YOUNGSTOWN' CO. v.YOUNGSTOWN CO. v. SAWYER. 579 Opinion of the Court. Board ' to investigate and make recommendations for fair and equitable terms of settlement. This Board's report

YOUNGSTOWN' CO. v. SAWYER.

Syliabus.

YOUNGSTOWN SHEET & TUBE CO. ET AL.

v. SAWYER.

NO. 744. CERTIORARI TO THE UNITED STATES COURT OFAPPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT."

Argued May 12-13, 1952.-Decided June 2, 1952.

To avert a nation-wide strike of steel workers in April 1952, whichhe believed would jeopardize national defense, the President issuedan Executive Order directing the. Secretary of Commerce to seizeand operate most of the steel mills. The Order was not basedupon any specific statutory authority but was. based generallyupon all powers vested in the President by the Constitution andlaws of the United States and as President of the United Statesand Commander in Chief of the Armed Forces. The Secretaryissued an order seizing the steel mills and directing their presidentsto operate them as operating managers for the United States inaccordance with his regulations and directions. The Presidentpromptly reported these events to Congress; but Congress took noaction. It had provided other methods of dealing with such situa-tions and had refused to authorize. governmental seizures ofproperty to settle labor disputes. The steel companies sued theSecretary in a Federal District Court, praying for a, declaratoryjudgment and injunctive relief. The District Court issued a pre-liminary injunction, which the.Court of Appeals stayed. Held:

1. Although this case has proceeded no further than the pre-liminary injunction stage, it is ripe for determination of the con-stitutional validity of the Executive Order on the record presented.Pp. 584-585.

(a) Under prior decisions of this Court, there is doubt asto the right to recover in the Court of Claims on account of prop-.erties unlawfully taken by government officials for public use.P. 585.

(b) Seizure and governmental operation of these going busi-nesses were bound to result in many present and future damagesof such nature as to be difficult, if not incapable, of measurementP. 585.

*Together with No. 745, Sawyer; Secretary of Commerce, v

Youngstown Sheet & Tube Co. et al., also on certiorari to the samecourt.

S994084 0-52---41

580 OCTOBER TERM, 1951.

Syllabus. 343 U. S.

2. The Executive Order was not authorized by the Constitutionor laws of the United States; and it cannot stand. Pp. 585-589.

(a) There is no statute which expressly or impliedly author-izes the President to take possession of this property as he didhere. Pp. 585-586.

(b) In its consideration of the Taft-Hartley Act in 1947,Congress refused to authorize governmental seizures of propertyas a method of preventing work stoppages and settling labor dis-putes. P. 586.

(c) Authority of the President to issue such an order in thecircumstances of this case cannot be implied from the aggregateof his powers under Article II of the Constitution. Pp. 587-589.

(d) The Order cannot properly be sustained as an exerciseof the President's military power as Commander in Chief of theArmed Forces. P. 587.

(e) Nor can the Order be sustained because of the severalprovisions of Article II which grant executive power to the Presi-dent. Pp. 587-589.

(f) The power here sought to be exercised is the lawmakingpower, which the Constitution vests in the Congress alone, in bothgood and bad times. Pp. 587-589.

(g) Even if it be true that other Presidents have taken posses-sion of private business enterprises without congressional authorityin order to settle labor disputes, Congress has not thereby lost itsexclusive constitutional authority to make the laws necessary andproper to carry out all powers vested by the Constitution "in theGovernment of the United States, or any Department or (Officerthereof." Pp. 588-589.

103 F. Supp. 569,.affirmed.

For concurring opinion of MR. JUSTICE FRANKFURTER, see post,p. 593.

For concurring opinion of MR. JUSTICE DOUGLAS, see post, p. 629.For concurring opinion of MR. JUSTICE JACKSON, see post, p. 634.For concurring opinion of MR. JUSTICE BURTON, see post, p. 655.For opinion of MR. JUSTICE CLARK, concurring in the judgment

of the Court, see post, p. 660.For dissenting opinion of MR. CHIEF JUSTICE VINSON, joined by

MR. JUSTICE REED and MR. JUSTICE MINTON, see post, p. 667.

The District Couft issued a preliminary injunction re-straining the Secretary of Commerce from carrying outthe terms of Executive Order No. 10340, 16 Fed. Reg.

YOUNGSTOWN CO. v. SAWYER.

579 Counsel for Parties.

3503. 103 F. Supp. 569. The Court of Appeals issued astay. 90 U. S. App. D. C. , 197 F. 2d 582. ThisCourt granted certiorari. 343 U. S. 937. The judgmentof the District Court is affirmed, p. 589.

John W. Davis argued the cause for petitioners in No.744 and respondents in No. 745. On the brief were Mr.Davis, Nathan L. Miller, John Lord O'Brian, Roger M.Blough, Theodore Kiendl, Porter R. Chandler and How-ard C. Westwood for the United States Steel Co.; BruceBromley, E. Fontaine Broun and John H. Pickering forthe Bethlehem Steel Co.; Luther Day, T. F. Patton, Ed-mund L. Jones, Howard Boyd and John C. Gall for theRepublic Steel Corp.; John C. Bane, Jr., H. Parker Sharpand Sturgis Warner for the Jones & Laughlin Steel Corp.;Mr. Gall, John J. Wilson and J. E. Bennett for theYoungstown Sheet & Tube Co. et al.; Charles H. Tuttle,Winfred K. Petigrue and Joseph P. Tumulty, Jr. (whoalso filed an additional brief) for the Armco Steel Corp.et al.; and Randolph W. Childs, Edgar S. McKaig andJames Craig Peacock (who also filed an additional, brief)for E. J. Lavino & Co., petitioners in No. 744 and re-spondents in No. 745.

Solicitor General Perlman argued the cause for re-spondent in No. 744 and petitioner in No. 745. Withhim on the brief were Assistant Attorney General Bald-ridge, James L. Morrisson, Samuel D. Slade, Oscar H.Davis, Robert W. Ginnane, Marvin E. Frankel, BenjaminForman and Herman Marcuse.

By special leave of Court, Clifford D. O'Brien andHarold C. Heiss argued the cause for the Brotherhood ofLocomotive Engineers et al., As amici curiae, supportingpetitioners in No. 744 and respondents in No. 745. Withthem on the brief were Ruth Weyand and V. C. ShUttle-worth.

994M4 0-52-42

OCTOBER TERM, 1951.

Opimon of the Court. 343 U. S.

By special leave, of Court, Arthur J. Goldberg arguedthe cause for the United Steelworkers of America, C. I. 0.,as amicus curiae. With him on the brief was Thomas E.Harris.

MR. JUSTICE BLACK delivered the opinion of the Court.We are asked to decide whether the President was act-

ing within his constitutional power when he issued anorder directing the Secretary of Commerce to take pos-session 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 Constitu-tion has expressly confided to the Congress and not tothe President. The Government's position is that theorder was made on findings of the President that hisaction was necessary to avert a national catastrophewhich would inevitably result from a stoppage of steelproduction, and that in meeting this grave emergencythe President was acting within the aggregate of his con-stitutional powers as the Nation's Chief Executive and'the Commander in Chief of the Armed Forces of theUnited States. The issue emerges here from the follow-ing series of events:

In the latter part of 1951, a dispute arose between thesteel companies and their employees over terms and con-ditions that should be included in new collective bargain-ing agreements. Long-continued conferences failed to re-solve the dispute. On December 18, 1951, the employees'representative, United Steelworkers of America, C. I. 0.,gave notice of an intention to strike when the existingbargaining agreements expired on December 31. TheFederal. Mediation and Conciliation Service then in-tervened 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

582


579 Opinion of the Court.

Board ' to investigate and make recommendations for fairand equitable terms of settlement. This Board's reportresulted in no 'settlement. On April 4, 1952, the Uniongave notice of a nation-wide strike called to begin at12:01 a. m. April 9. The indispensability of steel as acomponent of substantially all weapons and other war'materials led the President to believe that the proposedwork stoppage would immediately jeopardize our na-tional defense and that governmental seizure of the steel

4nills was necessary in order to assure the continued avail-ability of steel. Reciting these considerations for hisaction, the President, a few hours before the strike was tobegin, issued Executive Order 10340, a copy of which isattached as an appendix, post, p. 589. -The order directedthe Secretary of Commerce to take possession of mostof the steel mills and keep them running. The Secretaryimmediately issued his own possessory orders, callingupon the presidents of the various seized companies toserve as operating managers for the United States. Theywere directed to carry on their activities in accordancewith regulations and directions of the Secretary. Thenext morning the President sent a message to Congressreporting his action. Cong. Rec., April 9, 1952, p. 3962.Twelve days later he sent a second message. Cong. Rec.,April 21, 1952, p. 4192. Congress has taken no action.

Obeying the Secretary's orders under protest, the com-panies brought proceedings against him in the DistrictCourt. .Their complaints charged that the seizure wasnot authorized by an act of Congress or by any constitu-tional provisions, The District Court was asked to declarethe orders of the President and the Secretary invalid andto issue preliminary and permanent injunctions restrain-ing their enforcement. Opposing the motion for pre-

I This Board was 'established under Executive Order 10233; 16

Fed. Reg., 3503.

OCTOBER TERM, 1951.

Opinion of the Court. 343 U. S.

liminary injunction, the United States asserted that astrike disrupting steel production for even a brief periodwould so endanger the well-being and safety of the Nationthat the President had "inherent power" to do wh t hehad done-power "supported by the Constitution, b: his-torical precedent, and by court decisions." The Govern-ment also contended that in any event no preliminaryinjunction should be issued because the companies hadmade no showing that their available legal remedies wereinadequate or that their injuries from seizure would beirreparable. Holding against the Government on allpoints, the District Court on April 30 issued a preliminaryinjunction restraining the Secretary from "continuing theseizure and possession of the plants . .. . and from actingunder the purported authority of Executive Order No.10340." 103 F. Supp. 569. On the same day the Courtof Appeals stayed the District Court's injunction. 90U. S. App.. D. C. -, 197 F. 2d 582. Deeming it bestthat the issues raised be promptly decided by this Court,we granted certiorari on May 3 and set the cause forargument on May 12. 343 U. S. 937.

Two crucial issues have developed: First. Should finaldetermination of the constitutional validity of the Presi-dent's order be made in this case which has proceeded nofurther than the preliminary injunction stage? Second.If so, is the seizure order within the constitutional powerof the President?

I.

It is urged that there were non-constitutional groundsupon which the District Court could have denied the pre-liminary injunction and thus have followed the cus-tomary judicial practice of declining to reach and decide

"constitutional questions until compelled to do so. Onthis basis it is argued that equity's extraordinary injunc-tive relief should have been denied because (a) seizure ofthe companies' properties did not inflict irreparable dam-



ages, and (b) there were available legal remedies adequateto afford compensation for any possible damages whichthey might suffer. While separately argued by the Gov-ernment, these two contentions are here closely related, ifnot identical. Arguments as to both rest in large part onthe Government's claim that should the seizure ulti-mately be held unlawful, the companies could recoverfull compensation in the Court of Claims for the unlawfultaking. Prior cases in this Court have cast doubt onthe right to recover in the Court of Claims on account ofproperties unlawfully taken by government officials forpublic use as these properties were alleged to have, been.See e. g., Hooe v. United States, 218 U. S. 322, 335-336;United States v. North American Co., 253 U. S..330, 333.But see Larson v. Domestic & Foreign Corp., 337 U. S.682, 701-702. Moreover, seizure and, governmental op-eration of these going businesses were bound to resultin many present and future damages of such nature asto be difficult, if not incapable, of measurement. View-ing the case this way, and in the light of the facts pre-sented, the District- Court saw no reason for delayingdecision of the constitutional validity of the orders. Weagree with the District Court and can see no reason whythat question was not ripe for determination on the recordpresented. We shall therefore consider and determinethat question now.

II.

The President's power, if any, to issue the order muststem either from an act of Congress or from the Constitu-tion itself. There is no statute that expressly authorizesthe President to take possession of property as he did here.Nor is there any act of Congress to which our attentionhas been directed from which such a power can fairlybe implied. Indeed, we do not understand the Govern-ment to rely on statutory authorization for this seizure.There are two statutes which do authorize the President

OCTOBER TERM, 1951.

Opinion of the Court. 343 U. S,

to take both personal and real property under certainconditions.2 However, the Government admits thatthese conditions were not met and that the President'sorder was not rooted in either of the statutes. The Gov-ernment refers to the seizure provisions of one of thesestatutes (§ 201 (b) of the Defense Production Act) as-much too cumbersome, involved, and time-consumingfor the crisis which was at hand."

Moreover, the use of the seizure technique to solvelabor disputes in order to prevent work stoppages wasnot only unauthorized by any congressional enactment;prior to this controversy, Congress had refused to adoptthat method of settling labor disputes. When the Taft-Hartley Act was under consideration in 1947, Congress.rejected an amendment which would have authorizedsuch governmental seizures in cases of emergency.' Ap-parently it was thought that the technique of seizure,like that of compulsory arbitration, would interfere withthe process of. collective bargaining.' Consequently, theplan Congress adopted in that Act did not provide forseizure -under any circumstances. Instead, the plansought to bring about settlements by use of the customarydevices of mediation, conciliation, investigation by boardsof inquiry, and public reports. In some instances tem-porary injunctions were authorized to provide cooling-offperiods. All this failing, unions were left free to strikeafter a secret vote by employees as to whether theywished to accept their employers' final settlement offer.'

2 The Selective Service Act of 1948, 62 Stat. 604, 625-627Y 50U. S. C. App. (Supp. IV) § 468; the Defense Production Act of1950, Tit. II, 64 Stat. 798, as amended, 65 Stat. 132.

8 93 Cong. Rec. 3637-3645.493 Cong. Rec. 3835-3836.5 Labor Management Relations Act, 1947, .61 Stat. 136, 152-156,

29 U. S. C. (Supp. IV) §§ 141, 171-180.



It is clear that if the President had authority to issuethe order he did, it must be found in some provision ofthe Constitution. And it is not claimed that express,constitutional language grants this power to the Presi-dent. The contention is that presidential power shouldbe implied from the aggregate of his powers under theConstitution. Particular reliance is placed on provisionsin Article II which say that "The executive Power shallbe vested in a President . . ."; that "he shall take Carethat the Laws be faithfully executed"; and that he "shallbe Commander in Chief of the Army and Navy of theUnited States."

The order cannot properly be sustained as an exercise ofthe President's. military power as Commander in Chief ofthe Armed Forces. The Government attempts to do so byciting a number of cases upholding broad powers in mil-itary commanders engaged in day-to-day fighting in atheater 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 systemhold that the Commander in Chief of the Armed Forceshas the ultimate' power as such to take possession of pri-vate property in order to keep labor. disputes from stop-ping production. This is a job for the Nation's law-makers, not for its military authorities.

Nor can the seizure order be sustained because of theseveral constitutional provisions that grant executivepower to the President. In the framework of our Con-stitution, the President's power to see that the laws arefaithfully executed refutes the idea that he is to be alawmaker. 'The Constitution limits his functions in thelawmaking "process to the recommending of laws hethinks wise and the vetoing of laws he thinks bad. And'the Constitution is neither silent nor equivocal about; whoshall make laws which the President is to execute:',' The

OCTOBER TERM, 1951.

Opinion of the Court. 343 U. S.

first section of the first article says that "All legislativePowers herein granted shall be vested in a Congress ofthe United States . . . ." After granting many powersto the Congress; Article I goes on to provide that Congressmay "make all Laws which shall be necessary and properfor carrying into Execution the foregoing Powers, and allother Powers vested by this Constitution in the Govern-ment of the United States, or in any Department orOfficer thereof."

The President's order does not direct that a congres-sional policy be executed in a manner prescribed by Con-gress-it directs that a presidential policy be executed ina manner prescribed by the President. The preamble ofthe order itself, like that of many statutes, sets out rea-sons why the President believes certain policies should beadopted, proclaims these policies as rules of conduct to befollowed, and again, like a statute, authorizes a govern-ment official to promulgate additional rules and regula-tions consistent with the policy proclaimed and needed tocarry that policy into execution. The power -of Congressto adopt such public policies as those proclaimed by theorder is beyond question. It can authorize the takingof private property, for public use. It can make lawsregulating the relationships between employers andemployees, prescribing rules designed to settle labor dis-putes, and fixing wages and working conditions in certainfields of our economy. The Constitution does not subjectthis lawmaking power of Congress to presidential or mil-itary supervision or control.

It is said that other Presidents without congressionalauthority have taken possession of private business en-terprises in order to settle labor disputes. But even ifthis be true, Congress has not thereby lost its exclusiveconstitutional authority to make laws necessary andproper to carry out the powers vested by the Constitu-


579 Appendix to Opinion of the Court.

tion "in the Government of the United States, or anyDepartment -or Officer thereof."

The Founders of this Nation entrusted the lawmakingpower to the Congress alone in both good and bad times.It would do no good to recall the -historical events, thefears of power and the hopes for freedom that lay behindtheir choice. Such a review would but confirm our hold-ing that this seizure order cannot stand.

The judgment of the District Court isAffirmed.

MR. JUSTICE FRANKFURTER.

Although the considerations relevant to the legal en-forcement of the principle of separation of powers seemto me more complicated and flexible than may appearfrom what MR. JUSTICE BLACK has written, I join hisopinion because I thoroughly agree with the applicationof the principle to the circumstances of this case. Eventhough such differences in attitude toward this principlemay be-merely differences in emphasis and nuance, theycan hardly be reflected by a single opinion for the Court.Individual expression of views in reaching a common re-sult is therefore important.

APPENDIX TO OPINION OF THE COURT.

EXECUTIVE ORDER

Directing the Secretary of Commerce to Take Possessionof and Operate the Plants and Facilities of CertainSteel Companies

WHEREAS on December 16, 1950, I proclaimed theexistence of a national emergency which requires that themilitary, naval, air, and civilian .defenses of this countrybe strengthened as speedily as possible to the end that wemay be able to repel any and all threats against our na-

OCTOBER TERM, 1951.

Appendix to Opinion of the Court. 343 U. S.

tional security and to fulfill our responsibilities in theefforts being made throughout the United Nations andotherwise to bring about a lasting peace; and

WHEREAS American fighting men and fighting menof other nations of the United Nations are now engaged indeadly combat with the forces of aggression in Korea, andforces of the United States are stationed elsewhere over-seas for the purpose of participating in the defense of theAtlantic Community against aggression; and

WHEREAS the weapons and other materials neededby our armed forces and by those joined with us in the de-fense of the free world are produced to a great extent inthis country, and steel is an indispensable component ofsubstantially all of such weapons and materials; and

WHEREAS steel is likewise indispensable to the carry-ing out of programs of the Atomic Energy Commission ofvital importance to our defense efforts; and

WHEREAS a continuing and uninterrupted supply ofsteel is also indispensable to the maintenance of the econ-omy of the United States, upon which our military-strength depends; and

WHEREAS a controversy has arisen between certaincompanies in the United States producing and fabricatingsteel and the elements thereof and certain of their work-ers represented by the United Steel Workers of America,CIO, regarding terms and conditions of employment; and

WHEREAS the controversy has not been settledthrough the processes of collective bargaining or throughthe efforts of the Government, including those of theWage Stabilization Board, to which the controversy wasreferred on December 22, 1951, pursuant to ExecutiveOrder No. 10233, and a strike has been called for 12:01A. M., April 9, 1952; and

WHEREAS a work stoppage would immediately jeop-.ardize and imperil our national defense and the defense


579 Appendix to Opinion of the Court.

of those joined with us in resisting aggression, and wouldadd to the continuing danger of our soldiers, sailors, andairmen engaged in combat in the field; and

WHEREAS in order to assure the continued avail-ability of steel and steel products during the existingemergency, it is necessary that the United States takepossession of and operate the plants, facilities, and otherproperty of the said companies as hereinafter provided:

NOW, THEREFORE, by virtue of the authorityvested in me by the Constitution and laws of the UnitedStates, and as President of the United States and Com-mander in Chief of the armed forces of the UnitedStates, it is hereby ordered as follows:

1. The Secretary of Commerce is hereby authorized anddirected to take possession of all or such of the plants,facilities, and other property of the companies named inthe list attached hereto, or any part thereof, as he maydeem necessary in the interests of national defense; andto operate or to arrange for the operation thereof and todo all things necessary for, or incidental to, such operation.

2. In carrying out this-order the Secretary of Commercemay act through or with the aid of such public or privateinstrumentalities or persons as he may designate; and allFederal agencies shall cooperate with the Secretary ofCommerce to the fullest extent possible in carrying outthe purposes of this order.

3. The Secretary oJ Commerce shall determine and pre-scribe terms and conditions of employment under whichthe plants, facilities, and other properties possession ofwhich is taken pursuant to this order shall be operated.The Secretary of Commerce shall recognize thee rights ofworkers to bargain collectively through representatives oftheir own choosing and to engage in concerted activitiesfor the purpose of collective bargaining, adjustment ofgrievances, or other mutual aid or protection, provided

OCTOBER TERM, 195i.

Appendix to Opinion of the Court. 343 U. S.

that such activities do not interfere with the operationof such plants, facilities, and other properties.

4. Except so far as the Secretary of Commerce shallotherwise provide from time to time, the managementsof the plants, facilities, and other. properties possession ofwhich is taken pursuant to this order shall continue theirfunctions, including the collection and disbursement offunds in the usual and ordinary course of business in thenames of their respective companies and by means of anyinstrumentalities used by such companies.

5. Except so far as the Secretary of Commerce mayotherwise direct, existing rights and obligations of suchcompanies shall remain in full force and effect, and theremay be made, in due course, payments of dividends onstock, and of principal, interest, sinking funds, and allother distributions upon bonds, debentures, and otherobligations, and expenditures may be made for otherordinary corporate or business purposes.

6. Whenever in the judgment of the Secretary of Com-merce further possession and operation by him of anyplant, facility, or other property is no longer necessary orexpedient in the interest of national defense, and theSecretary has reason to believe that effective future oper-ation is assured, he shall return the possession and opera-tion of such plant, facility, or other property to thecompany in possession and control thereof at the timepossession was taken under this order.

• 7. The Secretary of Commerce is authorized to pre-scribe and issue such regulations and orders not incon-sistent herewith as he may deem necessary or desirablefor carrying out the purposes of this order; and he maydelegate and authorize subdelegation of such of his func-tions under this order as he may deem desirable.

Harry S. Truman.

The White House, April 8, 1952.


579 FRANKFURTER, J., concurring.

MR. JUSTICE FRANKFURTER,- concurring.

Before the cares of the White House were his own,President Harding is reported to have said that govern-ment after all is a very simple thing. He must havesaid that, if he said it, as a fleeting inhabitant of fairy-land. The opposite is the truth. A constitutional de-mocracy like ours is perhaps the most difficult Of man'ssocial arrangements to manage successfully. Our schemeof society is more dependent than any other form of gov-ernment on knowledge and wisdom and self-disciplinefor the achievement of its aims. For our democracyimplies the reign of reason on the most extensive scale.The Founders of this Nation were not imbued withthe modern cynicism that the only thing that historyteaches is that it teaches nothing. They acted on theconviction that the experience of man sheds a good dealof light on his nature. It sheds a good deal of light notmerely on the need for effective power, if a society is to beat once cohesive and civilized, but also on the need forlimitations on the power of governors over the governed.

To that end they rested the structure of our centralgovernment on the system of checks and balances. Forthem the doctrine of separation of powers was notmere theory; it was a felt necessity. Not so long agoit was fashionable to find our system of checks and bal-ances obstructive to effective government. It was easyto ridicule that system as outmoded-too easy. Theexperience through which the world has passed in ourown day has made vivid the realization that the Framersof our Constitution were not inexperienced doctrinaires.These long-headed statesmen had no illusion that ourpeople enjoyed biological or psychological or sociologicalimmunities from the hazards of concentrated power. Itis absurd to see a dictator in a representative product ofthe sturdy democratic traditions of the Mississippi Val-

OCTOBER TERM, 1951.

FRANKFURTER, J., concurring. 343 U. S.

ley. The accretion of:.dangerous power does not come ina day. It does come, however slowly, from the generativeforce of unchecked disregard of the restrictions that fencein even the most disinterested assertion of authority.

The Framers, however, did not make the judiciary theoverseer of our government. They were familiar withthe revisory functions entrusted to judges in a few ofthe States and refused to lodge such powers in this Court.Judicial power can be exercised only as to matters thatwere the traditional concern of the courts at West-minster, and only if they arise in ways that to the expertfeel of lawyers constitute "Cases" or "Controversies."Even as to questions that were the staple of judicialbusiness, it is not for the courts to pass upon them unlessthey are indispensably involved in a conventional litiga-tion-and then, only to the extent that they are soinvolved. Rigorous adherence to the narrow scope ofthe judicial function is especially demanded in contro-versies that arouse appeals to the Constitution. Theattitude with which this Court must approach its dutywhen confronted with such issues is precisely the oppositeof that normally manifested by the general public. So-called constitutional questions seem to exercise a mes-meric influence over the popular mind. This eagernessto settle-preferably forever-a specific problem on thebasis of the broadest possible constitutional pronounce-ments may not unfairly be called one of our minornational traits. An English observer of our scene hasacutely described it: "At the first sound of a new argu-ment over the United States Constitution and its in-terpretation the hearts of Americans leap with a fearfuljoy. The blood stirs powerfully in their veins and a newlustre brightens their eyes. Like King Harry's men be-fore -Harfleur, they stand like greyhounds in the slips,straining upon the start." The Economist, May 10,1952, p. 370.

