YOUNGSTOWN SHEET & TUBE CO. V. SAWYER, 343 U. S. 579 (1952) -- US Supreme Court Cases from Justia & Oyez

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. 579app|

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." 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. 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,"

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."

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YOUNGSTOWN SHEET & TUBE CO. V. SAWYER, 343 U. S. 579 (1952)

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)

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