06-02-1952 Youngstown Sheet & Tube Co v Sawyer 343 US 579 72

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

KeyCite Yellow Flag - Negative Treatment Declined to Extend by BANDES V. HARLOW & JONES, INC., 2nd Cir.(N.Y.), July 19, 1988

72 S.Ct. 863 Supreme Court of the United States YOUNGSTOWN SHEET & TUBE CO. et al. v. SAWYER. SAWYER v. YOUNGSTOWN SHEET & TUBE CO. et al.

Affirmed. Mr. Chief Justice Vinson, Mr. Justice Reed and Mr. Justice Minton dissented.

West Headnotes (12)

[1]

92Constitutional Law 92VIEnforcement of Constitutional Provisions 92VI(C)Determination of Constitutional Questions 92VI(C)2Necessity of Determination 92k975In general (Formerly 92k46(1))

Nos. 744, 745. | Argued May 12 and May 13, 1952. | Decided June 2, 1952.

The Youngstown Sheet & Tube Company and other steel companies named in a list attached to Executive Order No. 10340, promulgated April 8, 1952, directing seizure of the plants of such companies, brought actions against Charles Sawyer, Secretary of Commerce, praying for declaratory judgments and injunctive relief. The United States District Court for the District of Columbia, David A. Pine, J., 103 F.Supp. 569, granted plaintiffs’ motions for temporary injunctions. Certiorari was granted by the United States Supreme Court after the Court of Appeals for the District of Columbia Circuit had issued stay orders. Mr. Justice Black delivered the opinion of the court holding that the seizure order was not within the constitutional power of the President.

Constitutional Law Necessity of Determination

Courts will decline to reach and decide constitutional questions until compelled to do so. 2 Cases that cite this headnote

[2]

Injunction Government Property, Facilities, Funds, and Revenue 212Injunction 212IVParticular Subjects of Relief 212IV(F)Government Property, Facilities, Funds, and Revenue 212k1261In general (Formerly 212k147)

In view of prior cases in United States Supreme Court casting doubt on right to recover in Court of Claims on account of properties unlawfully taken by government

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1

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

officials for public use, the difficulty of measuring present and future damages likely to result from seizure of going businesses, and other facts presented in proceedings on steel companies’ motions to temporarily enjoin Secretary of Commerce from seizing their plants, district court did not err in refusing to delay decision as to constitutional validity of seizure orders.

War and National Emergency Labor disputes 402War and National Emergency 402IIMeasures and Acts in Exercise of Federal Power 402II(B)Particular Measures, Orders, and Regulations 402II(B)1Mobilization for War 402k1111Manufacture and Procurement of War Materials 402k1114Seizure or control of private business (Formerly 402k45) 402War and National Emergency 402IIMeasures and Acts in Exercise of Federal Power 402II(B)Particular Measures, Orders, and Regulations 402II(B)8Labor and Wage Control 402k1319Labor disputes (Formerly 402k45)

78 Cases that cite this headnote

[3]

The job of keeping labor disputes from stopping production is one for the nation’s lawmakers rather than one for its military authorities; and therefore, notwithstanding expanding concept of “theater of war”, Executive Order directing Secretary of Commerce to take possession of plants of steel companies involved in labor dispute could not be sustained as exercise of President’s military power as commander in chief of armed forces. U.S.C.A.Const. art. 1, §§ 1, 8, art. 2.

United States Exercise of supreme executive authority 393United States 393IGovernment in General 393k28Exercise of supreme executive authority

Contrary to contention that President had “inherent” power to be exercised in public interest, the president’s power to issue Executive Order directing Secretary of Commerce to take possession of plants of steel companies involved in labor dispute would have to stem either from an act of Congress or from the Constitution itself.

43 Cases that cite this headnote

191 Cases that cite this headnote [5]

[4]

War and National Emergency Seizure or control of private business

Constitutional Law Encroachment on legislature 92Constitutional Law 92XXSeparation of Powers 92XX(D)Executive Powers and Functions 92k2621Encroachment on legislature

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2

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153... (Formerly 92k77)

was not merely a direction that Congressional policy be executed in manner prescribed by Congress, but amounted to a direction that presidential policy be executed in a manner prescribed by the President; and therefore, such order could not be sustained as an exercise of the President’s power to see that laws are faithfully executed. U.S.C.A.Const. art. 2, § 3.

The Congress rather than the President, is vested by the Constitution with lawmaking function, and President is restricted to recommending laws thought wise, vetoing of laws considered bad, and seeing to the faithful execution of laws properly enacted. U.S.C.A.Const. art. 1, §§ 1, 8, art. 2. 24 Cases that cite this headnote

[6]

Constitutional Law Encroachment on legislature United States Exercise of supreme executive authority

107 Cases that cite this headnote

[7]

148Eminent Domain 148INature, Extent, and Delegation of Power 148k5Power of United States

92Constitutional Law 92XXSeparation of Powers 92XX(D)Executive Powers and Functions 92k2621Encroachment on legislature (Formerly 92k77) 393United States 393IGovernment in General 393k28Exercise of supreme executive authority

Where Executive Order directing Secretary of Commerce to seize steel mills set forth in its preamble, like statute, reasons why President believed certain policies should be adopted, and such policies were proclaimed as rules of conduct to be followed, and, again like statute, authorized government officials to promulgate additional rules and regulations consistent with policy proclaimed and needed to carry that policy into execution, such order

Eminent Domain Power of United States

Congress can authorize taking of private property for public use. U.S.C.A.Const. art. 1, §§ 1, 8. 9 Cases that cite this headnote

[8]

Labor and Employment Power to regulate Labor and Employment Power to regulate Labor and Employment Constitutional and Statutory Provisions Labor and Employment Power to Regulate 231HLabor and Employment

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3

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153... 231HXIILabor Relations 231HXII(A)In General 231Hk961Power to regulate (Formerly 232Ak5 Labor Relations) 231HLabor and Employment 231HXIILabor Relations 231HXII(F)Disputes and Concerted Activities 231HXII(F)1In General 231Hk1341Power to regulate (Formerly 232Ak283 Labor Relations) 231HLabor and Employment 231HXIIIWages and Hours 231HXIII(A)In General 231Hk2171Constitutional and Statutory Provisions 231Hk2172In general (Formerly 232Ak5 Labor Relations) 231HLabor and Employment 231HXIIIWages and Hours 231HXIII(B)Minimum Wages and Overtime Pay 231HXIII(B)1In General 231Hk2211Power to Regulate 231Hk2212In general (Formerly 232Ak1082.1, 232Ak1082 Labor Relations)

Congress can make laws regulating relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions in certain fields of our economy. U.S.C.A.Const. art. 1, §§ 1, 8.

1. 11 Cases that cite this headnote

[10] Constitutional Law Encroachment on legislature 92Constitutional Law 92XXSeparation of Powers 92XX(D)Executive Powers and Functions 92k2621Encroachment on legislature (Formerly 92k77)

Previous action by Presidents in seizing, without Congressional authority, possession of private business enterprises in order to settle labor disputes did not deprive Congress of its exclusive constitutional authority to make laws necessary and proper to carry out powers vested by Constitution “in the government of the United States, or any department or officer thereof.” U.S.C.A.Const. art. 1, § 8. 70 Cases that cite this headnote

[9]

Constitutional Law Encroachment on legislature 92Constitutional Law 92XXSeparation of Powers 92XX(D)Executive Powers and Functions 92k2621Encroachment on legislature (Formerly 92k77)

Under Constitution, lawmaking power of Congress is not subject to presidential or military supervision or control. U.S.C.A.Const. art. 1, §

[11] Constitutional Law Nature and scope in general 92Constitutional Law 92XXSeparation of Powers 92XX(B)Legislative Powers and Functions 92XX(B)1In General 92k2340Nature and scope in general (Formerly 92k77)

The lawmaking power entrusted to Congress by the founders of the

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4

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

Nation must be exercised by the Congress alone in both good and bad times. U.S.C.A.Const. art. 1, s 8.

Mr. Solicitor General Philip B. Perlman, Washington, D.C., for Sawyer, Secretary of Commerce.

12 Cases that cite this headnote

*582 Mr. Arthur J. Goldberg, Washington, D.C., for United Steelworkers of America, CIO, as amicus curiae, by special leave of Court.

[12] Constitutional Law Nature and scope in general United States Exercise of supreme executive authority 92Constitutional Law 92XXSeparation of Powers 92XX(D)Executive Powers and Functions 92k2620Nature and scope in general (Formerly 92k76) 393United States 393IGovernment in General 393k28Exercise of supreme executive authority (Formerly 92k76)

The Executive Order directing the Secretary of Commerce to seize the plants of steel companies involved in labor dispute was invalid as exceeding constitutional power of President. Executive Orders April 21, 1951, No. 10233, 50 U.S.C.A. Appendix, § 2071 note, and April 8, 1952, No. 10340. 19 Cases that cite this headnote

Attorneys and Law Firms **864 *581 Mr. John W. Davis, New York City, for Youngstown Sheet & Tube Co. et al.

Messrs. Clifford D. O’Brien, Chicago, Ill., and Harold C. Heiss, Cleveland, Ohio, for Brotherhood of Locomotive Firemen and Enginemen, et al., as amici curiae, by special leave of Court. Opinion Mr. Justice BLACK delivered the opinion of the Court.

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

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

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, C.I.O., 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 *583 Board1 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 **865 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, 72 S.Ct. 868. 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 operationg 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 *584 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 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 plant * * * and from acting under the purported authority of Executive Order No. 10340.” 103 F.Supp.

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

569. On the same day the Court of Appeals stayed the District Court’s injunction. 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, 72 S.Ct. 775. 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. [1] [2] 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, *585 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 **866 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, 335—336, 31 S.Ct. 85, 89, 54 L.Ed. 1055; United States v. North American Transportation & Trading Co., 253 U.S. 330, 333, 40 S.Ct. 518, 519, 64 L.Ed. 935. But see Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 701—702, 69 S.Ct. 1457, 1467, 93 L.Ed. 1628. 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. [3] 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

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

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 *586 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 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.3 Apparently 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 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.5

*587 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 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 **867 executed”; and that he “shall be Commander in Chief of the Army and Navy of the United States.” [4] 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. [5] 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

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

lawmaking process to the recommending of laws he tninks 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 *588 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.” [6] [7] [8] [9] 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 makes 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 did not subject this law-making power of

Congress to presidential supervision or control.

or

military

[10] 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 *589 “in the Government of the United States, or in any Department or Officer thereof.” [11] [12] The Founders of this Nation entrusted the law making 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. The judgment of the District Court is affirmed. Affirmed. Mr. Justice FRANKFURTER. Although the considerations relevant to the legal enforcement of the principle of separation of powers seem to me more complicated and flexible than any appear from **868 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

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

for the Court. Individual expression of views in reaching a common result is therefore important.

APPENDIX.

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 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 *590 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 Steelworkers 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, 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 *591 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 is order to assure the continued availability of steel and steel products during the existing emergency, it is necessary that

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

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 (List of specific Steel Companies and Plants omitted), 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. **869 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 *592 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

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

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 been desirable. Harry S. Truman. The White House, April 8, 1952. *634 Mr. Justice JACKSON, concurring in the judgment and opinion of the Court. That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety. While an interval of detached reflection may temper teachings of that experience, they probably are a more realistic influence on my views than the conventional materials of judicial decision which seem unduly to accentuate doctrine and legal fiction. But as we approach the question of presidential power, we half overcome mental hazards by recognizing them. The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power’s validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon

policies—such as wages or stabilization— and lose sight of enduring consequences upon the balanced power structure of our Republic. A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or **870 would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from *635 respected sources on each side of any question. They largely cancel each other.1 And court decisions are indecisive because of the judicial practice of dealing with the largest questions in the most narrow way. The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat oversimplified grouping of practical situations in which a President may doubt, or others may

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity. 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 possesses in his own right plus all that Congress can delegate.2 In these circumstances, *636 and in these only, may he be said (for what it may **871 be worth), to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government *637 as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it. 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. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.3 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 be disabling *638 the Congress from acting upon the subject.4 Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. Into which of these classifications does this executive seizure of the steel industry fit? It is eliminated from the first by admission, for it is conceded that no congressional authorization exists for this seizure. That takes away also the support of the many precedents and declarations which **872 were made in relation, and must be confined, to this category.5 *639 Can it then be defended under flexible tests available to the second category? It seems clearly eliminated from that class because Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure. In cases where the purpose is to supply needs of the Government itself, two courses are provided: one, seizure of a plant which fails to comply with obligatory orders placed by the Government,6 another, condemnation of facilities, including temporary use under the power of eminent domain.7 The third is applicable where it is the general economy of the country that is to be protected rather than exclusive governmental interests.8 None of these were invoked. In choosing a different and inconsistent way of his own, the President cannot claim that it is necessitated or invited by failure of

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Congress to legislate upon the occasions, grounds and methods for seizure of industrial properties. *640 This leaves the current seizure to be justified only by the severe tests under the third grouping, where it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject. In short, we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress. Thus, this Court’s first review of such seizures occurs under circumstances which leave Presidential power most vulnerable to attack and in the least favorable of possible constitutional postures. I did not suppose, and I am not persuaded, that history leaves it open to question, at least in the courts, that the executive branch, like the Federal Government as a whole, possesses only delegated powers. The purpose of the Constitution was not only to grant power, but to keep it from getting out of hand. However, because the President does not enjoy unmentioned powers does not mean that the mentioned ones should be narrowed by a niggardly construction. Some clauses could be made almost unworkable, as well as immutable, **873 by refusal to indulge some latitude of interpretation for changing times. I have heretofore, and do now, give to the enumerated powers the scope and elasticity afforded by what seem to be reasonable practical implications instead of the rigidity dictated by a doctrinaire textualism. The Solicitor General seeks the power of seizure in three clauses of the Executive Article, the first reading, “The executive

Power shall be vested in a President of the United States of America.” Lest I be thought to exaggerate, I quote the interpretation which his brief puts upon it: “In our view, this clause constitutes a grant of all the executive powers of which the Government is capable.” If that be true, it is difficult to see why the *641 forefathers bothered to add several specific items, including some trifling ones.9 The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image. Continental European examples were no more appealing. And if we seek instruction from our own times, we can match it only from the executive powers in those governments we disparagingly describe as totalitarian. I cannot accept the view that this clause is a grant in bulk of all conceivable executive power but regard it as an allocation to the presidential office of the generic powers thereafter stated. The clause on which the Government next relies is that “The President shall be Commander in Chief of the Army and Navy of the United States * * *.” These cryptic words have given rise to some of the most persistent controversies in our constitutional history. Of course, they imply something more than an empty title. But just what authority goes with the name has plagued Presidential advisers who would not waive or narrow it by nonassertion yet cannot say where it begins or ends. It undoubtedly puts the Nation’s armed forces under Presidential

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command. Hence, this loose appellation is sometimes advanced as support for any Presidential action, internal or external, involving use of force, the *642 idea being that it vests power to do anything, anywhere, that can be done with an army or navy. That seems to be the logic of an argument tendered at our bar—that the President having, on his own responsibility, sent American troops abroad derives from that act ‘affirmative power’ to seize the means of producing a supply of steel for them. To quote, “Perhaps the most forceful illustrations of the scope of Presidential power in this connection is the fact that American troops in Korea, whose safety and effectiveness are so directly involved here, were sent to the field by an exercise of the President’s constitutional powers.” Thus, it is said he has invested himself with ‘war powers.’ I cannot foresee all that it might entail if the Court should indorse this argument. Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture.10 *643 I do not, however, **874 find it necessary or appropriate to consider the legal status of the Korean enterprise to discountenance argument based on it.

Assuming that we are in a war de facto, whether it is or is not a war de jure, does that empower the Commander-in-Chief to seize industries he thinks necessary to supply our army? The Constitution expressly places in Congress power ‘to raise and support Armies’ and “to provide and maintain a Navy.” (Emphasis supplied.) This certainly lays upon Congress primary responsibility for supplying the armed forces. Congress alone controls the raising of revenues and their appropriation and may determine in what manner and by what means they shall be spent for military and naval procurement. I suppose no one would doubt that Congress can take over war supply as a Government enterprise. On the other hand, if Congress sess fit to rely on free private enterprise collectively bargaining with free labor for support and maintenance of our armed forces can the Executive because of lawful disagreements incidental to that process, seize the facility for operation upon Government-imposed terms? There are indications that the Constitution did not contemplate that the title Commander-in-Chief of the *644 Army and Navy will constitute him also Commanderin-Chief of the country, its industries and its inhabitants. He has no monopoly of ‘war powers,’ whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for the “Government and Regulation of land and naval forces,” by which it may to some unknown extent impinge upon even command functions. That military powers of the Commander-inChief were not to supersede representative

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government of internal affairs seems obvious from the Constitution and from elementary American history. Time out of mind, and even now in many parts of the world, a military commander can seize private housing to shelter his troops. Not so, however, in the United States, for the Third Amendment says, “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” Thus, even in war time, his seizure of needed military housing must be authorized by Congress. It also was expressly left to Congress to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions * * *.”11 Such a limitation on the command power, written at a time when the militia rather than a standing army was contemplated as the **875 military weapon of the Republic, underscores the Constitution’s policy that Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy. Congress, fulfilling that function, has authorized the President to use the army to enforce certain civil rights.12 On the other hand, Congress has forbidden him to use the army for the purpose *645 of executing general laws except when expressly authorized by the Constitution or by Act of Congress.13 While broad claims under this rubric often have been made, advice to the President in specific matters usually has carried overtones that powers, even under this head, are measured by the command functions usual to the topmost officer of the army and navy. Even then, heed has been taken of any efforts of Congress to negative his authority.14

We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commanderin-Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence. His command power is not such an absolute as might be implied from that office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose law and policy-making breanch *646 is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role. What the power of command may include I do not try to envision, but I think it is not a military prerogative, without support of law, to seize persons or property because they are important or even essential for the military and naval establishment. The third clause in which the Solicitor General finds seizure powers is that “he shall take Care that the Laws be faithfully executed * * *.”15 That authority must be matched against words of the Fifth Amendment that “No person shall be * * * deprived of life, liberty, or property, without due process of law * * *.” One gives a governmental authority that reaches so far as

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there is law, the other gives a private right that authority shall go no farther. These signify about all there is of the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules. The Solicitor General lastly grounds support of the seizure upon nebulous, inherent powers never expressly granted but said to have accrued to the office from the customs and claims of preceding administrations. The plea is for a resulting power to deal **876 with a crisis or an emergency according to the necessities of the case, the unarticulated assumption being that necessity knows no law.

was himself. But prudence has counseled that actual reliance on such nebulous claims stop short of provoking a judicial test.16 *648 The Solicitor General, acknowledging that Congress has never authorized the **877 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 of 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 *649 cannot be regarded as even a precedent, much less an authority for the present seizure.17

Loose and irresponsible use of adjectives colors all non-legal and much legal discussion of presidential powers. *647 ‘Inherent’ powers, ‘implied’ powers, ‘incidental’ powers, ‘plenary’ powers, ‘war’ powers and ‘emergency’ powers are used, often interchangeably and without fixed or ascertainable meanings. The vagueness and generality of the clauses that set forth presidential powers afford a plausible basis for pressures within and without an administration for presidential action beyond that supported by those whose responsibility it is to defend his actions in court. The claim of inherent and unrestricted presidential powers has long been a persuasive dialectical weapon in political controversy. While it is not surprising that counsel should grasp support from such unadjudicated claims of power, a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate

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 *650 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 **878 the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it,18 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 authority. *651 Their experience with

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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 distrubed 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.21 Great Britain also has fought both World Wars under a sort of temporary dictatorship created by legislation.22 As Parliament is not bound by written constitutional limitations, it established a crisis government simply by *652 delegation to its Ministers of a larger measure than usual of its own unlimited power, which is exercised under its supervision by Ministers whom it may

dismiss. This has been called the “highwater mark in the voluntary surrender of liberty,” but, as Churchill put it, “Parliament stands custodian of these surrendered liberties, and its most sacred duty will be to restore them in their fullness when victory has crowned our exertions and our perseverance.”23 Thus, parliamentary control made emergency powers compatible with freedom. This contemporary foreign experience may be inconclusive as to the wisdom of lodging emergency powers somewhere in a modern government. But it suggests that emergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them. That is the safeguard that would be nullified by our adoption of the “ ‘inherent powers’ formula. Nothing in my experience convinces me that such risks are warranted by any real necessity, although such powers would, of course, be an executive convenience.” In the practical working of our Government we already have evolved a technique within the framework of the Constitution by which normal executive powers may be considerably expanded to meet an emergency. Congress may and has granted extraordinary **879 authorities which lie dormant in normal times but may be called into play by the Executive in war or upon proclamation of a national emergency. In 1939, upon congressional request, the Attorney General listed ninety-nine such separate statutory grants by Congress of emergency or war-time executive powers.24 They were invoked from time to time as need appeared. Under this procedure we retain Government *653 by law—special,

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temporary law, perhaps, but law nonetheless. The public may know the extent and limitations of the powers that can be asserted, and persons affected may be informed from the statute of their rights and duties. In view of the ease, expedition and safety with which Congress can grant and has granted large emergency powers, certainly ample to embrace this crisis, I am quite unimpressed with the argument that we should affirm possession of them without statute. Such power either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction. As to whether there is imperative necessity for such powers, it is relevant to note the gap that exists between the President’s paper powers and his real powers. The Constitution does not disclose the measure of the actual controls wielded by the modern presidential office. That instrument must be understood as an Eighteenth-Century sketch of a government hoped for, not as a blueprint of the Government that is. Vast accretions of federal power, eroded from that reserved by the States, have magnified the scope of presidential activity. Subtle shifts take place in the centers of real power that do not show on the face of the Constitution. Executive power has the advantage of concentration in a single head in those choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and

finality his decisions so far overshadow any others that almost alone he fills the public eye and ear. No othe personality in public life can begin to compete with him in access to the public mind through modern methods of communications. By his prestige as head of state and his influence upon public opinion he exerts a leverage upon those who are supposed *654 to check and balance his power which often cancels their effectiveness. Moreover, rise of the party system has made a significant extraconstitutional supplement to real executive power. No appraisal of his necessities is realistic which overlooks that he heads a political system as well as a legal system. Party loyalties and interests, sometimes more binding than law, extend his effective control into branches of government other than his own and he often may win, as a political leader, what he cannot command under the Constitution. Indeed, Woodrow Wilson, commenting on the President as leader both of his party and of the Nation, observed, “If he rightly interpret the national thought and boldly insist upon it, he is irresistible. * * * His office is anything he has the sagacity and force to make it.”25 I cannot be brought to believe that this country will suffer if the Court refuses further to aggrandize the presidential office, already so potent and so relatively immune from judicial review,26 at the expense of Congress. But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good

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law, there was worldly wisdom in the maxim attributed to Napoleon that “The tools belong to the man who can use them.” We may say that power to legislate for **880 emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers. The essence of our free Government is “ ‘leave to live by no man’s leave, underneath the law’—to be governed by those impersonal forces which we call law. Our Government *655 is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.” Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.27 Mr. Justice BURTON, concurring in both the opinion and judgment of the Court.

My position may be summarized as follows: The validity of the President’s order of seizure is at issue and ripe for decision. Its validity turns upon its relation to the constitutional division of governmental power between Congress and the President. *656 The Constitution has delegated to Congress power to authorize action to meet a national emergency of the kind we face.1 Aware of this responsibility, Congress has responded to it. It has provided at least two procedures for the use of the President. It has outlined one in the Labor Management Relations Act, 1947, better known as the Taft-Hartley Act. The accuracy with which Congress there describes the present emergency demonstrates its applicability. It says: “Whenever in the opinion of the President of the United States, a threatened or actual strike or lock-out affecting an entire industry or a substantial part thereof engaged in trade, commerce, transportation, transmission, or communication among the several States or with foreign nations, or engaged in the production of goods for commerce, will, if permitted to occur or to continue, imperil the national health or safety, he may appoint a board of inquiry to inquire into the issues involved in the dispute and to make a written report to him within **881 such time as he shall prescribe. * * *”2 *657 In that situation Congress has authorized not only negotiation, conciliation and impartial inquiry but also a 60-day cooling-off period under injunction, followed by 20 days for a secret ballot upon the final offer of settlement and then by

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recommendations from the President to Congress.3 For the purposes of this case the most significant feature of that Act is its omission of authority to seize an affected industy. The debate preceding its passage demonstrated the significance of that omission. Collective bargaining, rather than governmental seizure, was to be relied upon. Seizure was not to be resorted to without specific congressional authority. Congress reserved to itself the opportunity to authorize seizure to meet particular emergencies.4 *658 The President, however, chose not to use the Taft-Hartley procedure. He chose another course, also authorized by Congress. He referred the controversy to the Wage Stabilization Board.5 If that course had led to a settlement of the labor dispute, it would have avoided the need for other action. It, however, did not do so. Now it is contended that although the President did not follow the procedure authorized by the Taft-Hartley Act, his substituted procedure served the same purpose and must be accepted as it equivalent. Without appraising that equivalence, it is enough to point out that neither procedure carried statutory authority for the seizure of private industries in the manner now at issue.6 The exhaustion of both procedures fails to cloud the *659 clarity of the congressional reservation of seizure for its own consideration. **882 The foregoing circumstances distinguish this emergency from one in which Congress takes no action and outlines no governmental policy. In the case before us, Congress authorized a procedure which

the President declined to follow. Instead, he followed another procedure which he hoped might eliminate the need for the first. Upon its failure, he issued an executive order to seize the steel properties in the fact of the reserved right of Congress to adopt or reject that course as a matter of legislative policy. This brings us to a further crucial question. Does not President, in such a situation, have inherent constitutional power to seize private property which makes congressional action in relation thereto unnecessary? We find no such power available to him under the present circumstances. The present situation is not comparable to that of an imminent invasion or threatened attack. We do not face the issue of what might be the President’s constitutional power to meet such catastrophic situations. Nor is it claimed that the current seizure is in the nature of a military command addressed by the President, as Commander-in-Chief, to a mobilized nation waging, or imminently threatened with, total war.7 *660 The controlling fact here is that Congress, within its constitutionally delegated power, has prescribed for the President specific procedures, exclusive of seizure, for his use in meeting the present type of emergency. Congress has reserved to itself the right to determine where and when to authorize the seizure of property in meeting such an emergency. Under these circumstances, the President’s order of April 8 invaded the jurisdiction of Congress. It violated the essence of the principle of the separation of governmental powers. Accordingly, the injunction against its effectiveness should be sustained.

