president’s relations with the courts contains useful information about the president’s authority to nominate people to become a judge or justice
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
(Abridged)
Background: To avert a nationwide strike of steel workers in April 1952, which he believed would
jeopardize national defense, the President issued an Executive Order directing the Secretary of
Commerce to seize and operate most of the steel mills. The Order was not based upon any specific
statutory authority, but was based generally upon all powers vested in the President by the Constitution
and laws of the United States and as President of the United States and Commander in
Chief of the Armed Forces. The Secretary issued an order seizing the steel mills and directing their
presidents to operate them as operating managers for the United States in accordance with his
regulations and directions. The President promptly reported these events to Congress; but Congress
took no action. It had provided other methods of dealing with such situations, and had refused
to authorize governmental seizures of property to settle labor disputes. The steel companies
sued the Secretary in a Federal District Court, praying for a declaratory judgment and injunctive
relief. The District Court issued a preliminary injunction, which the Court of Appeals stayed.
MR. JUSTICE BLACK delivered the opinion of the Court.
We are asked to decide whether the President was acting within his constitutional power when
he issued an order directing the Secretary of Commerce to take possession of and operate most
of the Nation’s steel mills. The mill owners argue that the President’s order amounts to lawmaking,
a legislative function which the Constitution has expressly confided to the Congress, and not
to the President. The Government’s position is that the order was made on findings of the President
that his action was necessary to avert a national catastrophe which would inevitably result
from a stoppage of steel production, and that, in meeting this grave emergency, the President
was acting within the aggregate of his constitutional powers as the Nation’s Chief Executive and
the Commander in Chief of the Armed Forces of the United States. The issue emerges here from
the following series of events:
2
In the latter part of 1951, a dispute arose between the steel companies and their employees over
terms and conditions that should be included in new collective bargaining agreements. Longcontinued
conferences failed to resolve the dispute. On December 18, 1951, the employees’ representative,
United Steelworkers of America, CIO, gave notice of an intention to strike when the
existing bargaining agreements expired on December 31. The Federal Mediation and Conciliation
Service then intervened in an effort to get labor and management to agree. This failing, the President
on December 22, 1951, referred the dispute to the Federal Wage Stabilization
[p583] Board[n1] to investigate and make recommendations for fair and equitable terms of
settlement. This Board’s report resulted in no settlement. On April 4, 1952, the Union gave notice
of a nationwide strike called to begin at 12:01 a.m. April 9. The indispensability of steel as a component
of substantially all weapons and other war materials led the President to believe that the
proposed work stoppage would immediately jeopardize our national defense and that governmental
seizure of the steel mills was necessary in order to assure the continued availability of
steel. Reciting these considerations for his action, the President, a few hours before the strike
was to begin, issued Executive Order 10340, a copy of which is attached as an appendix, post, p.
589. The order directed the Secretary of Commerce to take possession of most of the steel mills
and keep them running. The Secretary immediately issued his own possessory orders, calling
upon the presidents of the various seized companies to serve as operating managers for the
United States. They were directed to carry on their activities in accordance with regulations and
directions of the Secretary. The next morning the President sent a message to Congress reporting
his action. Cong.Rec. April 9, 1952, p. 3962. Twelve days later, he sent a second message.
Cong.Rec. April 21, 1952, p. 4192. Congress has taken no action.
Obeying the Secretary’s orders under protest, the companies brought proceedings against him
in the District Court. Their complaints charged that the seizure was not authorized by an act of
Congress or by any constitutional provisions. The District Court was asked to declare the orders
of the President and the Secretary invalid and to issue preliminary and permanent injunctions
restraining their enforcement. Opposing the motion for preliminary [p584] injunction, the United
States asserted that a strike disrupting steel production for even a brief period would so endanger
the wellbeing and safety of the Nation that the President had “inherent power” to do what he
3
had done — power “supported by the Constitution, by historical precedent, and by court decisions.”
