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1952 Court Rules Steel Seizure Illegal - History

1952 Court Rules Steel Seizure Illegal - History

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Steel Factory

President Truman had used his emergency powers to seize the steel mills in the face of a pending strike. The Supreme Court ruled that the President had exceeded his powers when he did so.

On December 31st, 1951, contracts between the major steel industries and the United Steel Workers Union expired. Talks between the two sides were stalemated. At Truman's request, the steelworkers continued to work, as the contract-dispute was turned over the to the Wage Stabilization Board.

On March 20th, the board and the union agreed on a settlement, which the steel companies rejected. A strike deadline was set for April 9th. The steel companies demanded a rise in steel prices -- an increase greater than the administration would allow. The White House tried to reach an agreement; when it failed it seized the steel mills two hours before the beginning of the strike.

The government claimed that the seizure was necessary in accordance with the needs of national defense (the Korean War was in progress at the time). Government attorneys claimed unlimited inherent presidential power. The steel companies contended that the seizure was illegal, primarily since the president had not used an existing statute in the Taft-Hartley Act, which could have delayed a strike.

On June 2nd the Supreme Court upheld the view of the steel companies and ruled the seizures illegal. Court Decision

Youngstown Sheet and Tube Company v. Sawyer (1952)

This month we spotlight a case that turned on the constitutional principle of separation of powers and rights in times of crisis: Youngstown Sheet and Tube Company v. Sawyer (1952). During the Korean War, did President Harry Truman have the power to take over steel mills to ensure their continued operation during a strike?



It was 1950 and troops from communist North Korea had invaded the Republic of Korea. Backed by a United Nations Resolution, President Truman sent U.S. troops to aid South Korea. He did not ask for a declaration of war from Congress.

Less than two years later, the war in Korea had increased demand for steel, and prices had risen. The Department of Labor had created a Wage Stabilization Board after World War II to handle labor disputes in fields that were essential to defense. The Board’s purpose was to prevent wages, and therefore prices, from climbing too high. As steel prices rose, the steel worker union, United Steel Workers of America, threatened a strike unless they received a wage increase greater than what the Wage Stabilization Board would approve.

Truman believed that it would be a disaster for the nation if steel production were stopped. He ordered his Secretary of Commerce to take and operate the steel mills, to ensure that the military effort in Korea would not be disrupted.

The mill owners believed Truman’s order was unconstitutional because the seizure was not authorized by any law, and they took the case to the Supreme Court. Truman argued that the President’s power as Commander in Chief empowered him to take over and operate the steel mills. Further, he referenced the many times in American history that the government had seized private property in wartime.

The Court disagreed with Truman and held that neither the Constitution nor any act of Congress allowed the President to take over the steel mills. “The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.” There had been no act of Congress, so the Court turned to the Constitution. The Court ruled that the President’s role of Commander in Chief power did not authorize the action, and neither did 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 ruling was based on the Constitution’s separation of powers. Legal scholars point out that the Court did not rule that any seizure would have been unconstitutional. Rather, Truman’s actions were unconstitutional because he did not have any legislative authority.

The Wage Stabilization Board was abolished in 1953.

Comprehension and Critical Thinking Questions

  1. What was the constitutional question in Youngstown Sheet and Tube Company v. Sawyer (1952)?
  2. How did the Court rule?
  3. How does this case illustrate the constitutional principles of separation of powers?
  4. The Court held that “The Constitution limits [the president’s] 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 [unclear] about who shall make laws which the president is to execute.” To whom does the Constitution give lawmaking power? How would you put this statement in your own words?


Read the complete Youngstown Sheet & Tube Co. v. Sawyer at Legal Information Institute. After considering the Court’s reasoning, do you think that the majority would have struck down a government takeover of steel mills to avoid a wartime strike if it had been done by an act of Congress? Why or why not?

Brown v. Board of Education Verdict

When Brown’s case and four other cases related to school segregation first came before the Supreme Court in 1952, the Court combined them into a single case under the name Brown v. Board of Education of Topeka

Thurgood Marshall, the head of the NAACP Legal Defense and Educational Fund, served as chief attorney for the plaintiffs. (Thirteen years later, President Lyndon B. Johnson would appoint Marshall as the first Black Supreme Court justice.)

At first, the justices were divided on how to rule on school segregation, with Chief Justice Fred M. Vinson holding the opinion that the Plessy verdict should stand. But in September 1953, before Brown v. Board of Education was to be heard, Vinson died, and President Dwight D. Eisenhower replaced him with Earl Warren, then governor of California.

Displaying considerable political skill and determination, the new chief justice succeeded in engineering a unanimous verdict against school segregation the following year.

In the decision, issued on May 17, 1954, Warren wrote that “in the field of public education the doctrine of ‘separate but equal’ has no place,” as segregated schools are “inherently unequal.” As a result, the Court ruled that the plaintiffs were being �prived of the equal protection of the laws guaranteed by the 14th Amendment.”

The Steel Seizure Case

On April 8, 1952, President Harry Truman issued Executive Order No. 10340. That Executive Order directed the Secretary of Commerce to take possession of and operate most of the steel mills in the United States. President Truman’s action led to the famous decision in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). By a 6-3 vote, the Court held that President Truman had no constitutional power to seize the steel mills.

Justice Black wrote the majority opinion. But each of the five other Justices who comprised the majority (Justices Jackson, Burton, Clark, Douglas, and Frankfurter) also wrote his own separate opinion. Chief Justice Vinson wrote a dissent, in which Justices Reed and Minton joined. The four Justices whom President Truman had appointed– Chief Justice Vinson, and Justices Burton, Clark and Minton– split evenly in this case.

The case featured some famous lawyers. John W. Davis, the 1924 Democratic candidate for President of the United States and a leading appellate practitioner, argued the case for the steel mills. Arthur J. Goldberg, a future Supreme Court Justice and United Nations Ambassador, argued on behalf of the United Steelworkers of America, an amicus curiae.

Youngstown Sheet & Tube is one of the most important opinions in Supreme Court history on the subject of the powers of the President, and April 8 is the most important date in that case. Thus, April 8 is truly a red letter day.

One Response to “The Steel Seizure Case”

Interestingly, we are reminded of this decision, which delineated the limits of presidential powers, on the eve of a governmental shutdown. Will April 8, 2011 mark another day in history?

1952 Court Rules Steel Seizure Illegal - History

It was a time for chickens in every pot, two cars in every garage, color television, another war, and a space race to the stars.

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Photo above: A race to the moon. Right: Allegheny Ludlum Steel Company, Pennsylania, 1940-1946, U.S. Office of War Information. Courtesy Library of Congress.

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Detail - 1952

April 8, 1952 - President Truman authorizes the seizure of United States steel mills in order to avert a strike, but his action is ruled illegal by the U.S. Supreme Court on June 2.

It was a problem caused by many things, hinged on McCarthyism, the Korean War, and wage controls. In the end, it was a battle of presidential powers and the constitution, which the Supreme Court would rule in favor of. On April 8, 1952, President Harry S. Truman nationalized the nation's steel industry. Yes, in the United States, not South America or Russia or North Korea. He did it, in essence, to show muscle, as well as to avert a strike by the nation's steel workers that might jeopardize national security if steel supply were compromized. Executive Order 10340, issued at 10:30 p.m. at night in a radio address to the nation, mandated that Secretary of Commerce Charles W. Sawyer sieze the steel mills and continue production. The strike was called off.

Executive Order 10340

DIRECTING THE SECRETARY OF COMMERCE TO TAKE POSSESSION OF AND OPERATE THE PLANTS AND FACILITIES OF CERTAIN STEEL COMPANIES WHEREAS on December 16, 1950, I proclaimed (2) the existence of a national emergency which requires that the military, naval, air, and civilian defenses of this country be strengthened as speedily as possible to the end that we may be able to repel any and all threats against our national security and to fulfill our responsibilities in the efforts being made throughout the United Nations and otherwise to bring about a lasting peace and

WHEREAS American fighting men and fighting men of other nations of the United Nations are now engaged in deadly combat with the forces of aggression in Korea, and forces of the United States are stationed elsewhere overseas for the purpose of participating in the defense of the Atlantic Community against aggression and

WHEREAS the weapons and other materials needed by our armed forces and by those joined with us in the defense of the free world are produced to a great extent in this country, and steel is an indispensable component of substantially all of such weapons and materials and

WHEREAS steel is likewise indispensable to the carrying out of programs of the Atomic Energy Commission of vital importance to our defense efforts and

WHEREAS a continuing and uninterrupted supply of steel is also indispensable to the maintenance of the economy of the United States, upon which our military strength depends and

WHEREAS a controversy has arisen between certain companies in the United States producing and fabricating steel and the elements thereof and certain of their workers represented by the United Steel Workers of America, CIO, regarding terms and conditions of employment and WHEREAS the controversy has not been settled through the processes of collective bargaining or through the efforts of the Government, including those of the Wage Stabilization Board, to which the controversy was referred on December 22, 1951, pursuant to Executive Order No. 10233, (2) and a strike has been called for 12:01 A.M., April 9, 1952 and

WHEREAS a work stoppage would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field and

WHEREAS in order to assure the continued availability of steel and steel products during the existing emergency, it is necessary that the United States take possession of and operate the plants, facilities, and other property of the said companies as hereinafter provided:

NOW, THEREFORE, by virtue of the authority vested in me by the Constitution and laws of the United States, and as President of the United States and Commander in Chief of the armed forces of the United States, it is hereby ordered as follows:

1. The Secretary of Commerce is hereby authorized and directed to take possession of all or such of the plants, facilities, and other property of the companies named in the list attached hereto, or any part thereof, as he may deem necessary in the interests of national defense and to operate or to arrange for the operation thereof and to do all things necessary for, or incidental to, such operation.