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Mr. Justice CLARK, concurring in the judgment of the Court. One of this Court’s first pronouncements upon the powers of the President under the Constitution was made by Chief Justice John Marshall some one hundred and fifty years ago. In Little v. Barreme,1 he used this characteristically clear language in discussing the power of the President to instruct the seizure of the ‘Flying-Fish,’ a vessel bound from a French port: “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 **883 authority to the seizure of vessels bound or sailing to a French port, the legislature seem to have prescribed that *661 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.”2 Accordingly, a unanimous Court held that the President’s instructions had been issued without authority and that they could not “legalize an act which without those instructions would have been a plain trespass.” I know of no subsequent holding of this Court to the contrary.3 The limits of presidential power are obscure. However, Article II, no less than Article I, is

part of “a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.”4 Some of our Presidents, such as Lincoln, “felt that measures otherwise unconstitutional might become lawful by becoming indispensable to the preservation of the Constitution through the preservation of the nation.”5 *662 Others, such as Theodore Roosevelt, thought the President to be capable, as a ‘steward’ of the people, of exerting all power save that which is specifically prohibited by the Constitution or the Congress.6 In my view—taught me not only by the decision of Chief Justice Marshall in Little v. Barreme, 2 Cranch 170, 2 L.Ed. 243, but also by a score of other pronouncements of distinguished members of this bench—the Constitution does grant to the President extensive authority in times of grave and imperative national emergency. In fact, to my thinking, such a grant may well be necessary to the very existence of the Constitution itself. As Lincoln aptly said, “(is) it possible to lose the nation and yet preserve the Constitution?’7 In describing this authority I care not whether one calls it ‘residual,’ ‘inherent,’ “moral, ‘implied,’ ‘aggregate,’ ‘emergency,’ or otherwise. I am of the conviction that those who have had the grantifying experience of being the President’s lawyer have used one or more of these adjectives only with the utmost of sincerity and the highest of purpose.” **884 I conclude that where Congress has laid down specific procedures to deal with the type of crisis confronting the President, he must follow those procedures in meeting the crisis; but that in the absence of such action by Congress, the President’s independent power to act depends upon the

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gravity of the situation confronting the nation. I cannot sustain the seizure in question because here, as in Little v. Barreme, 2 Cranch 170, 2 L.Ed. 243, Congress had prescribed methods to be followed by the President in meeting the emergency at hand. *663 Three statutory procecures were available: those provided in the Defense Production Act of 1950, 50 U.S.C.A.Appendix, s 2061 et seq., the Labor Management Relations Act, 29 U.S.C.A. s 141 et seq., and the Selective Service Act of 1948, 50 U.S.C.A.Appendix, s 451 et seq. In this case the President invoked the first of these procedures; he did not invoke the other two. The Defense Production Act of 1950 provides for mediation of labor disputes affecting national defense. Under this statutory authorization, the President has established the Wage Stabilization Board. The Defense Production Act, however, grants the President no power to seize real property except through ordinary condemnation proceedings, which were not used here, and creates no sanctions for the settlement of labor disputes. The Labor Management Relations Act, commonly known as the Taft-Hartley Act, includes provisions adopted for the purpose of dealing with nationwide strikes. They establish a procedure whereby the President may appoint a board of inquiry and thereafter, in proper cases, seek injunctive relief for an 80-day period against a threatened work stoppage. The President can invoke that procedure whenever, in his opinion, “a threatened or actual strike * * * affecting an entire industry * * * will, if

permitted to occur or to continue, imperil the national health or safety.”8 At the time that Act was passed, Congress specifically rejected a proposal to empower the President to seize any ‘plant, mine, or facility’ in which a threatened work stoppage would, in his judgment, “imperil the public health or security.”9 Instead, the Taft-Hartley Act directed the President, in the event a strike had not been settled during the 80-day injunction period, to submit to Congress “a full and comprehensive report * * * together with such recommendations as he may see fit to make for consideration and *664 appropriate action.”10 The legislative history of the Act demonstrates Congress’ belief that the 80-day period would afford it adequate opportunity to determine whether special legislation should be enacted to meet the emergency at hand.11 The Selective Service Act of 1948 gives the President specific authority to seize plants which fail to produce goods required by the armed forces or the Atomic Energy Commission for national defense purposes. The Act provides that when a producer from whom the President has ordered such goods ‘refuses or fails’ to fill the order within a period of time prescribed by the President, the President may take immediate possession of the producer’s plant.12 This language is significantly broader than **885 *665 that used in the National Defense Act of 1916 and the Selective Training and Service Act of 1940, which provided for seizure when a producer ‘refused’ to supply essential defense materials, but not when he ‘failed’ to do so.13 These three statutes furnish the guideposts for decision in this case. Prior to seizing the steel mills on April 8 the President had exhausted the mediation procedures of the

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Defense Production Act through the Wage Stabilization Board. Use of those procedures had failed to avert the impending crisis; however, it had resulted in a 99-day postponement of the strike. The Government argues that this accomplished more than the maximum 80-day waiting period possible under the sanctions of the Taft-Hartley Act, and therefore amounted to compliance with the substance of that Act. Even if one were to accept this somewhat hyperbolic conclusion, the hard fact remains that neither the Defense Production Act nor TaftHartley authorized the seizure challenged here, and the Government made no effort to comply with the procedures *666 established by the Selective Service Act of 1948, a statute which expressly authorizes seizures when producers fail to supply necessary defense mate riel.14 **886 For these reasons I concur in the judgment of the Court. As Justice Story once said: “For the executive department of the government, this court entertain the most entire respect; and amidst the multiplicity of cares in that department, it may, without any violation of decorum, be presumed, that sometimes there may be an inaccurate construction of a law. It is our duty to expound the laws as we find them in the records of state; *667 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 *629 Mr. Justice DOUGLAS, concurring. There can be no doubt that the emergency which caused the President to seize these steel plants was one that bore heavily on the country. But the emergency did not create

power; it merely marked an occasion when power should be exercised. And the fact that it was necessary that measures be taken to keep steel in production does not mean that the President, rather than the Congress, had the constitutional authority to act. The Congress, as well as the President, is trustee of the national welfare. The President can act more quickly than the Congress. The President with the armed services at his disposal can move with force as well as with speed. All executive power—from the reign of ancient kings to the rule of modern dictators—has the outward appearance of efficiency. Legislative power, by contrast, is slower to exercise. There must be delay while the ponderous machinery of committees, hearings, and debates is put into motion. That takes time; and while the Congress slowly moves into action, the emergency may take its toll in wages, consumer goods, war production, the standard of living of the people, and perhaps even lives. Legislative action may indeed often be cumbersome, time-consuming, and apparently inefficient. But as Mr. Justice Brandeis stated in his dissent in Myers v. United States, 272 U.S. 52, 293, 47 S.Ct. 21, 85, 71 L.Ed. 160: “The doctrine of the separation of powers was adopted by the Convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among

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three departments, to save the people from autocracy.” *630 We therefore cannot decide this case by determining which branch of government can deal most expeditiously with the present crisis. The answer must depend on the allocation of powers under the Constitution. That in turn requires an analysis of the conditions giving rise to the seizure and of the seizure itself. The relations between labor and industry are one of the crucial problems of the era. Their solution will doubtless entail many methods—education of labor leaders and business executives; the encouragement of mediation and conciliation by the President and the use of his great office in the cause of industrial peace; and the passage of laws. Laws entail sanctions—penalties for their violation. One type of sanction is find and imprisonment. Another is seizure of property. An industry may become so lawless, so irresponsible as to endanger the whole economy. Seizure of the industry may be the only wise and practical solution. The method by which industrial peace is achieved is of vital importance not only to **887 the parties but to society as well. A determination that sanctions should be applied, that the hand of the law should be placed upon the parties, and that the force of the courts should be directed against them, is an exercise of legislative power. In some nations that power is entrusted to the executive branch as a matter of course or in case of emergencies. We chose another course. We chose to place the legislative power of the Federal Government in the Congress. The language of the Constitution

is not ambiguous or qualified. It places not some legislative power in the Congress; Article I, Section 1 says “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” The legislative nature of the action taken by the President seems to me to be clear. When the United States *631 takes over an industrial plant to settle a labor controversy, it is condemning property. The seizure of the plant is a taking in the constitutional sense. United States v. Pewee Coal Co., 341 U.S. 114, 71 S.Ct. 670, 95 L.Ed. 809. A permanent taking would amount to the nationalization of the industry. A temporary taking falls short of that goal. But though the seizure is only for a week or a month, the condemnation is complete and the United States must pay compensation for the temporary possession. United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311; United States v. Pewee Coal Co., supra. The power of the Federal Government to condemn property is well established. Kohl v. United States, 91 U.S. 367, 23 L.Ed. 449. It can condemn for any public purpose; and I have no doubt but that condemnation of a plant, factory, or industry in order to promote industrial peace would be constitutional. But there is a duty to pay for all property taken by the Government. The command of the Fifth Amendment is that no “private property be taken for public use, without just compensation. That constitutional requirement has an important bearing on the present case.”

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The President has no power to raise reveunes. That power is in the Congress by Article I, Section 8 of the Constitution. The President might seize and the Congress by subsequent action might ratify the seizure.1 But until and unless Congress acted, no condemnation would be lawful. The branch of government that has the power to pay compensation for a seizure is the only one able to authorize a seizure or make lawful one that *632 the President had effected.2 That seems to me to be the necessary result of the condemnation provision in the Fifth Amendment. It squares with the theory of checks and balances expounded by Mr. Justice BLACK in the opinion of the Court in which I Join. If we sanctioned the present exercise of power by the President, we would be expanding **888 Article II of the Constitution and rewriting it to suit the political conveniences of the present emergency. Article II which vests the ‘executive Power’ in the President defines that power with particularity. Article II, Section 2 makes the Chief Executive the Commander in Chief of the Army and Navy. But our history and tradition rebel at the thought that the grant of military power carries with it authority over civilian affairs. Article II, Section 3 provides that the President shall “from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.” The power to recommend legislation, granted to the President, serves only to emphasize that it is his function to recommend and that it is the function of the Congress to legislate. *633 Article II, Section 3, also provides that the

President “shall take Care that the Laws be faithfully executed.” But as Mr. Justice BLACK and Mr. Justice FRANKFURTER point out the power to execute the laws starts and ends with the laws Congress has enacted. The great office of President is not a weak and powerless one. The President represents the people and is their spokesman in domestic and foreign affairs. The office is respected more than any other in the land. It gives a position of leadership that is unique. The power to formulate policies and mould opinion inheres in the Presidency and conditions our national life. The impact of the man and the philosophy he represents may at times be thwarted by the Congress. Stalemates may occur when emergencies mount and the Nation suffers for lack of harmonious, reciprocal action between the White House and Capitol Hill. That is a risk inherent in our system of separation of powers. The tragedy of such stalemates might be avoided by allowing the President the use of some legislative authority. The Framers with memories of the tyrannies produced by a blending of executive and legislative power rejected that political arrangement. Some future generation may, however, deem it so urgent that the President have legislative authority that the Constitution will be amended. We could not sanction the seizures and condemnations of the steel plants in this case without reading Article II as giving the President not only the power to execute the laws but to make some. Such a step would most assuredly alter the pattern of the Constitution. We pay a price for our system of checks and balances, for the distribution of power

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among the three branches of government. It is a price that today may seem exorbitant to many. Today a kindly President uses the seizure power to effect a wage increase and to keep the steel furnaces in production. Yet tomorrow another President might use the same power to prevent a wage increase, to curb trade unionists, to regiment labor as oppressively as industry thinks it has been regimented by this seizure. *593 Mr. concurring.

Justice

FRANKFURTER,

Before the cares of the White House were his own, President Harding is reported to have said that government after all is a very simple thing. He must have said that, if he said it, as a fleeting inhabitant of fairyland. The opposite is the truth. A constitutional democracy 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 government on knowledge and wisdom and self-descipline 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. **889 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 balances 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 Valley. *594 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 Westminster, 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 litigation. And then, only to the extent that they are so involved. Rigorous adherence to

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the narrow scope of the judicial function is especially demanded in controversies 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 of that normally manifested by the general public. So-called constitutional questions seem to exercise a mesmeric influence over the popular mind. This eagerness to settle— preferably forever—a specific problem on the basis of the broadest possible constitutional pronouncements 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 argument over the United States Constitution and its interpretation 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 before Harfleur, they stand like greyhounds in the slips, straining upon the start.” The Economist, May 10, 1952, p. 370. *595 The path of duty for this Court, it bears repetition, lies in the opposite direction. Due regard for the implications of the distribution of powers in our Constitution and for the nature of the judicial process as the ultimate 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 Valley Authority, 297 U.S. 288, 341, 346, 56 S.Ct. 466, 480, 482, 80 L.Ed. 688. 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 exposing differences to exacerbate them. So here our first inquiry must be not into the powers of the President, but into the powers of a District Judge to issue a temporary injunction in the circumstances of this case. Familiar as that remedy is, it remains an extraordinary remedy. To **890 start with a consideration 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 injunction if money damages would fairly compensate him for any wrong he may have suffered. The same considerations by which the Steelworkers, in their brief amicus, demonstrate, from the seizure here in controversy, consequences *596 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 epigrammatic generalization that

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the evils of industrial dislocation 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 interest brings into action. And so, with the utmost unwillingness, 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. The pole-star for constitutional adjudications is John Marshall’s greatest judicial utterance that “it is a constitution we are expounding.” McCulloch v. Maryland, 4 Wheat. 316, 407, 4 L.Ed. 579. That requires both a spacious view in applying an instrument of government “made for an underfined and expanding future,” Hurtado v. People of State of California, 110 U.S. 516, 530, 4 S.Ct. 111, 118, 28 L.Ed. 232, 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 principle of the Constitution— that of separation of powers. *597 “The great ordinances of the Constitution do not

establish and divide fields of black and white.” Holmes, J., dissenting in Springer v. Government of Philippine Islands, 277 U.S. 189, 209, 48 S.Ct. 480, 485, 72 L.Ed. 845. The issue before us can be met, and therefore should be, without attempting to define the President’s powers 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 belongs to him until Congress acts; what kind of problems may be dealt with either by the Congress or by the President or by both, cf. La Abra Silver Mine Co. v. United States, 175 U.S. 423, 20 S.Ct. 168, 44 L.Ed. 223; what power must be exercised by the Congress and cannot be delegated to the President. It is as unprofitable to lump together in an undiscriminating hotch-potch past presidential actions claimed to be derived from occupancy of the office, as it is to conjure up hypothetical future cases. The judiciary may, 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 ro le 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 legislation whatever bearing on the **891 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

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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— *598 specifically provided for executive seizure of production, transportation, communications, or storage facilities. In every case it has qualified this grant of power with limitations and safeguards. This body of enactments— summarized in tabular form in Appendix I— demonstrates that Congress deemed seizure so drastic a power as to require that it be carefully circumscribed whenever the President was vested with this extraordinary authority. 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 was is imminent,” the needs of ‘public safety’ or of ‘national security or defense,’ or ‘urgent and impending need.’ The period of governmental operation has been limited, as, for instance, to “sixty days after the restoration of productive efficiency.” Seizure statutes usually make executive action dependent on detailed conditions: for example, (a) failure or refusal of the owner of a plant to meet governmental supply needs or (b) failure of voluntary negotiations with the owner for the use of a plant necessary for great public ends. Congress often has specified the particular executive agency which should seize or operate the plants or whose judgment would appropriately test the need for seizure. Congress also has not left to implication that

just compensation be paid: it has usually legislated in detail regarding enforcement of this litigation-breeding general requirement. Congress in 1947 was again called upon to consider whether governmental seizure should be used to avoid serious industrial shutdowns. Congress decided against conferring such power generally and in advance, without special congressional enactment to meet each particular need. Under the urgency of telephone and coal strikes in *599 the winter of 1946, Congress addressed itself to the problems raised by ‘national emergency’ strikes and lockouts.1 The termination of wartime seizure powers on December 31, 1946, brought these matters to the attention of Congress with vivid impact. A proposal that the President be given powers to seize plants to avert a shutdown where the ‘health or safety’ of the nation was endangered, was thoroughly canvassed by Congress and rejected. No room for doubt remains that the proponents as well as the opponents of the bill which became the Labor Management Relations Act of 1947 clearly understood that as a result of that legislation the only recourse for preventing a shutdown in any basic industry, after failure of mediation, was Congress.2 Authorization for seizure as *600 an available remedy **892 for potential dangers was unequivocally put aside. The Senate Labor Committee, through its Chairman, explicitly reported to the Senate that a general grant of seizure powers had been considered and rejected in favor of reliance on ad hoc legislation, as a particular emergency might call for it.3 An amendment presented in the House providing that where necessary “to preserve and protect the public health and security” the President might seize any industry in which there is *601 an

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impending curtailment of production, was voted down after debate, by a vote of more than three to one.4 In adopting the provisions which it did, by the Labor Management Relations Act of 1947, for dealing with a ‘national emergency’ arising out of a breakdown in peaceful industrial relations, Congress was very familiar with Government seizure as a protective measure. On a balance of considerations Congress chose not to lodge this power in the President. It chose not to make available in advance a remedy to which both industry and labor were fiercely hostile.5 In deciding that authority to seize should be given to the President only after full consideration of the particular situation should show such legislation to be necessary, **893 Congress presumably acted on experience with similar industrial conflicts in the past. It evidently assumed that industrial shutdowns in basic industries are not instances of spontaneous generation, *602 and that danger warnings are sufficiently plain before the event to give ample opportunity to start the legislative process into action. In any event, nothing can be plainer than that Congress made a conscious choice of policy in a field full of perplexity and peculiarly within legislative responsibility for choice. In formulating legislation for dealing with industrial conflicts, Congress could not more clearly and emphatically have withheld authority than it did in 1947. Perhaps as much so as is true of any piece of modern legislation, Congress acted with full consciousness of what it was doing and in the light of much recent history. Previous seizure legislation had subjected the powers

granted to the President to restrictions of varying degrees of stringency. Instead of giving him even limited powers, Congress in 1947 deemed it wise to require the President, upon failure of attempts to reach a voluntary settlement, to report to Congress if he deemed the power of seizure a needed shot for his locker. The President could not ignore the specific limitations of prior seizure statutes. No more could he act in disregard of the limitation put upon seizure by the 1947 Act. It cannot be contended that the President would have had power to issue this order had Congress explicitly negated such authority in formal legislation. Congress has expressed its will to withhold this power from the President as though it had said so in so many words. The authoritatively expressed purpose of Congress to disallow such power to the President and to require him, when in his mind the occasion arose for such a seizure, to put the matter to Congress and ask for specific authority from it, could not be more decisive if it had been written into ss 206—210 of the Labor Management Relations Act of 1947. Only the other day we treated the Congressional gloss upon those sections as part of the Act. Amalgamated Ass’n of Street Electric Railway & Motor Coach Employees v. Wisconsin Employment Relations Board, 340 U.S. 383, 395—396, 71 S.CT. 359, 365, 366, 95 L.ED. 364. *603 GRAFTING upon the words a purpOSE of Congress thus unequivocally expressed is the regular legislative mode for defining the scope of an Act of Congress. It would be not merely infelicitous draftsmanship but almost offensive gaucherie to write such a restriction upon the President’s power in

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terms into a statute rather than to have it authoritatively expounded, as it was, by controlling legislative history. By the Labor Management Relations Act of 1947, Congress said to the President, “You may not seize. Please report to us and ask for seizure power if you think it is needed in a specific situation.” This of course calls for a report on the unsuccessful efforts to reach a voluntary settlement, as a basis for discharge by Congress of its responsibility—which it has unquivocally reserved—to fashion further remedies than it provided.6 But it is now claimed that the President has seizure power by virtue of the Defense Production Act of 1950 and its Amendments.7 And the claim is based on the occurrence of new events—Korea and the need for stabilization, etc.—although it was well known that seizure power was withheld by the Act of 1947 and although the President, whose specific requests for other authority were in the main granted by Congress, never suggested that in view **894 of the new events he needed the power of seizure which Congress in its judgment had decided to withhold from him. The utmost that the Korean conflict may imply is that it may have been desirable to have given the President further authority, a freer hand in these matters. Absence of authority in the President to deal with a crisis does not *604 imply want of power in the Government. Conversely the fact that power exists in the Government does not vest it in the President. The need for new legislation does not enact it. Nor does it repeal or amend existing law. No authority that has since been given to the President can by any fair process of

statutory construction be deemed to withdraw the restriction or change the will of Congress as expressed by a body of enactments, culminating in the Labor Management Relations Act of 1947. Title V of the Defense Production Act, entitled ‘Settlement of Labor Disputes,’ pronounced the will of Congress “that there be effective procedures for the settlement of labor disputes affecting national defense,” and that ‘primary reliance’ be placed “upon the parties to any labor dispute to make every effort through negotiation and collective bargaining and the full use of mediation and conciliation facilities to effect a settlement in the national interest.”8 Section 502 authorized the President to hold voluntary conferences of labor, industry, and public and government representatives and to “take such action as may be agreed upon in any such conference and appropriate to carry out the provisions of this title,” provided that no action was taken inconsistent with the Labor Management Relations Act of 1947.9 This provision10 was said by the Senate Committee *605 on Banking and Currency to contemplate a board similar to the War Labor Board of World War II and “a national labor-management conference such as was held during World War II, when a no-strike, no-lock-out pledge was obtained.”11 Section 502 was believed necessary **895 *606 in addition to existing means for settling disputes voluntarily because the Federal Mediation and Conciliation Service could not enter a labor dispute unless requested by one party.12 Similar explanations of Title V were given in the Conference Report and by Senator Ives, a member of the Senate Committee to whom Chairman Maybank during the debates on the Senate floor referred

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questions relating to Title V.13 Senator Ives said: “It should be remembered in this connection that during the period of the present emergency it is expected that the Congress will not adjourn, but at most, will recess only for very limited periods of time. If, therefore, any serious work stoppage should arise or even be threatened, in spite of the terms of the Labor-Management Relations Act of 1947, the Congress would be readily available to pass such legislation as might be needed to meet the difficulty.”14 *607 The Defense Production Act affords no ground for the suggestion that the 1947 denial to the President of seizure powers has been impliedly repealed, and its legislative history contradicts such a suggestion. Although the proponents of that Act recognized that the President would have a choice of alternative methods of seeking a mediated settlement, they also recognized that Congress alone retained the ultimate coercive power to meet the threat of ‘any serious work stoppage.’ That conclusion is not changed by what occurred after the passage of the 1950 Act. Seven and a half months later, on April 21, 1951, the President by Executive Order 10233 gave the reconstituted Wage Stabilization Board authority to investigate labor disputes either (1) submitted voluntarily by the parties, or (2) referred to it by the President.15 The Board can make only “recommendations to the parties as to fair and equitable terms of settlement” unless the parties agree to be bound by the Board’s recommendation. About a month thereafter Sub-Committees of both the House and Senate Labor Committees began

hearings on the newly assigned disputes functions of the Board.16 Amendments **896 to deny the *608 Board these functions were voted down in the House,17 and Congress extended the Defense Production Act without changing Title V in relevant part.18 The legislative history of the Defense Production Act and its Amendments in 1951 cannot possibly be vouched for more than Congressional awareness and tacit approval that the President had charged the Wage Stabilization Board with authority to seek voluntary settlement of labor disputes. The most favorable interpretation of the statements in the committee reports can make them mean no more than “We are glad to have all the machinery possible for the voluntary settlement of labor disputes.” In considering the Defense Production Act Amendments, Congress was never asked to approve—and there is not the slightest indication that the responsible committees ever had in mind—seizure of plants to coerce settlement of disputes. *609 We are not even confronted by an inconsistency between the authority conferred on the Wage Board, as formulated by the Executive Order, and the denial of Presidential seizure powers under the 1947 legislation. The Board has been given merely mediatory powers similar to those of agencies created by the Taft-Hartley Act and elsewhere, with no other sanctions for acceptance of its recommendations than are offered by its own moral authority and the pressure of public opinion. The Defense Production Act and the disputes-mediating agencies created subsequent to it still leave for solution elsewhere the question what action can be taken when attempts at voluntary settlement fail. To draw implied approval of seizure

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

power from this history is to make something out of nothing. It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Congress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld. To find authority so explicitly withheld is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between President and Congress. The legislative history here canvassed is relevant to yet another of the issues before us, namely, the Government’s argument that overriding public interest prevents the issuance of the injunction despite the illegality of the seizure. I cannot accept that contention. “Balancing the **897 equities’ when considering whether an injunction should issue, is lawyers’ jargon for choosing between conflicting public interests. When Congress itself has struck *610 the balance, has defined the weight to be given the competing interests, a court of equity is not justified in ignoring that pronouncement under the guise of exercising equitable discretion.” Apart from his vast share of responsibility for the conduct of our foreign relations, the embracing function of the President is that “he shall take Care that the Laws be

faithfully executed * * *.” Art. II, s 3. The nature of that authority has for me been comprehensively indicated by Mr. Justice Holmes. “The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.” Myers v. United States, 272 U.S. 52, 177, 47 S.Ct. 21, 85, 71 L.Ed. 160. The powers of the President are not as particularized as are those of Congress. But unenumerated powers do not mean undefined powers. The separation of powers built into our Constitution gives essential content to undefined provisions in the frame of our government. To be sure, the content of the three authorities of government is not to be derived from an abstract analysis. The areas are partly interacting, not wholly disjointed. The Constitution is a framework for government. Therefore the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part *611 of the structure of our government, may be treated as a gloss on ‘executive Power’ vested in the President

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by s 1 of Art. II. Such was the case of United States v. Midwest Oil Co., 236 U.S. 459, 35 S.Ct. 309, 59 L.Ed. 673. The contrast between the circumstances of that case and this one helps to draw a clear line between authority not explicitly conferred yet authorized to be exercised by the President and the denial of such authority. In both instances it was the concern of Congress under express constitutional grant to make rules and regulations for the problems with which the President dealt. In the one case he was dealing with the protection of property belonging to the United States; in the other with the enforcement of the Commerce Clause and with raising and supporting armies and maintaining the Navy. In the Midwest Oil case lands which Congress had opened for entry were, over a period of 80 years and in 252 instances, and by Presidents learned and unlearned in the law, temporarily withdrawn from entry so as to enable Congress to deal with such withdrawals. No remotely comparable practice can be vouched for executive seizure of property at a time when this country was not at war, in the only constitutional way in which it can be at war. It would pursue the irrelevant to reopen the controversy over the constitutionality of some acts of Lincoln during the Civil War. See J. G. Randall, Constitutional Problems under Lincoln (Revised ed. 1951). Suffice it to say that he seized railroads in territory where armed hostilities had already interrupted the movement of troops to the beleaguered Capitol, and his order was ratified by the Congress. The only other instances of seizures are

those during the periods of the first and second World Wars.19 In his eleven seizures **898 of industrial facilities, President Wilson *612 acted, or at least purported to act,20 under authority granted by Congress. Thus his seizures cannot be adduced as interpretations by a President of his own powers in the absence of statute. Down to the World War II period, then, the record is barren of instances comparable to the one before us. Of twelve seizures by President Roosevelt prior to the enactment of the War Labor Disputes Act in June, 1943, three were sanctioned by existing law, and six others *613 were effected after Congress, on December 8, 1941, had declared the existence of a state of war. In this case, reliance on the powers that flow from declared war has been commendably disclaimed by the Solicitor General. Thus the list of executive assertions of the power of seizure in circumstances comparable to the present reduces to three in the six-month period from June to December of 1941. We need not split hairs in comparing those actions to the one before us, though much might be said by way of differentiation. Without passing on their validity, as we are not called upon to do, it suffices to say that these three isolated instances do not add up, either in number, scope, duration or contemporaneous legal justification, to the kind of executive construction of the Constitution revealed in the Midwest Oil case. Nor do they come to us sanctioned by long-continued acquiescence of Congress giving decisive weight to a construction by the Executive of its powers. A scheme of government like ours no doubt at times feels the lack of power to act with

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

complete, all-embracing, swiftly moving authority. No doubt a government with distributed authority, subject to be challenged in the courts of law, at least long enough to consider and adjudicate the challenge, labors under restrictions from which other governments are free. It has not been our tradition to envy such governments. In any event our government was designed to have such restrictions. The price was deemed not too high in view of the safeguards which these restrictions afford. I know no more impressive words on this subject than those of Mr. Justice Brandeis: “The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid fricition, but, *614 by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from **899 autocracy.” Myers v. United States, 272 U.S. 52, 240, 293, 47 S.Ct. 21, 85, 71 L.Ed. 160. It is not a pleasant judicial duty to find that the President has exceeded his powers and still less so when his purposes were dictated by concern for the Nation’s wellbeing, in the assured conviction that he acted to avert danger. But it would stultify one’s faith in our people to entertain even a momentary fear that the patriotism and the wisdom of the President and the Congress, as well as

the long view of the immediate parties in interest, will not find ready accommodation for differences on matters which, however close to their concern and however intrinsically important, are overshadowed by the awesome issues which confront the world. When at a moment of utmost anxiety President Washington turned to this Court for advice, and he had to be denied it as beyond the Court’s competence to give, Chief Justice Jay, on behalf of the Court, wrote thus to the Father of his Country: “ ‘We exceedingly regret every event that may cause embarrassment to your administration, but we derive consolation from the reflection that your judgment will discern what is right, and that your usual prudence, decision, and firmness will surmount every obstacle to the preservations of the rights, peace, and dignity of the United States.’ Letter of August 8, 1793, 3 Johnston, Correspondence and Public Papers of John Jay (1891), 489.” In reaching the conclusion that conscience compels, I too derive consolation from the reflection that the President and the Congress between them will continue to safeguard the heritage which comes to them straight from George Washington. **900 *615

