xt7msb3wtd0h_63 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/mets.xml https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2.dao.xml unknown 166 Cubic Feet 381 document boxes, seven textile items, three map folders, one artwork archival material 72m2 English University of Kentucky The physical rights to the materials in this collection are held by the University of Kentucky Special Collections Research Center. Contact the Special Collections Research Center for information regarding rights and use of this collection. Frederick Moore Vinson papers Economic stabilization. Elections -- United States -- Congresses. Judges -- Correspondence. Judges -- United States. Judicial opinions Judicial process -- United States Legislators -- Correspondence. New Deal, 1933-1939. World War, 1914-1918 -- Veterans. World War, 1939-1945. Youngstown Sheet and Tube Co. v. Sawyer - nos. 744-745 text Youngstown Sheet and Tube Co. v. Sawyer - nos. 744-745 2019 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2/Box_227/Folder_2_3/Multipage7839.pdf 1951 1951 1951 section false xt7msb3wtd0h_63 xt7msb3wtd0h SUPREME COURT OF THE UNITED STATES

Nos. 744 AND 745.—OCTOBER TERM, 1951.

The Youngstown Sheet and Tube
Company, et al., Petitioners,
744 2). On Writs of Certiorari
Charles Sawyer. to the United States
Court of Appeals
Charles Sawyer, Petitioner, for the District of
745 7). Columbia Circuit.

The Youngstown Sheet and Tube
Company, et al.

[June 2, 1952.]

MR. JUSTICE BLACK delivered the opinion of the Court.

We are asked to decide whether the President was act—
ing within his constitutional power when he issued an
order directing the Secretary of Commerce to take pos—
session 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 Constitu-
tion 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 con-
stitutional 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 follow—
ing series of events:

In the latter part of 1951, a dispute arose between the
steel companies and their employees over terms and con-

2 YOUNGSTOWN CO. v. SAWYER.

ditions that should be included in new collective bargain-
ing agreements. Long—continued conferences failed to re—
solve the dispute. On December 18, 1951, the employees’
representative. United Steelworkers of America, C. I. 0.,
gave notice of an intention to strike when the existing
bargaining agreements expired on December 31. The
Federal Mediation and Conciliation Service then in—
tervened 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 1 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 nation—wide strike called to begin at
12:01 a. in. 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 na—
tional defense and that governmental seizure of the steel
mills was necessary in order to assure the continued avail—
ability 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 at the end of this opinion as an appendix. The
order directed the Secretary of Commerce to take pos—
session of most of the steel mills and keep them run—
ning. The Secretary immediately issued his own pos—
sessory orders, calling upon the presidents of the var~
ious seized companies to serve as operating managers
for the United States. They were directed to carry on
their activities in accordance with regulations and direc-
tions 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

'This llonrd was established under Executive Order 10233, lti
Fed. Reg. 3503.

YOUNGSTOWN CO. v. SAWYER. 3

a second message. Cong. Rec, April 21, 1952, p. 4192.
Congress has taken no action.

Obeying the Secretary’s orders under protest, the com—
panies 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 constitu—
tional provisions. The District Court was asked to declare
the orders of the President and the Secretary invalid and
to issue preliminary and permanent injunctions restrain-
ing their enforcement. Opposing the motion for pre-
liminary injunction, the United States asserted that a
strike disrupting steel production for even a brief period
would so endanger the well—being and safety of the Nation
that the President had “inherent power” to do what he
had done—power ”supported by the Constitution, by his—
torical precedent, and by court decisions.” The Govern-
ment 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 plant . . . 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. — F.
2d —-—. 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.

Two crucial issues have developed: First. Should ﬁnal
determination of the constitutional validity of the Presi—
dent‘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?

YOUNGSTOWN CO. v. SAWYER.

It is urged that there were non—constitutional grounds
upon which the District Court could have denied the pre-
liminary injunction and thus have followed the cus—
tomary 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 injunc-
tive relief should have been denied because (a) seizure of
the companies’ properties did not inﬂict irreparable dam—
ages. and (b) there were available legal remedies adequate
to afford compensation for any possible damages which
they might suffer. While separately argued by the Gov—
ernment, 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 ulti-
mately 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 c. 9., H006 v. United States, 218 U. S. 322, 335—336;
United States v. North American Co, 253 U. S. 330, 333.
But see Larson. v. Domestic &‘ Foreign. (7077)., 337 U. S.
682, 701402. Moreover, seizure and governmental op-
eration 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. View-
ing the case this way, and in the light of the facts pre-
sented, 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.

YOUNGSTOWN CO. v. SAWYER.

