Youngstown Sheet & Tube Co. v. Sawyer

[Justice Black delivered the opinion of the Court. Justices Frankfurter, Douglas, Jackson and Burton each filed concurring opinions; Justice Clark filed an opinion concurring in the judgment; Chief Justice Vinson dissented, joined by Justices Reed and Minton. The syllabus as printed in the United States Reports states no vote tally — it lists the separate opinions and their authors and nothing more. Omitted here are Black’s Part I on ripeness, Executive Order 10340 (printed as an appendix to the opinion of the Court), Burton’s concurrence, and most of the citation apparatus in the separate opinions. What follows is Black nearly entire, Frankfurter and Douglas in substance, Clark in brief, Jackson at length, and a substantially edited Vinson.]

[The facts. In late 1951 a dispute arose between the steel companies and their employees over the terms of new collective bargaining agreements. On December 18, 1951 the United Steelworkers gave notice of an intention to strike when the existing agreements expired on December 31. The Federal Mediation and Conciliation Service intervened without result, and on December 22 the President referred the dispute to the Federal Wage Stabilization Board, established under Executive Order 10233. The Board’s report produced no settlement. On April 4, 1952 the Union gave notice of a nation-wide strike to begin at 12:01 a.m. on April 9. A few hours before the strike was to begin the President issued Executive Order 10340, directing the Secretary of Commerce to take possession of most of the Nation’s steel mills and keep them running; the Secretary issued his own possessory orders, calling on the presidents of the seized companies to serve as operating managers for the United States. The next morning the President sent a message to Congress reporting what he had done. Twelve days later he sent a second message. Congress took no action. The companies, obeying under protest, sued the Secretary, and the District Court on April 30 issued a preliminary injunction restraining him from continuing the seizure. 103 F. Supp. 569. The Court of Appeals stayed the injunction the same day; the Supreme Court granted certiorari on May 3 and heard argument on May 12.]

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

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?

[Opposing the injunction, the United States had asserted that the President possessed “inherent power” to do what he had done — power “supported by the Constitution, by historical precedent, and by court decisions.” Part I, on ripeness, is omitted; the Court held the question ripe because seizure and governmental operation of these going businesses were bound to result in many present and future damages difficult, if not incapable, of measurement.]

II.

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

Moreover, the use of the seizure technique to solve labor disputes in order to prevent work stoppages was not only unauthorized by any congressional enactment; prior to this controversy, Congress had refused to adopt that method of settling labor disputes. When the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency. Apparently it was thought that the technique of seizure, like that of compulsory arbitration, would interfere with the process of collective bargaining. 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, with temporary injunctions in some instances to provide cooling-off periods. All this failing, unions were left free to strike after a secret vote by employees as to whether they wished to accept their employers’ final settlement offer.

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

The order cannot properly be sustained as an exercise of the President’s military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though “theater of war” be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The 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 Constitution in the Government of the United States, or in any Department or Officer thereof.”

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

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

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

The judgment of the District Court is

Affirmed.

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[Justice Frankfurter, concurring. Heavily abridged. He also filed a short note at the foot of the opinion of the Court joining it, while observing that the considerations relevant to enforcing the separation of powers “seem to me more complicated and flexible than may appear from what MR. JUSTICE BLACK has written.” His separate concurrence closes with two appendices — Appendix I, a tabular summary of the statutes conferring seizure power, at 615–619, and Appendix II, a summary of past executive seizures, at 620–628. Neither is in the acquisition, and no part of his argument depends on them.]

[Reporter page 595 did not return in acquisition.]

[Frankfurter reviews the sixteen occasions since 1916 on which Congress specifically provided for executive seizure, each time hedged with limitations and safeguards, and the 1947 rejection of a general seizure power.]

[Reporter page 600 did not return in acquisition. Frankfurter’s text resumes mid-sentence at 601.]

… an impending curtailment of production, was voted down after debate, by a vote of more than three to one.

Congress could not more clearly and emphatically have withheld authority than it did in 1947. It has expressed its will to withhold this power from the President as though it had said so in so many words. 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.”

[Frankfurter rejects the claim that the Defense Production Act of 1950 supplied the authority Congress had withheld in 1947.] Absence of authority in the President to deal with a crisis does not 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.

[Reporter pages 605, 606, 607 and 608 did not return in acquisition. They carry the remainder of Frankfurter’s Defense Production Act analysis.]

