Article II, Section 2, Clause 3:
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Presidential Action in the Domain of Congress: The Steel Seizure Case
To avert a nationwide strike of steel workers that he believed would jeopardize the national defense, President Truman, on April 8, 1952, issued an executive order directing the Secretary of Commerce to seize and operate most of the steel industry of the country.1 The order cited no specific statutory authorization but invoked generally the powers vested in the President by the Constitution and laws of the United States. The Secretary issued the appropriate orders to steel executives. The President promptly reported his action to Congress, conceding Congress’s power to supersede his order, but Congress did not do so, either then or a few days later when the President sent up a special message.2 The steel companies sued, a federal district court enjoined the seizure,3 and the Supreme Court brought the case up prior to decision by the court of appeals.4 Six-to-three, the Court affirmed the district court order, each member of the majority, however, contributing an individual opinion as well as joining in some degree the opinion of the Court by Justice Black.5 The holding and the multiple opinions represent a setback for the adherents of
inherent executive powers,6 but they raise difficult conceptual and practical problems with regard to presidential powers.
The Doctrine of the Opinion of the Court
The chief points urged in the Black opinion are the following: There was no statute that expressly or impliedly authorized the President to take possession of the property involved. On the contrary, in its consideration of the Taft-Hartley Act in 1947, Congress refused to authorize governmental seizures of property as a method of preventing work stoppages and settling labor disputes. Authority to issue such an order in the circumstances of the case was not deducible from the aggregate of the President’s executive powers under Article II of the Constitution; nor was the order maintainable as an exercise of the President’s powers as Commander in Chief of the Armed Forces. The power sought to be exercised was the lawmaking power, which the Constitution vests in the Congress alone. Even if it were true that other Presidents have taken possession of private business enterprises without congressional authority in order to settle labor disputes, Congress was not thereby divested of its exclusive constitutional authority to make the laws necessary and proper to carry out all powers vested by the Constitution
in the Government of the United States, or any Department or Officer thereof.7
The Doctrine Considered
The pivotal proposition of the opinion of the Court is that, inasmuch as Congress could have directed the seizure of the steel mills, the President had no power to do so without prior congressional authorization. To this reasoning, not only the dissenters but Justice Clark, in a concurring opinion, would not concur, and in fact they stated baldly that the reasoning was contradicted by precedent, both judicial and presidential and congressional practice. One of the earliest pronouncements on presidential power in this area was that of Chief Justice Marshall in Little v. Barreme.8 There, a United States vessel under orders from the President had seized a United States merchant ship bound from a French port allegedly carrying contraband material; Congress had, however, provided for seizure only of such vessels bound to French ports.9 The Chief Justice wrote:
It is by no means clear, that the President of the United States, whose high duty it is to ‘take care that the laws be faithfully executed,’ and who is commander-in-chief of the armies and navies of the United States, might not, without any special authority for that purpose, in the then existing state of things, have empowered the officers commanding the armed vessels of the United States, to seize and send into port for adjudication, American vessels which were forfeited, by being engaged in this illicit commerce. But when it is observed, that [an act of Congress] . . . gives a special authority to seize on the high seas, and limits that authority to the seizure of vessels bound, or sailing to, a French port, the legislature seems to have prescribed that the manner in which this law shall be carried into execution, was to exclude a seizure of any vessel not bound to a French port.10
Other examples are at hand. In 1799, President Adams, in order to execute the extradition provisions of the Jay Treaty, issued a warrant for the arrest of one Robbins, and the action was challenged in Congress on the ground that no statutory authority existed by which the President could act; John Marshall defended the action in the House of Representatives, the practice continued, and it was not until 1848 that Congress enacted a statute governing this subject.11 Again, in 1793, President Washington issued a neutrality proclamation; the following year, Congress enacted the first neutrality statute and since then proclamations of neutrality have been based on acts of Congress.12 Repeatedly, acts of the President have been in areas in which Congress could act as well.13
Justice Frankfurter’s concurring opinion14 listed 18 statutory authorizations for seizures of industrial property, all but one of which were enacted between 1916 and 1951, and summaries of seizures of industrial plants and facilities by Presidents without definite statutory warrant, eight of which occurred during World War I—justified in presidential orders as being done pursuant to
the Constitution and laws generally—and eleven of which occurred in World War II.15 The first such seizure in this period had been justified by then Attorney General Jackson as being based upon an
aggregate of presidential powers stemming from his duty to see the laws faithfully executed, his commander-in-chiefship, and his general executive powers.16 Chief Justice Vinson’s dissent dwelt liberally upon this opinion,17 which reliance drew a disclaimer from Justice Jackson, concurring.18
The dissent was also fortunate in that the steel companies’ chief counsel, John W. Davis, a former Solicitor General of the United States, had filed a brief in 1914 in defense of Presidential action, which had taken precisely the view that the dissent now presented.19
Ours, the brief read,
is a self-sufficient Government within its sphere. (Ex parte Siebold,
Therefore it follows that in ways short of making laws or disobeying them, the Executive may be under a grave constitutional duty to act for the national protection in situations not covered by the acts of Congress, and in which, even, it may not be said that his action is the direct expression of any particular one of the independent powers which are granted to him specifically by the Constitution. Instances wherein the President has felt and fulfilled such a duty have not been rare in our history, though, being for the public benefit and approved by all, his acts have seldom been challenged in the courts.20
Power Denied by Congress
Justice Black’s opinion of the Court in Youngstown Sheet and Tube Co. v. Sawyer notes that Congress had refused to give the President seizure authority and had authorized other actions, which had not been taken.21 This statement led him to conclude merely that, since the power claimed did not stem from Congress, it had to be found in the Constitution. But four of the concurring Justices made considerably more of the fact that Congress had considered seizure and had refused to authorize it. Justice Frankfurter stated:
We must . . . put to one side consideration of what powers the President would have had if there had been no legislation whatever bearing on the authority asserted by the seizure, or if the seizure had been only for a short, explicitly temporary period, to be terminated automatically unless Congressional approval were given.22 He then reviewed the proceedings of Congress that attended the enactment of the Taft-Hartley Act and concluded that
Congress has expressed its will to withhold this power [of seizure] from the President as though it had said so in so many words.23
Justice Jackson attempted a schematic representation of presidential powers, which
are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. Thus, there are essentially three possibilities.
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possess in his own right plus all that Congress can delegate. . . . 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. . . . 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject.24 The seizure in question was placed in the third category
because Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure. Therefore,
we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress.25 That holding was not possible.
Justice Burton, referring to the Taft-Hartley Act, said that
the most significant feature of that Act is its omission of authority to seize, citing debate on the measure to show that the omission was a conscious decision.26 Justice Clark relied on Little v. Barreme,27 in that Congress had laid down specific procedures for the President to follow, which he had declined to follow.28
Despite the opinion of the Court, therefore, it seems clear that four of the six Justices in the majority were more moved by the fact that the President had acted in a manner considered and rejected by Congress in a field in which Congress was empowered to establish the rules—rules the President is to see faithfully executed—than with the fact that the President’s action was a form of
lawmaking in a field committed to the province of Congress. The opinion of the Court, therefore, and its doctrinal implications must be considered with care, as it is doubtful that the opinion lays down a constitutional rule. Whatever the implications of the opinions of the individual Justices for the doctrine of
inherent presidential powers—and they are significant—the implications for the area here under consideration are cloudy and have remained so from the time of the decision.29