The Government also contended that, in any event, no preliminary injunction should be
issued, because the companies had made no showing that their available legal remedies were
inadequate or that their injuries from seizure would be irreparable. Holding against the Government
on all points, the District Court, on April 30, issued a preliminary injunction restraining the
Secretary from “continuing the seizure and possession of the plants . . . and from acting under
the purported authority of Executive Order No. 10340.” 103 F.Supp. 569. On the same day, the
Court of Appeals stayed the District Court’s injunction. 90 U.S.App.D.C. ___, 197 F.2d 582. Deeming
it best that the issues raised be promptly decided by this Court, we granted certiorari on May
3 and set the cause for argument on May 12. 343 U.S. 937.
The President’s power, if any, to issue the order must stem either from an act of Congress or
from the Constitution itself. There is no statute that expressly authorizes the President to take
possession of property as he did here. Nor is there any act of Congress to which our attention
has been directed from which such a power can fairly be implied. Indeed, we do not understand
the Government to rely on statutory authorization for this seizure. There are two statutes which
do authorize the President [p586] to take both personal and real property under certain conditions.[
n2] However, the Government admits that these conditions were not met, and that the
President’s order was not rooted in either of the statutes. The Government refers to the seizure
provisions of one of these statutes (§ 201(b) of the Defense Production Act) as “much too cumbersome,
involved, and time-consuming for the crisis which was at hand.”
Moreover, the use of the seizure technique to solve labor disputes in order to prevent work stoppages
was not only unauthorized by any congressional enactment; prior to this controversy, Congress
had refused to adopt that method of settling labor disputes. When the Taft-Hartley Act was
under consideration in 1947, Congress rejected an amendment which would have authorized
such governmental seizures in cases of emergency.[n3] Apparently it was thought that the technique
of seizure, like that of compulsory arbitration, would interfere with the process of collective
bargaining.[n4] Consequently, the plan Congress adopted in that Act did not provide for seizure
under any circumstances. Instead, the plan sought to bring about settlements by use of the
4
customary devices of mediation, conciliation, investigation by boards of inquiry, and public reports.
In some instances, temporary injunctions were authorized to provide cooling-off periods.
All this failing, unions were left free to strike after a secret vote by employees as to whether they
wished to accept their employers’ final settlement offer.[n5][p587]
It is clear that, if the President had authority to issue the order he did, it must be found in some
provision of the Constitution. And it is not claimed that express constitutional language grants
this power to the President. The contention is that presidential power should be implied from
the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in
Article II which say that “The executive Power shall be vested in a President . . .”; that “he shall
take Care that the Laws be faithfully executed”, and that he “shall be Commander in Chief of the
Army and Navy of the United States.”
The order cannot properly be sustained as an exercise of the President’s military power as Commander
in Chief of the Armed Forces. The Government attempts to do so by citing a number of
cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater
of war. Such cases need not concern us here. Even though “theater of war” be an expanding
concept, we cannot with faithfulness to our constitutional system hold that the Commander in
Chief of the Armed Forces has the ultimate power as such to take possession of private property
in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers,
not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional provisions that grant
executive power to the President. In the framework of our Constitution, the President’s power
to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The
Constitution limits his functions in the lawmaking process to the recommending of laws he thinks
wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal
about who shall make laws which the President is to execute. The [p588] first section of the first
article says that “All legislative Powers herein granted shall be vested in a Congress of the United
5
States. . . .” After granting many powers to the Congress, Article I goes on to provide that Congress
may
make all Laws which shall be necessary and proper for carrying into Execution the foregoing
Powers, and all other Powers vested by this Constitution in the Government of the United
States, or in any Department or Officer thereof.
The President’s order does not direct that a congressional policy be executed in a manner prescribed
by Congress — it directs that a presidential policy be executed in a manner prescribed by
the President. The preamble of the order itself, like that of many statutes, sets out reasons why
the President believes certain policies should be adopted, proclaims these policies as rules of
conduct to be followed, and again, like a statute, authorizes a government official to promulgate
additional rules and regulations consistent with the policy proclaimed and needed to carry that
policy into execution. The power of Congress to adopt such public policies as those proclaimed
by the order is beyond question. It can authorize the taking of private property for public use. It
can make laws regulating the relationships between employers and employees, prescribing rules
designed to settle labor disputes, and fixing wages and working conditions in certain fields of our
economy. The Constitution does not subject this lawmaking power of Congress to presidential or
military supervision or control.
