action. Here, the
President immediately made sure that Congress was fully informed of the
temporary action he had taken only to preserve the legislative programs from
destruction until Congress could act.
The absence of a specific statute
authorizing seizure of the steel mills as a mode of executing the laws -- both
the military procurement program and the anti-inflation program -- has not
until today been thought to prevent
[*702] the President from
executing the laws. Unlike an
administrative commission confined to the enforcement of the statute under
which it was created, or the head of a department when administering a
particular statute, the
[**946] President is a
constitutional officer charged with taking care that a "mass of legislation"
be executed. Flexibility as to mode
of execution to meet critical situations is a matter of practical
necessity. This practical
construction of the "Take Care" clause, advocated by John Marshall,
was adopted by this Court in In re Neagle, In re Debs and other cases
cited supra. See also Ex
parte Quirin, 317 U.S. 1, 26 (1942). Although more restrictive views of
executive power, advocated in dissenting opinions of Justices Holmes,
McReynolds and Brandeis, were emphatically rejected by this Court in Myers
v. United States, supra, members of today's majority treat these
dissenting views as authoritative.
There is no statute prohibiting
seizure as a method of enforcing legislative programs. Congress has in no wise indicated that
its legislation is not to be executed by the taking of private property
(subject of course to the payment of just compensation) if its legislation
cannot otherwise be executed.
Indeed, [***1233] the Universal Military Training and
Service Act authorizes the seizure of any plant that fails to fill a
Government contract n84 or the properties of any steel producer that
fails to allocate steel as directed for defense production. n85 And the Defense
Production Act authorizes the President to requisition equipment and condemn
real property needed without delay in the defense effort. n86 Where Congress
authorizes seizure in instances not necessarily crucial to the defense [*703] program, it can hardly be said to have
disclosed an intention to prohibit seizures where essential to the execution of
that legislative program.
n84 62 Stat. 604, 626 (1948), 50 U. S. C. App. (Supp.
IV) § 468 (c).
n85 62 Stat. 604, 627 (1948), 50 U. S. C. App. (Supp.
IV) § 468 (h)(1).
n86 Tit. II, 64 Stat. 798, 799 (1950), as amended, 65
Stat. 138 (1951).
Whatever the extent of
Presidential power on more tranquil occasions, and whatever the right of the
President to execute legislative programs as he sees fit without reporting the
mode of execution to Congress, the single Presidential purpose disclosed on
this record is to faithfully execute the laws by acting in an emergency to
maintain the status quo, thereby preventing collapse of the legislative
programs until Congress could act.
The President's action served the same purposes as a judicial stay
entered to maintain the status quo in order to preserve the jurisdiction of a
court. In his Message to Congress
immediately following the seizure, the President explained the necessity of his
action in executing the military procurement and anti-inflation legislative
programs and expressed his desire to cooperate with any legislative proposals
approving, regulating or rejecting the seizure of the steel mills.
Consequently, there is no evidence whatever of any Presidential purpose to defy
Congress or act in any way inconsistent with the legislative will.
In United States v. Midwest
Oil Co., supra, this Court approved executive action where, as here, the
President acted to preserve an important matter until Congress could act --
even though his action in that case was contrary to an express statute. In this case, there is no statute
prohibiting the action taken by the President in a matter not merely important
but threatening the very safety of the Nation. Executive inaction in such a situation,
courting national disaster, is foreign to the concept of energy and initiative
in the Executive as created by the Founding Fathers. The Constitution was itself
"adopted in a period of grave emergency. . . . While emergency does not create power,
emergency may furnish [*704] the occasion for the exercise of
power." n87 The Framers knew, as we should know in these times of peril,
that there is real danger in Executive weakness. There is no cause to fear Executive
tyranny so long as the laws [**947] of Congress are being faithfully
executed. Certainly there is no basis for fear of dictatorship when the
Executive acts, as he did in this case, only to save the situation until
Congress could act.
n87 Home Building & Loan Assn. v. Blaisdell,
290 U.S. 398, 425-426 (1934).
V.
Plaintiffs place their primary emphasis
on the Labor Management Relations Act of 1947, hereinafter referred to as the
Taft-Hartley Act, but do not contend that that Act contains any provision
prohibiting seizure.
Under the Taft-Hartley Act, as
under the Wagner Act, collective bargaining and the right to strike are at the
heart of our national labor policy.
Taft-Hartley preserves the right to strike in any emergency, however
serious, subject only to an 80-day delay in cases of strikes imperiling the
national [***1234] health and safety. n88 In such a case,
the President may appoint a board of inquiry to report the facts of the
labor dispute. Upon receiving that
report, the President may direct the Attorney General to petition a
District Court to enjoin the strike.
