Youngstown Co. v. Sawyer Sec. of Comm. 343 U.S. 579

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72 S.Ct. 863 Page 1
343 U.S. 579, 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153, 62 Ohio Law Abs. 417, 62
Ohio Law Abs. 473, 47 O.O. 430, 47 O.O. 460, 21 Lab.Cas. P 67,008
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
92k975 k. In general. Most Cited

Cases
Supreme Court of the United States (Formerly 92k46(1))
YOUNGSTOWN SHEET & TUBE CO. et al. Courts will decline to reach and decide constitu-
v. tional questions until compelled to do so.
SAWYER.
SAWYER [2] Injunction 212 147
v.
YOUNGSTOWN SHEET & TUBE CO. et al. 212 Injunction
Nos. 744, 745. 212IV Preliminary and Interlocutory Injunctions
212IV(A) Grounds and Proceedings to Pro-
Argued May 12 and May 13, 1952. cure
Decided June 2, 1952. 212IV(A)4 Proceedings
212k147 k. Evidence and affidavits.
The Youngstown Sheet & Tube Company and other Most Cited Cases
steel companies named in a list attached to Execut- In view of prior cases in United States Supreme
ive Order No. 10340, promulgated April 8, 1952, Court casting doubt on right to recover in Court of
directing seizure of the plants of such companies, Claims on account of properties unlawfully taken
brought actions against Charles Sawyer, Secretary by government officials for public use, the diffi-
of Commerce, praying for declaratory judgments culty of measuring present and future damages
and injunctive relief. The United States District likely to result from seizure of going businesses,
Court for the District of Columbia, David A. Pine, and other facts presented in proceedings on steel
J., 103 F.Supp. 569, granted plaintiffs' motions for companies' motions to temporarily enjoin Secretary
temporary injunctions. Certiorari was granted by of Commerce from seizing their plants, district
the United States Supreme Court after the Court of court did not err in refusing to delay decision as to
Appeals for the District of Columbia Circuit had is- constitutional validity of seizure orders.
sued stay orders. Mr. Justice Black delivered the
opinion of the court holding that the seizure order [3] United States 393 28
was not within the constitutional power of the Pres-
ident. 393 United States
393I Government in General
Affirmed. 393k28 k. Exercise of supreme executive au-
thority. Most Cited Cases
Mr. Chief Justice Vinson, Mr. Justice Reed and Mr. Contrary to contention that President had
Justice Minton dissented. “inherent” power to be exercised in public interest,
the president's power to issue Executive Order dir-
West Headnotes
ecting Secretary of Commerce to take possession of
[1] Constitutional Law 92 975 plants of steel companies involved in labor dispute
would have to stem either from an act of Congress
92 Constitutional Law or from the Constitution itself.
92VI Enforcement of Constitutional Provisions
92VI(C) Determination of Constitutional [4] War and National Emergency 402 1114
Questions
402 War and National Emergency
92VI(C)2 Necessity of Determination
402II Measures and Acts in Exercise of Federal
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

72 S.Ct. 863 Page 2
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
Power [6] Constitutional Law 92 2621

402II(B) Particular Measures, Orders, and
Regulations 92 Constitutional Law
402II(B)1 Mobilization for War 92XX Separation of Powers
402k1111 Manufacture and Procure- 92XX(D) Executive Powers and Functions
ment of War Materials 92k2621 k. Encroachment on legislature.
402k1114 k. Seizure or control of Most Cited Cases
private business. Most Cited Cases (Formerly 92k77)
(Formerly 402k45)
United States 393 28
War and National Emergency 402 1319
393 United States
402 War and National Emergency 393I Government in General
402II Measures and Acts in Exercise of Federal 393k28 k. Exercise of supreme executive au-
Power thority. Most Cited Cases
402II(B) Particular Measures, Orders, and Where Executive Order directing Secretary of
Regulations Commerce to seize steel mills set forth in its pre-
402II(B)8 Labor and Wage Control amble, like statute, reasons why President believed
402k1319 k. Labor disputes. Most certain policies should be adopted, and such
Cited Cases policies were proclaimed as rules of conduct to be
(Formerly 402k45) followed, and, again like statute, authorized gov-
The job of keeping labor disputes from stopping ernment officials to promulgate additional rules and
production is one for the nation's lawmakers rather regulations consistent with policy proclaimed and
than one for its military authorities; and therefore, needed to carry that policy into execution, such or-
notwithstanding expanding concept of “theater of der was not merely a direction that Congressional
war”, Executive Order directing Secretary of Com- policy be executed in manner prescribed by Con-
merce to take possession of plants of steel compan- gress, but amounted to a direction that presidential
ies involved in labor dispute could not be sustained policy be executed in a manner prescribed by the
as exercise of President's military power as com- President; and therefore, such order could not be
mander in chief of armed forces. U.S.C.A.Const. sustained as an exercise of the President's power to
art. 1, §§ 1, 8, art. 2. see that laws are faithfully executed.
U.S.C.A.Const. art. 2, § 3.
[5] Constitutional Law 92 2621
[7] Eminent Domain 148 5
92 Constitutional Law
92XX Separation of Powers 148 Eminent Domain
92XX(D) Executive Powers and Functions 148I Nature, Extent, and Delegation of Power
92k2621 k. Encroachment on legislature. 148k5 k. Power of United States. Most Cited
Most Cited Cases Cases
(Formerly 92k77) Congress can authorize taking of private property
The Congress rather than the President, is vested by for public use. U.S.C.A.Const. art. 1, §§ 1, 8.
the Constitution with lawmaking function, and
[8] Labor and Employment 231H 961
President is restricted to recommending laws
thought wise, vetoing of laws considered bad, and 231H Labor and Employment
seeing to the faithful execution of laws properly en- 231HXII Labor Relations
acted. U.S.C.A.Const. art. 1, §§ 1, 8, art. 2. 231HXII(A) In General

72 S.Ct. 863 Page 3
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
231Hk961 k. Power to regulate. Most 92XX Separation of Powers

Cited Cases 92XX(D) Executive Powers and Functions
(Formerly 232Ak5 Labor Relations) 92k2621 k. Encroachment on legislature.
Most Cited Cases
Labor and Employment 231H 1341 (Formerly 92k77)
Under Constitution, lawmaking power of Congress
231H Labor and Employment
is not subject to presidential or military supervision
231HXII Labor Relations
or control. U.S.C.A.Const. art. 1, § 1.
231HXII(F) Disputes and Concerted Activit-
ies [10] Constitutional Law 92 2621
231HXII(F)1 In General
231Hk1341 k. Power to regulate. Most 92 Constitutional Law
Cited Cases 92XX Separation of Powers
(Formerly 232Ak283 Labor Relations) 92XX(D) Executive Powers and Functions
92k2621 k. Encroachment on legislature.
Labor and Employment 231H 2172 Most Cited Cases
(Formerly 92k77)
Previous action by Presidents in seizing, without
231HXIII Wages and Hours
Congressional authority, possession of private busi-
231HXIII(A) In General
ness enterprises in order to settle labor disputes did
231Hk2171 Constitutional and Statutory
not deprive Congress of its exclusive constitutional
Provisions
authority to make laws necessary and proper to
231Hk2172 k. In general. Most Cited
carry out powers vested by Constitution “in the
Cases
government of the United States, or any department
(Formerly 232Ak5 Labor Relations)
or officer thereof.” U.S.C.A.Const. art. 1, § 8.
Labor and Employment 231H 2212
[11] Constitutional Law 92 2340
231HXIII Wages and Hours
92XX Separation of Powers
231HXIII(B) Minimum Wages and Overtime
92XX(B) Legislative Powers and Functions
Pay
92XX(B)1 In General
231HXIII(B)1 In General
92k2340 k. Nature and scope in gener-
231Hk2211 Power to Regulate
al. Most Cited Cases
231Hk2212 k. In general. Most
(Formerly 92k77)
Cited Cases
The lawmaking power entrusted to Congress by the
(Formerly 232Ak1082.1, 232Ak1082 Labor Re-
founders of the Nation must be exercised by the
lations)
Congress alone in both good and bad times.
Congress can make laws regulating relationships
U.S.C.A.Const. art. 1, s 8.
between employers and employees, prescribing
rules designed to settle labor disputes, and fixing [12] Constitutional Law 92 2620
wages and working conditions in certain fields of
our economy. U.S.C.A.Const. art. 1, §§ 1, 8. 92 Constitutional Law
92XX Separation of Powers
[9] Constitutional Law 92 2621 92XX(D) Executive Powers and Functions
92k2620 k. Nature and scope in general.

72 S.Ct. 863 Page 4
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
Most Cited Cases production, and that in meeting this grave emer-
(Formerly 92k76) gency the President was acting within the aggregate
of his constitutional powers as the Nation's Chief
United States 393 28 Executive and the Commander in Chief of the
Armed Forces of the United States. The issue
393 United States
emerges here from the following series of events:
393I Government in General
393k28 k. Exercise of supreme executive au- In the latter part of 1951, a dispute arose between
thority. Most Cited Cases the steel companies and their employees over terms
(Formerly 92k76) and conditions that should be included in new col-
The Executive Order directing the Secretary of lective bargaining agreements. Long-continued
Commerce to seize the plants of steel companies in- conferences failed to resolve the dispute. On
volved in labor dispute was invalid as exceeding December 18, 1951, the employees' representative,
constitutional power of President. Executive Orders United Steelworkers of America, C.I.O., gave no-
April 21, 1951, No. 10233, 50 U.S.C.A. Appendix, tice of an intention to strike when the existing bar-
§ 2071 note, and April 8, 1952, No. 10340. gaining agreements expired on December 31. The
**864 *581 Mr. John W. Davis, New York City, Federal Mediation and Conciliation Service then in-
for Youngstown Sheet & Tube Co. et al. tervened in an effort to get labor and management
to agree. This failing, the President on December
Mr. Solicitor General Philip B. Perlman, Washing-
22, 1951, referred the dispute to the Federal Wage
ton, D.C., for Sawyer, Secretary of Commerce. FN1
Stabilization *583 Board to investigate and
*582 Mr. Arthur J. Goldberg, Washington, D.C., make recommendations for fair and equitable terms
for United Steelworkers of America, CIO, as of settlement. This Board's report resulted in no set-
amicus curiae, by special leave of Court. tlement. On April 4, 1952, the Union gave notice of
a nation-wide strike called **865 to begin at 12:01
Messrs. Clifford D. O'Brien, Chicago, Ill., and Har- a.m. April 9. The indispensability of steel as a com-
old C. Heiss, Cleveland, Ohio, for Brotherhood of ponent of substantially all weapons and other war
Locomotive Firemen and Enginemen, et al., as materials led the President to believe that the pro-
amici curiae, by special leave of Court. posed work stoppage would immediately jeopardize
our national defense and that governmental seizure
of the steel mills was necessary in order to assure
Mr. Justice BLACK delivered the opinion of the
the continued availability of steel. Reciting these
Court.
considerations for his action, the President, a few
We are asked to decide whether the President was hours before the strike was to begin, issued Execut-
acting within his constitutional power when he is- ive Order 10340, a copy of which is attached as an
sued an order directing the Secretary of Commerce appendix, post, 72 S.Ct. 868. The order directed the
to take possession of and operate most of the Na- Secretary of Commerce to take possession of most
tion's steel mills. The mill owners argue that the of the steel mills and keep them running. The Sec-
President's order amounts to lawmaking, a legislat- retary immediately issued his own possessory or-
ive function which the Constitution has expressly ders, calling upon the presidents of the various
confided to the Congress and not to the President. seized companies to serve as operationg managers
The Government's position is that the order was for the United States. They were directed to carry
made on findings of the President that his action on their activities in accordance with regulations
was necessary to avert a national catastrophe which and directions of the Secretary. The next morning
would inevitably result from a stoppage of steel the President sent a message to Congress reporting

72 S.Ct. 863 Page 5
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
his action. Cong.Rec., April 9, 1952, p. 3962. the President's order be made in this case which has
Twelve days later he sent a second message. proceeded no further than the preliminary injunc-
Cong.Rec., April 21, 1952, p. 4192. Congress has tion stage? Second. If so, is the seizure order within
taken no action. the constitutional power of the President?
FN1. This Board was established under

Executive Order 10233, 50 I.
U.S.C.A.Appendix, s 2071 note, 16
[1][2] It is urged that there were nonconstitutional
Fed.Reg. 3503, U.S.Code Cong. Service
grounds upon which the District Court could have
1951, p. 1018.
denied the preliminary injunction and thus have fol-
Obeying the Secretary's orders under protest, the lowed the customary judicial practice of declining
companies brought proceedings against him in the to reach and decide constitutional questions until
District Court. Their complaints charged that the compelled to do so. On this basis it is argued that
seizure was not authorized by an act of Congress or equity's extraordinary injunctive relief should have
by any constitutional provisions. The District Court been denied because (a) seizure of the companies'
was asked to declare the orders of the President and properties did not inflict irreparable damages,*585
the Secretary invalid and to issue preliminary and and (b) there were available legal remedies ad-
permanent injunctions restraining their enforce- equate to afford compensation for any possible
ment. Opposing the motion for preliminary*584 in- damages which they might suffer. While separately
junction, the United States asserted that a strike dis- argued by the Government, these two contentions
rupting steel production for even a brief period are here closely related, if not identical. Arguments
would so endanger the well-being and safety of the as to both rest in large part on the Government's
Nation that the President had ‘inherent power’ to do claim that should the seizure ultimately be held un-
what he had done-power “supported by the Consti- lawful, the companies could recover full compensa-
tution, by historical precedent, and by court de- tion in the Court of Claims for the unlawful taking.
cisions.” The Government also contended that in Prior cases in this Court have cast doubt on the
any event no preliminary injunction should be is- right to recover in the Court of Claims on account
sued because the companies had made no showing of properties**866 unlawfully taken by government
that their available legal remedies were inadequate officials for public use as these properties were al-
or that their injuries from seizure would be irrepar- leged to have been. See e.g., Hooe v. United States,
able. Holding against the Government on all points, 218 U.S. 322, 335-336, 31 S.Ct. 85, 89, 54 L.Ed.
the District Court on April 30 issued a preliminary 1055; United States v. North American Transporta-
injunction restraining the Secretary from tion & Trading Co., 253 U.S. 330, 333, 40 S.Ct.
“continuing the seizure and possession of the plant 518, 519, 64 L.Ed. 935. But see Larson v. Domestic
* * * and from acting under the purported authority & Foreign Commerce Corp., 337 U.S. 682,
of Executive Order No. 10340. ” 103 F.Supp. 569. 701-702, 69 S.Ct. 1457, 1467, 93 L.Ed. 1628.
On the same day the Court of Appeals stayed the Moreover, seizure and governmental operation of
District Court's injunction. 197 F.2d 582. Deeming these going businesses were bound to result in
it best that the issues raised be promptly decided by many present and future damages of such nature as
this Court, we granted certiorari on May 3 and set to be difficult, if not incapable, of measurement.
the cause for argument on May 12. 343 U.S. 937, Viewing the case this way, and in the light of the
72 S.Ct. 775. facts presented, the District Court saw no reason for
delaying decision of the constitutional validity of
Two crucial issues have developed: First. Should fi- the orders. We agree with the District Court and
nal determination of the constitutional validity of can see no reason why that question was not ripe

72 S.Ct. 863 Page 6
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
for determination on the record presented. We shall did not provide for seizure under any circum-
therefore consider and determine that question now. stances. Instead, the plan sought to bring about set-
tlements by use of the customary devices of medi-
ation, conciliation, investigation by boards of in-
II.
quiry, and public reports. In some instances tempor-
[3] The President's power, if any, to issue the order ary injunctions were authorized to provide cooling-
must stem either from an act of Congress or from off periods. All this failing, unions were left free to
the Constitution itself. There is no statute that ex- strike after a secret vote by employees as to wheth-
pressly authorizes the President to take possession er they wished to accept their employers' final set-
FN5
of property as he did here. Nor is there any act of tlement offer.
Congress to which our attention has been directed
FN3. 93 Cong.Rec. 3637-3645.
from which such a power can fairly be implied. In-
deed, we do not understand the Government to rely FN4. 93 Cong.Rec. 3835-3836.
on statutory authorization for this seizure. There are
two statutes which do authorize the President *586 FN5. Labor Management Relations Act,
to take both personal and real property under cer- 1947, 61 Stat. 136, 152-156, 29 U.S.C.
FN2
tain conditions. However, the Government ad- (Supp. IV) ss 141, 171-180, 29 U.S.C.A. ss
mits that these conditions were not met and that the 141, 171-180.
President's order was not rooted in either of the
statutes. The Government refers to the seizure pro- *587 It is clear that if the President had authority to
visions of one of these statutes (s 201(b) of the De- issue the order he did, it must be found in some
fense Production Act) as “much too cumbersome, provisions of the Constitution. And it is not claimed
involved, and time-consuming for the crisis which that express constitutional language grants this
was at hand.” power to the President. The contention is that pres-
idential power should be implied from the aggreg-
FN2. The Selective Service Act of 1948, ate of his powers under the Constitution. Particular
62 Stat. 604, 625-627, 50 U.S.C.App. reliance is placed on provisions in Article II which
(Supp. IV) s 468, 50 U.S.C.A.Appendix, s say that “the executive Power shall be vested in a
468; the Defense Production Act of 1950, President * * *”; that “he shall take Care that the
Tit. II, 64 Stat. 798, as amended, 65 Stat. Laws be faithfully**867 executed”; and that he
132, 50 U.S.C.A.Appendix, s 2081. “shall be Commander in Chief of the Army and
Navy of the United States.”
Moreover, the use of the seizure technique to solve
labor disputes in order to prevent work stoppages [4] The order cannot properly be sustained as an ex-
was not only unauthorized by any congressional en- ercise of the President's military power as Com-
actment; prior to this controversy, Congress had re- mander in Chief of the Armed Forces. The Govern-
fused to adopt that method of settling labor dis- ment attempts to do so by citing a number of cases
putes. When the Taft-Hartley Act was under con- upholding broad powers in military commanders
sideration in 1947, Congress rejected an amend- engaged in day-to-day fighting in a theater of war.
ment which would have authorized such govern- Such cases need not concern us here. Even though
FN3
mental seizures in cases of emergency. Appar- ‘theater of war’ be an expanding concept, we can-
ently it was thought that the technique of seizure, not with faithfulness to our constitutional system
like that of compulsory arbitration, would interfere hold that the Commander in Chief of the Armed
FN4
with the process of collective bargaining. Con- Forces has the ultimate power as such to take pos-
sequently, the plan Congress adopted in that Act session of private property in order to keep labor

72 S.Ct. 863 Page 7
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
disputes from stopping production. This is a job for of our economy. The Constitution did not subject
the Nation's lawmakers, not for its military author- this law-making power of Congress to presidential
ities. or military supervision or control.
[5] Nor can the seizure order be sustained because [10] It is said that other Presidents without congres-
of the several constitutional provisions that grant sional authority have taken possession of private
executive power to the President. In the framework business enterprises in order to settle labor dis-
of our Constitution, the President's power to see putes. But even if this be true, Congress has not
that the laws are faithfully executed refutes the idea thereby lost its exclusive constitutional authority to
that he is to be a lawmaker. The Constitution limits make laws necessary and proper to carry out the
his functions in the lawmaking process to the re- powers vested by the Constitution*589 “in the Gov-
commending of laws he tninks wise and the vetoing ernment of the United States, or in any Department
of laws he thinks bad. And the Constitution is or Officer thereof.”
neither silent nor equivocal about who shall make
laws which the President is to execute. The *588 [11][12] The Founders of this Nation entrusted the
first section of the first article says that “All legis- law making power to the Congress alone in both
lative Powers herein granted shall be vested in a good and bad times. It would do no good to recall
Congress of the United States * * *.” After granting the historical events, the fears of power and the
many powers to the Congress, Article I goes on to hopes for freedom that lay behind their choice.
provide that Congress may “make all Laws which Such a review would but confirm our holding that
shall be necessary and proper for carrying into Exe- this seizure order cannot stand.
cution the foregoing Powers and all other Powers
The judgment of the District Court is affirmed.
vested by this Constitution in the Government of
the United States, or in any Department or Officer Affirmed.
thereof.” Mr. Justice FRANKFURTER.
Although the considerations relevant to the legal
[6][7][8][9] The President's order does not direct
enforcement of the principle of separation of
that a congressional policy be executed in a manner
powers seem to me more complicated and flexible
prescribed by Congress-it directs that a presidential
than any appear from **868 what Mr. Justice
policy be executed in a manner prescribed by the
BLACK has written, I join his opinion because I
President. The preamble of the order itself, like that
thoroughly agree with the application of the prin-
of many statutes, sets out reasons why the President
ciple to the circumstances of this case. Even though
believes certain policies should be adopted, pro-
such differences in attitude toward this principle
claims these policies as rules of conduct to be fol-
may be merely differences in emphasis and nuance,
lowed, and again, like a statute, authorizes a gov-
they can hardly be reflected by a single opinion for
ernment official to promulgate additional rules and
the Court. Individual expression of views in reach-
regulations consistent with the policy proclaimed
ing a common result is therefore important.
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 APPENDIX.
can authorize the taking of private property for pub-
lic use. It can makes laws regulating the relation-
Executive Order
ships between employers and employees, prescrib-
ing rules designed to settle labor disputes, and fix-
ing wages and working conditions in certain fields Directing the Secretary of Commerce to Take Pos-

72 S.Ct. 863 Page 8
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
session of and Operate the Plants and Facilities of through the processes of collective bargaining or
Certain Steel Companies through the efforts of the Government, including
those of the Wage Stabilization Board, to which the
controversy was referred on December 22, 1951,
Whereas on December 16, 1950, I proclaimed the
pursuant to Executive Order No. 10233, and a
existence of a national emergency which requires
strike has been called for 12:01 A.M., April 9,
that the military, naval, air, and civilian defenses of
1952; and
this country be strengthened as speedily as possible
to the end that we may be able to repel any and all Whereas a work stoppage would immediately jeop-
threats against our national*590 security and to ful- ardize and imperil our national defense and the de-
fill our responsibilities in the efforts being made fense *591 of those joined with us in resisting ag-
throughout the United Nations and otherwise to gression, and would add to the continuing danger of
bring about a lasting peace; and our soldiers, sailors, and airmen engaged in combat
in the field; and
Whereas American fighting men and fighting men
of other nations of the United Nations are now en- Whereas is order to assure the continued availabil-
gaged in deadly combat with the forces of aggres- ity of steel and steel products during the existing
sion in Korea, and forces of the United States are emergency, it is necessary that the United States
stationed elsewhere overseas for the purpose of par- take possession of and operate the plants, facilities,
ticipating in the defense of the Atlantic Community and other property of the said companies as herein-
against aggression; and after provided:
Whereas the weapons and other materials needed Now, therefore, by virtue of the authority vested in
by our armed forces and by those joined with us in me by the Constitution and laws of the United
the defense of the free world are produced to a States, and as President of the United States and
great extent in this country, and steel is an indis- Commander in Chief of the armed forces of the
pensable component of substantially all of such United States, it is hereby ordered as follows:
weapons and materials; and
1. The Secretary of Commerce is hereby authorized
Whereas steel is likewise indispensable to the car- and directed to take possession of all or such of the
rying out of programs of the Atomic Energy Com- plants, facilities, and other property of the compan-
mission of vital importance to our defense efforts; ies named in the list attached hereto (List of specif-
and ic Steel Companies and Plants omitted), or any part
thereof, as he may deem necessary in the interests
Whereas a continuing and uninterrupted supply of
of national defense; and to operate or to arrange for
steel is also indispensable to the maintenance of the
the operation thereof and to do all things necessary
economy of the United States, upon which our mil-
for, or incidental to, such operation.
itary strength depends; and
**869 2. In carrying out this order the Secretary of
Whereas a controversy has arisen between certain
Commerce may act through or with the aid of such
companies in the United States producing and fab-
public or private instrumentalities or persons as he
ricating steel and the elements thereof and certain
may designate; and all Federal agencies shall co-
of their workers represented by the United Steel-
operate with the Secretary of Commerce to the
workers of America, CIO, regarding terms and con-
fullest extent possible in carrying out the purposes
ditions of employment; and
of this order.
Whereas the controversy has not been settled