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**901 *616

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**902

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

**903 *617

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**904

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

**905 *618

**906

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**907 *619

**908

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**909 *620

**910

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

**911 *621

**912

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

**913 *622

**914

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

**915

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

**916 *623

**917

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

**918 *624

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**920 *625

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

**921

**922 *626

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**923

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**924 *627

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**925

**926

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

**927 *628

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**929 *667 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 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. *668 Those who suggest that this is a case involving extraordinary powers should be mindful that these are extraordinary times. A world not yet recovered from the devastation of World War II has been forced to face the threat of another and more terrifying global conflict. Accepting in full measure its responsibility in the world community, the United States

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was instrumental in securing adoption of the United Nations Charter, approved by the Senate by a vote of 89 to 2. The first purpose of the United Nations is to “maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, * * *.”1 In 1950, when the United Nations called upon member nations ‘to render every assistance’ to repel aggression in Korea, the United States furnished its vigorous support.2 For almost two full years, our armed forces have been fighting in Korea, suffering casualties of over 108,000 men. Hostilities have not abated. The “determination of the United Nations to continue its action in Korea to meet the aggression” has been reaffirmend.3 Congressional support of the action in Korea has been manifested by provisions for increased military manpower and equipment and for economic stabilization, as hereinafter described. Further efforts to protect the free world from aggression are found in the congressional enactments of the Truman Plan for assistance to Greece and Turkey4 and *669 the Marshall Plan for economic aid needed to build up the strength of our friends in Western Europe.5 In 1949, the Senate approved the North Atlantic Treaty under which each member nation agrees that an armed attack against one is an armed attack against all.6 Congress immediately implemented **930 the North Atlantic Treaty by authorizing military assistance to nations dedicated to the principles of mutual security under the United Nations Charter.7 The concept of mutual security recently has been extended by treaty to friends in the

Pacific.8 Our treaties represent not merely legal obligations but show congressional recognition that mutual security for the free world is the best security against the threat of aggression on a global scale. The need for mutual security is shown by the very size of the armed forces outside the free world. Defendant’s brief informs us that the Soviet Union maintains the largest air force in the world and maintains ground forces much larger than those presently available to the United States and the countries joined with us in mutual security arrangements. Constant international tensions are cited to demonstrate how precarious is the peace. Even this brief review of our responsibilities in the world community discloses the enormity of our undertaking. Success of these measures may, as has often been *670 observed, dramatically influence the lives of many generations of the world’s peoples yet unborn. Alert to our responsibilities, which coincide with our own self preservation through mutual security, Congress has enacted a large body of implementing legislation. As an illustration of the magnitude of the over-all program, Congress has appropriated $130 billion for our own defense and for military assistance to our allies since the June, 1950, attack in Korea. In the Mutual Security Act of 1951, Congress authorized “military, economic, and technical assistance to friendly countries to strengthen the mutual security and individual and collective defenses of the free world, * * *.”9 Over $5 1/2 billion were appropriated for military assistance for fiscal year 1952, the bulk of that amount to be devoted to purchase of military equipment.10

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A request for over $7 billion for the same purpose for fiscal year 1953 is currently pending in Congress.11 In addition to direct shipment of military equipment to nations of the free world, defense production in those countries relies upon shipment of machine tools and allocation of steel tonnage from the United States.12 Congress also directed the President to build up our own defenses. Congress, recognizing the “grim fact * * * that the United States is now engaged in a struggle for survival” and that “it is imperative that we now take those necessary steps to make our strength equal to the peril of the hour,” granted authority to draft men into *671 the armed forces.13 As a result, we now have over 3,500,000 men in our armed forces.14 Appropriations for the Department of Defense, which had averaged less than $13 billion per year for the three years before attack in Korea, were increased by Congress to $48 billion for fiscal year 1951 and to $60 billion for fiscal year 1952.15 A request for $51 billion for the Department of **931 Defense for fiscal year 1953 is currently pending in Congress.16 The bulk of the increase is for military equipment and supplies—guns, tanks, ships, planes and ammunition—all of which require steel. Other defense programs requiring great quantities of steel include the large scale expansion of facilities for the Atomic Energy Commission17 and the expansion of the Nation’s productive capacity affirmatively encouraged by Congress.18 Congress recognized the impact of these defense programs upon the economy. Following the attack in Korea, the President asked for authority to requisition property and to allocate and fix priorities for scarce goods. In the Defense Production Act of

1950, Congress granted the powers requested and, in addition, granted power to stabilize prices and wages and to provide for settlement *672 of labor disputes arising in the defense program.19 The Defense Production Act was extended in 1951, a Senate Committee noting that in the dislocation caused by the programs for purchase of military equipment “lies the seed of an economic disaster that might well destroy the military might we are straining to build.”20 Significantly, the Committee examined the problem “in terms of just one commodity, steel,” and found “a graphic picture of the over-all inflationary danger growing out of reduced civilian supplies and rising incomes.” Even before Korea, steel production at levels above theoretical 100% capacity was not capable of supplying civilian needs alone. Since Korea, the tremendous military demand for steel has far exceeded the increases in productive capacity. This Committee emphasized that the shortage of steel, even with the mills operating at full capacity, coupled with increased civilian purchasing power, presented grave danger of disastrous inflation.21 The President has the duty to execute the foregoing legislative programs. Their successful execution depends upon continued production of steel and stabilized prices for steel. Accordingly, when the collective bargaining agreements between the Nation’s steel producers and their employees, represented by the United Steel Workers, were due to expire on December 31, 1951, and a strike shutting down the entire basic steel industry was threatened, the President acted to avert a complete shutdown of steel production. On December

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22, 1951, he certified the dispute to the Wage Stabilization Board, requesting that the Board investigate the dispute and promptly report its recommendation as to fair and equitable terms of settlement. The Union complied with the President’s *673 request and delayed its threatened strike while the dispute was before the Board. After a special Board panel had conducted hearings and submitted a report, the full Wage Stabilization Board submitted its report and recommendations to the President on March 20, 1952. The Board’s report was acceptable to the Union but was rejected by plaintiffs. The Union gave notice of its intention to strike as of 12:01 a.m., April 9, 1952, but bargaining between the parties continued with hope of settlement until the evening of April 8, 1952. After bargaining had failed to avert the threatened shutdown of steel production, the President issued the following Executive Order: “Whereas on December 16, 1950, I proclaimed the existence of a national emergency which requires that the military, naval, air, and civilian defenses of **932 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 *674 ‘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, and a strike has been called for 12:01 A.M., April 9, 1952; and ‘Whereas

a

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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 *675 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 * * *.”22 The next morning, April 9, 1952, the President addressed the following Message to Congress: “To the Congress of the United States: ‘The Congress is undoubtedly aware of the recent events which have taken **933 place in connection with the management-labor dispute in the steel industry. These events

culminated in the action which was taken last night to provide for temporary operation of the steel mills by the Government. ‘I took this action with the utmost reluctance. The idea of Government operation of the steel mills is thoroughly distasteful to me and I want to see it ended as soon as possible. However, in the situation which confronted me yesterday, I felt that I could make no other choice. The other alternatives appeared to be even worse—so much worse that I could not accept them. ‘One alternative would have been to permit a shut-down in the steel industry. The effects of such a shut-down would have been so immediate and damaging with respect to our efforts to support our Armed Forces and to protect our national security that it made this alternative unthinkable. *676 ‘The only way that I know of, other than Government operation, by which a steel shut-down could have been avoided was to grant the demands of the steel industry for a large price increase. I believed and the officials in charge of our stabilization agencies believed that this would have wrecked our stabilization program. I was unwilling to accept the incalculable damage which might be done to our country by following such a course. ‘Accordingly, it was my judgment that Government operation of the steel mills for a temporary period was the least undesirable of the courses of action which lay open. In the circumstances, I believed it to be, and now believe it to be, my duty and within my powers as President to follow that course of

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action. ‘It may be that the Congress will deem some other course to be wiser. It may be that the Congress will feel we should give in to the demands of the steel industry for an exorbitant price increase and take the consequences so far as resulting inflation is concerned.

which the Congress may wish to consider. ‘If the Congress does not deem it necessary to act at this time, I shall continue to do all that is within my power to keep the steel industry operating and at the same time make every effort to bring about a settlement of the dispute so the mills can be returned to their private owners as soon as possible.”23

‘It may be that the Congress will feel the Government should try to force the steel workers to continue to work for the steel companies for another long period, without a contract, even though the steel workers have already voluntarily remained at work without a contract for 100 days in an effort to reach an orderly settlement of their differences with management.

**934 Twelve days passed without action by Congress. On April 21, 1952, the President sent a letter to the President of the Senate in which he again described the purpose and need for his action and again stated his position that “The Congress can, if it wishes, reject the course of action I have followed in this matter.”24 Congress has not so acted to this date.

‘It may even be that the Congress will feel that we should permit a shutdown of the steel industry, although that would immediately endanger the safety of our fighting forces abroad and weaken the whole structure of our national security.

Meanwhile, plaintiffs instituted this action in the District Court to compel defendant to return possession of the steel mills seized under Executive Order 10340. In this litigation for return of plaintiffs’ properties, we assume that defendant Charles Sawyer is not immune from judicial restraint and that plaintiffs are entitled to equitable relief if we find that the Executive Order *678 under which defendant acts is unconstitutional. We also assume without deciding that the courts may go behind a President’sfinding of fact that an emergency exists. But there is not the slightest basis for suggesting that the President’s finding in this case can be undermined. Plaintiffs moved for a preliminary injunction before answer or hearing. Defendant opposed the motion, filing uncontroverted affidavits of Government officials describing the facts underlying the President’s order.

*677 ‘I do not believe the Congress will favor any of these courses of action, but that is a matter for the Congress to determine. ‘It may be, on the other hand, that the Congress will wish to pass legislation establishing specific terms and conditions with reference to the operation of the steel mills by the Government. Sound legislation of this character might be very desirable. ‘On the basis of the facts that are known to me at this time, I do not believe that immediate congressional action is essential; but I would, of course, be glad to cooperate in developing any legislative proposals

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Secretary of Defense Lovett swore that “a work stoppage in the steel industry will result immediately in serious curtailment of production of essential weapons and munitions of all kinds.” He illustrated by showing that 84% of the national production of certain alloy steel is currently used for production of military-end items and that 35% of total production of another form of steel goes into ammunition, 80% of such ammunition now going to Korea. The Secretary of Defense stated that: “We are holding the line (in Korea) with ammunition and not with the lives of our troops.” Affidavits of the Chairman of the Atomic Energy Commission, the Secretary of the Interior, defendant as Secretary of Commerce, and the Administrators of the Defense Production Administration, the National Production Authority, the General Services Administration and the Defense Transport Administration were also filed in the District Court. These affidavits disclose an enormous demand for steel in such vital defense programs as the expansion of facilities in atomic energy, petroleum, power, transportation and industrial production, including steel production. Those charged with administering allocations and priorities swore to the vital part steel production plays in our economy. The affidavits emphasize the critical need for steel in our defense program, *679 the absence of appreciable inventories of steel, and the drastic results of any interruption in steel production. One is not here called upon even to consider the possibility of executive seizure of a farm, a corner grocery store or even a single industrial plant. Such considerations arise

only when one ignores the central fact of this case—that the Nation’s entire basic steel production would have shut down completely if there had been no Government seizure. Even ignoring for the moment whatever confidential information the President may possess as “the Nation’s organ for foreign affairs,”25 the uncontroverted affidavits in this record amply support the finding that “a work stoppage would immediately jeopardize and imperil our national defense.” Plaintiffs do not remotely suggest any basis for rejecting the President’s finding that any stoppage of steel production would immediately place the Nation in peril. Moreover, even self-generated doubts that any stoppage of steel production constitutes an emergency are of little comfort here. The Union and the plaintiffs bargained for 6 months with over 100 issues in dispute— issues not limited to wage demands but including **935 the union shop and other matters of principle between the parties. At the time of seizure there was not, and there is not now, the slightest evidence to justify the belief that any strike will be of short duration. The Union and the steel companies may well engage in a lengthy struggle. Plaintiff’s counsel tells us that ‘sooner or later’ the mills will operate again. That May satisfy the steel companies and, perhaps, the Union. But our soldiers and our allies will hardly be cheered with the assurance that the ammunition upon which their lives depend will be forthcoming— ‘sooner or later,’ or, in other words, ‘too little and too late.’ *680 Accordingly, if the President has any power under the Constitution to meet a

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critical situation in the absence of express statutory authorization, there is no basis whatever for criticizing the exercise of such power in this case.

II. The steel mills were seized for a public use. The power of eminent domain, invoked in that case, is an essential attribute of sovereignty and has long been recognized as a power of the Federal Government. Kohl v. United States, 1876, 91 U.S. 367, 23 L.Ed. 449. Plaintiffs cannot complain that any provision in the Constitution prohibits the exercise of the power of eminent domain in this case. The Fifth Amendment provides: “nor shall private property be taken for public use, without just compensation.” It is no bar to this seizure for, if the taking is not otherwise unlawful, plaintiffs are assured of receiving the required just compensation. United States v. Pewee Coal Co., 1951, 341 U.S. 114, 71 S.Ct. 670, 95 L.Ed. 809. Admitting that the Government could seize the mills, plaintiffs claim that the implied power of eminent domain can be exercised only under an Act of Congress; under no circumstances, they say, can that power be exercised by the President unless he can point to an express provision in enabling legislation. This was the view adopted by the District Judge when he granted the preliminary injunction. Without an answer, without hearing evidence, he determined the issue on the basis of his “fixed conclusion * * * that defendant’s acts are illegal” because the President’s only course in the face of an

emergency is to present the matter to Congress and await the final passage of legislation which will enable the Government to cope with threatened disaster. Under this view, the President is left powerless at the very moment when the need for action may be most pressing and when no one, other than he, is immediately *681 capable of action. Under this view, he is left powerless because a power not expressly given to Congress is nevertheless found to rest exclusively with Congress. Consideration of this view of executive impotence calls for further examination of the nature of the separation of powers under our tripartite system of Government. The Constitution provides: Art. I, “Section 1. “All legislative Powers herein granted shall be vested in a Congress of the United States, * * *.” Art. II, Section 1. “The executive Power shall be vested in a President of the United States of America. * * *.” Section 2. “The President shall be Commander in Chief of the Army and Navy of the United States, * * *” “He shall have Power, by and

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with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; * * *.” Section 3. “He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; * * * he shall take Care that the Laws be faithfully executed, * * *.’ **936 Art. III, Section 1. “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”” The whole of the ‘executive Power’ is vested in the President. Before entering office, the President swears that he “will faithfully execute the Office of President of the *682 United States, and will to the best of (his) Ability, preserve, protect and defend the Constitution of the United States.” Art. II, s 1. This comprehensive grant of the executive power to a single person was bestowed soon after the country had thrown the yoke of monarchy. Only by instilling initiative and vigor in all of the three departments of Government, declared Madison, could tyranny in any from be avoided.26 Hamilton added: “Energy in the Executive is a leading character in the definition of good

government. It is essential to the protection of the community against foreign attack; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and highhanded combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.”27 It is thus apparent that the Presidency was deliberately fashioned as an office of power and independence. Of course, the Framers created no autocrat capable of arrogating any power unto himself at any time. But neither did they create an automaton impotent to exercise the powers of Government at a time when the survival of the Republic itself may be at stake. In passing upon the grave constitutional question presented in this case, we must never forget, as Chief Justice Marshall admonished, that the Constitution is “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs,” and that “(i)ts means are adequate to its ends.”28 Cases do arise presenting questions which could not have been foreseen by the Framers. In such cases, the Constitution has been treated as a living document adaptable to new situations.29 *683 But we are not called upon today to expand the Constitution to meet a new situation. For, in this case, we need only look to history and time-honored principles of constitutional law—principles that have been applied consistently by all branches of the Government throughout our history. It is those who assert the invalidity of the Executive Order who seek to amend the Constitution in this case.

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faithful execution of the laws.31 III. A review of executive action demonstrates that our Presidents have on many occasions exhibited the leadership contemplated by the Framers when they made the President Commander in Chief, and imposed upon him the trust to “take Care that the Laws be faithfully executed.” With or without explicit statutory authorization, Presidents have at such times dealt with national emergencies by acting promptly and resolutely to enforce legislative programs, at least to save those programs until Congress could act. Congress and the courts have responded to such executive initiative with consistent approval. Our first President displayed at once the leadership contemplated by the Framers. When the national revenue laws were openly flouted in some sections of Pennsylvania, President Washington, without waiting for a call from the state government, summoned the militia and took decisive steps **937 to secure the faithful execution of the laws.30 When international disputes engendered by the French revolution threatened to involve this country in war, and while congressional policy remained undertain, Washington issued his Proclamation of Neutrality. Hamilton, whose defense of the Proclamation *684 has endured the test of time, invoked the argument that the Executive has the duty to do that which will preserve peace until Congress acts and, in addition, pointed to the need for keeping the Nation informed of the requirements of existing laws and treaties as part of the

President John Adams issued a warrant for the arrest of Jonathan Robbins in order to execute the extradition provisions of a treaty. This action was challenged in Congress on the ground that no specific statute prescribed the method to be used in executing the treaty. John Marshall, then a member of the House of Representatives, made the following argument in support of the President’s action: “The treaty, which is a law, enjoins the performance of a particular object. The person who is to perform this object is marked out by the Constitution, since the person is named who conducts the foreign intercourse, and is to take care that the laws be faithfully executed. The means by which it is to be performed, the force of the nation, are in the hands of this person. Ought not this person to perform the object, although the particular mode of using the means has not been prescribed? Congress, unquestionably may prescribe the mode, and Congress may devolve on others the whole execution of the contract; but, till this be done, it seems the duty of the Executive department to execute the contract by any means it possesses.”32 Efforts in Congress to discredit the President for his action failed.33 Almost a century later, this Court had *685 occasion to give its express approval to “the masterly and conclusive argument of John Marshall.”34 Jefferson’s initiative in the Louisiana Purchase, the Monroe Doctrine, and Jackson’s removal of Government deposits from the Bank of the United States further serve to demonstrate by deed what the Framers described by word when they

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vested the whole of the executive power in the President. Without declaration of war, President Lincoln took energetic action with the outbreak of the War Between the States. He summoned troops and paid them out of the Treasury without appropriation therefor. He proclaimed a naval blockade of the Confederacy and seized ships violating that blockade. Congress, far from denying the validity of these acts, gave them express approval. The most striking action of President Lincoln was the Emancipation Proclamation, issued in aid of the successful prosecution of the War Between the States, but wholly without statutory authority.35 In an action furnishing a most apt precedent for this case, President Lincoln without statutory authority directed the seizure of rail and telegraph lines leading to Washington.36 Many months later, Congress **938 recognized and confirmed the power of the President to seize railroads and telegraph lines and provided criminal penalties for interference with Government operation.37 This Act did not confer on the President any additional powers of seizure. Congress plainly rejected the view that the President’s acts had been without legal sanction until *686 ratified by the legislature. Sponsors of the bill declared that its purpose was only to confirm the power which the President already possessed.38 Opponents insisted a statute authorizing seizure was unnecessary and might even be construed as limiting existing Presidential powers.39

20 L.Ed. 624, three river steamers were seized by Army Quartermasters on the ground of ‘imperative military necessity.’ This Court affirmed an award of compensation, stating:

Other seizures of private property occurred during the War Between the States, just as they had occurred during previous wars.40 In United States v. Russell, 1872, 13 Wall. 623,

“(The President) is enabled to fulfill the duty of his great department, expressed in the phrase that “he shall take care that the laws

“ ‘ Extraordinary and unforeseen occasions arise, however, beyond all doubt, in cases of extreme necessity in time of war or of immediate and impending public danger, in which private property may be impressed into the public service, or may be seized and appropriated to the public use, or may even be destroyed without the consent of the owner.” “Exigencies of the kind do arise in time of war or impending public danger, but it is the emergency, as was said by a great magistrate, that gives the right, *687 and it is clear that the emergency must be shown to exist before the taking can be justified. Such a justification may be shown, and when shown the rule is well settled that the officer taking private property for such a purpose, if the emergency is fully proved, is not a trespasser, and that the government is bound to make full compensation to the owner.”41” In Re Neagle, 1890, 135 U.S. 1, 10 S.Ct. 658, 34 L.Ed. 55, this Court held that a federal officer had acted in line of duty when he was guarding a Justice of this Court riding circuit. It was conceded that there was no specific statute authorizing the President to assign such a guard. In holding that such a statute was not necessary, the Court broadly stated the question as follows:

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be faithfully executed.” ‘Is this duty limited to the enforcement of acts of Congress or of treaties of the United States according to their express terms, or does it include the rights, duties and obligations growing out of the Constitution itself, our international relations, and all the **939 protection implied by the nature of the government under the Constitution?”42 The latter approach was emphatically adopted by the Court. President Hayes authorized the widespread use of federal troops during the Railroad Strike of 1877.43 President Cleveland also used the troops in the Pullman Strike *688 of 1895 and his action is of special significance. No statute authorized this action. No call for help had issued from the Governor of Illinois; indeed Governor Altgeld disclaimed the need for supplemental forces. But the President’s concern was that federal laws relating to the free flow of interstate commerce and the mails be continuously and faithfully executed without interruption.44 To further this aim his agents sought and obtained the injunction upheld by this Court in In re Debs, 1895, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092. The Court scrutinized each of the steps taken by the President to insure execution of the ‘mass of legislation’ dealing with commerce and the mails and gave his conduct full approval. Congress likewise took note of this use of Presidential power to forestall apparent obstacles to the faithful execution of the laws. By separate resolutions, both the Senate and the House commended the Executive’s action.45 President Theodore Roosevelt seriously contemplated seizure of Pennsylvania coal mines if a coal shortage necessitated such

action.46 In his autobiography, President Roosevelt expounded the ‘Stewardship Theory’ of Presidential power, stating that “the executive is subject only to the people, and, under the Constitution, bound to serve the people affirmatively in cases where the Constitution does not explicitly forbid him to render the service.”47 Because the contemplated seizure of the coal mines was based on this theory, then ex-President Taft criticized President Roosevelt in a passage in his book relied upon by the District Court in this case. Taft, Our Chief Magistrate and His Powers (1915), 139—147. In the same book, however, President Taft agreed that *689 such powers of the President as the duty “to take care that the laws be faithfully executed” could not be confined to ‘express Congressional statutes.’ In re Neagle, supra, and In re Debs, supra, were cited as conforming with Taft’s concept of the office, id., at pp. 88—94, as they were later to be cited with approval in his opinion as Chief Justice in Myers v. United States, 1926, 272 U.S. 52, 133, 47 S.Ct. 21, 31, 71 L.Ed. 160.48 In 1909, President Taft was informed that government owned oil lands were being patented by private parties at such a rate that public oil lands would be depleted in a matter of months. Although Congress had explicitly provided that these lands were open to purchase by United States citizens, 29 Stat. 526 (1897), the President nevertheless ordered the lands withdrawn from sale “(i)n aid of proposed legislation.” In United States v. Midwest Oil Co., 1915, 236 U.S. 459, 35 S.Ct. 309, 59 L.Ed. 673, the President’s action was sustained as consistent with executive practice throughout our history. An excellent brief

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was filed in the case by the Solicitor General, Mr. John W. Davis, together with Assistant Attorney General Knaebel, later Reporter for this Court. In this brief, the situation confronting President Taft was described as “an emergency; there was no time to wait for the action of Congress.” **940 The brief then discusses the powers of the President under the Constitution in such a case: “Ours is a self-sufficient Government within its sphere. (Ex parte Siebold, 100 U.S. 371, 395 (25 L.Ed. 717); In re Debs, 158 U.S. 564, 578 (15 S.Ct. 900, 39 L.Ed. 1092).) “Its means are adequate to its ends” (McCulloch v. (State of) Maryland, 4 Wheat. 316, 424 (4 L.Ed. 579)), *690 and it is rational to assume that its active forces will be found equal in most things to the emergencies that confront it. While perfect flexibility is not to be expected in a Government of divided powers, and while division of power is one of the principal features of the Constitution, it is the plain duty of those who are called upon to draw the dividing lines to ascertain the essential, recognize the practical, and avoid a slavish formalism which can only serve to ossify the Government and reduce its efficiency without any compensating good. The function of making laws is peculiar to Congress, and the Executive can not exercise that function to any degree. But this is not to say that all of the subjects concerning which laws might be made are perforce removed from the possibility of Executive influence. The Executive may act upon things and upon men in many relations which have not, though they might have, been actually regulated by Congress. In other words, just as there are fields which are peculiar to Congress and fields which

are peculiar to the Executive, so there are fields which are common to both, in the sense that the Executive may move within them until they shall have been occupied by legislative action. These are not the fields of legislative prerogative, but fields within which the lawmaking power may enter and dominate whenever it chooses. This situation results from the fact that the President is the active agent, not of Congress, but of the Nation. As such he performs the duties which the Constitution lays upon him immediately, and as such, also, he executes the laws and regulations adopted by Congress. He is the agent of the people of the United States, deriving all his powers from them and responsible directly to them. In no *691 sense is he the agent of Congress. He obeys and executes the laws of Congress, not because Congress is enthroned in authority over him, but because the Constitution directs him to do so. ‘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. We are able, however, to present a number of apposite cases which were subjected to judicial inquiry.”

