Youngstown Sheet & Tube Co. v. Sawyer | June 02, 1952 | Griswold Reading Groups


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Youngstown Sheet & Tube Co. v. Sawyer

Original Creator: lessig Current Version: Griswold Reading Groups

Supreme Court of the United States
Nos. 744, 745.


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


The Youngstown Sheet & Tube Company and other steel companies named in a list attached to Executive Order No. 10340, promulgated April 8, 1952, direct-ing seizure of the plants of such companies, brought actions against Charles Sawyer, Secretary of Com-merce, praying for declaratory judgments and injunc-tive relief. The United States District Court for the District of Columbia, David A. Pine, J., 103 F.Supp. 569, granted plaintiffs’ motions for temporary injunc-tions. Certiorari was granted by the United States Supreme Court after the Court of Appeals for the District of Columbia Circuit had issued stay orders. Mr. Justice Black delivered the opinion of the court holding that the seizure order was not within the con-stitutional power of the President.




Mr. Chief Justice Vinson, Mr. Justice Reed and Mr. Justice Minton dissented.


The Executive Order directing the Secretary of Commerce to seize the plants of steel companies in-volved in labor dispute was invalid as exceeding con-stitutional power of President. Executive Orders April 21, 1951, No. 10233, 50 U.S.C.A. Appendix, § 2071 note, and April 8, 1952, No. 10340.


**864 *581 Mr. John W. Davis, New York City, for Youngstown Sheet & Tube Co. et al.


Mr. Solicitor General Philip B. Perlman, Washington, D.C., for Sawyer, Secretary of Commerce.


*582 Mr. Arthur J. Goldberg, Washington, D.C., for United Steelworkers of America, CIO, as amicus curiae, by special leave of Court.


Messrs. Clifford D. O’Brien, Chicago, Ill., and Harold C. Heiss, Cleveland, Ohio, for Brotherhood of Loco-motive Firemen and Enginemen, et al., as amici cu-riae, by special leave of Court.


Mr. Justice BLACK delivered the opinion of the Court.


We are asked to decide whether the President was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation’s steel mills. The mill owners argue that the President’s or-der amounts to lawmaking, a legislative function which the Constitution has expressly confided to the Congress and not to the President. The Government’s position is that the order was made on findings of the President that his action was necessary to avert a na-tional catastrophe which would inevitably result from a stoppage of steel production, and that in meeting this grave emergency the President was acting within the aggregate of his constitutional powers as the Na-tion’s Chief Executive and the Commander in Chief of the Armed Forces of the United States. The issue emerges here from the following series of events:


In the latter part of 1951, a dispute arose between the steel companies and their employees over terms and conditions that should be included in new collective bargaining agreements. Long-continued conferences failed to resolve the dispute. On December 18, 1951, the employees’ representative, United Steelworkers of America, C.I.O., gave notice of an intention to strike when the existing bargaining agreements expired on December 31. The Federal Mediation and Concilia-tion Service then intervened in an effort to get labor and management to agree. This failing, the President on December 22, 1951, referred the dispute to the Federal Wage Stabilization 583 BoardFN1 to investi-gate and make recommendations for fair and equita-ble terms of settlement. This Board’s report resulted in no settlement. On April 4, 1952, the Union gave notice of a nation-wide strike called *865 to begin at 12:01 a.m. April 9. The indispensability of steel as a component of substantially all weapons and other war materials led the President to believe that the pro-posed work stoppage would immediately jeopardize our national defense and that governmental seizure of the steel mills was necessary in order to assure the continued availability of steel. Reciting these consid-erations for his action, the President, a few hours before the strike was to begin, issued Executive Or-der 10340, a copy of which is attached as an appen-dix, post, 72 S.Ct. 868. The order directed the Secre-tary of Commerce to take possession of most of the steel mills and keep them running. The Secretary immediately issued his own possessory orders, call-ing upon the presidents of the various seized compa-nies to serve as operationg managers for the United States. They were directed to carry on their activities in accordance with regulations and directions of the Secretary. The next morning the President sent a message to Congress reporting 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.


FN1. This Board was established under Ex-ecutive Order 10233, 50 U.S.C.A.Appendix, s 2071 note, 16 Fed.Reg. 3503, U.S.Code Cong. Service 1951, p. 1018.


Obeying the Secretary’s orders under protest, the companies brought proceedings against him in the District Court. Their complaints charged that the sei-zure was not authorized by an act of Congress or by any constitutional provisions. The District Court was asked to declare the orders of the President and the Secretary invalid and to issue preliminary and per-manent injunctions restraining their enforcement. Opposing the motion for preliminary*584 injunction, the United States asserted that a strike disrupting steel production for even a brief period would so en-danger the well-being and safety of the Nation that the President had ‘inherent power’ to do what he had done-power “supported by the Constitution, by his-torical precedent, and by court decisions.” The Gov-ernment also contended that in any event no prelimi-nary injunction should be issued because the compa-nies had made no showing that their available legal remedies were inadequate or that their injuries from seizure would be irreparable. Holding against the Government on all points, the District Court on April 30 issued a preliminary injunction restraining the Secretary from “continuing the seizure and posses-sion of the plant * * * and from acting under the pur-ported authority of Executive Order No. 10340.” 103 F.Supp. 569. On the same day the Court of Appeals stayed the District Court’s injunction. 197 F.2d 582. Deeming it best that the issues raised be promptly decided by this Court, we granted certiorari on May 3 and set the cause for argument on May 12. 343 U.S. 937, 72 S.Ct. 775.


Two crucial issues have developed: First. Should final determination of the constitutional validity of the President’s order be made in this case which has proceeded no further than the preliminary injunction stage? Second. If so, is the seizure order within the constitutional power of the President?




[1][2] It is urged that there were nonconstitutional grounds upon which the District Court could have denied the preliminary injunction and thus have fol-lowed the customary judicial practice of declining to reach and decide constitutional questions until com-pelled to do so. On this basis it is argued that equity’s extraordinary injunctive relief should have been de-nied because (a) seizure of the companies’ properties did not inflict irreparable damages,585 and (b) there were available legal remedies adequate to afford compensation for any possible damages which they might suffer. While separately argued by the Gov-ernment, these two contentions are here closely re-lated, if not identical. Arguments as to both rest in large part on the Government’s claim that should the seizure ultimately be held unlawful, the companies could recover full compensation in the Court of Claims for the unlawful taking. Prior cases in this Court have cast doubt on the right to recover in the Court of Claims on account of properties*866 un-lawfully taken by government officials for public use as these properties were alleged to have been. See e.g., Hooe v. United States, 218 U.S. 322, 335-336, 31 S.Ct. 85, 89, 54 L.Ed. 1055; United States v. North American Transportation & Trading Co., 253 U.S. 330, 333, 40 S.Ct. 518, 519, 64 L.Ed. 935. But see Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 701-702, 69 S.Ct. 1457, 1467, 93 L.Ed. 1628. Moreover, seizure and governmental operation of these going businesses were bound to result in many present and future damages of such nature as to be difficult, if not incapable, of measurement. View-ing the case this way, and in the light of the facts presented, the District Court saw no reason for delay-ing decision of the constitutional validity of the or-ders. We agree with the District Court and can see no reason why that question was not ripe for determina-tion on the record presented. We shall therefore con-sider and determine that question now.




[3] The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of prop-erty as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. Indeed, we do not understand the Government to rely on statutory authorization for this seizure. There are two statutes which do authorize the President *586 to take both personal and real property under certain condi-tions.FN2 However, the Government admits that these conditions were not met and that the President’s order was not rooted in either of the statutes. The Govern-ment refers to the seizure provisions of one of these statutes (s 201(b) of the Defense Production Act) as “much too cumbersome, involved, and time-consuming for the crisis which was at hand.”


FN2. The Selective Service Act of 1948, 62 Stat. 604, 625-627, 50 U.S.C.App. (Supp. IV) s 468, 50 U.S.C.A.Appendix, s 468; the Defense Production Act of 1950, Tit. II, 64 Stat. 798, as amended, 65 Stat. 132, 50 U.S.C.A.Appendix, s 2081.


Moreover, the use of the seizure technique to solve labor disputes in order to prevent work stoppages was not only unauthorized by any congressional enact-ment; prior to this controversy, Congress had refused to adopt that method of settling labor disputes. When the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency.FN3 Apparently it was thought that the technique of seizure, like that of compulsory arbitra-tion, would interfere with the process of collective bargaining.FN4 Consequently, the plan Congress adopted in that Act did not provide for seizure under any circumstances. Instead, the plan sought to bring about settlements by use of the customary devices of mediation, conciliation, investigation by boards of inquiry, and public reports. In some instances tempo-rary injunctions were authorized to provide cooling-off periods. All this failing, unions were left free to strike after a secret vote by employees as to whether they wished to accept their employers’ final settle-ment offer.FN5


FN3. 93 Cong.Rec. 3637-3645.


FN4. 93 Cong.Rec. 3835-3836.


FN5. Labor Management Relations Act, 1947, 61 Stat. 136, 152-156, 29 U.S.C. (Supp. IV) ss 141, 171-180, 29 U.S.C.A. ss 141, 171-180.


587 It is clear that if the President had authority to issue the order he did, it must be found in some pro-visions of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that “the executive Power shall be vested in a President * ”; that “he shall take Care that the Laws be faith-fully*867 executed”; and that he “shall be Com-mander in Chief of the Army and Navy of the United States.”


[4] The order cannot properly be sustained as an ex-ercise of the President’s military power as Com-mander in Chief of the Armed Forces. The Govern-ment attempts to do so by citing a number of cases upholding broad powers in military commanders en-gaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though ‘theater of war’ be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stop-ping production. This is a job for the Nation’s law-makers, not for its military authorities.


[5] Nor can the seizure order be sustained because of the several constitutional provisions that grant execu-tive power to the President. In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his func-tions in the lawmaking process to the recommending of laws he tninks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The 588 first section of the first article says that “All legislative Powers herein granted shall be vested in a Congress of the United States * *.” After granting many powers to the Congress, Article I goes on to provide that Congress may “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitu-tion in the Government of the United States, or in any Department or Officer thereof.”


[6][7][8][9] The President’s order does not direct that a congressional policy be executed in a manner pre-scribed by Congress-it directs that a presidential pol-icy be executed in a manner prescribed by the Presi-dent. The preamble of the order itself, like that of many statutes, sets out reasons why the President believes certain policies should be adopted, proclaims these policies as rules of conduct to be followed, and again, like a statute, authorizes a government official to promulgate additional rules and regulations consis-tent with the policy proclaimed and needed to carry that policy into execution. The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property for public use. It can makes laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions in certain fields of our economy. The Constitution did not subject this law-making power of Congress to presidential or military supervision or control.


[10] It is said that other Presidents without congres-sional authority have taken possession of private business enterprises in order to settle labor disputes. But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution*589 “in the Government of the United States, or in any Department or Officer thereof.”


[11][12] The Founders of this Nation entrusted the law making power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand.


The judgment of the District Court is affirmed.


Although the considerations relevant to the legal en-forcement of the principle of separation of powers seem to me more complicated and flexible than any appear from **868 what Mr. Justice BLACK has written, I join his opinion because I thoroughly agree with the application of the principle to the circum-stances of this case. Even though such differences in attitude toward this principle may be merely differ-ences in emphasis and nuance, they can hardly be reflected by a single opinion for the Court. Individual expression of views in reaching a common result is therefore important.




Executive Order


Directing the Secretary of Commerce to Take Posses-sion of and Operate the Plants and Facilities of Cer-tain Steel Companies


Whereas on December 16, 1950, I proclaimed the existence of a national emergency which requires that the military, naval, air, and civilian defenses of this country be strengthened as speedily as possible to the end that we may be able to repel any and all threats against our national*590 security and to fulfill our responsibilities in the efforts being made throughout the United Nations and otherwise to bring about a lasting peace; and


Whereas American fighting men and fighting men of other nations of the United Nations are now engaged in deadly combat with the forces of aggression in Korea, and forces of the United States are stationed elsewhere overseas for the purpose of participating in the defense of the Atlantic Community against ag-gression; and


Whereas the weapons and other materials needed by our armed forces and by those joined with us in the defense of the free world are produced to a great ex-tent in this country, and steel is an indispensable component of substantially all of such weapons and materials; and


Whereas steel is likewise indispensable to the carry-ing out of programs of the Atomic Energy Commis-sion of vital importance to our defense efforts; and


Whereas a continuing and uninterrupted supply of steel is also indispensable to the maintenance of the economy of the United States, upon which our mili-tary strength depends; and


Whereas a controversy has arisen between certain companies in the United States producing and fabri-cating steel and the elements thereof and certain of their workers represented by the United Steelworkers of America, CIO, regarding terms and conditions of employment; and


Whereas the controversy has not been settled through the processes of collective bargaining or through the efforts of the Government, including those of the Wage Stabilization Board, to which the controversy was referred on December 22, 1951, pursuant to Executive Order No. 10233, and a strike has been called for 12:01 A.M., April 9, 1952; and


Whereas a work stoppage would immediately jeop-ardize and imperil our national defense and the de-fense *591 of those joined with us in resisting ag-gression, and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field; and


Whereas is order to assure the continued availability of steel and steel products during the existing emer-gency, it is necessary that the United States take pos-session of and operate the plants, facilities, and other property of the said companies as hereinafter pro-vided:


Now, therefore, by virtue of the authority vested in me by the Constitution and laws of the United States, and as President of the United States and Commander in Chief of the armed forces of the United States, it is hereby ordered as follows:


1. The Secretary of Commerce is hereby authorized and directed to take possession of all or such of the plants, facilities, and other property of the companies named in the list attached hereto (List of specific Steel Companies and Plants omitted), or any part thereof, as he may deem necessary in the interests of national defense; and to operate or to arrange for the operation thereof and to do all things necessary for, or incidental to, such operation.


**869 2. In carrying out this order the Secretary of Commerce may act through or with the aid of such public or private instrumentalities or persons as he may designate; and all Federal agencies shall cooper-ate with the Secretary of Commerce to the fullest extent possible in carrying out the purposes of this order.


3. The Secretary of Commerce shall determine and prescribe terms and conditions of employment under which the plants, facilities, and other properties pos-session of which is taken pursuant to this order shall be operated. The Secretary of Commerce shall recog-nize the rights of workers to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of col-lective bargaining, adjustment of grievances, or other mutual aid or protection, provided *592 that such activities do not interfere with the operation of such plants, facilities, and other properties.


4. Except so far as the Secretary of Commerce shall otherwise provide from time to time, the manage-ments of the plants, facilities, and other properties possession of which is taken pursuant to this order shall continue their functions, including the collection and disbursement of funds in the usual and ordinary course of business in the names of their respective companies and by means of any instrumentalities used by such companies.


5. Except so far as the Secretary of Commerce may otherwise direct, existing rights and obligations of such companies shall remain in full force and effect, and there may be made, in due course, payments of dividends on stock, and of principal, interest, sinking funds, and all other distributions upon bonds, deben-tures, and other obligations, and expenditures may be made for other ordinary corporate or business pur-poses.


6. Whenever in the judgment of the Secretary of Commerce further possession and operation by him of any plant, facility, or other property is no longer necessary or expedient in the interest of national de-fense, and the Secretary has reason to believe that effective future operation is assured, he shall return the possession and operation of such plant, facility, or other property to the company in possession and con-trol thereof at the time possession was taken under this order.


7. The Secretary of Commerce is authorized to pre-scribe and issue such regulations and orders not in-consistent herewith as he may deem necessary or desirable for carrying out the purposes of this order; and he may delegate and authorize subdelegation of such of his functions under this order as he may been desirable.


Harry S. Truman.


The White House, April 8, 1952.


*634 Mr. Justice JACKSON, concurring in the judg-ment and opinion of the Court.
That comprehensive and undefined presidential pow-ers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety. While an interval of detached reflection may temper teachings of that experience, they probably are a more realistic influence on my views than the conventional materials of judicial de-cision which seem unduly to accentuate doctrine and legal fiction. But as we approach the question of presidential power, we half overcome mental hazards by recognizing them. The opinions of judges, no less than executives and publicists, often suffer the infir-mity of confusing the issue of a power’s validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize tran-sient results upon policies-such as wages or stabiliza-tion-and lose sight of enduring consequences upon the balanced power structure of our Republic.


A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of execu-tive power as they actually present themselves. Just what our forefathers did envision, or **870 would have envisioned had they foreseen modern condi-tions, must be divined from materials almost as en-igmatic as the dreams Joseph was called upon to in-terpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from *635 respected sources on each side of any question. They largely cancel each other.FN1 And court deci-sions are indecisive because of the judicial practice of dealing with the largest questions in the most narrow way.


FN1. A Hamilton may be matched againt a Madison. 7 The Works of Alexander Hamil-ton, 76-117; 1 Madison, Letters and Other Writings, 611-654. Professor Taft is coun-terbalanced by Theodore Roosevelt. Taft, Our Chief Magistrate and His Powers, 139-140; Theodore Roosevelt, Autobiography, 388-389. It even seems that President Taft cancels out Professor Taft. Compare his ‘Temporary Petroleum Withdrawal No. 5’ of September 27, 1909, United States v. Mid-west Oil Co., 236 U.S. 459, 467, 468, 35 S.Ct. 309, 311, 59 L.Ed. 673, with his ap-praisal of executive power in “Our Chief Magistrate and His Powers” 139-140.


The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable gov-ernment. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presiden-tial powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal con-sequences of this factor of relativity.


1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.FN2 In these circumstances,636 and in these only, may he be said (for what it may *871 be worth), to per-sonify the federal sovereignty. If his act is held un-constitutional under these circumstances, it usually means that the Federal Government *637 as an undi-vided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the bur-den of persuasion would rest heavily upon any who might attack it.


FN2. It is in this class of cases that we find the broadest recent statements of presiden-tial power, including those relied on here. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 221, 81 L.Ed. 255, involved, not the question of the President’s power to act without congres-sional authority, but the question of his right to act under and in accord with an Act of Congress. The constitutionality of the Act under which the President had proceeded was assailed on the ground that it delegated legislative powers to the President. Much of the Court’s opinion is dictum, but the ratio decidendi is contained in the following lan-guage:


“When the President is to be authorized by legislation to act in respect of a matter in-tended to affect a situation in foreign terri-tory, the legislator properly bears in mind the important consideration that the form of the President’s action-or, indeed, whether he shall act at all-may well depend, among other things, upon the nature of the confi-dential information which he has or may thereafter receive, or upon the effect which his action may have upon our foreign rela-tions. This consideration, in connection with what we have already said on the subject, discloses the unwisdom of requiring Con-gress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed. As this court said in Mackenzie v. Hare, 239 U.S. 299, 311, 36 S.Ct. 106, 108, 60 L.Ed. 297, “As a government, the United States is invested with all the attributes of sover-eignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and inter-course with other countries. We should hesi-tate long before limiting or embarrasing such powers.” (Italics supplied.)”


That case does not solve the present contro-versy. It recognized internal and external af-fairs as being in separate categories, and held that the strict limitation upon congres-sional delegations of power to the President over internal affairs does not apply with re-spect to delegations of power in external af-fairs. It was intimated that the President might act in external affairs without con-gressional authority, but not that he might act contrary to an Act of Congress.


Other examples of wide definition of presi-dential powers under statutory authorization are Chicago & Southern Air Lines v. Wa-terman Steamship Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568, and Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774. But see, Jecker v. Montgom-ery, 13 How. 498, 515, 14 L.Ed. 240; Western Union Telegraph Co. v. United States, D.C., 272 F. 311, affirmed, 2 Cir., 272 F. 893, reversed on consent of the par-ties, 260 U.S. 754, 43 S.Ct. 91, 67 L.Ed. 497; United States Harness Co. v. Graham, D.C., 288 F. 929.


2. When the President acts in absence of either a con-gressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indiffer-ence or quiescence may sometimes, at least as a prac-tical matter, enable, if not invite, measures on inde-pendent presidential responsibility. In this area, any actual test of power is likely to depend on the impera-tives of events and contemporary imponderables rather than on abstract theories of law.FN3


FN3. Since the Constitution implies that the writ of habeas corpus may be suspended in certain circumstances but does not say by whom, President Lincoln asserted and main-tained it as an executive function in the face of judicial challenge and doubt. Ex parte Merryman, 17 Fed.Cas. 144, No. 9,487; Ex parte Milligan, 4 Wall. 2, 125, 18 L.Ed. 281; see Ex parte Bollman, 4 Cranch, 75, 101, 2 L.Ed. 554. Congress eventually ratified his action. Habeas Corpus Act of March 3, 1863, 12 Stat. 755. See Hall, Free Speech in War Time, 21 Col.L.Rev. 526. Compare Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160, with Humphrey’s Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611, and Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, with the case at bar. Also compare Ex parte Vallandigham, 1 Wall. 243, 17 L.Ed. 589, with Ex parte Milligan, supra.


3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any consti-tutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only be disabling*638 the Congress from acting upon the subject.FN4 Presidential claim to a power at once so conclusive and preclusive must be scruti-nized with caution, for what is at stake is the equilib-rium established by our constitutional system.


FN4. President Roosevelt’s effort to remove a Federal Trade Commissioner was found to be contrary to the policy of Congress and impinging upon an area of congressional control, and so his removal power was cut down accordingly. Humphrey’s Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611. However, his exclusive power of removal in executive agencies, af-firmed in Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160, continued to be asserted and maintained. Morgan v. Tennessee Valley Authority, 6 Cir., 115 F.2d 990, certiorari denied 312 U.S. 701, 61 S.Ct. 806, 85 L.Ed. 1135; In re Power to Remove Members of the Tennessee Valley Authority, 39 O.A.G. 145; President Roose-velt’s Message to Congress of March 23, 1938, The Public Papers and Addresses of Franklin D. Roosevelt, 1938 (Rosenman), 151.