The embracing function of the President is that “he shall take Care that the Laws be faithfully executed … .” Art. II, § 3. Its nature has for me been comprehensively indicated by Mr. Justice Holmes: “The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.” Myers v. United States, 272 U. S. 52, 177. But unenumerated powers do not mean undefined powers. The separation of powers built into our Constitution gives essential content to undefined provisions in the frame of our government.

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

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. 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.

Our government was designed to have such restrictions, and the price was deemed not too high in view of the safeguards they afford. I know no more impressive words on this subject than those of Mr. Justice Brandeis:

“The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but,

[The Brandeis quotation breaks off at the foot of reporter page 613. Page 614 — the concluding page of Frankfurter’s opinion, carrying the rest of the quotation and his closing paragraphs — did not return in acquisition, and nothing has been supplied to complete it. Pages 615 through 628, Appendices I and II, likewise did not return. The same Brandeis passage appears complete in Douglas’s concurrence below; Douglas quoting Brandeis is not Frankfurter quoting Brandeis, and the two should not be run together.]

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[Justice Douglas, concurring. Abridged. He joins Black and adds an argument from the Takings Clause: the seizure was a taking, a taking requires compensation, and only Congress can pay.]

There can be no doubt that the emergency which caused the President to seize these steel plants was one that bore heavily on the country. But the emergency did not create power; it merely marked an occasion when power should be exercised. And the fact that it was necessary that measures be taken to keep steel in production does not mean that the President, rather than the Congress, had the constitutional authority to act. The Congress, as well as the President, is trustee of the national welfare. The President can act more quickly than the Congress. All executive power — from the reign of ancient kings to the rule of modern dictators — has the outward appearance of efficiency. Legislative action may indeed often be cumbersome, time-consuming, and apparently inefficient. But as Mr. Justice Brandeis stated in his dissent in Myers v. United States, 272 U. S. 52, 293:

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

We cannot decide this case by determining which branch of government can deal most expeditiously with the present crisis. The answer must depend on the allocation of powers under the Constitution.

The legislative nature of the action taken by the President seems to me to be clear. When the United States takes over an industrial plant to settle a labor controversy, it is condemning property. The seizure of the plant is a taking in the constitutional sense. United States v. Pewee Coal Co., 341 U. S. 114. A permanent taking would amount to the nationalization of the industry. A temporary taking falls short of that goal. But though the seizure is only for a week or a month, the condemnation is complete and the United States must pay compensation for the temporary possession.

The President has no power to raise revenues. That power is in the Congress by Article I, Section 8 of the Constitution. The President might seize and the Congress by subsequent action might ratify the seizure. But until and unless Congress acted, no condemnation would be lawful. The branch of government that has the power to pay compensation for a seizure is the only one able to authorize a seizure or make lawful one that the President has effected. That seems to me to be the necessary result of the condemnation provision in the Fifth Amendment.

We pay a price for our system of checks and balances. Today a kindly President uses the seizure power to effect a wage increase and to keep the steel furnaces in production. Yet tomorrow 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.

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[Justice Jackson, concurring in the judgment and opinion of the Court. The three categories below, and their attached footnotes, are reproduced entire and unabridged; the balance is edited.]

That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety. The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power’s validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.¹

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

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.² In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.³

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject.⁴ Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

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 congressional authorization exists for this seizure. That takes away also the support of the many precedents and declarations which were made in relation, and must be confined, to this category.⁵

Can it then be defended under flexible tests available to the second category? It seems clearly eliminated from that class because Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure. In cases where the purpose is to supply needs of the Government itself, two courses are provided: one, seizure of a plant which fails to comply with obligatory orders placed by the Government;⁶ another, condemnation of facilities, including temporary use under the power of eminent domain.⁷ The third is applicable where it is the general economy of the country that is to be protected rather than exclusive governmental interests.⁸ 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.

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

[Jackson turns to the three clauses in which the Solicitor General finds the power of seizure. Of the first — “The executive Power shall be vested in a President of the United States of America” — the Government’s brief says: “In our view, this clause constitutes a grant of all the executive powers of which the Government is capable.” If that be true, Jackson answers, it is difficult to see why the forefathers bothered to add several specific items, including some trifling ones.]