It is said that other Presidents, without congressional authority, have taken possession of private
business enterprises in order to settle labor disputes. But even if this be true, Congress has not
thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out
the powers vested by the Constitution [p589] “in the Government of the United States, or any
Department or Officer thereof.”
The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good
and bad times. It would do no good to recall the historical events, the fears of power, and the
hopes for freedom that lay behind their choice. Such a review would but confirm our holding that
this seizure order cannot stand.
The judgment of the District Court is
6
Affirmed.
MR. JUSTICE JACKSON, concurring in the judgment and opinion of the Court.
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. While an interval of detached reflection may temper
teachings of that experience, they probably are a more realistic influence on my views than the
conventional materials of judicial decision which seem unduly to accentuate doctrine and legal
fiction. But, as we approach the question of presidential power, we half overcome mental hazards
by recognizing them. The opinions of judges, no less than executives and publicists, often
suffer the infirmity of confusing the issue of a power’s validity with the cause it is invoked to
promote, of confounding the permanent executive office with its temporary occupant. The tendency
is strong to emphasize transient results upon policies — such as wages or stabilization —
and lose sight of enduring consequences upon the balanced power structure of our Republic.
A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous
authority applicable to concrete problems of executive power as they actually present
themselves. Just what our forefathers did envision, or would have envisioned had they foreseen
modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph
was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly
speculation yields no net result, but only supplies more or less apt quotations from [p635] respected
sources on each side of any question. They largely cancel each other.[n1] And court decisions
are indecisive because of the judicial practice of dealing with the largest questions in the
most narrow way.
The actual art of governing under our Constitution does not, and cannot, conform to judicial definitions
of the power of any of its branches based on isolated clauses, or even single Articles torn
from context. While the Constitution diffuses power the better to secure liberty, it also contemplates
that practice will integrate the dispersed powers into a workable government. It enjoins
7
upon its branches separateness but interdependence, autonomy but reciprocity. Presidential
powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of
Congress. We may well begin by a somewhat over-simplified grouping of practical situations in
which a President may doubt, or others may challenge, his powers, and by distinguishing roughly
the legal consequences of this factor of relativity.
1. When the President acts pursuant to an express or implied authorization of Congress,
his authority is at its maximum, for it includes all that he possesses in his own right
plus all that Congress can delegate.[n2] In these circumstances, [p636] and in these
only, may he be said (for what it may be worth) to personify the federal sovereignty.
If his act is held unconstitutional under these circumstances, it usually means that the
Federal Government, [p637] as an undivided whole, lacks power. A seizure executed
by the President pursuant to an Act of Congress would be supported by the strongest
of presumptions and the widest latitude of judicial interpretation, and the burden of
persuasion would rest heavily upon any who might attack it.
2. When the President acts in absence of either a congressional grant or denial of authority,
he can only rely upon his own independent powers, but there is a zone of
twilight in which he and Congress may have concurrent authority, or in which its distribution
is uncertain. Therefore, congressional inertia, indifference or quiescence
may sometimes, at least, as a practical matter, enable, if not invite, measures on independent
presidential responsibility. In this area, any actual test of power is likely to
depend on the imperatives of events and contemporary imponderables, rather than
on abstract theories of law.[n3]
3. When the President takes measures incompatible with the expressed or implied will
of Congress, his power is at its lowest ebb, for then he can rely only upon his own
constitutional powers minus any constitutional powers of Congress over the matter.
Courts can sustain exclusive presidential control in such a case only by disabling
[p638] the Congress from acting upon the subject.[n4] Presidential claim to a
power at once so conclusive and preclusive must be scrutinized with caution, for what
is at stake is the equilibrium established by our constitutional system.