72 S.Ct. 863 Page 9
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
3. The Secretary of Commerce shall determine and scribe and issue such regulations and orders not in-
prescribe terms and conditions of employment un- consistent herewith as he may deem necessary or
der which the plants, facilities, and other properties desirable for carrying out the purposes of this order;
possession of which is taken pursuant to this order and he may delegate and authorize subdelegation of
shall be operated. The Secretary of Commerce shall such of his functions under this order as he may
recognize the rights of workers to bargain collect- been desirable.
ively through representatives of their own choosing
and to engage in concerted activities for the pur- Harry S. Truman.
pose of collective bargaining, adjustment of griev-
The White House, April 8, 1952.
ances, or other mutual aid or protection, provided
*634 Mr. Justice JACKSON, concurring in the
*592 that such activities do not interfere with the
judgment and opinion of the Court.
operation of such plants, facilities, and other prop-
That comprehensive and undefined presidential
erties.
powers hold both practical advantages and grave
4. Except so far as the Secretary of Commerce shall dangers for the country will impress anyone who
otherwise provide from time to time, the manage- has served as legal adviser to a President in time of
ments of the plants, facilities, and other properties transition and public anxiety. While an interval of
possession of which is taken pursuant to this order detached reflection may temper teachings of that
shall continue their functions, including the collec- experience, they probably are a more realistic influ-
tion and disbursement of funds in the usual and or- ence on my views than the conventional materials
dinary course of business in the names of their re- of judicial decision which seem unduly to accentu-
spective companies and by means of any instru- ate doctrine and legal fiction. But as we approach
mentalities used by such companies. the question of presidential power, we half over-
come mental hazards by recognizing them. The
5. Except so far as the Secretary of Commerce may opinions of judges, no less than executives and pub-
otherwise direct, existing rights and obligations of licists, often suffer the infirmity of confusing the is-
such companies shall remain in full force and ef- sue of a power's validity with the cause it is in-
fect, and there may be made, in due course, pay- voked to promote, of confounding the permanent
ments of dividends on stock, and of principal, in- executive office with its temporary occupant. The
terest, sinking funds, and all other distributions tendency is strong to emphasize transient results
upon bonds, debentures, and other obligations, and upon policies-such as wages or stabilization-and
expenditures may be made for other ordinary cor- lose sight of enduring consequences upon the bal-
porate or business purposes. anced power structure of our Republic.
6. Whenever in the judgment of the Secretary of A judge, like an executive adviser, may be sur-
Commerce further possession and operation by him prised at the poverty of really useful and unambigu-
of any plant, facility, or other property is no longer ous authority applicable to concrete problems of ex-
necessary or expedient in the interest of national ecutive power as they actually present themselves.
defense, and the Secretary has reason to believe Just what our forefathers did envision, or **870
that effective future operation is assured, he shall would have envisioned had they foreseen modern
return the possession and operation of such plant, conditions, must be divined from materials almost
facility, or other property to the company in posses- as enigmatic as the dreams Joseph was called upon
sion and control thereof at the time possession was to interpret for Pharaoh. A century and a half of
taken under this order. partisan debate and scholarly speculation yields no
net result but only supplies more or less apt quota-
7. The Secretary of Commerce is authorized to pre- tions from *635 respected sources on each side of

72 S.Ct. 863 Page 10
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
FN1
any question. They largely cancel each other. be worth), to personify the federal sovereignty. If
And court decisions are indecisive because of the his act is held unconstitutional under these circum-
judicial practice of dealing with the largest ques- stances, it usually means that the Federal Govern-
tions in the most narrow way. ment *637 as an undivided whole lacks power. A
seizure executed by the President pursuant to an
FN1. A Hamilton may be matched againt a Act of Congress would be supported by the
Madison. 7 The Works of Alexander strongest of presumptions and the widest latitude of
Hamilton, 76-117; 1 Madison, Letters and judicial interpretation, and the burden of persuasion
Other Writings, 611-654. Professor Taft is would rest heavily upon any who might attack it.
counterbalanced by Theodore Roosevelt.
Taft, Our Chief Magistrate and His FN2. It is in this class of cases that we find
Powers, 139-140; Theodore Roosevelt, the broadest recent statements of presiden-
Autobiography, 388-389. It even seems tial power, including those relied on here.
that President Taft cancels out Professor United States v. Curtiss-Wright Export
Taft. Compare his ‘Temporary Petroleum Corp., 299 U.S. 304, 57 S.Ct. 216, 221, 81
Withdrawal No. 5’ of September 27, 1909, L.Ed. 255, involved, not the question of
United States v. Midwest Oil Co., 236 U.S. the President's power to act without con-
459, 467, 468, 35 S.Ct. 309, 311, 59 L.Ed. gressional authority, but the question of his
673, with his appraisal of executive power right to act under and in accord with an
in “Our Chief Magistrate and His Powers” Act of Congress. The constitutionality of
139-140. the Act under which the President had pro-
ceeded was assailed on the ground that it
The actual art of governing under our Constitution delegated legislative powers to the Presid-
does not and cannot conform to judicial definitions ent. Much of the Court's opinion is dictum,
of the power of any of its branches based on isol- but the ratio decidendi is contained in the
ated clauses or even single Articles torn from con- following language:
text. While the Constitution diffuses power the bet-
ter to secure liberty, it also contemplates that prac- “When the President is to be authorized by
tice will integrate the dispersed powers into a work- legislation to act in respect of a matter in-
able government. It enjoins upon its branches sep- tended to affect a situation in foreign territ-
arateness but interdependence, autonomy but reci- ory, the legislator properly bears in mind
procity. Presidential powers are not fixed but fluc- the important consideration that the form
tuate, depending upon their disjunction or conjunc- of the President's action-or, indeed, wheth-
tion with those of Congress. We may well begin by er he shall act at all-may well depend,
a somewhat over-simplified grouping of practical among other things, upon the nature of the
situations in which a President may doubt, or others confidential information which he has or
may challenge, his powers, and by distinguishing may thereafter receive, or upon the effect
roughly the legal consequences of this factor of re- which his action may have upon our for-
lativity. eign relations. This consideration, in con-
nection with what we have already said on
1. When the President acts pursuant to an express the subject, discloses the unwisdom of re-
or implied authorization of Congress, his authority quiring Congress in this field of govern-
is at its maximum, for it includes all that he pos- mental power to lay down narrowly defin-
sesses in his own right plus all that Congress can ite standards by which the President is to
FN2
delegate. In these circumstances,*636 and in be governed. As this court said in Macken-
these only, may he be said (for what it may **871

72 S.Ct. 863 Page 11
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
zie v. Hare, 239 U.S. 299, 311, 36 S.Ct. least as a practical matter, enable, if not invite,
106, 108, 60 L.Ed. 297, “As a government, measures on independent presidential responsibil-
the United States is invested with all the ity. In this area, any actual test of power is likely to
attributes of sovereignty. As it has the depend on the imperatives of events and contem-
character of nationality it has the powers of porary imponderables rather than on abstract theor-
FN3
nationality, especially those which concern ies of law.
its relations and intercourse with other
countries. We should hesitate long before FN3. Since the Constitution implies that
limiting or embarrasing such powers.” the writ of habeas corpus may be suspen-
(Italics supplied.)” ded in certain circumstances but does not
say by whom, President Lincoln asserted
That case does not solve the present con- and maintained it as an executive function
troversy. It recognized internal and extern- in the face of judicial challenge and doubt.
al affairs as being in separate categories, Ex parte Merryman, 17 Fed.Cas. 144, No.
and held that the strict limitation upon con- 9,487; Ex parte Milligan, 4 Wall. 2, 125,
gressional delegations of power to the 18 L.Ed. 281; see Ex parte Bollman, 4
President over internal affairs does not ap- Cranch, 75, 101, 2 L.Ed. 554. Congress
ply with respect to delegations of power in eventually ratified his action. Habeas Cor-
external affairs. It was intimated that the pus Act of March 3, 1863, 12 Stat. 755.
President might act in external affairs See Hall, Free Speech in War Time, 21
without congressional authority, but not Col.L.Rev. 526. Compare Myers v. United
that he might act contrary to an Act of States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed.
Congress. 160, with Humphrey's Executor v. United
States, 295 U.S. 602, 55 S.Ct. 869, 79
Other examples of wide definition of pres- L.Ed. 1611, and Hirabayashi v. United
idential powers under statutory authoriza- States, 320 U.S. 81, 63 S.Ct. 1375, 87
tion are Chicago & Southern Air Lines v. L.Ed. 1774, with the case at bar. Also com-
Waterman Steamship Corp., 333 U.S. 103, pare Ex parte Vallandigham, 1 Wall. 243,
68 S.Ct. 431, 92 L.Ed. 568, and Hira- 17 L.Ed. 589, with Ex parte Milligan,
bayashi v. United States, 320 U.S. 81, 63 supra.
S.Ct. 1375, 87 L.Ed. 1774. But see, Jecker
v. Montgomery, 13 How. 498, 515, 14 3. When the President takes measures incompatible
L.Ed. 240; Western Union Telegraph Co. with the expressed or implied will of Congress, his
v. United States, D.C., 272 F. 311, af- power is at its lowest ebb, for then he can rely only
firmed, 2 Cir., 272 F. 893, reversed on upon his own constitutional powers minus any con-
consent of the parties, 260 U.S. 754, 43 stitutional powers of Congress over the matter.
S.Ct. 91, 67 L.Ed. 497; United States Har- Courts can sustain exclusive Presidential control in
ness Co. v. Graham, D.C., 288 F. 929. such a case only be disabling*638 the Congress
FN4
from acting upon the subject. Presidential
2. When the President acts in absence of either a claim to a power at once so conclusive and preclus-
congressional grant or denial of authority, he can ive must be scrutinized with caution, for what is at
only rely upon his own independent powers, but stake is the equilibrium established by our constitu-
there is a zone of twilight in which he and Congress tional system.
may have concurrent authority, or in which its dis-
tribution is uncertain. Therefore, congressional in- FN4. President Roosevelt's effort to re-
ertia, indifference or quiescence may sometimes, at move a Federal Trade Commissioner was

72 S.Ct. 863 Page 12
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
found to be contrary to the policy of Con- he declared:

gress and impinging upon an area of con-
gressional control, and so his removal “The Constitution has made no provision
power was cut down accordingly. for our holding foreign territory, still less
Humphrey's Executor v. United States, 295 for incorporating foreign nations into our
U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611. Union. The executive in seizing the fugit-
However, his exclusive power of removal ive occurrence which so much advances
in executive agencies, affirmed in Myers v. the good of their country, have done an act
United States, 272 U.S. 52, 47 S.Ct. 21, 71 beyond the Constitution. The Legislature is
L.Ed. 160, continued to be asserted and casting behind them metaphysical sub-
maintained. Morgan v. Tennessee Valley tleties, and risking themselves like faithful
Authority, 6 Cir., 115 F.2d 990, certiorari servants, must ratify and pay for it, and
denied 312 U.S. 701, 61 S.Ct. 806, 85 throw themselves on their country for do-
L.Ed. 1135; In re Power to Remove Mem- ing for them unauthorized, what we know
bers of the Tennessee Valley Authority, 39 they would have done for themselves had
O.A.G. 145; President Roosevelt's Mes- they been in a situation to do it.” 10 The
sage to Congress of March 23, 1938, The Writings of Thomas Jefferson 407.
Public Papers and Addresses of Franklin
*639 Can it then be defended under flexible tests
D. Roosevelt, 1938 (Rosenman), 151.
available to the second category? It seems clearly
Into which of these classifications does this execut- eliminated from that class because Congress has not
ive seizure of the steel industry fit? It is eliminated left seizure of private property an open field but has
from the first by admission, for it is conceded that covered it by three statutory policies inconsistent
no congressional authorization exists for this with this seizure. In cases where the purpose is to
seizure. That takes away also the support of the supply needs of the Government itself, two courses
many precedents and declarations which **872 are provided: one, seizure of a plant which fails to
were made in relation, and must be confined, to this comply with obligatory orders placed by the Gov-
FN5 FN6
category. ernment, another, condemnation of facilities,
including temporary use under the power of emin-
FN7
FN5. The oft-cited Louisiana Purchase had ent domain. The third is applicable where it is
nothing to do with the separation of the general economy of the country that is to be
powers as between the President and Con- protected rather than exclusive governmental in-
FN8
gress, but only with state and federal terests. None of these were invoked. In choos-
power. The Louisiana Purchase was sub- ing a different and inconsistent way of his own, the
ject to rather academic criticism, not upon President cannot claim that it is necessitated or in-
the ground that Mr. Jefferson acted without vited by failure of Congress to legislate upon the
authority from Congress, but that neither occasions, grounds and methods for seizure of in-
had express authority to expand the bound- dustrial properties.
aries of the United States by purchase or
annexation. Mr. Jefferson himself had FN6. Selective Service Act of 1948, s 18,
strongly opposed the doctrine that the 62 Stat. 625, 50 U.S.C.App. (Supp. IV) s
State's delegation of powers to the Federal 468(c), 50 U.S.C.A.Appendix, s 468(c).
Government could be enlarged by resort to
FN7. Defense Production Act of 1950, s
implied powers. Afterwards in a letter to
201, 64 Stat. 799, amended, 65 Stat. 132,
John Breckenridge, dated August 12, 1803,
50 U.S.C.App. (Supp. IV) s 2081, 50

72 S.Ct. 863 Page 13
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
U.S.C.A.Appendix, s 2081. For the latitude trinaire textualism.

of the condemnation power which under-
lies this Act, see United States v. Westing- The Solicitor General seeks the power of seizure in
house Elec. & Mfg. Co., 339 U.S. 261, 70 three clauses of the Executive Article, the first
S.Ct. 644, 94 L.Ed. 816, and cases therein reading, “The executive Power shall be vested in a
cited. President of the United States of America.” Lest I
be thought to exaggerate, I quote the interpretation
FN8. Labor Management Relations Act, which his brief puts upon it: “In our view, this
1947, ss 1, 206-210, 61 Stat. 136, 155, clause constitutes a grant of all the executive
156, 29 U.S.C. (Supp. IV) ss 141, 176-180, powers of which the Government is capable.” If
29 U.S.C.A. ss 141, 176-180. The analysis, that be true, it is difficult to see why the *641 fore-
history and application of this Act are fully fathers bothered to add several specific items, in-
FN9
covered by the opinion of the Court, sup- cluding some trifling ones.
plemented by that of Mr. Justice FRANK-
FURTER and of Mr. Justice BURTON, in FN9. “* * * he may require the Opinion, in
which I concur. writing, of the principal Officer in each of
the executive Departments, upon any Sub-
*640 This leaves the current seizure to be justified ject relating to the Duties of their respect-
only by the severe tests under the third grouping, ive Offices * * *.” U.S.Const. Art. II, s 2.
where it can be supported only by any remainder of He “* * * shall Commission all the Of-
executive power after subtraction of such powers as ficers of the United States.” U.S.Const.
Congress may have over the subject. In short, we Art. II, s 3. Matters such as those would
can sustain the President only by holding that seem to be inherent in the Executive if
seizure of such strike-bound industries is within his anything is.
domain and beyond control by Congress. Thus, this
Court's first review of such seizures occurs under The example of such unlimited executive power
circumstances which leave Presidential power most that must have most impressed the forefathers was
vulnerable to attack and in the least favorable of the prerogative exercised by George III, and the de-
possible constitutional postures. scription of its evils in the Declaration of Independ-
ence leads me to doubt that they were creating their
I did not suppose, and I am not persuaded, that his- new Executive in his image. Continental European
tory leaves it open to question, at least in the courts, examples were no more appealing. And if we seek
that the executive branch, like the Federal Govern- instruction from our own times, we can match it
ment as a whole, possesses only delegated powers. only from the executive powers in those govern-
The purpose of the Constitution was not only to ments we disparagingly describe as totalitarian. I
grant power, but to keep it from getting out of hand. cannot accept the view that this clause is a grant in
However, because the President does not enjoy un- bulk of all conceivable executive power but regard
mentioned powers does not mean that the men- it as an allocation to the presidential office of the
tioned ones should be narrowed by a niggardly con- generic powers thereafter stated.
struction. Some clauses could be made almost un-
workable, as well as immutable, **873 by refusal The clause on which the Government next relies is
to indulge some latitude of interpretation for chan- that “The President shall be Commander in Chief of
ging times. I have heretofore, and do now, give to the Army and Navy of the United States * * *.”
the enumerated powers the scope and elasticity af- These cryptic words have given rise to some of the
forded by what seem to be reasonable practical im- most persistent controversies in our constitutional
plications instead of the rigidity dictated by a doc- history. Of course, they imply something more than

72 S.Ct. 863 Page 14
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
an empty title. But just what authority goes with the American Fleet into the Mediterranean,
name has plagued Presidential advisers who would where it engaged in a naval battle with the
not waive or narrow it by nonassertion yet cannot Tripolitan fleet. He sent a message to Con-
say where it begins or ends. It undoubtedly puts the gress on December 8, 1801, in which he
Nation's armed forces under Presidential command. said:
Hence, this loose appellation is sometimes ad-
vanced as support for any Presidential action, in- “Tripoli, the least considerable of the Bar-
ternal or external, involving use of force, the *642 bary States, had come forward with de-
idea being that it vests power to do anything, any- mands unfounded either in right or in com-
where, that can be done with an army or navy. pact, and had permitted itself to denounce
war on our failure to comply before a giv-
That seems to be the logic of an argument tendered en day. The style of the demand admitted
at our bar-that the President having, on his own re- but one answer. I sent a small squadron of
sponsibility, sent American troops abroad derives frigates into the Mediterranean * * * with
from that act ‘affirmative power’ to seize the means orders to protect our commerce against the
of producing a supply of steel for them. To quote, threatened attack. * * * Our commerce in
“Perhaps the most forceful illustrations of the scope the Mediterranean was blockaded, and that
of Presidential power in this connection is the fact of the Atlantic in peril. * * * One of the
that American troops in Korea, whose safety and Tripolitan cruisers having fallen in with,
effectiveness are so directly involved here, were and engaged the small schooner Enterprise,
sent to the field by an exercise of the President's * * * was captured, after a heavy slaughter
constitutional powers.” Thus, it is said he has inves- of her men * * *. Unauthorized by the con-
ted himself with ‘war powers.’ stitution, without the sanction of Congress,
to go beyond the line of defence, the vessel
I cannot foresee all that it might entail if the Court being disabled from committing further
should indorse this argument. Nothing in our Con- hostilities, was liberated with its crew. The
stitution is plainer than that declaration of a war is legislature will doubltless consider wheth-
entrusted only to Congress. Of course, a state of er, by authorizing measures of offence,
war may in fact exist without a formal declaration. also, they will place our force on an equal
But no doctrine that the Court could promulgate footing with that of its adversaries. I com-
would seem to me more sinister and alarming than municate all material information on this
that a President whose conduct of foreign affairs is subject, that in the exercise of the import-
so largely uncontrolled, and often even is unknown, ant function confided by the constitution to
can vastly enlarge his mastery over the internal af- the legislature exclusively, their judgment
fairs of the country by his own commitment of the may form itself on a knowledge and con-
Nation's armed forces to some foreign venture. sideration of every circumstance of
FN10
*643 I do not, however,**874 find it neces- weight.” I Richardson, Messages and Pa-
sary or appropriate to consider the legal status of pers of the Presidents, 314.
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
FN10. How widely this doctrine espoused Commander-in-Chief to seize industries he thinks
by the President's counsel departs from the necessary to supply our army? The Constitution ex-
early view of presidential power is shown pressly places in Congress power ‘to raise and sup-
by a comparison. President Jefferson, port Armies' and “to provide and maintain a Navy.”
without authority from Congress, sent the

72 S.Ct. 863 Page 15
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
FN11
(Emphasis supplied.) This certainly lays upon Con- *.” Such a limitation on the command power,
gress primary responsibility for supplying the written at a time when the militia rather than a
armed forces. Congress alone controls the raising of standing army was contemplated as the **875 mil-
revenues and their appropriation and may determine itary weapon of the Republic, underscores the Con-
in what manner and by what means they shall be stitution's policy that Congress, not the Executive,
spent for military and naval procurement. I suppose should control utilization of the war power as an in-
no one would doubt that Congress can take over strument of domestic policy. Congress, fulfilling
war supply as a Government enterprise. On the oth- that function, has authorized the President to use
FN12
er hand, if Congress sess fit to rely on free private the army to enforce certain civil rights. On the
enterprise collectively bargaining with free labor other hand, Congress has forbidden him to use the
for support and maintenance of our armed forces army for the purpose*645 of executing general laws
can the Executive because of lawful disagreements except when expressly authorized by the Constitu-
FN13
incidental to that process, seize the facility for oper- tion or by Act of Congress.
ation upon Government-imposed terms?
FN11. U.S.Const., Art. I, s 8, cl. 15.
There are indications that the Constitution did not
contemplate that the title Commander-in-Chief of FN12. 14 Stat. 29, 16 Stat. 143, 8 U.S.C. s
the *644 Army and Navy will constitute him also 55, 8 U.S.C.A. s 55.
Commander-in-Chief of the country, its industries
FN13. 20 Stat. 152, 10 U.S.C. s 15, 10
and its inhabitants. He has no monopoly of ‘war
U.S.C.A. s 15.
powers,’ whatever they are. While Congress cannot
deprive the President of the command of the army While broad claims under this rubric often have
and navy, only Congress can provide him an army been made, advice to the President in specific mat-
or navy to command. It is also empowered to make ters usually has carried overtones that powers, even
rules for the “Government and Regulation of land under this head, are measured by the command
and naval forces,” by which it may to some un- functions usual to the topmost officer of the army
known extent impinge upon even command func- and navy. Even then, heed has been taken of any ef-
tions. FN14
forts of Congress to negative his authority.
That military powers of the Commander-in-Chief FN14. In 1940, President Roosevelt pro-
were not to supersede representative government of posed to transfer to Great Britain certain
internal affairs seems obvious from the Constitution overage destroyers and small patrol boats
and from elementary American history. Time out of then under construction. He did not pre-
mind, and even now in many parts of the world, a sume to rely upon any claim of constitu-
military commander can seize private housing to tional power as Commander-in-Chief. On
shelter his troops. Not so, however, in the United the contrary, he was advised that such des-
States, for the Third Amendment says, “No Soldier troyers-if certified not to be essential to the
shall, in time of peace be quartered in any house, defense of the United States-could be
without the consent of the Owner, nor in time of “transferred, exchanged, sold, or otherwise
war, but in a manner to be prescribed by law.” disposed of,” because Congress had so au-
Thus, even in war time, his seizure of needed milit- thorized him. Accordingly, the destroyers
ary housing must be authorized by Congress. It also were exchanged for air bases. In the same
was expressly left to Congress to “provide for call- opinion, he was advised that Congress had
ing forth the Militia to execute the Laws of the Uni- prohibited the release or transfer of the so-
on, suppress Insurrections and repel Invasions * * called ‘mosquito boats' then under con-

72 S.Ct. 863 Page 16
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
struction, so those boats were not trans- ciple that ours is a government of laws, not of men,
ferred. In the Matter of Acquisition of and that we submit ourselves to rulers only if under
Naval and Air Bases in Exchange for rules.
Overage Destroyers, 39 O.A.G. 484. See
also Matter of Training British Flying Stu- FN15. U.S.Const. Art. II, s 3.
dents in the United States, 40 O.A.G. 58.
The Solicitor General lastly grounds support of the
We should not use this occasion to circumscribe, seizure upon nebulous, inherent powers never ex-
much less to contract, the lawful role of the Presid- pressly granted but said to have accrued to the of-
ent as Commander-in-Chief. I should indulge the fice from the customs and claims of preceding ad-
widest latitude of interpretation to sustain his ex- ministrations. The plea is for a resulting power to
clusive function to command the instruments of na- deal **876 with a crisis or an emergency according
tional force, at least when turned against the outside to the necessities of the case, the unarticulated as-
world for the security of our society. But, when it is sumption being that necessity knows no law.
turned inward, not because of rebellion but because
Loose and irresponsible use of adjectives colors all
of a lawful economic struggle between industry and
non-legal and much legal discussion of presidential
labor, it should have no such indulgence. His com-
powers. *647 ‘Inherent’ powers, ‘implied’
mand power is not such an absolute as might be im-
powers, ‘incidental’ powers, ‘plenary’ powers,
plied from that office in a militaristic system but is
‘war’ powers and ‘emergency’ powers are used, of-
subject to limitations consistent with a constitution-
ten interchangeably and without fixed or ascertain-
al Republic whose law and policy-making breanch
able meanings.
*646 is a representative Congress. The purpose of
lodging dual titles in one man was to insure that the The vagueness and generality of the clauses that set
civilian would control the military, not to enable forth presidential powers afford a plausible basis
the military to subordinate the presidential office. for pressures within and without an administration
No penance would ever expiate the sin against free for presidential action beyond that supported by
government of holding that a President can escape those whose responsibility it is to defend his actions
control of executive powers by law through assum- in court. The claim of inherent and unrestricted
ing his military role. What the power of command presidential powers has long been a persuasive dia-
may include I do not try to envision, but I think it is lectical weapon in political controversy. While it is
not a military prerogative, without support of law, not surprising that counsel should grasp support
to seize persons or property because they are im- from such unadjudicated claims of power, a judge
portant or even essential for the military and naval cannot accept self-serving press statements of the
establishment. attorney for one of the interested parties as author-
ity in answering a constitutional question, even if
The third clause in which the Solicitor General
the advocate was himself. But prudence has
finds seizure powers is that “he shall take Care that
FN15 counseled that actual reliance on such nebulous
the Laws be faithfully executed * * *.” That FN16
claims stop short of provoking a judicial test.
authority must be matched against words of the
Fifth Amendment that “No person shall be * * * de- FN16. President Wilson, just before our
prived of life, liberty, or property, without due pro- entrance into World War I, went before the
cess of law * * *.” One gives a governmental au- Congress and asked its approval of his de-
thority that reaches so far as there is law, the other cision to authorize merchant ships to carry
gives a private right that authority shall go no defensive weapons. He said:
farther. These signify about all there is of the prin-