II.

The President's power, if any, to issue the order must
stem either from an act of Congress or from the Constitu—
tion 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 Govern-
ment 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.2 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 Gov-
ernment refers to the seizure provisions of one of these
statutes (§ 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.3 Ap-
parently it was thought that the technique of seizure,
like that of compulsory arbitration, would interfere with
the process of collective bargaining.4 Consequently, the
plan Congress adopted in that Act did not provide for

2The Selective Service Act of 1948, 62 Stat. 60-1, 625—627, 50
U. S. C. App. (Supp. IV) §468; the Defense Production Act of
1950, Tit. II, 64 Stat. 798, as amended, 65 Stat. 138.

393 Cong. Rec. 3637—3645.

4 93 Cong. Rec. 3835—3836.

6 YOUNGSTOWN CO. v. SAWY ER.

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 tem-
porary injunctions were authorized to provide cooling—off
periods. All this failing, the unions were left free to
strike if the majority of the employees, by secret ballot,
expressed a desire to do so.5

It is clear that if the President had authority to issue
the order he did. it must be found in some provisions of
the Constitution. And it is not claimed that express
constitutional language grants this power to the Presi—
dent. 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 executec ” ; and that he “shall
he 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 mil—
itary 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 pri-
vate property in order to keep labor disputes from stop—
ping production. This is a job for the Nation’s law—
makers, not for its military authorities.

“Labor Management Relations Act, 1947, 61 Stat. 136, 152—156.
120 IT. S. (I. (Supp. IV) §§ HI, lTl—lSO.

YOUNGSTOWN CO. v. SAWYER. 7

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 Con-
stitution, 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
law—making 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 Govern-
ment of the United States, or in any Department or
Ofﬁcer thereof.”

The President’s order does not direct that a congres—
sional policy be executed in a manner prescribed by Con-
gress—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 rea-
sons 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 govern-
ment ofﬁcial to promulgate additional rules and regula—
tions 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 dis—
putes, and ﬁxing wages and working conditions in certain

8 YOUNGSTOWN CO. v. SAWYER.

fields of our economy. The Constitution does not subject
this law-making power of Congress to presidential or mil—
itary supervision or control.

It is said that other Presidents without congressional
authority have taken possession of private business en—
terprises 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 Constitu—
tion “in the Government of the ['nited 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 hold—
ing that this seizure order cannot stand.

The judgment of the District Court is

Aﬁrmed.

MR. JUSTICE FRANKFURTER.

Although the considerations relevant to the legal en—
forcement of the principle of separation of powers seem
to me more complicated and ﬂexible than may appear
from what MR. JUSTICE BLACK has written, I join his
opinion because I thoroughly agree with the application
of the principle to the circumstances of this case. Even
though such differences in attitude toward this principle
may be merely differences in emphasis and nuance, they
can hardly be reﬂected by a single opinion for the Court.
Individual expression of views in reaching a common re—
sult is therefore important.

APPENDIX.
April 8, 1952.
EXECUTIVE ORDER

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 the exist—
ence of a national emergency which requires that the mili-
tary, 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 na~
tional 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 over—
seas 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 de—
fense 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 com—
panies in the United States producing and fabricating
steel and the elements thereof and certain of their Work—

10 YOUNGSTOWN CO. v. SAWYER.

ers represented by the United Steelworkers of America.
(‘10, regarding terms and conditions of employment; and

Whereas the controversy has not been settled through
the processes of collective bargaining or through the ef—
forts 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, and a strike has been called for 12:01 A. M., April
.0. 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

YOUNGSTOWN CO. v. SAWYER. 11

Commerce to the fullest extent possible in carrying out
the purposes of this order.

3. The Secretary of Commerce shall determine and pre-
scribe 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 Com-
merce 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 oper-

12 YOUNGSTOWN CO. 7;. SAWYER.

ation is assured, he shall return the possession and control
thereof at the time possession was taken under this order.

7. The Secretary of Commerce is authorized to pre-
scribe and issue such regulations and orders not incon-
sistent 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 func-
tions under this order as he may deem desirable.

Harry S. Truman.
The White House, April 8, 1952.

SUPREME COURT OF THE UNITED STATES

Nos. 744 AND 745.—OCTOBER TERM, 1951.

The Youngstown Sheet and Tube
Company, et al., Petitioners,
744 1). On Writs of Certiorari

Charles Sawyer. to the United States

Court of Appeals

Charles Sawyer, Petitioner, for the District of
745 1). Columbia Circuit.

The Youngstown Sheet and Tube
Company, et al.

