| Youngstown Sheet & Tube Co. v. Sawyer
()
100 U.S. 1
103 F.Supp. 569, affirmed. |
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| Syllabus
| Opinion
[ Black ] | Opinion
[ Frankfurter ] | Concurrence
[ Frankfurter ] | Concurrence
[ Douglas ] | Concurrence
[ Jackson ] | Concurrence
[ Burton ] | Concurrence
[ Clark ] | Dissent
[ Vinson ] |
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Youngstown Sheet & Tube Co. v. Sawyer
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
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, [n1] 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 [p661] 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. [n2]
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. [n3]
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." [n4] 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. [n5] [p662]
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. [n6] 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? [n7] 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. [p663]
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. [n8]
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." [n9] 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 [p664] appropriate action." [n10] 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. [n11]
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. [n12] This language is significantly broader than [p665] 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. [n13]
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 [p666] established by the Selective Service Act of 1948, a statute which expressly authorizes seizures when producers fail to supply necessary defense materiel. [n14]
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; [p667] 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." [n15]
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, 626-628 (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).
