U.S. Supreme Court Youngstown Sheet & Tube Co. v.
Sawyer, 343
U.S. 579 (1952) Youngstown Sheet & Tube Co. v.
Sawyer Argued May 12-13,
1952 Decided June 2, 1952 343
U.S. 579 ast|>* 343
U.S. 579 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT Syllabus To avert a nationwide strike of steel workers in April 1952,
which he believed would jeopardize national defense, the President
issued an Executive Order directing the Secretary of Commerce to
seize and operate most of the steel mills. The Order was not based
upon any specific statutory authority, but was based generally upon
all powers vested in the President by the Constitution and laws of
the United States and as President of the United States and
Commander in Chief of the Armed Forces. The Secretary issued an
order seizing the steel mills and directing their presidents to
operate them as operating managers for the United States in
accordance with his regulations and directions. The President
promptly reported these events to Congress; but Congress took no
action. It had provided other methods of dealing with such
situations, and had refused to authorize governmental seizures of
property to settle labor disputes. The steel companies sued the
Secretary in a Federal District Court, praying for a declaratory
judgment and injunctive relief. The District Court issued a
preliminary injunction, which the Court of Appeals stayed. Held: 1. Although this case has proceeded no further than the
preliminary injunction stage, it is ripe for determination of the
constitutional validity of the Executive Order on the record
presented. Pp. 343 U. S.
584 -585.

															(a) Under prior decisions of this Court, there is doubt as to
the right to recover in the Court of Claims on account of
properties unlawfully taken by government officials for public use.
P. 343 U. S.
585 .

															(b) 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. P. 343 U. S.
585 . Page 343 U. S. 580 2. The Executive Order was not authorized by the Constitution or
laws of the United States, and it cannot stand. Pp. 343 U. S.
585 -589.

															(a) There is no statute which expressly or impliedly authorizes
the President to take possession of this property as he did here.
Pp. 343 U. S.
585 -586.

															(b) In its consideration of the Taft-Hartley Act in 1947,
Congress refused to authorize governmental seizures of property as
a method of preventing work stoppages and settling labor disputes.
P. 343 U. S.
586 .

															(c) Authority of the President to issue such an order in the
circumstances of this case cannot be implied from the aggregate of
his powers under Article II of the Constitution. Pp. 343 U. S.
587 -589.

															(d) The Order cannot properly be sustained as an exercise of the
President's military power as Commander in Chief of the Armed
Forces. P. 343 U. S.
587 .

															(e) Nor can the Order be sustained because of the several
provisions of Article II which grant executive power to the
President. Pp. 343 U. S.
587 -589.

															(f) The power here sought to be exercised is the lawmaking
power, which the Constitution vests in the Congress alone, in both
good and bad times. Pp. 343 U. S.
587 -589.

															(g) Even if it be true that other Presidents have taken
possession of private business enterprises without congressional
authority in order to settle labor disputes, Congress has not
thereby lost its exclusive constitutional authority to make the
laws necessary and proper to carry out all powers vested by the
Constitution "in the Government of the United States, or any
Department or Officer thereof." Pp. 343 U. S.
588 -589. 103 F.
Supp. 569 , affirmed.

															For concurring opinion of MR. JUSTICE FRANKFURTER, see
post, p. 343 U. S.
593 .

															For concurring opinion of MR. JUSTICE DOUGLAS, see
post, p. 343 U. S.
629 .

															For concurring opinion of MR. JUSTICE JACKSON, see
post, p. 343 U. S.
634 .

															For concurring opinion of MR. JUSTICE BURTON, see post, p. 343 U. S.
655 .

															For opinion of MR. JUSTICE CLARK, concurring in the judgment of
the Court, see post, p. 343 U. S.
660 .

															For dissenting opinion of MR. CHIEF JUSTICE VINSON, joined by
MR. JUSTICE REED and MR. JUSTICE MINTON, see post, p. 343 U. S.
667 .

															The District Court issued a preliminary injunction restraining
the Secretary of Commerce from carrying out the terms of Executive
Order No. 10340, 16 Fed.Reg. Page 343 U. S. 581 3503. 103 F.
Supp. 569 . The Court of Appeals issued a stay. 90 U.S.App.D.C.
___, 197 F.2d 582. This Court granted certiorari. 343 U.
S. 937 . The judgment of the District Court is affirmed, p. 343 U. S.
589 . Page 343 U. S. 582 MR. JUSTICE BLACK delivered the opinion of the Court.

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

															In the latter part of 1951, a dispute arose between the steel
companies and their employees over terms and conditions that should
be included in new collective bargaining agreements. Long-continued
conferences failed to resolve the dispute. On December 18, 1951,
the employees' representative, United Steelworkers of America, CIO,
gave notice of an intention to strike when the existing bargaining
agreements expired on December 31. The Federal Mediation and
Conciliation Service then intervened in an effort to get labor and
management to agree. This failing, the President on December 22,
1951, referred the dispute to the Federal Wage Stabilization Page 343 U. S. 583 Board [ Footnote 1 ] to
investigate and make recommendations for fair and equitable terms
of settlement. This Board's report resulted in no settlement. On
April 4, 1952, the Union gave notice of a nationwide strike called
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 proposed 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 considerations for
his action, the President, a few hours before the strike was to
begin, issued Executive Order 10340, a copy of which is attached as
an appendix, post, p. 343 U. S. 589 .
The order directed the Secretary of Commerce to take possession of
most of the steel mills and keep them running. The Secretary
immediately issued his own possessory orders, calling upon the
presidents of the various seized companies to serve as operating
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.

															Obeying the Secretary's orders under protest, the companies
brought proceedings against him in the District Court. Their
complaints charged that the seizure was not authorized by an act of
Congress or by any constitutional provisions. The District Court
was asked to declare the orders of the President and the Secretary
invalid and to issue preliminary and permanent injunctions
restraining their enforcement. Opposing the motion for
preliminary Page 343 U. S. 584 injunction, the United States asserted that a strike disrupting
steel production for even a brief period would so endanger the
wellbeing and safety of the Nation that the President had "inherent
power" to do what he had done -- power "supported by the
Constitution, by historical precedent, and by court decisions." The
Government also contended that, in any event, no preliminary
injunction should be issued, because the companies had made no
showing that their available legal remedies were inadequate or that
their injuries from seizure would be irreparable. Holding against
the Government on all points, the District Court, on April 30,
issued a preliminary injunction restraining the Secretary from
"continuing the seizure and possession of the plants . . . and from
acting under the purported authority of Executive Order No. 10340." 103 F.
Supp. 569 . On the same day, the Court of Appeals stayed the
District Court's injunction. 90 U.S.App.D.C. ___, 197 F.2d 582.
Deeming it best that the issues raised be promptly decided by this
Court, we granted certiorari on May 3 and set the cause for
argument on May 12. 343 U. S. 937 .

															Two crucial issues have developed: First. Should final
determination of the constitutional validity of the President's
order be made in this case which has proceeded no further than the
preliminary injunction stage? Second. If so, is the
seizure order within the constitutional power of the President? I It is urged that there were nonconstitutional grounds upon which
the District Court could have denied the preliminary injunction,
and thus have followed the customary judicial practice of declining
to reach and decide constitutional questions until compelled to do
so. On this basis, it is argued that equity's extraordinary
injunctive relief should have been denied because (a) seizure of
the companies' properties did not inflict irreparable damages, Page 343 U. S. 585 and (b) there were available legal remedies adequate to afford
compensation for any possible damages which they might suffer.
While separately argued by the Government, these two contentions
are here closely related, if not identical. Arguments as to both
rest in large part on the Government's claim that, should the
seizure ultimately be held unlawful, the companies could recover
full compensation in the Court of Claims for the unlawful taking.
Prior cases in this Court have cast doubt on the right to recover
in the Court of Claims on account of properties unlawfully 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 , 218 U. S.
335 -336; United States v. North American Co., 253 U. S. 330 , 253 U. S. 333 . But see Larson v. Domestic & Foreign Corp., 337 U. S. 682 , 337 U. S.
701 -702. 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. Viewing the case this way, and in the light of the
facts presented, the District Court saw no reason for delaying
decision of the constitutional validity of the orders. We agree
with the District Court, and can see no reason why that question
was not ripe for determination on the record presented. We shall
therefore consider and determine that question now. 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 Page 343 U. S. 586 to take both personal and real property under certain
conditions. [ Footnote 2 ]
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. [ Footnote 3 ] Apparently it was thought that
the technique of seizure, like that of compulsory arbitration,
would interfere with the process of collective bargaining.
[ Footnote 4 ] Consequently, the
plan Congress adopted in that Act did not provide for seizure under
any circumstances. Instead, the plan sought to bring about
settlements by use of the customary devices of mediation,
conciliation, investigation by boards of inquiry, and public
reports. In some instances, temporary injunctions were authorized
to provide cooling-off periods. All this failing, unions were left
free to strike after a secret vote by employees as to whether they
wished to accept their employers' final settlement offer. [ Footnote 5 ] Page 343 U. S. 587 It is clear that, if the President had authority to issue the
order he did, it must be found in some provision of the
Constitution. And it is not claimed that express constitutional
language grants this power to the President. The contention is that
presidential power should be implied from the aggregate of his
powers under the Constitution. Particular reliance is placed on
provisions in Article II which say that "The executive Power shall
be vested in a President . . ."; that "he shall take Care that the
Laws be faithfully 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 Page 343 U. S. 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 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 Page 343 U. S. 589 "in the Government of the United States, or any Department or
Officer thereof."

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

															The judgment of the District Court is Affirmed. * Together with No. 745, Sawyer, Secretary of Commerce v.
Youngstown Sheet & Tube Co. et al., also on certiorari to
the same court.

															[ Footnote 1 ]

															This Board was established under Executive Order 10233, 16
Fed.Reg. 3503.

															[ Footnote 2 ]

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

															[ Footnote 3 ]

															93 Cong.Rec. 3637-3645.

															[ Footnote 4 ]

															93 Cong.Rec. 3835-3836.

															[ Footnote 5 ]

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

															MR. JUSTICE FRANKFURTER.

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

															| 343
U.S. 579 app| APPENDIX TO OPINION OF THE COURT EXECUTIVE ORDER Directing the Secretary of Commerce to Take Possession of
and Operate the Plants and Facilities of Certain Steel
Companies WHEREAS, on December 16, 1950, I proclaimed the existence of a
national emergency which requires that the military, naval, air,
and civilian defenses of this country be strengthened as speedily
as possible to the end that we may be able to repel any and all
threats against our national Page 343 U. S. 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 aggression; and

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

															WHEREAS steel is likewise indispensable to the carrying out of
programs of the Atomic Energy Commission of vital importance to our
defense efforts; and

															WHEREAS a continuing and uninterrupted supply of steel is also
indispensable to the maintenance of the economy of the United
States, upon which our military strength depends; and

															WHEREAS a controversy has arisen between certain companies in
the United States producing and fabricating steel and the elements
thereof and certain of their workers represented by the United
Steel Workers of America, CIO, regarding terms and conditions of
employment; and

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

															WHEREAS a work stoppage would immediately jeopardize and imperil
our national defense and the defense Page 343 U. S. 591 of those joined with us in resisting aggression, and would add
to the continuing danger of our soldiers, sailors, and airmen
engaged in combat in the field; and

															WHEREAS, in order to assure the continued availability of steel
and steel products during the existing emergency, it is necessary
that the United States take possession of and operate the plants,
facilities, and other property of the said companies as hereinafter
provided:

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

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

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

															3. The Secretary of Commerce shall determine and prescribe terms
and conditions of employment under which the plants, facilities,
and other properties possession of which is taken pursuant to this
order shall be operated. The Secretary of Commerce shall recognize
the rights of workers to bargain collectively through
representatives of their own choosing and to engage in concerted
activities for the purpose of collective bargaining, adjustment of
grievances, or other mutual aid or protection, provided Page 343 U. S. 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 managements of the plants,
facilities, and other properties possession of which is taken
pursuant to this order shall continue their functions, including
the collection and disbursement of funds in the usual and ordinary
course of business in the names of their respective companies and
by means of any instrumentalities used by such companies.

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

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

															7. The Secretary of Commerce is authorized to prescribe and
issue such regulations and orders not inconsistent herewith as he
may deem necessary or desirable for carrying out the purposes of
this order, and he may delegate and authorize subdelegation of such
of his functions under this order as he may deem desirable.

															rj:

															Harry S. Truman.

															lj:

															The White House, April 8, 1952. Page 343 U. S. 593 MR. JUSTICE FRANKFURTER, concurring.

															Before the cares of the White House were his own, President
Harding is reported to have said that government, after all, is a
very simple thing. He must have said that, if he said it, as a
fleeting inhabitant of fairyland. The opposite is the truth. A
constitutional democracy like ours is perhaps the most difficult of
man's social arrangements to manage successfully. Our scheme of
society is more dependent than any other form of government on
knowledge and wisdom and self-discipline for the achievement of its
aims. For our democracy implies the reign of reason on the most
extensive scale. The Founders of this Nation were not imbued with
the modern cynicism that the only thing that history teaches is
that it teaches nothing. They acted on the conviction that the
experience of man sheds a good deal of light on his nature. It
sheds a good deal of light not merely on the need for effective
power if a society is to be at once cohesive and civilized, but
also on the need for limitations on the power of governors over the
governed.

															To that end, they rested the structure of our central government
on the system of checks and balances. For them, the doctrine of
separation of powers was not mere theory; it was a felt necessity.
Not so long ago, it was fashionable to find our system of checks
and balances obstructive to effective government. It was easy to
ridicule that system as outmoded -- too easy. The experience
through which the world has passed in our own day has made vivid
the realization that the Framers of our Constitution were not
inexperienced doctrinaires. These long-headed statesmen had no
illusion that our people enjoyed biological or psychological or
sociological immunities from the hazards of concentrated power. It
is absurd to see a dictator in a representative product of the
sturdy democratic traditions of the Mississippi Valley. Page 343 U. S. 594 The accretion of dangerous power does not come in a day. It does
come, however slowly, from the generative force of unchecked
disregard 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 "Controversies." 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 popular 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. Page 343 U. S. 595 The path of duty for this Court, it bears repetition, lies in
the opposite direction. Due regard for the implications of the
distribution of powers in our Constitution and for the nature of
the judicial process as the ultimate authority in interpreting the
Constitution, has not only confined the Court within the narrow
domain of appropriate adjudication. It has also led to "a series of
rules under which it has avoided passing upon a large part of all
the constitutional questions pressed upon it for decision."
Brandeis, J., in Ashwander v. Tennessee Valley Authority, 297 U. S. 288 , 297 U. S. 341 ,
346. 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 intellectual 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 properly 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 circumstances of this case. Familiar as
that remedy is, it remains an extraordinary remedy. To 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, demonstrate, from
the seizure here in controversy, consequences Page 343 U. S. 596 that cannot be translated into dollars and cents, preclude a
holding that only compensable damage for the plaintiffs is
involved. Again, a court of equity ought not to issue an
injunction, even though a plaintiff otherwise makes out a case for
it, if the plaintiff's right to an injunction is overborne by a
commanding public interest against it. One need not resort to a
large epigrammatic generalization that the evils of industrial
dislocation are to be preferred to allowing illegality to go
unchecked. To deny inquiry into the President's power in a case
like this, because of the damage to the public interest to be
feared from upsetting its exercise by him, would, in effect, always
preclude inquiry into challenged power, which presumably only
avowed great public interest brings into action. And so, with the
utmost unwillingness, with every desire to avoid judicial inquiry
into the powers and duties of the other two branches of the
government, I cannot escape consideration of the legality of
Executive Order No. 10340.

															The pole-star for constitutional adjudications is John
Marshall's greatest judicial utterance, that "it is a constitution we are expounding." McCulloch
v. Maryland , 4 Wheat. 316, 17 U. S. 407 .
That requires both a spacious view in applying an instrument of
government "made for an undefined and expanding future," Hurtado v. California, 110 U. S. 516 , 110 U. S. 530 ,
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 pronouncements 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. Page 343 U. S. 597 "The great ordinances of the Constitution do not establish and
divide fields of black and white." Holmes, J., dissenting in Springer v. Philippine Islands, 277 U.
S. 189 , 277 U. S.
209 .

															The issue before us can be met, and therefore should be, without
attempting to define the President's powers comprehensively. I
shall not attempt to delineate what belongs to him by virtue of his
office beyond the power even of Congress to contract; what
authority belongs to him until Congress acts; what kind of problems
may be dealt with either by the Congress or by the President, or by
both, cf. La Abra Silver Mng. Co. v. United States, 175 U. S. 423 ;
what power must be exercised by the Congress and cannot be
delegated to the President. It is as unprofitable to lump together
in an undiscriminating hotch-potch past presidential actions
claimed to be derived from occupancy of the office as it is to
conjure up hypothetical future cases. The judiciary may, as this
case proves, have to intervene in determining where authority lies
as between the democratic forces in our scheme of government. But,
in doing so, we should be wary and humble. Such is the teaching of
this Court's role in the history of the country.

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

															The question before the Court comes in this setting. Congress
has frequently -- at least 16 times since 1916 -- Page 343 U. S. 598 specifically provided for executive seizure of production,
transportation, communications, or storage facilities. In every
case, it has qualified this grant of power with limitations and
safeguards. This body of enactments -- summarized in tabular form
in Appendix I, post, p. 343 U. S. 615 -- demonstrates that Congress deemed seizure so drastic a power as
to require that it be carefully circumscribed whenever the
President was vested with this extraordinary authority. The power
to seize has uniformly been given only for a limited period or for
a defined emergency, or has been repealed after a short period. Its
exercise has been restricted to particular circumstances such as
"time of war or when war is imminent," the needs of "public safety"
or of "national security or defense," or "urgent and impending
need." The period of governmental operation has been limited, as,
for instance, to "sixty days after the restoration of productive
efficiency." Seizure statutes usually make executive action
dependent on detailed conditions: for example, (a) failure or
refusal of the owner of a plant to meet governmental supply needs
or (b) failure of voluntary negotiations with the owner for the use
of a plant necessary for great public ends. Congress often has
specified the particular executive agency which should seize or
operate the plants or whose judgment would appropriately test the
need for seizure. Congress also has not left to implication that
just compensation be paid; it has usually legislated in detail
regarding enforcement of this litigation-breeding general
requirement. ( See Appendix I, post, p. 343 U. S.
615 .)

															Congress, in 1947, was again called upon to consider whether
governmental seizure should be used to avoid serious industrial
shutdowns. Congress decided against conferring such power generally
and in advance, without special Congressional enactment to meet
each particular need. Under the urgency of telephone and coal
strikes in Page 343 U. S. 599 the winter of 1946, Congress addressed itself to the problems
raised by "national emergency" strikes and lockouts. [ Footnote 2/1 ] The termination of wartime
seizure powers on December 31, 1946, brought these matters to the
attention of Congress with vivid impact. A proposal that the
President be given powers to seize plants to avert a shutdown where
the "health or safety" of the Nation was endangered was thoroughly
canvassed by Congress, and rejected. No room for doubt remains that
the proponents as well as the opponents of the bill which became
the Labor Management Relations Act of 1947 clearly understood that,
as a result of that legislation, the only recourse for preventing a
shutdown in any basic industry, after failure of mediation, was
Congress. [ Footnote 2/2 ]
Authorization for seizure as Page 343 U. S. 600 an available remedy for potential dangers was unequivocally put
aside. The Senate Labor Committee, through its Chairman, explicitly
reported to the Senate that a general grant of seizure powers had
been considered and rejected in favor of reliance on ad
hoc legislation, as a particular emergency might call for it.
[ Footnote 2/3 ] An amendment
presented in the House providing that, where necessary "to preserve
and protect the public health and security," the President might
seize any industry in which there is Page 343 U. S. 601 an impending curtailment of production, was voted down after
debate, by a vote of more than three to one. [ Footnote 2/4 ]

															In adopting the provisions which it did, by the Labor Management
Relations Act of 1947, for dealing with a "national emergency"
arising out of a breakdown in peaceful industrial relations,
Congress was very familiar with Governmental seizure as a
protective measure. On a balance of considerations, Congress chose
not to lodge this power in the President. It chose not to make
available in advance a remedy to which both industry and labor were
fiercely hostile. [ Footnote 2/5 ] In
deciding that authority to seize should be given to the President
only after full consideration of the particular situation should
show such legislation to be necessary, Congress presumably acted on
experience with similar industrial conflicts in the past. It
evidently assumed that industrial shutdowns in basic industries are
not instances of spontaneous generation, Page 343 U. S. 602 and that danger warnings are sufficiently plain before the event
to give ample opportunity to start the legislative process into
action.

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

															It cannot be contended that the President would have had power
to issue this order had Congress explicitly negated such authority
in formal legislation. Congress has expressed its will to withhold
this power from the President as though it had said so in so many
words. The authoritatively expressed purpose of Congress to
disallow such power to the President and to require him, when in
his mind the occasion arose for such a seizure, to put the matter
to Congress and ask for specific authority from it, could not be
more decisive if it had been written into §§ 206-210 of the Labor
Management Relations Act of 1947. Only the other day, we treated
the Congressional gloss upon those sections as part of the Act. Bus Employees v. Wisconsin Board, 340 U.
S. 383 , 340 U. S.
395 -396. Page 343 U. S. 603 Grafting upon the words a purpose of Congress thus unequivocally
expressed is the regular legislative mode for defining the scope of
an Act of Congress. It would be not merely infelicitous
draftsmanship, but almost offensive gaucherie, to write such a
restriction upon the President's power, in terms, into a statute,
rather than to have it authoritatively expounded, as it was, by
controlling legislative history.

															By the Labor Management Relations Act of 1947, Congress said to
the President, "You may not seize. Please report to us and ask for
seizure power if you think it is needed in a specific situation."
This, of course, calls for a report on the unsuccessful efforts to
reach a voluntary settlement, as a basis for discharge by Congress
of its responsibility -- which it has unequivocally reserved -- to
fashion further remedies than it provided. [ Footnote 2/6 ] But it is now claimed that the President
has seizure power by virtue of the Defense Production Act of 1950
and its Amendments. [ Footnote 2/7 ]
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 of the new
events, he needed the power of seizure which Congress in its
judgment had decided to withhold from him. The utmost that the
Korean conflict may imply is that it may have been desirable to
have given the President further authority, a freer hand in these
matters. Absence of authority in the President to deal with a
crisis does not Page 343 U. S. 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.