Into which of these classifications does this executive seizure of the steel industry fit? It is eliminated from the first by admission, for it is conceded that no con-gressional authorization exists for this seizure. That takes away also the support of the many precedents and declarations which **872 were made in relation, and must be confined, to this category.FN5


FN5. The oft-cited Louisiana Purchase had nothing to do with the separation of powers as between the President and Congress, but only with state and federal power. The Lou-isiana Purchase was subject to rather aca-demic criticism, not upon the ground that Mr. Jefferson acted without authority from Congress, but that neither had express authority to expand the boundaries of the United States by purchase or annexation. Mr. Jefferson himself had strongly opposed the doctrine that the State’s delegation of powers to the Federal Government could be enlarged by resort to implied powers. Af-terwards in a letter to John Breckenridge, dated August 12, 1803, he declared:


“The Constitution has made no provision for our holding foreign territory, still less for in-corporating foreign nations into our Union. The executive in seizing the fugitive occur-rence which so much advances the good of their country, have done an act beyond the Constitution. The Legislature is casting be-hind them metaphysical subtleties, and risk-ing themselves like faithful servants, must ratify and pay for it, and throw themselves on their country for doing for them unau-thorized, what we know they would have done for themselves had they been in a situation to do it.” 10 The Writings of Tho-mas Jefferson 407.


*639 Can it then be defended under flexible tests available to the second category? It seems clearly eliminated from that class because Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure. In cases where the purpose is to supply needs of the Government itself, two courses are provided: one, seizure of a plant which fails to comply with obligatory orders placed by the Gov-ernment,FN6 another, condemnation of facilities, in-cluding temporary use under the power of eminent domain.FN7 The third is applicable where it is the general economy of the country that is to be protected rather than exclusive governmental interests.FN8 None of these were invoked. In choosing a different and inconsistent way of his own, the President cannot claim that it is necessitated or invited by failure of Congress to legislate upon the occasions, grounds and methods for seizure of industrial properties.


FN6. Selective Service Act of 1948, s 18, 62 Stat. 625, 50 U.S.C.App. (Supp. IV) s 468©, 50 U.S.C.A.Appendix, s 468©.


FN7. Defense Production Act of 1950, s 201, 64 Stat. 799, amended, 65 Stat. 132, 50 U.S.C.App. (Supp. IV) s 2081, 50 U.S.C.A.Appendix, s 2081. For the latitude of the condemnation power which underlies this Act, see United States v. Westinghouse Elec. & Mfg. Co., 339 U.S. 261, 70 S.Ct. 644, 94 L.Ed. 816, and cases therein cited.


FN8. Labor Management Relations Act, 1947, ss 1, 206-210, 61 Stat. 136, 155, 156, 29 U.S.C. (Supp. IV) ss 141, 176-180, 29 U.S.C.A. ss 141, 176-180. The analysis, his-tory and application of this Act are fully covered by the opinion of the Court, sup-plemented by that of Mr. Justice FRANK-FURTER and of Mr. Justice BURTON, in which I concur.


*640 This leaves the current seizure to be justified only by the severe tests under the third grouping, where it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject. In short, we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress. Thus, this Court’s first review of such seizures occurs under circumstances which leave Presidential power most vulnerable to attack and in the least favorable of possible constitu-tional postures.


I did not suppose, and I am not persuaded, that his-tory leaves it open to question, at least in the courts, that the executive branch, like the Federal Govern-ment as a whole, possesses only delegated powers. The purpose of the Constitution was not only to grant power, but to keep it from getting out of hand. How-ever, because the President does not enjoy unmentioned powers does not mean that the men-tioned ones should be narrowed by a niggardly con-struction. Some clauses could be made almost un-workable, as well as immutable, **873 by refusal to indulge some latitude of interpretation for changing times. I have heretofore, and do now, give to the enumerated powers the scope and elasticity afforded by what seem to be reasonable practical implications instead of the rigidity dictated by a doctrinaire textu-alism.


The Solicitor General seeks the power of seizure in three clauses of the Executive Article, the first read-ing, “The executive Power shall be vested in a Presi-dent of the United States of America.” Lest I be thought to exaggerate, I quote the interpretation which his brief puts upon it: “In our view, this clause constitutes a grant of all the executive powers of which the Government is capable.” If that be true, it is difficult to see why the *641 forefathers bothered to add several specific items, including some trifling ones.FN9


FN9. “* * * he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Sub-ject relating to the Duties of their respective Offices * * *.” U.S.Const. Art. II, s 2. He “* * * shall Commission all the Officers of the United States.” U.S.Const. Art. II, s 3. Mat-ters such as those would seem to be inherent in the Executive if anything is.


The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the descrip-tion of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image. Continental European exam-ples were no more appealing. And if we seek instruc-tion from our own times, we can match it only from the executive powers in those governments we dis-paragingly describe as totalitarian. I cannot accept the view that this clause is a grant in bulk of all conceiv-able executive power but regard it as an allocation to the presidential office of the generic powers thereaf-ter stated.


The clause on which the Government next relies is that “The President shall be Commander in Chief of the Army and Navy of the United States * * *.” These cryptic words have given rise to some of the most persistent controversies in our constitutional history. Of course, they imply something more than an empty title. But just what authority goes with the name has plagued Presidential advisers who would not waive or narrow it by nonassertion yet cannot say where it begins or ends. It undoubtedly puts the Na-tion’s armed forces under Presidential command. Hence, this loose appellation is sometimes advanced as support for any Presidential action, internal or ex-ternal, involving use of force, the *642 idea being that it vests power to do anything, anywhere, that can be done with an army or navy.


That seems to be the logic of an argument tendered at our bar-that the President having, on his own respon-sibility, sent American troops abroad derives from that act ‘affirmative power’ to seize the means of producing a supply of steel for them. To quote, “Per-haps the most forceful illustrations of the scope of Presidential power in this connection is the fact that American troops in Korea, whose safety and effec-tiveness are so directly involved here, were sent to the field by an exercise of the President’s constitu-tional powers.” Thus, it is said he has invested him-self with ‘war powers.’


I cannot foresee all that it might entail if the Court should indorse this argument. Nothing in our Consti-tution is plainer than that declaration of a war is en-trusted only to Congress. Of course, a state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncon-trolled, and often even is unknown, can vastly en-large his mastery over the internal affairs of the coun-try by his own commitment of the Nation’s armed forces to some foreign venture.FN10 643 I do not, however,*874 find it necessary or appropriate to consider the legal status of the Korean enterprise to discountenance argument based on it.


FN10. How widely this doctrine espoused by the President’s counsel departs from the early view of presidential power is shown by a comparison. President Jefferson, without authority from Congress, sent the American Fleet into the Mediterranean, where it en-gaged in a naval battle with the Tripolitan fleet. He sent a message to Congress on De-cember 8, 1801, in which he said:


“Tripoli, the least considerable of the Bar-bary States, had come forward with de-mands unfounded either in right or in com-pact, and had permitted itself to denounce war on our failure to comply before a given day. The style of the demand admitted but one answer. I sent a small squadron of frig-ates into the Mediterranean * * * with orders to protect our commerce against the threat-ened attack. * * * Our commerce in the Mediterranean was blockaded, and that of the Atlantic in peril. * * * One of the Trip-olitan cruisers having fallen in with, and en-gaged the small schooner Enterprise, * * * was captured, after a heavy slaughter of her men * * *. Unauthorized by the constitution, without the sanction of Congress, to go be-yond the line of defence, the vessel being disabled from committing further hostilities, was liberated with its crew. The legislature will doubltless consider whether, by author-izing measures of offence, also, they will place our force on an equal footing with that of its adversaries. I communicate all mate-rial information on this subject, that in the exercise of the important function confided by the constitution to the legislature exclu-sively, their judgment may form itself on a knowledge and consideration of every cir-cumstance of weight.” I Richardson, Mes-sages and Papers of the Presidents, 314.


Assuming that we are in a war de facto, whether it is or is not a war de jure, does that empower the Com-mander-in-Chief to seize industries he thinks neces-sary to supply our army? The Constitution expressly places in Congress power ‘to raise and support Ar-mies’ and “to provide and maintain a Navy.” (Empha-sis supplied.) This certainly lays upon Congress pri-mary responsibility for supplying the armed forces. Congress alone controls the raising of revenues and their appropriation and may determine in what man-ner and by what means they shall be spent for mili-tary and naval procurement. I suppose no one would doubt that Congress can take over war supply as a Government enterprise. On the other hand, if Con-gress sess fit to rely on free private enterprise collec-tively bargaining with free labor for support and maintenance of our armed forces can the Executive because of lawful disagreements incidental to that process, seize the facility for operation upon Gov-ernment-imposed terms?


There are indications that the Constitution did not contemplate that the title Commander-in-Chief of the *644 Army and Navy will constitute him also Com-mander-in-Chief of the country, its industries and its inhabitants. He has no monopoly of ‘war powers,’ whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for the “Government and Regulation of land and naval forces,” by which it may to some unknown extent impinge upon even command functions.


That military powers of the Commander-in-Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history. Time out of mind, and even now in many parts of the world, a military commander can seize private housing to shelter his troops. Not so, however, in the United States, for the Third Amendment says, “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” Thus, even in war time, his seizure of needed military housing must be authorized by Congress. It also was ex-pressly left to Congress to “provide for calling forth the Militia to execute the Laws of the Union, sup-press Insurrections and repel Invasions * * *.”FN11 Such a limitation on the command power, written at a time when the militia rather than a standing army was contemplated as the **875 military weapon of the Republic, underscores the Constitution’s policy that Congress, not the Executive, should control utiliza-tion of the war power as an instrument of domestic policy. Congress, fulfilling that function, has author-ized the President to use the army to enforce certain civil rights.FN12 On the other hand, Congress has for-bidden him to use the army for the purpose*645 of executing general laws except when expressly authorized by the Constitution or by Act of Congress. FN13


FN11. U.S.Const., Art. I, s 8, cl. 15.


FN12. 14 Stat. 29, 16 Stat. 143, 8 U.S.C. s 55, 8 U.S.C.A. s 55.


FN13. 20 Stat. 152, 10 U.S.C. s 15, 10 U.S.C.A. s 15.


While broad claims under this rubric often have been made, advice to the President in specific matters usu-ally has carried overtones that powers, even under this head, are measured by the command functions usual to the topmost officer of the army and navy. Even then, heed has been taken of any efforts of Congress to negative his authority.FN14


FN14. In 1940, President Roosevelt pro-posed to transfer to Great Britain certain overage destroyers and small patrol boats then under construction. He did not presume to rely upon any claim of constitutional power as Commander-in-Chief. On the con-trary, he was advised that such destroyers-if certified not to be essential to the defense of the United States-could be “transferred, ex-changed, sold, or otherwise disposed of,” because Congress had so authorized him. Accordingly, the destroyers were exchanged for air bases. In the same opinion, he was advised that Congress had prohibited the re-lease or transfer of the so-called ‘mosquito boats’ then under construction, so those boats were not transferred. In the Matter of Acquisition of Naval and Air Bases in Ex-change for Overage Destroyers, 39 O.A.G. 484. See also Matter of Training British Fly-ing Students in the United States, 40 O.A.G. 58.


We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander-in-Chief. I should indulge the widest latitude of interpretation to sustain his exclusive func-tion to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful eco-nomic struggle between industry and labor, it should have no such indulgence. His command power is not such an absolute as might be implied from that office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose law and policy-making breanch *646 is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role. What the power of command may include I do not try to envi-sion, but I think it is not a military prerogative, with-out support of law, to seize persons or property be-cause they are important or even essential for the military and naval establishment.


The third clause in which the Solicitor General finds seizure powers is that “he shall take Care that the Laws be faithfully executed * * *.”FN15 That authority must be matched against words of the Fifth Amend-ment that “No person shall be * * * deprived of life, liberty, or property, without due process of law * * *.” One gives a governmental authority that reaches so far as there is law, the other gives a private right that authority shall go no farther. These signify about all there is of the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules.


FN15. U.S.Const. Art. II, s 3.


The Solicitor General lastly grounds support of the seizure upon nebulous, inherent powers never ex-pressly granted but said to have accrued to the office from the customs and claims of preceding administra-tions. The plea is for a resulting power to deal **876 with a crisis or an emergency according to the neces-sities of the case, the unarticulated assumption being that necessity knows no law.


Loose and irresponsible use of adjectives colors all non-legal and much legal discussion of presidential powers. *647 ‘Inherent’ powers, ‘implied’ powers, ‘incidental’ powers, ‘plenary’ powers, ‘war’ powers and ‘emergency’ powers are used, often inter-changeably and without fixed or ascertainable mean-ings.


The vagueness and generality of the clauses that set forth presidential powers afford a plausible basis for pressures within and without an administration for presidential action beyond that supported by those whose responsibility it is to defend his actions in court. The claim of inherent and unrestricted presi-dential powers has long been a persuasive dialectical weapon in political controversy. While it is not sur-prising that counsel should grasp support from such unadjudicated claims of power, a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself. But prudence has counseled that actual reli-ance on such nebulous claims stop short of provoking a judicial test.FN16


FN16. President Wilson, just before our en-trance into World War I, went before the Congress and asked its approval of his deci-sion to authorize merchant ships to carry de-fensive weapons. He said:


“No doubt I already possess that authority without special warrant of law, by the plain implication of my constitutional duties and powers; but I prefer in the present circum-stances not to act upon general implication. I wish to feel that the authority and the power of the Congress are behind me in whatever it may become necessary for me to do. We are jointly the servants of the people and must act together and in their spirit, so far as we can divine and interpret it.” XVII Richardson, op.cit., 8211.


When our Government was itself in need of shipping whilst ships flying the flags of na-tions overrun by Hitler, as well as belliger-ent merchantmen, were immobilized in American harbors where they had taken ref-uge, President Roosevelt did not assume that it was in his power to seize such foreign vessels to make up our own deficit. He in-formed Congress: “I am satisfied, after con-sultation with the heads of the interested de-partments and agencies, that we should have statutory authority to take over such vessels as our needs require. * * *” 87 Cong.Rec. 3072 (77th Cong., 1st Sess.); The Public Pa-pers and Addresses of Franklin D. Roose-velt, 1941 (Rosenman), 94. The necessary statutory authority was shortly forthcoming. 55 Stat. 242.


In his first inaugural address President Roo-sevelt pointed out two courses to obtain leg-islative remedies, one being to enact meas-ures he was prepared to recommend, the other to enact measures “the Congress may build out of its experience and wisdom.” He continued, “But in the event that the Con-gress shall fail to take and of these two courses, and in the event that the national emergency is still critical, I shall not evade the clear course of duty that will then con-front me. I shall ask the Congress for the one remaining instrument to meet the crisis-broad Executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.” (Emphasis sup-plied.) The Public Papers and Adresses of Franklin D. Roosevelt, 1933 (Rosenman), 15.


On March 6, 1933, 48 Stat. 1689, President Roosevelt proclaimed the Bank Holiday. The Proclamation did not invoke constitu-tional powers of the Executive but expressly and solely relied upon the Act of Congress of October 6, 1917, 40 Stat. 411, s 5(b), as amended, 50 U.S.C.A.Appendix, s 5(b). He relied steadily on legislation to empower him to deal with economic emergency. The Public Papers and Addresses of Franklin D. Roosevelt, 1933 (Rosenman), 24.


It is interesting to note Holdsworth’s com-ment on the powers of legislation by proc-lamation when in the hands of the Tudors. “The extent to which they could be legally used was never finally settled in this cen-tury, because the Tudors made so tactful a use of their powers that no demand for the settlement of this question was raised.” 4 Holdsworth, History of English Law, 104.


648 The Solicitor General, acknowledging that Congress has never authorized the *877 seizure here, says practice of prior Presidents has authorized it. He seeks color of legality from claimed executive precedents, chief of which is President Roosevelt’s seizure of June 9, 1941, of the California plant of the North American Aviation Company. Its superficial similarities with the present case, upon analysis, yield to distinctions so decisive that it *649 cannot be re-garded as even a precedent, much less an authority for the present seizure. FN17


FN17. The North American Aviation Com-pany was under direct and binding contracts to supply defense items to the Government. No such contracts are claimed to exist here. Seizure of plants which refused to comply with Government orders had been expressly authorized by Congress in s 9 of the Selec-tive Service Act of 1940, 54 Stat. 885, 892, so that the seizure of the North American plant was entirely consistent with congres-sional policy. The company might have ob-jected on technical grounds to the seizure, but it was taken over with acquiescence, amounting to all but consent, of the owners who had admitted that the situation was be-yond their control. The strike involved in the North American case was in violation of the union’s collective agreement and the na-tional labor leaders approved the seizure to end the strike. It was described as in the na-ture of an insurrection, a Communist-led po-litical strike against the Government’s lend-lease policy. Here we have only a loyal, law-ful, but regrettable economic disagreement between management and labor. The North American plant contained government-owned machinery, material and goods in the process of production to which workmen were forcibly denied access by picketing strikers. Here no Government property is protected by the seizure. See New York Times of June 10, 1941, pp. 1, 14 and 16, for substantially accurate account of the pro-ceedings and the conditions of violence at the North American plant.


The North American seizure was regarded as an execution of congressional policy. I do not regard it as a precedent for this, but, even if I did, I should not bind present judi-cial judgment by earlier partisan advocacy.


Statements from a letter by the Attorney General to the Chairman of the Senate Committee on Labor and Public Welfare, dated February 2, 1949, with reference to pending labor legislation, while not cited by any of the parties here are sometimes quoted as being in support of the ‘inherent’ powers of the President. The proposed bill contained a mandatory provision that during certain investigations the disputants in a labor dis-pute should continue operations under the terms and conditions of employment exist-ing prior to the beginning of the dispute. It made no provision as to how continuance should be enforced and specified no penalty for disobedience. The Attorney General ad-vised that in appropriate circumstances the United States would have access to the courts to protect the national health, safety and welfare. This was the rule laid down by this Court in Texas & N.O.R. Co. v. Broth-erhood of Steamship Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034. The Attorney General observed:


“However, with regard to the question of the power of the Government under Title III, I might point out that the inherent power of the President to deal with emergencies that affect the health, safety and welfare of the entire Nation is exceedingly great. See Opinion of Attorney General Murphy of Oc-tober 4, 1939, 39 Op.A.G. 344, 347; United States v. United Mine Workers of America, 1947, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884.”


“Regardless of the general reference to ‘in-herent powers,’ the citations were instances of congressional authorization. I do not sup-pose it is open to doubt that power to see that the laws are faithfully executed was ample basis for the specific advice given by the Attorney General in this letter.”


The appeal, however, that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, al-though 650 it is something the forefathers omitted. They knew what emergencies were, knew the pres-sures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emer-gency powers would tend to kindle emergencies. Aside from suspension of the privilege of *878 the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it,FN18 they made no express provision for exercise of extraordinary authority because of a crisis.FN19 I do not think we rightfully may so amend their work, and, if we could, I am not convinced it would be wise to do so, al-though many modern nations have forthrightly rec-ognized that war and economic crises may upset the normal balance between liberty and authority.*651 Their experience with emergency powers may not be irrelevant to the argument here that we should say that the Executive, of his own volition, can invest himself with undefined emergency powers.


FN18. U.S.Const. Art. I, s 9, cl. 2.


FN19. I exclude, as in a very limited cate-gory by itself, the establishment of martial law. Cf. Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281; Duncan v. Kahanamoku, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688.


Germany, after the First World War, framed the Weimar Constitution, designed to secure her liberties in the Western tradition. However, the President of the Republic, without concurrence of the Reichstag, was empowered temporarily to suspend any or all individual rights if public safety and order were seri-ously distrubed or endangered. This proved a tempta-tion to every government, whatever its shade of opin-ion, and in 13 years suspension of rights was invoked on more than 250 occasions. Finally, Hitler per-suaded President Von Hindenberg to suspend all such rights, and they were never restored.FN20


FN20. I Nazi Conspiracy and Aggression 126-127; Rossiter, Constitutional Dictator-ship, 33-61; Brecht, Prelude to Silence, 138.


The French Republic provided for a very different kind of emergency government known as the ‘state of siege.’ It differed from the German emergency dicta-torship, particularly in that emergency powers could not be assumed at will by the Executive but could only be granted as a parliamentary measure. And it did not, as in Germany, result in a suspension or ab-rogation of law but was a legal institution governed by special legal rules and terminable by parliamen-tary authority.FN21


FN21. Rossiter, Constitutional Dictatorship, 117-129.


Great Britain also has fought both World Wars under a sort of temporary dictatorship created by legisla-tion.FN22 As Parliament is not bound by written con-stitutional limitations, it established a crisis govern-ment simply by *652 delegation to its Ministers of a larger measure than usual of its own unlimited power, which is exercised under its supervision by Ministers whom it may dismiss. This has been called the “highwater mark in the voluntary surrender of lib-erty,” but, as Churchill put it, “Parliament stands cus-todian of these surrendered liberties, and its most sacred duty will be to restore them in their fullness when victory has crowned our exertions and our per-severance.”FN23 Thus, parliamentary control made emergency powers compatible with freedom.


FN22. Defense of the Realm Act, 1914, 4 & 5, Geo. V. c. 29, as amended, c. 63; Emer-gency Powers (Defence) Act, 1939, 2 & 3 Geo. VI, c. 62; Rossiter, Constitutional Dic-tatorship, 135-184.


FN23. Churchill, The Unrelenting Struggle, 13. See also id., at 279-281.


This contemporary foreign experience may be incon-clusive as to the wisdom of lodging emergency pow-ers somewhere in a modern government. But it sug-gests that emergency powers are consistent with free government only when their control is lodged else-where than in the Executive who exercises them. That is the safeguard that would be nullified by our adoption of the “ ‘inherent powers’ formula. Nothing in my experience convinces me that such risks are warranted by any real necessity, although such pow-ers would, of course, be an executive convenience.”


