could lawfully take possession of and operate the plants and facilities of Montgomery Ward and Company if you found it necessary to do so to prevent injury to the country's war effort. I conclude that in the circumstances of this case section 3 of the War Labor Disputes Act and your constitutional and statutory powers as Chief Executive and Commander in Chief of the Army and of the Navy, considered either separately or together, authorize you to direct the Secretary of Commerce to take possession of and to operate the plants and facilities of Montgomery Ward and Company in Chicago, Illinois. * * *65 In 1952 the Youngstown Steel seizure case gave the Supreme Court an opportunity to review Hamilton's doctrine of Presidential power derived from the grant of executive powers in article II of the Constitution as well as an opportunity to review the related theories of "inherent" Presidential powers. 66 The case involved the seizure of the steel mills by the Secretary of Commerce on the basis of a Presidential directive contained in an Executive order. The order was not based on statutory authority but was apparently based primarily on the Commander in Chief authority of the Constitution at a time when American troops were fighting in Korea. A majority of the Court (six members) rejected the idea that the President had or could exercise any such authority especially when Congress had legislated on the matter by providing specific machinery for the settlement of such disputes. A minority (three members) held that the President could take action to preserve the defense program until Congress could act. For the purposes of this study, the most interesting aspect of the case is the occasion taken by several of the Justices to review constitutional history in respect to the theories of Presidential power. 05 40 Op. A. G. 319-320. See reference by Attorney General Clark to "inherent power of the President to deal with emergencies" in letter published in hearings on S. 249, Senate Committee on Labor and Public Welfare, 81st Cong., 1949, 1st sess., p. 263. Attorney General Clark cites an opinion of Attorney Genera! Murphy (39 Op. A. G. 344, 347). A reading of the cited opinion does not show the use of the word "inherent" although it speaks of powers derived from the Constitution. 60 Youngstown Sheet and Tube Co. v. Sawyer, 343 U. S. 579, 96 L. ed. 1153, June 2, 1952. The following summary of the decision by the editors of Lawyers' Edition of Supreme Court Reports is useful in considering the excerpts quoted above: "A labor dispute between the steel industry and its employees was referred by the President to the Federal Wage Stabilization Board. The Board's recommendation resulted in no settlement. When the union gave notice of a nation-wide strike, the President issued an executive order directing the Secretary of Commerce to take possession of and operate most of the steel mills throughout the country and to promulgate additional rules and regulations consistent with the policy proclaimed and needed to effectuate this policy. The order was not based upon any statutory authority. It contained a finding that the President's action was necessary to avoid a national catastrophe, since a work stoppage would immediately imperil the national defense at a time when American armed forces were fighting in Korea. The President immediately informed Congress of his action and stated his intention to abide by the legislative will. "In proceedings instituted by the steel companies to challenge the validity of the seizure as not authorized by an act of Congress or any constitutional provision, the District Court issued preliminary injunctions restraining the Secretary from continuing the seizure and possession of the plants and from acting under the authority of the executive order. "Six members of the Supreme Court affirmed, holding that (1) the constitutional issue was ripe for decision; and (2) that the seizure order was not within the constitutional powers of the President. "The opinion of the Court, written by BLACK, J., proceeded on the theory that the President is without power to seize private property, even though an emergency exists. While four other Justices (FRANKFURTER, DOUGLAS, JACKSON, and BURTON), concurred in the Court's opinion, they also wrote separate opinions, which, as stated by FRANKFURTER, J., show differences in attitude to the basic constitutional principles involved. The lack of constitutional authority supporting the President's action was emphasized, not only in the Court's opinion, but also in the concurring opinion of DOUGLAS, J. "On the other hand, the emphasis of the concurring opinions of FRANKFURTER, JACKSON, and BURTON, JJ., is on the fact that whatever the President's inherent power to seize private property to meet an emer gency may be, he was precluded from exercising such power in the present case by specific legislation designed to meet the emergency confronting him. "CLARK, J., concurred in the result, holding that, in the absence of action by Congress to deal with the type of crisis confronting the President, his independent power to act turns upon the gravity of the situation confronting the nation, but that, when Congress has laid down specific procedures to deal with such a crisis, the President must follow these procedures, and that in the present case, the President had not availed himself of his authority under the Selective Service Act of 1948 to seize plants which fail to produce goods required by the armed forces. VINSON, CH. J., with the concurrence of REED and MINTON, JJ., dissented. They upheld the seizure as an appropriate method, not prohibited by the Labor Management Relations Act or any other act of Congress, of faithfully executing and preserving the defense program enacted by Congress, until the latter could The Government's position was that, in seizing the steel mills, 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." 