[June 2, 1952.]

MR. JUSTICE FRANKFURTER, concurring.

Before the cares of the White House were his own,
President Harding is reported to have said that govern-
ment after all is a very simple thing. He must have
said that, if he said it, as a ﬂeeting inhabitant of fairy-
land. The opposite is the truth. A constitutional de-
mocracy like ours is perhaps the most difﬁcult of man’s
social arrangements to manage successfully. Our scheme
of society is more dependent than any other form of gov—
ernment on knowledge and wisdom and self-discipline
for the achievement of its aims. For our democracy
implies the reign of reason on the most extensive scale.
The Founders of this Nation were not imbued with
the modern cynicism that the only thing that history
teaches is that it teaches nothing. They acted on the
conviction that the experience of man sheds a good deal
of light on his nature. It sheds a good deal of light not
merely on the need for effective power, if a society is to be
at once cohesive and civilized, but also on the need for
limitations on the power of governors over the governed.

YOUNGSTOWN CO. v. SAWYER.

To that end they rested the structure of our central
government on the system of checks and balances. For
them the doctrine of separation of powers was not
mere theory; it was a felt necessity. Not so long ago
it was fashionable to ﬁnd our system of checks and bal—
ances obstructive to effective government. It was easy
to ridicule that system as outmoded—too easy. The
experience through which the world has passed in our
own day has made vivid the realization that the Framers
of our Constitution were not inexperienced doctrinaires.
These long-headed statesmen had no illusion that our
people enjoyed biological or psychological or sociological
immunities from the hazards of concentrated power. It
is absurd to see a dictator in a representative product of
the sturdy democratic traditions of the Mississippi Val-
ley. The accretion of dangerous power does not come in
a day. It does come, however slowly, from the generative
force of unchecked disregard of the restrictions that fence
in even the most disinterested assertion of authority.

The Framers, however, did not make the judiciary the
overseer of our government. They were familiar with
the revisory functions entrusted to judges in a few of
the States and refused to lodge such powers in this Court.
Judicial power can be exercised only as to matters that
were the traditional concern of the courts at VVest—
Ininster, and only if they arise in ways that to the expert
feel of lawyers constitute “Cases” or “Controversies.”
Even as to questions that were the staple of judicial
business, it is not for the courts to pass upon them unless
they are indispensably involved in a conventional litiga—
tion. And then, only to the extent that they are so
involved. Rigorous adherence to the narrow scope of
the judicial function is especially demanded in contro-
versies that arouse appeals to the Constitution. The
attitude with which this Court must approach its duty
when confronted with such issues is precisely the opposite

YOUNGSTOWN CO. v. SAWYER. 3

of that normally manifested by the general public. So—
called constitutional questions seem to exercise a mes-
meric inﬂuence over the popular mind. This eagerness
to settle—preferably forever—a speciﬁc problem on the
basis of the broadest possible constitutional pronounce-
ments may not unfairly be called one of our minor
national traits. An English observer of our scene has
acutely described it: “At the ﬁrst sound of a new argu-
ment over the United States Constitution and its in-
terpretation the hearts of Americans leap with a fearful
joy. The blood stirs powerfully in their veins and a new
lustre brightens their eyes. Like King Harry’s men be-
fore Harﬂeur, they stand like greyhounds in the slips,
straining upon the start.” The Economist, May 10,
1952, p. 370.

The path of duty for this Court, it bears repetition,
lies in the opposite direction. Due regard for the im—
plications of the distribution of powers in our Constitu—
tion and for the nature of the judicial process as the ulti—
mate authority in interpreting the Constitution, has not
only conﬁned the Court within the narrow domain of
appropriate adjudication. It has also led to “a series
of rules under which it has avoided passing upon a large
part of all the constitutional questions pressed upon it for
decision.” Brandeis, J ., in Ashwander v. Tennessee Val-
ley Authority, 297 U. S. 288, 341, 346. A basic rule is the
duty of the Court not to pass on a constitutional issue at
all, however narrowly it may be conﬁned, if the case may,
as a matter of intellectual honesty, be decided without
even considering delicate problems of power under the
Constitution. It ought to be, but apparently is not a
matter of common understanding that clashes between
different branches of the government should be avoided
if a legal ground of less explosive potentialities is properly
available. Constitutional adjudications are apt by ex—
posing differences to exacerbate them.

YOUNGSTOWN CO. v. SAWYER.