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 … .” This loose appellation is sometimes advanced as support for any presidential action involving use of force, the idea being that it vests power to do anything, anywhere, that can be done with an army or navy. That seems to be the logic of an argument tendered at our bar — that the President having, on his own responsibility, sent American troops abroad derives from that act “affirmative power” to seize the means of producing a supply of steel for them. Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture.

There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants. Congress has authorized the President to use the army to enforce certain civil rights. On the other hand, Congress has forbidden him to use the army for the pur—

[Reporter page 645 did not return in acquisition. It carries footnotes 13 and 14 of Jackson’s opinion. The three-category framework above is unaffected: it sits at 635–638 and is complete. Jackson’s text resumes mid-sentence at 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. As to the third clause, that “he shall take Care that the Laws be faithfully executed,” that authority must be matched against the words of the Fifth Amendment: 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.

[Jackson closes on the appeal to inherent powers ex necessitate. The forefathers “knew what emergencies were” and “suspected that emergency powers would tend to kindle emergencies”; and modern emergency constitutions teach that such powers are consistent with free government only when their control is lodged elsewhere than in the Executive. Such power, he says, “either has no beginning or it has no end.”]

The executive action we have here originates in the individual will of the President and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.

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

[Justice Burton also concurred, at 655–660: Congress has prescribed for the President specific procedures — the board of inquiry and eighty-day injunction — exclusive of seizure, and the President followed a procedure of his own instead. Omitted here. Reporter page 658, inside Burton’s opinion, did not return in acquisition.]

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[Justice Clark, concurring in the judgment of the Court. He does not join Black’s opinion: he would hold that the President possesses extensive independent authority in a grave emergency, but that it yields where Congress has prescribed a procedure. Abridged.]

One of this Court’s first pronouncements upon the powers of the President under the Constitution was made by Mr. Chief Justice John Marshall some one hundred and fifty years ago. In Little v. Barreme, 2 Cranch 170 (1804), he used this characteristically clear language in discussing the power of the President to instruct the seizure of the Flying Fish, a vessel bound from a French port: “It is by no means clear that the president of the United States whose high duty it is to ‘take care that the laws be faithfully executed,’ and who is commander in chief of the armies and navies of the United States, might not, without any special authority for that purpose, in the then existing state of things, have empowered the officers commanding the armed vessels of the United States, to seize and send into port for adjudication, American vessels which were forfeited by being engaged in this illicit commerce. But when it is observed that [an act of Congress] gives a special authority to seize on the high seas, and limits that authority to the seizure of vessels bound or sailing to a French port, the legislature seem to have prescribed that —

[Reporter page 661 did not return in acquisition. It carries the remainder of the Little v. Barreme quotation and Clark’s discussion of the early cases, together with his footnotes 2, 3 and 4. Clark’s text resumes at 662.]

… Others, such as Theodore Roosevelt, thought the President to be capable, as a “steward” of the people, of exerting all power save that which is specifically prohibited by the Constitution or the Congress. In my view the Constitution does grant to the President extensive authority in times of grave and imperative national emergency. In fact, to my thinking, such a grant may well be necessary to the very existence of the Constitution itself. As Lincoln aptly said, “[is] it possible to lose the nation and yet preserve the Constitution?” In describing this authority I care not whether one calls it “residual,” “inherent,” “moral,” “implied,” “aggregate,” “emergency,” or otherwise.

I conclude that where Congress has laid down specific procedures to deal with the type of crisis confronting the President, he must follow those procedures in meeting the crisis; but that in the absence of such action by Congress, the President’s independent power to act depends upon the gravity of the situation confronting the nation. I cannot sustain the seizure in question because here, as in Little v. Barreme, Congress had prescribed methods to be followed by the President in meeting the emergency at hand.

Three statutory procedures were available: those provided in the Defense Production Act of 1950, the Labor Management Relations Act, and the Selective Service Act of 1948. In this case the President invoked the first of these; he did not invoke the other two.

[Clark then sets out the Taft-Hartley procedures and the seizure authority of the Selective Service Act of 1948. Reporter pages 665 and 666 did not return in acquisition; they carry the rest of that analysis and lead into his closing lines at 667.]

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[Chief Justice Vinson, with whom Justice Reed and Justice Minton join, dissenting. Substantially edited. The dissent runs from 667 to 710 in six parts: the Korean emergency and the steel supply (I); the nature of the executive power (II); a historical catalogue of independent executive action (III); the status-quo argument (IV); the answer on Taft-Hartley (V); and the close (VI).]