.594



The path of duty for this Court, it bears repetition,lies in the opposite direction. Due regard for the im-plications of the distribution of powers in our Constitu-tion and for the nature of the judicial process as the ulti-mate authority in interpreting the Constitution, has notonly confined the Court within the narrow domain ofappropriate adjudication. It has also led to "a seriesof rules under which it has avoided passing upon a largepart of all the constitutional questions pressed upon it fordecision." Brandeis, J., in Ashwander v. Tennessee Val-ley Authority, 297 U. S, 288, 341, 346. A basic rule is theduty of the Court not to pass on a constitutional issue atall, however narrowly it may be confined, if the case may,as a matter of intellectual honesty, be decided withouteven considering delicate problems of power under theConstitution. It ought to be, but apparently is not, amatter of common understanding that clashes betweendifferent branches' of the government should be avoidedif a legal ground of less explosive potentialities is properlyavailable. Constitutior al adjudications are apt by ex-posing differences to exacerbate them.

So here our first inquiry must be not into the pow-ers of the President, but into the powers of a DistrictJudge to issue a temporary injunction in the circum-stances of this case. Familiar as that remedy is, it re-mains an extraordinary remedy. To start with a con-sideration of the relation between the President's powersand those of Congress-a most delicate matter that hasoccupied the thoughts of statesmen and judges since theNation was founded and will continue to occupy theirthoughts as long as our democracy lasts-is to start atthe wrong end. A plaintiff is not entitled to an injunc-tion if money damages would fairly compensate him forany wrong he may have suffered. The same considera-tions by which the Steelworkers, in their brief amicus,demonstrate, from the seizure here in controversy, con-

OCTOBER TERM, 1951.


sequences that cannot be translated into dollars andcents, preclude a holding that only compensable damagefor the plaintiffs is involved. Again, a court of equityought not to issue an injunction, even though a plaintiffotherwise makes out a case for it, if the plaintiff's rightto an injunction is overborne by a commanding publicinterest against it. One need not resort to a large epi-grammatic generalization that the evils of industrial dis-location are to be preferred to allowing illegality to gounchecked. To deny inquiry into the President's powerin a case like this, because of the damage to the publicinterest to be feared from upsetting its exercise by him,would in effect always preclude inquiry into challengedpower, which presumably only avowed great public in-terest brings into action. And so, with the utmost un-willingness, with every desire to avoid judicial inquiryinto the powers and duties of the other two branches ofthe government, I cannot escape consideration of thelegality of Executive Order No. 10340.

The pole-star for constitutional adjudications is JohnMarshall's greatest judicial utterance that "it is a con-stitution we are expounding." McCulloch v. Maryland,4 Wheat. 316, 407. That requires both a spacious viewin applying an instrument of government "made for anundefined and expanding future," Hurtado v. California,110 U. S. 516, 530, and as narrow a delimitation of theconstitutional issues as the circumstances permit. Notthe least characteristic of great statesmanship which theFramers manifested was the extent to which they did notattempt to bind the future. It is no less incumbentupon this Court to avoid putting fetters upon the futureby needless pronouncements today.

Marshall's admonition that "it is a constitution weSare expounding" is especially relevant when the Courtis required to give legal sanctions to an underlying prin-ciple of the Constitution-that of separation of pow-



ers. "The great ordinances of the Constitution do notestablish and divide fields of black and white." Holmes,J.,_ dissenting in Springer v. Philippine Islands, 277 U. S.189, 209.

The issue before us can be met, and therefore shouldbe, without attempting to define the President's pow-ers comprehensively. I shall not attempt to delineatewhat belongs to him by virtue of his office beyond thepower even of Congress to contract; what authority be-longs to him until Congress acts; what kind of problemsmay be dealt with either by the Congress or by the Presi-dent or by both, cf. La Abra Silver Mng. Co. v. UnitedStates, 175 U. S. 423; what power must be exercised bythe Congress and cannot be delegated to the President.It is as unprofitable to lump together in an undiscrim-inating hotch-potch past presidential actions claimed tobe'derived from occupancy of the office, as it is to con-jure up hypothetical future cases. The judiciary may,as this case proves, have to intervene in determiningwhere authority lies as between the democratic forces inour scheme of government. But in doing so we should bewary and humble. Such is the teaching of this Court'sr6le in the history of the country.

It is in this mood and with this perspective that theissue before the Court must be approached. We musttherefore put to one side consideration of what powersthe President would have had if there had been no legis-lation whatever bearing on the authority asserted bythe seizure, or if the seizure had been only for a short,explicitly temporary period, to be terminated automati-cally unless Congressional approval were given. Theseand other questions, like or unlike, are not now here. Iwould exceed my authority were I to say anything aboutthem.

The-question before the Court comes in this setting.Congress has frequently-at least 16 times since 1916--

99084 0-52--43



specifically provided for executive seizure of production,transportation, communications, or storage facilities. Inevery case it has qualified this grant of power with lim-itations and safeguards. This body of enactments-summarized in tabular form in Appendix I, post, p. 615-demonstrates that Congress deemed seizure so drastic apower as to require that it be carefully circumscribedwhenever the President was vested with this extraordi-nary authority. The power to seize has. uniformly beengiven only, for a limited period or for a defined emergency,or has been repealed after a short period. Its exercise hasbeen restricted to particular circumstances such as "time'of war or when war is imminent," the needs of "publicsafety" or of "national security or defense," or "urgentand impending need." The period of governmental op-eration has been limited, as, for instance, to "sixty daysafter the restoration of productive efficiency." Seizurestatutes usually make executive action dependent on de-tailed conditions: for example, (a) failure or refusal ofthe owner of a plant to meet governmental supply needsor (b) failure of voluntary negotiations with the ownerfor 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 whosejudgment would appropriately test the need for seizure.Congress also has not left to implication 'that just tom-pensation be paid; it has usually legislated in -detail re-garding enforcement of this litigation-breeding generalrequirement. (See Appendix I, post, p. 615.)

Congress in 1947 was again called upon to considerwhether governmental seizure should be'used to avoidserious industrial shutdowns. Congress decided againstconferring such power generally and in advance, withoutspecial Congressional enactment to meet each particularneed. Under the urgency of telephone and coal strikes in


579. FRANKFURTER, J., concurring.

the winter of 1946, Congress addressed itself to the prob-lems raised by "national emergency" strikes and lockouts.1The termination of wartime seizure powers on December31, 1946, brought these matters to the attention of Con-gress with vivid impact. A proposal that the Presidentbe given powers to seize plants to avert a shutdown wherethe "health or safety" of the Nation was endangered, wasthoroughly canvassed by Congress and rejected. Noroom for doubt remains that the proponents as well asthe opponents of the bill which became the Labor Man-agement Relations Act of 1947 clearly understood that asa result of that legislation the only recourse for prevent-ing a shutdown in any basic industry, after failure ofmediation, was Congress.2 Authorization for seizure as

1 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 powerto operate previously seized plants ended on June 30, 1947, only aweek after the enactment of the Labor Management Relations Actover the President's veto. 57 Stat. 163, 165, 50 U. S. C. App. (1946ed.) § 1503. See 2 Legislative History of the Labor ManagementRelations Act, 1947 (published by National Labor Relations Board,1948), 1145, 1519, 1626.

2 Some of the more directly relevant statements are the following:"In most instances the force of public opinion should make itselfsufficiently felt in this 80-day period to bring about a peacefultermination of the controversy. Should this expectation fail, thebill provides for the President laying the matter before Congress forwhatever legislation seems necessary to preserve the health andsafety of the Nation in the crisis.'.' Senate Report. No. 105, 80thCong., 1st Sess. 15.

"We believe it would be most unwise for the Congress to attemptto 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 Sen-ate Committee on Labor and Public Welfare,. said, "In the event ofa deadlock and a strike is not ended, the matter is referred to thePresident, who can use his discretion as to whether he will present

OCTOBER TERM, 1951.


an available remedy for potential dangers was unequivo-cally put aside. The Senate Labor Committee, throughits Chairman, explicitly reported to the Senate that a gen-eral grant of seizure powers had been considered and re-jected in favor of reliance on ad hoc legislation, as a par-ticular emergency might call for it.' An amendmentpresented 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

the matter to the Congress, whether or not the situation is suchthat 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 bythe Government. We simply provide a procedure which we hopewill be effective in 99 out of 100 cases where the health or safety ofthe people may be affected, and still leave a loophole for congressionalaction." 93 Cong. Rec, 4281.

The President in his veto message said, ".. .it would be man-datory for the President to transfer the whole problem to the Con-gress, even if it were not in session. Thus, major economic disputesbetween employers and their workers over contract terms mightultimately be thrown into the political arena for disposition. Onecould scarcely devise a less effective method for discouraging criticalstrikes." 93 Cong. Rec. 7487.

3 Senator Taft said:"If there finally develops a complete national emergency threaten-.

ing the safety and health of the people of the United States, Congresscan pass an emergency law to cover the particular emergency: ...

"We have felt that perhaps in the case of a general strike, or inthe case of other serious strikes, after the termination of every pos- .sible effort to resolve the dispute, the remedy might be- an emergencyact 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 thebooks until we actually face such an emergency, and Congress appliesthe remedy for the' particular emergency only. Eighty days willprovide plenty of time within which to consider the possibility ofwhat should be done; and we believe very strongly that there shouldnot be anything in this law which prohibits finally the right tostrike." 93 Cong. Rec. 3835-3836.



an impending curtailment of production, was voted downafter debate, by a vote of more than three to one.4

In adopting the provisions which it did, by the LaborManagement Relations Act of 1947, for dealing with a"national emergency" arising out of a breakdown inpeaceful industrial relations, Congress was very familiarwith Governmental seizure as a protective measure. Ona balance of considerations, Congress chose not to lodgethis power in the President. It chose not to make avail-able in advance a remedy to which both industry andlabor were fiercely hostile.5 In deciding that authority toseize should be given to the President only after fullconsideration of the particular situation should show suchlegislation to be necessary, Congress presumably acted onexperience with similar industrial conflicts in the past.It evidently assumed that industrial shutdowns in basicindustries are not instances of spontaneous generation,

493 Cong. Rec. 3637-3645.

5 See, for instance, the statements of James B. Carey, Secretary ofthe C. I. 0., in opposition to S. 2054, 77th Cong., 1st Sess., whicheventually became the War Labor Disputes Act. Central to thatAct, of course, was the temporary grant of the seizure power to thePresident. Mr, Carey then said:

"Senator BURTON. If this would continue forever it might meanthe nationalization of industry?-

"Mr. CAREY. Let us consider it on a temporary basis. How isthe law borne by labor? Here is the Government-sponsored strikebreaking agency, and nothing more.

"Our suggestion of a voluntary agreement of the representatives ofindustry and labor and Government, participating in calling a con-ference, is a -democratic way. The other one is the imposition offorce,- the other is the imposition of seizure of certain things for atemporary period; the destruction of collective bargaining, and itwould break down labor relations that may-have been built up overa long period."Hearing before a Subcommittee of the Senate Committee on theJudiciary on S. 2054, 77th Cong., 1st Sess. 132.



and that danger warnings are sufficiently plain before theevent to give ample opportunity to start the legislativeprocess into action.

In any event, nothing can be plainer than that Con-gress made a conscious choice of policy in a field full ofperplexity and peculiarly within legislative responsibilityfor choice. In formulating legislation for dealing withindustrial conflicts, Congress could not more clearly andemphatically have withheld authority than it did in 1947.Perhaps as much so as is true of any piece of modernlegislation, Congress acted with full consciousness ofwhat it was doing and in the light of much recent his-tory. Previous seizure legislation had subjected the pow-ers granted to the President to restrictions of varyingdegrees of stringency. Instead of giving him even limitedpowers, Congress in 1947 deemed it wise to require thePresident, upon failure of attempts to reach a voluntarysettlement, to report to Congress if he deemed the powerof seizure a needed shot for his locker. The Presidentcould not ignore th specific limitations of prior seizurestatutes. No more could he act in disregard of the lim-itation put upon seizure by the 1947 Act.

It cannot be contended that the President would havehad power to issue this order had Congress explicitlynegated such authority in formal legislation. Congresshas expressed its will to withhold this power from thePresident as though it had said .so in so many words.The authoritatively expressed purpose of Congress todisallow 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 au-thority from it, could not be more decisive if it had beenwritten into §§ 206-210 of the Labor Management Rela-tions Act of 1947. Only the other day, we treated theCongressional gloss upon those sections as part of the Act.Bus Employees v. Wisconsin Board, 340 U. S. 383, 395-



396. Grafting upon the words a purpose of Congressthus unequivocally expressed is the regular legislativemode for defining the scope of an Act of Congress. Itwould be not merely infelicitous draftsmanship but al-most offensive gaucherie to write such a restriction uponthe President's power in terms into a statute rather thanto have it authoritatively expounded, as it was, by con-trolling 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 youthink it is needed in a specific situation." This of coursecalls for a report on the unsuccessful efforts to reach avoluntary settlement, as a basis for discharge by Con-gress of its responsibility-which it has unequivocallyreserved-to fashion tui'ther remedies than it provided.'But it is now claimed that the President has seizure powerby virtue of the Defense Production Act of 1950 and itsAmendments.! And the claim is based on the occurrenceof new events-Korea and the need for stabilization,etc.-although it was well known that seizure power waswithheld by the Act of 1947, and although the President,whose specific requests for other authority were in themain granted by Congress, never suggested that in view ofthe new events he needed the p ower of seizure which Con-gress in its judgment had decided to withhold from him.The utmost that the Korean conflict may imply is that itmay have been desirable to have given the President fur-ther authority, a freer hand in these matters. Absenceof authority in the President to deal with a crisis does not

8 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 require-ment. Cong. Rec., April 9, 1952, pp. 3962-3963; id., April 21, 1952,p. 4192.

764 Stat. 798 et seq., 65 Stat. 131 et seq., 50 U. S. C. App. § 2061et seq..

OCTOBER TERM, 1951.


imply Want of power in the Government. Converselythe fact that power exists in the Government does notvest it in the President. The need for new legislationdoes not enact it. Nor does it repeal or amend existinglaw.

No authority that has since been given to the Presidentcan by any fair process of statutory construction bedeemed to withdraw the restriction or change the will ofCongress as expressed by a body of enactments, culminat-ing in the Labor Management Relations Act of 1947.Title V of the Defense Production Act, entitled "Settle-ment of Labor Disputes," pronounced the will of Con-gress "that there be effective procedures for the settle-ment of labor disputes affecting national defense," andthat "primary reliance" be placed "upon the parties toany labor dispute to make every effort through negotia-tion and collective bargaining and the full use of media-tion and conciliation facilities to effect a settlement inthe national interest." ' Section 502 authorized thePresident to hold voluntary conferences of labor, indus-try, and public and government representatives and to

."take such action as may be agreed upon in any suchconference and appropriate to carry out the provisionsof this title," provided that no action was taken incon-sistent with the Labor Management Relations Act of1947.? This provision" was said by the Senate Commit-

8§§ 501, 502, 64 Stat. 798, 812, 50 U. S. C. App. §§ 2121, 2122.

"§§ 502, 503, 64 Stat. 798, 812, 50 U. S. C. App. §§ 2122, 2123.10 The provision of § 502 in S. 3936, as reported by the Senate Com-

mittee on Banking and Currency, read as follows: "The President isauthorized, after consultation with labor and management, to estab-lish such principles and procedures and to take such action as hedeems appropriate for the settlement of labor disputes affecting na-tional defense, including the designation of such persons, boards orcommissions as he may deem appropriate to carry out the provisions

YOUNGSTOWN CO.. v. SAWYER.


tee on Banking and Currency to contemplate a boardsimilar to the War Labor Board of World War II and "anational labor-management conference such as was heldduring World War II, when a no-strike, no-lock-outpledge was obtained." "' Section 502 was believed nec-

of this title." That language was superseded in the ConferenceReport by the language that was finally enacted. H. R. Rep. No.3042, 81st Cong., 2d Sess. 16, 35. The change made by the Con-ference Committee was for the purpose of emphasizing the volun-tary nature of the cooperation sought from the public, labor, andmanagement; as Senator Ives explained under repeated questioning,."If any group were to hold out, there would be no agreement [onaction to carry out the provisions of this title]." 96 Cong. Rec.14071. Chairman Maybank of the Senate Committee on Bankingand Currency said, "The labor disputes title of the Senate wasaccepted by the House with amendment which merely indicatesmore specific avenues through which the President may bring laborand management together." Id., at 14073.

1 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 Con-gressional authorization of an agency similar to the War LaborBoard does not imply a Congressional grant of seizure power similarto that given the President specifically by § 3 of the War Labor Dis-pute s Act of 1943. The War Labor Board, created by § 7 of the1943 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 givenby Congress in § 3 of the 1943 Act was given to the President, notto the War Labor Board, and was needed only when the War LaborBoard reported it had failed; the seizure power was .separate andapart from the War Labor Board machinery for settling disputes.At most the Defense Production Act does what § 7 of the War LaborDisputes Act did; the omission of any grant of seizure power similarto § 3 is too obvious not to have been conscious. At any rate, theWage Stabilization Board differs substantially from the earlier WarLabor Board. In 1951 the Senate Committee studying the disputesfunctions of the Wage Stabilization Board pointed out the substan-

OCTOBER TERM, 1951.


essary in addition to existing means for settling disputesvoluntarily because the Federal Mediation and Concilia-tion Service could not enter a labor dispute unless re-quested by one party. 2 Similar explanations of Title Vwere given in the Conference Report and by Senator Ives,a member ' of the Senate Committee to whom ChairmanMaybank during the debates on the Senate floor referredquestions relating to Title V."3 Senator Ives said:

"It should be remembered in this connection thatduring the period of the present emergency it isexpected that the Congress will notadjourn, but, atmost, will recess only for very limited periods oftime. If, therefore, any serious work stoppageshould arise or even be theatened, in spite of theterms of the Labor-Management Relations Act of1947, the Congress would be readily available to passsuch legislation as might be needed to meet thedifficulty."1

tial differences between that Board and its predecessor and con-cluded that "The new Wage Stabilization Board . . .does not relyon title V of the Defense Production Act for its authority." S. Rep.No. 1037, 82d Cong., 1st Sess., supra, at 4-6.

12 S. Rep. No. 2250, 81st Cong., 2d Sess. 41.,8 See 96 Cong. Rec. 14071.'14 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 of1947, which can require that workers stay on the job for at least80 days when a strike would seriously threaten the national healthand safety in peacetime."By the terms of the pending bill, the Labor-Management Rela-tions Act of, 1947 would be controlling in matrs affecting the rela-tionship between labor and management, including collective bargain-ing. It seems to me, however, that this is as far as we should goin legislation of this type."

606

YOUNGSTOWN CO. v. SAWYER. 607


The Defense Production Act affords no ground.for thesuggestion that the 1947denial to the President of seizurepowers has been impliedly repealed, and its legislativehistory contradicts such a suggestion. Although the pro-ponents c& that Act recognized that the President wouldhave a choice of alternative methods of seeking a medi-ated settlement, they also recognized that Congress aloneretained the ultimate coercive power to meet the threatof."any serious work stoppage."

That conclusion is not changed by what occurred afterthe passage of the 1950 Act. Seven and a half monthslater, on April 21, 1951, the President by Executive Order10233 gave the reconstituted Wage Stabilization Board'authority to investigate labor disputes either (1) sub-mitted voluntarily by the parties, or (2) referred to it bythe President. 5 The Board can only make "recoimmenda-tions to the parties as to fair and equitable terms of set-tlement," unless the parties agree to be bound by theBoard's recommendations. About a month thereafterSubcommittees of both the House and Senate Labor-Committees began hearings on the newly assigned dis-putes functions of the Board.16 Amendments to deny the

15 16 Fed. Reg. 3503. The disputes functions were not given to the

Wage Stabilization Board under Title V, see note 11, supra, butapparently under the more general Title IV, entitled "Price andWage Stabilization."

16 See Hearings before.a Subcommittee of the House Committee onEducation and Labor, Disputes Functions of Wage StabilizationBoard, 82d Cong., 1st Sess. (May 28-June 15, 1951) ; Hearings beforethe Subcommittee on Labor, and ,Labor-Management Relations ofSenate 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 DefenseProduction Act be retained" and that "No statutory limitations beimposed on the President's authority to deal with disputes through

OCTOBER TERM, 1951.


Board these functions were voted down in the House,7

and Congress extended the Defense Production Act with-out changing Title V in relevant part."8 The legislativehistory of the Defense Production Act and its Amend-ments in 1951 cannot possibly be vouched. for more thanCongressional awareness and -tacit approval that thePresident had charged the Wage Stabilization Board withauthority to seek voluntary settlement of labor disputes.The most favorable interpretation of the statements inthe committee reports can make them mean no more than"We are glad to have all the machinery possible for thevoluntary settlement of labor disputes." In consideringthe Defense Production Act Amendments, Congress wasnever asked to approve-and there is not the slightestindication that the responsible committees ever had inmind-seizure of plants to coerce settlement of disputes.

voluntary machinery; such limitations, we believe, would infringeon the President's constitutional power." (Emphasis added.) TheCommittee found, id., at 10,'that the "Wage Stabilization Board reliescompletely on voluntary means -for settling disputes and is, therefore,an extension of free collective bargaining. The Board has no powersof legal compulsion." "Executive Order No. 10233," the Committeefound further, "does not in any way run counter to the . . .Taft-Hartley Act. It is simply an additional tool, not a substitute forthese laws." Of particular relev'ance to the present case, the Com-mittee declared:

"The recommendations of the Wage Stabilization Board in dis-putes certified by the President have no compulsive force. Theparties are free to disregard recommendations of the Wage Stabiliza-tion Board ....

"There is, of course, the P'esident's authority to -seize plantsunder the Selective Service Act [a power not here used], but this isan authority which exists independently of the Wage StabilizationBoard and its disputes-handling functions. In any case, seizure isan extraordinary remedy, and the authority to seize, operateswhether or not there is a disputes-handling machinery." Id., at 5.

17 97 Cong. Rec. 8390-8415.is 65 Stat. 131.



We are not even confronted by an inconsistency betweenthe authority conferred on the Wage Board, as formu-lated by the Executive Order, and the denial of Presi-dential seizure powers under the 1947 legislation. TheBoard has been given merely mediatory powers similarto those of agencies created by the Taft-Hartley Act andelsewhere, with no other sanctions for acceptance of itsrecommendations than aie offered by its own moral au-thority and the pressure of public opinion. The DefenseProduction Act and the disputes-mediating agenciescreated subsequent to it still leave for solution elsewherethe question what action can be taken when attempts atvoluntary settlement fail. To draw implied approval ofseizure power from this history is to make something outof nothing.

It is one thing to draw an intention of Congress fromgeneral language and to say that Congress would haveexplicitly written what is inferred, where Congress hasnot addressed itself to a specific situation. It is quiteimpossible; however, when Congress did specifically ad-dress itself to a problem, as Congress did to that ofseizure, to find secreted in the interstices of legislationthe very grant of power which Congress consciouslywithheld. To find authority so explicitly withheld is notmerely to disregard in a particular instance the clear willof Congress. It is to disrespect the whole legislativeprocess and the constitutional division of authority be-tween President and Congress.

The legislative history here canvassed is relevant toyet another of the issues before us, namely, the Govern-ment's argument that overriding public interest preventsthe issuance of the injunction despite the illegality of theseizure. I cannot accept that contention. "Balancingthe equities" when considering whether an injunctionshould issue, is lawyers' jargon for choosing between con-flicting public interests. When Congress itself has struck

OCTOBER TERM, 1951.


the balance, has defined the weight to be given the com-peting interests, a court of equity is not justified inignoring that pronouncement. under the guise of exer-

cising equitable discretion.Apart from his vast share of responsibility for the con-

duct of our foreign relations, the embracing function ofthe President is that "he shall take Care that the Lawsbe faithfully executed . . . ." Art. II, § 3. The natureof that authority has for me been comprehensively indi-cated by Mr. Justice Holmes. "The duty of the Presi-dent to see that the laws be executed is a duty that doesnot go beyond the laws or require him to achieve morethan Congress sees fit to leave within his power." Myersv. United States, 272 U. S. 52, 177. The powers of thePresident are not as particularized as are those of Con-gress. But unenumerated powers do not mean un-defined powers. The separation of powers built into ourConstitution gives essential content to undefined provi-sions in the frame of our government.

To be sure, the content of the three authorities of gov-ernment is not to be derived from an abstract analysis.The areas are partly interactin.g, not wholly disjointed.The Constitution is a framework for government. There-fore the way the framework has consistently operatedfairly establishes that it has operated according to its truenature. Deeply embedded traditional ways of' conduct-ing government cannot supplant the Constitution or leg-islation, but they give meaning to the words of a textor supply them. It is an inadmissibly narrow conceptionof American constitutional law to confine it to the wordsof the Constitution and to disregard the gloss which lifehas written upon them. In short, a systematic, un-broken, executive practice, long pursued to the knowledgeof the Congress and never before questioned, engaged inby Presidents who have also sworn to uphold the Con-stitution, making as it were such exercise of power part


579 FRANKFURTER, J.,. concurring.

of the structure of our government, may be treated as agloss on "executive Power" vested in the President by § 1of Art. II.