2. In carrying out this order the Secretary of Commerce may act through or with the aid of such public or private instrumentalities or persons as he may designate and all Federal agencies shall cooperate with the Secretary of Commerce to the fullest extent possible in carrying out the purposes of this order.

3. The Secretary of Commerce shall determine and prescribe terms and conditions of employment under which the plants, facilities, and other properties possession of which is taken pursuant to this order shall be operated. The Secretary of Commerce shall recognize the rights of workers to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining, adjustment of grievances, or other mutual aid or protection, provided that such activities do not interfere with the operation of such plants, facilities, and other properties.

4. Except so far as the Secretary of Commerce shall otherwise provide from time to time, the managements of the plants, facilities, and other properties possession of which is taken pursuant to this order shall continue their functions, including the collection and disbursement of funds in the usual and ordinary course of business in the names of their respective companies and by means of any instrumentalities used by such companies.

5. Except so far as the Secretary of Commerce may otherwise direct, existing rights and obligations of such companies shall remain in full force and effect, and there may be made, in due course, payments of dividends on stock, and of principal, interest, sinking funds, and all other distributions upon bonds, debentures, and other obligations, and expenditures may be made for other ordinary corporate or business purposes.

6. Whenever in the judgment of the Secretary of Commerce further possession and operation by him of any plant, facility, or other property is no longer necessary or expedient in the interest of national defense, and the Secretary has reason to believe that effective future operation is assured, he shall return the possession and operation of such plant, facility or other property to the company in possession and control thereof at the time possession was taken under this order.

7. The Secretary of Commerce is authorized to prescribe and issue such regulations and orders not inconsistent herewith as he may deem necessary or desirable for carrying out the purposes of this order and he may delegate and authorize subdelegation of such of his functions under this order as he may deem desirable.

Who did he nationalize?

American Bridge Company, Pittsburgh, Pennsylvania American Steel & Wire Company of New Jersey, Cleveland, Ohio Columbia Steel Company, San Francisco, California Consolidated Western Steel Corporation, Los Angeles, California Geneva Steel Company, Salt Lake City, Utah Gerrard Steel Strapping Company, Chicago, Illinois National Tube Company, Pittsburgh, Pennsylvania Oil Well Supply Company, Dallas, Texas Tennessee Coal, Iron & Railroad Company, Fairfield, Alabama United States Steel Company, Pittsburgh, Pennsylvania United States Steel Corporation, New York, New York United States Steel Products Company, New York, New York United States Steel Supply Company, Chicago, Illinois Virginia Bridge Company, Roanoke, Virginia Alan Wood Steel Company and Subsidiaries, Conshohocken, Pennsylvania American Chain and Cable Company, Incorporated, Bridgeport, Connecticut American Chain and Cable Company, Monessen, Pennsylvania Armco Steel Corporation, Middletown, Ohio Armco Drainage & Metal Products, Incorporated, Middletown, Ohio Atlantic Steel Company, Atlanta, Georgia Babcock and Wilcox Tube Company, Beaver Falls, Pennsylvania Borg-Warner Corporation, Chicago, Illinois Continental Copper and Steel Industries, Inc., Braeburn, Pennsylvania Continental Steel Corporation, Kokomo, Indiana Copperweld Steel Company, Glassport, Pennsylvania Detroit Steel Corporation, Detroit, Michigan Eastern Stainless Steel Corporation, Baltimore, Maryland Firth Sterling Steel and Carbide Corporation, McKeesport, Pennsylvania Follansbee Steel Corporation, Pittsburgh, Pennsylvania Granite City Steel Company, Granite City, Illinois Great Lakes Steel Corporation Ecorse, Detroit, Michigan Hanna Furnace Corporation Ecorse, Detroit, Michigan Harrisburg Steel Corporation, Harrisburg, Pennsylvania Boiardi Steel Company, Milton, Pennsylvania Heppenstall Company, Pittsburgh, Pennsylvania Inland Steel Company, Chicago, Illinois Joseph T. Ryerson & Son, Incorporated, Chicago, Illinois Interlake Iron Corporation, Cleveland, Ohio Pacific States Steel Corporation, Oakland, California Pittsburgh Coke & Chemical Company, Pittsburgh, Pennsylvania H. I. Porter Company, Incorporated, Pittsburgh, Pennsylvania Buffalo Steel Division, H. K. Porter Company, Inc., Tonawanda, New York Joslyn Manufacturing & Supply Company, Chicago, Illinois Joslyn Pacific Company, Los Angeles, California Latrobe Electric Steel Company, Latrobe, Pennsylvania E. J. Lavino & Company, Philadelphia, Pennsylvania Lukens Steel Company, Coatesville Pennsylvania McLouth Steel Corporation, Detroit, Michigan Newport Steel Corporation, Newport, Kentucky Northwest Steel Rolling Mills, Inc., Seattle, Washington Northwestern Steel & Wire Company, Sterling, Illinois Reeves Steel Manufacturing Company, Dover, Ohio John A. Roebling's Sons Company, Trenton, New Jersey Rotary Electric Steel Company, Detroit, Michigan Sheffield Steel Corporation, Kansas City, Missouri Shenango-Penn Mold Company, Pittsburgh, Pennsylvania Shenango Furnace Company, Pittsburgh, Pennsylvania Stanley Works, New Britain, Connecticut Universal Cyclops Steel Corporation, Bridgeville, Pennsylvania Vanadium-Alloys Steel Company, Latrobe, Pennsylvania Vulcan Crucible Steel Company, Aliquippa, Pennsylvania Wheeling Steel Corporation, Wheeling, West Virginia Woodward Iron Company, Woodward, Alabama Allegheny Ludlum Steel Corporation, Pittsburgh, Pennsylvania Bethlehem Steel Company, Bethlehem, Pennsylvania Bethlehem Pacific Coast Steel Corporation, San Francisco, California Bethlehem Supply Company of California, Los Angeles, California Bethlehem Supply Company, Tulsa, Oklahoma Buffalo Tank Corporation, Lackawanna, New York, Charlotte, North Carolina, Dunellen, New Jersey Dundalk Company, Sparrows Point, Maryland A. M. Byers Company, Pittsburgh, Pennsylvania Colorado Fuel & Iron Corporation, New York, New York Claymont Steel Corporation, Claymont, Delaware Crucible Steel Company, Pittsburgh Pennsylvania Jones & Laughlin Steel Corporation, Pittsburgh, Pennsylvania J. & L. Steel Barrel Company, Philadelphia, Pennsylvania National Supply Company, Pittsburgh, Pennsylvania Pittsburgh Steel Company, Pittsburgh, Pennsylvania Johnson Steel & Wire Company, Incorporated, Worcester, Massachusetts Republic Steel Corporation, Cleveland, Ohio Truscon Steel Company, Youngstown, Ohio Rheem Manufacturing Company, San Francisco, California Sharon Steel Corporation, Sharon, Pennsylvania Valley Mould & Iron Corporation, Hubbard, Ohio Youngstown Sheet & Tube Company, Youngstown, Ohio Emsco Derrick & Equipment Company, Los Angeles, California

HARRY S. TRUMAN, THE WHITE HOUSE, April 8th, 1952, 9:50 p.m. e.s.t.

How Did Steel Respond?

Workers, despite the lack of any indication of a wage increase, continued to work, but the steel companies were not going to take this, even for one day. Within twenty-seven minutes of the speech to the nation, Republic Steel and Youngstown Sheet and Tube had a temporary restraining order in front of a district judge, who refused to rule that night. The next day, April 9, the temporary restraining order was denied. The steel mills were siezed by the United States Government.

On April 10, Bethlehem Steel, Jones and Laughlin Steel, Republic Steel, and Youngstown Sheet and Tube had a permanent restraining order ready to go while the U.S. Government tried to mitigate a wage settlement. On April 29, the District Court ruled that the President had acted illegally. On April 30, the Appelite Court disagreed, staying the lower court's ruling. The Supreme Court would be up next.

Oral arguments began on May 12 a ruling came down on June 2, 6-3 in favor of the Steel companies, the President had acted illegally, there was no rationale in the constitution that allowed the President to sieze private property for national secruity purposes without Congress authorizing.

The United States returned the mills to their owners workers began their strike immediately. Collective bargaining sessions began three days later. Impact of the strike took effect, including the stopping of manufacture of defense tanks, and consumer autos. On July 23, President Truman ushered both sides into the White House armed with statistics showing the strike was hindering efforts in the Korean War. They reached an agreement that day.

Justice Black Opinion of the Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952)

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:

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. Long-continued 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 Board 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. 343 U. S. 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 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 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.

Two crucial issues have developed: First. Should final determination of the constitutional validity of the President's order be made in this case which has proceeded no further than the preliminary injunction stage? Second. If so, is the seizure order within the constitutional power of the President?

I - It is urged that there were nonconstitutional grounds upon which the District Court could have denied the preliminary injunction, and thus have followed the customary judicial practice of declining to reach and decide constitutional questions until compelled to do so. On this basis, it is argued that equity's extraordinary injunctive relief should have been denied because (a) seizure of the companies' properties did not inflict irreparable damages, and (b) there were available legal remedies adequate to afford compensation for any possible damages which they might suffer. While separately argued by the Government, these two contentions are here closely related, if not identical. Arguments as to both rest in large part on the Government's claim that, should the seizure ultimately be held unlawful, the companies could recover full compensation in the Court of Claims for the unlawful taking. Prior cases in this Court have cast doubt on the right to recover in the Court of Claims on account of properties unlawfully taken by government officials for public use as these properties were alleged to have been. See e.g., Hooe v. United States, 218 U. S. 322, 218 U. S. 335-336 United States v. North American Co., 253 U. S. 330, 253 U. S. 333. But see Larson v. Domestic & Foreign Corp., 337 U. S. 682, 337 U. S. 701-702. Moreover, seizure and governmental operation of these going businesses were bound to result in many present and future damages of such nature as to be difficult, if not incapable, of measurement. Viewing the case this way, and in the light of the facts presented, the District Court saw no reason for delaying decision of the constitutional validity of the orders. We agree with the District Court, and can see no reason why that question was not ripe for determination on the record presented. We shall therefore consider and determine that question now.