In the practical working of our Government we al-ready have evolved a technique within the framework of the Constitution by which normal executive pow-ers may be considerably expanded to meet an emer-gency. Congress may and has granted extraordi-nary**879 authorities which lie dormant in normal times but may be called into play by the Executive in war or upon proclamation of a national emergency. In 1939, upon congressional request, the Attorney Gen-eral listed ninety-nine such separate statutory grants by Congress of emergency or war-time executive powers.FN24 They were invoked from time to time as need appeared. Under this procedure we retain Gov-ernment *653 by law-special, temporary law, per-haps, but law nonetheless. The public may know the extent and limitations of the powers that can be as-serted, and persons affected may be informed from the statute of their rights and duties.


FN24. 39 Op.Atty.Gen. 348.


In view of the ease, expedition and safety with which Congress can grant and has granted large emergency powers, certainly ample to embrace this crisis, I am quite unimpressed with the argument that we should affirm possession of them without statute. Such power either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightway into dic-tatorship, but it is at least a step in that wrong direc-tion.


As to whether there is imperative necessity for such powers, it is relevant to note the gap that exists be-tween the President’s paper powers and his real pow-ers. The Constitution does not disclose the measure of the actual controls wielded by the modern presi-dential office. That instrument must be understood as an Eighteenth-Century sketch of a government hoped for, not as a blueprint of the Government that is. Vast accretions of federal power, eroded from that re-served by the States, have magnified the scope of presidential activity. Subtle shifts take place in the centers of real power that do not show on the face of the Constitution.


Executive power has the advantage of concentration in a single head in those choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear. No othe person-ality in public life can begin to compete with him in access to the public mind through modern methods of communications. By his prestige as head of state and his influence upon public opinion he exerts a lever-age upon those who are supposed *654 to check and balance his power which often cancels their effec-tiveness.


Moreover, rise of the party system has made a sig-nificant extraconstitutional supplement to real execu-tive power. No appraisal of his necessities is realistic which overlooks that he heads a political system as well as a legal system. Party loyalties and interests, sometimes more binding than law, extend his effec-tive control into branches of government other than his own and he often may win, as a political leader, what he cannot command under the Constitution. Indeed, Woodrow Wilson, commenting on the Presi-dent as leader both of his party and of the Nation, observed, “If he rightly interpret the national thought and boldly insist upon it, he is irresistible. * * * His office is anything he has the sagacity and force to make it.”FN25 I cannot be brought to believe that this country will suffer if the Court refuses further to ag-grandize the presidential office, already so potent and so relatively immune from judicial review,FN26 at the expense of Congress.


FN25. Wilson, Constitutional Government in the United States, 68-69.


FN26. Rossiter, The Supreme Court and the Commander in Chief, 126-132.


But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primar-ily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that “The tools belong to the man who can use them.” We may say that power to legislate for **880 emer-gencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.


The essence of our free Government is “ ‘leave to live by no man’s leave, underneath the law’-to be governed by those impersonal forces which we call law. Our Government*655 is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legisla-tive power. The executive action we have here origi-nates in the individual will of the President and repre-sents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Govern-ment possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its de-fects, delays and inconveniences, men have discov-ered no technique for long preserving free govern-ment except that the Executive be under the law, and that the law be made by parliamentary deliberations.”


Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.FN27


FN27. We follow the judicial tradition insti-tuted on a memorable Sunday in 1612, when King James took offense at the independ-ence of his judges and, in rage, declared: “Then I am to be under the law-which it is treason to affirm.” Chief Justice Coke re-plied to his King: “Thus wrote Bracton, “The King ought not to be under any man, but he is under God and the law. ”” 12 Coke 63 (as to its verity, 18 Eng.Hist.Rev. 664-675); 1 Campbell, Lives of the Chief Jus-tices, 272.
Mr. Justice BURTON, concurring in both the opinion and judgment of the Court.
My position may be summarized as follows:


The validity of the President’s order of seizure is at issue and ripe for decision. Its validity turns upon its relation to the constitutional division of governmental power between Congress and the President.


*656 The Constitution has delegated to Congress power to authorize action to meet a national emer-gency of the kind we face.FN1 Aware of this responsi-bility, Congress has responded to it. It has provided at least two procedures for the use of the President.


FN1. ‘Article I


“Section. 1. All legislative Powers herein granted shall be vested in a Congress of the United States * * *.


‘Section. 8. The Congress shall have Power * * *;


‘To regulate Commerce with foreign Na-tions, and among the several States * * *;


‘To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Govern-ment of the United States, or in any Depart-ment or Officer thereof.”


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 de-scribes the present emergency demonstrates its appli-cability. It says:


“Whenever in the opinion of the President of the United States, a threatened or actual strike or lock-out affecting an entire industry or a substantial part thereof engaged in trade, commerce, transportation, transmission, or communication among the several States or with foreign nations, or engaged in the pro-duction of goods for commerce, will, if permitted to occur or to continue, imperil the national health or safety, he may appoint a board of inquiry to inquire into the issues involved in the dispute and to make a written report to him within *881 such time as he shall prescribe. * *” FN2


FN2. 61 Stat. 155, 29 U.S.C. (Supp. IV) s 176, 29 U.S.C.A. s 176.


*657 In that situation Congress has authorized not only negotiation, conciliation and impartial inquiry but also a 60-day cooling-off period under injunction, followed by 20 days for a secret ballot upon the final offer of settlement and then by recommendations from the President to Congress.FN3


FN3. 61 Stat. 155-156, 29 U.S.C. (Supp. IV) ss 176-180, 29 U.S.C.A. ss 176-180.


For the purposes of this case the most significant feature of that Act is its omission of authority to seize an affected industy. The debate preceding its passage demonstrated the significance of that omission. Col-lective bargaining, rather than governmental seizure, was to be relied upon. Seizure was not to be resorted to without specific congressional authority. Congress reserved to itself the opportunity to authorize seizure to meet particular emergencies. FN4


FN4. The Chairman of the Senate Commit-tee sponsoring the bill said in the Senate:


“We did not feel that we should put into the law, as a part of the collectivebargaining machinery, an ultimate resort to compulsory arbitration, or to seizure, or to any other ac-tion. We feel that it would interfere with the whole process of collective bargaining. If such a remedy is available as a routine rem-edy, there will always be pressure to resort to it by whichever party thinks it will receive better treatment through such a process than it would receive in collective bargaining, and it will back out of collective bargaining. It will not make a bona-fide attempt to settle if it thinks it will receive a better deal under the final arbitration which may be provided.


‘We have felt that perhaps in the case of a general strike, or in the case of other serious strikes, after the termination of every possi-ble effort to resolve the dispute, the remedy might be an emergency act by Congress for that particular purpose.


‘I have had in mind drafting such a bill, giv-ing power to seize the plants, and other nec-essary facilities, to seize the unions, their money, and their treasury, and requisition trucks and other equipment; in fact, to do everything that the British did in their gen-eral strike of 1926. But while such a bill might be prepared, I should be unwilling to place such a law on the books until we actu-ally face such an emergency, and Congress applies the remedy for the particular emer-gency only. Eighty days will provide plenty of time within which to consider the possi-bility of what should be done; and we be-lieve very strongly that there should not be anything in this law which prohibits finally the right to strike.” 93 Cong.Rec. 3835-3836.


Part of this quotation was relied upon by this Court in Amalgamated Association of Street Railway & Motor Coach Employees v. Wis-consin Employment Relations Board, 340 U.S. 383, 396, note 21, 71 S.Ct. 359, 366, 95 L.Ed. 364.


*658 The President, however, chose not to use the Taft-Hartley procedure. He chose another course, also authorized by Congress. He referred the contro-versy to the Wage Stabilization Board.FN5 If that course had led to a settlement of the labor dispute, it would have avoided the need for other action. It, however, did not do so.


FN5. Under Titles IV and V of the Defense Production Act of 1950, 64 Stat. 803-812, 50 U.S.C.App. (Supp. IV) ss 2101-2123, 50 U.S.C.A.Appendix, ss 2101-2123; and see Exec. Order No. 10233, 50 U.S.C.A.Appendix, s 2071 note, 16 Fed.Reg. 3503.


Now it is contended that although the President did not follow the procedure authorized by the Taft-Hartley Act, his substituted procedure served the same purpose and must be accepted as it equivalent. Without appraising that equivalence, it is enough to point out that neither procedure carried statutory authority for the seizure of private industries in the manner now at issue. FN6 The exhaustion of both pro-cedures fails to cloud the *659 clarity of the congres-sional reservation of seizure for its own considera-tion.


FN6. Congress has authorized other types of seizure under conditions not present here. Section 201 of the Defense Production Act authorizes the President to acquire specific “real property, including facilities, tempo-rary use thereof, or other interest therein * * *” by condemnation. 64 Stat. 799, as amended, 65 Stat. 132, see 50 U.S.C.App. (Supp. IV) s 2081, 50 U.S.C.A.Appendix, s 2081. There have been no declarations of taking or condemnation proceedings in rela-tion to any of the properties involved here. Section 18 of the Selective Service Act of 1948 authorizes the President to take posses-sion of a plant or other facility failing to fill certain defense orders placed with it in the manner there prescribed. 62 Stat. 625, 50 U.S.C.App. (Supp. IV) s 468, 50 U.S.C.A.Appendix, s 468. No orders have been so placed with the steel plants seized.


**882 The foregoing circumstances distinguish this emergency from one in which Congress takes no ac-tion and outlines no governmental policy. In the case before us, Congress authorized a procedure which the President declined to follow. Instead, he followed another procedure which he hoped might eliminate the need for the first. Upon its failure, he issued an executive order to seize the steel properties in the fact of the reserved right of Congress to adopt or reject that course as a matter of legislative policy.


This brings us to a further crucial question. Does not President, in such a situation, have inherent constitu-tional power to seize private property which makes congressional action in relation thereto unnecessary? We find no such power available to him under the present circumstances. The present situation is not comparable to that of an imminent invasion or threat-ened attack. We do not face the issue of what might be the President’s constitutional power to meet such catastrophic situations. Nor is it claimed that the cur-rent seizure is in the nature of a military command addressed by the President, as Commander-in-Chief, to a mobilized nation waging, or imminently threat-ened with, total war.FN7


FN7. The President and Congress have rec-ognized the termination of the major hostili-ties in the total wars in which the Nation has been engaged. Many wartime procedures have expired or been terminated.


The War Labor Disputes Act, 57 Stat. 163 et seq., 50 U.S.C.App. ss 1501-1511, 50 U.S.C.A.Appendix, ss 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, 98 Cong.Rec. 2635, and pro-claimed by the President April 28, 1952, No. 2974, 17 Fed.Reg. 3813.


*660 The controlling fact here is that Congress, within its constitutionally delegated power, has pre-scribed for the President specific procedures, exclu-sive of seizure, for his use in meeting the present type of emergency. Congress has reserved to itself the right to determine where and when to authorize the seizure of property in meeting such an emergency. Under these circumstances, the President’s order of April 8 invaded the jurisdiction of Congress. It vio-lated the essence of the principle of the separation of governmental powers. Accordingly, the injunction against its effectiveness should be sustained.
Mr. Justice CLARK, concurring in the judgment of the Court.
One of this Court’s first pronouncements upon the powers of the President under the Constitution was made by Chief Justice John Marshall some one hun-dred and fifty years ago. In Little v. Barreme,FN1 he used this characteristically clear language in discuss-ing the power of the President to instruct the seizure of the ‘Flying-Fish,’ a vessel bound from a French port: “It is by no means clear that the President of the United States whose high duty it is to “take care that the laws be faithfully executed,” and who is com-mander in chief of the armies and navies of the United States, might not, without any special author-ity for that purpose, in the then existing state of things, have empowered the officers commanding the armed vessels of the United States, to seize and send into port for adjudication, American vessels which were forfeited by being engaged in this illicit com-merce. But when it is observed that (an act of Con-gress) gives a special authority to seize on the high seas, and limits that **883 authority to the seizure of vessels bound or sailing to a French port, the legisla-ture seem to have prescribed that *661 the manner in which this law shall be carried into execution, was to exclude a seizure of any vessel not bound to a French port.”FN2 Accordingly, a unanimous Court held that the President’s instructions had been issued without authority and that they could not “legalize an act which without those instructions would have been a plain trespass.” I know of no subsequent holding of this Court to the contrary.FN3


FN1. 1804, 2 Cranch 170, 2 L.Ed. 243.


FN2. 2 Cranch at pages 177-178, 2 L.Ed. 243 (emphasis added).


FN3. Decisions of this Court which have upheld the exercise of presidential power in-clude the following: Prize Cases (The Amy Warwick), 1863, 2 Black 635, 17 L.Ed. 459, (subsequent ratification of President’s acts by Congrss); In re Neagle, 1890, 135 U.S. 1, 10 S.Ct. 658, 34 L.Ed. 55, (protection of federal officials from personal violence while performing official duties); In re Debs, 1895, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092 (injunction to prevent forcible obstruction of interstate commerce and the mails); United States v. Midwest Oil Co., 1915, 236 U.S. 459, 35 S.Ct. 309, 59 L.Ed. 673 (acquiescence by Congress in more than 250 instances of exercise of same power by various Presidents over period of 80 years); Myers v. United States, 1926, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (control over sub-ordinate officials in executive department) (but see Humphrey’s Executor v. United States, 1935, 295 U.S. 602, 626-628, 55 S.Ct. 869, 873, 874, 79 L.Ed. 1611); Hirabayashi v. United States, 1943, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, and Korematsu v. United States, 1944, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (express congressional authorization); cf. United States v. Russell, 1871, 13 Wall. 623, 20 L.Ed. 474 (imperative military necessity in area of combat during war); United States v. Curtiss-Wright Export Corp., 1936, 299 U.S 304, 57 S.Ct. 216, 81 L.Ed. 255 (power to negotiate with foreign governments); United States v. United Mine Workers, 1947, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (sei-zure under specific statutory authorization).


The limits of presidential power are obscure. How-ever, Article II, no less than Article I, is part of “a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” FN4 Some of our Presidents, such as Lincoln, “felt that measures otherwise unconstitu-tional might become lawful by becoming indispensa-ble to the preservation of the Constitution through the preservation of the nation.” FN5 *662 Others, such as Theodore Roosevelt, thought the President to be ca-pable, as a ‘steward’ of the people, of exerting all power save that which is specifically prohibited by the Constitution or the Congress.FN6 In my view-taught me not only by the decision of Chief Justice Marshall in Little v. Barreme, 2 Cranch 170, 2 L.Ed. 243, but also by a score of other pronouncements of distinguished members of this bench-the Constitution does grant to the President extensive authority in times of grave and imperative national emergency. In fact, to my thinking, such a grant may well be neces-sary to the very existence of the Constitution itself. As Lincoln aptly said, “(is) it possible to lose the nation and yet preserve the Constitution?’ FN7 In de-scribing this authority I care not whether one calls it ‘residual,’ ‘inherent,’ “moral, ‘implied,’ ‘aggregate,’ ‘emergency,’ or otherwise. I am of the conviction that those who have had the grantifying experience of being the President’s lawyer have used one or more of these adjectives only with the utmost of sincerity and the highest of purpose.”


FN4. Chief Justice Marshall, in McCulloch v. Maryland, 1819, 4 Wheat. 316, 415, 4 L.Ed. 579.


FN5. Letter of April 4, 1864, to A. G. Hodges, in 10 Complete Works of Abraham Lincoln (Nicolay and Hay ed. 1894), 66.


FN6. Roosevelt, Autobiography (1914 ed.), 371-372.


FN7. Letter of April 4, 1864, to A. G. Hodges, in 10 Complete Words of Abraham Lincoln (Nicolay and Hay ed. 1894), 66.


**884 I conclude that where Congress has laid down specific procedures to deal with the type of crisis confronting the President, he must follow those pro-cedures in meeting the crisis; but that in the absence of such action by Congress, the President’s independ-ent power to act depends upon the gravity of the situation confronting the nation. I cannot sustain the seizure in question because here, as in Little v. Bar-reme, 2 Cranch 170, 2 L.Ed. 243, Congress had pre-scribed methods to be followed by the President in meeting the emergency at hand.


*663 Three statutory procecures were available: those provided in the Defense Production Act of 1950, 50 U.S.C.A.Appendix, s 2061 et seq., the La-bor Management Relations Act, 29 U.S.C.A. s 141 et seq., and the Selective Service Act of 1948, 50 U.S.C.A.Appendix, s 451 et seq. In this case the President invoked the first of these procedures; he did not invoke the other two.


The Defense Production Act of 1950 provides for mediation of labor disputes affecting national de-fense. Under this statutory authorization, the Presi-dent has established the Wage Stabilization Board. The Defense Production Act, however, grants the President no power to seize real property except through ordinary condemnation proceedings, which were not used here, and creates no sanctions for the settlement of labor disputes.


The Labor Management Relations Act, commonly known as the Taft-Hartley Act, includes provisions adopted for the purpose of dealing with nationwide strikes. They establish a procedure whereby the President may appoint a board of inquiry and thereaf-ter, in proper cases, seek injunctive relief for an 80-day period against a threatened work stoppage. The President can invoke that procedure whenever, in his opinion, “a threatened or actual strike * * * affecting an entire industry * * * will, if permitted to occur or to continue, imperil the national health or safety.”FN8 At the time that Act was passed, Congress specifi-cally rejected a proposal to empower the President to seize any ‘plant, mine, or facility’ in which a threat-ened work stoppage would, in his judgment, “imperil the public health or security.”FN9 Instead, the Taft-Hartley Act directed the President, in the event a strike had not been settled during the 80-day injunc-tion period, to submit to Congress “a full and com-prehensive report * * * together with such recom-mendations as he may see fit to make for considera-tion and *664 appropriate action.”FN10 The legislative history of the Act demonstrates Congress’ belief that the 80-day period would afford it adequate opportu-nity to determine whether special legislation should be enacted to meet the emergency at hand.FN11


FN8. 61 Stat. 155, 29 U.S.C. (Supp. IV) s 176, 29 U.S.C.A. s 176.


FN9. 93 Cong.Rec. 3637-3645; cf. id., at 3835-3836.


FN10. 61 Stat. 156, 29 U.S.C. (Supp. IV) s 180, 29 U.S.C.A. s 180.


FN11. E.g., S.Rep.No.105, 80th Cong., 1st Sess. 15; 93 Cong.Rec. 3835-3836; id., at 4281.


The Selective Service Act of 1948 gives the President specific authority to seize plants which fail to pro-duce goods required by the armed forces or the Atomic Energy Commission for national defense purposes. The Act provides that when a producer from whom the President has ordered such goods ‘refuses or fails’ to fill the order within a period of time prescribed by the President, the President may take immediate possession of the producer’s plant.FN12 This language is significantly broader than **885 *665 that used in the National Defense Act of 1916 and the Selective Training and Service Act of 1940, which provided for seizure when a producer ‘refused’ to supply essential defense materials, but not when he ‘failed’ to do so.FN13


FN12. The producer must have been notified that the order was placed pursuant to the Act. The Act provides in pertinent part as follows:


“(a) Whenever the President after consulta-tion with and receiving advice from the Na-tional Security Resources Board determines that it is in the interest of the national secu-rity for the Government to obtain prompt de-livery of any articles or materials the pro-curement of which has been authorized by the Congress exclusively for the use of the armed forces of the United States, or for the use of the Atomic Energy Commission, he is authorized, through the head of any Gov-ernment agency, to place with any person operating a plant, mine, or other facility ca-pable of producing such articles or materials an order for such quantity of such articles or materials as the President deems appropri-ate. Any person with whom an order is placed pursuant to the provisions of this sec-tion shall be advised that such order is placed pursuant to the provisions of this sec-tion.


‘(c) In case any person with whom an order is placed pursuant to the provisions of sub-section (a) refuses or fails-


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


‘(3) to produce the kind or quality of articles or materials ordered; or


‘(4) to furnish the quantity, kind, and quality of articles or materials ordered at such price as shall be negotiated between such person and the Government agency concerned; or in the event of failure to negotiate a price, to furnish the quantity, kind, and quality of ar-ticles or materials ordered at such price as he may subsequently be determined to be enti-tled to receive under subsection (d); the President is authorized to take immediate possession of any plant, mine, or other facil-ity of such person and to operate it, through any Government agency, for the production of such articles or materials as may be re-quired by the Government.” 62 Stat. 625, 50 U.S.C.App. (Supp. IV) s 468, 50 U.S.C.A.Appendix, s 468. The Act was amended in 1951 and redesignated the Uni-versal Military Training and Service Act, but no change was made in this section. 65 Stat. 75.


FN13. 39 Stat. 213, 50 U.S.C.A. s 80; 54 Stat. 892.


These three statutes furnish the guideposts for deci-sion in this case. Prior to seizing the steel mills on April 8 the President had exhausted the mediation procedures of the Defense Production Act through the Wage Stabilization Board. Use of those proce-dures had failed to avert the impending crisis; how-ever, it had resulted in a 99-day postponement of the strike. The Government argues that this accomplished more than the maximum 80-day waiting period pos-sible under the sanctions of the Taft-Hartley Act, and therefore amounted to compliance with the substance of that Act. Even if one were to accept this somewhat hyperbolic conclusion, the hard fact remains that nei-ther the Defense Production Act nor Taft-Hartley authorized the seizure challenged here, and the Gov-ernment made no effort to comply with the proce-dures*666 established by the Selective Service Act of 1948, a statute which expressly authorizes seizures when producers fail to supply necessary defense mate riel.FN14


FN14. The Government has offered no ex-planation, in the record, the briefs, or the oral argument, as to why it could not have made both a literal and timely compliance with the provisions of that Act. Apparently the Government could have placed orders with the steel companies for the various types of steel needed for defense purposes, and instructed the steel companies to ship the mate riel directly to producers of planes, tanks, and munitions. The Act does not re-quire that government orders cover the en-tire capacity of a producer’s plant before the President has power to seize.