So here our ﬁrst inquiry must be not into the pow-
ers of the President, but into the powers of a District
Judge to issue a temporary injunction in the circum-
stances of this case. Familiar as that remedy is, it re—
mains an extraordinary remedy. To start with a con-
sideration of the relation between the President’s powers
and those of Congress—a most delicate matter that has
occupied the thoughts of statesmen and judges since the
Nation was founded and will continue to occupy their
thoughts as long as our democracy lasts—is to start at
the wrong end. A plaintiff is not entitled to an injunc—
tion if money damages would fairly compensate him for
any wrong he may have suffered. The same considera-
tions by which the Steelworkers, in their brief amicus,
demonstrate, from the seizure here in controversy, con—
sequences that cannot be translated into dollars and
cents, preclude a holding that only compensable damage
for the plaintiffs is involved. Again, a court of equity
ought not to isSue an injunction, even though a plaintiff
otherwise makes out a case for it, if the plaintiff’s right
to an injunction is overborne by a commanding public
interest against it. One need not resort to a large epi-
grammatic generalization that the evils of industrial dis-
location are to be preferred to allowing illegality to go
unchecked. To deny inquiry into the President’s power
in a case like this, because of the damage to the public
interest to be feared from upsetting its exercise by him,
would in effect always preclude inquiry into challenged
power, which presumably only avowed great public in-
terest brings into action. And so, with the utmost un-
willingness, with every desire to avoid judicial inquiry
into the powers and duties of the other two branches of
the government, I cannot escape consideration of the
legality of Executive Order No. 10340.

YOUNGSTOWN CO. v. SAWYER. 5

The pole—star for constitutional adjudications is John
Marshall’s greatest judicial utterance that “it is a con-
stitution we are expounding.” JVIcCulloch v. Illaryland,
4 Wheat. 316, 407. That requires both a spacious View
in applying an instrument of government “made for an
undeﬁned and expanding future,” Hurtado V. California,
110 U. S. 516, 530, and as narrow a delimitation of the
constitutional issues as the circumstances permit. Not
the least characteristic of great statesmanship which the
Framers manifested was the extent to which they did not
attempt to bind the future. It is no less incumbent
upon this Court to avoid putting fetters upon the future
by needless pronouncements today.

Marshall’s admonition that “it is a constitution we
are expounding” is especially relevant when the Court
is required to give legal sanctions to an underlying prin-
ciple of the Constitution—that of separation of pow—
ers. “The great ordinances of the Constitution do not
establish and divide ﬁelds of black and white.” Holmes,
J ., dissenting in Springer v. Philippine Islands, 277 U. S.
189, 209.

The issue before us can be met, and therefore should
be, without attempting to deﬁne the President’s pow-
ers comprehensively. I shall not attempt to delineate
what belongs to him by virtue of his ofﬁce beyond the
power even of Congress to contract; what authority be-
longs to him until Congress acts; what kind of problems
may be dealt with either by the Congress or by the Presi-
dent or by both, cf. La Abra Silver Mine 00. v. United
States, 175 U. S. 423; what power must be exercised by
the Congress and cannot be delegated to the President.
It is as unproﬁtable to lumptogether in an undiscrim-
inating hotch-potch past presidential actions claimed to
be derived from occupancy of the ofﬁce, as it is to con-
jure up hypothetical future cases. The judiciary may,

6 YOUNGSTOWN CO. v. SAWYER.

as this case proves, have to intervene in determining
where authority lies as between the democratic forces in
our scheme of government. But in doing so we should be
wary and humble. Such is the teaching of this Court’s
role in the history of the country.

It is in this mood and with this perspective that the
issue before the Court must be approached. We must
therefore put to one side consideration of what powers
the President would have had if there had been no legis—
lation whatever bearing on the authority asserted by
the seizure, or if the seizure had been only for a short,
explicitly temporary period, to be determined automati—
cally unless Congressional approval were given. These
and other questions, like or unlike, are not now here. I
would exceed my authority were I to say anything about
them.

The question before the Court comes in this setting.
Congress has frequently—at least 16 times since 1916—
speciﬁcally provided for executive seizure of production,
transportation, communications, or storage facilities. In
every case it has qualiﬁed this grant of power with lim-
itations and safeguards. This body of enactments—
summarized in tabular form in Appendix I—demon—
strates that Congress deemed seizure so drastic a power
as to require that it be carefully circumscribed Whenever
the President was vested with this extraordinary author-
ity. The power to seize has uniformly been given only
for a limited period or for a deﬁned emergency, or has
been repealed after a short period. Its exercise has been
restricted to particular circumstances such as “time of
war or when war is imminent,” the needs of “public
safety” or of “national security or defense,” or “urgent
and impending need.” The period of governmental