Youngstown Sheet & Tube Co. v. Sawyer

Argued May 12-13, 1952

Decided June 2, 1952 *

343 U.S. 579

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus



To avert a nationwide strike of steel workers in April 1952, which he

believed would jeopardize national defense, the President issued an

Executive Order directing the Secretary of Commerce to seize and operate

most of the steel mills.  The Order was not based upon any specific

statutory authority, but was based generally upon all powers vested in

the President by the Constitution and laws of the United States and as

President of the United States and Commander in Chief of the Armed

Forces.  The Secretary issued an order seizing the steel mills and

directing their presidents to operate them as operating managers for the

United States in accordance with his regulations and directions.  The

President promptly reported these events to Congress; but Congress took

no action.  It had provided other methods of dealing with such

situations, and had refused to authorize governmental seizures of

property to settle labor disputes.  The steel companies sued the

Secretary in a Federal District Court, praying for a declaratory

judgment and injunctive relief.  The District Court issued a preliminary

injunction, which the Court of Appeals stayed.



Held:



1. Although this case has proceeded no further than the preliminary

injunction stage, it is ripe for determination of the constitutional

validity of the Executive Order on the record presented.



(a) Under prior decisions of this Court, there is doubt as to the right

to recover in the Court of Claims on account of properties unlawfully

taken by government officials for public use.



(b) Seizure and governmental operation of these going businesses were

bound to result in many present and future damages of such nature as to

be difficult, if not incapable, of measurement.   [343 U.S. 580]



2. The Executive Order was not authorized by the Constitution or laws of

the United States, and it cannot stand.



(a) There is no statute which expressly or impliedly authorizes the

President to take possession of this property as he did here.



(b) In its consideration of the Taft-Hartley Act in 1947, Congress

refused to authorize governmental seizures of property as a method of

preventing work stoppages and settling labor disputes.



(c) Authority of the President to issue such an order in the

circumstances of this case cannot be implied from the aggregate of his

powers under Article II of the Constitution.



(d) The Order cannot properly be sustained as an exercise of the

President's military power as Commander in Chief of the Armed Forces.



(e) Nor can the Order be sustained because of the several provisions of

Article II which grant executive power to the President.



(f) The power here sought to be exercised is the lawmaking power, which

the Constitution vests in the Congress alone, in both good and bad

times.



(g) Even if it be true that other Presidents have taken possession of

private business enterprises without congressional authority in order to

settle labor disputes, Congress has not thereby lost its exclusive

constitutional authority to make the laws necessary and proper to carry

out all powers vested by the Constitution "in the Government of the

United States, or any Department or Officer thereof."



103 F.Supp. 569, affirmed.



For concurring opinion of MR. JUSTICE FRANKFURTER, see post,



For concurring opinion of MR. JUSTICE DOUGLAS, see post,



For concurring opinion of MR. JUSTICE JACKSON, see post,



For concurring opinion of MR. JUSTICE BURTON, see post,



For opinion of MR. JUSTICE CLARK, concurring in the judgment of the

Court, see post,



For dissenting opinion of MR. CHIEF JUSTICE VINSON, joined by MR.

JUSTICE REED and MR. JUSTICE MINTON, see post,



The District Court issued a preliminary injunction restraining the

Secretary of Commerce from carrying out the terms of Executive Order No.

10340, 16 Fed.Reg. [343 U.S. 581] 3503. 103 F.Supp. 569.  The Court of

Appeals issued a stay.  90 U.S.App.D.C. ___, 197 F.2d 582.  This Court

granted certiorari.  343 U.S. 937.  The judgment of the District Court

is affirmed,  [343 U.S. 582] BLACK, J., lead opinion



MR. JUSTICE BLACK delivered the opinion of the Court.



We are asked to decide whether the President was acting within his

constitutional power when he issued an order directing the Secretary of

Commerce to take possession of and operate most of the Nation's steel

mills.  The mill owners argue that the President's order amounts to

lawmaking, a legislative function which the Constitution has expressly

confided to the Congress, and not to the President.  The Government's

position is that the order was made on findings of the President that

his action was necessary to avert a national catastrophe which would

inevitably result from a stoppage of steel production, and that, in

meeting this grave emergency, the President was acting within the

aggregate of his constitutional powers as the Nation's Chief Executive

and the Commander in Chief of the Armed Forces of the United States. 

The issue emerges here from the following series of events:



In the latter part of 1951, a dispute arose between the steel companies

and their employees over terms and conditions that should be included in

new collective bargaining agreements.  Long-continued conferences failed

to resolve the dispute.  On December 18, 1951, the employees'

representative, United Steelworkers of America, CIO, gave notice of an

intention to strike when the existing bargaining agreements expired on

December 31. The Federal Mediation and Conciliation Service then

intervened in an effort to get labor and management to agree. This

failing, the President on December 22, 1951, referred the dispute to the

Federal Wage Stabilization [343 U.S. 583] Board to investigate and make

recommendations for fair and equitable terms of settlement.  This

Board's report resulted in no settlement.  On April 4, 1952, the Union

gave notice of a nationwide strike called to begin at 12:01 a.m. April

9.  The indispensability of steel as a component of substantially all

weapons and other war materials led the President to believe that the

proposed work stoppage would immediately jeopardize our national defense

and that governmental seizure of the steel mills was necessary in order

to assure the continued availability of steel.  Reciting these

considerations for his action, the President, a few hours before the

strike was to begin, issued Executive Order 10340, a copy of which is

attached as an appendix, post,   The order directed the Secretary of

Commerce to take possession of most of the steel mills and keep them

running.  The Secretary immediately issued his own possessory orders,

calling upon the presidents of the various seized companies to serve as

operating managers for the United States.  They were directed to carry

on their activities in accordance with regulations and directions of the

Secretary.  The next morning the President sent a message to Congress

reporting his action.  Cong.Rec. April 9, 1952, p. 3962.  Twelve days

later, he sent a second message.  Cong.Rec. April 21, 1952, p. 4192. 

Congress has taken no action.



Obeying the Secretary's orders under protest, the companies brought

proceedings against him in the District Court.  Their complaints charged

that the seizure was not authorized by an act of Congress or by any

constitutional provisions.  The District Court was asked to declare the

orders of the President and the Secretary invalid and to issue

preliminary and permanent injunctions restraining their enforcement. 

Opposing the motion for preliminary [343 U.S. 584] injunction, the

United States asserted that a strike disrupting steel production for

even a brief period would so endanger the wellbeing and safety of the

Nation that the President had "inherent power" to do what he had done --

power "supported by the Constitution, by historical precedent, and by

court decisions."  The Government also contended that, in any event, no

preliminary injunction should be issued, because the companies had made

no showing that their available legal remedies were inadequate or that

their injuries from seizure would be irreparable.  Holding against the

Government on all points, the District Court, on April 30, issued a

preliminary injunction restraining the Secretary from "continuing the

seizure and possession of the plants . . . and from acting under the

purported authority of Executive Order No. 10340."  103 F.Supp. 569.  On

the same day, the Court of Appeals stayed the District Court's

injunction.  90 U.S.App.D.C. ___, 197 F.2d 582.  Deeming it best that

the issues raised be promptly decided by this Court, we granted

certiorari on May 3 and set the cause for argument on May 12.  343 U.S.

937.



Two crucial issues have developed:  First.  Should final determination

of the constitutional validity of the President's order be made in this

case which has proceeded no further than the preliminary injunction

stage?  Second.  If so, is the seizure order within the constitutional

power of the President? I



It is urged that there were nonconstitutional grounds upon which the

District Court could have denied the preliminary injunction, and thus

have followed the customary judicial practice of declining to reach and

decide constitutional questions until compelled to do so.  On this

basis, it is argued that equity's extraordinary injunctive relief should

have been denied because (a) seizure of the companies' properties did

not inflict irreparable damages, [343 U.S. 585] and (b) there were

available legal remedies adequate to afford compensation for any

possible damages which they might suffer.  While separately argued by

the Government, these two contentions are here closely related, if not

identical.  Arguments as to both rest in large part on the Government's

claim that, should the seizure ultimately be held unlawful, the

companies could recover full compensation in the Court of Claims for the

unlawful taking.  Prior cases in this Court have cast doubt on the right

to recover in the Court of Claims on account of properties unlawfully

taken by government officials for public use as these properties were

alleged to have been.  See e.g., Hooe v. United States, 218 U.S. 322,

335-336; United States v. North American Co., 253 U.S. 330, 333.  But

see Larson v. Domestic & Foreign Corp., 337 U.S. 682, 701-702. 

Moreover, seizure and governmental operation of these going businesses

were bound to result in many present and future damages of such nature

as to be difficult, if not incapable, of measurement.  Viewing the case

this way, and in the light of the facts presented, the District Court

saw no reason for delaying decision of the constitutional validity of

the orders.  We agree with the District Court, and can see no reason why

that question was not ripe for determination on the record presented. 

We shall therefore consider and determine that question now. II



The President's power, if any, to issue the order must stem either from

an act of Congress or from the Constitution itself.  There is no statute

that expressly authorizes the President to take possession of property

as he did here.  Nor is there any act of Congress to which our attention

has been directed from which such a power can fairly be implied. 

Indeed, we do not understand the Government to rely on statutory

authorization for this seizure.  There are two statutes which do

authorize the President [343 U.S. 586] to take both personal and real

property under certain conditions.  However, the Government admits that

these conditions were not met, and that the President's order was not

rooted in either of the statutes.  The Government refers to the seizure

provisions of one of these statutes ( 201(b) of the Defense Production

Act) as "much too cumbersome, involved, and time-consuming for the

crisis which was at hand."



Moreover, the use of the seizure technique to solve labor disputes in

order to prevent work stoppages was not only unauthorized by any

congressional enactment; prior to this controversy, Congress had refused

to adopt that method of settling labor disputes.  When the Taft-Hartley

Act was under consideration in 1947, Congress rejected an amendment

which would have authorized such governmental seizures in cases of

emergency.  Apparently it was thought that the technique of seizure,

like that of compulsory arbitration, would interfere with the process of

collective bargaining.  Consequently, the plan Congress adopted in that

Act did not provide for seizure under any circumstances.  Instead, the

plan sought to bring about settlements by use of the customary devices

of mediation, conciliation, investigation by boards of inquiry, and

public reports.  In some instances, temporary injunctions were

authorized to provide cooling-off periods.  All this failing, unions

were left free to strike after a secret vote by employees as to whether

they wished to accept their employers' final settlement offer. [343 U.S.

587]



It is clear that, if the President had authority to issue the order he

did, it must be found in some provision of the Constitution.  And it is

not claimed that express constitutional language grants this power to

the President.  The contention is that presidential power should be

implied from the aggregate of his powers under the Constitution. 

Particular reliance is placed on provisions in Article II which say that

"The executive Power shall be vested in a President . . ."; that "he

shall take Care that the Laws be faithfully executed", and that he

"shall be Commander in Chief of the Army and Navy of the United States."



The order cannot properly be sustained as an exercise of the President's

military power as Commander in Chief of the Armed Forces.  The

Government attempts to do so by citing a number of cases upholding broad

powers in military commanders engaged in day-to-day fighting in a

theater of war.  Such cases need not concern us here.  Even though

"theater of war" be an expanding concept, we cannot with faithfulness to

our constitutional system hold that the Commander in Chief of the Armed

Forces has the ultimate power as such to take possession of private

property in order to keep labor disputes from stopping production.  This

is a job for the Nation's lawmakers, not for its military authorities.



Nor can the seizure order be sustained because of the several

constitutional provisions that grant executive power to the President. 

In the framework of our Constitution, the President's power to see that

the laws are faithfully executed refutes the idea that he is to be a

lawmaker.  The Constitution limits his functions in the lawmaking

process to the recommending of laws he thinks wise and the vetoing of

laws he thinks bad.  And the Constitution is neither silent nor

equivocal about who shall make laws which the President is to execute. 

The [343 U.S. 588] first section of the first article says that "All

legislative Powers herein granted shall be vested in a Congress of the

United States. . . ."  After granting many powers to the Congress,

Article I goes on to provide that Congress may make all Laws which shall

be necessary and proper for carrying into Execution the foregoing

Powers, and all other Powers vested by this Constitution in the

Government of the United States, or in any Department or Officer

thereof.



The President's order does not direct that a congressional policy be

executed in a manner prescribed by Congress -- it directs that a

presidential policy be executed in a manner prescribed by the President.

 The preamble of the order itself, like that of many statutes, sets out

reasons why the President believes certain policies should be adopted,

proclaims these policies as rules of conduct to be followed, and again,

like a statute, authorizes a government official to promulgate

additional rules and regulations consistent with the policy proclaimed

and needed to carry that policy into execution.  The power of Congress

to adopt such public policies as those proclaimed by the order is beyond

question.  It can authorize the taking of private property for public

use.  It can make laws regulating the relationships between employers

and employees, prescribing rules designed to settle labor disputes, and

fixing wages and working conditions in certain fields of our economy. 

The Constitution does not subject this lawmaking power of Congress to

presidential or military supervision or control.



It is said that other Presidents, without congressional authority, have

taken possession of private business enterprises in order to settle

labor disputes.  But even if this be true, Congress has not thereby lost

its exclusive constitutional authority to make laws necessary and proper

to carry out the powers vested by the Constitution [343 U.S. 589] "in

the Government of the United States, or any Department or Officer

thereof."



The Founders of this Nation entrusted the lawmaking power to the

Congress alone in both good and bad times.  It would do no good to

recall the historical events, the fears of power, and the hopes for

freedom that lay behind their choice.  Such a review would but confirm

our holding that this seizure order cannot stand.



The judgment of the District Court is



Affirmed. FRANKFURTER, J., statement



MR. JUSTICE FRANKFURTER.



Although the considerations relevant to the legal enforcement of the

principle of separation of powers seem to me more complicated and

flexible than may appear from what MR. JUSTICE BLACK has written, I join

his opinion because I thoroughly agree with the application of the

principle to the circumstances of this case.  Even though such

differences in attitude toward this principle may be merely differences

in emphasis and nuance, they can hardly be reflected by a single opinion

for the Court.  Individual expression of views in reaching a common

result is therefore important. APPENDIX TO OPINION OF THE COURT

EXECUTIVE ORDER Directing the Secretary of Commerce to Take Possession

of and Operate the Plants and Facilities of Certain Steel Companies



WHEREAS, on December 16, 1950, I proclaimed the existence of a national

emergency which requires that the military, naval, air, and civilian

defenses of this country be strengthened as speedily as possible to the

end that we may be able to repel any and all threats against our

national [343 U.S. 590] security and to fulfill our responsibilities in

the efforts being made throughout the United Nations and otherwise to

bring about a lasting peace; and



WHEREAS American fighting men and fighting men of other nations of the

United Nations are now engaged in deadly combat with the forces of

aggression in Korea, and forces of the United States are stationed

elsewhere overseas for the purpose of participating in the defense of

the Atlantic Community against aggression; and



WHEREAS the weapons and other materials needed by our armed forces and

by those joined with us in the defense of the free world are produced to

a great extent in this country, and steel is an indispensable component

of substantially all of such weapons and materials; and



WHEREAS steel is likewise indispensable to the carrying out of programs

of the Atomic Energy Commission of vital importance to our defense

efforts; and



WHEREAS a continuing and uninterrupted supply of steel is also

indispensable to the maintenance of the economy of the United States,

upon which our military strength depends; and



WHEREAS a controversy has arisen between certain companies in the United

States producing and fabricating steel and the elements thereof and

certain of their workers represented by the United Steel Workers of

America, CIO, regarding terms and conditions of employment; and



WHEREAS the controversy has not been settled through the processes of

collective bargaining or through the efforts of the Government,

including those of the Wage Stabilization Board, to which the

controversy was referred on December 22, 1951, pursuant to Executive

Order No. 10233, and a strike has been called for 12:01 A. M., April 9,

1952; and



WHEREAS a work stoppage would immediately jeopardize and imperil our

national defense and the defense [343 U.S. 591] of those joined with us

in resisting aggression, and would add to the continuing danger of our

soldiers, sailors, and airmen engaged in combat in the field; and



WHEREAS, in order to assure the continued availability of steel and

steel products during the existing emergency, it is necessary that the

United States take possession of and operate the plants, facilities, and

other property of the said companies as hereinafter provided:



NOW, THEREFORE, by virtue of the authority vested in me by the

Constitution and laws of the United States, and as President of the

United States and Commander in Chief of the armed forces of the United

States, it is hereby ordered as follows:



1. The Secretary of Commerce is hereby authorized and directed to take

possession of all or such of the plants, facilities, and other property

of the companies named in the list attached hereto, or any part thereof,

as he may deem necessary in the interests of national defense, and to

operate or to arrange for the operation thereof and to do all things

necessary for, or incidental to, such operation.



2. In carrying out this order, the Secretary of Commerce may act through

or with the aid of such public or private instrumentalities or persons

as he may designate, and all Federal agencies shall cooperate with the

Secretary of Commerce to the fullest extent possible in carrying out the

purposes of this order.



3. The Secretary of Commerce shall determine and prescribe terms and

conditions of employment under which the plants, facilities, and other

properties possession of which is taken pursuant to this order shall be

operated.  The Secretary of Commerce shall recognize the rights of

workers to bargain collectively through representatives of their own

choosing and to engage in concerted activities for the purpose of

collective bargaining, adjustment of grievances, or other mutual aid or

protection, provided [343 U.S. 592] that such activities do not

interfere with the operation of such plants, facilities, and other

properties.



4. Except so far as the Secretary of Commerce shall otherwise provide

from time to time, the managements of the plants, facilities, and other

properties possession of which is taken pursuant to this order shall

continue their functions, including the collection and disbursement of

funds in the usual and ordinary course of business in the names of their

respective companies and by means of any instrumentalities used by such

companies.



5. Except so far as the Secretary of Commerce may otherwise direct,

existing rights and obligations of such companies shall remain in full

force and effect, and there may be made, in due course, payments of

dividends on stock, and of principal, interest, sinking funds, and all

other distributions upon bonds, debentures, and other obligations, and

expenditures may be made for other ordinary corporate or business

purposes.



6. Whenever, in the judgment of the Secretary of Commerce, further

possession and operation by him of any plant, facility, or other

property is no longer necessary or expedient in the interest of national

defense, and the Secretary has reason to believe that effective future

operation is assured, he shall return the possession and operation of

such plant, facility, or other property to the company in possession and

control thereof at the time possession was taken under this order.



7. The Secretary of Commerce is authorized to prescribe and issue such

regulations and orders not inconsistent herewith as he may deem

necessary or desirable for carrying out the purposes of this order, and

he may delegate and authorize subdelegation of such of his functions

under this order as he may deem desirable. Harry S. Truman. The White

House, April 8, 1952. [343 U.S. 593] FRANKFURTER, J., concurring



MR. JUSTICE FRANKFURTER, concurring.



Before the cares of the White House were his own, President Harding is

reported to have said that government, after all, is a very simple

thing.  He must have said that, if he said it, as a fleeting inhabitant

of fairyland.  The opposite is the truth.  A constitutional democracy

like ours is perhaps the most difficult of man's social arrangements to

manage successfully.  Our scheme of society is more dependent than any

other form of government on knowledge and wisdom and self-discipline for

the achievement of its aims.  For our democracy implies the reign of

reason on the most extensive scale.  The Founders of this Nation were

not imbued with the modern cynicism that the only thing that history

teaches is that it teaches nothing.  They acted on the conviction that

the experience of man sheds a good deal of light on his nature.  It

sheds a good deal of light not merely on the need for effective power if

a society is to be at once cohesive and civilized, but also on the need

for limitations on the power of governors over the governed.



To that end, they rested the structure of our central government on the

system of checks and balances.  For them, the doctrine of separation of

powers was not mere theory; it was a felt necessity.  Not so long ago,

it was fashionable to find our system of checks and balances obstructive

to effective government.  It was easy to ridicule that system as

outmoded -- too easy.  The experience through which the world has passed

in our own day has made vivid the realization that the Framers of our

Constitution were not inexperienced doctrinaires.  These long-headed

statesmen had no illusion that our people enjoyed biological or

psychological or sociological immunities from the hazards of

concentrated power.  It is absurd to see a dictator in a representative

product of the sturdy democratic traditions of the Mississippi Valley. 

[343 U.S. 594] The accretion of dangerous power does not come in a day. 

It does come, however slowly, from the generative force of unchecked

disregard of the restrictions that fence in even the most disinterested

assertion of authority.



The Framers, however, did not make the judiciary the overseer of our

government.  They were familiar with the revisory functions entrusted to

judges in a few of the States, and refused to lodge such powers in this

Court.  Judicial power can be exercised only as to matters that were the

traditional concern of the courts at Westminster, and only if they arise

in ways that to the expert feel of lawyers constitute "Cases" or

"Controversies."  Even as to questions that were the staple of judicial

business, it is not for the courts to pass upon them unless they are

indispensably involved in a conventional litigation -- and then only to

the extent that they are so involved.  Rigorous adherence to the narrow

scope of the judicial function is especially demanded in controversies

that arouse appeals to the Constitution.  The attitude with which this

Court must approach its duty when confronted with such issues is

precisely the opposite of that normally manifested by the general

public.  So-called constitutional questions seem to exercise a mesmeric

influence over the popular mind.  This eagerness to settle -- preferably

forever -- a specific problem on the basis of the broadest possible

constitutional pronouncements may not unfairly be called one of our

minor national traits.  An English observer of our scene has acutely

described it: At the first sound of a new argument over the United

States Constitution and its interpretation, the hearts of Americans leap

with a fearful joy.  The blood stirs powerfully in their veins, and a

new lustre brightens their eyes.  Like King Harry's men before Harfleur,

they stand like greyhounds in the slips, straining upon the start. The

Economist, May 10, 1952, p. 370. [343 U.S. 595]



The path of duty for this Court, it bears repetition, lies in the

opposite direction.  Due regard for the implications of the distribution

of powers in our Constitution and for the nature of the judicial process

as the ultimate authority in interpreting the Constitution, has not only

confined the Court within the narrow domain of appropriate adjudication.

 It has also led to "a series of rules under which it has avoided

passing upon a large part of all the constitutional questions pressed

upon it for decision."  Brandeis, J., in Ashwander v. Tennessee Valley

Authority, 297 U.S. 288, 341, 346.  A basic rule is the duty of the

Court not to pass on a constitutional issue at all, however narrowly it

may be confined, if the case may, as a matter of intellectual honesty,

be decided without even considering delicate problems of power under the

Constitution.  It ought to be, but apparently is not, a matter of common

understanding that clashes between different branches of the government

should be avoided if a legal ground of less explosive potentialities is

properly available.  Constitutional adjudications are apt, by exposing

differences, to exacerbate them.



So here, our first inquiry must be not into the powers of the President,

but into the powers of a District Judge to issue a temporary injunction

in the circumstances of this case.  Familiar as that remedy is, it

remains an extraordinary remedy.  To start with a consideration of the

relation between the President's powers and those of Congress -- a most

delicate matter that has occupied the thoughts of statesmen and judges

since the Nation was founded and will continue to occupy their thoughts

as long as our democracy lasts -- is to start at the wrong end.  A

plaintiff is not entitled to an injunction if money damages would fairly

compensate him for any wrong he may have suffered.  The same

considerations by which the Steelworkers, in their brief amicus,

demonstrate, from the seizure here in controversy, consequences [343

U.S. 596] that cannot be translated into dollars and cents, preclude a

holding that only compensable damage for the plaintiffs is involved. 

Again, a court of equity ought not to issue an injunction, even though a

plaintiff otherwise makes out a case for it, if the plaintiff's right to

an injunction is overborne by a commanding public interest against it. 

One need not resort to a large epigrammatic generalization that the

evils of industrial dislocation are to be preferred to allowing

illegality to go unchecked.  To deny inquiry into the President's power

in a case like this, because of the damage to the public interest to be

feared from upsetting its exercise by him, would, in effect, always

preclude inquiry into challenged power, which presumably only avowed

great public interest brings into action.  And so, with the utmost

unwillingness, with every desire to avoid judicial inquiry into the

powers and duties of the other two branches of the government, I cannot

escape consideration of the legality of Executive Order No. 10340.



The pole-star for constitutional adjudications is John Marshall's

greatest judicial utterance, that "it is a constitution we are

expounding."  McCulloch v. Maryland, 4 Wheat. 316, 407.  That requires

both a spacious view in applying an instrument of government "made for

an undefined and expanding future," Hurtado v. California, 110 U.S. 516,

530, and as narrow a delimitation of the constitutional issues as the

circumstances permit.  Not the least characteristic of great

statesmanship which the Framers manifested was the extent to which they

did not attempt to bind the future.  It is no less incumbent upon this

Court to avoid putting fetters upon the future by needless

pronouncements today.



Marshall's admonition that "it is a constitution we are expounding" is

especially relevant when the Court is required to give legal sanctions

to an underlying principle of the Constitution -- that of separation of

powers.  [343 U.S. 597] "The great ordinances of the Constitution do not

establish and divide fields of black and white."  Holmes, J., dissenting

in Springer v. Philippine Islands, 277 U.S. 189, 209.



The issue before us can be met, and therefore should be, without

attempting to define the President's powers comprehensively.  I shall

not attempt to delineate what belongs to him by virtue of his office

beyond the power even of Congress to contract; what authority belongs to

him until Congress acts; what kind of problems may be dealt with either

by the Congress or by the President, or by both, cf. La Abra Silver Mng.

Co. v. United States, 175 U.S. 423; what power must be exercised by the

Congress and cannot be delegated to the President.  It is as

unprofitable to lump together in an undiscriminating hotch-potch past

presidential actions claimed to be derived from occupancy of the office

as it is to conjure up hypothetical future cases.  The judiciary may, as

this case proves, have to intervene in determining where authority lies

as between the democratic forces in our scheme of government.  But, in

doing so, we should be wary and humble.  Such is the teaching of this

Court's role in the history of the country.



It is in this mood and with this perspective that the issue before the

Court must be approached.  We must therefore put to one side

consideration of what powers the President would have had if there had

been no legislation whatever bearing on the authority asserted by the

seizure, or if the seizure had been only for a short, explicitly

temporary period, to be terminated automatically unless Congressional

approval were given.  These and other questions, like or unlike, are not

now here.  I would exceed my authority were I to say anything about

them.



The question before the Court comes in this setting.  Congress has

frequently -- at least 16 times since 1916 --  [343 U.S. 598]

specifically provided for executive seizure of production,

transportation, communications, or storage facilities.  In every case,

it has qualified this grant of power with limitations and safeguards. 

This body of enactments -- summarized in tabular form in Appendix I,

post, p. 615 -- demonstrates that Congress deemed seizure so drastic a

power as to require that it be carefully circumscribed whenever the

President was vested with this extraordinary authority.  The power to

seize has uniformly been given only for a limited period or for a

defined emergency, or has been repealed after a short period.  Its

exercise has been restricted to particular circumstances such as "time

of war or when war is imminent," the needs of "public safety" or of

"national security or defense," or "urgent and impending need."  The

period of governmental operation has been limited, as, for instance, to

"sixty days after the restoration of productive efficiency."  Seizure

statutes usually make executive action dependent on detailed conditions:

 for example, (a) failure or refusal of the owner of a plant to meet

governmental supply needs or (b) failure of voluntary negotiations with

the owner for the use of a plant necessary for great public ends. 

Congress often has specified the particular executive agency which

should seize or operate the plants or whose judgment would appropriately

test the need for seizure.  Congress also has not left to implication

that just compensation be paid; it has usually legislated in detail

regarding enforcement of this litigation-breeding general requirement. 

(See Appendix I, post, )



Congress, in 1947, was again called upon to consider whether

governmental seizure should be used to avoid serious industrial

shutdowns.  Congress decided against conferring such power generally and

in advance, without special Congressional enactment to meet each

particular need.  Under the urgency of telephone and coal strikes in

[343 U.S. 599] the winter of 1946, Congress addressed itself to the

problems raised by "national emergency" strikes and lockouts.  The

termination of wartime seizure powers on December 31, 1946, brought

these matters to the attention of Congress with vivid impact.  A

proposal that the President be given powers to seize plants to avert a

shutdown where the "health or safety" of the Nation was endangered was

thoroughly canvassed by Congress, and rejected.  No room for doubt

remains that the proponents as well as the opponents of the bill which

became the Labor Management Relations Act of 1947 clearly understood

that, as a result of that legislation, the only recourse for preventing

a shutdown in any basic industry, after failure of mediation, was

Congress.  Authorization for seizure as [343 U.S. 600] an available

remedy for potential dangers was unequivocally put aside.  The Senate

Labor Committee, through its Chairman, explicitly reported to the Senate

that a general grant of seizure powers had been considered and rejected

in favor of reliance on ad hoc legislation, as a particular emergency

might call for it.  An amendment presented in the House providing that,

where necessary "to preserve and protect the public health and

security," the President might seize any industry in which there is [343

U.S. 601] an impending curtailment of production, was voted down after

debate, by a vote of more than three to one.



In adopting the provisions which it did, by the Labor Management

Relations Act of 1947, for dealing with a "national emergency" arising

out of a breakdown in peaceful industrial relations, Congress was very

familiar with Governmental seizure as a protective measure.  On a

balance of considerations, Congress chose not to lodge this power in the

President.  It chose not to make available in advance a remedy to which

both industry and labor were fiercely hostile.  In deciding that

authority to seize should be given to the President only after full

consideration of the particular situation should show such legislation

to be necessary, Congress presumably acted on experience with similar

industrial conflicts in the past.  It evidently assumed that industrial

shutdowns in basic industries are not instances of spontaneous

generation, [343 U.S. 602] and that danger warnings are sufficiently

plain before the event to give ample opportunity to start the

legislative process into action.



