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VINSON, C. J., dissenting.

and we cannot, when called upon by the citizens of the country, refuse our opinion, however it may differ from that of very great authorities." 15

MR. CHIEF JUSTICE VINSON, with whom MR. JUSTICE REED and MR. JUSTICE MINTON join, dissenting.

The President of the United States directed the Secretary of Commerce to take temporary possession of the Nation's steel mills during the existing emergency because "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." The District Court ordered the mills returned to their private owners on the ground that the President's action was beyond his powers under the Constitution.

This Court affirms. Some members of the Court are of the view that the President is without power to act in time of crisis in the absence of express statutory authorization. Other members of the Court affirm on the basis of their reading of certain statutes. Because we cannot agree that affirmance is proper on any ground, and because of the transcending importance of the questions. presented not only in this critical litigation but also to the powers of the President and of future Presidents to act in time of crisis, we are compelled to register this dissent.

I.

In passing upon the question of Presidential powers in this case, we must first consider the context in which those powers were exercised.

15 The Orono, 18 Fed. Cas. No. 10,585 (Cir. Ct. D. Mass. 1812).

J

JACKSON, J., concurring.

343 U.S.

The Solicitor General, acknowledging that Congress has never authorized the seizure here, says practice of prior Presidents has authorized it. He seeks color of legality from claimed executive precedents, chief of which is President Roosevelt's seizure on June 9, 1941, of the California plant of the North American Aviation Company. Its superficial similarities with the present case, upon analysis, yield to distinctions so decisive that it

that we should have statutory authority to take over any such vessels as our needs may require . . . ." 87 Cong. Rec. 3072 (77th Cong., 1st Sess.); The Public Papers and Addresses of Franklin D. Roosevelt, 1941 (Rosenman), 94. The necessary statutory authority was shortly forthcoming. 55 Stat. 242.

In his first inaugural address President Roosevelt pointed out two courses to obtain legislative remedies, one being to enact measures he was prepared to recommend, the other to enact measures "the Congress may build out of its experience and wisdom." He continued, “But in the event that the Congress shall fail to take one of these two courses, and in the event that the national emergency is still critical, I shall not evade the clear course of duty that will then confront me. I shall ask the Congress for the one remaining instrument to meet the crisis-broad Executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe." (Emphasis supplied.) The Public Papers and Addresses of Franklin D. Roosevelt, 1933 (Rosenman), 15.

On March 6, 1933, President Roosevelt proclaimed the Bank Holiday. The Proclamation did not invoke constitutional powers of the Executive but expressly and solely relied upon the Act of Congress of October 6, 1917, 40 Stat. 411, §5 (b), as amended. He relied steadily on legislation to empower him to deal with economic emergency. The Public Papers and Addresses of Franklin D. Roosevelt, 1933 (Rosenman), 24.

It is interesting to note Holdsworth's comment on the powers of legislation by proclamation when in the hands of the Tudors. "The extent to which they could be legally used was never finally settled in this century, because the Tudors made so tactful a use of their powers that no demand for the settlement of this question was raised." 4 Holdsworth, History of English Law, 104.

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cannot be regarded as even a precedent, much less an authority for the present seizure."

The appeal, however, that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, although

17 The North American Aviation Company was under direct and binding contracts to supply defense items to the Government. No such contracts are claimed to exist here. Seizure of plants which refused to comply with Government orders had been expressly authorized by Congress in § 9 of the Selective Service Act of 1940, 54 Stat. 885, 892, so that the seizure of the North American plant was entirely consistent with congressional policy. The company might have objected on technical grounds to the seizure, but it was taken over with acquiescence, amounting to all but consent, of the owners who had admitted that the situation was beyond their control. The strike involved in the North American case was in violation of the union's collective agreement and the national labor leaders approved the seizure to end the strike. It was described as in the nature of an insurrection, a Communist-led political strike against the Government's lend-lease policy. Here we have only a loyal, lawful, but regrettable economic disagreement between management and labor. The North American plant contained government-owned machinery, material and goods in the process of production to which workmen were forcibly denied access by picketing strikers. Here no Government property is protected by the seizure. See New York Times of June 10, 1941, pp. 1, 14 and 16, for substantially accurate account of the proceedings and the conditions of violence at the North American plant.