72 S.Ct. 863 Page 17
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
“No doubt I already possess that authority to meet the crisis-broad Executive power
without special warrant of law, by the to wage a war against the emergency, as
plain implication of my constitutional du- great as the power that would be given to
ties and powers; but I prefer in the present me if we were in fact invaded by a foreign
circumstances not to act upon general im- foe.” (Emphasis supplied.) The Public Pa-
plication. I wish to feel that the authority pers and Adresses of Franklin D.
and the power of the Congress are behind Roosevelt, 1933 (Rosenman), 15.
me in whatever it may become necessary
for me to do. We are jointly the servants of On March 6, 1933, 48 Stat. 1689, President
the people and must act together and in Roosevelt proclaimed the Bank Holiday.
their spirit, so far as we can divine and in- The Proclamation did not invoke constitu-
terpret it.” XVII Richardson, op.cit., 8211. tional powers of the Executive but ex-
pressly and solely relied upon the Act of
When our Government was itself in need Congress of October 6, 1917, 40 Stat. 411,
of shipping whilst ships flying the flags of s 5(b), as amended, 50 U.S.C.A.Appendix,
nations overrun by Hitler, as well as belli- s 5(b). He relied steadily on legislation to
gerent merchantmen, were immobilized in empower him to deal with economic emer-
American harbors where they had taken gency. The Public Papers and Addresses of
refuge, President Roosevelt did not assume Franklin D. Roosevelt, 1933 (Rosenman),
that it was in his power to seize such for- 24.
eign vessels to make up our own deficit.
He informed Congress: “I am satisfied, It is interesting to note Holdsworth's com-
after consultation with the heads of the in- ment on the powers of legislation by pro-
terested departments and agencies, that we clamation when in the hands of the Tudors.
should have statutory authority to take “The extent to which they could be legally
over such vessels as our needs require. * * used was never finally settled in this cen-
*” 87 Cong.Rec. 3072 (77th Cong., 1st tury, because the Tudors made so tactful a
Sess.); The Public Papers and Addresses of use of their powers that no demand for the
Franklin D. Roosevelt, 1941 (Rosenman), settlement of this question was raised.” 4
94. The necessary statutory authority was Holdsworth, History of English Law, 104.
shortly forthcoming. 55 Stat. 242.
*648 The Solicitor General, acknowledging that
In his first inaugural address President Congress has never authorized the **877 seizure
Roosevelt pointed out two courses to ob- here, says practice of prior Presidents has author-
tain legislative remedies, one being to en- ized it. He seeks color of legality from claimed ex-
act measures he was prepared to recom- ecutive precedents, chief of which is President
mend, the other to enact measures “the Roosevelt's seizure of June 9, 1941, of the Califor-
Congress may build out of its experience nia plant of the North American Aviation Com-
and wisdom.” He continued, “But in the pany. Its superficial similarities with the present
event that the Congress shall fail to take case, upon analysis, yield to distinctions so decisive
and of these two courses, and in the event that it *649 cannot be regarded as even a precedent,
that the national emergency is still critical, much less an authority for the present seizure.
FN17
I shall not evade the clear course of duty
that will then confront me. I shall ask the
FN17. The North American Aviation Com-
Congress for the one remaining instrument
pany was under direct and binding con-

72 S.Ct. 863 Page 18
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
tracts to supply defense items to the Gov- Committee on Labor and Public Welfare,
ernment. No such contracts are claimed to dated February 2, 1949, with reference to
exist here. Seizure of plants which refused pending labor legislation, while not cited
to comply with Government orders had by any of the parties here are sometimes
been expressly authorized by Congress in s quoted as being in support of the ‘inherent’
9 of the Selective Service Act of 1940, 54 powers of the President. The proposed bill
Stat. 885, 892, so that the seizure of the contained a mandatory provision that dur-
North American plant was entirely consist- ing certain investigations the disputants in
ent with congressional policy. The com- a labor dispute should continue operations
pany might have objected on technical under the terms and conditions of employ-
grounds to the seizure, but it was taken ment existing prior to the beginning of the
over with acquiescence, amounting to all dispute. It made no provision as to how
but consent, of the owners who had admit- continuance should be enforced and spe-
ted that the situation was beyond their con- cified no penalty for disobedience. The At-
trol. The strike involved in the North torney General advised that in appropriate
American case was in violation of the uni- circumstances the United States would
on's collective agreement and the national have access to the courts to protect the na-
labor leaders approved the seizure to end tional health, safety and welfare. This was
the strike. It was described as in the nature the rule laid down by this Court in Texas
of an insurrection, a Communist-led polit- & N.O.R. Co. v. Brotherhood of Steamship
ical strike against the Government's lend- Clerks, 281 U.S. 548, 50 S.Ct. 427, 74
lease policy. Here we have only a loyal, L.Ed. 1034. The Attorney General ob-
lawful, but regrettable economic disagree- served:
ment between management and labor. The
North American plant contained govern- “However, with regard to the question of
ment-owned machinery, material and the power of the Government under Title
goods in the process of production to III, I might point out that the inherent
which workmen were forcibly denied ac- power of the President to deal with emer-
cess by picketing strikers. Here no Govern- gencies that affect the health, safety and
ment property is protected by the seizure. welfare of the entire Nation is exceedingly
See New York Times of June 10, 1941, pp. great. See Opinion of Attorney General
1, 14 and 16, for substantially accurate ac- Murphy of October 4, 1939, 39 Op.A.G.
count of the proceedings and the condi- 344, 347; United States v. United Mine
tions of violence at the North American Workers of America, 1947, 330 U.S. 258,
plant. 67 S.Ct. 677, 91 L.Ed. 884.”
The North American seizure was regarded “Regardless of the general reference to
as an execution of congressional policy. I ‘inherent powers,’ the citations were in-
do not regard it as a precedent for this, but, stances of congressional authorization. I do
even if I did, I should not bind present ju- not suppose it is open to doubt that power
dicial judgment by earlier partisan ad- to see that the laws are faithfully executed
vocacy. was ample basis for the specific advice
given by the Attorney General in this let-
Statements from a letter by the Attorney ter.”
General to the Chairman of the Senate
The appeal, however, that we declare the existence

72 S.Ct. 863 Page 19
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
of inherent powers ex necessitate to meet an emer- FN20. I Nazi Conspiracy and Aggression
gency asks us to do what many think would be 126-127; Rossiter, Constitutional Dictator-
wise, although *650 it is something the forefathers ship, 33-61; Brecht, Prelude to Silence,
omitted. They knew what emergencies were, knew 138.
the pressures they engender for authoritative action,
knew, too, how they afford a ready pretext for The French Republic provided for a very different
usurpation. We may also suspect that they suspec- kind of emergency government known as the ‘state
ted that emergency powers would tend to kindle of siege.’ It differed from the German emergency
emergencies. Aside from suspension of the priv- dictatorship, particularly in that emergency powers
ilege of **878 the writ of habeas corpus in time of could not be assumed at will by the Executive but
rebellion or invasion, when the public safety may could only be granted as a parliamentary measure.
FN18 And it did not, as in Germany, result in a suspen-
require it, they made no express provision for
exercise of extraordinary authority because of a sion or abrogation of law but was a legal institution
FN19 governed by special legal rules and terminable by
crisis. I do not think we rightfully may so FN21
amend their work, and, if we could, I am not con- parliamentary authority.
vinced it would be wise to do so, although many
FN21. Rossiter, Constitutional Dictator-
modern nations have forthrightly recognized that
ship, 117-129.
war and economic crises may upset the normal bal-
ance between liberty and authority.*651 Their ex- Great Britain also has fought both World Wars un-
perience with emergency powers may not be irrel- der a sort of temporary dictatorship created by le-
evant to the argument here that we should say that FN22
gislation. As Parliament is not bound by writ-
the Executive, of his own volition, can invest him- ten constitutional limitations, it established a crisis
self with undefined emergency powers. government simply by *652 delegation to its Minis-
ters of a larger measure than usual of its own un-
FN18. U.S.Const. Art. I, s 9, cl. 2.
limited power, which is exercised under its supervi-
FN19. I exclude, as in a very limited cat- sion by Ministers whom it may dismiss. This has
egory by itself, the establishment of mar- been called the “highwater mark in the voluntary
tial law. Cf. Ex parte Milligan, 4 Wall. 2, surrender of liberty,” but, as Churchill put it,
18 L.Ed. 281; Duncan v. Kahanamoku, 327 “Parliament stands custodian of these surrendered
U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688. liberties, and its most sacred duty will be to restore
them in their fullness when victory has crowned our
FN23
Germany, after the First World War, framed the exertions and our perseverance.” Thus, parlia-
Weimar Constitution, designed to secure her liber- mentary control made emergency powers compat-
ties in the Western tradition. However, the Presid- ible with freedom.
ent of the Republic, without concurrence of the
Reichstag, was empowered temporarily to suspend FN22. Defense of the Realm Act, 1914, 4
any or all individual rights if public safety and or- & 5, Geo. V. c. 29, as amended, c. 63;
der were seriously distrubed or endangered. This Emergency Powers (Defence) Act, 1939, 2
proved a temptation to every government, whatever & 3 Geo. VI, c. 62; Rossiter, Constitution-
its shade of opinion, and in 13 years suspension of al Dictatorship, 135-184.
rights was invoked on more than 250 occasions. Fi-
FN23. Churchill, The Unrelenting
nally, Hitler persuaded President Von Hindenberg
Struggle, 13. See also id., at 279-281.
to suspend all such rights, and they were never re-
FN20
stored. This contemporary foreign experience may be in-

72 S.Ct. 863 Page 20
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
conclusive as to the wisdom of lodging emergency powers, it is relevant to note the gap that exists
powers somewhere in a modern government. But it between the President's paper powers and his real
suggests that emergency powers are consistent with powers. The Constitution does not disclose the
free government only when their control is lodged measure of the actual controls wielded by the mod-
elsewhere than in the Executive who exercises ern presidential office. That instrument must be un-
them. That is the safeguard that would be nullified derstood as an Eighteenth-Century sketch of a gov-
by our adoption of the “ ‘inherent powers' formula. ernment hoped for, not as a blueprint of the Gov-
Nothing in my experience convinces me that such ernment that is. Vast accretions of federal power,
risks are warranted by any real necessity, although eroded from that reserved by the States, have mag-
such powers would, of course, be an executive con- nified the scope of presidential activity. Subtle
venience.” shifts take place in the centers of real power that do
not show on the face of the Constitution.
In the practical working of our Government we
already have evolved a technique within the frame- Executive power has the advantage of concentration
work of the Constitution by which normal execut- in a single head in those choice the whole Nation
ive powers may be considerably expanded to meet has a part, making him the focus of public hopes
an emergency. Congress may and has granted ex- and expectations. In drama, magnitude and finality
traordinary**879 authorities which lie dormant in his decisions so far overshadow any others that al-
normal times but may be called into play by the Ex- most alone he fills the public eye and ear. No othe
ecutive in war or upon proclamation of a national personality in public life can begin to compete with
emergency. In 1939, upon congressional request, him in access to the public mind through modern
the Attorney General listed ninety-nine such separ- methods of communications. By his prestige as
ate statutory grants by Congress of emergency or head of state and his influence upon public opinion
FN24
war-time executive powers. They were in- he exerts a leverage upon those who are supposed
voked from time to time as need appeared. Under *654 to check and balance his power which often
this procedure we retain Government *653 by law- cancels their effectiveness.
special, temporary law, perhaps, but law nonethe-
less. The public may know the extent and limita- Moreover, rise of the party system has made a sig-
tions of the powers that can be asserted, and per- nificant extraconstitutional supplement to real exec-
sons affected may be informed from the statute of utive power. No appraisal of his necessities is real-
their rights and duties. istic which overlooks that he heads a political sys-
tem as well as a legal system. Party loyalties and
FN24. 39 Op.Atty.Gen. 348. interests, sometimes more binding than law, extend
his effective control into branches of government
In view of the ease, expedition and safety with other than his own and he often may win, as a polit-
which Congress can grant and has granted large ical leader, what he cannot command under the
emergency powers, certainly ample to embrace this Constitution. Indeed, Woodrow Wilson, comment-
crisis, I am quite unimpressed with the argument ing on the President as leader both of his party and
that we should affirm possession of them without of the Nation, observed, “If he rightly interpret the
statute. Such power either has no beginning or it national thought and boldly insist upon it, he is ir-
has no end. If it exists, it need submit to no legal re- resistible. * * * His office is anything he has the
straint. I am not alarmed that it would plunge us FN25
sagacity and force to make it.” I cannot be
straightway into dictatorship, but it is at least a step brought to believe that this country will suffer if the
in that wrong direction. Court refuses further to aggrandize the presidential
office, already so potent and so relatively immune
As to whether there is imperative necessity for such

72 S.Ct. 863 Page 21
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
FN26 FN27
from judicial review, at the expense of Con- give them up.
gress.
FN27. We follow the judicial tradition in-
FN25. Wilson, Constitutional Government stituted on a memorable Sunday in 1612,
in the United States, 68-69. when King James took offense at the inde-
pendence of his judges and, in rage, de-
FN26. Rossiter, The Supreme Court and clared: “Then I am to be under the law-
the Commander in Chief, 126-132. which it is treason to affirm.” Chief Justice
Coke replied to his King: “Thus wrote
But I have no illusion that any decision by this
Bracton, “The King ought not to be under
Court can keep power in the hands of Congress if it
any man, but he is under God and the law.
is not wise and timely in meeting its problems. A
”” 12 Coke 63 (as to its verity, 18
crisis that challenges the President equally, or per-
Eng.Hist.Rev. 664-675); 1 Campbell,
haps primarily, challenges Congress. If not good
Lives of the Chief Justices, 272.
law, there was worldly wisdom in the maxim attrib-
Mr. Justice BURTON, concurring in both the opin-
uted to Napoleon that “The tools belong to the man
ion and judgment of the Court.
who can use them.” We may say that power to le-
My position may be summarized as follows:
gislate for **880 emergencies belongs in the hands
of Congress, but only Congress itself can prevent The validity of the President's order of seizure is at
power from slipping through its fingers. issue and ripe for decision. Its validity turns upon
its relation to the constitutional division of govern-
The essence of our free Government is “ ‘leave to
mental power between Congress and the President.
live by no man's leave, underneath the law’-to be
governed by those impersonal forces which we call *656 The Constitution has delegated to Congress
law. Our Government*655 is fashioned to fulfill power to authorize action to meet a national emer-
this concept so far as humanly possible. The Exec- FN1
gency of the kind we face. Aware of this re-
utive, except for recommendation and veto, has no sponsibility, Congress has responded to it. It has
legislative power. The executive action we have provided at least two procedures for the use of the
here originates in the individual will of the Presid- President.
ent and represents an exercise of authority without
law. No one, perhaps not even the President, knows FN1. ‘Article I
the limits of the power he may seek to exert in this
instance and the parties affected cannot learn the “Section. 1. All legislative Powers herein
limit of their rights. We do not know today what granted shall be vested in a Congress of
powers over labor or property would be claimed to the United States * * *.
flow from Government possession if we should leg-
‘Section. 8. The Congress shall have
alize it, what rights to compensation would be
Power * * *;
claimed or recognized, or on what contingency it
would end. With all its defects, delays and incon- ‘To regulate Commerce with foreign Na-
veniences, men have discovered no technique for tions, and among the several States * * *;
long preserving free government except that the Ex-
ecutive be under the law, and that the law be made ‘To make all Laws which shall be neces-
by parliamentary deliberations.” sary and proper for carrying into Execution
the foregoing Powers, and all other Powers
Such institutions may be destined to pass away. But vested by this Constitution in the Govern-
it is the duty of the Court to be last, not first, to ment of the United States, or in any De-

72 S.Ct. 863 Page 22
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
partment or Officer thereof.” tee sponsoring the bill said in the Senate:
It has outlined one in the Labor Management Rela- “We did not feel that we should put into
tions Act, 1947, better known as the Taft-Hartley the law, as a part of the collectivebargain-
Act. The accuracy with which Congress there de- ing machinery, an ultimate resort to com-
scribes the present emergency demonstrates its ap- pulsory arbitration, or to seizure, or to any
plicability. It says: other action. We feel that it would interfere
with the whole process of collective bar-
“Whenever in the opinion of the President of the gaining. If such a remedy is available as a
United States, a threatened or actual strike or lock- routine remedy, there will always be pres-
out affecting an entire industry or a substantial part sure to resort to it by whichever party
thereof engaged in trade, commerce, transportation, thinks it will receive better treatment
transmission, or communication among the several through such a process than it would re-
States or with foreign nations, or engaged in the ceive in collective bargaining, and it will
production of goods for commerce, will, if permit- back out of collective bargaining. It will
ted to occur or to continue, imperil the national not make a bona-fide attempt to settle if it
health or safety, he may appoint a board of inquiry thinks it will receive a better deal under the
to inquire into the issues involved in the dispute final arbitration which may be provided.
and to make a written report to him within **881
FN2
such time as he shall prescribe. * * *” ‘We have felt that perhaps in the case of a
general strike, or in the case of other seri-
ous strikes, after the termination of every
FN2. 61 Stat. 155, 29 U.S.C. (Supp. IV) s
possible effort to resolve the dispute, the
176, 29 U.S.C.A. s 176.
remedy might be an emergency act by
*657 In that situation Congress has authorized not Congress for that particular purpose.
only negotiation, conciliation and impartial inquiry
‘I have had in mind drafting such a bill,
but also a 60-day cooling-off period under injunc-
giving power to seize the plants, and other
tion, followed by 20 days for a secret ballot upon
necessary facilities, to seize the unions,
the final offer of settlement and then by recom-
FN3 their money, and their treasury, and requis-
mendations from the President to Congress.
ition trucks and other equipment; in fact, to
FN3. 61 Stat. 155-156, 29 U.S.C. (Supp. do everything that the British did in their
IV) ss 176-180, 29 U.S.C.A. ss 176-180. general strike of 1926. But while such a
bill might be prepared, I should be unwill-
For the purposes of this case the most significant ing to place such a law on the books until
feature of that Act is its omission of authority to we actually face such an emergency, and
seize an affected industy. The debate preceding its Congress applies the remedy for the partic-
passage demonstrated the significance of that omis- ular emergency only. Eighty days will
sion. Collective bargaining, rather than govern- provide plenty of time within which to
mental seizure, was to be relied upon. Seizure was consider the possibility of what should be
not to be resorted to without specific congressional done; and we believe very strongly that
authority. Congress reserved to itself the opportun- there should not be anything in this law
ity to authorize seizure to meet particular emergen- which prohibits finally the right to strike.”
FN4
cies. 93 Cong.Rec. 3835-3836.
FN4. The Chairman of the Senate Commit- Part of this quotation was relied upon by

72 S.Ct. 863 Page 23
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
this Court in Amalgamated Association of properties involved here. Section 18 of the

Street Railway & Motor Coach Employees Selective Service Act of 1948 authorizes
v. Wisconsin Employment Relations the President to take possession of a plant
Board, 340 U.S. 383, 396, note 21, 71 or other facility failing to fill certain de-
S.Ct. 359, 366, 95 L.Ed. 364. fense orders placed with it in the manner
there prescribed. 62 Stat. 625, 50
*658 The President, however, chose not to use the U.S.C.App. (Supp. IV) s 468, 50
Taft-Hartley procedure. He chose another course, U.S.C.A.Appendix, s 468. No orders have
also authorized by Congress. He referred the con- been so placed with the steel plants seized.
FN5
troversy to the Wage Stabilization Board. If
that course had led to a settlement of the labor dis- **882 The foregoing circumstances distinguish this
pute, it would have avoided the need for other ac- emergency from one in which Congress takes no
tion. It, however, did not do so. action and outlines no governmental policy. In the
case before us, Congress authorized a procedure
FN5. Under Titles IV and V of the Defense which the President declined to follow. Instead, he
Production Act of 1950, 64 Stat. 803-812, followed another procedure which he hoped might
50 U.S.C.App. (Supp. IV) ss 2101-2123, eliminate the need for the first. Upon its failure, he
50 U.S.C.A.Appendix, ss 2101-2123; and issued an executive order to seize the steel proper-
see Exec. Order No. 10233, 50 ties in the fact of the reserved right of Congress to
U.S.C.A.Appendix, s 2071 note, 16 adopt or reject that course as a matter of legislative
Fed.Reg. 3503. policy.
Now it is contended that although the President did This brings us to a further crucial question. Does
not follow the procedure authorized by the Taft- not President, in such a situation, have inherent
Hartley Act, his substituted procedure served the constitutional power to seize private property which
same purpose and must be accepted as it equivalent. makes congressional action in relation thereto un-
Without appraising that equivalence, it is enough to necessary? We find no such power available to him
point out that neither procedure carried statutory under the present circumstances. The present situ-
authority for the seizure of private industries in the ation is not comparable to that of an imminent inva-
FN6
manner now at issue. The exhaustion of both sion or threatened attack. We do not face the issue
procedures fails to cloud the *659 clarity of the of what might be the President's constitutional
congressional reservation of seizure for its own power to meet such catastrophic situations. Nor is it
consideration. claimed that the current seizure is in the nature of a
military command addressed by the President, as
FN6. Congress has authorized other types
Commander-in-Chief, to a mobilized nation wa-
of seizure under conditions not present FN7
ging, or imminently threatened with, total war.
here. Section 201 of the Defense Produc-
tion Act authorizes the President to acquire FN7. The President and Congress have re-
specific “real property, including facilities, cognized the termination of the major hos-
temporary use thereof, or other interest tilities in the total wars in which the Nation
therein * * *” by condemnation. 64 Stat. has been engaged. Many wartime proced-
799, as amended, 65 Stat. 132, see 50 ures have expired or been terminated.
U.S.C.App. (Supp. IV) s 2081, 50
U.S.C.A.Appendix, s 2081. There have The War Labor Disputes Act, 57 Stat. 163
been no declarations of taking or condem- et seq., 50 U.S.C.App. ss 1501-1511, 50
nation proceedings in relation to any of the U.S.C.A.Appendix, ss 1501-1511, expired

72 S.Ct. 863 Page 24
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
June 30, 1947, six months after the Presid- have prescribed that *661 the manner in which this
ent's declaration of the end of hostilities, 3 law shall be carried into execution, was to exclude
CFR, 1946 Supp., p. 77. The Japanese a seizure of any vessel not bound to a French port.”
FN2
Peace Treaty was approved by the Senate Accordingly, a unanimous Court held that the
March 20, 1952, 98 Cong.Rec. 2635, and President's instructions had been issued without au-
proclaimed by the President April 28, thority and that they could not “legalize an act
1952, No. 2974, 17 Fed.Reg. 3813. which without those instructions would have been a
plain trespass.” I know of no subsequent holding of
*660 The controlling fact here is that Congress, FN3
this Court to the contrary.
within its constitutionally delegated power, has pre-
scribed for the President specific procedures, ex- FN1. 1804, 2 Cranch 170, 2 L.Ed. 243.
clusive of seizure, for his use in meeting the present
type of emergency. Congress has reserved to itself FN2. 2 Cranch at pages 177-178, 2 L.Ed.
the right to determine where and when to authorize 243 (emphasis added).
the seizure of property in meeting such an emer-
FN3. Decisions of this Court which have
gency. Under these circumstances, the President's
upheld the exercise of presidential power
order of April 8 invaded the jurisdiction of Con-
include the following: Prize Cases (The
gress. It violated the essence of the principle of the
Amy Warwick), 1863, 2 Black 635, 17
separation of governmental powers. Accordingly,
L.Ed. 459, (subsequent ratification of Pres-
the injunction against its effectiveness should be
ident's acts by Congrss); In re Neagle,
sustained.
1890, 135 U.S. 1, 10 S.Ct. 658, 34 L.Ed.
Mr. Justice CLARK, concurring in the judgment of
55, (protection of federal officials from
the Court.
personal violence while performing official
One of this Court's first pronouncements upon the
duties); In re Debs, 1895, 158 U.S. 564, 15
powers of the President under the Constitution was
S.Ct. 900, 39 L.Ed. 1092 (injunction to
made by Chief Justice John Marshall some one
prevent forcible obstruction of interstate
hundred and fifty years ago. In Little v. Barreme,
FN1 commerce and the mails); United States v.
he used this characteristically clear language
Midwest Oil Co., 1915, 236 U.S. 459, 35
in discussing the power of the President to instruct
S.Ct. 309, 59 L.Ed. 673 (acquiescence by
the seizure of the ‘Flying-Fish,’ a vessel bound
Congress in more than 250 instances of ex-
from a French port: “It is by no means clear that the
ercise of same power by various Presidents
President of the United States whose high duty it is
over period of 80 years); Myers v. United
to “take care that the laws be faithfully executed,”
States, 1926, 272 U.S. 52, 47 S.Ct. 21, 71
and who is commander in chief of the armies and
L.Ed. 160 (control over subordinate offi-
navies of the United States, might not, without any
cials in executive department) (but see
special authority for that purpose, in the then exist-
Humphrey's Executor v. United States,
ing state of things, have empowered the officers
1935, 295 U.S. 602, 626-628, 55 S.Ct. 869,
commanding the armed vessels of the United
873, 874, 79 L.Ed. 1611); Hirabayashi v.
States, to seize and send into port for adjudication,
United States, 1943, 320 U.S. 81, 63 S.Ct.
American vessels which were forfeited by being en-
1375, 87 L.Ed. 1774, and Korematsu v.
gaged in this illicit commerce. But when it is ob-
United States, 1944, 323 U.S. 214, 65 S.Ct.
served that (an act of Congress) gives a special au-
193, 89 L.Ed. 194 (express congressional
thority to seize on the high seas, and limits that
authorization); cf. United States v. Russell,
**883 authority to the seizure of vessels bound or
1871, 13 Wall. 623, 20 L.Ed. 474
sailing to a French port, the legislature seem to
(imperative military necessity in area of

72 S.Ct. 863 Page 25
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
combat during war); United States v. Cur- Hodges, in 10 Complete Works of Abra-
tiss-Wright Export Corp., 1936, 299 U.S ham Lincoln (Nicolay and Hay ed. 1894),
304, 57 S.Ct. 216, 81 L.Ed. 255 (power to 66.
negotiate with foreign governments);
United States v. United Mine Workers, FN6. Roosevelt, Autobiography (1914
1947, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. ed.), 371-372.
884 (seizure under specific statutory au-
FN7. Letter of April 4, 1864, to A. G.
thorization).
Hodges, in 10 Complete Words of Abra-
The limits of presidential power are obscure. ham Lincoln (Nicolay and Hay ed. 1894),
However, Article II, no less than Article I, is part of 66.
“a constitution intended to endure for ages to come,
**884 I conclude that where Congress has laid
and, consequently, to be adapted to the various
FN4 down specific procedures to deal with the type of
crises of human affairs.” Some of our Presid-
crisis confronting the President, he must follow
ents, such as Lincoln, “felt that measures otherwise
those procedures in meeting the crisis; but that in
unconstitutional might become lawful by becoming
the absence of such action by Congress, the Presid-
indispensable to the preservation of the Constitu-
FN5 ent's independent power to act depends upon the
tion through the preservation of the nation.”
gravity of the situation confronting the nation. I
*662 Others, such as Theodore Roosevelt, thought
cannot sustain the seizure in question because here,
the President to be capable, as a ‘steward’ of the
as in Little v. Barreme, 2 Cranch 170, 2 L.Ed. 243,
people, of exerting all power save that which is spe-
Congress had prescribed methods to be followed by
cifically prohibited by the Constitution or the Con-
FN6 the President in meeting the emergency at hand.
gress. In my view-taught me not only by the
decision of Chief Justice Marshall in Little v. Bar- *663 Three statutory procecures were available:
reme, 2 Cranch 170, 2 L.Ed. 243, but also by a those provided in the Defense Production Act of
score of other pronouncements of distinguished 1950, 50 U.S.C.A.Appendix, s 2061 et seq., the
members of this bench-the Constitution does grant Labor Management Relations Act, 29 U.S.C.A. s
to the President extensive authority in times of 141 et seq., and the Selective Service Act of 1948,
grave and imperative national emergency. In fact, 50 U.S.C.A.Appendix, s 451 et seq. In this case the
to my thinking, such a grant may well be necessary President invoked the first of these procedures; he
to the very existence of the Constitution itself. As did not invoke the other two.
Lincoln aptly said, “(is) it possible to lose the na-
FN7
tion and yet preserve the Constitution?' In de- The Defense Production Act of 1950 provides for
scribing this authority I care not whether one calls mediation of labor disputes affecting national de-
it ‘residual,’ ‘inherent,’ “moral, ‘implied,’ fense. Under this statutory authorization, the Pres-
‘aggregate,’ ‘emergency,’ or otherwise. I am of the ident has established the Wage Stabilization Board.
conviction that those who have had the grantifying The Defense Production Act, however, grants the
experience of being the President's lawyer have President no power to seize real property except
used one or more of these adjectives only with the through ordinary condemnation proceedings, which
utmost of sincerity and the highest of purpose.” were not used here, and creates no sanctions for the
settlement of labor disputes.
FN4. Chief Justice Marshall, in McCulloch
v. Maryland, 1819, 4 Wheat. 316, 415, 4 The Labor Management Relations Act, commonly
L.Ed. 579. known as the Taft-Hartley Act, includes provisions
adopted for the purpose of dealing with nationwide
FN5. Letter of April 4, 1864, to A. G.

