CRS Annotated Constitution

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Present Status of the Debs Case.—Insofar as the use of injunctive relief in labor disputes is concerned, enactment of the Norris–LaGuardia Act672 placed substantial restrictions on the power of federal courts to issue injunctions in such situations. Though, in United States v. UMW,673 the Court held that the Norris–LaGuardia Act did not apply where the Government brought suit as operator of mines, language in the opinion appeared to go a good way toward repudiating the present viability of Debs, though more in terms of congressional limitations than of revised judicial opinion.674 It should be noted that in 1947 Congress authorized the President to seek injunctive relief in “national emergency” labor disputes, which would seem to imply absence of authority to act in situations not meeting the statutory definition.675


With regard to the power of the President to seek injunctive relief in other situations without statutory authority, there is no clear precedent. In New York Times Co. v. United States,676 the Government sought to enjoin two newspapers from publishing classified material given to them by a dissident former governmental employee. Though the Supreme Court rejected the Government’s claim, five of the six majority Justices relied on First Amendment grounds, apparently assuming basic power to bring the action in the first place, and three dissenters were willing to uphold the constitutionality of the Government’s action and its basic power on the premise that the President was authorized to protect the secrecy of governmental documents. Only one Justice denied expressly that power was lacking altogether to sue.677

The President’s Duty in Cases of Domestic Violence in the States

See Article IV, Sec. 4, pp. 892–895, and Supra, pp. 487–488.

The President as Executor of the Law of Nations

Illustrative of the President’s duty to discharge the responsibilities of the United States in international law with a view to avoiding difficulties with other governments was the action of President Wilson in closing the Marconi Wireless Station at Siasconset, Massachusetts, on the outbreak of the European War in 1914, the company having refused assurance that it would comply with naval censorship regulations. Justifying this drastic invasion of private rights, Attorney General Gregory said: “The President of the United States is at the head of one of the three great coordinate departments of the Government. He is Commander in Chief of the Army and the Navy. . . . If the President is of the opinion that the relations of this country with foreign nations are, or are likely to be endangered by action deemed by him inconsistent with a due neutrality, it is his right and duty to protect such relations; and in doing so, in the absence of any statutory restrictions, he may act through such executive office or department as appears best adapted to effectuate the desired end. . . . I do not hesitate, in view of the extraordinary conditions existing, to advise that the President, through the Secretary of the Navy or any appropriate department, close down, or take charge of and operate, the plant . . . should he[p.570]deem it necessary in securing obedience to his proclamation of neutrality.”678


In 1854, one Lieutenant Hollins, in command of a United States warship, bombarded the town of Greytown, Nicaragua because of the refusal of local authorities to pay reparations for an attack by a mob on the United States consul.679 Upon his return to the United States, Hollins was sued in a federal court by Durand for the value of certain property which was alleged to have been destroyed in the bombardment. His defense was based upon the orders of the President and Secretary of the Navy and was sustained by Justice Nelson, on circuit.680 “As the Executive head of the nation, the President is made the only legitimate organ of the General Government, to open and carry on correspondence or negotiations with foreign nations, in matters concerning the interests of the country or of its citizens. It is to him, also, the citizens abroad must look for protection of person and of property, and for the faithful execution of the laws existing and intended for their protection. For this purpose, the whole Executive power of the country is placed in his hands, under the Constitution, and the laws passed in pursuance thereof; and different Departments of government have been organized, through which this power may be most conveniently executed, whether by negotiation or by force—a Department of State and a Department of the Navy.

“Now, as it respects the interposition of the Executive abroad, for the protection of the lives or property of the citizen, the duty must, of necessity, rest in the discretion of the President. Acts of lawless violence, or of threatened violence to the citizen or his property, cannot be anticipated and provided for; and the protection, to be effectual or of any avail, may, not infrequently, require the most prompt and decided action. Under our system of Government, the citizen abroad is as much entitled to protection as the citizen at home. The great object and duty of Government is the protection of the lives, liberty, and property of the people composing it, whether abroad or at home; and any Government failing in the accomplishment of the object, or the performance of the duty, is not worth preserving.”681


This incident and this case were but two items in the 19th century advance of the concept that the President had the duty and the responsibility to protect American lives and property abroad through the use of armed forces if deemed necessary.682 The duty could be said to grow out of the inherent powers of the Chief Executive683 or perhaps out of his obligation to “take Care that the Laws be faithfully executed.”684 Although there were efforts made at times to limit this presidential power narrowly to the protection of persons and property rather than to the promotion of broader national interests,685 no such distinction was observed in practice and so grew the concepts which have become the source of serious national controversy in the 1960s and 1970s, the power of the President to use troops abroad to observe national commitments and protect the national interest without seeking prior approval from Congress.