If the injunction is granted, it may continue in effect for no more than
80 days, during which time the board of inquiry makes further report and
efforts are made to settle the dispute.
When the injunction is dissolved, the President is directed to submit a
report to Congress together with his recommendations. n89
n88 See Bus Employees v. Wisconsin Board,
340 U.S. 383 (1951).
n89 § §
206-210, Labor Management Relations Act of 1947. 29 U. S. C. (Supp. IV) §
§ 176-180.
Enacted after World War II,
Taft-Hartley restricts the right to strike against private employers only to a
limited [*705] extent and for the sole purpose of
affording an additional period of time within which to settle the dispute. Taft-Hartley in no way curbs strikes
before an injunction can be obtained and after an 80-day injunction is
dissolved.
Plaintiffs admit that the
emergency procedures of Taft-Hartley are not mandatory. Nevertheless, plaintiffs apparently
argue that, since Congress did provide the 80-day injunction method for dealing
with emergency strikes, the President cannot claim that an emergency exists
until the procedures of Taft-Hartley have been exhausted. This argument was not the basis of the
District Court's opinion and, whatever merit the argument might have had
following the enactment of Taft-Hartley, it loses all force when viewed in
light of the statutory pattern confronting the President in this case.
In Title V of the Defense
Production Act of 1950, n90 Congress stated:
"It is the intent of
Congress, in order to provide for effective price and wage stabilization
pursuant to title IV of this Act and to maintain uninterrupted production, that
there be effective procedures for the settlement of labor disputes affecting
national defense." (§
501.)
Title V authorized the President to initiate labor-management
conferences and to take action appropriate to carrying out the recommendations
of such conferences and the provisions of Title V. (§ 502.) Due regard is to be given to
collective bargaining practice and stabilization policies and no action taken
is to be inconsistent with Taft-Hartley and other laws. (§ 503.) The purpose of these provisions
was to authorize the President "to establish a board, commission or other
agency, similar [*706] to the War Labor Board of World War II,
to carry out the title." n91
n90 64 Stat. 812, 65 Stat. 132 (1950).
n91 H. R. Rep. No. 3042, 81st Cong., 2d Sess. 35
(1950) (Conference Report). See
also S. Rep. No. 2250, 81st Cong., 2d Sess. 41 (1950).
The President authorized the Wage
Stabilization Board (WSB), which administers the wage stabilization functions
of Title IV of the Defense Production Act, also to deal with labor disputes
affecting the defense [**948] program. n92 When extension of the
Defense Production Act was before Congress in 1951, the Chairman of the Wage
Stabilization Board described in detail the relationship between the
Taft-Hartley procedures applicable to labor disputes imperiling the national
health and safety and the new WSB disputes procedures especially devised for settlement
of labor disputes growing out of the needs of the defense program. n93 Aware
that a technique separate from Taft-Hartley had been devised, members of
Congress attempted to divest the WSB of its disputes powers. These attempts [***1235] were defeated in the House, were not
brought to a vote in the Senate, and the Defense Production Act was extended
through June 30, 1952, without change in the disputes powers of the WSB.
n94 [*707] Certainly this legislative creation of a
new procedure for dealing with defense disputes negatives any notion that
Congress intended the earlier and discretionary Taft-Hartley procedure to be an
exclusive procedure.
n92 Exec. Order 10161, 15 Fed. Reg. 6105 (1950), as
amended, Exec. Order 10233, 16 Fed. Reg. 3503 (1951).
n93 Hearings before the House Committee on Banking and
Currency on Defense Production Act Amendments of 1951, 82d Cong., 1st Sess.
305-306, 312-313 (1951).
n94 The Lucas Amendment to abolish the disputes
function of the WSB was debated at length in the House, the sponsor of the
amendment pointing out the similarity of the WSB functions to those of the War
Labor Board and noting the seizures that occurred when War Labor Board orders
were not obeyed. 97 Cong. Rec.
8390-8415. The amendment was
rejected by a vote of 217 to 113. Id.,
at 8415. A similar amendment introduced in the Senate was withdrawn. 97 Cong. Rec. 7373-7374. The Defense Production Act was extended
without amending Tit. V or otherwise affecting the disputes functions of the
WSB. 65 Stat. 132 (1951).
Accordingly, as of December 22,
1951, the President had a choice between alternate procedures for settling the
threatened strike in the steel mills: one route created to deal with peacetime
disputes; the other route specially created to deal with disputes growing out
of the defense and stabilization program.