In any event, nothing can be plainer than that Congress made a conscious

choice of policy in a field full of perplexity and peculiarly within

legislative responsibility for choice.  In formulating legislation for

dealing with industrial conflicts, Congress could not more clearly and

emphatically have withheld authority than it did in 1947.  Perhaps as

much so as is true of any piece of modern legislation, Congress acted

with full consciousness of what it was doing, and in the light of much

recent history.  Previous seizure legislation had subjected the powers

granted to the President to restrictions of varying degrees of

stringency.  Instead of giving him even limited powers, Congress, in

1947, deemed it wise to require the President, upon failure of attempts

to reach a voluntary settlement, to report to Congress if he deemed the

power of seizure a needed shot for his locker.  The President could not

ignore the specific limitations of prior seizure statutes.  No more

could he act in disregard of the limitation put upon seizure by the 1947

Act.



It cannot be contended that the President would have had power to issue

this order had Congress explicitly negated such authority in formal

legislation.  Congress has expressed its will to withhold this power

from the President as though it had said so in so many words.  The

authoritatively expressed purpose of Congress to disallow such power to

the President and to require him, when in his mind the occasion arose

for such a seizure, to put the matter to Congress and ask for specific

authority from it, could not be more decisive if it had been written

into  206-210 of the Labor Management Relations Act of 1947.  Only the

other day, we treated the Congressional gloss upon those sections as

part of the Act.  Bus Employees v. Wisconsin Board, 340 U.S. 383,

395-396.  [343 U.S. 603] Grafting upon the words a purpose of Congress

thus unequivocally expressed is the regular legislative mode for

defining the scope of an Act of Congress.  It would be not merely

infelicitous draftsmanship, but almost offensive gaucherie, to write

such a restriction upon the President's power, in terms, into a statute,

rather than to have it authoritatively expounded, as it was, by

controlling legislative history.



By the Labor Management Relations Act of 1947, Congress said to the

President, "You may not seize. Please report to us and ask for seizure

power if you think it is needed in a specific situation."  This, of

course, calls for a report on the unsuccessful efforts to reach a

voluntary settlement, as a basis for discharge by Congress of its

responsibility -- which it has unequivocally reserved -- to fashion

further remedies than it provided.  But it is now claimed that the

President has seizure power by virtue of the Defense Production Act of

1950 and its Amendments.  And the claim is based on the occurrence of

new events -- Korea and the need for stabilization, etc. -- although it

was well known that seizure power was withheld by the Act of 1947, and

although the President, whose specific requests for other authority

were, in the main, granted by Congress, never suggested that, in view of

the new events, he needed the power of seizure which Congress in its

judgment had decided to withhold from him.  The utmost that the Korean

conflict may imply is that it may have been desirable to have given the

President further authority, a freer hand in these matters.  Absence of

authority in the President to deal with a crisis does not [343 U.S. 604]

imply want of power in the Government.  Conversely, the fact that power

exists in the Government does not vest it in the President.  The need

for new legislation does not enact it.  Nor does it repeal or amend

existing law.



No authority that has since been given to the President can, by any fair

process of statutory construction, be deemed to withdraw the restriction

or change the will of Congress as expressed by a body of enactments,

culminating in the Labor Management Relations Act of 1947.  Title V of

the Defense Production Act, entitled "Settlement of Labor Disputes,"

pronounced the will of Congress "that there be effective procedures for

the settlement of labor disputes affecting national defense," and that

"primary reliance" be placed upon the parties to any labor dispute to

make every effort, through negotiation and collective bargaining and the

full use of mediation and conciliation facilities, to effect a

settlement in the national interest. Section 502 authorized the

President to hold voluntary conferences of labor, industry, and public

and government representatives and to "take such action as may be agreed

upon in any such conference and appropriate to carry out the provisions

of this title," provided that no action was taken inconsistent with the

Labor Management Relations Act of 1947.  This provision{10} was said by

the Senate Committee [343 U.S. 605] on Banking and Currency to

contemplate a board similar to the War Labor Board of World War II and

"a national labor-management conference such as was held during World

War II, when a "no strike, no lock-out" pledge was obtained."{11} 

Section 502 was believed necessary [343 U.S. 606] in addition to

existing means for settling disputes voluntarily because the Federal

Mediation and Conciliation Service could not enter a labor dispute

unless requested by one party.{12}  Similar explanations of Title V were

given in the Conference Report and by Senator Ives, a member of the

Senate Committee to whom Chairman Maybank during the debates on the

Senate floor referred questions relating to Title V.{13}  Senator Ives

said:



It should be remembered in this connection that, during the period of

the present emergency, it is expected that the Congress will not

adjourn, but, at most, will recess only for very limited periods of

time.  If, therefore, any serious work stoppage should arise or even be

threatened, in spite of the terms of the Labor-Management Relations Act

of 1947, the Congress would be readily available to pass such

legislation as might be needed to meet the difficulty.{14} [343 U.S.

607] The Defense Production Act affords no ground for the suggestion

that the 1947 denial to the President of seizure powers has been

impliedly repealed, and its legislative history contradicts such a

suggestion.  Although the proponents of that Act recognized that the

President would have a choice of alternative methods of seeking a

mediated settlement, they also recognized that Congress alone retained

the ultimate coercive power to meet the threat of "any serious work

stoppage."



That conclusion is not changed by what occurred after the passage of the

1950 Act.  Seven and a half months later, on April 21, 1951, the

President, by Executive Order 10233, gave the reconstituted Wage

Stabilization Board authority to investigate labor disputes either (1)

submitted voluntarily by the parties, or (2) referred to it by the

President.{15}  The Board can only make "recommendations to the parties

as to fair and equitable terms of settlement," unless the parties agree

to be bound by the Board's recommendations.  About a month thereafter,

Subcommittees of both the House and Senate Labor Committees began

hearings on the newly assigned disputes functions of the Board.{16} 

Amendments to deny the [343 U.S. 608] Board these functions were voted

down in the House,{17} and Congress extended the Defense Production Act

without changing Title V in relevant part.{18}  The legislative history

of the Defense Production Act and its Amendments in 1951 cannot possibly

be vouched for more than Congressional awareness and tacit approval that

the President had charged the Wage Stabilization Board with authority to

seek voluntary settlement of labor disputes.  The most favorable

interpretation of the statements in the committee reports can make them

mean no more than "[w]e are glad to have all the machinery possible for

the voluntary settlement of labor disputes."  In considering the Defense

Production Act Amendments, Congress was never asked to approve -- and

there is not the slightest indication that the responsible committees

ever had in mind -- seizure of plants to coerce settlement of disputes. 

[343 U.S. 609] We are not even confronted by an inconsistency between

the authority conferred on the Wage Board, as formulated by the

Executive Order, and the denial of Presidential seizure powers under the

1947 legislation.  The Board has been given merely mediatory powers

similar to those of agencies created by the Taft-Hartley Act and

elsewhere, with no other sanctions for acceptance of its recommendations

than are offered by its own moral authority and the pressure of public

opinion.  The Defense Production Act and the disputes-mediating agencies

created subsequent to it still leave for solution elsewhere the question

what action can be taken when attempts at voluntary settlement fail.  To

draw implied approval of seizure power from this history is to make

something out of nothing.



It is one thing to draw an intention of Congress from general language

and to say that Congress would have explicitly written what is inferred,

where Congress has not addressed itself to a specific situation.  It is

quite impossible, however, when Congress did specifically address itself

to a problem, as Congress did to that of seizure, to find secreted in

the interstices of legislation the very grant of power which Congress

consciously withheld.  To find authority so explicitly withheld is not

merely to disregard in a particular instance the clear will of Congress.

 It is to disrespect the whole legislative process and the

constitutional division of authority between President and Congress.



The legislative history here canvassed is relevant to yet another of the

issues before us, namely, the Government's argument that overriding

public interest prevents the issuance of the injunction despite the

illegality of the seizure.  I cannot accept that contention.  "Balancing

the equities" when considering whether an injunction should issue, is

lawyers' jargon for choosing between conflicting public interests.  When

Congress itself has struck [343 U.S. 610] the balance, has defined the

weight to be given the competing interests, a court of equity is not

justified in ignoring that pronouncement under the guise of exercising

equitable discretion.



Apart from his vast share of responsibility for the conduct of our

foreign relations, the embracing function of the President is that "he

shall take Care that the Laws be faithfully executed. . . ."  Art. II, 

3.  The nature of that authority has, for me, been comprehensively

indicated by Mr. Justice Holmes. The duty of the President to see that

the laws be executed is a duty that does not go beyond the laws or

require him to achieve more than Congress sees fit to leave within his

power. Myers v. United States, 272 U.S. 52, 177.  The powers of the

President are not as particularized as are those of Congress.  But

unenumerated powers do not mean undefined powers.  The separation of

powers built into our Constitution gives essential content to undefined

provisions in the frame of our government.



To be sure, the content of the three authorities of government is not to

be derived from an abstract analysis.  The areas are partly interacting,

not wholly disjointed.  The Constitution is a framework for government. 

Therefore, the way the framework has consistently operated fairly

establishes that it has operated according to its true nature.  Deeply

embedded traditional ways of conducting government cannot supplant the

Constitution or legislation, but they give meaning to the words of a

text or supply them.  It is an inadmissibly narrow conception of

American constitutional law to confine it to the words of the

Constitution and to disregard the gloss which life has written upon

them.  In short, a systematic, unbroken, executive practice, long

pursued to the knowledge of the Congress and never before questioned,

engaged in by Presidents who have also sworn to uphold the Constitution,

making as it were such exercise of power part [343 U.S. 611] of the

structure of our government, may be treated as a gloss on "executive

Power" vested in the President by  1 of Art. II.



Such was the case of United States v. Midwest Oil Co., 236 U.S. 459. 

The contrast between the circumstances of that case and this one helps

to draw a clear line between authority not explicitly conferred yet

authorized to be exercised by the President and the denial of such

authority.  In both instances, it was the concern of Congress under

express constitutional grant to make rules and regulations for the

problems with which the President dealt.  In the one case, he was

dealing with the protection of property belonging to the United States;

in the other, with the enforcement of the Commerce Clause and with

raising and supporting armies and maintaining the Navy.  In the Midwest

Oil case, lands which Congress had opened for entry were, over a period

of 80 years and in 252 instances, and by Presidents learned and

unlearned in the law, temporarily withdrawn from entry so as to enable

Congress to deal with such withdrawals.  No remotely comparable practice

can be vouched for executive seizure of property at a time when this

country was not at war, in the only constitutional way in which it can

be at war.  It would pursue the irrelevant to reopen the controversy

over the constitutionality of some acts of Lincoln during the Civil War.

 See J. G. Randall, Constitutional Problems under Lincoln (Revised

ed.1951).  Suffice it to say that he seized railroads in territory where

armed hostilities had already interrupted the movement of troops to the

beleaguered Capital, and his order was ratified by the Congress.



The only other instances of seizures are those during the periods of the

first and second World Wars.{19}  In his eleven seizures of industrial

facilities, President Wilson [343 U.S. 612] acted, or at least purported

to act,{20} under authority granted by Congress.  Thus, his seizures

cannot be adduced as interpretations by a President of his own powers in

the absence of statute.



Down to the World War II period, then, the record is barren of instances

comparable to the one before us.  Of twelve seizures by President

Roosevelt prior to the enactment of the War Labor Disputes Act in June,

1943, three were sanctioned by existing law, and six others [343 U.S.

613] were effected after Congress, on December 8, 1941, had declared the

existence of a state of war.  In this case, reliance on the powers that

flow from declared war has been commendably disclaimed by the Solicitor

General.  Thus, the list of executive assertions of the power of seizure

in circumstances comparable to the present reduces to three in the

six-month period from June to December of 1941.  We need not split hairs

in comparing those actions to the one before us, though much might be

said by way of differentiation.  Without passing on their validity, as

we are not called upon to do, it suffices to say that these three

isolated instances do not add up, either in number, scope, duration or

contemporaneous legal justification, to the kind of executive

construction of the Constitution revealed in the Midwest Oil case.  Nor

do they come to us sanctioned by long-continued acquiescence of Congress

giving decisive weight to a construction by the Executive of its powers.



A scheme of government like ours no doubt at times feels the lack of

power to act with complete, all-embracing, swiftly moving authority.  No

doubt a government with distributed authority, subject to be challenged

in the courts of law, at least long enough to consider and adjudicate

the challenge, labors under restrictions from which other governments

are free. It has not been our tradition to envy such governments.  In

any event, our government was designed to have such restrictions.  The

price was deemed not too high in view of the safeguards which these

restrictions afford.  I know no more impressive words on this subject

than those of Mr. Justice Brandeis:



The doctrine of the separation of powers was adopted by the Convention

of 1787 not to promote efficiency, but to preclude the exercise of

arbitrary power.  The purpose was not to avoid friction, but, [343 U.S.

614] by means of the inevitable friction incident to the distribution of

the governmental powers among three departments, to save the people from

autocracy. Myers v. United States, 272 U.S. 52, 240, 293.



It is not a pleasant judicial duty to find that the President has

exceeded his powers, and still less so when his purposes were dictated

by concern for the Nation's wellbeing, in the assured conviction that he

acted to avert danger.  But it would stultify one's faith in our people

to entertain even a momentary fear that the patriotism and the wisdom of

the President and the Congress, as well as the long view of the

immediate parties in interest, will not find ready accommodation for

differences on matters which, however close to their concern and however

intrinsically important, are overshadowed by the awesome issues which

confront the world.  When, at a moment of utmost anxiety, President

Washington turned to this Court for advice, and he had to be denied it

as beyond the Court's competence to give, Chief Justice Jay, on behalf

of the Court, wrote thus to the Father of his Country:



We exceedingly regret every event that may cause embarrassment to your

administration, but we derive consolation from the reflection that your

judgment will discern what is right, and that your usual prudence,

decision, and firmness will surmount every obstacle to the preservation

of the rights, peace, and dignity of the United States. Letter of August

8, 1793, 3 Johnston, Correspondence and Public Papers of John Jay

(1891), 489.



In reaching the conclusion that conscience compels, I too derive

consolation from the reflection that the President and the Congress,

between them, will continue to safeguard the heritage which comes to

them straight from George Washington. [343 U.S. 620] [pp. 615 et seq. -

Appendix I (table)] [343 U.S. 615] APPENDIX I SYNOPTIC ANALYSIS OF

LEGISLATION AUTHORIZING SEIZURE OF INDUSTRIAL PROPERTY

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

TERMS AND CONDITIONS OF LIMITATIONS ON ITS                  EMPLOYMENT

DURING STATUTE                                 DURATION                 

         SCOPE OF AUTHORITY                           EXERCISE          

                 SEIZURE                        COMPENSATION

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

As extended or As enacted             repealed

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

1. Railroad and Telegraph       Not "in force any                       

    President may "take possession       a. "When in his [the

President's]      None.                           President shall

appoint three Act of 1862, 12 Stat. 334.     longer than is             

                 of" telegraph lines and rail-         judgment the

public safety                                            commissioners

to assess com- necessary for the                            roads;

prescribe rules for their      may require it."                         

                            pensation to which the com- Enacted 1/31/62;

              suppression of                               operation;

and place all officers  b. President may not "engage                    

                        pany is entitled and to report amended, 12 Stat.

625,         this rebellion."                             and employees

under military          in any work of railroad con-                    

                     to Congress for its action. 7/14/62.               

                                                    control.            

                 struction."

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

2.  120 of National            No time limit.                           

   President, through the head of       a. Exercisable "in time of war  

      None.                           Compensation "shall be fair and

Defense Act of 1916, 39                                                 

   any department, may seize             or when war is imminent."      

                                       just." Stat. 166, 213, 50 U.S.C. 

                                                 any plant and may

operate          b. Plant is equipped for making 80, as amended.        

                                                  plants through the

Army Ord-          "necessary supplies or equip- nance Department.      

              ment for the Army" or "in Enacted 6/3/16.                 

                                                                        

        the opinion of the Secretary of War" can be transformed readily

to such use. c. Owner refuses to give govern- ment order precedence or

to perform.

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

3. Army Appropriations          No time limit.                          

    President, through Secretary of      Exercisable "in time of war."* 

   None.                           Compensation "shall be fair Act of

1916, 39 Stat. 619,                                                 

War, may take possession of                                             

                                   and just." 645, 10 U.S.C.  1361.     

                                                and utilize any system

or part of any system of transporta- Enacted 8/29/16.                   

                                        tion.

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

4. Naval Emergency Fund         No time limit.                          

    President may                        Exercisable "in time of war"

(or       None. Act of 1917, 39 Stat.                                   

                   1. "take over for use or opera-      of national

emergency deter- 1168, 1192-1195, 50                                    

                       tion" any factory "whether        mined by the

President before U.S.C.  82.                                            

                      [or not] the United States        3/1/18). has . .

. agreement with                                                        

                      President shall determine "just Enacted 3/4/17. 

Cf.                                                         the owner or

occupier."                                                              

                   compensation"; if the claimant Emergency Shipping    

                                                                        

                                                                        

               is dissatisfied, he shall be paid Fund Act of 1917,

infra.)                                                 2. "take

immediate possession      a. Owner fails or refuses to give      None.  

                          50 percent of the amount de- of any factory"

producing          precedence to an order for                           

                termined by the President and ships or war material for 

        "ships or war material as the                                   

     may sue, subject to existing the Navy.                         

necessities of the Govern-                                           

law, in the district courts and ment"; refuses to deliver or to         

                             the Court of Claims for the comply with a

contract as                                             rest of "just

compensation." modified by President. b. Exercisable within "the limits

of the amounts appropriated therefor." [343 U.S. 616]

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

5. Emergency Shipping           To 6 months after     Repealed after 3  

    President may                        Exercisable "within the limits 

       None. Fund Act of 1917, 40           peace with the        years,

 2(a)          1. "take over for use or opera-      of the amounts

herein author-                                        Same as next

above, except that Stat. 182.                     German Empire,       

(1), 41 Stat.             tion" any plant, "whether         ized."      

                                                          the prepaid

percentage when 40 Stat. 182, 183.    988, 6/5/20.              [or not]

United States has                                                       

                       the owner is dissatisfied is Enacted 6/15/17.    

                                                          . . .

agreement with the                                                      

                          75 percent. owner or occupier." 2. "take

immediate possession      Failure or refusal of owner of         None.

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

building or produc-       Government orders preced- tion of ships or

material."       ence or to comply with order.

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

6. 1918 Amendments to           To 6 months after     Repealed after 2  

    President may                        a. The street railroad is

neces-       None. Emergency Shipping             peace with the       

years, 41 Stat.        1. "take possession of . . .          sary for

transporting em- Fund Act of 1917.              German Empire.       

988, 6/5/20.              any street railroad."              ployees of

plants which are or may be hereafter engaged A. 40 Stat. 535.           

                                                                        

             in "construction of ships or equipment therefor for the

Enacted 4/22/18.                                                        

                                       United States. b. Exercisable

"within the limits                                      Same as next

above. of the amounts herein author- ized." B. 40 Stat. 1020, 1022      

To 6 months after     Repealed after           2. extend seized plants

con-       Exercisable "within the limits of      None peace with the   

    1 1/2 years, 41           structing ships or materials      the

amounts herein author- German Empire.        Stat. 988, 6/5/          

therefor and requisition land     ized." 20.                       for

use in extensions.

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

7. Food and Fuel Act of         To end of World                         

    President may                        The requisitioning is

"necessary       None.                           President "shall

ascertain and 1917, 40 Stat. 276.            War I with Ger-            

                 1. requisition foods, fuels,         to the support of

the Army or                                          pay a just

compensation"; if many.                                           feeds,

etc., and storage          the . . . Navy, or any other                 

                         the owner is dissatisfied, he Enacted 8/10/17. 

                                                             facilities

for them.              public use connected with the                    

                     shall be paid 75 percent of the common defense."   

                                                   amount determined by

the 10, 40 Stat. 276, 279.                                              

                                                                        

                                        President and may sue in the

district courts, which are here- by given jurisdiction, for the rest of

"just compensation." 12, 40 Stat. 276, 279.                             

                      2. take over any factory,          a. President

finds "it necessary       President may make regulations packing house,

oil pipe line,      to secure an adequate supply          for "the

employment, control, mine, or other plant where         of necessaries

for . . . the          and compensation of em- any necessaries are or

may         Army or . . . the Navy, or            ployees." be

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

to operate the          nected with the common                          

                   Same as in the Emergency Ship- same."                

            defense."                                                   

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

back as soon as further Gov- ernment operation "is not essential for the

national security or defense." [343 U.S. 617] 25, 40 Stat. 276. 284     

To end of World                                3. "requisition and take

over      Producer or dealer                     President may

"prescribe . . .  Same as next above. War I with Ger-                   

             the plant, business, and all      a. Fails to conform to

prices          regulations . . . for the em- many.                     

                     appurtenances thereof be-            or regulations

set by the           ployment, control, and com- longing to such

producer             Federal Trade Commission            pensation of

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

of the and may operate it through           President, who deems it an

agency of his choice.             "necessary for the efficient

prosecution of the war," or b. Fails to operate efficiently, or conducts

business in a way "prejudicial to the public interest."

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

8. Joint Resolution of July     "during the con-      Terminated on     

    President may "take possession       President deems "it necessary  

       None.                           Same as next above. 16, 1918, 40

Stat. 904         tinuance of the       7/31/10 by re-         . . . of

[and operate] any           for the national security or present war."  

      peal, 7/11/19,         telegraph, telephone, marine        

defense." 41 Stat. 157.          cable or radio system."

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

9.  16 of Federal Water        No time limit.                           

   President may take possession        a. President believes, as "evi- 

      None.                           Owner shall be paid "just and

Power Act of 1920, 41                                                   

   of any project, dams, power           denced by a written order      

                                      fair compensation for the use

Stat. 1063, 1072, 16                                                    

   houses, transmission lines,           addressed to the holder of any 

                                      of said property as may be fixed

U.S.C.  809.                                                            

  etc., constructed or operated         license hereunder [that] the    

                                     by the [Federal Power] commis-

under a license from the Fed-         safety of the United States       

                                   sion upon the basis of a reason-

Enacted 6/10/20.                                                        

   eral Power Commission and             demands it."                   

                                      able profit in time of peace, and

may operate them.                  b. Seizure is "for the purpose       

                                   the cost of restoring said of

manufacturing nitrates,                                           

property to as good condition explosives, or munitions of               

                           as existed at the time of the war, or for any

other purpose                                         taking over

thereof, less the involving the safety of the                           

               reasonable value of any im- United States."              

                                        provements . . . made thereto c.

Control is limited to the "length                                     by

the United States and of time as may appear to the                      

                   which are valuable and service- President to be

necessary to                                          able to the

[owner]." accomplish said purposes."

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

10.  606 of Communica-         No time limit.                           

   President may "use or control        a. President proclaims that

there      None.                           President shall ascertain

just tions Act of 1934, 48 Stat.                                        

       . . . any such station and/or         exists                     

                                          compensation and certify it to

1064, 1104, 47 U.S.C.                                                   

  its apparatus and equipment           (1) war or threat of war or     

                                     Congress for appropriation; if

606(c).                                                                 

by any department of the              (2) a state of public peril, or   

                                   the owner is dissatisfied, he shall

Government under such regu-           disaster or other national        

                                   be paid 75 percent of the Enacted

6/19/34.                                                          

lations as he may prescribe."         emergency,                        

                                   amount determined by the or          

                                               President and may sue,

sub- b. It is necessary to preserve                                     

     ject to existing law, in the the neutrality of the United          

                               district courts and the Court of States. 

                                                             Claims for

the rest of "just compensation." [343 U.S. 618] 11. Amendments to Com-  

       No time limit.                               Same power as in 

606(c), Com-      a. President proclaims a state or      None.          

                Same as next above. munications Act, 56 Stat.           

                                      munications Act of 1934, next     

   threat of war. 18, 47 U.S.C.  606(d).                                

                   above.                             b. President

"deems it neces- sary in the interest of the na- Enacted 1/26/42.       

                                                                        

                tional security and defense." c. Power to seize and use

prop- erty continues to "not later than six months after the termination

of such state or threat of war" or than a date set by concurrent

resolution of Congress.

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

12.  8(b) of National De-      No time limit.        Repealed in less   

   Secretary of Navy, under Presi-      a. Secretary of Navy deems any  

      Secretary of Navy may operate   Secretary of Navy may "fix the

fense Act of 1940, 54                               than 3 months,      

  dent's direction, may "take           existing plant necessary for    

     the plant "either by Govern-    compensation." Stat. 676, 680.     

                               9/16/40, 54            over and operate

such plant           the national defense.                 ment

personnel or by contract Stat. 885, 893         or facility."           

          b. He is unable to reach agree-          with private firms."

ment with its owner for its use or operation.

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

13. 9 of Selective Training    To 5/15/45, 54        Extended to        

   President may "take immedi-          a. Plant is equipped for or     

      None.                           "The compensation . . . shall be

and Service Act of 1940,      Stat. 885, 897.       3/31/47, 60         

  ate possession of any such              capable of being readily

trans-                                     fair and just." 54 Stat. 885,

892, 50                               Stat. 341, 342.        plant." 

(Extended by                   formed for the manufacture of U.S.C.App.

(1946 ed.)                                                     

amendment to "any plant,                necessary supplies. 309.        

                                                            mine, or

facility" capable of      b. Owner refuses to give Govern- producing

"any articles or              ment order precedence or to Enacted

9/16/40; amend-                                                   

materials which may be re-              fill it. ed by War Labor Dis-   

                                                   quired . . . or which

may be putes Act, 57 Stat. 163,                                         

         useful" for the war effort. 164, q.v., infra.                  

                                     57 Stat. 163, 164.)

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

14.  3 of War Labor Dis-       To termination of                        

   President may "take immedi-          a. Finding and proclamation     

      Same "terms and conditions of   Same as next above. putes Act of

1943, 57         this Act by con-                             ate

possession" of "any plant,        by the President that                

employment which were in Stat. 163, 164, 50 U.S.C.     current resolu-  

                           mine, or facility equipped for        (1)

there is an interruption          effect at the time [of taking] App.

(1946 ed.)  1503.       tion by Congress                             the

manufacture, production,              on account of a labor dis-       

possession," except that terms or of hostilities.                       

   or mining of any articles or              turbance,                  

      and conditions might be Enacted 6/25/43.              Plants

seized pre-                           materials which may be re-        

   (2) the war effort will be un-        changed by order of the War

viously may be                               quired . . . or which may

be              duly impeded,                     Labor Board, on

application. operated until 6                             useful" for

the war effort.           (3) seizure is necessary to in-        4, 5,

57 Stat. 163, 165. months after                                         

                                 sure operation. termination of         

                                                        b. Plant must be

returned to hostilities.                                                

                      owner within 60 days "after the restoration of the

produc- tive efficiency." [343 U.S. 619]

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

15. Title VIII, Repricing       To termination of                       

    President may "take immediate        a. The Secretary of a Depart-  

       None.                           Same as next above. of War

Contracts," of         hostilities.                                

possession of the plant of            ment deems the price of an Revenue

Act of 1943, 58                                                   

plants . . . and . . . operate        article or service required di-

Stat. 21, 92, 50 U.S.C.                                                 

  them in accordance with sec-          rectly or indirectly by the App.

(1946 ed.)  1192.                                                   

tion 9 of the Selective Train-        Department is unreasonable. ing

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

2/25/44,                                                           as

amended.                           fusal of the person furnishing the

article or service to agree to a price, sets a price. c. The person

"wilfully refuses, or wilfully fails" to furnish the articles or

services at the price fixed by the Secretary.

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

16. Selective Service Act of    No time limit.                          

    President may "take immediate        a. President with advice of the

       None.                           "Fair and just compensation 1948,

62 Stat. 604, 625                                                   

possession of any plant, mine,          National Security Resources     

                                    shall be paid." 626, 50 U.S.C.App.  

                                                      or other facility

. . . and to          Board determines prompt de- 468.                  

                                                  operate it . . . and

to                 livery of articles or materials tion of such articles

or mate-          is "in the interest of the na- Enacted 6/24/48.       

                                                   rials."              

                  tional security." b. Procurement "has been au-

thorized by the Congress exclu- sively for the use of the armed forces.

or the A.E.C. c. Owner refuses or fails to give precedence to Government

order placed with notice that it is made pursuant to this section, or to

fill the order properly.

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

17.  201(a) of Defense         To 6/30/51.  But      Extended to        

   President may "requisition"          President determines that       

      None.                           President shall determine just

Production Act, 64 Stat.      see  716(a), 64    7/31/51, 65           

"equipment, supplies or com-         a. its use is "needed for na-      

                                   compensation as of the time 798, 799,

50 U.S.C.App.       Stat. 798, 822.       Stat. 110,             ponent

parts thereof, or mate-          tional defense,"                       

                            the property is taken; if owner 2081(a).    

                                   Extended to              rials or

facilities necessary for    b. the need is "immediate and               

                          is dissatisfied, he shall be 6/30/52,  111,   

    the manufacture, servicing,             impending," "will not ad-   

                                       promptly paid 75 percent of

Enacted 9/8/50;                                     65 Stat. 131,       

  or operation of such equip-             mit of delay or resort to     

                                     the amount determined by the

amendment, 65 Stat. 131,                            144.                

  ment, supplies, or component            any other source of supply,"  

                                     President and may sue within 132,

q.v., infra.                                                       

parts."  64 Stat. 798, 799.          c. other reasonable means of       

                                   three years in the district

Restricted in the main to               obtaining use of the prop-      

                                   courts or the Court of Claims,

personal property by  102(b),          erty have been exhausted         

                                  regardless of the amount in- 65 Stat.