72 S.Ct. 863 Page 26
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
strikes. They establish a procedure whereby the take immediate possession of the producer's plant.
FN12
President may appoint a board of inquiry and there- This language is significantly broader than
after, in proper cases, seek injunctive relief for an **885 *665 that used in the National Defense Act
80-day period against a threatened work stoppage. of 1916 and the Selective Training and Service Act
The President can invoke that procedure whenever, of 1940, which provided for seizure when a produ-
in his opinion, “a threatened or actual strike * * * cer ‘refused’ to supply essential defense materials,
FN13
affecting an entire industry * * * will, if permitted but not when he ‘failed’ to do so.
to occur or to continue, imperil the national health
FN8 FN12. The producer must have been noti-
or safety.” At the time that Act was passed,
Congress specifically rejected a proposal to em- fied that the order was placed pursuant to
power the President to seize any ‘plant, mine, or fa- the Act. The Act provides in pertinent part
cility’ in which a threatened work stoppage would, as follows:
in his judgment, “imperil the public health or secur-
FN9 “(a) Whenever the President after consulta-
ity.” Instead, the Taft-Hartley Act directed the
tion with and receiving advice from the
President, in the event a strike had not been settled
National Security Resources Board de-
during the 80-day injunction period, to submit to
termines that it is in the interest of the na-
Congress “a full and comprehensive report * * * to-
tional security for the Government to ob-
gether with such recommendations as he may see fit
tain prompt delivery of any articles or ma-
to make for consideration and *664 appropriate ac-
FN10 terials the procurement of which has been
tion.” The legislative history of the Act
authorized by the Congress exclusively for
demonstrates Congress' belief that the 80-day peri-
the use of the armed forces of the United
od would afford it adequate opportunity to determ-
States, or for the use of the Atomic Energy
ine whether special legislation should be enacted to
FN11 Commission, he is authorized, through the
meet the emergency at hand.
head of any Government agency, to place
FN8. 61 Stat. 155, 29 U.S.C. (Supp. IV) s with any person operating a plant, mine, or
176, 29 U.S.C.A. s 176. other facility capable of producing such
articles or materials an order for such
FN9. 93 Cong.Rec. 3637-3645; cf. id., at quantity of such articles or materials as the
3835-3836. President deems appropriate. Any person
with whom an order is placed pursuant to
FN10. 61 Stat. 156, 29 U.S.C. (Supp. IV) s the provisions of this section shall be ad-
180, 29 U.S.C.A. s 180. vised that such order is placed pursuant to
the provisions of this section.
FN11. E.g., S.Rep.No.105, 80th Cong., 1st
Sess. 15; 93 Cong.Rec. 3835-3836; id., at ‘(c) In case any person with whom an or-
4281. der is placed pursuant to the provisions of
subsection (a) refuses or fails-
The Selective Service Act of 1948 gives the Presid-
ent specific authority to seize plants which fail to ‘(2) to fill such order within the period of
produce goods required by the armed forces or the time prescribed by the President or as soon
Atomic Energy Commission for national defense thereafter as possible as determined by the
purposes. The Act provides that when a producer President;
from whom the President has ordered such goods
‘refuses or fails' to fill the order within a period of ‘(3) to produce the kind or quality of art-
time prescribed by the President, the President may icles or materials ordered; or

72 S.Ct. 863 Page 27
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
FN14
‘(4) to furnish the quantity, kind, and qual-
ity of articles or materials ordered at such
price as shall be negotiated between such FN14. The Government has offered no ex-
person and the Government agency con- planation, in the record, the briefs, or the
cerned; or in the event of failure to negoti- oral argument, as to why it could not have
ate a price, to furnish the quantity, kind, made both a literal and timely compliance
and quality of articles or materials ordered with the provisions of that Act. Apparently
at such price as he may subsequently be the Government could have placed orders
determined to be entitled to receive under with the steel companies for the various
subsection (d); the President is authorized types of steel needed for defense purposes,
to take immediate possession of any plant, and instructed the steel companies to ship
mine, or other facility of such person and the mate riel directly to producers of
to operate it, through any Government planes, tanks, and munitions. The Act does
agency, for the production of such articles not require that government orders cover
or materials as may be required by the the entire capacity of a producer's plant be-
Government.” 62 Stat. 625, 50 U.S.C.App. fore the President has power to seize.
(Supp. IV) s 468, 50 U.S.C.A.Appendix, s
Our experience during World War I
468. The Act was amended in 1951 and re-
demonstrates the speed with which the
designated the Universal Military Training
Government can invoke the remedy of
and Service Act, but no change was made
seizing plants which fail to fill compulsory
in this section. 65 Stat. 75.
orders. The Federal Enameling & Stamp-
FN13. 39 Stat. 213, 50 U.S.C.A. s 80; 54 ing Co., of McKees Rocks, Pa., was served
Stat. 892. with a compulsory order on September 13,
1918, and seized on the same day. The
These three statutes furnish the guideposts for de- Smith & Wesson plant at Springfield,
cision in this case. Prior to seizing the steel mills on Mass., was seized on September 13, 1918,
April 8 the President had exhausted the mediation after the company had failed to make de-
procedures of the Defense Production Act through liveries under a compulsory order issued
the Wage Stabilization Board. Use of those proced- the preceding week. Communication from
ures had failed to avert the impending crisis; Ordnance Office to War Department Board
however, it had resulted in a 99-day postponement of Appraisers, entitled “Report on Plants
of the strike. The Government argues that this ac- Commandeered by the Ordnance Office,”
complished more than the maximum 80-day wait- Dec. 19, 1918, pp. 3, 4, in National
ing period possible under the sanctions of the Taft- Archives, Records of the War Department,
Hartley Act, and therefore amounted to compliance Office of the Chief of Ordnance, O.O.
with the substance of that Act. Even if one were to 004.002/260. Apparently the Mosler Safe
accept this somewhat hyperbolic conclusion, the Co., of Hamilton, Ohio, was seized on the
hard fact remains that neither the Defense Produc- same day on which a compulsory order
tion Act nor Taft-Hartley authorized the seizure was issued. Id., at 2; Letter from counsel
challenged here, and the Government made no ef- for Mosler Safe Co. to Major General
fort to comply with the procedures*666 established George W. Goethals, Director of Purchase,
by the Selective Service Act of 1948, a statute Storage and Traffic, War Department, Dec.
which expressly authorizes seizures when produ- 9, 1918, p. 1, in National Archives, Re-
cers fail to supply necessary defense mate riel. cords of the War Department, Office of the

72 S.Ct. 863 Page 28
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
General Staff, PST Division 400.1202. 52, 293, 47 S.Ct. 21, 85, 71 L.Ed. 160:
**886 For these reasons I concur in the judgment of “The doctrine of the separation of powers was ad-
the Court. As Justice Story once said: “For the ex- opted by the Convention of 1787 not to promote ef-
ecutive department of the government, this court ficiency but to preclude the exercise of arbitrary
entertain the most entire respect; and amidst the power. The purpose was not to avoid friction, but,
multiplicity of cares in that department, it may, by means of the inevitable friction incident to the
without any violation of decorum, be presumed, distribution of the governmental powers among
that sometimes there may be an inaccurate con- three departments, to save the people from auto-
struction of a law. It is our duty to expound the cracy.”
laws as we find them in the records of state; *667
and we cannot, when called upon by the citizens of *630 We therefore cannot decide this case by de-
the country, refuse our opinion, however it may dif- termining which branch of government can deal
FN15 most expeditiously with the present crisis. The an-
fer from that of very great authorities.”
swer must depend on the allocation of powers under
FN15. The Orono, C.C.D.Mass.1812, 18 the Constitution. That in turn requires an analysis
Fed.Cas.No.10,585. of the conditions giving rise to the seizure and of
*629 Mr. Justice DOUGLAS, concurring. the seizure itself.
There can be no doubt that the emergency which
caused the President to seize these steel plants was The relations between labor and industry are one of
one that bore heavily on the country. But the emer- the crucial problems of the era. Their solution will
gency did not create power; it merely marked an doubtless entail many methods-education of labor
occasion when power should be exercised. And the leaders and business executives; the encouragement
fact that it was necessary that measures be taken to of mediation and conciliation by the President and
keep steel in production does not mean that the the use of his great office in the cause of industrial
President, rather than the Congress, had the consti- peace; and the passage of laws. Laws entail sanc-
tutional authority to act. The Congress, as well as tions-penalties for their violation. One type of sanc-
the President, is trustee of the national welfare. The tion is find and imprisonment. Another is seizure of
President can act more quickly than the Congress. property. An industry may become so lawless, so
The President with the armed services at his dispos- irresponsible as to endanger the whole economy.
al can move with force as well as with speed. All Seizure of the industry may be the only wise and
executive power-from the reign of ancient kings to practical solution.
the rule of modern dictators-has the outward ap-
The method by which industrial peace is achieved
pearance of efficiency.
is of vital importance not only to **887 the parties
Legislative power, by contrast, is slower to exer- but to society as well. A determination that sanc-
cise. There must be delay while the ponderous ma- tions should be applied, that the hand of the law
chinery of committees, hearings, and debates is put should be placed upon the parties, and that the force
into motion. That takes time; and while the Con- of the courts should be directed against them, is an
gress slowly moves into action, the emergency may exercise of legislative power. In some nations that
take its toll in wages, consumer goods, war produc- power is entrusted to the executive branch as a mat-
tion, the standard of living of the people, and per- ter of course or in case of emergencies. We chose
haps even lives. Legislative action may indeed of- another course. We chose to place the legislative
ten be cumbersome, time-consuming, and appar- power of the Federal Government in the Congress.
ently inefficient. But as Mr. Justice Brandeis stated The language of the Constitution is not ambiguous
in his dissent in Myers v. United States, 272 U.S. or qualified. It places not some legislative power in

72 S.Ct. 863 Page 29
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
the Congress; Article I, Section 1 says “All legislat- checks and balances expounded by Mr. Justice
ive Powers herein granted shall be vested in a Con- BLACK in the opinion of the Court in which I Join.
gress of the United States, which shall consist of a
Senate and House of Representatives.” FN1. What a President may do as a matter
of expediency or extremity may never
The legislative nature of the action taken by the reach a definitive consitutional decision.
President seems to me to be clear. When the United For example, President Lincoln suspended
States *631 takes over an industrial plant to settle a the writ of habeas corpus, claiming the
labor controversy, it is condemning property. The constitutional right to do so. See Ex part
seizure of the plant is a taking in the constitutional Merryman, 17 Fed.Cas.No.9,487. Congress
sense. United States v. Pewee Coal Co., 341 U.S. ratified his action by the Act of March 3,
114, 71 S.Ct. 670, 95 L.Ed. 809. A permanent tak- 1863. 12 Stat. 755.
ing would amount to the nationalization of the in-
dustry. A temporary taking falls short of that FN2. Mr. Justice Brandeis, speaking for
goal. But though the seizure is only for a week or a the Court in United States v. North Amer-
month, the condemnation is complete and the ican Transportation & Trading Co., 253
United States must pay compensation for the tem- U.S. 330, 333, 40 S.Ct. 518, 520, 64 L.Ed.
porary possession. United States v. General Mo- 935, stated that the basis of the Govern-
tors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. ment's liability for a taking of property was
311; United States v. Pewee Coal Co., supra. legislative authority, “In order that the
Government shall be liable to must appear
The power of the Federal Government to condemn that the officer who has physically taken
property is well established. Kohl v. United possession of the property was duly au-
States, 91 U.S. 367, 23 L.Ed. 449. It can condemn thorized so to do, either directly by Con-
for any public purpose; and I have no doubt but that gress or by the official upon whom Con-
condemnation of a plant, factory, or industry in or- gress conferred the power.”
der to promote industrial peace would be constitu-
tional. But there is a duty to pay for all property That theory explains cases like United
taken by the Government. The command of the States v. Causby, 328 U.S. 256, 66 S.Ct.
Fifth Amendment is that no “private property be 1062, 90 L.Ed. 1206, where the acts of the
taken for public use, without just compensation. officials resulting in a taking were acts au-
That constitutional requirement has an important thorized by the Congress, though the Con-
bearing on the present case.” gress had not treated the acts us one of ap-
propriation of private property.
The President has no power to raise reveunes. That
power is in the Congress by Article I, Section 8 of War-time seizures by the military in con-
the Constitution. The President might seize and the nection with military operations, cf. United
Congress by subsequent action might ratify the States v. Russell, 13 Wall. 623, 20 L.Ed.
FN1 474, are also in a different category.
seizure. But until and unless Congress acted,
no condemnation would be lawful. The branch of
If we sanctioned the present exercise of power by
government that has the power to pay compensation
the President, we would be expanding**888 Article
for a seizure is the only one able to authorize a
II of the Constitution and rewriting it to suit the
seizure or make lawful one that *632 the President
FN2 political conveniences of the present emergency.
had effected. That seems to me to be the ne-
Article II which vests the ‘executive Power’ in the
cessary result of the condemnation provision in the
President defines that power with particularity.
Fifth Amendment. It squares with the theory of

72 S.Ct. 863 Page 30
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Article II, Section 2 makes the Chief Executive the suredly alter the pattern of the Constitution.
Commander in Chief of the Army and Navy. But
our history and tradition rebel at the thought that We pay a price for our system of checks and bal-
the grant of military power carries with it authority ances, for the distribution of power among the three
over civilian affairs. Article II, Section 3 provides branches of government. It is a price that today may
that the President shall “from time to time give to seem exorbitant to many. Today a kindly President
the Congress Information of the State of the Union, uses the seizure power to effect a wage increase and
and recommend to their Consideration such Meas- to keep the steel furnaces in production. Yet tomor-
ures as he shall judge necessary and expedient.” row another President might use the same power to
The power to recommend legislation, granted to the prevent a wage increase, to curb trade unionists, to
President, serves only to emphasize that it is his regiment labor as oppressively as industry thinks it
function to recommend and that it is the function of has been regimented by this seizure.
the Congress to legislate. *633Article II, Section 3, *593 Mr. Justice FRANKFURTER, concurring.
also provides that the President “shall take Care Before the cares of the White House were his own,
that the Laws be faithfully executed.” But as Mr. President Harding is reported to have said that gov-
Justice BLACK and Mr. Justice FRANKFURTER ernment after all is a very simple thing. He must
point out the power to execute the laws starts and have said that, if he said it, as a fleeting inhabitant
ends with the laws Congress has enacted. of fairyland. The opposite is the truth. A constitu-
tional democracy like ours is perhaps the most dif-
The great office of President is not a weak and ficult of man's social arrangements to manage suc-
powerless one. The President represents the people cessfully. Our scheme of society is more dependent
and is their spokesman in domestic and foreign af- than any other form of government on knowledge
fairs. The office is respected more than any other in and wisdom and self-descipline for the achievement
the land. It gives a position of leadership that is of its aims. For our democracy implies the reign of
unique. The power to formulate policies and mould reason on the most extensive scale. The Founders
opinion inheres in the Presidency and conditions of this Nation were not imbued with the modern
our national life. The impact of the man and the cynicism that the only thing that history teaches is
philosophy he represents may at times be thwarted that it teaches nothing. They acted on the convic-
by the Congress. Stalemates may occur when emer- tion that the experience of man sheds a good deal of
gencies mount and the Nation suffers for lack of light on his nature. It sheds a good deal of light not
harmonious, reciprocal action between the White merely on the need for effective power, if a society
House and Capitol Hill. That is a risk inherent in is to be at once cohesive and civilized, but also on
our system of separation of powers. The tragedy of the need for limitations on the power of governors
such stalemates might be avoided by allowing the over the governed.
President the use of some legislative authority. The
Framers with memories of the tyrannies produced **889 To that end they rested the structure of our
by a blending of executive and legislative power re- central government on the system of checks and
jected that political arrangement. Some future gen- balances. For them the doctrine of separation of
eration may, however, deem it so urgent that the powers was not mere theory; it was a felt necessity.
President have legislative authority that the Consti- Not so long ago it was fashionable to find our sys-
tution will be amended. We could not sanction the tem of checks and balances obstructive to effective
seizures and condemnations of the steel plants in government. It was easy to ridicule that system as
this case without reading Article II as giving the outmoded-too easy. The experience through which
President not only the power to execute the laws the world has passed in our own day has made vivid
but to make some. Such a step would most as- the realization that the Framers of our Constitution

72 S.Ct. 863 Page 31
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
were not inexperienced doctrinaires. These long- May 10, 1952, p. 370.
headed statesmen had no illusion that our people
enjoyed biological or psychological or sociological *595 The path of duty for this Court, it bears repeti-
immunities from the hazards of concentrated tion, lies in the opposite direction. Due regard for
power. It is absurd to see a dictator in a representat- the implications of the distribution of powers in our
ive product of the sturdy democratic traditions of Constitution and for the nature of the judicial pro-
the Mississippi Valley.*594 The accretion of dan- cess as the ultimate authority in interpreting the
gerous power does not come in a day. It does Constitution, has not only confined the Court with-
come, however slowly, from the generative force of in the narrow domain of appropriate adjudication. It
unchecked disregard of the restrictions that fence in has also led to “a series of rules under which it has
even the most disinterested assertion of authority. avoided passing upon a large part of all the consti-
tutional questions pressed upon it for decision.”
The Framers, however, did not make the judiciary Brandeis, J., in Ashwander v. Tennessee Valley
the overseer of our government. They were familiar Authority, 297 U.S. 288, 341, 346, 56 S.Ct. 466,
with the revisory functions entrusted to judges in a 480, 482, 80 L.Ed. 688. A basic rule is the duty of
few of the States and refused to lodge such powers the Court not to pass on a constitutional issue at all,
in this Court. Judicial power can be exercised only however narrowly it may be confined, if the case
as to matters that were the traditional concern of the may, as a matter of intellectual honesty, be decided
courts at Westminster, and only if they arise in without even considering delicate problems of
ways that to the expert feel of lawyers constitute power under the Constitution. It ought to be, but
‘Cases' or ‘Controversies.’ Even as to questions that apparently is not a matter of common understand-
were the staple of judicial business, it is not for the ing that clashes between different branches of the
courts to pass upon them unless they are indispens- government should be avoided if a legal ground of
ably involved in a conventional litigation. And less explosive potentialities is properly available.
then, only to the extent that they are so involved. Constitutional adjudications are apt by exposing
Rigorous adherence to the narrow scope of the judi- differences to exacerbate them.
cial function is especially demanded in controver-
sies that arouse appeals to the Constitution. The at- So here our first inquiry must be not into the
titude with which this Court must approach its duty powers of the President, but into the powers of a
when confronted with such issues is precisely the District Judge to issue a temporary injunction in the
opposite of that normally manifested by the general circumstances of this case. Familiar as that remedy
public. So-called constitutional questions seem to is, it remains an extraordinary remedy. To **890
exercise a mesmeric influence over the popular start with a consideration of the relation between
mind. This eagerness to settle-preferably forever-a the President's powers and those of Congress-a
specific problem on the basis of the broadest pos- most delicate matter that has occupied the thoughts
sible constitutional pronouncements may not un- of statesmen and judges since the Nation was foun-
fairly be called one of our minor national traits. An ded and will continue to occupy their thoughts as
English observer of our scene has acutely described long as our democracy lasts-is to start at the wrong
it: “At the first sound of a new argument over the end. A plaintiff is not entitled to an injunction if
United States Constitution and its interpretation the money damages would fairly compensate him for
hearts of Americans leap with a fearful joy. The any wrong he may have suffered. The same consid-
blood stirs powerfully in their veins and a new erations by which the Steelworkers, in their brief
lustre brightens their eyes. Like King Harry's men amicus, demonstrate, from the seizure here in con-
before Harfleur, they stand like greyhounds in the troversy, consequences*596 that cannot be trans-
slips, straining upon the start.” The Economist, lated into dollars and cents, preclude a holding that

72 S.Ct. 863 Page 32
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
only compensable damage for the plaintiffs is in- The issue before us can be met, and therefore
volved. Again, a court of equity ought not to issue should be, without attempting to define the Presid-
an injunction, even though a plaintiff otherwise ent's powers comprehensively. I shall not attempt to
makes out a case for it, if the plaintiff's right to an delineate what belongs to him by virtue of his of-
injunction is overborne by a commanding public in- fice beyond the power even of Congress to con-
terest against it. One need not resort to a large epi- tract; what authority belongs to him until Congress
grammatic generalization that the evils of industrial acts; what kind of problems may be dealt with
dislocation are to be preferred to allowing illegality either by the Congress or by the President or by
to go unchecked. To deny inquiry into the Presid- both, cf. La Abra Silver Mine Co. v. United States,
ent's power in a case like this, because of the dam- 175 U.S. 423, 20 S.Ct. 168, 44 L.Ed. 223; what
age to the public interest to be feared from upset- power must be exercised by the Congress and can-
ting its exercise by him, would in effect always pre- not be delegated to the President. It is as unprofit-
clude inquiry into challenged power, which pre- able to lump together in an undiscriminating hotch-
sumably only avowed great public interest brings potch past presidential actions claimed to be de-
into action. And so, with the utmost unwillingness, rived from occupancy of the office, as it is to con-
with every desire to avoid judicial inquiry into the jure up hypothetical future cases. The judiciary
powers and duties of the other two branches of the may, as this case proves, have to intervene in de-
government, I cannot escape consideration of the termining where authority lies as between the
legality of Executive Order No. 10340. democratic forces in our scheme of government.
But in doing so we should be wary and humble.
The pole-star for constitutional adjudications is Such is the teaching of this Court's ro le in the his-
John Marshall's greatest judicial utterance that “it is tory of the country.
a constitution we are expounding.” McCulloch v.
Maryland, 4 Wheat. 316, 407, 4 L.Ed. 579. That re- It is in this mood and with this perspective that the
quires both a spacious view in applying an instru- issue before the Court must be approached. We
ment of government “made for an underfined and must therefore put to one side consideration of what
expanding future,” Hurtado v. People of State of powers the President would have had if there had
California, 110 U.S. 516, 530, 4 S.Ct. 111, 118, 28 been no legislation whatever bearing on the **891
L.Ed. 232, and as narrow a delimitation of the con- authority asserted by the seizure, or if the seizure
stitutional issues as the circumstances permit. Not had been only for a short, explicitly temporary peri-
the least characteristic of great statesmanship which od, to be terminated automatically unless Congres-
the Framers manifested was the extent to which sional approval were given. These and other ques-
they did not attempt to bind the future. It is no less tions, like or unlike, are not now here. I would ex-
incumbent upon this Court to avoid putting fetters ceed my authority were I to say anything about
upon the future by needless pronouncements today. them.
Marshall's admonition that “it is a constitution we The question before the Court comes in this setting.
are expounding” is especially relevant when the Congress has frequently-at least 16 times since
Court is required to give legal sanctions to an un- 1916-*598 specifically provided for executive
derlying principle of the Constitution-that of separ- seizure of production, transportation, communica-
ation of powers.*597 “The great ordinances of the tions, or storage facilities. In every case it has qual-
Constitution do not establish and divide fields of ified this grant of power with limitations and safe-
black and white.” Holmes, J., dissenting in Springer guards. This body of enactments-summarized in
v. Government of Philippine Islands, 277 U.S. 189, tabular form in Appendix I-demonstrates that Con-
209, 48 S.Ct. 480, 485, 72 L.Ed. 845. gress deemed seizure so drastic a power as to re-