Our experience during World War I demon-strates the speed with which the Government can invoke the remedy of seizing plants which fail to fill compulsory orders. The Federal Enameling & Stamping Co., of McKees Rocks, Pa., was served with a com-pulsory order on September 13, 1918, and seized on the same day. The Smith & Wes-son plant at Springfield, Mass., was seized on September 13, 1918, after the company had failed to make deliveries under a com-pulsory order issued the preceding week. Communication from Ordnance Office to War Department Board of Appraisers, enti-tled “Report on Plants Commandeered by the Ordnance Office,” Dec. 19, 1918, pp. 3, 4, in National Archives, Records of the War Department, Office of the Chief of Ord-nance, O.O. 004.002/260. Apparently the Mosler Safe Co., of Hamilton, Ohio, was seized on the same day on which a compul-sory order was issued. Id., at 2; Letter from counsel for Mosler Safe Co. to Major Gen-eral George W. Goethals, Director of Pur-chase, Storage and Traffic, War Department, Dec. 9, 1918, p. 1, in National Archives, Re-cords of the War Department, Office of the General Staff, PST Division 400.1202.


**886 For these reasons I concur in the judgment of the Court. As Justice Story once said: “For the execu-tive department of the government, this court enter-tain the most entire respect; and amidst the multiplic-ity of cares in that department, it may, without any violation of decorum, be presumed, that sometimes there may be an inaccurate construction of a law. It is our duty to expound the laws as we find them in the records of state; *667 and we cannot, when called upon by the citizens of the country, refuse our opin-ion, however it may differ from that of very great authorities.”FN15


FN15. The Orono, C.C.D.Mass.1812, 18 Fed.Cas.No.10,585.


*629 Mr. Justice DOUGLAS, concurring.
There can be no doubt that the emergency which caused the President to seize these steel plants was one that bore heavily on the country. But the emer-gency did not create power; it merely marked an oc-casion when power should be exercised. And the fact that it was necessary that measures be taken to keep steel in production does not mean that the President, rather than the Congress, had the constitutional authority to act. The Congress, as well as the Presi-dent, is trustee of the national welfare. The President can act more quickly than the Congress. The Presi-dent with the armed services at his disposal can move with force as well as with speed. All executive power-from the reign of ancient kings to the rule of modern dictators-has the outward appearance of effi-ciency.


Legislative power, by contrast, is slower to exercise. There must be delay while the ponderous machinery of committees, hearings, and debates is put into mo-tion. That takes time; and while the Congress slowly moves into action, the emergency may take its toll in wages, consumer goods, war production, the standard of living of the people, and perhaps even lives. Legis-lative action may indeed often be cumbersome, time-consuming, and apparently inefficient. But as Mr. Justice Brandeis stated in his dissent in Myers v. United States, 272 U.S. 52, 293, 47 S.Ct. 21, 85, 71 L.Ed. 160:


“The doctrine of the separation of powers was adopted by the Convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distri-bution of the governmental powers among three de-partments, to save the people from autocracy.”


*630 We therefore cannot decide this case by deter-mining which branch of government can deal most expeditiously with the present crisis. The answer must depend on the allocation of powers under the Constitution. That in turn requires an analysis of the conditions giving rise to the seizure and of the seizure itself.


The relations between labor and industry are one of the crucial problems of the era. Their solution will doubtless entail many methods-education of labor leaders and business executives; the encouragement of mediation and conciliation by the President and the use of his great office in the cause of industrial peace; and the passage of laws. Laws entail sanc-tions-penalties for their violation. One type of sanc-tion is find and imprisonment. Another is seizure of property. An industry may become so lawless, so irresponsible as to endanger the whole economy. Sei-zure of the industry may be the only wise and practi-cal solution.


The method by which industrial peace is achieved is of vital importance not only to **887 the parties but to society as well. A determination that sanctions should be applied, that the hand of the law should be placed upon the parties, and that the force of the courts should be directed against them, is an exercise of legislative power. In some nations that power is entrusted to the executive branch as a matter of course or in case of emergencies. We chose another course. We chose to place the legislative power of the Federal Government in the Congress. The language of the Constitution is not ambiguous or qualified. It places not some legislative power in the Congress; Article I, Section 1 says “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”


The legislative nature of the action taken by the President seems to me to be clear. When the United States *631 takes over an industrial plant to settle a labor controversy, it is condemning property. The seizure of the plant is a taking in the constitutional sense. United States v. Pewee Coal Co., 341 U.S. 114, 71 S.Ct. 670, 95 L.Ed. 809. A permanent tak-ing would amount to the nationalization of the indus-try. A temporary taking falls short of that goal. But though the seizure is only for a week or a month, the condemnation is complete and the United States must pay compensation for the temporary possession. United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311; United States v. Pewee Coal Co., supra.


The power of the Federal Government to condemn property is well established. Kohl v. United States, 91 U.S. 367, 23 L.Ed. 449. It can condemn for any public purpose; and I have no doubt but that condem-nation of a plant, factory, or industry in order to pro-mote industrial peace would be constitutional. But there is a duty to pay for all property taken by the Government. The command of the Fifth Amendment is that no “private property be taken for public use, without just compensation. That constitutional re-quirement has an important bearing on the present case.”


The President has no power to raise reveunes. That power is in the Congress by Article I, Section 8 of the Constitution. The President might seize and the Con-gress by subsequent action might ratify the sei-zure.FN1 But until and unless Congress acted, no con-demnation would be lawful. The branch of govern-ment that has the power to pay compensation for a seizure is the only one able to authorize a seizure or make lawful one that *632 the President had effected. FN2 That seems to me to be the necessary result of the condemnation provision in the Fifth Amendment. It squares with the theory of checks and balances ex-pounded by Mr. Justice BLACK in the opinion of the Court in which I Join.


FN1. What a President may do as a matter of expediency or extremity may never reach a definitive consitutional decision. For exam-ple, President Lincoln suspended the writ of habeas corpus, claiming the constitutional right to do so. See Ex part Merryman, 17 Fed.Cas.No.9,487. Congress ratified his ac-tion by the Act of March 3, 1863. 12 Stat. 755.


FN2. Mr. Justice Brandeis, speaking for the Court in United States v. North American Transportation & Trading Co., 253 U.S. 330, 333, 40 S.Ct. 518, 520, 64 L.Ed. 935, stated that the basis of the Government’s li-ability for a taking of property was legisla-tive authority, “In order that the Government shall be liable to must appear that the officer who has physically taken possession of the property was duly authorized so to do, either directly by Congress or by the official upon whom Congress conferred the power.”


That theory explains cases like United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206, where the acts of the officials resulting in a taking were acts authorized by the Congress, though the Congress had not treated the acts us one of appropriation of private property.


War-time seizures by the military in connec-tion with military operations, cf. United States v. Russell, 13 Wall. 623, 20 L.Ed. 474, are also in a different category.


If we sanctioned the present exercise of power by the President, we would be expanding**888 Article II of the Constitution and rewriting it to suit the political conveniences of the present emergency. Article II which vests the ‘executive Power’ in the President defines that power with particularity. Article II, Sec-tion 2 makes the Chief Executive the Commander in Chief of the Army and Navy. But our history and tradition rebel at the thought that the grant of military power carries with it authority over civilian affairs. Article II, Section 3 provides that the President shall “from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge neces-sary and expedient.” The power to recommend legis-lation, granted to the President, serves only to em-phasize that it is his function to recommend and that it is the function of the Congress to legislate. *633Article II, Section 3, also provides that the President “shall take Care that the Laws be faithfully executed.” But as Mr. Justice BLACK and Mr. Jus-tice FRANKFURTER point out the power to execute the laws starts and ends with the laws Congress has enacted.


The great office of President is not a weak and pow-erless one. The President represents the people and is their spokesman in domestic and foreign affairs. The office is respected more than any other in the land. It gives a position of leadership that is unique. The power to formulate policies and mould opinion in-heres in the Presidency and conditions our national life. The impact of the man and the philosophy he represents may at times be thwarted by the Congress. Stalemates may occur when emergencies mount and the Nation suffers for lack of harmonious, reciprocal action between the White House and Capitol Hill. That is a risk inherent in our system of separation of powers. The tragedy of such stalemates might be avoided by allowing the President the use of some legislative authority. The Framers with memories of the tyrannies produced by a blending of executive and legislative power rejected that political arrange-ment. Some future generation may, however, deem it so urgent that the President have legislative authority that the Constitution will be amended. We could not sanction the seizures and condemnations of the steel plants in this case without reading Article II as giving the President not only the power to execute the laws but to make some. Such a step would most assuredly alter the pattern of the Constitution.


We pay a price for our system of checks and bal-ances, for the distribution of power among the three branches of government. It is a price that today may seem exorbitant to many. Today a kindly President uses the seizure power to effect a wage increase and to keep the steel furnaces in production. Yet tomor-row another President might use the same power to prevent a wage increase, to curb trade unionists, to regiment labor as oppressively as industry thinks it has been regimented by this seizure.


*593 Mr. Justice FRANKFURTER, concurring.
Before the cares of the White House were his own, President Harding is reported to have said that gov-ernment after all is a very simple thing. He must have said 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’s social arrangements to manage successfully. Our scheme of society is more dependent than any other form of government on knowledge and wisdom and self-descipline for the achievement of its aims. For our democracy implies the reign of reason on the most extensive scale. The Founders of this Nation were not imbued with the modern cynicism that the only thing that history teaches is that it teaches noth-ing. They acted on the conviction that the experience of man sheds a good deal of light on his nature. It sheds a good deal of light not merely on the need for effective power, if a society is to be at once cohesive and civilized, but also on the need for limitations on the power of governors over the governed.


**889 To that end they rested the structure of our central government on the system of checks and bal-ances. For them the doctrine of separation of powers was not mere theory; it was a felt necessity. Not so long ago it was fashionable to find our system of checks and balances obstructive to effective govern-ment. It was easy to ridicule that system as out-moded-too easy. The experience through which the world has passed in our own day has made vivid the realization that the Framers of our Constitution were not inexperienced doctrinaires. These long-headed statesmen had no illusion that our people enjoyed biological or psychological or sociological immuni-ties from the hazards of concentrated power. It is absurd to see a dictator in a representative product of the sturdy democratic traditions of the Mississippi Valley.*594 The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked dis-regard of the restrictions that fence in even the most disinterested assertion of authority.


The Framers, however, did not make the judiciary the overseer of our government. They were familiar with the revisory functions entrusted to judges in a few of the States and refused to lodge such powers in this Court. Judicial power can be exercised only as to matters that were the traditional concern of the courts at Westminster, and only if they arise in ways that to the expert feel of lawyers constitute ‘Cases’ or ‘Con-troversies.’ Even as to questions that were the staple of judicial business, it is not for the courts to pass upon them unless they are indispensably involved in a conventional litigation. And then, only to the extent that they are so involved. Rigorous adherence to the narrow scope of the judicial function is especially demanded in controversies that arouse appeals to the Constitution. The attitude with which this Court must approach its duty when confronted with such issues is precisely the opposite of that normally manifested by the general public. So-called constitutional questions seem to exercise a mesmeric influence over the popu-lar mind. This eagerness to settle-preferably forever-a specific problem on the basis of the broadest possible constitutional pronouncements may not unfairly be called one of our minor national traits. An English observer of our scene has acutely described it: “At the first sound of a new argument over the United States Constitution and its interpretation the hearts of Americans leap with a fearful joy. The blood stirs powerfully in their veins and a new lustre brightens their eyes. Like King Harry’s men before Harfleur, they stand like greyhounds in the slips, straining upon the start.” The Economist, May 10, 1952, p. 370.


*595 The path of duty for this Court, it bears repeti-tion, lies in the opposite direction. Due regard for the implications of the distribution of powers in our Con-stitution and for the nature of the judicial process as the ultimate authority in interpreting the Constitution, has not only confined the Court within the narrow domain of appropriate adjudication. It has also led to “a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.” Brandeis, J., in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 346, 56 S.Ct. 466, 480, 482, 80 L.Ed. 688. A basic rule is the duty of the Court not to pass on a constitutional issue at all, however narrowly it may be confined, if the case may, as a matter of intellec-tual honesty, be decided without even considering delicate problems of power under the Constitution. It ought to be, but apparently is not a matter of common understanding that clashes between different branches of the government should be avoided if a legal ground of less explosive potentialities is prop-erly available. Constitutional adjudications are apt by exposing differences to exacerbate them.


So here our first inquiry must be not into the powers of the President, but into the powers of a District Judge to issue a temporary injunction in the circum-stances of this case. Familiar as that remedy is, it remains an extraordinary remedy. To **890 start with a consideration of the relation between the President’s powers and those of Congress-a most delicate matter that has occupied the thoughts of statesmen and judges since the Nation was founded and will continue to occupy their thoughts as long as our democracy lasts-is to start at the wrong end. A plaintiff is not entitled to an injunction if money damages would fairly compensate him for any wrong he may have suffered. The same considerations by which the Steelworkers, in their brief amicus, demon-strate, from the seizure here in controversy, conse-quences*596 that cannot be translated into dollars and cents, preclude a holding that only compensable damage for the plaintiffs is involved. Again, a court of equity ought not to issue an injunction, even though a plaintiff otherwise makes out a case for it, if the plaintiff’s right to an injunction is overborne by a commanding public interest against it. One need not resort to a large epigrammatic generalization that the evils of industrial dislocation are to be preferred to allowing illegality to go unchecked. To deny inquiry into the President’s power in a case like this, because of the damage to the public interest to be feared from upsetting its exercise by him, would in effect always preclude inquiry into challenged power, which pre-sumably only avowed great public interest brings into action. And so, with the utmost unwillingness, with every desire to avoid judicial inquiry into the powers and duties of the other two branches of the govern-ment, I cannot escape consideration of the legality of Executive Order No. 10340.


The pole-star for constitutional adjudications is John Marshall’s greatest judicial utterance that “it is a con-stitution we are expounding.” McCulloch v. Mary-land, 4 Wheat. 316, 407, 4 L.Ed. 579. That requires both a spacious view in applying an instrument of government “made for an underfined and expanding future,” Hurtado v. People of State of California, 110 U.S. 516, 530, 4 S.Ct. 111, 118, 28 L.Ed. 232, and as narrow a delimitation of the constitutional issues as the circumstances permit. Not the least characteristic of great statesmanship which the Framers manifested was the extent to which they did not attempt to bind the future. It is no less incumbent upon this Court to avoid putting fetters upon the future by needless pro-nouncements today.


Marshall’s admonition that “it is a constitution we are expounding” is especially relevant when the Court is required to give legal sanctions to an underlying principle of the Constitution-that of separation of powers.*597 “The great ordinances of the Constitu-tion do not establish and divide fields of black and white.” Holmes, J., dissenting in Springer v. Gov-ernment of Philippine Islands, 277 U.S. 189, 209, 48 S.Ct. 480, 485, 72 L.Ed. 845.


The issue before us can be met, and therefore should be, without attempting to define the President’s pow-ers comprehensively. I shall not attempt to delineate what belongs to him by virtue of his office beyond the power even of Congress to contract; what author-ity belongs to him until Congress acts; what kind of problems may be dealt with either by the Congress or by the President or by both, cf. La Abra Silver Mine Co. v. United States, 175 U.S. 423, 20 S.Ct. 168, 44 L.Ed. 223; what power must be exercised by the Congress and cannot be delegated to the President. It is as unprofitable to lump together in an undiscrimi-nating hotch-potch past presidential actions claimed to be derived from occupancy of the office, as it is to conjure up hypothetical future cases. The judiciary may, as this case proves, have to intervene in deter-mining where authority lies as between the democ-ratic forces in our scheme of government. But in do-ing so we should be wary and humble. Such is the teaching of this Court’s ro le in the history of the country.


It is in this mood and with this perspective that the issue before the Court must be approached. We must therefore put to one side consideration of what pow-ers the President would have had if there had been no legislation whatever bearing on the **891 authority asserted by the seizure, or if the seizure had been only for a short, explicitly temporary period, to be terminated automatically unless Congressional ap-proval were given. These and other questions, like or unlike, are not now here. I would exceed my author-ity were I to say anything about them.


The question before the Court comes in this setting. Congress has frequently-at least 16 times since 1916-*598 specifically provided for executive seizure of production, transportation, communications, or stor-age facilities. In every case it has qualified this grant of power with limitations and safeguards. This body of enactments-summarized in tabular form in Appen-dix I-demonstrates that Congress deemed seizure so drastic a power as to require that it be carefully cir-cumscribed whenever the President was vested with this extraordinary authority. The power to seize has uniformly been given only for a limited period or for a defined emergency, or has been repealed after a short period. Its exercise has been restricted to par-ticular circumstances such as “time of war or when was is imminent,” the needs of ‘public safety’ or of ‘national security or defense,’ or ‘urgent and impend-ing need.’ The period of governmental operation has been limited, as, for instance, to “sixty days after the restoration of productive efficiency.” Seizure statutes usually make executive action dependent on detailed conditions: for example, (a) failure or refusal of the owner of a plant to meet governmental supply needs or (b) failure of voluntary negotiations with the owner for the use of a plant necessary for great public ends. Congress often has specified the particular ex-ecutive agency which should seize or operate the plants or whose judgment would appropriately test the need for seizure. Congress also has not left to implication that just compensation be paid: it has usually legislated in detail regarding enforcement of this litigation-breeding general requirement.


Congress in 1947 was again called upon to consider whether governmental seizure should be used to avoid serious industrial shutdowns. Congress decided against conferring such power generally and in ad-vance, without special congressional enactment to meet each particular need. Under the urgency of tele-phone and coal strikes in 599 the winter of 1946, Congress addressed itself to the problems raised by ‘national emergency’ strikes and lockouts. FN1 The termination of wartime seizure powers on December 31, 1946, brought these matters to the attention of Congress with vivid impact. A proposal that the President be given powers to seize plants to avert a shutdown where the ‘health or safety’ of the nation was endangered, was thoroughly canvassed by Con-gress and rejected. No room for doubt remains that the proponents as well as the opponents of the bill which became the Labor Management Relations Act of 1947 clearly understood that as a result of that legislation the only recourse for preventing a shut-down in any basic industry, after failure of mediation, was Congress.FN2 Authorization for seizure as *600 an available remedy*892 for potential dangers was unequivocally put aside. The Senate Labor Commit-tee, through its Chairman, explicitly reported to the Senate that a general grant of seizure powers had been considered and rejected in favor of reliance on ad hoc legislation, as a particular emergency might call for it.FN3 An amendment presented in the House providing that where necessary “to preserve and pro-tect the public health and security” the President might seize any industry in which there is *601 an impending curtailment of production, was voted down after debate, by a vote of more than three to one.FN4


FN1. The power to seize plants under the War Labor Disputes Act ended with the termination of hostilities, proclaimed on Dec. 31, 1946, prior to the incoming of the Eightieth Congress; and the power to oper-ate previously seized plants ended on June 30, 1947, only a week after the enactment of the Labor Management Relations Act over the President’s veto. 57 Stat. 163, 165, 50 U.S.C.App. (1946 ed.) s 1503, 50 U.S.C.A.Appendix, s 1503. See 2 Legisla-tive History of the Labor Management Rela-tions Act, 1947 (published by National La-bor Relations Board, 1948), 1145, 1519, 1626.


FN2. Some of the more directly relevant statements are the following: “In most in-stances the force of public opinion should make itself sufficiently felt in this 80-day period to bring about a peaceful termination of the controversy. Should this expectation fail, the bill provides for the President laying the matter before Congress for whatever leg-islation seems necessary to preserve the health and safety of the Nation in the crisis.” Senate Report No. 105, 80th Cong., 1st Sess. 15.


“We believe it would be most unwise for the Congress to attempt to adopt laws relating to any single dispute between private parties.” Senate Minority Report, id., Part 2, at 17.


In the debates Senator H. Alexander Smith, a member of the Senate Committee on La-bor and Public Welfare, said, “In the event of a deadlock and a strike is not ended, the matter is referred to the President, who can use his discretion as to whether he will pre-sent the matter to the Congress, whether or not the situation is such that emergency leg-islation is required.”


“Nothing has been done with respect to the Smith-Connally Act. There is no provision for taking over property or running plants by the Government. We simply provide a pro-cedure which we hope will be effective in 99 out of 100 cases where the health or safety of the people may be affected, and still leave a loophole for congressional action.” 93 Cong.Rec. 4281.


The President in his veto message said, “* * * it would be mandatory for the President to transfer the whole problem to the Congress, even if it were not in session. Thus, major economic disputes between employers and their workers over contract terms might ul-timately be thrown into the political arena for disposition. One could scarcely devise a less effective method for discouraging criti-cal strikes.” 93 Cong.Rec. 7487.


FN3. Senator Taft said:


“If there finally develops a complete na-tional emergency threatening the safety and health of the people of the United States, Congress can pass an emergency law to cover the particular emergency. * * *


‘We have felt that perhaps in the case of a general strike, or in the case of other serious strikes after the termination of every possi-ble effort to resolve the dispute, the remedy might be an emergency act by Congress for that particular purpose.


‘* * * But while such a bill (For seizure of plants and union funds) might be prepared, I should be unwilling to place such a law on the books until we actually face such an emergency, and Congress applies the rem-edy for the particular emergency only. Eighty days will provide plenty of time within which to consider the possibility of what should be done; and we believe very strongly that there should not be anything in this law which prohibits finally the right to strike.” 93 Cong.Rec. 3835-3836.


FN4. 93 Cong. Rec. 3637-3645.


In adopting the provisions which it did, by the Labor Management Relations Act of 1947, for dealing with a ‘national emergency’ arising out of a breakdown in peaceful industrial relations, Congress was very fa-miliar with Government seizure as a protective meas-ure. On a balance of considerations Congress chose not to lodge this power in the President. It chose not to make available in advance a remedy to which both industry and labor were fiercely hostile. FN5 In decid-ing that authority to seize should be given to the President only after full consideration of the particu-lar situation should show such legislation to be nec-essary,**893 Congress presumably acted on experi-ence with similar industrial conflicts in the past. It evidently assumed that industrial shutdowns in basic industries are not instances of spontaneous genera-tion, *602 and that danger warnings are sufficiently plain before the event to give ample opportunity to start the legislative process into action.


