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, in a concurring opinion, would not concur, and in fact they 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.785 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.786 The Chief Justice wrote: “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 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.”787

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.788 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.789 Repeatedly, acts of the President have been in areas in which Congress could act as well.790

Justice Frankfurter’s concurring opinion791 listed 18 statutory authorizations for seizures of industrial property, all but one of which 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 presidential orders as being done pursuant to “the Constitution and laws” generally—and eleven of which occurred in World War II.792 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-chiefship, and his general executive powers.793 Chief Justice Vinson’s dissent dwelt liberally upon this opinion,794 which reliance drew a disclaimer from Justice Jackson, concurring.795

The dissent was also fortunate in that the steel companies’ chief counsel, John W. Davis, a former Solicitor General of the United States, had filed a brief in 1914 in defense of Presidential action, which had taken precisely the view that the dissent now presented.796 “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 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 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, 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, 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.”797

Footnotes

785
6 U.S. (2 Cr.) 170 (1804). [Back to text]
786
1 Stat. 613 (1799). [Back to text]
787
Little v. Barreme, 6 U.S. (2 Cr.) 170, 177–78 (1804). [Back to text]
788
10 ANNALS OF CONG. 596, 613–14 (1800). The argument was endorsed in Fong Yue Ting v. United States, 149 U.S. 698, 714 (1893). The presence of a treaty, of which this provision was self-executing, is sufficient to distinguish this example from the steel seizure situation. [Back to text]
789
Cf. E. CORWIN, THE PRESIDENTS CONTROL OF FOREIGN RELATIONS ch. 1 (1916). [Back to text]
790
E. Corwin, The Steel Seizure Case: A Judicial Brick Without Straw, 53 COLUM. L. REV. 53, 58–59 (1953). [Back to text]
791
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 593 (1952). [Back to text]
792
343 U.S. at 611–13, 620. [Back to text]
793
89 CONG. REC. 3992 (1943). [Back to text]
794
343 U.S. at 695–96 (dissenting opinion). [Back to text]
795
Thus, Justice Jackson noted of the earlier seizure, that “[i]ts superficial similarities with the present case, upon analysis, yield to distinctions so decisive that it cannot be regarded as even a precedent, much less an authority for the present seizure.” 343 U.S. at 648–49 (concurring opinion). His opinion opens with the sentence: “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.” Id. at 634. [Back to text]
796
Brief for the United States at 11, 75–77, United States v. Midwest Oil Co., 236 U.S. 459 (1915). [Back to text]
797
Quoted in Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 689–91 (1952) (dissenting opinion). [Back to text]