132                                                                     

                          volved, for the rest of "just compensation."

18.  102(b)(2) of Defense      To 6/30/52, 65                           

   Court condemnation of real           President deems the real prop-  

      None.                           Under existing statutes for con-

Production Act Amend-         Stat. 131, 144.                           

  property in accordance with          erty "necessary in the interest  

                                     demnation.  Immediate pos- ments of

1951, 65 Stat.                                                   

existing statutes.                   of national defense."              

                                   session given only upon deposit 131,

132, 50 U.S.C.App.                                                      

                                                                        

                                of amount "estimated to be just 2081(b).

                                                                        

                                                                        

                          compensation," 75 percent of which is

immediately paid Enacted 7/31/51.                                       

                                                                        

                                                      without prejudice

to the owner. [343 U.S. 620]

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

APPENDIX II SUMMARY OF SEIZURES OF INDUSTRIAL PLANTS AND FACILITIES BY

THE PRESIDENT Civil War Period

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

DURATION OF PLANT OR FACILITY SEIZED            SEIZURE               

ORDER EFFECTING SEIZURE                              AUTHORITY CITED    

                       REASON FOR SEIZURE                           

OPERATIONS DURING SEIZURE

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

From       To

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

Railroads and telegraph lines     4/27/61     (?)      Order of

Secretary of War dated 4/27/61        None.                             

           Communications between Washington and          Northern

troops guarded railway and tele- between Washington and                 

               appointing Thomas A. Scott officer in                    

                                   the North were interrupted by bands

of         graph facilities; they were repaired and Annapolis, Md.      

                                  charge.  War of the Rebellion,

Official                                                      southern

sympathizers who destroyed            restored to operation under orders

of the Records of the Union and Confederate                             

                           railway and telegraph facilities.            

 Secretary of War. Armies, Ser. I, Vol. II, 603.

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

Telegraph lines.                  2/26/62     (?)      Order of

Secretary of War dated 2/25/62        "by virtue of the act of Congress"

(presum-   To insure effective transmission and secur-    Lines operated

under military supervision; appointing Anson Stager officer in charge.  

  ably Railroad and Telegraph Act of 1862,      ity of military

communications.                censorship of messages; lines extended

and Richardson, Messages and Papers of the         12 Stat. 334).       

                                                                      

completed subject to limitations of Joint Resolution of July 14, 1862,

12 Stat. 625.

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

Railroads.                        5/25/62   8/8/65     Order of

Secretary of War dated 5/25/62.       "by virtue of the authority vested

by act of  To insure effective priority to movement of    Railways

operated under military supervi- Richardson, Messages and Papers of the 

       Congress" (presumably Railroad and            troops and

supplies.                           sion; lines extended and completed

subject Presidents, Lincoln, Order of May 25,          Telegraph Act of

1862, 12 Stat. 334).                                                    

   to limitations of Joint Resolution of 1862.                          

                                                                        

                                   July 14, 1862, 12 Stat. 625;

interruption of regular passenger and freight traffic.

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

World War I Period

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

Bigelow-Hartford Carpet Co.,     12/27/17  12/31/19    Order of

Secretary of War, Req. 20A/C,         Constitution and laws.            

     Requisitioned for use of United States Car- Lowell, Mass.          

                               Ord. No. 62, dated 12/27/17.             

                                                   tridge Co. for

cartridge manufacture.

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

Railroads.                       12/28/17   3/1/20     Presidential

proclamation, 40 Stat. 1733       Joint Resolution of April 6, 1917.    

       Labor difficulties; congestion; ineffective    Wage increase;

changes in operating prac- Joint Resolution of Dec. 7, 1917.            

  operation in terms of war effort.              tices and procedures.

Act of Aug. 29, 1916. "all other powers thereto me enabling."

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

Liberty Ordnance Co., Bridge-     1/7/18    5/20/19    Order of

Secretary of War, Req. 26 A/C,        Constitution and laws.            

     Inadequate financing and other difficulties          Turned over to

American Can Co. for oper- port, Conn.                                  

         Ord. No. 27, dated 1/5/18.                                     

                             leading to failure to perform contract for 

   ation. manufacture of 75 mm. guns.

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

Hoboken Land & Improvement        2/28/18   4/1/19     Order of

Secretary of War, Req. 37 A/C,        Constitution and laws.            

     Requisitioned for use of Remington Arms- Co., Hoboken, N.J.        

                            Ord. No. 516, dated 2/28/18.                

                                                U.M.C. Co. for cartridge

manufacture.

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

Bijur Motor Appliance Co.,        4/1/18    5/1/19     Order of

Secretary of War, Req. 37 A/C,        Constitution and laws.            

     Requisitioned for use of Remington Arms- Hoboken, N.J.             

     8/15/18                Ord. No. 516, dated 2/28/18.                

                                                U.M.C. Co. for cartridge

manufacture.

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

Jewel Tea Co., Hoboken, N.J.      4/1/18    9/2/19     Order of

Secretary of War, Req. 37 A/C,        Constitution and laws.            

     Requisitioned for use of Remington Arms- U.M.C. Co. for cartridge

manufacture. [343 U.S. 621]

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

Telegraph lines.                  7/25/18   7/31/19    Presidential

proclamation, 40 Stat. 1807.      Joint Resolution of July 16, 1918.    

 Labor difficulties.                            Anti- union

discrimination terminated. "all other powers thereto me enabling."

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

Smith & Wesson, Springfield,      9/13/18   1/31/19    Order of

Secretary of War, Req. 709 B/C,       Constitution and laws.            

     Labor difficulties.                            Anti-union

discrimination terminated; opera- Mass.                                 

                Ord. No. 604, dated 8/31/18.                            

                                                                        

          tion by the National Operating Co., a Government corporation.

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

Federal Enameling & Stamp-        9/23/18  12/13/18    Order of

Secretary of War, Req. 738 B/C,       Constitution and laws.            

     Failure to fill compulsory order. ing Co., McKees Rocks, Pa.       

                     Ord. No. 609, dated 9/11/18.

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

Mosler Safe Co., Hamilton,        9/23/19   2/25/19    Order of

Secretary of War, Req. 781 B/C,       Constitution and laws.            

     Failure to fill compulsory order. Ohio.                            

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

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

Bush Terminal Co., Brooklyn,        (?)      (?)       (?)              

                             Act of Aug. 29, 1916.                   (?)

                                           (?) N.Y.                     

                                                                        

 Food and Fuel Act of 1917.

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

World War II Period -- Seizures Connected With Labor Disputes 1. Before

Pearl Harbor.

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

CHANGES IN CONDITIONS OF DURATION OF           EXECUTIVE                

                                  DURATION OF             EMPLOYMENT

DURING                                                   REPORTED LEGAL

PLANT OR FACILITY SEIZED               SEIZURE               ORDER      

   STATUTORY AUTHORITY CITED                   STOPPAGE                 

 SEIZURE                     BASIS FOR CHANGES                     

ACTION

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

From       To                                                           

      From     To

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

North American Aviation, Inc.,      6/9/41    7/2/71     8773.          

  None.  (Order cites contracts of com-    6/5/41    6/10/41   Property

returned on agreement      Agreement of parties on Na- Inglewood, Calif.

                                     6 Fed.Reg. 2777     pany with

Government and ownership                           of parties to wage

increase and     tional Defense Mediation by Government of machinery,

mate-                            maintenance of membership.         

Board recommendation. rials and work in progress in plant.)

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

Federal Shipbuilding & Drydock      8/23/41   1/6/42     8868.          

  None.  (Order cites contracts of com-    8/6/41    8/23/41  

Maintenance off membership          National Defense Mediation Co.,

Kearny, N.J.                                      6 Fed.Reg. 4349.   

pany with Government and ownership                           during

period of seizure.           Board recommendation. by Government of

vessels under con- struction, materials and equipment in yard.)

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

Air Associates, Inc., Bendix, N.J. 10/30/41  12/29/41    8928.          

  None.  (Order cites contracts of com-    7/11/41   7/27/41   Strikers

reinstated over replace-   Agreement of parties on Na- 6 Fed.Reg. 5559. 

  pany with Government and ownership                           ments

hired by company prior        tional Defense Mediation by Government of

facilities in plant.) 9/30/41  10/24/41     to seizure.                 

       Board recommendation.

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

[343 U.S. 621] 2. Between Pearl Harbor and the Passage of the War Labor

Disputes Act, June 25, 1943.

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

Toledo, P. & W. R. Co.              3/21/42  10/1/45     9108           

  None.                                   12/28/41   3/21/42   Wage

increase during period of      War Labor Board recommenda-     Toledo P.

& W. R. Co. v. Stover, 7 Fed.Reg. 2201                                  

                               seizure.                            tion.

                           60 F.Supp. 587 (S.D.Ill.1945).

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

General Cable Co., Bayonne, N.J.,   8/13/42   8/20/42    9220           

  None.                                    8/10/42   8/13/42   None.    

                          War Labor Board recommenda- plant.            

                                    7 Fed.Reg. 6413                     

                                                                        

       tion.

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

S. A. Woods Machine Co., South      8/19/42   8/25/45    9225.          

  None.                                     None.     None.   

Maintenance of membership.          War Labor Board recommenda- Boston,

Mass.                                          7 Fed.Reg. 6627          

                                                                        

                  tion.

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

Coal Mines.                         5/2/43   10/12/43    9340.          

  None.                                    4/22/43   5/2/43    Six-day

week; eight-hour day.       Order of the Secretary of In-   United

States v. Pewee Coal Co., 8 Fed.Reg. 5695.                              

                                  (To increase take-home pay.)       

terior.                         341 U.S. 114; NLRB v. West Ky. 6/1/43   

6/7/43*                                                                 

      Coal Co., 152 F.2d 198 (6th Cir. 1945); Glen Alden Coal Co. v.

6/20/43    (?)*                                                         

                NLRB, 141 F.2d 47 (3d Cir. 1944).

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

American R. Co. of Porto Rico.      5/13/43   7/1/44     9341           

  None.                                    5/12/43   5/13/43   Wage

increase.                      War Labor Board recommenda- 8 Fed.Reg.

6323.                                                                   

                                 tion.

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

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

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

Atlantic Basin Iron Works, Brook-   9/3/43    9/22/43    9375.          

  War Labor Disputes Act.                   None.     None.   

Maintenance of membership.          War Labor Board recommenda- lyn,

N.Y.                                              8 Fed.Reg. 12253.     

                                                                        

                     tion.

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

Coal Mines.                        11/1/43    6/21/44    9393.          

  War Labor Disputes Act.                 10/12/43  11/4/43*   Changes

in wages and hours.         Agreement with Secretary of 8 Fed.Reg.

14877.                                         11/1/43                  

                                 Interior.

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

Leather Manufacturers in Salem,    11/20/43  12/13/43    9395B.         

  None.                                    9/25/43  11/24/43*  None. 

(Jurisdictional strike.)     None. Peabody, and Danvers, Mass.          

                 8 Fed.Reg. 16957.                                      

 (sporadic) (sporadic)

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

Western Electric Co., Point Breeze 12/19/43   3/23/44    9408.          

  War Labor Disputes Act.                 12/14/43  12/19/43   None. 

(Strike in protest of War    None. plant, Baltimore, Md.                

                 8 Fed.Reg. 16958.                                      

                         Labor Board nonsegregation ruling.)

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

Railroads.                         12/30/45   1/18/44    9412.          

  Act of Aug. 29, 1916.                     None.     None.    Control

relinquished when par-      Presidential arbitration based  Thorne v.

Washington Terminal Co., 8 Fed.Reg. 16958                               

                                 ties accepted Presidential com-     on

Railway Labor Act Emer-     55 F.Supp. 139 (D.D.C.1944) promise of wage

demands.            gency Board recommendations.

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

Fall River, Mass., Textile Plants.  2/7/44    2/28/44    9420.          

  War Labor Disputes Act.                 12/13/43  2/14/44*   Property

returned upon agree-       War Labor Board recommenda- 9 Fed.Reg. 1563. 

                                                               ment by

parties on seniority        tion. provisions.

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

[343 U.S. 623] Department of Water and Power,      2/23/44   2/29/44   

9426.             War Labor Disputes Act.                  2/14/44  

2/24/44   None.                               None. Los Angeles, Calif. 

                                  9 Fed.Reg. 2113.

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

Jenkins Bros., Inc., Bridgeport,    4/13/44   6/15/44    9435.          

   9, Selective Service Act of 1940 as     None.     None.    Wage

increase.                      War Labor Board recommenda-     In re

Jenkins Bros., Inc., 15 Conn.                                           

      9 Fed.Reg. 2113.    amended.                                      

                                                  tion.                 

         W.L.R. 719 (D.D.C.1944).**

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

Ken-Rad Tube & Lamp Co.,            4/13/44   6/15/44    9436.          

   9, Selective Service Act of 1940 as     None.     None.    Changes in

wage scales; main-       War Labor Board recommenda-     Ken-Rad Tube &

Lamp Corp. v. Owensboro, Ky.                                         9

Fed.Reg. 4063.    amended.                                              

      tenance of membership.              tion.                         

 Badeau, 55 F.Supp. 193 (W.D.Ky. 1944).**

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

Montgomery Ward & Co., Chi-         4/25/44   5/9/44     9438.          

  None.                                     None.     None.    None. 

(Government extended         War Labor Board recommenda-     United

States v. Montgomery Ward & cago, Ill., facilities.                     

          9 Fed.Reg. 4459.                                              

                  expired contract pending            tion.             

             Co., 150 F.2d 369 NLRB election to determine               

                          (7th Cir.1945).** bargaining representative.)

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

Montgomery Ward & Co., Hum-         5/21/44   7/2/45     9443.          

   9, Selective Service Act of 1940 as    5/5/44    5/21/44  

Maintenance of membership;          War Labor Board recommenda- mer Mfg.

division, Springfield,                        9 Fed.Reg. 5395    

amended.                                                     voluntary

check-off.                tion. Ill.

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

Philadelphia Transportation Co.,    8/3/44    8/17/44    9459.          

  Act of Aug. 29, 1916.                    8/1/44    8/7/44*   None. 

(Strike is protest of        None                            United

States v. McMenamin, 58 F. Philadelphia, Pa.                            

         9 Fed.Reg. 9878.  First War Powers Act of 1941.                

                 WLB nonsegregation ruling.)                            

            Supp. 478 (E.D.Pa.1944).** 9 of Selective Service Act of

1940, as amended.

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

Midwest Trucking Operators.         8/11/44   1/1/45     9462.          

  Act of Aug. 29, 1916.                    8/4/44    8/11/44   Wage

increase.                      War Labor Board recommen- 11/1/45     9

Fed.Reg. 10071. First War Powers Act of 1941.                           

                                          dation. 9, Selective Service

Act of 1940, as amended by the War Labor Disputes Act.

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

San Francisco, Calif., Machine      8/14/44   9/14/45    9463.          

   9, Selective Service Act of 1940 as    Sporadic. Sporadic. Union

agreed not to discipline      War Labor Board recommend-      San

Francisco Lodge No. 68 IAM v. Shops.                            8/19/44 

            9 Fed.Reg. 9879.    amended.                                

                    employees who worked over-          dation.         

               Forrestal, 58 F.Supp. 466 9466.                          

                                                 time.  Cancellation of

em-                                          (N.D.Calif. 1944). 9

Fed.Reg. 10139.                                                         

      ployee draft deferments, gas rations, and job referral rights.

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

Anthracite Coal Mines.              8/23/44   2/24/45    9469.          

   9, Selective Service Act of 1940 as    6/29/44   8/23/44   None.     

                         None. 9/19/44              9 Fed.Reg. 10343.  

amended by the War Labor Disputes Act.                                  

8/?/44   9/?/44

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

International Nickel Co., Hunt-     8/29/44  10/14/44    9473.          

   9, Selective Service Act of 1940 as    8/18/44   8/29/44   None.     

                         None. ington, W.Va., plant.                    

             9 Fed.Reg. 10613.   amended.

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

[343 U.S. 624] Hughes Tool Co., Houston Tex.,      9/2/44    8/29/45   

9475A.             9, Selective Service Act of 1940 as     None.    

None.    Maintenance of membership           War Labor Board recommenda-

facilities.                                            9 Fed.Reg. 10943.

  amended.                                                     during

period of seizure.           dation.

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

Cleveland Graphite Bronze Co.,      9/5/44   11/8/44     9477.          

   9, Selective Service Act of 1940 as    8/31/44   9/5/44    Union

agreed to arbitrate griev-    War Labor Board recommenda- Cleveland,

Ohio.                                       9 Fed.Reg. 10941.   amended

by the War Labor Disputes                            ance which had

precipitated         dation. Act.                                       

                 the strike.

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

Twentieth Century Brass Works,      9/9/44    2/17/45    9480.          

   9, Selective Service Act of 1940 as    8/21/44   9/9/44    Wage

increase.                      War Labor Board recommenda- Inc.,

Minneapolis, Minn.                               9 Fed.Reg. 11143.  

amended.                                                                

                        tion.

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

Farrell Cheeck Steel Co., Sandus-   9/23/44   8/28/45    9484.          

   9, Selective Service Act of 1940 as    9/11/44   9/23/44   Wage

increase; maintenance of       War Labor Board recommenda- ky, Ohio.    

                                         9 Fed.Reg. 11731    amended by

the War Labor Disputes                            membership during

period of         tion. Act.                                            

            seizure.

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

Toledo, Ohio, Machine Shops.       11/4/44   11/6/44     9496.          

   9, Selective Service Act of 1940 as   10/27/44  11/5/44    None. 

(Jurisdictional strike.)     None. 9 Fed.Reg. 13187.   amended by the

War Labor Disputes Act.

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

Cudahy Bros. Co., Cudahy, Wis.     12/6/44    8/31/45    9505.          

   9, Selective Service Act of 1940 as     None.     None.   

Maintenance of membership;          War Labor Board recommenda- 9

Fed.Reg. 14473.   amended by the War Labor Disputes                     

      voluntary check-off.                tion. Act.

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

Montgomery Ward & Co., Detroit,    12,27/44  10/18/45    9508.          

  War Labor Disputes Act.                 12/9/44   12/27/44  

Maintenance of membership and       War Labor Board recommenda-    

National War Labor Board v. Mont- Mich., and other facilities.          

                9 Fed.Reg. 15079.  9, Selective Service Act of 1940 as  

                       voluntary check-off during          tion.        

                  gomery Ward & Co., 144 F.2d 528 amended.              

                                      period of seizure.                

                                 (D.C.Cir.1944).

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

Cleveland Electric Illuminating     1/13/45   1/15/45    9511.          

   9, Selective Service Act of 1940 as    1/12/45   1/13/45   None.     

                         None. Co., Cleveland, Ohio.                    

             10 Fed.Reg. 549.    amended.

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

Bingham & Garfield R.R., Utah.      1/24/45   8/29/45    9516.          

  Act of Aug. 29, 1916.                    1/23/45   1/24/45   Property

returned upon agree-       Railway Labor Act Emergency 10 Fed.Reg. 1313.

First War Powers Act of 1941.                                  ment by

parties on wage scale       Board recommendation. War Labor Disputes

Act.                                        for certain positions.

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

American Enka Corp., Enka, N.C.     2/18/45   6/6/45     9523.          

  War Labor Disputes Act.                  2/7/45     2/18/45  None. 

(Strike over question of     War Labor Board recommenda- 10 Fed.Reg.

2133. Selective Service Act as amended.                             

contract interpretation sub-        tion. mitted to arbitration.)

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

Coal Mines: Bituminous.                       4/10/45   5/12/45    9536.

                                                     4/1/45    4/11/45  

Wage increase.                      Agreement of parties. 10/25/45    10

Fed.Reg. 3939.  9, Selective Service Act as amended by the War Labor

Disputes Act. Anthracite.                       5/3/45    6/23/45   

9548.                                                      5/1/45   

6/24/45*  Wage increase.                      Agreement of parties. 10

Fed.Reg. 5025.

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

Cities Service Refining Corp.,      4/17/45  12/23/45    9540.          

   9, Selective Service Act of 1940 as     (?)      4/17/45   None. 

(Strike over housing         None. Lake Charles, La., plant.            

                 10 Fed.Reg. 4193.   amended by the War Labor Disputes  

                         conditions.) Act.

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

United Engineering Co., Ltd.,       4/25/45   8/31/45    9542.          

   9, Selective Service Act of 1940 as    4/12/45    (?)*     Union's

privileges under con-       War Labor Board recommenda- San Francisco,

Calif.                                  10 Fed.Reg. 4591.   amended by

the War Labor Disputes                            tract revoked.        

             tion. Act.

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

Cocker Machine & Foundry Co.,       5/20/45   8/31/45    9552.          

   9, Selective Service Act of 1940 as     (?)      5/20/45   Wage

increase; maintenance of       War Labor Board recommenda- Gastonia,

N.C.                                         10 Fed.Reg. 5757.   amended

by the War Labor Disputes                            membership during

period of         tion. Act.                                            

            seizure.

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

Chicago, Ill., Motor Carriers.      5/23/45   8/16/45    9554.          

   9, Selective Service Act of 1940 as    5/19/45   5/24/45   Wage

increase.                      War Labor Board recommenda- 10 Fed.Reg.

5981.   amended by the War Labor Disputes                               

                                tion. Act.                              

    6/16/45   6/27/45* Act of Aug. 29, 1916. First War Powers Act of

1941.

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

Gaffney Mfg. Co., Gaffney, S.C.     5/28/45   9/9/45     9559.          

   9, Selective Service Act of 1940 as     (?)      5/28/45   Wage

increase and maintenance       War Labor Board recommenda- 10 Fed.Reg.

6287.   amended by the War Labor Disputes                            of

membership during period         tion. Act.                             

                           of seizure.

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

Mary-Leila Cotton Mills, Greens-    6/1/45    8/31/45    9560.          

   9, Selective Service Act of 1940 as    4/1/45    6/1/45    Contract

extension; mainte-         War Labor Board recommenda- boro, Ga.        

                                     10 Fed.Reg. 6547.   amended by the

War Labor Disputes                            nance of membership and

vol-        tion. Act.                                                  

      untary check-off during period of seizure.

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

Humble Oil & Refining Co., Ingle-   6/5/45    8/3/45     9564.          

   9, Selective Service Act of 1940 as     None.     None.   

Maintenance of membership           War Labor Board recommenda-    

Eighth Regional War Labor Bd. v. side, Tex., plant.                     

               10 Fed.Reg. 6791.   amended by the War Labor Disputes    

                       during period of seizure.           tion.        

                  Humble Oil & Refining Co., 145 Act.                   

                                                                        

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

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

Pure Oil Co., Cabin Creek oil       6/6/45    9/10/45    9565.          

   9, Selective Service Act of 1940 as    5/14/45   6/6/45   

Maintenance of membership           War Labor Board recommenda- field,

Dawes, W.Va., facilities.                       10 Fed.Reg. 6792.  

amended by the War Labor Disputes                            during

period of seizure.           tion. Act.

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

Scranton Transit Co., Scranton,     6/14/45   7/8/45     9570.          

   9, Selective Service Act of 1940 as    5/20/45   6/14/45   None.     

                         None. Pa.                                      

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

putes Act. Act of Aug. 20, 1916. First War Powers Act of 1941.

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

Diamond Alkali Co., Painesville,    6/19/45   7/19/45    9574.          

   9, Selective Service Act of 1940 as    6/15/45   6/19/45   Property

returned upon agree-       None. Ohio.                                  

               10 Fed.Reg. 7435.   amended by the War Labor Disputes    

                       ment by parties to wage in- Act.                 

                                       crease.

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

Texas Co., Port Arthur, Tex.,       7/1/45    9/10/45    9577A.         

   9, Selective Service Act of 1940 as    6/29/45   7/1/45    None. 

(Strike over racial dis- plant.                                         

       10 Fed.Reg. 8090.   amended by the War Labor Disputes            

               crimination.) Act.

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

Goodyear Tire & Rubber Co.,         7/4/45    8/30/45    9585.          

   9, Selective Service Act of 1940 as    6/20/45  7/4/45     Agreement

by union to submit        (?). Akron, Ohio.                             

             10 Fed.Reg. 8335.   amended by the War Labor Disputes      

                     future disputes to federal Act.                    

                                    agency.

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

Sinclair Rubber Co., Houston,       7/19/45  11/19/45    9589A.         

   9, Selective Service Act of 1940 as     None.     None.    Change in

union security ar-        War Labor Board recommenda- Tex., butadiene

plant.                                 10 Fed.Reg. 8949.   amended by

the War Labor Disputes                            rangements.           

             tions. Act.

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

Springfield Plywood Co., Spring-    7/25/45   8/30/45    9593.          

   9, Selective Service Act of 1940 as     (?)     7/25/45    None.     

                         None. field, Oreg.                             

             10 Fed.Reg. 9379.   amended by the War Labor Disputes Act.

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

U.S. Rubber Co., Detroit, Mich.,    7/31/45  10/10/45    9595.          

   9, Selective Service Act of 1940 as    7/14/45  7/31/45    None.     

                         None. facilities.                              

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

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

4. Between VJ Day and the Expiration of the War Labor Disputes Act

Seizure Powers, Dec. 31, 1946.

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

Illinois Central R. Co.             8/23/45   5/27/46    9602.          

   9, Selective Service Act of 1940 as     None.     None.    None. 

(Jurisdictional strike)      Railway Labor Act Emergency 10 Fed.Reg.

10957.  amended by  3 of the War Labor                                  

                               Board recommended against Disputes Act.  

                                                                        

        change. Act of Aug. 29, 1916. First War Powers Act of 1941.

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

Petroleum Refineries and Pipe-     10/4/45   12/12/45    9639.          

   9, Selective Service Act of 1940 as    9/16/45 10/5/45     Plants

returned on agreement of     Ad hoc factfinding board recom- lines. 

(One-half national re-              2/?/46     10 Fed.Reg. 12592. 

amended by the War Labor Disputes                            owners to

18 percent wage           mendation. fining capacity.)                  

                                       Act.                             

                           increase.

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

Capital Transit Co., Washington,   11/21/45   1/7/46     9658.          

   9, Selective Service Act of 1940 as   11/6/45  11/7/45     Facilities

returned when parties    Ad hoc arbitration board award. D.C.           

                                       10 Fed.Reg. 14351.  amended by  3

of the War Labor                              agreed to arbitration

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

wages. Act of Aug. 29, 1916. First War Powers Act of 1941.

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

Great Lakes Towing Co., Cleve-     11/29/45  12/18/46    9661.          

   9.  Selective Service Act of 1940 as   9/4/45   11/29/45   Wage

increase.                      National Wage Stabilization land, Ohio.  

                                         10 Fed.Reg. 14591.  amended by 

3 of the War Labor       11/1/45                                        

           Board recommendation. Disputes Act. Act. of Aug. 29, 1916.

First War Powers Act of 1941.

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

Meatpacking Industry.               1/24/46   3/12/46    9685.          

   9, Selective Service Act of 1940 as    1/16/46   1/28/46*  Plants

returned as companies        Ad hoc factfinding board recom- 5/22/46   

11 Fed.Reg. 989.    amended by the War Labor Disputes                   

        agreed to wage increase rec-        mendation approved by Na-

9690.               Act.                                                

        ommended by factfinding             tional Wage Stabilization 11

Fed.Reg. 1337.                                                          

     board.                              Board.

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

[343 U.S. 627] New York Harbor Tugboat Com-        2/5/46    3/3/46    

9693.              9, Selective Service Act of 1940 as    2/4/46   

2/13/46*  Properties returned after agree-    None. panies.             

                                  11 Fed.Reg. 1421.   amended by  3 of

the War Labor dis-                         ment of parties to arbitrate

putes Act.                                                   dispute.

Act of Aug. 29, 1916. First War Powers Act of 1941.

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

Railroads.                          5/17/46   5/26/46    9727.          

   9, Selective Service Act of 1940 as    5/23/46   5/25/46*  Properties

returned after unions    Railway Labor Act Emergency 11 Fed.Reg. 5461.  

 amended by  3 of the War Labor Dis-                        agreed to

Presidential com-         Board recommendation as putes Act.            

                                     promise of wage demands.           

modified by President. Act of Aug. 29, 1916. First War Powers Act of

1941.

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

Bituminous Coal Mines.              5/21/46   6/30/47    9728.          

   9, Selective Service Act of 1940 as    4/1/46    5/11/46   Wage

increase, welfare and re-      Contract between union and      United

States v. United Mine 11 Fed.Reg. 5593.   amended by the War Labor

Disputes                            tirement fund, mine safety         

Secretary of Interior.          Workers, 330 U.S. 258, Jones & Act.     

                             5/23/46   5/25/46*    provisions, and

recognition of                                      Laughlin Steel Co.

v. UMW, 159 UMW as representative of                                    

       F.2d 18 (D.C.Cir.1946); Krug v. supervisory employees during     

                                  Fox, 161 F.2d 1013 (4th Cir. period of

seizure.                                                  1947).**

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

Monongahela Connecting R. Co.,      6/14/46   8/12/46    9736.          

   8, Selective Service Act of 1940 as    6/10/46   6/14/46   None. 

(Property returned on        None. Pittsburgh, Pa.                      

                 11 Fed.Reg. 6661.   amended by  3 of the War Labor Dis-

                        recession of union from wage putes Act.         

                                         demands.) Act of Aug. 29, 1916.

First War Powers Act of 1941.

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

5. Since the expiration of the War Labor Disputes Act Seizure Powers,

Dec. 31, 1946.

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

Railroads.                          5/10/48   7/9/48     9957.          