FN5. See, for instance, the statements of James B. Carey, Secretary of the C.I.O., in opposition to S. 2054, 77th Cong., 1st Sess., which eventually became the War Labor Disputes Act. Central to that Act, of course, was the temporary grant of the seizure power to the President. Mr. Carey then said:


“Senator Burton. If this would continue for-ever it might mean the nationalization of in-dustry?


‘Mr. Carey. Let us consider it on a tempo-rary basis. How is the law borne by labor? Here is the Government-sponsored strike breaking agency, and nothing more.


‘Our suggestion of a voluntary agreement of the representatives of industry and labor and Government, participating in calling a con-ference, is a democratic way. The other one is the imposition of force, the other is the imposition of seizure of certain things for a temporary period; the destruction of collec-tive bargaining, and it would break down la-bor relations that may have been built up over a long period.”


Hearing before a Subcommittee of the Sen-ate Committee on the Judiciary on S. 2054, 77th Cong. 1st Sess. 132.


In any event, nothing can be plainer than that Con-gress made a conscious choice of policy in a field full of perplexity and peculiarly within legislative respon-sibility for choice. In formulating legislation for deal-ing with industrial conflicts, Congress could not more clearly and emphatically have withheld authority than it did in 1947. Perhaps as much so as is true of any piece of modern legislation, Congress acted with full consciousness of what it was doing and in the light of much recent history. Previous seizure legislation had subjected the powers granted to the President to re-strictions of varying degrees of stringency. Instead of giving him even limited powers, Congress in 1947 deemed it wise to require the President, upon failure of attempts to reach a voluntary settlement, to report to Congress if he deemed the power of seizure a needed shot for his locker. The President could not ignore the specific limitations of prior seizure stat-utes. No more could he act in disregard of the limita-tion put upon seizure by the 1947 Act.


It cannot be contended that the President would have had power to issue this order had Congress explicitly negated such authority in formal legislation. Con-gress has expressed its will to withhold this power from the President as though it had said so in so many words. The authoritatively expressed purpose of Congress to disallow such power to the President and to require him, when in his mind the occasion arose for such a seizure, to put the matter to Congress and ask for specific authority from it, could not be more decisive if it had been written into ss 206-210 of the Labor Management Relations Act of 1947. Only the other day we treated the Congressional gloss upon those sections as part of the Act. Amalgamated Ass’n of Street Electric Railway & Motor Coach Employees v. Wisconsin Employment Relations Board, 340 U.S. 383, 395-396, 71 S.CT. 359, 365, 366, 95 L.ED. 364. *603 GRAFTING upon the words a purpOSE of Congress thus unequivocally expressed is the regular legislative mode for defining the scope of an Act of Congress. It would be not merely infelicitous draftsmanship but almost offen-sive gaucherie to write such a restriction upon the President’s power in terms into a statute rather than to have it authoritatively expounded, as it was, by 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 you think it is needed in a specific situation.” This of course calls for a report on the unsuccessful efforts to reach a voluntary settlement, as a basis for discharge by Congress of its responsibility-which it has un-quivocally reserved-to fashion further remedies than it provided.FN6 But it is now claimed that the Presi-dent has seizure power by virtue of the Defense Pro-duction Act of 1950 and its Amendments.FN7 And the claim is based on the occurrence of new events-Korea and the need for stabilization, etc.-although it was well known that seizure power was withheld by the Act of 1947 and although the President, whose specific requests for other authority were in the main granted by Congress, never suggested that in view **894 of the new events he needed the power of sei-zure which Congress in its judgment had decided to withhold from him. The utmost that the Korean con-flict may imply is that it may have been desirable to have given the President further authority, a freer hand in these matters. Absence of authority in the President to deal with a crisis does not *604 imply want of power in the Government. Conversely the fact that power exists in the Government does not vest it in the President. The need for new legislation does not enact it. Nor does it repeal or amend existing law.


FN6. Clearly the President’s message of April 9 and his further letter to the President of the Senate on April 21 do not satisfy this requirement. Cong.Rec., April 9, 1952, pp. 3962-3963; id., April 21, 1952, p. 4192.


FN7. 64 Stat. 798 et seq., 65 Stat. 131 et seq., 50 U.S.C.App. s 2061 et seq., 50 U.S.C.A.Appendix, s 2061 et seq.


No authority that has since been given to the Presi-dent can by any fair process of statutory construction be deemed to withdraw the restriction or change the will of Congress as expressed by a body of enact-ments, culminating in the Labor Management Rela-tions Act of 1947. Title V of the Defense Production Act, entitled ‘Settlement of Labor Disputes,’ pro-nounced the will of Congress “that there be effective procedures for the settlement of labor disputes affect-ing national defense,” and that ‘primary reliance’ be placed “upon the parties to any labor dispute to make every effort through negotiation and collective bar-gaining and the full use of mediation and conciliation facilities to effect a settlement in the national inter-est.”FN8 Section 502 authorized the President to hold voluntary conferences of labor, industry, and public and government representatives and to “take such action as may be agreed upon in any such conference and appropriate to carry out the provisions of this title,” provided that no action was taken inconsistent with the Labor Management Relations Act of 1947.FN9 This provisionFN10 was said by the Senate Committee*605 on Banking and Currency to con-template a board similar to the War Labor Board of World War II and “a national labor-management con-ference such as was held during World War II, when a no-strike, no-lock-out pledge was obtained.”FN11 Section 502 was believed necessary**895 *606 in addition to existing means for settling disputes volun-tarily because the Federal Mediation and Conciliation Service could not enter a labor dispute unless re-quested by one party.FN12 Similar explanations of Title V were given in the Conference Report and by Senator Ives, a member of the Senate Committee to whom Chairman Maybank during the debates on the Senate floor referred questions relating to Title V.FN13 Senator Ives said:


FN8. ss 501, 502, 64 Stat. 798, 812, 50 U.S.C.App. ss 2121, 2122, 50 U.S.C.A.Appendix, ss 2121, 2122.


FN9. ss 502, 503, 64 Stat. 798, 812, 50 U.S.C.App. ss 2122, 2123, 50 U.S.C.A.Appendix, ss 2122, 2123.


FN10. The provision of s 502 in S. 3936, as reported by the Senate Committee on Bank-ing and Currency, read as follows: “The President is authorized, after consultation with labor and management, to establish such principles and procedures and to take such action as he deems appropriate for the settlement of labor disputes affecting na-tional defense, including the designation of such persons, boards or commissions as he may deem appropriate to carry out the pro-visions of this title.” That language was su-perseded in the Conference Report by the language that was finally enacted. H.R.Rep. No. 3042, 81st Cong., 2d Sess. 16, 35. The change made by the Conference Committee was for the purpose of emphasizing the vol-untary nature of the cooperation sought from the public, labor, and management; as Sena-tor Ives explained under repeated question-ing, “If any group were to hold out, there would be no agreement (on action to carry out the provisions of this title).” 96 Cong.Rec. 14071-14072. Chairman May-bank of the Senate Committee on Banking and Currency said, “The labor disputes title of the Senate was accepted by the House with amendment which merely indicates more specific avenues through which the President may bring labor and management together.” Id., at 14073.


FN11. S.Rep. No. 2250, 81st Cong., 2d Sess. 41; H.R.Rep. No. 3042, 81st Cong., 2d Sess. 35. It is hardly necessary to note that Congressional authorization of an agency similar to the War Labor Board does not im-ply a Congressional grant of seizure power similar to that given the President specifi-cally by s 3 of the War Labor Disputes Act of 1943. The War Labor Board, created by s 7 of the 1943 Act, had only administrative sanctions. See 57 Stat. 163, 166-167; see Report of Senate Committee on Labor and Public Welfare, The Disputes Functions of the Wage Stabilization Board, 1951, S.Rep. No. 1037, 82d Cong., 1st Sess. 6. The sei-zure power given by Congress in s 3 of the 1943 Act was given to the President, not to the War Labor Board, and was needed only when the War Labor Board reported it had failed; the seizure power was separate and apart from the War Labor Board machinery for settling disputes. At most the Defense Production Act does what s 7 of the War Labor Disputes Act did; the omission of any grant of seizure power similar to s 3 is too obvious not to have been conscious. At any rate, the Wage Stabilization Board differs substantially from the earlier War Labor Board. In 1951 the Senate Committee study-ing the disputes functions of the Wage Sta-bilization Board pointed out the substantial differences between that Board and its predecessor and concluded that “The New Wage Stabilization Board * * * does not rely on title V of the Defense Production Act for its authority.” S.Rep.No. 1037, 82d Cong., 1st Sess., supra, at 4-6.


FN12. S.Rep. No. 2250, 81st Cong., 2d Sess. 41.


FN13. See 96 Cong.Rec. 14071.


“It should be remembered in this connection that dur-ing the period of the present emergency it is expected that the Congress will not adjourn, but at most, will recess only for very limited periods of time. If, there-fore, any serious work stoppage should arise or even be threatened, in spite of the terms of the Labor-Management Relations Act of 1947, the Congress would be readily available to pass such legislation as might be needed to meet the difficulty.” FN14


FN14. Id., at 12275. Just before the para-graph quoted in the text, Senator Ives had said:


“In fact, the courts have upheld the constitu-tionality of the national emergency provi-sions of the Labor-Management Relations Act of 1947, which can require that workers stay on the job for at least 80 days when a strike would seriously threaten the national health and safety in peacetime.


‘By the terms of the pending bill, the Labor-Management Relations Act of 1947 would be controlling in matters affecting the rela-tionship between labor and management, in-cluding collective bargaining. It seems to me, however, that this is as far as we should go in legislation of this type.”


*607 The Defense Production Act affords no ground for the suggestion that the 1947 denial to the Presi-dent of seizure powers has been impliedly repealed, and its legislative history contradicts such a sugges-tion. Although the proponents of that Act recognized that the President would have a choice of alternative methods of seeking a mediated settlement, they also recognized that Congress alone retained the ultimate coercive power to meet the threat of ‘any serious work stoppage.’


That conclusion is not changed by what occurred after the passage of the 1950 Act. Seven and a half months later, on April 21, 1951, the President by Executive Order 10233 gave the reconstituted Wage Stabilization Board authority to investigate labor dis-putes either (1) submitted voluntarily by the parties, or (2) referred to it by the President.FN15 The Board can make only “recommendations to the parties as to fair and equitable terms of settlement” unless the parties agree to be bound by the Board’s recommen-dation. About a month thereafter Sub-Committees of both the House and Senate Labor Committees began hearings on the newly assigned disputes functions of the Board.FN16 Amendments**896 to deny the *608 Board these functions were voted down in the House, FN17 and Congress extended the Defense Production Act without changing Title V in relevant part.FN18 The legislative history of the Defense Production Act and its Amendments in 1951 cannot possibly be vouched for more than Congressional awareness and tacit approval that the President had charged the Wage Stabilization Board with authority to seek vol-untary settlement of labor disputes. The most favor-able interpretation of the statements in the committee reports can make them mean no more than “We are glad to have all the machinery possible for the volun-tary settlement of labor disputes.” In considering the Defense Production Act Amendments, Congress was never asked to approve-and there is not the slightest indication that the responsible committees ever had in mind-seizure of plants to coerce settlement of dis-putes. *609 We are not even confronted by an incon-sistency between the authority conferred on the Wage Board, as formulated by the Executive Order, and the denial of Presidential seizure powers under the 1947 legislation. The Board has been given merely media-tory powers similar to those of agencies created by the Taft-Hartley Act and elsewhere, with no other sanctions for acceptance of its recommendations than are offered by its own moral authority and the pres-sure of public opinion. The Defense Production Act and the disputes-mediating agencies created subse-quent to it still leave for solution elsewhere the ques-tion what action can be taken when attempts at volun-tary settlement fail. To draw implied approval of sei-zure power from this history is to make something out of nothing.


FN15. 16 Fed.Reg. 3503. The disputes func-tions were not given to the Wage Stabiliza-tion Board under Title V, see note 11, supra, but apparently under the more general Title IV, entitled ‘Price and Wage Stabilization.’


FN16. See Hearings before a Subcommittee of the House Committee on Education and Labor, Disputes Functions of Wage Stabili-zation Board, 82d Cong., 1st Sess. (May 28-June 15, 1951); Hearings before the Sub-committee on Labor and Labor-Management Relations of Senate Committee on Labor and Public Welfare, Wage Stabilization and Disputes Program, 82d Cong., 1st Sess. (May 17-June 7, 1951). The resulting Report of the Senate Committee, S.Rep. No. 1037, 82d Cong., 1st Sess. 9, recommended that “Title V of the Defense Production Act be retained” and that “No statutory limitations be imposed on the President’s authority to deal with disputes through voluntary ma-chinery; such limitations, we believe, would infringe on the President’s constitutional power.” (Emphasis added.) The Committee found, id., at 10, that the “Wage Stabiliza-tion Board relies completely on voluntary means for settling disputes and is, therefore, an extension of free collective bargaining. The Board has no powers of legal compul-sion.” ‘Executive Order No. 10233,’ the Committee found further, “does not in any way run counter to the * * * Taft-Hartley Act. It is simply an additional tool, not a substitute for these laws.” Of particular rele-vance to the present case, the Committee de-clared:


“The recommendations of the Wage Stabili-zation Board in disputes certified by the President have no compulsive force. The parties are free to disregard recommenda-tions of the Wage Stabilization Board * * *.


‘There is, of course, the President’s authority to seize plants under the Selective Service Act (a power not here used), but this is an authority which exists independently of the Wage Stabilization Board and its disputes-handling functions. In any case, seizure is an extraordinary remedy, and the authority to seize, operates whether or not there is a dis-putes-handling machinery.” Id., at 5.


FN17. 97 Cong.Rec. 8390-8415.


FN18. 65 Stat. 131.


It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Con-gress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the intersti-ces of legislation the very grant of power which Con-gress consciously withheld. To find authority so ex-plicitly withheld is not merely to disregard in a par-ticular instance the clear will of Congress. It is to disrespect the whole legislative process and the con-stitutional division of authority between President and Congress.


The legislative history here canvassed is relevant to yet another of the issues before us, namely, the Gov-ernment’s argument that overriding public interest prevents the issuance of the injunction despite the illegality of the seizure. I cannot accept that conten-tion. “Balancing the **897 equities’ when consider-ing whether an injunction should issue, is lawyers’ jargon for choosing between conflicting public inter-ests. When Congress itself has struck *610 the bal-ance, has defined the weight to be given the compet-ing interests, a court of equity is not justified in ig-noring that pronouncement under the guise of exer-cising equitable discretion.”


Apart from his vast share of responsibility for the conduct of our foreign relations, the embracing func-tion of the President is that “he shall take Care that the Laws be faithfully executed * * *.” Art. II, s 3. The nature of that authority has for me been compre-hensively indicated by Mr. Justice Holmes. “The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.” Myers v. United States, 272 U.S. 52, 177, 47 S.Ct. 21, 85, 71 L.Ed. 160. The powers of the President are not as particularized as are those of Congress. But unenumerated powers do not mean undefined powers. The separation of powers built into our Constitution gives essential content to unde-fined provisions in the frame of our government.


To be sure, the content of the three authorities of government is not to be derived from an abstract analysis. The areas are partly interacting, not wholly disjointed. The Constitution is a framework for gov-ernment. Therefore the way the framework has con-sistently operated fairly establishes that it has oper-ated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American con-stitutional law to confine it to the words of the Con-stitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part *611 of the structure of our government, may be treated as a gloss on ‘executive Power’ vested in the President by s 1 of Art. II.


Such was the case of United States v. Midwest Oil Co., 236 U.S. 459, 35 S.Ct. 309, 59 L.Ed. 673. The contrast between the circumstances of that case and this one helps to draw a clear line between authority not explicitly conferred yet authorized to be exercised by the President and the denial of such authority. In both instances it was the concern of Congress under express constitutional grant to make rules and regula-tions for the problems with which the President dealt. In the one case he was dealing with the protection of property belonging to the United States; in the other with the enforcement of the Commerce Clause and with raising and supporting armies and maintaining the Navy. In the Midwest Oil case lands which Con-gress had opened for entry were, over a period of 80 years and in 252 instances, and by Presidents learned and unlearned in the law, temporarily withdrawn from entry so as to enable Congress to deal with such withdrawals. No remotely comparable practice can be vouched for executive seizure of property at a time when this country was not at war, in the only consti-tutional way in which it can be at war. It would pur-sue the irrelevant to reopen the controversy over the constitutionality of some acts of Lincoln during the Civil War. See J. G. Randall, Constitutional Problems under Lincoln (Revised ed. 1951). Suffice it to say that he seized railroads in territory where armed hos-tilities had already interrupted the movement of troops to the beleaguered Capitol, and his order was ratified by the Congress.


The only other instances of seizures are those during the periods of the first and second World Wars.FN19 In his eleven seizures**898 of industrial facilities, President Wilson *612 acted, or at least purported to act, FN20 under authority granted by Congress. Thus his seizures cannot be adduced as interpretations by a President of his own powers in the absence of statute.


FN19 Instances of seizure by the President are summarized in Appendix II, infra.


FN20. One of President Wilson’s seizures has given rise to controversy. In his testi-mony in justification of the Montgomery Ward seizure during World War II, Attorney General Biddle argued that the World War I seizure of Smith & Wesson could not be supported under any of the World War I statutes authorizing seizure. He thus ad-duced it in support of the claim of so-called inherent presidential power of seizure. See Hearings before House Select Committee to Investigate the Seizure of Montgomery Ward, 78th Cong., 2d Sess. 167-168. In so doing, he followed the ardor of advocates in claiming everything. In his own opinion to the President, he rested the power to seize Montgomery Ward on the statutory author-ity of the War Labor Disputes Act, see 40 Ops. Att’y Gen. 312 (1944), and the Court of Appeals decision upholding the Montgom-ery Ward seizure confined itself to that ground. United States v. Montgomery Ward & Co., 7 Cir., 150 F.2d 369. What At-torney General Biddle said about Smith & Wesson was, of course, post litem motam. Whether or not the World War I statutes were broad enough to justify that seizure, it is clear that the taking officers conceived themselves as moving within the scope of statute law. See n. 3, Appendix II, infra. Thus, whether or not that seizure was within the statute, it cannot properly be cited as a precedent for the one before us. On this gen-eral subject, compare Attorney General Knox’s opinion advising President Theodore Roosevelt against the so-called ‘steward-ship’ theory of the Presidency. National Ar-chives, Opinions of the Attorney General, Book 31, Oct. 10, 1902 (R.G. 60); Theodore Roosevelt, Autobiography, 388-389; 3 Morison, The Letters of Theodore Roose-velt, 323-366.


Down to the World War II period, then, the record is barren of instances comparable to the one before us. Of twelve seizures by President Roosevelt prior to the enactment of the War Labor Disputes Act in June, 1943, three were sanctioned by existing law, and six others *613 were effected after Congress, on Decem-ber 8, 1941, had declared the existence of a state of war. In this case, reliance on the powers that flow from declared war has been commendably disclaimed by the Solicitor General. Thus the list of executive assertions of the power of seizure in circumstances comparable to the present reduces to three in the six-month period from June to December of 1941. We need not split hairs in comparing those actions to the one before us, though much might be said by way of differentiation. Without passing on their validity, as we are not called upon to do, it suffices to say that these three isolated instances do not add up, either in number, scope, duration or contemporaneous legal justification, to the kind of executive construction of the Constitution revealed in the Midwest Oil case. Nor do they come to us sanctioned by long-continued acquiescence of Congress giving decisive weight to a construction by the Executive of its powers.


A scheme of government like ours no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority. No doubt a government with distributed authority, subject to be challenged in the courts of law, at least long enough to consider and adjudicate the challenge, labors under restrictions from which other governments are free. It has not been our tradition to envy such governments. In any event our government was designed to have such restrictions. The price was deemed not too high in view of the safeguards which these restrictions afford. I know no more impressive words on this sub-ject than those of Mr. Justice Brandeis:


“The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid fricition, but, 614 by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from *899 autocracy.” Myers v. United States, 272 U.S. 52, 240, 293, 47 S.Ct. 21, 85, 71 L.Ed. 160.


It is not a pleasant judicial duty to find that the Presi-dent has exceeded his powers and still less so when his purposes were dictated by concern for the Na-tion’s wellbeing, in the assured conviction that he acted to avert danger. But it would stultify one’s faith in our people to entertain even a momentary fear that the patriotism and the wisdom of the President and the Congress, as well as the long view of the immedi-ate parties in interest, will not find ready accommo-dation for differences on matters which, however close to their concern and however intrinsically im-portant, are overshadowed by the awesome issues which confront the world. When at a moment of ut-most anxiety President Washington turned to this Court for advice, and he had to be denied it as be-yond the Court’s competence to give, Chief Justice Jay, on behalf of the Court, wrote thus to the Father of his Country:


“ ‘We exceedingly regret every event that may cause embarrassment to your administration, but we derive consolation from the reflection that your judgment will discern what is right, and that your usual pru-dence, decision, and firmness will surmount every obstacle to the preservations of the rights, peace, and dignity of the United States.’ Letter of August 8, 1793, 3 Johnston, Correspondence and Public Papers of John Jay (1891), 489.”


In reaching the conclusion that conscience compels, I too derive consolation from the reflection that the President and the Congress between them will con-tinue to safeguard the heritage which comes to them straight from George Washington.
Mr. Chief Justice VINSON, with whom Mr. Justice REED and Mr. Justice MINTON join, dissenting.
The President of the United States directed the Secre-tary of Commerce to take temporary possession of the Nation’s steel mills during the existing emergency because “a work stoppage would immediately jeop-ardize and imperil our national defense and the de-fense 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 the field.” The District Court ordered the mills returned to their private owners on the ground that the Presi-dent’s action was beyond his powers under the Con-stitution.


This Court affirms. Some members of the Court are of the view that the President is without power to act in time of crisis in the absence of express statutory authorization. Other members of the Court affirm on the basis of their reading of certain statutes. Because we cannot agree that affirmance is proper on any ground, and because of the transcending importance of the questions presented not only in this critical litigation but also to the powers the President and of future Presidents to act in time of crisis, we are com-pelled to register this dissent.