The North American seizure was regarded as an execution of congressional policy. I do not regard it as a precedent for this, but, even if I did, I should not bind present judicial judgment by earlier partisan advocacy.

Statements from a letter by the Attorney General to the Chairman of the Senate Committee on Labor and Public Welfare, dated February 2, 1949, with reference to pending labor legislation, while not cited by any of the parties here, are sometimes quoted as being in support of the "inherent" powers of the President. The proposed bill contained a mandatory provision that during certain investigations the disputants in a labor dispute should continue operations. under the terms and conditions of employment existing prior to the

JACKSON, J., concurring.

343 U.S.

it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle. emergencies. Aside from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it, they made no express provision for exercise of extraordinary authority because of a crisis.19 I do not think we rightfully may so amend their work, and, if we could, I am not convinced it would be wise to do so, although many modern nations have forthrightly recognized that war and economic crises may upset the normal balance between liberty and au

18

beginning of the dispute. It made no provision as to how continuance should be enforced and specified no penalty for disobedience. The Attorney General advised that in appropriate circumstances the United States would have access to the courts to protect the national health, safety and welfare. This was the rule laid down by this Court in Texas & N. O. R. Co. v. Brotherhood of Railway Clerks, 281 U. S. 548. The Attorney General observed:

"However, with regard to the question of the power of the Government under Title III, I might point out that the inherent power of the President to deal with emergencies that affect the health, safety and welfare of the entire Nation is exceedingly great. See Opinion of Attorney General Murphy of October 4, 1939 (39 Op. A. G. 344, 347); United States v. United Mine Workers of America, 330 U. S. 258 (1947)." See Hearings before the Senate Committee on Labor and Public Welfare on S. 249, 81st Cong., 1st Sess. 263.

Regardless of the general reference to "inherent powers," the citations were instances of congressional authorization. I do not suppose it is open to doubt that power to see that the laws are faithfully executed was ample basis for the specific advice given by the Attorney General in this letter.

18 U. S. Const., Art. I, § 9, cl. 2.

19 I exclude, as in a very limited category by itself, the establishment of martial law. Cf. Ex parte Milligan, 4 Wall. 2; Duncan v. Kahanamoku, 327 U. S. 304.

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thority. Their experience with emergency powers may not be irrelevant to the argument here that we should say that the Executive, of his own volition, can invest himself with undefined emergency powers.

Germany, after the First World War, framed the Weimar Constitution, designed to secure her liberties in the Western tradition. However, the President of the Republic, without concurrence of the Reichstag, was empowered temporarily to suspend any or all individual rights if public safety and order were seriously disturbed or endangered. This proved a temptation to every government, whatever its shade of opinion, and in 13 years suspension of rights was invoked on more than 250 occasions. Finally, Hitler persuaded President Von Hindenberg to suspend all such rights, and they were never restored.20

The French Republic provided for a very different kind of emergency government known as the "state of siege." It differed from the German emergency dictatorship, particularly in that emergency powers could not be assumed at will by the Executive but could only be granted as a parliamentary measure. And it did not, as in Germany, result in a suspension or abrogation of law but was a legal institution governed by special legal rules and terminable by parliamentary authority."

Great Britain also has fought both World Wars under a sort of temporary dictatorship created by legislation." As Parliament is not bound by written constitutional limitations, it established a crisis government simply by

20 1 Nazi Conspiracy and Aggression 126-127; Rossiter, Constitutional Dictatorship, 33-61; Brecht, Prelude to Silence, 138.

21 Rossiter, Constitutional Dictatorship, 117-129.

22 Defence of the Realm Act, 1914, 4 & 5 Geo. V, c. 29, as amended, c. 63; Emergency Powers (Defence) Act, 1939, 2 & 3 Geo. VI, c. 62; Rossiter, Constitutional Dictatorship, 135–184.