  Act of Aug. 29, 1916.                     None.     None.    Property

returned on agreement      Railway Labor Act Emergency     United States

v. Brotherhood of 13 Fed.Reg. 2502.                                     

                          of parties to wage increase.        Board

recommendation as         Locomotive Engineers, 79 F.Supp. modified.    

                  485 (D.D.C.1948).

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

Chicago, Rock Island & Pacific      7/8/50    5/23/52    10141.         

  Act of Aug. 29, 1916.                    6/25/50   7/8/50    Property

returned on agreement      Railway Labor Act Emergency R.Co.            

                                     15 Fed.Reg. 4363.                  

                                             of parties to wage

increase.        Board recommendation as modified.

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

Railroads.                          8/27/50   5/23/52    10155.         

  Act of Aug. 29, 1916.                   12/10/50  12/15/50   Agreement

reached by carriers       Railway Labor Act Emergency 15 Fed.Reg. 5785. 

                                                              and some

of the Brotherhoods        Board recommendation as 1/29/51   2/19/51    

put into effect.  Property re-      modified. turned on agreement of

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

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

[343 U.S. 628] World War II Period -- Seizures Unconnected with Labor

Disputes

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

DURATION OF           EXECUTIVE PLANT OR FACILITY SEIZED              

SEIZURE               ORDER          STATUTORY AUTHORITY CITED          

                 REASONS FOR SEIZURE                                 

CHANGES INSTITUTED DURING SEIZURE

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

From       To

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

Grand River Dam Authority, Okla-   11/19/41   7/41/46    8944.          

   16, Federal Power Act.                  This was a State power

project, financed by federal          Federal Works Administrator

replaced management homa.                                               

  6 Fed.Reg. 5947.                                              loan and

grant.  Seizure was based on (1) State de-          and completed the

project.  Transferred to Depart- fault on loan interest; (2) refusal of

State legislature     ment of Interior, Executive Order No. 9373, 8 Fed.

to issue bonds to complete financing; (3) failure to         Reg. 12001,

8/30/43.  Returned pursuant to Act of meet scheduled completion date in

power-short de-            July 31, 1946, 60 Stat. 743. fense ares.

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

Brewster Aeronautical Corp., Long   4/18/42   5/20/42    9141.          

  None.                                     (1) Inefficient management;

(2) failure to operate at        New board of directors and officers

installed; majority Island City, N.U., Newark,                          

  7 Fed.Reg. 2961.                                              full

capacity; (3) failure to maintain delivery sched-       shareholders

established 2 1/2-year voting trust in favor N.J., Johnsville, Pa.      

                                                                        

                ules on Army and Navy aircraft.  (Congressional         

    of new president. investigation suggested labor difficulties as

well, due to employment of enemy aliens.)

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

Triumph Explosives, Inc., Mary-    10/12/42   2/28/43    9254.          

  None.                                     Overpayments (presumably

bribes) of $1,400,000 to            New board of directors and officers;

indictments against land and Delaware plants.                   6/5/43  

  7 Fed.Reg. 8333.                                             

procurement officers.                                        former

officials.

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

Howarth Pivoted Bearings Co.,       6/14/43   8/25/45    9351.          

  None.                                     Inefficient management.     

                                Designees of Secretary of Navy operated

plant for Philadelphia, Pa.                                      8

Fed.Reg. 8097.                                                          

                                                duration of war.

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

Remington Rand, Inc., Southport,   11/23/43   9/30/44    9399.          

   9, Selective Service Act of 1940 as     (1) Norden bombsight parts

production of unaccept-           Designees of Secretary of Navy

supervised operations N.Y., plant.                                      

    8 Fed.Reg. 16269.   amended.                                  able

quality; (2) deliveries behind schedule.                for duration of

seizure.

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

Los Angeles Shipbuilding & Dry-    12/8/43    8/25/45    9400.          

   9, Selective Service Act of 1940 as     (1) Excessive costs; (2)

production behind schedule.         Operated by contractor (Todd

Shipyard Co.) for dura- dock Corp., Los Angeles, Calif.                 

      8 Fed.Reg. 16641.   amended.                                      

                                                        tion of war.

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

York Safe & Lock Co., York, Pa.     1/23/44   3/15/45    9416.          

   9, Selective Service Act of 1940 as     (1) Inefficient management;

(2) deliveries behind            Designees of Secretary of Navy operated

company for 9 Fed.Reg.936.      amended.                                

 schedule.                                                    duration

of war, except for a portion which was con- demned and transferred to

Blaw-Knox Co.

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

Lord Mfg. Co., Erie, Pa.           10/24/45   8/25/45    9493.          

  Tit. VIII, Revenue Act of 1943.           Refusal to deliver items at

"fair and reasonable             Designees of Secretary of Navy operated

company for 9 Fed.Reg. 12860.  9, Selective Service Act of 1940 as      

prices" fixed by the Secretary of the Navy in con-           duration of

war. amended.

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

[343 U.S. 629] DOUGLAS, J., concurring



MR. JUSTICE DOUGLAS, concurring.



There can be no doubt that the emergency which caused the President to

seize these steel plants was one that bore heavily on the country.  But

the emergency did not create power; it merely marked an occasion when

power should be exercised.  And the fact that it was necessary that

measures be taken to keep steel in production does not mean that the

President, rather than the Congress, had the constitutional authority to

act.  The Congress, as well as the President, is trustee of the national

welfare.  The President can act more quickly than the Congress.  The

President, with the armed services at his disposal, can move with force,

as well as with speed.  All executive power -- from the reign of ancient

kings to the rule of modern dictators -- has the outward appearance of

efficiency.



Legislative power, by contrast, is slower to exercise.  There must be

delay while the ponderous machinery of committees, hearings, and debates

is put into motion.  That takes time, and, while the Congress slowly

moves into action, the emergency may take its toll in wages, consumer

goods, war production, the standard of living of the people, and perhaps

even lives.  Legislative action may indeed often be cumbersome,

time-consuming, and apparently inefficient.  But, as Mr. Justice

Brandeis stated in his dissent in Myers v. United States, 272 U.S. 52,

293: The doctrine of the separation of powers was adopted by the

Convention of 1787 not to promote efficiency, but to preclude the

exercise of arbitrary power.  The purpose was not to avoid friction,

but, by means of the inevitable friction incident to the distribution of

the governmental powers among three departments, to save the people from

autocracy. [343 U.S. 630]



We therefore cannot decide this case by determining which branch of

government can deal most expeditiously with the present crisis.  The

answer must depend on the allocation of powers under the Constitution. 

That, in turn, requires an analysis of the conditions giving rise to the

seizure, and of the seizure itself.



The relations between labor and industry are one of the crucial problems

of the era.  Their solution will doubtless entail many methods --

education of labor leaders and business executives; the encouragement of

mediation and conciliation by the President and the use of his great

office in the cause of industrial peace, and the passage of laws.  Laws

entail sanctions -- penalties for their violation.  One type of sanction

is fine and imprisonment.  Another is seizure of property.  An industry

may become so lawless, so irresponsible, as to endanger the whole

economy.  Seizure of the industry may be the only wise and practical

solution.



The method by which industrial peace is achieved is of vital importance

not only to the parties, but to society as well.  A determination that

sanctions should be applied, that the hand of the law should be placed

upon the parties, and that the force of the courts should be directed

against them is an exercise of legislative power.  In some nations, that

power is entrusted to the executive branch as a matter of course or in

case of emergencies.  We chose another course.  We chose to place the

legislative power of the Federal Government in the Congress.  The

language of the Constitution is not ambiguous or qualified.  It places

not some legislative power in the Congress; Article I, Section 1 says



All legislative Powers herein granted shall be vested in a Congress of

the United States, which shall consist of a Senate and House of

Representatives.



The legislative nature of the action taken by the President seems to me

to be clear.  When the United States [343 U.S. 631] takes over an

industrial plant to settle a labor controversy, it is condemning

property.  The seizure of the plant is a taking in the constitutional

sense.  United States v Pewee Coal Co., 341 U.S. 114.  A permanent

taking would amount to the nationalization of the industry.  A temporary

taking falls short of that goal.  But though the seizure is only for a

week or a month, the condemnation is complete, and the United States

must pay compensation for the temporary possession.  United States v.

General Motors Corp., 323 U.S. 373; United States v. Pewee Coal Co.,

supra.



The power of the Federal Government to condemn property is well

established.  Kohl v. United States, 91 U.S. 367.  It can condemn for

any public purpose, and I have no doubt but that condemnation of a

plant, factory, or industry in order to promote industrial peace would

be constitutional.  But there is a duty to pay for all property taken by

the Government.  The command of the Fifth Amendment is that no "private

property be taken for public use, without just compensation."  That

constitutional requirement has an important bearing on the present case.



The President has no power to raise revenues.  That power is in the

Congress by Article I, Section 8 of the Constitution.  The President

might seize, and the Congress, by subsequent action, might ratify the

seizure.  But, until and unless Congress acted, no condemnation would be

lawful.  The branch of government that has the power to pay compensation

for a seizure is the only one able to authorize a seizure or make lawful

one that [343 U.S. 632] the President has effected.  That seems to me to

be the necessary result of the condemnation provision in the Fifth

Amendment.  It squares with the theory of checks and balances expounded

by MR. JUSTICE BLACK in the opinion of the Court, in which I join.



If we sanctioned the present exercise of power by the President, we

would be expanding Article II of the Constitution and rewriting it to

suit the political conveniences of the present emergency.  Article II,

which vests the "executive Power" in the President, defines that power

with particularity.  Article II, Section 2, makes the Chief Executive

the Commander in Chief of the Army and Navy.  But our history and

tradition rebel at the thought that the grant of military power carries

with it authority over civilian affairs.  Article II, Section 3 provides

that the President shall, from time to time give to the Congress

Information of the State of the Union, and recommend to their

Consideration such Measures as he shall judge necessary and expedient.

The power to recommend legislation, granted to the President, serves

only to emphasize that it is his function to recommend, and that it is

the function of the Congress to legislate.  Article II, [343 U.S. 633]

Section 3, also provides that the President "shall take Care that the

Laws be faithfully executed."  But, as MR. JUSTICE BLACK and MR. JUSTICE

FRANKFURTER point out, the power to execute the laws starts and ends

with the laws Congress has enacted.



The great office of President is not a weak and powerless one.  The

President represents the people, and is their spokesman in domestic and

foreign affairs.  The office is respected more than any other in the

land.  It gives a position of leadership that is unique.  The power to

formulate policies and mould opinion inheres in the Presidency and

conditions our national life.  The impact of the man and the philosophy

he represents may at times be thwarted by the Congress.  Stalemates may

occur when emergencies mount and the Nation suffers for lack of

harmonious, reciprocal action between the White House and Capitol Hill. 

That is a risk inherent in our system of separation of powers.  The

tragedy of such stalemates might be avoided by allowing the President

the use of some legislative authority.  The Framers with memories of the

tyrannies produced by a blending of executive and legislative power

rejected that political arrangement.  Some future generation may,

however, deem it so urgent that the President have legislative authority

that the Constitution will be amended.  We could not sanction the

seizures and condemnations of the steel plants in this case without

reading Article II as giving the President not only the power to execute

the laws, but to make some.  Such a step would most assuredly alter the

pattern of the Constitution.



We pay a price for our system of checks and balances, for the

distribution of power among the three branches of government.  It is a

price that today may seem exorbitant to many.  Today, a kindly President

uses the seizure power to effect a wage increase and to keep the steel

furnaces in production.  Yet tomorrow, another [343 U.S. 634] President

might use the same power to prevent a wage increase, to curb trade

unionists, to regiment labor as oppressively as industry thinks it has

been regimented by this seizure. JACKSON, J., concurring



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

Court.



That comprehensive and undefined presidential powers hold both practical

advantages and grave dangers for the country will impress anyone who has

served as legal adviser to a President in time of transition and public

anxiety.  While an interval of detached reflection may temper teachings

of that experience, they probably are a more realistic influence on my

views than the conventional materials of judicial decision which seem

unduly to accentuate doctrine and legal fiction.  But, as we approach

the question of presidential power, we half overcome mental hazards by

recognizing them.  The opinions of judges, no less than executives and

publicists, often suffer the infirmity of confusing the issue of a

power's validity with the cause it is invoked to promote, of confounding

the permanent executive office with its temporary occupant.  The

tendency is strong to emphasize transient results upon policies -- such

as wages or stabilization -- and lose sight of enduring consequences

upon the balanced power structure of our Republic.



A judge, like an executive adviser, may be surprised at the poverty of

really useful and unambiguous authority applicable to concrete problems

of executive power as they actually present themselves.  Just what our

forefathers did envision, or would have envisioned had they foreseen

modern conditions, must be divined from materials almost as enigmatic as

the dreams Joseph was called upon to interpret for Pharaoh.  A century

and a half of partisan debate and scholarly speculation yields no net

result, but only supplies more or less apt quotations from [343 U.S.

635] respected sources on each side of any question.  They largely

cancel each other.  And court decisions are indecisive because of the

judicial practice of dealing with the largest questions in the most

narrow way.



The actual art of governing under our Constitution does not, and cannot,

conform to judicial definitions of the power of any of its branches

based on isolated clauses, or even single Articles torn from context.

While the Constitution diffuses power the better to secure liberty, it

also contemplates that practice will integrate the dispersed powers into

a workable government.  It enjoins upon its branches separateness but

interdependence, autonomy but reciprocity.  Presidential powers are not

fixed but fluctuate depending upon their disjunction or conjunction with

those of Congress.  We may well begin by a somewhat over-simplified

grouping of practical situations in which a President may doubt, or

others may challenge, his powers, and by distinguishing roughly the

legal consequences of this factor of relativity.



1. When the President acts pursuant to an express or implied

authorization of Congress, his authority is at its maximum, for it

includes all that he possesses in his own right plus all that Congress

can delegate.  In these circumstances, [343 U.S. 636] and in these only,

may he be said (for what it may be worth) to personify the federal

sovereignty.  If his act is held unconstitutional under these

circumstances, it usually means that the Federal Government, [343 U.S.

637] as an undivided whole, lacks power.  A seizure executed by the

President pursuant to an Act of Congress would be supported by the

strongest of presumptions and the widest latitude of judicial

interpretation, and the burden of persuasion would rest heavily upon any

who might attack it.



2. When the President acts in absence of either a congressional grant or

denial of authority, he can only rely upon his own independent powers,

but there is a zone of twilight in which he and Congress may have

concurrent authority, or in which its distribution is uncertain. 

Therefore, congressional inertia, indifference or quiescence may

sometimes, at least, as a practical matter, enable, if not invite,

measures on independent presidential responsibility.  In this area, any

actual test of power is likely to depend on the imperatives of events

and contemporary imponderables, rather than on abstract theories of law.



3. When the President takes measures incompatible with the expressed or

implied will of Congress, his power is at its lowest ebb, for then he

can rely only upon his own constitutional powers minus any

constitutional powers of Congress over the matter.  Courts can sustain

exclusive presidential control in such a case only by disabling [343

U.S. 638] the Congress from acting upon the subject.  Presidential claim

to a power at once so conclusive and preclusive must be scrutinized with

caution, for what is at stake is the equilibrium established by our

constitutional system.



Into which of these classifications does this executive seizure of the

steel industry fit?  It is eliminated from the first by admission, for

it is conceded that no congressional authorization exists for this

seizure.  That takes away also the support of the many precedents and

declarations which were made in relation, and must be confined, to this

category. [343 U.S. 639]



Can it then be defended under flexible tests available to the second

category?  It seems clearly eliminated from that class, because Congress

has not left seizure of private property an open field, but has covered

it by three statutory policies inconsistent with this seizure.  In cases

where the purpose is to supply needs of the Government itself, two

courses are provided:  one, seizure of a plant which fails to comply

with obligatory orders placed by the Government; another, condemnation

of facilities, including temporary use under the power of eminent

domain.  The third is applicable where it is the general economy of the

country that is to be protected, rather than exclusive governmental

interests.  None of these were invoked.  In choosing a different and

inconsistent way of his own, the President cannot claim that it is

necessitated or invited by failure of Congress to legislate upon the

occasions, grounds and methods for seizure of industrial properties.

[343 U.S. 640]



This leaves the current seizure to be justified only by the severe tests

under the third grouping, where it can be supported only by any

remainder of executive power after subtraction of such powers as

Congress may have over the subject.  In short, we can sustain the

President only by holding that seizure of such strike-bound industries

is within his domain and beyond control by Congress.  Thus, this Court's

first review of such seizures occurs under circumstances which leave

presidential power most vulnerable to attack and in the least favorable

of possible constitutional postures.



I did not suppose, and I am not persuaded, that history leaves it open

to question, at least in the courts, that the executive branch, like the

Federal Government as a whole, possesses only delegated powers.  The

purpose of the Constitution was not only to grant power, but to keep it

from getting out of hand.  However, because the President does not enjoy

unmentioned powers does not mean that the mentioned ones should be

narrowed by a niggardly construction.  Some clauses could be made almost

unworkable, as well as immutable, by refusal to indulge some latitude of

interpretation for changing times.  I have heretofore, and do now, give

to the enumerated powers the scope and elasticity afforded by what seem

to be reasonable, practical implications, instead of the rigidity

dictated by a doctrinaire textualism.



The Solicitor General seeks the power of seizure in three clauses of the

Executive Article, the first reading, "The executive Power shall be

vested in a President of the United States of America."  Lest I be

thought to exaggerate, I quote the interpretation which his brief puts

upon it:  "In our view, this clause constitutes a grant of all the

executive powers of which the Government is capable."  If that be true,

it is difficult to see why the [343 U.S. 641] forefathers bothered to

add several specific items, including some trifling ones.



The example of such unlimited executive power that must have most

impressed the forefathers was the prerogative exercised by George III,

and the description of its evils in the Declaration of Independence

leads me to doubt that they were creating their new Executive in his

image.  Continental European examples were no more appealing.  And, if

we seek instruction from our own times, we can match it only from the

executive powers in those governments we disparagingly describe as

totalitarian.  I cannot accept the view that this clause is a grant in

bulk of all conceivable executive power, but regard it as an allocation

to the presidential office of the generic powers thereafter stated.



The clause on which the Government next relies is that "The President

shall be Commander in Chief of the Army and Navy of the United States. .

. ."  These cryptic words have given rise to some of the most persistent

controversies in our constitutional history.  Of course, they imply

something more than an empty title.  But just what authority goes with

the name has plagued presidential advisers who would not waive or narrow

it by nonassertion, yet cannot say where it begins or ends.  It

undoubtedly puts the Nation's armed forces under presidential command. 

Hence, this loose appellation is sometimes advanced as support for any

presidential action, internal or external, involving use of force, the

[343 U.S. 642] idea being that it vests power to do anything, anywhere,

that can be done with an army or navy.



That seems to be the logic of an argument tendered at our bar -- that

the President having, on his own responsibility, sent American troops

abroad derives from that act "affirmative power" to seize the means of

producing a supply of steel for them.  To quote, Perhaps the most

forceful illustration of the scope of Presidential power in this

connection is the fact that American troops in Korea, whose safety and

effectiveness are so directly involved here, were sent to the field by

an exercise of the President's constitutional powers. Thus, it is said,

he has invested himself with "war powers."



I cannot foresee all that it might entail if the Court should indorse

this argument.  Nothing in our Constitution is plainer than that

declaration of a war is entrusted only to Congress.  Of course, a state

of war may, in fact, exist without a formal declaration.  But no

doctrine that the Court could promulgate would seem to me more sinister

and alarming than that a President whose conduct of foreign affairs is

so largely uncontrolled, and often even is unknown, can vastly enlarge

his mastery over the internal affairs of the country by his own

commitment of the Nation's armed forces to some foreign venture.{10} 

[343 U.S. 643] I do not, however, find it necessary or appropriate to

consider the legal status of the Korean enterprise to discountenance

argument based on it.



Assuming that we are in a war de facto, whether it is or is not a war de

jure, does that empower the Commander in Chief to seize industries he

thinks necessary to supply our army?  The Constitution expressly places

in Congress power "to raise and support Armies" and "to provide and

maintain a Navy."  (Emphasis supplied.)  This certainly lays upon

Congress primary responsibility for supplying the armed forces. 

Congress alone controls the raising of revenues and their appropriation,

and may determine in what manner and by what means they shall be spent

for military and naval procurement.  I suppose no one would doubt that

Congress can take over war supply as a Government enterprise.  On the

other hand, if Congress sees fit to rely on free private enterprise

collectively bargaining with free labor for support and maintenance of

our armed forces, can the Executive, because of lawful disagreements

incidental to that process, seize the facility for operation upon

Government-imposed terms?



There are indications that the Constitution did not contemplate that the

title Commander in Chief of the [343 U.S. 644] Army and Navy will

constitute him also Commander in Chief of the country, its industries

and its inhabitants.  He has no monopoly of "war powers," whatever they

are.  While Congress cannot deprive the President of the command of the

army and navy, only Congress can provide him an army or navy to command.

 It is also empowered to make rules for the "Government and Regulation

of land and naval Forces," by which it may, to some unknown extent,

impinge upon even command functions.



That military powers of the Commander in Chief were not to supersede

representative government of internal affairs seems obvious from the

Constitution and from elementary American history.  Time out of mind,

and even now, in many parts of the world, a military commander can seize

private housing to shelter his troops.  Not so, however, in the United

States, for the Third Amendment says, No Soldier shall, in time of peace

be quartered in any house, without the consent of the Owner, nor in time

of war, but in a manner to be prescribed by law. Thus, even in war time,

his seizure of needed military housing must be authorized by Congress. 

It also was expressly left to Congress to "provide for calling forth the

Militia to execute the Laws of the Union, suppress Insurrections and

repel Invasions. . . ."{11}  Such a limitation on the command power,

written at a time when the militia, rather than a standing army, was

contemplated as the military weapon of the Republic, underscores the

Constitution's policy that Congress, not the Executive, should control

utilization of the war power as an instrument of domestic policy. 

Congress, fulfilling that function, has authorized the President to use

the army to enforce certain civil rights.{12}  On the other hand,

Congress has forbidden him to use the army for the purpose [343 U.S.

645] of executing general laws except when expressly authorized by the

Constitution or by Act of Congress.{13}



While broad claims under this rubric often have been made, advice to the

President in specific matters usually has carried overtones that powers,

even under this head, are measured by the command functions usual to the

topmost officer of the army and navy.  Even then, heed has been taken of

any efforts of Congress to negative his authority.{14}



We should not use this occasion to circumscribe, much less to contract,

the lawful role of the President as Commander in Chief.  I should

indulge the widest latitude of interpretation to sustain his exclusive

function to command the instruments of national force, at least when

turned against the outside world for the security of our society.  But,

when it is turned inward not because of rebellion, but because of a

lawful economic struggle between industry and labor, it should have no

such indulgence.  His command power is not such an absolute as might be

implied from that office in a militaristic system, but is subject to

limitations consistent with a constitutional Republic whose law and

policymaking branch [343 U.S. 646] is a representative Congress.  The

purpose of lodging dual titles in one man was to insure that the

civilian would control the military, not to enable the military to

subordinate the presidential office.  No penance would ever expiate the

sin against free government of holding that a President can escape

control of executive powers by law through assuming his military role. 

What the power of command may include I do not try to envision, but I

think it is not a military prerogative, without support of law, to seize

persons or property because they are important or even essential for the

military and naval establishment.



The third clause in which the Solicitor General finds seizure powers is

that "he shall take Care that the Laws be faithfully executed. . . .{15}

 That authority must be matched against words of the Fifth Amendment

that "No person shall be . . . deprived of life, liberty or property,

without due process of law. . . ."  One gives a governmental authority

that reaches so far as there is law, the other gives a private right

that authority shall go no farther.  These signify about all there is of

the principle that ours is a government of laws, not of men, and that we

submit ourselves to rulers only if under rules.



The Solicitor General lastly grounds support of the seizure upon

nebulous, inherent powers never expressly granted, but said to have

accrued to the office from the customs and claims of preceding

administrations.  The plea is for a resulting power to deal with a

crisis or an emergency according to the necessities of the case, the

unarticulated assumption being that necessity knows no law.



Loose and irresponsible use of adjectives colors all nonlegal and much

legal discussion of presidential powers.  [343 U.S. 647] "Inherent"

powers, "implied" powers, "incidental" powers, "plenary" powers, "war"

powers and "emergency" powers are used, often interchangeably and

without fixed or ascertainable meanings.



The vagueness and generality of the clauses that set forth presidential

powers afford a plausible basis for pressures within and without an

administration for presidential action beyond that supported by those

whose responsibility it is to defend his actions in court.  The claim of

inherent and unrestricted presidential powers has long been a persuasive

dialectical weapon in political controversy.  While it is not surprising

that counsel should grasp support from such unadjudicated claims of

power, a judge cannot accept self-serving press statements of the

attorney for one of the interested parties as authority in answering a

constitutional question, even if the advocate was himself.  But prudence

has counseled that actual reliance on such nebulous claims stop short of

provoking a judicial test.{16} [343 U.S. 648]



The Solicitor General, acknowledging that Congress has never authorized

the seizure here, says practice of prior Presidents has authorized it. 

He seeks color of legality from claimed executive precedents, chief of

which is President Roosevelt's seizure, on June 9, 1941, of the

California plant of the North American Aviation Company.  Its

superficial similarities with the present case, upon analysis, yield to

distinctions so decisive that it [343 U.S. 649] cannot be regarded as

even a precedent, much less an authority for the present seizure.{17}



The appeal, however, that we declare the existence of inherent powers ex

necessitate to meet an emergency asks us to do what many think would be

wise, although [343 U.S. 650] it is something the forefathers omitted. 

They knew what emergencies were, knew the pressures they engender for

authoritative action, knew, too, how they afford a ready pretext for

usurpation.  We may also suspect that they suspected that emergency

powers would tend to kindle emergencies.  Aside from suspension of the

privilege of the writ of habeas corpus in time of rebellion or invasion,

when the public safety may require it,{18} they made no express

provision for exercise of extraordinary authority because of a

crisis.{19}  I do not think we rightfully may so amend their work, and,

if we could, I am not convinced it would be wise to do so, although many

modern nations have forthrightly recognized that war and economic crises

may upset the normal balance between liberty and authority.  [343 U.S.

651] Their experience with emergency powers may not be irrelevant to the

argument here that we should say that the Executive, of his own

volition, can invest himself with undefined emergency powers.



Germany, after the First World War, framed the Weimar Constitution,

designed to secure her liberties in the Western tradition.  However, the

President of the Republic, without concurrence of the Reichstag, was

empowered temporarily to suspend any or all individual rights if public

safety and order were seriously disturbed or endangered.  This proved a

temptation to every government, whatever its shade of opinion, and, in

13 years, suspension of rights was invoked on more than 250 occasions. 

Finally, Hitler persuaded President Von Hindenberg to suspend all such

rights, and they were never restored.{20}



The French Republic provided for a very different kind of emergency

government known as the "state of siege."  It differed from the German

emergency dictatorship, particularly in that emergency powers could not

be assumed at will by the Executive, but could only be granted as a

parliamentary measure.  And it did not, as in Germany, result in a

suspension or abrogation of law, but was a legal institution governed by

special legal rules and terminable by parliamentary authority.{21}



Great Britain also has fought both World Wars under a sort of temporary

dictatorship created by legislation.{22}  As Parliament is not bound by

written constitutional limitations, it established a crisis government

simply by [343 U.S. 652] delegation to its Ministers of a larger measure

than usual of its own unlimited power, which is exercised under its

supervision by Ministers whom it may dismiss.  This has been called the

"high-water mark in the voluntary surrender of liberty," but, as

Churchill put it, Parliament stands custodian of these surrendered

liberties, and its most sacred duty will be to restore them in their

fullness when victory has crowned our exertions and our

perseverance.{23} Thus, parliamentary control made emergency powers

compatible with freedom.



This contemporary foreign experience may be inconclusive as to the

wisdom of lodging emergency powers somewhere in a modern government. 

But it suggests that emergency powers are consistent with free

government only when their control is lodged elsewhere than in the

Executive who exercises them.  That is the safeguard that would be

nullified by our adoption of the "inherent powers" formula.  Nothing in

my experience convinces me that such risks are warranted by any real

necessity, although such powers would, of course, be an executive

convenience.



In the practical working of our Government, we already have evolved a

technique within the framework of the Constitution by which normal

executive powers may be considerably expanded to meet an emergency. 

Congress may and has granted extraordinary authorities which lie dormant

in normal times but may be called into play by the Executive in war or

upon proclamation of a national emergency.  In 1939, upon congressional

request, the Attorney General listed ninety-nine such separate statutory

grants by Congress of emergency or wartime executive powers.{24}  They

were invoked from time to time as need appeared.  Under this procedure,

we retain Government [343 U.S. 653] by law -- special, temporary law,

perhaps, but law nonetheless.  The public may know the extent and

limitations of the powers that can be asserted, and persons affected may

be informed from the statute of their rights and duties.



In view of the ease, expedition and safety with which Congress can grant

and has granted large emergency powers, certainly ample to embrace this

crisis, I am quite unimpressed with the argument that we should affirm

possession of them without statute.  Such power either has no beginning

or it has no end.  If it exists, it need submit to no legal restraint. 

I am not alarmed that it would plunge us straightway into dictatorship,

but it is at least a step in that wrong direction.



As to whether there is imperative necessity for such powers, it is

relevant to note the gap that exists between the President's paper

powers and his real powers.  The Constitution does not disclose the

measure of the actual controls wielded by the modern presidential

office.  That instrument must be understood as an Eighteenth-Century

sketch of a government hoped for, not as a blueprint of the Government

that is.  Vast accretions of federal power, eroded from that reserved by

the States, have magnified the scope of presidential activity.  Subtle

shifts take place in the centers of real power that do not show on the

face of the Constitution.