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The brief then quotes from such cases as In re Debs, supra, and In re Neagle, supra, and continues: “As we understand the doctrine of the Neagle case, and the cases therein cited, it is clearly this: The Executive is authorized to exert the power of the United States when he finds this necessary for the protection of the agencies, the instrumentalities, or the property of the Government. This does not mean an authority to disregard the wishes of Congress on the subject, when that subject lies within its control and when those wishes have been expressed, and it certainly does not involve the slightest semblance of a power to legislate, much less to ‘suspend’ **941 legislation already passed by Congress. It involves the performance of specific acts, not of a *692 legislative but purely of an executive character—acts which are not in themselves laws, but which presuppose a ‘law’ authorizing him to perform them. This law is not expressed, either in the Constitution or in the enactments of Congress, but reason and necessity compel that it be implied from the exigencies of the situation. ‘In none of the cases which we have mentioned, nor in the cases cited in the extracts taken from the Neagle case, was it possible to say that the action of the President was directed, expressly or impliedly, by Congress. The situations dealt with had never been covered by any act of Congress, and there was no ground whatever for a contention that the possibility of their occurrence had ever been specifically considered by the legislative mind. In none of those cases did the action of the President amount merely to the execution of some

specific law. ‘Neither does any of them stand apart in principle from the case at bar, as involving the exercise of specific constitutional powers of the President in a degree in which this case does not involve them. Taken collectively, the provisions of the Constitution which designate the President as the official who must represent us in foreign relations, in commanding the Army and Navy, in keeping Congress informed of the state of the Union, in insuring the faithful execution of the laws and in recommending new ones, considered in connection with the sweeping declaration that the executive power shall be vested in him, completely demonstrate that his is the watchful eye, the active hand, the overseeing dynamic force of the United States.”49 *693 This brief is valuable not alone because of the caliber of its authors but because it lays bare in succinct reasoning the basis of the executive practice which this Court approved in the Midwest Oil case. During World War I, President Wilson established a War Labor Board without awaiting specific direction by Congress.50 With William Howard Taft and Frank P. Walsh as co-chairmen, the Board had as its purpose the prevention of strikes and lockouts interfering with the production of goods needed to meet the emergency. Effectiveness of War Labor Board decision was accomplished by Presidental action, including seizure of industrial plants.51 Seizure of the Nation’s railroads was also ordered by President Wilson.52 Beginning with the Bank Holiday Proclamation53 and continuing through World War II, executive leadership and intiative were characteristic of President

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**942 Franklin D. Roosevelt’s administration. In 1939, upon the outbreak *694 of war in Europe, the President proclaimed a limited national emergency for the purpose of strengthening our national defense.54 By May of 1941, the danger from the Axis belligerents having become clear, the President proclaimed ‘an unlimited national emergency’ calling for mobilization of the Nation’s defenses to repel aggression.55 The President took the initiative in strengthening our defenses by acquiring rights from the British Government to establish air bases in exchange for overage destroyers.56 In 1941, President Roosevelt acted to protect Iceland from attack by Axis powers when British forces were withdrawn by sending our forces to occupy Iceland. Congress was informed of this action on the same day that our forces reached Iceland.57 The occupation of Iceland was but one of ‘at least 125 incidents’ in our history in which Presidents, “without Congressinal authorization, and in the absence of a declaration of war, (have) ordered the Armed Forces to take action or maintain positions abroad.”58 Some six months before Pearl Harbor, a dispute at a single aviation plant at Inglewood, California, interrupted a segment of the production of military aircraft. In spite of the comparative insignificance of this work stoppage to total defense production as contrasted with the complete paralysis now threatened by a shutdown of the entire basic steel industry, and even though *695 our armed forces were not then engaged in combat, President Roosevelt ordered the seizure of the plant “pursuant to the powers vested in (him) by the Constitution and laws

of the United States, as President of the United States of America and Commander in Chief of the Army and Navy of the United States.”59 The Attorney General (Jackson) vigorously proclaimed that the President had the moral duty to keep this Nation’s defense effort a ‘going concern.’ His ringing moral justification was coupled with a legal justification equally well stated: “The Presidential proclamation rests upon the aggregate of the Presidential powers derived from the Constitution itself and from statutes enacted by the Congress. ‘The Constitution lays upon the President the duty “to take care that the laws be faithfully executed.” Among the laws which he is required to find means to execute are those which direct him to equip an enlarged army, to provide for a strengthened navy, to protect Government property, to protect those who are engaged in carrying out the business of the Government, and to carry out the provisions of the Lend-Lease Act (22 U.S.C.A. s 411 et seq.). For the faithful execution of such laws the President has back of him not only each general lawenforcement power conferred by the various acts of Congress but the aggregate of all such laws plus that wide discretion as to method vested in him by the Constitution for the purpose of executing the laws. ‘The Constititution also places on the President the responsibility and vests in him the powers of Commander in **943 Chief of the Army and of the Navy. These weapons for the protection of the continued existence of the Nation are placed in his sole command *696 and the implication is clear that he should not allow them to become paralyzed by failure to obtain supplies for

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which Congress has appropriated the money and which it has directed the President to obtain.”60 At this time, Senator Connally proposed amending the Selective Service and Training Act to authorize the President to seize any plant where an interruption of production would unduly impede the defense effort.61 Proponents of the measure in no way implied that the legislation would add to the powers already possessed by the President62 and the amendment was opposed as unnecessary since the President already had the power.63 The amendment relating to plant seizures was not approved at that session of Congress.64 Meanwhile, and also prior to Pearl Harbor, the President ordered the seizure of a shipbuilding company and an aircraft parts plant.65 Following the declaration of war, but prior to the Smith-Connally Act of 1943, five additional industrial concerns were seized to avert interruption *697 of needed production.66 During the same period, the President directed seizure of the Nation’s coal mines to remove an obstruction to the effective prosecution of the war.67 The procedures adopted by President Roosevelt closely resembled the methods employed by President Wilson. A National War Labor Board, like its predecessor of World War I, was created by Executive Order to deal effectively and fairly with disputes affecting defense production.68 Seizures were considered necessary, upon disobedience of War Labor Board orders, to assure that the mobilization effort remained a ‘going concern,’ and to enforce the economic stabilization program. At the time of the seizure of the coal mines,

Senator Connally’s bill to provide a statutory basis for seizures and for the War Labor Board was again before Congress. As stated by its sponsor, the purpose of the bill was not to augment Presidential power, but to “let the country know that the Congress is squarely behind the President.”69 As in the case of the legislative recognition of President Lincoln’s power to seize, Congress again recognized that the President already had the necessary power, for there was no intention to ‘ratify’ past actions of doubtful validity. Indeed, **944 when Senator Tydings offered an amendment to the Connally bill expressly to confirm and validate the seizure of the coal mines, sponsors of the bill *698 opposed the amendment as casting doubt on the legality of the seizure and the amendment was defeated.70 When the Connally bill, S. 796, came before the House, all parts after the enacting clause were stricken and a bill introduced by Representative Smith of Virginia was substituted and passed. This action in the House is significant because the Smith bill did not contain the provisions authorizing seizure by the President but did contain provisions controlling and regulating activities in respect to properties seized by the Government under statute ‘or otherwise.’71 After a conference, the seizure provisions of the Connally bill, enacted as the Smith-Connally or War Labor Disputes Act of 1943, 57 Stat. 163, were agreed to by the House. Following passage of the Smith-Connally Act, seizures to assure continued production on the basis of terms recommended by the War Labor Board were based upon that Act as well as upon the President’s power under the Constitution and the laws generally. A question did arise as to whether the statutory

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language relating to “any plant, mine, or facility equipped for the manufacture, production, or mining of any articles or materials”72 authorized the seizure of properties of Montgomery Ward & Co., a retail department store and mail order concern. The Attorney General (Biddle) issued an opinion that the President possessed the power to seize Montgomery Ward properties to prevent a work stoppage whether or not the terms of the SmithConnally Act authorized such a seizure.73 This opinion was in line with *699 the views on Presidential powers maintained by the Attorney General’s predecessors (Murphy74 and Jackson75) and his successor (Clark76). Accordingly, the President ordered seizure of the Chicago properties of Montgomery Ward in April, 1944, when that company refused to obey a War Labor Board order concerning the bargaining represenative of its employees in Chicago.77 In Congress, a Select Commitee to Investigate Seizure of the Property of Montgomery Ward & Co., assuming that the terms of the SmithConnally Act did not cover this seizure, concluded that the seizure “was not only within the Constitutional power but was the plain duty of the President.”78 Thereafter, an election determined the bargaining representative for the Chicago employees and the properties were returned to Montgomery Ward & Co. In December, 1944, after continued defiance of a series of War Labor Board orders, President Roosevelt ordered the seizure of Montgomery Ward properties throughout the country.79 The Court of Appeals for the Seventh Circuit upheld this seizure on statutory grounds and also indicated its disapproval of a lower court’s denial of seizure power apart from express statute.80

**945 *700 More recently, President Truman acted to repel aggression by employing our armed forces in Korea.81 Upon the intervention of the Chinese Communists, the President proclaimed the existence of an unlimited national emergency requiring the speedy build-up of our defense establishment.82 Congress responded by providing for increased manpower and weapons for our own armed forces, by increasing military aid under the Mutual Security Program and by enacting economic stabilization measures, as previously described. This is but a cursory summary of executive leadership. But it amply demonstrates that Presidents have taken prompt action to enforce the laws and protect the country whether or not Congress happened to provide in advance for the particular method of execution. At the minimum, the executive actions reviewed herein sustain the action of the President in this case. And many of the cited examples of Presidential practice go far beyond the extent of power necessary to sustain the President’s order to seize the steel mills. The fact that temporary executive seizures of industrial plants to meet an emergency have not been directly tested in this Court furnishes not the slightest suggestion that such actions have been illegal. Rather, the fact that Congress and the courts have consistently recognized and given their support to such executive action indicates that such a power of seizure has been accepted throughout our history. History bears out the genius of the Founding Fathers, who created a Government subject to law but not left subject to inertia when vigor and initiative are required.

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*701 IV. Focusing now on the situation confronting the President on the night of April 8, 1952, we cannot but conclude that the President was performing his duty under the Constitution to “take Care that the Laws be faithfully executed’—a duty described by President Benjamin Harrison as “the central idea of the office.”83” The President reported to Congress the morning after the seizure that he acted because a work stoppage in steel production would immediately imperil the safety of the Nation by preventing execution of the legislative programs for procurement of military equipment. And, while a shutdown could be averted by granting the price concessions requested by plaintiffs, granting such concessions would disrupt the price stabilization program also enacted by Congress. Rather than fail to execute either legislative program, the President acted to execute both. Much of the argument in this case has been directed at straw men. We do not now have before us the case of a President acting solely on the basis of his own notions of the public welfare. Nor is there any question of unlimited executive power in this case. The President himself closed the door to any such claim when he sent his Message to Congress stating his purpose to abide by any action of Congress, whether approving or disapproving his seizure action. Here, the President immediately made sure that Congress was fully informed of the

temporary action he had taken only to preserve the legislative programs from destruction until Congress could act. The absence of a specific statute authorizing seizure of the steel mills as a mode of executing the laws—both the military procurement program and the anti-inflation program—has not until today been thought to prevent *702 the President from executing the laws. Unlike an administrative commission confined to the enforcement of the statute under which it was created, or the head to a department when administering a particular statute, the **946 President is a constitutional officer charged with taking care that a ‘mass of legislation’ be executed. Flexibility as to mode of execution to meet critical situations is a matter of practical necessity. This practical construction of the ‘Take Care’ clause, advocated by John Marshall, was adopted by this Court in In re Neagle, In re Debs and other cases cited supra. See also Ex parte Quirin, 1942, 317 U.S. 1, 26, 63 S.Ct. 2, 10, 87 L.Ed. 3. Although more restrictive views of executive power, advocated in dissenting opinions of Justices Holmes, McReynolds and Brandeis, were emphatically rejected by this Court in Myers v. United States, supra, members of today’s majority treat these dissenting views as authoritative. There is no statute prohibiting seizure as a method of enforcing legislative programs. Congress has in no wise indicated that its legislation is not to be executed by the taking of private property (subject of course to the payment of just compensation) if its legislation cannot otherwise be executed. Indeed, the Universal Military Training and Service Act authorizes the seizure of any

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

plant that fails to fill a Government contract84 or the properties of any steel producer that fails to allocate steel as directed for defense production.85 And the Defense Production Act authorizes the President to requisition equipment and condemn real property needed without delay in the defense effort.86 Where Congress authorizes seizure in instances not necessarily crucial to the defense *703 program, it can hardly be said to have disclosed an intention to prohibit seizures where essential to the execution of that legislative program. Whatever the extent of Presidential power on more tranquil occasions, and whatever the right of the President to execute legislative programs as he sees fit without reporting the mode of execution to Congress, the single Presidential purpose disclosed on this record is to faithfully execute the laws by acting in an emergency to maintain the status quo, thereby preventing collapse of the legislative programs until Congress could act. The President’s action served the same purposes as a judicial stay entered to maintain the status quo in order to preserve the jurisdiction of a court. In his Message to Congress immediately following the seizure, the President explained the necessity of his action in executing the military procurement and anti-inflation legislative programs and expressed his desire to cooperate with any legislative proposals approving, regulating or rejecting the seizure of the steel mills. Consequently, there is no evidence whatever of any Presidential purpose to defy Congress or act in any way inconsistent with the legislative will.

In United States v. Midwest Oil Co., supra, this Court approved executive action where, as here, the President acted to preserve an important matter until Congress could act— even though his action in that case was contrary to an express statute. In this case, there is no statute prohibiting the action taken by the President in a matter not merely important but threatening the very safety of the Nation. Executive inaction in such a situation, courting national disaster, is foreign to the concept of energy and initiative in the Executive as created by the Founding Fathers. The Constitution was itself “adopted in a period of grave emergency. * * * While emergency does not create power, emergency may furnish *704 the occasion for the exercise of power.”87 The Framers knew, as we should know in these times of peril, that there is real danger in Executive weakness. There is no cause to fear Executive tyranny so long as the laws **947 of Congress are being faithfully executed. Certainly there is no basis for fear of dictatorship when the Executive acts, as he did in this case, only to save the situation until Congress could act.

V. Plaintiffs place their primary emphasis on the Labor Management Relations Act of 1947, hereinafter referred to as the TaftHartley Act, but do not contend that that Act contains any provision prohibiting seizure. Under the Taft-Hartley Act, as under the Wagner Act, collective bargaining and the right to strike are at the heart of our national labor policy. Taft-Hartley preserves the right

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

to strike in any emergency, however serious, subject only to an 80-day delay in cases of strikes imperiling the national health and safety.88 In such a case, the President may appoint a board of inquiry to report the facts of the labor dispute. Upon receiving that report, the President may direct the Attorney General to petition a District Court to enjoin the strike. If the injunction is granted, it may continue in effect for no more than 80 days, during which time the board of inquiry makes further report and efforts are made to settle the dispute. When the injunction is dissolved, the President is directed to submit a report to Congress together with his recommendations.89 Enacted after World War II, Taft-Hartley restricts the right to strike against private employers only to a limited *705 extent and for the sole purpose of affording an additional period of time within which to settle the dispute. Taft-Hartley in no way curbs strikes before an injunction can be obtained and after an 80-day injunction is dissolved. Plaintiffs admit that the emergency procedures of Taft-Hartley are not mandatory. Nevertheless, plaintiffs apparently argue that, since Congress did provide the 80-day injunction method for dealing with emergency strikes, the President cannot claim that an emergency exists until the procedures of Taft-Hartley have been exhausted. This argument was not the basis of the District Court’s opinion and, whatever merit the argument might have had following the enactment of Taft-Hartley, it loses all force when viewed in light of the statutory pattern confronting the President in this case.

In Title V of the Defense Production Act of 1950,90 Congress stated: “It is the intent of Congress, in order to provide for effective price and wage stabilization pursuant to title IV of this Act and to maintain uninterrupted production, that there be effective procedures for the settlement of labor disputes affecting national defense.” s 501. Title V authorized the President to initiate labor-management conferences and to take action appropriate to carrying out the recommendations of such conferences and the provisions of Title V. s 502. Due regard is to be given to collective bargaining practice and stabilization policies and no action taken is to be inconsistent with TaftHartley and other laws. s 503. The purpose of these provisions was to authorize the President “to establish a board, commission or other agency, similar *706 to the War Labor Board of World War II, to carry out the title.”91 The President authorized the Wage Stabilization Board (WSB), which administers the wage stabilization functions of Title IV of the Defense Production Act, also to deal with labor disputes affecting the defense **948 program.92 When extension of the Defense Production Act was before Congress in 1951, the Chairman of the Wage Stabilization Board described in detail the relationship between the Taft-Hartley procedures applicable to labor disputes imperiling the national health and safety and the new WSB dispute procedures especially devised for settlement of labor disputes growing out of the needs of the defense program.93 Aware that a technique separate from Taft-Hartley had been devised,

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

members of Congress attempted to divest the WSB of its disputes powers. These attempts were defeated in the House, were not brought to a vote in the Senate and the Defense Production Act was extended through June 30, 1952, without change in the disputes powers of the WSB.94 *707 Certainly this legislative creation of a new procedure for dealing with defense disputes negatives any notion that Congress intended the earlier and discretionary Taft-Hartley procedure to be an exclusive procedure. Accordingly, as of December 22, 1951, the President had a choice between alternate procedures for settling the threatened strike in the steel mills: one route created to deal with peacetime disputes; the other route specially created to deal with disputes growing out of the defense and stabilization program. There is no question of by-passing a statutory procedure because both of the routes available to the President in December were based upon statutory authorization. Both routes were available in the steel dispute. The Union, by refusing to abide by the defense and stabilization program, could have forced the President to invoke Taft-Hartley at that time to delay the strike a maximum of 80 days. Instead, the Union agreed to cooperate with the defense program and submit the dispute to the Wage Stabilization Board. Plaintiffs had no objection whatever at that time to the President’s choice of the WSB route. As a result, the strike was postponed, a WSB panel held hearings and reported the position of the parties and the WSB recommended the terms of a settlement which it found were fair and equitable. Moreover, the WSB performed a function

which the board of inquiry contemplated by Taft-Hartley could not have accomplished when it checked the recommended wage settlement against its own wage stabilization regulations issued pursuant to its stabilization functions under Title IV of the Defense Production Act. Thereafter, the parties bargained on the basis of the WSB recommendation. When the President acted on April 8, he had exhausted the procedures for settlement available to him. Taft-Hartley was a route parallel to, not connected with, the WSB procedure. The strike had been delayed 99 *708 days as contrasted with the maximum delay of 80 days under Taft-Hartley. There had been a hearing on the issues in dispute and bargaining which promised settlement up to the very hour before seizure had broken down. Faced with immediate national peril through stoppage in steel production on the one hand and faced with destruction of the wage and price legislative programs on the other, the President took temporary possession of the steel mills as the only course **949 open to him consistent with his duty to take care that the laws be faithfully executed. Plaintiffs’ property was taken and placed in the possession of the Secretary of Commerce to prevent any interruption in steel production. It made no difference whether the stoppage was caused by a union-management dispute over terms and conditions of employment, a unionGovernment dispute over wage stabilization or a management-Government dispute over price stabilization. The President’s action has thus far been effective, not in settling the dispute, but in saving the various legislative

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

programs at stake from destruction until Congress could act in the matter.

VI. The diversity of views expressed in the six opinions of the majority, the lack of reference to authoritative precedent, the repeated reliance upon prior dissenting opinions, the complete disregard of the uncontroverted facts showing the gravity of the emergency and the temporary nature of the taking all serve to demonstrate how far afield one must go to affirm the order of the District Court. The broad executive power granted by Article II to an officer on duty 365 days a year cannot, it is said, be invoked to avert disaster. Instead, the President must confine himself to sending a message to Congress recommending action. Under this messenger-boy concept of *709 the Office, the President cannot even act to preserve legislative programs from destruction so that Congress will have something left to act upon. There is no judicial finding that the executive action was unwarranted because there was in fact no basis for the President’s finding of the existence of an emergency95 for, under this view, the gravity of the emergency and the immediacy of the threatened disaster are considered irrelevant as a matter of law. Seizure of plaintiffs’ property is not a pleasant undertaking. Similarly unpleasant to a free country are the draft which disrupts the home and military procurement which causes economic dislocation and compels

adoption of price controls, wage stabilization and allocation of materials. The President informed Congress that even a temporary Government operation of plaintiffs’ properties was ‘thoroughly distasteful’ to him, but was necessary to prevent immediate paralysis of the mobilization program. Presidents have been in the past, and any man worthy of the Office should be in the future, free to take at least interim action necessary to execute legislative programs essential to survival of the Nation. A sturdy judiciary should not be swayed by the unpleasantness or unpopularity of necessary executive action, but must independently determine for itself whether the President was acting, as required by the Constitution, to “take Care that the Laws be faithfully executed.” As the District Judge stated, this is no time for ‘timorous’ judicial action. But neither is this a time for timorous executive action. Faced with the duty of executing the defense programs which Congress had enacted and the disastrous effects that any stoppage in steel production would have on those programs, the President acted to preserve those programs by seizing the steel mills. *710 There is no question that the possession was other than temporary in character and subject to congressional direction—either approving, disapproving or regulating the manner in which the mills were to be administered and returned to the owners. The President immediately informed Congress of his action and clearly stated his intention to abide by the legislative will. No basis for claims of arbitrary action, unlimited powers or dictatorial usurpation of congressional power appears from the facts of this case.

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

On the contrary, judicial, legislative and executive precedents throughout our history demonstrate that in this case the President acted in full conformity with his duties under the Constitution. Accordingly, we would reverse the order of the District Court.

Parallel Citations 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153, 62 Ohio Law Abs. 417, 62 Ohio Law Abs. 473, 47 O.O. 430, 47 O.O. 460, 21 Lab.Cas. P 67,008

Footnotes This Board was established under Executive Order 10233, 50 U.S.C.A.Appendix, s 2071 note, 16 Fed.Reg. 3503, U.S.Code Cong. 1 Service 1951, p. 1018.

2

The Selective Service Act of 1948, 62 Stat. 604, 625—627, 50 U.S.C.App. (Supp. IV) s 468, 50 U.S.C.A.Appendix, s 468; the Defense Production Act of 1950, Tit. II, 64 Stat. 798, as amended, 65 Stat. 132, 50 U.S.C.A.Appendix, s 2081.

3

93 Cong.Rec. 3637—3645.

4

93 Cong.Rec. 3835—3836.

5

Labor Management Relations Act, 1947, 61 Stat. 136, 152—156, 29 U.S.C. (Supp. IV) ss 141, 171—180, 29 U.S.C.A. ss 141, 171—180.

1

A Hamilton may be matched againt a Madison. 7 The Works of Alexander Hamilton, 76—117; 1 Madison, Letters and Other Writings, 611—654. Professor Taft is counterbalanced by Theodore Roosevelt. Taft, Our Chief Magistrate and His Powers, 139— 140; Theodore Roosevelt, Autobiography, 388—389. It even seems that President Taft cancels out Professor Taft. Compare his ‘Temporary Petroleum Withdrawal No. 5’ of September 27, 1909, United States v. Midwest Oil Co., 236 U.S. 459, 467, 468, 35 S.Ct. 309, 311, 59 L.Ed. 673, with his appraisal of executive power in “Our Chief Magistrate and His Powers” 139—140.

2

It is in this class of cases that we find the broadest recent statements of presidential power, including those relied on here. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 221, 81 L.Ed. 255, involved, not the question of the President’s power to act without congressional authority, but the question of his right to act under and in accord with an Act of Congress. The constitutionality of the Act under which the President had proceeded was assailed on the ground that it delegated legislative powers to the President. Much of the Court’s opinion is dictum, but the ratio decidendi is contained in the following language: “When the President is to be authorized by legislation to act in respect of a matter intended to affect a situation in foreign territory, the legislator properly bears in mind the important consideration that the form of the President’s action—or, indeed, whether he shall act at all—may well depend, among other things, upon the nature of the confidential information which he has or may thereafter receive, or upon the effect which his action may have upon our foreign relations. This consideration, in connection with what we have already said on the subject, discloses the unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed. As this court said in Mackenzie v. Hare, 239 U.S. 299, 311, 36 S.Ct. 106, 108, 60 L.Ed. 297, “As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other countries. We should hesitate long before limiting or embarrasing such powers.” (Italics supplied.)” That case does not solve the present controversy. It recognized internal and external affairs as being in separate categories, and held that the strict limitation upon congressional delegations of power to the President over internal affairs does not apply with respect to delegations of power in external affairs. It was intimated that the President might act in external affairs without congressional authority, but not that he might act contrary to an Act of Congress. Other examples of wide definition of presidential powers under statutory authorization are Chicago & Southern Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568, and Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774. But see, Jecker v. Montgomery, 13 How. 498, 515, 14 L.Ed. 240; Western Union Telegraph Co. v. United States, D.C., 272 F. 311, affirmed, 2 Cir., 272 F. 893, reversed on consent of the parties, 260 U.S. 754, 43 S.Ct. 91, 67 L.Ed. 497; United States Harness Co. v. Graham, D.C., 288 F. 929.

3

Since the Constitution implies that the writ of habeas corpus may be suspended in certain circumstances but does not say by whom, President Lincoln asserted and maintained it as an executive function in the face of judicial challenge and doubt. Ex parte Merryman, 17 Fed.Cas. 144, No. 9,487; Ex parte Milligan, 4 Wall. 2, 125, 18 L.Ed. 281; see Ex parte Bollman, 4 Cranch, 75, 101, 2 L.Ed. 554. Congress eventually ratified his action. Habeas Corpus Act of March 3, 1863, 12 Stat. 755. See Hall, Free Speech in War Time, 21 Col.L.Rev. 526. Compare Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160, with Humphrey’s

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153... Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611, and Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, with the case at bar. Also compare Ex parte Vallandigham, 1 Wall. 243, 17 L.Ed. 589, with Ex parte Milligan, supra.

4

President Roosevelt’s effort to remove a Federal Trade Commissioner was found to be contrary to the policy of Congress and impinging upon an area of congressional control, and so his removal power was cut down accordingly. Humphrey’s Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611. However, his exclusive power of removal in executive agencies, affirmed in Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160, continued to be asserted and maintained. Morgan v. Tennessee Valley Authority, 6 Cir., 115 F.2d 990, certiorari denied 312 U.S. 701, 61 S.Ct. 806, 85 L.Ed. 1135; In re Power to Remove Members of the Tennessee Valley Authority, 39 O.A.G. 145; President Roosevelt’s Message to Congress of March 23, 1938, The Public Papers and Addresses of Franklin D. Roosevelt, 1938 (Rosenman), 151.

5

The oft-cited Louisiana Purchase had nothing to do with the separation of powers as between the President and Congress, but only with state and federal power. The Louisiana Purchase was subject to rather academic criticism, not upon the ground that Mr. Jefferson acted without authority from Congress, but that neither had express authority to expand the boundaries of the United States by purchase or annexation. Mr. Jefferson himself had strongly opposed the doctrine that the State’s delegation of powers to the Federal Government could be enlarged by resort to implied powers. Afterwards in a letter to John Breckenridge, dated August 12, 1803, he declared: “The Constitution has made no provision for our holding foreign territory, still less for incorporating foreign nations into our Union. The executive in seizing the fugitive occurrence which so much advances the good of their country, have done an act beyond the Constitution. The Legislature is casting behind them metaphysical subtleties, and risking themselves like faithful servants, must ratify and pay for it, and throw themselves on their country for doing for them unauthorized, what we know they would have done for themselves had they been in a situation to do it.” 10 The Writings of Thomas Jefferson 407.

6

Selective Service Act of 1948, s 18, 62 Stat. 625, 50 U.S.C.App. (Supp. IV) s 468(c), 50 U.S.C.A.Appendix, s 468(c).

7

Defense Production Act of 1950, s 201, 64 Stat. 799, amended, 65 Stat. 132, 50 U.S.C.App. (Supp. IV) s 2081, 50 U.S.C.A.Appendix, s 2081. For the latitude of the condemnation power which underlies this Act, see United States v. Westinghouse Elec. & Mfg. Co., 339 U.S. 261, 70 S.Ct. 644, 94 L.Ed. 816, and cases therein cited.

8

Labor Management Relations Act, 1947, ss 1, 206—210, 61 Stat. 136, 155, 156, 29 U.S.C. (Supp. IV) ss 141, 176—180, 29 U.S.C.A. ss 141, 176—180. The analysis, history and application of this Act are fully covered by the opinion of the Court, supplemented by that of Mr. Justice FRANKFURTER and of Mr. Justice BURTON, in which I concur.

9

“* * * he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices * * *.” U.S.Const. Art. II, s 2. He “* * * shall Commission all the Officers of the United States.” U.S.Const. Art. II, s 3. Matters such as those would seem to be inherent in the Executive if anything is.