II - 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 to take both personal and real property under certain conditions. 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 (S 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. Apparently it was thought that the technique of seizure, like that of compulsory arbitration, would interfere with the process of collective bargaining. 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 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.

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 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.

Youngstown Sheet & Tube Co. v. Sawyer

Statement of the Facts:

In April 1952, President Truman believed that a threatened nationwide steel worker strike would jeopardize national security because of the need for steel for weapons in the Korean War. Accordingly, the President seized and operated most of the steel mills through an Executive Order. The Order was issued without any statutory authority, but rather purported to be based on the powers vested to the President under the Constitution, and as Commander and Chief of the Armed Forces.

President Truman reported his actions to Congress. Congress did not take any action in response. The executives of the steel companies filed suit in Federal District Court, seeking a declaration that President Truman exceeded his constitutional authority and an injunction halting the President’s operation of the mills.

Procedural History:

  • The District Court issued a preliminary injunction.
  • The D.C. Circuit Court of Appeals stayed the injunction, pending a decision from the Supreme Court.
  • The U.S. Supreme Court granted certiorari.

Issue and Holding:

Can the President of the United States seize and operate private companies in the absence of congressional authority? No.

The decision of the District Court is affirmed.

Rule of Law or Legal Principle Applied:

The President of the United States, who is charged with executing the laws of the Nation, does not have the legislative authority to seize private property without having the authority granted by Congress.

The President’s power must stem from either an act of Congress or from the Constitution itself. There is no statute that expressly or impliedly authorizes the President to take possession of property as President Truman did in this case.

There are statutes under which the President could have acted to avoid the impact of the steel worker strike. The President, however, chose not to follow those procedures, finding them too time-consuming and cumbersome given the imminent emergency at hand.

The power to seize private property to help a war effort, however, is a job for lawmakers, not military authorities or those charged with executing the laws. Neither the President’s implied constitutional powers, nor his role as Commander in Chief, gives him any legislative authority. Accordingly, the President’s seizure order cannot stand.

Concurring and Dissenting Opinions:

Congress expressly chose, in the Labor Management Relations Act of 1947, not to give the President the power to seize private property as a protective measure to solve a breakdown in industrial relations. Therefore, the President cannot exercise a power that Congress expressly chose not to give.

Concurring Opinion (Douglas):

Both Congress and the President are trustees of the national welfare. Our system of separation of powers was not adopted to promote efficiency but to stop the exercise of arbitrary, unchecked power. Therefore, just because the President can act more quickly than Congress does not mean that the President should have the power he exercised here. The power is legislative in nature, and therefore it is not within the purview of the President. Today the President’s motives may have been good, but tomorrow they may not be.

Concurring Opinion (Jackson):

There are three categories with regard to presidential power. First, the President is at his most powerful when acting under the express authority of Congress. Second, the President’s power is moderate when Congress is silent on an issue. Third, the President is at his weakest when he takes measures incompatible with the expressed or implied will of Congress, for then he can only rely on his constitutional powers. In this case, the President is in the third category, and no constitutional power allows the his order in this case.

Free government requires that the Executive be under the law, and that the law be made by parliamentary deliberations.

Concurring Opinion (Burton):

The division of power is such that Congress has the power to seize private property in emergencies, and the President does not have that power absent instruction from Congress. There were statutory alternatives for the President, which he did not follow. Rather, his order invaded the jurisdiction of Congress.

Concurring Opinion (Clark):

Chief Justice John Marshall in Little v. Barreme halted the President from seizing a vessel coming from France. No Court decision has held differently since then. Where Congress gives the President specific procedures to follow when dealing with a crisis like the steel worker strike, the President must follow those procedures.

When in extraordinary times, the President has the inherent authority to seize property to further a war effort. The President’s order merely maintained the status quo. Congress can respond by showing its approval or disapproval.


Youngstown Sheet & Tube Co. v. Sawyer is a significant case because it was a rebuke to a President who tried to federalize private steel mills outside of congressional authority. It is also a significant opinion because every Justice in the majority wrote a separate opinion, with slightly different reasoning to reach the same result.


The United States was involved in the Korean War in 1950, when President Truman chose not to impose price controls, as the federal government had done during World War II. Instead, the administration attempted to avoid inflationary pressures by the creation of a Wage Stabilization Board that sought to keep down the inflation of consumer prices and wages while it avoided labor disputes whenever possible. Those efforts failed, however, to avoid a threatened strike against all major steel producers by the United Steel Workers of America when the steel industry rejected the board's proposed wage increases unless they were allowed greater price increases than the government was prepared to approve.

The Truman administration believed a strike of any length would cause severe dislocations for defense contractors and the domestic economy as a whole. Unable to mediate the differences between the union and the industry, Truman decided to seize production facilities while he kept the current operating management of the companies in place to run the plants under federal direction.

Rather than seizing the plants, Truman might have invoked the national emergency provisions of the Taft–Hartley Act to prevent the union from striking. The administration rejected that option, however, both from a distaste for the Act, which had been passed over Truman's own veto five years earlier and because the administration saw the industry, rather than the union, as the cause of the crisis.

The administration also rejected use of the statutory procedure provided under Section 18 of the Selective Service Act, which might have permitted seizure of the industry's steel plants on the ground that compliance with the procedure was too time-consuming and that its outcome too uncertain. Truman chose not to go to Congress to obtain additional statutory authorization for a seizure of the steel industry for the same reasons. That left invocation of the President's inherent authority to act in response to a national emergency.

The steelworkers favored government seizure of the plants under any available theory to a Taft–Hartley injunction against it Arthur Goldberg, General Counsel for the Steelworkers and the Congress of Industrial Organizations (CIO), argued that the President had the inherent power to seize the plants as well as the statutory authority under the Selective Service Act and the Defense Production Act.

The steel industry, on the other hand, appears to have been taken by surprise, as it had apparently assumed, until shortly before Truman made his April 8, 1952 announcement, that he would take the less risky step of seeking a national emergency injunction under the Taft–Hartley Act instead. However, the industry was, as events showed, ready to act once Truman had announced the seizure by a national television and radio broadcast.

The steel companies reacted immediately by sending attorneys to the home of Judge Walter M. Bastian of the D.C. District Court within 30 minutes of the end of the President's speech to ask for the issuance of a temporary restraining order. Judge Bastian scheduled a hearing for 11:30 the next day to hear arguments on the motion.

Because hearings on emergency motions came before a randomly-chosen judge, the hearing the next day was before Judge Alexander Holtzoff, a Truman appointee. Judge Holtzoff denied the motion on the ground that the balance of equities favored the government.

The case was then assigned to Judge David Andrew Pine, who heard the steel companies' motions for a preliminary injunction. In its papers, the government stressed the ultimate constitutional issue of whether the President had the power to seize the mills. The steel companies appeared to be shying away from that issue by focusing on the equities and asking the Court merely to enjoin the federal government from entering a collective bargaining agreement with the Steelworkers.

Judge Pine indicated, however, that he was interested in the fundamental issue of Presidential power. Even so, the steel companies' attorneys continued to steer the discussion back to the equities and the President's statutory power under the Taft–Hartley Act. After the attorney for one of the smaller producers, Armco Steel Corporation, finally challenged the government's right to seize its property without Congressional authorization, Judge Pine then asked the attorney for the government to respond.

The Assistant Attorney General may have done more harm to the government's case than the steel companies had. Asked by Judge Pine for the source of the President's authority, he offered, "Sections 1, 2 and 3 of Article II of the Constitution and whatever inherent, implied or residual powers may flow therefrom." When the Court asked if the government took the position that "when the sovereign people adopted the Constitution . it limited the powers of the Congress and limited the powers of the judiciary, but it did not limit the powers of the Executive", he assured Judge Pine that to be the case. He was, however, unable to name any cases that had held that the President had that power.

His presentation committed the Truman administration to an absolutist version of presidential power that went beyond the administration's own position. Truman's supporters in Congress first distanced themselves from the argument and then spread the message that Truman disavowed it as well. Finally, Truman issued a statement responding to a constituent's letter in which he acknowledged in very general terms the limitations that the Constitution imposed on his power to respond in a national emergency.

Two days later, Judge Pine issued an injunction, barring the government from continuing to hold the steel plants that it had seized. [2] The Steelworkers began their strike within minutes of the announcement of the injunction. The government promptly appealed.

It first, however, formally requested for Judge Pine to stay his order and permit the government to resume control of the plants, ending the strike by the Steelworkers, but Judge Pine declined to do so. The government then applied for a stay in the D.C. Circuit. The Court, sitting en banc, granted the government's request for a stay by a 5–4 vote on April 30 and denied a motion for reconsideration by the steel companies that sought to amend the stay order to bar the government from increasing wages by the same margin the next day. The stay granted by the Court of Appeals was conditioned, however, on the government's filing of a petition for certiorari by May 2, 1952, and lasted only until the Supreme Court acted on that petition. [3]

The government filed its petition for certiorari on May 2, only to discover that the steel companies had already filed one of their own. The government renewed its request for a stay.

In the meantime, the White House convened a meeting between the Steelworkers and the major steel companies on May 3. The talks made rapid progress and might have produced an agreement, but the announcement that the Supreme Court had granted certiorari and issued a stay that allowed the government to maintain possession of the steel mills but, coupled with an order barring any increase in wages during the pendency of the appeal, had removed any incentive for the steel companies to reach agreement on a new contract with the union.