The President directed the Secretary of Commerce to take temporary possession of the Nation’s steel mills during the existing emergency because “a work stoppage would immediately jeopardize and imperil our national defense … and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field.” Because we cannot agree that affirmance is proper on any ground, and because of the transcending importance of the questions presented to the powers of the President and of future Presidents to act in time of crisis, we are compelled to register this dissent.

I.

Those who suggest that this is a case involving extraordinary powers should be mindful that these are extraordinary times. For almost two full years, our armed forces have been fighting in Korea, suffering casualties of over 108,000 men. Hostilities have not abated. Congressional support of the action in Korea has been manifested by provisions for increased military manpower and equipment and for economic stabilization. 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. The bulk of the increase is for military equipment and supplies — guns, tanks, ships, planes and ammunition — all of which require steel. Since Korea, the tremendous military demand for steel has far exceeded the increases in productive capacity.

[The President has the duty to execute these legislative programs, and their execution depends upon continued production of steel at stabilized prices. The Board’s report of March 20, 1952 was acceptable to the Union but rejected by plaintiffs, and bargaining broke down on the evening of April 8. Secretary of Defense Lovett swore that a work stoppage “will result immediately in serious curtailment of production of essential weapons and munitions of all kinds,” and that “We are holding the line [in Korea] with ammunition and not with the lives of our troops.” The President then issued Executive Order 10340 and, the next morning, sent this Message to Congress:]

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

[Reporter page 676 did not return in acquisition. It falls inside this block quotation and carries the President’s discussion of the remaining alternatives. The Message resumes at 677.]

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

Twelve days passed without action by Congress. On April 21, 1952, the President wrote to the President of the Senate, again stating that “The Congress can, if it wishes, reject the course of action I have followed in this matter.” Congress has not so acted to this date.

II.

[Vinson answers the argument that because the eminent domain power belongs to Congress the President is powerless.] Hamilton wrote: “Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws … to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.” The Presidency was deliberately fashioned as an office of power and independence. The Framers did not create an automaton impotent to exercise the powers of Government at a time when the survival of the Republic itself may be at stake.

III.

With or without explicit statutory authorization, Presidents have dealt with national emergencies by acting promptly and resolutely to enforce legislative programs, at least to save those programs until Congress could act. Congress and the courts have responded to such executive initiative with consistent approval.

[The catalogue, condensed: Washington summoning the militia in western Pennsylvania and issuing the Proclamation of Neutrality; Adams’s warrant in the Robbins extradition, defended in the House by John Marshall; the Louisiana Purchase; the Monroe Doctrine; Jackson’s removal of the deposits.]

Without declaration of war, President Lincoln summoned troops and paid them out of the Treasury without appropriation therefor. In an action furnishing a most apt precedent for this case, he without statutory authority directed the seizure of rail and telegraph lines leading to Washington. Many months later, Congress recognized and confirmed that power. That Act did not confer on the President any additional powers of seizure; Congress plainly rejected the view that his acts had been without legal sanction until ratified by the legislature.

In United States v. Midwest Oil Co., 236 U. S. 459 (1915), President Taft’s withdrawal of public oil lands from sale, though Congress had opened them to purchase, was sustained as consistent with executive practice. The brief of Solicitor General John W. Davis in that case described the President’s situation as “an emergency; there was no time to wait for the action of Congress,” and went on:

“Ours is a self-sufficient Government within its sphere. (Ex parte Siebold, 100 U. S., 371, 395; In re Debs, 158 U. S., 564, 578.) ‘Its means are adequate to its ends’ (McCulloch v. Maryland, 4 —

[Reporter page 690 did not return in acquisition. It falls inside this quotation from the Davis brief, which resumes at 691.]

“Therefore it follows that in ways short of making laws or disobeying them, the Executive may be under a grave constitutional duty to act for the national protection in situations not covered by the acts of Congress.”

This is but a cursory summary. But it amply demonstrates that Presidents have taken prompt action to enforce the laws and protect the country whether or not Congress happened to provide in advance for the particular method of execution. History bears out the genius of the Founding Fathers, who created a Government subject to law but not left subject to inertia when vigor is required.

IV.