															No authority that has since been given to the President can, by
any fair process of statutory construction, be deemed to withdraw
the restriction or change the will of Congress as expressed by a
body of enactments, culminating in the Labor Management Relations
Act of 1947. Title V of the Defense Production Act, entitled
"Settlement of Labor Disputes," pronounced the will of Congress
"that there be effective procedures for the settlement of labor
disputes affecting national defense," and that "primary reliance"
be placed

															"upon the parties to any labor dispute to make every effort,
through negotiation and collective bargaining and the full use of
mediation and conciliation facilities, to effect a settlement in
the national interest. [ Footnote
2/8 ]"

															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. [ Footnote 2/9 ] This provision [ Footnote 2/10 ] was said by the Senate Committee Page 343 U. S. 605 on Banking and Currency to contemplate a board similar to the
War Labor Board of World War II and "a national labor-management
conference such as was held during World War II, when a "no strike,
no lock-out" pledge was obtained." [ Footnote 2/11 ] Section 502 was believed necessary Page 343 U. S. 606 in addition to existing means for settling disputes voluntarily
because the Federal Mediation and Conciliation Service could not
enter a labor dispute unless requested by one party. [ Footnote 2/12 ] 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.
[ Footnote 2/13 ] Senator Ives
said:

															"It should be remembered in this connection that, during the
period of the present emergency, it is expected that the Congress
will not adjourn, but, at most, will recess only for very limited
periods of time. If, therefore, any serious work stoppage should
arise or even be threatened, in spite of the terms of the
Labor-Management Relations Act of 1947, the Congress would be
readily available to pass such legislation as might be needed to
meet the difficulty. [ Footnote
2/14 ] " Page 343 U. S. 607 The Defense Production Act affords no ground for the suggestion
that the 1947 denial to the President of seizure powers has been
impliedly repealed, and its legislative history contradicts such a
suggestion. Although the proponents of that Act recognized that the
President would have a choice of alternative methods of seeking a
mediated settlement, they also recognized that Congress alone
retained the ultimate coercive power to meet the threat of "any
serious work stoppage."

															That conclusion is not changed by what occurred after the
passage of the 1950 Act. Seven and a half months later, on April
21, 1951, the President, by Executive Order 10233, gave the
reconstituted Wage Stabilization Board authority to investigate
labor disputes either (1) submitted voluntarily by the parties, or
(2) referred to it by the President. [ Footnote 2/15 ] The Board can only make "recommendations
to the parties as to fair and equitable terms of settlement,"
unless the parties agree to be bound by the Board's
recommendations. About a month thereafter, Subcommittees of both
the House and Senate Labor Committees began hearings on the newly
assigned disputes functions of the Board. [ Footnote 2/16 ] Amendments to deny the Page 343 U. S. 608 Board these functions were voted down in the House, [ Footnote 2/17 ] and Congress extended the
Defense Production Act without changing Title V in relevant part.
[ Footnote 2/18 ] The legislative
history of the Defense Production Act and its Amendments in 1951
cannot possibly be vouched for more than Congressional awareness
and tacit approval that the President had charged the Wage
Stabilization Board with authority to seek voluntary settlement of
labor disputes. The most favorable interpretation of the statements
in the committee reports can make them mean no more than "[w]e are
glad to have all the machinery possible for the voluntary
settlement of labor disputes." In considering the Defense
Production Act Amendments, Congress was never asked to approve --
and there is not the slightest indication that the responsible
committees ever had in mind -- seizure of plants to coerce
settlement of disputes. Page 343 U. S. 609 We are not even confronted by an inconsistency between the
authority conferred on the Wage Board, as formulated by the
Executive Order, and the denial of Presidential seizure powers
under the 1947 legislation. The Board has been given merely
mediatory powers similar to those of agencies created by the
Taft-Hartley Act and elsewhere, with no other sanctions for
acceptance of its recommendations than are offered by its own moral
authority and the pressure of public opinion. The Defense
Production Act and the disputes-mediating agencies created
subsequent to it still leave for solution elsewhere the question
what action can be taken when attempts at voluntary settlement
fail. To draw implied approval of seizure power from this history
is to make something out of nothing.

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

															The legislative history here canvassed is relevant to yet
another of the issues before us, namely, the Government's argument
that overriding public interest prevents the issuance of the
injunction despite the illegality of the seizure. I cannot accept
that contention. "Balancing the equities" when considering whether
an injunction should issue, is lawyers' jargon for choosing between
conflicting public interests. When Congress itself has struck Page 343 U. S. 610 the balance, has defined the weight to be given the competing
interests, a court of equity is not justified in ignoring that
pronouncement under the guise of exercising equitable
discretion.

															Apart from his vast share of responsibility for the conduct of
our foreign relations, the embracing function of the President is
that "he shall take Care that the Laws be faithfully executed. . .
." Art. II, § 3. The nature of that authority has, for me, been
comprehensively indicated by Mr. Justice Holmes.

															"The duty of the President to see that the laws be executed is a
duty that does not go beyond the laws or require him to achieve
more than Congress sees fit to leave within his power." Myers v. United States, 272 U. S.
52 , 272 U. S. 177 .
The powers of the President are not as particularized as are those
of Congress. But unenumerated powers do not mean undefined powers.
The separation of powers built into our Constitution gives
essential content to undefined provisions in the frame of our
government.

															To be sure, the content of the three authorities of government
is not to be derived from an abstract analysis. The areas are
partly interacting, not wholly disjointed. The Constitution is a
framework for government. Therefore, the way the framework has
consistently operated fairly establishes that it has operated
according to its true nature. Deeply embedded traditional ways of
conducting government cannot supplant the Constitution or
legislation, but they give meaning to the words of a text or supply
them. It is an inadmissibly narrow conception of American
constitutional law to confine it to the words of the Constitution
and to disregard the gloss which life has written upon them. In
short, a systematic, unbroken, executive practice, long pursued to
the knowledge of the Congress and never before questioned, engaged
in by Presidents who have also sworn to uphold the Constitution,
making as it were such exercise of power part Page 343 U. S. 611 of the structure of our government, may be treated as a gloss on
"executive Power" vested in the President by § 1 of Art. II.

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

															The only other instances of seizures are those during the
periods of the first and second World Wars. [ Footnote 2/19 ] In his eleven seizures of industrial
facilities, President Wilson Page 343 U. S. 612 acted, or at least purported to act, [ Footnote 2/20 ] 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.

															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 Page 343 U. S. 613 were effected after Congress, on December 8, 1941, had declared
the existence of a state of war. In this case, reliance on the
powers that flow from declared war has been commendably disclaimed
by the Solicitor General. Thus, the list of executive assertions of
the power of seizure in circumstances comparable to the present
reduces to three in the six-month period from June to December of
1941. We need not split hairs in comparing those actions to the one
before us, though much might be said by way of differentiation.
Without passing on their validity, as we are not called upon to do,
it suffices to say that these three isolated instances do not add
up, either in number, scope, duration or contemporaneous legal
justification, to the kind of executive construction of the
Constitution revealed in the Midwest Oil case. Nor do they
come to us sanctioned by long-continued acquiescence of Congress
giving decisive weight to a construction by the Executive of its
powers.

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

															"The doctrine of the separation of powers was adopted by the
Convention of 1787 not to promote efficiency, but to preclude the
exercise of arbitrary power. The purpose was not to avoid friction,
but, Page 343 U. S. 614 by means of the inevitable friction incident to the distribution
of the governmental powers among three departments, to save the
people from autocracy." Myers v. United States, 272 U. S.
52 , 272 U. S. 240 , 272 U. S.
293 .

															It is not a pleasant judicial duty to find that the President
has exceeded his powers, and still less so when his purposes were
dictated by concern for the Nation's 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 immediate parties in interest, will
not find ready accommodation for differences on matters which,
however close to their concern and however intrinsically important,
are overshadowed by the awesome issues which confront the world.
When, at a moment of utmost anxiety, President Washington turned to
this Court for advice, and he had to be denied it as beyond the
Court's competence to give, Chief Justice Jay, on behalf of the
Court, wrote thus to the Father of his Country:

															"We exceedingly regret every event that may cause embarrassment
to your administration, but we derive consolation from the
reflection that your judgment will discern what is right, and that
your usual prudence, decision, and firmness will surmount every
obstacle to the preservation of the rights, peace, and dignity of
the United States."

															Letter of August 8, 1793, 3 Johnston, Correspondence and Public
Papers of John Jay (1891), 489.

															In reaching the conclusion that conscience compels, I too derive
consolation from the reflection that the President and the
Congress, between them, will continue to safeguard the heritage
which comes to them straight from George Washington. Page 343 U. S. 620 [pp. 343 U. S. 615 et seq. - Appendix I (table)]

															[ Footnote 2/1 ]

															The power to seize plants under the War Labor Disputes Act ended
with the termination of hostilities, proclaimed on Dec. 31, 1946,
prior to the incoming of the Eightieth Congress, and the power to
operate previously seized plants ended on June 30, 1947, only a
week after the enactment of the Labor Management Relations Act over
the President's veto. 57 Stat. 163, 165, 50 U.S.C.App. (1946 ed.) §
1503. See 2 Legislative History of the Labor Management
Relations Act, 1947 (published by National Labor Relations Board,
1948), 1145, 1519, 1626.

															[ Footnote 2/2 ]

															Some of the more directly relevant statements are the
following:

															"In most instances, the force of public opinion should make
itself sufficiently felt in this 80-day period to bring about a
peaceful termination of the controversy. Should this expectation
fail, the bill provides for the President's laying the matter
before Congress for whatever legislation seems necessary to
preserve the health and safety of the Nation in the crisis."

															Senate Report No. 105, 80th Cong., 1st Sess. 15.

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

															In the debates, Senator H. Alexander Smith, a member of the
Senate Committee on Labor and Public Welfare, said,

															"In the event of a deadlock and a strike is not ended, the
matter is referred to the President, who can use his discretion as
to whether he will present the matter to the Congress, whether or
not the situation is such that emergency legislation is
required."

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

															93 Cong.Rec. 4281.

															The President in his veto message said,

															". . . it would be mandatory for the President to transfer the
whole problem to the Congress, even if it were not in session.
Thus, major economic disputes between employers and their workers
over contract terms might ultimately be thrown into the political
arena for disposition. One could scarcely devise a less effective
method for discouraging critical strikes."

															93 Cong.Rec. 7487.

															[ Footnote 2/3 ]

															Senator Taft said:

															"If there finally develops a complete national 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 possible effort to resolve the dispute, the remedy might be
an emergency act by Congress for that particular purpose."

															". . . But while such a bill [for seizure of plants and union
funds] might be prepared, I should be unwilling to place such a law
on the books until we actually face such an emergency, and Congress
applies the remedy for the particular emergency only. Eighty days
will provide plenty of time within which to consider the
possibility of what should be done, and we believe very strongly
that there should not be anything in this law which prohibits
finally the right to strike."

															93 Cong.Rec. 3835-3836.

															[ Footnote 2/4 ]

															93 Cong.Rec. 3637-3645.

															[ Footnote 2/5 ] See, for instance, the statements of James B. Carey,
Secretary of the CIO, in opposition to S. 2054, 77th Cong., 1st
Sess., which eventually became the War Labor Disputes Act. Central
to that Act, of course, was the temporary grant of the seizure
power to the President. Mr. Carey then said:

															"Senator BURTON. If this would continue forever, it might mean
the nationalization of industry?"

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

															" * * * *" "Our suggestion of a voluntary agreement of the representatives
of industry and labor and Government, participating in calling a
conference, is a democratic way. The other one is the imposition of
force, the other is the imposition of seizure of certain things for
a temporary period; the destruction of collective bargaining, and
it would break down labor relations that may have been built up
over a long period."

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

															[ Footnote 2/6 ]

															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.

															[ Footnote 2/7 ]

															64 Stat. 798 et seq. , 65 Stat. 131 et
seq. , 50 U.S.C. App. § 2061 et seq. [ Footnote 2/8 ]

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

															[ Footnote 2/9 ]

															§§ 502, 503, 64 Stat. 798, 812, 50 U.S.C.App. §§ 2122, 2123.

															[ Footnote 2/10 ]

															The provision of § 502 in S. 3936, as reported by the Senate
Committee on Banking and Currency, read as follows:

															"The President is authorized, after consultation with labor and
management, to establish such principles and procedures and to take
such action as he deems appropriate for the settlement of labor
disputes affecting national defense, including the designation of
such persons, boards or commissions as he may deem appropriate to
carry out the provisions of this title."

															That language was superseded in the Conference Report by the
language that was finally enacted. H.R.Rep. No. 3042, 81st Cong.,
2d Sess. 16, 35. The change made by the Conference Committee was
for the purpose of emphasizing the voluntary nature of the
cooperation sought from he public, labor, and management; as
Senator Ives explained under repeated questioning, "If any group
were to hold out, there would be no agreement [on action to carry
out the provisions of this title]." 96 Cong.Rec. 14071. Chairman
Maybank of the Senate Committee on Banking and Currency said,

															"The labor disputes title of the Senate was accepted by the
House with amendment which merely indicates more specific avenues
through which the President may bring labor and management
together." Id. at 14073.

															[ Footnote 2/11 ]

															S.Rep. No. 2250, 81st Cong., 2d Sess. 41; H.R.Rep. No. 3042,
81st Cong., 2d Sess. 35. It is hardly necessary to note that
Congressional authorization of an agency similar to the War Labor
Board does not imply a Congressional grant of seizure power similar
to that given the President specifically by § 3 of the War Labor
Disputes Act of 1943. The War Labor Board, created by § 7 of the
1943 Act, had only administrative sanctions. See 57 Stat.
163, 166167; see Report of Senate Committee on Labor and
Public Welfare, The Disputes Functions of the Wage Stabilization
Board, 1951, S.Rep. No. 1037, 82d Cong., 1st Sess. 6. The seizure
power given by Congress in § 3 of the 1943 Act was given to the
President, not to the War Labor Board, and was needed only when the
War Labor Board reported it had failed; the seizure power was
separate and apart from the War Labor Board machinery for settling
disputes. At most, the Defense Production Act does what § 7 of the
War Labor Disputes Act did; the omission of any grant of seizure
power similar to § 3 is too obvious not to have been conscious. At
any rate, the Wage Stabilization Board differs substantially from
the earlier War Labor Board. In 1951 the Senate Committee studying
the disputes functions of the Wage Stabilization Board pointed out
the substantial differences between that Board and its predecessor,
and concluded that "The new Wage Stabilization Board . . . does not
rely on title V of the Defense Production Act for its authority."
S.Rep. No. 1037, 82d Cong., 1st Sess., supra, at 4-6.

															[ Footnote 2/12 ]

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

															[ Footnote 2/13 ] See 96 Cong.Rec. 14071.

															[ Footnote 2/14 ] Id. at 12275. Just before the paragraph quoted in the
text, Senator Ives had said:

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

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

															[ Footnote 2/15 ]

															16 Fed.Reg. 3503. The disputes functions were not given to the
Wage Stabilization Board under Title V, see 343
U.S. 579 fn2/11|>note 11, supra, but apparently
under the more general Title IV, entitled "Price and Wage
Stabilization."

															[ Footnote 2/16 ] See Hearings before a Subcommittee of the House
Committee on Education and Labor, Disputes Functions of Wage
Stabilization Board, 82d Cong., 1st Sess. (May 28-June 15, 1951);
Hearings before the Subcommittee on Labor and Labor-Management
Relations of Senate Committee on Labor and Public Welfare, Wage
Stabilization and Disputes Program, 82d Cong., 1st Sess. (May
17-June 7, 1951). The resulting Report of the Senate Committee,
S.Rep. No. 1037, 82d Cong., 1st Sess. 9, recommended that "Title V
of the Defense Production Act be retained," and that

															"[n]o statutory limitations be imposed on the President's
authority to deal with disputes through voluntary machinery; such limitations, we believe, would infringe on the
President's constitutional power."

															(Emphasis added.) The Committee found, id. at 10, that
the

															"Wage Stabilization Board relies completely on voluntary means
for settling disputes and is, therefore, an extension of free
collective bargaining. The Board has no powers of legal
compulsion."

															"Executive Order No. 10233," the Committee found further, "does
not in any way run counter to the . . . Taft-Hartley Act. It is
simply an additional tool, not a substitute for these laws." Of
particular relevance to the present case, the Committee
declared:

															"The recommendations of the Wage Stabilization Board in disputes
certified by the President have no compulsive force. The parties
are free to disregard recommendations of the Wage Stabilization
Board. . . ."

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

															[ Footnote 2/17 ]

															97 Cong.Rec. 8390-8415.

															[ Footnote 2/18 ]

															65 Stat. 131.

															[ Footnote 2/19 ]

															Instances of seizure by the President are summarized in Appendix
II, post, p. 343 U. S.
620 .

															[ Footnote 2/20 ]

															One of President Wilson's seizures has given rise to
controversy. In his testimony in justification of the Montgomery
Ward seizure during World War II, Attorney General Biddle argued
that the World War I seizure of Smith & Wesson could not be
supported under any of the World War I statutes authorizing
seizure. He thus adduced it in support of the claim of so-called
inherent Presidential power of seizure. See Hearings
before House Select Committee to Investigate the Seizure of
Montgomery Ward, 78th Cong., 2d Sess. 167-168. In so doing, he
followed the ardor of advocates in claiming everything. In his own
opinion to the President, he rested the power to seize Montgomery
Ward on the statutory authority of the War Labor Disputes Act, see 40 Op.Atty.Gen. 312 (1944), and the Court of Appeals
decision upholding the Montgomery Ward seizure confined itself to
that ground. United States v. Montgomery Ward & Co., 150 F.2d 369. What Attorney General Biddle said about Smith &
Wesson was, of course, post litem motam. Whether or not
the World War I statutes were broad enough to justify that seizure,
it is clear that the taking officers conceived themselves as moving
within the scope of statute law. See Letter from
Administrative Div., Advisory Sec. to War Dep't. Bd. of Appraisers,
National Archives, Records of the War Department, Office of the
Chief of Ordnance, O.O. 004.002/194 Smith & Wesson, Apr. 2,
1919; n. 3, Appendix II, post, p. 343 U. S. 620 .
Thus, whether or not that seizure was within the statute, it cannot
properly be cited as a precedent for the one before us. On this
general subject, compare Attorney General Knox's opinion
advising President Theodore Roosevelt against the so-called
"stewardship" theory of the Presidency. National Archives, Opinions
of the Attorney General, Book 31, Oct. 10, 1902 (R.G. 60); Theodore
Roosevelt, Autobiography, 388-389; 3 Morison, The Letters of
Theodore Roosevelt, 323-366. Page 343 U. S. 615 bwm:

															APPENDIX I

															SYNOPTIC ANALYSIS OF LEGISLATION

															AUTHORIZING SEIZURE OF INDUSTRIAL PROPERTY

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															TERMS AND CONDITIONS OF

															LIMITATIONS ON ITS EMPLOYMENT DURING

															STATUTE DURATION SCOPE OF AUTHORITY EXERCISE SEIZURE
COMPENSATION

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															As extended or

															As enacted repealed

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															1. Railroad and Telegraph Not "in force any President may "take
possession a. "When in his [the President's] None. President shall
appoint three

															Act of 1862, 12 Stat. 334. longer than is of" telegraph lines
and rail- judgment the public safety commissioners to assess
com-

															necessary for the roads; prescribe rules for their may require
it." pensation to which the com-

															Enacted 1/31/62; suppression of operation; and place all
officers b. President may not "engage pany is entitled and to
report

															amended, 12 Stat. 625, this rebellion." and employees under
military in any work of railroad con- to Congress for its
action.

															7/14/62. control. struction."

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															2. § 120 of National No time limit. President, through the head
of a. Exercisable "in time of war None. Compensation "shall be fair
and

															Defense Act of 1916, 39 any department, may seize or when war is
imminent." just."

															Stat. 166, 213, 50 U.S.C. any plant and may operate b. Plant is
equipped for making

															§ 80, as amended. plants through the Army Ord- "necessary
supplies or equip-

															nance Department. ment for the Army" or "in

															Enacted 6/3/16. the opinion of the Secretary

															of War" can be transformed

															readily to such use.

															c. Owner refuses to give govern-

															ment order precedence or to

															perform.

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															3. Army Appropriations No time limit. President, through
Secretary of Exercisable "in time of war."* None. Compensation
"shall be fair

															Act of 1916, 39 Stat. 619, War, may take possession of and
just."

															645, 10 U.S.C. § 1361. and utilize any system or part

															of any system of transporta-

															Enacted 8/29/16. tion.

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															4. Naval Emergency Fund No time limit. President may Exercisable
"in time of war" (or None.

															Act of 1917, 39 Stat. 1. "take over for use or opera- of
national emergency deter-

															1168, 1192-1195, 50 tion" any factory "whether mined by the
President before

															U.S.C. § 82. [or not] the United States 3/1/18).

															has . . . agreement with President shall determine "just

															Enacted 3/4/17. Cf. the owner or occupier."
compensation"; if the claimant

															Emergency Shipping is dissatisfied, he shall be paid

															Fund Act of 1917, infra. ) 2. "take immediate possession
a. Owner fails or refuses to give None. 50 percent of the amount
de-

															of any factory" producing precedence to an order for termined by
the President and

															ships or war material for "ships or war material as the may sue,
subject to existing

															the Navy. necessities of the Govern- law, in the district courts
and

															ment"; refuses to deliver or to the Court of Claims for the

															comply with a contract as rest of "just compensation."

															modified by President.

															b. Exercisable within "the limits

															of the amounts appropriated

															therefor." Page 343 U. S. 616 ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															5. Emergency Shipping To 6 months after Repealed after 3
President may Exercisable "within the limits None.

															Fund Act of 1917, 40 peace with the years, § 2(a) 1. "take over
for use or opera- of the amounts herein author- Same as next above,
except that

															Stat. 182. German Empire, (1), 41 Stat. tion" any plant,
"whether ized." the prepaid percentage when

															40 Stat. 182, 183. 988, 6/5/20. [or not] United States has the
owner is dissatisfied is

															Enacted 6/15/17. . . . agreement with the 75 percent.

															owner or occupier."

															2. "take immediate possession Failure or refusal of owner of
None.

															of any . . . plant" "equipped ship-building plant to give

															for the building or produc- Government orders preced-

															tion of ships or material." ence or to comply with order.

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															6. 1918 Amendments to To 6 months after Repealed after 2
President may a. The street railroad is neces- None.

															Emergency Shipping peace with the years, 41 Stat. 1. "take
possession of . . . sary for transporting em-

															Fund Act of 1917. German Empire. 988, 6/5/20. any street
railroad." ployees of plants which are

															or may be hereafter engaged

															A. 40 Stat. 535. in "construction of ships or

															equipment therefor for the

															Enacted 4/22/18. United States.

															b. Exercisable "within the limits Same as next above.

															of the amounts herein author-

															ized."

															B. 40 Stat. 1020, 1022 To 6 months after Repealed after 2.
extend seized plants con- Exercisable "within the limits of
None

															peace with the 1 1/2 years, 41 structing ships or materials the
amounts herein author-

															German Empire. Stat. 988, 6/5/ therefor and requisition land
ized."

															20. for use in extensions.

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															7. Food and Fuel Act of To end of World President may The
requisitioning is "necessary None. President "shall ascertain
and

															1917, 40 Stat. 276. War I with Ger- 1. requisition foods, fuels,
to the support of the Army or pay a just compensation"; if

															many. feeds, etc., and storage the . . . Navy, or any other the
owner is dissatisfied, he

															Enacted 8/10/17. facilities for them. public use connected with
the shall be paid 75 percent of the

															common defense." amount determined by the

															§ 10, 40 Stat. 276, 279. President and may sue in the

															district courts, which are here-

															by given jurisdiction, for the

															rest of "just compensation."

															§ 12, 40 Stat. 276, 279. 2. take over any factory, a. President
finds "it necessary President may make regulations

															packing house, oil pipe line, to secure an adequate supply for
"the employment, control,

															mine, or other plant where of necessaries for . . . the and
compensation of em-

															any necessaries are or may Army or . . . the Navy, or
ployees."

															be "produced, prepared, or for any other public use con-

															mined, and to operate the nected with the common Same as in the
Emergency Ship-

															same." defense." ping Fund Act of 1917, supra. b. President must turn facility

															back as soon as further Gov-

															ernment operation "is not

															essential for the national

															security or defense." Page 343 U. S. 617 § 25, 40 Stat. 276. 284 To end of World 3. "requisition and take
over Producer or dealer President may "prescribe . . . Same as next
above.