72 S.Ct. 863 Page 33
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
quire that it be carefully circumscribed whenever clearly understood that as a result of that legislation
the President was vested with this extraordinary au- the only recourse for preventing a shutdown in any
thority. The power to seize has uniformly been giv- basic industry, after failure of mediation, was Con-
FN2
en only for a limited period or for a defined emer- gress. Authorization for seizure as *600 an
gency, or has been repealed after a short period. Its available remedy**892 for potential dangers was
exercise has been restricted to particular circum- unequivocally put aside. The Senate Labor Com-
stances such as “time of war or when was is immin- mittee, through its Chairman, explicitly reported to
ent,” the needs of ‘public safety’ or of ‘national se- the Senate that a general grant of seizure powers
curity or defense,’ or ‘urgent and impending need.’ had been considered and rejected in favor of reli-
The period of governmental operation has been lim- ance on ad hoc legislation, as a particular emer-
FN3
ited, as, for instance, to “sixty days after the restor- gency might call for it. An amendment presen-
ation of productive efficiency.” Seizure statutes ted in the House providing that where necessary “to
usually make executive action dependent on de- preserve and protect the public health and security”
tailed conditions: for example, (a) failure or refusal the President might seize any industry in which
of the owner of a plant to meet governmental sup- there is *601 an impending curtailment of produc-
ply needs or (b) failure of voluntary negotiations tion, was voted down after debate, by a vote of
FN4
with the owner for the use of a plant necessary for more than three to one.
great public ends. Congress often has specified the
particular executive agency which should seize or FN1. The power to seize plants under the
operate the plants or whose judgment would appro- War Labor Disputes Act ended with the
priately test the need for seizure. Congress also has termination of hostilities, proclaimed on
not left to implication that just compensation be Dec. 31, 1946, prior to the incoming of the
paid: it has usually legislated in detail regarding en- Eightieth Congress; and the power to oper-
forcement of this litigation-breeding general re- ate previously seized plants ended on June
quirement. 30, 1947, only a week after the enactment
of the Labor Management Relations Act
Congress in 1947 was again called upon to consider over the President's veto. 57 Stat. 163, 165,
whether governmental seizure should be used to 50 U.S.C.App. (1946 ed.) s 1503, 50
avoid serious industrial shutdowns. Congress de- U.S.C.A.Appendix, s 1503. See 2 Legislat-
cided against conferring such power generally and ive History of the Labor Management Re-
in advance, without special congressional enact- lations Act, 1947 (published by National
ment to meet each particular need. Under the ur- Labor Relations Board, 1948), 1145, 1519,
gency of telephone and coal strikes in *599 the 1626.
winter of 1946, Congress addressed itself to the
problems raised by ‘national emergency’ strikes FN2. Some of the more directly relevant
FN1 statements are the following: “In most in-
and lockouts. The termination of wartime
seizure powers on December 31, 1946, brought stances the force of public opinion should
these matters to the attention of Congress with make itself sufficiently felt in this 80-day
vivid impact. A proposal that the President be given period to bring about a peaceful termina-
powers to seize plants to avert a shutdown where tion of the controversy. Should this expect-
the ‘health or safety’ of the nation was endangered, ation fail, the bill provides for the Presid-
was thoroughly canvassed by Congress and rejec- ent laying the matter before Congress for
ted. No room for doubt remains that the proponents whatever legislation seems necessary to
as well as the opponents of the bill which became preserve the health and safety of the Na-
the Labor Management Relations Act of 1947 tion in the crisis.” Senate Report No. 105,

72 S.Ct. 863 Page 34
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
80th Cong., 1st Sess. 15. law to cover the particular emergency. * *
*
“We believe it would be most unwise for
the Congress to attempt to adopt laws re- ‘We have felt that perhaps in the case of a
lating to any single dispute between general strike, or in the case of other seri-
private parties.” Senate Minority Report, ous strikes after the termination of every
id., Part 2, at 17. possible effort to resolve the dispute, the
remedy might be an emergency act by
In the debates Senator H. Alexander Smith, Congress for that particular purpose.
a member of the Senate Committee on
Labor and Public Welfare, said, “In the ‘* * * But while such a bill (For seizure of
event of a deadlock and a strike is not plants and union funds) might be prepared,
ended, the matter is referred to the Presid- I should be unwilling to place such a law
ent, who can use his discretion as to on the books until we actually face such an
whether he will present the matter to the emergency, and Congress applies the rem-
Congress, whether or not the situation is edy for the particular emergency only.
such that emergency legislation is re- Eighty days will provide plenty of time
quired.” within which to consider the possibility of
what should be done; and we believe very
“Nothing has been done with respect to the strongly that there should not be anything
Smith-Connally Act. There is no provision in this law which prohibits finally the right
for taking over property or running plants to strike.” 93 Cong.Rec. 3835-3836.
by the Government. We simply provide a
procedure which we hope will be effective FN4. 93 Cong. Rec. 3637-3645.
in 99 out of 100 cases where the health or
safety of the people may be affected, and In adopting the provisions which it did, by the
still leave a loophole for congressional ac- Labor Management Relations Act of 1947, for deal-
tion.” 93 Cong.Rec. 4281. ing with a ‘national emergency’ arising out of a
breakdown in peaceful industrial relations, Con-
The President in his veto message said, “* gress was very familiar with Government seizure as
* * it would be mandatory for the President a protective measure. On a balance of considera-
to transfer the whole problem to the Con- tions Congress chose not to lodge this power in the
gress, even if it were not in session. Thus, President. It chose not to make available in advance
major economic disputes between employ- a remedy to which both industry and labor were
FN5
ers and their workers over contract terms fiercely hostile. In deciding that authority to
might ultimately be thrown into the politic- seize should be given to the President only after full
al arena for disposition. One could scarcely consideration of the particular situation should
devise a less effective method for discour- show such legislation to be necessary,**893 Con-
aging critical strikes.” 93 Cong.Rec. 7487. gress presumably acted on experience with similar
industrial conflicts in the past. It evidently assumed
FN3. Senator Taft said: that industrial shutdowns in basic industries are not
instances of spontaneous generation, *602 and that
“If there finally develops a complete na-
danger warnings are sufficiently plain before the
tional emergency threatening the safety
event to give ample opportunity to start the legislat-
and health of the people of the United
ive process into action.
States, Congress can pass an emergency

72 S.Ct. 863 Page 35
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
FN5. See, for instance, the statements of powers, Congress in 1947 deemed it wise to require
James B. Carey, Secretary of the C.I.O., in the President, upon failure of attempts to reach a
opposition to S. 2054, 77th Cong., 1st voluntary settlement, to report to Congress if he
Sess., which eventually became the War deemed the power of seizure a needed shot for his
Labor Disputes Act. Central to that Act, of locker. The President could not ignore the specific
course, was the temporary grant of the limitations of prior seizure statutes. No more could
seizure power to the President. Mr. Carey he act in disregard of the limitation put upon
then said: seizure by the 1947 Act.
“Senator Burton. If this would continue It cannot be contended that the President would
forever it might mean the nationalization have had power to issue this order had Congress ex-
of industry? plicitly negated such authority in formal legislation.
Congress has expressed its will to withhold this
‘Mr. Carey. Let us consider it on a tempor- power from the President as though it had said so in
ary basis. How is the law borne by labor? so many words. The authoritatively expressed pur-
Here is the Government-sponsored strike pose of Congress to disallow such power to the
breaking agency, and nothing more. President and to require him, when in his mind the
occasion arose for such a seizure, to put the matter
‘Our suggestion of a voluntary agreement
to Congress and ask for specific authority from it,
of the representatives of industry and labor
could not be more decisive if it had been written in-
and Government, participating in calling a
to ss 206-210 of the Labor Management Relations
conference, is a democratic way. The other
Act of 1947. Only the other day we treated the Con-
one is the imposition of force, the other is
gressional gloss upon those sections as part of the
the imposition of seizure of certain things
Act. Amalgamated Ass'n of Street Electric Railway
for a temporary period; the destruction of
& Motor Coach Employees v. Wisconsin Employ-
collective bargaining, and it would break
ment Relations Board, 340 U.S. 383, 395-396, 71
down labor relations that may have been
S.CT. 359, 365, 366, 95 L.ED. 364. *603 GRAFT-
built up over a long period.”
ING upon the words a purpOSE of Congress thus
Hearing before a Subcommittee of the Sen- unequivocally expressed is the regular legislative
ate Committee on the Judiciary on S. 2054, mode for defining the scope of an Act of Congress.
77th Cong. 1st Sess. 132. It would be not merely infelicitous draftsmanship
but almost offensive gaucherie to write such a re-
In any event, nothing can be plainer than that Con- striction upon the President's power in terms into a
gress made a conscious choice of policy in a field statute rather than to have it authoritatively ex-
full of perplexity and peculiarly within legislative pounded, as it was, by controlling legislative his-
responsibility for choice. In formulating legislation tory.
for dealing with industrial conflicts, Congress could
not more clearly and emphatically have withheld By the Labor Management Relations Act of 1947,
authority than it did in 1947. Perhaps as much so as Congress said to the President, “You may not seize.
is true of any piece of modern legislation, Congress Please report to us and ask for seizure power if you
acted with full consciousness of what it was doing think it is needed in a specific situation.” This of
and in the light of much recent history. Previous course calls for a report on the unsuccessful efforts
seizure legislation had subjected the powers granted to reach a voluntary settlement, as a basis for dis-
to the President to restrictions of varying degrees of charge by Congress of its responsibility-which it
stringency. Instead of giving him even limited has unquivocally reserved-to fashion further remed-

72 S.Ct. 863 Page 36
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
FN6
ies than it provided. But it is now claimed that of mediation and conciliation facilities to effect a
FN8
the President has seizure power by virtue of the De- settlement in the national interest.” Section 502
fense Production Act of 1950 and its Amendments. authorized the President to hold voluntary confer-
FN7
And the claim is based on the occurrence of ences of labor, industry, and public and government
new events-Korea and the need for stabilization, representatives and to “take such action as may be
etc.-although it was well known that seizure power agreed upon in any such conference and appropriate
was withheld by the Act of 1947 and although the to carry out the provisions of this title,” provided
President, whose specific requests for other author- that no action was taken inconsistent with the Labor
FN9
ity were in the main granted by Congress, never Management Relations Act of 1947. This pro-
FN10
suggested that in view **894 of the new events he vision was said by the Senate Committee*605
needed the power of seizure which Congress in its on Banking and Currency to contemplate a board
judgment had decided to withhold from him. The similar to the War Labor Board of World War II
utmost that the Korean conflict may imply is that it and “a national labor-management conference such
may have been desirable to have given the Presid- as was held during World War II, when a no-strike,
FN11
ent further authority, a freer hand in these matters. no-lock-out pledge was obtained.” Section
Absence of authority in the President to deal with a 502 was believed necessary**895 *606 in addition
crisis does not *604 imply want of power in the to existing means for settling disputes voluntarily
Government. Conversely the fact that power exists because the Federal Mediation and Conciliation
in the Government does not vest it in the President. Service could not enter a labor dispute unless re-
FN12
The need for new legislation does not enact it. Nor quested by one party. Similar explanations of
does it repeal or amend existing law. Title V were given in the Conference Report and by
Senator Ives, a member of the Senate Committee to
FN6. Clearly the President's message of whom Chairman Maybank during the debates on
April 9 and his further letter to the Presid- the Senate floor referred questions relating to Title
ent of the Senate on April 21 do not satisfy FN13
V. Senator Ives said:
this requirement. Cong.Rec., April 9, 1952,
pp. 3962-3963; id., April 21, 1952, p. FN8. ss 501, 502, 64 Stat. 798, 812, 50
4192. U.S.C.App. ss 2121, 2122, 50
U.S.C.A.Appendix, ss 2121, 2122.
FN7. 64 Stat. 798 et seq., 65 Stat. 131 et
seq., 50 U.S.C.App. s 2061 et seq., 50 FN9. ss 502, 503, 64 Stat. 798, 812, 50
U.S.C.A.Appendix, s 2061 et seq. U.S.C.App. ss 2122, 2123, 50
U.S.C.A.Appendix, ss 2122, 2123.
No authority that has since been given to the Pres-
ident can by any fair process of statutory construc- FN10. The provision of s 502 in S. 3936,
tion be deemed to withdraw the restriction or as reported by the Senate Committee on
change the will of Congress as expressed by a body Banking and Currency, read as follows:
of enactments, culminating in the Labor Manage- “The President is authorized, after con-
ment Relations Act of 1947. Title V of the Defense sultation with labor and management, to
Production Act, entitled ‘Settlement of Labor Dis- establish such principles and procedures
putes,’ pronounced the will of Congress “that there and to take such action as he deems appro-
be effective procedures for the settlement of labor priate for the settlement of labor disputes
disputes affecting national defense,” and that affecting national defense, including the
‘primary reliance’ be placed “upon the parties to designation of such persons, boards or
any labor dispute to make every effort through ne- commissions as he may deem appropriate
gotiation and collective bargaining and the full use to carry out the provisions of this title.”

72 S.Ct. 863 Page 37
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
That language was superseded in the Con- the War Labor Disputes Act did; the omis-
ference Report by the language that was fi- sion of any grant of seizure power similar
nally enacted. H.R.Rep. No. 3042, 81st to s 3 is too obvious not to have been con-
Cong., 2d Sess. 16, 35. The change made scious. At any rate, the Wage Stabilization
by the Conference Committee was for the Board differs substantially from the earlier
purpose of emphasizing the voluntary War Labor Board. In 1951 the Senate
nature of the cooperation sought from the Committee studying the disputes functions
public, labor, and management; as Senator of the Wage Stabilization Board pointed
Ives explained under repeated questioning, out the substantial differences between that
“If any group were to hold out, there Board and its predecessor and concluded
would be no agreement (on action to carry that “The New Wage Stabilization Board *
out the provisions of this title).” 96 * * does not rely on title V of the Defense
Cong.Rec. 14071-14072. Chairman May- Production Act for its authority.”
bank of the Senate Committee on Banking S.Rep.No. 1037, 82d Cong., 1st Sess.,
and Currency said, “The labor disputes supra, at 4-6.
title of the Senate was accepted by the
House with amendment which merely in- FN12. S.Rep. No. 2250, 81st Cong., 2d
dicates more specific avenues through Sess. 41.
which the President may bring labor and
FN13. See 96 Cong.Rec. 14071.
management together.” Id., at 14073.
“It should be remembered in this connection that
FN11. S.Rep. No. 2250, 81st Cong., 2d
during the period of the present emergency it is ex-
Sess. 41; H.R.Rep. No. 3042, 81st Cong.,
pected that the Congress will not adjourn, but at
2d Sess. 35. It is hardly necessary to note
most, will recess only for very limited periods of
that Congressional authorization of an
time. If, therefore, any serious work stoppage
agency similar to the War Labor Board
should arise or even be threatened, in spite of the
does not imply a Congressional grant of
terms of the Labor-Management Relations Act of
seizure power similar to that given the
1947, the Congress would be readily available to
President specifically by s 3 of the War
pass such legislation as might be needed to meet the
Labor Disputes Act of 1943. The War FN14
difficulty.”
Labor Board, created by s 7 of the 1943
Act, had only administrative sanctions. See FN14. Id., at 12275. Just before the para-
57 Stat. 163, 166-167; see Report of Sen- graph quoted in the text, Senator Ives had
ate Committee on Labor and Public Wel- said:
fare, The Disputes Functions of the Wage
Stabilization Board, 1951, S.Rep. No. “In fact, the courts have upheld the consti-
1037, 82d Cong., 1st Sess. 6. The seizure tutionality of the national emergency pro-
power given by Congress in s 3 of the visions of the Labor-Management Rela-
1943 Act was given to the President, not to tions Act of 1947, which can require that
the War Labor Board, and was needed only workers stay on the job for at least 80 days
when the War Labor Board reported it had when a strike would seriously threaten the
failed; the seizure power was separate and national health and safety in peacetime.
apart from the War Labor Board ma-
chinery for settling disputes. At most the ‘By the terms of the pending bill, the
Defense Production Act does what s 7 of Labor-Management Relations Act of 1947

72 S.Ct. 863 Page 38
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
would be controlling in matters affecting sidering the Defense Production Act Amendments,
the relationship between labor and man- Congress was never asked to approve-and there is
agement, including collective bargaining. not the slightest indication that the responsible
It seems to me, however, that this is as far committees ever had in mind-seizure of plants to
as we should go in legislation of this type.” coerce settlement of disputes. *609 We are not even
confronted by an inconsistency between the author-
*607 The Defense Production Act affords no ity conferred on the Wage Board, as formulated by
ground for the suggestion that the 1947 denial to the Executive Order, and the denial of Presidential
the President of seizure powers has been impliedly seizure powers under the 1947 legislation. The
repealed, and its legislative history contradicts such Board has been given merely mediatory powers
a suggestion. Although the proponents of that Act similar to those of agencies created by the Taft-
recognized that the President would have a choice Hartley Act and elsewhere, with no other sanctions
of alternative methods of seeking a mediated settle- for acceptance of its recommendations than are
ment, they also recognized that Congress alone re- offered by its own moral authority and the pressure
tained the ultimate coercive power to meet the of public opinion. The Defense Production Act and
threat of ‘any serious work stoppage.’ the disputes-mediating agencies created subsequent
to it still leave for solution elsewhere the question
That conclusion is not changed by what occurred
what action can be taken when attempts at volun-
after the passage of the 1950 Act. Seven and a half
tary settlement fail. To draw implied approval of
months later, on April 21, 1951, the President by
seizure power from this history is to make
Executive Order 10233 gave the reconstituted
something out of nothing.
Wage Stabilization Board authority to investigate
labor disputes either (1) submitted voluntarily by FN15. 16 Fed.Reg. 3503. The disputes
the parties, or (2) referred to it by the President. functions were not given to the Wage Sta-
FN15
The Board can make only “recommendations bilization Board under Title V, see note 11,
to the parties as to fair and equitable terms of settle- supra, but apparently under the more gen-
ment” unless the parties agree to be bound by the eral Title IV, entitled ‘Price and Wage Sta-
Board's recommendation. About a month thereafter bilization.’
Sub-Committees of both the House and Senate
Labor Committees began hearings on the newly as- FN16. See Hearings before a Subcommit-
FN16
signed disputes functions of the Board. tee of the House Committee on Education
Amendments**896 to deny the *608 Board these and Labor, Disputes Functions of Wage
FN17
functions were voted down in the House, and Stabilization Board, 82d Cong., 1st Sess.
Congress extended the Defense Production Act (May 28-June 15, 1951); Hearings before
FN18
without changing Title V in relevant part. The the Subcommittee on Labor and Labor-
legislative history of the Defense Production Act Management Relations of Senate Commit-
and its Amendments in 1951 cannot possibly be tee on Labor and Public Welfare, Wage
vouched for more than Congressional awareness Stabilization and Disputes Program, 82d
and tacit approval that the President had charged Cong., 1st Sess. (May 17-June 7, 1951).
the Wage Stabilization Board with authority to seek The resulting Report of the Senate Com-
voluntary settlement of labor disputes. The most fa- mittee, S.Rep. No. 1037, 82d Cong., 1st
vorable interpretation of the statements in the com- Sess. 9, recommended that “Title V of the
mittee reports can make them mean no more than Defense Production Act be retained” and
“We are glad to have all the machinery possible for that “No statutory limitations be imposed
the voluntary settlement of labor disputes.” In con- on the President's authority to deal with

72 S.Ct. 863 Page 39
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
disputes through voluntary machinery; secreted in the interstices of legislation the very
such limitations, we believe, would in- grant of power which Congress consciously with-
fringe on the President's constitutional held. To find authority so explicitly withheld is not
power.” (Emphasis added.) The Committee merely to disregard in a particular instance the clear
found, id., at 10, that the “Wage Stabiliza- will of Congress. It is to disrespect the whole legis-
tion Board relies completely on voluntary lative process and the constitutional division of au-
means for settling disputes and is, there- thority between President and Congress.
fore, an extension of free collective bar-
gaining. The Board has no powers of legal The legislative history here canvassed is relevant to
compulsion.” ‘Executive Order No. 10233, yet another of the issues before us, namely, the
’ the Committee found further, “does not in Government's argument that overriding public in-
any way run counter to the * * * Taft- terest prevents the issuance of the injunction des-
Hartley Act. It is simply an additional tool, pite the illegality of the seizure. I cannot accept that
not a substitute for these laws.” Of particu- contention. “Balancing the **897 equities' when
lar relevance to the present case, the Com- considering whether an injunction should issue, is
mittee declared: lawyers' jargon for choosing between conflicting
public interests. When Congress itself has struck
“The recommendations of the Wage Stabil- *610 the balance, has defined the weight to be giv-
ization Board in disputes certified by the en the competing interests, a court of equity is not
President have no compulsive force. The justified in ignoring that pronouncement under the
parties are free to disregard recommenda- guise of exercising equitable discretion.”
tions of the Wage Stabilization Board * *
*. Apart from his vast share of responsibility for the
conduct of our foreign relations, the embracing
‘There is, of course, the President's author- function of the President is that “he shall take Care
ity to seize plants under the Selective Ser- that the Laws be faithfully executed * * *.” Art. II,
vice Act (a power not here used), but this s 3. The nature of that authority has for me been
is an authority which exists independently comprehensively indicated by Mr. Justice Holmes.
of the Wage Stabilization Board and its “The duty of the President to see that the laws be
disputes-handling functions. In any case, executed is a duty that does not go beyond the laws
seizure is an extraordinary remedy, and the or require him to achieve more than Congress sees
authority to seize, operates whether or not fit to leave within his power.” Myers v. United
there is a disputes-handling machinery.” States, 272 U.S. 52, 177, 47 S.Ct. 21, 85, 71 L.Ed.
Id., at 5. 160. The powers of the President are not as particu-
larized as are those of Congress. But unenumerated
FN17. 97 Cong.Rec. 8390-8415. powers do not mean undefined powers. The separa-
tion of powers built into our Constitution gives es-
FN18. 65 Stat. 131.
sential content to undefined provisions in the frame
It is one thing to draw an intention of Congress of our government.
from general language and to say that Congress
To be sure, the content of the three authorities of
would have explicitly written what is inferred,
government is not to be derived from an abstract
where Congress has not addressed itself to a specif-
analysis. The areas are partly interacting, not
ic situation. It is quite impossible, however, when
wholly disjointed. The Constitution is a framework
Congress did specifically address itself to a prob-
for government. Therefore the way the framework
lem, as Congress did to that of seizure, to find
has consistently operated fairly establishes that it

72 S.Ct. 863 Page 40
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
has operated according to its true nature. Deeply hostilities had already interrupted the movement of
embedded traditional ways of conducting govern- troops to the beleaguered Capitol, and his order was
ment cannot supplant the Constitution or legisla- ratified by the Congress.
tion, but they give meaning to the words of a text or
supply them. It is an inadmissibly narrow concep- The only other instances of seizures are those dur-
tion of American constitutional law to confine it to ing the periods of the first and second World Wars.
FN19
the words of the Constitution and to disregard the In his eleven seizures**898 of industrial fa-
gloss which life has written upon them. In short, a cilities, President Wilson *612 acted, or at least
FN20
systematic, unbroken, executive practice, long pur- purported to act, under authority granted by
sued to the knowledge of the Congress and never Congress. Thus his seizures cannot be adduced as
before questioned, engaged in by Presidents who interpretations by a President of his own powers in
have also sworn to uphold the Constitution, making the absence of statute.
as it were such exercise of power part *611 of the
FN19 Instances of seizure by the President
structure of our government, may be treated as a
are summarized in Appendix II, infra.
gloss on ‘executive Power’ vested in the President
by s 1 of Art. II. FN20. One of President Wilson's seizures
has given rise to controversy. In his testi-
Such was the case of United States v. Midwest Oil
mony in justification of the Montgomery
Co., 236 U.S. 459, 35 S.Ct. 309, 59 L.Ed. 673. The
Ward seizure during World War II, Attor-
contrast between the circumstances of that case and
ney General Biddle argued that the World
this one helps to draw a clear line between author-
War I seizure of Smith & Wesson could
ity not explicitly conferred yet authorized to be ex-
not be supported under any of the World
ercised by the President and the denial of such au-
War I statutes authorizing seizure. He thus
thority. In both instances it was the concern of Con-
adduced it in support of the claim of so-
gress under express constitutional grant to make
called inherent presidential power of
rules and regulations for the problems with which
seizure. See Hearings before House Select
the President dealt. In the one case he was dealing
Committee to Investigate the Seizure of
with the protection of property belonging to the
Montgomery Ward, 78th Cong., 2d Sess.
United States; in the other with the enforcement of
167-168. In so doing, he followed the ar-
the Commerce Clause and with raising and support-
dor of advocates in claiming
ing armies and maintaining the Navy. In the Midw-
everything. In his own opinion to the Pres-
est Oil case lands which Congress had opened for
ident, he rested the power to seize Mont-
entry were, over a period of 80 years and in 252 in-
gomery Ward on the statutory authority of
stances, and by Presidents learned and unlearned in
the War Labor Disputes Act, see 40 Ops.
the law, temporarily withdrawn from entry so as to
Att'y Gen. 312 (1944), and the Court of
enable Congress to deal with such withdrawals. No
Appeals decision upholding the Mont-
remotely comparable practice can be vouched for
gomery Ward seizure confined itself to that
executive seizure of property at a time when this
ground. United States v. Montgomery
country was not at war, in the only constitutional
Ward & Co., 7 Cir., 150 F.2d 369. What
way in which it can be at war. It would pursue the
Attorney General Biddle said about Smith
irrelevant to reopen the controversy over the consti-
& Wesson was, of course, post litem mot-
tutionality of some acts of Lincoln during the Civil
am. Whether or not the World War I stat-
War. See J. G. Randall, Constitutional Problems
utes were broad enough to justify that
under Lincoln (Revised ed. 1951). Suffice it to say
seizure, it is clear that the taking officers
that he seized railroads in territory where armed
conceived themselves as moving within the