8
Into which of these classifications does this executive seizure of the steel industry fit? It is eliminated
from the first by admission, for it is conceded that no congressional authorization exists
for this seizure. That takes away also the support of the many precedents and declarations which
were made in relation, and must be confined, to this category.[n5][p639]
Can it then be defended under flexible tests available to the second category? It seems clearly
eliminated from that class, because Congress has not left seizure of private property an open
field, but has covered it by three statutory policies inconsistent with this seizure. In cases where
the purpose is to supply needs of the Government itself, two courses are provided: one, seizure
of a plant which fails to comply with obligatory orders placed by the Government;[n6] another,
condemnation of facilities, including temporary use under the power of eminent domain.[n7] The
third is applicable where it is the general economy of the country that is to be protected, rather
than exclusive governmental interests.[n8] None of these were invoked. In choosing a different
and inconsistent way of his own, the President cannot claim that it is necessitated or invited by
failure of Congress to legislate upon the occasions, grounds and methods for seizure of industrial
properties. [p640]
This leaves the current seizure to be justified only by the severe tests under the third grouping,
where it can be supported only by any remainder of executive power after subtraction of such
powers as Congress may have over the subject. In short, we can sustain the President only by
holding that seizure of such strike-bound industries is within his domain and beyond control by
Congress. Thus, this Court’s first review of such seizures occurs under circumstances which leave
presidential power most vulnerable to attack and in the least favorable of possible constitutional
postures.
I did not suppose, and I am not persuaded, that history leaves it open to question, at least in the
courts, that the executive branch, like the Federal Government as a whole, possesses only delegated
powers. The purpose of the Constitution was not only to grant power, but to keep it from
getting out of hand. However, because the President does not enjoy unmentioned powers does
9
not mean that the mentioned ones should be narrowed by a niggardly construction. Some clauses
could be made almost unworkable, as well as immutable, by refusal to indulge some latitude of
interpretation for changing times. I have heretofore, and do now, give to the enumerated powers
the scope and elasticity afforded by what seem to be reasonable, practical implications, instead
of the rigidity dictated by a doctrinaire textualism.
The Solicitor General seeks the power of seizure in three clauses of the Executive Article, the first
reading, “The executive Power shall be vested in a President of the United States of America.”
Lest I be thought to exaggerate, I quote the interpretation which his brief puts upon it: “In our
view, this clause constitutes a grant of all the executive powers of which the Government is capable.”
If that be true, it is difficult to see why the [p641] forefathers bothered to add several
specific items, including some trifling ones.[n9]
The example of such unlimited executive power that must have most impressed the forefathers
was the prerogative exercised by George III, and the description of its evils in the Declaration of
Independence leads me to doubt that they were creating their new Executive in his image. Continental
European examples were no more appealing. And, if we seek instruction from our own
times, we can match it only from the executive powers in those governments we disparagingly
describe as totalitarian. I cannot accept the view that this clause is a grant in bulk of all conceivable
executive power, but regard it as an allocation to the presidential office of the generic powers
thereafter stated.
The clause on which the Government next relies is that “The President shall be Commander in
Chief of the Army and Navy of the United States. . . .” These cryptic words have given rise to some
of the most persistent controversies in our constitutional history. Of course, they imply something
more than an empty title. But just what authority goes with the name has plagued presidential
advisers who would not waive or narrow it by nonassertion, yet cannot say where it begins
or ends. It undoubtedly puts the Nation’s armed forces under presidential command. Hence,
this loose appellation is sometimes advanced as support for any presidential action, internal or
10
external, involving use of force, the [p642] idea being that it vests power to do anything, anywhere,
that can be done with an army or navy.
That seems to be the logic of an argument tendered at our bar — that the President having, on
his own responsibility, sent American troops abroad derives from that act “affirmative power” to
seize the means of producing a supply of steel for them. To quote,
Perhaps the most forceful illustration of the scope of Presidential power in this connection
is the fact that American troops in Korea, whose safety and effectiveness are so directly
involved here, were sent to the field by an exercise of the President’s constitutional powers.
Thus, it is said, he has invested himself with “war powers.”