67 Rendering the opinion of the Court, Mr. Justice Black stated: *** 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. is a job for the Nation's lawmakers, not for its military authorities. This 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 nr equivocal about who shall make laws which the President is to execute. The first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United 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 "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 ***68 In a concurring opinion, Mr. Justice Frankfurter stated that where Congress had acted the President was bound by the enactment; and that the leeway of the President is in that area of constitutional author 67 343 U. S. 582. 68 343 U. S. 587-589. ity where the President has acted with the knowledge of Congress to preserve the right of Congress to act. He put it this way: *** Apart from his vast share of responsibility for the conduct of our foreign relations, the embracing function of the President is that "he shall take Care that the Laws be faithfully executed ***" Art. 2, sec. 3. The nature of that authority has for me been comprehensively indicated by Mr. Justice Holmes. "The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power." Myers v. United States, 272 U. S. 52, 177, 71 L. ed. 160, 191, 47 S. Ct. 21. The powers of the President are not as particularized as are those of Congress. But unenumerated powers do not mean undefined powers. The separation of powers built into our Constitution gives essential content to undefined provisions in the frame of our government. To be sure, the content of the three authorities of government is not to be derived from an abstract analysis. The areas are partly interacting, not wholly disjointed. The Constitution is a framework for government. Therefore the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on "executive power" vested in the President by sec. 1 of Art. 2. Such was the case of United States v. Midwest Oil Co., 236 U. S. 459, 59 L. ed. 673, 35 S. Ct. 309. The contrast between the circumstances of that case and this one helps to draw a clear line between authority not explicitly conferred yet authorized to be exercised by the President and the denial of such authority. In both instances it was the concern of Congress under express constitutional grant to make rules and regulations for the problems with which the President dealt. In the one case he was dealing with the protection of property belonging to the United States; in the other with the enforcement of the commerce_clause and with raising and supporting armies and maintaining the Navy. In the Midwest Oil Case lands which Congress had opened for entry were, over a period of 80 years and in 252 instances, and by Presidents learned and unlearned in the law, temporarily withdrawn from entry so as to enable Congress to deal with such withdrawals. No remotely comparable practice can be vouched for executive seizure of property at a time when this country was not at war, in the only constitutional way in which it can be at war * * * 69 Mr. Justice Douglas stated in concurring: *** If we sanctioned the present exercise of power by the President, we would be expanding Article 2 of the Constitution and rewriting it to suit the the political conveniences of the present emergency. Article 2 which vests the "executive Power" in the President defines that power with particularity. Article 2, sec. 2 makes the Chief Executive the Commander in Chief of the Army and Navy. But our history and tradition rebel at the thought that the grant of military power carries with it authority over civilian affairs. Article 2, sec. 3 provides that the President shall "from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient." The power to recommend legislation, granted to the President, serves only to emphasize that it is his function to recommend and that it is the function of the Congress to legislate. Article 2, sec. 3 also provides that the President "shall take Care that the Laws be faithfully executed." But as Mr. Justice Black and Mr. Justice Frankfurter point out the power to execute the laws starts and ends with the laws Congress has enacted ***70 Mr. Justice Jackson, a former Attorney General, devoted his concurring opinion to a broad review of Presidential power under the 69 343 U. S. 610-611. Constitution. Referring by inference to his former status as the President's legal adviser he stated: *** 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 ***71 He characterized Presidential powers as follows: ***Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat oversimplified 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. In these circumstances, 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 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. 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 the Congress from acting upon the subject. 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. ***72 Apropos the President's constitutional powers relied upon in the Government's argument, the following excerpts from Justice Jackson's opinion cover some of the highlights: *** 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 forefathers bothered to add several specific items, including some trifling ones. 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 71 343 U. S. 635, Justice Jackson in a footnote referred to the debate between Hamilton and Madison. See discussion concerning Washington's proclamation of neutrality, supra. 72 343 U. S. 635-638. 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 external, involving use of force, the idea being that it vests power to do anything, anywhere, that can be done with an army or navy * ** 73 * There are indications that the Constitution did not contemplate that the title Commander-in-Chief of the Army and Navy will constitute him also Commanderin-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 of 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 * **"" 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. On the other hand, Congress has forbidden him to use the army for the purpose of executing general laws except when expressly authorized by the Constitution or by Act of Congress *** 1974 * ***The third clause in which the Solicitor General finds seizure powers is that "he shall take Care that the Laws be faithfully executed ***” 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 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. "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. 73 343 U. S. 640-642. |