10

How widely this doctrine espoused by the President’s counsel departs from the early view of presidential power is shown by a comparison. President Jefferson, without authority from Congress, sent the American Fleet into the Mediterranean, where it engaged in a naval battle with the Tripolitan fleet. He sent a message to Congress on December 8, 1801, in which he said: “Tripoli, the least considerable of the Barbary States, had come forward with demands unfounded either in right or in compact, and had permitted itself to denounce war on our failure to comply before a given day. The style of the demand admitted but one answer. I sent a small squadron of frigates into the Mediterranean * * * with orders to protect our commerce against the threatened attack. * * * Our commerce in the Mediterranean was blockaded, and that of the Atlantic in peril. * * * One of the Tripolitan cruisers having fallen in with, and engaged the small schooner Enterprise, * * * was captured, after a heavy slaughter of her men * * *. Unauthorized by the constitution, without the sanction of Congress, to go beyond the line of defence, the vessel being disabled from committing further hostilities, was liberated with its crew. The legislature will doubltless consider whether, by authorizing measures of offence, also, they will place our force on an equal footing with that of its adversaries. I communicate all material information on this subject, that in the exercise of the important function confided by the constitution to the legislature exclusively, their judgment may form itself on a knowledge and consideration of every circumstance of weight.” I Richardson, Messages and Papers of the Presidents, 314.

11

U.S.Const., Art. I, s 8, cl. 15.

12

14 Stat. 29, 16 Stat. 143, 8 U.S.C. s 55, 8 U.S.C.A. s 55.

13

20 Stat. 152, 10 U.S.C. s 15, 10 U.S.C.A. s 15.

14

In 1940, President Roosevelt proposed to transfer to Great Britain certain overage destroyers and small patrol boats then under construction. He did not presume to rely upon any claim of constitutional power as Commander-in-Chief. On the contrary, he was

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153... advised that such destroyers—if certified not to be essential to the defense of the United States—could be “transferred, exchanged, sold, or otherwise disposed of,” because Congress had so authorized him. Accordingly, the destroyers were exchanged for air bases. In the same opinion, he was advised that Congress had prohibited the release or transfer of the so-called ‘mosquito boats’ then under construction, so those boats were not transferred. In the Matter of Acquisition of Naval and Air Bases in Exchange for Overage Destroyers, 39 O.A.G. 484. See also Matter of Training British Flying Students in the United States, 40 O.A.G. 58.

15

U.S.Const. Art. II, s 3.

16

President Wilson, just before our entrance into World War I, went before the Congress and asked its approval of his decision to authorize merchant ships to carry defensive weapons. He said: “No doubt I already possess that authority without special warrant of law, by the plain implication of my constitutional duties and powers; but I prefer in the present circumstances not to act upon general implication. I wish to feel that the authority and the power of the Congress are behind me in whatever it may become necessary for me to do. We are jointly the servants of the people and must act together and in their spirit, so far as we can divine and interpret it.” XVII Richardson, op.cit., 8211. When our Government was itself in need of shipping whilst ships flying the flags of nations overrun by Hitler, as well as belligerent merchantmen, were immobilized in American harbors where they had taken refuge, President Roosevelt did not assume that it was in his power to seize such foreign vessels to make up our own deficit. He informed Congress: “I am satisfied, after consultation with the heads of the interested departments and agencies, that we should have statutory authority to take over such vessels as our needs 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 and 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 Adresses of Franklin D. Roosevelt, 1933 (Rosenman), 15. On March 6, 1933, 48 Stat. 1689, 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, s 5(b), as amended, 50 U.S.C.A.Appendix, s 5(b). 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.

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 s 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 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 Steamship Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034. 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, 1947, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884.”

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153... “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, s 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, 18 L.Ed. 281; Duncan v. Kahanamoku, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688.

20

I Nazi Conspiracy and Aggression 126—127; Rossiter, Constitutional Dictatorship, 33—61; Brecht, Prelude to Silence, 138.

21

Rossiter, Constitutional Dictatorship, 117—129.

22

Defense 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.

23

Churchill, The Unrelenting Struggle, 13. See also id., at 279—281.

24

39 Op.Atty.Gen. 348.

25

Wilson, Constitutional Government in the United States, 68—69.

26

Rossiter, The Supreme Court and the Commander in Chief, 126—132.

27

We follow the judicial tradition instituted on a memorable Sunday in 1612, when King James took offense at the independence of his judges and, in rage, declared: “Then I am to be under the law—which it is treason to affirm.” Chief Justice Coke replied to his King: “Thus wrote Bracton, “The King ought not to be under any man, but he is under God and the law. ”” 12 Coke 63 (as to its verity, 18 Eng.Hist.Rev. 664—675); 1 Campbell, Lives of the Chief Justices, 272.

1

‘Article I “Section. 1. All legislative Powers herein granted shall be vested in a Congress of the United States * * *. ‘Section. 8. The Congress shall have Power * * *; ‘To regulate Commerce with foreign Nations, and among the several States * * *; ‘To 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.”

2

61 Stat. 155, 29 U.S.C. (Supp. IV) s 176, 29 U.S.C.A. s 176.

3

61 Stat. 155—156, 29 U.S.C. (Supp. IV) ss 176—180, 29 U.S.C.A. ss 176—180.

4

The Chairman of the Senate Committee sponsoring the bill said in the Senate: “We did not feel that we should put into the law, as a part of the collectivebargaining machinery, an ultimate resort to compulsory arbitration, or to seizure, or to any other action. We feel that it would interfere with the whole process of collective bargaining. If such a remedy is available as a routine remedy, there will always be pressure to resort to it by whichever party thinks it will receive better treatment through such a process than it would receive in collective bargaining, and it will back out of collective bargaining. It will not make a bona-fide attempt to settle if it thinks it will receive a better deal under the final arbitration which may be provided. ‘We have felt that perhaps in the case of a general strike, or in the case of other serious strikes, after the termination of every possible effort to resolve the dispute, the remedy might be an emergency act by Congress for that particular purpose. ‘I have had in mind drafting such a bill, giving power to seize the plants, and other necessary facilities, to seize the unions, their money, and their treasury, and requisition trucks and other equipment; in fact, to do everything that the British did in their general strike of 1926. But while such a bill might be prepared, I should be unwilling to place such a law on the books until we actually face such an emergency, and Congress applies the remedy for the particular emergency only. Eighty days will provide plenty of time within which to consider the possibility of what should be done; and we believe very strongly that there should not be anything in this law which prohibits finally the right to strike.” 93 Cong.Rec. 3835—3836. Part of this quotation was relied upon by this Court in Amalgamated Association of Street Railway & Motor Coach Employees v. Wisconsin Employment Relations Board, 340 U.S. 383, 396, note 21, 71 S.Ct. 359, 366, 95 L.Ed. 364.

5

Under Titles IV and V of the Defense Production Act of 1950, 64 Stat. 803—812, 50 U.S.C.App. (Supp. IV) ss 2101—2123, 50 U.S.C.A.Appendix, ss 2101—2123; and see Exec. Order No. 10233, 50 U.S.C.A.Appendix, s 2071 note, 16 Fed.Reg. 3503.

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80

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

6

Congress has authorized other types of seizure under conditions not present here. Section 201 of the Defense Production Act authorizes the President to acquire specific “real property, including facilities, temporary use thereof, or other interest therein * * *” by condemnation. 64 Stat. 799, as amended, 65 Stat. 132, see 50 U.S.C.App. (Supp. IV) s 2081, 50 U.S.C.A.Appendix, s 2081. There have been no declarations of taking or condemnation proceedings in relation to any of the properties involved here. Section 18 of the Selective Service Act of 1948 authorizes the President to take possession of a plant or other facility failing to fill certain defense orders placed with it in the manner there prescribed. 62 Stat. 625, 50 U.S.C.App. (Supp. IV) s 468, 50 U.S.C.A.Appendix, s 468. No orders have been so placed with the steel plants seized.

7

The President and Congress have recognized the termination of the major hostilities in the total wars in which the Nation has been engaged. Many wartime procedures have expired or been terminated. The War Labor Disputes Act, 57 Stat. 163 et seq., 50 U.S.C.App. ss 1501—1511, 50 U.S.C.A.Appendix, ss 1501—1511, expired June 30, 1947, six months after the President’s declaration of the end of hostilities, 3 CFR, 1946 Supp., p. 77. The Japanese Peace Treaty was approved by the Senate March 20, 1952, 98 Cong.Rec. 2635, and proclaimed by the President April 28, 1952, No. 2974, 17 Fed.Reg. 3813.

1

1804, 2 Cranch 170, 2 L.Ed. 243.

2

2 Cranch at pages 177—178, 2 L.Ed. 243 (emphasis added).

3

Decisions of this Court which have upheld the exercise of presidential power include the following: Prize Cases (The Amy Warwick), 1863, 2 Black 635, 17 L.Ed. 459, (subsequent ratification of President’s acts by Congrss); In re Neagle, 1890, 135 U.S. 1, 10 S.Ct. 658, 34 L.Ed. 55, (protection of federal officials from personal violence while performing official duties); In re Debs, 1895, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092 (injunction to prevent forcible obstruction of interstate commerce and the mails); United States v. Midwest Oil Co., 1915, 236 U.S. 459, 35 S.Ct. 309, 59 L.Ed. 673 (acquiescence by Congress in more than 250 instances of exercise of same power by various Presidents over period of 80 years); Myers v. United States, 1926, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (control over subordinate officials in executive department) (but see Humphrey’s Executor v. United States, 1935, 295 U.S. 602, 626—628, 55 S.Ct. 869, 873, 874, 79 L.Ed. 1611); Hirabayashi v. United States, 1943, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, and Korematsu v. United States, 1944, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (express congressional authorization); cf. United States v. Russell, 1871, 13 Wall. 623, 20 L.Ed. 474 (imperative military necessity in area of combat during war); United States v. Curtiss-Wright Export Corp., 1936, 299 U.S 304, 57 S.Ct. 216, 81 L.Ed. 255 (power to negotiate with foreign governments); United States v. United Mine Workers, 1947, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (seizure under specific statutory authorization).

4

Chief Justice Marshall, in McCulloch v. Maryland, 1819, 4 Wheat. 316, 415, 4 L.Ed. 579.

5

Letter of April 4, 1864, to A. G. Hodges, in 10 Complete Works of Abraham Lincoln (Nicolay and Hay ed. 1894), 66.

6

Roosevelt, Autobiography (1914 ed.), 371—372.

7

Letter of April 4, 1864, to A. G. Hodges, in 10 Complete Words of Abraham Lincoln (Nicolay and Hay ed. 1894), 66.

8

61 Stat. 155, 29 U.S.C. (Supp. IV) s 176, 29 U.S.C.A. s 176.

9

93 Cong.Rec. 3637—3645; cf. id., at 3835—3836.

10

61 Stat. 156, 29 U.S.C. (Supp. IV) s 180, 29 U.S.C.A. s 180.

11

E.g., S.Rep.No.105, 80th Cong., 1st Sess. 15; 93 Cong.Rec. 3835—3836; id., at 4281.

12

The producer must have been notified that the order was placed pursuant to the Act. The Act provides in pertinent part as follows: “(a) Whenever the President after consultation with and receiving advice from the National Security Resources Board determines that it is in the interest of the national security for the Government to obtain prompt delivery of any articles or materials the procurement of which has been authorized by the Congress exclusively for the use of the armed forces of the United States, or for the use of the Atomic Energy Commission, he is authorized, through the head of any Government agency, to place with any person operating a plant, mine, or other facility capable of producing such articles or materials an order for such quantity of such articles or materials as the President deems appropriate. Any person with whom an order is placed pursuant to the provisions of this section shall be advised that such order is placed pursuant to the provisions of this section. ‘(c) In case any person with whom an order is placed pursuant to the provisions of subsection (a) refuses or fails— ‘(2) to fill such order within the period of time prescribed by the President or as soon thereafter as possible as determined by the President; ‘(3) to produce the kind or quality of articles or materials ordered; or

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81

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153... ‘(4) to furnish the quantity, kind, and quality of articles or materials ordered at such price as shall be negotiated between such person and the Government agency concerned; or in the event of failure to negotiate a price, to furnish the quantity, kind, and quality of articles or materials ordered at such price as he may subsequently be determined to be entitled to receive under subsection (d); the President is authorized to take immediate possession of any plant, mine, or other facility of such person and to operate it, through any Government agency, for the production of such articles or materials as may be required by the Government.” 62 Stat. 625, 50 U.S.C.App. (Supp. IV) s 468, 50 U.S.C.A.Appendix, s 468. The Act was amended in 1951 and redesignated the Universal Military Training and Service Act, but no change was made in this section. 65 Stat. 75.

13

39 Stat. 213, 50 U.S.C.A. s 80; 54 Stat. 892.

14

The Government has offered no explanation, in the record, the briefs, or the oral argument, as to why it could not have made both a literal and timely compliance with the provisions of that Act. Apparently the Government could have placed orders with the steel companies for the various types of steel needed for defense purposes, and instructed the steel companies to ship the mate riel directly to producers of planes, tanks, and munitions. The Act does not require that government orders cover the entire capacity of a producer’s plant before the President has power to seize. Our experience during World War I demonstrates the speed with which the Government can invoke the remedy of seizing plants which fail to fill compulsory orders. The Federal Enameling & Stamping Co., of McKees Rocks, Pa., was served with a compulsory order on September 13, 1918, and seized on the same day. The Smith & Wesson plant at Springfield, Mass., was seized on September 13, 1918, after the company had failed to make deliveries under a compulsory order issued the preceding week. Communication from Ordnance Office to War Department Board of Appraisers, entitled “Report on Plants Commandeered by the Ordnance Office,” Dec. 19, 1918, pp. 3, 4, in National Archives, Records of the War Department, Office of the Chief of Ordnance, O.O. 004.002/260. Apparently the Mosler Safe Co., of Hamilton, Ohio, was seized on the same day on which a compulsory order was issued. Id., at 2; Letter from counsel for Mosler Safe Co. to Major General George W. Goethals, Director of Purchase, Storage and Traffic, War Department, Dec. 9, 1918, p. 1, in National Archives, Records of the War Department, Office of the General Staff, PST Division 400.1202.

15

The Orono, C.C.D.Mass.1812, 18 Fed.Cas.No.10,585.

1

What a President may do as a matter of expediency or extremity may never reach a definitive consitutional decision. For example, President Lincoln suspended the writ of habeas corpus, claiming the constitutional right to do so. See Ex part Merryman, 17 Fed.Cas.No.9,487. Congress ratified his action by the Act of March 3, 1863. 12 Stat. 755.

2

Mr. Justice Brandeis, speaking for the Court in United States v. North American Transportation & Trading Co., 253 U.S. 330, 333, 40 S.Ct. 518, 520, 64 L.Ed. 935, stated that the basis of the Government’s liability for a taking of property was legislative authority, “In order that the Government shall be liable to must appear that the officer who has physically taken possession of the property was duly authorized so to do, either directly by Congress or by the official upon whom Congress conferred the power.” That theory explains cases like United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206, where the acts of the officials resulting in a taking were acts authorized by the Congress, though the Congress had not treated the acts us one of appropriation of private property. War-time seizures by the military in connection with military operations, cf. United States v. Russell, 13 Wall. 623, 20 L.Ed. 474, are also in a different category.

1

The power to seize plants under the War Labor Disputes Act ended with the termination of hostilities, proclaimed on Dec. 31, 1946, prior to the incoming of the Eightieth Congress; and the power to operate previously seized plants ended on June 30, 1947, only a week after the enactment of the Labor Management Relations Act over the President’s veto. 57 Stat. 163, 165, 50 U.S.C.App. (1946 ed.) s 1503, 50 U.S.C.A.Appendix, s 1503. See 2 Legislative History of the Labor Management Relations Act, 1947 (published by National Labor Relations Board, 1948), 1145, 1519, 1626.

2

Some of the more directly relevant statements are the following: “In most instances the force of public opinion should make itself sufficiently felt in this 80-day period to bring about a peaceful termination of the controversy. Should this expectation fail, the bill provides for the President laying the matter before Congress for whatever legislation seems necessary to preserve the health and safety of the Nation in the crisis.” Senate Report No. 105, 80th Cong., 1st Sess. 15. “We believe it would be most unwise for the Congress to attempt to adopt laws relating to any single dispute between private parties.” Senate Minority Report, id., Part 2, at 17. In the debates Senator H. Alexander Smith, a member of the Senate Committee on Labor and Public Welfare, said, “In the event of a deadlock and a strike is not ended, the matter is referred to the President, who can use his discretion as to whether he will present the matter to the Congress, whether or not the situation is such that emergency legislation is required.” “Nothing has been done with respect to the Smith-Connally Act. There is no provision for taking over property or running plants by the Government. We simply provide a procedure which we hope will be effective in 99 out of 100 cases where the health or safety of the people may be affected, and still leave a loophole for congressional action.” 93 Cong.Rec. 4281. The President in his veto message said, “* * * it would be mandatory for the President to transfer the whole problem to the

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82

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153... Congress, even if it were not in session. Thus, major economic disputes between employers and their workers over contract terms might ultimately be thrown into the political arena for disposition. One could scarcely devise a less effective method for discouraging critical strikes.” 93 Cong.Rec. 7487.

3

Senator Taft said: “If there finally develops a complete national emergency threatening the safety and health of the people of the United States, Congress can pass an emergency law to cover the particular emergency. * * * ‘We have felt that perhaps in the case of a general strike, or in the case of other serious strikes after the termination of every possible effort to resolve the dispute, the remedy might be an emergency act by Congress for that particular purpose. ‘* * * But while such a bill (For seizure of plants and union funds) might be prepared, I should be unwilling to place such a law on the books until we actually face such an emergency, and Congress applies the remedy for the particular emergency only. Eighty days will provide plenty of time within which to consider the possibility of what should be done; and we believe very strongly that there should not be anything in this law which prohibits finally the right to strike.” 93 Cong.Rec. 3835—3836.

4

93 Cong. Rec. 3637—3645.

5

See, for instance, the statements of James B. Carey, Secretary of the C.I.O., in opposition to S. 2054, 77th Cong., 1st Sess., which eventually became the War Labor Disputes Act. Central to that Act, of course, was the temporary grant of the seizure power to the President. Mr. Carey then said: “Senator Burton. If this would continue forever it might mean the nationalization of industry? ‘Mr. Carey. Let us consider it on a temporary basis. How is the law borne by labor? Here is the Government-sponsored strike breaking agency, and nothing more. ‘Our suggestion of a voluntary agreement of the representatives of industry and labor and Government, participating in calling a conference, is a democratic way. The other one is the imposition of force, the other is the imposition of seizure of certain things for a temporary period; the destruction of collective bargaining, and it would break down labor relations that may have been built up over a long period.” Hearing before a Subcommittee of the Senate Committee on the Judiciary on S. 2054, 77th Cong. 1st Sess. 132.

6

Clearly the President’s message of April 9 and his further letter to the President of the Senate on April 21 do not satisfy this requirement. Cong.Rec., April 9, 1952, pp. 3962—3963; id., April 21, 1952, p. 4192.

7

64 Stat. 798 et seq., 65 Stat. 131 et seq., 50 U.S.C.App. s 2061 et seq., 50 U.S.C.A.Appendix, s 2061 et seq.

8

ss 501, 502, 64 Stat. 798, 812, 50 U.S.C.App. ss 2121, 2122, 50 U.S.C.A.Appendix, ss 2121, 2122.

9

ss 502, 503, 64 Stat. 798, 812, 50 U.S.C.App. ss 2122, 2123, 50 U.S.C.A.Appendix, ss 2122, 2123.

10

The provision of s 502 in S. 3936, as reported by the Senate Committee on Banking and Currency, read as follows: “The President is authorized, after consultation with labor and management, to establish such principles and procedures and to take such action as he deems appropriate for the settlement of labor disputes affecting national defense, including the designation of such persons, boards or commissions as he may deem appropriate to carry out the provisions of this title.” That language was superseded in the Conference Report by the language that was finally enacted. H.R.Rep. No. 3042, 81st Cong., 2d Sess. 16, 35. The change made by the Conference Committee was for the purpose of emphasizing the voluntary nature of the cooperation sought from the public, labor, and management; as Senator Ives explained under repeated questioning, “If any group were to hold out, there would be no agreement (on action to carry out the provisions of this title).” 96 Cong.Rec. 14071—14072. Chairman Maybank of the Senate Committee on Banking and Currency said, “The labor disputes title of the Senate was accepted by the House with amendment which merely indicates more specific avenues through which the President may bring labor and management together.” Id., at 14073.

11

S.Rep. No. 2250, 81st Cong., 2d Sess. 41; H.R.Rep. No. 3042, 81st Cong., 2d Sess. 35. It is hardly necessary to note that Congressional authorization of an agency similar to the War Labor Board does not imply a Congressional grant of seizure power similar to that given the President specifically by s 3 of the War Labor Disputes Act of 1943. The War Labor Board, created by s 7 of the 1943 Act, had only administrative sanctions. See 57 Stat. 163, 166—167; see Report of Senate Committee on Labor and Public Welfare, The Disputes Functions of the Wage Stabilization Board, 1951, S.Rep. No. 1037, 82d Cong., 1st Sess. 6. The seizure power given by Congress in s 3 of the 1943 Act was given to the President, not to the War Labor Board, and was needed only when the War Labor Board reported it had failed; the seizure power was separate and apart from the War Labor Board machinery for settling disputes. At most the Defense Production Act does what s 7 of the War Labor Disputes Act did; the omission of any grant of seizure power similar to s 3 is too obvious not to have been conscious. At any rate, the Wage Stabilization Board differs substantially from the earlier War Labor Board. In 1951 the Senate Committee studying the disputes functions of the Wage Stabilization Board pointed out the substantial differences between that Board and its predecessor and concluded that “The New Wage Stabilization Board * * * does not rely on title V of the Defense Production Act for its authority.” S.Rep.No. 1037, 82d

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83

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153... Cong., 1st Sess., supra, at 4—6.

12

S.Rep. No. 2250, 81st Cong., 2d Sess. 41.

13

See 96 Cong.Rec. 14071.

14

Id., at 12275. Just before the paragraph quoted in the text, Senator Ives had said: “In fact, the courts have upheld the constitutionality of the national emergency provisions of the Labor-Management Relations Act of 1947, which can require that workers stay on the job for at least 80 days when a strike would seriously threaten the national health and safety in peacetime. ‘By the terms of the pending bill, the Labor-Management Relations Act of 1947 would be controlling in matters affecting the relationship between labor and management, including collective bargaining. It seems to me, however, that this is as far as we should go in legislation of this type.”

15

16 Fed.Reg. 3503. The disputes functions were not given to the Wage Stabilization Board under Title V, see note 11, supra, but apparently under the more general Title IV, entitled ‘Price and Wage Stabilization.’

16

See Hearings before a Subcommittee of the House Committee on Education and Labor, Disputes Functions of Wage Stabilization Board, 82d Cong., 1st Sess. (May 28—June 15, 1951); Hearings before the Subcommittee on Labor and Labor-Management Relations of Senate Committee on Labor and Public Welfare, Wage Stabilization and Disputes Program, 82d Cong., 1st Sess. (May 17—June 7, 1951). The resulting Report of the Senate Committee, S.Rep. No. 1037, 82d Cong., 1st Sess. 9, recommended that “Title V of the Defense Production Act be retained” and that “No statutory limitations be imposed on the President’s authority to deal with disputes through voluntary machinery; such limitations, we believe, would infringe on the President’s constitutional power.” (Emphasis added.) The Committee found, id., at 10, that the “Wage Stabilization Board relies completely on voluntary means for settling disputes and is, therefore, an extension of free collective bargaining. The Board has no powers of legal compulsion.” ‘Executive Order No. 10233,’ the Committee found further, “does not in any way run counter to the * * * TaftHartley Act. It is simply an additional tool, not a substitute for these laws.” Of particular relevance to the present case, the Committee declared: “The recommendations of the Wage Stabilization Board in disputes certified by the President have no compulsive force. The parties are free to disregard recommendations of the Wage Stabilization Board * * *. ‘There is, of course, the President’s authority to seize plants under the Selective Service Act (a power not here used), but this is an authority which exists independently of the Wage Stabilization Board and its disputes-handling functions. In any case, seizure is an extraordinary remedy, and the authority to seize, operates whether or not there is a disputes-handling machinery.” Id., at 5.

17

97 Cong.Rec. 8390—8415.

18

65 Stat. 131.

19

Instances of seizure by the President are summarized in Appendix II, infra.

20

One of President Wilson’s seizures has given rise to controversy. In his testimony in justification of the Montgomery Ward seizure during World War II, Attorney General Biddle argued that the World War I seizure of Smith & Wesson could not be supported under any of the World War I statutes authorizing seizure. He thus adduced it in support of the claim of so-called inherent presidential power of seizure. See Hearings before House Select Committee to Investigate the Seizure of Montgomery Ward, 78th Cong., 2d Sess. 167—168. In so doing, he followed the ardor of advocates in claiming everything. In his own opinion to the President, he rested the power to seize Montgomery Ward on the statutory authority of the War Labor Disputes Act, see 40 Ops. Att’y Gen. 312 (1944), and the Court of Appeals decision upholding the Montgomery Ward seizure confined itself to that ground. United States v. Montgomery Ward & Co., 7 Cir., 150 F.2d 369. What Attorney General Biddle said about Smith & Wesson was, of course, post litem motam. Whether or not the World War I statutes were broad enough to justify that seizure, it is clear that the taking officers conceived themselves as moving within the scope of statute law. See n. 3, Appendix II, infra. Thus, whether or not that seizure was within the statute, it cannot properly be cited as a precedent for the one before us. On this general subject, compare Attorney General Knox’s opinion advising President Theodore Roosevelt against the so-called ‘stewardship’ theory of the Presidency. National Archives, Opinions of the Attorney General, Book 31, Oct. 10, 1902 (R.G. 60); Theodore Roosevelt, Autobiography, 388—389; 3 Morison, The Letters of Theodore Roosevelt, 323—366.

1

59 Stat. 1031, 1037 (1945); 91 Cong.Rec. 8190 (1945).

2

U.N. Security Council, U.N. Doc. S/1501 (1950); Statement by the President, June 25, 1950, United States Policy in the Korean Crisis, Dept. of State Pub. (1950), 16.

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84

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

3

U.N. General Assembly, U.N. Doc. A/1771 (1951).

4

61 Stat. 103 (1947), 22 U.S.C.A. s 1401 et seq.

5

62 Stat. 137 (1948), as amended, 63 Stat. 50 (1949), 64 Stat. 198 (1950), 22 U.S.C.A. s 1501 et seq.

6

63 Stat. 2241 (1949), extended to Greece and Turkey, S. Exec. E, 82d Cong., 2d Sess. (1952), advice and consent of the Senate granted. 98 Cong.Rec. 930.

7

63 Stat. 714 (1949), 22 U.S.C.A. s 1571 et seq.

8

S. Execs. A, B, C and D, 82d Cong., 2d Sess. (1952), advice and consent of the Senate granted. 98 Cong.Rec. 2594, 2595, 2605.

9

65 Stat. 373 (1951), 22 U.S.C.A. s 1651.

10

65 Stat. 730 (1951); see H.R.Doc. No. 147, 82d Cong., 1st Sess. 3 (1951).

11

See H.R.Doc. 382, 82d Cong., 2d Sess. (1952).

12

Hearings before Senate Committee on Foreign Relations on the Mutual Security Act of 1952, 82d Cong., 2d Sess. 565—566 (1952); Hearings before House Committee on Foreign Affairs on the Mutual Security Act of 1952, 82d Cong., 2d Sess. 370 (1952).

13

65 Stat. 75 (1951); S.Rep. No. 117, 82d Cong., 1st Sess. 3 (1951).

14

Address by Secretary of Defense Lovett Before the American Society of Newspaper Editors, Washington, April 18, 1952.

15

Fiscal Year 1952, 65 Stat. 423, 760 (1951); F.Y. 1951, 64 Stat. 595, 1044, 1223, 65 Stat. 48, (1950—1951); F.Y. 1950, 63 Stat. 869, 973, 987 (1949); F.Y. 1949, 62 Stat. 647 (1948); F.Y. 1948, 61 Stat. 551 (1947).