I cannot foresee all that it might entail if the Court should indorse this argument. Nothing in our
Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a
state of war may, in fact, exist without a formal declaration. But no doctrine that the Court could
promulgate would seem to me more sinister and alarming than that a President whose conduct
of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his
mastery over the internal affairs of the country by his own commitment of the Nation’s armed
forces to some foreign venture.[n10][p643] I do not, however, find it necessary or appropriate to
consider the legal status of the Korean enterprise to discountenance argument based on it.
Assuming that we are in a war de facto, whether it is or is not a war de jure, does that empower
the Commander in Chief to seize industries he thinks necessary to supply our army? The Constitution
expressly places in Congress power “to raise and support Armies” and “to provide
and maintain a Navy.” (Emphasis supplied.) This certainly lays upon Congress primary responsibility
for supplying the armed forces. Congress alone controls the raising of revenues and
their appropriation, and may determine in what manner and by what means they shall be spent
for military and naval procurement. I suppose no one would doubt that Congress can take over
war supply as a Government enterprise. On the other hand, if Congress sees fit to rely on free
private enterprise collectively bargaining with free labor for support and maintenance of our
11
armed forces, can the Executive, because of lawful disagreements incidental to that process,
seize the facility for operation upon Government-imposed terms?
There are indications that the Constitution did not contemplate that the title Commander in
Chief of the[p644]Army and Navy will constitute him also Commander in Chief of the country, its
industries and its inhabitants. He has no monopoly of “war powers,” whatever they are. While
Congress cannot deprive the President of the command of the army and navy, only Congress can
provide him an army or navy to command. It is also empowered to make rules for the “Government
and Regulation of land and naval Forces,” by which it may, to some unknown extent, impinge
upon even command functions.
That military powers of the Commander in Chief were not to supersede representative government
of internal affairs seems obvious from the Constitution and from elementary American history.
Time out of mind, and even now, in many parts of the world, a military commander can
seize private housing to shelter his troops. Not so, however, in the United States, for the Third
Amendment says,
No Soldier shall, in time of peace be quartered in any house, without the consent of the
Owner, nor in time of war, but in a manner to be prescribed by law.
Thus, even in war time, his seizure of needed military housing must be authorized by Congress.
It also was expressly left to Congress to “provide for calling forth the Militia to execute the Laws
of the Union, suppress Insurrections and repel Invasions. . . .”[n11] Such a limitation on the command
power, written at a time when the militia, rather than a standing army, was contemplated
as the military weapon of the Republic, underscores the Constitution’s policy that Congress, not
the Executive, should control utilization of the war power as an instrument of domestic policy.
Congress, fulfilling that function, has authorized the President to use the army to enforce certain
civil rights.[n12] On the other hand, Congress has forbidden him to use the army for the purpose
[p645] of executing general laws except when expressly authorized by the Constitution or
by Act of Congress.[n13]
12
While broad claims under this rubric often have been made, advice to the President in specific
matters usually has carried overtones that powers, even under this head, are measured by the
command functions usual to the topmost officer of the army and navy. Even then, heed has been
taken of any efforts of Congress to negative his authority.[n14]
We should not use this occasion to circumscribe, much less to contract, the lawful role of the
President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain
his exclusive function to command the instruments of national force, at least when turned against
the outside world for the security of our society. But, when it is turned inward not because of
rebellion, but because of a lawful economic struggle between industry and labor, it should have
no such indulgence. His command power is not such an absolute as might be implied from that
office in a militaristic system, but is subject to limitations consistent with a constitutional Republic
whose law and policymaking branch [p646] is a representative Congress. The purpose of lodging
dual titles in one man was to insure that the civilian would control the military, not to enable the
military to subordinate the presidential office. No penance would ever expiate the sin against
free government of holding that a President can escape control of executive powers by law
through assuming his military role. What the power of command may include I do not try to
envision, but I think it is not a military prerogative, without support of law, to seize persons or
property because they are important or even essential for the military and naval establishment.
The third clause in which the Solicitor General finds seizure powers is that “he shall take Care that
the Laws be faithfully executed. . . .[n15] That authority must be matched against words of the
Fifth Amendment that “No person shall be . . . deprived of life, liberty or property, without due
process of law. . . .” One gives a governmental authority that reaches so far as there is law, the
other gives a private right that authority shall go no farther. These signify about all there is of the
principle that ours is a government of laws, not of men, and that we submit ourselves to rulers
only if under rules.