Focusing now on the situation confronting the President on the night of April 8, 1952, we cannot but conclude that he was performing his duty to “take Care that the Laws be faithfully executed” — a duty described by President Benjamin Harrison as “the central idea of the office.” A shutdown could have been averted by granting the price concessions plaintiffs sought, but that would disrupt the price stabilization program also enacted by Congress. Rather than fail to execute either legislative program, the President acted to execute both.

There is no statute prohibiting seizure as a method of enforcing legislative programs. Whatever the extent of Presidential power on more tranquil occasions, 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 preserve the jurisdiction of a court. There is no evidence of any Presidential purpose to defy Congress.

In United States v. Midwest Oil Co., supra, this Court approved executive action where, as here, the President acted to preserve an important matter until Congress could act — even though his action there was contrary to an express statute. Executive inaction in such a situation, courting national disaster, is foreign to the concept of energy and initiative in the Executive as created by the Founding Fathers. There is no cause to fear Executive tyranny so long as the laws of Congress are being faithfully executed, and no basis for fear of dictatorship when the Executive acts, as he did here, only to save the situation until Congress could act.

V.

Plaintiffs place their primary emphasis on the Taft-Hartley Act, but do not contend that that Act contains any provision prohibiting seizure, and they admit that its emergency procedures are not mandatory. They apparently argue that, since Congress did provide the 80-day injunction method for dealing with emergency strikes, the President cannot claim that an emergency exists until those procedures have been exhausted. Whatever merit the argument might have had, it loses all force in light of the statutory pattern confronting the President in this case. In Title V of the Defense Production Act of 1950, Congress declared its intent “that there be effective procedures for the settlement of labor disputes affecting national defense,” and the President accordingly authorized the Wage Stabilization Board to deal with such disputes. Members of Congress, aware that a technique separate from Taft-Hartley had been devised, attempted to divest the Board of its disputes powers; those attempts were defeated in the House and were not brought to a vote in the Senate.

[Reporter page 707 did not return in acquisition. It carries the comparison of the duration of the Wage Stabilization Board proceeding with the Taft-Hartley eighty-day period. Vinson’s text resumes mid-sentence at 708.]

… days as contrasted with the maximum delay of 80 days under Taft-Hartley. Faced with immediate national peril through stoppage in steel production on the one hand, and destruction of the wage and price legislative programs on the other, the President took temporary possession of the steel mills as the only course open to him consistent with his duty to take care that the laws be faithfully executed.

VI.

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 the Office, the President cannot even act to preserve legislative programs from destruction so that Congress will have something left to act upon.

The possession was temporary in character and subject to congressional direction — approving, disapproving or regulating the manner in which the mills were to be administered and returned to the owners. The President immediately informed Congress of his action and clearly stated his intention to abide by the legislative will. Judicial, legislative and executive precedents throughout our history demonstrate that the President acted in full conformity with his duties under the Constitution. Accordingly, we would reverse the order of the District Court.

Notes & Questions

1. Big picture — the opinion of the Court is not the opinion that governs. Black writes for six Justices and his reasoning is severe: the President’s power to issue the seizure order must stem either from an act of Congress or from the Constitution itself, no statute authorized it, and directing that a policy be executed in a manner prescribed by the President is lawmaking, which is Congress’s job. Five of the six who joined him also wrote separately, and several of those concurrences are in substantial tension with his opinion. What the profession has done ever since is apply Justice Jackson’s concurrence. Courts cite it, the Executive Branch’s own lawyers brief it, and it is the framework you will be asked to apply on the examination. That is worth pausing over as a matter of what a “holding” is: an opinion joined by no one else has become the operative law of presidential power, while the opinion of the Court is quoted mainly for its opening sentence. Notice also what the case is not. It is not a case about whether the President may act in an emergency; nobody denied that the strike would have hurt the war effort. It is a case about what happens when the President acts in the face of a Congress that has considered the very power he claims and declined to give it to him. Keep that in view, because it is the fact that puts Truman in Jackson’s third category, and almost every hard modern question is a fight about which category a given action falls into.