16

See H.R.Rep. No. 1685, 82d Cong., 2d Sess. 2 (1952), on H.R. 7391.

17

See H.R.Rep. No. 384, 82d Cong., 1st Sess. 5 (1951); 97 Cong.Rec. 13647—13649.

18

Defense Production Act, Tit. III, 64 Stat. 798 (1950), 65 Stat. 138 (1951), 50 U.S.C.A.Appendix, s 2091 et seq.

19

Note 18, supra, Tits. IV and V, 50 U.S.C.A.Appendix, ss 2101 et seq., 2121 et seq.

20

S.Rep. No. 470, 82d Cong., 1st Sess. 8 (1951).

21

Id., at 8—9.

22

Exec.Order 10340, 17 Fed.Reg. 3139 (1952).

23

Cong.Rec., April 9, 1952, pp. 3962—3963.

24

Cong.Rec., April 21, 1952, p. 4192.

25

Chicago & Southern Air Lines v. Waterman S.S. Corp., 1948, 333 U.S. 103, 111, 68 S.Ct. 431, 436, 92 L.Ed. 568, and cases cited.

26

The Federalist, No. XLVIII.

27

The Federalist, No. LXX.

28

McCulloch v. State of Maryland, 1819, 4 Wheat. 316, 415, 424, 4 L.Ed. 579.

29

United States v. Classic, 1941, 313 U.S. 299, 315—316, 1037—1038, 61 S.Ct. 1031, 85 L.Ed. 1368; Home Building & Loan Ass’n v. Blaisdell, 1934, 290 U.S. 398, 442—443, 241—242, 54 S.Ct. 231, 78 L.Ed. 413.

30

4 Annals of Congress 1411, 1413 (1794).

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85

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

31

IV Works of Hamilton (Lodge ed. 1904) 432—444.

32

10 Annals of Congress 596, 613—614 (1800); also printed in 5 Wheat.App. pp. 3, 27 (1820).

33

10 Annals of Congress 619 (1800).

34

Fong Yue Ting v. United States, 1893, 149 U.S. 698, 714, 13 S.Ct. 1016, 1022, 37 L.Ed. 905.

35

See The Prize Cases (the Amy Warwick), 1863, 2 Black 635, 17 L.Ed. 459; Randall, Constitutional Problems Under Lincoln (1926); Corwin, The President: Office and Powers (1948 ed.), 277—281.

36

War of the Rebellion, Official Records of the Union and Confederate Armies, Series I, Vol. II, pp. 603—604 (1880).

37

12 Stat. 334 (1862).

38

Senator Wade, Cong. Globe, 37th Cong., 2d Sess. 509 (1862); Rep. Blair, id., at 548.

39

Senators Browning, Fessenden, Cowan, Grimes, id., at 510, 512, 516, 520.

40

In 1818, the House Committee on Military Affairs recommended payment of compensation for vessels seized by the Army during the War of 1812. American State Papers, Claims (1834), 649. Mitchell v. Harmony, 1852, 13 How. 115, 134, 14 L.Ed. 75, involving seizure of a wagon train by an Army officer during the Mexican War, noted that such executive seizure was proper in case of emergency, but affirmed a personal judgment against the officer on the ground that no emergency had been found to exist. The judgment was paid by the United States pursuant to Act of Congress. 10 Stat. 727 (1852).

41

13 Wall. at pages 627—628. Such a compensable taking was soon distinguished from the noncompensable taking and destruction of property during the extreme exigencies of a military campaign. United States v. Pacific R. Co., 1887, 120 U.S. 227, 7 S.Ct. 490, 30 L.Ed. 634.

42

135 U.S. at page 64, 10 S.Ct. at page 668.

43

Rich, The President and Civil Disorders (1941), 72—86.

44

Cleveland, The Government in the Chicago Strike of 1894 (1913).

45

26 Cong.Rec. 7281—7284, 7544—7546 (1894).

46

Theodore Roosevelt, Autobiography (1916 ed.), 479—491.

47

Id., at 378.

48

Humphrey’s Executor v. United States, 1935, 295 U.S. 602, 626, 55 S.Ct. 869, 873, 79 L.Ed. 1611, disapproved expressions in the Myers opinion only to the extent that they related to the President’s power to remove members of quasi-legislative and judicial commissions as constrasted with executive employees.

49

Brief for the United States, No. 278, October Term, 1914, pp. 11, 75—77, 88—90.

50

National War Labor Board. Bureau of Labor Statistics, Bull. 287 (1921).

51

Id., at 24—25, 32—34. See also, 2 Official U.S. Bull. (1918) No. 412; 8 Baker, Woodrow Wilson, Life & Letters (1939), 400— 402; Berman, Labor Disputes and the President (1924), 125—153; Pringle, The Life and Times of William Howard Taft (1939), 915—925.

52

39 Stat. 619, 645 (1916), 10 U.S.C.A. s 1361, provides that the President may take possession of any system of transportation in time of war. Following seizure of the railroads by President Wilson, Congress enacted detailed legislation regulating the mode of federal control. 40 Stat. 451 (1918). When Congress was considering the statute authorizing the President to seize communications systems whenever he deemed such action necessary during the war, 40 Stat. 904 (1918), 47 U.S.C.A. s 63 note, Senator (later President) Harding opposed on the ground that there was no need for such stand-by powers because, in event of a present necessity, the Chief Excutive ‘ought to’ seize communications lines, “else he would be unfaithful to his duties as such Chief Executive.” 56 Cong.Rec. 9064 (1918).

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86

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

53

48 Stat. 1689 (1933).

54

54 Stat. 2643 (1939).

55

55 Stat. 1647 (1941).

56

86 Cong.Rec. 11354 (1940) (Message of the President). See 39 Ops.Atty.Gen. 484 (1940). Attorney General Jackson’s opinion did not extend to the transfer of ‘Mosquito boats’ solely because an express statutory prohibition on transfer was applicable.

57

87 Cong.Rec. 5868 (1941) (Message of the President).

58

Powers of the President to Send the Armed Forces Outside the United States, Report prepared by executive department for use of joint committee of Senate Committees on Foreign Relations and Armed Services, 82d Cong., 1st Sess., Committee Print 2 (1951).

59

Exec. Order 8773, 6 Fed.Reg. 2777 (1941).

60

See 89 Cong.Rec. 3992 (1943). The Attorney General also noted that the dispute at North American Aviation was Communist inspired and more nearly resembled an insurrection than a labor strike. The relative size of North American Aviation and the impact of an interruption in production upon our defense effort were not described.

61

87 Cong.Rec. 4932 (1941). See also S. 1600 and S. 2054, 77th Cong., 1st Sess. (1941).

62

Reps. May, Whittington; 87 Cong.Rec. 5895, 5972 (1941).

63

Reps. Dworshak, Feddis, Harter, Dirksen, Hook; 87 Cong.Rec. 5901, 5910, 5974, 5975 (1941).

64

The plant seizure amendment passed the Senate, but was rejected in the House after a Conference Committee adopted the amendment. 87 Cong.Rec. 6424 (1941).

65

Exec. Order 8868, 6 Fed.Reg. 4349 (1941); Exec. Order 8928, 6 Fed.Reg. 5559 (1941).

66

Exec. Order 9141, 7 Fed.Reg. 2961 (1942); Exec. Order 9220, 7 Fed.Reg. 6413 (1942); Exec. Order 9225, 7 Fed.Reg. 6627 (1942); Exec. Order 9254, 7 Fed.Reg. 8333 (1942); Exec. Order 9351, 8 Fed.Reg. 8097 (1943).

67

Exec. Order 9340, 8 Fed.Reg. 5695 (1943).

68

Exec. Order 9017, 7 Fed.Reg. 237 (1942); 1 Termination Report of the National War Labor Board 5—11.

69

89 Cong.Rec. 3807 (1943). Similar views of the President’s existing power were expressed by Senators Lucas, Wheeler, Austin and Barkley. Id., at 3885—3887, 3896, 3992.

70

89 Cong.Rec. 3989—3992 (1943).

71

S. 796, 78th Cong., 1st Sess., ss 12, 13 (1943), as passed by the House.

72

57 Stat. 163, 164 (1943).

73

40 Ops.Atty.Gen. 312 (1944). See also Hearings before House Select Committee to Investigate Seizure of Montgomery Ward & Co., 78th Cong., 2d Sess. 117—132 (1944).

74

39 Ops.Atty.Gen. 343, 347 (1939).

75

Note 60, supra.

76

Letter introduced in Hearings before Senate Committee on Labor and Public Welfare on S. 249, 81st Cong., 1st Sess. 232 (1949) pointing to the ‘exceedingly great’ powers of the President to deal with emergencies even before the Korea crisis.

77

Exec. Order 9438, 9 Fed.Reg. 4459 (1944).

78

H.R.Rep. No. 1904, 78th Cong., 2d Sess. 25 (1944) (the Committee divided along party lines).

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87

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153...

79

Exec. Order 9508, 9 Fed.Reg. 15079 (1944).

80

United States v. Montgomery Ward & Co., 7 Cir., 1945, 150 F.2d 369, reversing D.C.N.D.Ill.1945, 58 F.Supp. 408. See also KenRad Tube & Lamp Corp. v. Badeau, D.C.W.D.Ky.1944, 55 F.Supp. 193, 197—199, where the court held that a seizure was proper with or without express statutory authorization.

81

United States Policy in the Korean Crisis (1950), Dept. of State Pub. 3922.

82

15 Fed.Reg. 9029 (1950).

83

Harrison, This Country of Ours (1897), 98.

84

62 Stat. 604, 626 (1948), 50 U.S.C.App. (Supp. IV) s 468(c), 50 U.S.C.A.Appendix, s 468(c).

85

62 Stat. 604, 627 (1948), 50 U.S.C.App. (Supp. IV) s 468(h)(1), 50 U.S.C.A.Appendix, s 468(h)(1).

86

Tit. II, 64 Stat. 798 (1950), as amended 65 Stat. 138 (1951), 50 U.S.C.A.Appendix, s 2081.

87

Home Building & Loan Ass’n v. Blaisdell, 1934, 290 U.S. 398, 425—426, 54 S.Ct. 231, 235, 78 L.Ed. 413.

88

See Amalgamated Ass’n of Street, Electric Railway & Motor Coach Employees v. Wisconsin Board, 1951, 340 U.S. 383, 71 S.Ct. 359, 95 L.Ed. 364.

89

ss 206—210, Labor Management Relations Act of 1947. 29 U.S.C. (Supp. IV) ss 176—180, 29 U.S.C.A. ss 176—180.

90

64 Stat. 812, 65 Stat. 132 (1950, 1951).

91

H.R.Rep. No. 3042, 81st Cong., 2d Sess. 35 (1950) (Conference Report). See also S.Rep. No. 2250, 81st Cong., 2d Sess. 41 (1950).

92

Exec. Order 10161, 15 Fed.Reg. 6105 (1950), as amended, Exec. Order 10233, 16 Fed.Reg. 3503 (1951), 50 U.S.C.A.Appendix, s 2071 note.

93

Hearings before the House Committee on Banking and Currency on Defense Production Act Amendments of 1951, 82d Cong., 1st Sess. 305—306, 312—313 (1951).

94

The Lucas Amendment to abolish the disputes function of the WSB was debated at length in the House, the sponsor of the amendment pointing out the similarity of the WSB functions to those of the War Labor Board and noting the seizures that occurred when War Labor Board orders were not obeyed. 97 Cong. 8390—8415. The amendment was rejected by a vote of 217 to 113. Id., at 8415. A similar amendment introduced in the Senate was withdrawn. 97 Cong.Rec. 7373—7374. The Defense Production Act was extended without amending Tit. V or otherwise affecting the disputes functions of the WSB. 65 Stat. 132 (1951).

95

Compare Sterling v. Constantin, 1932, 287 U.S. 378, 399—401, 53 S.Ct. 190, 195—196, 77 L.Ed. 375.

End of Document

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88

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Filings (4) Title

PDF

Court

Date

Type

1. Brief for Brotherhood of Locomotive Engineers, Brotherhood of Locomotive Firemen and Enginemen and Order of Railway Conductors as Amici Curiae Youngstown Sheet and Tube Co. v. Sawyer 1952 WL 82550

—

U.S.

May 14, 1952 Brief

2. Brief for Plaintiff Companies, Petitioners in No. 744 and Respondents in No. 745 Youngstown Sheet v. Sawyer 1952 WL 82173

—

U.S.

May 10, 1952 Brief

3. Brief for Armco Steel Corporation and Sheffield Steel Corporation Petitioners in No. 744 and Respondents in No. 745 Youngstown Sheet and Tube Co. v. Sawyer 1952 WL 82174

—

U.S.

May 10, 1952 Brief

4. Brief for the United Steelworkers of America, CIO as Amicus Curiae Sawyer v. The Youngstown Sheet and Tube Co. 1951 WL 82164

—

U.S.

1951

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Brief

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Negative Treatment Negative Direct History The KeyCited document has been negatively impacted in the following ways by events or decisions in the same litigation or proceedings: There is no negative direct history. Negative Citing References (18) The KeyCited document has been negatively referenced by the following events or decisions in other litigation or proceedings: Treatment

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3 S.Ct.

90

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

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© 2012 Thomson Reuters. No claim to original U.S. Government Works.

—

91

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

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92

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

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93

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Appellate History (5)

Direct History (4) 1. Youngstown Sheet & Tube Co. v. Sawyer 103 F.Supp. 569 , D.D.C , Apr. 29, 1952

Order Stayed by 2. Sawyer v. U.S. Steel Co. 197 F.2d 582 , D.C.Cir. , May 02, 1952

AND Certiorari Granted by 3. Youngstown Sheet and Tube Co. v. Sawyer 343 U.S. 937 , U.S.Dist.Col. , May 03, 1952

AND Judgment Affirmed by 4. Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 , U.S.Dist.Col. , Jun. 02, 1952

Related References (1) 5. Youngstown Sheet & Tube Co. v. Sawyer 103 F.Supp. 978 , D.D.C , Apr. 09, 1952

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94

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

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95

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

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6

10

6

10

3

4

6

10

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May 23, 1994

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3

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96

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment Examined by

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97

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment Examined by

Title 14. Al-Bihani v. Obama 619 F.3d 1, 5+ , D.C.Cir.

Date

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4

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12

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Examined by

15. Ramirez de Arellano v. Weinberger 724 F.2d 143, 153+ , D.C.Cir.

Dec. 22, 1983 Case

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Examined by

16. American Federation of Labor and Congress of Indus. Organizations v. Kahn 618 F.2d 784, 787+ , D.C.Cir.

Jun. 22, 1979

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Examined by

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Jun. 23, 1975

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Examined by

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Jan. 25, 1974

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Oct. 12, 1973

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98

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment Examined by

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10

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Jul. 23, 1999

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Apr. 10, 1990

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10

4

10

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10

6

10

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Examined by

23. Mottola v. Nixon 318 F.Supp. 538, 542+ , N.D.Cal.

Sep. 10, 1970 Case

3

S.Ct.

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Examined by

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment Examined by

Title 26. Marschalk Co., Inc. v. Iran Nat. Airlines Corp. 518 F.Supp. 69, 77+ , S.D.N.Y.

Date Jun. 11, 1981

Type Case

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6

10

6

10

6

12

6

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4

6

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Apr. 19, 2010

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3

S.Ct.

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3

S.Ct.

GOVERNMENT - United States. Memorandum issued by the President directing state courts to give effect to ICJ’s Avena decision was not binding.

Examined by

29. Adkins v. Miller 421 S.E.2d 682, 693+ , W.Va.

Jul. 23, 1992

Case

10

S.Ct.

Employees of sheriff’s office brought suit against new sheriff, seeking reinstatement and damages for wrongful discharge. The Circuit Court, Boone County, E. Lee Schlaegel, Jr.,...

Examined by

30. LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT 2006 WL 6179901 (O.L.C.), *2+

2006

Administrative Decision

3

S.Ct.

As the President recently described, in response to the attacks of September 11th, he has authorized the National Security Agency (’’NSA’’) to intercept international...

Examined by

31. Honorable George L. Sellar Wash. AGO 1991 NO. 21 +

1991

Administrative Decision

3

S.Ct.

The legislative authority of the State of Washington is vested in the Legislature. In absence of a statute or constitutional provision that serves as a source of authority...

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

100

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title

Date

32. Treatise on Constitutional Law s 6.11(b), The 2011 Steel Seizure Case Treatise on Constitutional Law

Type

Depth

Other Secondary Source

—

Other Secondary Source

—

Law Review

—

Headnote(s) 3

4

6

6

10

6

10

6

10

6

10

S.Ct.

In Youngstown Sheet & Tube Co. v. Sawyer the Supreme Court discussed the president’s power to impose economic regulations under the commander-in-chief clause and other...

—

33. CJS United States s 47, Powers and duties CJS United States

2012

The executive power of the federal government is vested by the federal Constitution in the President. Constitutional acts of power of the executive department have as much validity...

—

34. ON PRESIDENTS, AGENCIES, AND THE STEM CELLS BETWEEN THEM: A LEGAL ANALYSIS OF PRESIDENT BUSH’S AND THE FEDERAL GOVERNMENT’S POLICY ON THE FUNDING OF R...

2008

3

S.Ct.

3

S.Ct.

On August 9, 2001, President George W. Bush announced his policy on research involving human embryonic stem cells and proclaimed that federal funding would be allocated only to...

—

35. SHOULD FAITH-BASED INITIATIVES BE IMPLEMENTED BY EXECUTIVE ORDER?, 56 Admin. L. Rev. 181, 205+

2004

Law Review

—

3

S.Ct.

Introduction. 181 I. Executive Orders and the Power of the President. 183 A. What Are Executive Orders Used for?. 184 B. Youngstown Sheet & Tube Co. v. Sawyer and the...

—

36. THE IMPOSITION OF MARTIAL LAW IN THE UNITED STATES, 49 A.F. L. Rev. 67, 79+

2000

Law Review

—

3

S.Ct.

’’Necessity hath no law. Feigned necessities, imaginary necessities . are the greatest cozenage that men can put upon the Providence of God, and make pretenses to break known rules...

—

37. EXECUTIVE SEIZURE POWER, 1 A.F. L. Rev. 1959 10, 14+

Law Review

—

3

9

S.Ct.

Since the epic decision in the Steel Seizure Case the question of what constitutes constitutional exercise of executive power has become a burning issue. Out of the vortex of the...

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

101

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 38. STATE & LOCAL ECONOMIC SANCTIONS: THE CONSTITUTIONALITY OF NEW YORK’S DIVESTMENT ACTIONS AND THE SUDAN ACCOUNTABILITY & DIVESTMENT ACT OF 2007, 74 Alb...

Date 2011

Type Law Review

Depth —

Headnote(s) 5

9

S.Ct.

Economic sanctions, the deliberate, governmentmotivated withdrawal, or threat of withdrawal, ‘’of customary trade or financial relations,’’ are a foreign policy tool designed to...

—

39. JUSTICE JACKSON’S DRAFT OPINIONS IN THE STEEL SEIZURE CASES, 69 Alb. L. Rev. 1107, 1133+

2006

Law Review

—

3

6

10

6

10

S.Ct.

Mere moments into his introductory remarks at Judge Samuel Alito’s Supreme Court confirmation hearings, after treading briefly across the familiar, weathered terrain of the...

—

40. HAMDI MEETS YOUNGSTOWN: JUSTICE JACKSON’S WARTIME SECURITY JURISPRUDENCE AND THE DETENTION OF “ENEMY COMBATANTS”, 68 Alb. L. Rev. 1127, 1144+

2005

Law Review

—

3

S.Ct.

More than any Justice who has sat on the United States Supreme Court, Associate Justice Robert H. Jackson explained how our Eighteenth Century Constitution-- that...

—

41. PLANNING FOR PANDEMIC: A NEW MODEL 2011 FOR GOVERNING PUBLIC HEALTH EMERGENCIES, 37 Am. J.L. & Med. 128, 171+

Law Review

—

3

S.Ct.

Imagine the following scenario: The Centers for Disease Control confirms the appearance of a heretofore-unknown virus. It appears highly contagious since it is spreading easily...

—

42. ADVISING PRESIDENTS: ROBERT 2012 JACKSON AND THE DESTROYERS-FOR-BASES DEAL, 52 Am. J. Legal Hist. 1, 135+

Law Review

—

9

10

S.Ct.

In recent years, the process of providing legal advice at the highest levels of government has sparked significant controversies. The present article uses advice given to President...

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

102

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 43. THE WAR ON TERRORISM ON THE JUDICIAL FRONT, PART II: THE COURTS STRIKE BACK, 27 Am. J. Trial Advoc. 473, 516+

Date 2004

Type Law Review

Depth —

Headnote(s) 3

6

10

6

12

6

10

6

10

S.Ct.

In this Article, Arthur Garrison analyzes judicial rulings on the assertions presented by the Bush Administration on the power of the President to meet the challenges of terrorism...

—

44. THE LIMITS OF EXECUTIVE POWER, 59 Am. 2009 U. L. Rev. 259, 336+

Law Review

—

3

S.Ct.

Introduction. 260 I. The Restructuring of Executive and Legislative Power. 265 A. The Federalist on the Allocation of Royal Prerogatives. 265 B. Another Look at the Royal...

—

45. FADE TO BLACK: THE FORMALIZATION OF 2009 JACKSON’S YOUNGSTOWN TAXONOMY BY HAMDAN AND MEDELLIN, 58 Am. U. L. Rev. 665, 698+

Law Review

—

3

S.Ct.

Introduction. 666 I. Background of Jackson’s Concurrence in Youngstown and Its Effect on Separation of Powers Doctrine. 671 A. The ‘’Steel Seizure’’ Case. 671 B. Justice...

—

46. THE UNNECESSARY DEMISE OF THE LINE 1998 ITEM VETO ACT: THE CLINTON ADMINISTRATION’S COSTLY FAILURE TO SEEK ACKNOWLEDGMENT OF “NATIONAL SECURITY RESCISSION”...

Law Review

—

3

S.Ct.

Introduction. 1275 I. Background. 1280 A. The Line Item Veto Act. 1286 1. Background. 1286 2. The provisions of the Line Item Veto Act. 1290 II. Case Law on the...

—

47. THE PRESIDENCY AND ADMINISTRATIVE 1993 VALUE SELECTION, 42 Am. U. L. Rev. 273, 335+

Law Review

—

3

12

S.Ct.

Introduction I. Reagan’s Regulatory Management Program and Administrative Value Selection II. The Role of Value Selection in Administrative Policymaking III. Constitutional Limits...

—

48. THE WAR POWERS RESOLUTION AFTER 1988 FIFTEEN YEARS: A REASSESSMENT, 38 Am. U. L. Rev. 141, 152+

Law Review

—

3

6

12

S.Ct.

The War Powers Resolution, enacted in 1973 over President Nixon’s veto, has fueled the contemporary debate over the constitutional allocation of power to employ United States armed...

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

103

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 49. DAMES & MOORE v. REGAN-RIGHTS IN CONFLICT: THE FIFTH AMENDMENT HELD HOSTAGE, 31 Am. U. L. Rev. 345, 369+

Date 1982

Type Law Review

Depth —

Headnote(s) 3

6

12

6

10

6

10

6

12

6

12

S.Ct.

A conflict has existed between two fundamental constitutional doctrines—the foreign relations power of the Executive and the fifth amendment protection of private property —since...

—

50. EXECUTIVE ORDER 11,246: DOES IT APPLY 1983 TO FEDERAL DEPOSIT INSURANCE?, 2 Ann. Rev. Banking L. 213, 230+

Law Review

—

3

S.Ct.

Deposit insurance is vital to depositor security and public confidence and almost no banks operate without it. The Office of Federal Contract Compliance Programs (OFCCP) recently...

—

51. FROM MUDDLED TO MEDELLÍN: A LEGAL HISTORY OF SOLE EXECUTIVE AGREEMENTS, 51 Ariz. L. Rev. 1035, 1068+

2009

Law Review

—

3

S.Ct.

The legal history of sole executive agreements is muddled at best. Over the years the Supreme Court has created a confused doctrine concerning sole executive agreements through its...

—

52. THE WAR ON JURISDICTION: TROUBLING 2004 QUESTIONS ABOUT EXECUTIVE ORDER 13303, 46 Ariz. L. Rev. 483, 517+

Law Review

—

3

S.Ct.

I. Introduction. 484 II. Why Executive Order 13303 Isn’t a Typical Blocking Order. 487 A. Typical Blocking Orders. 487 B. Executive Order 13303 Isn’t a Typical Blocking...

—

53. IS THERE SUCH A THING AS EXTRACONSTITUTIONALITY?: THE PUZZLING CASE OF DALTON v. SPECTER, 27 Ariz. St. L.J. 845, 874+

1995

Law Review

—

3

S.Ct.

Does a federal official violate the Constitution when he acts beyond all statutory and constitutional authority? In Dalton v. Specter, decided last Term, the Supreme Court said no....

—

54. GLOBAL WARMING AND ORIGINALISM: THE ROLE OF THE EPA IN THE OBAMA ADMINISTRATION, 37 B.C. Envtl. Aff. L. Rev. 225, 228+

2010

Law Review

—

3

S.Ct.

Abstract: Anthropogenic warming will devastate the world if it is not abated. Abating such warming will require a long-term strategy that starts with immediate and drastic action...

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

104

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 55. THE CONGRESSIONAL ROLE IN INTERNATIONAL ENVIRONMENTAL LAW AND ITS IMPLICATIONS FOR STATUTORY INTERPRETATION, 19 B.C. Envtl. Aff. L. Rev. 287, 315+

Date 1991

Type Law Review

Depth —

Headnote(s) 3

6

10

6

9

6

10

S.Ct.

A host of environmental problems have international dimensions. The United States’s climate may depend in part on how much deforestation occurs in the Amazon jungle. The ozone...

—

56. PRESIDENTIAL POWER AND CONSTITUTIONAL RESPONSIBILITY, 52 B.C. L. Rev. 1551, 1588+

2011

Law Review

—

3

S.Ct.

Abstract: Some constitutional theorists defend unbounded executive power to respond to emergencies or expansive discretionary powers to complete statutory directives. Against these...

—

57. IMPERSONATING THE LEGISLATURE: 2008 STATE ATTORNEYS GENERAL AND PARENS PATRIAE PRODUCT LITIGATION, 49 B.C. L. Rev. 913, 954+

Law Review

—

3

S.Ct.

Abstract: The state attorney general has emerged during the past decade as a ‘’super plaintiff’’ in state parens patriae litigation against manufacturers of cigarettes,...

—

2007

Law Review

—

59. A TALE OF NEW PRECEDENTS: JAPANESE 1998 AMERICAN INTERNMENT AS FOREIGN AFFAIRS LAW, 40 B.C. L. Rev. 179, 181+

Law Review

—

58. BEYOND REPROACH? THE MILITARY COMMISSIONS ACT OF 2006 AND THE SUPREME COURT’S INABILITY TO NULLIFY EXECUTIVE INTERPRETATIONS OF WHAT CONSTITUTES A NON...

—

Abstract: In response to Hamdan v. Rumsfeld, the U.S. Congress passed the Military Commissions Act of 2006, authorizing the President to determine what actions related to the...

—

3

4

6

S.Ct.

In a recently published book on the status of civil liberties in wartime, Chief Justice William H. Rehnquist offers a surprising defense and rationalization of the Japanese...

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

105

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 60. PRESIDENTIAL REGULATION OF PRIVATE EMPLOYMENT: CONSTITUTIONALITY OF EXECUTIVE ORDER 12,954 DEBARMENT OF CONTRACTORS WHO HIRE PERMANENT STRIKER REPLACE...

Date 1996

Type Law Review

Depth —

Headnote(s) 3

6

10

4

6

S.Ct.

A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually...