Executive power has the advantage of concentration in a single head in

whose choice the whole Nation has a part, making him the focus of public

hopes and expectations.  In drama, magnitude and finality, his decisions

so far overshadow any others that, almost alone, he fills the public eye

and ear.  No other personality in public life can begin to compete with

him in access to the public mind through modern methods of

communications.  By his prestige as head of state and his influence upon

public opinion, he exerts a leverage upon those who are supposed [343

U.S. 654] to check and balance his power which often cancels their

effectiveness.



Moreover, rise of the party system has made a significant

extraconstitutional supplement to real executive power.  No appraisal of

his necessities is realistic which overlooks that he heads a political

system, as well as a legal system.  Party loyalties and interests,

sometimes more binding than law, extend his effective control into

branches of government other than his own, and he often may win, as a

political leader, what he cannot command under the Constitution. 

Indeed, Woodrow Wilson, commenting on the President as leader both of

his party and of the Nation, observed, If he rightly interpret the

national thought and boldly insist upon it, he is irresistible. . . . 

His office is anything he has the sagacity and force to make it.{25} I

cannot be brought to believe that this country will suffer if the Court

refuses further to aggrandize the presidential office, already so potent

and so relatively immune from judicial review,{26} at the expense of

Congress.



But I have no illusion that any decision by this Court can keep power in

the hands of Congress if it is not wise and timely in meeting its

problems.  A crisis that challenges the President equally, or perhaps

primarily, challenges Congress.  If not good law, there was worldly

wisdom in the maxim attributed to Napoleon that "The tools belong to the

man who can use them."  We may say that power to legislate for

emergencies belongs in the hands of Congress, but only Congress itself

can prevent power from slipping through its fingers.



The essence of our free Government is "leave to live by no man's leave,

underneath the law" -- to be governed by those impersonal forces which

we call law.  Our Government [343 U.S. 655] is fashioned to fulfill this

concept so far as humanly possible.  The Executive, except for

recommendation and veto, has no legislative power.  The executive action

we have here originates in the individual will of the President, and

represents an exercise of authority without law.  No one, perhaps not

even the President, knows the limits of the power he may seek to exert

in this instance, and the parties affected cannot learn the limit of

their rights.  We do not know today what powers over labor or property

would be claimed to flow from Government possession if we should

legalize it, what rights to compensation would be claimed or recognized,

or on what contingency it would end.  With all its defects, delays and

inconveniences, men have discovered no technique for long preserving

free government except that the Executive be under the law, and that the

law be made by parliamentary deliberations.



Such institutions may be destined to pass away.  But it is the duty of

the Court to be last, not first, to give them up.{27} BURTON, J.,

concurring



MR. JUSTICE BURTON, concurring in both the opinion and judgment of the

Court.



My position may be summarized as follows:



The validity of the President's order of seizure is at issue and ripe

for decision.  Its validity turns upon its relation to the

constitutional division of governmental power between Congress and the

President. [343 U.S. 656]



The Constitution has delegated to Congress power to authorize action to

meet a national emergency of the kind we face.  Aware of this

responsibility, Congress has responded to it.  It has provided at least

two procedures for the use of the President.



It has outlined one in the Labor Management Relations Act, 1947, better

known as the Taft-Hartley Act.  The accuracy with which Congress there

describes the present emergency demonstrates its applicability.  It

says:



Whenever in the opinion of the President of the United States, a

threatened or actual strike or lockout affecting an entire industry or a

substantial part thereof engaged in trade, commerce, transportation,

transmission, or communication among the several States or with foreign

nations, or engaged in the production of goods for commerce, will, if

permitted to occur or to continue, imperil the national health or

safety, he may appoint a board of inquiry to inquire into the issues

involved in the dispute and to make a written report to him within such

time as he shall prescribe. . . . [343 U.S. 657]



In that situation, Congress has authorized not only negotiation,

conciliation and impartial inquiry, but also a 60-day cooling-off period

under injunction, followed by 20 days for a secret ballot upon the final

offer of settlement and then by recommendations from the President to

Congress.



For the purposes of this case, the most significant feature of that Act

is its omission of authority to seize an affected industry.  The debate

preceding its passage demonstrated the significance of that omission. 

Collective bargaining, rather than governmental seizure, was to be

relied upon.  Seizure was not to be resorted to without specific

congressional authority.  Congress reserved to itself the opportunity to

authorize seizure to meet particular emergencies. [343 U.S. 658]



The President, however, chose not to use the Taft-Hartley procedure.  He

chose another course, also authorized by Congress.  He referred he

controversy to the Wage Stabilization Board.  If that course had led to

a settlement of the labor dispute, it would have avoided the need for

other action.  It, however, did not do so.



Now it is contended that, although the President did not follow the

procedure authorized by the Taft-Hartley Act, his substituted procedure

served the same purpose, and must be accepted as its equivalent. 

Without appraising that equivalence, it is enough to point out that

neither procedure carried statutory authority for the seizure of private

industries in the manner now at issue.  The exhaustion of both

procedures fails to cloud the [343 U.S. 659] clarity of the

congressional reservation of seizure for its own consideration.



The foregoing circumstances distinguish this emergency from one in which

Congress takes no action and outlines no governmental policy.  In the

case before us, Congress authorized a procedure which the President

declined to follow.  Instead, he followed another procedure which he

hoped might eliminate the need for the first.  Upon its failure, he

issued an executive order to seize the steel properties in the face of

the reserved right of Congress to adopt or reject that course as a

matter of legislative policy.



This brings us to a further crucial question.  Does the President, in

such a situation, have inherent constitutional power to seize private

property which makes congressional action in relation thereto

unnecessary?  We find no such power available to him under the present

circumstances.  The present situation is not comparable to that of an

imminent invasion or threatened attack.  We do not face the issue of

what might be the President's constitutional power to meet such

catastrophic situations.  Nor is it claimed that the current seizure is

in the nature of a military command addressed by the President, as

Commander-in-Chief, to a mobilized nation waging, or imminently

threatened with, total war. [343 U.S. 660]



The controlling fact here is that Congress, within its constitutionally

delegated power, has prescribed for the President specific procedures,

exclusive of seizure, for his use in meeting the present type of

emergency.  Congress has reserved to itself the right to determine where

and when to authorize the seizure of property in meeting such an

emergency.  Under these circumstances, the President's order of April 8

invaded the jurisdiction of Congress.  It violated the essence of the

principle of the separation of governmental powers.  Accordingly, the

injunction against its effectiveness should be sustained. CLARK, J.,

concurring



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



One of this Court's first pronouncements upon the powers of the

President under the Constitution was made by Mr. Chief Justice John

Marshall some one hundred and fifty years ago.  In Little v. Barreme, he

used this characteristically clear language in discussing the power of

the President to instruct the seizure of the Flying Fish, a vessel bound

from a French port: It is by no means clear that the president of the

United States whose high duty it is to "take care that the laws be

faithfully executed" and who is commander in chief of the armies and

navies of the United States, might not, without any special authority

for that purpose, in the then-existing state of things, have empowered

the officers commanding the armed vessels of the United States to seize,

and send into port for adjudication, American vessels which were

forfeited by being engaged in this illicit commerce.  But when it is

observed that [an act of Congress] gives a special authority to seize on

the high seas, and limits that authority to the seizure of vessels bound

or sailing to a French port, the legislature seem to have prescribed

that [343 U.S. 661] the manner in which this law shall be carried into

execution, was to exclude a seizure of any vessel not bound to a French

port. Accordingly, a unanimous Court held that the President's

instructions had been issued without authority, and that they could not

"legalize an act which, without those instructions, would have been a

plain trespass."  I know of no subsequent holding of this Court to the

contrary.



The limits of presidential power are obscure.  However, Article II, no

less than Article I, is part of "a constitution intended to endure for

ages to come, and, consequently, to be adapted to the various crises of

human affairs."  Some of our Presidents, such as Lincoln, felt that

measures otherwise unconstitutional might become lawful by becoming

indispensable to the preservation of the Constitution through the

preservation of the nation. [343 U.S. 662] Others, such as Theodore

Roosevelt, thought the President to be capable, as a "steward" of the

people, of exerting all power save that which is specifically prohibited

by the Constitution or the Congress.  In my view -- taught me not only

by the decision of Mr. Chief Justice Marshall in Little v. Barreme, but

also by a score of other pronouncements of distinguished members of this

bench -- the Constitution does grant to the President extensive

authority in times of grave and imperative national emergency.  In fact,

to my thinking, such a grant may well be necessary to the very existence

of the Constitution itself.  As Lincoln aptly said, "[is] it possible to

lose the nation and yet preserve the Constitution?  In describing this

authority, I care not whether one calls it "residual," "inherent,"

"moral," "implied," "aggregate," "emergency," or otherwise.  I am of the

conviction that those who have had the gratifying experience of being

the President's lawyer have used one or more of these adjectives only

with the utmost of sincerity and the highest of purpose.



I conclude that, where Congress has laid down specific procedures to

deal with the type of crisis confronting the President, he must follow

those procedures in meeting the crisis; but that, in the absence of such

action by Congress, the President's independent power to act depends

upon the gravity of the situation confronting the nation.  I cannot

sustain the seizure in question because here, as in Little v. Barreme,

Congress had prescribed methods to be followed by the President in

meeting the emergency at hand. [343 U.S. 663]



Three statutory procedures were available:  those provided in the

Defense Production Act of 1950, the Labor Management Relations Act, and

the Selective Service Act of 1948.  In this case, the President invoked

the first of these procedures; he did not invoke the other two.



The Defense Production Act of 1950 provides for mediation of labor

disputes affecting national defense.  Under this statutory

authorization, the President has established the Wage Stabilization

Board.  The Defense Production Act, however, grants the President no

power to seize real property except through ordinary condemnation

proceedings, which were not used here, and creates no sanctions for the

settlement of labor disputes.



The Labor Management Relations Act, commonly known as the Taft-Hartley

Act, includes provisions adopted for the purpose of dealing with

nationwide strikes.  They establish a procedure whereby the President

may appoint a board of inquiry and thereafter, in proper cases, seek

injunctive relief for an 80-day period against a threatened work

stoppage.  The President can invoke that procedure whenever, in his

opinion, a threatened or actual strike . . . affecting an entire

industry . . . will, if permitted to occur or to continue, imperil the

national health or safety. At the time that Act was passed, Congress

specifically rejected a proposal to empower the President to seize any

"plant, mine, or facility" in which a threatened work stoppage would, in

his judgment, "imperil the public health or security."  Instead, the

Taft-Hartley Act directed the President, in the event a strike had not

been settled during the 80-day injunction period, to submit to Congress

"a full and comprehensive report . . . together with such

recommendations as he may see fit to make for consideration and [343

U.S. 664] appropriate action."{10}  The legislative history of the Act

demonstrates Congress' belief that the 80-day period would afford it

adequate opportunity to determine whether special legislation should be

enacted to meet the emergency at hand.{11}



The Selective Service Act of 1948 gives the President specific authority

to seize plants which fail to produce goods required by the armed forces

or the Atomic Energy Commission for national defense purposes.  The Act

provides that, when a producer from whom the President has ordered such

goods "refuses or fails" to fill the order within a period of time

prescribed by the President, the President may take immediate possession

of the producer's plant.{12}  This language is significantly broader

than [343 U.S. 665] that used in the National Defense Act of 1916 and

the Selective Training and Service Act of 1940, which provided for

seizure when a producer "refused" to supply essential defense materials,

but not when he "failed" to do so.{13}



These three statutes furnish the guideposts for decision in this case. 

Prior to seizing the steel mills on April 8, the President had exhausted

the mediation procedures of the Defense Production Act through the Wage

Stabilization Board.  Use of those procedures had failed to avert the

impending crisis; however, it had resulted in a 99-day postponement of

the strike.  The Government argues that this accomplished more than the

maximum 80-day waiting period possible under the sanctions of the

Taft-Hartley Act, and therefore amounted to compliance with the

substance of that Act.  Even if one were to accept this somewhat

hyperbolic conclusion, the hard fact remains that neither the Defense

Production Act nor Taft-Hartley authorized the seizure challenged here,

and the Government made no effort to comply with the procedures [343

U.S. 666] established by the Selective Service Act of 1948, a statute

which expressly authorizes seizures when producers fail to supply

necessary defense materiel.{14}



For these reasons, I concur in the judgment of the Court.  As Mr.

Justice Story once said: For the executive department of the government,

this court entertain the most entire respect, and, amidst the

multiplicity of cares in that department, it may, without any violation

of decorum, be presumed, that sometimes there may be an inaccurate

construction of a law.  It is our duty to expound the laws as we find

them in the records of state; [343 U.S. 667] and we cannot, when called

upon by the citizens of the country, refuse our opinion, however it may

differ from that of very great authorities."{15} VINSON, J., dissenting



MR CHIEF JUSTICE VINSON, with whom MR. JUSTICE REED and MR. JUSTICE

MINTON join, dissenting.



The President of the United States directed the Secretary of Commerce to

take temporary possession of the Nation's steel mills during the

existing emergency because a work stoppage would immediately jeopardize

and imperil our national defense and the defense of those joined with us

in resisting aggression, and would add to the continuing danger of our

soldiers, sailors, and airmen engaged in combat in the field. The

District Court ordered the mills returned to their private owners on the

ground that the President's action was beyond his powers under the

Constitution.



This Court affirms.  Some members of the Court are of the view that the

President is without power to act in time of crisis in the absence of

express statutory authorization.  Other members of the Court affirm on

the basis of their reading of certain statutes.  Because we cannot agree

that affirmance is proper on any ground, and because of the transcending

importance of the questions presented not only in this critical

litigation, but also to the powers of the President and of future

Presidents to act in time of crisis, we are compelled to register this

dissent. I



In passing upon the question of Presidential powers in this case, we

must first consider the context in which those powers were exercised.

[343 U.S. 668]



Those who suggest that this is a case involving extraordinary powers

should be mindful that these are extraordinary times.  A world not yet

recovered from the devastation of World War II has been forced to face

the threat of another and more terrifying global conflict.



Accepting in full measure its responsibility in the world community, the

United States was instrumental in securing adoption of the United

Nations Charter, approved by the Senate by a vote of 89 to 2.  The first

purpose of the United Nations is to maintain international peace and

security, and, to that end, to take effective collective measures for

the prevention and removal of threats to the peace, and for the

suppression of acts of aggression or other breaches of the peace. . . .

In 1950, when the United Nations called upon member nations "to render

every assistance" to repel aggression in Korea, the United States

furnished its vigorous support.  For almost two full years, our armed

forces have been fighting in Korea, suffering casualties of over 108,000

men.  Hostilities have not abated.  The "determination of the United

Nations to continue its action in Korea to meet the aggression" has been

reaffirmed.  Congressional support of the action in Korea has been

manifested by provisions for increased military manpower and equipment

and for economic stabilization, as hereinafter described.



Further efforts to protect the free world from aggression are found in

the congressional enactments of the Truman Plan for assistance to Greece

and Turkey and [343 U.S. 669] the Marshall Plan for economic aid needed

to build up the strength of our friends in Western Europe.  In 1949, the

Senate approved the North Atlantic Treaty under which each member nation

agrees that an armed attack against one is an armed attack against all. 

Congress immediately implemented the North Atlantic Treaty by

authorizing military assistance to nations dedicated to the principles

of mutual security under the United Nations Charter.  The concept of

mutual security recently has been extended by treaty to friends in the

Pacific.



Our treaties represent not merely legal obligations, but show

congressional recognition that mutual security for the free world is the

best security against the threat of aggression on a global scale.  The

need for mutual security is shown by the very size of the armed forces

outside the free world.  Defendant's brief informs us that the Soviet

Union maintains the largest air force in the world, and maintains ground

forces much larger than those presently available to the United States

and the countries joined with us in mutual security arrangements. 

Constant international tensions are cited to demonstrate how precarious

is the peace.



Even this brief review of our responsibilities in the world community

discloses the enormity of our undertaking.  Success of these measures

may, as has often been [343 U.S. 670] observed, dramatically influence

the lives of many generations of the world's peoples yet unborn.  Alert

to our responsibilities, which coincide with our own self-preservation

through mutual security, Congress has enacted a large body of

implementing legislation.  As an illustration of the magnitude of the

over-all program, Congress has appropriated $130 billion for our own

defense and for military assistance to our allies since the June, 1950,

attack in Korea.



In the Mutual Security Act of 1951, Congress authorized military,

economic, and technical assistance to friendly countries to strengthen

the mutual security and individual and collective defenses of the free

world. . . . Over $5 1/2 billion were appropriated for military

assistance for fiscal year 1952, the bulk of that amount to be devoted

to purchase of military equipment.{10}  A request for over $7 billion

for the same purpose for fiscal year 1953 is currently pending in

Congress.{11}  In addition to direct shipment of military equipment to

nations of the free world, defense production in those countries relies

upon shipment of machine tools and allocation of steel tonnage from the

United States.{12}



Congress also directed the President to build up our own defenses. 

Congress, recognizing the "grim fact . . . that the United States is now

engaged in a struggle for survival" and that "it is imperative that we

now take those necessary steps to make our strength equal to the peril

of the hour," granted authority to draft men into [343 U.S. 671] the

armed forces.{13}  As a result, we now have over 3,500,000 men in our

armed forces.{14}



Appropriations for the Department of Defense; which had averaged less

than $13 billion per year for the three years before attack in Korea,

were increased by Congress to $48 billion for fiscal year 1951 and to

$60 billion for fiscal year 1952.{15}  A request for $51 billion for the

Department of Defense for fiscal year 1953 is currently pending in

Congress.{16}  The bulk of the increase is for military equipment and

supplies -- guns, tanks, ships, planes and ammunition -- all of which

require steel.  Other defense programs requiring great quantities of

steel include the large scale expansion of facilities for the Atomic

Energy Commission{17} and the expansion of the Nation's productive

capacity affirmatively encouraged by Congress.{18}



Congress recognized the impact of these defense programs upon the

economy.  Following the attack in Korea, the President asked for

authority to requisition property and to allocate and fix priorities for

scarce goods.  In the Defense Production Act of 1950, Congress granted

the powers requested and, in addition, granted power to stabilize prices

and wages and to provide for settlement [343 U.S. 672] of labor disputes

arising in the defense program.{19}  The Defense Production Act was

extended in 1951, a Senate Committee noting that, in the dislocation

caused by the programs for purchase of military equipment "lies the seed

of an economic disaster that might well destroy the military might we

are straining to build."{20}  Significantly, the Committee examined the

problem "in terms of just one commodity, steel," and found "a graphic

picture of the over-all inflationary danger growing out of reduced

civilian supplies and rising incomes."  Even before Korea, steel

production at levels above theoretical 100% capacity was not capable of

supplying civilian needs alone.  Since Korea, the tremendous military

demand for steel has far exceeded the increases in productive capacity. 

This Committee emphasized that the shortage of steel, even with the

mills operating at full capacity, coupled with increased civilian

purchasing power, presented grave danger of disastrous inflation.{21}



The President has the duty to execute the foregoing legislative

programs.  Their successful execution depends upon continued production

of steel and stabilized prices for steel.  Accordingly, when the

collective bargaining agreements between the Nation's steel producers

and their employees, represented by the United Steel Workers, were due

to expire on December 31, 1951, and a strike shutting down the entire

basic steel industry was threatened, the President acted to avert a

complete shutdown of steel production.  On December 22, 1951, he

certified the dispute to the Wage Stabilization Board, requesting that

the Board investigate the dispute and promptly report its recommendation

as to fair and equitable terms of settlement.  The Union complied with

the President's [343 U.S. 673] request and delayed its threatened strike

while the dispute was before the Board.  After a special Board panel had

conducted hearings and submitted a report, the full Wage Stabilization

Board submitted its report and recommendations to the President on March

20, 1952.



The Board's report was acceptable to the Union, but was rejected by

plaintiffs.  The Union gave notice of its intention to strike as of

12:01 a.m., April 9, 1952, but bargaining between the parties continued

with hope of settlement until the evening of April 8, 1952.  After

bargaining had failed to avert the threatened shutdown of steel

production, the President issued the following Executive Order:



WHEREAS on December 16, 1950, I proclaimed the existence of a national

emergency which requires that the military, naval, air, and civilian

defenses of this country be strengthened as speedily as possible to the

end that we may be able to repel any and all threats against our

national security and to fulfill our responsibilities in the efforts

being made throughout the United Nations and otherwise to bring about a

lasting peace; and



WHEREAS American fighting men and fighting men of other nations of the

United Nations are now engaged in deadly combat with the forces of

aggression in Korea, and forces of the United States are stationed

elsewhere overseas for the purpose of participating in the defense of

the Atlantic Community against aggression; and



WHEREAS the weapons and other materials needed by our armed forces and

by those joined with us in the defense of the free world are produced to

a great extent in this country, and steel is an indispensable component

of substantially all of such weapons and materials; and [343 U.S. 674]



WHEREAS steel is likewise indispensable to the carrying out of programs

of the Atomic Energy Commission of vital importance to our defense

efforts; and



WHEREAS a continuing and uninterrupted supply of steel is also

indispensable to the maintenance of the economy of the United States,

upon which our military strength depends; and



WHEREAS a controversy has arisen between certain companies in the United

States producing and fabricating steel and the elements thereof and

certain of their workers represented by the United Steel Workers of

America, CIO, regarding terms and conditions of employment; and



WHEREAS the controversy has not been settled through the processes of

collective bargaining or through the efforts of the Government,

including those of the Wage Stabilization Board, to which the

controversy was referred on December 22, 1951, pursuant to Executive

Order No. 10233, and a strike has been called for 12:01 A. M., April 9,

1952; and



WHEREAS a work stoppage would immediately jeopardize and imperil our

national defense and the defense of those joined with us in resisting

aggression, and would add to the continuing danger of our soldiers,

sailors, and airmen engaged in combat in the field; and



WHEREAS in order to assure the continued availability of steel and steel

products during the existing emergency, it is necessary that the United

States take possession of and operate the plants, facilities, and other

property of the said companies as hereinafter provided:



NOW, THEREFORE, by virtue of the authority vested in me by the

Constitution and laws of the [343 U.S. 675] United States, and as

President of the United States and Commander in Chief of the armed

forces of the United States, it is hereby ordered as follows:



1. The Secretary of Commerce is hereby authorized and directed to take

possession of all or such of the plants, facilities, and other property

of the companies named in the list attached hereto, or any part thereof,

as he may deem necessary in the interests of national defense, and to

operate or to arrange for the operation thereof and to do all things

necessary for, or incidental to, such operation. . . .{22}



The next morning, April 9, 1952, the President addressed the following

Message to Congress:



To the Congress of the United States:



The Congress is undoubtedly aware of the recent events which have taken

place in connection with the management-labor dispute in the steel

industry.  These events culminated in the action which was taken last

night to provide for temporary operation of the steel mills by the

Government.



I took this action with the utmost reluctance.  The idea of Government

operation of the steel mills is thoroughly distasteful to me, and I want

to see it ended as soon as possible.  However, in the situation which

confronted me yesterday, I felt that I could make no other choice.  The

other alternatives appeared to be even worse -- so much worse that I

could not accept them.



One alternative would have been to permit a shutdown in the steel

industry.  The effects of such a shut-down would have been so immediate

and damaging with respect to our efforts to support our Armed Forces and

to protect our national security that it made this alternative

unthinkable. [343 U.S. 676]



The only way that I know of, other than Government operation, by which a

steel shut-down could have been avoided was to grant the demands of the

steel industry for a large price increase.  I believed and the officials

in charge of our stabilization agencies believed that this would have

wrecked our stabilization program.  I was unwilling to accept the

incalculable damage which might be done to our country by following such

a course.



Accordingly, it was my judgment that Government operation of the steel

mills for a temporary period was the least undesirable of the courses of

action which lay open.  In the circumstances, I believed it to be, and

now believe it to be, my duty and within my powers as President to

follow that course of action.



It may be that the Congress will deem some other course to be wiser.  It

may be that the Congress will feel we should give in to the demands of

the steel industry for an exorbitant price increase and take the

consequences so far as resulting inflation is concerned.



It may be that the Congress will feel the Government should try to force

the steel workers to continue to work for the steel companies for

another long period, without a contract, even though the steel workers

have already voluntarily remained at work without a contract for 100

days in an effort to reach an orderly settlement of their differences

with management.



It may even be that the Congress will feel that we should permit a

shut-down of the steel industry, although that would immediately

endanger the safety of our fighting forces abroad and weaken the whole

structure of our national security. [343 U.S. 677]



I do not believe the Congress will favor any of these courses of action,

but that is a matter for the Congress to determine.



It may be, on the other hand, that the Congress will wish to pass

legislation establishing specific terms and conditions with reference to

the operation of the steel mills by the Government.  Sound legislation

of this character might be very desirable.



On the basis of the facts that are known to me at this time, I do not

believe that immediate congressional action is essential; but I would,

of course, be glad to cooperate in developing any legislative proposals

which the Congress may wish to consider.



If the Congress does not deem it necessary to act at this time, I shall

continue to do all that is within my power to keep the steel industry

operating and at the same time make every effort to bring about a

settlement of the dispute so the mills can be returned to their private

owners as soon as possible.{23} Twelve days passed without action by

Congress.  On April 21, 1952, the President sent a letter to the

President of the Senate in which he again described the purpose and need

for his action and again stated his position that "The Congress can, if

it wishes, reject the course of action I have followed in this

matter."{24}  Congress has not so acted to this date.



Meanwhile, plaintiffs instituted this action in the District Court to

compel defendant to return possession of the steel mills seized under

Executive Order 10340.  In this litigation for return of plaintiffs'

properties, we assume that defendant Charles Sawyer is not immune from

judicial restraint, and that plaintiffs are entitled to equitable relief

if we find that the Executive Order [343 U.S. 678] under which defendant

acts is unconstitutional.  We also assume without deciding that the

courts may go behind a President's finding of fact that an emergency

exists.  But there is not the slightest basis for suggesting that the

President's finding in this case can be undermined.  Plaintiffs moved

for a preliminary injunction before answer or hearing.  Defendant

opposed the motion, filing uncontroverted affidavits of Government

officials describing the facts underlying the President's order.



Secretary of Defense Lovett swore that a work stoppage in the steel

industry will result immediately in serious curtailment of production of

essential weapons and munitions of all kinds. He illustrated by showing

that 84% of the national production of certain alloy steel is currently

used for production of military-end items and that 35% of total

production of another form of steel goes into ammunition, 80% of such

ammunition now going to Korea.  The Secretary of Defense stated that: 

"We are holding the line [in Korea] with ammunition, and not with the

lives of our troops."



Affidavits of the Chairman of the Atomic Energy Commission, the

Secretary of the Interior, defendant as Secretary of Commerce, and the

Administrators of the Defense Production Administration, the National

Production Authority, the General Services Administration and the

Defense Transport Administration were also filed in the District Court. 

These affidavits disclose an enormous demand for steel in such vital

defense programs as the expansion of facilities in atomic energy,

petroleum, power, transportation and industrial production, including

steel production.  Those charged with administering allocations and

priorities swore to the vital part steel production plays in our

economy.  The affidavits emphasize the critical need for steel in our

defense program, [343 U.S. 679] the absence of appreciable inventories

of steel, and the drastic results of any interruption in steel

production.



One is not here called upon even to consider the possibility of

executive seizure of a farm, a corner grocery store or even a single

industrial plant.  Such considerations arise only when one ignores the

central fact of this case -- that the Nation's entire basic steel

production would have shut down completely if there had been no

Government seizure.  Even ignoring for the moment whatever confidential

information the President may possess as "the Nation's organ for foreign

affairs,"{25} the uncontroverted affidavits in this record amply support

the finding that "a work stoppage would immediately jeopardize and

imperil our national defense."



Plaintiffs do not remotely suggest any basis for rejecting the

President's finding that any stoppage of steel production would

immediately place the Nation in peril.  Moreover, even self-generated

doubts that any stoppage of steel production constitutes an emergency

are of little comfort here.  The Union and the plaintiffs bargained for

6 months with over 100 issues in dispute -- issues not limited to wage

demands, but including the union shop and other matters of principle

between the parties.  At the time of seizure, there was not, and there

is not now, the slightest evidence to justify the belief that any strike

will be of short duration.  The Union and the steel companies may well

engage in a lengthy struggle.  Plaintiffs' counsel tells us that "sooner

or later" the mills will operate again.  That may satisfy the steel

companies and, perhaps, the Union.  But our soldiers and our allies will

hardly be cheered with the assurance that the ammunition upon which

their lives depend will be forthcoming -- "sooner or later," or, in

other words, "too little and too late." [343 U.S. 680]



Accordingly, if the President has any power under the Constitution to

meet a critical situation in the absence of express statutory

authorization, there is no basis whatever for criticizing the exercise

of such power in this case. II



The steel mills were seized for a public use. The power of eminent

domain, invoked in this case, is an essential attribute of sovereignty,

and has long been recognized as a power of the Federal Government.  Kohl

v. United States, 91 U.S. 367 (1876).  Plaintiffs cannot complain that

any provision in the Constitution prohibits the exercise of the power of

eminent domain in this case.  The Fifth Amendment provides:  "nor shall

private property be taken for public use, without just compensation." 

It is no bar to this seizure for, if the taking is not otherwise

unlawful, plaintiffs are assured of receiving the required just

compensation.  United States v. Pewee Coal Co., 341 U.S. 114 (1951).