2. Raw specific knowledge — the three categories, verbatim, and what each one buys. You must be able to write out Jackson’s framework from memory, in his words, and say what follows in each case. (a) Pursuant to an express or implied authorization of Congress, the President’s authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate; an act so supported is supported by the strongest of presumptions, and a challenger carries a heavy burden. (b) In the absence of either a congressional grant or denial of authority, he can rely only on 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; congressional inertia, indifference or quiescence may sometimes enable, if not invite, measures of independent presidential responsibility. (c) Incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter; courts can sustain exclusive presidential control in such a case only by disabling Congress from acting on the subject. Then the analytic step students skip: Jackson does not say the third category means the President loses. He says the claim must be scrutinized with caution, and that what is at stake is the equilibrium established by our constitutional system. Get the difference between “unlawful” and “scrutinized with caution” right; the entire law of presidential power lives in it.

3. Practical application — categorize four actions, and notice where the fight actually is. For each, place the action in one of Jackson’s three categories, name the statute or silence that puts it there, and say what the President must show. (a) The President orders a military strike on a foreign state without any congressional authorization and without a War Powers Resolution report. (b) The President imposes tariffs under a statute delegating authority to adjust imports that threaten national security. (c) The President directs the Secretary to decline to enforce a statute against a class of persons, where Congress has repeatedly declined to enact legislation exempting that class. (d) The President spends appropriated funds on a purpose Congress specifically denied in the appropriations act. Now the harder half of the exercise: for each one, argue that it belongs in a different category than you first assigned it. The framework’s power and its weakness are the same thing — almost every real dispute is about categorization rather than about consequences, and once you fix the category the answer usually follows. Where does the work of characterizing get done, and who does it? Note that in this case Jackson had to reason his way to the third category by examining three statutory schemes in which Congress had provided for seizure and had not provided for this one.

4. Attack the reasoning — Frankfurter’s gloss, and Vinson’s catalogue. (a) Frankfurter offers a different and in some ways more dangerous idea: that a systematic, unbroken, executive practice, long pursued to the knowledge of Congress and never before questioned, may be treated as a gloss on the executive power vested in the President by Article II. Take that seriously and then test it. If practice can create power, what stops an Executive from manufacturing the practice? Frankfurter’s own answer is the demand that the practice be systematic, unbroken and known to and unchallenged by Congress — which is to say, he is really talking about acquiescence rather than practice. Is acquiescence by a body that cannot easily legislate the same as consent? (This is the same problem you met with congressional silence in the Commerce Clause materials, and you will meet it again in the appointment and removal module, where historical practice does enormous work.) (b) Vinson, dissenting for himself, Reed and Minton, marshals a long history of executive action in emergencies and argues that the President was doing something modest: preserving the status quo so that Congress could act. Note that his argument is stronger than its reputation, and that Black never really answers it — he answers a different argument, about inherent lawmaking power. State Vinson’s best version in two sentences. Then say what is wrong with it, and be honest about whether your objection is legal or prudential. (c) Justice Douglas’s concurrence makes a point neither of them does: the seizure took property, and the obligation to pay compensation runs to Congress, which alone can appropriate. Does that convert a separation-of-powers question into a takings question — and if so, is that a better way to decide the case? You have just spent a module on the Takings Clause; use it.

5. Creative thinking — build the fourth category, or defend having only three. (a) The gap. Jackson’s second category is a residual: it covers everything that is not authorization and not prohibition. But that residual contains at least two very different situations — Congress has never considered the question at all, and Congress has considered it and legislated in a way that neither authorizes nor forbids. Draft a fourth category that separates them, state the standard of review in each, and then apply your revised framework to (c) and (d) from note 3 above. Does it produce different answers? If not, you have discovered something about how much of the framework is doing real work. (b) Or defend the three. The argument for keeping it simple is that any framework applied by judges to the Executive in real time must be usable under pressure, and that a scheme with more boxes invites more characterization fights, which is where discretion hides. Make that case in a paragraph. (c) Finally, a question about this reading itself. Several of Frankfurter’s pages did not survive the acquisition and are marked on the page as missing, including the interior of his quotation of Brandeis. You will meet gaps like these in real research constantly, and the professional norm is the same as the norm here: mark the hole, never bridge it. Before you rely on a bracketed passage in an answer, go to the reporter and look. Say, in one sentence, why an editor who quietly wrote a smooth transition across a missing page would have done something worse than leaving the seam showing.