Such was the case of United States v. Midwest Oil Co.,236 U. S. 459. The contrast between the circumstancesof that case and this one helps to draw a clear line be-tween authority not explicitly conferred yet authorizedto be exercised by the President and the denial of suchauthority. In both instances it was the concern of Con-gress under express constitutional grant to make rulesand regulations for the problems with which the Presi-dent dealt. In the one case he was dealing with theprotection of property belonging to the United States;in the other with the enforcement of the Commerce Clauseand with raising and supporting armies and maintainingthe Navy. In the Midwest Oil case, lands which Congresshad opened for entry were, over a period of 80 years andin 252 instances, and by Presidents learned and unlearnedin the law, temporarily withdrawn from entry so as toenable Congress to deal with such withdrawals. No re-motely comparable practice can be'vouched for executiveseizure of property at a time when this country was notat war, in the only constitutional way in which'itcan be at war. It would pursue the irrelevant to re-open the controversy over the constitutionality of someacts 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 terri-tory where armed hostilities had already interrupted themovement of troops to the'beleaguered Capital, and hisorder was ratified by the Congress.

The only other instances of seizures are those duringthe periods of the first and second World Wars."9 In hiseleven seizures of industrial facilities, President Wilson

9 Instances of seizure by the President are summarized in AppendixII, post, p. 620.

OCTOBER TERM, 1951.


acted, or at least purported to act,0 under authoritygranted by Congress. 'Thus his seizures cannot be ad-duced as interpretations by a President of his own powersin the absence of statute.

Down to the World War II period, then, the recordis barren of instances comparable to the one before us.Of twelve seizures by President Roosevelt prior to theenactment of the War Labor Disputes Act in June, 1943,three were sanctioned by existing law, and six others

20 One of President Wilson's seizures has given rise to contro-

versy. In his testimony in justification of the Montgomery Wardseizure during World War II, Attorney General Biddle argued thatthe World War I seizure of Smith & Wesson could not be supportedunder any of the World War I .statutes authorizing seizure. Hethus adduced it in support of the claim of so-called inherent Presi-dential power of seizure. See Hearings before House Select Com-mittee to Investigate the Seizure of Montgomery Ward, 78th Cong.,2d Sess. 167-168. In so doing, he followed the ardor of advocatesin claiming everything. In his own opinion to the President, herested the power to seize Montgomery Ward on the statutory au-thority of the War Labor Disputes Act, see 40 Op. Atty. Gen. 312(1944) ,and the Court of Appeals decision upholding the MontgomeryWard seizure confined itself to that ground. United States v. Mont-gomery Ward & Co., 150 F. 2d 369. What Attorney General Biddlesaid about Smith & Wesson was,. of course, post litem motam.Whether or not the World War I statutes were broad enough tojustify that seizure, it is clear that the taking officers conceived them-selves as moving within the scope of statute law. See Letter fromAdministrative Div., Advisory Sec. to War Dep't. Bd. of Appraisers,National Archives, Records of the War Department, Office of theChief of Ordnance, 0. 0. 004.002/194 Smith & Wesson, Apr. 2, 1919;n. 3, Appendix II, post, p. 620. Thus, whether or not that seizure waswithin the statute, it cannot, properly be cited as a precedent for theone before us. On this general subject, compare Attorney GeneralKnox's opinion advising President Theodore Roosevelt against theso-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 Lettersof Theodore Roosevelt, 323-366.

YOUNGSTOWN' CO. v. SAWYER.


were effected after Congress, on December 8, 1941, haddeclared the existence of a state of war. In this case,reliance on the powers that flow from declared war hasbeen commendably disclaimed by the Solicitor General.Thus the list of executive assertions of the power of sei-zure in circumstances comparable to the present reducesto three in the six-month period from June to Decemberof 1941. • We need not split hairs in comparing thoseactions to the one before us, though much might be saidby way of differentiation. Without passing on theirvalidity, as we are not called upon to do, it suffices tosay that these three isolated instances do not add up,either in number, scope, duration or contemporaneouslegal justification, to the kind of executive constructionof the Constitution revealed in the Midwest Oil case.Nor do they come to us sanctioned by lbng-continuedacquiescence of Congress giving decisive weight to a con-struction by the Executive of its powers.

A scheme of government like ours no doubt at timesfeels the lack of power to act with complete, all-em-bracing, swiftly moving 'authority. No doubt a govern-ment with distributed authority, subject to be challengedin the courts of law, at least long enough to considerand adjudicate- the challenge, labors under restrictionsfrom which other governments are free. It has not beenour tradition to envy such governments. In' any eventour government was designed to have such restrictions.The price was deemed not too high in view of the safe-guards which these restrictions afford. I know no moreimpressive words on this subject than those of Mr. Jus-tice Brandeis:

"The doctrine of the separation of powers wasadopted by the Convention of 1787, not to promoteefficiency but to preclude the exercise of arbitrarypower. The purpose was, not to avoid friction, but,

OCTOBER TERM, 1951.

FRANKFURTER, J., concurring.

by means of the inevitable friction incident to thedistribution of the governmental powers among threedepartments, to save the people from autocracy."Myers v. United States, 272 U. S. 52, 240, 293.

It is not a pleasant judicial duty to find that the Presi-dent has exceeded his powers and still less so when hispurposes were dictated by concern for the Nation's well-being, in the assured conviction that he acted to avertdanger. But it would stultify one's faith in our peopleto entertain even a momentary fear that the patriotismand the wisdom of the President and the Congress, as wellas the long view of the immediate parties in interest, willnot find ready accommodation for differences on matterswhich, however close to their concern and however in-trinsically important, are overshadowed by the awesomeissues which confront the world. When at a moment ofutmost anxiety President Washington turned to thisCourt for advice, and he had to be denied it as beyondthe Court's competence to give, Chief Justice Jay, onbehalf of the Court, wrote thus to the Father of hisCountry:

"We exceedingly regret every event that may causeembarrassment to your administration, but we de-rive consolation from the reflection that your judg-ment will discern what is right, and that your usualprudence, decision, and firmness will surmount everyobstacle to the preservation of the rights, peace, anddignity of the United States." Letter of August 8,1793, 3 Johnston, Correspondence and Public Papersof John Jay (1891), 489.

In reaching the conclusion that conscience compels, Itoo derive consolation from the reflection that the Presi-dent and the Congress between them will continue to safe-guard the heritage which comes to them straight fromGeorge Washington.

0.

E.

p

0

0

E4..

U-

co

Co

0

0

5-

0

M

I-

0

eq

o

00

as

S..Z

0

U0

(D

4) , 4)"4 . ,

03 o- . .

as4).. 0 -0

4) b

In

4Z

4.

4 0 s

4)0

E.±

_V4--a a. * 0 .

00 0 0 0

z zz z!, $1.) 8)4 4-4 . >& I.

*.3) ~bl 0 as4)4 =~ r

o g b *4) P-4 w~** 4)E - ca) ~

0 -4) ~'~ ccb.2r. q. C) .0n* 4)4 I.e '1 03 5 o a),; ~ .

4 4c iEvS.4tow 04)P)4 .o So0.0 .Za

*O 4)'- GO4) " 9.>=.- I.= 0 4()6.4

o : 4) 0 S o

0 -1 r) 4),4 0. 'CU W-c o a). o.~ 4)W4

.2 0 4)04) r. o- 3 004

W 4) L) 0 m (Ur- a r- 5.U V .- -6 J 5_

C33 ~ ~ ~ 4 ,: Q =5.

m (1) 0-1O 1'

W, bl4)0=

El &, . 0 U

z FP .caq

- 04E 5 0

0 , 0 C3

E. $ E0 C X.00

E3 . a I .

eq

C14

00 n

403

eq

eq

rf)

44

030

W-

04-44 m

0bf

r.

-4)

(1 03wJ

0 04)

0D 0

00

Cog 'o 13 __ __ __ _

00 9 4OD0011- >)T =

4; 0.0 4)%.w

0> 0 0-

4)-..~~oug (D) E.. I44 .0)0

.00 ul. o3 >+. 0. ca t . 3 DQ o

01 .4) 0 04 *4)* ~ ~ o 8 0~

zz .04 0 .

.- 4,) ~ ~Co 4) 4) ~.~ ~ .. 4

0 P bD4 0 )

-cis ~ ~ ~ )~ (D4 . ) 2) w 0 Z

04)

0l

: o 4)w " 4

+2 -~0 8 'a :!

Z_ 4) 4)s.0 V3 .. b4 ;a> t c4-_ c

op: 4) .. : ~ 4 r. 0 I. -c.

VE 4 -s as- __D_ W__ _ _ _ _ _ _ _ _ _

g.4 0 041 0 4

0 a 'C w 3 4 to 0 c4) (D w 0 04)* c3> .I - 9:

-0). -1 2r l

0 0

d CO 4.1 .4)' 0 '? 4-- 0._

0i PLe. 0. 40 1. 4o :'

r) .C k~ :1

z 4.(1> 0 q 0

4) . b 43 0 $4 op3~ '0

zO 6

Cl0>

• =* "-- o 0 . . ,3 ., - ' - _ .

o 00 -.r

z

0. .E .

or CS0 0~ 04 -t- t=~ t, 0,

440

ozU w

".>4

0 0 0 0

... b (L (-) Q) 00 1 00 0 = ... ..

CIS~~~. r_., 4.xa i

04--4 0 (144) 0 t 0.

f 0 r. M"0 - " ) o .0 4 0. 0.

__ _ _ _ __ _ _ _ 4-41 F.~ ,, 4d

0 -0 oo w 4).1 * -c) ' 0) " L 4) "

W.- " ) - 4- 0 or o-

. , 4 (L,4' 0" "S3'

0 0 O03.

.~0 .cn.

o o -""-

.Q ") 0 0,0 0 0*

0 0 ow U.-.0 ,-. 4) X 0 Z

00

Q cec $

0.400 ..

4-L4

'0

', 0 Q. - 0. -

C ,I 4.) o , . . ,

L .) " o r

oor

0, 0 . c . 10

0m 0 a

0 0 Cr.4 .4-

00 t:3- 0 4)cl g:- - ,C2 0 c,

10' = CC0 - P)S)A ;1(v4) C0 -0 01 014

10~~~~1 0S ,C

''4-0 ~-0 j ~ 4

EO .

00 000.0 w. Cl

.C.c 0 r -C q 0. 0

oe *o 0 ~ e ON

U).154 4 0 r

CC)

t2 0 N. 0- (L

Cio~0 0 'c 6sN z. t c

00

E~~ o~

0

z C)

1)0~ C-: C) m.

o 0--Z = U., 4S.. ... 4 00*- w3 C3. -44)n

N~. 03 C3 ca o ~

0 00C 0 C

03# .&0200- F m0 k. Z

0 .0-3 C0o >1 0 c0

>4 0) s.

0,4 CS0- - ' .b.) '4 ) Q4

as-0-: > R 0 50~0 0 = := 4

ho) r. _D - *-Q 0i 03)C

.2 -. 03 r. 3r.0

P4 0 0>o

al 0 o 0W 0a0l

0 s K 0 0 4 0 ) -

'n b04 -3 ca I

I~. W. A~-*03 (n- w -E 0 q Q*i g-- M-. 9 ,

4n #3 #3 #3

-1 1 o .0 C0 a)C 0)d- ~Q - - u... Ou 'c

-2 bo - I .&a0 ~ w~ 0 W >

C -0-c 4)

4)~4 '30 '0 b4)0 -E__4~ __ _ _ _ _ _ _ __ _ _ 042__ __ 02 0-

E-.NW -4 -r "'

Eb 4 C C

eq~~~~ 10 -- eq,~

U2 4 0 - 4a

0 r.) V

r- CS) 0.00

u zq

00 Q4 . 0 ) 0~oo 00~ N

0~: 00CiE--

CA -t _ ' =-Q. 03 r_ -H S 't 004)i .

Ei

0

[.

C)

3-

00

0

000.

0

0

.0as

1.0

0

0

-Q

0 as.07

a00

QO

o l

0

00

0

.0

0-

C3

0.t©

0

0

0

02000

u

00

~06

c) o

0

'0 000

0 --

ow eq

[C O m mOCOeq - q eq

Q

C)

C)

0.

02

hcj

.mC

0

~bC

0.

C;

00

E4

zzE-0

02C)00.02

S...~0

.0

.0

Aa ~

00s.

p.. ~)0'- 0

0I-C)

0

0o

pa

0 '0 0 0

oo.z2 0o0 00 00

0 z00 0 0 0)

W .1 0

0 E.

co 00

o 0

Cf4 - e0Z - N

0 0E--

E.0

0 0 0 0 0-

c) cc 0

eq q N C

CO~C 0 0.C

eq - e q

CO00 00 0 Co1

4W

eq eq- eq c

eqi -- o

co 00 00 -0L

00

0-4

E 4

I-

C)000

CC

0C)

.0CC0

C)CC

0

.0

S-06

00

G6

0

Q*

I I

.1 4 4 ' :

6

I000

ow 62 :5 r.)

>~4.s

0 3 cc

.csC r. r

0 ~, 0 o C)W .) a)

W0 0W

00

0.'- 0

r.0 0 0 (1 0.~

0 U)."o

00

C) 0 cc- >4

d) 4 Q 0 *

0 0 04

0

0 C 0 0 0 oz z

0.

cis

cis eq

-4.0)V...

'a..

.5)

0

C)

.5,

C/2 0 0C)0 1.

~ 00 C)C)

o ~

0

z ~o0 ~z

C)

oC)

0.5).5)

0$

6 0C) a-

0.

00 0

* 0In

0U

S.0CC00~

0..

WC)

4..0

00

CC5--C)0000CC..

C).0.004- C)~C)

.

04

0a-

eqCo

0--

C)C)

00

.

*0

4

E-4 -

eq

, - " r 0 (

vo jl:Q,-

I

CO t- tZ o6 so'10 0-- 1 Lo 0) COeq 00 0) 0) CO Ceq 4 Co co t-

b b ti b. b bb

t ) mC) m ) 0 ) C C

P4 ;z 4- PW T

00 0)00 000 000 00 00

eq m.'4 C 00 00eq eq -. eq - q

co CO4C

mO 4 - 4

CO 4- - - 4co - 0 0

m eq C

00 0

pa E. )0~o~ 0

00 0

0 0:~4 4 , 4.

0. as as 2,3 0 0

0 0o 0

3P4 34

0

34 3-

4)f

r.~~ ~ ~ 0. 0 402 4 r0-0'0 E .4 z

o 4)Es ac..34 a) 0~ d

r.~ &.00 04)

;A44 .0c 0 0 0

WoW 0 cq 0

0. cq z zzU 0 - o20S..

0 000

4)~~0 4),.4 )

A4 > 4- C 3 ) C

C)a 00~

*-~~$ 34(D0 )

0~c 04 -4 0 (D-

E4 CD- cc 4) M. .. . 4

o Go

03 34 44 b4 .-0. 14 0;)

0 0 .0

Z6 C6 to ;;

4i 4- -i 00 cc~ X44 4m)1

-4 C* oo 0 00

4)~~~4 0cq~- ) ~ 4E. to bot b b b tb I

:D4z4) a)4 Q) W ) C g 0Og1 4 P4 N I

90) CO

to4) to 4Do6() 4)o Q 4a ) 4) 4)(ut 4) (M ) CI

00 .

P4 W)

m CID m m 0M Z; .- 4 C0) C% -qel me q w 0

La 04 000 44 (5 W)~~ .

bD 0O 10 e. C340 OO- - I C CO 4 .. 4.404.4 C

- ~ ' . -)

b~ 0.

o 0 ~ 0 0

0 W 03 m m m

0, bol 00Cf) 4 0. .

CO o 0. 04 w2~ AC2 '~

0

0

0moOzz

00

CON

.4xs

OW

zG)

E-

0E-

E-

0

0

C)

4)

03

.2

.0

.04di

4)10

.- 0

0.

00.

-4

0

0

. .

0>4

I I I ___________________

0

0

.4)

0

03

$.

0A

r).

o r..=cs -2

*00

Q)

0

.0

C3

03

(D

bbJ

03

00

ri

1...03

00

F.

0

Q -

0

0

.40

0304

03

.0

.0

~0

1. -co,.

0C.)

803

00

ti.0 4

o

001

r.0

r.0

> 0

4.3r4)0

.

)0

a1 4' E .2

C)

0

08

0

4. 2ca

r. o

0

S. z'-

0 .'-*!

0

-. 131-

6 _ 4r-4 -E

U)

0 0-4 -40 04) 4)8 E

..

.8 .3

__ ___ 4-4 ± ______ -

,44 *

1 0 eq Co N

10 ~ e . ... e -- q- -- - 4 NC)~C LoC -- e

=4SC

0040.

00

.0

W4

0.05 t,cs0

0

0C )

;q)

42 -

Co

zt. I LO ')

eq O I~~eq co

_9 _ _ N~ - e

o

00.0

S4

k 4)

0)

Co ,)

I _____I I I___i___1_

91)

-4)

0 0

-

C5m

0'

bb4)

10-44.-

eq

-4

0 &.-

030a)

06

as. 4) -.2

E4)4

bba)

04)00~

Prk

-4

.0

k-4)

>1

041)

0

-0)

..

. 0

&14)

00

________ I _________ I ________ ..i.

I _ _ _

CO

0

-4

-4

U)0.0.0Co

C)0

C)

0.000~

.4)4)

0

.0

03

U)

0

CD

Z 0.

Q 0

04.0

1C"09)

-4

1.

0

40)

U4)

0~4

03

0

0

4)C)

oo

bfl

r.z

4..

00

>)

o

QC)

P4)0

0

0-1

10-4C)eq

10

.4

eq100

.03.4

4)'42

0

4

-44

C) W

Co6

"4 P

Lo-"r 1

Ne N m

01

43-

00

0

Lo0.

P4F eq

Co

P)

E-4z 00

0l Q

C4

-00

ce C4.14

Co'

MO eq

V 4

e)

LO

to

4)

o r

W

U)4

'a

I @@ZI

I

SUfOC"i

0.

dC~

CIL Z

C6

9.4.

w Q 0 0 0

o 0 0 0 0 0

0. C) r. 4; d C C

0 0 T 0 ' ~ *o ~ ~ w 0 00 0s

-~~ CIS00 0. .0 CL .0 k0.0

pa 0S0 0 044 r

0o 00S r.~ .2 3 00

0*wo 4)0

CIS w0 03 0FA 0. 2.3 4) .0 00

bo E~' =.z =~ 0 ~ 0 ~

0C@4 0)0C)

0o C)5 )S.0. zC ~~4.

C9 @5o e) (M

04 O O CO C CO CO-~ 1~ ~ 4 s~ .CO 4

toC

U

.0

m

E_

0

E..4

E.

+~

02.

00.0

5..C)@5

*~ ~

S..4)4).0

CO.~

4)>.

C) 4 )

b

-d

42.440-

0o

.5.-

COt-

COW

C)'4)

.4)

M2 CD

co.

. 4..

5-4) O,

4)> <T

02CI

u CO

0.!

..

a-COeqCO

bC)

'6.4)

C2~COCOO02-4

Go

.m

02-o

.0

w .

Co02.~

.~ ~

5-4)

C)>.

4)4)

4)0CO 4)4

eq

02

CO

b

4)

'6.4)

CO~COCOO02-4

020-0

54

0

C4C

.

A)@

I-(

5co

.4'

4)

'6.4)

COO024

'4. a 4 44 CO d 44 4 C 4 .

I- -m

--. cz, - - 1002 02 00(M- t- 02

CO CO COCO:)C

eq -q CO CO -4-4

.44 ~ k CO C O C OC OC

0

0o

ca

.40

400-.o

0).

@5@

5

00

0

bp

U.

d

W

C)

0

I

00

03a

4).

'00*0.22.0

O.2

06.

.

@5 C

C)0

400

CO 4b:

65.0.

So

eqCO

CO

.0

ci

0U C

o

0

0 0

o o

0-a_, 0 .

00

0o 0

N4-

.. 4 PQ C 0 r. 4

0 Cq m

oZO0-4 .

040E0 PL.~-

0 ) -. 141) 5 ql

. 0 O . .as -- 3 N G

~~0.0

04 Q)0S

E- W rn 4-; n )1Go 00 00Q

4305 <

o Go 00 C

mO4

I2 W C6 4 64

)

on :.0 O. LM0 n

441 t) C) C0

zC2 . C C4 ~ OaoE S.

c~0~ a05~C m)

00

IVm

0

0.

-0

0

C)

a-

C)

a)a)

a)

I..0

.0C)

C).0

a-..000

a.

C).0

-C)0C)

C)

0C)C)

-4.

4 3

0.2.05

*0

0

'0

.0

.

0z .

('s 4Q0

'0a-05

05

'0a..050

.00

0

05a-:2

C)0

.0'C)

00

430

:00

04=5

a-0:

0 0

Ob)o

0.)

CW)

005

0 0*

a 0 ad Ca 05 430-

C)

r- Co )4

m 01a w In w

0 050. m 0 5350.s 0

.0 0 1_In10 as 0 CO

0 0 N e: 0q C00 ,- d--- -0

z A.01

Co~ C9 q .C

.0 eq 0 0 >

C)C,; C CY;C 0 ...

*000 m 0

.. ~ ~ ~ c 000~ -

LOO cc-CO ccCO C)NC - -W 0-

V.00 C) V.

m ~ C C9 ~ ~ O

N C) 1 C q

C)))

04)-.05

'00 00.-

05*~0)0Va- -C) 05 '-:~0.0 ~..

CO 43C) C)..~ V

bfl

2 ~

04

0D

0

0

j..

0

0

0

0

E.

0)

0

43

o0

0

0..

0i

a..

0 C44

~t c

43

0) '0

z

7-'-

0) ~0

0 a2 0'o 0 N

E C)3 0. 0 0 D

cc C3

03 a) w 0 s.

ZE- M 'n

'O 0)~-

oo RVCW.

C) Q) eZr

C* *.t c.3.; M-'~ w r

-~ .

CCO

eq '0

5- '0

Z - CO 4

0 0 00 0,

0100 40 . ) o.

E-. > . 0

0~ 0 0a)M ( ) o C '

U2...~I)~, , '' -. - ! 4

o >.a NC~ 0 >. .C4 . .o c

E a z- - CO POQ-ID C C) bO o

-4 .3 0

-01

03 a C3

E. eq C

ot- o to 00

cq LO

00.5010'

.0.beC

5-0.001

I'

~

z

0)'0

01C)I-

.03

h) .

C)

0:I.

*0 m

.C

*0 0=P

C)

20

0

C)1~

0

C9

00

0v0

eM

V0

0o04

°'01

C)' ..20°

bC

,.0

20

o0C

C),

0

C-

Co

C)eq

0

OD

CoCD

eq

0

t-

C)'CO

0104

C010)

I-

C)0

beQ

.00

0

eq M e

Lo -.-

C)

C..

eq

C

00

t r as .I r.

002 -20

z0 00

4)04~ 4 0

Z 4)4

4)4 ~~

,.o,.>.. . 0.'

02 0

, ,4,, 0 ,i Z

0 0 10 ol0 a'

.2o4 .=-.°> ,'o.° -- : ° =-=

4' I ...

..r" -S ,' v ca " as

0 bb > .0 E4": .0 s r. ~ 4

cs0 e4 0

4) 0 0 0 10

cs 10 :j 4-

0 0- 0 0 t cc .0

bf) d.4)

ZIWU 4) 4)Q v6--2 .. r.

as c 0

0.0 0,0 eq 5.4CC 41 o:- .0

0 i Es 0 .-. 0. IV... 4)

w 0 to.:- -

02. 4 0 M . o.to cl -0 0

hw 0. 0 0'r.0 ~ ~ .~0. 0 cc t0 w

S Z2 r. - 3t o 1 1,>

• .o . .. .-,

-0 c0 0 ) r

W) 4) C)V v

S.o..4

00

0! E. -

W Zz412:

hi 020GoC 0 O ca

Sf) eq 00 cc C) CO 02 0

-0 b b 6 b bD

to 4) 4

.454)~~~~~ 00.4 (M4 4 04 4 C0

C 4

PO -+CO ' .01 .44 tiSf

0 0- LO 0 ' 5 fCA. eqcCq CO q -

= q to .5 0050~02 q .4 CO ~ CO .4~cq

r. , $

0 CO.

5*) c0 0 0 -

.. - bo

g ~0 .


DOUGLAS, J., concurring.

MR. JUSTIcE DOUGLAS, concurring.

There can be no doubt that the emergency which causedthe President' to seize these steel plants was one thatbore heavily on the country. But the emergency did notcreate power; it merely marked an occasion when powershould be exercised. And the fact that it was necessarythat measures be taken to keep steel in production doesnot mean that the President, rather than the Congress,had the constitutional authority to act. The Congress, aswell 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 canmove with force as well as with speed. All executivepower-from the reign of ancient kings to the rule ofmodern dictators--has the outward appearance ofefficiency.