															War I with Ger- the plant, business, and all a. Fails to conform
to prices regulations . . . for the em-

															many. appurtenances thereof be- or regulations set by the
ployment, control, and com-

															longing to such producer Federal Trade Commission pensation of
the employees."

															or dealer" of coal and coke, under the direction of the

															and may operate it through President, who deems it

															an agency of his choice. "necessary for the efficient

															prosecution of the war,"

															or

															b. Fails to operate efficiently,

															or conducts business in a

															way "prejudicial to the

															public interest."

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															8. Joint Resolution of July "during the con- Terminated on
President may "take possession President deems "it necessary None.
Same as next above.

															16, 1918, 40 Stat. 904 tinuance of the 7/31/10 by re- . . . of
[and operate] any for the national security or

															present war." peal, 7/11/19, telegraph, telephone, marine
defense."

															41 Stat. 157. cable or radio system."

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															9. § 16 of Federal Water No time limit. President may take
possession a. President believes, as "evi- None. Owner shall be
paid "just and

															Power Act of 1920, 41 of any project, dams, power denced by a
written order fair compensation for the use

															Stat. 1063, 1072, 16 houses, transmission lines, addressed to
the holder of any of said property as may be fixed

															U.S.C. § 809. etc., constructed or operated license hereunder
[that] the by the [Federal Power] commis-

															under a license from the Fed- safety of the United States sion
upon the basis of a reason-

															Enacted 6/10/20. eral Power Commission and demands it." able
profit in time of peace, and

															may operate them. b. Seizure is "for the purpose the cost of
restoring said

															of manufacturing nitrates, property to as good condition

															explosives, or munitions of as existed at the time of the

															war, or for any other purpose taking over thereof, less the

															involving the safety of the reasonable value of any im-

															United States." provements . . . made thereto

															c. Control is limited to the "length by the United States
and

															of time as may appear to the which are valuable and service-

															President to be necessary to able to the [owner]."

															accomplish said purposes."

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															10. § 606 of Communica- No time limit. President may "use or
control a. President proclaims that there None. President shall
ascertain just

															tions Act of 1934, 48 Stat. . . . any such station and/or exists
compensation and certify it to

															1064, 1104, 47 U.S.C. its apparatus and equipment (1) war or
threat of war or Congress for appropriation; if

															§ 606(c). by any department of the (2) a state of public peril,
or the owner is dissatisfied, he shall

															Government under such regu- disaster or other national be paid
75 percent of the

															Enacted 6/19/34. lations as he may prescribe." emergency, amount
determined by the

															or President and may sue, sub-

															b. It is necessary to preserve ject to existing law, in the

															the neutrality of the United district courts and the Court
of

															States. Claims for the rest of "just

															compensation." Page 343 U. S. 618 11. Amendments to Com- No time limit. Same power as in § 606(c),
Com- a. President proclaims a state or None. Same as next
above.

															munications Act, 56 Stat. munications Act of 1934, next threat
of war.

															18, 47 U.S.C. § 606(d). above. b. President "deems it neces-

															sary in the interest of the na-

															Enacted 1/26/42. tional security and defense."

															c. Power to seize and use prop-

															erty continues to "not later

															than six months after the

															termination of such state or

															threat of war" or than a date

															set by concurrent resolution

															of Congress.

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															12. § 8(b) of National De- No time limit. Repealed in less
Secretary of Navy, under Presi- a. Secretary of Navy deems any
Secretary of Navy may operate Secretary of Navy may "fix the

															fense Act of 1940, 54 than 3 months, dent's direction, may "take
existing plant necessary for the plant "either by Govern-
compensation."

															Stat. 676, 680. 9/16/40, 54 over and operate such plant the
national defense. ment personnel or by contract

															Stat. 885, 893 or facility." b. He is unable to reach agree-
with private firms."

															ment with its owner for its

															use or operation.

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															13. §9 of Selective Training To 5/15/45, 54 Extended to
President may "take immedi- a. Plant is equipped for or None. "The
compensation . . . shall be

															and Service Act of 1940, Stat. 885, 897. 3/31/47, 60 ate
possession of any such capable of being readily trans- fair and
just."

															54 Stat. 885, 892, 50 Stat. 341, 342. plant." (Extended by
formed for the manufacture of

															U.S.C.App. (1946 ed.) amendment to "any plant, necessary
supplies.

															§ 309. mine, or facility" capable of b. Owner refuses to give
Govern-

															producing "any articles or ment order precedence or to

															Enacted 9/16/40; amend- materials which may be re- fill it.

															ed by War Labor Dis- quired . . . or which may be

															putes Act, 57 Stat. 163, useful" for the war effort.

															164, q.v., infra. 57 Stat. 163, 164.)

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															14. § 3 of War Labor Dis- To termination of President may "take
immedi- a. Finding and proclamation Same "terms and conditions of
Same as next above.

															putes Act of 1943, 57 this Act by con- ate possession" of "any
plant, by the President that employment which were in

															Stat. 163, 164, 50 U.S.C. current resolu- mine, or facility
equipped for (1) there is an interruption effect at the time [of
taking]

															App. (1946 ed.) § 1503. tion by Congress the manufacture,
production, on account of a labor dis- possession," except that
terms

															or of hostilities. or mining of any articles or turbance, and
conditions might be

															Enacted 6/25/43. Plants seized pre- materials which may be re-
(2) the war effort will be un- changed by order of the War

															viously may be quired . . . or which may be duly impeded, Labor
Board, on application.

															operated until 6 useful" for the war effort. (3) seizure is
necessary to in- §§ 4, 5, 57 Stat. 163, 165.

															months after sure operation.

															termination of b. Plant must be returned to

															hostilities. owner within 60 days "after

															the restoration of the produc-

															tive efficiency." Page 343 U. S. 619 ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															15. Title VIII, Repricing To termination of President may "take
immediate a. The Secretary of a Depart- None. Same as next
above.

															of War Contracts," of hostilities. possession of the plant of
ment deems the price of an

															Revenue Act of 1943, 58 plants . . . and . . . operate article
or service required di-

															Stat. 21, 92, 50 U.S.C. them in accordance with sec- rectly or
indirectly by the

															App. (1946 ed.) § 1192. tion 9 of the Selective Train-
Department is unreasonable.

															ing and Service Act of 1940, b. The Secretary, after the re-

															Enacted 2/25/44, as amended. fusal of the person furnishing

															the article or service to agree

															to a price, sets a price.

															c. The person "wilfully refuses,

															or wilfully fails" to furnish

															the articles or services at the

															price fixed by the Secretary.

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															16. Selective Service Act of No time limit. President may "take
immediate a. President with advice of the None. "Fair and just
compensation

															1948, 62 Stat. 604, 625 possession of any plant, mine, National
Security Resources shall be paid."

															626, 50 U.S.C.App. or other facility . . . and to Board
determines prompt de-

															§ 468. operate it . . . and to livery of articles or
materials

															tion of such articles or mate- is "in the interest of the
na-

															Enacted 6/24/48. rials." tional security."

															b. Procurement "has been au-

															thorized by the Congress exclu-

															sively for the use of the armed

															forces. or the A.E.C.

															c. Owner refuses or fails to give

															precedence to Government

															order placed with notice that

															it is made pursuant to this

															section, or to fill the order

															properly.

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															17. § 201(a) of Defense To 6/30/51. But Extended to President
may "requisition" President determines that None. President shall
determine just

															Production Act, 64 Stat. see § 716(a), 64 7/31/51, 65
"equipment, supplies or com- a. its use is "needed for na-
compensation as of the time

															798, 799, 50 U.S.C.App. Stat. 798, 822. Stat. 110, ponent parts
thereof, or mate- tional defense," the property is taken; if
owner

															§ 2081(a). Extended to rials or facilities necessary for b. the
need is "immediate and is dissatisfied, he shall be

															6/30/52, § 111, the manufacture, servicing, impending," "will
not ad- promptly paid 75 percent of

															Enacted 9/8/50; 65 Stat. 131, or operation of such equip- mit of
delay or resort to the amount determined by the

															amendment, 65 Stat. 131, 144. ment, supplies, or component any
other source of supply," President and may sue within

															132, q.v., infra. parts." 64 Stat. 798, 799. c. other
reasonable means of three years in the district

															Restricted in the main to obtaining use of the prop- courts or
the Court of Claims,

															personal property by § 102(b), erty have been exhausted
regardless of the amount in-

															65 Stat. 132 volved, for the rest of "just

															compensation."

															18. § 102(b)(2) of Defense To 6/30/52, 65 Court condemnation of
real President deems the real prop- None. Under existing statutes
for con-

															Production Act Amend- Stat. 131, 144. property in accordance
with erty "necessary in the interest demnation. Immediate pos-

															ments of 1951, 65 Stat. existing statutes. of national defense."
session given only upon deposit

															131, 132, 50 U.S.C.App. of amount "estimated to be just

															§ 2081(b). compensation," 75 percent of

															which is immediately paid

															Enacted 7/31/51. without prejudice to the owner. Page 343 U. S. 620 --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															APPENDIX II

															SUMMARY OF SEIZURES OF INDUSTRIAL PLANTS

															AND FACILITIES BY THE PRESIDENT

															Civil War Period

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															DURATION OF

															PLANT OR FACILITY SEIZED SEIZURE ORDER EFFECTING SEIZURE
AUTHORITY CITED REASON FOR SEIZURE OPERATIONS DURING SEIZURE

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															From To

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Railroads and telegraph lines 4/27/61 (?) Order of Secretary of
War dated 4/27/61 None. Communications between Washington and
Northern troops guarded railway and tele-

															between Washington and appointing Thomas A. Scott officer in the
North were interrupted by bands of graph facilities; they were
repaired and

															Annapolis, Md.{1} charge. War of the Rebellion, Official
southern sympathizers who destroyed restored to operation under
orders of the

															Records of the Union and Confederate railway and telegraph
facilities. Secretary of War.

															Armies, Ser. I, Vol. II, 603.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Telegraph lines. 2/26/62 (?) Order of Secretary of War dated
2/25/62 "by virtue of the act of Congress" (presum- To insure
effective transmission and secur- Lines operated under military
supervision;

															appointing Anson Stager officer in charge. ably Railroad and
Telegraph Act of 1862, ity of military communications. censorship
of messages; lines extended and

															Richardson, Messages and Papers of the 12 Stat. 334). completed
subject to limitations of Joint

															Resolution of July 14, 1862, 12 Stat. 625.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Railroads. 5/25/62 8/8/65 Order of Secretary of War dated
5/25/62. "by virtue of the authority vested by act of To insure
effective priority to movement of Railways operated under military
supervi-

															Richardson, Messages and Papers of the Congress" (presumably
Railroad and troops and supplies. sion; lines extended and
completed subject

															Presidents, Lincoln, Order of May 25, Telegraph Act of 1862, 12
Stat. 334). to limitations of Joint Resolution of

															1862. July 14, 1862, 12 Stat. 625; interruption of

															regular passenger and freight traffic.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															World War I Period{2}

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Bigelow-Hartford Carpet Co., 12/27/17 12/31/19 Order of
Secretary of War, Req. 20A/C, Constitution and laws.{3}
Requisitioned for use of United States Car-

															Lowell, Mass. Ord. No. 62, dated 12/27/17. tridge Co. for
cartridge manufacture.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Railroads. 12/28/17 3/1/20 Presidential proclamation, 40 Stat.
1733 Joint Resolution of April 6, 1917. Labor difficulties;
congestion; ineffective Wage increase; changes in operating
prac-

															Joint Resolution of Dec. 7, 1917. operation in terms of war
effort. tices and procedures.

															Act of Aug. 29, 1916.

															"all other powers thereto me enabling."

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Liberty Ordnance Co., Bridge- 1/7/18 5/20/19 Order of Secretary
of War, Req. 26 A/C, Constitution and laws.{3} Inadequate financing
and other difficulties Turned over to American Can Co. for
oper-

															port, Conn. Ord. No. 27, dated 1/5/18. leading to failure to
perform contract for ation.

															manufacture of 75 mm. guns.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Hoboken Land & Improvement 2/28/18 4/1/19 Order of Secretary
of War, Req. 37 A/C, Constitution and laws.{3} Requisitioned for
use of Remington Arms-

															Co., Hoboken, N.J. Ord. No. 516, dated 2/28/18. U.M.C. Co. for
cartridge manufacture.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Bijur Motor Appliance Co., 4/1/18 5/1/19 Order of Secretary of
War, Req. 37 A/C, Constitution and laws.{3} Requisitioned for use
of Remington Arms-

															Hoboken, N.J. 8/15/18 Ord. No. 516, dated 2/28/18. U.M.C. Co.
for cartridge manufacture.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Jewel Tea Co., Hoboken, N.J. 4/1/18 9/2/19 Order of Secretary of
War, Req. 37 A/C, Constitution and laws.{3} Requisitioned for use
of Remington Arms-

															U.M.C. Co. for cartridge manufacture.

															[343 U.S. 621]

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Telegraph lines. 7/25/18 7/31/19 Presidential proclamation, 40
Stat. 1807. Joint Resolution of July 16, 1918. Labor difficulties.
Anti- union discrimination terminated.

															"all other powers thereto me enabling."

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Smith & Wesson, Springfield, 9/13/18 1/31/19 Order of
Secretary of War, Req. 709 B/C, Constitution and laws.{3} Labor
difficulties. Anti-union discrimination terminated;

															Mass. Ord. No. 604, dated 8/31/18. operation by the National
Operating

															Co., a Government corporation.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Federal Enameling & Stamp- 9/23/18 12/13/18 Order of
Secretary of War, Req. 738 B/C, Constitution and laws.{3} Failure
to fill compulsory order.

															ing Co., McKees Rocks, Pa. Ord. No. 609, dated 9/11/18.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Mosler Safe Co., Hamilton, 9/23/19 2/25/19 Order of Secretary of
War, Req. 781 B/C, Constitution and laws.{3} Failure to fill
compulsory order.

															Ohio. Ord. No. 612, dated 9/23/18.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Bush Terminal Co., Brooklyn, (?) (?) (?) Act of Aug. 29, 1916.
(?) (?)

															N.Y. Food and Fuel Act of 1917.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															World War {4} -- Seizures Connected With Labor Disputes 1. Before Pearl Harbor. -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															CHANGES IN CONDITIONS OF

															DURATION OF EXECUTIVE DURATION OF EMPLOYMENT DURING REPORTED
LEGAL

															PLANT OR FACILITY SEIZED SEIZURE ORDER STATUTORY AUTHORITY
CITED{5} STOPPAGE SEIZURE{7} BASIS FOR CHANGES ACTION{8}

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															From To From To{6}

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															North American Aviation, Inc., 6/9/41 7/2/71 8773. None. (Order
cites contracts of com- 6/5/41 6/10/41 Property returned on
agreement Agreement of parties on Na-

															Inglewood, Calif. 6 Fed.Reg. 2777 pany with Government and
ownership of parties to wage increase and tional Defense
Mediation

															by Government of machinery, mate- maintenance of membership.
Board recommendation.

															rials and work in progress in plant.)

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Federal Shipbuilding & Drydock 8/23/41 1/6/42 8868. None.
(Order cites contracts of com- 8/6/41 8/23/41 Maintenance off
membership National Defense Mediation

															Co., Kearny, N.J. 6 Fed.Reg. 4349. pany with Government and
ownership during period of seizure. Board recommendation.

															by Government of vessels under con-

															struction, materials and equipment in

															yard.)

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Air Associates, Inc., Bendix, N.J. 10/30/41 12/29/41 8928. None.
(Order cites contracts of com- 7/11/41 7/27/41 Strikers reinstated
over replace- Agreement of parties on Na-

															6 Fed.Reg. 5559. pany with Government and ownership ments hired
by company prior tional Defense Mediation

															by Government of facilities in plant.) 9/30/41 10/24/41 to
seizure. Board recommendation.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															[343 U.S. 621] 2. Between Pearl Harbor and the Passage of the War Labor Disputes Act, June 25, 1943. -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Toledo, P. & W. R. Co. 3/21/42 10/1/45 9108 None. 12/28/41
3/21/42 Wage increase during period of War Labor Board recommenda- Toledo P. & W. R. Co. v. Stover, 7 Fed.Reg. 2201 seizure. tion. 60 F. Supp.
587 (S.D.Ill.1945).

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															General Cable Co., Bayonne, N.J., 8/13/42 8/20/42 9220 None.
8/10/42 8/13/42 None. War Labor Board recommenda-

															plant. 7 Fed.Reg. 6413 tion.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															S. A. Woods Machine Co., South 8/19/42 8/25/45 9225. None. None.
None. Maintenance of membership. War Labor Board recommenda-

															Boston, Mass. 7 Fed.Reg. 6627 tion.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Coal Mines. 5/2/43 10/12/43 9340. None. 4/22/43 5/2/43 Six-day
week; eight-hour day. Order of the Secretary of In- GO>United States v. Pewee Coal Co., 8 Fed.Reg. 5695. (To increase take-home pay.) terior. 341 U. S. 114 ; NLRB v. West Ky. 6/1/43 6/7/43* Coal Co., 152 F.2d 198 (6th Cir.

															1945); Glen Alden Coal Co. v. 6/20/43 (?)* NLRB, 141 F.2d 47 (3d Cir. 1944).

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															American R. Co. of Porto Rico. 5/13/43 7/1/44 9341 None. 5/12/43
5/13/43 Wage increase. War Labor Board recommenda-

															8 Fed.Reg. 6323. tion.

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 3. Between June 25, 1943, and VJ Day. -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Atlantic Basin Iron Works, Brook- 9/3/43 9/22/43 9375. War Labor
Disputes Act. None. None. Maintenance of membership. War Labor
Board recommenda-

															lyn, N.Y. 8 Fed.Reg. 12253. tion.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Coal Mines. 11/1/43 6/21/44 9393. War Labor Disputes Act.
10/12/43 11/4/43* Changes in wages and hours. Agreement with
Secretary of

															8 Fed.Reg. 14877. 11/1/43 Interior.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Leather Manufacturers in Salem, 11/20/43 12/13/43 9395B. None.
9/25/43 11/24/43* None. (Jurisdictional strike.) None.

															Peabody, and Danvers, Mass. 8 Fed.Reg. 16957. (sporadic)
(sporadic)

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Western Electric Co., Point Breeze 12/19/43 3/23/44 9408. War
Labor Disputes Act. 12/14/43 12/19/43 None. (Strike in protest of
War None.

															plant, Baltimore, Md. 8 Fed.Reg. 16958. Labor Board
nonsegregation

															ruling.)

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Railroads. 12/30/45 1/18/44 9412. Act of Aug. 29, 1916. None.
None. Control relinquished when par- Presidential arbitration based Thorne v. Washington Terminal Co., 8 Fed.Reg. 16958 ties accepted Presidential com- on Railway
Labor Act Emer- 55 F. Supp. 139 (D.D.C.1944)

															promise of wage demands. gency Board recommendations.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Fall River, Mass., Textile Plants. 2/7/44 2/28/44 9420. War
Labor Disputes Act. 12/13/43 2/14/44* Property returned upon agree-
War Labor Board recommenda-

															9 Fed.Reg. 1563. ment by parties on seniority tion.

															provisions.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															[343 U.S. 623]

															Department of Water and Power, 2/23/44 2/29/44 9426. War Labor
Disputes Act. 2/14/44 2/24/44 None. None.

															Los Angeles, Calif. 9 Fed.Reg. 2113.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Jenkins Bros., Inc., Bridgeport, 4/13/44 6/15/44 9435. § 9,
Selective Service Act of 1940 as None. None. Wage increase. War
Labor Board recommenda- In re Jenkins Bros., Inc., 15

															Conn. 9 Fed.Reg. 2113. amended. tion. W.L.R. 719
(D.D.C.1944).**

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Ken-Rad Tube & Lamp Co., 4/13/44 6/15/44 9436. § 9,
Selective Service Act of 1940 as None. None. Changes in wage
scales; main- War Labor Board recommenda- Ken-Rad Tube &
Lamp Corp. v. Owensboro, Ky. 9 Fed.Reg. 4063. amended. tenance of membership.
tion. Badeau, 55 F. Supp.
193 (W.D.Ky. 1944).**

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Montgomery Ward & Co., Chi- 4/25/44 5/9/44 9438. None. None.
None. None. (Government extended War Labor Board recommenda- United States v. Montgomery Ward & cago, Ill., facilities. 9 Fed.Reg. 4459. expired contract
pending tion. Co., 150 F.2d 369

															NLRB election to determine (7th Cir.1945).**

															bargaining representative.)

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Montgomery Ward & Co., Hum- 5/21/44 7/2/45 9443. § 9,
Selective Service Act of 1940 as 5/5/44 5/21/44 Maintenance of
membership; War Labor Board recommenda-

															mer Mfg. division, Springfield, 9 Fed.Reg. 5395 amended.
voluntary check-off. tion.

															Ill.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Philadelphia Transportation Co., 8/3/44 8/17/44 9459. Act of
Aug. 29, 1916. 8/1/44 8/7/44* None. (Strike is protest of None United States v. McMenamin, 58 F.

															Philadelphia, Pa. 9 Fed.Reg. 9878. First War Powers Act of 1941.
WLB nonsegregation ruling.) Supp. 478 (E.D.Pa.1944).**

															§ 9 of Selective Service Act of 1940,

															as amended.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Midwest Trucking Operators. 8/11/44 1/1/45 9462. Act of Aug. 29,
1916. 8/4/44 8/11/44 Wage increase. War Labor Board recommen-

															11/1/45 9 Fed.Reg. 10071. First War Powers Act of 1941.
dation.

															§ 9, Selective Service Act of 1940, as

															amended by the War Labor Disputes Act.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															San Francisco, Calif., Machine 8/14/44 9/14/45 9463. § 9,
Selective Service Act of 1940 as Sporadic. Sporadic. Union agreed
not to discipline War Labor Board recommend- San Francisco
Lodge No. 68 IAM v. Shops. 8/19/44 9 Fed.Reg. 9879. amended. employees who worked
over- dation. Forrestal, 58 F.
Supp. 466 9466. time. Cancellation of em- (N.D.Calif. 1944).

															9 Fed.Reg. 10139. ployee draft deferments, gas

															rations, and job referral rights.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Anthracite Coal Mines. 8/23/44 2/24/45 9469.{9} § 9, Selective
Service Act of 1940 as 6/29/44 8/23/44 None. None.

															9/19/44 9 Fed.Reg. 10343. amended by the War Labor Disputes

															Act. 8/?/44 9/?/44{10}

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															International Nickel Co., Hunt- 8/29/44 10/14/44 9473. § 9,
Selective Service Act of 1940 as 8/18/44 8/29/44 None. None.

															ington, W.Va., plant. 9 Fed.Reg. 10613. amended.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															[343 U.S. 624]

															Hughes Tool Co., Houston Tex., 9/2/44 8/29/45 9475A. § 9,
Selective Service Act of 1940 as None. None. Maintenance of
membership War Labor Board recommenda-

															facilities. 9 Fed.Reg. 10943. amended. during period of seizure.
dation.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Cleveland Graphite Bronze Co., 9/5/44 11/8/44 9477. § 9,
Selective Service Act of 1940 as 8/31/44 9/5/44 Union agreed to
arbitrate griev- War Labor Board recommenda-

															Cleveland, Ohio. 9 Fed.Reg. 10941. amended by the War Labor
Disputes ance which had precipitated dation.