Footnotes

1. A Hamilton may be matched against a Madison. 7 The Works of Alexander Hamilton, 76–117; 1 Madison, Letters and Other Writings, 611–654. Professor Taft is counterbalanced by Theodore Roosevelt. Taft, Our Chief Magistrate and His Powers, 139–140; Theodore Roosevelt, Autobiography, 388–389. It even seems that President Taft cancels out Professor Taft. Compare his “Temporary Petroleum Withdrawal No. 5” of September 27, 1909, United States v. Midwest Oil Co., 236 U. S. 459, 467, 468, with his appraisal of executive power in “Our Chief Magistrate and His Powers” 139–140. ↩

2. It is in this class of cases that we find the broadest recent statements of presidential power, including those relied on here. United States v. Curtiss-Wright Corp., 299 U. S. 304, involved, not the question of the President’s power to act without congressional authority, but the question of his right to act under and in accord with an Act of Congress. The constitutionality of the Act under which the President had proceeded was assailed on the ground that it delegated legislative powers to the President. Much of the Court’s opinion is dictum, but the ratio decidendi is contained in the following language: “When the President is to be authorized by legislation to act in respect of a matter intended to affect a situation in foreign territory, the legislator properly bears in mind the important consideration that the form of the President’s action — or, indeed, whether he shall act at all — may well depend, among other things, upon the nature of the confidential information which he has or may thereafter receive, or upon the effect which his action may have upon our foreign relations. This consideration, in connection with what we have already said on the subject, discloses the unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed. As this court said in Mackenzie v. Hare, 239 U. S. 299, 311, ‘As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other countries. We should hesitate long before limiting or embarrassing such powers.’” (Italics supplied.) Id., at 321–322. That case does not solve the present controversy. It recognized internal and external affairs as being in separate categories, and held that the strict limitation upon congressional delegations of power to the President over internal affairs does not apply with respect to delegations of power in external affairs. It was intimated that the President might act in external affairs without congressional authority, but not that he might act contrary to an Act of Congress. Other examples of wide definition of presidential powers under statutory authorization are Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U. S. 103, and Hirabayashi v. United States, 320 U. S. 81. But see, Jecker v. Montgomery, 13 How. 498, 515; United States v. Western Union Telegraph Co., 272 F. 311, aff’d, 272 F. 893, rev’d on consent of the parties, 260 U. S. 754; United States Harness Co. v. Graham, 288 F. 929. ↩

3. Since the Constitution implies that the writ of habeas corpus may be suspended in certain circumstances but does not say by whom, President Lincoln asserted and maintained it as an executive function in the face of judicial challenge and doubt. Ex parte Merryman, 17 Fed. Cas. 144; Ex parte Milligan, 4 Wall. 2, 125; see Ex parte Bollman, 4 Cranch 75, 101. Congress eventually ratified his action. Habeas Corpus Act of March 3, 1863, 12 Stat. 755. See Hall, Free Speech in War Time, 21 Col. L. Rev. 526. Compare Myers v. United States, 272 U. S. 52, with Humphrey’s Executor v. United States, 295 U. S. 602; and Hirabayashi v. United States, 320 U. S. 81, with the case at bar. Also compare Ex parte Vallandigham, 1 Wall. 243, with Ex parte Milligan, supra. ↩

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

5. The oft-cited Louisiana Purchase had nothing to do with the separation of powers as between the President and Congress, but only with state and federal power. The Louisiana Purchase was subject to rather academic criticism, not upon the ground that Mr. Jefferson acted without authority from Congress, but that neither had express authority to expand the boundaries of the United States by purchase or annexation. Mr. Jefferson himself had strongly opposed the doctrine that the States’ delegation of powers to the Federal Government could be enlarged by resort to implied powers. Afterwards in a letter to John Breckenridge, dated August 12, 1803, he declared: “The Constitution has made no provision for our holding foreign territory, still less for incorporating foreign nations into our Union. The executive in seizing the fugitive occurrence which so much advances the good of their country, have done an act beyond the Constitution. The Legislature in casting behind them metaphysical subtleties, and risking themselves like faithful servants, must ratify and pay for it, and throw themselves on their country for doing for them unauthorized, what we know they would have done for themselves had they been in a situation to do it.” 10 The Writings of Thomas Jefferson 407, 411. ↩

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

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

8. Labor Management Relations Act, 1947, §§ 206–210, 61 Stat. 136, 155, 156, 29 U. S. C. (Supp. IV) §§ 141, 176–180. The analysis, history and application of this Act are fully covered by the opinion of the Court, supplemented by that of MR. JUSTICE FRANKFURTER and of MR. JUSTICE BURTON, in which I concur. ↩