Legislative power, by contrast, is slower to exercise.There must be delay while the ponderous machineryof committees, hearings, and debates is put into motion.That takes time; and while the Congress slowly movesinto action, the emergency may take its toll in wages,consumer goods, war production, the standard of liv-ing of the people, and perhaps even lives. Legislativeaction may indeed often be cumbersome, time-consuming,and apparently inefficient. But as Mr. Justice Brandeisstated in his dissent in Myers v. United States, 272 U. S.52, 293:

"The doctrine of the separation of powers wasadopted by the Convention of 1787, not to promoteefficiency but to preclude the exercise of arbitrarypower. The purpose was, not to avoid friction, but,by means of the inevitable friction incident to thedistribution of the governmental powers amongthree departments, to save the people fromautocracy.))

9944 0-52-44

OCTOBER TERM, 1951.

DouGLAs, J., concurring. 343 U. S.

We therefore cannot decide this case by determiningwhich branch of government can deal most expeditiouslywith the present crisis. The answer must depend on theallocation of powers under the Constitution. That inturn requires an analysis of the conditions giving rise tothe seizure and of the seizure itself.

The relations between labor and industry are one ofthe crucial problems of the era. Their solutionwill doubt-less entail many methods-education of labor leaders andbusiness executives; the encouragement of mediation andconciliation by the President and the use of his greatoffice in the cause of industrial peace; and the passageof laws. Laws entail sanctions-penalties for their vio-lation. One type of sanction is fine and imprisonment.Another is seizure of'property. An industry may becomeso lawless, so irresponsible as to endanger the whole econ-omy. Seizure of the industry may be the only wise andpractical solution.

The method by which industrial peace is achieved is ofvitalr importance not only to the parties but to societyas well. A determination that sanctions should be ap-plied, that th6 hand of the law should be placed upon theparties, and that the force of the courts should be di-rected - against them, is an exercise of legislative power.In some nations that power is entrusted to the executivebranch as a matter of course or in case of emergencies.We chose another course. We chose to place the legisla-tive power of the Federal Government in the Congress.The language of the Constitution is not ambiguous orqualified. It places not some legislative power in theCongress; Article I, Section 1 says "All legislative Powersherein granted shall be vested in a Congress of the UnitedStates, which shall consist of a Senate and House ofRepresentatives."

The legislative nature of the action taken by the Presi-dent seems to me to be clear. When the United States


579 DOUGLAS, J., concurring.

takes over. an industrial plant to settle a labor contro-versy, it is condemning property. The seizure of theplant is a taking in the constitutional sense. UnitedStates v. Pewee Coal Co., 341 U. S. 114. A permanenttaking would amount to the nationalization of the in-dustry. A temporary taking falls short of that goal.But though the seizure is only for a week or a month, thecondemnation is complete and the United States mustpay compensation for the temporary possession. UnitedStates v. General Motors Corp., 323 U. S. 373; UnitedStates v. Pewee Coal Co., supra.

The power of the Federal Government to condemnproperty 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 peacewould be constitutional. But there is a duty to pay forall property taken by the Government. The commandof the Fifth Amendment is that no '°private propertybe taken for public use, without just compensation."That constitutional requirement has aal important bear-ing on the present case.

The President has no power to raise revenues. Thatpower is in the Congress by Article I, Section 8 of theConstitution. The President might seize and the Con-gress by subsequent action might ratify the seizure.' Butuntil and unless Congress acted, no condemnation would-be lawful. The branch of government that has thepower to pay compensation for a seizure is the onlyone able to authorize a seizure or make lawful one that

'1What a President may do as a matter of expediency or extremitymay never reach a definitive constitutional decision. For example,President Lincoln suspended the writ of habeas corpus, claiming theconstitutional 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.

OCTOBER TERM,, 1951.

DOUGLAS, J., concurring. 343 U. S.

the President has effected.' That seems to me to be thenecessary result of the condemnation provision in theFifth Amendment. It squares with -the theory of checksand balances expounded by MR. JUSTICE BLACK in theopinion of the Court in which I join.

If we sanctioned the present exercise of power by thePresident, we would be expanding Article II of the Con-stitution and rewriting it to suit the political conveniencesof the present emergency. Article II which vests the"executive Power" in the President defines that powerwith particularity. Article II, Section 2 makes the ChiefExecutive the Commander in Chief of the Army andNavy. But our history and tradition rebel at the thoughtthat the grant of military power carries with it authorityover civilian affairs. Article II, Section 3 provides thatthe President shall "from time to time give to the Con-gress Information of the State of the Union, and recom-mend to their Consideration such Measures as he shalljudge necessary and expedient." The power to recom-mend legislation, granted to the President, serves only toemphasize that it is his function to recommend and thatit is the function of the Congress to legislate. Article II,

2 Mr. Justice Brandeis, speaking for the Court in United States v.

North American Co., 253 U. S. 330, 333, stated that the basis ofthe Government's liability for a taking of property was legislativeauthority, "In order that the Government shall be liable it mustappear that the officer who has physically taken possession of theproperty was duly authorized so to do, either directly by Congressor by the offioial upon whom Congress conferred the power."

That theory explains cases like United States v. Cdusby, 328 U. S.256, where the acts of the officials resulting in a taking were actsauthorized by ihe Congress, though the Congress had not treatedthe acts as.one of appropriation of private property.

Wartime seizures by the military in connection with military opera-tions (cf. United States v. Russell, 13 Wall. 623) are also in a differentcategory.


579 DOUGLAS, J., concurring.

Section 3 also provides that the President "shall take Carethat the Laws be faithfully executed." But, as MR. JUS-TICE BLACK and MR. JUSTICE FRANKFURTER point out, thepower -to execute the laws starts and ends with the lawsCongress has enacted.

The great office of President is not a weak and power-less one. The President represents the people and istheir spokesman in domestic and foreign affairs. Theoffice is respected more than any other in the land. Itgives a position of leadership that is unique. The powerto formulate policies and mould opinion inheres in thePresidency and conditions our national life. The impactof the man and the philosophy he represents may at timesbe thwarted by the Congress. Stalemates may occurwhen emergencies mount and the Nation suffers for lack ofharmonious, reciprocal action between the White Houseand Capitol Hill. That is a risk inherent in our sys-tem of separation of powers. The tragedy of such stale-mates might be avoided by allowing the President the useof some legislative authority. The Framers with mem-ories of the tyrannies produced by a blending of executiveand legislative power rejected that political arrangement.Some future generation may, however, deem it so urgentthat the President have legislative authority that theConstitution will be amended. We could not sanctionthe seizures and condemnations of the steel plants in thiscase without reading Article II as giving the Presidentnot only the power to execute the laws but to make some.Such a step would most assuredly alter the pattern ofthe Constitution.

We pay a price for our system of checks and balances,for the distribution of power among the three branchesof government. It is a price that today may seem ex-orbitant to many. Today a kindly President uses theseizure power to effect a wage increase and to keep .thesteel furnaces in production. Yet tomorrow another

OCTOBER TERM, 1951.

JACKSON, J., concurring. 343 U. S.

President might use the same power to prevent a wage in-crease, to curb trade-unionists, to regiment labor as op-pressively as industry thinks it has been regimented bythis seizure.

MR. JUSTICE JACKSON, concurring in the judgment andopinion of the Court.

That comprehensive and undefined presidential pow-ers hold both practical advantages and grave dangers forthe country will impress anyone who has served as legaladviser to a President in time of transition and publicanxiety. While an interval of detached reflection maytemper teachings of that experience, they probably area more realistic influence on my views than the conven-tional materials of judicial decision which seem undulyto accentuate doctrine and legal fiction. But as we ap-proach the question of presidential power, we half over-come mental hazards by recognizing them. The opinions.of judges, no less than executives and publicists, oftensuffer the infirmity of confusing the issue of a power'svalidity with the cause it is invoked to promote, of con-founding the permanent executive office with its tem-porary occupant. The tendency is strong to emphasizetransient results upon policies-such as wages or stabi-lization-and lose sight of enduring consequences uponthe balanced power structure of our Republic.

A judge, like an executive adviser, may be surprisedat the poverty of really useful and unambiguous author-ity applicable to concrete problems of executive poweras they actually present themselves. Just what our fore-fathers did envision, or would have envisioned had theyforeseen modern conditions, must be divined from mate-rials almost as enigmatic as the dreams Joseph was calledupon to interpret for Pharaoh. A century and a halfof partisan debate and scholarly speculation yields no netresult but only supplies more or.less apt quotations from

634


579 JACKSON, J., concurring.

respected sources on each side of any question. Theylargely cancel each other.' And court decisions are in-decisive because of the judicial practice of dealing withthe largest questions in the most narrow way.

The actual art of governing under our Constitutiondoes not and cannot conform to judicial definitions ofthe power of any of its branches based on isolated clausesor even single Articles torn from context. While theConstitution diffuses power the better to secure liberty,it also contemplates that practice will integrate the dis-persed powers into a workable government. It enjoinsupon its branches separateness but interdependence,autonomy but reciprocity. Presidential powers are notfixed but fluctuate, depending upon their disjunctionor conjunction with those of Congress. We may wellbegin by a somewhat over-simplified grouping of prac-tical situations in which a President may doubt, or othersmay challenge, his powers, and by distinguishing roughlythe legal consequences of this factor of relativity.

1. When the President acts pursuant to an express orimplied authorization of Congress, his authority is at itsmaximum, for it includes all that he possesses in his ownright plus all that Congress can delegate2 In these cir-

'A Hamilton may be matched against a Madison. 7 The Worksof Alexander Hamilton, 76-i17; 1 Madison, IUtters and OtherWritings, 611-654. Professor Taft is counterbalanced by TheodoreRoosevelt. Taft, Our Chief Magistrate and His Powers, 139-140;Theodore Roosevelt, Autobiography, 388-389. It even seems thatPresident Taft cancels out Professor Taft. Compare his "Tempo-rary Petroleum Withdrawal No. 5" of September 27, 1909, UnitedStates v. Midwest Oil Co.; 236 U. S. 459, 467, 468, with his appraisalof executive power in "Our Chief Magistrate and His Powers" 139-140.

2It is in this class of cases that we find the broadest recent state-

ments of presidential power, including those relied on here. UnitedStates v. Curtiss-Wright Corp., 299 U. S. 304, involved, not- thequestion of the President's power to act without congressional au-

OCTOBER TERM, 1951.


cumstances, and in these only, may he be said (for whatit may be worth) to personify the federal sovereignty.If his act is held unconstitutional under these circum-stances, it usually means that the Federal Government

thority, but the question of his right to act under and in accord withan Act of Congress. The constitutionality of the Act under whichthe President had proceeded was assailed on the ground that it dele-gated legislative powers to the President. Much of the Court's opin-ion is dictum, but the ratio decidendi is contained in the followinglanguage:

"When the President is to be authorized by legislation to act inrespect of a matter intended to affect a situation in foreign territory,the legislator properly bears in mind the important considerationthat the form of the President's action--or, indeed, whether he shallact at all-may well depend, among other things, upon the natureof the confidential information which he has or may thereafter re-ceive, or upon the effect which his action may have upon our foreignrelations. This consideration, in connection with what we havealready said on the subject, discloses the unwisdom of requiringCongress in this field of governmental power to lay down narrowlydefinite standards by which the President is to be governed. Asthis court said in Mackenzie v. Hare, 239 U. S. 299, 311, 'As a gov-ernment, the United States is invested with all the attributes of sov-ereignty. As it has the character of nationality it has the powersof nationality, especially those which concern its relations and inter-course with other countries. We should hesitate long before limitingor embarrassing such powers. (Italics supplied.)" Id., at 321-322.

•That case does not solve the present controversy. 'It recognizedinternal and external affairs as being in separate categories, and heldthat the strict limitation upon congressional delegations of power tothe President over internal affairs does not apply with respect to dele-gations of power in external affairs. It was intimated that the Presi-dent might act in external affairs without congressional authority, butnot 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. UnitedStates, 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.



as an undivided whole lacks power. A seizure executedby the President pursuant to an Act of Congress wouldbe supported by the strongest of presumptions and thewidest latitude. of judicial interpretation, and the burdenof persuasion would rest -heavily upon any who mightattack it.

2. When the President acts in absence of either a con-gressional grant or denial of authority, he can only relyupon his own independent powers, but there is a zoneof twilight in which he and Congress may have concurrentauthority, or in which its distribution is Uncertain.Therefore, congressional inertia, indifference or qui-escence may sometimes, at least as a practical matter,enable, if not invite, measures on independent presi-dential responsibility. In this area, any actual test ofpower is likely to depend on the imperatives of eventsand contemporary imponderables rather than on abstracttheories of law.'

3. When the President takes measures incompatiblewith the expressed or implied will of Congress, his poweris at its lowest ebb, for then he can rely only upon hisown constitutional powers minus any constitutional pow-ers of Congress over the matter. Courts can sustain ex-clusive presidential control in such a case only by dis-

3 Since the Constitution implies that the writ of habeas corpusmay be suspended in certain circumstances but does not say bywhom, President Lincoln asserted and maintained it as an executivefunction in the face of judicial challenge and doubt. Ex parte Mer-ryman, 17 Fed. Cas. 144; Ex parte Milligan, 4 Wall. 2, 125; seeEx parte' Bollman, 4 Cranch 75, 101. Congress eventually ratifiedhis action. Habeas Corpus Act of March 3, 1863, 12 Stat. 755.See Hall, Free Speech in War Time, 21 Col. L. Rev. 526. CompareMyers v. United States, 272 U. S. 52, with Humphrey's Executor v.United States, 295 U. S. 602; and Hirabayashi v. United States, 320U. S. 81, with the case at bar. Also compare Ex parte Vallandig-ham, 1 Wall. 243, with Ex parte Milligan, supra.

OCTOBER TERM, 1951.


abling the Congress from acting upon the subject.'Presidential claim to a power at once so conclusive andpreclusive must be scrutinized with caution, for what isat stake is the equilibrium established by our constitu-tional system.

Into which of these classifications does this executiveseizure of the steel industry fit? It is eliminated fromthe first by admission, for it is conceded that no con-gressional authorization exists for this seizure. Thattakes away also the support oi the. many precedents anddeclarations which were made in relation, -and must beconfined, to this category.5

4President Roosevelt's effort to remove a Federal Trade Commis-sioner was found to be contrary to the policy of Congress and im-pinging upon an area of congressional control, and so his removalpower was cut down accordingly. Humphrey's Executor v. UnitedStates, 295 U. S. 602. However, his exclusive power of removal inexecutive agencies, affirmed in Myers v. United States, 272 U. S. 52,continued to be asserted and maintained. Morgan v. TennesseeValley Authority, 115 F. 2d 990, cert. denied, 312 U. S. 701; In rePower to Remove Members of the Tennessee Valley Authority, 39Op. Atty. Gen. 145; President Roosevelt's Message to Congress ofMarch 23, 1938, The' Public Papers and Addresses of Franklin D.Roosevelt, 1938. (Rosenman), 151.

5The oft-cited Louisiana Purchase had nothing to do with theseparation of powers as between the President and. Congress, butonly with state and federal power. The Louisiana Purchase wassubject to rather academic criticism, not upon the ground that Mr.Jefferson acted without authority from Congress, but that neitherhad express authority to expand-the boundaries of the United Statesby purchase or annexation. Mr. Jefferson himself had stronglyopposed the doctrine that- the States' delegation of powers to theFederal 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 foreignterritory, still less for. incorporating foreign nations into our Union.The executive in seizing the fugitive occurrence which so much ad-



Can it then' be defended under flexible tests availableto the second category? It seems clearly eliminated fromthat class because Congress has not left seizure of privateproperty an open field but has covered it by three statu-tory policies inconsistent with this seizure. In caseswhere the purpose is to supply needs of the Governmentitself, two courses are provided: one, seizure of a plantwhich fails to comply with obligatory orders placed bythe Government; 6 another, condemnation of. facilities,including temporary use under the power of eminentdomain.' The third is applicable where it is the generaleconomy of the country that is to be protected ratherthan exclusive governmental interests.' None of thesewere invoked. In choosing a different and inconsistentway of his own, the President cannot claim that it isnecessitated or invited by failure of Congress to legislatbupon the occasions, grounds and methods 'for seizure of in-dustrial properties.

vances the good of their country, have done an act beyond the Con-stitution. The Legislature in casting behind them metaphysicalsubtleties, and risking themselves like faithful servants, must ratifyand pay for it, and throw themselves on their country for doing forthem unauthorized, what we know they would have done for them-selves had they been in a situation to do it." 10 The Writings ofThomas Jefferson 407, 411.

Selective Service Act of 1948, § 18,62 Stat. 625, 50 U. S. C. App.(Supp. IV) § 468 (c).

7 Defense Production Act of 1950, § 201, 64 Stat. 799, amended,65 Stat. 132, 50 U. S. C. App. (Supp. IV) § 2081. For the latitudeof the condemnation power which underlies this Act, see United Statesv. Westinghouse Co., 339 U. S. 261, and cases therein cited.

a 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.

OCTOBER TERM, 1951.


This leaves the curent seizure to be justified only bythe severe tests under the third grouping, where it canbe supported only by any remainder of executive powerafter subtraction of such powers as Congress may haveover the subject. In short, we can sustain the Presidentonly by holding that seizure of such strike-bound indus-tries is within his domain and beyond control by Congress.Thus, this Court's first review of such seizures occursunder circumstances which leave presidential power mostvulnerable to attack and in the least favorable of possibleconstitutional postures.

I did not suppose, and I am not persuaded, that historyleaves it open to question, at least in the courts, thatthe executive branch, like the Federal Government asa whole, possesses only, delegated powers. The purposeof the Constitution was not only to grant power, but tokeep it from getting out of hand. However, because thePresident does not enjoy unmentioned powers does notmean that the mentioned ones should be narrowed by aniggardly construction. .Some clauses could be made al-most unworkable, as well as immutable, by refusal to in-dulge some latitude of interpretation for changing times.I have heretofore, and do now, give to the enumeratedpowers the scope and elasticity afforded by what seem tobe reasonable, practical implications instead of the rigiditydictated by a doctrinaire textualism.

The Solicitor General seeks the power of seizure inthree clauses of the Executive Article, the first reading,"The executive Power shall be vested in a President ofthe United States of America." Lest I be thought toexaggerate, I quote the interpretation which his briefputs upon it: "In our view, this clause constitutes a grantof all the executive powers of which the Government iscapable." If that be true, it is difficult to see why the



forefathers bothered to add several specific items, in-cluding some trifling ones.'

The example of such unlimited executive power thatmust have most impressed the forefathers was the pre-rogative exercised by George III, and the description ofits evils in the Declaration of Independence leads me todoubt that they were creating their new Executive inhis image. Continental European examples were nomore appealing. And if we seek instruction from ourown times, we can match it only from the executive pow-ers in those governments we disparagingly describe astotalitarian. I cannot accept the view that this clauseis a grant in bulk of all conceivable executive power butregard it as an allocation to the presidential office ofthe generic powers thereafter stated.

The clause on which the Government next relies isthat "The President shall be Commander in Chief of theArmy and Navy of the United States .... " Thesecryptic words have given rise to some of the most persist-ent controversies in our constitutional history. Of course,they imply something more than an empty title. Butjust what authority goes with the name has plaguedpresidential advisers who would not waive or narrow itby nonassertion yet cannot say where it begins or ends.It undoubtedly puts the Nation's armed forces underpresidential command. Hence, this loose appellation issometimes advanced as support for any presidentialaction, internal or external, involving use of force, the

s"... he may require the Opinion, in writing, of the principalOfficer in each of the executive Departments, upon any Subjectrelating to the Duties of their respective Offices . . . .". U. S. Const.,Art. II, § 2. He ". . . shall Commission all the Officers of theUnited States." U. S. Const., Art. II, § 3. Matters such as thosewould seem to be inherent in the Executive if anything is.

OCTOBER TERM, 1951.


idea being that it vestp power to do anything, anywhere,that can be done with an army or navy.

That seems to be the logic of an argument tendered atour bar-that the President having, on his own responsi-bility, sent American troops abroad derives from thatact "affirmative power" to seize the means of producinga supply of steel for them. To quote, "Perhaps the mostforceful illustration of the scope of Presidential powerin this connection is the fact that American troops inKorea, whose safety and effectiveness are so directly in-volved here, were sent to the field by an exercise of thePresident's constitutional powers." Thus, it is said, hehas invested himself with "war powers."

I cannot foresee all that it might entail if the Courtshould indorse this argument. Nothing in our Constitu-tion is plainer than that declaration of a war is entrustedonly to Congress. Of course, a state of war may in facte cist without a formal declaration. But no doctrine thatthe Couirt could promulgate would seem to me moresinister and alarming than that a President whose con-duct of foreign affairs is so largely uncontrolled, and ofteneven is unknown, can vastly enlarge his mastery over theinternal affairs of the country by his own commitmentof the Nation's armed forces to some foreign vent ire.lo

10 How widely this doctrine espoused by the President's counsel

departs from the early view of presidential power is shown by acomparison. President Jefferson, without authority from Congress,sent the American fleet into the Mediterranean, where it engaged ina naval battle with the Tripolitan fleet., He sent a message to Con-gress on December.8, 1801, in which he said:"Tripoli, the least considerable of the Barbary States, had comeforward with demands unfounded either in right or in compact, andhad permitted itself to denounce war on our failure to comply beforea given day. The style of the demand admitted but one answer. Isent a small squadron of frigates into the Mediterranean . . . withorders to protect our commerce against the threatened attack. . ..

Our commerce in the Mediterranean was blockaded'and that of the



I do not, however, find it necessary or appropriate to con-sider the legal status of the Korean enterprise to dis--countenance argument based on it-

Assuming that we are in a war de facto, whether it isor is. not a war de jure, does that empower the Com-mander in Chief to seize industries he thinks necessaryto supply our army? The Constitution expressly placesin Congress power "to raise and support Armies" and "toprovide and maintain a Navy." (Emphasis supplied.)This certainly lays upon Congress primary responsibilityfor supplying the armed forces. Congress alone controlsthe raising of revenues and their appropriation and maydetermine in what manner and by what means they shallbe spent for military and naval procurement. I supposeno one would doubt that Congress can take over warsupply as a Government'enterprise. On the other hand,.if Congress sees fit to rely on free private enterprise col-lectively bargaining with free labor for support and main-tenance of our armed forces, can the Executive, because oflawful disagreements incidental to that process, seize thefacility for operation upon Government-imposed terms?

There are indications that the Constitution did notcontemplate that the title Commander in Chief of the

Atlantic in peril. . . One of the Tripolitan cruisers having fallen inwith and engaged the small schooner Enterprise, ...was captured,after a heavy slaughter of her men . . . . Unauthorized by theConstitution, without the sanction of Congress, to go beyond the lineof defense, the vessel, being disabled from committing further hos-tilities, was liberated with its crew. The Legislature will doubtlessconsider whether, by authorizing measures of offense also, they willplace our force on an equal footing with that of its adversaries. Icommunicate all material information on this subject, that in theexercise of this important function confided by the Constitution to theLegislature exclusively their judgment may form itself on a knowledgeand consideration of every circumstance of weight." I Richardson,Messages and Papers of the Presidents, 314.

643

OCTOBER TERM, 1951.


Army and Navy will constitute him also Commander inChief 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 com-mand of the army and navy, only Congress can providehim an army or navy to command. It is also empoiveredto make rules for the "Government and Regulation ofland and naval Forces," by which it may to some un-known extent impinge upon even command functions.

That military powers of the Commander in Chief werenot to supersede representative government of internalaffairs seems obvious from the Constitution and fromelementary American history. Time out of mind, andeven now in many parts of the world, a military com-mander can seize private housing to shelter his troops.Not so, however, in the United States, for the ThirdAmendment says, "No Soldier shall, in time of peace bequartered in any house, without the consent of the Owner,nor in time of war, but in a manner to be prescribed bylaw." Thus, even in war time, his seizure of neededmilitary housing must be authorized by Congress. Italso was expressly left to Congress to "provide for callingforth the Militia to execute the Laws of the Union, sup-press Insurrections and repel Invasions .... ,, ', Sucha limitation on the command power, written at a timewhen the militia rather than a standing army was con-templated as the military weapon of the Republic, under-scores the Constitution's policy that Congress, not theExecutive, should control utilization of the war poweras an instrument of domestic policy. Congress, fulfillingthat function, has authorized the President to use thearmy to enforce certain civil rights.1 2 On the other hand,Congress has forbidden him to use the army for the pur-

1n U. S. Const., Art. I, § 8, cl. 15.12 14 Stat. 29, 16 Stat. 143, 8 U. S.-C. §-55..



pose of executing general laws except when expresslyauthorized by the Constitution or by Act of Congress."

While broad claims under this rubric often have beenmade, advice to the President in specific matters usuallyhas carried overtones that powers, even under this head,are measured by the command functions usual to thetopmost officer of the army and navy. Even then, heedhas been taken of any efforts of Congress to negative hisauthority.1

We should not use this occasion to circumscribe, muchless to contract, the lawful role of the President as Com-mander in Chief. I should indulge the widest latitudeof interpretation to sustain his exclusive function to com-mand the instruments of national force, at least whenturned against the outside world for the security of oursociety. But, when it is turned inward, not because ofrebellion but because of a lawful economic struggle be-tween industry and labor, it should have no such in-dulgence. His command power is not such an absoluteas might be implied from that office in a militaristic sys-tem but is subject to limitations consistent with a con-stitutional Republic whose law and policy-making branch

Is 20 Stat. 152, 10 U. S. C. § 15.