															Act. the strike.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Twentieth Century Brass Works, 9/9/44 2/17/45 9480. § 9,
Selective Service Act of 1940 as 8/21/44 9/9/44 Wage increase. War
Labor Board recommenda-

															Inc., Minneapolis, Minn. 9 Fed.Reg. 11143. amended. tion.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Farrell Cheeck Steel Co., Sandus- 9/23/44 8/28/45 9484. § 9,
Selective Service Act of 1940 as 9/11/44 9/23/44 Wage increase;
maintenance of War Labor Board recommenda-

															ky, Ohio. 9 Fed.Reg. 11731 amended by the War Labor Disputes
membership during period of tion.

															Act. seizure.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Toledo, Ohio, Machine Shops. 11/4/44 11/6/44 9496. § 9,
Selective Service Act of 1940 as 10/27/44 11/5/44 None.
(Jurisdictional strike.) None.

															9 Fed.Reg. 13187. amended by the War Labor Disputes

															Act.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Cudahy Bros. Co., Cudahy, Wis. 12/6/44 8/31/45 9505. § 9,
Selective Service Act of 1940 as None. None. Maintenance of
membership; War Labor Board recommenda-

															9 Fed.Reg. 14473. amended by the War Labor Disputes voluntary
check-off. tion.

															Act.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Montgomery Ward & Co., Detroit, 12,27/44 10/18/45 9508. War
Labor Disputes Act. 12/9/44 12/27/44 Maintenance of membership and
War Labor Board recommenda- National War Labor Board v.
Mont- Mich., and other facilities. 9 Fed.Reg. 15079. § 9, Selective
Service Act of 1940 as voluntary check-off during tion. gomery
Ward & Co., 144 F.2d 528

															amended. period of seizure. (D.C.Cir.1944).

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Cleveland Electric Illuminating 1/13/45 1/15/45 9511. § 9,
Selective Service Act of 1940 as 1/12/45 1/13/45 None. None.

															Co., Cleveland, Ohio. 10 Fed.Reg. 549. amended.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Bingham & Garfield R.R., Utah. 1/24/45 8/29/45 9516. Act of
Aug. 29, 1916. 1/23/45 1/24/45 Property returned upon agree-
Railway Labor Act Emergency

															10 Fed.Reg. 1313. First War Powers Act of 1941. ment by parties
on wage scale Board recommendation.

															War Labor Disputes Act. for certain positions.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															American Enka Corp., Enka, N.C. 2/18/45 6/6/45 9523. War Labor
Disputes Act. 2/7/45 2/18/45 None. (Strike over question of War
Labor Board recommenda-

															10 Fed.Reg. 2133. Selective Service Act as amended. contract
interpretation sub- tion.

															mitted to arbitration.)

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Coal Mines:

															Bituminous. 4/10/45 5/12/45 9536. 4/1/45 4/11/45 Wage increase.
Agreement of parties.

															10/25/45 10 Fed.Reg. 3939. § 9, Selective Service Act as amended
by

															the War Labor Disputes Act.

															Anthracite. 5/3/45 6/23/45 9548. 5/1/45 6/24/45* Wage increase.
Agreement of parties.

															10 Fed.Reg. 5025.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Cities Service Refining Corp., 4/17/45 12/23/45 9540. § 9,
Selective Service Act of 1940 as (?) 4/17/45 None. (Strike over
housing None.

															Lake Charles, La., plant. 10 Fed.Reg. 4193. amended by the War
Labor Disputes conditions.)

															Act.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															United Engineering Co., Ltd., 4/25/45 8/31/45 9542. § 9,
Selective Service Act of 1940 as 4/12/45 (?)* Union's privileges
under con- War Labor Board recommenda-

															San Francisco, Calif. 10 Fed.Reg. 4591. amended by the War Labor
Disputes tract revoked. tion.

															Act.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Cocker Machine & Foundry Co., 5/20/45 8/31/45 9552. § 9,
Selective Service Act of 1940 as (?) 5/20/45 Wage increase;
maintenance of War Labor Board recommenda-

															Gastonia, N.C. 10 Fed.Reg. 5757. amended by the War Labor
Disputes membership during period of tion.

															Act. seizure.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Chicago, Ill., Motor Carriers. 5/23/45 8/16/45 9554. § 9,
Selective Service Act of 1940 as 5/19/45 5/24/45 Wage increase. War
Labor Board recommenda-

															10 Fed.Reg. 5981. amended by the War Labor Disputes tion.

															Act. 6/16/45 6/27/45*

															Act of Aug. 29, 1916.

															First War Powers Act of 1941.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Gaffney Mfg. Co., Gaffney, S.C. 5/28/45 9/9/45 9559. § 9,
Selective Service Act of 1940 as (?) 5/28/45 Wage increase and
maintenance War Labor Board recommenda-

															10 Fed.Reg. 6287. amended by the War Labor Disputes of
membership during period tion.

															Act. of seizure.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Mary-Leila Cotton Mills, Greens- 6/1/45 8/31/45 9560. § 9,
Selective Service Act of 1940 as 4/1/45 6/1/45 Contract extension;
mainte- War Labor Board recommenda-

															boro, Ga. 10 Fed.Reg. 6547. amended by the War Labor Disputes
nance of membership and vol- tion.

															Act. untary check-off during period

															of seizure.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Humble Oil & Refining Co., Ingle- 6/5/45 8/3/45 9564. § 9,
Selective Service Act of 1940 as None. None. Maintenance of
membership War Labor Board recommenda- Eighth Regional War
Labor Bd. v. side, Tex., plant. 10 Fed.Reg. 6791. amended by the War Labor
Disputes during period of seizure. tion. Humble Oil &
Refining Co., 145

															Act. F.2d 462 (5th Cir.1945).**

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Pure Oil Co., Cabin Creek oil 6/6/45 9/10/45 9565. § 9,
Selective Service Act of 1940 as 5/14/45 6/6/45 Maintenance of
membership War Labor Board recommenda-

															field, Dawes, W.Va., facilities. 10 Fed.Reg. 6792. amended by
the War Labor Disputes during period of seizure. tion.

															Act.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Scranton Transit Co., Scranton, 6/14/45 7/8/45 9570. § 9,
Selective Service Act of 1940 as 5/20/45 6/14/45 None. None.

															Pa. 10 Fed.Reg. 6792. amended by § 3 of the War Labor Dis-

															putes Act.

															Act of Aug. 20, 1916.

															First War Powers Act of 1941.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Diamond Alkali Co., Painesville, 6/19/45 7/19/45 9574. § 9,
Selective Service Act of 1940 as 6/15/45 6/19/45 Property returned
upon agree- None.

															Ohio. 10 Fed.Reg. 7435. amended by the War Labor Disputes ment
by parties to wage in-

															Act. crease.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Texas Co., Port Arthur, Tex., 7/1/45 9/10/45 9577A. § 9,
Selective Service Act of 1940 as 6/29/45 7/1/45 None. (Strike over
racial dis-

															plant. 10 Fed.Reg. 8090. amended by the War Labor Disputes
crimination.)

															Act.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Goodyear Tire & Rubber Co., 7/4/45 8/30/45 9585. § 9,
Selective Service Act of 1940 as 6/20/45 7/4/45 Agreement by union
to submit (?).

															Akron, Ohio. 10 Fed.Reg. 8335. amended by the War Labor Disputes
future disputes to federal

															Act. agency.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Sinclair Rubber Co., Houston, 7/19/45 11/19/45 9589A. § 9,
Selective Service Act of 1940 as None. None. Change in union
security ar- War Labor Board recommenda-

															Tex., butadiene plant. 10 Fed.Reg. 8949. amended by the War
Labor Disputes rangements. tions.

															Act.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Springfield Plywood Co., Spring- 7/25/45 8/30/45 9593. § 9,
Selective Service Act of 1940 as (?) 7/25/45 None. None.

															field, Oreg. 10 Fed.Reg. 9379. amended by the War Labor
Disputes

															Act.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															U.S. Rubber Co., Detroit, Mich., 7/31/45 10/10/45 9595. § 9,
Selective Service Act of 1940 as 7/14/45 7/31/45 None. None.

															facilities. 10 Fed.Reg. 9571. amended by the War Labor
Disputes

															Act.

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 4. Between VJ Day and the Expiration of the War Labor Disputes Act Seizure Powers, Dec. 31,
1946. -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Illinois Central R. Co. 8/23/45 5/27/46 9602. § 9, Selective
Service Act of 1940 as None. None. None. (Jurisdictional strike)
Railway Labor Act Emergency

															10 Fed.Reg. 10957. amended by § 3 of the War Labor Board
recommended against

															Disputes Act. change.

															Act of Aug. 29, 1916.

															First War Powers Act of 1941.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Petroleum Refineries and Pipe- 10/4/45 12/12/45 9639. § 9,
Selective Service Act of 1940 as 9/16/45 10/5/45 Plants returned on
agreement of Ad hoc factfinding board recom-

															lines. (One-half national re- 2/?/46 10 Fed.Reg. 12592. amended
by the War Labor Disputes owners to 18 percent wage mendation.

															fining capacity.) Act. increase.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Capital Transit Co., Washington, 11/21/45 1/7/46 9658. § 9,
Selective Service Act of 1940 as 11/6/45 11/7/45 Facilities
returned when parties Ad hoc arbitration board award.

															D.C. 10 Fed.Reg. 14351. amended by § 3 of the War Labor agreed
to arbitration award.

															Disputes Act. 11/20/45 11/21/45 on wages.

															Act of Aug. 29, 1916.

															First War Powers Act of 1941.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Great Lakes Towing Co., Cleve- 11/29/45 12/18/46 9661. § 9.
Selective Service Act of 1940 as 9/4/45 11/29/45 Wage increase.
National Wage Stabilization

															land, Ohio. 10 Fed.Reg. 14591. amended by § 3 of the War Labor
11/1/45 Board recommendation.

															Disputes Act.

															Act. of Aug. 29, 1916.

															First War Powers Act of 1941.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Meatpacking Industry. 1/24/46 3/12/46 9685. § 9, Selective
Service Act of 1940 as 1/16/46 1/28/46* Plants returned as
companies Ad hoc factfinding board recom-

															5/22/46 11 Fed.Reg. 989. amended by the War Labor Disputes
agreed to wage increase rec- mendation approved by Na-

															9690. Act. ommended by factfinding tional Wage Stabilization

															11 Fed.Reg. 1337. board. Board.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															[343 U.S. 627]

															New York Harbor Tugboat Com- 2/5/46 3/3/46 9693. § 9, Selective
Service Act of 1940 as 2/4/46 2/13/46* Properties returned after
agree- None.

															panies. 11 Fed.Reg. 1421. amended by § 3 of the War Labor dis-
ment of parties to arbitrate

															putes Act. dispute.

															Act of Aug. 29, 1916.

															First War Powers Act of 1941.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Railroads. 5/17/46 5/26/46 9727. § 9, Selective Service Act of
1940 as 5/23/46 5/25/46* Properties returned after unions Railway
Labor Act Emergency

															11 Fed.Reg. 5461. amended by § 3 of the War Labor Dis- agreed to
Presidential com- Board recommendation as

															putes Act. promise of wage demands. modified by President.

															Act of Aug. 29, 1916.

															First War Powers Act of 1941.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Bituminous Coal Mines. 5/21/46 6/30/47 9728. § 9, Selective
Service Act of 1940 as 4/1/46 5/11/46 Wage increase, welfare and
re- Contract between union and United States v. United
Mine 11 Fed.Reg. 5593. amended by the War Labor Disputes tirement
fund, mine safety Secretary of Interior. Workers, 330 U. S. 258 , Jones & Act. 5/23/46 5/25/46* provisions, and recognition of Laughlin Steel Co. v. UMW, 159

															UMW as representative of F.2d 18 (D.C.Cir.1946); Krug
v. supervisory employees during Fox, 161 F.2d 1013 (4th
Cir.

															period of seizure. 1947).**

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Monongahela Connecting R. Co., 6/14/46 8/12/46 9736. § 8,
Selective Service Act of 1940 as 6/10/46 6/14/46 None. (Property
returned on None.

															Pittsburgh, Pa. 11 Fed.Reg. 6661. amended by § 3 of the War
Labor Dis- recession of union from wage

															putes Act. demands.)

															Act of Aug. 29, 1916.

															First War Powers Act of 1941.

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 5. Since the expiration of the War Labor Disputes Act Seizure Powers, Dec. 31,
1946. -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Railroads. 5/10/48 7/9/48 9957. Act of Aug. 29, 1916. None.
None. Property returned on agreement Railway Labor Act Emergency United States v. Brotherhood of 13 Fed.Reg. 2502. of parties to wage increase. Board
recommendation as Locomotive Engineers, 79 F.Supp.

															modified. 485 (D.D.C.1948).

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Chicago, Rock Island & Pacific 7/8/50 5/23/52 10141. Act of
Aug. 29, 1916. 6/25/50 7/8/50 Property returned on agreement
Railway Labor Act Emergency

															R.Co. 15 Fed.Reg. 4363. of parties to wage increase. Board
recommendation as

															modified.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Railroads. 8/27/50 5/23/52 10155. Act of Aug. 29, 1916. 12/10/50
12/15/50 Agreement reached by carriers Railway Labor Act
Emergency

															15 Fed.Reg. 5785. and some of the Brotherhoods Board
recommendation as

															1/29/51 2/19/51 put into effect. Property re- modified.

															turned on agreement of parties

															3/9/52 3/12/52 to wage increase.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															[343 U.S. 628]

															World War II Period{4} -- Seizures

															Unconnected with Labor Disputes

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															DURATION OF EXECUTIVE

															PLANT OR FACILITY SEIZED SEIZURE ORDER STATUTORY AUTHORITY
CITED{5} REASONS FOR SEIZURE CHANGES INSTITUTED DURING SEIZURE

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															From To

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Grand River Dam Authority, Okla- 11/19/41 7/41/46 8944. § 16,
Federal Power Act. This was a State power project, financed by
federal Federal Works Administrator replaced management

															homa. 6 Fed.Reg. 5947. loan and grant. Seizure was based on (1)
State de- and completed the project. Transferred to Depart-

															fault on loan interest; (2) refusal of State legislature ment of
Interior, Executive Order No. 9373, 8 Fed.

															to issue bonds to complete financing; (3) failure to Reg. 12001,
8/30/43. Returned pursuant to Act of

															meet scheduled completion date in power-short de- July 31, 1946,
60 Stat. 743.

															fense ares.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Brewster Aeronautical Corp., Long 4/18/42 5/20/42 9141. None.
(1) Inefficient management; (2) failure to operate at New board of
directors and officers installed; majority

															Island City, N.U., Newark, 7 Fed.Reg. 2961. full capacity; (3)
failure to maintain delivery sched- shareholders established 2
1/2-year voting trust in favor

															N.J., Johnsville, Pa. ules on Army and Navy aircraft.
(Congressional of new president.

															investigation suggested labor difficulties as well, due

															to employment of enemy aliens.)

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Triumph Explosives, Inc., Mary- 10/12/42 2/28/43 9254. None.
Overpayments (presumably bribes) of $1,400,000 to New board of
directors and officers; indictments against

															land and Delaware plants. 6/5/43 7 Fed.Reg. 8333. procurement
officers. former officials.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Howarth Pivoted Bearings Co., 6/14/43 8/25/45 9351. None.
Inefficient management. Designees of Secretary of Navy operated
plant for

															Philadelphia, Pa. 8 Fed.Reg. 8097. duration of war.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Remington Rand, Inc., Southport, 11/23/43 9/30/44 9399. § 9,
Selective Service Act of 1940 as (1) Norden bombsight parts
production of unaccept- Designees of Secretary of Navy supervised
operations

															N.Y., plant. 8 Fed.Reg. 16269. amended. able quality; (2)
deliveries behind schedule. for duration of seizure.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Los Angeles Shipbuilding & Dry- 12/8/43 8/25/45 9400. § 9,
Selective Service Act of 1940 as (1) Excessive costs; (2)
production behind schedule. Operated by contractor (Todd Shipyard
Co.) for dura-

															dock Corp., Los Angeles, Calif. 8 Fed.Reg. 16641. amended. tion
of war.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															York Safe & Lock Co., York, Pa. 1/23/44 3/15/45 9416. § 9,
Selective Service Act of 1940 as (1) Inefficient management; (2)
deliveries behind Designees of Secretary of Navy operated company
for

															9 Fed.Reg.936. amended. schedule. duration of war, except for a
portion which was con-

															demned and transferred to Blaw-Knox Co.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															Lord Mfg. Co., Erie, Pa.{11} 10/24/45 8/25/45 9493. Tit. VIII,
Revenue Act of 1943. Refusal to deliver items at "fair and
reasonable Designees of Secretary of Navy operated company for

															9 Fed.Reg. 12860. § 9, Selective Service Act of 1940 as prices"
fixed by the Secretary of the Navy in con- duration of war.

															amended.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

															ewm:

															APPENDIX FOOTNOTES

															* Governmental possession of the Nation's railroads taken on
December 28, 1917, was specifically terminated by statute on March
1, 1920, prior to the end of the "war." See § 200 of the
Transportation Act of 1920, 41 Stat. 456, 457.

															1. Clyde B. Aitchison states that, on March 31, 1861, the
Federal authorities took "under military control the Philadelphia,
Wilmington & Baltimore Railway to insure uninterrupted
communication between the North Atlantic States and Washington."
Aitchison, War Time Control of American Railways, 26 Va.L.Rev. 847,
856 (1940). He adds that the return of the road to its private
owners followed "shortly thereafter." Ibid. Original
documents on this seizure are unavailable, and it has, therefore,
not been included in this table.

															2. The material in this table is taken from original documents
in the National Archives and Hearings before the Senate Special
Committee Investigating the Munitions Industry, 73d Cong., Part 17,
4270-4271 (1934).

															3. Although no specific statutory authority was cited in the
seizing order, it is clear from correspondence and reports in
connection with the administration of the program that the seizure
was effected under wartime legislation. See, e.g., Davisson, History of the Advisory Section, Administrative Division,
Ordnance Office in connection with the Commandeering of Private
Property, National Archives, Records of the War Department, Office
of the Chief of Ordnance, O.O. 023/1362, Nov. 1920; Letter from
Ordnance Office, Administrative Division to The Adjutant General,
National Archives, Records of the War Department, Office of The
Adjutant General, AG 386.2, Jan. 7, 1919.

															4. The material in this table is summarized from a number of
sources, chief of which are the War Labor Reports, contemporary
accounts in the New York Times, United States National Wage
Stabilization Board, Research and statics report No. 2 (1946), and
Johnson, Government Seizures and Labor Disputes (Philadelphia, Pa.,
1948) (unpublished doctoral dissertation at the University of
Pennsylvania). Question marks appear in the tables in instances
where no satisfactory information on the particular point was
available.

															5. Each of the Executive Orders uses the stock phrase "the
Constitution and laws" as authority for the President's action, as
well as his position as Commander in Chief. Only specific statutory
authority relied upon is given in this table. The form of reference
of the particular Executive Order is used. Statutes referred to in
the table are analyzed in Appendix I, supra, p. 343 U. S. 615 .
For convenience, their citations are repeated here:

															(1) Army Appropriations Act of Aug. 29, 1916, 39 Stat. 619, 645,
10 U.S.C. § 1361.

															(2) Federal Water Power Act of 1920, § 16, 41 Stat. 1063, 1072,
16 U.S.C. § 809.

															(3) Selective Training and Service Act of 1940, § 9, 54 Stat.
885, 892.

															(4) War Labor Disputes Act, § 3, 57 Stat. 163, 164.

															(5) Revenue Act of 1943, Tit. VIII, "Repricing of War
Contracts," 58 Stat. 21, 92.

															When seizures of transportation facilities were effected through
agencies other than the War Department, the First War Powers Act of
1941, 55 Stat. 838, was cited. Title I of that Act permitted the
President to shift certain functions among executive agencies in
aid of the war effort. The Act of Aug. 29, 1916, authorizing
seizure of transportation facilities, specified that it should be
accomplished through the Secretary of War.

															6. Stoppages continuing during seizure are indicated by an
asterisk (*).

															7. Unless otherwise indicated, changes in conditions of
employment instituted during seizure were continued by management
upon the return of the facilities to its control.

															8. Validity of seizure was challenged in comparatively few
cases. Most litigation concerned the consequences of seizure. Cases
in which the validity of the seizure was attacked are indicated by
double asterisks (**).

															9. This order was followed by a series drawn in the same terms
extending the seizure to additional mines. The Executive Orders
were: No. 9474; 9 Fed.Reg. 10815; No. 9476, 9 Fed.Reg. 10817; No.
9478, 9 Fed.Reg. 11045; No. 9481, 9 Fed.Reg. 11387; No. 9482, 9
Fed.Reg. 11459; No. 9483, 9 Fed.Reg. 11601.

															10. A series of strikes for recognition by supervisory employees
at the various mines were usually, though not always, terminated on
seizure of the affected property.

															11. See Lord Mfg. Co. v. Collisson, 62 F. Supp. 79
(W.D.Pa. 1945). Page 343 U. S. 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 emergency did not create power; it merely
marked an occasion when power should be exercised. And the fact
that it was necessary that measures be taken to keep steel in
production does not mean that the President, rather than the
Congress, had the constitutional authority to act. The Congress, as
well as the President, is trustee of the national welfare. The
President can act more quickly than the Congress. The President,
with the armed services at his disposal, can move with force, as
well as with speed. All executive power -- from the reign of
ancient kings to the rule of modern dictators -- has the outward
appearance of efficiency.

															Legislative power, by contrast, is slower to exercise. There
must be delay while the ponderous machinery of committees,
hearings, and debates is put into motion. That takes time, and,
while the Congress slowly moves into action, the emergency may take
its toll in wages, consumer goods, war production, the standard of
living of the people, and perhaps even lives. Legislative action
may indeed often be cumbersome, time-consuming, and apparently
inefficient. But, as Mr. Justice Brandeis stated in his dissent in Myers v. United States, 272 U. S. 52 , 272 U. S.
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. " Page 343 U. S. 630 We therefore cannot decide this case by determining which branch
of government can deal most expeditiously with the present crisis.
The answer must depend on the allocation of powers under the
Constitution. That, in turn, requires an analysis of the conditions
giving rise to the seizure, and of the seizure itself.

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

															The method by which industrial peace is achieved is of vital
importance not only to 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 Page 343 U. S. 631 takes over an industrial plant to settle a labor controversy, it
is condemning property. The seizure of the plant is a taking in the
constitutional sense. United States v Pewee Coal Co., 341 U. S. 114 . A
permanent taking would amount to the nationalization of the
industry. A temporary taking falls short of that goal. But though
the seizure is only for a week or a month, the condemnation is
complete, and the United States must pay compensation for the
temporary possession. United States v. General Motors
Corp., 323 U. S. 373 ; United States v. Pewee Coal Co., supra. The power of the Federal Government to condemn property is well
established. Kohl v. United States, 91 U. S.
367 . It can condemn for any public purpose, and I have
no doubt but that condemnation of a plant, factory, or industry in
order to promote industrial peace would be constitutional. But
there is a duty to pay for all property taken by the Government.
The command of the Fifth Amendment is that no "private property be
taken for public use, without just compensation." That
constitutional requirement has an important bearing on the present
case.