The Court set the matter for oral argument on May 12, 1952, less than ten days later. The government's brief opened with an attack on Judge Pine's application of equitable principles to the facts before him but devoted much of its 175 pages to the historical records of governmental seizure of private property in wartime from the Revolutionary War and the War of 1812 to Abraham Lincoln's Emancipation Proclamation and seizure of telegraph and railroad lines to the government's seizure of industrial properties in the First and the Second World Wars.

The steel industry's brief focused instead on the lack of statutory authority for this seizure and emphasized Congress's decision, when it had enacted the Taft–Hartley Act, to give the President the power to seek an injunction against strikes that might affect the national economy instead. It denied that the President had any power to seize private property without express legislative authorization and noted that Truman himself had asked for such legislative authority when the United Mine Workers of America went out on strike in 1950.

The Court set aside five hours for oral argument and allowed the Steelworkers and the railroad unions to speak as amicus curiae. Before an overflow crowd, John W. Davis argued for the steel companies that the President had no powers to make laws or, more particularly, to seize property without Congressional authorization. He explained away his own actions when he had defended the government's seizure of property while he had been US Solicitor General in Woodrow Wilson's administration and urged the justices to look beyond the transitory labor dispute before them to the constitutional principles at stake, closing with Thomas Jefferson's words, slightly misquoted: "In questions of power let no more be said of confidence in man but bind him down from mischief by the chains of the Constitution". Justice Frankfurter was the only Justice to interrupt Davis, with only one question, during his argument.

Solicitor General Philip B. Perlman had a rockier argument, as the Justices pressed him with questions on many of the points he made. Justice Jackson took pains to distinguish the facts concerning the seizure of the North American Aviation Company in 1941, which he had overseen as Attorney General at the time. Justice Douglas commented that if Perlman were correct as to the scope of the President's powers, there was no need for Congress. When Perlman attempted to close on a rousing note, reminding the Justices that it was during wartime, Justices Jackson and Frankfurter immediately contradicted him by noting that Congress had not declared war.

Goldberg, speaking for the Steelworkers, addressed whether the Taft–Hartley Act would have allowed for injunctive relief in those circumstances. The attorneys for the railroad brotherhoods, which were parties to a similar action coming up for review, addressed the President's inherent powers. Davis then gave his rebuttal by using only a few minutes of the hour that he had reserved.

Even despite the Court's evident lack of sympathy for the broad claims of inherent power made by the government, Truman and many other observers expected the Court to uphold his authority to act in the absence of express statutory authorization. Many commentators predicted that the Court would avoid the constitutional question, but others stressed the background that all of the Justices had in the New Deal and Fair Deal, when the powers of the Presidency had expanded greatly, and the past support of Justices such as Black, Reed, Frankfurter, and Douglas for the expansive application of the President's war powers.

As it turns out, most of those predictions were wrong. While Justice Burton harbored fears at one point that he might be the only Justice to vote against the government's position, he was encouraged by his private conversations with other Justices. In the end, the Court voted 6–3 to affirm the District Court's injunction to bar the President from seizing the steel plants.

Justice Black wrote for the majority opinion that was delivered exactly three weeks after the oral hearing on June 2. Black took, as he often did, an absolutist view by holding that the President had no power to act except in those cases that are expressly or implicitly authorized by the Constitution or an Act of Congress. Black wrote that the President's role in law-making is solely to recommend or veto laws. He cannot overtake Congress's role to create new laws. [4]

William O. Douglas Edit

Douglas took a similarly-absolutist approach to the President's assertion of inherent power to cope with a national emergency.

Felix Frankfurter Edit

Frankfurter avoided the sweeping condemnation of the administration's claims that Black and Douglas had offered. While he would not rule out the possibility that the President might acquire the power to take certain actions by a long course of conduct that was unobjected to by Congress, he found the statutory history persuasive evidence that Congress had not acquiesced, much less authorized, seizure of private property in the absence of a formal declaration of war.

Robert Jackson Edit

Jackson's opinion took a similarly flexible approach to the issue by eschewing any fixed boundaries between the powers of Congress and the President. He divided Presidential authority towards Congress into three categories (in descending order of legitimacy):

  • Cases in which the President was acting with express or implied authority from Congress
  • Cases in which Congress had thus far been silent, referred to as a "zone of twilight"
  • Cases in which the President was defying congressional orders (the "third category")

Jackson's framework would influence future Supreme Court cases on the president's powers and the relation between Congress and the presidency. [5] Supreme Court Justice Amy Coney Barrett elaborated during her Supreme Court nomination hearings in October 2020 the core content of Justice Jackson's concurring opinion:

In his concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Jackson, J., concurring), Justice Jackson laid out the “familiar tripartite scheme” that the Supreme Court has since called “the accepted framework for evaluating executive action”:

First, “[w]hen 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.” Youngstown, 343 U. S., at 635 (Jackson, J., concurring). Second, “[w]hen 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.” Id., at 637. In such a circumstance, Presidential authority can derive support from “congressional inertia, indifference or quiescence.” Ibid. Finally, “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb,” and the Court can sustain his actions “only by disabling the Congress from acting upon the subject.” Id., at 637–638.

Medellin v. Texas, 552 U.S. 491, 524–25 (2008) (quoting Youngstown, 343 U.S. at 635-38). [6]

Harold Hitz Burton Edit

Burton likewise concluded that Congress, not the President, had the power to act in emergencies by having the exclusive power to pass legislation. He relied on the language and legislative history of the Taft–Hartley Act to find that Congress had not authorized seizure of plants involved in a labor dispute without express legislative authorization. He hedged, however, on whether the President might, in more extreme circumstances, have the authority to act.

Tom Campbell Clark Edit

Justice Clark, who had been Truman's Attorney General for four years before Truman appointed him to the Court, rejected the absolute approach of Black and Douglas and concluded that the President had some inherent power to act in the case of grave and imperative national emergencies. Clark refused, however, to define the boundaries of that power in his view, the fact that Congress had provided in the Taft–Hartley Act, the Selective Service Act, and the Defense Production Act for procedures that the executive could have used ended the discussion by barring the President from relying on any inherent powers that he might otherwise have to choose a solution that was other than the ones that Congress had allowed.

Chief Justice Vinson dissented, joined by Justices Reed and Minton. His opinion dealt at some length with the history of presidential seizures. In the oral presentation of his opinion, he went out of his way to make a sarcastic reference to the contrary positions that Jackson and Clark had taken when they were the Attorneys General for Franklin Roosevelt and Truman, respectively. Rejecting the view that Congress had limited the executive's authority to seize property in this case by providing for different procedures in the legislation it had enacted, Vinson's opinion still appeared to recognize Congress's primacy in enacting legislation by justifying the seizure in this case as necessary to preserve the status quo so that Congress could act in the future. However, he mocked arguments based on the Constitution's provision that allowed the President to recommend legislation, rather than make it himself, as "the messenger-boy concept of the Office".

Within minutes of the Court's ruling, Truman ordered Commerce Secretary Charles Sawyer to return the steel mills to their owners he did so immediately. The Steelworkers went out on strike again shortly thereafter. The strike lasted for more than 50 days until the President threatened to use the somewhat-cumbersome procedures under the Selective Service Act to seize the mills.

Truman was stunned by the decision, which he continued to attack years later in his Memoirs. Justice Black was concerned enough that Truman would take the decision personally that he invited Truman and his fellow Justices to a party at his home. Truman, still smarting from the defeat, was mollified somewhat by Black's hospitality as he told Black, "Hugo, I don't much care for your law, but, by golly, this bourbon is good." [7]

The multiplicity of opinions made it difficult to determine just what the Court had decided as to whether and when the President had authority to act without Congressional authorization. That was largely the result of the fact that the administration had made a weak case. The evidence of an actual emergency was tenuous because of the substantial stockpiles of steel products in many sectors of the economy made the administration's case even weaker by overstating its position and offering incoherent arguments in the early phases of the litigation, which turned public opinion against it, and framed the public debate in the most simplistic terms.

The decision still has had a broad impact by representing a check on the most extreme claims of executive power at the time and the Court's assertion of its own role in intervening in political questions. The Court later did so in Baker v. Carr and Powell v. McCormack and also applied the Frankfurter-Jackson approach to analyzing Congress' legislative authorization of Presidential action in invalidating efforts by the Nixon administration to plant wiretaps without prior judicial approval, and it cited the case more generally in support of its decision to permit litigation against the president to proceed in Clinton v. Jones. The Supreme Court also relied on Youngstown in Medellín v. Texas (2008), in which President George W. Bush had pressured the state of Texas to review the murder conviction of a Mexican citizen who had tortured and raped two teenage girls in 1993 by arguing that a 2004 decision by the International Court of Justice (ICJ) required law enforcement authorities to tell the accused of his right under the Vienna Convention to notify Mexican diplomats of his detention. In a 6–3 decision, the Court held that ICJ rulings were not enforceable in the United States and that Bush's actions were unconstitutional. Quoting Youngstown Sheet & Tube Chief Justice John Roberts concluded, "The president's authority to act, as with the exercise of any governmental power, 'must stem either from an act of Congress or from the Constitution itself'." [8]

However, the Court drew back from some of the implications of its decision by refusing to rely on Youngstown as authority to review the failed challenges brought against the War in Vietnam and deferring to the executive branch's authority over foreign policy in cases such as Zemel v. Rusk. The Supreme Court also cited Youngstown in the 2006 decision Hamdan v. Rumsfeld.

April 8, 1952: Truman Orders Steel Mills Seized by the Government!

On April 8, 1952, President Truman ordered the Federal government to take control of the nation’s largest steel mills to prevent a strike that would interrupt steel production.

Digging Deeper

At the time, the US was involved in the Korean War, making Truman a “wartime” president. As such, Truman claimed his authority as Commander in Chief of the nation’s military allowed him to seize steel production for military purposes.

The case went to the US Supreme Court, and the court ruled against Truman, saying that the separation of powers part of the constitution had been violated.