The Solicitor General lastly grounds support of the seizure upon nebulous, inherent powers never
expressly granted, but said to have accrued to the office from the customs and claims of
13
preceding administrations. The plea is for a resulting power to deal with a crisis or an emergency
according to the necessities of the case, the unarticulated assumption being that necessity knows
no law.
Loose and irresponsible use of adjectives colors all nonlegal and much legal discussion of presidential
powers. [p647] “Inherent” powers, “implied” powers, “incidental” powers, “plenary”
powers, “war” powers and “emergency” powers are used, often interchangeably and without
fixed or ascertainable meanings.
The vagueness and generality of the clauses that set forth presidential powers afford a plausible
basis for pressures within and without an administration for presidential action beyond that supported
by those whose responsibility it is to defend his actions in court. The claim of inherent
and unrestricted presidential powers has long been a persuasive dialectical weapon in political
controversy. While it is not surprising that counsel should grasp support from such unadjudicated
claims of power, a judge cannot accept self-serving press statements of the attorney for one of
the interested parties as authority in answering a constitutional question, even if the advocate
was himself. But prudence has counseled that actual reliance on such nebulous claims stop short
of provoking a judicial test.[n16][p648]
The Solicitor General, acknowledging that Congress has never authorized the seizure here, says
practice of prior Presidents has authorized it. He seeks color of legality from claimed executive
precedents, chief of which is President Roosevelt’s seizure, on June 9, 1941, of the California plant
of the North American Aviation Company. Its superficial similarities with the present case, upon
analysis, yield to distinctions so decisive that it [p649] cannot be regarded as even a precedent,
much less an authority for the present seizure.[n17]
The appeal, however, that we declare the existence of inherent powers ex necessitateto meet an
emergency asks us to do what many think would be wise, although [p650] it is something the
forefathers omitted. They knew what emergencies were, knew the pressures they engender for
authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also
suspect that they suspected that emergency powers would tend to kindle emergencies. Aside
14
from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion,
when the public safety may require it,[n18] they made no express provision for exercise of extraordinary
authority because of a crisis.[n19] I do not think we rightfully may so amend their work, and,
if we could, I am not convinced it would be wise to do so, although many modern nations have
forthrightly recognized that war and economic crises may upset the normal balance between
liberty and authority. [p651] Their experience with emergency powers may not be irrelevant to
the argument here that we should say that the Executive, of his own volition, can invest himself
with undefined emergency powers.
Germany, after the First World War, framed the Weimar Constitution, designed to secure her
liberties in the Western tradition. However, the President of the Republic, without concurrence
of the Reichstag, was empowered temporarily to suspend any or all individual rights if public
safety and order were seriously disturbed or endangered. This proved a temptation to every government,
whatever its shade of opinion, and, in 13 years, suspension of rights was invoked on
more than 250 occasions. Finally, Hitler persuaded President Von Hindenberg to suspend all such
rights, and they were never restored.[n20]
The French Republic provided for a very different kind of emergency government known as the
“state of siege.” It differed from the German emergency dictatorship, particularly in that emergency
powers could not be assumed at will by the Executive, but could only be granted as a parliamentary
measure. And it did not, as in Germany, result in a suspension or abrogation of law,
but was a legal institution governed by special legal rules and terminable by parliamentary authority.[
n21]
Great Britain also has fought both World Wars under a sort of temporary dictatorship created by
legislation.[n22] As Parliament is not bound by written constitutional limitations, it established a
crisis government simply by [p652] delegation to its Ministers of a larger measure than usual of
its own unlimited power, which is exercised under its supervision by Ministers whom it may dismiss.
This has been called the “high-water mark in the voluntary surrender of liberty,” but, as
Churchill put it,
15
Parliament stands custodian of these surrendered liberties, and its most sacred duty will be
to restore them in their fullness when victory has crowned our exertions and our perseverance.[
n23]
Thus, parliamentary control made emergency powers compatible with freedom.