															The President has no power to raise revenues. That power is in
the Congress by Article I, Section 8 of the Constitution. The
President might seize, and the Congress, by subsequent action,
might ratify the seizure. [ Footnote
3/1 ] 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 Page 343 U. S. 632 the President has effected. [ Footnote 3/2 ] That seems to me to be the necessary
result of the condemnation provision in the Fifth Amendment. It
squares with the theory of checks and balances expounded by MR.
JUSTICE BLACK in the opinion of the Court, in which I join.

															If we sanctioned the present exercise of power by the President,
we would be expanding Article II of the Constitution and rewriting
it to suit the political conveniences of the present emergency.
Article II, which vests the "executive Power" in the President,
defines that power with particularity. Article II, Section 2, makes
the Chief Executive the Commander in Chief of the Army and Navy.
But our history and tradition rebel at the thought that the grant
of military power carries with it authority over civilian affairs.
Article II, Section 3 provides that the President shall,

															"from time to time give to the Congress Information of the State
of the Union, and recommend to their Consideration such Measures as
he shall judge necessary and expedient."

															The power to recommend legislation, granted to the President,
serves only to emphasize that it is his function to recommend, and
that it is the function of the Congress to legislate. Article
II, Page 343 U. S. 633 Section 3, also provides that the President "shall take Care
that the Laws be faithfully executed." But, as MR. JUSTICE BLACK
and MR. JUSTICE FRANKFURTER point out, the power to execute the
laws starts and ends with the laws Congress has enacted.

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

															We pay a price for our system of checks and balances, for the
distribution of power among the three branches of government. It is
a price that today may seem exorbitant to many. Today, a kindly
President uses the seizure power to effect a wage increase and to
keep the steel furnaces in production. Yet tomorrow, another Page 343 U. S. 634 President might use the same power to prevent a wage increase,
to curb trade unionists, to regiment labor as oppressively as
industry thinks it has been regimented by this seizure.

															[ Footnote 3/1 ]

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

															[ Footnote 3/2 ]

															Mr. Justice Brandeis, speaking for the Court in United
States v. North American Co., 253 U.
S. 330 , 253 U. S. 333 ,
stated that the basis of the Government's liability for a taking of
property was legislative authority:

															"In order that the Government shall be liable, it must appear
that the officer who has physically taken possession of the
property was duly authorized so to do, either directly by Congress
or by the official upon whom Congress conferred the power."

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

															Wartime seizures by the military in connection with military
operations ( cf. 80 U. S. Russell, 13 Wall. 623) are also in a different category.

															MR. JUSTICE JACKSON, concurring in the judgment and opinion of
the Court.

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

															A judge, like an executive adviser, may be surprised at the
poverty of really useful and unambiguous authority applicable to
concrete problems of executive power as they actually present
themselves. 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 Page 343 U. S. 635 respected sources on each side of any question. They largely
cancel each other. [ Footnote 4/1 ]
And court decisions are indecisive because of the judicial practice
of dealing with the largest questions in the most narrow way.

															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. [ Footnote
4/2 ] In these circumstances, Page 343 U. S. 636 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, Page 343 U. S. 637 as an undivided whole, lacks power. A seizure executed by the
President pursuant to an Act of Congress would be supported by the
strongest of presumptions and the widest latitude of judicial
interpretation, and the burden of persuasion would rest heavily
upon any who might attack it.

															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. [ Footnote 4/3 ]

															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 Page 343 U. S. 638 the Congress from acting upon the subject. [ Footnote 4/4 ] 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. [ Footnote 4/5 ] Page 343 U. S. 639 Can it then be defended under flexible tests available to the
second category? It seems clearly eliminated from that class,
because Congress has not left seizure of private property an open
field, but has covered it by three statutory policies inconsistent
with this seizure. In cases where the purpose is to supply needs of
the Government itself, two courses are provided: one, seizure of a
plant which fails to comply with obligatory orders placed by the
Government; [ Footnote 4/6 ] another,
condemnation of facilities, including temporary use under the power
of eminent domain. [ Footnote 4/7 ]
The third is applicable where it is the general economy of the
country that is to be protected, rather than exclusive governmental
interests. [ Footnote 4/8 ] 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. Page 343 U. S. 640 This leaves the current seizure to be justified only by the
severe tests under the third grouping, where it can be supported
only by any remainder of executive power after subtraction of such
powers as Congress may have over the subject. In short, we can
sustain the President only by holding that seizure of such
strike-bound industries is within his domain and beyond control by
Congress. Thus, this Court's first review of such seizures occurs
under circumstances which leave presidential power most vulnerable
to attack and in the least favorable of possible constitutional
postures.

															I did not suppose, and I am not persuaded, that history leaves
it open to question, at least in the courts, that the executive
branch, like the Federal Government as a whole, possesses only
delegated powers. The purpose of the Constitution was not only to
grant power, but to keep it from getting out of hand. However,
because the President does not enjoy unmentioned powers does not
mean that the mentioned ones should be narrowed by a niggardly
construction. Some clauses could be made almost unworkable, as well
as immutable, by refusal to indulge some latitude of interpretation
for changing times. I have heretofore, and do now, give to the
enumerated powers the scope and elasticity afforded by what seem to
be reasonable, practical implications, instead of the rigidity
dictated by a doctrinaire textualism.

															The Solicitor General seeks the power of seizure in three
clauses of the Executive Article, the first reading, "The executive
Power shall be vested in a President of the United States of
America." Lest I be thought to exaggerate, I quote the
interpretation which his brief puts upon it: "In our view, this
clause constitutes a grant of all the executive powers of which the
Government is capable." If that be true, it is difficult to see why
the Page 343 U. S. 641 forefathers bothered to add several specific items, including
some trifling ones. [ Footnote
4/9 ]

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

															The clause on which the Government next relies is that "The
President shall be Commander in Chief of the Army and Navy of the
United States. . . ." These cryptic words have given rise to some
of the most persistent controversies in our constitutional history.
Of course, they imply something more than an empty title. But just
what authority goes with the name has plagued presidential advisers
who would not waive or narrow it by nonassertion, yet cannot say
where it begins or ends. It undoubtedly puts the Nation's armed
forces under presidential command. Hence, this loose appellation is
sometimes advanced as support for any presidential action, internal
or external, involving use of force, the Page 343 U. S. 642 idea being that it vests power to do anything, anywhere, that
can be done with an army or navy.

															That seems to be the logic of an argument tendered at our bar --
that the President having, on his own responsibility, sent American
troops abroad derives from that act "affirmative power" to seize
the means of producing a supply of steel for them. To quote,

															"Perhaps the most forceful illustration of the scope of
Presidential power in this connection is the fact that American
troops in Korea, whose safety and effectiveness are so directly
involved here, were sent to the field by an exercise of the
President's constitutional powers."

															Thus, it is said, he has invested himself with "war powers."

															I cannot foresee all that it might entail if the Court should
indorse this argument. Nothing in our Constitution is plainer than
that declaration of a war is entrusted only to Congress. Of course,
a state of war may, in fact, exist without a formal 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. [ Footnote
4/10 ] Page 343 U. S. 643 I do not, however, find it necessary or appropriate to consider
the legal status of the Korean enterprise to discountenance
argument based on it.

															Assuming that we are in a war de facto, whether it is
or is not a war de jure, does that empower the Commander
in Chief to seize industries he thinks necessary to supply our
army? The Constitution expressly places in Congress power "to raise
and support Armies" and "to provide and maintain a Navy." (Emphasis supplied.) This certainly lays
upon Congress primary responsibility for supplying the armed
forces. Congress alone controls the raising of revenues and their
appropriation, and may determine in what manner and by what means
they shall be spent for military and naval procurement. I suppose
no one would doubt that Congress can take over war supply as a
Government enterprise. On the other hand, if Congress sees fit to
rely on free private enterprise collectively bargaining with free
labor for support and maintenance of our armed forces, can the
Executive, because of lawful disagreements incidental to that
process, seize the facility for operation upon Government-imposed
terms?

															There are indications that the Constitution did not contemplate
that the title Commander in Chief of the Page 343 U. S. 644 Army and Navy will constitute him also Commander in
Chief of the country, its industries and its inhabitants. He has no
monopoly of "war powers," whatever they are. While Congress cannot
deprive the President of the command of the army and navy, only
Congress can provide him an army or navy to command. It is also
empowered to make rules for the "Government and Regulation of land
and naval Forces," by which it may, to some unknown extent, impinge
upon even command functions.

															That military powers of the Commander in Chief were not to
supersede representative government of internal affairs seems
obvious from the Constitution and from elementary American history.
Time out of mind, and even now, in many parts of the world, a
military commander can seize private housing to shelter his troops.
Not so, however, in the United States, for the Third Amendment
says,

															"No Soldier shall, in time of peace be quartered in any house,
without the consent of the Owner, nor in time of war, but in a
manner to be prescribed by law."

															Thus, even in war time, his seizure of needed military housing
must be authorized by Congress. It also was expressly left to
Congress to "provide for calling forth the Militia to execute the
Laws of the Union, suppress Insurrections and repel Invasions. . .
." [ Footnote 4/11 ] Such a
limitation on the command power, written at a time when the
militia, rather than a standing army, was contemplated as the
military weapon of the Republic, underscores the Constitution's
policy that Congress, not the Executive, should control utilization
of the war power as an instrument of domestic policy. Congress,
fulfilling that function, has authorized the President to use the
army to enforce certain civil rights. [ Footnote 4/12 ] On the other hand, Congress has
forbidden him to use the army for the purpose Page 343 U. S. 645 of executing general laws except when expressly authorized by
the Constitution or by Act of Congress. [ Footnote 4/13 ]

															While broad claims under this rubric often have been made,
advice to the President in specific matters usually has carried
overtones that powers, even under this head, are measured by the
command functions usual to the topmost officer of the army and
navy. Even then, heed has been taken of any efforts of Congress to
negative his authority. [ Footnote
4/14 ]

															We should not use this occasion to circumscribe, much less to
contract, the lawful role of the President as Commander in Chief. I
should indulge the widest latitude of interpretation to sustain his
exclusive function to command the instruments of national force, at
least when turned against the outside world for the security of our
society. But, when it is turned inward not because of rebellion,
but because of a lawful economic struggle between industry and
labor, it should have no such indulgence. His command power is not
such an absolute as might be implied from that office in a
militaristic system, but is subject to limitations consistent with
a constitutional Republic whose law and policymaking branch Page 343 U. S. 646 is a representative Congress. The purpose of lodging dual titles
in one man was to insure that the civilian would control the
military, not to enable the military to subordinate the
presidential office. No penance would ever expiate the sin against
free government of holding that a President can escape control of
executive powers by law through assuming his military role. What
the power of command may include I do not try to envision, but I
think it is not a military prerogative, without support of law, to
seize persons or property because they are important or even
essential for the military and naval establishment.

															The third clause in which the Solicitor General finds seizure
powers is that "he shall take Care that the Laws be faithfully
executed. . . . [ Footnote 4/15 ]
That authority must be matched against words of the Fifth Amendment
that "No person shall be . . . deprived of life, liberty or
property, without due process of law. . . ." One gives a
governmental authority that reaches so far as there is law, the
other gives a private right that authority shall go no farther.
These signify about all there is of the principle that ours is a
government of laws, not of men, and that we submit ourselves to
rulers only if under rules.

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

															Loose and irresponsible use of adjectives colors all nonlegal
and much legal discussion of presidential powers. Page 343 U. S. 647 "Inherent" powers, "implied" powers, "incidental" powers,
"plenary" powers, "war" powers and "emergency" powers are used,
often interchangeably and without fixed or ascertainable
meanings.

															The vagueness and generality of the clauses that set forth
presidential powers afford a plausible basis for pressures within
and without an administration for presidential action beyond that
supported by those whose responsibility it is to defend his actions
in court. The claim of inherent and unrestricted presidential
powers has long been a persuasive dialectical weapon in political
controversy. While it is not surprising that counsel should grasp
support from such unadjudicated claims of power, a judge cannot
accept self-serving press statements of the attorney for one of the
interested parties as authority in answering a constitutional
question, even if the advocate was himself. But prudence has
counseled that actual reliance on such nebulous claims stop short
of provoking a judicial test. [ Footnote 4/16 ] Page 343 U. S. 648 The Solicitor General, acknowledging that Congress has never
authorized the seizure here, says practice of prior Presidents has
authorized it. He seeks color of legality from claimed executive
precedents, chief of which is President Roosevelt's seizure, on
June 9, 1941, of the California plant of the North American
Aviation Company. Its superficial similarities with the present
case, upon analysis, yield to distinctions so decisive that it Page 343 U. S. 649 cannot be regarded as even a precedent, much less an authority
for the present seizure. [ Footnote
4/17 ]

															The appeal, however, that we declare the existence of inherent
powers ex necessitate to meet an emergency asks us to do
what many think would be wise, although Page 343 U. S. 650 it is something the forefathers omitted. They knew what
emergencies were, knew the pressures they engender for
authoritative action, knew, too, how they afford a ready pretext
for usurpation. We may also suspect that they suspected that
emergency powers would tend to kindle emergencies. Aside from
suspension of the privilege of the writ of habeas corpus in time of
rebellion or invasion, when the public safety may require it,
[ Footnote 4/18 ] they made no
express provision for exercise of extraordinary authority because
of a crisis. [ Footnote 4/19 ] I do
not think we rightfully may so amend their work, and, if we could,
I am not convinced it would be wise to do so, although many modern
nations have forthrightly recognized that war and economic crises
may upset the normal balance between liberty and authority. Page 343 U. S. 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.

															Germany, after the First World War, framed the Weimar
Constitution, designed to secure her liberties in the Western
tradition. However, the President of the Republic, without
concurrence of the Reichstag, was empowered temporarily to suspend
any or all individual rights if public safety and order were
seriously disturbed or endangered. This proved a temptation to
every government, whatever its shade of opinion, and, in 13 years,
suspension of rights was invoked on more than 250 occasions.
Finally, Hitler persuaded President Von Hindenberg to suspend all
such rights, and they were never restored. [ Footnote 4/20 ]

															The French Republic provided for a very different kind of
emergency government known as the "state of siege." It differed
from the German emergency dictatorship, particularly in that
emergency powers could not be assumed at will by the Executive, but
could only be granted as a parliamentary measure. And it did not,
as in Germany, result in a suspension or abrogation of law, but was
a legal institution governed by special legal rules and terminable
by parliamentary authority. [ Footnote
4/21 ]

															Great Britain also has fought both World Wars under a sort of
temporary dictatorship created by legislation. [ Footnote 4/22 ] As Parliament is not bound by
written constitutional limitations, it established a crisis
government simply by Page 343 U. S. 652 delegation to its Ministers of a larger measure than usual of
its own unlimited power, which is exercised under its supervision
by Ministers whom it may dismiss. This has been called the
"high-water mark in the voluntary surrender of liberty," but, as
Churchill put it,

															"Parliament stands custodian of these surrendered liberties, and
its most sacred duty will be to restore them in their fullness when
victory has crowned our exertions and our perseverance. [ Footnote 4/23 ]"

															Thus, parliamentary control made emergency powers compatible
with freedom.

															This contemporary foreign experience may be inconclusive as to
the wisdom of lodging emergency powers somewhere in a modern
government. But it suggests that emergency powers are consistent
with free government only when their control is lodged elsewhere
than in the Executive who exercises them. That is the safeguard
that would be nullified by our adoption of the "inherent powers"
formula. Nothing in my experience convinces me that such risks are
warranted by any real necessity, although such powers would, of
course, be an executive convenience.

															In the practical working of our Government, we already have
evolved a technique within the framework of the Constitution by
which normal executive powers may be considerably expanded to meet
an emergency. Congress may and has granted extraordinary
authorities which lie dormant in normal times but may be called
into play by the Executive in war or upon proclamation of a
national emergency. In 1939, upon congressional request, the
Attorney General listed ninety-nine such separate statutory grants
by Congress of emergency or wartime executive powers. [ Footnote 4/24 ] They were invoked from
time to time as need appeared. Under this procedure, we retain
Government Page 343 U. S. 653 by law -- special, temporary law, perhaps, but law nonetheless.
The public may know the extent and limitations of the powers that
can be asserted, and persons affected may be informed from the
statute of their rights and duties.

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

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

															Executive power has the advantage of concentration in a single
head in whose choice the whole Nation has a part, making him the
focus of public hopes and expectations. In drama, magnitude and
finality, his decisions so far overshadow any others that, almost
alone, he fills the public eye and ear. No other personality in
public life can begin to compete with him in access to the public
mind through modern methods of communications. By his prestige as
head of state and his influence upon public opinion, he exerts a
leverage upon those who are supposed Page 343 U. S. 654 to check and balance his power which often cancels their
effectiveness.

															Moreover, rise of the party system has made a significant
extraconstitutional supplement to real executive power. No
appraisal of his necessities is realistic which overlooks that he
heads a political system, as well as a legal system. Party
loyalties and interests, sometimes more binding than law, extend
his effective control into branches of government other than his
own, and he often may win, as a political leader, what he cannot
command under the Constitution. Indeed, Woodrow Wilson, commenting
on the President as leader both of his party and of the Nation,
observed,

															"If he rightly interpret the national thought and boldly insist
upon it, he is irresistible. . . . His office is anything he has
the sagacity and force to make it. [ Footnote 4/25 ]"

															I cannot be brought to believe that this country will suffer if
the Court refuses further to aggrandize the presidential office,
already so potent and so relatively immune from judicial review,
[ Footnote 4/26 ] at the expense of
Congress.

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

															The essence of our free Government is "leave to live by no man's
leave, underneath the law" -- to be governed by those impersonal
forces which we call law. Our Government Page 343 U. S. 655 is fashioned to fulfill this concept so far as humanly possible.
The Executive, except for recommendation and veto, has no
legislative power. The executive action we have here originates in
the individual will of the President, and represents an exercise of
authority without law. No one, perhaps not even the President,
knows the limits of the power he may seek to exert in this
instance, and the parties affected cannot learn the limit of their
rights. We do not know today what powers over labor or property
would be claimed to flow from Government possession if we should
legalize it, what rights to compensation would be claimed or
recognized, or on what contingency it would end. With all its
defects, delays and inconveniences, men have discovered no
technique for long preserving free government except that the
Executive be under the law, and that the law be made by
parliamentary deliberations.

															Such institutions may be destined to pass away. But it is the
duty of the Court to be last, not first, to give them up. [ Footnote 4/27 ]

															[ Footnote 4/1 ]

															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 , 236 U. S. 467 ,
468, with his appraisal of executive power in "Our Chief
Magistrate and His Powers" 139-140.

															[ Footnote 4/2 ]

															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 , 239 U. S.
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 239 U. S.
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, 54 U. S. Montgomery, 13 How. 498, 54 U. S. 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.

															[ Footnote 4/3 ]

															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, 71 U. S. 125 ; See Ex parte
Bollman , 4 Cranch 75, 8 U. S. 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 68 U.
S. 1 Wall. 243, with Ex parte Milligan,
supra. [ Footnote 4/4 ]

															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.

															[ Footnote 4/5 ]

															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.

															[ Footnote 4/6 ]

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

															[ Footnote 4/7 ]

															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.

															[ Footnote 4/8 ]

															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.

															[ Footnote 4/9 ]

															". . . he may require the Opinion, in writing, of the principal
Officer in each of the executive Departments, upon any Subject
relating to the Duties of their respective Offices. . . ."

															U.S.Const., Art. II, § 2. He ". . . shall Commission all the
Officers of the United States." U.S.Const., Art. II, § 3. Matters
such as those would seem to be inherent in the Executive, if
anything is.

															[ Footnote 4/10 ]

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

															"Tripoli, the least considerable of the Barbary States, had come
forward with demands unfounded either in right or in compact, and
had permitted itself to denounce war on our failure to comply
before a given day. The style of the demand admitted but one
answer. I sent a small squadron of frigates into the Mediterranean
. . . with orders to protect our commerce against the threatened
attack. . . . Our commerce in the Mediterranean was blockaded, and
that of the Atlantic in peril. . . . One of the Tripolitan cruisers
having fallen in with and engaged the small schooner Enterprise, . . . was captured, after a heavy slaughter of
her men. . . . Unauthorized by the Constitution, without the
sanction of Congress, to go beyond the line of defense, the vessel,
being disabled from committing further hostilities, was liberated
with its crew. The Legislature will doubtless consider whether, by
authorizing measures of offense also, they will place our force on
an equal footing with that of its adversaries. I communicate all
material information on this subject, that, in the exercise of this
important function confided by the Constitution to the Legislature
exclusively, their judgment may form itself on a knowledge and
consideration of every circumstance of weight."

															I Richardson, Messages and Papers of the Presidents, 314.

															[ Footnote 4/11 ]

															U.S.Const., Art. I, § 8, cl. 15.

															[ Footnote 4/12 ]

															14 Stat. 29, 16 Stat. 143, 8 U.S.C. § 55.

															[ Footnote 4/13 ]

															20 Stat. 152, 10 U.S. C § 15

															[ Footnote 4/14 ]

															In 1940, President Roosevelt proposed to transfer to Great
Britain certain overage destroyers and small patrol boats then
under construction. He did not presume to rely upon any claim of
constitutional power as Commander in Chief. On the contrary, he was
advised that such destroyers -- if certified not to be essential to
the defense of the United States -- could be "transferred,
exchanged, sold, or otherwise disposed of," because Congress had so
authorized him. Accordingly, the destroyers were exchanged for air
bases. In the same opinion, he was advised that Congress had
prohibited the release or transfer of the so-called "mosquito
boats" then under construction, so those boats were not
transferred. Acquisition of Naval and Air Bases in Exchange for
Over-age Destroyers, 39 Op.Atty.Gen. 484. See also Training of British Flying Students in the United States, 40
Op.Atty.Gen. 58.

															[ Footnote 4/15 ]

															U.S.Const., Art. II, § 3.

															[ Footnote 4/16 ]

															President Wilson, just before our entrance into World War I,
went before the Congress and asked its approval of his decision to
authorize merchant ships to carry defensive weapons. He said:

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

															XVII Richardson, op. cit., 8211.

															When our Government was itself in need of shipping whilst ships
flying the flags of nations overrun by Hitler, as well as
belligerent merchantmen, were immobilized in American harbors where
they had taken refuge, President Roosevelt did not assume that it
was in his power to seize such foreign vessels to make up our own
deficit. He informed Congress:

															"I am satisfied, after consultation with the heads of the
interested departments and agencies of the Government, that we
should have statutory authority to take over any such vessels as
our needs may require. . . ."

															87 Cong.Rec. 3072 (77th Cong., 1st Sess.); The Public Papers and
Addresses of Franklin D. Roosevelt, 1941 (Rosenman), 94. The
necessary statutory authority was shortly forthcoming. 55 Stat.
242.

															In his first inaugural address, President Roosevelt pointed out
two courses to obtain legislative remedies, one being to enact
measures he was prepared to recommend, the other to enact measures
"the Congress may build out of its experience and wisdom." He
continued,

															"But in the event that the Congress shall fail to take one of
these two courses, and in the event that the national emergency is
still critical, I shall not evade the clear course of duty that
will then confront me. I shall ask the Congress for the one
remaining instrument to meet the crisis -- broad Executive
power to wage a war against the emergency, as great as the power
that would be given to me if we were, in fact, invaded by a foreign
foe."