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


*668 Those who suggest that this is a case involving extraordinary powers should be mindful that these are extraordinary times. A world not yet recovered from the devastation of World War II has been forced to face the threat of another and more terrifying global conflict.


Accepting in full measure its responsibility in the world community, the United States was instrumental in securing adoption of the United Nations Charter, approved by the Senate by a vote of 89 to 2. The first purpose of the United Nations is to “maintain interna-tional peace and security, and to that end: to take ef-fective collective measures for the prevention and removal of threats to the peace, and for the suppres-sion of acts of aggression or other breaches of the peace, * * *.”FN1 In 1950, when the United Nations called upon member nations ‘to render every assis-tance’ to repel aggression in Korea, the United States furnished its vigorous support.FN2 For almost two full years, our armed forces have been fighting in Korea, suffering casualties of over 108,000 men. Hostilities have not abated. The “determination of the United Nations to continue its action in Korea to meet the aggression” has been reaffirmend.FN3 Congressional support of the action in Korea has been manifested by provisions for increased military manpower and equipment and for economic stabilization, as herein-after described.


FN1. 59 Stat. 1031, 1037 (1945); 91 Cong.Rec. 8190 (1945).


FN2. U.N. Security Council, U.N. Doc. S/1501 (1950); Statement by the President, June 25, 1950, United States Policy in the Korean Crisis, Dept. of State Pub. (1950), 16.


FN3. U.N. General Assembly, U.N. Doc. A/1771 (1951).


Further efforts to protect the free world from aggres-sion are found in the congressional enactments of the Truman Plan for assistance to Greece and Turkey FN4 and 669 the Marshall Plan for economic aid needed to build up the strength of our friends in Western Europe.FN5 In 1949, the Senate approved the North Atlantic Treaty under which each member nation agrees that an armed attack against one is an armed attack against all.FN6 Congress immediately imple-mented*930 the North Atlantic Treaty by authoriz-ing military assistance to nations dedicated to the principles of mutual security under the United Na-tions Charter.FN7 The concept of mutual security re-cently has been extended by treaty to friends in the Pacific. FN8


FN4. 61 Stat. 103 (1947), 22 U.S.C.A. s 1401 et seq.


FN5. 62 Stat. 137 (1948), as amended, 63 Stat. 50 (1949), 64 Stat. 198 (1950), 22 U.S.C.A. s 1501 et seq.


FN6. 63 Stat. 2241 (1949), extended to Greece and Turkey, S. Exec. E, 82d Cong., 2d Sess. (1952), advice and consent of the Senate granted. 98 Cong.Rec. 930.


FN7. 63 Stat. 714 (1949), 22 U.S.C.A. s 1571 et seq.


FN8. S. Execs. A, B, C and D, 82d Cong., 2d Sess. (1952), advice and consent of the Senate granted. 98 Cong.Rec. 2594, 2595, 2605.


Our treaties represent not merely legal obligations but show congressional recognition that mutual security for the free world is the best security against the threat of aggression on a global scale. The need for mutual security is shown by the very size of the armed forces outside the free world. Defendant’s brief informs us that the Soviet Union maintains the largest air force in the world and maintains ground forces much larger than those presently available to the United States and the countries joined with us in mu-tual security arrangements. Constant international tensions are cited to demonstrate how precarious is the peace.


Even this brief review of our responsibilities in the world community discloses the enormity of our un-dertaking. Success of these measures may, as has often been *670 observed, dramatically influence the lives of many generations of the world’s peoples yet unborn. Alert to our responsibilities, which coincide with our own self preservation through mutual secu-rity, Congress has enacted a large body of imple-menting legislation. As an illustration of the magni-tude of the over-all program, Congress has appropri-ated $130 billion for our own defense and for military assistance to our allies since the June, 1950, attack in Korea.


In the Mutual Security Act of 1951, Congress author-ized “military, economic, and technical assistance to friendly countries to strengthen the mutual security and individual and collective defenses of the free world, * * *.” FN9 Over $5 1/2 billion were appropri-ated for military assistance for fiscal year 1952, the bulk of that amount to be devoted to purchase of military equipment. FN10 A request for over $7 billion for the same purpose for fiscal year 1953 is currently pending in Congress.FN11 In addition to direct ship-ment of military equipment to nations of the free world, defense production in those countries relies upon shipment of machine tools and allocation of steel tonnage from the United States.FN12


FN9. 65 Stat. 373 (1951), 22 U.S.C.A. s 1651.


FN10. 65 Stat. 730 (1951); see H.R.Doc. No. 147, 82d Cong., 1st Sess. 3 (1951).


FN11. See H.R.Doc. 382, 82d Cong., 2d Sess. (1952).


FN12. Hearings before Senate Committee on Foreign Relations on the Mutual Security Act of 1952, 82d Cong., 2d Sess. 565-566 (1952); Hearings before House Committee on Foreign Affairs on the Mutual Security Act of 1952, 82d Cong., 2d Sess. 370 (1952).


Congress also directed the President to build up our own defenses. Congress, recognizing the “grim fact * * * that the United States is now engaged in a strug-gle for survival” and that “it is imperative that we now take those necessary steps to make our strength equal to the peril of the hour,” granted authority to draft men into *671 the armed forces.FN13 As a result, we now have over 3,500,000 men in our armed forces.FN14


FN13. 65 Stat. 75 (1951); S.Rep. No. 117, 82d Cong., 1st Sess. 3 (1951).


FN14. Address by Secretary of Defense Lovett Before the American Society of Newspaper Editors, Washington, April 18, 1952.


Appropriations for the Department of Defense, which had averaged less than $13 billion per year for the three years before attack in Korea, were increased by Congress to $48 billion for fiscal year 1951 and to $60 billion for fiscal year 1952.FN15 A request for $51 billion for the Department of **931 Defense for fis-cal year 1953 is currently pending in Congress.FN16 The bulk of the increase is for military equipment and supplies-guns, tanks, ships, planes and ammunition-all of which require steel. Other defense programs requiring great quantities of steel include the large scale expansion of facilities for the Atomic Energy CommissionFN17 and the expansion of the Nation’s productive capacity affirmatively encouraged by Congress.FN18


FN15. Fiscal Year 1952, 65 Stat. 423, 760 (1951); F.Y. 1951, 64 Stat. 595, 1044, 1223, 65 Stat. 48, (1950-1951); F.Y. 1950, 63 Stat. 869, 973, 987 (1949); F.Y. 1949, 62 Stat. 647 (1948); F.Y. 1948, 61 Stat. 551 (1947).


FN16. See H.R.Rep. No. 1685, 82d Cong., 2d Sess. 2 (1952), on H.R. 7391.


FN17. See H.R.Rep. No. 384, 82d Cong., 1st Sess. 5 (1951); 97 Cong.Rec. 13647-13649.


FN18. Defense Production Act, Tit. III, 64 Stat. 798 (1950), 65 Stat. 138 (1951), 50 U.S.C.A.Appendix, s 2091 et seq.


Congress recognized the impact of these defense pro-grams upon the economy. Following the attack in Korea, the President asked for authority to requisition property and to allocate and fix priorities for scarce goods. In the Defense Production Act of 1950, Con-gress granted the powers requested and, in addition, granted power to stabilize prices and wages and to provide for settlement *672 of labor disputes arising in the defense program.FN19 The Defense Production Act was extended in 1951, a Senate Committee not-ing that in the dislocation caused by the programs for purchase of military equipment “lies the seed of an economic disaster that might well destroy the military might we are straining to build.”FN20 Significantly, the Committee examined the problem “in terms of just one commodity, steel,” and found “a graphic picture of the over-all inflationary danger growing out of reduced civilian supplies and rising incomes.” Even before Korea, steel production at levels above theoretical 100% capacity was not capable of supply-ing civilian needs alone. Since Korea, the tremendous military demand for steel has far exceeded the in-creases in productive capacity. This Committee em-phasized that the shortage of steel, even with the mills operating at full capacity, coupled with in-creased civilian purchasing power, presented grave danger of disastrous inflation.FN21


FN19. Note 18, supra, Tits. IV and V, 50 U.S.C.A.Appendix, ss 2101 et seq., 2121 et seq.


FN20. S.Rep. No. 470, 82d Cong., 1st Sess. 8 (1951).


FN21. Id., at 8-9.


The President has the duty to execute the foregoing legislative programs. Their successful execution de-pends upon continued production of steel and stabi-lized prices for steel. Accordingly, when the collec-tive bargaining agreements between the Nation’s steel producers and their employees, represented by the United Steel Workers, were due to expire on Decem-ber 31, 1951, and a strike shutting down the entire basic steel industry was threatened, the President acted to avert a complete shutdown of steel produc-tion. On December 22, 1951, he certified the dispute to the Wage Stabilization Board, requesting that the Board investigate the dispute and promptly report its recommendation as to fair and equitable terms of settlement. The Union complied with the President’s *673 request and delayed its threatened strike while the dispute was before the Board. After a special Board panel had conducted hearings and submitted a report, the full Wage Stabilization Board submitted its report and recommendations to the President on March 20, 1952.


The Board’s report was acceptable to the Union but was rejected by plaintiffs. The Union gave notice of its intention to strike as of 12:01 a.m., April 9, 1952, but bargaining between the parties continued with hope of settlement until the evening of April 8, 1952. After bargaining had failed to avert the threatened shutdown of steel production, the President issued the following Executive Order:


“Whereas on December 16, 1950, I proclaimed the existence of a national emergency which requires that the military, naval, air, and civilian defenses of **932 this country be strengthened as speedily as possible to the end that we may be able to repel any and all threats against our national security and to fulfill our responsibilities in the efforts being made throughout the United Nations and otherwise to bring about a lasting peace; and


‘Whereas American fighting men and fighting men of other nations of the United Nations are now engaged in deadly combat with the forces of aggression in Korea, and forces of the United States are stationed elsewhere overseas for the purpose of participating in the defense of the Atlantic Community against ag-gression; and


‘Whereas the weapons and other materials needed by our armed forces and by those joined with us in the defense of the free world are produced to a great ex-tent in this country, and steel is an indispensable component of substantially all of such weapons and materials; and


*674 ‘Whereas steel is likewise indispensable to the carrying out of programs of the Atomic Energy Commission of vital importance to our defense ef-forts; and


‘Whereas a continuing and uninterrupted supply of steel is also indispensable to the maintenance of the economy of the United States, upon which our mili-tary strength depends; and


‘Whereas a controversy has arisen between certain companies in the United States producing and fabri-cating steel and the elements thereof and certain of their workers represented by the United Steel Work-ers of America, CIO, regarding terms and conditions of employment; and


‘Whereas the controversy has not been settled through the processes of collective bargaining or through the efforts of the Government, including those of the Wage Stabilization Board, to which the controversy was referred on December 22, 1951, pur-suant to Executive Order No. 10233, and a strike has been called for 12:01 A.M., April 9, 1952; and


‘Whereas a work stoppage would immediately jeop-ardize and imperil our national defense and the de-fense 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 the field; and


‘Whereas in order to assure the continued availability of steel and steel products during the existing emer-gency, it is necessary that the United States take pos-session of and operate the plants, facilities, and other property of the said companies as hereinafter pro-vided:


‘Now, Therefore, by virtue of the authority vested in me by the Constitution and laws of the *675 United States, and as President of the United States and Commander in Chief of the armed forces of the United States, it is hereby ordered as follows:


‘1. The Secretary of Commerce is hereby authorized and directed to take possession of all or such of the plants, facilities, and other property of the companies named in the list attached hereto, or any part thereof, as he may deem necessary in the interests of national defense; and to operate or to arrange for the operation thereof and to do all things necessary for, or inciden-tal to, such operation * * *.”FN22


FN22. Exec.Order 10340, 17 Fed.Reg. 3139 (1952).


The next morning, April 9, 1952, the President 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 **933 place in connection with the management-labor dispute in the steel indus-try. These events culminated in the action which was taken last night to provide for temporary operation of the steel mills by the Government.


‘I took this action with the utmost reluctance. The idea of Government operation of the steel mills is thoroughly distasteful to me and I want to see it ended as soon as possible. However, in the situation which confronted me yesterday, I felt that I could make no other choice. The other alternatives ap-peared to be even worse-so much worse that I could not accept them.


‘One alternative would have been to permit a shut-down in the steel industry. The effects of such a shut-down would have been so immediate and damaging with respect to our efforts to support our Armed Forces and to protect our national security that it made this alternative unthinkable.


*676 ‘The only way that I know of, other than Gov-ernment operation, by which a steel shut-down could have been avoided was to grant the demands of the steel industry for a large price increase. I believed and the officials in charge of our stabilization agen-cies believed that this would have wrecked our stabi-lization program. I was unwilling to accept the incal-culable damage which might be done to our country by following such a course.


‘Accordingly, it was my judgment that Government operation of the steel mills for a temporary period was the least undesirable of the courses of action which lay open. In the circumstances, I believed it to be, and now believe it to be, my duty and within my powers as President to follow that course of action.


‘It may be that the Congress will deem some other course to be wiser. It may be that the Congress will feel we should give in to the demands of the steel industry for an exorbitant price increase and take the consequences so far as resulting inflation is con-cerned.


‘It may be that the Congress will feel the Government should try to force the steel workers to continue to work for the steel companies for another long period, without a contract, even though the steel workers have already voluntarily remained at work without a contract for 100 days in an effort to reach an orderly settlement of their differences with management.


‘It may even be that the Congress will feel that we should permit a shutdown of the steel industry, al-though that would immediately endanger the safety of our fighting forces abroad and weaken the whole structure of our national security.


*677 ‘I do not believe the Congress will favor any of these courses of action, but that is a matter for the Congress to determine.


‘It may be, on the other hand, that the Congress will wish to pass legislation establishing specific terms and conditions with reference to the operation of the steel mills by the Government. Sound legislation of this character might be very desirable.


‘On the basis of the facts that are known to me at this time, I do not believe that immediate congressional action is essential; but I would, of course, be glad to cooperate in developing any legislative proposals which the Congress may wish to consider.


‘If the Congress does not deem it necessary to act at this time, I shall continue to do all that is within my power to keep the steel industry operating and at the same time make every effort to bring about a settle-ment of the dispute so the mills can be returned to their private owners as soon as possible.”FN23


FN23. Cong.Rec., April 9, 1952, pp. 3962-3963.


**934 Twelve days passed without action by Con-gress. On April 21, 1952, the President sent a letter to the President of the Senate in which he again de-scribed the purpose and need for his action and again stated his position that “The Congress can, if it wishes, reject the course of action I have followed in this matter.”FN24 Congress has not so acted to this date.


FN24. Cong.Rec., April 21, 1952, p. 4192.


Meanwhile, plaintiffs instituted this action in the Dis-trict Court to compel defendant to return possession of the steel mills seized under Executive Order 10340. In this litigation for return of plaintiffs’ prop-erties, we assume that defendant Charles Sawyer is not immune from judicial restraint and that plaintiffs are entitled to equitable relief if we find that the Ex-ecutive Order *678 under which defendant acts is unconstitutional. We also assume without deciding that the courts may go behind a President’sfinding of fact that an emergency exists. But there is not the slightest basis for suggesting that the President’s find-ing in this case can be undermined. Plaintiffs moved for a preliminary injunction before answer or hearing. Defendant opposed the motion, filing uncontroverted affidavits of Government officials describing the facts underlying the President’s order.


Secretary of Defense Lovett swore that “a work stop-page in the steel industry will result immediately in serious curtailment of production of essential weap-ons and munitions of all kinds.” He illustrated by showing that 84% of the national production of cer-tain alloy steel is currently used for production of military-end items and that 35% of total production of another form of steel goes into ammunition, 80% of such ammunition now going to Korea. The Secre-tary of Defense stated that: “We are holding the line (in Korea) with ammunition and not with the lives of our troops.”


Affidavits of the Chairman of the Atomic Energy Commission, the Secretary of the Interior, defendant as Secretary of Commerce, and the Administrators of the Defense Production Administration, the National Production Authority, the General Services Admini-stration and the Defense Transport Administration were also filed in the District Court. These affidavits disclose an enormous demand for steel in such vital defense programs as the expansion of facilities in atomic energy, petroleum, power, transportation and industrial production, including steel production. Those charged with administering allocations and priorities swore to the vital part steel production plays in our economy. The affidavits emphasize the critical need for steel in our defense program, *679 the absence of appreciable inventories of steel, and the drastic results of any interruption in steel produc-tion.


One is not here called upon even to consider the pos-sibility of executive seizure of a farm, a corner gro-cery store or even a single industrial plant. Such con-siderations arise only when one ignores the central fact of this case-that the Nation’s entire basic steel production would have shut down completely if there had been no Government seizure. Even ignoring for the moment whatever confidential information the President may possess as “the Nation’s organ for for-eign affairs,”FN25 the uncontroverted affidavits in this record amply support the finding that “a work stop-page would immediately jeopardize and imperil our national defense.”


FN25. Chicago & Southern Air Lines v. Waterman S.S. Corp., 1948, 333 U.S. 103, 111, 68 S.Ct. 431, 436, 92 L.Ed. 568, and cases cited.


Plaintiffs do not remotely suggest any basis for re-jecting the President’s finding that any stoppage of steel production would immediately place the Nation in peril. Moreover, even self-generated doubts that any stoppage of steel production constitutes an emer-gency are of little comfort here. The Union and the plaintiffs bargained for 6 months with over 100 is-sues in dispute-issues not limited to wage demands but including**935 the union shop and other matters of principle between the parties. At the time of sei-zure there was not, and there is not now, the slightest evidence to justify the belief that any strike will be of short duration. The Union and the steel companies may well engage in a lengthy struggle. Plaintiff’s counsel tells us that ‘sooner or later’ the mills will operate again. That May satisfy the steel companies and, perhaps, the Union. But our soldiers and our allies will hardly be cheered with the assurance that the ammunition upon which their lives depend will be forthcoming-‘sooner or later,’ or, in other words, ‘too little and too late.’


*680 Accordingly, if the President has any power under the Constitution to meet a critical situation in the absence of express statutory authorization, there is no basis whatever for criticizing the exercise of such power in this case.




The steel mills were seized for a public use. The power of eminent domain, invoked in that case, is an essential attribute of sovereignty and has long been recognized as a power of the Federal Government. Kohl v. United States, 1876, 91 U.S. 367, 23 L.Ed. 449. Plaintiffs cannot complain that any provision in the Constitution prohibits the exercise of the power of eminent domain in this case. The Fifth Amend-ment provides: “nor shall private property be taken for public use, without just compensation.” It is no bar to this seizure for, if the taking is not otherwise unlawful, plaintiffs are assured of receiving the re-quired just compensation. United States v. Pewee Coal Co., 1951, 341 U.S. 114, 71 S.Ct. 670, 95 L.Ed. 809.


Admitting that the Government could seize the mills, plaintiffs claim that the implied power of eminent domain can be exercised only under an Act of Con-gress; under no circumstances, they say, can that power be exercised by the President unless he can point to an express provision in enabling legislation. This was the view adopted by the District Judge when he granted the preliminary injunction. Without an answer, without hearing evidence, he determined the issue on the basis of his “fixed conclusion * * * that defendant’s acts are illegal” because the Presi-dent’s only course in the face of an emergency is to present the matter to Congress and await the final passage of legislation which will enable the Govern-ment to cope with threatened disaster.


Under this view, the President is left powerless at the very moment when the need for action may be most pressing and when no one, other than he, is immedi-ately *681 capable of action. Under this view, he is left powerless because a power not expressly given to Congress is nevertheless found to rest exclusively with Congress.


Consideration of this view of executive impotence calls for further examination of the nature of the separation of powers under our tripartite system of Government.


The Constitution provides:


Art. I,


“Section 1. “All legislative Powers herein granted shall be vested in a Congress of the United States, * * *.”


Art. II,


Section 1. “The executive Power shall be vested in a President of the United States of America. * * *.”


Section 2. “The President shall be Commander in Chief of the Army and Navy of the United States, * * *”


“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; * * *.”


Section 3. “He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; * * * he shall take Care that the Laws be faithfully executed, * * *.’


**936 Art. III,


Section 1. “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.””


The whole of the ‘executive Power’ is vested in the President. Before entering office, the President swears that he “will faithfully execute the Office of President of the *682 United States, and will to the best of (his) Ability, preserve, protect and defend the Constitution of the United States.” Art. II, s 1.


This comprehensive grant of the executive power to a single person was bestowed soon after the country had thrown the yoke of monarchy. Only by instilling initiative and vigor in all of the three departments of Government, declared Madison, could tyranny in any from be avoided.FN26 Hamilton added: “Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attack; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and highhanded combinations which sometimes interrupt the ordinary course of justice; to the security of lib-erty against the enterprises and assaults of ambition, of faction, and of anarchy.”FN27 It is thus apparent that the Presidency was deliberately fashioned as an office of power and independence. Of course, the Framers created no autocrat capable of arrogating any power unto himself at any time. But neither did they create an automaton impotent to exercise the powers of Government at a time when the survival of the Republic itself may be at stake.


FN26. The Federalist, No. XLVIII.


FN27. The Federalist, No. LXX.


In passing upon the grave constitutional question presented in this case, we must never forget, as Chief Justice Marshall admonished, that the Constitution is “intended to endure for ages to come, and conse-quently, to be adapted to the various crises of human affairs,” and that “(i)ts means are adequate to its ends.”FN28 Cases do arise presenting questions which could not have been foreseen by the Framers. In such cases, the Constitution has been treated as a living document adaptable to new situations. [FN29] *683 But we are not called upon today to expand the Con-stitution to meet a new situation. For, in this case, we need only look to history and time-honored principles of constitutional law-principles that have been ap-plied consistently by all branches of the Government throughout our history. It is those who assert the in-validity of the Executive Order who seek to amend the Constitution in this case.


FN28. McCulloch v. State of Maryland, 1819, 4 Wheat. 316, 415, 424, 4 L.Ed. 579.