14 In 1940, President Roosevelt proposed to transfer to Great

Britain certain overage destroyers and small patrol boats then underconstruction. He did not presume to rely upon any claim of con-stitutional power as Commander in Chief. On the contrary, he wasadvised that such destroyers-if certified not to be essential to thedefense 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 thesame opinion, he was advised that Congress had prohibited therelease or transfer of the so-called "mosquito boats" then under con-structiorr, so those boats were not transferred. Acquisition of Navaland. Air Bases in Exchange for Over-age Destroyers, 39 Op. Atty.Gen. 484. See also Training of British Flying Students in the UnitedStates, 40 Op. Atty. Gen. 58.

994084 0-52-45

OCTOBER TERM, 1951.


is a representative Congress. The purpose of lodgingdual titles in one man was to insure that the civilianwould control the military, not to enable the military tosubordinate the presidential office. No penance wouldever expiate the sin against free government of holdingthat a President can escape control of executive pow-ers by law through assuming his military role. What thepower of command may include I do not try to envision,but I think it is not a military prerogative, without sup-port of law, to seize persons or property because they areimportant or even essential for the military and navalestablishment.

The third clause in which the Solicitor General findsseizure powers is that "he shall take Care that the Lawsbe faithfully executed . . .." 1 That authority mustbe matched against words of the Fifth Amendment that"No person shall be ...deprived of life, liberty or prop-erty, without due process of law . . . ." One gives agovernmental authority that reaches so far as there islaw, the other gives a private right that authority shallgo no farther. These signify about all there is of theprinciple that ours is a government of laws, not of men,and that we submit ourselves to rulers only if under rules.

The Solicitor General lastly grounds support of theseizure upon nebulous, inherent powers never expresslygranted but said to have accrued to the office froni thecustoms and claims of preceding administrations. Theplea is for a resulting power to deal with a crisis or anemergency according to the necessities of the case, theunarticulated assumption .being that necessity knows nolaw.

Loose and irresponsible use of adjectives colors all non-legal and much legal discussion of presidential powers.

15 U. S. Const., Art. II, § 3.


579 JACKSON, J.., concurring.

"Inherent" powers, "implied" powers, "incidental" pow-ers, "plenary" powers, "war" powers and "emergency"powers are used, often interchangeably and without fixedor ascertainable meanings.

-The vagueness and generality of the clauses that setforth presidential powers afford a plausible basis forpressures within and without an administration for presi-dential action beyond that supported by those whose re-sponsibility it is to defend his actions in court. Theclaim of inherent and unrestricted presidential powershas long been a persuasive dialectical weapon in politicalcontroversy. While it is not surprising that counselshould grasp support from such unadjudicated claims ofpower, a judge cannot accept self-serving press state-ments of the attorney for one of the interested partiesas authority in answerifig a constitutional question, evenif 'the advocate was himself. But prudence has coun-seled that actual reliance on such nebulous claims stopshort of provoking a judicial test.18

18 President Wilson, just before our entrance into World War'I,

went before the Congress and asked its approval of his decision toauthorize merchant ships to carry defensive weapons. He said:

"No doubt I already possess that authority without special war-.rant of law, by the plain implication of my constitutional duties andpowers; but I prefer, in the present circumstances, not to act upongeneral implication. I wish to feel that the authority and the powerof the Congress are behind me in whatever it may become necessaryfor me to do. We are jointly the servants of the people and mustact together and in their spirit, so far as we can divine and interpretit." XVII Richardson, op. cit., 8211.

When our Government was itself in need of shipping whilst shipsflying the flags of nations overrun by Hitler, as. well as belligerentmerchantmen, were immobilized in American harbors Where they hadtaken refuge, President Roosevelt did not assume that it was in hispower to seize such foreign vessels, to make up our own deficit.He informed Congress:. "I am satisfied, after consultation with theheads of the interested departments and agencies of the Government,

OCTOBER TERM, 1951.


The Solicitor General, acknowledging that Congresshas never authorized the seizure here, says practice ofprior Presidents has authorized it. He seeks color oflegality from claimed executive precedents, chief of whichis President Roosevelt's seizure on June 9, 1941, of theCalifornia plant of the North American Aviation Com-pany. Its superficial similarities with the present case,upon analysis, yield to distinctions so decisive that it

that we should have statutory authority to take over any such ves-sels as our needs may require . . . ." 87 Cong. Rec. 3072 (77thCong., 1st Sess.); The Public Papers and Addresses of Franklin D.Roosevelt, 1941 (Rosenman), 94.. The necessary statutory authoritywas shortly forthcoming. 55 Stat. 242.

In his first inaugural address President Roosevelt pointed out twocourses to obtain legislative remedies, one being to enact measureshe was prepared to recommend, the other to enact measures "theCongress may build out of its experience and wisdom." He con-tinued, "But in the event that the Congress shall fail to take one ofthese two courses, and in the event that the national emergency isstill critical, I shall not evade the clear course of duty that will thenconfront me.. I shall ask the Congress for the one remaining instru-ment to meet the crisis-broad Executive power to wage a waragainst the emergency, as great as the power that would be givento me if we were in fact invaded by a foreign foe." (Emphasissupplied.) The Public Papers and Addresses of Franklin D. Roose-velt, 1933 (Rosenman), 15.

On March 6, 1933, President Roosevelt proclaimed the Bank.Holi-day. The Proclamation did not invoke constitutional powers of theExecutive but expressly and solely relied upon the Act of Congressof October 6, 1917, 40 Stat. 411, § 5 (b), as amended. He reliedsteadily on legislation to empower him to deal with economic emer-gency. The Public Papers and Addresses of Franklin D. Roosevelt,1933 (Rosenman), 24.

It is interesting to note Holdsworth's comment on the powers oflegislation by proclamation when in the hands of the Tudors. "Theextent to which they could be legally used was never finally settledin this century, because the Tudors made so tactful a use of theirpowers that no demand for the ,settlement of this question wasraised." 4 H.oldsworth, History of English Law, 104.



cannot be regarded as even a precedent, much less anauthority for the present seizure."

The appeal, however, that we declare the existence ofinherent powers ex necessitate to meet an emergencyasks us to do what many think would be wise, although

17 The North American Aviation Company was under direct andbinding contracts to supply defense items to the Government. Nosuch contracts are claimed to exist here. Seizure of plants whichrefused to comply with Government orders had been expresslyauthorized by Congress in § 9 of the Selective Service Act of 1940,54 Stat. 885,. 892, so that the seizure of the North American plantwas entirely consistent with congressional policy. The companymight have objected on technical grounds to the seizure, but it wastaken over with acquiescence, amounting to all but consent, of theowners who had admitted that the situation was beyond their con-trol. The strike involved in' the North American case was in viola-tion of the union's collective agreement and the national-labor lead-ers approved the seizure to end the strike. It was described as inthe nature of an. insurrection, a Communist-led political strikeagainst the Government's lend-lease policy. Here we have only aloyal, lawful, but regrettable economic disagreement between man-agement and labor. The North American plant contained govern-ment-owned machinery, material and goods in the process of pro-duction to which workmen were forcibly denied access by picketingstrikers. Here no Government property is protected by the seizure.See New York Times of June 10, 1941, pp. 1, 14 and 16, for sub-stantially accurate account .of the proceedings and the conditions ofviolence at the North. American plant.

The North American seizure was regarded as an execution ofc6ngressional policy. I do not regard it as a 'precedent for this,but, even if I did,-I should not bind present judicial judgment byearlier partisan advocacy.

Statements from a letter by the Attorney General to the Chairmanof the Senate Committee on Labor and Public Welfare, dated Febru-ary 2, 1949, with reference to pending labor legislation, while notcited by any of the parties here, are sometimes quoted as being insupport of the "inherent" powers of the President. The proposedbill contained a mandatoryprovision that during certain investiga-tions the disputants in a labor dispute should continue operationsunder the terms and conditions of employment existing prior-to the

OCTOBER TERM, 1951.


it is something the forefathers omitted. They knew whatemergencies were, knew the pressures they engender forauthoritative action, knew, too, how they afford a readypretext for usurpation. We may also suspect that theysuspected that emergency powers would tend to kindleemergencies. Aside from suspension of the privilege ofthe writ of habeas corpus in time of rebellion or invasion,when the public safety may require it,"8 they made noexpress provision for exercise of extraordinary authoritybecause of a crisis."9 I do not think we rightfully may soamend their work, and, if we could, I am not convincedit would be wise to do so, although many modern nationshave forthrightly recognized that war and economic crisesmay upset the normal balance between liberty and au-

beginning of the dispute. It made no provision as to how continu-ance should be enforced and specified no penalty for disobedience.The Attorney General advised that in appropriate circumstancesthe United States would have access to the courts to protect thenational health, safety and welfare. This was the rule laid downby this Court in Texas & N. 0. R. Co. V. Brotherhood of RailwayClerks, 281 U. S. 548. The Attorney General observed:

"However, with regard to the question of the power of the Govern-ment under Title III, I might point out that the inherent powerof the President to deal with emergencies that affect the health, safetyand welfare of the entire Nation is exceedingly great. See Opinionof 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 Laborand Public Welfare on S. 249, 81st Cong., 1st Sess. 263.

Regardless of the general reference to "inherent powers," the cita-tions were instances of congressional authorization. I do not sup-pose it is open to doubt that power to see that the laws are faithfullyexecuted was ample basis for the specific advice given by the AttorneyGeneral in this letter.

1 U. S. Const., Art. I, § 9, cl. 2.19 1 exclude, as in a very limited category by itself, the establishment

of martial law. Cf. Ex parte Milligan, 4 Wall. 2; Duncan v. Kahana-moku, 327 U. S. 304.



thority. Their experience with emergency powers maynot be irrelevant to the argument here that we shouldsay that the Executive, of his own volition, can investhimself with undefined emergency powers.

Germany, after the First World War, framed theWeimar Constitution, designed to secure her liberties inthe Western tradition. However, the President of theRepublic, without concurrence of the Reichstag, was em-powered temporarily to suspend any or all individualrights if public safety and order were seriously disturbedor endangered. This proved a temptation to every gov-ernment, whatever its shade of opinion, and 'in 13years suspension of rights was invoked on more than 250occasions. Finally, Hitler persuaded. President VonHindenberg to suspend all such rights, and they werenever restored.'

The French Republic provided for a very different kindof emergency government known as the "state of siege."It differed from the German emergency dictatorship, par-ticularly in that emergency powers could not be assumedat will by the Executive but could only be granted as aparliamentary measure. And it did not, as in Germany,result in a suspension or abrogation of law but was a legalinstitution governed by special legal rules and terminableby parliamentary authority.

Great Britain also has fought both World Wars undera sort of temporary dictatorship created by legislationYAs Parliament is not bound by written constitutionallimitations, it established a crisis government simply by

20 1 Nazi Conspiracy and Aggression 126-127; Rossiter, Constitu-tional Dictatorship, 33-61; Brecht, Prelude to Silence, 138.

21 Rossiter, Constitutional Dictatorship, 117-129.22 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.

OCTOBER TERM, 1951.


delegation to its Mi nisters of a larger measure than usualof its own unlimited power, which is exercised under itssupervision by Ministers whom it may dismiss. This hasbeen called the "high-water mark in the voluntary sur-render of liberty," but, as Churchill put it, "Parliamentstands custodian of these surrendered liberties, and itsmost sacred duty will be to restore them in their fullnesswhen victory has crowned our exertions and our persever-ance." 23 Thus, parliamentary control made emergencypowers compatible with freedom.

This contemporary foreign experience may be incon-clusive as to the wisdom of lodging emergency powerssomewhere in a modern government. But it suggeststhat emergency powers are consistent with free govern-ment only.when their control is lodged elsewhere than inthe Executive who exercises them. That is the safe-guard that would be nullified by our adoption of the"inherent powers" formula. Nothing in my experienceconvinces me thatf such risks are warranted by any realnecessity, although such powers would, of course, be anexecutive convenience.In the practical working of our Government we already

have evolved a technique within the framework of theConstitution by which normal executive powers may beconsiderably expanded to meet an emergency. Congressmay and has granted extraordinary authorities which liedormant in normal times but may be called into play bythe Executive in war or upon proclamation of a nationalemergency. In 1939, upon congressional request, the At-torney General listed ninety-nine such separate statutorygrants by Congress of emergency or wartime executivepowers. 4 They were invoked from time to time as needappeared. Under this procedure we retain Government

23 Churchill, The Unrelenting Struggle, 13. See also id., at 279-,

281.24 39 Op. Atty. Gen. 348.



by law-special, temporary law, perhaps, but law none-theless. The public may know the extent and limitationsof the powers that can be asserted, and persons affectedmay be informed from the statute of their rights andduties.

In view of the ease, expedition and safety with whichCongress can grant and has- granted large emergencypowers, certainly ample to embrace this crisis, I am quiteunimpressed with the argument that we should affirmpossession of them without statute. Such power eitherhas no beginning or it has no end. If it exists, it needsubmit to no legal restraint. I am not alarmed that itwould plunge us straightway into dictatorship, but it isat least a step in that wrong direction.

As to whether there is imperative necessity for suchpowers, it is relevant to note the gap that exists betweenthe President's paper powers and his real powers. TheConstitution does not disclose the measure of the actualcontrols wielded by the modern presidential office. Thatinstrument must be understood as an Eighteenth-Centurysketch of a government hoped for, not as a blueprint ofthe Government that is. Vast accretions of federalpower, eroded from that reserved by the States, have mag-nified the scope of presidential activity. Subtle shiftstake place in the centers of real power that do not showon the face of the Constitution.

Executive power has the advantage of concentration ina 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 over-shadow any others that almost alone he fills the publiceye aind ear. No other personality in public life canbegin to compete with him in access to the public mindthrough. modern methods of communications. By hisprestige as head of state and his influence upon publicopinion he exerts a leverage upon those who are supposed

OCTOBER TERM, 1951.


to check and balance his power which often cancels theireffectiveness.

Moreover, rise of the party system has made a signifi-cant extraconstitutional supplement to real executivepower. No appraisal of his necessities is realistic whichoverlooks that he heads a political system as well as alegal system. Party loyalties and interests, sometimesmore binding than law, extend his effective control intobranches of government other than his own and he oftenmay win,-as a political leader, what he cannot commandunder the Constitution. Indeed, Woodrow Wilson, com-menting on the President as leader both of his party andof the Nation, observed, "If he rightly interpret the na-tional thought and boldly insist upon it, he is irresist-ible . . . . His office is anything he has the sagacity andforce to make it." 5 I cannot be brought to believe thatthis country will suffer if the Court refuses further toaggrandize the presidential office, already so potent andso relatively immune from judicial review,"6 at the expenseof Congress.

But I have no illusion that any decision by this Courtcan keep power in the hands of Congress if it is not wiseand timely in meeting its problems. A crisis that chal-lenges the President equally, or perhaps primarily, chal-lenges Congress. If not good law, there was worldlywisdom in the maxim attributed to Napoleon that "Thetools belong to the man who can use them." We maysay that power to legislate for emergencies belongs in thehands of Congress, but only Congress itself can preventpower from slipping through its fingers.

The essence of our free Government is "leave to liveby no man's leave, underneath the law"-to be governedby those impersonal forces which we call law. Our Gov-

2 5 Wilson, Constituti6ftal Government in the United States, 68-69.26 Rossiter, The Supreme Court and the Commander in Chief, 126-


579 BURTON, J., concurring.

ernment is fashioned to fulfill this concept so far ashumanly possible. The Executive, except for recommen-dation and veto, has no legislative power. The executiveaction we have here originates in the individual will of thePresident and represents an exercise of authority withoutlaw. No one, perhaps not even the President, knows thelimits of the power he may seek to exert in this instanceand the parties affected cannot learn the limit of theirrights. We do not know today what powers over laboror property would be claimed to flow from Governmentpossession if we should legalize it, what rights to com-pensation would be claimed or recognized, or on whatcontingency it would end. With all its defects, delaysand inconveniences, men have discovered no techniquefor long preserving free government except that the Ex-ecutive be under the law, and that the law be made byparliamentary deliberations.

Such institutions may be destined to pass away. Butit is the duty of the Court to be last, not first, to give themup. 2

7

MR. JUSTICE BURTON, concurring in both the opinionand 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 itsrelation to the constitutional division of governmentalpower between Congress and the President.

27 We follow the judicial tradition instituted on a memorable Sun-

day in 1612, when King :James took offense at the independence ofhis judges and, in rage, declared: "Then I am to be under the law-which it is treason- to affirm." Chief Justice Coke replied to hisKing: "Thus wrote Bracton, 'The King ought not to be under anyman, but he is under God and the Law.'" 12 Coke 65 (as to itsverity, 18 Eng. Hist., Rev. 664-675); 1 Campbell, Lives of the ChiefJustices (1849), 272.

OCTOBER TERM, 1951.

BURTON, J., concurring. 343 U. S.

The Constitution has delegated to Congress power toauthorize action to meet a national emergency of the kindwe face.' Aware of this responsibility, Congress has re-sponded to it. It has provided at least two proceduresfor the use of the President.

It has outlined one in the Labor Management Rela-tions Act, 1947, better known as the Taft-Hartley Act.The accuracy with which Congress there describes thepresent emergency demonstrates its applicability. Itsays:

"Whenever in the opinion of the President of theUnited States, a threatened or actual strike or lock-out affecting an entire industry or a substantial partthereof engaged in trade, commerce, transportation,transmission, or communication among the severalStates or with foreign nations, or engaged in theproduction of goods for commerce, will, if permittedto occur or to continue, imperil the national healthor safety, he may appoint a board of inquiry to in-quire into the issues involved in the dispute and tomake a written report to him within such time as heshall prescribe....2

1 "Article. I.

"Section. 1. All legislative Powers herein granted. shall be vestedin a Congress of the United States .

"Section. 8. The Congress shall have Power . ..

"To regulate Commerce with foreign Nations, and among theseveral States .

"To make all Laws which shall be necessary and proper for carry-ing into Execution the foregoing Powers, and all other Powers vestedby this Constitution in the Government of the United States, or inany Department or Officer thereof."

261 Stat. 155, 29 U. S. C. (Supp. IV) § 176.



In that situation Congress has authorized not Onlynegotiation, conciliation and impartial inquiry but alsoa 60-day cooling-off period under injunction, followed by20 days for a secret ballot upon the final offer of settle-ment and then by recommendations from the Presidentto Congress.

For the purposes of this case the most significant fea-ture of that Act is its omission of authority to seizean affected industry. The debate preceding its passagedemonstrated the significance of that omission. Collec-tive bargaining, rather than governmental .seizure, wasto be relied upon. Seizure was not to be resorted towithout specific congressional authority. Congress re-served to itself the opportunity to authorize seizure tomeet particular emergencies.'

3 61 Stat. 155-156, 29 U. S. C. (Supp. IV) §§ 176-180.4 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, itwould interfere with the whole process of collective bargaining. Ifsuch a remedy is available as a routine remedy, there will always bepressure to resort to it by whichever party thinks it. will receivebetter treatment through such a process than it would receive incollective bargaining, and it will back out of collective bargaining.It will not make a bona-fide attempt to settle if it thinks it willreceive a better deal under the final arbitration which may beprovided.

"We have felt that perhaps in the case of a general strike, orin the case of other serious strikes, after the termination of everypossible effort to resolve the dispute, the remedy might be an emer-gency act by Congress for that particular purpose.

"I have had in mind drafting such a bill, giving power to seizethe plants, and other necessary facilities, to seize the unions, theirmoney, and their treasury, and requisition trucks and other equip-ment; in fact, to do everything that the British did in their generalstrike of 1926. But while such a bill might be prepared, I should

OCTOBER TERM, 1951.

BURTON, J., concurring. 343 U. S.

The President, however, chose not to use the Taft-Hartley procedure. He chose another course, also au-thorized by Congress. He referred the controversy to theWage Stabilization Board.5 'If that course had led to asettlement of the labor dispute, it would have avoidedthe need for other action. It, however; did not do so.

Now it is contended that although the President didnot follow the procedure authorized by the Taft-HartleyAct, his substituted procedure served the same purposeand must be accepted as its equivalent. Without ap-praising that equivalence, it is enough to point out thatneither procedure -carried statutory authority for theseizure of private industries in the manner now at issue.'The exhaustion of both procedures fails to cloud the

be unwilling to place such a law on the books until we actually facesuch an emergency, and Congress applies the remedy for the par-ticular emergency only. Eighty days will provide plenty of timewithin which to consider the possibility of what should be done; andwe believe very strongly that there should not be anything in thislaw which prohibits finally the right to strike." 93 Cong. Rec. 3835-3836.

Part of this quotation was relied upon by this Court in Bus Em-ployees v. Wisconsin Board, 340 U. 8. 383, 396, note 21.

5 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; andsee Exec. Order No. 10233, 16 Fed. Reg. 3503.

6 Congress has authorized other types of seizure under conditionsnot present here. Section 201 of the Defense Production Act au-thorizes the President to acquire specific "real property, includingfacilities, temporary use thereof, or other interest therein . . ." bycondemnation. 64 Stat. 799, as amended, 65 Stat. 132, see 50 U. S. C.App. (Supp. IV) § 2081. There have been no declarations of takingor condemnation proceedings in relation to any of the propertiesinvolved here. Section 18 of the Selective Service Act of "1948authorizes the President to take possession of a plant or otherfacility failing to f! certain defense orders placed with it in themanner there prescribed. 62 Stat: 625, 50 U. S. C. App. (Supp. IV)§ 468. No orders have been so placed with the steel plants seized.

YOUNGSTOWN CO.- v. SAWYER.


clarity of the congressional reservation of seizure for itsown consideration.

The -foregoing circumstances distinguish this emer-gency from one in which Congress takes no action andoutlines no governmental policy. In the case beforeus, Congress authorized a procedure which the Presidentdeclined to follow. Instead, he followed another pro-cedure which he hoped might eliminate the need for thefirst. Upon its failure, he issued an executive order toseize the steel properties in the face of the reserved rightof Congress to adopt or reject that course as a matterof legislative policy.

This brings us to a further crucial question. Does thePresident, in such a situation, have inherent constitu-tional power to seize private property which makes con-gressional action in relation thereto unnecessary? Wefind no such power available to him under the presentcircumstances. The present situation is not comparableto that of an imminent invasion or threatened attack.We do not face the issue of what might be the President'sconstitutional power to meet such catastrophic situations.Nor is it claimed that the current seizure is in the natureof a military command addressed by the President, as.Commander-in-Chief, to a mobilized nation waging,or imminently threatened with, total war.7

7The President and Congress have recognized the termination ofthe major hostilities in the total wars in which the Nation hasbeen engaged. Many wartime procedures have expired or beenterminated.

The War Labor Disputes Act, 57 Stat. 163 et 8eq., 50 U. S. C. App.§§ 1501-1511, expired June 30, 1947, six months after the Presi-dent'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 thePresident April 28, 1952, 17 Fed. Reg. 3813.

OCTOBER TERM, 1951.

CLARK, J., concurring in judgment. 343 U. S.

The controlling fact here is that Congress, within itsconstitutionally delegated power, has prescribed for thePresident specific procedures, exclusive of seizure, for hisuse in meeting the present type of emergency. Congresshas reserved to itself the right to determine where andwhen to authorize the seizure of property in meeting suchan emergencv. Under these circumstances, the Presi-dent's order of April 8 invaded the jurisdiction of Con-gress. It violated the essence of the principle of theseparation of governmental powers. Accordingly, theinjunction against its effectiveness should be sustained.

MR. JUSTICE CLARK, concurring in the judgment of theCourt.

One of this Court's first pronouncements upon the pow-ers of the President under the Constitution was made byMr. Chief Justice John Marshall some one hundred andfifty years ago. In Little v. Barreme,1 he used this charac-teristically clear language in discussing the power of thePresident to instruct the seizure of the Flying Fish,a vessel bound from a French port: "It is by no meansclear that the president of the United States whose highduty it is to 'take care that the laws be faithfully exe-cuted,' and who is commander in chief of the armies andnavies of the United States, might not, without anyspecial authority for that purpose, in the then existingstate of things, have empowered the officers commandingthe armed vessels of the United States, to seize and sendinto port for adjudication, American vessels which wereforfeited by being engaged in this illicit commerce. Butwhen it is observed that [an act of Congress] gives a spe-cial authority to seize on the high seas, and limits thatauthority to the seizure of vessels bound or sailing to aFrench port, the legislature seem to have prescribed that

'2 Cranch 170 (1804).


579 CLARK, J., concurring in judgment.

the manner in which this law shall be carried into execu-tion, was to exclude a seizure of any vessel not bound toa French port."' Accordingly, a unanimous Court held,that the President's instructions had been issued withoutauthority and that they could not "legalize an act whichwithout those instructions would have been a plain tres-pass." I know of no subsequent holding of this Courtto the contrary.'