															(Emphasis supplied.) The Public Papers and Addresses of Franklin
D. Roosevelt, 1933 (Rosenman), 15.

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

															It is interesting to note Holdsworth's comment on the powers of
legislation by proclamation when in the hands of the Tudors.

															"The extent to which they could be legally used was never
finally settled in this century, because the Tudors made so tactful
a use of their powers that no demand for the settlement of this
question was raised."

															4 Holdsworth, History of English Law, 104.

															[ Footnote 4/17 ]

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

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

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

															"However, with regard to the question of the power of the
Government under Title III, I might point out that the inherent
power of the President to deal with emergencies that affect the
health, safety and welfare of the entire Nation is exceedingly
great. See Opinion of Attorney General Murphy of October
4, 1939 (39 Op.A.G. 344, 347); United States v. United Mine
Workers of America, 330 U. S. 258 (1947)." See Hearings before the Senate Committee on Labor and
Public Welfare on S. 249, 81st Cong., 1st Sess. 263. Regardless of
the general reference to "inherent powers," the citations were
instances of congressional authorization. I do not suppose it is
open to doubt that power to see that the laws are faithfully
executed was ample basis for the specific advice given by the
Attorney General in this letter.

															[ Footnote 4/18 ]

															U.S. Const., Art. I, § 9, cl. 2.

															[ Footnote 4/19 ]

															I exclude, as in a very limited category by itself, the
establishment of martial law. Cf. 71 U.
S. 4 Wall. 2; Duncan v. Kahanamoku, 327 U. S. 304 .

															[ Footnote 4/20 ]

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

															[ Footnote 4/21 ]

															Rossiter, Constitutional Dictatorship, 117-129.

															[ Footnote 4/22 ]

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

															[ Footnote 4/23 ]

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

															[ Footnote 4/24 ]

															39 Op.Atty.Gen. 348.

															[ Footnote 4/25 ]

															Wilson, Constitutional Government in the United States, 669.

															[ Footnote 4/26 ]

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

															[ Footnote 4/27 ]

															We follow the judicial tradition instituted on a memorable
Sunday in 1612 when King James took offense at the independence of
his judges and, in rage, declared: "Then I am to be under the law -- which it is treason to affirm." Chief Justice Coke
replied to his King: "Thus, wrote Bracton, The King ought not
to be under any man, but he is under God and the Law.'" 12 Coke 65
(as to its verity, 18 Eng.Hist.Rev. 664-675); 1 Campbell, Lives of
the Chief Justices (1849), 272. MR. JUSTICE BURTON, concurring in both the opinion and judgment
of the Court.

															My position may be summarized as follows:

															The validity of the President's order of seizure is at issue and
ripe for decision. Its validity turns upon its relation to the
constitutional division of governmental power between Congress and
the President. Page 343 U. S. 656 The Constitution has delegated to Congress power to authorize
action to meet a national emergency of the kind we face. [ Footnote 5/1 ] Aware of this responsibility,
Congress has responded to it. It has provided at least two
procedures for the use of the President.

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

															"Whenever in the opinion of the President of the United States,
a threatened or actual strike or lockout affecting an entire
industry or a substantial part thereof engaged in trade, commerce,
transportation, transmission, or communication among the several
States or with foreign nations, or engaged in the production of
goods for commerce, will, if permitted to occur or to continue,
imperil the national health or safety, he may appoint a board of
inquiry to inquire into the issues involved in the dispute and to
make a written report to him within such time as he shall
prescribe. . . . [ Footnote 5/2 ]
" Page 343 U. S. 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. [ Footnote
5/3 ]

															For the purposes of this case, the most significant feature of
that Act is its omission of authority to seize an affected
industry. The debate preceding its passage demonstrated the
significance of that omission. Collective bargaining, rather than
governmental seizure, was to be relied upon. Seizure was not to be
resorted to without specific congressional authority. Congress
reserved to itself the opportunity to authorize seizure to meet
particular emergencies. [ Footnote
5/4 ] Page 343 U. S. 658 The President, however, chose not to use the Taft-Hartley
procedure. He chose another course, also authorized by Congress. He
referred he controversy to the Wage Stabilization Board. [ Footnote 5/5 ] 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.

															Now it is contended that, although the President did not follow
the procedure authorized by the Taft-Hartley Act, his substituted
procedure served the same purpose, and must be accepted as its
equivalent. Without appraising that equivalence, it is enough to
point out that neither procedure carried statutory authority for
the seizure of private industries in the manner now at issue.
[ Footnote 5/6 ] The exhaustion of
both procedures fails to cloud the Page 343 U. S. 659 clarity of the congressional reservation of seizure for its own
consideration.

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

															This brings us to a further crucial question. Does the
President, in such a situation, have inherent constitutional power
to seize private property which makes congressional action in
relation thereto unnecessary? We find no such power available to
him under the present circumstances. The present situation is not
comparable to that of an imminent invasion or threatened attack. We
do not face the issue of what might be the President's
constitutional power to meet such catastrophic situations. Nor is
it claimed that the current seizure is in the nature of a military
command addressed by the President, as Commander-in-Chief, to a
mobilized nation waging, or imminently threatened with, total war.
[ Footnote 5/7 ] Page 343 U. S. 660 The controlling fact here is that Congress, within its
constitutionally delegated power, has prescribed for the President
specific procedures, exclusive of seizure, for his use in meeting
the present type of emergency. Congress has reserved to itself the
right to determine where and when to authorize the seizure of
property in meeting such an emergency. Under these circumstances,
the President's order of April 8 invaded the jurisdiction of
Congress. It violated the essence of the principle of the
separation of governmental powers. Accordingly, the injunction
against its effectiveness should be sustained.

															[ Footnote 5/1 ]

															" Article I" "Section. 1. All legislative Powers herein granted shall be
vested in a Congress of the United States. . . ."

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

															" * * * *" "To regulate Commerce with foreign Nations, and among the
several States . . . ;"

															" * * * *" "To make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, and all other Powers
vested by this Constitution in the Government of the United States,
or in any Department or Officer thereof."

															[ Footnote 5/2 ]

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

															[ Footnote 5/3 ]

															361 Stat. 155-156, 29 U.S.C. (Supp. IV) §§ 176-180.

															[ Footnote 5/4 ]

															The Chairman of the Senate Committee sponsoring the bill said in
the Senate:

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

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

															"I have had in mind drafting such a bill, giving power to seize
the plants and other necessary facilities, to seize the unions,
their money, and their treasury, and requisition trucks and other
equipment; in fact, to do everything that the British did in their
general strike of 1926. But while such a bill might be prepared, I
should be unwilling to place such a law on the books until we
actually face such an emergency, and Congress applies the remedy
for the particular emergency only. Eighty days will provide plenty
of time within which to consider the possibility of what should be
done, and we believe 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 Bus
Employees v. Wisconsin Board, 340 U.
S. 383 , 340 U. S. 396 ,
note 21.

															[ Footnote 5/5 ]

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

															[ Footnote 5/6 ]

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

															[ Footnote 5/7 ]

															The President and Congress have recognized the termination of
the major hostilities in the total wars in which the Nation has
been engaged. Many wartime procedures have expired or been
terminated.

															The War Labor Disputes Act, 57 Stat. 163 et seq., 50
U.S.C.App. §§ 1501-1511, expired June 30, 1947, six months after
the President's declaration of the end of hostilities, 3 CFR, 1946
Supp., p. 77. The Japanese Peace Treaty was approved by the Senate
March 20, 1952, Cong.Rec. Mar. 20, 1952, p. 2635, and proclaimed by
the President April 28, 1952, 17 Fed.Reg. 3813.

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

															One of this Court's first pronouncements upon the powers of the
President under the Constitution was made by Mr. Chief Justice John
Marshall some one hundred and fifty years ago. In Little v.
Barreme, [ Footnote 6/1 ] 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 Page 343 U. S. 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. [ Footnote 6/2 ]"

															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. [ Footnote
6/3 ]

															The limits of presidential power are obscure. However, Article
II, no less than Article I, is part of "a constitution intended to
endure for ages to come, and, consequently, to be adapted to the
various crises of human affairs." [ Footnote 6/4 ] Some of our Presidents, such as
Lincoln,

															"felt that measures otherwise unconstitutional might become
lawful by becoming indispensable to the preservation of the
Constitution through the preservation of the nation. [ Footnote 6/5 ] " Page 343 U. S. 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. [ Footnote 6/6 ] In my view
-- taught me not only by the decision of Mr. Chief Justice Marshall
in Little v. Barreme, but also by a score of other
pronouncements of distinguished members of this bench -- the
Constitution does grant to the President extensive authority in
times of grave and imperative national emergency. In fact, to my
thinking, such a grant may well be necessary to the very existence
of the Constitution itself. As Lincoln aptly said, "[is] it
possible to lose the nation and yet preserve the Constitution?
[ Footnote 6/7 ] In describing this
authority, I care not whether one calls it "residual," "inherent,"
"moral," "implied," "aggregate," "emergency," or otherwise. I am of
the conviction that those who have had the gratifying experience of
being the President's lawyer have used one or more of these
adjectives only with the utmost of sincerity and the highest of
purpose.

															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. Page 343 U. S. 663 Three statutory procedures were available: those provided in the
Defense Production Act of 1950, the Labor Management Relations Act,
and the Selective Service Act of 1948. In this case, the President
invoked the first of these procedures; he did not invoke the other
two.

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

															The Labor Management Relations Act, commonly known as the
Taft-Hartley Act, includes provisions adopted for the purpose of
dealing with nationwide strikes. They establish a procedure whereby
the President may appoint a board of inquiry and thereafter, in
proper cases, seek injunctive relief for an 80-day period against a
threatened work stoppage. The President can invoke that procedure
whenever, in his opinion,

															"a threatened or actual strike . . . affecting an entire
industry . . . will, if permitted to occur or to continue, imperil
the national health or safety. [ Footnote 6/8 ]"

															At the time that Act was passed, Congress specifically rejected
a proposal to empower the President to seize any "plant, mine, or
facility" in which a threatened work stoppage would, in his
judgment, "imperil the public health or security." [ Footnote 6/9 ] Instead, the Taft-Hartley Act
directed the President, in the event a strike had not been settled
during the 80-day injunction period, to submit to Congress "a full
and comprehensive report . . . together with such recommendations
as he may see fit to make for consideration and Page 343 U. S. 664 appropriate action." [ Footnote
6/10 ] The legislative history of the Act demonstrates Congress'
belief that the 80-day period would afford it adequate opportunity
to determine whether special legislation should be enacted to meet
the emergency at hand. [ Footnote
6/11 ]

															The Selective Service Act of 1948 gives the President specific
authority to seize plants which fail to produce goods required by
the armed forces or the Atomic Energy Commission for national
defense purposes. The Act provides that, when a producer from whom
the President has ordered such goods "refuses or fails" to fill the
order within a period of time prescribed by the President, the
President may take immediate possession of the producer's plant.
[ Footnote 6/12 ] This language is
significantly broader than Page 343 U. S. 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. [ Footnote
6/13 ]

															These three statutes furnish the guideposts for decision in this
case. Prior to seizing the steel mills on April 8, the President
had exhausted the mediation procedures of the Defense Production
Act through the Wage Stabilization Board. Use of those procedures
had failed to avert the impending crisis; however, it had resulted
in a 99-day postponement of the strike. The Government argues that
this accomplished more than the maximum 80-day waiting period
possible under the sanctions of the Taft-Hartley Act, and therefore
amounted to compliance with the substance of that Act. Even if one
were to accept this somewhat hyperbolic conclusion, the hard fact
remains that neither the Defense Production Act nor Taft-Hartley
authorized the seizure challenged here, and the Government made no
effort to comply with the procedures Page 343 U. S. 666 established by the Selective Service Act of 1948, a statute
which expressly authorizes seizures when producers fail to supply
necessary defense materiel. [ Footnote
6/14 ]

															For these reasons, I concur in the judgment of the Court. As Mr.
Justice Story once said:

															"For the executive department of the government, this court
entertain the most entire respect, and, amidst the multiplicity of
cares in that department, it may, without any violation of decorum,
be presumed, that sometimes there may be an inaccurate construction
of a law. It is our duty to expound the laws as we find them in the
records of state; Page 343 U. S. 667 and we cannot, when called upon by the citizens of the country,
refuse our opinion, however it may differ from that of very great
authorities.' [ Footnote
6/15 ]"

															[ Footnote 6/1 ] 6 U. S. 2 Cranch 170
(1804).

															[ Footnote 6/2 ] Id. at 6 U. S. 177 -178
(emphasis changed).

															[ Footnote 6/3 ]

															Decisions of this Court which have upheld the exercise of
presidential power include the following: Prize
Cases , 2 Black 635 (1863) (subsequent ratification
of President's acts by Congress); In re Neagle, 135 U. S. 1 (1890)
(protection of federal officials from personal violence while
performing official duties); In re Debs, 158 U.
S. 564 (1895) (injunction to prevent forcible
obstruction of interstate commerce and the mails); United
States v. Midwest Oil Co., 236 U. S. 459 (1915) (acquiescence by Congress in more than 250 instances of
exercise of same power by various Presidents over period of 80
years); Myers v. United States, 272 U. S.
52 (1926) (control over subordinate officials in
executive department) [ but see Humphrey's Executor v. United
States, 295 U. S. 602 , 295 U. S.
626 -628 (1935)]; Hirabayashi v. United States, 320 U. S. 81 (1943), and Korematsu v. United States, 323 U.
S. 214 (1944) (express congressional authorization); cf. 80 U. S. Russell, 13 Wall. 623 (1871) (imperative military necessity in
area of combat during war); United States v. Curtiss-Wright
Export Corp., 299 U. S. 304 (1936) (power to negotiate with foreign governments); United
States v. United Mine Workers, 330 U.
S. 258 (1947) (seizure under specific statutory
authorization).

															[ Footnote 6/4 ]

															Mr. Chief Justice Marshall, in McCulloch
v. Maryland , 4 Wheat. 316, 17 U. S. 415 (1819).

															[ Footnote 6/5 ]

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

															[ Footnote 6/6 ]

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

															[ Footnote 6/7 ]

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

															[ Footnote 6/8 ]

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

															[ Footnote 6/9 ]

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

															[ Footnote 6/10 ]

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

															[ Footnote 6/11 ] E.g., S.Rep. No. 105, 80th Cong., 1st Sess. 15; 93
Cong.Rec. 3835-3836; id. at 4281.

															[ Footnote 6/12 ]

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

															"(a) Whenever the President after consultation with and
receiving advice from the National Security Resources Board
determines that it is in the interest of the national security for
the Government to obtain prompt delivery of any articles or
materials the procurement of which has been authorized by the
Congress exclusively for the use of the armed forces of the United
States, or for the use of the Atomic Energy Commission, he is
authorized, through the head of any Government agency, to place
with any person operating a plant, mine, or other facility capable
of producing such articles or materials an order for such quantity
of such articles or materials as the President deems appropriate.
Any person with whom an order is placed pursuant to the provisions
of this section shall be advised that such order is placed pursuant
to the provisions of this section."

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

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

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

															"(4) to furnish the quantity, kind, and quality of articles or
materials ordered at such price as shall be negotiated between such
person and the Government agency concerned; or in the event of
failure to negotiate a price, to furnish the quantity, kind, and
quality of articles or materials ordered at such price as he may
subsequently be determined to be entitled to receive under
subsection (d);"

															"the President is authorized to take immediate possession of any
plant, mine, or other facility of such person and to operate it,
through any Government agency, for the production of such articles
or materials as may be required by the Government."

															62 Stat. 625, 50 U.S.C.App. (Supp. IV) § 468. The Act was
amended in 1951 and redesignated the Universal Military Training
and Service Act, but no change was made in this section. 65 Stat.
75.

															[ Footnote 6/13 ]

															39 Stat. 213; 54 Stat. 892.

															[ Footnote 6/14 ]

															The Government has offered no explanation, in the record, the
briefs, or the oral argument, as to why it could not have made both
a literal and timely compliance with the provisions of that Act.
Apparently the Government could have placed orders with the steel
companies for the various types of steel needed for defense
purposes, and instructed the steel companies to ship the materiel
directly to producers of planes, tanks, and munitions. The Act does
not require that government orders cover the entire capacity of a
producer's plant before the President has power to seize.

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

															[ Footnote 6/15 ] The Orono, 18 Fed.Cas. No. 10,585 (Cir. Ct. D. Mass.
1812).

															MR CHIEF JUSTICE VINSON, with whom MR. JUSTICE REED and MR.
JUSTICE MINTON join, dissenting.

															The President of the United States directed the Secretary of
Commerce to take temporary possession of the Nation's steel mills
during the existing emergency because

															"a work stoppage would immediately jeopardize and imperil our
national defense and the defense of those joined with us in
resisting aggression, and would add to the continuing danger of our
soldiers, sailors, and airmen engaged in combat in the field."

															The District Court ordered the mills returned to their private
owners on the ground that the President's action was beyond his
powers under the Constitution.

															This Court affirms. Some members of the Court are of the view
that the President is without power to act in time of crisis in the
absence of express statutory authorization. Other members of the
Court affirm on the basis of their reading of certain statutes.
Because we cannot agree that affirmance is proper on any ground,
and because of the transcending importance of the questions
presented not only in this critical litigation, but also to the
powers of the President and of future Presidents to act in time of
crisis, we are compelled to register this dissent. I In passing upon the question of Presidential powers in this
case, we must first consider the context in which those powers were
exercised. Page 343 U. S. 668 Those who suggest that this is a case involving extraordinary
powers should be mindful that these are extraordinary times. A
world not yet recovered from the devastation of World War II has
been forced to face the threat of another and more terrifying
global conflict.

															Accepting in full measure its responsibility in the world
community, the United States was instrumental in securing adoption
of the United Nations Charter, approved by the Senate by a vote of
89 to 2. The first purpose of the United Nations is to

															"maintain international peace and security, and, to that end, to
take effective collective measures for the prevention and removal
of threats to the peace, and for the suppression of acts of
aggression or other breaches of the peace. . . . [ Footnote 7/1 ]"

															In 1950, when the United Nations called upon member nations "to
render every assistance" to repel aggression in Korea, the United
States furnished its vigorous support. [ Footnote 7/2 ] For almost two full years, our armed
forces have been fighting in Korea, suffering casualties of over
108,000 men. Hostilities have not abated. The "determination of the
United Nations to continue its action in Korea to meet the
aggression" has been reaffirmed. [ Footnote 7/3 ] Congressional support of the action in
Korea has been manifested by provisions for increased military
manpower and equipment and for economic stabilization, as
hereinafter described.

															Further efforts to protect the free world from aggression are
found in the congressional enactments of the Truman Plan for
assistance to Greece and Turkey [ Footnote 7/4 ] and Page 343 U. S. 669 the Marshall Plan for economic aid needed to build up the
strength of our friends in Western Europe. [ Footnote 7/5 ] 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. [ Footnote 7/6 ] Congress immediately implemented the
North Atlantic Treaty by authorizing military assistance to nations
dedicated to the principles of mutual security under the United
Nations Charter. [ Footnote 7/7 ] The
concept of mutual security recently has been extended by treaty to
friends in the Pacific. [ Footnote
7/8 ]

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

															Even this brief review of our responsibilities in the world
community discloses the enormity of our undertaking. Success of
these measures may, as has often been Page 343 U. S. 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
security, Congress has enacted a large body of implementing
legislation. As an illustration of the magnitude of the over-all
program, Congress has appropriated $130 billion for our own defense
and for military assistance to our allies since the June, 1950,
attack in Korea.

															In the Mutual Security Act of 1951, Congress authorized

															"military, economic, and technical assistance to friendly
countries to strengthen the mutual security and individual and
collective defenses of the free world. . . . [ Footnote 7/9 ]"

															Over $5 1/2 billion were appropriated for military assistance
for fiscal year 1952, the bulk of that amount to be devoted to
purchase of military equipment. [ Footnote 7/10 ] A request for over $7 billion for the
same purpose for fiscal year 1953 is currently pending in Congress.
[ Footnote 7/11 ] In addition to
direct shipment of military equipment to nations of the free world,
defense production in those countries relies upon shipment of
machine tools and allocation of steel tonnage from the United
States. [ Footnote 7/12 ]

															Congress also directed the President to build up our own
defenses. Congress, recognizing the "grim fact . . . that the
United States is now engaged in a struggle for survival" and that
"it is imperative that we now take those necessary steps to make
our strength equal to the peril of the hour," granted authority to
draft men into Page 343 U. S. 671 the armed forces. [ Footnote
7/13 ] As a result, we now have over 3,500,000 men in our armed
forces. [ Footnote 7/14 ]

															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. [ Footnote 7/15 ] A request for $51 billion for the
Department of Defense for fiscal year 1953 is currently pending in
Congress. [ Footnote 7/16 ] The
bulk of the increase is for military equipment and supplies --
guns, tanks, ships, planes and ammunition -- all of which require
steel. Other defense programs requiring great quantities of steel
include the large scale expansion of facilities for the Atomic
Energy Commission [ Footnote 7/17 ]
and the expansion of the Nation's productive capacity affirmatively
encouraged by Congress. [ Footnote
7/18 ]

															Congress recognized the impact of these defense programs upon
the economy. Following the attack in Korea, the President asked for
authority to requisition property and to allocate and fix
priorities for scarce goods. In the Defense Production Act of 1950,
Congress granted the powers requested and, in addition, granted power to stabilize prices and wages and to provide for
settlement Page 343 U. S. 672 of labor disputes arising in the defense program. [ Footnote 7/19 ] The Defense Production Act
was extended in 1951, a Senate Committee noting that, in the
dislocation caused by the programs for purchase of military
equipment "lies the seed of an economic disaster that might well
destroy the military might we are straining to build." [ Footnote 7/20 ] Significantly, the
Committee examined the problem "in terms of just one commodity,
steel," and found "a graphic picture of the over-all inflationary
danger growing out of reduced civilian supplies and rising
incomes." Even before Korea, steel production at levels above
theoretical 100% capacity was not capable of supplying civilian
needs alone. Since Korea, the tremendous military demand for steel
has far exceeded the increases in productive capacity. This
Committee emphasized that the shortage of steel, even with the
mills operating at full capacity, coupled with increased civilian
purchasing power, presented grave danger of disastrous inflation.
[ Footnote 7/21 ]

															The President has the duty to execute the foregoing legislative
programs. Their successful execution depends upon continued
production of steel and stabilized prices for steel. Accordingly,
when the collective bargaining agreements between the Nation's
steel producers and their employees, represented by the United
Steel Workers, were due to expire on December 31, 1951, and a
strike shutting down the entire basic steel industry was
threatened, the President acted to avert a complete shutdown of
steel production. On December 22, 1951, he certified the dispute to
the Wage Stabilization Board, requesting that the Board investigate
the dispute and promptly report its recommendation as to fair and
equitable terms of settlement. The Union complied with the
President's Page 343 U. 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 this country be strengthened as speedily
as possible to the end that we may be able to repel any and all
threats against our national security and to fulfill our
responsibilities in the efforts being made throughout the United
Nations and otherwise to bring about a lasting peace; and"

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

															"WHEREAS the weapons and other materials needed by our armed
forces and by those joined with us in the defense of the free world
are produced to a great extent in this country, and steel is an
indispensable component of substantially all of such weapons and
materials; and " Page 343 U. S. 674 "WHEREAS steel is likewise indispensable to the carrying out of
programs of the Atomic Energy Commission of vital importance to our
defense efforts; and"

															"WHEREAS a continuing and uninterrupted supply of steel is also
indispensable to the maintenance of the economy of the United
States, upon which our military strength depends; and"

															"WHEREAS a controversy has arisen between certain companies in
the United States producing and fabricating steel and the elements
thereof and certain of their workers represented by the United
Steel Workers of America, CIO, regarding terms and conditions of
employment; and"

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

															"WHEREAS a work stoppage would immediately jeopardize and
imperil our national defense and the defense of those joined with
us in resisting aggression, and would add to the continuing danger
of our soldiers, sailors, and airmen engaged in combat in the
field; and"

															"WHEREAS in order to assure the continued availability of steel
and steel products during the existing emergency, it is necessary
that the United States take possession of and operate the plants,
facilities, and other property of the said companies as hereinafter
provided: "

															"NOW, THEREFORE, by virtue of the authority vested in me by the
Constitution and laws of the Page 343 U. S. 675 United States, and as President of the United States and
Commander in Chief of the armed forces of the United States, it is
hereby ordered as follows: "

															"1. The Secretary of Commerce is hereby authorized and directed
to take possession of all or such of the plants, facilities, and
other property of the companies named in the list attached hereto,
or any part thereof, as he may deem necessary in the interests of
national defense, and to operate or to arrange for the operation
thereof and to do all things necessary for, or incidental to, such
operation. . . . [ Footnote
7/22 ]"

															The next morning, April 9, 1952, the President addressed the
following Message to Congress: To the Congress of the United States: "The Congress is undoubtedly aware of the recent events which
have taken place in connection with the management-labor dispute in
the steel industry. These events culminated in the action which was
taken last night to provide for temporary operation of the steel
mills by the Government."