FN29. United States v. Classic, 1941, 313 U.S. 299, 315-316, 1037-1038, 61 S.Ct. 1031, 85 L.Ed. 1368; Home Building & Loan Ass’n v. Blaisdell, 1934, 290 U.S. 398, 442-443, 241-242, 54 S.Ct. 231, 78 L.Ed. 413.




A review of executive action demonstrates that our Presidents have on many occasions exhibited the leadership contemplated by the Framers when they made the President Commander in Chief, and im-posed upon him the trust to “take Care that the Laws be faithfully executed.” With or without explicit statutory authorization, Presidents have at such times dealt with national emergencies by acting promptly and resolutely to enforce legislative programs, at least to save those programs until Congress could act. Congress and the courts have responded to such ex-ecutive initiative with consistent approval.


Our first President displayed at once the leadership contemplated by the Framers. When the national revenue laws were openly flouted in some sections of Pennsylvania, President Washington, without waiting for a call from the state government, summoned the militia and took decisive steps **937 to secure the faithful execution of the laws.FN30 When international disputes engendered by the French revolution threat-ened to involve this country in war, and while con-gressional policy remained undertain, Washington issued his Proclamation of Neutrality. Hamilton, whose defense of the Proclamation *684 has endured the test of time, invoked the argument that the Execu-tive has the duty to do that which will preserve peace until Congress acts and, in addition, pointed to the need for keeping the Nation informed of the require-ments of existing laws and treaties as part of the faithful execution of the laws.FN31


FN30. 4 Annals of Congress 1411, 1413 (1794).


FN31. IV Works of Hamilton (Lodge ed. 1904) 432-444.


President John Adams issued a warrant for the arrest of Jonathan Robbins in order to execute the extradi-tion provisions of a treaty. This action was chal-lenged in Congress on the ground that no specific statute prescribed the method to be used in executing the treaty. John Marshall, then a member of the House of Representatives, made the following argu-ment in support of the President’s action:


“The treaty, which is a law, enjoins the performance of a particular object. The person who is to perform this object is marked out by the Constitution, since the person is named who conducts the foreign inter-course, and is to take care that the laws be faithfully executed. The means by which it is to be performed, the force of the nation, are in the hands of this person. Ought not this person to perform the object, although the particular mode of using the means has not been prescribed? Congress, unquestionably may prescribe the mode, and Congress may devolve on others the whole execution of the contract; but, till this be done, it seems the duty of the Executive department to exe-cute the contract by any means it possesses.”FN32


FN32. 10 Annals of Congress 596, 613-614 (1800); also printed in 5 Wheat.App. pp. 3, 27 (1820).


Efforts in Congress to discredit the President for his action failed. FN33 Almost a century later, this Court had *685 occasion to give its express approval to “the masterly and conclusive argument of John Marshall.” FN34


FN33. 10 Annals of Congress 619 (1800).


FN34. Fong Yue Ting v. United States, 1893, 149 U.S. 698, 714, 13 S.Ct. 1016, 1022, 37 L.Ed. 905.


Jefferson’s initiative in the Louisiana Purchase, the Monroe Doctrine, and Jackson’s removal of Govern-ment deposits from the Bank of the United States further serve to demonstrate by deed what the Fram-ers described by word when they vested the whole of the executive power in the President.


Without declaration of war, President Lincoln took energetic action with the outbreak of the War Be-tween the States. He summoned troops and paid them out of the Treasury without appropriation therefor. He proclaimed a naval blockade of the Confederacy and seized ships violating that blockade. Congress, far from denying the validity of these acts, gave them express approval. The most striking action of Presi-dent Lincoln was the Emancipation Proclamation, issued in aid of the successful prosecution of the War Between the States, but wholly without statutory authority.FN35


FN35. See The Prize Cases (the Amy War-wick), 1863, 2 Black 635, 17 L.Ed. 459; Randall, Constitutional Problems Under Lincoln (1926); Corwin, The President: Of-fice and Powers (1948 ed.), 277-281.


In an action furnishing a most apt precedent for this case, President Lincoln without statutory authority directed the seizure of rail and telegraph lines leading to Washington.FN36 Many months later, Congress **938 recognized and confirmed the power of the President to seize railroads and telegraph lines and provided criminal penalties for interference with Government operation. FN37 This Act did not confer on the President any additional powers of seizure. Congress plainly rejected the view that the President’s acts had been without legal sanction until *686 rati-fied by the legislature. Sponsors of the bill declared that its purpose was only to confirm the power which the President already possessed.FN38 Opponents in-sisted a statute authorizing seizure was unnecessary and might even be construed as limiting existing Presidential powers.FN39


FN36. War of the Rebellion, Official Re-cords of the Union and Confederate Armies, Series I, Vol. II, pp. 603-604 (1880).


FN37. 12 Stat. 334 (1862).


FN38. Senator Wade, Cong. Globe, 37th Cong., 2d Sess. 509 (1862); Rep. Blair, id., at 548.


FN39. Senators Browning, Fessenden, Cowan, Grimes, id., at 510, 512, 516, 520.


Other seizures of private property occurred during the War Between the States, just as they had occurred during previous wars.FN40 In United States v. Russell, 1872, 13 Wall. 623, 20 L.Ed. 624, three river steam-ers were seized by Army Quartermasters on the ground of ‘imperative military necessity.’ This Court affirmed an award of compensation, stating:


FN40. In 1818, the House Committee on Military Affairs recommended payment of compensation for vessels seized by the Army during the War of 1812. American State Papers, Claims (1834), 649. Mitchell v. Harmony, 1852, 13 How. 115, 134, 14 L.Ed. 75, involving seizure of a wagon train by an Army officer during the Mexican War, noted that such executive seizure was proper in case of emergency, but affirmed a per-sonal judgment against the officer on the ground that no emergency had been found to exist. The judgment was paid by the United States pursuant to Act of Congress. 10 Stat. 727 (1852).


“ ‘ Extraordinary and unforeseen occasions arise, however, beyond all doubt, in cases of extreme ne-cessity in time of war or of immediate and impending public danger, in which private property may be im-pressed into the public service, or may be seized and appropriated to the public use, or may even be de-stroyed without the consent of the owner.”


“Exigencies of the kind do arise in time of war or impending public danger, but it is the emergency, as was said by a great magistrate, that gives the right, *687 and it is clear that the emergency must be shown to exist before the taking can be justified. Such a justification may be shown, and when shown the rule is well settled that the officer taking private property for such a purpose, if the emergency is fully proved, is not a trespasser, and that the government is bound to make full compensation to the owner.”FN41”


FN41. 13 Wall. at pages 627-628. Such a compensable taking was soon distinguished from the noncompensable taking and de-struction of property during the extreme exi-gencies of a military campaign. United States v. Pacific R. Co., 1887, 120 U.S. 227, 7 S.Ct. 490, 30 L.Ed. 634.


“(The President) is enabled to fulfill the duty of his great department, expressed in the phrase that “he shall take care that the laws be faithfully executed.”


‘Is this duty limited to the enforcement of acts of Congress or of treaties of the United States according to their express terms, or does it include the rights, duties and obligations growing out of the Constitu-tion itself, our international relations, and all the **939 protection implied by the nature of the gov-ernment under the Constitution?”FN42


FN42. 135 U.S. at page 64, 10 S.Ct. at page 668.


The latter approach was emphatically adopted by the Court.


President Hayes authorized the widespread use of federal troops during the Railroad Strike of 1877.FN43 President Cleveland also used the troops in the Pull-man Strike *688 of 1895 and his action is of special significance. No statute authorized this action. No call for help had issued from the Governor of Illinois; indeed Governor Altgeld disclaimed the need for supplemental forces. But the President’s concern was that federal laws relating to the free flow of interstate commerce and the mails be continuously and faith-fully executed without interruption.FN44 To further this aim his agents sought and obtained the injunction upheld by this Court in In re Debs, 1895, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092. The Court scruti-nized each of the steps taken by the President to in-sure execution of the ‘mass of legislation’ dealing with commerce and the mails and gave his conduct full approval. Congress likewise took note of this use of Presidential power to forestall apparent obstacles to the faithful execution of the laws. By separate resolutions, both the Senate and the House com-mended the Executive’s action.FN45


FN43. Rich, The President and Civil Disor-ders (1941), 72-86.


FN44. Cleveland, The Government in the Chicago Strike of 1894 (1913).


FN45. 26 Cong.Rec. 7281-7284, 7544-7546 (1894).


President Theodore Roosevelt seriously contemplated seizure of Pennsylvania coal mines if a coal shortage necessitated such action.FN46 In his autobiography, President Roosevelt expounded the ‘Stewardship Theory’ of Presidential power, stating that “the ex-ecutive is subject only to the people, and, under the Constitution, bound to serve the people affirmatively in cases where the Constitution does not explicitly forbid him to render the service.” FN47 Because the contemplated seizure of the coal mines was based on this theory, then ex-President Taft criticized President Roosevelt in a passage in his book relied upon by the District Court in this case. Taft, Our Chief Magistrate and His Powers (1915), 139-147. In the same book, however, President Taft agreed that *689 such pow-ers of the President as the duty “to take care that the laws be faithfully executed” could not be confined to ‘express Congressional statutes.’ In re Neagle, supra, and In re Debs, supra, were cited as conforming with Taft’s concept of the office, id., at pp. 88-94, as they were later to be cited with approval in his opinion as Chief Justice in Myers v. United States, 1926, 272 U.S. 52, 133, 47 S.Ct. 21, 31, 71 L.Ed. 160. FN48


FN46. Theodore Roosevelt, Autobiography (1916 ed.), 479-491.


FN47. Id., at 378.


FN48. Humphrey’s Executor v. United States, 1935, 295 U.S. 602, 626, 55 S.Ct. 869, 873, 79 L.Ed. 1611, disapproved ex-pressions in the Myers opinion only to the extent that they related to the President’s power to remove members of quasi-legislative and judicial commissions as con-strasted with executive employees.


In 1909, President Taft was informed that govern-ment owned oil lands were being patented by private parties at such a rate that public oil lands would be depleted in a matter of months. Although Congress had explicitly provided that these lands were open to purchase by United States citizens, 29 Stat. 526 (1897), the President nevertheless ordered the lands withdrawn from sale “(i)n aid of proposed legisla-tion.” In United States v. Midwest Oil Co., 1915, 236 U.S. 459, 35 S.Ct. 309, 59 L.Ed. 673, the President’s action was sustained as consistent with executive practice throughout our history. An excellent brief was filed in the case by the Solicitor General, Mr. John W. Davis, together with Assistant Attorney General Knaebel, later Reporter for this Court. In this brief, the situation confronting President Taft was described as “an emergency; there was no time to wait for the action of Congress.” **940 The brief then discusses the powers of the President under the Constitution in such a case:


“Ours is a self-sufficient Government within its sphere. (Ex parte Siebold, 100 U.S. 371, 395 (25 L.Ed. 717); In re Debs, 158 U.S. 564, 578 (15 S.Ct. 900, 39 L.Ed. 1092).) “Its means are adequate to its ends” ( McCulloch v. (State of) Maryland, 4 Wheat. 316, 424 (4 L.Ed. 579)), *690 and it is rational to assume that its active forces will be found equal in most things to the emergencies that confront it. While perfect flexibility is not to be expected in a Govern-ment of divided powers, and while division of power is one of the principal features of the Constitution, it is the plain duty of those who are called upon to draw the dividing lines to ascertain the essential, recognize the practical, and avoid a slavish formalism which can only serve to ossify the Government and reduce its efficiency without any compensating good. The function of making laws is peculiar to Congress, and the Executive can not exercise that function to any degree. But this is not to say that all of the subjects concerning which laws might be made are perforce removed from the possibility of Executive influence. The Executive may act upon things and upon men in many relations which have not, though they might have, been actually regulated by Congress. In other words, just as there are fields which are peculiar to Congress and fields which are peculiar to the Execu-tive, so there are fields which are common to both, in the sense that the Executive may move within them until they shall have been occupied by legislative action. These are not the fields of legislative preroga-tive, but fields within which the lawmaking power may enter and dominate whenever it chooses. This situation results from the fact that the President is the active agent, not of Congress, but of the Nation. As such he performs the duties which the Constitution lays upon him immediately, and as such, also, he executes the laws and regulations adopted by Con-gress. He is the agent of the people of the United States, deriving all his powers from them and respon-sible directly to them. In no *691 sense is he the agent of Congress. He obeys and executes the laws of Congress, not because Congress is enthroned in authority over him, but because the Constitution di-rects him to do so.


‘Therefore it follows that in ways short of making laws or disobeying them, the Executive may be under a grave constitutional duty to act for the national pro-tection in situations not covered by the acts of Con-gress, and in which, even, it may not be said that his action is the direct expression of any particular one of the independent powers which are granted to him specifically by the Constitution. Instances wherein the President has felt and fulfilled such a duty have not been rare in our history, though, being for the public benefit and approved by all, his acts have sel-dom been challenged in the courts. We are able, however, to present a number of apposite cases which were subjected to judicial inquiry.”


The brief then quotes from such cases as In re Debs, supra, and In re Neagle, supra, and continues:
“As we understand the doctrine of the Neagle case, and the cases therein cited, it is clearly this: The Ex-ecutive is authorized to exert the power of the United States when he finds this necessary for the protection of the agencies, the instrumentalities, or the property of the Government. This does not mean an authority to disregard the wishes of Congress on the subject, when that subject lies within its control and when those wishes have been expressed, and it certainly does not involve the slightest semblance of a power to legislate, much less to ‘suspend’**941 legislation already passed by Congress. It involves the perform-ance of specific acts, not of a *692 legislative but purely of an executive character-acts which are not in themselves laws, but which presuppose a ‘law’ authorizing him to perform them. This law is not ex-pressed, either in the Constitution or in the enact-ments of Congress, but reason and necessity compel that it be implied from the exigencies of the situation.


‘In none of the cases which we have mentioned, nor in the cases cited in the extracts taken from the Nea-gle case, was it possible to say that the action of the President was directed, expressly or impliedly, by Congress. The situations dealt with had never been covered by any act of Congress, and there was no ground whatever for a contention that the possibility of their occurrence had ever been specifically consid-ered by the legislative mind. In none of those cases did the action of the President amount merely to the execution of some specific law.


‘Neither does any of them stand apart in principle from the case at bar, as involving the exercise of spe-cific constitutional powers of the President in a de-gree in which this case does not involve them. Taken collectively, the provisions of the Constitution which designate the President as the official who must rep-resent us in foreign relations, in commanding the Army and Navy, in keeping Congress informed of the state of the Union, in insuring the faithful execution of the laws and in recommending new ones, consid-ered in connection with the sweeping declaration that the executive power shall be vested in him, com-pletely demonstrate that his is the watchful eye, the active hand, the overseeing dynamic force of the United States.”FN49


FN49. Brief for the United States, No. 278, October Term, 1914, pp. 11, 75-77, 88-90.


*693 This brief is valuable not alone because of the caliber of its authors but because it lays bare in suc-cinct reasoning the basis of the executive practice which this Court approved in the Midwest Oil case.


During World War I, President Wilson established a War Labor Board without awaiting specific direction by Congress.FN50 With William Howard Taft and Frank P. Walsh as co-chairmen, the Board had as its purpose the prevention of strikes and lockouts inter-fering with the production of goods needed to meet the emergency. Effectiveness of War Labor Board decision was accomplished by Presidental action, including seizure of industrial plants.FN51 Seizure of the Nation’s railroads was also ordered by President Wilson. FN52


FN50. National War Labor Board. Bureau of Labor Statistics, Bull. 287 (1921).


FN51. Id., at 24-25, 32-34. See also, 2 Offi-cial 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.


FN52. 39 Stat. 619, 645 (1916), 10 U.S.C.A. s 1361, provides that the President may take possession of any system of transportation in time of war. Following seizure of the rail-roads by President Wilson, Congress en-acted detailed legislation regulating the mode of federal control. 40 Stat. 451 (1918).


When Congress was considering the statute authorizing the President to seize communi-cations systems whenever he deemed such action necessary during the war, 40 Stat. 904 (1918), 47 U.S.C.A. s 63 note, Senator (later President) Harding opposed on the ground that there was no need for such stand-by powers because, in event of a present neces-sity, the Chief Excutive ‘ought to’ seize communications lines, “else he would be un-faithful to his duties as such Chief Execu-tive.” 56 Cong.Rec. 9064 (1918).


Beginning with the Bank Holiday ProclamationFN53 and continuing through World War II, executive leadership and intiative were characteristic of Presi-dent **942 Franklin D. Roosevelt’s administration. In 1939, upon the outbreak *694 of war in Europe, the President proclaimed a limited national emergency for the purpose of strengthening our national de-fense.FN54 By May of 1941, the danger from the Axis belligerents having become clear, the President pro-claimed ‘an unlimited national emergency’ calling for mobilization of the Nation’s defenses to repel ag-gression.FN55 The President took the initiative in strengthening our defenses by acquiring rights from the British Government to establish air bases in ex-change for overage destroyers.FN56


FN53. 48 Stat. 1689 (1933).


FN54. 54 Stat. 2643 (1939).


FN55. 55 Stat. 1647 (1941).


FN56. 86 Cong.Rec. 11354 (1940) (Message of the President). See 39 Ops.Atty.Gen. 484 (1940). Attorney General Jackson’s opinion did not extend to the transfer of ‘Mosquito boats’ solely because an express statutory prohibition on transfer was applicable.


In 1941, President Roosevelt acted to protect Iceland from attack by Axis powers when British forces were withdrawn by sending our forces to occupy Iceland. Congress was informed of this action on the same day that our forces reached Iceland.FN57 The occupa-tion of Iceland was but one of ‘at least 125 incidents’ in our history in which Presidents, “without Con-gressinal authorization, and in the absence of a decla-ration of war, (have) ordered the Armed Forces to take action or maintain positions abroad.”FN58


FN57. 87 Cong.Rec. 5868 (1941) (Message of the President).


FN58. Powers of the President to Send the Armed Forces Outside the United States, Report prepared by executive department for use of joint committee of Senate Commit-tees on Foreign Relations and Armed Serv-ices, 82d Cong., 1st Sess., Committee Print 2 (1951).


Some six months before Pearl Harbor, a dispute at a single aviation plant at Inglewood, California, inter-rupted a segment of the production of military air-craft. In spite of the comparative insignificance of this work stoppage to total defense production as contrasted with the complete paralysis now threat-ened by a shutdown of the entire basic steel industry, and even though *695 our armed forces were not then engaged in combat, President Roosevelt ordered the seizure of the plant “pursuant to the powers vested in (him) by the Constitution and laws of the United States, as President of the United States of America and Commander in Chief of the Army and Navy of the United States.” FN59 The Attorney General (Jack-son) vigorously proclaimed that the President had the moral duty to keep this Nation’s defense effort a ‘go-ing concern.’ His ringing moral justification was coupled with a legal justification equally well stated:


FN59. Exec. Order 8773, 6 Fed.Reg. 2777 (1941).


“The Presidential proclamation rests upon the aggre-gate of the Presidential powers derived from the Con-stitution itself and from statutes enacted by the Con-gress.


‘The Constitution lays upon the President the duty “to take care that the laws be faithfully executed.” Among the laws which he is required to find means to execute are those which direct him to equip an enlarged army, to provide for a strengthened navy, to protect Government property, to protect those who are engaged in carrying out the business of the Gov-ernment, and to carry out the provisions of the Lend-Lease Act (22 U.S.C.A. s 411 et seq.). For the faith-ful execution of such laws the President has back of him not only each general law-enforcement power conferred by the various acts of Congress but the aggregate of all such laws plus that wide discretion as to method vested in him by the Constitution for the purpose of executing the laws.


‘The Constititution also places on the President the responsibility and vests in him the powers of Com-mander in **943 Chief of the Army and of the Navy. These weapons for the protection of the continued existence of the Nation are placed in his sole com-mand*696 and the implication is clear that he should not allow them to become paralyzed by failure to obtain supplies for which Congress has appropriated the money and which it has directed the President to obtain.” FN60


FN60. See 89 Cong.Rec. 3992 (1943). The Attorney General also noted that the dispute at North American Aviation was Communist inspired and more nearly resembled an in-surrection than a labor strike. The relative size of North American Aviation and the impact of an interruption in production upon our defense effort were not described.


At this time, Senator Connally proposed amending the Selective Service and Training Act to authorize the President to seize any plant where an interruption of production would unduly impede the defense ef-fort.FN61 Proponents of the measure in no way implied that the legislation would add to the powers already possessed by the PresidentFN62 and the amendment was opposed as unnecessary since the President al-ready had the power.FN63 The amendment relating to plant seizures was not approved at that session of Congress.FN64


FN61. 87 Cong.Rec. 4932 (1941). See also S. 1600 and S. 2054, 77th Cong., 1st Sess. (1941).


FN62. Reps. May, Whittington; 87 Cong.Rec. 5895, 5972 (1941).


FN63. Reps. Dworshak, Feddis, Harter, Dirksen, Hook; 87 Cong.Rec. 5901, 5910, 5974, 5975 (1941).


FN64. The plant seizure amendment passed the Senate, but was rejected in the House af-ter a Conference Committee adopted the amendment. 87 Cong.Rec. 6424 (1941).


Meanwhile, and also prior to Pearl Harbor, the Presi-dent ordered the seizure of a shipbuilding company and an aircraft parts plant.FN65 Following the declara-tion of war, but prior to the Smith-Connally Act of 1943, five additional industrial concerns were seized to avert interruption*697 of needed production.FN66 During the same period, the President directed sei-zure of the Nation’s coal mines to remove an obstruc-tion to the effective prosecution of the war.FN67


FN65. Exec. Order 8868, 6 Fed.Reg. 4349 (1941); Exec. Order 8928, 6 Fed.Reg. 5559 (1941).


