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President Theodore Roosevelt seriously contemplated seizure of Pennsylvania coal mines if a coal shortage necessitated such action." 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." " 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 (1915), 139-147. In the same book, however, President Taft agreed that 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." 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).“

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were open to purchase by United States citizens, 29 Stat. 526 (1897), the President nevertheless ordered the lands withdrawn from sale "[i]n aid of proposed legislation."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 C. 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 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 prefect 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 can not 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 ail his powers from them and responsible directly to them. In no sense is be 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,

Theodore Roosevelt, Autobiography (1916 ed.), 479–491.

11. at 378.

*Eumphrey's Executor v. United States, 295 U. S. 602, 626 (1935), disapproved expres*** in the Myers opinion only to the extent that they related to the President's power to e members of quasi-legislative and judicial commissions as contrasted with executive

not confer on the President a rejected the view that the ' ratified by the legislature. only to confirm the power w insisted a statute authorizi strued as limiting existing i

Other seizures of private, had occurred during previous (1872), three river steamen's of "imperative military I sation, stating:

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"Exigencies of the k but it is the emerge right, and it is cle taking can be just the rule is well seit pose, if the emergen ment is bound to no In In re Neagle, 135 acted in line of duty w It was conceded that i.. assign such a guard. 1 broadly stated the ques "[The President 1 pressed in the p executed.'

"Is this duty 1. of the United S. rights, duties and national relation ment under the

The latter approacl.

President Hayes Railroad Strike of man Strike of 1897 this action. No c Governor Altgeld dent's concern wa merce and the . tion." To further by this Court in f the steps taken 1 dealing with com gress likewise to obstacles to the i Senate and the "

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the Neagle case, and the cases therein ore is authorized to exert the power of the Intras this treessary for the protection of the agencies, the property of the Government. This does not As the wishes of Congress on the subject, when utral and when those wishes have been exdoes not involve the slightest semblance of a power to suspend legislation already passed by Congress. -man of specific acts, not of a legislative but purely teracts which are not in themselves laws, but which thorizing him to perform them. This law is not exConstitution or in the enactments of Congress, but reampel that it be implied from the exigencies of the which we have mentioned, nor in the cases cited in the Neagle case, was it possible to say that the action rected expressly or impliedly, by Congress. The never been covered by any act of Congress, and there for a contention that the possibility of their occurically considered by the legislative mind. In none on of the President amount merely to the execution them stand apart in principle from the case at bar, f specific constitutional powers of the President - which designate the President as the official se does not involve them. Taken collectively, the reign relations, in commanding the Army and formed of the state of the Union, in insuring the rs and in recommending new ones, considered

declaration that the executive power shall demonstrate that his is the watchful eye, the namic force of the United States."

because of the caliber of its authors but because the basis of the executive practice which this

case.

Wilson established a War Labor Board with- Congress." With William Howard Taft and e Board had as its purpose the prevention with the production of goods needed to meet War Labor Board decisions was accomplished seizure of industrial plants. Seizure of the d by President Wilson."2

day Proclamation and continuing through Ship and initiative were characteristic of Presi

278, October Term, 1914, pp. 11, 75-77, 88-90.
reau of Labor Statistics, Bull. 278 (1921).
Oficial U. S. Bull. (1918) No. 412; 8 Baker, Woodrow
02: Berman, Labor Disputes and the President (1924),
of William Howard Taft (1939), 915-925.

vides that the President may take possession of any - war. Following seizure of the railroads by President legislation regulating the mode of federal control. 40 the statute authorizing the President to seize communiested such action necessary during the war, 40 Stat. 904 Harding opposed on the ground that there was no need in event of a present necessity, the Chief Executive ines, "else he would be unfaithful to his duties as such

9064 (1918).

dent Franklin D. Roosevelt's administration. In 1939, upon the outbreak of war in Europe, the President proclaimed a limited national emergency for the purpose of strengthening our national defense." By 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." The Persident took the initiative in strengthening our defenses by acquiring rights from the British Government to establish air bases in exchange for overage destroyers."

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." The occupation of Island was but one of "at least 125 icidents" 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 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." 50 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 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.""

61

At this time, Senator Connally proposed amending the Selective Service and Training Act to authorize the President to seize any plant where an interruption of production would unduly impede the defense effort. Proponents of the sure in no way implied that the legislation would add to the powers already possessed by the President and the amendment was opposed as unnecessary

54 Stat. 2643 (1939).

#55 Stat. 1647 (1941).

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Cong. Rec. 11354 (1940) (Message of the President). See 39 Ops. Atty. Gen. 484 Attorney General Jackson's opinion did not extend to the transfer of "Mosquito solely because an express statutory prohibition on transfer was applicable.