The cracked angle to this court ruling was that every one of the justices had been appointed by either Truman himself or Franklin Roosevelt, his Democratic predecessor!

Harry S Truman (History and Headlines note: The “S” does not have a period after it because it does not stand for a middle name, it is just “S!”) had been a senator when Roosevelt tapped him as his running mate in the 1944 presidential election. Vice president Henry Wallace was considered by the powers behind the Democratic Party to be tooliberal and too allied with labor unions and was forced out allowing Truman to run with FDR and become vice president. Barely weeks into his 4 th term, FDR died and left Truman president, which apparently was okay with the American people because they elected Truman to a full term in 1948.

Lauren Bacall lounges on top of the piano while Vice President Truman plays for servicemen at the National Press Club Canteen in Washington, D.C. (February 10, 1945)

Things went downhill for Harry Truman in his second stint as president, with labor strife ranking near the top. After dealing somewhat successfully with the chaos after World War II, having created the Marshall Plan (assistance to the rebuilding of Europe), reorganizing and integrating the armed forces, one plan Truman failed to achieve was national health insurance. Yes, it goes back that far!

With the Soviet achievement of creating their own atomic bombs and the war in Korea not going particularly well, Truman’s popularity dived. Having fired America’s possibly most respected general, Douglas MacArthur, the prospect of an economy crippling steel strike that could well spawn even more strikes was overwhelming. Losing his bid to seize control of the steel mills was a major defeat for Truman, and in the 1952 presidential election it virtually guaranteed a Republican victory with Dwight Eisenhower getting elected.

As is often the case, “you don’t know what you’ve got til it’s gone” and Harry Truman is remembered more fondly now than during his last years in office. Respected for integrity, honesty, commitment to civil rights and keeping us out of nuclear war, Truman and his wife were honored by receiving the first Medicare cards in 1965.

An nuclear powered aircraft carrier was named for him in 1996. Sometimes criticized for using atomic bombs against Japan, Truman helped rebuild the world after World War II and prevent World War III. Perhaps his most famous legacy is the plaque on his desk that said “The Buck Stops Here.” History and Headlinesfacts: Truman refused to profit from his presidency by making endorsements or taking a corporate job. He had no presidential pension and his only pension was from the Army, $112.56 per month!

Question for students (and subscribers): Was Harry S Truman a great president? Youdecide, and tell us in the comments section below this article.

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Truman declared an emergency when he felt thwarted. Trump should know: It didn’t end well.

The president was frustrated. He was at odds with Congress. The regular workings of government didn’t let him do what he desperately wanted to do. So he went on national television to explain why a public policy impasse amounted to a national emergency allowing him to take extraordinary action.

“My fellow Americans, tonight our country faces a grave danger,” President Harry S. Truman said from the White House on the night of April 8, 1952. “These are not normal times. These are times of crisis.”

Truman went on to explain why he had just directed his secretary of commerce to seize control of the country’s steel mills. An ongoing dispute between the companies and their workers threatened to deny U.S. troops the weapons and tanks they needed to fight in the Korean conflict.

“I would not be faithful to my responsibilities as president if I did not use every effort to keep this from happening,” he argued.

Truman’s actions 67 years ago sparked a fiery constitutional dispute that rocketed to the Supreme Court. And now, as President Trump considers claiming similar emergency powers to build his long-promised border wall despite lawmakers’ refusal to fund it, scholars are looking back at Truman’s gambit and the legal precedent it created. Suddenly, Youngstown Sheet & Tube Co. v. Sawyer, a great test of presidential power, is in vogue again.

“Youngstown is the right place to look,” constitutional scholar Jeffrey Rosen said. “But a lot has happened since then.”

Like Truman, Trump used a White House address to make the case that the United States is facing a security crisis at its southern border. Then he followed up with a trip to Texas Thursday as the administration began looking for unused money in the Army Corps of Engineers budget for the $5.7 billion the president says is needed for the wall.

A Trump declaration of a national emergency could end a partial government shutdown now in its third week, but will likely lead to congressional and court challenges.

Truman’s conflict was much different. In 1950, North Korea had invaded South Korea, and Truman, declaring an emergency, had sent troops for what he hoped would be a short deployment to defend a U.S. ally. But the Chinese joined the North, and the conflict raged on.

At home, Truman struggled to keep inflation in check with a new law that allowed him wartime wage and price controls over strategic industries. With the price of steel held in check, the companies refused to meet workers' demands for a pay increase, and by the end of 1951, a strike was looming.

Truman wanted to avoid disrupting the steel supply while U.S. troops were fighting, and he did have a weapon to head off the strike. The 1947 Taft-Hartley Act gave the president authority, through court order, to suspend a strike for 80 days in cases in which national security was at risk. But Truman was a labor ally (Taft-Hartley had passed over his veto), and he didn’t want to anger his base.

“His pro-union sympathy prevented him taking the most legally safe route,” said Rosen, who is president and CEO of the National Constitution Center. “He was forced by the polarized politics of the time to make exceptional claims about executive authority.”

But first, Truman ordered the parties before a special Wage Stabilization Board to work out a deal. The board recommended a wage increase, but the steel companies refused unless they were allowed to hike steel prices. Truman effectively accused the industry of trying to profiteer during an emergency, and after further negotiations collapsed and the unions voted to walk out, he went on the air to announce his intent to take over the mills. He had signed Executive Order No. 10340 before going on camera.

“Our national security and our chances for peace depend on our defense production,” Truman said in that address. “Our defense production depends on steel.”

The steel companies reportedly had lawyers at the door of a federal judge within an hour of the broadcast. The arguments and appeals flew up the judicial chain until landing before the Supreme Court on May 12, 1952.

The government argued that even though the Constitution did not explicitly empower the president to seize private property, his role as commander in chief gave him authority to do so in times of national emergency. The steel companies argued that not only did Truman lack the power to take over their mills, but also that Congress had considered granting him such powers while debating the Taft-Hartley Act and deliberately rejected it. Instead, it had approved another mechanism to protect national security by giving the president authority to suspend a strike.

By a vote of 6 to 3, the justices sided with the steel companies. The “President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself,” Justice Hugo Black wrote in the majority opinion.

Rosen said the ruling instantly became “a canonical case of constitutional law.”

“Youngstown is accepted by both liberals and conservatives as the clearest guide to presidential power under the Constitution,” he said.

It was a sharp rebuke, and Truman immediately ordered the mills returned to company control, heading off a deep constitutional crisis. But it didn’t stop future presidents from testing the limits of their emergency powers. During a wildcat postal strike in 1970, President Richard M. Nixon declared a national emergency and deployed the National Guard to deliver the mail.

In 1976, Congress tried to rein in presidents with the National Emergencies Act, which placed various limits on how executives could declare emergencies and how long they would be in effect. Still, by renewing some declarations year after year, from one administration to another, presidents have managed to use the power dozens of times. Jimmy Carter’s emergency sanctions against Iran are still in effect, as are George W. Bush’s against Zimbabwe and Barack Obama’s against Syria, among about 30 others.

NSA Spying on Americans Is Illegal

What if it emerged that the President of the United States was flagrantly violating the Constitution and a law passed by the Congress to protect Americans against abuses by a super-secret spy agency? What if, instead of apologizing, he said, in essence, "I have the power to do that, because I say I can." That frightening scenario is exactly what we are now witnessing in the case of the warrantless NSA spying ordered by President Bush that was reported December 16, 2005 by the New York Times.

According to the Times, Bush signed a presidential order in 2002 allowing the National Security Agency to monitor without a warrant the international (and sometimes domestic) telephone calls and e-mail messages of hundreds or thousands of citizens and legal residents inside the United States. The program eventually came to include some purely internal controls - but no requirement that warrants be obtained from the Foreign Intelligence Surveillance Court as the 4th Amendment to the Constitution and the foreign intelligence surveillance laws require.

In other words, no independent review or judicial oversight.

That kind of surveillance is illegal. Period.

The day after this shocking abuse of power became public, President Bush admitted that he had authorized it, but argued that he had the authority to do so. But the law governing government eavesdropping on American citizens is well-established and crystal clear. President Bush's claim that he is not bound by that law is simply astounding. It is a Presidential power grab that poses a challenge in the deepest sense to the integrity of the American system of government - the separation of powers between the legislative and executive branches, the concept of checks and balances on executive power, the notion that the president is subject to the law like everyone else, and the general respect for the "rule of law" on which our democratic system depends.

The ACLU ran the following advertisement in the December 29, 2005 edition of The New York Times:

Flouting a long history

The tensions between the need for intelligence agencies to protect the nation and the danger that they would become a domestic spy agency have been explicitly and repeatedly fought out in American history. The National Security Act of 1947 contained a specific ban on intelligence operatives from operating domestically. In the 1970s, America learned about the extensive domestic political spying carried out by the FBI, the military, the CIA, and the NSA, and Congress passed new laws to prevent a repeat of those abuses. Surveillance laws were debated and modified under presidents Ford, Carter, Reagan, Bush Sr. and Clinton.

But, President Bush would sweep aside this entire body of democratically debated and painstakingly crafted restrictions on domestic surveillance by the executive branch with his extraordinary assertion that he can simply ignore this law because he is the Commander-in-Chief. In a December 17 radio address, for example, Bush asserted that the spying was "fully consistent with my constitutional responsibilities and authorities." But his constitutional duty is to "take care that the laws be faithfully executed" (Article II, Section 3) the law here clearly establishes well-defined procedures for eavesdropping on U.S. persons, and the fact is, Bush ordered that those procedures not be followed.

Government eavesdropping on Americans is an extremely serious matter the ability to intrude on the private realm is a tremendous power that can be used to monitor, embarass, control, disgrace, or ruin an individual. Because it is so invasive, the technology of wiretapping has been subject to carefully crafted statutory controls almost since it was invented. Ignoring those controls and wiretapping without a court order is a crime that carries a significant prison sentence (in fact, criminal violations of the wiretap statute were among the articles of impeachment that were drafted against President Nixon shortly before his resignation).