72 S.Ct. 863 Page 41
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
scope of statute law. See n. 3, Appendix II, enough to consider and adjudicate the challenge,
infra. Thus, whether or not that seizure was labors under restrictions from which other govern-
within the statute, it cannot properly be ments are free. It has not been our tradition to envy
cited as a precedent for the one before us. such governments. In any event our government
On this general subject, compare Attorney was designed to have such restrictions. The price
General Knox's opinion advising President was deemed not too high in view of the safeguards
Theodore Roosevelt against the so-called which these restrictions afford. I know no more im-
‘stewardship’ theory of the Presidency. pressive words on this subject than those of Mr.
National Archives, Opinions of the Attor- Justice Brandeis:
ney General, Book 31, Oct. 10, 1902 (R.G.
60); Theodore Roosevelt, Autobiography, “The doctrine of the separation of powers was ad-
388-389; 3 Morison, The Letters of opted by the Convention of 1787, not to promote
Theodore Roosevelt, 323-366. efficiency but to preclude the exercise of arbitrary
power. The purpose was not to avoid fricition, but,
Down to the World War II period, then, the record *614 by means of the inevitable friction incident to
is barren of instances comparable to the one before the distribution of the governmental powers among
us. Of twelve seizures by President Roosevelt prior three departments, to save the people from **899
to the enactment of the War Labor Disputes Act in autocracy.” Myers v. United States, 272 U.S. 52,
June, 1943, three were sanctioned by existing law, 240, 293, 47 S.Ct. 21, 85, 71 L.Ed. 160.
and six others *613 were effected after Congress,
on December 8, 1941, had declared the existence of It is not a pleasant judicial duty to find that the
a state of war. In this case, reliance on the powers President has exceeded his powers and still less so
that flow from declared war has been commendably when his purposes were dictated by concern for the
disclaimed by the Solicitor General. Thus the list of Nation's wellbeing, in the assured conviction that
executive assertions of the power of seizure in cir- he acted to avert danger. But it would stultify one's
cumstances comparable to the present reduces to faith in our people to entertain even a momentary
three in the six-month period from June to Decem- fear that the patriotism and the wisdom of the Pres-
ber of 1941. We need not split hairs in comparing ident and the Congress, as well as the long view of
those actions to the one before us, though much the immediate parties in interest, will not find ready
might be said by way of differentiation. Without accommodation for differences on matters which,
passing on their validity, as we are not called upon however close to their concern and however intrins-
to do, it suffices to say that these three isolated in- ically important, are overshadowed by the awesome
stances do not add up, either in number, scope, dur- issues which confront the world. When at a moment
ation or contemporaneous legal justification, to the of utmost anxiety President Washington turned to
kind of executive construction of the Constitution this Court for advice, and he had to be denied it as
revealed in the Midwest Oil case. Nor do they come beyond the Court's competence to give, Chief
to us sanctioned by long-continued acquiescence of Justice Jay, on behalf of the Court, wrote thus to the
Congress giving decisive weight to a construction Father of his Country:
by the Executive of its powers.
“ ‘We exceedingly regret every event that may
A scheme of government like ours no doubt at cause embarrassment to your administration, but we
times feels the lack of power to act with complete, derive consolation from the reflection that your
all-embracing, swiftly moving authority. No doubt judgment will discern what is right, and that your
a government with distributed authority, subject to usual prudence, decision, and firmness will sur-
be challenged in the courts of law, at least long mount every obstacle to the preservations of the
rights, peace, and dignity of the United States.’ Let-

72 S.Ct. 863 Page 42
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
ter of August 8, 1793, 3 Johnston, Correspondence **900 *615

and Public Papers of John Jay (1891), 489.”
In reaching the conclusion that conscience compels,

I too derive consolation from the reflection that the
President and the Congress between them will con-
tinue to safeguard the heritage which comes to
them straight from George Washington.
**901 *616

72 S.Ct. 863 Page 43
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
**902

72 S.Ct. 863 Page 44
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
**903 *617

72 S.Ct. 863 Page 45
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
**904
**905 *618
**906

72 S.Ct. 863 Page 46
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
**907 *619

72 S.Ct. 863 Page 47
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
**908
**909 *620

72 S.Ct. 863 Page 48
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
**910

72 S.Ct. 863 Page 49
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
**911 *621
**912
**913 *622

72 S.Ct. 863 Page 50
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
**914
**915

72 S.Ct. 863 Page 51
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
**916 *623

72 S.Ct. 863 Page 52
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
**917

72 S.Ct. 863 Page 53
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
**918 *624

72 S.Ct. 863 Page 54
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
**919

72 S.Ct. 863 Page 55
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
**920 *625

72 S.Ct. 863 Page 56
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
**921

72 S.Ct. 863 Page 57
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
**922 *626

72 S.Ct. 863 Page 58
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
**923
**924 *627
**925

72 S.Ct. 863 Page 59
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
**926

72 S.Ct. 863 Page 60
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
**927 *628
**928
**929 Mr. Chief Justice VINSON, with whom Mr. gency because “a work stoppage would immedi-
Justice REED and Mr. Justice MINTON join, dis- ately jeopardize and imperil our national defense
senting. and the defense of those joined with us in resisting
The President of the United States directed the Sec- aggression, and would add to the continuing danger
retary of Commerce to take temporary possession of our soldiers, sailors and airmen engaged in com-
of the Nation's steel mills during the existing emer- bat in the field.” The District Court ordered the

72 S.Ct. 863 Page 61
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
mills returned to their private owners on the ground abated. The “determination of the United Nations to
that the President's action was beyond his powers continue its action in Korea to meet the aggression”
FN3
under the Constitution. has been reaffirmend. Congressional support of
the action in Korea has been manifested by provi-
This Court affirms. Some members of the Court are sions for increased military manpower and equip-
of the view that the President is without power to ment and for economic stabilization, as hereinafter
act in time of crisis in the absence of express stat- described.
utory authorization. Other members of the Court af-
firm on the basis of their reading of certain statutes. FN1. 59 Stat. 1031, 1037 (1945); 91
Because we cannot agree that affirmance is proper Cong.Rec. 8190 (1945).
on any ground, and because of the transcending im-
portance of the questions presented not only in this FN2. U.N. Security Council, U.N. Doc. S/
critical litigation but also to the powers the Presid- 1501 (1950); Statement by the President,
ent and of future Presidents to act in time of crisis, June 25, 1950, United States Policy in the
we are compelled to register this dissent. Korean Crisis, Dept. of State Pub. (1950),
16.
I. FN3. U.N. General Assembly, U.N. Doc.

A/1771 (1951).
In passing upon the question of Presidential powers
in this case, we must first consider the context in Further efforts to protect the free world from ag-
which those powers were exercised. gression are found in the congressional enactments
of the Truman Plan for assistance to Greece and
*668 Those who suggest that this is a case in- FN4
Turkey and *669 the Marshall Plan for eco-
volving extraordinary powers should be mindful nomic aid needed to build up the strength of our
that these are extraordinary times. A world not yet FN5
friends in Western Europe. In 1949, the Senate
recovered from the devastation of World War II has approved the North Atlantic Treaty under which
been forced to face the threat of another and more each member nation agrees that an armed attack
terrifying global conflict. FN6
against one is an armed attack against all. Con-
gress immediately implemented**930 the North At-
Accepting in full measure its responsibility in the
lantic Treaty by authorizing military assistance to
world community, the United States was instru-
nations dedicated to the principles of mutual secur-
mental in securing adoption of the United Nations FN7
ity under the United Nations Charter. The
Charter, approved by the Senate by a vote of 89 to
concept of mutual security recently has been exten-
2. The first purpose of the United Nations is to FN8
ded by treaty to friends in the Pacific.
“maintain international peace and security, and to
that end: to take effective collective measures for FN4. 61 Stat. 103 (1947), 22 U.S.C.A. s
the prevention and removal of threats to the peace, 1401 et seq.
and for the suppression of acts of aggression or oth-
FN1
er breaches of the peace, * * *.” In 1950, when FN5. 62 Stat. 137 (1948), as amended, 63
the United Nations called upon member nations ‘to Stat. 50 (1949), 64 Stat. 198 (1950), 22
render every assistance’ to repel aggression in U.S.C.A. s 1501 et seq.
Korea, the United States furnished its vigorous sup-
FN2 FN6. 63 Stat. 2241 (1949), extended to
port. For almost two full years, our armed
forces have been fighting in Korea, suffering casu- Greece and Turkey, S. Exec. E, 82d Cong.,
alties of over 108,000 men. Hostilities have not 2d Sess. (1952), advice and consent of the
Senate granted. 98 Cong.Rec. 930.

72 S.Ct. 863 Page 62
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
FN7. 63 Stat. 714 (1949), 22 U.S.C.A. s dition to direct shipment of military equipment to
1571 et seq. nations of the free world, defense production in
those countries relies upon shipment of machine
FN8. S. Execs. A, B, C and D, 82d Cong., tools and allocation of steel tonnage from the
2d Sess. (1952), advice and consent of the FN12
United States.
Senate granted. 98 Cong.Rec. 2594, 2595,
2605. FN9. 65 Stat. 373 (1951), 22 U.S.C.A. s
1651.
Our treaties represent not merely legal obligations
but show congressional recognition that mutual se- FN10. 65 Stat. 730 (1951); see H.R.Doc.
curity for the free world is the best security against No. 147, 82d Cong., 1st Sess. 3 (1951).
the threat of aggression on a global scale. The need
for mutual security is shown by the very size of the FN11. See H.R.Doc. 382, 82d Cong., 2d
armed forces outside the free world. Defendant's Sess. (1952).
brief informs us that the Soviet Union maintains the
FN12. Hearings before Senate Committee
largest air force in the world and maintains ground
on Foreign Relations on the Mutual Secur-
forces much larger than those presently available to
ity Act of 1952, 82d Cong., 2d Sess.
the United States and the countries joined with us
565-566 (1952); Hearings before House
in mutual security arrangements. Constant interna-
Committee on Foreign Affairs on the Mu-
tional tensions are cited to demonstrate how pre-
tual Security Act of 1952, 82d Cong., 2d
carious is the peace.
Sess. 370 (1952).
Even this brief review of our responsibilities in the
Congress also directed the President to build up our
world community discloses the enormity of our un-
own defenses. Congress, recognizing the “grim fact
dertaking. Success of these measures may, as has
* * * that the United States is now engaged in a
often been *670 observed, dramatically influence
struggle for survival” and that “it is imperative that
the lives of many generations of the world's peoples
we now take those necessary steps to make our
yet unborn. Alert to our responsibilities, which co-
strength equal to the peril of the hour,” granted au-
incide with our own self preservation through mu-
thority to draft men into *671 the armed forces.
tual security, Congress has enacted a large body of FN13
As a result, we now have over 3,500,000 men
implementing legislation. As an illustration of the FN14
in our armed forces.
magnitude of the over-all program, Congress has
appropriated $130 billion for our own defense and FN13. 65 Stat. 75 (1951); S.Rep. No. 117,
for military assistance to our allies since the June, 82d Cong., 1st Sess. 3 (1951).
1950, attack in Korea.
FN14. Address by Secretary of Defense
In the Mutual Security Act of 1951, Congress au- Lovett Before the American Society of
thorized “military, economic, and technical assist- Newspaper Editors, Washington, April 18,
ance to friendly countries to strengthen the mutual 1952.
security and individual and collective defenses of
FN9
the free world, * * *.” Over $5 1/2 billion Appropriations for the Department of Defense,
were appropriated for military assistance for fiscal which had averaged less than $13 billion per year
year 1952, the bulk of that amount to be devoted to for the three years before attack in Korea, were in-
FN10
purchase of military equipment. A request for creased by Congress to $48 billion for fiscal year
FN15
over $7 billion for the same purpose for fiscal year 1951 and to $60 billion for fiscal year 1952.
FN11
1953 is currently pending in Congress. In ad- A request for $51 billion for the Department of

72 S.Ct. 863 Page 63
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
**931 Defense for fiscal year 1953 is currently the over-all inflationary danger growing out of re-
FN16
pending in Congress. The bulk of the increase duced civilian supplies and rising incomes.” Even
is for military equipment and supplies-guns, tanks, before Korea, steel production at levels above the-
ships, planes and ammunition-all of which require oretical 100% capacity was not capable of supply-
steel. Other defense programs requiring great ing civilian needs alone. Since Korea, the tremend-
quantities of steel include the large scale expansion ous military demand for steel has far exceeded the
of facilities for the Atomic Energy Commission increases in productive capacity. This Committee
FN17
and the expansion of the Nation's productive emphasized that the shortage of steel, even with the
capacity affirmatively encouraged by Congress. mills operating at full capacity, coupled with in-
FN18
creased civilian purchasing power, presented grave
FN21
danger of disastrous inflation.
FN15. Fiscal Year 1952, 65 Stat. 423, 760
(1951); F.Y. 1951, 64 Stat. 595, 1044, FN19. Note 18, supra, Tits. IV and V, 50
1223, 65 Stat. 48, (1950-1951); F.Y. 1950, U.S.C.A.Appendix, ss 2101 et seq., 2121
63 Stat. 869, 973, 987 (1949); F.Y. 1949, et seq.
62 Stat. 647 (1948); F.Y. 1948, 61 Stat.
551 (1947). FN20. S.Rep. No. 470, 82d Cong., 1st
Sess. 8 (1951).
FN16. See H.R.Rep. No. 1685, 82d Cong.,
2d Sess. 2 (1952), on H.R. 7391. FN21. Id., at 8-9.
FN17. See H.R.Rep. No. 384, 82d Cong., The President has the duty to execute the foregoing
1st Sess. 5 (1951); 97 Cong.Rec. legislative programs. Their successful execution de-
13647-13649. pends upon continued production of steel and sta-
bilized prices for steel. Accordingly, when the col-
FN18. Defense Production Act, Tit. III, 64 lective bargaining agreements between the Nation's
Stat. 798 (1950), 65 Stat. 138 (1951), 50 steel producers and their employees, represented by
U.S.C.A.Appendix, s 2091 et seq. the United Steel Workers, were due to expire on
December 31, 1951, and a strike shutting down the
Congress recognized the impact of these defense entire basic steel industry was threatened, the Pres-
programs upon the economy. Following the attack ident acted to avert a complete shutdown of steel
in Korea, the President asked for authority to re- production. On December 22, 1951, he certified the
quisition property and to allocate and fix priorities dispute to the Wage Stabilization Board, requesting
for scarce goods. In the Defense Production Act of that the Board investigate the dispute and promptly
1950, Congress granted the powers requested and, report its recommendation as to fair and equitable
in addition, granted power to stabilize prices and terms of settlement. The Union complied with the
wages and to provide for settlement *672 of labor President's *673 request and delayed its threatened
FN19
disputes arising in the defense program. The strike while the dispute was before the Board. After
Defense Production Act was extended in 1951, a a special Board panel had conducted hearings and
Senate Committee noting that in the dislocation submitted a report, the full Wage Stabilization
caused by the programs for purchase of military Board submitted its report and recommendations to
equipment “lies the seed of an economic disaster the President on March 20, 1952.
that might well destroy the military might we are
FN20
straining to build.” Significantly, the Commit- The Board's report was acceptable to the Union but
tee examined the problem “in terms of just one was rejected by plaintiffs. The Union gave notice of
commodity, steel,” and found “a graphic picture of its intention to strike as of 12:01 a.m., April 9,

72 S.Ct. 863 Page 64
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
1952, but bargaining between the parties continued conditions of employment; and
with hope of settlement until the evening of April 8,
1952. After bargaining had failed to avert the ‘Whereas the controversy has not been settled
threatened shutdown of steel production, the Presid- through the processes of collective bargaining or
ent issued the following Executive Order: through the efforts of the Government, including
those of the Wage Stabilization Board, to which the
“Whereas on December 16, 1950, I proclaimed the controversy was referred on December 22, 1951,
existence of a national emergency which requires pursuant to Executive Order No. 10233, and a
that the military, naval, air, and civilian defenses of strike has been called for 12:01 A.M., April 9,
**932 this country be strengthened as speedily as 1952; and
possible to the end that we may be able to repel any
and all threats against our national security and to ‘Whereas a work stoppage would immediately
fulfill our responsibilities in the efforts being made jeopardize and imperil our national defense and the
throughout the United Nations and otherwise to defense of those joined with us in resisting aggres-
bring about a lasting peace; and sion, and would add to the continuing danger of our
soldiers, sailors, and airmen engaged in combat in
‘Whereas American fighting men and fighting men the field; and
of other nations of the United Nations are now en-
gaged in deadly combat with the forces of aggres- ‘Whereas in order to assure the continued availabil-
sion in Korea, and forces of the United States are ity of steel and steel products during the existing
stationed elsewhere overseas for the purpose of par- emergency, it is necessary that the United States
ticipating in the defense of the Atlantic Community take possession of and operate the plants, facilities,
against aggression; and and other property of the said companies as herein-
after provided:
‘Whereas the weapons and other materials needed
by our armed forces and by those joined with us in ‘Now, Therefore, by virtue of the authority vested
the defense of the free world are produced to a in me by the Constitution and laws of the *675
great extent in this country, and steel is an indis- United States, and as President of the United States
pensable component of substantially all of such and Commander in Chief of the armed forces of the
weapons and materials; and United States, it is hereby ordered as follows:
*674 ‘Whereas steel is likewise indispensable to the ‘1. The Secretary of Commerce is hereby author-
carrying out of programs of the Atomic Energy ized and directed to take possession of all or such
Commission of vital importance to our defense ef- of the plants, facilities, and other property of the
forts; and companies named in the list attached hereto, or any
part thereof, as he may deem necessary in the in-
‘Whereas a continuing and uninterrupted supply of terests of national defense; and to operate or to ar-
steel is also indispensable to the maintenance of the range for the operation thereof and to do all things
economy of the United States, upon which our mil- necessary for, or incidental to, such operation * *
FN22
itary strength depends; and *.”
‘Whereas a controversy has arisen between certain

companies in the United States producing and fab- FN22. Exec.Order 10340, 17 Fed.Reg.
ricating steel and the elements thereof and certain 3139 (1952).
of their workers represented by the United Steel
The next morning, April 9, 1952, the President ad-
Workers of America, CIO, regarding terms and
dressed the following Message to Congress:

72 S.Ct. 863 Page 65
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
“To the Congress of the United States: industry for an exorbitant price increase and take
the consequences so far as resulting inflation is
‘The Congress is undoubtedly aware of the recent concerned.
events which have taken **933 place in connection
with the management-labor dispute in the steel in- ‘It may be that the Congress will feel the Govern-
dustry. These events culminated in the action which ment should try to force the steel workers to contin-
was taken last night to provide for temporary opera- ue to work for the steel companies for another long
tion of the steel mills by the Government. period, without a contract, even though the steel
workers have already voluntarily remained at work
‘I took this action with the utmost reluctance. The without a contract for 100 days in an effort to reach
idea of Government operation of the steel mills is an orderly settlement of their differences with man-
thoroughly distasteful to me and I want to see it agement.
ended as soon as possible. However, in the situation
which confronted me yesterday, I felt that I could ‘It may even be that the Congress will feel that we
make no other choice. The other alternatives ap- should permit a shutdown of the steel industry, al-
peared to be even worse-so much worse that I could though that would immediately endanger the safety
not accept them. of our fighting forces abroad and weaken the whole
structure of our national security.
‘One alternative would have been to permit a shut-
down in the steel industry. The effects of such a *677 ‘I do not believe the Congress will favor any
shut-down would have been so immediate and dam- of these courses of action, but that is a matter for
aging with respect to our efforts to support our the Congress to determine.
Armed Forces and to protect our national security
that it made this alternative unthinkable. ‘It may be, on the other hand, that the Congress will
wish to pass legislation establishing specific terms
*676 ‘The only way that I know of, other than Gov- and conditions with reference to the operation of
ernment operation, by which a steel shut-down the steel mills by the Government. Sound legisla-
could have been avoided was to grant the demands tion of this character might be very desirable.
of the steel industry for a large price increase. I be-
lieved and the officials in charge of our stabiliza- ‘On the basis of the facts that are known to me at
tion agencies believed that this would have wrecked this time, I do not believe that immediate congres-
our stabilization program. I was unwilling to accept sional action is essential; but I would, of course, be
the incalculable damage which might be done to glad to cooperate in developing any legislative pro-
our country by following such a course. posals which the Congress may wish to consider.
‘Accordingly, it was my judgment that Government ‘If the Congress does not deem it necessary to act at
operation of the steel mills for a temporary period this time, I shall continue to do all that is within my
was the least undesirable of the courses of action power to keep the steel industry operating and at
which lay open. In the circumstances, I believed it the same time make every effort to bring about a
to be, and now believe it to be, my duty and within settlement of the dispute so the mills can be re-
my powers as President to follow that course of ac- turned to their private owners as soon as possible.”
FN23
tion.
‘It may be that the Congress will deem some other

FN23. Cong.Rec., April 9, 1952, pp.
course to be wiser. It may be that the Congress will
3962-3963.
feel we should give in to the demands of the steel

72 S.Ct. 863 Page 66
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
**934 Twelve days passed without action by Con- ors of the Defense Production Administration, the
gress. On April 21, 1952, the President sent a letter National Production Authority, the General Ser-
to the President of the Senate in which he again devices Administration and the Defense Transport
scribed the purpose and need for his action and Administration were also filed in the District Court.
again stated his position that “The Congress can, if These affidavits disclose an enormous demand for
it wishes, reject the course of action I have fol- steel in such vital defense programs as the expan-
FN24
lowed in this matter.” Congress has not so ac- sion of facilities in atomic energy, petroleum,
ted to this date. power, transportation and industrial production, in-
cluding steel production. Those charged with ad-
FN24. Cong.Rec., April 21, 1952, p. 4192. ministering allocations and priorities swore to the
vital part steel production plays in our economy.
Meanwhile, plaintiffs instituted this action in the
The affidavits emphasize the critical need for steel
District Court to compel defendant to return posses-
in our defense program, *679 the absence of appre-
sion of the steel mills seized under Executive Order
ciable inventories of steel, and the drastic results of
10340. In this litigation for return of plaintiffs'
any interruption in steel production.
properties, we assume that defendant Charles Saw-
yer is not immune from judicial restraint and that One is not here called upon even to consider the
plaintiffs are entitled to equitable relief if we find possibility of executive seizure of a farm, a corner
that the Executive Order *678 under which defend- grocery store or even a single industrial plant. Such
ant acts is unconstitutional. We also assume considerations arise only when one ignores the
without deciding that the courts may go behind a central fact of this case-that the Nation's entire ba-
President'sfinding of fact that an emergency exists. sic steel production would have shut down com-
But there is not the slightest basis for suggesting pletely if there had been no Government seizure.
that the President's finding in this case can be un- Even ignoring for the moment whatever confiden-
dermined. Plaintiffs moved for a preliminary in- tial information the President may possess as “the
junction before answer or hearing. Defendant op- FN25
Nation's organ for foreign affairs,” the uncon-
posed the motion, filing uncontroverted affidavits troverted affidavits in this record amply support the
of Government officials describing the facts under- finding that “a work stoppage would immediately
lying the President's order. jeopardize and imperil our national defense.”
Secretary of Defense Lovett swore that “a work FN25. Chicago & Southern Air Lines v.
stoppage in the steel industry will result immedi- Waterman S.S. Corp., 1948, 333 U.S. 103,
ately in serious curtailment of production of essen- 111, 68 S.Ct. 431, 436, 92 L.Ed. 568, and
tial weapons and munitions of all kinds.” He illus- cases cited.
trated by showing that 84% of the national produc-
tion of certain alloy steel is currently used for pro- Plaintiffs do not remotely suggest any basis for re-
duction of military-end items and that 35% of total jecting the President's finding that any stoppage of
production of another form of steel goes into am- steel production would immediately place the Na-
munition, 80% of such ammunition now going to tion in peril. Moreover, even self-generated doubts
Korea. The Secretary of Defense stated that: “We that any stoppage of steel production constitutes an
are holding the line (in Korea) with ammunition emergency are of little comfort here. The Union
and not with the lives of our troops.” and the plaintiffs bargained for 6 months with over
100 issues in dispute-issues not limited to wage de-
Affidavits of the Chairman of the Atomic Energy mands but including**935 the union shop and other
Commission, the Secretary of the Interior, defend- matters of principle between the parties. At the time
ant as Secretary of Commerce, and the Administrat- of seizure there was not, and there is not now, the