This contemporary foreign experience may be inconclusive as to the wisdom of lodging emergency
powers somewhere in a modern government. But it suggests that emergency powers are
consistent with free government only when their control is lodged elsewhere than in the Executive
who exercises them. That is the safeguard that would be nullified by our adoption of the
“inherent powers” formula. Nothing in my experience convinces me that such risks are warranted
by any real necessity, although such powers would, of course, be an executive convenience.
In the practical working of our Government, we already have evolved a technique within the
framework of the Constitution by which normal executive powers may be considerably expanded
to meet an emergency. Congress may and has granted extraordinary authorities which lie
dormant in normal times but may be called into play by the Executive in war or upon proclamation
of a national emergency. In 1939, upon congressional request, the Attorney General listed
ninety-nine such separate statutory grants by Congress of emergency or wartime executive powers.[
n24] They were invoked from time to time as need appeared. Under this procedure, we retain
Government [p653] by law — special, temporary law, perhaps, but law nonetheless. The public
may know the extent and limitations of the powers that can be asserted, and persons affected
may be informed from the statute of their rights and duties.
In view of the ease, expedition and safety with which Congress can grant and has granted large
emergency powers, certainly ample to embrace this crisis, I am quite unimpressed with the argument
that we should affirm possession of them without statute. Such power either has no
beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that
it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction.
16
As to whether there is imperative necessity for such powers, it is relevant to note the gap that
exists between the President’s paper powers and his real powers. The Constitution does not disclose
the measure of the actual controls wielded by the modern presidential office. That instrument
must be understood as an Eighteenth-Century sketch of a government hoped for, not as a
blueprint of the Government that is. Vast accretions of federal power, eroded from that reserved
by the States, have magnified the scope of presidential activity. Subtle shifts take place in the
centers of real power that do not show on the face of the Constitution.
Executive power has the advantage of concentration in a single head in whose choice the whole
Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude
and finality, his decisions so far overshadow any others that, almost alone, he fills the public eye
and ear. No other personality in public life can begin to compete with him in access to the public
mind through modern methods of communications. By his prestige as head of state and his influence
upon public opinion, he exerts a leverage upon those who are supposed [p654] to check
and balance his power which often cancels their effectiveness.
Moreover, rise of the party system has made a significant extraconstitutional supplement to real
executive power. No appraisal of his necessities is realistic which overlooks that he heads a political
system, as well as a legal system. Party loyalties and interests, sometimes more binding
than law, extend his effective control into branches of government other than his own, and he
often may win, as a political leader, what he cannot command under the Constitution. Indeed,
Woodrow Wilson, commenting on the President as leader both of his party and of the Nation,
observed,
If he rightly interpret the national thought and boldly insist upon it, he is irresistible. . . . His
office is anything he has the sagacity and force to make it.[n25]
I cannot be brought to believe that this country will suffer if the Court refuses further to aggrandize
the presidential office, already so potent and so relatively immune from judicial review,[
n26] at the expense of Congress.
17
But I have no illusion that any decision by this Court can keep power in the hands of Congress if
it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or
perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim
attributed to Napoleon that “The tools belong to the man who can use them.” We may say that
power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can
prevent power from slipping through its fingers.
The essence of our free Government is “leave to live by no man’s leave, underneath the law” —
to be governed by those impersonal forces which we call law. Our Government [p655] is fashioned
to fulfill this concept so far as humanly possible. The Executive, except for recommendation
and veto, has no legislative power. The executive action we have here originates in the individual
will of the President, and represents an exercise of authority without law. No one, perhaps not
even the President, knows the limits of the power he may seek to exert in this instance, and the
parties affected cannot learn the limit of their rights. We do not know today what powers over
labor or property would be claimed to flow from Government possession if we should legalize it,
what rights to compensation would be claimed or recognized, or on what contingency it would
end. With all its defects, delays and inconveniences, men have discovered no technique for long
preserving free government except that the Executive be under the law, and that the law be
made by parliamentary deliberations.
Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first,
to give them up.[n27]