Clearly Illegal

Unfortunately, although the law in this matter is crystal clear, many Americans, faced with President Bush's bold assertions of "inherent" authority for these actions, will not know what to believe. There are only 5 points they need to understand:

Point #1: Electronic surveillance by the Government is strictly limited by the Constitution and Federal Law

The law on surveillance begins with the Fourth Amendment to the Constitution, which states clearly that Americans' privacy may not be invaded without a warrant based on probable cause.

United States Constitution
Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (emphasis added)

The US Supreme Court (US v. Katz 389 US 347) has made it clear that this core privacy protection does cover government eavesdropping. As a result, all electronic surveillance by the government in the United States is illegal, unless it falls under one of a small number of precise exceptions specifically carved out in the law.

United States Code Title 50, Chapter 36, Subchapter 1
Section 1809. Criminal sanctions

(a) Prohibited activities
A person is guilty of an offense if he intentionally-

(1) engages in electronic surveillance under color of law except as authorized by statute

In other words, the NSA can only spy where it is explicitly granted permission to do so by statute. Citizens concerned about surveillance do not have to answer the question, "what law restricts the NSA's spying?" Rather, the government is required to supply an answer to the question "what law permits the NSA to spy?"

Point #2: There are only three laws that permit the government to spy

There are only three laws that authorize any exceptions to the ban on electronic eavesdropping by the government. Congress has explicitly stated that these three laws are the exclusive means by which domestic electronic surveillance can be carried out (18 USC, Section 2511(2)(f)). They are:

  • Title III and ECPA. Title III and the Electronic Commnunications Privacy Act make up the statutes that govern criminal wiretaps in the United States.
  • FISA. The Foreign Intelligence Surveillance Act is the law that governs eavesdropping on agents of "foreign powers" within the United States, including suspected foreign terrorists.

Point #3: The Bush-NSA spying was not authorized by any of these laws

Title III and ECPA govern domestic criminal wiretaps and are not relevant to the NSA's spying. FISA is the law under which the NSA should have operated. It authorizes the government to conduct surveillance in certain situations without meeting all of the requirements of the Fourth Amendment that apply under criminal law, but requires that an independent Foreign Intelligence Surveillance Court oversee that surveillance to make sure that Americans who have no ties to foreign terrorist organizations or other "foreign powers" are not spied upon.

FISA was significantly loosened by the Patriot Act (which, for example, allowed it to be used for some criminal investigations), and parts of it now stand in clear violation of the Constitution's Fourth Amendment in the view of the ACLU and many others. However, even the post-Patriot Act version of FISA does not authorize the president to conduct warrantless eavesdropping on U.S. citizens or permanent legal residents in the U.S. without an order from the FISA Court. Yet it is that very court order requirement - imposed to protect innocent Americans - that the President has ignored.

In fact, one member of the FISA Court, Judge James Roberston, has apparently resigned from the court in protest of President Bush's secret authorization of this program. And the New York Times reported that the court's chief judge complained about the program when she was (belatedly) notified of it, and refused to allow information gathered under the program to be used as the basis for FISA wiretap orders.

Point #4: Congress's post-9/11 use-of-force resolution does not legitimize the Bush-NSA spying

Congress after 9/11 approved an Authorization to Use Military Force against those responsible for the attacks in order to authorize the president to conduct foreign military operations such as the invasion of Afghanistan.

But that resolution contains no language changing, overriding or repealing any laws passed by Congress. Congress does not repeal legislation through hints and innuendos, and the Authorization to Use Military Force does not authorize the president to violate the law against surveillance without a warrant any more than it authorizes him to carry out an armed robbery or seize control of Citibank in order to pay for operations against terrorists. In fact, when President Truman tried to seize control of steel mills that were gripped by strikes in 1952, the Supreme Court decisively rejected his authority to make such a seizure, even in the face of arguments that the strike would interfere with the supply of weapons and ammunition to American troops then under fire on the battlefields of the Korean War.

U.S. Supreme Court
YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952)

"The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. . . .

"Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. . . . 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 Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times."

The Supreme Court also rejected similar assertions of inherent executive power by Richard Nixon.

In fact, FISA contains explicit language describing the president's powers "during time of war" and provides that "the President, through the Attorney General, may authorize electronic surveillance without a court order under this title to acquire foreign intelligence information for a period not to exceed fifteen days following a declaration of war by the Congress." 50 U.S.C. § 1811 (emphasis added). So even if we accept the argument that the use-of-force resolution places us on a war footing, warrantless surveillance would have been legal for only 15 days after the resolution was passed on September 18, 2001.

Point #5: The need for quick action does not justify an end-run around the courts
The FISA law takes account of the need for emergency surveillance, and the need for quick action cannot be used as a rationale for going outside the law. FISA allows wiretapping without a court order in an emergency the court must simply be notified within 72 hours. The government is aware of this emergency power and has used it repeatedly. In addition, the Foreign Intelligence court is physically located in the Justice Department building, and the FISA law requires that at least two of the FISA judges reside in the Washington, DC area, for precisely the reason that rapid action is sometimes needed.

If President Bush still for some reason finds these provisions to be inadequate, he must take his case to Congress and ask for the law to be changed, not simply ignore it.

The president is bound by the rule of law

President Bush's claim that he has "inherent authority" as Commander-in-Chief to use our spy agencies to eavesdrop on Americans is astonishing, and such spying is clearly illegal. It must be halted immediately, and its origins must be thoroughly investigated by Congress and by a special counsel. (See letter from the ACLU to Attorney General Gonzales calling for a special counsel).

Given the extensive (indeed, excessive) surveillance powers that the government already possesses, the Administration's blatantly illegal use of warrantless surveillance raises an important question: why? One possibility, raised by the New York Times in a Dec. 24, 2005 story ("Spy Agency Mined Vast Data Trove, Officials Report"), is that the NSA is relying on assistance from several unnamed telecommunications companies to "trace and analyze large volumes of communications" and is "much larger than the White House has acknowledged."

This, as security expert Bruce Schneier has noted, suggests the Bush Administration has developed a "a whole new surveillance paradigm" - exploiting the NSA's well known capabilities to spy on individuals not one at a time, as FISA permits, but to run communications en masse through computers in the search for suspicious individuals or patterns. This "new paradigm" may well be connected to the NSA program sometimes known as "Echelon," which carries out just that kind of mass collection of communications (see This "wholesale" surveillance, as Schneier calls it, would constitute an illegal invasion of Americans' privacy on a scale that has never before been seen. (See Schneier, "NSA and Bush's Illegal Eavesdropping,"

According to the Times, several telecommunications companies provided the NSA with direct access to streams of communications over their networks. In other words, the NSA appears to have direct access to a large volume of Americans' communications - with not simply the assent, but the cooperation of the companies handling those communications.

We do not know from the report which companies are involved or precisely how or what the NSA can access. But this revelation raises questions about both the legal authority of the NSA to request and receive this data, and whether these companies may have violated either the Federal laws protecting these communications or their own stated privacy polices (which may, for example, provide that they will only turn over their customers' data with their consent or in response to a proper order).

Regardless of the scale of this spying, we are facing a historic moment: the President of the United States has claimed a sweeping wartime power to brush aside the clear limits on his power set by our Constitution and laws - a chilling assertion of presidential power that has not been seen since Richard Nixon.

Youngstown Sheet & Tube Co. v. Sawyer, 103 F. Supp. 569 (D.D.C. 1952)

Civil Actions Nos. 1550-52, 1635-52, 1539-52, 1647-52, 1732-52, 1700-52, 1549-52, 1581-52, 1624-52, 1625-52.

United States District Court District of Columbia.

*570 *571 John J. Wilson, John C. Gall, Washington, D. C., and J. E. Bennett, Youngstown, Ohio, for plaintiffs The Youngstown Sheet and Tube Co. and The Youngstown Metal Products Co.

Hogan & Hartson, by Edmund L. Jones and Howard Boyd, Washington, D. C., Gall, Lane & Howe, by John C. Gall, Washington, D. C., Jones, Day, Cockley & Reavis, by Luther Day and T. F. Patton, all of Cleveland, Ohio, for plaintiff Republic Steel Corporation.

James C. Peacock, Washington, D. C., Randolph W. Childs, and Edgar S. McKaig, Philadelphia, Pa., for plaintiff E. J. Lavino & Company.

Breed, Abbott & Morgan, New York City, by Joseph P. Tumulty, Jr., Washington, D. C., and Charles H. Tuttle, New York City, for plaintiff Armco Steel Corporation.

Cravath, Swaine & Moore, by Bruce Bromley, New York City, Wilmer & Broun, by E. Fontaine Broun, Washington, D. C., for Bethlehem Steel Co.

Jones, Day, Cockley & Reavis, Cleveland, Ohio, by Sturgis Warner, Washington, D. C., H. Parker Sharp, Reed, Smith, Shaw & McClay, by John C. Bane, Jr., and Walter T. McGough, all of Pittsburgh, Pa., for plaintiff Jones & Laughlin Steel Corporation.

Davis, Polk, Wardwell, Sunderland & Kiendl, by John W. Davis and Theodore Kiendl, New York City, Covington & Burling, by John Lord O'Brian and Howard C. Westwood, Washington, D. C., and Roger M. Blough, Pittsburgh, Pa., for plaintiff United States Steel Co.

Holmes Baldridge, Asst. Atty. Gen., of the United States, Marvin C. Taylor and Samuel D. Slade, Attorneys, Dept. of Justice, Washington, D. C., for defendant.

Judgment Affirmed 72 S. Ct. 863.