72 S.Ct. 863 Page 67
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
slightest evidence to justify the belief that any clusion * * * that defendant's acts are illegal” be-
strike will be of short duration. The Union and the cause the President's only course in the face of an
steel companies may well engage in a lengthy emergency is to present the matter to Congress and
struggle. Plaintiff's counsel tells us that ‘sooner or await the final passage of legislation which will en-
later’ the mills will operate again. That May satisfy able the Government to cope with threatened dis-
the steel companies and, perhaps, the Union. But aster.
our soldiers and our allies will hardly be cheered
with the assurance that the ammunition upon which Under this view, the President is left powerless at
their lives depend will be forthcoming-‘sooner or the very moment when the need for action may be
later,’ or, in other words, ‘too little and too late.’ most pressing and when no one, other than he, is
immediately *681 capable of action. Under this
*680 Accordingly, if the President has any power view, he is left powerless because a power not ex-
under the Constitution to meet a critical situation in pressly given to Congress is nevertheless found to
the absence of express statutory authorization, there rest exclusively with Congress.
is no basis whatever for criticizing the exercise of
such power in this case. Consideration of this view of executive impotence
calls for further examination of the nature of the
separation of powers under our tripartite system of
II. Government.
The steel mills were seized for a public use. The The Constitution provides:
power of eminent domain, invoked in that case, is
an essential attribute of sovereignty and has long
been recognized as a power of the Federal Govern- Art. I,
ment. Kohl v. United States, 1876, 91 U.S. 367,
“Section 1. “All legislative Powers herein granted
23 L.Ed. 449. Plaintiffs cannot complain that any
shall be vested in a Congress of the United States, *
provision in the Constitution prohibits the exercise
* *.”
of the power of eminent domain in this case. The
Fifth Amendment provides: “nor shall private prop-
erty be taken for public use, without just compensa- Art. II,
tion.” It is no bar to this seizure for, if the taking is
not otherwise unlawful, plaintiffs are assured of re- Section 1. “The executive Power shall be vested in
ceiving the required just compensation. United a President of the United States of America. * * *.”
States v. Pewee Coal Co., 1951, 341 U.S. 114, 71
Section 2. “The President shall be Commander in
S.Ct. 670, 95 L.Ed. 809.
Chief of the Army and Navy of the United States, *
Admitting that the Government could seize the * *”
mills, plaintiffs claim that the implied power of em-
“He shall have Power, by and with the Advice and
inent domain can be exercised only under an Act of
Consent of the Senate, to make Treaties, provided
Congress; under no circumstances, they say, can
two thirds of the Senators present concur; * * *.”
that power be exercised by the President unless he
can point to an express provision in enabling legis- Section 3. “He shall from time to time give to the
lation. This was the view adopted by the District Congress Information of the State of the Union, and
Judge when he granted the preliminary injunction. recommend to their Consideration such Measures
Without an answer, without hearing evidence, he as he shall judge necessary and expedient; * * * he
determined the issue on the basis of his “fixed con- shall take Care that the Laws be faithfully executed,

72 S.Ct. 863 Page 68
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
* * *.' Chief Justice Marshall admonished, that the Consti-

tution is “intended to endure for ages to come, and
consequently, to be adapted to the various crises of
**936 Art. III,
human affairs,” and that “(i)ts means are adequate
FN28
Section 1. “The judicial Power of the United States to its ends.” Cases do arise presenting ques-
shall be vested in one supreme Court, and in such tions which could not have been foreseen by the
inferior Courts as the Congress may from time to Framers. In such cases, the Constitution has been
time ordain and establish.”” treated as a living document adaptable to new situ-
ations. [FN29] *683 But we are not called upon
The whole of the ‘executive Power’ is vested in the today to expand the Constitution to meet a new
President. Before entering office, the President situation. For, in this case, we need only look to
swears that he “will faithfully execute the Office of history and time-honored principles of constitution-
President of the *682 United States, and will to the al law-principles that have been applied consist-
best of (his) Ability, preserve, protect and defend ently by all branches of the Government throughout
the Constitution of the United States.” Art. II, s 1. our history. It is those who assert the invalidity of
the Executive Order who seek to amend the Consti-
This comprehensive grant of the executive power to tution in this case.
a single person was bestowed soon after the country
had thrown the yoke of monarchy. Only by in- FN28. McCulloch v. State of Maryland,
stilling initiative and vigor in all of the three de- 1819, 4 Wheat. 316, 415, 424, 4 L.Ed. 579.
partments of Government, declared Madison, could
FN26 FN29. United States v. Classic, 1941, 313
tyranny in any from be avoided. Hamilton ad-
ded: “Energy in the Executive is a leading character U.S. 299, 315-316, 1037-1038, 61 S.Ct.
in the definition of good government. It is essential 1031, 85 L.Ed. 1368; Home Building &
to the protection of the community against foreign Loan Ass'n v. Blaisdell, 1934, 290 U.S.
attack; it is not less essential to the steady adminis- 398, 442-443, 241-242, 54 S.Ct. 231, 78
tration of the laws; to the protection of property L.Ed. 413.
against those irregular and highhanded combina-
tions which sometimes interrupt the ordinary course III.
of justice; to the security of liberty against the en-
terprises and assaults of ambition, of faction, and of A review of executive action demonstrates that our
FN27
anarchy.” It is thus apparent that the Presid- Presidents have on many occasions exhibited the
ency was deliberately fashioned as an office of leadership contemplated by the Framers when they
power and independence. Of course, the Framers made the President Commander in Chief, and im-
created no autocrat capable of arrogating any power posed upon him the trust to “take Care that the
unto himself at any time. But neither did they create Laws be faithfully executed.” With or without ex-
an automaton impotent to exercise the powers of plicit statutory authorization, Presidents have at
Government at a time when the survival of the Re- such times dealt with national emergencies by act-
public itself may be at stake. ing promptly and resolutely to enforce legislative
programs, at least to save those programs until Con-
FN26. The Federalist, No. XLVIII. gress could act. Congress and the courts have re-
sponded to such executive initiative with consistent
FN27. The Federalist, No. LXX.
approval.
In passing upon the grave constitutional question
Our first President displayed at once the leadership
presented in this case, we must never forget, as

72 S.Ct. 863 Page 69
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
contemplated by the Framers. When the national the contract; but, till this be done, it seems the duty
revenue laws were openly flouted in some sections of the Executive department to execute the contract
FN32
of Pennsylvania, President Washington, without by any means it possesses.”
waiting for a call from the state government,
summoned the militia and took decisive steps
FN32. 10 Annals of Congress 596,
**937 to secure the faithful execution of the laws.
FN30 613-614 (1800); also printed in 5
When international disputes engendered by
Wheat.App. pp. 3, 27 (1820).
the French revolution threatened to involve this
country in war, and while congressional policy re- Efforts in Congress to discredit the President for his
mained undertain, Washington issued his Proclama- FN33
action failed. Almost a century later, this
tion of Neutrality. Hamilton, whose defense of the Court had *685 occasion to give its express approv-
Proclamation *684 has endured the test of time, in- al to “the masterly and conclusive argument of John
voked the argument that the Executive has the duty FN34
Marshall.”
to do that which will preserve peace until Congress
acts and, in addition, pointed to the need for keep- FN33. 10 Annals of Congress 619 (1800).
ing the Nation informed of the requirements of ex-
isting laws and treaties as part of the faithful execu- FN34. Fong Yue Ting v. United States,
FN31 1893, 149 U.S. 698, 714, 13 S.Ct. 1016,
tion of the laws.
1022, 37 L.Ed. 905.
FN30. 4 Annals of Congress 1411, 1413
(1794). Jefferson's initiative in the Louisiana Purchase, the
Monroe Doctrine, and Jackson's removal of Gov-
FN31. IV Works of Hamilton (Lodge ed. ernment deposits from the Bank of the United
1904) 432-444. States further serve to demonstrate by deed what
the Framers described by word when they vested
President John Adams issued a warrant for the ar- the whole of the executive power in the President.
rest of Jonathan Robbins in order to execute the ex-
tradition provisions of a treaty. This action was Without declaration of war, President Lincoln took
challenged in Congress on the ground that no spe- energetic action with the outbreak of the War
cific statute prescribed the method to be used in ex- Between the States. He summoned troops and paid
ecuting the treaty. John Marshall, then a member of them out of the Treasury without appropriation
the House of Representatives, made the following therefor. He proclaimed a naval blockade of the
argument in support of the President's action: Confederacy and seized ships violating that block-
ade. Congress, far from denying the validity of
“The treaty, which is a law, enjoins the perform- these acts, gave them express approval. The most
ance of a particular object. The person who is to striking action of President Lincoln was the Eman-
perform this object is marked out by the Constitu- cipation Proclamation, issued in aid of the success-
tion, since the person is named who conducts the ful prosecution of the War Between the States, but
foreign intercourse, and is to take care that the laws FN35
wholly without statutory authority.
be faithfully executed. The means by which it is to
be performed, the force of the nation, are in the FN35. See The Prize Cases (the Amy War-
hands of this person. Ought not this person to per- wick), 1863, 2 Black 635, 17 L.Ed. 459;
form the object, although the particular mode of us- Randall, Constitutional Problems Under
ing the means has not been prescribed? Congress, Lincoln (1926); Corwin, The President:
unquestionably may prescribe the mode, and Con- Office and Powers (1948 ed.), 277-281.
gress may devolve on others the whole execution of

72 S.Ct. 863 Page 70
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
In an action furnishing a most apt precedent for this State Papers, Claims (1834), 649.
case, President Lincoln without statutory authority Mitchell v. Harmony, 1852, 13 How. 115,
directed the seizure of rail and telegraph lines lead- 134, 14 L.Ed. 75, involving seizure of a
FN36
ing to Washington. Many months later, Con- wagon train by an Army officer during the
gress **938 recognized and confirmed the power of Mexican War, noted that such executive
the President to seize railroads and telegraph lines seizure was proper in case of emergency,
and provided criminal penalties for interference but affirmed a personal judgment against
FN37
with Government operation. This Act did not the officer on the ground that no emer-
confer on the President any additional powers of gency had been found to exist. The judg-
seizure. Congress plainly rejected the view that the ment was paid by the United States pursu-
President's acts had been without legal sanction un- ant to Act of Congress. 10 Stat. 727
til *686 ratified by the legislature. Sponsors of the (1852).
bill declared that its purpose was only to confirm
the power which the President already possessed. “ ‘ Extraordinary and unforeseen occasions arise,
FN38 however, beyond all doubt, in cases of extreme ne-
Opponents insisted a statute authorizing
seizure was unnecessary and might even be con- cessity in time of war or of immediate and impend-
strued as limiting existing Presidential powers. ing public danger, in which private property may be
FN39 impressed into the public service, or may be seized
and appropriated to the public use, or may even be
FN36. War of the Rebellion, Official Re- destroyed without the consent of the owner.”
cords of the Union and Confederate
Armies, Series I, Vol. II, pp. 603-604 “Exigencies of the kind do arise in time of war or
(1880). impending public danger, but it is the emergency,
as was said by a great magistrate, that gives the
FN37. 12 Stat. 334 (1862). right, *687 and it is clear that the emergency must
be shown to exist before the taking can be justified.
FN38. Senator Wade, Cong. Globe, 37th Such a justification may be shown, and when
Cong., 2d Sess. 509 (1862); Rep. Blair, id., shown the rule is well settled that the officer taking
at 548. private property for such a purpose, if the emer-
gency is fully proved, is not a trespasser, and that
FN39. Senators Browning, Fessenden,
the government is bound to make full compensation
Cowan, Grimes, id., at 510, 512, 516, 520. FN41
to the owner.” ”
Other seizures of private property occurred during
the War Between the States, just as they had oc- FN41. 13 Wall. at pages 627-628. Such a
FN40
curred during previous wars. In United States compensable taking was soon distin-
v. Russell, 1872, 13 Wall. 623, 20 L.Ed. 624, three guished from the noncompensable taking
river steamers were seized by Army Quartermasters and destruction of property during the ex-
on the ground of ‘imperative military necessity.’ treme exigencies of a military campaign.
This Court affirmed an award of compensation, United States v. Pacific R. Co., 1887, 120
stating: U.S. 227, 7 S.Ct. 490, 30 L.Ed. 634.
FN40. In 1818, the House Committee on In Re Neagle, 1890, 135 U.S. 1, 10 S.Ct. 658, 34
Military Affairs recommended payment of L.Ed. 55, this Court held that a federal officer had
compensation for vessels seized by the acted in line of duty when he was guarding a
Army during the War of 1812. American Justice of this Court riding circuit. It was conceded

72 S.Ct. 863 Page 71
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
FN45
that there was no specific statute authorizing the tion.
President to assign such a guard. In holding that
such a statute was not necessary, the Court broadly FN43. Rich, The President and Civil Dis-
stated the question as follows: orders (1941), 72-86.
“(The President) is enabled to fulfill the duty of his FN44. Cleveland, The Government in the
great department, expressed in the phrase that “he Chicago Strike of 1894 (1913).
shall take care that the laws be faithfully executed.”
FN45. 26 Cong.Rec. 7281-7284,
‘Is this duty limited to the enforcement of acts of 7544-7546 (1894).
Congress or of treaties of the United States accord-
President Theodore Roosevelt seriously contem-
ing to their express terms, or does it include the
plated seizure of Pennsylvania coal mines if a coal
rights, duties and obligations growing out of the FN46
shortage necessitated such action. In his auto-
Constitution itself, our international relations, and
biography, President Roosevelt expounded the
all the **939 protection implied by the nature of
FN42 ‘Stewardship Theory’ of Presidential power, stating
the government under the Constitution?”
that “the executive is subject only to the people,
and, under the Constitution, bound to serve the
FN42. 135 U.S. at page 64, 10 S.Ct. at people affirmatively in cases where the Constitu-
page 668. tion does not explicitly forbid him to render the ser-
FN47
vice.” Because the contemplated seizure of
The latter approach was emphatically adopted by the coal mines was based on this theory, then ex-
the Court. President Taft criticized President Roosevelt in a
passage in his book relied upon by the District
President Hayes authorized the widespread use of
Court in this case. Taft, Our Chief Magistrate and
federal troops during the Railroad Strike of 1877.
FN43 His Powers (1915), 139-147. In the same book,
President Cleveland also used the troops in
however, President Taft agreed that *689 such
the Pullman Strike *688 of 1895 and his action is of
powers of the President as the duty “to take care
special significance. No statute authorized this ac-
that the laws be faithfully executed” could not be
tion. No call for help had issued from the Governor
confined to ‘express Congressional statutes.’ In re
of Illinois; indeed Governor Altgeld disclaimed the
Neagle, supra, and In re Debs, supra, were cited as
need for supplemental forces. But the President's
conforming with Taft's concept of the office, id., at
concern was that federal laws relating to the free
pp. 88-94, as they were later to be cited with ap-
flow of interstate commerce and the mails be con-
proval in his opinion as Chief Justice in Myers v.
tinuously and faithfully executed without interrup-
FN44 United States, 1926, 272 U.S. 52, 133, 47 S.Ct. 21,
tion. To further this aim his agents sought and FN48
31, 71 L.Ed. 160.
obtained the injunction upheld by this Court in In re
Debs, 1895, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. FN46. Theodore Roosevelt, Autobiography
1092. The Court scrutinized each of the steps taken (1916 ed.), 479-491.
by the President to insure execution of the ‘mass of
legislation’ dealing with commerce and the mails FN47. Id., at 378.
and gave his conduct full approval. Congress like-
wise took note of this use of Presidential power to FN48. Humphrey's Executor v. United
forestall apparent obstacles to the faithful execution States, 1935, 295 U.S. 602, 626, 55 S.Ct.
of the laws. By separate resolutions, both the Sen- 869, 873, 79 L.Ed. 1611, disapproved ex-
ate and the House commended the Executive's ac- pressions in the Myers opinion only to the
extent that they related to the President's

72 S.Ct. 863 Page 72
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
power to remove members of quasi- say that all of the subjects concerning which laws
legislative and judicial commissions as might be made are perforce removed from the pos-
constrasted with executive employees. sibility of Executive influence. The Executive may
act upon things and upon men in many relations
In 1909, President Taft was informed that govern- which have not, though they might have, been actu-
ment owned oil lands were being patented by ally regulated by Congress. In other words, just as
private parties at such a rate that public oil lands there are fields which are peculiar to Congress and
would be depleted in a matter of months. Although fields which are peculiar to the Executive, so there
Congress had explicitly provided that these lands are fields which are common to both, in the sense
were open to purchase by United States citizens, 29 that the Executive may move within them until they
Stat. 526 (1897), the President nevertheless ordered shall have been occupied by legislative action.
the lands withdrawn from sale “(i)n aid of proposed These are not the fields of legislative prerogative,
legislation.” In United States v. Midwest Oil Co., but fields within which the lawmaking power may
1915, 236 U.S. 459, 35 S.Ct. 309, 59 L.Ed. 673, the enter and dominate whenever it chooses. This situ-
President's action was sustained as consistent with ation results from the fact that the President is the
executive practice throughout our history. An ex- active agent, not of Congress, but of the Nation. As
cellent brief was filed in the case by the Solicitor such he performs the duties which the Constitution
General, Mr. John W. Davis, together with Assist- lays upon him immediately, and as such, also, he
ant Attorney General Knaebel, later Reporter for executes the laws and regulations adopted by Con-
this Court. In this brief, the situation confronting gress. He is the agent of the people of the United
President Taft was described as “an emergency; States, deriving all his powers from them and re-
there was no time to wait for the action of Con- sponsible directly to them. In no *691 sense is he
gress.” **940 The brief then discusses the powers the agent of Congress. He obeys and executes the
of the President under the Constitution in such a laws of Congress, not because Congress is en-
case: throned in authority over him, but because the Con-
stitution directs him to do so.
“Ours is a self-sufficient Government within its
sphere. (Ex parte Siebold, 100 U.S. 371, 395 (25 ‘Therefore it follows that in ways short of making
L.Ed. 717); In re Debs, 158 U.S. 564, 578 (15 S.Ct. laws or disobeying them, the Executive may be un-
900, 39 L.Ed. 1092).) “Its means are adequate to its der a grave constitutional duty to act for the nation-
ends” ( McCulloch v. (State of) Maryland, 4 Wheat. al protection in situations not covered by the acts of
316, 424 (4 L.Ed. 579)), *690 and it is rational to Congress, and in which, even, it may not be said
assume that its active forces will be found equal in that his action is the direct expression of any partic-
most things to the emergencies that confront it. ular one of the independent powers which are gran-
While perfect flexibility is not to be expected in a ted to him specifically by the Constitution. In-
Government of divided powers, and while division stances wherein the President has felt and fulfilled
of power is one of the principal features of the Con- such a duty have not been rare in our history,
stitution, it is the plain duty of those who are called though, being for the public benefit and approved
upon to draw the dividing lines to ascertain the es- by all, his acts have seldom been challenged in the
sential, recognize the practical, and avoid a slavish courts. We are able, however, to present a number
formalism which can only serve to ossify the Gov- of apposite cases which were subjected to judicial
ernment and reduce its efficiency without any com- inquiry.”
pensating good. The function of making laws is pe-
culiar to Congress, and the Executive can not exer- The brief then quotes from such cases as In re
cise that function to any degree. But this is not to Debs, supra, and In re Neagle, supra, and continues:

72 S.Ct. 863 Page 73
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
“As we understand the doctrine of the Neagle case, vested in him, completely demonstrate that his is
and the cases therein cited, it is clearly this: The the watchful eye, the active hand, the overseeing
FN49
Executive is authorized to exert the power of the dynamic force of the United States.”
United States when he finds this necessary for the
protection of the agencies, the instrumentalities, or
FN49. Brief for the United States, No. 278,
the property of the Government. This does not
October Term, 1914, pp. 11, 75-77, 88-90.
mean an authority to disregard the wishes of Con-
gress on the subject, when that subject lies within *693 This brief is valuable not alone because of the
its control and when those wishes have been ex- caliber of its authors but because it lays bare in suc-
pressed, and it certainly does not involve the slight- cinct reasoning the basis of the executive practice
est semblance of a power to legislate, much less to which this Court approved in the Midwest Oil case.
‘suspend’**941 legislation already passed by Con-
gress. It involves the performance of specific acts, During World War I, President Wilson established
not of a *692 legislative but purely of an executive a War Labor Board without awaiting specific direc-
FN50
character-acts which are not in themselves laws, but tion by Congress. With William Howard Taft
which presuppose a ‘law’ authorizing him to per- and Frank P. Walsh as co-chairmen, the Board had
form them. This law is not expressed, either in the as its purpose the prevention of strikes and lockouts
Constitution or in the enactments of Congress, but interfering with the production of goods needed to
reason and necessity compel that it be implied from meet the emergency. Effectiveness of War Labor
the exigencies of the situation. Board decision was accomplished by Presidental
FN51
action, including seizure of industrial plants.
‘In none of the cases which we have mentioned, nor Seizure of the Nation's railroads was also ordered
in the cases cited in the extracts taken from the FN52
by President Wilson.
Neagle case, was it possible to say that the action of
the President was directed, expressly or impliedly, FN50. National War Labor Board. Bureau
by Congress. The situations dealt with had never of Labor Statistics, Bull. 287 (1921).
been covered by any act of Congress, and there was
no ground whatever for a contention that the pos- FN51. Id., at 24-25, 32-34. See also, 2 Of-
sibility of their occurrence had ever been specific- ficial U.S. Bull. (1918) No. 412; 8 Baker,
ally considered by the legislative mind. In none of Woodrow Wilson, Life & Letters (1939),
those cases did the action of the President amount 400-402; Berman, Labor Disputes and the
merely to the execution of some specific law. President (1924), 125-153; Pringle, The
Life and Times of William Howard Taft
‘Neither does any of them stand apart in principle (1939), 915-925.
from the case at bar, as involving the exercise of
specific constitutional powers of the President in a FN52. 39 Stat. 619, 645 (1916), 10
degree in which this case does not involve them. U.S.C.A. s 1361, provides that the Presid-
Taken collectively, the provisions of the Constitu- ent may take possession of any system of
tion which designate the President as the official transportation in time of war. Following
who must represent us in foreign relations, in com- seizure of the railroads by President
manding the Army and Navy, in keeping Congress Wilson, Congress enacted detailed legisla-
informed of the state of the Union, in insuring the tion regulating the mode of federal control.
faithful execution of the laws and in recommending 40 Stat. 451 (1918).
new ones, considered in connection with the sweep-
When Congress was considering the statute
ing declaration that the executive power shall be
authorizing the President to seize commu-

72 S.Ct. 863 Page 74
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
nications systems whenever he deemed cupy Iceland. Congress was informed of this action
such action necessary during the war, 40 on the same day that our forces reached Iceland.
FN57
Stat. 904 (1918), 47 U.S.C.A. s 63 note, The occupation of Iceland was but one of ‘at
Senator (later President) Harding opposed least 125 incidents' in our history in which Presid-
on the ground that there was no need for ents, “without Congressinal authorization, and in
such stand-by powers because, in event of the absence of a declaration of war, (have) ordered
a present necessity, the Chief Excutive the Armed Forces to take action or maintain posi-
FN58
‘ought to’ seize communications lines, tions abroad.”
“else he would be unfaithful to his duties
as such Chief Executive.” 56 Cong.Rec. FN57. 87 Cong.Rec. 5868 (1941)
9064 (1918). (Message of the President).
Beginning with the Bank Holiday Proclamation FN58. Powers of the President to Send the
FN53 Armed Forces Outside the United States,
and continuing through World War II, exec-
utive leadership and intiative were characteristic of Report prepared by executive department
President **942 Franklin D. Roosevelt's adminis- for use of joint committee of Senate Com-
tration. In 1939, upon the outbreak *694 of war in mittees on Foreign Relations and Armed
Europe, the President proclaimed a limited national Services, 82d Cong., 1st Sess., Committee
emergency for the purpose of strengthening our na- Print 2 (1951).
FN54
tional defense. By May of 1941, the danger
Some six months before Pearl Harbor, a dispute at a
from the Axis belligerents having become clear, the
single aviation plant at Inglewood, California, inter-
President proclaimed ‘an unlimited national emer-
rupted a segment of the production of military air-
gency’ calling for mobilization of the Nation's de-
FN55 craft. In spite of the comparative insignificance of
fenses to repel aggression. The President took
this work stoppage to total defense production as
the initiative in strengthening our defenses by ac-
contrasted with the complete paralysis now
quiring rights from the British Government to es-
threatened by a shutdown of the entire basic steel
tablish air bases in exchange for overage destroy-
FN56 industry, and even though *695 our armed forces
ers.
were not then engaged in combat, President
FN53. 48 Stat. 1689 (1933). Roosevelt ordered the seizure of the plant “pursuant
to the powers vested in (him) by the Constitution
FN54. 54 Stat. 2643 (1939). and laws of the United States, as President of the
United States of America and Commander in Chief
FN55. 55 Stat. 1647 (1941). FN59
of the Army and Navy of the United States.”
The Attorney General (Jackson) vigorously pro-
FN56. 86 Cong.Rec. 11354 (1940)
claimed that the President had the moral duty to
(Message of the President). See 39
keep this Nation's defense effort a ‘going concern.’
Ops.Atty.Gen. 484 (1940). Attorney Gen-
His ringing moral justification was coupled with a
eral Jackson's opinion did not extend to the
legal justification equally well stated:
transfer of ‘Mosquito boats' solely because
an express statutory prohibition on transfer FN59. Exec. Order 8773, 6 Fed.Reg. 2777
was applicable. (1941).
In 1941, President Roosevelt acted to protect Ice- “The Presidential proclamation rests upon the ag-
land from attack by Axis powers when British gregate of the Presidential powers derived from the
forces were withdrawn by sending our forces to oc- Constitution itself and from statutes enacted by the

72 S.Ct. 863 Page 75
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
FN62
Congress. powers already possessed by the President
and the amendment was opposed as unnecessary
‘The Constitution lays upon the President the duty FN63
since the President already had the power.
“to take care that the laws be faithfully executed.” The amendment relating to plant seizures was not
Among the laws which he is required to find means FN64
approved at that session of Congress.
to execute are those which direct him to equip an
enlarged army, to provide for a strengthened navy, FN61. 87 Cong.Rec. 4932 (1941). See also
to protect Government property, to protect those S. 1600 and S. 2054, 77th Cong., 1st Sess.
who are engaged in carrying out the business of the (1941).
Government, and to carry out the provisions of the
Lend-Lease Act (22 U.S.C.A. s 411 et seq.). For the FN62. Reps. May, Whittington; 87
faithful execution of such laws the President has Cong.Rec. 5895, 5972 (1941).
back of him not only each general law-enforcement
FN63. Reps. Dworshak, Feddis, Harter,
power conferred by the various acts of Congress
Dirksen, Hook; 87 Cong.Rec. 5901, 5910,
but the aggregate of all such laws plus that wide
5974, 5975 (1941).
discretion as to method vested in him by the Consti-
tution for the purpose of executing the laws. FN64. The plant seizure amendment
passed the Senate, but was rejected in the
‘The Constititution also places on the President the
House after a Conference Committee adop-
responsibility and vests in him the powers of Com-
ted the amendment. 87 Cong.Rec. 6424
mander in **943 Chief of the Army and of the
(1941).
Navy. These weapons for the protection of the con-
tinued existence of the Nation are placed in his sole Meanwhile, and also prior to Pearl Harbor, the
command*696 and the implication is clear that he President ordered the seizure of a shipbuilding
should not allow them to become paralyzed by fail- FN65
company and an aircraft parts plant. Follow-
ure to obtain supplies for which Congress has ap- ing the declaration of war, but prior to the Smith-
propriated the money and which it has directed the Connally Act of 1943, five additional industrial
FN60
President to obtain.” concerns were seized to avert interruption*697 of
FN66
needed production. During the same period,
FN60. See 89 Cong.Rec. 3992 (1943). The the President directed seizure of the Nation's coal
Attorney General also noted that the dis- mines to remove an obstruction to the effective pro-
FN67
pute at North American Aviation was secution of the war.
Communist inspired and more nearly re-
FN65. Exec. Order 8868, 6 Fed.Reg. 4349
sembled an insurrection than a labor strike.
(1941); Exec. Order 8928, 6 Fed.Reg. 5559
The relative size of North American Avi-
(1941).
ation and the impact of an interruption in
production upon our defense effort were FN66. Exec. Order 9141, 7 Fed.Reg. 2961
not described. (1942); Exec. Order 9220, 7 Fed.Reg. 6413
At this time, Senator Connally proposed amending
the Selective Service and Training Act to authorize
the President to seize any plant where an interrup-
(1943).
tion of production would unduly impede the de-
FN61
fense effort. Proponents of the measure in no FN67. Exec. Order 9340, 8 Fed.Reg. 5695
way implied that the legislation would add to the (1943).

