Does the President have constitutional authority, absent congressional authorization, to issue an executive order directing the Secretary of Commerce to seize and operate the Nation's steel mills to avert a strike during wartime?

In late 1951, a labor dispute arose between steel companies and the United Steelworkers over terms of new collective bargaining agreements. Mediation failed, and the Union gave notice of a nationwide strike. On December 22, 1951, President Truman referred the dispute to the Federal Wage Stabilization Board, whose recommendations produced no settlement. When the Union set a strike for April 9, 1952, the President concluded that a work stoppage would immediately jeopardize national defense because steel is indispensable to weapons and war materials needed for the Korean conflict. A few hours before the strike, he issued Executive Order 10340, directing the Secretary of Commerce to take possession of most of the nation's steel mills and keep them running. The Secretary issued possessory orders, and the mill presidents were directed to operate as managers for the United States. The President reported the seizure to Congress by message the next day and again twelve days later. Congress took no action. No statute expressly authorized the seizure, and in 1947 Congress had considered and rejected seizure as a remedy for labor emergencies when it enacted the Taft-Hartley Act. The steel companies complied under protest and sued, claiming the seizure was unauthorized by statute or the Constitution.

The steel companies filed suit in the United States District Court for the District of Columbia seeking declaratory relief and preliminary and permanent injunctions against enforcement of the seizure orders. The Government argued that the President had inherent power to act and that no injunction should issue because the companies had adequate legal remedies and no irreparable injury. On April 30, 1952, the District Court rejected the Government's positions and issued a preliminary injunction restraining the Secretary from continuing the seizure and from acting under Executive Order 10340. The same day, the Court of Appeals for the District of Columbia Circuit stayed the injunction. The Supreme Court granted certiorari before judgment on May 3, 1952, and heard argument on May 12-13, 1952.

(Black, J.)

No. The President lacked constitutional authority to seize the steel mills. The Court first held the constitutional question ripe for decision at the preliminary injunction stage, because the companies faced seizure damages difficult or impossible to measure and the Government's claimed Court of Claims remedy was doubtful.

Presidential power must stem from an act of Congress or from the Constitution itself. No statute authorized the seizure. The Government conceded that the two statutes permitting seizure under certain conditions did not apply. Congress had also deliberately rejected seizure as a method of resolving labor disputes: when it enacted the Taft-Hartley Act in 1947, it considered and declined to authorize seizures in emergencies, choosing instead mediation, conciliation, investigation, and cooling-off periods.

No provision of the Constitution supplies the power. The Commander in Chief clause does not extend to taking possession of private property to prevent labor disputes from halting production; even if the theater of war is an expanding concept, this is a job for the Nation's lawmakers, not its military authorities.

The President's duty to take care that the laws be faithfully executed refutes the idea that he is to be a lawmaker. His functions in lawmaking are limited to recommending and vetoing legislation. The order does not execute a congressional policy in a manner prescribed by Congress; it directs that a presidential policy be executed in a manner prescribed by the President, which is in substance a legislative act. Article I vests all legislative powers in Congress, including the power to authorize taking property for public use and to regulate labor relations. That authority is not displaced because prior Presidents allegedly took similar action. The seizure order cannot stand, and the District Court's judgment is affirmed.

Concurrence (Frankfurter, J.) Separation of powers is more complicated and flexible than the majority suggests, but its application here is clear. Congress repeatedly enacted seizure statutes with limits and safeguards, and in 1947 it consciously withheld seizure authority for labor disputes, requiring the President to report to Congress and seek specific authority. The President cannot act in disregard of that expressed legislative will. Unlike United States v. Midwest Oil Co., no systematic, unbroken executive practice supports seizures of this kind.

Concurrence (Douglas, J.) Emergency does not create power. Seizure of the plants is a taking requiring just compensation under the Fifth Amendment, and the branch that controls the purse, Congress, is the one authorized to condemn. The legislative nature of the President's action is clear. Separation of powers exists to preclude arbitrary power, not to promote efficiency.

Concurrence (Jackson, J.) Presidential power fluctuates with its relation to Congress. It is at its maximum when the President acts with congressional authorization, in a twilight zone when Congress is silent, and at its lowest ebb when he acts contrary to Congress's expressed or implied will. Here Congress's inconsistent statutory policies place the seizure in the third category, where it can be sustained only if it is within exclusive presidential control. The Commander in Chief and Take Care clauses do not supply that power, and claims of inherent emergency power are dangerous.

Concurrence (Burton, J.) Congress prescribed specific procedures for emergencies of this kind, excluding seizure, and reserved to itself the right to authorize seizure. The President's order invaded the jurisdiction of Congress.

Concurrence in the judgment (Clark, J.) The Constitution grants the President extensive emergency authority, but where Congress has laid down specific procedures for a crisis, he must follow them. Three statutes provided procedures, and none was followed to authorize this seizure. Little v. Barreme supports this conclusion.

Dissent (Vinson, C.J., joined by Reed and Minton, JJ.) The President acted within his Article II duty to faithfully execute the laws, including defense and stabilization programs, in a grave national emergency. A long history of executive action, including seizures by Lincoln, Wilson, and Roosevelt, supports temporary seizure to preserve legislative programs until Congress could act. No statute prohibits seizure (the majority answered that past seizures do not strip Congress of its exclusive lawmaking authority, and Frankfurter showed Congress consciously withheld seizure power in 1947), the President reported to Congress and deferred to its will, and inaction in the face of national peril would be foreign to the energetic Executive the Framers created.