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

															"One alternative would have been to permit a shutdown in the
steel industry. The effects of such a shut-down would have been so
immediate and damaging with respect to our efforts to support our
Armed Forces and to protect our national security that it made this
alternative unthinkable. " Page 343 U. S. 676 "The only way that I know of, other than Government operation,
by which a steel shut-down could have been avoided was to grant the
demands of the steel industry for a large price increase. I
believed and the officials in charge of our stabilization agencies
believed that this would have wrecked our stabilization program. I
was unwilling to accept the incalculable damage which might be done
to our country by following such a course."

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

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

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

															"It may even be that the Congress will feel that we should
permit a shut-down of the steel industry, although that would
immediately endanger the safety of our fighting forces abroad and
weaken the whole structure of our national security. " Page 343 U. S. 677 "I do not believe the Congress will favor any of these courses
of action, but that is a matter for the Congress to determine."

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

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

															"If the Congress does not deem it necessary to act at this time,
I shall continue to do all that is within my power to keep the
steel industry operating and at the same time make every effort to
bring about a settlement of the dispute so the mills can be
returned to their private owners as soon as possible. [ Footnote 7/23 ]"

															Twelve days passed without action by Congress. On April 21,
1952, the President sent a letter to the President of the Senate in
which he again described the purpose and need for his action and
again stated his position that "The Congress can, if it wishes,
reject the course of action I have followed in this matter."
[ Footnote 7/24 ] Congress has not
so acted to this date.

															Meanwhile, plaintiffs instituted this action in the District
Court to compel defendant to return possession of the steel mills
seized under Executive Order 10340. In this litigation for return
of plaintiffs' properties, we assume that defendant Charles Sawyer
is not immune from judicial restraint, and that plaintiffs are
entitled to equitable relief if we find that the Executive
Order Page 343 U. S. 678 under which defendant acts is unconstitutional. We also assume
without deciding that the courts may go behind a President's
finding of fact that an emergency exists. But there is not the
slightest basis for suggesting that the President's finding in this
case can be undermined. Plaintiffs moved for a preliminary
injunction before answer or hearing. Defendant opposed the motion,
filing uncontroverted affidavits of Government officials describing
the facts underlying the President's order.

															Secretary of Defense Lovett swore that

															"a work stoppage in the steel industry will result immediately
in serious curtailment of production of essential weapons and
munitions of all kinds."

															He illustrated by showing that 84% of the national production of
certain alloy steel is currently used for production of
military-end items and that 35% of total production of another form
of steel goes into ammunition, 80% of such ammunition now going to
Korea. The Secretary of Defense stated that: "We are holding the
line [in Korea] with ammunition, and not with the lives of our
troops."

															Affidavits of the Chairman of the Atomic Energy Commission, the
Secretary of the Interior, defendant as Secretary of Commerce, and
the Administrators of the Defense Production Administration, the
National Production Authority, the General Services Administration
and the Defense Transport Administration were also filed in the
District Court. These affidavits disclose an enormous demand for
steel in such vital defense programs as the expansion of facilities
in atomic energy, petroleum, power, transportation and industrial
production, including steel production. Those charged with
administering allocations and priorities swore to the vital part
steel production plays in our economy. The affidavits emphasize the
critical need for steel in our defense program, Page 343 U. S. 679 the absence of appreciable inventories of steel, and the drastic
results of any interruption in steel production.

															One is not here called upon even to consider the possibility of
executive seizure of a farm, a corner grocery store or even a
single industrial plant. Such considerations arise only when one
ignores the central fact of this case -- that the Nation's entire
basic steel production would have shut down completely if there had
been no Government seizure. Even ignoring for the moment whatever
confidential information the President may possess as "the Nation's
organ for foreign affairs," [ Footnote
7/25 ] the uncontroverted affidavits in this record amply
support the finding that "a work stoppage would immediately
jeopardize and imperil our national defense."

															Plaintiffs do not remotely suggest any basis for rejecting the
President's finding that any stoppage of steel production would
immediately place the Nation in peril. Moreover, even
self-generated doubts that any stoppage of steel production
constitutes an emergency are of little comfort here. The Union and
the plaintiffs bargained for 6 months with over 100 issues in
dispute -- issues not limited to wage demands, but including the
union shop and other matters of principle between the parties. At
the time of seizure, there was not, and there is not now, the
slightest evidence to justify the belief that any strike will be of
short duration. The Union and the steel companies may well engage
in a lengthy struggle. Plaintiffs' counsel tells us that "sooner or
later" the mills will operate again. That may satisfy the steel
companies and, perhaps, the Union. But our soldiers and our allies
will hardly be cheered with the assurance that the ammunition upon
which their lives depend will be forthcoming -- "sooner or later,"
or, in other words, "too little and too late." Page 343 U. S. 680 Accordingly, if the President has any power under the
Constitution to meet a critical situation in the absence of express
statutory authorization, there is no basis whatever for criticizing
the exercise of such power in this case. II The steel mills were seized for a public use. The power of
eminent domain, invoked in this case, is an essential attribute of
sovereignty, and has long been recognized as a power of the Federal
Government. Kohl v. United States, 91 U. S.
367 (1876). Plaintiffs cannot complain that any
provision in the Constitution prohibits the exercise of the power
of eminent domain in this case. The Fifth Amendment provides: "nor
shall private property be taken for public use, without just
compensation." It is no bar to this seizure for, if the taking is
not otherwise unlawful, plaintiffs are assured of receiving the
required just compensation. United States v. Pewee Coal
Co., 341 U. S. 114 (1951).

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

															Under this view, the President is left powerless at the very
moment when the need for action may be most pressing and when no
one, other than he, is immediately Page 343 U. S. 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; . . . The shall take Care that the Laws be faithfully
executed. . . ."

															Art. III,

															Section 1. "The judicial Power of the United States, shall be
vested in one supreme Court, and in such inferior Courts as the
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 Page 343 U. S. 682 United States, and will to the best of [his] Ability, preserve,
protect and defend the Constitution of the United States." Art. II,
§ 1.

															This comprehensive grant of the executive power to a single
person was bestowed soon after the country had thrown the yoke of
monarchy. Only by instilling initiative and vigor in all of the
three departments of Government, declared Madison, could tyranny in
any form be avoided. [ Footnote
7/26 ] Hamilton added:

															"Energy in the Executive is a leading character in the
definition of good government. It is essential to the protection of
the community against foreign attacks; it is not less essential to
the steady administration of the laws; to the protection of
property against those irregular and high-handed combinations which
sometimes interrupt the ordinary course of justice; to the security
of liberty against the enterprises and assaults of ambition, of
faction, and of anarchy. [ Footnote
7/27 ]"

															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.

															In passing upon the grave constitutional question presented in
this case, we must never forget, as Chief Justice Marshall
admonished, that the Constitution is "intended to endure for ages
to come, and, consequently, to be adapted to the various crises of
human affairs," and that "[i]ts means are adequate to its ends."
[ Footnote 7/28 ] 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. [ Footnote 7/29 ] Page 343 U. S. 683 But we are not called upon today to expand the Constitution to
meet a new situation. For, in this case, we need only look to
history and time-honored principles of constitutional law --
principles that have been applied consistently by all branches of
the Government throughout our history. It is those who assert the
invalidity of the Executive Order who seek to amend the
Constitution in this case. III A review of executive action demonstrates that our Presidents
have on many occasions exhibited the leadership contemplated by the
Framers when they made the President Commander in Chief, and
imposed upon him the trust to "take Care that the Laws be
faithfully executed." With or without explicit statutory
authorization, Presidents have at such times dealt with national
emergencies by acting promptly and resolutely to enforce
legislative programs, at least to save those programs until
Congress could act. Congress and the courts have responded to such
executive initiative with consistent approval.

															Our first President displayed at once the leadership
contemplated by the Framers. When the national revenue laws were
openly flouted in some sections of Pennsylvania, President
Washington, without waiting for a call from the state government,
summoned the militia and took decisive steps to secure the faithful
execution of the laws. [ Footnote
7/30 ] When international disputes engendered by the French
revolution threatened to involve this country in war, and while
congressional policy remained uncertain, Washington issued his
Proclamation of Neutrality. Hamilton, whose defense of the
Proclamation Page 343 U. S. 684 has endured the test of time, invoked the argument that the
Executive has the duty to do that which will preserve peace until
Congress acts and, in addition, pointed to the need for keeping the
Nation informed of the requirements of existing laws and treaties
as part of the faithful execution of the laws. [ Footnote 7/31 ]

															President John Adams issued a warrant for the arrest of Jonathan
Robbins in order to execute the extradition provisions of a treaty.
This action was challenged in Congress on the ground that no
specific statute prescribed the method to be used in executing the
treaty. John Marshall, then a member of the House of
Representatives, made the following argument in support of the
President's action:

															"The treaty, which is a law, enjoins the performance of a
particular object. The person who is to perform this object is
marked out by the Constitution, since the person is named who
conducts the foreign intercourse, and is to take care that the laws
be faithfully executed. The means by which it is to be performed,
the force of the nation, are in the hands of this person. Ought not
this person to perform the object, although the particular mode of
using the means has not been prescribed? Congress, unquestionably,
may prescribe the mode, and Congress may devolve on others the
whole execution of the contract; but, till this be done, it seems
the duty of the Executive department to execute the contract by any
means it possesses. [ Footnote
7/32 ]"

															Efforts in Congress to discredit the President for his action
failed. [ Footnote 7/33 ] Almost a
century later, this Court had Page 343 U. S. 685 occasion to give its express approval to "the masterly and
conclusive argument of John Marshall." [ Footnote 7/34 ]

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

															Without declaration of war, President Lincoln took energetic
action with the outbreak of the War Between the States. He summoned
troops and paid them out of the Treasury without appropriation
therefor. He proclaimed a naval blockade of the Confederacy and
seized ships violating that blockade. Congress, far from denying
the validity of these acts, gave them express approval. The most
striking action of President Lincoln was the Emancipation
Proclamation, issued in aid of the successful prosecution of the
War Between the States, but wholly without statutory authority.
[ Footnote 7/35 ]

															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.
[ Footnote 7/36 ] Many months
later, Congress recognized and confirmed the power of the President
to seize railroads and telegraph lines and provided criminal
penalties for interference with Government operation. [ Footnote 7/37 ] 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 Page 343 U. S. 686 ratified by the legislature. Sponsors of the bill declared that
its purpose was only to confirm the power which the President
already possessed. [ Footnote
7/38 ] Opponents insisted a statute authorizing seizure was
unnecessary, and might even be construed as limiting existing
Presidential powers. [ Footnote
7/39 ]

															Other seizures of private property occurred during the War
Between the States, just as they had occurred during previous wars.
[ Footnote 7/40 ] In United States v.
Russell , 13 Wall. 623 (1872), three river steamers
were seized by Army Quartermasters on the ground of "imperative
military necessity." This Court affirmed an award of compensation,
stating:

															"Extraordinary and unforeseen occasions arise, however, beyond
all doubt, in cases of extreme necessity in time of war or of
immediate and impending public danger, in which private property
may be impressed into the public service, or may be seized and
appropriated to the public use, or may even be destroyed without
the consent of the owner."

															" * * * *" "Exigencies of the kind do arise in time of war or impending
public danger, but it is the emergency, as was said by a great
magistrate, that gives the right, Page 343 U. S. 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. [ Footnote 7/41 ]"

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

															"[The President] is enabled to fulfil the duty of his great
department, expressed in the phrase that 'he shall take care that
the laws be faithfully executed.'"

															"Is this duty limited to the enforcement of acts of Congress or
of treaties of the United States according to their express terms,
or does it include the rights, duties and obligations growing out
of the Constitution itself, our international relations, and all
the protection implied by the nature of the government under the
Constitution? [ Footnote
7/42 ]"

															The latter approach was emphatically adopted by the Court.

															President Hayes authorized the widespread use of federal troops
during the Railroad Strike of 1877. [ Footnote 7/43 ] President Cleveland also used the troops
in the Pullman Strike, Page 343 U. S. 688 of 1895 and his action is of special significance. No statute
authorized this action. No call for help had issued from the
Governor of Illinois; indeed Governor Altgeld disclaimed the need
for supplemental forces. But the President's concern was that
federal laws relating to the free flow of interstate commerce and
the mails be continuously and faithfully executed without
interruption. [ Footnote 7/44 ] To
further this aim, his agents sought and obtained the injunction
upheld by this Court in In re Debs, 158 U.
S. 564 (1895). The Court scrutinized each of the steps
taken by the President to insure execution of the "mass of
legislation" dealing with commerce and the mails and gave his
conduct full approval. Congress likewise took note of this use of
Presidential power to forestall apparent obstacles to the faithful
execution of the laws. By separate resolutions, both the Senate and
the House commended the Executive's action. [ Footnote 7/45 ]

															President Theodore Roosevelt seriously contemplated seizure of
Pennsylvania coal mines if a coal shortage necessitated such
action. [ Footnote 7/46 ] In his
autobiography, President Roosevelt expounded the "Stewardship
Theory" of Presidential power, stating that

															"the executive as subject only to the people, and, under the
Constitution, bound to serve the people affirmatively in cases
where the Constitution does not explicitly forbid him to render the
service. [ Footnote 7/47 ]"

															Because the contemplated seizure of the coal mines was based on
this theory, then ex-President Taft criticized President Roosevelt
in a passage in his book relied upon by the District Court in this
case. Taft, Our Chief Magistrate and His Powers (1916), 139-147. In
the same book, however, President Taft agreed that Page 343 U. S. 689 such powers of the President as the duty to "take Care that the
Laws be faithfully executed" could not be confined to "express
Congressional statutes." Id. at 88. In re Neagle,
supra, and In re Debs, supra, were cited as
conforming with Taft's concept of the office, id. at pp.
88-94, as they were later to be cited with approval in his opinion
as Chief Justice in Myers v. United States, 272 U. S.
52 , 272 U. S. 133 (1926). [ Footnote 7/48 ]

															In 1909, President Taft was informed that government-owned oil
lands were being patented by private parties at such a rate that
public oil lands would be depleted in a matter of months. Although
Congress had explicitly provided that these lands were open to
purchase by United States citizens, 29 Stat. 526 (1897), the
President nevertheless ordered the lands withdrawn from sale "[i]n
aid of proposed legislation." In United States v. Midwest Oil
Co., 236 U. S. 459 (1915), the President's action was sustained as consistent with
executive practice throughout our history. An excellent brief was
filed in the case by the Solicitor General, Mr. John W. Davis,
together with Assistant Attorney General Knaebel, later Reporter
for this Court. In this brief, the situation confronting President
Taft was described as "an emergency; there was no time to wait for
the action of Congress." 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 , 100 U. S.
395 ; In re Debs, 158 U. S.
564 , 158 U. S. 578 .) 'Its means
are adequate to its ends' ( McCulloch v. Maryland , 4 Page 343 U. S. 690 Wheat. 316, 17 U. S. 424 ), and it is
rational to assume that its active forces will be found equal in
most things to the emergencies that confront it. While perfect
flexibility is not to be expected in a Government of divided
powers, and while division of power is one of the principal
features of the Constitution, it is the plain duty of those who are
called upon to draw the dividing lines to ascertain the essential,
recognize the practical, and avoid a slavish formalism which can
only serve to ossify the Government and reduce its efficiency
without any compensating good. The function of making laws is
peculiar to Congress, and the Executive cannot 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 Executive, so there are fields
which are common to both, in the sense that the Executive may move
within them until they shall have been occupied by legislative
action. These are not the fields of legislative prerogative, but
fields within which the lawmaking power may enter and dominate
whenever it chooses. This situation results from the fact that the
President is the active agent not of Congress, but of the Nation.
As such, he performs the duties which the Constitution lays upon
him immediately, and as such, also, he executes the laws and
regulations adopted by Congress. He is the agent of the people of
the United States, deriving all his powers from them and
responsible directly to them. In no Page 343 U. S. 691 sense is he the agent of Congress. He obeys and executes the
laws of Congress not because Congress is enthroned in authority
over him, but because the Constitution directs him to do so."

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

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

															"As we understand the doctrine of the Neagle case, and
the cases therein cited, it is clearly this: the Executive is
authorized to exert the power of the United States when he finds
this necessary for the protection of the agencies, the
instrumentalities, or the property of the Government. This does not
mean an authority to disregard the wishes of Congress on the
subject when that subject lies within its control and when those
wishes have been expressed, and it certainly does not involve the
slightest semblance of a power to legislate, much less to 'suspend'
legislation already passed by Congress. It involves the performance
of specific acts not of a Page 343 U. S. 692 legislative but purely of an executive character -- acts which
are not in themselves laws, but which presuppose a 'law'
authorizing him to perform them. This law is not expressed either
in the Constitution or in the enactments of Congress, but reason
and necessity compel that it be implied from the exigencies of the
situation."

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

															"Neither does any of them stand apart in principle from the case
at bar, as involving the exercise of specific constitutional powers
of the President in a degree in which this case does not involve
them. Taken collectively, the provisions of the Constitution which
designate the President as the official who must represent us in
foreign relations, in commanding the Army and Navy, in keeping
Congress informed of the state of the Union, in insuring the
faithful execution of the laws and in recommending new ones,
considered in connection with the sweeping declaration that the
executive power shall be vested in him, completely demonstrate that
his is the watchful eye, the active hand, the overseeing dynamic
force of the United States. [ Footnote
7/49 ] " Page 343 U. S. 693 This brief is valuable not alone because of the caliber of its
authors, but because it lays bare in succinct reasoning the basis
of the executive practice which this Court approved in the Midwest Oil case.

															During World War I, President Wilson established a War Labor
Board without awaiting specific direction by Congress. [ Footnote 7/50 ] With William Howard Taft
and Frank P. Walsh as co-chairmen, the Board had as its purpose the
prevention of strikes and lockouts interfering with the production
of goods needed to meet the emergency. Effectiveness of War Labor
Board decision was accomplished by Presidential action, including
seizure of industrial plants. [ Footnote 7/51 ] Seizure of the Nation's railroads was
also ordered by President Wilson. [ Footnote 7/52 ]

															Beginning with the Bank Holiday Proclamation [ Footnote 7/53 ] and continuing through World War
II, executive leadership and initiative were characteristic of
President Franklin D. Roosevelt's administration. In 1939, upon the
outbreak Page 343 U. S. 694 of war in Europe, the President proclaimed a limited national
emergency for the purpose of strengthening our national defense.
[ Footnote 7/54 ] In May of 1941,
the danger from the Axis belligerents having become clear, the
President proclaimed "an unlimited national emergency" calling for
mobilization of the Nation's defenses to repel aggression.
[ Footnote 7/55 ] The President
took the initiative in strengthening our defenses by acquiring
rights from the British Government to establish air bases in
exchange for over-age destroyers. [ Footnote 7/56 ]

															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. [ Footnote 7/57 ] The occupation of Iceland
was but one of "at least 125 incidents" in our history in which
Presidents,

															"without congressional authorization, and in the absence of a
declaration of war, [have] ordered the Armed Forces to take action
or maintain positions abroad. [ Footnote 7/58 ]"

															Some six months before Pearl Harbor, a dispute at a single
aviation plant at Inglewood, California, interrupted a segment of
the production of military aircraft. In spite of the comparative
insignificance of this work stoppage to total defense production,
as contrasted with the complete paralysis now threatened by a
shutdown of the entire basic steel industry, and even though Page 343 U. S. 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. [ Footnote 7/59 ]"

															The Attorney General (Jackson) vigorously proclaimed that the
President had the moral duty to keep this Nation's defense effort a
"going concern." His ringing moral justification was coupled with a
legal justification equally well stated:

															"The Presidential proclamation rests upon the aggregate of the
Presidential powers derived from the Constitution itself and from
statutes enacted by the Congress."

															"The Constitution lays upon the President the duty 'to take care
that the laws be faithfully executed.' Among the laws which he is
required to find means to execute are those which direct him to
equip an enlarged army, to provide for a strengthened navy, to
protect Government property, to protect those who are engaged in
carrying out the business of the Government, and to carry out the
provisions of the Lend-Lease Act. For the faithful execution of
such laws, the President has back of him not only each general law
enforcement power conferred by the various acts of Congress, but
the aggregate of all such laws plus that wide discretion as to
method vested in him by the Constitution for the purpose of
executing the laws."

															"The Constitution also places on the President the
responsibility and vests in him the powers of Commander in Chief of
the Army and of the Navy. These weapons for the protection of the
continued existence of the Nation are placed in his sole
command Page 343 U. S. 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. [ Footnote 7/60 ]"

															At this time, Senator Connally proposed amending the Selective
Training and Service Act to authorize the President to seize any
plant where an interruption of production would unduly impede the
defense effort. [ Footnote 7/61 ]
Proponents of the measure in no way implied that the legislation
would add to the powers already possessed by the President,
[ Footnote 7/62 ] and the amendment
was opposed as unnecessary, since the President already had the
power. [ Footnote 7/63 ] The
amendment relating to plant seizures was not approved at that
session of Congress. [ Footnote
7/64 ]

															Meanwhile, and also prior to Pearl Harbor, the President ordered
the seizure of a shipbuilding company and an aircraft parts plant.
[ Footnote 7/65 ] Following the
declaration of war, but prior to the Smith-Connally Act of 1943,
five additional industrial concerns were seized to avert
interruption Page 343 U. S. 697 of needed production. [ Footnote
7/66 ] During the same period, the President directed seizure of
the Nation's coal mines to remove an obstruction to the effective
prosecution of the war. [ Footnote
7/67 ]

															The procedures adopted by President Roosevelt closely resembled
the methods employed by President Wilson. A National War Labor
Board, like its predecessor of World War I, was created by
Executive Order to deal effectively and fairly with disputes
affecting defense production. [ Footnote 7/68 ] Seizures were considered necessary, upon
disobedience of War Labor Board orders, to assure that the
mobilization effort remained a "going concern," and to enforce the
economic stabilization program.