72 S.Ct. 863 Page 76
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
The procedures adopted by President Roosevelt FN69. 89 Cong.Rec. 3807 (1943). Similar
closely resembled the methods employed by Presid- views of the President's existing power
ent Wilson. A National War Labor Board, like its were expressed by Senators Lucas, Wheel-
predecessor of World War I, was created by Exec- er, Austin and Barkley. Id., at 3885-3887,
utive Order to deal effectively and fairly with dis- 3896, 3992.
FN68
putes affecting defense production. Seizures
were considered necessary, upon disobedience of FN70. 89 Cong.Rec. 3989-3992 (1943).
War Labor Board orders, to assure that the mobiliz-
FN71. S. 796, 78th Cong., 1st Sess., ss 12,
ation effort remained a ‘going concern,’ and to en-
13 (1943), as passed by the House.
force the economic stabilization program.
Following passage of the Smith-Connally Act,
FN68. Exec. Order 9017, 7 Fed.Reg. 237
seizures to assure continued production on the basis
(1942); 1 Termination Report of the Na-
of terms recommended by the War Labor Board
tional War Labor Board 5-11.
were based upon that Act as well as upon the Pres-
At the time of the seizure of the coal mines, Senator ident's power under the Constitution and the laws
Connally's bill to provide a statutory basis for generally. A question did arise as to whether the
seizures and for the War Labor Board was again be- statutory language relating to “any plant, mine, or
fore Congress. As stated by its sponsor, the purpose facility equipped for the manufacture, production,
FN72
of the bill was not to augment Presidential power, or mining of any articles or materials” author-
but to “let the country know that the Congress is ized the seizure of properties of Montgomery Ward
FN69 & Co., a retail department store and mail order con-
squarely behind the President.” As in the case
of the legislative recognition of President Lincoln's cern. The Attorney General (Biddle) issued an
power to seize, Congress again recognized that the opinion that the President possessed the power to
President already had the necessary power, for seize Montgomery Ward properties to prevent a
there was no intention to ‘ratify’ past actions of work stoppage whether or not the terms of the
doubtful validity. Indeed, **944 when Senator Smith-Connally Act authorized such a seizure.
FN73
Tydings offered an amendment to the Connally bill This opinion was in line with *699 the views
expressly to confirm and validate the seizure of the on Presidential powers maintained by the Attorney
FN74
coal mines, sponsors of the bill *698 opposed the General's predecessors (Murphy and Jackson
FN75 FN76
amendment as casting doubt on the legality of the ) and his successor (Clark ). Accord-
FN70 ingly, the President ordered seizure of the Chicago
seizure and the amendment was defeated.
When the Connally bill, S. 796, came before the properties of Montgomery Ward in April, 1944,
House, all parts after the enacting clause were when that company refused to obey a War Labor
stricken and a bill introduced by Representative Board order concerning the bargaining represenat-
FN77
Smith of Virginia was substituted and passed. This ive of its employees in Chicago. In Congress,
action in the House is significant because the Smith a Select Commitee to Investigate Seizure of the
bill did not contain the provisions authorizing Property of Montgomery Ward & Co., assuming
seizure by the President but did contain provisions that the terms of the Smith-Connally Act did not
controlling and regulating activities in respect to cover this seizure, concluded that the seizure “was
properties seized by the Government under statute not only within the Constitutional power but was
FN71 FN78
‘or otherwise.' After a conference, the seizure the plain duty of the President.” Thereafter,
provisions of the Connally bill, enacted as the an election determined the bargaining representat-
Smith-Connally or War Labor Disputes Act of ive for the Chicago employees and the properties
1943, 57 Stat. 163, were agreed to by the House. were returned to Montgomery Ward & Co. In
December, 1944, after continued defiance of a

72 S.Ct. 863 Page 77
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
series of War Labor Board orders, President to repel aggression by employing our armed forces
FN81
Roosevelt ordered the seizure of Montgomery Ward in Korea. Upon the intervention of the
FN79
properties throughout the country. The Court Chinese Communists, the President proclaimed the
of Appeals for the Seventh Circuit upheld this existence of an unlimited national emergency re-
seizure on statutory grounds and also indicated its quiring the speedy build-up of our defense estab-
FN82
disapproval of a lower court's denial of seizure lishment. Congress responded by providing
FN80
power apart from express statute. for increased manpower and weapons for our own
armed forces, by increasing military aid under the
FN72. 57 Stat. 163, 164 (1943). Mutual Security Program and by enacting economic
stabilization measures, as previously described.
FN73. 40 Ops.Atty.Gen. 312 (1944). See
also Hearings before House Select Com- FN81. United States Policy in the Korean
mittee to Investigate Seizure of Mont- Crisis (1950), Dept. of State Pub. 3922.
gomery Ward & Co., 78th Cong., 2d Sess.
117-132 (1944). FN82. 15 Fed.Reg. 9029 (1950).
FN74. 39 Ops.Atty.Gen. 343, 347 (1939). This is but a cursory summary of executive leader-
ship. But it amply demonstrates that Presidents
FN75. Note 60, supra. have taken prompt action to enforce the laws and
protect the country whether or not Congress
FN76. Letter introduced in Hearings before
happened to provide in advance for the particular
Senate Committee on Labor and Public
method of execution. At the minimum, the execut-
Welfare on S. 249, 81st Cong., 1st Sess.
ive actions reviewed herein sustain the action of the
232 (1949) pointing to the ‘exceedingly
President in this case. And many of the cited ex-
great’ powers of the President to deal with
amples of Presidential practice go far beyond the
emergencies even before the Korea crisis.
extent of power necessary to sustain the President's
FN77. Exec. Order 9438, 9 Fed.Reg. 4459 order to seize the steel mills. The fact that tempor-
(1944). ary executive seizures of industrial plants to meet
an emergency have not been directly tested in this
FN78. H.R.Rep. No. 1904, 78th Cong., 2d Court furnishes not the slightest suggestion that
Sess. 25 (1944) (the Committee divided such actions have been illegal. Rather, the fact that
along party lines). Congress and the courts have consistently recog-
nized and given their support to such executive ac-
FN79. Exec. Order 9508, 9 Fed.Reg. tion indicates that such a power of seizure has been
15079 (1944). accepted throughout our history.
FN80. United States v. Montgomery Ward History bears out the genius of the Founding Fath-
& Co., 7 Cir., 1945, 150 F.2d 369, revers- ers, who created a Government subject to law but
ing D.C.N.D.Ill.1945, 58 F.Supp. 408. See not left subject to inertia when vigor and initiative
also Ken-Rad Tube & Lamp Corp. v. are required.
Badeau, D.C.W.D. Ky.1944, 55 F.Supp.
193, 197-199, where the court held that a
seizure was proper with or without express *701 IV.
statutory authorization.
Focusing now on the situation confronting the Pres-
**945 *700 More recently, President Truman acted ident on the night of April 8, 1952, we cannot but
conclude that the President was performing his duty

72 S.Ct. 863 Page 78
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
under the Constitution to “take Care that the Laws situations is a matter of practical necessity. This
be faithfully executed'-a duty described by Presid- practical construction of the ‘Take Care’ clause, ad-
ent Benjamin Harrison as “the central idea of the vocated by John Marshall, was adopted by this
FN83
office.” ” Court in In re Neagle, In re Debs and other cases
cited supra. See also Ex parte Quirin, 1942, 317
FN83. Harrison, This Country of Ours U.S. 1, 26, 63 S.Ct. 2, 10, 87 L.Ed. 3. Although
(1897), 98. more restrictive views of executive power, advoc-
ated in dissenting opinions of Justices Holmes,
The President reported to Congress the morning
McReynolds and Brandeis, were emphatically re-
after the seizure that he acted because a work stop-
jected by this Court in Myers v. United States,
page in steel production would immediately imperil
supra, members of today's majority treat these dis-
the safety of the Nation by preventing execution of
senting views as authoritative.
the legislative programs for procurement of military
equipment. And, while a shutdown could be averted There is no statute prohibiting seizure as a method
by granting the price concessions requested by of enforcing legislative programs. Congress has in
plaintiffs, granting such concessions would disrupt no wise indicated that its legislation is not to be ex-
the price stabilization program also enacted by ecuted by the taking of private property (subject of
Congress. Rather than fail to execute either legislat- course to the payment of just compensation) if its
ive program, the President acted to execute both. legislation cannot otherwise be executed. Indeed,
the Universal Military Training and Service Act au-
Much of the argument in this case has been directed
thorizes the seizure of any plant that fails to fill a
at straw men. We do not now have before us the FN84
Government contract or the properties of any
case of a President acting solely on the basis of his
steel producer that fails to allocate steel as directed
own notions of the public welfare. Nor is there any FN85
for defense production. And the Defense Pro-
question of unlimited executive power in this case.
duction Act authorizes the President to requisition
The President himself closed the door to any such
equipment and condemn real property needed
claim when he sent his Message to Congress stating FN86
without delay in the defense effort. Where
his purpose to abide by any action of Congress,
Congress authorizes seizure in instances not neces-
whether approving or disapproving his seizure ac-
sarily crucial to the defense *703 program, it can
tion. Here, the President immediately made sure
hardly be said to have disclosed an intention to pro-
that Congress was fully informed of the temporary
hibit seizures where essential to the execution of
action he had taken only to preserve the legislative
that legislative program.
programs from destruction until Congress could act.
FN84. 62 Stat. 604, 626 (1948), 50
The absence of a specific statute authorizing
U.S.C.App. (Supp. IV) s 468(c), 50
seizure of the steel mills as a mode of executing the
U.S.C.A.Appendix, s 468(c).
laws-both the military procurement program and
the anti-inflation program-has not until today been FN85. 62 Stat. 604, 627 (1948), 50
thought to prevent *702 the President from execut- U.S.C.App. (Supp. IV) s 468(h)(1), 50
ing the laws. Unlike an administrative commission U.S.C.A.Appendix, s 468(h)(1).
confined to the enforcement of the statute under
which it was created, or the head to a department FN86. Tit. II, 64 Stat. 798 (1950), as
when administering a particular statute, the **946 amended 65 Stat. 138 (1951), 50
President is a constitutional officer charged with U.S.C.A.Appendix, s 2081.
taking care that a ‘mass of legislation’ be executed.
Flexibility as to mode of execution to meet critical Whatever the extent of Presidential power on more

72 S.Ct. 863 Page 79
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
tranquil occasions, and whatever the right of the FN87. Home Building & Loan Ass'n v.
President to execute legislative programs as he sees Blaisdell, 1934, 290 U.S. 398, 425-426, 54
fit without reporting the mode of execution to Con- S.Ct. 231, 235, 78 L.Ed. 413.
gress, the single Presidential purpose disclosed on
this record is to faithfully execute the laws by act-
V.
ing in an emergency to maintain the status quo,
thereby preventing collapse of the legislative pro- Plaintiffs place their primary emphasis on the Labor
grams until Congress could act. The President's ac- Management Relations Act of 1947, hereinafter re-
tion served the same purposes as a judicial stay ferred to as the Taft-Hartley Act, but do not con-
entered to maintain the status quo in order to pre- tend that that Act contains any provision prohibit-
serve the jurisdiction of a court. In his Message to ing seizure.
Congress immediately following the seizure, the
President explained the necessity of his action in Under the Taft-Hartley Act, as under the Wagner
executing the military procurement and anti-in- Act, collective bargaining and the right to strike are
flation legislative programs and expressed his de- at the heart of our national labor policy. Taft-
sire to cooperate with any legislative proposals ap- Hartley preserves the right to strike in any emer-
proving, regulating or rejecting the seizure of the gency, however serious, subject only to an 80-day
steel mills. Consequently, there is no evidence delay in cases of strikes imperiling the national
FN88
whatever of any Presidential purpose to defy Con- health and safety. In such a case, the President
gress or act in any way inconsistent with the legis- may appoint a board of inquiry to report the facts of
lative will. the labor dispute. Upon receiving that report, the
President may direct the Attorney General to peti-
In United States v. Midwest Oil Co., supra, this tion a District Court to enjoin the strike. If the in-
Court approved executive action where, as here, the junction is granted, it may continue in effect for no
President acted to preserve an important matter un- more than 80 days, during which time the board of
til Congress could act-even though his action in that inquiry makes further report and efforts are made to
case was contrary to an express statute. In this case, settle the dispute. When the injunction is dissolved,
there is no statute prohibiting the action taken by the President is directed to submit a report to Con-
the President in a matter not merely important but FN89
gress together with his recommendations.
threatening the very safety of the Nation. Executive
inaction in such a situation, courting national dis- FN88. See Amalgamated Ass'n of Street,
aster, is foreign to the concept of energy and initiat- Electric Railway & Motor Coach Employ-
ive in the Executive as created by the Founding ees v. Wisconsin Board, 1951, 340 U.S.
Fathers. The Constitution was itself “adopted in a 383, 71 S.Ct. 359, 95 L.Ed. 364.
period of grave emergency. * * * While emergency
does not create power, emergency may furnish FN89. ss 206-210, Labor Management Re-
FN87 lations Act of 1947. 29 U.S.C. (Supp. IV)
*704 the occasion for the exercise of power.”
The Framers knew, as we should know in these ss 176-180, 29 U.S.C.A. ss 176-180.
times of peril, that there is real danger in Executive
Enacted after World War II, Taft-Hartley restricts
weakness. There is no cause to fear Executive
the right to strike against private employers only to
tyranny so long as the laws **947 of Congress are
a limited*705 extent and for the sole purpose of af-
being faithfully executed. Certainly there is no
fording an additional period of time within which to
basis for fear of dictatorship when the Executive
settle the dispute. Taft-Hartley in no way curbs
acts, as he did in this case, only to save the situation
strikes before an injunction can be obtained and
until Congress could act.
after an 80-day injunction is dissolved.

72 S.Ct. 863 Page 80
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
Plaintiffs admit that the emergency procedures of tion Act, also to deal with labor disputes affecting
FN92
Taft-Hartley are not mandatory. Nevertheless, the defense **948 program. When extension
plaintiffs apparently argue that, since Congress did of the Defense Production Act was before Congress
provide the 80-day injunction method for dealing in 1951, the Chairman of the Wage Stabilization
with emergency strikes, the President cannot claim Board described in detail the relationship between
that an emergency exists until the procedures of the Taft-Hartley procedures applicable to labor dis-
Taft-Hartley have been exhausted. This argument putes imperiling the national health and safety and
was not the basis of the District Court's opinion the new WSB dispute procedures especially devised
and, whatever merit the argument might have had for settlement of labor disputes growing out of the
FN93
following the enactment of Taft-Hartley, it loses all needs of the defense program. Aware that a
force when viewed in light of the statutory pattern technique separate from Taft-Hartley had been de-
confronting the President in this case. vised, members of Congress attempted to divest the
WSB of its disputes powers. These attempts were
In Title V of the Defense Production Act of 1950, defeated in the House, were not brought to a vote in
FN90
Congress stated: the Senate and the Defense Production Act was ex-
tended through June 30, 1952, without change in
FN90. 64 Stat. 812, 65 Stat. 132 (1950, FN94
the disputes powers of the WSB. *707 Cer-
1951).
tainly this legislative creation of a new procedure
“It is the intent of Congress, in order to provide for for dealing with defense disputes negatives any no-
effective price and wage stabilization pursuant to tion that Congress intended the earlier and discre-
title IV of this Act and to maintain uninterrupted tionary Taft-Hartley procedure to be an exclusive
production, that there be effective procedures for procedure.
the settlement of labor disputes affecting national
FN92. Exec. Order 10161, 15 Fed.Reg.
defense.” s 501.
6105 (1950), as amended, Exec. Order
Title V authorized the President to initiate labor-
10233, 16 Fed.Reg. 3503 (1951), 50
management conferences and to take action appro-
U.S.C.A.Appendix, s 2071 note.
priate to carrying out the recommendations of such
conferences and the provisions of Title V. s 502. FN93. Hearings before the House Commit-
Due regard is to be given to collective bargaining tee on Banking and Currency on Defense
practice and stabilization policies and no action Production Act Amendments of 1951, 82d
taken is to be inconsistent with Taft-Hartley and Cong., 1st Sess. 305-306, 312-313 (1951).
other laws. s 503. The purpose of these provisions
was to authorize the President “to establish a board, FN94. The Lucas Amendment to abolish
commission or other agency, similar*706 to the the disputes function of the WSB was de-
War Labor Board of World War II, to carry out the bated at length in the House, the sponsor of
FN91
title.” the amendment pointing out the similarity
of the WSB functions to those of the War
FN91. H.R.Rep. No. 3042, 81st Cong., 2d Labor Board and noting the seizures that
Sess. 35 (1950) (Conference Report). See occurred when War Labor Board orders
also S.Rep. No. 2250, 81st Cong., 2d Sess. were not obeyed. 97 Cong. 8390-8415. The
41 (1950). amendment was rejected by a vote of 217
to 113. Id., at 8415. A similar amendment
The President authorized the Wage Stabilization
introduced in the Senate was withdrawn.
Board (WSB), which administers the wage stabiliz-
97 Cong.Rec. 7373-7374. The Defense
ation functions of Title IV of the Defense Produc-
Production Act was extended without

72 S.Ct. 863 Page 81
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
amending Tit. V or otherwise affecting the with immediate national peril through stoppage in
disputes functions of the WSB. 65 Stat. steel production on the one hand and faced with de-
132 (1951). struction of the wage and price legislative programs
on the other, the President took temporary posses-
Accordingly, as of December 22, 1951, the Presid- sion of the steel mills as the only course **949
ent had a choice between alternate procedures for open to him consistent with his duty to take care
settling the threatened strike in the steel mills: one that the laws be faithfully executed.
route created to deal with peacetime disputes; the
other route specially created to deal with disputes Plaintiffs' property was taken and placed in the pos-
growing out of the defense and stabilization pro- session of the Secretary of Commerce to prevent
gram. There is no question of by-passing a statutory any interruption in steel production. It made no dif-
procedure because both of the routes available to ference whether the stoppage was caused by a uni-
the President in December were based upon stat- on-management dispute over terms and conditions
utory authorization. Both routes were available in of employment, a union-Government dispute over
the steel dispute. The Union, by refusing to abide wage stabilization or a management-Government
by the defense and stabilization program, could dispute over price stabilization. The President's ac-
have forced the President to invoke Taft-Hartley at tion has thus far been effective, not in settling the
that time to delay the strike a maximum of 80 days. dispute, but in saving the various legislative pro-
Instead, the Union agreed to cooperate with the de- grams at stake from destruction until Congress
fense program and submit the dispute to the Wage could act in the matter.
Stabilization Board.
Plaintiffs had no objection whatever at that time to VI.

the President's choice of the WSB route. As a res-
The diversity of views expressed in the six opinions
ult, the strike was postponed, a WSB panel held
of the majority, the lack of reference to authoritat-
hearings and reported the position of the parties and
ive precedent, the repeated reliance upon prior dis-
the WSB recommended the terms of a settlement
senting opinions, the complete disregard of the un-
which it found were fair and equitable. Moreover,
controverted facts showing the gravity of the emer-
the WSB performed a function which the board of
gency and the temporary nature of the taking all
inquiry contemplated by Taft-Hartley could not
serve to demonstrate how far afield one must go to
have accomplished when it checked the recommen-
affirm the order of the District Court.
ded wage settlement against its own wage stabiliza-
tion regulations issued pursuant to its stabilization The broad executive power granted by Article II to
functions under Title IV of the Defense Production an officer on duty 365 days a year cannot, it is said,
Act. Thereafter, the parties bargained on the basis be invoked to avert disaster. Instead, the President
of the WSB recommendation. must confine himself to sending a message to Con-
gress recommending action. Under this messenger-
When the President acted on April 8, he had ex-
boy concept of *709 the Office, the President can-
hausted the procedures for settlement available to
not even act to preserve legislative programs from
him. Taft-Hartley was a route parallel to, not con-
destruction so that Congress will have something
nected with, the WSB procedure. The strike had
left to act upon. There is no judicial finding that the
been delayed 99 *708 days as contrasted with the
executive action was unwarranted because there
maximum delay of 80 days under Taft-Hartley.
was in fact no basis for the President's finding of
There had been a hearing on the issues in dispute FN95
the existence of an emergency for, under this
and bargaining which promised settlement up to the
view, the gravity of the emergency and the immedi-
very hour before seizure had broken down. Faced

72 S.Ct. 863 Page 82
(Cite as: 343 U.S. 579, 72 S.Ct. 863)
acy of the threatened disaster are considered irrel- the contrary, judicial, legislative and executive pre-
evant as a matter of law. cedents throughout our history demonstrate that in
this case the President acted in full conformity with
FN95. Compare Sterling v. Constantin, his duties under the Constitution. Accordingly, we
1932, 287 U.S. 378, 399-401, 53 S.Ct. 190, would reverse the order of the District Court.
195-196, 77 L.Ed. 375.
U.S. 1952
Seizure of plaintiffs' property is not a pleasant un- Youngstown Sheet & Tube Co. v. Sawyer
dertaking. Similarly unpleasant to a free country are 343 U.S. 579, 72 S.Ct. 863, 30 L.R.R.M. (BNA)
the draft which disrupts the home and military pro- 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153, 62 Ohio
curement which causes economic dislocation and Law Abs. 417, 62 Ohio Law Abs. 473, 47 O.O.
compels adoption of price controls, wage stabiliza- 430, 47 O.O. 460, 21 Lab.Cas. P 67,008
tion and allocation of materials. The President in-
formed Congress that even a temporary Govern- END OF DOCUMENT
ment 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 ex-
ecute 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 re-
quired 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 stop-
page in steel production would have on those pro-
grams, the President acted to preserve those pro-
grams by seizing the steel mills. *710 There is no
question that the possession was other than tempor-
ary in character and subject to congressional direc-
tion-either approving, disapproving or regulating
the manner in which the mills were to be admin-
istered and returned to the owners. The President
immediately informed Congress of his action and
clearly stated his intention to abide by the legislat-
ive will. No basis for claims of arbitrary action, un-
limited powers or dictatorial usurpation of congres-
sional power appears from the facts of this case. On

Youngstown Co. v. Sawyer Sec. of Comm. 343 U.S. 579

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92k975 k. In general. Most Cited

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Power [6] Constitutional Law 92 2621

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231Hk961 k. Power to regulate. Most 92XX Separation of Powers

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FN1. This Board was established under

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found to be contrary to the policy of Con- he declared:

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U.S.C.A.Appendix, s 2081. For the latitude trinaire textualism.

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this Court in Amalgamated Association of properties involved here. Section 18 of the

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ter of August 8, 1793, 3 Johnston, Correspondence **900 *615

In reaching the conclusion that conscience compels,

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