The limits of ' presidential power are obscure. How-ever, Article II, no less than Article I, is part of "a con-stitution intended to endure for ages to come, and, con-sequently, to be adapted to the various crises of humanaffairs." ' Some of our Presidents, such as Lincoln, "feltthat measures otherwise unconstitutional might becomelawful by becoming indispensable to the preservation ofthe Constitution through the preservation of the na-

2 Id., at 177-178 (emphasis changed).8 Decisions of this Court which have upheld the exercise of presi-

dential power include the following: Prize Cases, 2 Black 635 (1863)(subsequent ratification ,of President's acts *by Congress); In reNeagle, 135 U. S. 1 (1890) (protection of federal officials from per-sonal violence while performing official duties); In re Debs, 158 U. S.564 (1895) (injunction to prevent forcible obstruction of interstatecommerce and the mails), United States v. Midwest Oil Co., 236 U. S.459 (1915) (acquiescence by Congress in more than 250 instancesof exercise of same power by various Presidents over period of 80years); Myers v. United States, 272 U. S. 52 (i926) (control oversubordinate officials in executive department) [but see Humphrey's'Executor v. United States, 295 U. S. 602, 626-628 (1935)]; Hirabaya-.shi v. United States, 320 U. S. 81 (1943), and Korematsu v. UnitedStates, 323 U. S. 214 (1944) (express congressional authorization);cf. United States v. Russell, 13 Wall. 623 (1871) (imperative militarynecessity in area of combat during war; United States v. Curtiss-Wright Export Corp., 299 U. S. 304 (1936) (power to negotiate withforeign governments); United States v. United. Mine Workers, 330U. S. 258 (1947) (seizure upder specific statutory authorization).

4 Mr. Chief Justice Marshall, in McCulloch v. Maryland, 4 Wheat.316, 415 (1819).99M4 Q----46

OCTOBER TERM, 1951.


tion." I Others, such as Theodore Roosevelt, thought thePresident to be capable, as a "steward" of the people, ofexerting all power save that which is specifically pro-hibited by the Constitution or the Congress.' In myview-taught me not only by the decision of Mr. ChiefJustice Marshall in Little v. Barreme, but also by a scoreof other pronouncements of distinguished members of thisbench-the Constitution does grant to the President ex-tensive authority in times of grave and imperative na-tional emergency. In fact, to my thinking, such a grantmay well be necessary to the very existence of the Con-stitution itself. As Lincoln aptly said, "[is] it possibleto lose the nation and yet preserve the Constitution?" "In describing this authority I care not whether one callsit "residual," "inherent," "moral," "implied," "aggregate,""emergency," or otherwise. I am of the conviction thatthose who have had the gratifying experience of beingthe President's lawyer have used one or more of theseadjectives only with the utmost of sincerity and thehighest of purpose.

I conclude that where Congress has laid down specificprocedures to deal with the type of crisis confronting thePresident, he must follow those procedures in meetingthe crisis; but that in the absence of such action by Con-gress, the President's independent power to act dependsupon the gravity of the situation confronting the nation.I cannot sustain the seizure in question because here, asin Little v. Barreme, Congress had prescribed methods tobe followed by the President in meeting the emergencyat hand.

5 Letter of April 4, 1864, to A. G. Hodges, in 10 Complete Worksof Abraham Lincoln (Nicolay and Hay ed. 1894), 66.

6 Roosevelt, Autobiography (1914 ed.), 371-372.7 Letter of April 4, 1864, to A. G. Hodges, in 10 Complete Works

of Abraham Lincoln (Nicolay and Hay ed. 1894), 66.



Three statutory procedures were available: those pro-vided in the Defense Production Act of 1950, the LaborManagement Relations Act, and the Selective Service Actof 1948. In this case the President invoked the first ofthese procedures; he did not invoke the other two.

The Defense Production Act of 1950 provides for me-diation -, f labor disputes affecting national defense. Un-der this statutory authorization, the President has estab-lished the Wage Stabilization Board. The DefenseProduction Act, however, grants the President no powerto seize -real property except through ordinary condemna-tion proceedings, which were not used here, and createsno sanctions for the settlement of labor disputes.

The Labor Management Relations Act, commonlykiown as the Taft-Hartley. Act, includes provisionsadopted for the purpose of dealing with nationwide.strikes. They establish a procedure whereby the Presi-dent may appoint a board of inquiry and thereafter, inproper cases,. seek injunctive relief for an 80-day periodagainst a threatened work stoppage. The President caninvoke that procedure whenever, in his opinion, "a threat-ened or actual strike . . . affecting an entire indus-try .. .will, if permitted to occur or to continue, im-peril the national health or safety."' At 'the time thatAct was passed, Congress specifically rejected a proposalto empower the President to seize any "plant, mine, orfacility" in which a threatened work stoppage would, inhis judgment, "imperil the public health or security.""Instead, the Taft-Hartley Act directed the President, inthe event a strike had not been settled during the 80-dayinjunction period, to submit to Congress "a full and com-prehensive report . . together with such recommenda-tions as .he may see fit to make for consideration and

8 61 Stat. 155, 29 U. S. C. (Supp. IV) § 176.993 Cong. Rec. 3637-3645; cf. id., at 3835-3836.

OCTOBER TERM, 1951.

CLARK, J., concurring in. judgment. 343 U. S.

appropriate action." 'o The legislative history of the Actdemonstrates Congress' belief that the 80-day periodwould afford it adequate opportunity to determinewhether special legislation should be enacted to meet theemergency at hand."

The Selective Service Act of 1948 gives the Presidentspecific authority to seize plants which fail to producegoods required by the armed forces or the Atomic EnergyCommission for national defense purposes. The Act pro-vides that when a producer from whom the President hasordered such goods "refuses or fails" to fill the orderwithin a period of time prescribed by the President, thePresident may take immediate possession of the produc-er's plant." This language is significantly broader than

1061 Stat. 156, 29 U. S. C. (Supp. IV) § 180.

"I E. g., S. Rep. No. 105, 80th Cong., 1st Sess. 15; 93 Cong. Rec.3835-3836; id., at 4281.

12 The producer must have been notified that the order was placedpursuant to the Act. The Act provides in pertinent part as follows:

"(a) Whenever the President after consultation with and receivingadvice from the National Security Resources Board determines thatit is in the interest of the national security for the Government toobtain prompt delivery of any articles or materials the procurementof which has been authorized by the Congress exclusively. for theuse of the armed forces of the United States, or for the use of theAtomic Energy Commission, he is authorized, through the head ofany Government agency, to place with any person operating a plant,mine, or other facility capable of producing such articles or materialsan order for such quantity of such articles or materials as the Presi-dent deems appropriate. Any person with whom an order is placedpursuant to the provisions of' this section shall be advised that suchorder is placed pursuant to the provisions of this section.

"(c) In case any person with whom an order is placed pursuantto the provisions of subsection (a). refuses or fails-

"(2) 'to fill such order within the period of time prescribed bythe President or as soon thereafter as possible as determined bythe President;



that used in the National Defense Act of 1916 and theSelective Training and Service Act of 1940, which pro-vided for seizure when a producer "refused" to supplyessential defense materials, but not when he "failed" todo so. "

These three statutes furnish the guideposts for decisionin this case. Prior to seizing the steel mills on April 8the President had exhausted the mediation procedures ofthe Defense Production Act through the Wage Stabiliza-tion Board. Use of those procedures had failed to avertthe impending crisis; however, it had resulted in a 99-daypostponement of the strike. The Government arguesthat this accomplished more than the maximum 80-daywaiting period possible under the sanctions of the Taft-Hartley Act, and therefore amounted to compliance withthe substance of that Act. Even if one were to acceptthis somewhat hyperbolic conclusion, the hard fabt re-mains, that neither the Defense Production Act nor Taft-Hartley authorized the seizure challenged here, and theGovernment made no effort to comply with the proce-

"(3) to produce the kind or quality of articles or materialsordered; or

"(4) to furnish the quantity, kind, and quality of articlesor materials ordered at such price as shall be negotiated betweensuch person and the Government agency concerned; or in theevent of failure to negotiate a price, to furnish: the quantity, kind,and quality of articles or materials ordered at such price as hemay. subsequently be determined to be entitled to receive undersubsection (d) ;

"the'President is authorized to take immediate possession of anyplant, mine, or other facility of such person and to. operate it, throughany Government agency, for the production of such articles or ma-terials as may be required by the Government." 62 Stat. 625, 50U. S. C. App. (Supp. IV) § 468. The Act was amended in 1951and redesignated the Universal Military Training and Service Act,but no change was made in this section. 65 Stat. 75.

18 39 Stat. 213; 54 Stat. 892.

OCTOBER TERM, 1951.


dures established by the Selective Service Act of 1948, astatute which expressly authorizes seizures when produc-ers fail to supply necessary defense mat6riel.1'

For these reasons I concur in the judgment of theCourt. As Mr. Justice Story once said: "For the execu-tive department of the government, this court entertainthe most entire respect; and amidst the r-.ultiplicity ofcares in that department, it may, without any violation ofdecorum, be presumed, that sometimes'there may be an'inaccurate construction of a law. It is our duty to ex-pound the laws as we find them in the records of state;

14 The Government has offered no explanation, in the record, the

briefs, or the oral argument, as to why it could not have made botha literal and timely compliance with the provisions of that Act. Ap-parently the Government could have placed orders with the steelcompanies for the various types of steel needed' for defense purposes,and instructed the steel companies to ship the materiel directly toproducers of planes, tanks, and munitions. The Act does not requirethat government orders cover the entire capacity of a producer'splant before the President has power to seize.

Our experience during World War I demonstrates the speed withwhich the Government can invoke the remedy of seizing plants whichfail to fill compulsory orders. The Federal Enameling & StampingCo., of McKees Rocks, Pa., was served with a compulsory order onSeptember 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 com-pulso.ry order issued the preceding week. Communication from Ord-nance 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 Depart-ment, Office of the Chief of Ordnance, 0. 0. 004.02/260. Ap-parently the Mosler Safe Co., of Hamilton, Ohio, was seized on thesame day on which a compulsory order was issued. Id., at 2;Letter from counsel for Mosler Safe Co. to Major General GeorgeW. Goethals, Director of Purchase, Storage and Traffic, War Depart-ment, Dec. 9, 1918, p. 1, in National Archives, Records of the WarDepartment, Office of the General Staff, PST Division 400.1202.

666


579 VINsON, C. J., dissenting.

and we cannot, when called upon by the citizens of thecountry, refuse our opinion, however it may differ fromthat of. very great authorities." 15

MR. CHIEF JUSTICE VINSON, with whom MR. JUSTICE

REED and MR. JUSTICE MINTON join, dissenting.

The President of the United States directed the Sec-retary of Commerce to take temporary possession of theNation's steel mills during the existing emergency be-cause "a work stoppage would immediately jeopardizeand imperil our national defense and the defense of thosejoined with us in resisting aggression, and would addto the continuing danger of our soldiers, sailors, and air-men engaged in combat in the field." The DistrictCourt ordered the mills returned to their private ownerson the ground that the President's action was beyond hispowers under the Constitution.

This Court affirms. Some members of the Court areof the view that the President is without power to actin time of crisis in the absence-of express statutory au-thorization. Other members of the Court affirm on thebasis of their reading of certain statutes. Because wecannot agree that affirmance is proper on any ground, andbecause of the transcending importance of the questionspresented not only in this critical litigation but also to.the powers of the President and of future Presidents toact in time of crisis, we are compelled to register thisdissent.

I.

In passing upon the question of Presidential powers inthis case, we must first consider the context in which thosepowers were exercised.

15 The Orono, 18 Fed. Cas. No. 10,585 (Cir. Ct. D. Mass. 1812.).

OCTOBER TERM, 1951.

VINISON, C. J., dissenting. 343 U. S.

Those who suggest that this is *a case involving ex-traordinary powers should be mindful that these' areextraordinary times. A world not yet recovered from thedevastation of World War II has been forced to face thethreat of another and more terrifying global conflict.

Accepting in full measure its responsibility in theworld community, the United States was instrumental insecuring adoption of the United Nations Charter, ap-proved by the Senate by a vote of 89 to 2. The first pur-pose of the United Nations is to "maintain internationalpeace and security, and to that end: to take effectivecollective measures for the prevention and removal ofthreats to the peace, and for the suppression of acts ofaggression or other breaches of the peace ....... In1950, when the United Nations called upon membernations "to render every assistance" to repel aggressionin Korea, the United States furnished its vigorous sup-port.' For almost two full years, our armed forces havebeen fighting in Korea, suffering casualties of over 108,000men. Hostilities have not abated. The "determinationof the United Nations to continue its action in Koreato meet the aggression" has been reaffirmed.' Congres-sional support of the action in Korea has been manifestedby provisions for increased military manpower and equip-ment and for economic stabilization, as hereinafterdescribed.

Further efforts to protect the free world from aggres-sion are found in the congressional enactments of theTruman Plan for assistance to Greece and Turkey 4 and

159 Stat. 1031, 1037 (1945); 91 Cong. Rec. 8190 (i945).

2 U. N. Security Council, U. N. Doc. S/1501 (1950); Statement

by the ,Prsident, June 26, 1950, United States Policy in the KoreanCrisis, Dept. of State Pub. (1950), 16.

3 U. N. General Assembly, U. N. Doc. A/1771 (1951).61 Stat. 103 (1947).


579 VINsON, C. J., dissenting.

the Marshall Plan for economic aid needed to build upthe strength of our friends in Western Europe.5 In 1949,the Senate approved the North Atlantic Treaty underwhich each member nation agrees that an armed attackagainst one is an armed attack against all.6 Congressimmediately implemented the North Atlantic Treaty byauthorizing military assistance to nations dedicated tothe principles of mutual security under the UnitedNations Charter.! The concept of mutual security re-

cently has been extended by treaty to friends in thePacific.'

Our treaties represent not merely legal obligations butshow congressional recognition that mutual security forthe free world, is the best security against the threat ofaggression on a global scale. The need for mutual secu-rity is shown by the very size of the armed forces outsidethe free world. Defendant's brief informs us that theSoviet Union maintains the largest air force in the worldand maintains ground forces much larger than those pres-ently available to the United States and the countriesjoined with us in mutual security arrangements. Con-stant international tensions are cited to demonstrate howprecarious is the peace.

Even this brief review of our responsibilities in theworld community discloses the enormity of our undertak-ing. Success of these measures may, as has often been

562 Stat. 137 (1948), as amended, 63 Stat. 50 (1949), 64,Stat.198 (1950).

663 Stat. 2241, 2252 (1949), extended to Greece and'Turkey, S.

Exec. E, 82d Cong., 2d Sess. (1952), advice and consent of the Senategranted. 98 Cong. Rec. 930.763 Stat. 714 (1949).8 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.

OCTOBER TERM, 1951.

VINsoN, C. J., dissenting. 343 U. S.

observed, dramatically influence the lives of many gen-erations of the world's peoples yet unborn. Alert to ourresponsibilities, which coincide with our own self-preser-vation through mutual security, Congress has enacted alarge body of implementing legislation. As an illustra-tion of the magnitude of the over-all program, Congresshas appropriated $130 billion for our own defense andfor military assistance to our allies since the June, 1950,attack in Korea.

In the Mutual Security Act of 1951, Congress au-thorized "military, economic, and technical assistance tofriendly countries to strengthen the mutual securityand individual and collective defenses of the freeworld, .... " I Over $5 billion were appropriated formilitary assistance for fiscal year 1952, the bulk of thatamount to be devoted to purchase of military equipment.0

A request for over $7 billion for the same purpose forfiscal year 1953 is currently pending in Congress." In ad-dition to direct shipment of military equipment to nationsof the free world, defense production in those countriesrelies upon shipment of machine tools and allocation ofsteel tonnage from the United States.';

Congress also directed the President to build up ourown defenses. Congress, recognizing the "grim fact . . .that the United States is now engaged in a struggle forsurvival" and that "it is imperative that we now takethose necessary steps to make our strength equal to theperil of the hour," granted authority to draft men into

965 Stat. 373 (1951).1065 Stat. 730 (1951); see H. R. Doc. No. 147,. 82d Cong., 1st

Sess. 3 (1951).11 See H. R. Doc. No. 382, 82d Cong., 2d Sess. (1952).12 Hearings before Senate Committee on Foreign Relations on the

Mutual Security Act of 1952, 82d Cong., 24 Sess. 565-566 (1952);Hearings before House Committee on Foreign Affairs on the MutualSecurity Act of 1952, 82d Cong., 2d Sess. 370 (1952)..


579 VINSON, C. J., dissenting.

the armed forces."3 As a result, we now have over3,500,000 men in our armed forces.14

Appropriations for the Department of Defense, whichhad averaged less than $13 billion per year for the threeyears before -attack in Korea, were increased by Congressto $48 billion for fiscal year 1951 and to $60 billion forfiscal year 1952."5 A request for $51 billion for the De-partment of Defense for fiscal year 1953 is currentlypending in Congress.' The bulk of the increase is formilitary equipment and supplies-guns, tanks, ships,planes and ammunition-all of which require steel.Other defense programs requiring great quantities of steelinclude the large scale expansion of facilities for theAtomic Energy Commission 11 and the expansion of theNation's productive capacity affirmatively encouraged byCongress.18

Congress recognized the impact of these defense pro-grams upon the economy. Following the attack inKorea, the President asked for authority to requisitionproperty and to allocate and fix priorities for scarce goods.In the Defense Production Act of 1950, Congress grantedthe powers requested and, in addition, granted power tostabilize prices and wages and to provide for settlement

1365 Stat. 75 (1951); S. Rep. No. 117, 82d. Cong., 1st Sess. 3

(1951).14 Address by Secretary of Defense Lovett before the American

Society of Newspaper Editors, Washington, April 18, 1952.15 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, 61Stat. 551 (1947).

16See H. R. Rep. No. 1685, 82d Cong., 2d Sess. 2 (1952); onH. R. 7391.

17 See H. R. Rep. No. 384, 82d Cong., 1st Sess. 5 (1951); 97 Cong.Rec. 13647-13649.

"8 Defense Production Act, Tit. III. 64 Stat. 798, 800 (1950), 65Stat. 138 (1951).

OCTOBER TERM, 1951.

VINSON, C. J., dissenting. 343.U. S.

of labor disputes arising in the defense program." TheDefense Production Act was extended in 1951, a SenateCommittee noting that in the dislocation caused by theprograms for purchase of military equipment "lies theseed of an economic disaster that might well destroy themilitary might we are straining to build." I Significantly,the Committee examined the problem "in terms of justone commodity, steel," and found "a graphic picture ofthe over-all inflationary danger growing out of reducedcivilian supplies -and' rising incomes." Even beforeKorea, steel production at levels above theoretical 100%capacity was not capable of supplying civilian needsalone. Since Korea, the tremendous military demand forsteel has far exceeded the increases in productive capacity.This Committee emphasized that the shortage of steel,even with the mills operating at full capacity, coupledwith increased civilian purchasing power, presented gravedanger of disastrous inflation.'

The President has the duty to execute the foregoinglegislative programs. Their successful execution dependsupon continued production of steel and stabilized pricesfor steel. Accordingly,' when the collective bargainingagreements between the Nation's steel producers andtheir employees, represented by the United Steel Work-ers, were due to expire on December 31, 1951, and a strikeshutting down the entire basic steel industry was threat-ened, the President acted to avert a complete shutdownof steel production. On December 22, 1951,. he certifiedthe dispute to the Wage Stabilization. Board, requestingthat the Board investigate the dispute and promptly re-port its recommendation as to fair-and equitable terms ofsettlement. The Union complied with the- President's

19 Note 18, supra, Tits. IV and V.20S. Rep. No. 470, 82d Cong., 1st Sess. 8 (1951).2 1 Id., at 8-9.



request and delayed its threatened strike while the disputewas before the Board. After a special Board panel hadconducted hearings and submitted a report, the full WageStabilization Board submitted its report and recommen-dations to the President on March 20, 1952.

The Board's report was acceptable to the Union butwas rejected by plaintiffs. The Union gave notice of itsintention to strike as of 12:01 a. m., April 9, 1952, butbargaining between the parties continued with hope ofsettlement until the evening of April 8, 1952. After bar-gaining had failed to avert the threatened shutdown ofsteel production, the President issued the following Ex-ecutive Order:

"WHEREAS on December 16, 1950, I proclaimedthe existence of a national emergency which requiresthat the military, naval, air, and civilian defenses ofthis country be strengthened as speedily as possibleto the end that we may be able to repel any and allthreats against our national security and to fulfill ourresponsibilities in the efforts being madethroughoutthe United Nations and otherwise to bring about alasting peace; and

"WHEREAS American fighting men and fightingmen of other nations of the United Nations are nowengaged in deadly combat with the forces of aggres-sion in Korea, and forces of the United States are sta-tioned elsewhere overseas for the purpose of par-ticipating in the defense of the Atlantic Communityagainst aggression; and

"WHEREAS the weapons and other materialsneeded by our armed forces and by those joined withus in the defense of the free world are produced to agreat extent in this country, and steel is an indis-pensable component of substantially all of suchweapons and materials; and

OCTOBER TERM, 1951.

VINSON, C. J., dissenting. 343 U. S.

"WHEREAS steel is likewise indispensable to thecarrying out of programs of the Atomic Energy Com-mission of vital importance to our defense efforts;and

"WHEREAS a continuing and uninterrupted sup-ply of steel is also indispensable to the maintenanceof the economy of the United States, upon which ourmilitary strength depends; and

"WHEREAS a controversy has arisen between cer-tain companies in the United States producing andfabricating steel and the elements thereof and certainof their workers represented by the United SteelWorkers of America, CIO, regarding terms and condi-tions of employment; and

"WHEREAS the controversy has not been settledthrough the processes of collective bargaining orthrough the efforts of the GoVernment, includingthose of the Wage Stabilization Board, to which thecontroversy was referred on December 22, 1951, pur-suant to Executive Order No. 10233, and a strike hasbeen called for 12:01 A. M., April 9, 1952; and

"WHEREAS a work stoppage would immediatelyjeopardize and imperil our national defense and thedefense of those joined with us in resisting aggression,and would add to the continuing danger of our sol-diers, sailors, and airmen engaged in combat in thefield; and

"WHEREAS in order to assure the continuedavailability of steel and steel products during theexisting emergency, it is necessary that the UnitedStates take possession of and operate the plants,facilities, and other property of the said companiesas hereinafter provided:

"NOW, THEREFORE, by virtue of the authorityvested in me by the Constitution and laws of the



United States, and as President of the United Statesand Commander in Chief of the armed forces of theUnited States, it is hereby ordered as follows:

"1. The Secretary of Commerce is hereby author-ized and directed to take possession of all or such ofthe plants, facilities, and other property of the com-panies named in the list attached hereto, or any partthereof, as he may deem necessary in the interestsof national defense; and to operate or to arrangefor the operation thereof and to do all things neces-sary for, or incidental to, such operation . .. 22

The next morning, April 9, 1952, the Presilent ad-dressed the following Message to Congress:

"To the Congress of the United States:"The Congress is undoubtedly aware of the recent

events which have taken place in connection withthe management-labor dispute in the steel industry.These events culminated in the action which wastaken last night to provide for temporary operationof the steel mills by the Government.

"I took this action with the utmost reluctance.The idea of Government operation of the steel millsis thoroughly distasteful to me and I want to seeit ended as soon as possible. However, in the situ-ation which confronted me yesterday, I felt that Icould make no other choice. The other alternativesappeared to be even worse-so much worse that Icould not accept them.

"One alternative would have been to permit a shut-down in the steel industry. The effects of such ashut-down would have been so immediate and dam-aging with respect to our efforts to support ourArmed Forces and to protect our national securitythat it made this alternative unthinkable.

22 Exec. Order 10340, 17 Fed. Reg. 3139 (1952).

OCTOBER TERM, 1951.

VINsoN, C. J., dissenting. 343 U. S.

"The only way that I know of, other than Govern-ment operation, by which a steel -ghut-down-couldhave been avoided was to grant the demands of thesteel industry for a large price increase. .I believedand the officials in charge of our stabilization agenciesbelieved that this would have wrecked our stabiliza-tion program. I was unwilling to accept the incal-culable damage which might be done to our countryby following such a course.

"Accordingly, it was my judgment that Govern-ment operation of the Steel mills for a temporaryperiod was the least undesirable of the courses ofaction which lay open. In the circumstances, I be-lieved it to be, and now believe it to be, my duty andwithin my powers as President to follow that courseof action.

"it may be that the Congress will deem some othercourse to be wiser.: It may be that the Congress willfeel we should give in to the demands of the steelindustry for in exorbitant price increase and takethe consequences so far as resulting inflation isconcerned.

."It may be that the Congress will feel the Gov-ernment should try to force the steel workers tocontinue to work for the steel companies for anotherlong period, without a contract, even though thesteel workers have already voluntarily remained atwork without a contract for 100 days in an effort :toreach an orderly settlement of their differences withmanagement.

"It may even be that the Congress will feel thatwe should permit a shut-down-of the steel industry,although that would immediately endanger thesafety of our fighting forces abroad and weaken thewhole structure of our national security



."I do not believe the Congress will favor any ofthese courses of action, but that is a matter for theCongress to determine.

"It may be, on the other hand, that the Congresswill wish to pass legislation establishing specificterms and conditions with reference to the operationof the steel mills by the Government. Sound legis-lation of this character might be very desirable.

"On the basis of. the facts that are known to meat this time, I do not believe that immediate con-gressional action is essential; but I would, of course,be glad to cooperate .in developing any legislativeproposals which the Congress may wish to consider.