By Executive Order 10340, promulgated April 8, 1952, the President of the United States directed defendant to take possession of such plants of companies named in a list attached thereto as he deemed necessary in the interests of national defense, to *572 operate them or arrange for their operation, and to prescribe the terms and conditions of employment under which they should be operated. The plaintiffs are among those named in the list. In the recitals of the Executive Order, the President stated that a controversy had arisen between certain companies producing and fabricating steel and certain of their workers represented by the United Steel Workers of America, C.I.O., regarding terms and conditions of employment that the controversy had not been settled through the processes of collective bargaining or through the efforts of the Government, and a strike had been called for April 9, 1952 that a work stoppage would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression and that in order to insure the continued availability of steel it was necessary that the United States take possession of and operate the plants. By virtue of this Executive Order, defendant issued his Order No. I bearing the same date, stating that he deemed it necessary in the interest of national defense that possession be taken of the plants of the companies named in a list attached to his order, including the plants of plaintiffs, and that therefore he did take possession of the same, effective April 8, 1952. By the same order, he designated the president of each company as operating manager for the United States until further notice, and directed him to operate the plants of such company, subject to defendant's supervision. Telegraphic notification to this effect was given to the president of each company.

Plaintiffs thereupon brought these actions praying for declaratory judgments and injunctive relief, and there are now before me for decision motions for temporary injunctions seeking to restrain the defendant from taking any action under the authority of the Executive Order. These motions were combined for hearing and have been fully heard. Voluminous briefs have been filed and considered. At the hearing, plaintiff United States Steel limited its motion to a preservation of the status quo in respect of terms and conditions of employment.

Plaintiffs contend that defendant's acts under the Executive Order resulting in the seizure of their plants are without authority of law and constitute an illegal invasion of their property and rights, and that they are entitled to preliminary injunctions to restrain defendant from acting thereunder, particularly in the light of his threat to make changes in terms and conditions of employment. The basis of plaintiffs' contention is that there is no constitutional or statutory right in the President to issue the Executive Order, and there being none, defendant acting thereunder is acting without legal authority and his acts are illegal and contrary to law. Plaintiff Lavino has urged an additional reason, namely, that it has been improperly included among the plants seized.

Defendant contends in his Opposition to the motions that the breakdown of collective bargaining negotiations "created an immediately impending national emergency because interruption of steel manufacture for even a brief period would seriously endanger the well-being and safety of the United States in a critical situation" that the President has "inherent power in such a situation to take possession of the steel companies in the manner and to the extent which he did by his Executive Order" that the courts are without power to negate Executive action of the President by enjoining it that the courts will not interfere in advance of a full hearing on the merits except upon a showing that the damage to flow from a refusal of a temporary injunction is irreparable and outweighs the harm which would result from its issuance and that, since the right of the companies to recover all damages resulting from the taking has been recognized by Supreme Court decisions, there is no showing that the companies' legal remedy is inadequate or that their injury is irreparable.

Before proceeding to a discussion of the points of law involved herein, it should be said that the merits of the controversy between plaintiffs and the United *573 Steel Workers of America, C.I.O., are not before the Court for adjudication. Further, it should be noted that, although there is no law of the case rule in interlocutory orders in this jurisdiction, these cases are in a materially different posture than they were when Judge Holtzoff of this court refused a temporary restraining order in respect of several of them.

The fundamental issue is whether the seizure is or is not authorized by law. In my opinion, this issue should be decided first, and that I shall now do.

There is no express grant of power in the Constitution authorizing the President to direct this seizure. There is no grant of power from which it reasonably can be implied. There is no enactment of Congress authorizing it. On what, then, does defendant rely to sustain his acts? According to his brief, reiterated in oral argument, he relies upon the President's "broad residuum of power" sometimes referred to as "inherent" power under the Constitution, which, as I understand his counsel, is not to be confused with "implied" powers as that term is generally understood, namely, those which are reasonably appropriate to the exercise of a granted power. [1]

This contention requires a discussion of basic fundamental principles of constitutional government, which I have always understood are immutable, absent a change in the framework of the Constitution itself in the manner provided therein. The Government of the United States was created by the ratification of the Constitution. It derives its authority wholly from the powers granted to it by the Constitution, which is the only source of power authorizing action by any branch of Government. It is a government of limited, enumerated, and delegated powers. [2] The office of President of the United States is a branch of the Government, namely, that branch where the executive power is vested, and his powers are limited along with the powers of the two other great branches or departments of Government, namely, the legislative and the judicial. [3]

The President therefore must derive this broad "residuum of power" or "inherent" power from the Constitution itself, more particularly Article II thereof, which contains the grant of Executive power. That Article provides that the Executive power shall be vested in the President that he shall swear that he will faithfully execute the office of President and will to the best of his ability preserve, protect, and defend the Constitution of the United States, Sec. 1 that he shall be commander in chief of the army and navy of the United States, Sec. 2 and that he shall take care that the laws be faithfully executed, Sec. 3. These are the only sections which have any possible relevancy, and their mere enumeration shows the utter fallacy of defendant's claim. Neither singly nor in the aggregate do they grant the President, expressly or impliedly, as that term has hereinabove been defined, the "residuum of power" or "inherent" power which authorizes him, as defendant claims, to take such action as he may deem to be necessary, including seizure of plaintiffs' properties, whenever in his opinion an emergency exists requiring him to do so in the public interest. [4] Instead, in Congress *574 is lodged, within Constitutional limitations, the power to "provide for the common defense and general welfare", Art. I, Sec. 8.

The non-existence of this "inherent" power in the President has been recognized by eminent writers, and I cite in this connection the unequivocal language of the late Chief Justice Taft in his treatise entitled "Our Chief Magistrate and His Powers" (1916) wherein he says: "The true view of the Executive function is, as I conceive it, that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise. Such specific grant must be either in the Federal Constitution or in an Act of Congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest, and there is nothing in the Neagle case, [infra], and its definition of a law of the United States, or in other precedents, warranting such an inference. The grants of Executive power are necessarily in general terms in order not to embarrass the Executive within the field of action plainly marked for him, but his jurisdiction must be justified and vindicated by affirmative constitutional or statutory provision, or it does not exist."

I stand on that as a correct statement of the law. Defendant, realizing the untenable position in which that statement places him, attempts to weaken it by referring to statements made by Chief Justice Taft in Myers v. United States, 1923, 272 U.S. 52, 164, 47 S. Ct. 21, 41, 71 L. Ed. 160, wherein the Court sustained the President's authority to remove a postmaster appointed with the advice and consent of the Senate, but all that the Court held was that Article II granted the President "the executive power of the Government, i. e., the general administrative control of those executing the laws, including the power of appointment and removal of executive officers a conclusion confirmed by his obligation to take care that the laws be faithfully executed." I see in that decision nothing inconsistent with his previous pronouncement, in that he traces the authority to a specific power granted to the President but apparently fearing that someone might read certain obiter in the Myers case as contrary thereto, as defendant now does, the Supreme Court, in Humphrey's Executor v. United States, 1935, 295 U.S. 602, 626, 55 S. Ct. 869, 873, 79 L. Ed. 1611, in a unanimous opinion written by Mr. Justice Sutherland, removed any doubt with respect thereto, in the following language: "In the course of the opinion of the Court [in the Myers case], expressions occur which tend to sustain the Government's contention, but these are beyond the point involved and, therefore, do not come within the rule of stare decisis. Insofar as they are out of harmony with the views here set forth, these expressions are disapproved." And the view set forth in that opinion was that the President had no power to remove a member of the Federal Trade Commission by reason of the fact that he was a member of a quasi-legislative and quasi-judicial agency of government and not a purely executive officer as was Myers.

This would seem to dispose of defendant's contention that the Supreme Court differed from the hereinabove quoted views of Chief Justice Taft.

But defendant goes further and says there is no lack of judicial recognition of this "flexible executive power" to seize property without authority of a statute, and he cites, in support of this statement, the following cases: Roxford Knitting Co. v. Moore & Tierney, 2 Cir., 265 F. 177, 179, 11 A.L.R. 1415 but that case involved power exercised under a war statute. Employers Group of Motor Freight Carriers, Inc., v. National Labor Board, 79 U.S.App. D.C. 105, 107, 111, 143 F.2d 145, 147, 151 but that likewise involved a war statute, and no rights had been taken or threatened *575 to be taken which required review of the Board's order. Alpirn v. Huffman, D.C. Neb., 49 F. Supp. 337 but that likewise was under a statute authorizing the President during the national emergency to make requisitions. United States v. Pewee Coal Co., Inc., 341 U.S. 114, 71 S. Ct. 670, 95 L. Ed. 809, where there was a non-statutory seizure during World War II, and where compensation was allowed but he neglected to state that the legality of the seizure was not in issue in the case. Ct.Cl., 88 F. Supp. 426. These cases are therefore not apposite.

He next cites general language from the works of Alexander Hamilton, Vol. 4, page 438, but it is far from convincing when read in context. He thereafter cites In re Neagle, 135 U.S. 1, 10 S. Ct. 658, 34 L. Ed. 55, involving a habeas corpus proceeding brought by Neagle, a United States Marshal who killed David S. Terry in defense of Judge Stephen J. Field, but that case traced the source of power in the Executive to Article II, Sec. 3, requiring that he shall "take care that the laws be faithfully executed." He also cites the Prize Cases (The Amy Warwick) 2 Black 635, 17 L. Ed. 459, but that simply upheld the validity of President Lincoln's blockade of southern ports and was predicated upon the existence of a state of war, which is not claimed by defendant to exist. He also cites In re Debs, 158 U.S. 564, 15 S. Ct. 900, 39 L. Ed. 1092, concerning the dispatch of troops by President Cleveland in a labor dispute, for the purpose of enforcing the faithful execution of the laws of the United States and the protection of its property and removing obstructions to interstate commerce and the United States mail. There, again, the authority is traced to an express grant of power. These cases therefore do not support his contention, but refute it. He next refers to seizures by former presidents, some during war and several shortly preceding a war, without the authority of statute, but it is difficult to follow his argument that several prior acts apparently unauthorized by law, but never questioned in the courts, by repetition clothe a later unauthorized act with the cloak of legality. Apparently, according to his theory, several repetitive, unchallenged, illegal acts sanctify those committed thereafter. I disagree.