Congress and the President versus Foreign Expropriation.— Congress has asserted itself in one area of protection of United States property abroad, making provision against uncompensated expropriation of property belonging to United States citizens and corporations. The problem of expropriation of foreign property and the compensation to be paid therefor remains an unsettled area of international law, of increasing importance because of the changes and unsettled conditions following World War II.686 It has been the position of the Executive Branch that just compensation is owed all United States property owners dispossessed in foreign countries and the many pre–World War II disputes were carried on between the President and the Department of State and the nation involved. But commencing with the Marshall Plan in 1948, Congress has enacted programs of guaranties to American investors in specified foreign countries.687 More relevant to discussion here is that Congress has attached to United States foreign assistance programs various amendments requiring the termination of assistance and imposing other economic inducements where uncompensated expropriations have been instituted.688 And when the[p.572]Supreme Court in 1964 applied the “act of state” doctrine so as not to examine the validity of a taking of property by a foreign government recognized by the United States but to defer to the decision of the foreign government,689 Congress reacted by attaching another amendment to the foreign assistance act reversing the Court’s application of the doctrine, except in certain circumstances, a reversal which was applied on remand of the case.690


672 47 Stat. 170 (1932), 29 U.S.C. §§ 101 –115.
673 330 U.S. 258 (1947). In reaching the result, Chief Justice Vinson invoked the “rule that statutes which in general terms divest preexisting rights or privileges will not be applied to the sovereign without express words to that effect.” Id., 272.
674 Thus, the Chief Justice noted that “we agree” that the debates on Norris–LaGuardia “indicate that Congress, in passing the Act, did not intend to permit the United States to continue to intervene by injunction in purely private labor disputes.” Of course, he continued, “whether Congress so intended or not is a question different from the one before us now.” Id., 278.
675 61 Stat. 136, 155 (1947), 29 U.S.C. §§ 176 –180. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), with regard to the exclusivity of proceeding.
676 403 U.S. 713 (1971).
677 On Justice Marshall’s view on the lack of authorization, see id., 740–748 (concurring opinion); for the dissenters on this issue, see id., 752, 755–759 (Justice Harlan, with whom Chief Justice Burger and Justice Blackmun joined); and see id., 727, 729–730 (Justice Stewart, joined by Justice White, concurring).
678 30 Atty. Gen.291 (1914).
679 7 J. Moore, Digest of International Law (Washington: 1906), 346–354.
680 Durand v. Hollins, 8 Cas.111 (No.4186) (C.C.S.D.N.Y. 1860).
681 Id., 112.
682 See United States Solicitor of the Department of State, Right to Protect Citizens in Foreign Countries by Landing Forces (Washington: 3d rev. ed. 1934); M. Offutt, The Protection of Citizens Abroad by the Armed Forces of the United States (Baltimore: 1928).
683 Durand v. Hollins, 8 Cas.111 (No.4186) (C.C.S.D.N.Y. 1860).
684 M. Offutt, op. cit., n.682, 5.
685 E. Corwin, op. cit., n.44, 198–201.
686 Cf. Metzger, Property in International Law, 50 L. Rev.594 (1964); Vaughn, Finding the Law of Expropriation: Traditional v. Quantitative Research, 2 Intl. L. Forum189 (1966).
687 62 Stat. 143 (1948), as amended, 22 U.S.C. Sec. 2191 et seq. See also 22 U.S.C. Sec. 1621 et seq.
688 76 Stat. 260 (1962), 22 U.S.C. Sec. 2370 (e)(1).
689 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964).
690 78 Stat. 1013 (1964), as amended, 22 U.S.C. Sec. 2370 (e)(2), applied on remand in Banco Nacional de Cuba v. Farr, 243 F. Supp. 957 (S.D.N.Y. 1965), affd. 383 F. 2d 166 (2d Cir., 1967), cert. den., 390 U.S. 956 (1968).
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