There is no question of by-passing a statutory procedure because both of
the routes available to the President in December were based upon statutory
authorization. Both routes were
available in the steel dispute. The
Union, by refusing to abide by the defense and stabilization program, could
have forced the President to invoke Taft-Hartley at that time to delay the
strike a maximum of 80 days.
Instead, the Union agreed to cooperate with the defense program and
submit the dispute to the Wage Stabilization Board.
Plaintiffs had no objection
whatever at that time to the President's choice of the WSB route. As a result, the strike was postponed, a
WSB panel held hearings and reported the position of the parties and the WSB
recommended the terms of a settlement which it found were fair and
equitable. Moreover, the WSB
performed a function which the board of inquiry contemplated by Taft-Hartley
could not have accomplished when it checked the recommended wage settlement
against its own wage stabilization regulations issued pursuant to its
stabilization functions under Title IV of the Defense Production Act.
Thereafter, the parties bargained on the basis of the WSB recommendation.
When the President acted on April
8, he had exhausted the procedures for settlement available to him. Taft-Hartley was a route parallel to,
not connected with, the WSB procedure. The strike had been delayed 99 [*708] days as contrasted with the maximum
delay of 80 days under Taft-Hartley.
There had been a hearing on the issues in dispute and bargaining which
promised settlement up to the very hour before seizure had broken down. Faced with immediate national peril
through stoppage in steel production on the one hand and faced with destruction
of the wage and price legislative programs on the other, the President took
temporary possession of the steel mills as the only course [**949] open to him consistent with his duty to take
care that the laws be faithfully executed.
Plaintiffs' property was taken and
placed in the possession of the Secretary of Commerce to prevent any
interruption in steel production.
It made no difference whether the stoppage was caused by a union-management
dispute over terms and conditions of employment, a union-Government dispute
over wage stabilization or a management-Government dispute over price
stabilization. The President's action has thus far been effective, not in
settling the dispute, but in saving the various legislative programs at
stake [***1236] from destruction until Congress could
act in the matter.
VI.
The diversity of views expressed
in the six opinions of the majority, the lack of reference to authoritative
precedent, the repeated reliance upon prior dissenting opinions, the complete
disregard of the uncontroverted facts showing the gravity of the emergency and
the temporary nature of the taking all serve to demonstrate how far afield one
must go to affirm the order of the District Court.
The broad executive power granted
by Article II to an officer on duty 365 days a year cannot, it is said, be
invoked to avert disaster. Instead,
the President must confine himself to sending a message to Congress
recommending action. Under this messenger-boy
concept of [*709] the Office, the President cannot even
act to preserve legislative programs from destruction so that Congress will
have something left to act upon.
There is no judicial finding that the executive action was unwarranted
because there was in fact no basis for the President's finding of the existence
of an emergency n95 for, under this view, the gravity of the emergency and the
immediacy of the threatened disaster are considered irrelevant as a matter of
law.
n95 Compare Sterling v. Constantin, 287
U.S. 378, 399-401 (1932).
Seizure of plaintiffs' property is
not a pleasant undertaking.
Similarly unpleasant to a free country are the draft which disrupts the
home and military procurement which causes economic dislocation and compels
adoption of price controls, wage stabilization and allocation of
materials. The President informed
Congress that even a temporary Government operation of plaintiffs' properties
was "thoroughly distasteful" to him, but was necessary to prevent
immediate paralysis of the mobilization program. Presidents have been in the past, and
any man worthy of the Office should be in the future, free to take at least
interim action necessary to execute legislative programs essential to survival
of the Nation. A sturdy judiciary
should not be swayed by the unpleasantness or unpopularity of necessary
executive action, but must independently determine for itself whether the
President was acting, as required by the Constitution, to "take Care that
the Laws be faithfully executed."
As the District Judge stated, this
is no time for "timorous" judicial action. But neither is this a time for timorous
executive action. Faced with the
duty of executing the defense programs which Congress had enacted and the
disastrous effects that any stoppage in steel production would have on those
programs, the President acted to preserve those programs by seizing the steel
mills. [*710] There is no question that the possession
was other than temporary in character and subject to congressional direction --
either approving, disapproving or regulating the manner in which the mills were
to be administered and returned to the owners. The President immediately informed
Congress of his action and clearly stated his intention to abide by the
legislative will. No basis for
claims of arbitrary action, unlimited powers or dictatorial usurpation of
congressional power appears from the facts of this case. On the contrary, judicial, legislative
and executive precedents throughout our history demonstrate that in this case
the President acted in full conformity with his duties under the
Constitution. Accordingly, we would
reverse the order of the District Court.