Defendant also contends that the Executive has an inherent power in the nature of eminent domain, which justifies his action. The power of eminent domain is a Congressional power. As stated by the Supreme Court in Hooe v. United States, 218 U.S. 322, 323, 336, 31 S. Ct. 85, 89, 54 L. Ed. 1055, "The taking of private property by an officer of the United States for public use, without being authorized, expressly or by necessary implication, to do so by some act of Congress, is not the act of the Government." The President therefore does not have the power of eminent domain, and the cases defendant cites do not disclose that he has anything in the nature of such power. Instead, they relate to the right of the Government to take and destroy property in connection with military operations. They set forth the stringent requirements for the exercise of this right and hold that, in some instances, there is an obligation, "upon the general principle of justice," to pay therefor. United States v. Pacific R. R., 120 U.S. 227, 7 S. Ct. 490, 496, 30 L. Ed. 634. These cases have no application to the issues here involved, and there is no merit to this point.

Defendant also quotes from the autobiography of President Theodore Roosevelt at pages 388-389, wherein he states that it was "not only his right but his duty [as President] to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws" and that he "acted for the public welfare * * * acted for the common well-being of all our people, whenever and in whatever manner was necessary, unless prevented by direct constitutional or legislative prohibition." That is defendant's only support for his position and for his "Stewardship" theory of the office of President, but with all due deference and respect for that great President of the United States, I am obliged to say that his statements do not comport with our recognized theory of government, but with a theory with which our government *576 of laws and not of men is constantly at war.

Enough has been said to show the utter and complete lack of authoritative support for defendant's position. That there may be no doubt as to what it is, he states it unequivocally when he says in his brief that he does "not perceive how Article II [of the Constitution] can be read * * * so as to limit the Presidential power to meet all emergencies," and he claims that the finding of the emergency is "not subject to judicial review." To my mind this spells a form of government alien to our Constitutional government of limited powers. I therefore find that the acts of defendant are illegal and without authority of law.

I shall next turn to defendant's claim that the courts are without power to negate executive action of the President. Defendant relies on the case of Mississippi v. Johnson, 4 Wall. 475, 71 U.S. 475, 18 L. Ed. 437, where the Supreme Court held that the Judiciary would not attempt to control the President. But in this case the President has not been sued. Charles Sawyer is the defendant, and the Supreme Court has held on many occasions that officers of the Executive Branch of the Government may be enjoined when their conduct is unauthorized by statute, exceeds the scope of constitutional authority, or is pursuant to unconstitutional enactment. Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S. Ct. 1457, 93 L. Ed. 1628 Land v. Dollar, 330 U.S. 731, 67 S. Ct. 1009, 91 L. Ed. 1209 Philadelphia Co. v. Stimson, 223 U.S. 605, 32 S. Ct. 340, 56 L. Ed. 570 United States v. Lee, 106 U.S. 196, 1 S. Ct. 240, 27 L. Ed. 171. There is no doubt, therefore, that the defendant is subject to an injunction, and the President not only is not a party but he is not an indispensable party to this action, as held in Williams v. Fanning, 332 U.S. 490, 68 S. Ct. 188, 92 L. Ed. 95 Hynes v. Grimes Packing Co., 337 U.S. 86, 69 S. Ct. 968, 93 L. Ed. 1231. I find this point no bar to plaintiff's claim to relief.

Taking up the next point, namely, that the courts will not interfere in advance of a full hearing on the merits [5] except upon a showing that the damage to flow from a refusal of a temporary injunction is irreparable and that such damage outweighs the harm which would result from its issuance, I first find as a fact, on the showing made and without burdening this opinion with a recital of facts, that the damages are irreparable. As to the necessity for weighing the respective injuries and balancing the equities, I am not sure that this conventional requirement for the issuance of a preliminary injunction is applicable to the case where the Court comes to a fixed conclusion, as I do, that defendant's acts are illegal. On such premise, why are the plaintiffs to be deprived of their property and required to suffer further irreparable damage until answers to the complaints are filed and the cases are at issue and are reached for hearing on the merits? Nothing that could be submitted at such trial on the facts would alter the legal conclusion I have reached. But assuming I am required to balance the equities, what is the situation in which I find this case? I am told by defendant of the disastrous effects on our defense efforts and economy if an injunction should be granted, because it would automatically be followed by a crippling strike and I am asked to weigh that damage against the incalculable and irreparable injuries to plaintiffs' multi-billion-dollar industry, if I should refuse to issue it. Assuming the disastrous effects on the defense effort envisioned by the defendant, that can come about only in case of a strike, and that presupposes that the United Steel Workers will strike notwithstanding the damage it will cause our defense effort. It also presupposes that the Labor Management Relations Act, 1947, 29 U.S.C.A. § 141 et seq., is inadequate when it has not yet been tried, and is the statute provided by Congress to meet just such an emergency. And it further presupposes, as defendant apparently does, that, this statute being inadequate, Congress will fail in its duties, under the *577 Constitution, to legislate immediately and appropriately to protect the nation from this threatened disaster. I am unwilling to indulge in that assumption, because I believe that our procedures under the Constitution can stand the stress and strains of an emergency today as they have in the past, and are adequate to meet the test of emergency and crisis.

Under these circumstances I am of the opinion that, weighing the injuries and taking these last-mentioned considerations into account, the balance is on the side of plaintiffs. Furthermore, if I consider the public interest from another viewpoint, I believe that the contemplated strike, if it came, with all its awful results, would be less injurious to the public than the injury which would flow from a timorous judicial recognition that there is some basis for this claim to unlimited and unrestrained Executive power, which would be implicit in a failure to grant the injunction. Such recognition would undermine public confidence in the very edifice of government as it is known under the Constitution.

The remaining claim of defendant is that plaintiffs have a plain, adequate, and complete remedy by a suit in the Court of Claims for damages, and therefore equity can not take cognizance of the case. The records show that monetary recovery would be inadequate but aside from that, the seizure being unauthorized by law, there could be no recovery under an implied contract, [6] and there can be none under the Federal Tort Claims Act. [7] This Act expressly provides that any claim based upon an act of an employee of the Government in the execution of a regulation, whether or not it be valid, is excepted from its terms. [8]

For the foregoing reasons I am of the opinion that preliminary injunctions restraining defendant from acting under the purported authority of Executive Order 10340 should be issued in favor of all plaintiffs except the United States Steel Company. That company verbally limited its motion to one for a preliminary injunction to restrain defendant from making any changes in the terms and conditions of employment. That I am unwilling to issue because of its stultifying implications. I could not consistently issue such an injunction which would contemplate a possible basis for the validity of defendant's acts, in view of my opinion hereinabove expressed, and moreover, a preliminary injunction should maintain the status quo as of the date of the wrongful acts complained of. If the United States Steel Company wishes to withdraw its verbal amendment and proceed on the basis of its original motion, leave will be granted for that purpose, and the same injunction issued to it as to the other plaintiffs.

Counsel will submit, with all due speed, orders in accordance herewith.

[*] EDITOR'S NOTE. On April 30, 1952, the United States Court of Appeals for the District of Columbia Circuit sitting in banc (Stephens, Chief Judge, and Edgerton, Clark, Wilbur K. Miller, Prettyman, Proctor, Bazelon, Fahey and Washington, Circuit Judges) entered an order directing that "the orders of the District Court granting the preliminary injunctions in these cases be, and they are hereby, stayed until 4:30 o'clock P. M., Daylight Saving Time, on Friday, May 2, 1952, and, if petitions for writs of certiorari in these cases have then been filed in the Supreme Court, then until the Supreme Court acts upon the petitions for writs of certiorari and, if the petitions for writs of certiorari be denied, then until the further order of this Court." Chief Judge Stephens and Circuit Judges Clark, Wilbur K. Miller and Proctor dissented.

On May 1, 1952, an application to attach conditions to the stay order of the Court of Appeals was denied by the court sitting in banc. Chief Judge Stephens and Circuit Judges Clark, Wilbur K. Miller, and Proctor, dissented.

On May 2, 1952, the preliminary injunctions granted by the District Court were stayed by the Court of Appeals sitting in banc as previously ordered. Chief Judge Stephens, and Circuit Judges Clark, Wilbur K. Miller, and Proctor, dissented. See Sawyer v. United States Steel Co., 1952, ___ F.2d ___.

[1] McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579.

[2] McCulloch v. Maryland, supra Dorr v. United States, 195 U.S. 138, 140, 24 S. Ct. 808, 49 L. Ed. 128 Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 477, 59 S. Ct. 595, 83 L. Ed. 927 Scott v. Sandford, 19 How. 393, 401, 60 U.S. 393, 15 L. Ed. 691.

[3] Ex parte Quirin, 317 U.S. 1, 25, 63 S. Ct. 2, 9, 87 L. Ed. 3 Ex parte Milligan, 4 Wall. 2, 136-137, 18 L. Ed. 281 Lichter v. United States, 334 U.S. 742, 779, 68 S. Ct. 1294, 92 L. Ed. 1694. Amendment IX to the Constitution provides that the enumeration therein, of certain rights, shall not be construed to deny or disparage others retained by the people, and Amendment X provides that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

[4] The Supplemental Memorandum of defendant, received April 29, 1952, after argument, states that he does not go beyond claiming "that the President possesses the constitutional power and duty to take action in a grave national emergency such as existed here." This statement relates his claim to the instant case, but does not change his general basic claim as above set forth, which he necessarily must assert to sustain his defense herein.