Admitting that the Government could seize the mills, plaintiffs claim

that the implied power of eminent domain can be exercised only under an

Act of Congress; under no circumstances, they say, can that power be

exercised by the President unless he can point to an express provision

in enabling legislation.  This was the view adopted by the District

Judge when he granted the preliminary injunction.  Without an answer,

without hearing evidence, he determined the issue on the basis of his

"fixed conclusion . . . that defendant's acts are illegal" because the

President's only course in the face of an emergency is to present the

matter to Congress and await the final passage of legislation which will

enable the Government to cope with threatened disaster.



Under this view, the President is left powerless at the very moment when

the need for action may be most pressing and when no one, other than he,

is immediately [343 U.S. 681] capable of action.  Under this view, he is

left powerless because a power not expressly given to Congress is

nevertheless found to rest exclusively with Congress'.



Consideration of this view of executive impotence calls for further

examination of the nature of the separation of powers under our

tripartite system of Government.



The Constitution provides:



Art. I,



Section 1. "All legislative Powers herein granted shall be vested in a

Congress of the United States. . . ."



Art. II,



Section 1. "The executive Power shall be vested in a President of the

United States of America. . . ."



Section 2. "The President shall be Commander in Chief of the Army and

Navy of the United States. . . ."



"He shall have Power, by and with the Advice and Consent of the Senate,

to make Treaties, provided two thirds of the Senators present concur; .

. ."



Section 3.  "He shall from time to time give to the Congress Information

of the State of the Union, and recommend to their Consideration such

Measures as he shall judge necessary and expedient; . . .  The shall

take Care that the Laws be faithfully executed. . . ."



Art. III,



Section 1. "The judicial Power of the United States, shall be vested in

one supreme Court, and in such inferior Courts as the Congress may from

time to time ordain and establish." The whole of the "executive Power"

is vested in the President. Before entering office, the President swears

that he "will faithfully execute the Office of President of the [343

U.S. 682] United States, and will to the best of [his] Ability,

preserve, protect and defend the Constitution of the United States." 

Art. II,  1.



This comprehensive grant of the executive power to a single person was

bestowed soon after the country had thrown the yoke of monarchy.  Only

by instilling initiative and vigor in all of the three departments of

Government, declared Madison, could tyranny in any form be avoided.{26} 

Hamilton added: Energy in the Executive is a leading character in the

definition of good government.  It is essential to the protection of the

community against foreign attacks; it is not less essential to the

steady administration of the laws; to the protection of property against

those irregular and high-handed combinations which sometimes interrupt

the ordinary course of justice; to the security of liberty against the

enterprises and assaults of ambition, of faction, and of anarchy.{27} It

is thus apparent that the Presidency was deliberately fashioned as an

office of power and independence.  Of course, the Framers created no

autocrat capable of arrogating any power unto himself at any time.  But

neither did they create an automaton impotent to exercise the powers of

Government at a time when the survival of the Republic itself may be at

stake.



In passing upon the grave constitutional question presented in this

case, we must never forget, as Chief Justice Marshall admonished, that

the Constitution is "intended to endure for ages to come, and,

consequently, to be adapted to the various crises of human affairs," and

that "[i]ts means are adequate to its ends."{28}  Cases do arise

presenting questions which could not have been foreseen by the Framers. 

In such cases, the Constitution has been treated as a living document

adaptable to new situations.{29}  [343 U.S. 683] But we are not called

upon today to expand the Constitution to meet a new situation.  For, in

this case, we need only look to history and time-honored principles of

constitutional law -- principles that have been applied consistently by

all branches of the Government throughout our history.  It is those who

assert the invalidity of the Executive Order who seek to amend the

Constitution in this case. III



A review of executive action demonstrates that our Presidents have on

many occasions exhibited the leadership contemplated by the Framers when

they made the President Commander in Chief, and imposed upon him the

trust to "take Care that the Laws be faithfully executed."  With or

without explicit statutory authorization, Presidents have at such times

dealt with national emergencies by acting promptly and resolutely to

enforce legislative programs, at least to save those programs until

Congress could act.  Congress and the courts have responded to such

executive initiative with consistent approval.



Our first President displayed at once the leadership contemplated by the

Framers.  When the national revenue laws were openly flouted in some

sections of Pennsylvania, President Washington, without waiting for a

call from the state government, summoned the militia and took decisive

steps to secure the faithful execution of the laws.{30}  When

international disputes engendered by the French revolution threatened to

involve this country in war, and while congressional policy remained

uncertain, Washington issued his Proclamation of Neutrality.  Hamilton,

whose defense of the Proclamation [343 U.S. 684] has endured the test of

time, invoked the argument that the Executive has the duty to do that

which will preserve peace until Congress acts and, in addition, pointed

to the need for keeping the Nation informed of the requirements of

existing laws and treaties as part of the faithful execution of the

laws.{31}



President John Adams issued a warrant for the arrest of Jonathan Robbins

in order to execute the extradition provisions of a treaty.  This action

was challenged in Congress on the ground that no specific statute

prescribed the method to be used in executing the treaty.  John

Marshall, then a member of the House of Representatives, made the

following argument in support of the President's action:



The treaty, which is a law, enjoins the performance of a particular

object.  The person who is to perform this object is marked out by the

Constitution, since the person is named who conducts the foreign

intercourse, and is to take care that the laws be faithfully executed. 

The means by which it is to be performed, the force of the nation, are

in the hands of this person.  Ought not this person to perform the

object, although the particular mode of using the means has not been

prescribed?  Congress, unquestionably, may prescribe the mode, and

Congress may devolve on others the whole execution of the contract; but,

till this be done, it seems the duty of the Executive department to

execute the contract by any means it possesses.{32} Efforts in Congress

to discredit the President for his action failed.{33}  Almost a century

later, this Court had [343 U.S. 685] occasion to give its express

approval to "the masterly and conclusive argument of John Marshall."{34}



Jefferson's initiative in the Louisiana Purchase, the Monroe Doctrine,

and Jackson's removal of Government deposits from the Bank of the United

States further serve to demonstrate by deed what the Framers described

by word when they vested the whole of the executive power in the

President.



Without declaration of war, President Lincoln took energetic action with

the outbreak of the War Between the States.  He summoned troops and paid

them out of the Treasury without appropriation therefor.  He proclaimed

a naval blockade of the Confederacy and seized ships violating that

blockade.  Congress, far from denying the validity of these acts, gave

them express approval.  The most striking action of President Lincoln

was the Emancipation Proclamation, issued in aid of the successful

prosecution of the War Between the States, but wholly without statutory

authority.{35}



In an action furnishing a most apt precedent for this case, President

Lincoln, without statutory authority, directed the seizure of rail and

telegraph lines leading to Washington.{36}  Many months later, Congress

recognized and confirmed the power of the President to seize railroads

and telegraph lines and provided criminal penalties for interference

with Government operation.{37}  This Act did not confer on the President

any additional powers of seizure.  Congress plainly rejected the view

that the President's acts had been without legal sanction until [343

U.S. 686] ratified by the legislature.  Sponsors of the bill declared

that its purpose was only to confirm the power which the President

already possessed.{38}  Opponents insisted a statute authorizing seizure

was unnecessary, and might even be construed as limiting existing

Presidential powers.{39}



Other seizures of private property occurred during the War Between the

States, just as they had occurred during previous wars.{40}  In United

States v. Russell, 13 Wall. 623 (1872), three river steamers were seized

by Army Quartermasters on the ground of "imperative military necessity."

 This Court affirmed an award of compensation, stating: Extraordinary

and unforeseen occasions arise, however, beyond all doubt, in cases of

extreme necessity in time of war or of immediate and impending public

danger, in which private property may be impressed into the public

service, or may be seized and appropriated to the public use, or may

even be destroyed without the consent of the owner. *    *    *    *

Exigencies of the kind do arise in time of war or impending public

danger, but it is the emergency, as was said by a great magistrate, that

gives the right, [343 U.S. 687] and it is clear that the emergency must

be shown to exist before the taking can be justified.  Such a

justification may be shown, and, when shown, the rule is well settled

that the officer taking private property for such a purpose, if the

emergency is fully proved, is not a trespasser, and that the government

is bound to make full compensation to the owner.{41}



In In re Neagle, 135 U.S. 1 (1890), this Court held that a federal

officer had acted in line of duty when he was guarding a Justice of this

Court riding circuit.  It was conceded that there was no specific

statute authorizing the President to assign such a guard.  In holding

that such a statute was not necessary, the Court broadly stated the

question as follows: [The President] is enabled to fulfil the duty of

his great department, expressed in the phrase that "he shall take care

that the laws be faithfully executed."



Is this duty limited to the enforcement of acts of Congress or of

treaties of the United States according to their express terms, or does

it include the rights, duties and obligations growing out of the

Constitution itself, our international relations, and all the protection

implied by the nature of the government under the Constitution?{42} The

latter approach was emphatically adopted by the Court.



President Hayes authorized the widespread use of federal troops during

the Railroad Strike of 1877.{43}  President Cleveland also used the

troops in the Pullman Strike, [343 U.S. 688] of 1895 and his action is

of special significance.  No statute authorized this action.  No call

for help had issued from the Governor of Illinois; indeed Governor

Altgeld disclaimed the need for supplemental forces.  But the

President's concern was that federal laws relating to the free flow of

interstate commerce and the mails be continuously and faithfully

executed without interruption.{44}  To further this aim, his agents

sought and obtained the injunction upheld by this Court in In re Debs,

158 U.S. 564 (1895).  The Court scrutinized each of the steps taken by

the President to insure execution of the "mass of legislation" dealing

with commerce and the mails and gave his conduct full approval. 

Congress likewise took note of this use of Presidential power to

forestall apparent obstacles to the faithful execution of the laws.  By

separate resolutions, both the Senate and the House commended the

Executive's action.{45}



President Theodore Roosevelt seriously contemplated seizure of

Pennsylvania coal mines if a coal shortage necessitated such action.{46}

 In his autobiography, President Roosevelt expounded the "Stewardship

Theory" of Presidential power, stating that the executive as subject

only to the people, and, under the Constitution, bound to serve the

people affirmatively in cases where the Constitution does not explicitly

forbid him to render the service.{47} Because the contemplated seizure

of the coal mines was based on this theory, then ex-President Taft

criticized President Roosevelt in a passage in his book relied upon by

the District Court in this case.  Taft, Our Chief Magistrate and His

Powers (1916), 139-147.  In the same book, however, President Taft

agreed that [343 U.S. 689] such powers of the President as the duty to

"take Care that the Laws be faithfully executed" could not be confined

to "express Congressional statutes."  Id. at 88.  In re Neagle, supra,

and In re Debs, supra, were cited as conforming with Taft's concept of

the office, id. at pp. 88-94, as they were later to be cited with

approval in his opinion as Chief Justice in Myers v. United States, 272

U.S. 52, 133 (1926).{48}



In 1909, President Taft was informed that government-owned oil lands

were being patented by private parties at such a rate that public oil

lands would be depleted in a matter of months.  Although Congress had

explicitly provided that these lands were open to purchase by United

States citizens, 29 Stat. 526 (1897), the President nevertheless ordered

the lands withdrawn from sale "[i]n aid of proposed legislation."  In

United States v. Midwest Oil Co., 236 U.S. 459 (1915), the President's

action was sustained as consistent with executive practice throughout

our history.  An excellent brief was filed in the case by the Solicitor

General, Mr. John W. Davis, together with Assistant Attorney General

Knaebel, later Reporter for this Court.  In this brief, the situation

confronting President Taft was described as "an emergency; there was no

time to wait for the action of Congress."  The brief then discusses the

powers of the President under the Constitution in such a case:



Ours is a self-sufficient Government within its sphere.  (Ex parte

Siebold, 100 U.S. 371, 395; In re Debs, 158 U.S. 564, 578.)  "Its means

are adequate to its ends" (McCulloch v. Maryland, 4 [343 U.S. 690]

Wheat. 316, 424), and it is rational to assume that its active forces

will be found equal in most things to the emergencies that confront it. 

While perfect flexibility is not to be expected in a Government of

divided powers, and while division of power is one of the principal

features of the Constitution, it is the plain duty of those who are

called upon to draw the dividing lines to ascertain the essential,

recognize the practical, and avoid a slavish formalism which can only

serve to ossify the Government and reduce its efficiency without any

compensating good.  The function of making laws is peculiar to Congress,

and the Executive cannot exercise that function to any degree.  But this

is not to say that all of the subjects concerning which laws might be

made are perforce removed from the possibility of Executive influence. 

The Executive may act upon things and upon men in many relations which

have not, though they might have, been actually regulated by Congress. 

In other words, just as there are fields which are peculiar to Congress

and fields which are peculiar to the Executive, so there are fields

which are common to both, in the sense that the Executive may move

within them until they shall have been occupied by legislative action. 

These are not the fields of legislative prerogative, but fields within

which the lawmaking power may enter and dominate whenever it chooses. 

This situation results from the fact that the President is the active

agent not of Congress, but of the Nation.  As such, he performs the

duties which the Constitution lays upon him immediately, and as such,

also, he executes the laws and regulations adopted by Congress.  He is

the agent of the people of the United States, deriving all his powers

from them and responsible directly to them.  In no [343 U.S. 691] sense

is he the agent of Congress.  He obeys and executes the laws of Congress

not because Congress is enthroned in authority over him, but because the

Constitution directs him to do so.



Therefore it follows that, in ways short of making laws or disobeying

them, the Executive may be under a grave constitutional duty to act for

the national protection in situations not covered by the acts of

Congress, and in which, even, it may not be said that his action is the

direct expression of any particular one of the independent powers which

are granted to him specifically by the Constitution.  Instances wherein

the President has felt and fulfilled such a duty have not been rare in

our history, though, being for the public benefit and approved by all,

his acts have seldom been challenged in the courts.  We are able,

however, to present a number of apposite cases which were subjected to

judicial inquiry. The brief then quotes from such cases as In re Debs,

supra, and In re Neagle, supra, and continues:



As we understand the doctrine of the Neagle case, and the cases therein

cited, it is clearly this:  the Executive is authorized to exert the

power of the United States when he finds this necessary for the

protection of the agencies, the instrumentalities, or the property of

the Government.  This does not mean an authority to disregard the wishes

of Congress on the subject when that subject lies within its control and

when those wishes have been expressed, and it certainly does not involve

the slightest semblance of a power to legislate, much less to "suspend"

legislation already passed by Congress.  It involves the performance of

specific acts not of a [343 U.S. 692] legislative but purely of an

executive character -- acts which are not in themselves laws, but which

presuppose a "law" authorizing him to perform them.  This law is not

expressed either in the Constitution or in the enactments of Congress,

but reason and necessity compel that it be implied from the exigencies

of the situation.



In none of the cases which we have mentioned, nor in the cases cited in

the extracts taken from the Neagle case, was it possible to say that the

action of the President was directed, expressly or impliedly, by

Congress.  The situations dealt with had never been covered by any act

of Congress, and there was no ground whatever for a contention that the

possibility of their occurrence had ever been specifically considered by

the legislative mind.  In none of those cases did the action of the

President amount merely to the execution of some specific law.



Neither does any of them stand apart in principle from the case at bar,

as involving the exercise of specific constitutional powers of the

President in a degree in which this case does not involve them.  Taken

collectively, the provisions of the Constitution which designate the

President as the official who must represent us in foreign relations, in

commanding the Army and Navy, in keeping Congress informed of the state

of the Union, in insuring the faithful execution of the laws and in

recommending new ones, considered in connection with the sweeping

declaration that the executive power shall be vested in him, completely

demonstrate that his is the watchful eye, the active hand, the

overseeing dynamic force of the United States.{49} [343 U.S. 693] This

brief is valuable not alone because of the caliber of its authors, but

because it lays bare in succinct reasoning the basis of the executive

practice which this Court approved in the Midwest Oil case.



During World War I, President Wilson established a War Labor Board

without awaiting specific direction by Congress.{50}  With William

Howard Taft and Frank P. Walsh as co-chairmen, the Board had as its

purpose the prevention of strikes and lockouts interfering with the

production of goods needed to meet the emergency.  Effectiveness of War

Labor Board decision was accomplished by Presidential action, including

seizure of industrial plants.{51}  Seizure of the Nation's railroads was

also ordered by President Wilson.{52}



Beginning with the Bank Holiday Proclamation{53} and continuing through

World War II, executive leadership and initiative were characteristic of

President Franklin D. Roosevelt's administration.  In 1939, upon the

outbreak [343 U.S. 694] of war in Europe, the President proclaimed a

limited national emergency for the purpose of strengthening our national

defense.{54}  In May of 1941, the danger from the Axis belligerents

having become clear, the President proclaimed "an unlimited national

emergency" calling for mobilization of the Nation's defenses to repel

aggression.{55}  The President took the initiative in strengthening our

defenses by acquiring rights from the British Government to establish

air bases in exchange for over-age destroyers.{56}



In 1941, President Roosevelt acted to protect Iceland from attack by

Axis powers, when British forces were withdrawn, by sending our forces

to occupy Iceland.  Congress was informed of this action on the same day

that our forces reached Iceland.{57}  The occupation of Iceland was but

one of "at least 125 incidents" in our history in which Presidents,

without congressional authorization, and in the absence of a declaration

of war, [have] ordered the Armed Forces to take action or maintain

positions abroad.{58}



Some six months before Pearl Harbor, a dispute at a single aviation

plant at Inglewood, California, interrupted a segment of the production

of military aircraft.  In spite of the comparative insignificance of

this work stoppage to total defense production, as contrasted with the

complete paralysis now threatened by a shutdown of the entire basic

steel industry, and even though [343 U.S. 695] our armed forces were not

then engaged in combat, President Roosevelt ordered the seizure of the

plant pursuant to the powers vested in [him] by the Constitution and

laws of the United States, as President of the United States of America

and Commander in Chief of the Army and Navy of the United States.{59}

The Attorney General (Jackson) vigorously proclaimed that the President

had the moral duty to keep this Nation's defense effort a "going

concern."  His ringing moral justification was coupled with a legal

justification equally well stated:



The Presidential proclamation rests upon the aggregate of the

Presidential powers derived from the Constitution itself and from

statutes enacted by the Congress.



The Constitution lays upon the President the duty "to take care that the

laws be faithfully executed."  Among the laws which he is required to

find means to execute are those which direct him to equip an enlarged

army, to provide for a strengthened navy, to protect Government

property, to protect those who are engaged in carrying out the business

of the Government, and to carry out the provisions of the Lend-Lease

Act.  For the faithful execution of such laws, the President has back of

him not only each general law enforcement power conferred by the various

acts of Congress, but the aggregate of all such laws plus that wide

discretion as to method vested in him by the Constitution for the

purpose of executing the laws.



The Constitution also places on the President the responsibility and

vests in him the powers of Commander in Chief of the Army and of the

Navy.  These weapons for the protection of the continued existence of

the Nation are placed in his sole command [343 U.S. 696] and the

implication is clear that he should not allow them to become paralyzed

by failure to obtain supplies for which Congress has appropriated the

money and which it has directed the President to obtain.{60} At this

time, Senator Connally proposed amending the Selective Training and

Service Act to authorize the President to seize any plant where an

interruption of production would unduly impede the defense effort.{61} 

Proponents of the measure in no way implied that the legislation would

add to the powers already possessed by the President,{62} and the

amendment was opposed as unnecessary, since the President already had

the power.{63}  The amendment relating to plant seizures was not

approved at that session of Congress.{64}



Meanwhile, and also prior to Pearl Harbor, the President ordered the

seizure of a shipbuilding company and an aircraft parts plant.{65} 

Following the declaration of war, but prior to the Smith-Connally Act of

1943, five additional industrial concerns were seized to avert

interruption [343 U.S. 697] of needed production.{66}  During the same

period, the President directed seizure of the Nation's coal mines to

remove an obstruction to the effective prosecution of the war.{67}



The procedures adopted by President Roosevelt closely resembled the

methods employed by President Wilson.  A National War Labor Board, like

its predecessor of World War I, was created by Executive Order to deal

effectively and fairly with disputes affecting defense production.{68} 

Seizures were considered necessary, upon disobedience of War Labor Board

orders, to assure that the mobilization effort remained a "going

concern," and to enforce the economic stabilization program.



At the time of the seizure of the coal mines, Senator Connally's bill to

provide a statutory basis for seizures and for the War Labor Board was

again before Congress.  As stated by its sponsor, the purpose of the

bill was not to augment Presidential power, but to "let the country know

that the Congress is squarely behind the President."{69}  As in the case

of the legislative recognition of President Lincoln's power to seize,

Congress again recognized that the President already had the necessary

power, for there was no intention to "ratify" past actions of doubtful

validity.  Indeed, when Senator Tydings offered an amendment to the

Connally bill expressly to confirm and validate the seizure of the coal

mines, sponsors of the bill [343 U.S. 698] opposed the amendment as

casting doubt on the legality of the seizure, and the amendment was

defeated.{70}  When the Connally bill, S. 796, came before the House,

all parts after the enacting clause were stricken, and a bill introduced

by Representative Smith of Virginia was substituted and passed.  This

action in the House is significant because the Smith bill did not

contain the provisions authorizing seizure by the President, but did

contain provisions controlling and regulating activities in respect to

properties seized by the Government under statute "or otherwise."{71} 

After a conference, the seizure provisions of the Connally bill, enacted

as the Smith-Connally or War Labor Disputes Act of 1943, 57 Stat. 163,

were agreed to by the House.



Following passage of the Smith-Connally Act, seizures to assure

continued production on the basis of terms recommended by the War Labor

Board were based upon that Act as well as upon the President's power

under the Constitution and the laws generally.  A question did arise as

to whether the statutory language relating to "any plant, mine, or

facility equipped for the manufacture, production, or mining of any

articles or materials"{72} authorized the seizure of properties of

Montgomery Ward & Co., a retail department store and mail-order concern.

 The Attorney General (Biddle) issued an opinion that the President

possessed the power to seize Montgomery Ward properties to prevent a

work stoppage whether or not the terms of the Smith-Connally Act

authorized such a seizure.{73}  This opinion was in line with [343 U.S.

699] the views on Presidential powers maintained by the Attorney

General's predecessors (Murphy{74} and Jackson{75}) and his successor

(Clark {76}).  Accordingly, the President ordered seizure of the Chicago

properties of Montgomery Ward in April, 1944, when that company refused

to obey a War Labor Board order concerning the bargaining representative

of its employees in Chicago.{77}  In Congress, a Select Committee to

Investigate Seizure of the Property of Montgomery Ward & Co., assuming

that the terms of the Smith-Connally Act did not cover this seizure,

concluded that the seizure "was not only within the constitutional

power, but was the plain duty of the President."{78}  Thereafter, an

election determined the bargaining representative for the Chicago

employees and the properties were returned to Montgomery Ward & Co.  In

December, 1944, after continued defiance of a series of War Labor Board

orders, President Roosevelt ordered the seizure of Montgomery Ward

properties throughout the country.{79}  The Court of Appeals for the

Seventh Circuit upheld this seizure on statutory grounds, and also

indicated its disapproval of a lower court's denial of seizure power

apart from express statute.{80} [343 U.S. 700]



More recently, President Truman acted to repel aggression by employing

our armed forces in Korea.{81}  Upon the intervention of the Chinese

Communists, the President proclaimed the existence of an unlimited

national emergency requiring the speedy build-up of our defense

establishment.{82}  Congress responded by providing for increased

manpower and weapons for our own armed forces, by increasing military

aid under the Mutual Security Program, and by enacting economic

stabilization measures, as previously described.



This is but a cursory summary of executive leadership.  But it amply

demonstrates that Presidents have taken prompt action to enforce the

laws and protect the country whether or not Congress happened to provide

in advance for the particular method of execution.  At the minimum, the

executive actions reviewed herein sustain the action of the President in

this case.  And many of the cited examples of Presidential practice go

far beyond the extent of power necessary to sustain the President's

order to seize the steel mills.  The fact that temporary executive

seizures of industrial plants to meet an emergency have not been

directly tested in this Court furnishes not the slightest suggestion

that such actions have been illegal.  Rather, the fact that Congress and

the courts have consistently recognized and given their support to such

executive action indicates that such a power of seizure has been

accepted throughout our history.



History bears out the genius of the Founding Fathers, who created a

Government subject to law but not left subject to inertia when vigor and

initiative are required. [343 U.S. 701] IV



Focusing now on the situation confronting the President on the night of

April 8, 1952, we cannot but conclude that the President was performing

his duty under the Constitution to "take Care that the Laws be

faithfully executed" -- a duty described by President Benjamin Harrison

as "the central idea of the office."{83}



The President reported to Congress the morning after the seizure that he

acted because a work stoppage in steel production would immediately

imperil the safety of the Nation by preventing execution of the

legislative programs for procurement of military equipment.  And, while

a shutdown could be averted by granting the price concessions requested

by plaintiffs, granting such concessions would disrupt the price

stabilization program also enacted by Congress.  Rather than fail to

execute either legislative program, the President acted to execute both.



Much of the argument in this case has been directed at straw men.  We do

not now have before us the case of a President acting solely on the

basis of his own notions of the public welfare.  Nor is there any

question of unlimited executive power in this case.  The President

himself closed the door to any such claim when he sent his Message to

Congress stating his purpose to abide by any action of Congress, whether

approving or disapproving his seizure action.  Here, the President

immediately made sure that Congress was fully informed of the temporary

action he had taken only to preserve the legislative programs from

destruction until Congress could act.



The absence of a specific statute authorizing seizure of the steel mills

as a mode of executing the laws -- both the military procurement program

and the anti-inflation program -- has not until today been thought to

prevent [343 U.S. 702] the President from executing the laws.  Unlike an

administrative commission confined to the enforcement of the statute

under which it was created, or the head of a department when

administering a particular statute, the President is a constitutional

officer charged with taking care that a "mass of legislation" be

executed.  Flexibility as to mode of execution to meet critical

situations is a matter of practical necessity.  This practical

construction of the "Take Care" clause, advocated by John Marshall, was

adopted by this Court in In re Neagle, In re Debs and other cases cited

supra.  See also Ex parte Quirin, 317 U.S. 1, 26 (1942).  Although more

restrictive views of executive power, advocated in dissenting opinions

of Justices Holmes, McReynolds and Brandeis, were emphatically rejected

by this Court in Myers v. United States, supra, members of today's

majority treat these dissenting views as authoritative.



There is no statute prohibiting seizure as a method of enforcing

legislative programs.  Congress has in no wise indicated that its

legislation is not to be executed by the taking of private property

(subject, of course, to the payment of just compensation) if its

legislation cannot otherwise be executed.  Indeed, the Universal

Military Training and Service Act authorizes the seizure of any plant

that fails to fill a Government contract{84} or the properties of any

steel producer that fails to allocate steel as directed for defense

production.{85}  And the Defense Production Act authorizes the President

to requisition equipment and condemn real property needed without delay

in the defense effort.{86}  Where Congress authorizes seizure in

instances not necessarily crucial to the defense [343 U.S. 703] program,

it can hardly be said to have disclosed an intention to prohibit

seizures where essential to the execution of that legislative program.



Whatever the extent of Presidential power on more tranquil occasions,

and whatever the right of the President to execute legislative programs

as he sees fit without reporting the mode of execution to Congress, the

single Presidential purpose disclosed on this record is to faithfully

execute the laws by acting in an emergency to maintain the status quo,

thereby preventing collapse of the legislative programs until Congress

could act.  The President's action served the same purposes as a

judicial stay entered to maintain the status quo in order to preserve

the jurisdiction of a court.  In his Message to Congress immediately

following the seizure, the President explained the necessity of his

action in executing the military procurement and anti-inflation

legislative programs and expressed his desire to cooperate with any

legislative proposals approving, regulating or rejecting the seizure of

the steel mills.  Consequently, there is no evidence whatever of any

Presidential purpose to defy Congress or act in any way inconsistent

with the legislative will.



In United States v. Midwest Oil Co., supra, this Court approved

executive action where, as here, the President acted to preserve an

important matter until Congress could act -- even though his action in

that case was contrary to an express statute.  In this case, there is no

statute prohibiting the action taken by the President in a matter not

merely important, but threatening the very safety of the Nation. 

Executive inaction in such a situation, courting national disaster, is

foreign to the concept of energy and initiative in the Executive as

created by the Founding Fathers.  The Constitution was itself adopted in

a period of grave emergency. . . .  While emergency does not create

power, emergency may furnish [343 U.S. 704] the occasion for the

exercise of power.{87} The Framers knew, as we should know in these

times of peril, that there is real danger in Executive weakness.  There

is no cause to fear Executive tyranny so long as the laws of Congress

are being faithfully executed.  Certainly there is no basis for fear of

dictatorship when the Executive acts, as he did in this case, only to

save the situation until Congress could act. V



Plaintiffs place their primary emphasis on the Labor Management

Relations Act of 1947, hereinafter referred to as the Taft-Hartley Act,

but do not contend that that Act contains any provision prohibiting

seizure.



Under the Taft-Hartley Act, as under the Wagner Act, collective

bargaining and the right to strike are at the heart of our national

labor policy.  Taft-Hartley preserves the right to strike in any

emergency, however serious, subject only to an 80-day delay in cases of

strikes imperiling the national health and safety.{88}  In such a case,

the President may appoint a board of inquiry to report the facts of the

labor dispute.  Upon receiving that report, the President may direct the

Attorney General to petition a District Court to enjoin the strike.  If

the injunction is granted, it may continue in effect for no more than 80

days, during which time the board of inquiry makes further report and

efforts are made to settle the dispute.  When the injunction is

dissolved, the President is directed to submit a report to Congress

together with his recommendations.{89}



Enacted after World War II, Taft-Hartley restricts the right to strike

against private employers only to a limited [343 U.S. 705] extent and

for the sole purpose of affording an additional period of time within

which to settle the dispute.  Taft-Hartley in no way curbs strikes

before an injunction can be obtained and after an 80-day injunction is

dissolved.