—

61. A TALE OF NEW PRECEDENTS: JAPANESE 1998 AMERICAN INTERNMENT AS FOREIGN AFFAIRS LAW, 19 B.C. Third World L.J. 179, 181+

Law Review

—

3

S.Ct.

In a recently published book on the status of civil liberties in wartime, Chief Justice William H. Rehnquist offers a surprising defense and rationalization of the Japanese...

—

62. PRESIDENTIAL LEGISLATING IN THE POST- 1996 COLD WAR ERA: A CRITIQUE OF THE BARR OPINION ON EXTRATERRITORIAL ARRESTS, 14 B.U. Int’l L.J. 1, 53+

Law Review

—

3

5

S.Ct.

c1-3Table of contents I. Introduction . 1 II. Executive Unilateralism and International Law . 13 A. Legislating Foreign Policy . 14 B. ‘Sole Organ’ vs. Power Sharing . 20 C. The...

—

63. TOWARD A REPRESENTATIONAL THEORY 2011 OF THE EXECUTIVE The Unitary Executive: Presidential Power from Washington to Bush By Steven G. Calabresi & Christoph...

Law Review

—

3

6

10

6

9

S.Ct.

Introduction. 273 I. The New History of The Unitary Executive. 276 A. A Not-Quite-Unitary History. 277 B. Felix Frankfurter and the Acquiescence Problem. 280 II. History and...

—

64. ELEVEN REASONS WHY PRESIDENTIAL POWER INEVITABLY EXPANDS AND WHY IT MATTERS, 88 B.U. L. Rev. 505, 522+

2008

Law Review

—

3

S.Ct.

Introduction. 505 I. The Expansion in Presidential Power. 507 A. Background. 507 B. Reasons Why Presidential Power Continues to Expand. 509 1. The Constitutional...

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

106

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title

Date

65. JUDGING TERROR IN THE “ZONE OF 2004 TWILIGHT” : EXIGENCY, INSTITUTIONAL EQUITY, AND PROCEDURE AFTER SEPTEMBER 11, 84 B.U. L. Rev. 383, 443+

Type Law Review

Depth —

Headnote(s) 3

4

6

9

10

6

10

4

10

S.Ct.

Introduction. 384 I. Three Values for Law in Crisis: Exigency, Equality, and Integrity. 390 A. Exigency. 391 B. Equality. 394 C. Integrity. 397 II. Deference as Dominant...

—

66. CHALLENGING THE EXECUTIVE: THE 2011 CONSTITUTIONALITY OF CONGRESSIONAL REGULATION OF THE PRESIDENT’S WARTIME DETENTION POLICIES, 2011 B.Y.U. L. Rev. 2283, ...

Law Review

—

3

S.Ct.

The war on terrorism has involved several clashes on the political home front, with the President and Congress asserting conflicting policies. A recent example is Congress’s effort...

—

67. THE SOUND OF CONGRESSIONAL SILENCE: JUDICIAL DISTORTION OF THE LEGISLATIVE-EXECUTIVE BALANCE OF POWER, 2009 B.Y.U. L. Rev. 225, 251+

2009

Law Review

—

3

S.Ct.

[C]ongress has a wonderful power that only judges and lawyers know about. Congress has a power to keep silent. . . . Of course, when [C]ongress keeps silent, it takes an expert to...

—

68. EXTENDING HAMDAN V. RUMSFELD TO COMBATANT STATUS REVIEW TRIBUNALS, 2007 B.Y.U. L. Rev. 1365, 1412+

2007

Law Review

—

3

S.Ct.

In Hamdan v. Rumsfeld, the United States Supreme Court struck down a military commission convened by the President to try foreign nationals for violations of the law of war. Over...

—

69. CONSTITUTIONAL SEPARATION OF WAR POWERS: PROTECTING PUBLIC AND PRIVATE LIBERTY, 57 Brook. L. Rev. 1083, 1192+

1992

Law Review

—

3

S.Ct.

I. Basic Principles: An Overview. 1087 A. The Executive Power. 1087 B. Separation of Powers. 1089 C. The Preamble. 1094 D. Necessary and Proper. 1100 E. Oath or Affirmation....

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

107

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 70. FORGET THE WHALES: EXPANDING THE TWILIGHT AND DIMINISHING THE NADIR OF YOUNGSTOWN, 24 BYU J. Pub. L. 149, 165+

Date 2009

Type Law Review

Depth —

Headnote(s) 3

6

12

6

10

6

10

5

6

4

6

S.Ct.

Moments into then-Judge Samuel Alito’s 2006 confirmation hearings, members of the Senate Judiciary Committee promptly directed their discussion toward the limits of presidential...

—

71. REPRESSING ERIE’S MYTH, 96 Cal. L. Rev. 595, 660+

2008

Law Review

—

3

S.Ct.

Some cases are not just cases; they are icons. Built of more than ordinary facts and holdings, at least three decisions stand as cultural pillars of our legal architecture: Marbury...

—

72. IN DEFENSE OF BROAD RECESS APPOINTMENT POWER: THE EFFECTIVENESS OF POLITICAL COUNTERWEIGHTS, 96 Cal. L. Rev. 235, 281+

2008

Law Review

—

3

S.Ct.

The Recess Appointments Clause in the United States Constitution long has been the source of tense debate between Congress and the executive branch. President George W. Bush’s...

—

73. THE LINE ITEM VETO CASE AND THE SEPARATION OF POWERS, 88 Cal. L. Rev. 181, 232+

2000

Law Review

—

3

S.Ct.

In Clinton v. City of New York, the Supreme Court struck down the Line Item Veto Act because it upset the finely wrought law-making process provided for in the Constitution’s...

—

74. THE GEOPOLITICAL CONSTITUTION: EXECUTIVE EXPEDIENCY AND EXECUTIVE AGREEMENTS, 86 Cal. L. Rev. 671, 773+

1998

Law Review

—

3

S.Ct.

From the Founding through the Second World War well established understandings constrained executive power over foreign relations. Since the Cold War, the executive has enlarged...

—

75. THE CONTINUATION OF POLITICS BY 1996 OTHER MEANS: THE ORIGINAL UNDERSTANDING OF WAR POWERS, 84 Cal. L. Rev. 167, 305+

Law Review

—

3

4

S.Ct.

C1-3TABLE OF CONTENTS Introduction. 170 I. War Powers: Allocation, Practice, and Criticism. 175 A. The Constitutional Text. 175 B. The Constitution in Practice. 176 1....

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

108

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 76. INTERNATIONAL ECONOMIC SANCTIONS: IMPROVING THE HAPHAZARD U.S. LEGAL REGIME, 75 Cal. L. Rev. 1159, 1242+

Date 1987

Type Law Review

Depth —

Headnote(s) 3

6

10

6

12

4

10

S.Ct.

C1-3TABLE OF CONTENTS PAGE I. INTRODUCTION. 1163 Scope of the Article. 1166 II. THE PURPOSES AND EFFECTIVENESS OF ECONOMIC SANCTIONS. 1168 A. The Purposes of Sanctions. 1170 B....

—

77. THE WHITE HOUSE COUNSEL TORTURE MEMO: THE FINAL PRODUCT OF A FLAWED SYSTEM, 42 Cal. W. L. Rev. 149, 181+

2005

Law Review

—

3

S.Ct.

In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good...

—

78. “NECESSITY HATH NO LAW” : EXECUTIVE POWER AND THE POSSE COMITATUS ACT, 31 Campbell L. Rev. 1, 50+

2008

Law Review

—

3

S.Ct.

’’When a government wishes to deprive its citizens of freedom, and reduce them to slavery, it generally makes use of a standing army.’’ Luther Martin Dating back to Roman times,...

—

2007

Law Review

—

80. UNLIMITED POWER: WHY THE 2010 PRESIDENT’S (WARRANTLESS) SURVEILLANCE PROGRAM IS UNCONSTITUTIONAL, 42 Case W. Res. J. Int’l L. 647, 673+

Law Review

—

81. AN ARTICLE I THEORY OF THE INHERENT POWERS OF THE FEDERAL COURTS, 61 Cath. U. L. Rev. 1, 57+

Law Review

79. THE FUTURE OF JUDICIAL REVIEW FOR THE DETAINEES OF THE WAR ON TERRORISM AFTER HAMDAN v. RUMSFELD, 36 Cap. U. L. Rev. 159, 160+

—

Following the events of September 11, 2001, and the invasion of Afghanistan, the detainment of suspected terrorists in Guantanamo Bay Naval Base became necessary. After years of...

—

—

2011

3

6

12

S.Ct.

—

3

9

S.Ct.

I. Congress’s Plenary Article I Power. 8 A. The Language and Structure of the Constitution. 8 B. The Framing of the Constitution. 12    1. Optional Inferior Courts. 14    2. From...

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

109

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 82. A TRUISM THAT ISN’T TRUE? THE TENTH AMENDMENT AND EXECUTIVE WAR POWER, 51 Cath. U. L. Rev. 135, 140+

Date 2001

Type Law Review

Depth —

Headnote(s) 3

4

10

6

10

6

10

S.Ct.

[T]he Reigns of good Princes have been always most dangerous to the Liberties of their People. For when their Successors, managing the Government with different Thoughts, would...

—

83. WARRANTLESS PHYSICAL SEARCHES FOR FOREIGN INTELLIGENCE PURPOSES: EXECUTIVE ORDER 12,333 AND THE FOURTH AMENDMENT, 35 Cath. U. L. Rev. 97, 171+

1985

Law Review

—

3

S.Ct.

C1-3TABLE OF CONTENTS I. Introduction. 98 II. The Use of Warrantless Physical Searches for Foreign Intelligence Purposes. 101 III. The Constitutional Underpinnings of Warrantless...

—

84. DAMES AND MOORE v. REGAN: THE 1982 IRANIAN SETTLEMENT AGREEMENTS, SUPREME COURT ACQUIESCENCE TO BROAD PRESIDENTIAL DISCRETION, 31 Cath. U. L. Rev. 565, 57...

Law Review

—

3

S.Ct.

On November 4, 1979, the American Embassy in Tehran, Iran was seized, and approximately fifty Americans were taken hostage. As a result of that crisis, President Jimmy Carter...

—

85. MORE REAL THAN APPARENT: 2006 SEPARATION OF POWERS, THE RULE OF LAW, AND COMPARATIVE EXECUTIVE “CREATIVITY” IN HAMDAN v. RUMSFELD, 2006 Cato Sup. Ct. Rev. ...

Law Review

—

3

10

S.Ct.

Rarely has the Supreme Court handed a ‘’wartime’’ president a greater defeat, or human rights defenders a greater victory, than it did in Hamdan v. Rumsfeld. A common view on the...

—

86. A COMPARATIVE HISTORICAL ANALYSIS 2009 OF WAR TIME PROCEDURAL PROTECTIONS AND PRESIDENTIAL POWERS: FROM THE CIVIL WAR TO THE WAR ON TERROR, 12 Chap. L. Rev...

Law Review

—

3

4

6

S.Ct.

It was a new kind of war, and the U.S. faced a new kind of enemy. Clandestine saboteurs operated in the shadows waiting for the perfect opportunity to strike. Our country was not...

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

110

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 87. JUSTICE JACKSON IN THE BOARDROOM: A PROPOSAL FOR JUDICIAL TREATMENT OF SHAREHOLDER-APPROVED POISON PILLS, 2008 Colum. Bus. L. Rev. 360, 386+

Date 2008

Type Law Review

Depth —

Headnote(s) 6

S.Ct.

Introduction. 361 I. Background. 364 A. The Initial Debate. 364 B. Delaware Weighs In. 367 C. The Rise of the Institutional Investor. 369 II. Analyzing the...

—

2007

Law Review

—

89. NATIONAL SECURITY AND THE FIRST 1985 AMENDMENT: THE PROPOSED USE OF GOVERNMENT SECRECY AGREEMENTS UNDER NATIONAL SECURITY DIRECTIVE 84, 19 Colum. J.L. & So...

Law Review

—

88. THE CONSTITUTION AND EXECUTIVE COMPETENCE IN THE POST-COLD WAR WORLD, 38 Colum. Hum. Rts. L. Rev. 547, 580+

—

The story of human rights in the post-September 11 United States has in many respects been a tale not of individuals, but of the structures of constitutional democracy in the face...

—

3

4

6

4

6

S.Ct.

Government secrecy in the interest of national security has been accepted as a practical necessity since the beginning of the United States. Defining the parameters of the...

—

90. WAR AND THE FIRST AMENDMENT: A CALL FOR LEGISLATION TO PROTECT A PRESS’ RIGHT OF ACCESS TO MILITARY OPERATIONS, 35 Colum. J. Transnat’l L. 131, 173+

1997

Law Review

—

3

S.Ct.

National security interests are never more prevalent than in times of war and other military operations. The public’s interest in the free flow of information, however, is also...

—

91. BEYOND PROTECTION, 109 Colum. L. Rev. 1823, 2001+

2009

Law Review

—

3

6

S.Ct.

Do foreign terrorists have rights under American law? And can they be prosecuted under such law? These questions may seem novel and singularly difficult. In fact, the central...

—

92. TAKING CARE OF TREATIES, 108 Colum. L. 2008 Rev. 331, 403+

Law Review

—

3

6

10

S.Ct.

The United States’s legal capacity to cure breaches of its international obligations appears deeply unsatisfactory. Adverse decisions by international tribunals are unlikely to...

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

111

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Treatment —

Title

Date

93. RETHINKING ARTICLE I, SECTION 1: FROM 2004 NONDELEGATION TO EXCLUSIVE DELEGATION, 104 Colum. L. Rev. 2097, 2181+

Type Law Review

Depth —

Headnote(s) 3

4

6

S.Ct.

The first substantive clause of the Constitution-providing that ‘’[a]ll legislative Powers herein granted shall be vested in a Congress’’--is associated with two postulates about...

—

1993

Law Review

—

95. THE BOLAND AMENDMENTS AND FOREIGN 1988 AFFAIRS DEFERENCE, 88 Colum. L. Rev. 1534, 1574+

Law Review

—

94. THE PROTECTIVE POWER OF THE PRESIDENCY, 93 Colum. L. Rev. 1, 74+

—

The executive Power shall be vested in a President of the United States of America. The President’s power, if any, to issue the order must stem either from an act of Congress or...

—

3

6

10

6

10

4

6

6

10

S.Ct.

The central legal issue raised by the congressional hearings on the Iran-Contra scandal involved the constraints imposed by the Boland Amendments (’’Amendments’’) on the National...

—

96. JUDICIAL REVIEW OF EXECUTIVE ACTION 1980 IN DOMESTIC AFFAIRS, 80 Colum. L. Rev. 1535, 1551+

Law Review

—

3

S.Ct.

The traditional policymaking role of the President in domestic affairs has consisted primarily of proposing legislation and directing the administration of congressional programs. ...

—

97. THE STEEL SEIZURE CASE: A JUDICIAL BRICK WITHOUT STRAW, 53 Colum. L. Rev. 53, 55+

1953

Law Review

—

3

S.Ct.

President Truman’s seizure of the steel industry without specific statutory warrant brings to a new pitch a developing reliance on the ‘’Executive Power’’ which began almost at the...

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98. IN DEFENSE OF THE ROOSEVELT COURT, 2 Fla. A & M U. L. Rev. 1, 90+

2007

Law Review

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3

S.Ct.

112

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 99. THE UNITED STATES SUPREME COURT MISSES THE MARK: TOWARDS BETTER IMPLEMENTATION OF THE UNITED STATES’ INTERNATIONAL OBLIGATIONS, 24 Conn. J. Int’l L. 3...

Date 2008

Type Law Review

Depth —

Headnote(s) 3

6

10

6

10

6

10

6

10

4

6

S.Ct.

I. Introduction. 39 II. The AVENA Litigation. 42 A. Proceedings at the International Court of Justice. 42 B. United States Executive’s Reaction to Avena. 44 C. The Medellin...

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100. LOWERING THE BAR: INVALIDATION OF STATE LAWS AFFECTING FOREIGN AFFAIRS UNDER THE DORMANT FOREIGN AFFAIRS POWER AFTER AMERICAN INSURANCE ASSOCIATION v....

2004

Law Review

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3

S.Ct.

It is well settled that the United States Constitution vests exclusive authority to conduct foreign affairs with the federal government. The Constitution expressly affords the...

—

101. THE SUPREME COURT AS INTERPRETER OF EXECUTIVE FOREIGN AFFAIRS POWERS, 3 Conn. J. Int’l L. 161, 203+

1987

Law Review

—

3

S.Ct.

With the recent nomination and rejection of Robert Bork to the United States Supreme Court, the topic of constitutional interpretation and the role of the judiciary took center...

—

102. FORM AND FUNCTION IN THE NATIONAL SECURITY CONSTITUTION, 41 Conn. L. Rev. 1549, 1629+

2009

Law Review

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3

S.Ct.

Since Alexander Hamilton first wrote of the functional virtues of the presidency in matters of foreign affairs, his claim that a unitary executive is specially blessed with...

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103. A REPUBLIC OF EMERGENCIES: MARTIAL 2004 LAW IN AMERICAN JURISPRUDENCE, 36 Conn. L. Rev. 1397, 1400+

Law Review

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2

S.Ct.

A precise definition of martial law is near impossible. The United States Constitution makes no reference to martial law, nor does any state constitution provide a working...

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104. BUSH AND OBAMA FIGHT TERRORISTS OUTSIDE JUSTICE JACKSON’S TWILIGHT ZONE, 26 Const. Comment. 551, 581+

2010

Law Review

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3

6

S.Ct.

113

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 105. THE STEEL SEIZURE CASE AND INHERENT PRESIDENTIAL POWER, 19 Const. Comment. 155, 213+

Date 2002

Type Law Review

Depth —

Headnote(s) 3

4

6

6

10

6

10

4

10

6

10

4

6

S.Ct.

The historic American debate on the nature and scope of executive authority, punctuated and dramatized by the renowned eighteenth-century exchange between James Madison and...

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106. YOUNGSTOWN GOES TO WAR, 19 Const. Comment. 215, 259+

2002

Law Review

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3

S.Ct.

In the spring of 2001--before the war came--the student editors of the Minnesota Law Review were casting about ideas for a symposium topic for 2002. I suggested an issue...

—

107. YOUNGSTOWN: PAGES FROM THE BOOK 2002 OF DISQUIETUDE, 19 Const. Comment. 3, 3+

Law Review

—

3

S.Ct.

This essay is dedicated to Lloyd N. Cutler The Youngstown holding is widely admired. One reads with pride those passages in which the Supreme Court denies to a president with whom...

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108. THE PRICE OF EXPERIENCE: THE CONSTITUTION AFTER SEPTEMBER 11, 2001, 19 Const. Comment. 37, 61+

2002

Law Review

—

3

S.Ct.

What is the price of experience? Do men buy it for a song? Or wisdom for a dance in the street? No, it is bought with the price Of all a man hath, his house, his wife, his...

—

109. EXECUTIVE POWER IN YOUNGSTOWN’S SHADOWS, 19 Const. Comment. 87, 87+

2002

Law Review

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3

S.Ct.

’’We can hardly expect that the lasting outgrowth of the steel controversy will be the Youngstown case.’’ This projection captures the sentiment of much of the early academic...

—

110. THEORIES OF EMERGENCY POWERS: A COMPARATIVE ANALYSIS OF AMERICAN MARTIAL LAW AND THE FRENCH STATE OF SIEGE, 38 Cornell Int’l L.J. 1021, 1048+

2005

Law Review

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3

S.Ct.

Introduction. 1022 I. Background. 1023 A. The State of Siege. 1023 1. Historical Origins. 1023 2. The State of Siege Under the Constitution of the Fifth Republic. 1027 ...

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114

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Title

Date

111. INTERNATIONAL “FUGITIVE SNATCHING” 1991 IN U.S. LAW: TWO VIEWS FROM OPPOSITE ENDS OF THE EIGHTIES, 24 Cornell Int’l L.J. 521, 562+

Type Law Review

Depth —

Headnote(s) 3

6

10

6

10

6

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S.Ct.

When Butch Cassidy and the Sundance Kid escaped to South America, they relied on the reluctance of the United States to violate ‘’customary’’ international law. Pursuing the pair...

—

—

112. PUBLIC CRYPTOGRAPHY, ARMS EXPORT 1984 CONTROLS, AND THE FIRST AMENDMENT: A NEED FOR LEGISLATION, 17 Cornell Int’l L.J. 197, 229+

Law Review

113. GENOCIDE FUNDING: THE CONSTITUTIONALITY OF STATE DIVESTMENT STATUTES, 94 Cornell L. Rev. 669, 706+

Law Review

2009

—

3

S.Ct.

—

3

S.Ct.

Introduction. 670 I. Background on Sudan and the Persisting Conflict. 672 II. Federal and State Policy in the Sudan Divestment Movement. 674 A. State Policy on Sudan...

—

114. THE LAMENTABLE NOTION OF INDEFEASIBLE PRESIDENTIAL POWERS: A REPLY TO PROFESSOR PRAKASH, 91 Cornell L. Rev. 1383, 1404+

2006

Law Review

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3

S.Ct.

In his thoughtful review of my book, Presidential Powers, Professor Sai Prakash cogently criticizes its failure to attempt a taxonomy of when Congress can regulate or interfere...

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115. HAMDI’S HABEAS PUZZLE: SUSPENSION AS AUTHORIZATION?, 91 Cornell L. Rev. 411, 457+

2006

Law Review

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3

10

S.Ct.

Introduction. 411 I. Hamdi v. Rumsfeld. 417 II. Suspension as Authorization. 426 A. Habeas and Suspension. 427 B. Checks and Balances. 440 III. A Three-Branch Institutional...

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116. IS THE PRESIDENT BOUND BY THE 2004 GENEVA CONVENTIONS?, 90 Cornell L. Rev. 97, 202+

Law Review

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3

6

12

S.Ct.

The United States is party to several treaties that regulate the conduct of war, including the 1949 Geneva Conventions on the Protection of War Victims. These treaties require...

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115

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

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Title

Date

117. STANDING FOR NOTHING: THE PARADOX 2004 OF DEMANDING CONCRETE CONTEXT FOR FORMALIST ADJUDICATION, 89 Cornell L. Rev. 808, 891+

Type Law Review

Depth —

Headnote(s) 3

6

10

6

10

4

6

6

12

4

10

S.Ct.

This Article examines a paradox found in public law cases. While justiciability doctrines aim to provide concrete context for adjudication of public law questions by insisting...

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118. THE PRESIDENT’S FOREIGN ECONOMIC POWERS AFTER DAMES & MOORE v. REGAN: LEGISLATION BY ACQUIESCENCE, 68 Cornell L. Rev. 68, 103+

1982

Law Review

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3

S.Ct.

On January 19, 1981, President Carter entered into three agreements with Iran to secure the release of fifty-two American hostages seized in Teheran, Iran, on November 4, 1979. ...

—

119. SSSMOKINNN’: THE SUPREME COURT 2001 BURNS THE FDA’S AUTHORITY TO REGULATE TOBACCO IN FDA V. BROWN & WILLIAMSON TOBACCO CORP., 34 Creighton L. Rev. 1111, 1...

Law Review

—

3

S.Ct.

The purpose of the Constitution was not only to grant power, but to keep it from getting out of hand. In 1938, Congress adopted the Federal Food, Drug, and Cosmetic Act (’’FDCA’’)...

—

120. JONES v. CLINTON: REQUIRING THE 1997 PRESIDENT TO TAKE RESPONSIBILITY FOR HIS UNOFFICIAL ACTIONS, 30 Creighton L. Rev. 913, 947+

Law Review

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3

S.Ct.

No man in the country is so high that he is above the law. No officer of the law may set that law at definition with impunity. All officers of the government, from the highest to...

—

121. METRO RENOVATION, INC. v. NEBRASKA 1996 DEPT. OF LABOR: IS IT BINDING? SEPARATION OF POWERS AND THE CONFLICT SURROUNDING THE BINDING AUTHORITY OF THE DECIS...

Law Review

—

3

S.Ct.

But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither...

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116

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

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Title

Date

122. NATIONAL SECURITY AND PRESIDENTIAL 2009 POWER: JUDICIAL DEFERENCE AND ESTABLISHING CONSTITUTIONAL BOUNDARIES IN WORLD WAR TWO AND THE KOREAN WAR, 39 Cumb. ...

Type Law Review

Depth —

Headnote(s) 3

4

6

6

12

6

12

6

10

6

10

S.Ct.

In times of national crisis and war, democracies can rise to the occasion and meet the threat without violating the civil liberties of some to save the whole. In other times a...

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123. CONSTITUTIONAL LAW-WARTIME POWERS-AUTHORITY TO CONVENE MILITARY COMMISSIONS WITHOUT EXPRESS OR IMPLIED AUTHORIZATION OF CONGRESS NOT WITHIN THE EXECUT...

2007

Law Review

—

3

S.Ct.

Hamdan v. Rumsfeld recently addressed the extent of the President’s authority to convene military commissions to try aliens detained in military prisons. The petitioner in Hamdan,...

—

124. COMMENT: READY, AIM, FIRE? THE 2003 PRESIDENT’S EXECUTIVE ORDER AUTHORIZING DETENTION, TREATMENT, AND TRIAL OF CERTAIN NON-CITIZENS IN THE WAR AGAINST TERR...

Law Review

—

3

S.Ct.

Should President George W. Bush’s suspension of ‘’the principles of law and the rules of evidence’’ and denial of habeas corpus review to individuals who will be tried by military...

—

125. EXECUTIVE POWER AND THE WAR ON TERROR, 83 Denv. U. L. Rev. 335, 386+

2005

Law Review

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3

S.Ct.

Two important paradigm shifts have occurred in the war on terror. First, the United States has treated terrorism as a military issue, not a law enforcement problem. Second, the...

—

126. INTERNATIONAL TRADE RELATIONS AND 1995 THE SEPARATION OF POWERS UNDER THE UNITED STATES CONSTITUTION, 13 Dick. J. Int’l L. 203, 229+

Law Review

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3

S.Ct.

I. Introduction ‘’Economic diplomacy’’ has acquired an increased prominence in the post Cold War era. U.S. national security policy no longer focuses primarily on the conventional...

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117

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

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Title

Date

127. WHO CONTROLS INTERNATIONAL 1998 TRADE? CONGRESSIONAL DELEGATION OF THE FOREIGN COMMERCE POWER, 47 Drake L. Rev. 141, 176+

Type Law Review

Depth —

Headnote(s) 3

6

12

4

6

6

10

6

10

6

10

6

12

S.Ct.

C1-3Table of Contents I. Introduction. 141 II. The Constitutional Framework. 144 III. Case Law. 145 A. The Early Cases. 146 B. Curtiss-Wright and Its Legacy. 149 IV. The...

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128. STATE EXECUTIVE LAWMAKING IN CRISIS, 56 Duke L.J. 237, 277+

2006

Law Review

—

3

S.Ct.

Courts and scholars have largely overlooked the constitutional source and scope of a state executive’s powers to avert and respond to crises. This Article addresses how actual and...

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129. CADENCED POWER: THE KINETIC CONSTITUTION, 46 Duke L.J. 679, 779+

1997

Law Review

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3

S.Ct.

C1-3Table of Contents Introduction. 681 I. The Tradition: A Static Constitution. 686 A. The Bipolar Supreme Court: A Formalist-Functionalist Swing. 689 1. Formalism: The...

—

130. PRESIDENTIAL PREROGATIVE UNDER 1995 THE CONSTITUTION TO DEPLOY U.S. MILITARY FORCES IN LOW-INTENSITY CONFLICT, 44 Duke L.J. 777, 828+

Law Review

—

3

S.Ct.

As applied to the United States, small wars are operations undertaken under executive authority, wherein military force is combined with diplomatic pressure in the internal or...