"If the Congress does not deem it necessary to actat this time, I shall continue to do all that is withinmy power to keep the steel industry operating andat the same time make every effort to bring abouta settlement of the dispute so the mills can be re-turned to their private owners as soon as possible."

Twelve days passed without action by Congress. OnApril 21, 1952, the President sent a letter to the Presidentof the Senate in which he again described the purpose andneed for his action and again stated his position that "TheCongress can, if it wishes, reject the course of action Ihave followed in this matter." 24 Congress has not soacted to this date.

Meanwhile, plaintiffs instituted this action in the Dis-trict Court to compel defendant to return possession ofthe steel mills seized under Executive Order 10340. Inthis litigation for return of plaintiffs' properties, weassume that defendant Charles Sawyer is not immunefrom -judicial restraint and that plaintiffs are entitledto ecjuitable relief if we find that the Executive Order

23 Cong. Rec., April 9, 1952, pp. 3962-3963.24 Cong. Rec., April 21, 1952, p. 4192.

99084 0--52-47

OCTOBER TERM, 1951.


under which defendant acts is unconstitutional. Wealso assume without deciding that the courts may gobehind a President's finding of fact that an emergencyexists. But there is not the slightest basis for suggestingthat the President's finding in this case can be under-mined. Plaintiffs moved for a preliminary injunctionbefore answer or hearing. Defendant opposed the mo-tion, filing uncontroverted affidavits of Governmentofficials describing the facts underlying the President'sorder.

Secretary of Defense Lovett swore that "a work stop-page in the steel industry will result immediately inserious curtailment of production of essential weaponsand munitions of all kinds." He illustrated by showingthat 84% of the national production of certain alloy steelis currently used for production of military-end itemsand that 35% of total production of another form ofsteel goes into ammunition, 80% of such ammunitionnow going to Korea. The Secretary of Defense statedthat: "We are holding the line [in Korea] with-ammuni-tion and not with the lives of our troops."

Affidavits of the Chairman of the Atomic Energy Com-mission, the Secretary of the Interior, defendant as Sec-retary of Commerce, and the Administrators of theDefense Production Administration, the National .Pro-duction Authority, the General Services Administrationand the Defense Transport Administration were also filedin the District Court. These affidavits disclose an enor-mous demand for steel in such vital defense programs asthe expansion of facilities in atomic energy, petroleum,power, transportation and industrial production, includ-ing steel production. Those charged with administeringallocations and priorities swore to the vital part steelproduction plays in our economy. The affidavits em-phasize the critical need for steel in our defense program,



the absence of appreciable inventories of steel, and thedrastic results of any interruption in steel production.

One. is not here called upon even to consider the pos-sibility of executive seizure of a farm, a corner grocerystore or even a single industrial plant. Such considera-tions arise only when one ignores the central fact of thiscase-that the Nation's entire basic steel productionwould have shut down completely if there had been noGovernment seizure. Even ignoring for the momentwhatever confidential information the President maypossess as "the Nation's organ for foreign affairs," 25 theuncontroverted affidavits in this record amply support thefinding that "a work stoppage would immediately jeop-ardize and imperil our national defense."

Plaintiffs do not remotely suggest any basis for reject-ing the President's finding that any stoppage of steelproduction would immediately place the Nation in peril.Moreover, even self-generated doubts that any stoppageof steel production constitutes an emergency are of littlecomfort here. The Union and the plaintiffs bargain'ed for6 months with over 100 issues in dispute-issues not lim-ited to wage demands but including the union shop andother matters of principle between the parties. At thetime of seizure there was not, and there is not now, theslightest evidence to justify the belief that any strike willbe of short duration. The Union and the steel companiesmay well engage in a lengthy struggle. Plaintiffs' counseltells us that "sooner or later" the mills will operate again.That may satisfy the steel companies and, perhaps, theUnion. But our soldiers and our allies will hardly becheered with the assurance that the ammunition uponwhich their lives depend will be forthcoming-"sooner orlater," or, in other Words, "too little and too late."

25 Chicago & Southern Air Line8 v. Waterman S. S. Corp., 333U. S. 103, 111 (1948), and cases cited.

OCTOBER TERM, 1951.


Accordingly, if the President has any power under theConstitution to meet a critical situation in the absenceof express statutory authorization, there is no basis what-ever for criticizing the exercise of such power in this case.

II.

The steel mills were seized for a public use. The powerof eminerit domain, invoked in this case, is an essentialattribute of sovereignty and has long been recognized asa power of the Federal Government. Kohl v. UnitedStates, 91 U. S. 367 (1876). Plaintiffs cannot complainthat any provision in the Constitution nrohibits the exer-cise of the power of eminent domain ia this case. TheFifth Amendment provides: "nor shall private propertybe taken for public use, without just compensation."It is no bar to this seizure for, if the taking is not other-wise unlawful, plaintiffs are assured of receiving the re-quired just compensation. United States v. Pewee CoalCo., 341 U. S. 114 (1951).

Admitting that the Government could seize the mills,plaintiffs claim that the implied power of eminent do-'main can be exercised'only under an Act of Congress;under no circumstances, they say, can that power be ex-ercised by the President unless he can point to an expressprovision in enabling legislation. This was the viewadopted by the District Judge when he granted thd pre-liminary injunction. Without an answer, without hear-ing 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 anemergency is to present the matter to Congress and awaitthe final passage of legislation which will enable the Gov-ernment to cope with threatened disaster.

Under this view, the President is left powerless at thevery moment when the need for action may be mostpressing and when no one, other than he, is immediately



capable of action. Under this view, he is left powerlessbecause a power not expressly given to Congress is never-theless found to rest exclusively with Congress.

Consideration of this view of executive impotencecalls for further examination of the nature of the separa-tion of powers under our tripartite system of Government.

The Constitution provides:Art. I,

Section 1. "All legislative Powers herein grantedshall be vested in a Congress of the UnitedStates .....

Art: II,Section 1. "The executive Power shall be vested

in a President of the United States of Amer-ica ..

Section 2. "The President shall be Commanderin Chief of the Army and Navy of the UnitedStates .....

"He shall have Power, by and with the Ad-vice and Consent of the Senate, to makeTreaties, provided two thirds of the Senatorspresent concur; ... .

Section 3. "He shall from time to time give tothe Congress Information of the State of theUnion, and recommend to their Considerationsuch Measures as he shall judge necessary andexpedient; . .. he shall' take Care that theLaws be faithfully executed .....

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 Congressmay from time to time ordain and establish."

The whole of the "executive Power" is vested in the Pesi-dent. Before entering office, the President swears that he"will faithfully execute the Office of President of the

OCTOBER TERM, 1951.


United States, and will to the best of [his] Ability, pre-serve, protect and defend the Constitution of the UnitedStates." Art. II, § 1.

This comprehensive grant of the executive power to asingle person was bestowed soon after the country hadthrown the yoke of monarchy. Only by instilling initia-tive and vigor in all of the three departments of Govern-ment, declared Madison, could tyranny in any form beavoided. 6 Hamilton added: "Energy in the Executive isa leading character in the definition of good government.It is essential to the protection of the community againstforeign attacks; it is not less essential to the steady ad-ministration of the laws; to the protection of propertyagainst those irregular and high-handed combinationswhich sometimes interrupt the ordinary course of justice;to the security.of liberty against the enterprises and as-saults of ambition, of faction, and of anarchy." 27 It isthus apparent that the Presidency was deliberately fash-ioned as an office of power and independence. Of course,the Framers created no autocrat capable of arrogating anypower unto himself at any time. But neither did theycreate an automaton impotent to exercise the powers ofGovernment at a time when the survival of the Republicitself may be at stake.

In passing upon the grave constitutional question pre-sented in this case, we must never forget,. as Chief JusticeMarshall admonished, that the Constitution is "intendedto endure for ages to come, and, consequently, to beadapted to the various crises of human affairs," and that"[i]ts means are adequate to its ends." 28 Cases do arisepresenting questions which could not have been foreseenby the Framers. In such cases, the Constitution hasbeen treated as a living document'adaptable to new situa-

20 The Federalist, No. XLVIII.27 The Federalist, No. LXX.28"McCulloch v. Maryland, 4 Wheat. 316, 415, 424 (1819).


579. VINSON, C. J., dissenting.

tions.1 But we are not called upon today to expand theConstitution to meet a new situation. For, in this case,we need only look to history and time-honored principlesof constitutional law-principles that have been appliedconsistently by all branches of the Government through-out our history. It is those who assert the invalidity ofthe Executive Order who seek to amend the Constitutionin this case.

III.

A review of executive action demonstrates that ourPresidents have on many occasions exhibited the leader-ship contemplated by the Framers when they made thePresident .Commander in Chief, and imposed upon himthe trust to "take Care that the Laws be faithfully exe-cuted." With or without explicit statutory authoriza-tion, Presidents have at such times dealt with nationalemergencies by acting promptly and resolutely to enforcelegislative programs, at least to save those programs untilCongress could act. Congress and the courts have re-sponded to such executive initiative with consistentapproval.

Our first President displayed at once the leadershipcontemplated by the Framers. When the national reve-nue laws were openly flouted in some sections of Penn-sylvania, President Washington, without waiting for acall from the state government, summoned the militiaand took decisive steps to secure the faithful executionof the laws.' When international disputes engenderedby the French revolution threatened to involve thiscountry in war, and while congressional policy remaineduncertain, Washington issued his Proclamation of Neu-trality. Hamilton, whose defense of the Proclamation

2 United States v. Classic, 313 U. S. 299, 315316 (1941); HomeBuilding & Loan Assn. v. Blaisdell, 290 U. S. 398, 442-443 (1934).

30 4 Annals of Congress 1411, 1413 (1794).

OCTOBER TERM, 1951.


has endured the test of time, invoked the argument thatthe Executive has the duty to do that which will preservepeace until Congress acts and, in addition, pointed to theneed for keeping the Nation informed of the require-ments of existing laws and treaties as part of the faithfulexecution of the laws."'

President John Adams issued a warrant for the arrest ofJonathan Robbins in order to execute the extraditionprovisions of a treaty. This action was challenged inCongress on the ground that no specific statute prescribedthe method to be used in executing the treaty. JohnMarshall, then a member of the, House of Representa-tives, made the following argument in support of thePresident's action:

"The treaty, which is a law, enjoins the perform-ance of a particular object. The person who is toperform this object is marked out by the Constitu-tion, since the person is named who conducts theforeign intercourse, and is to take care that the lawsbe faithfully executed. The means by which it isto be performed, the force of the nation, are in thehands of this person. Ought not this person to per-form the object, although the particular mode ofusing the means has not been prescribed? Congress,unquestionably, may prescribe the mode, and Con-gress may devolve on others the whole execution ofthe contract; but, till this be done, it seems the dutyof the Executive department to execute the contractby any means it possesses."'

Efforts in Congress to discredit the President for hisaction failed." Almost a century later, this Court had

3' IV Works of 'Hamilton (Lodge ed. 1904) 432-444.32 10 Annals of. Congress 596, 613-614 (1800); also printed in 5

Wheat., App. pp. 3, 27 (1820).3 10 Annals of Congress 619 (1800).



occasion to give its express approval to "the masterlyand conclusive argument of John Marshall." ,

Jefferson's initiative in the Louisiana Purchase, theMonroe Doctrine, and Jackson's removal of Governmentdeposits from the Bank of the United States furtherserve to demonstrate by deed what the Framers describedby word when they vested the whole of the executivepower in the President.

Without declaration of war, President Lincoln tookenergetic action with the outbreak of the War Betweenthe States. He summoned troops and paid them out ofthe Treasury without appropriation therefor. He pro-claimed a naval blockade of the Confederacy and seizedships violating that blockade. Congress, far from deny-ing the validity of these acts, gave them express approval.The most striking action of President Lincoln was theEmancipation Proclamation, issued in aid of the success-ful prosecution of the War Between the States, but whollywithout statutory authority.'

In an action furnishing a most apt precedent for thiscase, President Lincoln without statutory authority di-rected the seizure of rail and telegraph lines leading toWashington.' 'Many months later, Congress recognizedand confirmed the power of the President to seize rail-roads and telegraph lines and provided criminal penaltiesfor interference with Government operation." This Actdid not confer on the President any additional powers ofseizure. Congress plainly rejected the view that thePresident's acts had been without legal sanction until

3Fong Yue Ting v. United States, 149 U. S. 698, 714 (1893)..• See Prize Cases, 2 Black 635 (1863); Randall, Constitutional

Problems Under Lincoln (1926); Corwi, The President: Office and'Powers (1948 ed.), 277-281.

- War of the Rebellion, Official Records of the Union and Con-federate Armies, Series I, Vol. II. (1880), pp. 603-604.

aT12 Stat. 334 (1862).

OCTOBER TERM, 1951.


ratified by the legislature. Sponsors of the bill declaredthat its purpose was only to confirm the power which thePresident already possessed.' Opponents insisted astatute authorizing seizure was unnecessary and mighteven be construed as limiting existing Presidentialpowers. 9

Other seizures of private property occurred during theWar Between the States, just as they had occurred duringprevious wars.' In United States v. Russell, 13 Wall. 623(1872), three river steamers were seized by Army Quarter-masters on the ground of "imperative military necessity."This Court affirmed an award of compensation, stating:

"Extraordinary and unforeseen occasions arise, how-ever, beyond all doubt, in cases of extreme necessityin time of war or of immediate and impending publicdanger, in which private property may be impressedinto the public service, or may be seized and appro-priated to the public use, or may even be destroyedwithout the consent of the owner.

"Exigencies of the kind do arise in time of war orimpending public danger, but it is the emergency,as was said by a great magistrate, that gives the right,

- Senator Wade, Cong. Globe, 37th Cong., 2d Sess. 509 (1862);Rep. Blair, id., at 548.

39 Senators Browning, Fessenden, Cowan, Grimes, id., at 510, 512,516, 520.40 In 1818, the House Committee on Military Affairs recommended

payment of compensation for vessels seized -by the Army duringthe War of 1812. American State Papers, Claims (1834), 649.Mitchell v. Harmony, 13 How. 115, 134 (1852), involving seizureof a wagon train by an Army officer during the Mexican War, notedthat such executive seizure was proper in case of emergency, butaffirmed a personal judgment against the officer on the ground thatno emergency had been found to exist. The judgment was paid bythe United States pursuant to Act of Congress. 10 Stat. 727 (1852).



and it is clear that the emergency must be shown toexist before the taking can be justified.. Such a jus-tification may be shown, and when shown the ruleis well settled that the officer taking private prop-erty ;or such a purpose, if the emergency is fullyproved, is not a trespasser, and that the governmentis bound to make full compensation to the owner. 14

In In re Neagle, 135 U. S. 1 (1890), this Court held thata federal officer had acted in line of duty when he wasguarding a Justice of this Court riding circuit. It wasconceded that there was no specific statute authorizingthe President to assign such a guard. In holding thatsuch a statute was not necessary, the Court broadly statedthe question as follows:

."[The President] is enabled to fulfil the duty ofhis great department, expressed in the phrase that'he shall take care that the laws be faithfully exe-cuted.'

"Is this duty limited to the enforcement of actsof Congress or of treaties of the United States accord-ing to their express terms, or does it include therights, duties and obligations growing out of theConstitution itself, our international relations, andall the protection implied by the nature of the gov--ernment under the Constitution?" 42

The latter approach was emphatically adopted by theCourt.

President Hayes authorized the wide-spread use of fed-eral troops during the Railroad Strike of 1877."8 Presi-dent Cleveland also .used the troops in the Pullman Strike

41 13 Wall., at 627-628. Such a compensable taking was soon dis-tinguished from the noncompensable taking and destruction of prop-erty during the extreme exigencies of a military campaign. UnitedStates v. Pacific R. Co., 120 U. S. 227 (1887).

42 135 U. S., at 64..4 Rich, The Presidents and Civil Disorder (1941), 72-86.

OCTOBER TERM, 1951.


of 1895 and his action is of special significance. No stat-ute authorized this action. No call for help had issuedfrom the Governor of Illinois; indeed Governor Altgelddisclaimed the need for supplemental forces. But thePresident's concern was that federal laws relating to thefree flow of interstate commerce and the mails be continu-ously and faithfully executed without interruption." Tofurther this aim his agents sought and obtained the in-junction upheld by this Court in In re Debs, 158 U. S.564 (1895). The Court scrutinized each of the stepstaken by the President to insure execution of the "massof legislation". dealing with commerce- and the mailsand gave his conduct full approval. Congress likewisetook note of this use of Presidential power to forestallapparent obstacles to the faithful execution of the laws.By separate resolutions, both the Senate and the Housecommended the Executive's action."

President Theodore Roosevelt seriously contemplatedseizure of Pennsylvania coal mines if a coal shortagenecessitated such action.". In his autobiography, Presi-dent Roosevelt expounded the "Stewardship Theory" ofPresidential power, stating that "the executive as-subjectonly to the people, and, under the Constitution, bound toserve the people affirmatively in cases where the Constitu-tion does not explicitly forbid him to render the serv-ice." " Because the contemplated seizure of the coalmines was based on this theory, then ex-President Taftcriticized President Roosevelt in a passage in his bookrelied 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

44Cleveland, The Government in the Chicago Strike of 1894(1913).

4526 Cong. Rec. 7281-7284, 7544-7546 (1894).46 Theodore Roosevelt, Autobiography (1916 ed.), 479-491.47Id., at 378.



such powers of the President as the duty to "take Carethat the Laws be faithfully executed" could -not be con-fined to "express Congressional statutes." Id., at 88.In re Neagle, supra, and In re Debs, supra, were cited asconforming with Taft's concept of the office, id., at pp.88-94, as they were later to be cited with approval in hisopinion as Chief Justice in.Myers v. United States, 272U. S. 52, 133 (1926).-

In 1909, President Taft was informed that govern-ment-owned oil lands were being patented by privateparties at such a rate that public oil lands would be de-pleted in a matter of months. Although Congress hadexplicitly provided that these lands were open to pur-chase by United States citizens, 29 Stat. 526 (1897), thePresident nevertheless ordered the lands withdrawn fromsale "[i]n aid of proposed legislation." In United Statesv. Midwest Oil Co., 236 U. S. 459 (1915), the President'saction was sustained as consistent with executive prac-tice throughout our history. An excellent brief was filedin the case by the Solicitor General, Mr. John W. Davis,together with Assistant Attorney General Knaebel, laterReporter for this Court. In this brief, the situation con-fronting President Taft was described as "an emergency;there was no time to wait for the action of Congress."The brief then discusses the powers of the President underthe Constitution in such a case:

"Ours is a self-sufficient Government within itssphere. (Ex parte Siebold, 100 U. S., 371, 395; inre Debs, 158 U. S., 564, 578.) 'Its means are ade-quate to its ends' (McCulloch v. Maryland, 4

48 Humphrey's Executor v. United States, 295 U, S. 602, 626 (1935),disapproved expressions in the Myers opinion only to the extent -thatthey related to the President's power to remove members of quasi-legislative and quasi-judicial commissions as contrasted with executiveemployees.

OCTOBER TERM, 1951.


Wheat., 316, 424), and it is rational to assume thatits active forces will be found equal in most thingsto the emergencies that confront it. While perfectflexibility is not to be expected in a Government ofdivided powers, and while division of power is oneof the principal features of the Constitution, it is theplain duty of those who are called upon to draw thedividing lines to ascertain the essential, recognizethe practical, and avoid a slavish formalism whichcan only serve to ossify the Government and reduceits efficiency without any compensating good. Thefunction of making laws is peculiar to Congress, andthe Executive can not exercise that function to anydegree. But this is not to say that all of the subjectsconcerning which laws might be made are perforceremoved from the possibility of Executive influence.The Executive may act upon things and upon menin many relations which have not, though theymight have, been actually regulated by Congress.In other words, just as there are fields which arepeculiar to Congress and fields which are peculiarto the Executive, so there are fields which are com-mon to both, in the sense that the Executive maymove within them until they shall have been oc-cupied by legislative action. These are not the fieldsof legislative prerogative, but fields within which thelawmaking power may enter and dominate wheneverit chooses. This situation results from the fact thatthe President is the active agent, not of Congress,but of the Nation. As such he performs the dutieswhich the Constitultion lays upon him immediately,and as such, also, he executes the laws and regula-tions adopted by Congress. He is the agent of thepeople of the United States, deriving all his powersfrom them and responsible directly to them. In no



sense is he the agent of Congress. He obeys andexecutes the laws of Congress, not because Congressis enthroned in authority over him, but because theConstitution directs him to do so.

"Therefore it follows that in ways short of makinglaws or disobeying them, the Executive may be undera grave constitutional duty to act for the nationalprotection in situations not covered by the acts ofCongress, and in which, even, it may not be saidthat his action is the direct expression of any par-ticular one of the independent powers which aregranted to him specifically by the Constitution. In-stances wlerein the President'has felt and fulfilledsuch a duty have not been rare in our history,though, being for the public benefit and approvedby all, his acts have seldom been challenged in thecourts. We are able, however, to present a numberof apposite cases which were subjected to judicialinquiry."

The brief then quotes from such cases as In re Debs,supra, and In re Neagle, supra, and continues:

"As we uinderstand the doctrine of the Neagle case,and the cases therein cited, it is clearly this: TheExecutive is authorized to exert the power of theUnited States when he finds this necessary for theprotection of the agencies, the instrumentalities, orthe. property of the Government. This does notmean an authority to disregard the wishes of Con-gress on the subject, when that subject lies withinits control and when those wishes have been ex-pressed, and it certainly does not involve the slight-est semblance of a power to legislate, much-less to'suspend' legislation already passed by Congress. Itinvolves the performance of specific acts, not of a



legislative but purely of an executive character-acts which are not in themselves laws, but which pre-suppose a 'law' authorizing him to perform them.This law is not expressed, either in the Constitutionor in the enactments of Congress, but reason andnecessity compel that it be implied from the exi-gencies of the situation.

"In none of the cases which we have mentioned,nor in the cases cited in the extracts taken from theNeagle case, was it possible to say that the actionof the President was directed, expressly or impliedly,by Congress. The situations dealt with had neverbeen covered by any act of Congress, and there wasno ground whatever for a contention that the pos-sibility of their occurrence had ever been specificallyconsidered by the legislative mind. In none of thosecases did the action of the President amount merelyto the execution of some specific law.

"Neither does any of them stand apart in principlefrom the case at bar, as involving the exercise ofspecific constitutional powers of the President in adegree in which this case does not involve them.Taken collectively, the provisions of the Constitu-tion which designate the President as the official whomust represent us in foreign relations, in command-ing the Army and Navy, in keeping Congress in-formed of the state of Ihe Union, in insuring thefaithful execation of. the laws and in recommendingnew ones, considered in connection with the sweep-ing declaration that the executive power shall bevested in him, completely demonstrate that his is thewatchful eye, the active hand, the overseeing dy-namic force of the United States." ,

49 Brief for the United States, No. 278, October Term. 1914, pp. 11,75-77, 88-90.



This brief is valuable not alone because of the caliber ofits authors but because it lays bare in succinct reasoningthe basis of the executive practice which this Court ap-proved in the Midwest Oil case.

During World War I, President Wilson established aWar Labor Board without awaiting specific direction byCongress.' With William Howard Taft and Frank P.Walsh as co-chairmen, the Board had as its purpose theprevention of strikes and lockouts interfering with theproduction of goods needed to meet the emergency.Effectiveness of War Labor Board decision was accom-plished by Presidential action, including seizure of in-dustrial plants. 1 Seizure of the Nation's railroads wasalso ordered by President Wilson. 2

Beginning with the Bank Holiday Proclamation 53 andcontinuing through World War II, executive leadershipand initiative were characteristic of President Franklin D.Roosevelt's administration. In 1939, upon the outbreak

5 National War Labor Board. Bureau of Labor Statistics, Bull.287 (1921).

51 1d., 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.

52 39 Stat. 619, 645 (1916), provides that the President may takepossession of any system of transportation in time of war. Followingseizure of the railroads by President Wilson, Congress enacted de-tailed -legislation regulating the mode of federal control. 40 Stat.451 (1918).

When Congress was considering the statute authorizing the Presi-dent to seize communications systems whenever he deemed such actionnecessary during the War, 40 Stat. 9.04 (1918), Senator (later Presi-dent) Harding opposed on the ground that there was no need for suchstand-by powers because, in event of a present necessity, the ChiefExecutive "ought to" seize communications lines, "else he would beunfaithful to his duties as such Chief Executive." 56 Cong. Rec. 9064(1918).

548 Stat. 1689 (1933).

693

OCTOBER TERM, 1951.


of war in Europe, the President proclaimed a limitednational emergency for the purpose of strengthening ournational defense." In May of 1941, the danger from theAxis belligerents having become clear, the President pro-claimed "an unlimited natiopi-i emergency" calling formobilization of the Nation's defenses to repel aggression.'The President took the initiative in strengthening ourdefenses by acquiring rights from the British Governmentto establish air bases in exchange for overage destroyers.'

In 1941, President Roosevelt acted to protect Icelandfrom attack by Axis powers, when British forces werewithdrawn, by sending our forces to occupy Iceland.Congress was informed of this action on the same daythat our forces reached Iceland." The occupation of Ice-land was but one of "at least 125 incidents" in our historyin which Presidents, "without congressional authoriza-tion, and in the absence of a declaration of war, [have]ordered the Armed Forces to take action or maintainpositions abroad."