Plaintiffs admit that the emergency procedures of Taft-Hartley are not

mandatory.  Nevertheless, plaintiffs apparently argue that, since

Congress did provide the 80-day injunction method for dealing with

emergency strikes, the President cannot claim that an emergency exists

until the procedures of Taft-Hartley have been exhausted.  This argument

was not the basis of the District Court's opinion, and, whatever merit

the argument might have had following the enactment of Taft-Hartley, it

loses all force when viewed in light of the statutory pattern

confronting the President in this case.



In Title V of the Defense Production Act of 1950,{90} Congress stated:



It is the intent of Congress, in order to provide for effective price

and wage stabilization pursuant to title IV of this Act and to maintain

uninterrupted production, that there be effective procedures for the

settlement of labor disputes affecting national defense. ( 501.)  Title

V authorized the President to initiate labor-management conferences and

to take action appropriate to carrying out the recommendations of such

conferences and the provisions of Title V.  ( 502.)  Due regard is to be

given to collective bargaining practice and stabilization policies, and

no action taken is to be inconsistent with Taft-Hartley and other laws. 

( 503.)  The purpose of these provisions was to authorize the President

"to establish a board, commission or other agency, similar [343 U.S.

706] to the War Labor Board of World War II, to carry out the

title."{91}



The President authorized the Wage Stabilization Board (WSB), which

administers the wage stabilization functions of Title IV of the Defense

Production Act, also to deal with labor disputes affecting the defense

program.{92}  When extension of the Defense Production Act was before

Congress in 1951, the Chairman of the Wage Stabilization Board described

in detail the relationship between the Taft-Hartley procedures

applicable to labor disputes imperiling the national health and safety

and the new WSB disputes procedures especially devised for settlement of

labor disputes growing out of the needs of the defense program.{93} 

Aware that a technique separate from Taft-Hartley had been devised,

members of Congress attempted to divest the WSB of its disputes powers. 

These attempts were defeated in the House, were not brought to a vote in

the Senate, and the Defense Production Act was extended through June 30,

1952, without change in the disputes powers of the WSB.{94}  [343 U.S.

707] Certainly this legislative creation of a new procedure for dealing

with defense disputes negatives any notion that Congress intended the

earlier and discretionary Taft-Hartley procedure to be an exclusive

procedure.



Accordingly, as of December 22, 1951, the President had a choice between

alternate procedures for settling the threatened strike in the steel

mills:  one route created to deal with peacetime disputes; the other

route specially created to deal with disputes growing out of the defense

and stabilization program.  There is no question of bypassing a

statutory procedure, because both of the routes available to the

President in December were based upon statutory authorization.  Both

routes were available in the steel dispute.  The Union, by refusing to

abide by the defense and stabilization program, could have forced the

President to invoke Taft-Hartley at that time to delay the strike a

maximum of 80 days.  Instead, the Union agreed to cooperate with the

defense program and submit the dispute to the Wage Stabilization Board.



Plaintiffs had no objection whatever at that time to the President's

choice of the WSB route.  As a result, the strike was postponed, a WSB

panel held hearings and reported the position of the parties and the WSB

recommended the terms of a settlement which it found were fair and

equitable.  Moreover, the WSB performed a function which the board of

inquiry contemplated by Taft-Hartley could not have accomplished when it

checked the recommended wage settlement against its own wage

stabilization regulations issued pursuant to its stabilization functions

under Title IV of the Defense Production Act.  Thereafter, the parties

bargained on the basis of the WSB recommendation.



When the President acted on April 8, he had exhausted the procedures for

settlement available to him.  Taft-Hartley was a route parallel to, not

connected with, the WSB procedure.  The strike had been delayed 99 [343

U.S. 708] days, as contrasted with the maximum delay of 80 days under

Taft-Hartley.  There had been a hearing on the issues in dispute and

bargaining which promised settlement up to the very hour before seizure

had broken down.  Faced with immediate national peril through stoppage

in steel production, on the one hand, and faced with destruction of the

wage and price legislative programs, on the other, the President took

temporary possession of the steel mills as the only course open to him

consistent with his duty to take care that the laws be faithfully

executed.



Plaintiffs' property was taken and placed in the possession of the

Secretary of Commerce to prevent any interruption in steel production. 

It made no difference whether the stoppage was caused by a

union-management dispute over terms and conditions of employment, a

union-Government dispute over wage stabilization, or a

management-Government dispute over price stabilization.  The President's

action has thus far been effective not in settling the dispute, but in

saving the various legislative programs at stake from destruction until

Congress could act in the matter. VI



The diversity of views expressed in the six opinions of the majority,

the lack of reference to authoritative precedent, the repeated reliance

upon prior dissenting opinions, the complete disregard of the

uncontroverted facts showing the gravity of the emergency, and the

temporary nature of the taking all serve to demonstrate how far afield

one must go to affirm the order of the District Court.



The broad executive power granted by Article II to an officer on duty

365 days a year cannot, it is said, be invoked to avert disaster. 

Instead, the President must confine himself to sending a message to

Congress recommending action.  Under this messenger-boy concept of [343

U.S. 709] the Office, the President cannot even act to preserve

legislative programs from destruction so that Congress will have

something left to act upon.  There is no judicial finding that the

executive action was unwarranted because there was, in fact, no basis

for the President's finding of the existence of an emergency{95} for,

under this view, the gravity of the emergency and the immediacy of the

threatened disaster are considered irrelevant as a matter of law.



Seizure of plaintiffs' property is not a pleasant undertaking. 

Similarly unpleasant to a free country are the draft which disrupts the

home and military procurement which causes economic dislocation and

compels adoption of price controls, wage stabilization and allocation of

materials.  The President informed Congress that even a temporary

Government operation of plaintiffs' properties was "thoroughly

distasteful" to him, but was necessary to prevent immediate paralysis of

the mobilization program.  Presidents have been in the past, and any man

worthy of the Office should be in the future, free to take at least

interim action necessary to execute legislative programs essential to

survival of the Nation.  A sturdy judiciary should not be swayed by the

unpleasantness or unpopularity of necessary executive action, but must

independently determine for itself whether the President was acting, as

required by the Constitution, to "take Care that the Laws be faithfully

executed."



As the District Judge stated, this is no time for "timorous" judicial

action.  But neither is this a time for timorous executive action. 

Faced with the duty of executing the defense programs which Congress had

enacted and the disastrous effects that any stoppage in steel production

would have on those programs, the President acted to preserve those

programs by seizing the steel mills.  [343 U.S. 710] There is no

question that the possession was other than temporary in character, and

subject to congressional direction -- either approving, disapproving, or

regulating the manner in which the mills were to be administered and

returned to the owners.  The President immediately informed Congress of

his action, and clearly stated his intention to abide by the legislative

will.  No basis for claims of arbitrary action, unlimited powers, or

dictatorial usurpation of congressional power appears from the facts of

this case.  On the contrary, judicial, legislative and executive

precedents throughout our history demonstrate that, in this case, the

President acted in full conformity with his duties under the

Constitution.  Accordingly, we would reverse the order of the District

Court. Footnotes BLACK, J., lead opinion (Footnotes)



* Together with No. 745, Sawyer, Secretary of Commerce v. Youngstown

Sheet & Tube Co. et al., also on certiorari to the same court.



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

3503.



2. The Selective Service Act of 1948, 62 Stat. 604, 625-627, 50 U.S.C.

App (Supp. IV)  468; the Defense Production Act of 1950, Tit. II, 64

Stat. 798, as amended, 65 Stat. 132.



3. 93 Cong.Rec. 3637-3645.



4. 93 Cong.Rec. 3835-3836.



5. Labor Management Relations Act, 1947, 61 Stat. 136, 152-156, 29

U.S.C. (Supp.IV)  141, 171-180. FRANKFURTER, J., concurring (Footnotes)



1. The power to seize plants under the War Labor Disputes Act ended with

the termination of hostilities, proclaimed on Dec. 31, 1946, prior to

the incoming of the Eightieth Congress, and the power to operate

previously seized plants ended on June 30, 1947, only a week after the

enactment of the Labor Management Relations Act over the President's

veto.  57 Stat. 163, 165, 50 U.S.C.App. (1946 ed.)  1503.  See 2

Legislative History of the Labor Management Relations Act, 1947

(published by National Labor Relations Board, 1948), 1145, 1519, 1626.



2. Some of the more directly relevant statements are the following: In

most instances, the force of public opinion should make itself

sufficiently felt in this 80-day period to bring about a peaceful

termination of the controversy.  Should this expectation fail, the bill

provides for the President's laying the matter before Congress for

whatever legislation seems necessary to preserve the health and safety

of the Nation in the crisis. Senate Report No. 105, 80th Cong., 1st

Sess. 15.



"We believe it would be most unwise for the Congress to attempt to adopt

laws relating to any single dispute between private parties."  Senate

Minority Report, id. Part 2, at 17.



In the debates, Senator H. Alexander Smith, a member of the Senate

Committee on Labor and Public Welfare, said, In the event of a deadlock

and a strike is not ended, the matter is referred to the President, who

can use his discretion as to whether he will present the matter to the

Congress, whether or not the situation is such that emergency

legislation is required.



Nothing has been done with respect to the Smith-Connally Act.  There is

no provision for taking over property or running plants by the

Government.  We simply provide a procedure which we hope will be

effective in 99 out of 100 cases where the health or safety of the

people may be affected, and still leave a loophole for congressional

action. 93 Cong.Rec. 4281.



The President in his veto message said, . . . it would be mandatory for

the President to transfer the whole problem to the Congress, even if it

were not in session.  Thus, major economic disputes between employers

and their workers over contract terms might ultimately be thrown into

the political arena for disposition.  One could scarcely devise a less

effective method for discouraging critical strikes. 93 Cong.Rec. 7487.



3. Senator Taft said:



If there finally develops a complete national emergency threatening the

safety and health of the people of the United States, Congress can pass

an emergency law to cover the particular emergency. . . .



We have felt that, perhaps in the case of a general strike, or in the

case of other serious strikes, after the termination of every possible

effort to resolve the dispute, the remedy might be an emergency act by

Congress for that particular purpose.



. . .  But while such a bill [for seizure of plants and union funds]

might be prepared, I should be unwilling to place such a law on the

books until we actually face such an emergency, and Congress applies the

remedy for the particular emergency only.  Eighty days will provide

plenty of time within which to consider the possibility of what should

be done, and we believe very strongly that there should not be anything

in this law which prohibits finally the right to strike. 93 Cong.Rec.

3835-3836.



4. 93 Cong.Rec. 3637-3645.



5. See, for instance, the statements of James B. Carey, Secretary of the

CIO, in opposition to S. 2054, 77th Cong., 1st Sess., which eventually

became the War Labor Disputes Act.  Central to that Act, of course, was

the temporary grant of the seizure power to the President.  Mr. Carey

then said:



Senator BURTON.  If this would continue forever, it might mean the

nationalization of industry?



Mr. CAREY.  Let us consider it on a temporary basis.  How is the law

borne by labor?  Here is the Government-sponsored strike-breaking

agency, and nothing more. *    *    *    *



Our suggestion of a voluntary agreement of the representatives of

industry and labor and Government, participating in calling a

conference, is a democratic way.  The other one is the imposition of

force, the other is the imposition of seizure of certain things for a

temporary period; the destruction of collective bargaining, and it would

break down labor relations that may have been built up over a long

period. Hearing before a Subcommittee of the Senate Committee on the

Judiciary on S. 2054, 77th Cong., 1st Sess. 132.



6. Clearly, the President's message of April 9 and his further letter to

the President of the Senate on April 21 do not satisfy this requirement.

 Cong.Rec. April 9, 1952, pp. 3962-3963; id., April 21, 1952, p. 4192.



7. 64 Stat. 798 et seq., 65 Stat. 131 et seq., 50 U.S.C. App.  2061 et

seq.



8.  501, 502, 64 Stat. 798, 812, 50 U.S.C.App.  2121, 2122.



9.  502, 503, 64 Stat. 798, 812, 50 U.S.C.App.  2122, 2123.



10. The provision of  502 in S. 3936, as reported by the Senate

Committee on Banking and Currency, read as follows:



The President is authorized, after consultation with labor and

management, to establish such principles and procedures and to take such

action as he deems appropriate for the settlement of labor disputes

affecting national defense, including the designation of such persons,

boards or commissions as he may deem appropriate to carry out the

provisions of this title. That language was superseded in the Conference

Report by the language that was finally enacted.  H.R.Rep. No. 3042,

81st Cong., 2d Sess. 16, 35.  The change made by the Conference

Committee was for the purpose of emphasizing the voluntary nature of the

cooperation sought from he public, labor, and management; as Senator

Ives explained under repeated questioning, "If any group were to hold

out, there would be no agreement [on action to carry out the provisions

of this title]."  96 Cong.Rec. 14071.  Chairman Maybank of the Senate

Committee on Banking and Currency said, The labor disputes title of the

Senate was accepted by the House with amendment which merely indicates

more specific avenues through which the President may bring labor and

management together. Id. at 14073.



11. S.Rep. No. 2250, 81st Cong., 2d Sess. 41; H.R.Rep. No. 3042, 81st

Cong., 2d Sess. 35.  It is hardly necessary to note that Congressional

authorization of an agency similar to the War Labor Board does not imply

a Congressional grant of seizure power similar to that given the

President specifically by  3 of the War Labor Disputes Act of 1943.  The

War Labor Board, created by  7 of the 1943 Act, had only administrative

sanctions.  See 57 Stat. 163, 166167; see Report of Senate Committee on

Labor and Public Welfare, The Disputes Functions of the Wage

Stabilization Board, 1951, S.Rep. No. 1037, 82d Cong., 1st Sess. 6.  The

seizure power given by Congress in  3 of the 1943 Act was given to the

President, not to the War Labor Board, and was needed only when the War

Labor Board reported it had failed; the seizure power was separate and

apart from the War Labor Board machinery for settling disputes.  At

most, the Defense Production Act does what  7 of the War Labor Disputes

Act did; the omission of any grant of seizure power similar to  3 is too

obvious not to have been conscious.  At any rate, the Wage Stabilization

Board differs substantially from the earlier War Labor Board.  In 1951

the Senate Committee studying the disputes functions of the Wage

Stabilization Board pointed out the substantial differences between that

Board and its predecessor, and concluded that "The new Wage

Stabilization Board . . . does not rely on title V of the Defense

Production Act for its authority."  S.Rep. No. 1037, 82d Cong., 1st

Sess., supra, at 4-6.



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



13. See 96 Cong.Rec. 14071.



14. Id. at 12275.  Just before the paragraph quoted in the text, Senator

Ives had said:



In fact, the courts have upheld the constitutionality of the national

emergency provisions of the Labor-Management Relations Act of 1947,

which can require that workers stay on the job for at least 80 days when

a strike would seriously threaten the national health and safety in

peacetime.



By the terms of the pending bill, the Labor-Management Relations Act of

1947 would be controlling in matters affecting the relationship between

labor and management, including collective bargaining.  It seems to me,

however, that this is as far as we should go in legislation of this

type.



15. 16 Fed.Reg. 3503.  The disputes functions were not given to the Wage

Stabilization Board under Title V, see note 11, supra, but apparently

under the more general Title IV, entitled "Price and Wage

Stabilization."



16. See Hearings before a Subcommittee of the House Committee on

Education and Labor, Disputes Functions of Wage Stabilization Board, 82d

Cong., 1st Sess. (May 28-June 15, 1951); Hearings before the

Subcommittee on Labor and Labor-Management Relations of Senate Committee

on Labor and Public Welfare, Wage Stabilization and Disputes Program,

82d Cong., 1st Sess. (May 17-June 7, 1951).  The resulting Report of the

Senate Committee, S.Rep. No. 1037, 82d Cong., 1st Sess. 9, recommended

that "Title V of the Defense Production Act be retained," and that [n]o

statutory limitations be imposed on the President's authority to deal

with disputes through voluntary machinery; such limitations, we believe,

would infringe on the President's constitutional power. (Emphasis

added.)  The Committee found, id. at 10, that the Wage Stabilization

Board relies completely on voluntary means for settling disputes and is,

therefore, an extension of free collective bargaining.  The Board has no

powers of legal compulsion. "Executive Order No. 10233," the Committee

found further, "does not in any way run counter to the . . .

Taft-Hartley Act.  It is simply an additional tool, not a substitute for

these laws."  Of particular relevance to the present case, the Committee

declared:



The recommendations of the Wage Stabilization Board in disputes

certified by the President have no compulsive force.  The parties are

free to disregard recommendations of the Wage Stabilization Board. . . .



There is, of course, the President's authority to seize plants under the

Selective Service Act [a power not here used], but this is an authority

which exists independently of the Wage Stabilization Board and its

disputes-handling functions.  In any case, seizure is an extraordinary

remedy, and the authority to seize, operates whether or not there is a

disputes-handling machinery. Id. at 5.



17. 97 Cong.Rec. 8390-8415.



18. 65 Stat. 131.



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

post,



20. One of President Wilson's seizures has given rise to controversy. 

In his testimony in justification of the Montgomery Ward seizure during

World War II, Attorney General Biddle argued that the World War I

seizure of Smith & Wesson could not be supported under any of the World

War I statutes authorizing seizure.  He thus adduced it in support of

the claim of so-called inherent Presidential power of seizure.  See

Hearings before House Select Committee to Investigate the Seizure of

Montgomery Ward, 78th Cong., 2d Sess. 167-168.  In so doing, he followed

the ardor of advocates in claiming everything.  In his own opinion to

the President, he rested the power to seize Montgomery Ward on the

statutory authority of the War Labor Disputes Act, see 40 Op.Atty.Gen.

312 (1944), and the Court of Appeals decision upholding the Montgomery

Ward seizure confined itself to that ground.  United States v.

Montgomery Ward & Co., 150 F.2d 369.  What Attorney General Biddle said

about Smith & Wesson was, of course, post litem motam.  Whether or not

the World War I statutes were broad enough to justify that seizure, it

is clear that the taking officers conceived themselves as moving within

the scope of statute law.  See Letter from Administrative Div., Advisory

Sec. to War Dep't. Bd. of Appraisers, National Archives, Records of the

War Department, Office of the Chief of Ordnance, O.O. 004.002/194 Smith

& Wesson, Apr. 2, 1919; n. 3, Appendix II, post,   Thus, whether or not

that seizure was within the statute, it cannot properly be cited as a

precedent for the one before us.  On this general subject, compare

Attorney General Knox's opinion advising President Theodore Roosevelt

against the so-called "stewardship" theory of the Presidency.  National

Archives, Opinions of the Attorney General, Book 31, Oct. 10, 1902 (R.G.

60); Theodore Roosevelt, Autobiography, 388-389; 3 Morison, The Letters

of Theodore Roosevelt, 323-366. FRANKFURTER, J., concurring (Footnotes)



* Governmental possession of the Nation's railroads taken on December

28, 1917, was specifically terminated by statute on March 1, 1920, prior

to the end of the "war."  See  200 of the Transportation Act of 1920, 41

Stat. 456, 457.



1. Clyde B. Aitchison states that, on March 31, 1861, the Federal

authorities took "under military control the Philadelphia, Wilmington &

Baltimore Railway to insure uninterrupted communication between the

North Atlantic States and Washington."  Aitchison, War Time Control of

American Railways, 26 Va.L.Rev. 847, 856 (1940).  He adds that the

return of the road to its private owners followed "shortly thereafter." 

Ibid.  Original documents on this seizure are unavailable, and it has,

therefore, not been included in this table.



2.  The material in this table is taken from original documents in the

National Archives and Hearings before the Senate Special Committee

Investigating the Munitions Industry, 73d Cong., Part 17, 4270-4271

(1934).



3. Although no specific statutory authority was cited in the seizing

order, it is clear from correspondence and reports in connection with

the administration of the program that the seizure was effected under

wartime legislation.  See, e.g., Davisson, History of the Advisory

Section, Administrative Division, Ordnance Office in connection with the

Commandeering of Private Property, National Archives, Records of the War

Department, Office of the Chief of Ordnance, O.O. 023/1362, Nov. 1920;

Letter from Ordnance Office, Administrative Division to The Adjutant

General, National Archives, Records of the War Department, Office of The

Adjutant General, AG 386.2, Jan. 7, 1919.



4. The material in this table is summarized from a number of sources,

chief of which are the War Labor Reports, contemporary accounts in the

New York Times, United States National Wage Stabilization Board,

Research and statics report No. 2 (1946), and Johnson, Government

Seizures and Labor Disputes (Philadelphia, Pa., 1948) (unpublished

doctoral dissertation at the University of Pennsylvania).  Question

marks appear in the tables in instances where no satisfactory

information on the particular point was available.



5. Each of the Executive Orders uses the stock phrase "the Constitution

and laws" as authority for the President's action, as well as his

position as Commander in Chief.  Only specific statutory authority

relied upon is given in this table.  The form of reference of the

particular Executive Order is used.  Statutes referred to in the table

are analyzed in Appendix I, supra,   For convenience, their citations

are repeated here:



(1) Army Appropriations Act of Aug. 29, 1916, 39 Stat. 619, 645, 10

U.S.C.  1361.



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

 809.



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



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



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

Stat. 21, 92.



When seizures of transportation facilities were effected through

agencies other than the War Department, the First War Powers Act of

1941, 55 Stat. 838, was cited.  Title I of that Act permitted the

President to shift certain functions among executive agencies in aid of

the war effort.  The Act of Aug. 29, 1916, authorizing seizure of

transportation facilities, specified that it should be accomplished

through the Secretary of War.



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



7. Unless otherwise indicated, changes in conditions of employment

instituted during seizure were continued by management upon the return

of the facilities to its control.



8. Validity of seizure was challenged in comparatively few cases.  Most

litigation concerned the consequences of seizure.  Cases in which the

validity of the seizure was attacked are indicated by double asterisks

(**).



9. This order was followed by a series drawn in the same terms extending

the seizure to additional mines.  The Executive Orders were:  No. 9474;

9 Fed.Reg. 10815; No. 9476, 9 Fed.Reg. 10817; No. 9478, 9 Fed.Reg.

11045; No. 9481, 9 Fed.Reg. 11387; No. 9482, 9 Fed.Reg. 11459; No. 9483,

9 Fed.Reg. 11601.



10. A series of strikes for recognition by supervisory employees at the

various mines were usually, though not always, terminated on seizure of

the affected property.



11. See Lord Mfg. Co. v. Collisson, 62 F.Supp. 79 (W.D.Pa. 1945).

DOUGLAS, J., concurring (Footnotes)



1. What a President may do as a matter of expediency or extremity may

never reach a definitive constitutional decision.  For example,

President Lincoln suspended the writ of habeas corpus, claiming the

constitutional right to do so.  See Ex parte Merryman, 17 Fed.Cas. No.

9,487.  Congress ratified his action by the Act of March 3, 1863.  12

Stat. 755.



2. Mr. Justice Brandeis, speaking for the Court in United States v.

North American Co., 253 U.S. 330, 333, stated that the basis of the

Government's liability for a taking of property was legislative

authority: In order that the Government shall be liable, it must appear

that the officer who has physically taken possession of the property was

duly authorized so to do, either directly by Congress or by the official

upon whom Congress conferred the power.



That theory explains cases like United States v. Causby, 328 U.S. 256,

where the acts of the officials resulting in a taking were acts

authorized by the Congress, though the Congress had not treated the acts

as one of appropriation of private property.



Wartime seizures by the military in connection with military operations

(cf. United States v. Russell, 13 Wall. 623) are also in a different

category. JACKSON, J., concurring (Footnotes)



1. A Hamilton may be matched against a Madison.  7 The Works of

Alexander Hamilton, 76-117; 1 Madison, Letters and Other Writings,

611-654.  Professor Taft is counterbalanced by Theodore Roosevelt. 

Taft, Our Chief Magistrate and His Powers, 139-140; Theodore Roosevelt,

Autobiography, 388-389.  It even seems that President Taft cancels out

Professor Taft.  Compare his "Temporary Petroleum Withdrawal No. 5" of

September 27, 1909, United States v. Midwest Oil Co., 236 U.S. 459, 467,

468, with his appraisal of executive power in "Our Chief Magistrate and

His Powers" 139-140.



2. It is in this class of cases that we find the broadest recent

statements of presidential power, including those relied on here. 

United States v. Curtiss-Wright Corp., 299 U.S. 304, involved not the

question of the President's power to act without congressional

authority, but the question of his right to act under and in accord with

an Act of Congress.  The constitutionality of the Act under which the

President had proceeded was assailed on the ground that it delegated

legislative powers to the President.  Much of the Court's opinion is

dictum, but the ratio decidendi is contained in the following language:



When the President is to be authorized by legislation to act in respect

of a matter intended to affect a situation in foreign territory, the

legislator properly bears in mind the important consideration that the

form of the President's action -- or, indeed, whether he shall act at

all -- may well depend, among other things, upon the nature of the

confidential information which he has or may thereafter receive, or upon

the effect which his action may have upon our foreign relations.  This

consideration, in connection with what we have already said on the

subject, discloses the unwisdom of requiring Congress in this field of

governmental power to lay down narrowly definite standards by which the

President is to be governed.  As this court said in Mackenzie v. Hare,

239 U.S. 299, 311, As a government, the United States is invested with

all the attributes of sovereignty.  As it has the character of

nationality, it has the powers of nationality, especially those which

concern its relations and intercourse with other countries.  We should

hesitate long before limiting or embarrassing such powers. (Italics

supplied.) Id. at 321-322.



That case does not solve the present controversy.  It recognized

internal and external affairs as being in separate categories, and held

that the strict limitation upon congressional delegations of power to

the President over internal affairs does not apply with respect to

delegations of power in external affairs.  It was intimated that the

President might act in external affairs without congressional authority,

but not that he might act contrary to an Act of Congress.



Other examples of wide definition of presidential powers under statutory

authorization are Chicago & Southern Air Lines, Inc. v. Waterman

Steamship Corp., 333 U.S. 103, and Hirabayashi v. United States, 320

U.S. 81.  But see, Jecker v. Montgomery, 13 How. 498, 515; United States

v. Western Union Telegraph Co., 272 F. 311; aff'd, 272 F. 893; rev'd on

consent of the parties, 260 U.S. 754; United States Harness Co. v.

Graham, 288 F. 929.



3. Since the Constitution implies that the writ of habeas corpus may be

suspended in certain circumstances, but does not say by whom, President

Lincoln asserted and maintained it as an executive function in the face

of judicial challenge and doubt.  Ex parte Merryman, 17 Fed.Cas. 144; Ex

parte Milligan, 4 Wall. 2, 125; see Ex parte Bollman, 4 Cranch 75, 101. 

Congress eventually ratified his action.  Habeas Corpus Act of March 3,

1863, 12 Stat. 755.  See Hall, Free Speech in War Time, 21 Col.L.Rev.

526.  Compare Myers v. United States, 272 U.S. 52, with Humphrey's

Executor v. United States, 295 U.S. 602, and Hirabayashi v. United

States, 320 U.S. 81, with the case at bar.  Also compare Ex parte

Vallandingham, 1 Wall. 243, with Ex parte Milligan, supra.



4. President Roosevelt's effort to remove a Federal Trade Commissioner

was found to be contrary to the policy of Congress and impinging upon an

area of congressional control, and so his removal power was cut down

accordingly.  Humphrey's Executor v. United States, 295 U.S. 602. 

However, his exclusive power of removal in executive agencies, affirmed

in Myers v. United States, 272 U.S. 52, continued to be asserted and

maintained.  Morgan v. Tennessee Valley Authority, 115 F.2d 990, cert.

denied, 312 U.S. 701; In re Power to Remove Members of the Tennessee

Valley Authority, 39 Op.Atty.Gen. 145; President Roosevelt's Message to

Congress of March 23, 1938, The Public Papers and Addresses of Franklin

D. Roosevelt, 1938 (Rosenman), 151.



5. The oft-cited Louisiana Purchase had nothing to do with the

separation of powers as between the President and Congress, but only

with state and federal power.  The Louisiana Purchase was subject to

rather academic criticism not upon the ground that Mr. Jefferson acted

without authority from Congress, but that neither had express authority

to expand the boundaries of the United States by purchase or annexation.

 Mr. Jefferson himself had strongly opposed the doctrine that the

States' delegation of powers to the Federal Government could be enlarged

by resort to implied powers.  Afterwards, in a letter to John

Breckenridge dated August 12, 1803, he declared: The Constitution has

made no provision for our holding foreign territory, still less for

incorporating foreign nations into our Union.  The executive, in seizing

the fugitive occurrence which so much advances the good of their

country, have done an act beyond the Constitution.  The Legislature, in

casting behind them metaphysical subtleties and risking themselves like

faithful servants, must ratify and pay for it, and throw themselves on

their country for doing for them, unauthorized, what we know they would

have done for themselves had they been in a situation to do it. 10 The

Writings of Thomas Jefferson 407, 411.



6. Selective Service Act of 1948,  18, 62 Stat. 625, 50 U.S.C.App.

(Supp. IV)  468(c).



7. Defense Production Act of 1950,  201, 64 Stat. 799, amended, 65 Stat.

132, 50 U.S.C.App. (Supp. IV)  2081.  For the latitude of the

condemnation power which underlies this Act, see United States v.

Westinghouse Co., 339 U.S. 261, and cases therein cited.