															At the time of the seizure of the coal mines, Senator Connally's
bill to provide a statutory basis for seizures and for the War
Labor Board was again before Congress. As stated by its sponsor,
the purpose of the bill was not to augment Presidential power, but
to "let the country know that the Congress is squarely behind the
President." [ Footnote 7/69 ] As in
the case of the legislative recognition of President Lincoln's
power to seize, Congress again recognized that the President
already had the necessary power, for there was no intention to
"ratify" past actions of doubtful validity. Indeed, 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 Page 343 U. S. 698 opposed the amendment as casting doubt on the legality of the
seizure, and the amendment was defeated. [ Footnote 7/70 ] When the Connally bill, S. 796, came
before the House, all parts after the enacting clause were
stricken, and a bill introduced by Representative Smith of Virginia
was substituted and passed. This action in the House is significant
because the Smith bill did not contain the provisions authorizing
seizure by the President, but did contain provisions controlling
and regulating activities in respect to properties seized by the
Government under statute "or otherwise." [ Footnote 7/71 ] After a conference, the seizure
provisions of the Connally bill, enacted as the Smith-Connally or
War Labor Disputes Act of 1943, 57 Stat. 163, were agreed to by the
House.

															Following passage of the Smith-Connally Act, seizures to assure
continued production on the basis of terms recommended by the War
Labor Board were based upon that Act as well as upon the
President's power under the Constitution and the laws generally. A
question did arise as to whether the statutory language relating to
"any plant, mine, or facility equipped for the manufacture,
production, or mining of any articles or materials" [ Footnote 7/72 ] authorized the seizure of
properties of Montgomery Ward & Co., a retail department store
and mail-order concern. The Attorney General (Biddle) issued an
opinion that the President possessed the power to seize Montgomery
Ward properties to prevent a work stoppage whether or not the terms
of the Smith-Connally Act authorized such a seizure. [ Footnote 7/73 ] This opinion was in line
with Page 343 U. S. 699 the views on Presidential powers maintained by the Attorney
General's predecessors (Murphy [ Footnote 7/74 ] and Jackson [ Footnote 7/75 ]) and his successor (Clark [ Footnote 7/76 ]). Accordingly, the
President ordered seizure of the Chicago properties of Montgomery
Ward in April, 1944, when that company refused to obey a War Labor
Board order concerning the bargaining representative of its
employees in Chicago. [ Footnote
7/77 ] In Congress, a Select Committee to Investigate Seizure of
the Property of Montgomery Ward & Co., assuming that the terms
of the Smith-Connally Act did not cover this seizure, concluded
that the seizure "was not only within the constitutional power, but
was the plain duty of the President." [ Footnote 7/78 ] Thereafter, an election determined the
bargaining representative for the Chicago employees and the
properties were returned to Montgomery Ward & Co. In December,
1944, after continued defiance of a series of War Labor Board
orders, President Roosevelt ordered the seizure of Montgomery Ward
properties throughout the country. [ Footnote 7/79 ] The Court of Appeals for the Seventh
Circuit upheld this seizure on statutory grounds, and also
indicated its disapproval of a lower court's denial of seizure
power apart from express statute. [ Footnote 7/80 ] Page 343 U. S. 700 More recently, President Truman acted to repel aggression by
employing our armed forces in Korea. [ Footnote 7/81 ] 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. [ Footnote 7/82 ]
Congress responded by providing for increased manpower and weapons
for our own armed forces, by increasing military aid under the
Mutual Security Program, and by enacting economic stabilization
measures, as previously described.

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

															History bears out the genius of the Founding Fathers, who
created a Government subject to law but not left subject to inertia
when vigor and initiative are required. Page 343 U. S. 701 IV Focusing now on the situation confronting the President on the
night of April 8, 1952, we cannot but conclude that the President
was performing his duty under the Constitution to "take Care that
the Laws be faithfully executed" -- a duty described by President
Benjamin Harrison as "the central idea of the office." [ Footnote 7/83 ]

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

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

															The absence of a specific statute authorizing seizure of the
steel mills as a mode of executing the laws -- both the military
procurement program and the anti-inflation program -- has not until
today been thought to prevent Page 343 U. S. 702 the President from executing the laws. Unlike an administrative
commission confined to the enforcement of the statute under which
it was created, or the head of a department when administering a
particular statute, the President is a constitutional officer
charged with taking care that a "mass of legislation" be executed.
Flexibility as to mode of execution to meet critical situations is
a matter of practical necessity. This practical construction of the
"Take Care" clause, advocated by John Marshall, was adopted by this
Court in In re Neagle, In re Debs and other cases cited supra. See also Ex parte Quirin, 317 U. S.
1 , 317 U. S. 26 (1942). Although more restrictive views of executive power,
advocated in dissenting opinions of Justices Holmes, McReynolds and
Brandeis, were emphatically rejected by this Court in Myers v.
United States, supra, members of today's majority treat these
dissenting views as authoritative.

															There is no statute prohibiting seizure as a method of enforcing
legislative programs. Congress has in no wise indicated that its
legislation is not to be executed by the taking of private property
(subject, of course, to the payment of just compensation) if its
legislation cannot otherwise be executed. Indeed, the Universal
Military Training and Service Act authorizes the seizure of any
plant that fails to fill a Government contract [ Footnote 7/84 ] or the properties of any steel
producer that fails to allocate steel as directed for defense
production. [ Footnote 7/85 ] And
the Defense Production Act authorizes the President to requisition
equipment and condemn real property needed without delay in the
defense effort. [ Footnote 7/86 ]
Where Congress authorizes seizure in instances not necessarily
crucial to the defense Page 343 U. S. 703 program, it can hardly be said to have disclosed an intention to
prohibit seizures where essential to the execution of that
legislative program.

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

															In United States v. Midwest Oil Co., supra, this Court
approved executive action where, as here, the President acted to
preserve an important matter until Congress could act -- even
though his action in that case was contrary to an express statute.
In this case, there is no statute prohibiting the action taken by
the President in a matter not merely important, but threatening the
very safety of the Nation. Executive inaction in such a situation,
courting national disaster, is foreign to the concept of energy and
initiative in the Executive as created by the Founding Fathers. The
Constitution was itself

															"adopted in a period of grave emergency. . . . While emergency
does not create power, emergency may furnish Page 343 U. S. 704 the occasion for the exercise of power. [ Footnote 7/87 ]"

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

															Under the Taft-Hartley Act, as under the Wagner Act, collective
bargaining and the right to strike are at the heart of our national
labor policy. Taft-Hartley preserves the right to strike in any
emergency, however serious, subject only to an 80-day delay in
cases of strikes imperiling the national health and safety.
[ Footnote 7/88 ] In such a case,
the President may appoint a board of inquiry to report the
facts of the labor dispute. Upon receiving that report, the
President may direct the Attorney General to petition a
District Court to enjoin the strike. If the injunction is granted,
it may continue in effect for no more than 80 days, during which
time the board of inquiry makes further report and efforts are made
to settle the dispute. When the injunction is dissolved, the
President is directed to submit a report to Congress together with
his recommendations. [ Footnote
7/89 ]

															Enacted after World War II, Taft-Hartley restricts the right to
strike against private employers only to a limited Page 343 U. S. 705 extent and for the sole purpose of affording an additional
period of time within which to settle the dispute. Taft-Hartley in
no way curbs strikes before an injunction can be obtained and after
an 80-day injunction is dissolved.

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

															In Title V of the Defense Production Act of 1950, [ Footnote 7/90 ] Congress stated:

															"It is the intent of Congress, in order to provide for effective
price and wage stabilization pursuant to title IV of this Act and
to maintain uninterrupted production, that there be effective
procedures for the settlement of labor disputes affecting national
defense."

															(§ 501.) Title V authorized the President to initiate
labor-management conferences and to take action appropriate to
carrying out the recommendations of such conferences and the
provisions of Title V. (§ 502.) Due regard is to be given to
collective bargaining practice and stabilization policies, and no
action taken is to be inconsistent with Taft-Hartley and other
laws. (§ 503.) The purpose of these provisions was to authorize the
President "to establish a board, commission or other agency,
similar Page 343 U. S. 706 to the War Labor Board of World War II, to carry out the title."
[ Footnote 7/91 ]

															The President authorized the Wage Stabilization Board (WSB),
which administers the wage stabilization functions of Title IV of
the Defense Production Act, also to deal with labor disputes
affecting the defense program. [ Footnote 7/92 ] When extension of the Defense Production
Act was before Congress in 1951, the Chairman of the Wage
Stabilization Board described in detail the relationship between
the Taft-Hartley procedures applicable to labor disputes imperiling
the national health and safety and the new WSB disputes procedures
especially devised for settlement of labor disputes growing out of
the needs of the defense program. [ Footnote 7/93 ] Aware that a technique separate from
Taft-Hartley had been devised, members of Congress attempted to
divest the WSB of its disputes powers. These attempts 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. [ Footnote 7/94 ] Page 343 U. S. 707 Certainly this legislative creation of a new procedure for
dealing with defense disputes negatives any notion that Congress
intended the earlier and discretionary Taft-Hartley procedure to be
an exclusive procedure.

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

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

															When the President acted on April 8, he had exhausted the
procedures for settlement available to him. Taft-Hartley was a
route parallel to, not connected with, the WSB procedure. The
strike had been delayed 99 Page 343 U. S. 708 days, as contrasted with the maximum delay of 80 days under
Taft-Hartley. There had been a hearing on the issues in dispute and
bargaining which promised settlement up to the very hour before
seizure had broken down. Faced with immediate national peril
through stoppage in steel production, on the one hand, and faced
with destruction of the wage and price legislative programs, on the
other, the President took temporary possession of the steel mills
as the only course open to him consistent with his duty to take
care that the laws be faithfully executed.

															Plaintiffs' property was taken and placed in the possession of
the Secretary of Commerce to prevent any interruption in steel
production. It made no difference whether the stoppage was caused
by a union-management dispute over terms and conditions of
employment, a union-Government dispute over wage stabilization, or
a management-Government dispute over price stabilization. The
President's action has thus far been effective not in settling the
dispute, but in saving the various legislative programs at stake
from destruction until Congress could act in the matter. VI The diversity of views expressed in the six opinions of the
majority, the lack of reference to authoritative precedent, the
repeated reliance upon prior dissenting opinions, the complete
disregard of the uncontroverted facts showing the gravity of the
emergency, and the temporary nature of the taking all serve to
demonstrate how far afield one must go to affirm the order of the
District Court.

															The broad executive power granted by Article II to an officer on
duty 365 days a year cannot, it is said, be invoked to avert
disaster. Instead, the President must confine himself to sending a
message to Congress recommending action. Under this messenger-boy
concept of Page 343 U. S. 709 the Office, the President cannot even act to preserve
legislative programs from destruction so that Congress will have
something left to act upon. There is no judicial finding that the
executive action was unwarranted because there was, in fact, no
basis for the President's finding of the existence of an emergency
[ Footnote 7/95 ] for, under this
view, the gravity of the emergency and the immediacy of the
threatened disaster are considered irrelevant as a matter of
law.

															Seizure of plaintiffs' property is not a pleasant undertaking.
Similarly unpleasant to a free country are the draft which disrupts
the home and military procurement which causes economic dislocation
and compels adoption of price controls, wage stabilization and
allocation of materials. The President informed Congress that even
a temporary Government operation of plaintiffs' properties was
"thoroughly distasteful" to him, but was necessary to prevent
immediate paralysis of the mobilization program. Presidents have
been in the past, and any man worthy of the Office should be in the
future, free to take at least interim action necessary to execute
legislative programs essential to survival of the Nation. A sturdy
judiciary should not be swayed by the unpleasantness or
unpopularity of necessary executive action, but must independently
determine for itself whether the President was acting, as required
by the Constitution, to "take Care that the Laws be faithfully
executed."

															As the District Judge stated, this is no time for "timorous"
judicial action. But neither is this a time for timorous executive
action. Faced with the duty of executing the defense programs which
Congress had enacted and the disastrous effects that any stoppage
in steel production would have on those programs, the President
acted to preserve those programs by seizing the steel mills. Page 343 U. S. 710 There is no question that the possession was other than
temporary in character, and subject to congressional direction --
either approving, disapproving, or regulating the manner in which
the mills were to be administered and returned to the owners. The
President immediately informed Congress of his action, and clearly
stated his intention to abide by the legislative will. No basis for
claims of arbitrary action, unlimited powers, or dictatorial
usurpation of congressional power appears from the facts of this
case. On the contrary, judicial, legislative and executive
precedents throughout our history demonstrate that, in this case,
the President acted in full conformity with his duties under the
Constitution. Accordingly, we would reverse the order of the
District Court.

															[ Footnote 7/1 ]

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

															[ Footnote 7/2 ]

															U.N. Security Council, U.N. Doc. S/1501 (1950); Statement by the
President, June 26, 1950, United States Policy in the Korean
Crisis, Dept. of State Pub. (1950), 16.

															[ Footnote 7/3 ]

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

															[ Footnote 7/4 ]

															61 Stat. 103 (1947)

															[ Footnote 7/5 ]

															62 Stat. 137 (1948), as amended, 63 Stat. 50 (1949), 64 Stat. 98
(1950).

															[ Footnote 7/6 ]

															63 stat. 2241, 2252 (1949), extended to Greece and Turkey,
S.Exec. E, 82d cong., 2d Sess. (1952), advice and consent of the
Senate granted. 98 Cong.Rec. 930.

															[ Footnote 7/7 ]

															63 Stat. 714 (1949).

															[ Footnote 7/8 ]

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

															[ Footnote 7/9 ]

															65 Stat. 373 (1951).

															[ Footnote 7/10 ]

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

															[ Footnote 7/11 ]

															See H.R.Doc. No. 382, 82d Cong., 2d Sess. (1952).

															[ Footnote 7/12 ]

															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).

															[ Footnote 7/13 ]

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

															[ Footnote 7/14 ]

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

															[ Footnote 7/15 ]

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

															[ Footnote 7/16 ] See H.R.Rep. No. 1685, 82d Cong., 2d Sess. 2 (1952), on
H.R. 7391.

															[ Footnote 7/17 ] See H.R.Rep. No. 384, 82d Cong., 1st Sess. 5 (1951); 97
Cong.Rec. 13647-13649.

															[ Footnote 7/18 ]

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

															[ Footnote 7/19 ] 343
U.S. 579 fn7/18|>Note 18, supra, Tits. IV and V.

															[ Footnote 7/20 ]

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

															[ Footnote 7/21 ] Id. at 8-9.

															[ Footnote 7/22 ]

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

															[ Footnote 7/23 ]

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

															[ Footnote 7/24 ]

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

															[ Footnote 7/25 ] Chicago & Southern Air Lines v. Waterman S.S.
Corp., 333 U. S. 103 , 333 U. S. 111 (1948), and cases cited.

															[ Footnote 7/26 ]

															The Federalist, No. XLVIII.

															[ Footnote 7/27 ]

															The Federalist, No. LXX.

															[ Footnote 7/28 ] McCulloch v.
Maryland , 4 Wheat. 316, 17 U. S. 415 , 17 U. S. 424 (1819).

															[ Footnote 7/29 ] United States v. Classic, 313 U.
S. 299 , 313 U. S.
315 -316 (1941); Home Building & Loan Assn. v.
Blaisdell, 290 U. S. 398 , 290 U. S. 442 443 (1934).

															[ Footnote 7/30 ]

															4 Annals of Congress 1411, 1413 (1794).

															[ Footnote 7/31 ]

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

															[ Footnote 7/32 ]

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

															[ Footnote 7/33 ]

															10 Annals of Congress 619 (1800).

															[ Footnote 7/34 ] Fong Yue Ting v. United States, 149 U.
S. 698 , 149 U. S. 714 (1893).

															[ Footnote 7/35 ] See Prize Cases , 2
Black 635 (1863); Randall, Constitutional Problems Under Lincoln
(1926); Corwin, The President: Office and Powers (1948 ed.),
277-281.

															[ Footnote 7/36 ]

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

															[ Footnote 7/37 ]

															12 Stat. 334 (1862)

															[ Footnote 7/38 ]

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

															[ Footnote 7/39 ]

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

															[ Footnote 7/40 ]

															In 1818, the House Committee on Military Affairs recommended
payment of compensation for vessels seized by the Army during the
War of 1812. American State Papers, Claims (1834), 649. Mitchell v.
Harmony , 13 How. 115, 54 U. S. 134 (1852), involving seizure of a wagon train by an Army officer
during the Mexican War, noted that such executive seizure was
proper in case of emergency, but affirmed a personal judgment
against the officer on the ground that no emergency had been found
to exist. The judgment was paid by the United States pursuant to
Act of Congress. 10 Stat. 727 (1852).

															[ Footnote 7/41 ]

															13 Wall. at 80 U. S.
627 -628. Such a compensable taking was soon
distinguished from the noncompensable taking and destruction of
property during the extreme exigencies of a military campaign. United States v. Pacific R. Co., 120 U.
S. 227 (1887).

															[ Footnote 7/42 ]

															135 U.S. at 135 U. S. 64 .

															[ Footnote 7/43 ]

															Rich, The Presidents and Civil Disorder (1941), 72-86.

															[ Footnote 7/44 ]

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

															[ Footnote 7/45 ]

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

															[ Footnote 7/46 ]

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

															[ Footnote 7/47 ] Id. at 378.

															[ Footnote 7/48 ] Humphrey's Executor v. United States, 295 U.
S. 602 , 295 U. S. 626 (1935), disapproved expressions in the Myers opinion only
to the extent that they related to the President's power to remove
members of quasi -legislative and quasi -judicial
commissions as contrasted with executive employees.

															[ Footnote 7/49 ]

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

															[ Footnote 7/50 ]

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

															[ Footnote 7/51 ] Id. at 24 25, 32-34. See also 2 Official
U.S.Bull. (1918), No. 412; 8 Baker, Woodrow Wilson, Life &
Letters (1939), 400-402; Berman, Labor Disputes and the President
(1924), 125-153; Pringle, The Life and Times of William Howard Taft
(1939), 915-925.

															[ Footnote 7/52 ]

															39 Stat. 619, 645 (1916), provides that the President may take
possession of any system of transportation in time of war.
Following seizure of the railroads by President Wilson, Congress
enacted detailed legislation regulating the mode of federal
control. 40 Stat. 451 (1918).

															When Congress was considering the statute authorizing the
President to seize communications systems whenever he deemed such
action necessary during the war, 40 Stat. 904 (1918), Senator
(later President) Harding opposed on the ground that there was no
need for such stand-by powers because, in event of a present
necessity, the Chief Executive "ought to" seize communications
lines, "else he would be unfaithful to his duties as such Chief
Executive." 56 Cong.Rec. 9064 (1918).

															[ Footnote 7/53 ]

															48 Stat. 1689 (1933).

															[ Footnote 7/54 ]

															54 Stat. 2643 (1939).

															[ Footnote 7/55 ]

															55 Stat. 1647 (1941).

															[ Footnote 7/56 ]

															86 Cong.Rec. 11354 (1940) (Message of the President). See 39 Op.Atty.Gen. 484 (1940). Attorney General Jackson's
opinion did not extend to the transfer of "mosquito boats," solely
because an express statutory prohibition on transfer was
applicable.

															[ Footnote 7/57 ]

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

															[ Footnote 7/58 ]

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

															[ Footnote 7/59 ]

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

															[ Footnote 7/60 ] See 89 Cong.Rec. 3992 (1943). The Attorney General also
noted that the dispute at North American Aviation was
Communist-inspired, and more nearly resembled an insurrection than
a labor strike. The relative size of North American Aviation and
the impact of an interruption in production upon our defense effort
were not described.

															[ Footnote 7/61 ]

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

															[ Footnote 7/62 ]

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

															[ Footnote 7/63 ]

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

															[ Footnote 7/64 ]

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

															[ Footnote 7/65 ]

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

															[ Footnote 7/66 ]

															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).

															[ Footnote 7/67 ]

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

															[ Footnote 7/68 ]

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

															[ Footnote 7/69 ]

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

															[ Footnote 7/70 ]

															89 cong. Rec. 3989-3992 (1943).

															[ Footnote 7/71 ]

															S. 796, 78th cong., 1st Sess., §§ 12, 13 (1943), as passed by
the House.

															[ Footnote 7/72 ]

															57 stat. 163, 164 (1943).

															[ Footnote 7/73 ]

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

															[ Footnote 7/74 ]

															39 Op.Atty.Gen. 343, 347 (1939)

															[ Footnote 7/75 ] 343
U.S. 579 fn7/60|>Note 60, supra. [ Footnote 7/76 ]

															Letter introduced in Hearings before Senate Committee on Labor
and Public Welfare on S. 249, 81st Cong., 1st Sess. 232 (1949)
pointing to the "exceedingly great" powers of the President to deal
with emergencies even before the Korean crisis.

															[ Footnote 7/77 ]

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

															[ Footnote 7/78 ]

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

															[ Footnote 7/79 ]

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

															[ Footnote 7/80 ] United States v. Montgomery Ward & Co., 150 F.2d
369 (c A. 7th Cir.1945), reversing 58 F. Supp.
408 (N.D.Ill.1945). See also Ken-Rad Tube & Lamp Corp.
v. Badeau, 55 F. Supp.
193 , 197-199 (W. D. Ky.1944), where the court held that a
seizure was proper with or without express statutory
authorization.

															[ Footnote 7/81 ]

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

															[ Footnote 7/82 ]

															15 Fed.Reg. 9029 (1950).

															[ Footnote 7/83 ]

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

															[ Footnote 7/84 ]

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

															[ Footnote 7/85 ]

															62 Stat. 604, 627 (1948), 50 U.S.C. App. (Supp. IV) §
468(h)(1).

															[ Footnote 7/86 ]

															Tit. II, 64 Stat. 798, 799 (1950), as amended, 65 Stat. 138
(1951).

															[ Footnote 7/87 ] Home Building Loan Assn. v. Blaisdell, 290 U.
S. 398 , 290 U. S. 425 426 (1934).

															[ Footnote 7/88 ] See Bus Employees v. Wisconsin Board, 340 U.
S. 383 (1951).

															[ Footnote 7/89 ]

															§§ 206-210, Labor Management Relations Act of 1947. 29 U.S.C.
(Supp.IV) §§ 176-180.

															[ Footnote 7/90 ]

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

															[ Footnote 7/91 ]

															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).

															[ Footnote 7/92 ]

															Exec.Order 10161, 15 Fed.Reg. 6105 (1950), as amended,
Exec.Order 10233, 16 Fed.Reg. 3503 (1951).

															[ Footnote 7/93 ]

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

															[ Footnote 7/94 ]

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

															[ Footnote 7/95 ] Compare Sterling v. Constantin, 287 U.
S. 378 , 287 U. S.
399 -401 (1932).

Summary: In Youngstown Sheet & Tube Co. v. Sawyer (1952), the US Supreme Court ruled that President Truman's seizure of steel mills during a labor dispute was unconstitutional. The Court held that the President's power to act must come from either explicit or implied Congressional authorization, neither of which was present in this case. This decision limited the President's authority to act without clear legislative backing.