$7 Cong. Ree. 5868 (1941) (Message of the President).

Powers of the President to Send the Armed Forces Outside the United States, Report Irated by executive department for use of joint committee of Senate Committees on 7 Relations and Armed Services, 82d Cong., 1st Sess., Committee Print 2 (1951). * Exse. Order 8773, 6 Fed. Reg. 2777 (1941).

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89 Cong. Rec. 3992 (1943). The Attorney General also noted that the dispute at American Aviation was Communist inspired and more nearly resembled an insurrecthan a labor strike. The relative size of North American Aviation and the impact of terruption in production upon our defense effort were not described.

* Cong. Rec. 4932 (1941). See also S. 1600 and S. 2054, 77th Cong., 1st Sess. (1941). Reps. May, Whittington; 87 Cong. Rec. 5895, 5972 (1941).

424

and in of an specif and

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The bri supra,

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val mines, Senator Connally's bill to provide ... the War Labor Board was again before the purpose of the bill was not to augment Country know that the Congress is squarely base of the legislative recognition of President

an recognized that the President already was no intention to "ratify" past actions of 2 Secator Tydings offered an amendment to the * and validate the seizure of the coal mines, amendment as casting doubt on the legality of was defeated. When the Connally bill, S. 796, s after the enacting clause were stricken and a Smith of Virginia was substituted and passed. geant because the Smith bill did not contain

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e by the President but did contain provisions scotes in respect to properties seized by the GovGerwise."" After a conference, the seizure pro

acted as the Smith-Connally or War Labor Diswere agreed to by the House.

72

Suth-Connally Act, seizures to assure continued erms recommended by the War Labor Board were as upon the President's power under the ConstituA question did arise as to whether the statutory ant. mine, or facility equipped for the manufacture, any articles or materials" authorized the seizure Ay Ward & Co., a retail department store and mail order Jeneral (Biddle) issued an opinion that the President Montgomery Ward properties to prevent a work the terms of the Smith-Connally Act authorized such a was in line with the views on Presidential powers mainGeveral's predecessors (Murphy" and Jackson " and his Accordingly, the President ordered seizure of the Chicago cery Ward in April, 1944, when that company refused to * Harter, Dirksen, Hook; 87 Cong. Rec. 5901, 5910, 5974. kuandment passed the Senate, but was rejected in the House after Costed the amendment. 87 Cong. Rec. 6424 (1941).

Wed Reg. 4349 (1941); Exec. Order 8928, 6 Fed. Reg. 5559 (1941)
Pod. Reg. 2961 (1942); Exec. Order 9220, 7 Fed. Reg. 6413 (1942)
Reg 6627 (1942); Exec. Order 9254, 7 Fed. Reg. 8333 (1942)
Reg. 8097 (1943).

Fed. Reg. 5695 (1943).

Fed. Reg. 237 (1942); 1 Termination Report of the National $807 (1948). Similar views of the President's existing power were Lucas, Wheeler, Austin and Barkley. Id., at 3885-3887, 3896, 3992. No 3992 (1943).

1st Sess., § 12, 13 (1943), as passed by the House.

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den 812 (1944). See also Hearings before House Select Committee to
of Montgomery Ward & Co., 78th Cong., 2d Sess. 117-132 (1944).
Gen. 343, 847 (1939).

970ced in Hearings before Senate Committee on Labor and Public Welfare wig, 1st Sess. 232 (1949) pointing to the "exceedingly great" powers of ca. to deal with emergencies even before the Korea crisis.

obey a War Labor Board order concerning the bargaining representative of its employees in Chicago." 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 plan duty of the President." 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." 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.* More recently, President Truman acted to repel aggression by employing our armed forces in Korea. 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 ecoBomic stabilization measures, as previously described.

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This is but a cursory summary of executive leadership. But it amply demonrates 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.

IV.

1983

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." 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 ( 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 temprary action he had taken only to preserve the legislative programs from destruction until Congress could act.

Exec. Order 9438. 9 Fed. Reg. 4459 (1944).

H R. Rep. No. 1904, 78th Cong., 2d Sess. 25 (1944) (the Committee divided along 1 lines).

Etse Order 9508, 9 Fed. Reg. 15079 (1944).

*nited States v. Montgomery Ward & Co., 150 F. 2d 369 (C. A. 7th Cir. 1945), revers55 F. Supp. 408 (N. D. Ill. 1945). See also Ken-Rad Tube & Lamp Corp. v. Badeau, 55 Sapp. 193, 197-199 (W. D. Ky. 1944), where the court held that a seizure was proper - without express statutory authorization

United States Policy in the Korean Crisis (1950), Dept. of State Pub. 3922.

15 Fed. Reg. 9029 (1950).

Harrison, This Country of Ours (1897), 98.

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