8. Labor Management Relations Act, 1947,  206-210, 61 Stat. 136, 155,

156, 29 U.S.C. (Supp. IV)  141, 176-180.  The analysis, history and

application of this Act are fully covered by the opinion of the Court,

supplemented by that of MR. JUSTICE FRANKFURTER and of MR. JUSTICE

BURTON, in which I concur.



9.



. . . he may require the Opinion, in writing, of the principal Officer

in each of the executive Departments, upon any Subject relating to the

Duties of their respective Offices. . . . U.S.Const., Art. II,  2.  He

". . . shall Commission all the Officers of the United States." 

U.S.Const., Art. II,  3. Matters such as those would seem to be inherent

in the Executive, if anything is.



10. How widely this doctrine espoused by the President's counsel departs

from the early view of presidential power is shown by a comparison. 

President Jefferson, without authority from Congress, sent the American

fleet into the Mediterranean, where it engaged in a naval battle with

the Tripolitan fleet.  He sent a message to Congress on December 8,

1801, in which he said: Tripoli, the least considerable of the Barbary

States, had come forward with demands unfounded either in right or in

compact, and had permitted itself to denounce war on our failure to

comply before a given day.  The style of the demand admitted but one

answer.  I sent a small squadron of frigates into the Mediterranean . .

. with orders to protect our commerce against the threatened attack. . .

.  Our commerce in the Mediterranean was blockaded, and that of the

Atlantic in peril. . . .  One of the Tripolitan cruisers having fallen

in with and engaged the small schooner Enterprise, . . . was captured,

after a heavy slaughter of her men. . . .  Unauthorized by the

Constitution, without the sanction of Congress, to go beyond the line of

defense, the vessel, being disabled from committing further hostilities,

was liberated with its crew.  The Legislature will doubtless consider

whether, by authorizing measures of offense also, they will place our

force on an equal footing with that of its adversaries.  I communicate

all material information on this subject, that, in the exercise of this

important function confided by the Constitution to the Legislature

exclusively, their judgment may form itself on a knowledge and

consideration of every circumstance of weight. I Richardson, Messages

and Papers of the Presidents, 314.



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



12. 14 Stat. 29, 16 Stat. 143, 8 U.S.C.  55.



13. 20 Stat. 152, 10 U.S. C  15



14. In 1940, President Roosevelt proposed to transfer to Great Britain

certain overage destroyers and small patrol boats then under

construction.  He did not presume to rely upon any claim of

constitutional power as Commander in Chief.  On the contrary, he was

advised that such destroyers -- if certified not to be essential to the

defense of the United States -- could be "transferred, exchanged, sold,

or otherwise disposed of," because Congress had so authorized him. 

Accordingly, the destroyers were exchanged for air bases.  In the same

opinion, he was advised that Congress had prohibited the release or

transfer of the so-called "mosquito boats" then under construction, so

those boats were not transferred.  Acquisition of Naval and Air Bases in

Exchange for Over-age Destroyers, 39 Op.Atty.Gen. 484.  See also

Training of British Flying Students in the United States, 40

Op.Atty.Gen. 58.



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



16. President Wilson, just before our entrance into World War I, went

before the Congress and asked its approval of his decision to authorize

merchant ships to carry defensive weapons.  He said:



No doubt I already possess that authority without special warrant of

law, by the plain implication of my constitutional duties and powers;

but I prefer, in the present circumstances, not to act upon general

implication.  I wish to feel that the authority and the power of the

Congress are behind me in whatever it may become necessary for me to do.

 We are jointly the servants of the people, and must act together and in

their spirit, so far as we can divine and interpret it. XVII Richardson,

op. cit., 8211.



When our Government was itself in need of shipping whilst ships flying

the flags of nations overrun by Hitler, as well as belligerent

merchantmen, were immobilized in American harbors where they had taken

refuge, President Roosevelt did not assume that it was in his power to

seize such foreign vessels to make up our own deficit.  He informed

Congress: I am satisfied, after consultation with the heads of the

interested departments and agencies of the Government, that we should

have statutory authority to take over any such vessels as our needs may

require. . . . 87 Cong.Rec. 3072 (77th Cong., 1st Sess.); The Public

Papers and Addresses of Franklin D. Roosevelt, 1941 (Rosenman), 94. The

necessary statutory authority was shortly forthcoming.  55 Stat. 242.



In his first inaugural address, President Roosevelt pointed out two

courses to obtain legislative remedies, one being to enact measures he

was prepared to recommend, the other to enact measures "the Congress may

build out of its experience and wisdom."  He continued, But in the event

that the Congress shall fail to take one of these two courses, and in

the event that the national emergency is still critical, I shall not

evade the clear course of duty that will then confront me.  I shall ask

the Congress for the one remaining instrument to meet the crisis --

broad Executive power to wage a war against the emergency, as great as

the power that would be given to me if we were, in fact, invaded by a

foreign foe. (Emphasis supplied.)  The Public Papers and Addresses of

Franklin D. Roosevelt, 1933 (Rosenman), 15.



On March 6, 1933, President Roosevelt proclaimed the Bank Holiday.  The

Proclamation did not invoke constitutional powers of the Executive, but

expressly and solely relied upon the Act of Congress of October 6, 1917,

40 Stat. 411,  5(b), as amended.  He relied steadily on legislation to

empower him to deal with economic emergency.  The Public Papers and

Addresses of Franklin D. Roosevelt, 1933 (Rosenman), 24.



It is interesting to note Holdsworth's comment on the powers of

legislation by proclamation when in the hands of the Tudors. The extent

to which they could be legally used was never finally settled in this

century, because the Tudors made so tactful a use of their powers that

no demand for the settlement of this question was raised. 4 Holdsworth,

History of English Law, 104.



17. The North American Aviation Company was under direct and binding

contracts to supply defense items to the Government.  No such contracts

are claimed to exist here.  Seizure of plants which refused to comply

with Government orders had been expressly authorized by Congress in  9

of the Selective Service Act of 1940, 54 Stat. 885, 892, so that the

seizure of the North American plant was entirely consistent with

congressional policy.  The company might have objected on technical

grounds to the seizure, but it was taken over with acquiescence,

amounting to all but consent, of the owners, who had admitted that the

situation was beyond their control.  The strike involved in the North

American case was in violation of the union's collective agreement, and

the national labor leaders approved the seizure to end the strike.  It

was described as in the nature of an insurrection, a Communist-led

political strike against the Government's lend lease policy.  Here we

have only a loyal, lawful, but regrettable economic disagreement between

management and labor.  The North American plant contained

government-owned machinery, material and goods in the process of

production to which workmen were forcibly denied access by picketing

strikers.  Here, no Government property is protected by the seizure. 

See New York Times of June 10, 1941, pp. 1, 14 and 16, for substantially

accurate account of the proceedings and the conditions of violence at

the North American plant.



The North American seizure was regarded as an execution of congressional

policy.  I do not regard it as a precedent for this, but, even if I did,

I should not bind present judicial judgment by earlier partisan

advocacy.



Statements from a letter by the Attorney General to the Chairman of the

Senate Committee on Labor and Public Welfare, dated February 2, 1949,

with reference to pending labor legislation, while not cited by any of

the parties here, are sometimes quoted as being in support of the

"inherent" powers of the President.  The proposed bill contained a

mandatory provision that, during certain investigations, the disputants

in a labor dispute should continue operations under the terms and

conditions of employment existing prior to the beginning of the dispute.

 It made no provision as to how continuance should be enforced, and

specified no penalty for disobedience.  The Attorney General advised

that, in appropriate circumstances, the United States would have access

to the courts to protect the national health, safety and welfare.  This

was the rule laid down by this Court in Texas & N.O. R. Co. v.

Brotherhood of Railway Clerks, 281 U.S. 548.  The Attorney General

observed:



However, with regard to the question of the power of the Government

under Title III, I might point out that the inherent power of the

President to deal with emergencies that affect the health, safety and

welfare of the entire Nation is exceedingly great.  See Opinion of

Attorney General Murphy of October 4, 1939 (39 Op.A.G. 344, 347); United

States v. United Mine Workers of America, 330 U.S. 258 (1947). See

Hearings before the Senate Committee on Labor and Public Welfare on S.

249, 81st Cong., 1st Sess. 263.  Regardless of the general reference to

"inherent powers," the citations were instances of congressional

authorization.  I do not suppose it is open to doubt that power to see

that the laws are faithfully executed was ample basis for the specific

advice given by the Attorney General in this letter.



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



19. I exclude, as in a very limited category by itself, the

establishment of martial law.  Cf. Ex parte Milligan, 4 Wall. 2; Duncan

v. Kahanamoku, 327 U.S. 304.



20. 1 Nazi Conspiracy and Aggression 126-127; Rossiter, Constitutional

Dictatorship, 33-61; Brecht, Prelude to Silence, 138.



21. Rossiter, Constitutional Dictatorship, 117-129.



22. Defence of the Realm Act, 1914, 4 & 5 Geo. V, c. 29, as amended, c.

63; Emergency Powers (Defence) Act, 1939, 2 & 3 Geo. VI, c. 62;

Rossiter, Constitutional Dictatorship, 135-184.



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



24. 39 Op.Atty.Gen. 348.



25. Wilson, Constitutional Government in the United States, 669.



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



27. We follow the judicial tradition instituted on a memorable Sunday in

1612 when King James took offense at the independence of his judges and,

in rage, declared:  "Then I am to be under the law -- which it is

treason to affirm."  Chief Justice Coke replied to his King:  "Thus,

wrote Bracton, `The King ought not to be under any man, but he is under

God and the Law.'"  12 Coke 65 (as to its verity, 18 Eng.Hist.Rev.

664-675); 1 Campbell, Lives of the Chief Justices (1849), 272. BURTON,

J., concurring (Footnotes)



1. Article I



Section. 1.  All legislative Powers herein granted shall be vested in a

Congress of the United States. . . . *    *    *    *



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



To regulate Commerce with foreign Nations, and among the several States

. . . ; *    *    *    *



To make all Laws which shall be necessary and proper for carrying into

Execution the foregoing Powers, and all other Powers vested by this

Constitution in the Government of the United States, or in any

Department or Officer thereof.



2. 61 Stat. 155, 29 U.S.C. (Supp. IV)  176.



3. 361 Stat. 155-156, 29 U.S.C. (Supp. IV)  176-180.



4. The Chairman of the Senate Committee sponsoring the bill said in the

Senate:



We did not feel that we should put into the law, as a part of the

collective bargaining machinery, an ultimate resort to compulsory

arbitration, or to seizure, or to any other action.  We feel that it

would interfere with the whole process of collective bargaining.  If

such a remedy is available as a routine remedy, there will always be

pressure to resort to it by whichever party thinks it will receive

better treatment through such a process than it would receive in

collective bargaining, and it will back out of collective bargaining. 

It will not make a bona-fide attempt to settle if it thinks it will

receive a better deal under the final arbitration which may be provided.



We have felt that perhaps in the case of a general strike, or in the

case of other serious strikes, after the termination of every possible

effort to resolve the dispute, the remedy might be an emergency act by

Congress for that particular purpose.



I have had in mind drafting such a bill, giving power to seize the

plants and other necessary facilities, to seize the unions, their money,

and their treasury, and requisition trucks and other equipment; in fact,

to do everything that the British did in their general strike of 1926. 

But while such a bill might be prepared, I should be unwilling to place

such a law on the books until we actually face such an emergency, and

Congress applies the remedy for the particular emergency only.  Eighty

days will provide plenty of time within which to consider the

possibility of what should be done, and we believe very strongly that

there should not be anything in this law which prohibits finally the

right to strike. 93 Cong.Rec. 3835-3836.



Part of this quotation was relied upon by this Court in Bus Employees v.

Wisconsin Board, 340 U.S. 383, 396, note 21.



5. Under Titles IV and V of the Defense Production Act of 1950, 64 Stat.

803-812, 50 U.S.C. App. (Supp. IV)  2101-2123, and see Exec.Order No.

10233, 16 Fed.Reg. 3503.



6. Congress has authorized other types of seizure under conditions not

present here.  Section 201 of the Defense Production Act authorizes the

President to acquire specific "real property, including facilities,

temporary use thereof, or other interest therein . . . " by

condemnation.  64 Stat. 799, as amended, 65 Stat. 132, see 50 U.S.C.App.

(Supp. IV)  2081.  There have been no declarations of taking or

condemnation proceedings in relation to any of the properties involved

here.  Section 18 of the Selective Service Act of 1948 authorizes the

President to take possession of a plant or other facility failing to

fill certain defense orders placed with it in the manner there

prescribed.  62 Stat. 625, 50 U.S.C.App. (Supp. IV)  468.  No orders

have been so placed with the steel plants seized.



7. The President and Congress have recognized the termination of the

major hostilities in the total wars in which the Nation has been

engaged.  Many wartime procedures have expired or been terminated.



The War Labor Disputes Act, 57 Stat. 163 et seq., 50 U.S.C.App. 

1501-1511, expired June 30, 1947, six months after the President's

declaration of the end of hostilities, 3 CFR, 1946 Supp., p. 77.  The

Japanese Peace Treaty was approved by the Senate March 20, 1952,

Cong.Rec. Mar. 20, 1952, p. 2635, and proclaimed by the President April

28, 1952, 17 Fed.Reg. 3813. CLARK, J., concurring (Footnotes)



1. 2 Cranch 170 (1804).



2. Id. at 177-178 (emphasis changed).



3. Decisions of this Court which have upheld the exercise of

presidential power include the following:  Prize Cases, 2 Black 635

(1863) (subsequent ratification of President's acts by Congress); In re

Neagle, 135 U.S. 1 (1890) (protection of federal officials from personal

violence while performing official duties); In re Debs, 158 U.S. 564

(1895) (injunction to prevent forcible obstruction of interstate

commerce and the mails); United States v. Midwest Oil Co., 236 U.S. 459

(1915) (acquiescence by Congress in more than 250 instances of exercise

of same power by various Presidents over period of 80 years); Myers v.

United States, 272 U.S. 52 (1926) (control over subordinate officials in

executive department) [but see Humphrey's Executor v. United States, 295

U.S. 602, (1935)]; Hirabayashi v. United States, 320 U.S. 81 (1943), and

Korematsu v. United States, 323 U.S. 214 (1944) (express congressional

authorization); cf. United States v. Russell, 13 Wall. 623 (1871)

(imperative military necessity in area of combat during war); United

States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) (power to

negotiate with foreign governments); United States v. United Mine

Workers, 330 U.S. 258 (1947) (seizure under specific statutory

authorization).



4. Mr. Chief Justice Marshall, in McCulloch v. Maryland, 4 Wheat. 316,

415 (1819).



5. Letter of April 4, 1864, to A.G. Hodges, in 10 Complete Works of

Abraham Lincoln (Nicolay and Hay ed. 1894), 66.



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



7. Letter of April 4, 1864, to A.G. Hodges, in 10 Complete Works of

Abraham Lincoln (Nicolay and Hay ed. 1894), 66.



8. 61 Stat. 155, 29 U.S.C. (Supp. IV)  176.



9. 93 Cong.Rec. 3637-3645; cf. id. at 3835-3836.



10. 61 Stat. 156, 29 U.S.C. (Supp. IV)  180.



11. E.g., S.Rep. No. 105, 80th Cong., 1st Sess. 15; 93 Cong.Rec.

3835-3836; id. at 4281.



12. The producer must have been notified that the order was placed

pursuant to the Act.  The Act provides in pertinent part as follows:



(a) Whenever the President after consultation with and receiving advice

from the National Security Resources Board determines that it is in the

interest of the national security for the Government to obtain prompt

delivery of any articles or materials the procurement of which has been

authorized by the Congress exclusively for the use of the armed forces

of the United States, or for the use of the Atomic Energy Commission, he

is authorized, through the head of any Government agency, to place with

any person operating a plant, mine, or other facility capable of

producing such articles or materials an order for such quantity of such

articles or materials as the President deems appropriate.  Any person

with whom an order is placed pursuant to the provisions of this section

shall be advised that such order is placed pursuant to the provisions of

this section. *    *    *    *



(c) In case any person with whom an order is placed pursuant to the

provisions of subsection (a) refuses or fails -- *    *    *    *



(2) to fill such order within the period of time prescribed by the

President or as soon thereafter as possible as determined by the

President;



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



(4) to furnish the quantity, kind, and quality of articles or materials

ordered at such price as shall be negotiated between such person and the

Government agency concerned; or in the event of failure to negotiate a

price, to furnish the quantity, kind, and quality of articles or

materials ordered at such price as he may subsequently be determined to

be entitled to receive under subsection (d); the President is authorized

to take immediate possession of any plant, mine, or other facility of

such person and to operate it, through any Government agency, for the

production of such articles or materials as may be required by the

Government. 62 Stat. 625, 50 U.S.C.App. (Supp. IV)  468.  The Act was

amended in 1951 and redesignated the Universal Military Training and

Service Act, but no change was made in this section.  65 Stat. 75.



13. 39 Stat. 213; 54 Stat. 892.



14. The Government has offered no explanation, in the record, the

briefs, or the oral argument, as to why it could not have made both a

literal and timely compliance with the provisions of that Act. 

Apparently the Government could have placed orders with the steel

companies for the various types of steel needed for defense purposes,

and instructed the steel companies to ship the materiel directly to

producers of planes, tanks, and munitions.  The Act does not require

that government orders cover the entire capacity of a producer's plant

before the President has power to seize.



Our experience during World War I demonstrates the speed with which the

Government can invoke the remedy of seizing plants which fail to fill

compulsory orders.  The Federal Enameling & Stamping Co., of McKees

Rocks, Pa. was served with a compulsory order on September 13, 1918, and

seized on the same day.  The Smith & Wesson plant at Springfield, Mass.

was seized on September 13, 1918, after the company had failed to make

deliveries under a compulsory order issued the preceding week. 

Communication from Ordnance Office to War Department Board of

Appraisers, entitled "Report on Plants Commandeered by the Ordnance

Office," Dec.19, 1918, pp. 3, 4, in National Archives, Records of the

War Department, Office of the Chief of Ordnance, O.O. 004.002/260. 

Apparently the Mosler Safe Co., of Hamilton, Ohio, was seized on the

same day on which a compulsory order was issued.  Id. at 2; Letter from

counsel for Mosler Safe Co. to Major General George W. Goethals,

Director of Purchase, Storage and Traffic, War Department, Dec. 9, 1918,

p. 1, in National Archives, Records of the War Department, Office of the

General Staff, PST Division 400.1202.



15. The Orono, 18 Fed.Cas. No. 10,585 (Cir. Ct. D. Mass. 1812). VINSON,

J., dissenting (Footnotes)



1. 59 Stat. 1031, 1037 (1945); 91 Cong.Rec. 8190 (1945).



2. U.N. Security Council, U.N. Doc. S/1501 (1950); Statement by the

President, June 26, 1950, United States Policy in the Korean Crisis,

Dept. of State Pub. (1950), 16.



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



4. 61 Stat. 103 (1947)



5. 62 Stat. 137 (1948), as amended, 63 Stat. 50 (1949), 64 Stat. 98

(1950).



6. 63 stat. 2241, 2252 (1949), extended to Greece and Turkey, S.Exec. E,

82d cong., 2d Sess. (1952), advice and consent of the Senate granted. 

98 Cong.Rec. 930.



7. 63 Stat. 714 (1949).



8. S.Execs. A, B, C and D, 82d cong., 2d Sess. (1952), advice and

consent of the senate granted.  98 Cong.Rec. 2594, 2595, 2605.



9. 65 Stat. 373 (1951).



10. 65 Stat. 730 (1951); see H.R.Doc. No. 147, 82d Cong., 1st Sess. 3

(1951).



11. See H.R.Doc. No. 382, 82d Cong., 2d Sess. (1952).



12. Hearings before Senate Committee on Foreign Relations on the Mutual

Security Act of 1952, 82d Cong., 2d Sess. 565-566 (1952); Hearings

before House Committee on Foreign Affairs on the Mutual Security Act of

1952, 82d Cong., 2d Sess. 370 (1952).



13. 65 Stat. 75 (1951); S.Rep. No. 117, 82d Cong., 1st Sess. 3 (1951).



14. Address by Secretary of Defense Lovett before the American Society

of Newspaper Editors, Washington, April 18, 1952.



15. Fiscal Year 1952, 65 Stat. 423, 760 (1951); F.Y. 1951, 64 Stat. 595,

1044, 1223, 65 Stat. 48 (1950-1951); F.Y. 1950, 63 Stat. 869, 973, 987

(1949); F.Y. 1949, 62 Stat. 647 (1948); F.Y. 1948, 61 Stat. 551 (1947).



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



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

13647-13649.



18. Defense Production Act, Tit. III. 64 Stat. 798, 800 (1950), 65 Stat.

138 (1951).



19. Note 18, supra, Tits. IV and V.



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



21. Id. at 8-9.



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



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



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



25. Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103,

111 (1948), and cases cited.



26. The Federalist, No. XLVIII.



27. The Federalist, No. LXX.



28. McCulloch v. Maryland, 4 Wheat. 316, 415, 424 (1819).



29. United States v. Classic, 313 U.S. 299, (1941); Home Building & Loan

Assn. v. Blaisdell, 290 U.S. 398, 442 443 (1934).



30. 4 Annals of Congress 1411, 1413 (1794).



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



32. 10 Annals of Congress 596, 613-614 (1800); also printed in 5 Wheat.

App. pp. 3, 27 (1820).



33. 10 Annals of Congress 619 (1800).



34. Fong Yue Ting v. United States, 149 U.S. 698, 714 (1893).



35. See Prize Cases, 2 Black 635 (1863); Randall, Constitutional

Problems Under Lincoln (1926); Corwin, The President:  Office and Powers

(1948 ed.), 277-281.



36. War of the Rebellion, Official Records of the Union and Confederate

Armies, Series I, Vol. II (1880), pp.603-604.



37. 12 Stat. 334 (1862)



38. Senator Wade, Cong.Globe, 37th Cong., 2d Sess. 509 (1862); Rep.

Blair, id. at 548.



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

520.



40. In 1818, the House Committee on Military Affairs recommended payment

of compensation for vessels seized by the Army during the War of 1812. 

American State Papers, Claims (1834), 649.  Mitchell v. Harmony, 13 How.

115, 134 (1852), involving seizure of a wagon train by an Army officer

during the Mexican War, noted that such executive seizure was proper in

case of emergency, but affirmed a personal judgment against the officer

on the ground that no emergency had been found to exist.  The judgment

was paid by the United States pursuant to Act of Congress.  10 Stat. 727

(1852).



41. 13 Wall. at 627-628.  Such a compensable taking was soon

distinguished from the noncompensable taking and destruction of property

during the extreme exigencies of a military campaign.  United States v.

Pacific R. Co., 120 U.S. 227 (1887).



42. 135 U.S. at 64.



43. Rich, The Presidents and Civil Disorder (1941), 72-86.



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



45. 26 Cong.Rec. 7281-7284, 7544-7546 (1894).



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



47. Id. at 378.



48. Humphrey's Executor v. United States, 295 U.S. 602, 626 (1935),

disapproved expressions in the Myers opinion only to the extent that

they related to the President's power to remove members of

quasi-legislative and quasi-judicial commissions as contrasted with

executive employees.



49. Brief for the United States, No. 278, October Term, 1914, pp. 11,

75-77, 88-90.



50. National War Labor Board. Bureau of Labor Statistics, Bull. 287

(1921).



51. Id. at 24 25, 32-34. See also 2 Official U.S.Bull. (1918), No. 412;

8 Baker, Woodrow Wilson, Life & Letters (1939), 400-402; Berman, Labor

Disputes and the President (1924), 125-153; Pringle, The Life and Times

of William Howard Taft (1939), 915-925.



52. 39 Stat. 619, 645 (1916), provides that the President may take

possession of any system of transportation in time of war.  Following

seizure of the railroads by President Wilson, Congress enacted detailed

legislation regulating the mode of federal control.  40 Stat. 451

(1918).



When Congress was considering the statute authorizing the President to

seize communications systems whenever he deemed such action necessary

during the war, 40 Stat. 904 (1918), Senator (later President) Harding

opposed on the ground that there was no need for such stand-by powers

because, in event of a present necessity, the Chief Executive "ought to"

seize communications lines, "else he would be unfaithful to his duties

as such Chief Executive."  56 Cong.Rec. 9064 (1918).



53. 48 Stat. 1689 (1933).



54. 54 Stat. 2643 (1939).



55. 55 Stat. 1647 (1941).



56. 86 Cong.Rec. 11354 (1940) (Message of the President).   See 39

Op.Atty.Gen. 484 (1940).  Attorney General Jackson's opinion did not

extend to the transfer of "mosquito boats," solely because an express

statutory prohibition on transfer was applicable.



57. 87 Cong.Rec. 5868 (1941) (Message of the President).



58. Powers of the President to Send the Armed Forces Outside the United

States, Report prepared by executive department for use of joint

committee of Senate Committees on Foreign Relations and Armed Services,

82d Cong., 1st Sess., Committee Print, 2 (1951).



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



60. See 89 Cong.Rec. 3992 (1943).  The Attorney General also noted that

the dispute at North American Aviation was Communist-inspired, and more

nearly resembled an insurrection than a labor strike.  The relative size

of North American Aviation and the impact of an interruption in

production upon our defense effort were not described.



61. 87 Cong.Rec. 4932 (1941).  See also S. 1600 and S. 2054, 77th Cong.,

1st Sess. (1941).



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



63. Reps. Dworshak, Feddis, Harter, Dirksen, Hook; 87 Cong.Rec. 5901,

5910, 5974, 5975 (1941).



64. The plant seizure amendment passed the Senate, but was rejected in

the House after a Conference Committee adopted the amendment.  87

Cong.Rec. 6424 (1941).



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

5559 (1941).



66. Exec.Order 9141, 7 Fed.Reg. 2961 (1942); Exec.Order 9220 7 Fed.Reg.

6413 (1942); Exec.Order 9225, 7 Fed.Reg. 6627 (1942), Exec.Order 9254, 7

Fed.Reg. 8333 (1942); Exec.Order 9351, 8 Fed.Reg. 8097 (1943).



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



68. Exec.Order 9017, 7 Fed.Reg. 237 (1942); 1 Termination Report of the

National War Labor Board 5-11.



69. 89 Cong.Rec. 3807 (1943).  Similar views of the President's existing

power were expressed by Senators Lucas, Wheeler, Austin and Barkley. 

Id. at 3885-3887, 3896, 3992.



70. 89 cong. Rec. 3989-3992 (1943).



71. S. 796, 78th cong., 1st Sess.,  12, 13 (1943), as passed by the

House.



72. 57 stat. 163, 164 (1943).



73. 40 Op.Atty.Gen. 312 (1944).  See also Hearings before House Select

committee to Investigate Seizure of Montgomery Ward & Co., 78th Cong.,

2d Sess. 117-132 (1944).



74. 39 Op.Atty.Gen. 343, 347 (1939)



75. Note 60, supra.



76. Letter introduced in Hearings before Senate Committee on Labor and

Public Welfare on S. 249, 81st Cong., 1st Sess. 232 (1949) pointing to

the "exceedingly great" powers of the President to deal with emergencies

even before the Korean crisis.



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



78. H.R.Rep. No.1904, 78th Cong., 2d Sess. 25 (1944) (the Committee

divided along party lines).



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



80. United States v. Montgomery Ward & Co., 150 F.2d 369 (c A. 7th

Cir.1945), reversing 58 F.Supp. 408 (N.D.Ill.1945).  See also Ken-Rad

Tube & Lamp Corp. v. Badeau, 55 F.Supp. 193, 197-199 (W. D. Ky.1944),

where the court held that a seizure was proper with or without express

statutory authorization.



81. United States Policy in the Korean Crisis (1950), Dept. of State

Pub. 3922.



82. 15 Fed.Reg. 9029 (1950).



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



84. 62 Stat. 604, 626 (1948), 50 U.S.C. App. (Supp. IV)  468(c).



85. 62 Stat. 604, 627 (1948), 50 U.S.C. App. (Supp. IV)  468(h)(1).



86. Tit. II, 64 Stat. 798, 799 (1950), as amended, 65 Stat. 138 (1951).



87. Home Building  Loan Assn. v. Blaisdell, 290 U.S. 398, 425 426

(1934).



88. See Bus Employees v. Wisconsin Board, 340 U.S. 383 (1951).



89.  206-210, Labor Management Relations Act of 1947.  29 U.S.C.

(Supp.IV)  176-180.



90. 64 Stat. 812, 65 Stat. 132 (1950).



91. H.R.Rep. No. 3042, 81st Cong., 2d Sess. 35 (1950) (Conference

Report).  See also S.Rep. No. 2250, 81st Cong., 2d Sess. 41 (1950).



92. Exec.Order 10161, 15 Fed.Reg. 6105 (1950), as amended, Exec.Order

10233, 16 Fed.Reg. 3503 (1951).



93. Hearings before the House Committee on Banking and Currency on

Defense Production Act Amendments of 1951, 82d Cong., 1st Sess. 305-306,

312-313 (1951).



94. The Lucas Amendment to abolish the disputes function of the WSB was

debated at length in the House, the sponsor of the amendment pointing

out the similarity of the WSB functions to those of the War Labor Board

and noting the seizures that occurred when War Labor Board orders were

not obeyed.  97 Cong.Rec. 8390-8415.  The amendment was rejected by a

vote of 217 to 113.  Id. at 8415.  A similar amendment introduced in the

Senate was withdrawn.  97 Cong.Rec. 7373-7374.  The Defense Production

Act was extended without amending Tit. V or otherwise affecting the

disputes functions of the WSB.  65 Stat. 132 (1951).



95. Compare Sterling v. Constantin, 287 U.S. 378, 399-401 (1932).