Some six months before Pearl Harbor, a dispute ata single aviation plant at Inglewood, California, inter-rupted a segment of the production of military aircraft.In spite of the comparative insignificance of this work

-stoppage to total defense production as contrastedwith the complete paralysis now theatened by a shut-down of the entire, basic steel industry, and even though

" 54 Stat. 2643 (1939).-55 Stat. 1647 (1941)." 86 Cong. Rec. 11354 (1940) (Message of the President). See 39

Op. Atty. Gen. 484 (1940). Attorney General Jackson's opiniondid not extend to the transfer of "mosquito boats," solely because anexpress statutory prohibition on transfer was applicable.

5 87 Cong. Rec. 5868 (1941) (Message of the President).8 Powers of the President to Send the Armed Forces Outside the

United States, Report prepared by executive department for use ofjoint . committee of Senate Committees on Foreign Relations andArmed Services, 82d Cong., 1st Sess., Committee Print, 2 (1951).

694



our armed forces were not then engaged in combat, Presi-dent Roosevelt ordered the seizure of the plant "pursuantto the powers vested in [him] by theConstitution andlaws of the United States, as President of the UnitedStates of America and Commander in Chief of the Armyand Navy of the United States." ' The Attorney General(Jackson) vigorously proclaimed that the President hadthe moral duty to keep this Nation's defense effort a"going concern." His ringing moral justification was cou-pled with a legal justification equally well stated:

"The Presidential proclamation rests upon the ag-gregate of the Presidential powers derived from theConstitution itself and from statutes enacted by theCongress.

"The Constitution lays upon the President theduty 'to take care that the laws be faithfully exe-cuted.' Among the laws which he is required to findmeans to execute are those which direct him to equipan enlarged army, to provide for a strengthened navy,to protect Government property, to protect thosewho are engaged in carrying out the business of theGovernment, and to carry out the provisions of theLend-Lease Act. For the faithful execution of suchlaws the President has back of him not only eachgeneral law-enforcement power conferred by the var-ious acts of Congress but the aggregate of all suchlaws plus that wide discretion as to method vestedin him by the Constitution for the purpose of execut-ing the laws.

"The Constitution also places on the President theresponsibility and vests in him the powers of Com-mander in Chief of the Army and of the Navy.These 'weapons for the protection of the continuedexistence of the Nation are placed in his sole com-

Exec. Order 8773, 6 Fed. Reg. 2777 (1941).

OCTOBER TERM, 1951.


mand and the implication is clear that he shouldnot allow them to become paralyzed by failure toobtain supplies for which Congress has appropriatedthe money and which it has directed the Presidentto obtain." I.

At this time, Senator Connally proposed amending theSelective Training and Service Act to authorize thePresident to seize any plant where an, interruption ofproduction would unduly impede the defense effort. 1

.Proponents of the measure in no way implied that thelegislation would add to the powers already possessed bythe President 2 and the amendment was opposed as un-necessary since the President already had the power.3The amendment relating to plant seizures was not ap-proved at that session of Congress."

Meanwhile, and also prior to Pearl Harbor, the Pres'-dent ordered the seizure of a shipbuilding company andan aircraft parts plant.' - Following the declaration ofwar, but prior to the Smith-Connally Act of 1943, fiveadditional industrial concerns were seized to avert inter-

60See 89 Cong. Rqc. 3992 (1943). The Attorney General alsonoted that the dispute at North American Aviation was Communistinspired and more nearly iesembled an insurrection than a laborstrike. The relative size of North American Aviation and the impactof ap interruption in production upon our defense effort were notdescribed.

6187 Cong. Rec. 4932 (1941). See also S. 1600 and S. 2054, 77thCong., 1st Sess. (1941).

62 Reps. May, Whittington; 87 Cong. Rec. 5895, 5972 (1941).A3 Reps. Dworshak, Feddis, Harter, Dirksen, Hook; 87 Cong. Rec.

5901, 5910, 5974, 5975 (1941)." 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).

65Exec. Order 8868, 6 Fed. Reg. 4349 (1941); Exec. Order 8928,6 Fed. Reg.-5559 (1941).



ruption of needed production.' During the same period,the President directed seizure of the Nation's coal minesto remove an obstruction to the effective prosecution ofthe war. 7

The procedures adopted by President Roosevelt closelyresembled the methods employed by President Wilson.A National War Labor Board, like its predecessor ofWorld War I, was created by Executive Order to dealeffectively and fairly with disputes affecting defense pro-duction." Seizures were considered necessary, upon dis-obedience of War Labor Board orders, to assure thatthe mobilization effort remained a "going concern," and toenforce the economic stabilization program.

At the time of the seizure of the coal mines, SenatorConnally's bill to provide a statutory basis for seizuresand for the War Labor Board was again before Congress.As stated by its sponsor, the purpose of the bill was not toaugment Presidential power, but to "let the country knowthat the Congress is squarely behind the President." "As in the case of the legislative recognition of PresidentLincoln's power to seize, Congress again recognized thatthe President already had the necessary power, for therewas no intention to "ratify" past actions of doubtful va-lidity. Indeed, when Senator Tydings offered an amend-ment to the Connally bill expressly to confirm and vali-date the seizure of the coal mines, sponsors of the bill

66Exec. 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, 8Fed. Reg. 8097. (1943).

6?Exec. Order 9340, 8 Fed. Reg. 5695 (1943).6Exee. Order 9017,.7 Fed. Reg. 237 (1942); 1 Termination Re-

port of the National War Labor Board 5-'11.6989 Cong. Rec. 3807 (1943). Similar views of the President's

existing power were expressed by Senators Lucas, Wheeler, Austin andBarkley. Id., at 3885-3887, 3896, 3992.

OCTOBER TERM, 1951.

ViNsoN, C. J., dissenting. 343 U. S.

opposed the amendment as casting doubt on the legalityof the seizure and the amendment was defeated."' Whenthe Connally bill, S. 796, came before the House, all partsafter the enacting clause were stricken and a bill intro-duced by Representative Smith. of Virginia was substi-tuted and passed. This action in the House is significantbecause the Smith bill did not contain the provisions au-thorizing seizure by the President but did contain pro-visions controlling and regulating activities in respect toproperties seized by the Government under statute "orotherwise." " After a conference, the seizure provisionsof the Connally bill, enacted as the Smith-Connally orWar Labor Disputes Act of 1943, 57 Stat. 163, were agreedto by the House.

Following passage, of the Smith-Connally Act, seizuresto assure continued production on the basis of termsrecommended by the War Labor Board were based uponthat Act as well as upon the President's power under theConstitution and the laws generally. A question didarise as to whether the statutory language relating to"any plant, mine, or facility equipped for the manufac-ture, production, or mining of any articles or materials" 72

authorized the seizure of properties of MontgomeryWard & Co., a retail department store and mail-orderconcern. The Attorney General (Biddle) issued an opin-ion that the President possessed the power to seizeMontgomery Ward properties to prevent a work stoppagewhether or not the terms of the Smith-Connally Act au-thorized such a seizure." This opinion was in line with

7089 Cong. Rec. 3989-3992 (1943).7'S. 796, 78th Cong., 1st Sess., §§ 12, 13 (1943), as passed by the

House.72 57 Stat. 163, 164 (1943).7340 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).



the views on Presidential powers maintained by the At-torney General's predecessors (Murphy and Jackson 75)

and his successor (Clark 78). Accordingly, the Presidentordered seizure of the Chicago properties of MontgomeryWard in April, 1944, when that company refused to obeya War Labor Board order concerning the' bargaining rep-resentative of its employees in Chicago.7 In Congress,a Select Committee to Investigate Seizure of the Prop-erty of Montgomery Ward & Co., assuming that the termsof the Smith-Connally Act did not cover this seizure, con-cluded that the seizure "was not only within the consti-tutional power but was the plain duty of the President." 7Thereafter, an election determined the bargaining repre-sentative for the Chicago employees and the propertieswere returned to Montgomery Ward & Co. In Decem-ber, 1944, after continued defiance of a series of WarLabor Board orders, President Roosevelt ordered theseizure of Montgomery Ward properties throughout thecountry." The Court of Appeals for the Seventh Cir-cuit upheld this seizure on statutory grounds and alsoindicated its disapproval of a lower court's denial ofseizure power apart from express statute.so

74 39 Op. Atty. Gen. 343, 347 (1939).75 Note 60, supra.76 Letter introduced in Hearings before Senate Committee on Labor

and Public Welfare on S. 249, 81st Cong., 1st Sess. 232 (1949) point-ing to the "exceedingly great" powers of the President to deal withemergencies even before the Korean crisis.

11 Exec. Order 9438, 9 Fed. Reg. 4459 (1944).7 8 H. R. Rep. No. 1904, 78th Cong., 2d Sess. 25 (1944) (the Com-

mittee divided along party lines).79 Exec. Order 9508, 9 Fed. Reg. 15079 (1944).80 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 alsoKen-Rad Tube & Lamp Corp. v. Badeau, 55 F. Supp. 193, 197-199(W. D. Ky. 1944), where the court held that a seizure was properwith or without express statutory authorization.

OCTOBER TERM, 1951.


More recently, President Truman acted to repel aggres-sion by employing our armed forces in Korea.81 Uponthe intervention of the Chinese Communists, the Presi-dent proclaimed the existence of an unlimited nationalemergency requiring the speedy build-up of our defenseestablishment. 2 Congress responded by providing forincreased manpower and weapons for our own armedforces, by increasing military aid under the MutualSecurity Program and by enacting economic stabilizationmeasures, as previously described.

This is but a cursory summary of executive leadership.But it amply demonstrates that Presidents have takenprompt action to enforce the laws and protect the countrywhether or not Congress happened to provide in advancefor the particular method of execution. At the mini-mum, the executive actions reviewed herein sustain theaction of the President in this case. And many of thecited examples of Presidential practice go far beyond theextent of power necessary to suatain the President's orderto seize the steel mills. The fact-that temporary executiveseizures of industrial plants to meet an emergency have-not been directly tested in this Court furnishes not theslightest suggestion that such actions have been illegal.

-Rather, the fact that Congress and the courts have con-sistently recognized and given their support to such ex-ecutive action indicates that such a power of seizure hasbeen accepted throughout our history.

History bears out the genius of the Founding Fa-thers, who created a Government subject to law but notleft subject to inertia when vigor and initiative arerequired.

81 United States Policy in the Korean Crisis (1950), Dept. of StatePub. 3922.

. 82 15 Fed: Reg. 9029 (1950).



IV.

Focusing now on the situation confronting the Presi-dent on the night of April 8, 1952, we cannot but concludethat the President was performing his duty under theConstitution to "take Care that the Laws be faithfullyexecuted"-a duty described by President Benjamin Har-rison as "the central idea of the office." 83

The President reported to Congress the morning afterthe seizure that he acted because a work stoppage insteel production would immediately imperil the safety ofthe Nation by preventing execution of the legislativeprograms for procurement of military equipment. And,while a shutdown could be averted by granting the priceconcessions requested by plaintiffs, granting such conces-sions would disrupt the price stabilization program alsoenacted by Congress. Rather than fail to execute eitherlegislative program, the President acted to execute both.

Much of the argument in this case has been directedat straw men. We do not now have before us the caseof a President acting solely on the basis of his ownnotions of the public welfare. Nor is there any question

.of unlimited executive power in this case. The Presidenthimself closed the door to any such claim when he senthis Message to Congress stating his purpose to abide by.any action of Congress, whether approving or disapprov-ing his seizure action. Here, the President immediatelymade sure that Congress was fully informed of the tem-porary action he had taken only to preserve the legislativeprograms from destruction until Congress could act.

The absence of a specific statute authorizing seizure ofthe steel mills as a mode of executing the laws-boththe military procurement program and the anti-inflationprogram-has not until today been thought to prevent

83 Harrison, This Country of Ours (1897), 98.

OCTOBER TERM, 1951.


the President from ekecuting the laws. Unlike an ad-ministrative commission confined to the enforcement ofthe statute under which it was created, or the head of adepartment when administering a particular statute, thePresident is a constitutional officer charged with takingcare that a "mass of legislation" be executed. Flexibilityas to mode of execution to meet critical situations is amatter of practical necessity. This practical construc-tion of the "Take Care" clause, advocated by JohnMarshall, was adopted by this Court in In re Neagle, Inre Debs and other cases cited supra. See also Ex parteQuirin, 317 U. S. 1, 26 (1942). Although more restrictiveviews of executive power, advocated in dissenting opinionsof Justices Holmes, McReynolds and Brandeis, were em-phatically rejected by this Court in Myers v. UnitedStates, supra, members of today's majority treat thesedissenting views as authoritative.

.There is no statute prohibiting seizure as a methodof enforcing legislative programs. Congress has in nowise indicated that its legislation is not to be executedbf the taking of private property (subject of course tothe payment of just compensation) if its legislation can-not otherwise be executed. Indeed, the Universal Mili-tary Training and Service Act authorizes the seizure ofany plant that fails to fill a Government contract ' or theproperties of any steel producer that fails to allocate steelas directed for defense production." And the DefenseProduction Act authorizes the President to requisitionequipment and condemn real property needed withoutdelay in the defense effort. ' Where Congress authorizesseizure in instances not necessarily crucial to the defense

8'62 Stat. 604, 626 (1948), 50 U. S. C. App. (Supp. IV) § 468 (c).

W562 Stat. 604, 627 (1948), 50 U. S. C. App. (Supp. IV) §468

(h) (1).8 Tit. 11, 64 Stat. 798, 799 (1950), as'amended, 65 Stat. 138 (1951).


579 VINsoN, C. J., dissenting.

program, it can hardly be said to have disclosed an inten-tion to prohibit seizures where essential to the executionof that legislative program.

Whatever the extent of Presidential power on moretranquil occasions, and whatever the right of the Presi-dent to execute legislative programs as he sees fit with-out reporting the mode of execution to Congress, the sin-gle Presidential purpose disclosed on this record is tofaithfully execute the laws by acting in an emergencyto maintain the status quo, thereby preventing collapseof the legislative programs until Congress could act.The President's action served the same purposes as ajudicial stay entered to maintain the status quo in orderto preserve the jurisdiction of a court. In his Messageto Congress immediately following the seizure, the Presi-dent explained the necessity of his action in executingthe military procurement and anti-inflation legislativeprograms and expressed his desire to cooperate with anylegislative proposals approving, regulating or rejectingthe seizure of the steel mills. Consequently, there is noevidence whatever of any Presidential purpose to defyCongress or act in any way inconsistent with the legisla-tive will.

In United State8 v. Midwest Oil Co., supra, this Courtapproved executive action where, as here, the Presidentacted to preserve an important matter until Congresscould act--even though his action in that case was con-trary to an express statute. In this case, there is nostatute prohibiting the action taken by the President ina matter not merely important but threatening the verysafety of the Nation. Executive inaction in such a situa-tion, courting national disaster, is foreign to the conceptof energy and initiative in the Executive as created bythe Founding Fathers. The Constitution was itself"adopted in a period of grave emergency. . . . While,emergency does not create power, emergency may furnish

OCTOBER TERM, 1951.


the occasion for the exercise of power." 8? The Framersknew, as we should know in these times of peril, that thereis real danger in Executive weakness. There is no causeto fear Executive tyranny so long as the laws of Congressare being faithfully executed. Certainly there is no basisfor fear of dictatorship when the Executive acts, as he didin this case, only to save the situation until Congresscould act.

V.

Plaintiffs place their primary 'emphasis on the LaborManagement Relations Act of 1947, hereinafter referredto as the Taft-Hartley Act, but do not contend that.thatAct contains any provision prohibiting seizure.

Under the Taft-Hartley Act, as Under the Wagner Act,collective bargaining and the right to strike are at theheart of our national labor policy. Taft-Hartley pre-serves the right to strike in any emergency, however seri-ous, subject only to an 80-day delay in, cases of strikesimperiling the national health and safety.' In sich acase, the President may appoint a board of inquiry toreport the facts of the labor dispute. Upon receiving thatreport, the President may direct the Attorney General topetition a District Court to enjoin the strike. If theinjunction is granted, it -may continue in effect for nomore than 80 days, during which time the board of inquirymakes further report and efforts are mad. to settle thedispute. When the injunction is dissolved, the Presidentis directed to submit a report to Congress together withhis recommendations."

Enacted after World War II, Taft-Hartley restricts theright to strike against private employers only to a lim-

17 Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 425426(1934).

88 See Bus Employees v. Wisconsin Board, 340 U. S. 383 (1951).8* §§ 206-210, Labor Management Relations Act of 1947. 29

U. S. C. (Supp. IV) §§ 176-180.



ited extent and for the sole purpose of affording an addi-•tional period of time within which to settle the dispute.Taft-Hartley in no way curbs strikes before an injunc-tion can be obtained and after an 80-day injunction isdissolved.

Plaintiffs admit that the emergency procedures of Taft-Hartley are not mandatory. Nevertheless, plaintiffsapparently argue that, since Congress did provide the 80-day injunction method for dealing with emergency strikes,the President cannot claim that an emergency exists untilthe procedures of Taft-Hartley have been exhausted.This argument was not the basis of the District Court'sopinion and, whatever merit the argument might havehad following the enactment of Taft-Hartley, it loses allforce when viewed in light of the statutory pattern con-fronting the President in this case.

In Title V of the Defense Production Act of 1950,"Congress stated:

"It is the intent of Congress, in order to providefor effective price and wage stabilization pursuant totitle IV of this Act and to maintain uninterruptedproduction, that there be effective procedures for thesettlement of labor disputes affecting national de-fense." ( § 501.)

Title V authorized the President to initiate labor-man-agement conferences and to take action appropriate tocarrying out the recommendations of such conferencesand the provisions of Title V. (§ 502.) Due regard isto be given to collective bargaining practice and stabiliza-tion policies and no action taken is to be inconsistentwith Taft-Hartley and other laws. (§ 503.) The pur-pose of these provisions was to authorize the President"to establish a board, commission or other agency, sim-

-64 Stat. 812, 65 Stat. 132 (1950).

OCTOBER TERM, 1951.


ilar to the War Labor Board of World War II, to carryout the title."'

0

The President authorized the Wage StabilizationBoard (WSB), which administers the wage stabilizationfunctions of Title IV of the Defense Production Act, alsoto deal with labor disputes affecting the defense program."When extension. of the Defense- Production Act was be-fore Congress in 1951, the Chairman of the Wage Stabi-lization Board described in detail the relationship be-tween the Taft-Hartley procedures applicable to labordisputes imperiling the national health and safety andthe new WSB disputes procedures especially devised forsettlement of labor disputes growing out of the needsof the defense program." Aware that a technique sep-arate from Taft-Hartley had been devised, members ofCongress attempted to divest the WSB of its disputespowers. These attempts were defeated in the House,were not brought to a vote in the Senate, and the DefenseProduction Act was extended through June 30, 1952,without change in the disputes powers of the WSB.'

91 H. R. Rep. No. 3042, 81st Cong., 2d Sess. 35 (1950) (ConferenceReport). See also S. RelY. No. 2250, 81st Cong., 2d Sess. 41 (1950).

2 Exec. Order 10161, 15 Fed. Reg. 6105 (1950), as amended, Exec.Order 10233, 16 Fed. Reg. 3503 (1951)."3Hearings before the House 'Committee on Banking and Currencyon Defense Production Act Amendments of 1951, 82d Cong., 1st Sess.305-306, 312-313 (1951).

"The Lucas Amendment to abolish the disputes function of theWSB was debated at length in the House, the sponsor of theamendment pointing out the similarity of the WSB functions tothose of the War Labor Board and noting the seizures thatoccurred when War Labor Board orders were not obeyed. 97 Cong.Rec. 8390-8415. The amendment was rejected by a vote of 217to 113. Id., at 8415. A similar amendment introduced in theSenate was withdrawn. 97 Cong. Rec. 7373-7374. The DefenseProduction Act was extended without amending Tit. V or otherwiseaffecting the disputes functions of the WSB. 65 Stat.. 132 (1951).


579 ViNsON, C. J., dissenting.

Certainly this legislative creation of a new procedure fordealing with defense disputes negatives any notion thatCongress intended the earlier and discretionary Taft-Hartley procedure to be an exclusive procedure.

Accordingly, as of December 22, 1951, the Presidenthad a choicebetween alternate procedures for settling thethreatened strike in the steel mills: one route created todeal with peacetime disputes; the other route speciallycreated to deal with disputes growing out of the defenseand stabilization program. There is no question of by-passing a statutory procedure because both of the routesavailable to the President in December were based uponstatutory authorization. Both routes were available inthe steel dispute. The Union, by refusing to abide bythe defense and stabilization program, could have forcedthe President to invoke Taft-Hartley at that time todelay the strike a maximum of 80 days. Instead, theUnion agreed to cooperate with the defense program andsubmit the dispute to the Wage Stabilization Board.

Plaintiffs had no objection whatever at that time tothe President's choice of the WSB route. As a result,the strike was postponed, a WSB panel held hearingsand reported the position of the parties and the WSBrecommended the terms of a settlement which it foundwere fair and equitable. Moreover, the WSB performeda function which the board of inquiry contemplated byTaft-Hartley could not have accomplished when itchecked the recommIended wage settlement against itsown wage stabilization regulations issued pursuant to itsstabilization functions under Title IV of the Defense Pro-duction Act. Thereafter, the parties bargained on thebasis of the WSB recommendation.

When the President acted on April 8, he had exhaustedthe 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

OCTOBER TERM, 1951.


days as contrasted with the maximum delay of 80 daysunder Taft-Hartley. There had been a hearing on theissues in dispute and bargaining which promised settle-ment up to the very hour before seizure had broken down.Faced with immediate national peril through stoppage insteel production on the one hand and faced with destruc-tion of the wage and price legislative programs on theother, the President took temporary possession of thesteel mills as the only course open to him consistent withhis duty to take care that the laws be faithfully executed.

Plaintiffs' property was taken -and placed in the pos-session of the Secretary of Commerce to prevent any inter-ruption in steel production. It made no differencewhether the stoppage was caused by a union-managementdispute over terms and conditions of employment, aunion-Government dispute over wage stabilization or amanagement-Government dispute over price stabiliza-tion. The President's action has thus far been effective,not in settling the dispute, but in saving the various legis-lative programs at stake from destruction until Congresscould act in the matter.

VI.

The diversity of views expressed in the six opinionsof the majority, the lack of reference to authoritativeprecedent, the repeated reliance upon prior dissentingopinions, the complete disregard of the uncontrovertedfacts showing the gravity of the emetgency and the tem-porary nature of the taking all serve to demonstrate howfar afield one must go to affirm the order of -the DistrictCourt.

The broad, executive power granted by Article II to anofficer on duty 365 days a year cannot, it is said, be in-voked to avert disaster. Instead, the President mustconfine himself'to sending a message to Congress recom-mending action. Under this messenger-boy concept of

-708


579. VINSON, C. J., dissenting.

the Office, the President cannot even act to preserve legis-lative programs from destruction so that Congress willhave something left to act upon. There is no judicialfinding that the executive action was unwarranted becausethere was in fact no basis for the President's finding of theexistence of an emergency for, under this view, thegravity of the emergency and the immediacy of thethreatened disaster are considered irrelevant as a matterof law.

Seizure of plaintiffs' property is not a pleasant under-taking. Similarly unpleasant to a free country are thedraft which disrupts the home and military procurementwhich causes economic dislocation and compels adoptionof price controls, wage stabilization and allocation of ma-terials. The President informed Congress that even atemporary Government operation of plaintiffs' propertieswas "thoroughly distasteful" to him, but was necessary toprevent immediate paralysis of the mobilization program.Presidents have been in the past, and any, man worthy ofthe Office should be in the future, free to take at leastinterim action necessary to execute legislative programsessential to survival of the Nation. A sturdy judiciaryshould not be swayed by the unpleasantness or unpopu-larity of necessary executive action, but must independ-ently determine for itself whether the President was act-ing, as required by the Constitution, to "take Care thatthe Laws be faithfully executed."

As the District Judge stated, this is no time for "timor-ous" judicial action. But neither is this a time for tim-orous executive action. Faced with the duty of executingthe defense programs which Congress had enacted andthe disastrous effects that any stoppage in steel produc-'tion would have on those programs, the President actedto preserve those programs by seizing the steel mills.

" Compare Sterling v. Constantin, 287 U. S. 378, 399-401 (1932).OM 08-62---49


VINsON, C. J., dissenting. 343 U. S.

There is no question that the possession was other thantemporary in character and subject to congressional direc-tion-either approving, disapproving or regulating themanner in which the mills were to be administered andreturned to the owners. The President immediately in-formed Congress of his action and clearly stated his inten-tion to abide by the legislative will. No basis for claims

* of arbitrary action, unlimited powers or dictatorial usur-pation of congressional power appears from the facts ofthis case. On the contrary, judicial, legislative and ex-ecutive precedents throughout our history demonstratethat in this case the President acted in full conformitywith his duties under the Constitution. Accordingly, wewould reverse the order of the District Court.

Documents

YOUNGSTOWN' CO. v.YOUNGSTOWN CO. v. SAWYER. 579 Opinion of the Court. Board ' to investigate and make recommendations for fair and equitable terms of settlement. This Board's report