CRS Annotated Constitution
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To avert a nationwide strike of steel workers which he believed would jeopardize the national defense, President Truman, on April 8, 1952, issued an executive order directing the Secretary of Commerce to seize and operate most of the steel industry of the country.691 The order cited no specific statutory authorization but invoked generally the powers vested in the President by the Constitution and laws of the United States. The Secretary issued the appropriate orders to steel executives. The President promptly reported his action to Congress, conceding Congress’ power to supersede his order, but Congress did not do so, either then or a few days later when the President sent up a special message.692 On suit by the steel companies, a federal district court enjoined the seizure,693 and the Supreme Court brought the case up prior to decision by the court of appeals.694 Six–to–three, the Court affirmed the district court order, each member of the majority, however, contributing an individual opinion as well as joining in some degree the opinion of the Court by Justice Black.695 The holding and the multiple opinions represent a setback for the adherents of “inher[p.573]ent” executive powers,696 but they raise difficult conceptual and practical problems with regard to presidential powers.
The Doctrine of the Opinion of the Court.—The chief points urged in the Black opinion are the following: There was no statute that expressly or impliedly authorized the President to take possession of the property involved. On the contrary, 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. Authority to issue such an order in the circumstances of the case was not deducible from the aggregate of the President’s executive powers under Article II of the Constitution; nor was the order maintainable as an exercise of the President’s powers as Commander–in–Chief of the Armed Forces. The power sought to be exercised was the lawmaking power, which the Constitution vests in the Congress alone. Even if it were true that other Presidents have taken possession of private business enterprises without congressional authority in order to settle labor disputes, Congress was not thereby divested of 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.”697
The Doctrine Considered.—The pivotal proposition of the opinion of the Court is that, inasmuch as Congress could have directed the seizure of the steel mills, the President had no power to do so without prior congressional authorization. To this reasoning, not only the dissenters but Justice Clark would not concur and in fact stated baldly that the reasoning was contradicted by precedent, both judicial and presidential and congressional practice. One of the earliest pronouncements on presidential power in this area was that of Chief Justice Marshall in Little v. Barreme.698 There, a United States vessel under orders from the President had seized a United States merchant ship bound from a French port allegedly carrying contraband material; Congress had, however, provided for seizure only of such vessels bound to French ports.699 Said the Chief Justice: “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[p.574]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 seems to have prescribed that 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.”700
Other examples are at hand. In 1799, President Adams, in order to execute the extradition provisions of the Jay Treaty, issued a warrant for the arrest of one Robbins and the action was challenged in Congress on the ground that no statutory authority existed by which the President could act; John Marshall defended the action in the House of Representatives, the practice continued, and it was not until 1848 that Congress enacted a statute governing this subject.701 Again, in 1793, President Washington issued a neutrality proclamation; the following year, Congress enacted the first neutrality statute and since then proclamations of neutrality have been based on acts of Congress.702 Repeatedly, acts of the President have been in areas in which Congress could act as well.703
Justice Frankfurter’s concurring opinion704 listed statutory authorizations for seizures of industrial property, 18 in all of which all but the first were enacted between 1916 and 1951, and summaries of seizures of industrial plants and facilities by Presidents without definite statutory warrant, eight of which occurred during World War I, justified in the presidential orders as being done pursuant to “the Constitution and laws” generally, and eleven of which occurred in World War II.705 The first such seizure in this period had been justified by then Attorney General Jackson as being based upon an “aggregate” of presidential powers stemming from his duty to see the laws faithfully executed, his commander–in–[p.575]chiefship, and his general executive powers.706 Chief Justice Vinson’s dissent dwelt liberally upon this opinion,707 which reliance drew a disclaimer from Justice Jackson, concurring.708
The dissent was also fortunate in that chief counsel for the steel companies was the eminent John W. Davis, who, as Solicitor General of the United States, had filed a brief in defense of Presidential action in 1914, which had taken precisely the view which the dissent now presented on this issue.709 “Ours,” the brief read, “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 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 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 powers 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 imme[p.576]diately, 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 sense is he the agent of Congress. He obeys and executes the laws of Congress, but because Congress is enthroned in authority over him, not 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.”710
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