FN66. Exec. Order 9141, 7 Fed.Reg. 2961 (1942); Exec. Order 9220, 7 Fed.Reg. 6413 (1942); Exec. Order 9225, 7 Fed.Reg. 6627 (1942); Exec. Order 9254, 7 Fed.Reg. 8333 (1942); Exec. Order 9351, 8 Fed.Reg. 8097 (1943).


FN67. Exec. Order 9340, 8 Fed.Reg. 5695 (1943).


The procedures adopted by President Roosevelt closely resembled the methods employed by Presi-dent Wilson. A National War Labor Board, like its predecessor of World War I, was created by Execu-tive Order to deal effectively and fairly with disputes affecting defense production.FN68 Seizures were con-sidered necessary, upon disobedience of War Labor Board orders, to assure that the mobilization effort remained a ‘going concern,’ and to enforce the eco-nomic stabilization program.


FN68. Exec. Order 9017, 7 Fed.Reg. 237 (1942); 1 Termination Report of the Na-tional War Labor Board 5-11.


At the time of the seizure of the coal mines, Senator Connally’s bill to provide a statutory basis for sei-zures and for the War Labor Board was again before Congress. As stated by its sponsor, the purpose of the bill was not to augment Presidential power, but to “let the country know that the Congress is squarely behind the President.”FN69 As in the case of the legis-lative recognition of President Lincoln’s power to seize, Congress again recognized that the President already had the necessary power, for there was no intention to ‘ratify’ past actions of doubtful validity. Indeed, **944 when Senator Tydings offered an amendment to the Connally bill expressly to confirm and validate the seizure of the coal mines, sponsors of the bill *698 opposed the amendment as casting doubt on the legality of the seizure and the amend-ment was defeated. FN70 When the Connally bill, S. 796, came before the House, all parts after the enact-ing clause were stricken and a bill introduced by Rep-resentative Smith of Virginia was substituted and passed. This action in the House is significant be-cause the Smith bill did not contain the provisions authorizing seizure by the President but did contain provisions controlling and regulating activities in respect to properties seized by the Government under statute ‘or otherwise.’FN71 After a conference, the sei-zure provisions of the Connally bill, enacted as the Smith-Connally or War Labor Disputes Act of 1943, 57 Stat. 163, were agreed to by the House.


FN69. 89 Cong.Rec. 3807 (1943). Similar views of the President’s existing power were expressed by Senators Lucas, Wheeler, Aus-tin and Barkley. Id., at 3885-3887, 3896, 3992.


FN70. 89 Cong.Rec. 3989-3992 (1943).


FN71. S. 796, 78th Cong., 1st Sess., ss 12, 13 (1943), as passed by the House.


Following passage of the Smith-Connally Act, sei-zures to assure continued production on the basis of terms recommended by the War Labor Board were based upon that Act as well as upon the President’s power under the Constitution and the laws generally. A question did arise as to whether the statutory lan-guage relating to “any plant, mine, or facility equipped for the manufacture, production, or mining of any articles or materials”FN72 authorized the sei-zure of properties of Montgomery Ward & Co., a retail department store and mail order concern. The Attorney General (Biddle) issued an opinion that the President possessed the power to seize Montgomery Ward properties to prevent a work stoppage whether or not the terms of the Smith-Connally Act author-ized such a seizure.FN73 This opinion was in line with *699 the views on Presidential powers maintained by the Attorney General’s predecessors (Murphy FN74 and JacksonFN75) and his successor (ClarkFN76). Accord-ingly, the President ordered seizure of the Chicago properties of Montgomery Ward in April, 1944, when that company refused to obey a War Labor Board order concerning the bargaining represenative of its employees in Chicago.FN77 In Congress, a Select Commitee to Investigate Seizure of the Property of Montgomery Ward & Co., assuming that the terms of the Smith-Connally Act did not cover this seizure, concluded that the seizure “was not only within the Constitutional power but was the plain duty of the President.” FN78 Thereafter, an election determined the bargaining representative for the Chicago em-ployees and the properties were returned to Mont-gomery Ward & Co. In December, 1944, after con-tinued defiance of a series of War Labor Board or-ders, President Roosevelt ordered the seizure of Montgomery Ward properties throughout the coun-try.FN79 The Court of Appeals for the Seventh Circuit upheld this seizure on statutory grounds and also in-dicated its disapproval of a lower court’s denial of seizure power apart from express statute.FN80


FN72. 57 Stat. 163, 164 (1943).


FN73. 40 Ops.Atty.Gen. 312 (1944). See also Hearings before House Select Commit-tee to Investigate Seizure of Montgomery Ward & Co., 78th Cong., 2d Sess. 117-132 (1944).


FN74. 39 Ops.Atty.Gen. 343, 347 (1939).


FN75. Note 60, supra.


FN76. Letter introduced in Hearings before Senate Committee on Labor and Public Wel-fare on S. 249, 81st Cong., 1st Sess. 232 (1949) pointing to the ‘exceedingly great’ powers of the President to deal with emer-gencies even before the Korea crisis.


FN77. Exec. Order 9438, 9 Fed.Reg. 4459 (1944).


FN78. H.R.Rep. No. 1904, 78th Cong., 2d Sess. 25 (1944) (the Committee divided along party lines).


FN79. Exec. Order 9508, 9 Fed.Reg. 15079 (1944).


FN80. United States v. Montgomery Ward & Co., 7 Cir., 1945, 150 F.2d 369, reversing D.C.N.D.Ill.1945, 58 F.Supp. 408. See also Ken-Rad Tube & Lamp Corp. v. Badeau, D.C.W.D. Ky.1944, 55 F.Supp. 193, 197-199, where the court held that a seizure was proper with or without express statutory authorization.


**945 *700 More recently, President Truman acted to repel aggression by employing our armed forces in Korea.FN81 Upon the intervention of the Chinese Communists, the President proclaimed the existence of an unlimited national emergency requiring the speedy build-up of our defense establishment. FN82 Congress responded by providing for increased man-power and weapons for our own armed forces, by increasing military aid under the Mutual Security Program and by enacting economic stabilization measures, as previously described.


FN81. United States Policy in the Korean Crisis (1950), Dept. of State Pub. 3922.


FN82. 15 Fed.Reg. 9029 (1950).


This is but a cursory summary of executive leader-ship. But it amply demonstrates that Presidents have taken prompt action to enforce the laws and protect the country whether or not Congress happened to provide in advance for the particular method of exe-cution. At the minimum, the executive actions re-viewed herein sustain the action of the President in this case. And many of the cited examples of Presi-dential practice go far beyond the extent of power necessary to sustain the President’s order to seize the steel mills. The fact that temporary executive seizures of industrial plants to meet an emergency have not been directly tested in this Court furnishes not the slightest suggestion that such actions have been ille-gal. Rather, the fact that Congress and the courts have consistently recognized and given their support to such executive action indicates that such a power of seizure has been accepted throughout our history.


History bears out the genius of the Founding Fathers, who created a Government subject to law but not left subject to inertia when vigor and initiative are re-quired.


*701 IV.


Focusing now on the situation confronting the Presi-dent on the night of April 8, 1952, we cannot but conclude that the President was performing his duty under the Constitution to “take Care that the Laws be faithfully executed’-a duty described by President Benjamin Harrison as “the central idea of the of-fice.”FN83”


FN83. Harrison, This Country of Ours (1897), 98.


The President reported to Congress the morning after the seizure that he acted because a work stoppage in steel production would immediately imperil the safety of the Nation by preventing execution of the legislative programs for procurement of military equipment. And, while a shutdown could be averted by granting the price concessions requested by plain-tiffs, granting such concessions would disrupt the price stabilization program also enacted by Congress. Rather than fail to execute either legislative program, the President acted to execute both.


Much of the argument in this case has been directed at straw men. We do not now have before us the case of a President acting solely on the basis of his own notions of the public welfare. Nor is there any ques-tion of unlimited executive power in this case. The President himself closed the door to any such claim when he sent his Message to Congress stating his purpose to abide by any action of Congress, whether approving or disapproving his seizure action. Here, the President immediately made sure that Congress was fully informed of the temporary action he had taken only to preserve the legislative programs from destruction until Congress could act.


The absence of a specific statute authorizing seizure of the steel mills as a mode of executing the laws-both the military procurement program and the anti-inflation program-has not until today been thought to prevent 702 the President from executing the laws. Unlike an administrative commission confined to the enforcement of the statute under which it was cre-ated, or the head to a department when administering a particular statute, the *946 President is a constitu-tional officer charged with taking care that a ‘mass of legislation’ be executed. Flexibility as to mode of execution to meet critical situations is a matter of practical necessity. This practical construction of the ‘Take Care’ clause, advocated by John Marshall, was adopted by this Court in In re Neagle, In re Debs and other cases cited supra. See also Ex parte Quirin, 1942, 317 U.S. 1, 26, 63 S.Ct. 2, 10, 87 L.Ed. 3. Al-though more restrictive views of executive power, advocated in dissenting opinions of Justices Holmes, McReynolds and Brandeis, were emphatically re-jected by this Court in Myers v. United States, supra, members of today’s majority treat these dissenting views as authoritative.


There is no statute prohibiting seizure as a method of enforcing legislative programs. Congress has in no wise indicated that its legislation is not to be executed by the taking of private property (subject of course to the payment of just compensation) if its legislation cannot otherwise be executed. Indeed, the Universal Military Training and Service Act authorizes the sei-zure of any plant that fails to fill a Government con-tractFN84 or the properties of any steel producer that fails to allocate steel as directed for defense produc-tion. FN85 And the Defense Production Act authorizes the President to requisition equipment and condemn real property needed without delay in the defense effort. FN86 Where Congress authorizes seizure in instances not necessarily crucial to the defense *703 program, it can hardly be said to have disclosed an intention to prohibit seizures where essential to the execution of that legislative program.


FN84. 62 Stat. 604, 626 (1948), 50 U.S.C.App. (Supp. IV) s 468©, 50 U.S.C.A.Appendix, s 468©.


FN85. 62 Stat. 604, 627 (1948), 50 U.S.C.App. (Supp. IV) s 468(h)(1), 50 U.S.C.A.Appendix, s 468(h)(1).


FN86. Tit. II, 64 Stat. 798 (1950), as amended 65 Stat. 138 (1951), 50 U.S.C.A.Appendix, s 2081.


Whatever the extent of Presidential power on more tranquil occasions, and whatever the right of the President to execute legislative programs as he sees fit without reporting the mode of execution to Con-gress, the single Presidential purpose disclosed on this record is to faithfully execute the laws by acting in an emergency to maintain the status quo, thereby preventing collapse of the legislative programs until Congress could act. The President’s action served the same purposes as a judicial stay entered to maintain the status quo in order to preserve the jurisdiction of a court. In his Message to Congress immediately fol-lowing the seizure, the President explained the neces-sity of his action in executing the military procure-ment and anti-inflation legislative programs and ex-pressed his desire to cooperate with any legislative proposals approving, regulating or rejecting the sei-zure of the steel mills. Consequently, there is no evi-dence whatever of any Presidential purpose to defy Congress or act in any way inconsistent with the leg-islative will.


In United States v. Midwest Oil Co., supra, this Court approved executive action where, as here, the Presi-dent acted to preserve an important matter until Con-gress could act-even though his action in that case was contrary to an express statute. In this case, there is no statute prohibiting the action taken by the Presi-dent in a matter not merely important but threatening the very safety of the Nation. Executive inaction in such a situation, courting national disaster, is foreign to the concept of energy and initiative in the Execu-tive as created by the Founding Fathers. The Consti-tution was itself “adopted in a period of grave emer-gency. * * * While emergency does not create power, emergency may furnish 704 the occasion for the exercise of power.” FN87 The Framers knew, as we should know in these times of peril, that there is real danger in Executive weakness. There is no cause to fear Executive tyranny so long as the laws *947 of Congress are being faithfully executed. Certainly there is no basis for fear of dictatorship when the Executive acts, as he did in this case, only to save the situation until Congress could act.


FN87. Home Building & Loan Ass’n v. Blaisdell, 1934, 290 U.S. 398, 425-426, 54 S.Ct. 231, 235, 78 L.Ed. 413.




Plaintiffs place their primary emphasis on the Labor Management Relations Act of 1947, hereinafter re-ferred to as the Taft-Hartley Act, but do not contend that that Act contains any provision prohibiting sei-zure.


Under the Taft-Hartley Act, as under the Wagner Act, collective bargaining and the right to strike are at the heart of our national labor policy. Taft-Hartley preserves the right to strike in any emergency, how-ever serious, subject only to an 80-day delay in cases of strikes imperiling the national health and safety.FN88 In such a case, the President may appoint a board of inquiry to report the facts of the labor dis-pute. Upon receiving that report, the President may direct the Attorney General to petition a District Court to enjoin the strike. If the injunction is granted, it may continue in effect for no more than 80 days, during which time the board of inquiry makes further report and efforts are made to settle the dispute. When the injunction is dissolved, the President is directed to submit a report to Congress together with his recommendations.FN89


FN88. See Amalgamated Ass’n of Street, Electric Railway & Motor Coach Employees v. Wisconsin Board, 1951, 340 U.S. 383, 71 S.Ct. 359, 95 L.Ed. 364.


FN89. ss 206-210, Labor Management Rela-tions Act of 1947. 29 U.S.C. (Supp. IV) ss 176-180, 29 U.S.C.A. ss 176-180.


Enacted after World War II, Taft-Hartley restricts the right to strike against private employers only to a limited*705 extent and for the sole purpose of afford-ing an additional period of time within which to settle the dispute. Taft-Hartley in no way curbs strikes be-fore an injunction can be obtained and after an 80-day injunction is dissolved.


Plaintiffs admit that the emergency procedures of Taft-Hartley are not mandatory. Nevertheless, plain-tiffs apparently argue that, since Congress did pro-vide the 80-day injunction method for dealing with emergency strikes, the President cannot claim that an emergency exists until the procedures of Taft-Hartley have been exhausted. This argument was not the ba-sis of the District Court’s opinion and, whatever merit the argument might have had following the enact-ment of Taft-Hartley, it loses all force when viewed in light of the statutory pattern confronting the Presi-dent in this case.


In Title V of the Defense Production Act of 1950,FN90 Congress stated:


FN90. 64 Stat. 812, 65 Stat. 132 (1950, 1951).


“It is the intent of Congress, in order to provide for effective price and wage stabilization pursuant to title IV of this Act and to maintain uninterrupted produc-tion, that there be effective procedures for the settle-ment of labor disputes affecting national defense.” s 501.
Title V authorized the President to initiate labor-management conferences and to take action appropri-ate to carrying out the recommendations of such con-ferences and the provisions of Title V. s 502. Due regard is to be given to collective bargaining practice and stabilization policies and no action taken is to be inconsistent with Taft-Hartley and other laws. s 503. The purpose of these provisions was to authorize the President “to establish a board, commission or other agency, similar*706 to the War Labor Board of World War II, to carry out the title.”FN91


FN91. H.R.Rep. No. 3042, 81st Cong., 2d Sess. 35 (1950) (Conference Report). See also S.Rep. No. 2250, 81st Cong., 2d Sess. 41 (1950).


The President authorized the Wage Stabilization Board (WSB), which administers the wage stabiliza-tion functions of Title IV of the Defense Production Act, also to deal with labor disputes affecting the defense **948 program. FN92 When extension of the Defense Production Act was before Congress in 1951, the Chairman of the Wage Stabilization Board described in detail the relationship between the Taft-Hartley procedures applicable to labor disputes im-periling the national health and safety and the new WSB dispute procedures especially devised for set-tlement of labor disputes growing out of the needs of the defense program.FN93 Aware that a technique separate from Taft-Hartley had been devised, mem-bers of Congress attempted to divest the WSB of its disputes powers. These attempts were defeated in the House, were not brought to a vote in the Senate and the Defense Production Act was extended through June 30, 1952, without change in the disputes powers of the WSB. FN94 *707 Certainly this legislative crea-tion of a new procedure for dealing with defense dis-putes negatives any notion that Congress intended the earlier and discretionary Taft-Hartley procedure to be an exclusive procedure.


FN92. Exec. Order 10161, 15 Fed.Reg. 6105 (1950), as amended, Exec. Order 10233, 16 Fed.Reg. 3503 (1951), 50 U.S.C.A.Appendix, s 2071 note.


FN93. Hearings before the House Commit-tee on Banking and Currency on Defense Production Act Amendments of 1951, 82d Cong., 1st Sess. 305-306, 312-313 (1951).


FN94. The Lucas Amendment to abolish the disputes function of the WSB was debated at length in the House, the sponsor of the amendment pointing out the similarity of the WSB functions to those of the War Labor Board and noting the seizures that occurred when War Labor Board orders were not obeyed. 97 Cong. 8390-8415. The amend-ment was rejected by a vote of 217 to 113. Id., at 8415. A similar amendment intro-duced in the Senate was withdrawn. 97 Cong.Rec. 7373-7374. The Defense Produc-tion Act was extended without amending Tit. V or otherwise affecting the disputes functions of the WSB. 65 Stat. 132 (1951).


Accordingly, as of December 22, 1951, the President had a choice between alternate procedures for settling the threatened strike in the steel mills: one route cre-ated to deal with peacetime disputes; the other route specially created to deal with disputes growing out of the defense and stabilization program. There is no question of by-passing a statutory procedure because both of the routes available to the President in De-cember were based upon statutory authorization. Both routes were available in the steel dispute. The Union, by refusing to abide by the defense and stabi-lization program, could have forced the President to invoke Taft-Hartley at that time to delay the strike a maximum of 80 days. Instead, the Union agreed to cooperate with the defense program and submit the dispute to the Wage Stabilization Board.


Plaintiffs had no objection whatever at that time to the President’s choice of the WSB route. As a result, the strike was postponed, a WSB panel held hearings and reported the position of the parties and the WSB recommended the terms of a settlement which it found were fair and equitable. Moreover, the WSB performed a function which the board of inquiry con-templated by Taft-Hartley could not have accom-plished when it checked the recommended wage set-tlement against its own wage stabilization regulations issued pursuant to its stabilization functions under Title IV of the Defense Production Act. Thereafter, the parties bargained on the basis of the WSB rec-ommendation.


When the President acted on April 8, he had ex-hausted the procedures for settlement available to him. Taft-Hartley was a route parallel to, not con-nected with, the WSB procedure. The strike had been delayed 99 708 days as contrasted with the maxi-mum delay of 80 days under Taft-Hartley. There had been a hearing on the issues in dispute and bargaining which promised settlement up to the very hour before seizure had broken down. Faced with immediate na-tional peril through stoppage in steel production on the one hand and faced with destruction of the wage and price legislative programs on the other, the Presi-dent took temporary possession of the steel mills as the only course *949 open to him consistent with his duty to take care that the laws be faithfully executed.


Plaintiffs’ property was taken and placed in the pos-session of the Secretary of Commerce to prevent any interruption in steel production. It made no difference whether the stoppage was caused by a union-management dispute over terms and conditions of employment, a union-Government dispute over wage stabilization or a management-Government dispute over price stabilization. The President’s action has thus far been effective, not in settling the dispute, but in saving the various legislative programs at stake from destruction until Congress could act in the mat-ter.




The diversity of views expressed in the six opinions of the majority, the lack of reference to authoritative precedent, the repeated reliance upon prior dissenting opinions, the complete disregard of the uncontro-verted facts showing the gravity of the emergency and the temporary nature of the taking all serve to demonstrate how far afield one must go to affirm the order of the District Court.


The broad executive power granted by Article II to an officer on duty 365 days a year cannot, it is said, be invoked to avert disaster. Instead, the President must confine himself to sending a message to Congress recommending action. Under this messenger-boy concept of *709 the Office, the President cannot even act to preserve legislative programs from destruction so that Congress will have something left to act upon. There is no judicial finding that the executive action was unwarranted because there was in fact no basis for the President’s finding of the existence of an emergencyFN95 for, under this view, the gravity of the emergency and the immediacy of the threatened dis-aster are considered irrelevant as a matter of law.


FN95. Compare Sterling v. Constantin, 1932, 287 U.S. 378, 399-401, 53 S.Ct. 190, 195-196, 77 L.Ed. 375.


Seizure of plaintiffs’ property is not a pleasant under-taking. Similarly unpleasant to a free country are the draft which disrupts the home and military procure-ment which causes economic dislocation and com-pels adoption of price controls, wage stabilization and allocation of materials. The President informed Congress that even a temporary Government opera-tion of plaintiffs’ properties was ‘thoroughly distaste-ful’ to him, but was necessary to prevent immediate paralysis of the mobilization program. Presidents have been in the past, and any man worthy of the Office should be in the future, free to take at least interim action necessary to execute legislative pro-grams essential to survival of the Nation. A sturdy judiciary should not be swayed by the unpleasantness or unpopularity of necessary executive action, but must independently determine for itself whether the President was acting, as required by the Constitution, to “take Care that the Laws be faithfully executed.”


As the District Judge stated, this is no time for ‘tim-orous’ judicial action. But neither is this a time for timorous executive action. Faced with the duty of executing the defense programs which Congress had enacted and the disastrous effects that any stoppage in steel production would have on those programs, the President acted to preserve those programs by seizing the steel mills. *710 There is no question that the possession was other than temporary in character and subject to congressional direction-either approv-ing, disapproving or regulating the manner in which the mills were to be administered and returned to the owners. The President immediately informed Con-gress of his action and clearly stated his intention to abide by the legislative will. No basis for claims of arbitrary action, unlimited powers or dictatorial usur-pation of congressional power appears from the facts of this case. On the contrary, judicial, legislative and executive precedents throughout our history demon-strate that in this case the President acted in full con-formity with his duties under the Constitution. Ac-cordingly, we would reverse the order of the District Court.


U.S. 1952
Youngstown Sheet & Tube Co. v. Sawyer
343 U.S. 579, 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153, 62 Ohio Law Abs. 417, 62 Ohio Law Abs. 473, 47 O.O. 430, 47 O.O. 460, 21 Lab.Cas. P 67,008


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March 31, 2017

"Youngstown Sheet & Tube Co. v. Sawyer"

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