343
U.S. 578 (1952)
To avert a nation-wide
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
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:
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."
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 President's power, if any, to issue the order
must stem either from an act of Congress or from the Constitution itself. There
is no statute that expressly authorizes the President to take possession of
property as he did here. Nor is there any act of Congress to which our
attention has been directed from which such a power can fairly be implied.
Indeed, we do not understand the Government to rely on statutory authorization
for this seizure. There are two statutes which do authorize the President to
take both personal and real property under certain conditions. However, the Government admits that these
conditions were not met and that the President's order was not rooted in either
of the statutes. The Government refers to the seizure provisions of one of
these statutes 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.
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 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.
………………………………………………………………………………………………
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.
579, 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. 2 In these circumstances, [343 U.S. 579, 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. 579, 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 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.
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. 579, 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. 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?
There are indications that the Constitution did not
contemplate that the title Commander in Chief of the Army and Navy will constitute him
also Commander in Chief of the country, its industries and its inhabitants. 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 . . .
." 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. On the other hand. Congress has
forbidden him to use the army for the purpose of executing general laws except
when expressly authorized by the Constitution or by Act of Congress. .
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.
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 policy-making branch [343 U.S. 579, 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.
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.