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131. THE PRESIDENT’S POWER OF THE PURSE, 1989 Duke L.J. 1162, 1253+

1989

Law Review

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3

S.Ct.

During the Reagan administration, Congress discovered that it could intimidate the executive branch by uttering again and again the same seven words, ‘’Provided, that no funds...

—

132. THE DEPARTMENT OF DEFENSE’S ROLE 1988 IN FREE-WORLD EXPORT LICENSING UNDER THE EXPORT ADMINISTRATION ACT, 1988 Duke L.J. 785, 817+

Law Review

—

3

S.Ct.

Recent events have intensified the battle between those who fear ‘selling the Russians the rope they will hang us with’ and those who accuse the Reagan administration of waging...

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118

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 133. EXECUTIVE ORDER 12,333: AN ASSESSMENT OF THE VALIDITY OF WARRANTLESS NATIONAL SECURITY SEARCHES, 1983 Duke L.J. 611, 635+

Date 1983

Type Law Review

Depth —

Headnote(s) 3

6

10

4

6

6

10

S.Ct.

On December 4, 1981, president Reagan signed Executive Order 12,333. Asserting that ‘ t imely and accurate information about . . . foreign powers, organizations, and persons and...

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134. MAKING AGENCIES FOLLOW ORDERS: 1983 JUDICIAL REVIEW OF AGENCY VIOLATIONS OF EXECUTIVE ORDER 12,291, 1983 Duke L.J. 285, 353+

Law Review

—

3

S.Ct.

Executive orders are presidential policy directives to the federal bureaucracy. Most executive orders implement legislative policies pursuant to specific grants of statutory...

—

135. THE SEPARATION OF POWERS UNDER NIXON: REFLECTIONS ON CONSTITUTIONAL LIBERTIES AND THE RULE OF LAW, 1981 Duke L.J. 1, 70+

1981

Law Review

—

3

S.Ct.

I. INTRODUCTION. 2 II. EXECUTIVE ACTION UNDER RESIDENT NIXON. 5 A. The War in Indochina. 5 B. The Pentagon Papers. 9 C. Presidential Impoundment. 14 D. Warrantless Executive...

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136. CONSTITUTIONAL CRISIS OR DÉJÀ VU? THE WAR POWER, THE BUSH ADMINISTRATION AND THE WAR ON TERROR, 45 Duq. L. Rev. 701, 725+

2007

Law Review

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3

S.Ct.

I. L2-3,T3Introduction 701. II. L2-3,T3History of Executive Power and the War Power 703. A. The Executive Power Generally. 703 B. The War Power. 704 III. L2-3,T3Early Presidential...

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137. FOREWORD: PRESIDENT TRUMAN AND THE STEEL SEIZURE CASE: A SYMPOSIUM, 41 Duq. L. Rev. 667, 679+

2003

Law Review

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3

4

S.Ct.

In April of 1952, during the stressful days of the Korean War, President Harry S. Truman made a decision that would haunt his Presidency. With the steel industry and Steelworkers...

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119

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 138. CONGRESSIONAL POWER VIS A VIS THE PRESIDENT AND PRESIDENTIAL PAPERS, 32 Duq. L. Rev. 773, 798+

Date 1994

Type Law Review

Depth —

Headnote(s) 3

6

12

S.Ct.

The concept of ‘’separation of powers’’ that has emerged as a result of the framework of the Constitution denotes three separate and independent branches of government, each with...

—

139. DEFENDING EXPANDED PRESIDENTIAL AUTHORITY TO REGULATE FOREIGN ASSETS AND TRANSACTIONS, 17 Emory Int’l L. Rev. 1311, 1372+

2003

Law Review

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3

6

S.Ct.

On March 20, 2003, President Bush, under the authority granted to him by a provision in the Patriot Act, confiscated certain Iraqi assets held in the United States in accounts in...

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140. THE CONCEPT OF INDEPENDENCE IN PUBLIC LAW, 41 Emory L.J. 961, 1058+

1992

Law Review

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3

S.Ct.

Introduction. 962 I. Generative Independence: The Declaration of Independence, Federalist No. 40, and Presidential Initiatives. 967 A. The Declaration of Independence. 968...

—

141. THE CONSTITUTION IN THE SUPREME COURT: 1946-1953, 37 Emory L.J. 249, 250+

1988

Law Review

—

3

6

10

S.Ct.

Vinson, Burton, Minton, and Clark. Scarcely household names, President Truman’s four appointees to the Supreme Court tended to join the more restrained of their senior colleagues...

—

142. SEPARATION OF POWERS AND FEDERAL 2010 LAND MANAGEMENT: ENFORCING THE DIRECTION OF THE PRESIDENT UNDER THE ANTIQUITIES ACT, 40 Envtl. L. 765, 828+

Law Review

—

Law Review

—

—

When can a third party sue to force an executive agency to take an action in compliance with the direction of the President? In 2001, President Bill Clinton designated a half...

—

143. INTERNATIONAL IMPLICATIONS: THE ELEPHANT IN THE LIVING ROOM IN PUBLIC CITIZEN V. DEPARTMENT OF TRANSPORTATION, 34 Envtl. L. 961, 1000+

2004

3

6

10

S.Ct.

The dispute in Public Citizen v. Department of Transportation lies at the intersection between the United States’s international obligations and domestic environmental law. As the...

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120

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 144. CONSTITUTIONS IN CRISIS: A COMPARATIVE APPROACH TO JUDICIAL REASONING AND SEPARATION OF POWERS, 20 Fla. J. Int’l L. 115, 168+

Date 2008

Type Law Review

Depth —

Headnote(s) 3

4

6

S.Ct.

Scholarly literature on terrorism, national security, and emergencies has flourished since September 11. The terrorist attacks and the measures taken thereafter by the Bush...

—

2008

Law Review

—

146. PROFESSIONAL RESPONSIBILITY: 2005 TORTURED INDEPENDENCE IN THE OFFICE OF LEGAL COUNSEL, 57 Fla. L. Rev. 685, 716+

Law Review

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145. CONSTITUTIONAL ADVOCACY EXPLAINS CONSTITUTIONAL OUTCOMES, 60 Fla. L. Rev. 857, 894+

—

In oral argument in Baker v. Carr, Attorney Z.T. Osborn, Jr., on behalf of Tennessee voters arguing that the U.S. Supreme Court should hold legislative apportionment a justiciable...

—

3

6

9

6

10

6

10

S.Ct.

’’[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client.’’ Abu Ghraib is one of the world’s most notorious prisons. ...

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147. THE JERUSALEM EMBASSY ACT, 19 Fordham Int’l L.J. 1379, 1392+

1996

Law Review

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3

S.Ct.

This year marks three thousand years since Jerusalem was first established as the capital of a Jewish state by King David. Although Jerusalem was captured by the Roman Empire some...

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148. THE EXECUTIVE PROTECTION: FREEZING 2003 THE FINANCIAL ASSETS OF ALLEGED TERRORISTS, THE CONSTITUTION, AND FOREIGN PARTICIPATION IN U.S. FINANCIAL MARKETS, ... Fordham Journal of Corporate and Financial Law

Law Review

—

3

S.Ct.

Certain aspects of the Executive Branch of the United States of America’s ability to freeze the assets of foreigners have been established through International Treaties and U.S....

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121

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Treatment

Title

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149. CLASS ACTIONS AND THE INTERPRETATION OF MONETARY DAMAGES UNDER FEDERAL RULE OF CIVIL PROCEDURE 23(B)(2), 75 Fordham L. Rev. 165, 205+

Date 2006

Type Law Review

Depth —

Headnote(s) 3

6

10

S.Ct.

What remedies are available to victims of discrimination? Federal Rule of Civil Procedure 23(b)(2) was created, in part, to provide class-wide relief for victims of civil rights...

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150. THAT IS WHAT WE SAID, BUT THIS IS WHAT WE MEANT: PUTTING THE MEANING BACK INTO USE-OF-FORCE LEGISLATION, 78 Geo. Wash. L. Rev. 942, 974+

2010

Law Review

—

1999

Law Review

—

—

The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to...

—

151. THE PRESIDENT’S AUTHORITY OVER FOREIGN AFFAIRS: AN EXECUTIVE BRANCH PERSPECTIVE, 67 Geo. Wash. L. Rev. 527, 576+

3

6

10

4

6

6

10

S.Ct.

The United States government has enormous power to affect the lives of people all over the globe; the decisions it makes in the name of American foreign policy and national...

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152. TRANSLATING FEDERALISM: A STRUCTURAL APPROACH, 66 Geo. Wash. L. Rev. 1161, 1197+

1998

Law Review

—

3

S.Ct.

A panel on federalism does not fit neatly into a Symposium entitled Textualism and the Constitution. As Professor Charles Black has explained, it would be ‘’intellectually...

—

153. THE LAW AND POLITICS OF SHARED NATIONAL SECURITY POWER-A REVIEW OF THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIR BY H...

1991

Law Review

—

3

S.Ct.

The Iran-contra affair provided a television spectacle unmatched since the Watergate hearings of the 1970s. Millions of Americans were transfixed by the large and small dramas that...

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122

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

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Title

Date

154. WHO KEEPS THE SECRETS?: A 1990 FRAMEWORK AND ANALYSIS OF THE SEPARATION OF POWERS DISPUTE IN AMERICAN FOREIGN SERVICE ASSOCIATION v. GARFINKEL, 59 Geo. Was...

Type Law Review

Depth —

Headnote(s) 3

6

10

6

10

6

10

6

10

6

10

S.Ct.

The Supreme Court has recognized the critical importance of confidential information to the national security of the United States. As the Court wrote in Snepp v. United States,...

—

155. THE SUPREME COURT AND THE SEPARATION OF POWERS: A WELCOME RETURN TO NORMALCY?, 58 Geo. Wash. L. Rev. 668, 705+

1990

Law Review

—

3

S.Ct.

Separation of powers is a political theory whose implementation both the Framers of the Constitution and the Antifederalists regarded as an essential element in the structuring of...

—

156. WHY OUR SEPARATION OF POWERS JURISPRUDENCE IS SO ABYSMAL, 57 Geo. Wash. L. Rev. 506, 525+

1989

Law Review

—

3

S.Ct.

’The fault . . . is not in our stars, But in ourselves . . ..’ —William Shakespeare ‘[It has] always been the way of multitudes to interpret their own symbols literally . . ..’...

—

157. NEGOTIATING WITH THE PALESTINE LIBERATION ORGANIZATION: PRESIDENTIAL PREROGATIVE OR CONGRESSIONAL CONTROL?, 57 Geo. Wash. L. Rev. 732, 738+

1989

Law Review

—

3

S.Ct.

During the final months of the Reagan Administration, the President authorized the initiation of a ‘substantive dialogue’ with the Palestine Liberation Organization (PLO). The...

—

158. ENFORCING EXECUTIVE ORDERS: 1987 JUDICIAL REVIEW OF AGENCY ACTION UNDER THE ADMINISTRATIVE PROCEDURE ACT, 55 Geo. Wash. L. Rev. 659, 664+

Law Review

—

3

S.Ct.

In this era of the ‘Imperial Presidency,’ executive orders have become an important weapon in the arsenal of presidential policymaking. Because executive orders do not need...

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123

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 159. THE CONTINUUM OF DEFERENCE: SUPREME COURT TREATMENT OF AGENCY STATUTORY INTERPRETATIONS FROM CHEVRON TO HAMDAN, 96 Geo. L.J. 1083, 1164+

Date 2008

Type Law Review

Depth —

Headnote(s) 3

6

10

6

10

S.Ct.

C1-3Table of Contents L1-2Introduction . L31085 I. Methodology. 1093 II. Empirical Findings: The Supreme Court’s Continuum of Deference Regimes, Its Application of Those...

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160. BURLAMAQUI, THE CONSTITUTION, AND 2008 THE IMPERFECT WAR ON TERROR, 96 Geo. L.J. 985, 988+

Law Review

—

3

S.Ct.

C1-3Table of Contents L1-2Introduction . R3986. I. Unchanged Times: The Theory of Imperfect War. 988 II. The Theory Embraced: The Founders Grant Congress the Power To Wage...

—

161. STRIKE SEASON: PROTECTING LABORMANAGEMENT CONFLICT IN THE AGE OF TERROR, 93 Geo. L.J. 1783, 1811+

2005

Law Review

—

3

4

S.Ct.

C1-3Table of Contents L1-2Introduction . L31784 I. A Matter Of Timing. 1788 II. 50 Years of Strikes and War, and More. 1794 a. world war i. 1795 b. world war ii. 1801 c. here...

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162. INTO THE IMPETUOUS VORTEX: THE MANSFIELD AMENDMENT, POLITICAL ACCOUNTABILITY, AND THE SEPARATION OF POWERS, 93 Geo. L.J. 2097, 2120+

2005

Law Review

—

3

6

S.Ct.

C1-3Table of Contents L1-2Introduction . L32098 I. Extraterritorial Criminal Laws and the Ascendant Role of the Executive. 2100 a. the charming betsy canon and its separation of...

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163. TORTURING EXECUTIVE POWER, 93 Geo. L.J. 1213, 1221+

2005

Law Review

—

3

6

10

6

12

S.Ct.

The treatment of captives in America’s struggle against al Qaeda and the Taliban has placed an emotional spotlight on presidential war powers not seen since the Vietnam conflict....

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164. EXECUTIVE (AB) USE OF THE PROCUREMENT POWER: CHAMBER OF COMMERCE v. REICH, 84 Geo. L.J. 2573, 2578+

1996

Law Review

—

3

S.Ct.

What if the U.S. courts decided that it is appropriate for U.S. Presidents to exercise broad policymaking authority, even absent constitutional or statutory authority? And what if...

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Treatment —

Title

Date

165. COLLECTIVE SECURITY AND THE 1994 CONSTITUTION: CAN THE COMMANDER IN CHIEF POWER BE DELEGATED TO THE UNITED NATIONS?, 82 Geo. L.J. 1573, 1603+

Type Law Review

Depth —

Headnote(s) 3

4

S.Ct.

Imagine, after protracted negotiations with an intractable aggressor, that the United Nations Security Council decides to use force. Members of the Security Council agree to...

—

166. SEPARATION OF POWERS: NO LONGER SIMPLY HANGING IN THE BALANCE, 79 Geo. L.J. 173, 176+

1990

Law Review

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3

6

S.Ct.

As the United States enters into its third century of constitutional government, the Supreme Court has yet to formulate a consistent theory for resolving separation of powers...

—

167. SELF DEFENSE OR PRESIDENTIAL PRETEXT? THE CONSTITUTIONALITY OF UNILATERAL PREEMPTIVE MILITARY ACTION, 78 Geo. L.J. 415, 446+

1989

Law Review

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3

6

10

6

10

6

10

S.Ct.

The boundary between the warmaking powers of Congress and the President defies clear definition. The Constitution explicitly grants warmaking authority to both the legislative and...

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168. ABOVREZK v. REAGAN: THE NEED FOR FURTHER CLARIFICATION AND REFORM OF ALIEN EXCLUDABILITY LAW, 77 Geo. L.J. 217, 247+

1988

Law Review

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3

S.Ct.

The second half of 1983 was a disconcerting time for a number of United States citizens who were denied the opportunity to hear certain foreign speakers whom the State Department...

—

169. THE INTERSESSION POCKET VETO AND THE EXECUTIVE-LEGISLATIVE BALANCE OF POWERS, 73 Geo. L.J. 1185, 1187+

1985

Law Review

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3

S.Ct.

The Constitution provides two procedures for presidential veto after legislation approved by both Houses of Congress has been presented to the President for his consideration. The...

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125

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 170. SEPARATION OF POWERS AND UNILATERAL EXECUTIVE ACTION: THE CONSTITUTIONALITY OF PRESIDENT CLINTON’S MEXICAN LOAN INITIATIVE, 26 Ga. J. Int’l & Comp. L....

Date 1996

Type Law Review

Depth —

Headnote(s) 3

6

10

S.Ct.

On January 31, 1995, President Clinton issued a ‘’Statement with Congressional Leaders on Financial Assistance to Mexico,’’ stating that because of ‘’emergency circumstances’’ in...

—

171. EYES ON THEIR OWN PAPER: PRACTICAL 2005 CONSTRUCTION IN CONSTITUTIONAL INTERPRETATION, 39 Ga. L. Rev. 1065, 1108+

Law Review

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3

6

S.Ct.

Two movements in constitutional interpretation form the backdrop for a discussion of the little-known concept of practical construction. First, recent scholarship has called for...

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172. JUDICIAL REVIEW, FOREIGN AFFAIRS AND LEGISLATIVE STANDING, 25 Ga. L. Rev. 227, 364+

1991

Law Review

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3

6

10

5

6

6

12

S.Ct.

C1-3Table of Contents I. Introduction. 229 II. History and Her Choices. 236 A. On the Use of History. 237 B. History and the Allocation of Political Power. 240 1. ...

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173. LET ME TELL YOU WHAT YOU MEAN: AN ANALYSIS OF PRESIDENTIAL SIGNING STATEMENTS, 21 Ga. L. Rev. 755, 787+

1987

Law Review

—

3

S.Ct.

’’There’s glory for you!’’ ‘’I don’t know what you mean by ‘glory,’’’ Alice said. Humpty Dumpty smiled contemptuously. ‘’Of course you don’t—till I tell you. I mean ‘there’s a nice...

—

174. AFL-CIO v. ALLBAUGH: THE D.C. CIRCUIT 2003 LIMITS THE PRESIDENT’S AUTHORITY TO INFLUENCE LABOR RELATIONS, 19 Ga. St. U. L. Rev. 1167, 1172+

Law Review

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3

S.Ct.

Congress passed the National Labor Relations Act (NLRA) in 1935 to create a ‘’system for unionization and collective bargaining’’ and to ‘’mak[e] it illegal for employers to...

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126

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Title

Date

175. THE S-WORDS MIGHTIER THAN THE PEN: 2008 SIGNING STATEMENTS AS EXPRESS ADVOCACY OF UNLAWFUL ACTION, 43 Gonz. L. Rev. 461, 511+

Type Law Review

Depth —

Headnote(s) 3

5

6

6

10

4

6

6

10

6

10

S.Ct.

I. The Times of the Sign: Historical Use of Signing Statements. 466 A. From Apologetic Deviations to Common Parlance: the Early Signing Statements. 467 B. The Reagan Revolution...

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176. MINNESOTA V. MILLE LACS BAND OF 2000 CHIPPEWA INDIANS: THE COURT GOES ON ITS OWN HUNTING AND FISHING EXPEDITION, 4 Great Plains Nat. Resources J. 312, 337...

Law Review

—

3

S.Ct.

I. L2-3Introduction 312 II. L2-3Facts and Procedure 314 A. History of the Parties. 314 B. Legal Traditions. 315 III. L2-3Background 320 A. 1850 Executive Order. 321 B. 1855 Treaty....

—

177. JUSTICE JACKSON’S UNPUBLISHED OPINION IN EX PARTE QUIRIN, 9 Green Bag 2d 223, 223+

2006

Law Review

—

3

S.Ct.

In Ex parte Quirin, a unanimous Supreme Court, writing through Chief Justice Harlan F. Stone, upheld the constitutionality of the military commission that tried eight Nazis who had...

—

178. RESTORING THE IMPERIAL PRESIDENCY: 2002 AN EXAMINATION OF PRESIDENT BUSH’S NEW EMERGENCY POWERS, 23 Hamline J. Pub. L. & Pol’y 455, 492+

Law Review

—

3

S.Ct.

A constitutional Presidency, as the great Presidents had shown, could be a very strong Presidency indeed. But what kept a strong President constitutional, in addition to checks...

—

179. FIRST AND TEN AGAINST AMERICAN TERRORISM, AND THE SUPREME COURT PUNTS: WHY THE SUPREME COURT SHOULD HAVE REVERSED THE COURT OF APPEALS’ RULING OF RUMS...

2005

Law Review

—

3

S.Ct.

C1-3TABLE OF CONTENTS I. INTRODUCTION 137 II. STATEMENT OF THE CASE 141     A. FACTS 141     B. THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK 142     C....

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127

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 180. ALIENS AND THE DUTY OF NONREFOULEMENT: HAITIAN CENTERS COUNCIL v. MCNARY, 6 Harv. Hum. Rts. J. 1, 25+

Date 1993

Type Law Review

Depth —

Headnote(s) 3

4

10

6

10

6

10

S.Ct.

After the September 30, 1991 military coup in Haiti toppled the democratically elected government of Father Jean-Bertrand Aristide, thousands of Haitians took to the high seas,...

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181. ENEMY COMBATANTS AND A 2008 CHALLENGE TO THE SEPARATION OF WAR POWERS IN AL-MARRI v. WRIGHT, 487 F.3D 160 (4TH CIR. 2007), 31 Harv. J.L. & Pub. Pol’y 393, ...

Law Review

—

3

S.Ct.

Few legal issues are more controversial today than the scope of the President’s authority to detain individuals as enemy combatants. Although that enormous power is described...

—

182. SUBORDINATION OF POWERS: HAMDAN v. RUMSFELD, 126 S. CT. 2749 (2006), 30 Harv. J.L. & Pub. Pol’y 1071, 1071+

2007

Law Review

—

3

S.Ct.

The scope of presidential authority has always concerned democrats, especially during wartime. Since the advent of the ‘’War on Terror,’’ many Bush administration policies have...

—

183. CONSTITUTIONAL LAW AND TRANSNATIONAL COMPARISONS: THE YOUNGSTOWN DECISION AND AMERICAN EXCEPTIONALISM, 30 Harv. J.L. & Pub. Pol’y 191, 198+

2006

Law Review

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3

4

S.Ct.

In his dissent in Roper v. Simmons, Justice Antonin Scalia bemoaned the ‘’brave new meaning’’ that the Court had given the Due Process and Equal Protection Clauses and, by...

—

184. RELATIONSHIPS BETWEEN FORMALISM AND FUNCTIONALISM IN SEPARATION OF POWERS CASES, 22 Harv. J.L. & Pub. Pol’y 21, 29+

1998

Law Review

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3

4

6

S.Ct.

Peter Strauss has usefully framed key debates in separation of powers jurisprudence around the distinction between formalist and functionalist methodologies for construing the...

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128

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 185. THE NSA TERRORIST SURVEILLANCE PROGRAM, 43 Harv. J. on Legis. 517, 523+

Date 2006

Type Law Review

Depth —

Headnote(s) 3

6

10

5

6

4

10

6

10

6

10

S.Ct.

Since the attacks of September 11, 2001, the War on Terror has been the impetus and justification for asserting expansive presidential powers. Under the auspices of the...

—

186. PRESIDENTIAL SIGNING STATEMENTS AS 1987 INTERPRETATIONS OF LEGISLATIVE INTENT: AN EXECUTIVE AGGRANDIZEMENT OF POWER, 24 Harv. J. on Legis. 363, 378+

Law Review

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3

S.Ct.

When signing a bill into law, presidents often release a statement concerning the legislation. Traditionally, these signing statements express the President’s praise for the new...

—

187. CONSTITUTIONAL ALARMISM The Decline 2011 and Fall of the American Republic. By Bruce Ackerman. Cambridge, Mass.: The Belknap Press of Harvard University Pr...

Law Review

—

9

S.Ct.

The Decline and Fall of the American Republic is a call to action. Professor Bruce Ackerman opens the book with the claim that ‘’something is seriously wrong--very seriously...

—

188. THE COMMANDER IN CHIEF AT THE LOWEST EBB - A CONSTITUTIONAL HISTORY, 121 Harv. L. Rev. 941, 1112+

2008

Law Review

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3

S.Ct.

I. Introduction. 944 II. From Ratification Through the Antebellum Period. 951 A. The Backdrop of the Laws of War. 952 B. The Washington Administration: Organization of the...

—

189. THE COMMANDER IN CHIEF AT THE LOWEST EBB-FRAMING THE PROBLEM, DOCTRINE, AND ORIGINAL UNDERSTANDING, 121 Harv. L. Rev. 689, 804+

2008

Law Review

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3

S.Ct.

I. Introduction. 692 II. Why the Problem Is Now Acute -- and Why It Will Continue To Be Important. 698 A. The Modern Preoccupation with the President’s Unilateral Authority To...

—

190. SEPARATION OF PARTIES, NOT POWERS, 2006 119 Harv. L. Rev. 2311, 2386+

Law Review

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3

S.Ct.

Introduction. 2312 I. From Branches to Parties. 2316 A. Madison and the Mechanisms of Political Competition. 2316 B. Presidential, Parliamentary, and Party Government. 2325 ...

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129

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Treatment —

Title 191. CONGRESSIONAL AUTHORIZATION AND THE WAR ON TERRORISM, 118 Harv. L. Rev. 2047, 2133+

Date 2005

Type Law Review

Depth —

Headnote(s) 3

6

10

4

6

6

10

4

6

S.Ct.

I. Introduction. 2048 II. Two Misconceptions About the AUMF. 2056 A. War Declarations and Force Authorizations. 2057 B. Is This a ‘’Real’’ War?. 2066 III. The AUMF in...

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192. ARE FOREIGN AFFAIRS DIFFERENT?; POLITICAL QUESTIONS/JUDICIAL ANSWERS: DOES THE RULE OF LAW APPLY TO FOREIGN AFFAIRS? BY THOMAS M. FRANCK. PRINCETON: P...

1993

Law Review

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3

S.Ct.

It will contribute to the elucidation of the question if we first consider the differences between the powers of the federal government in respect of foreign or external affairs...

—

193. 1. PRESIDENTIAL POWERS IN FOREIGN RELATIONS, 95 Harv. L. Rev. 191, 195+

1981

Law Review

—

3

S.Ct.

Breach of contract may be Iran’s least egregious international act, but it provided the occasion last Term for Dames & Moore v. Regan, in which the Supreme Court held that the...

—

194. IV. COVERT GOVERNMENT SURVEILLANCE, 85 Harv. L. Rev. 1244, 1257+

1972

Law Review

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3

S.Ct.

In no area has experience more clearly indicated the executive branch’s tendency to overrate threats to the national security than with regard to dissident domestic political...

—

195. THE SUPREME COURT, 1951 TERM, 66 Harv. L. Rev. 98, 184+

1952

Law Review

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3

4

S.Ct.

L1-7 R7page I. L2-6,T6Constitutional Law 99 A. L36,T6Executive Power 99 B. L3-6,T6Containment of Subversion 104 L4-6,T6Deportation Proceedings 104 L4-6,T6Right to Bail 108...

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196. WARRANTLESS WIRETAPPING: THE 2009 BUSH ADMINISTRATION’S FAILURE TO JAM AN ELEPHANT INTO A MOUSEHOLE, 37 Hastings Const. L.Q. 167, 197+

Law Review

—

—

[T]his concept of ‘’national defense’’ cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. Implicit in the term...

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130

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Title

Date

197. DOMESTIC SURVEILLANCE FOR 2008 INTERNATIONAL TERRORISTS: PRESIDENTIAL POWER AND FOURTH AMENDMENT LIMITS, 35 Hastings Const. L.Q. 449, 504+

Type Law Review

Depth —

Headnote(s) 3

6

10

6

12

6

12

4

6

6

10

S.Ct.

In 2001, the President began spying on Americans again under circumstances that recalled surveillance abuses disclosed thirty years earlier by the Church Committee. The current...

—

198. YOUNGSTOWN REVISITED, 29 Hastings Const. L.Q. 373, 438+

2002

Law Review

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3

S.Ct.

One half century ago, President Harry S. Truman promulgated an Executive Order that authorized federal government seizure and operation of the nation’s steel mills to support...

—

199. EXECUTIVE ORDERS, “THE VERY 2002 DEFINITION OF TYRANNY,” AND THE CONGRESSIONAL SOLUTION, THE SEPARATION OF POWERS RESTORATION ACT, 29 Hastings Const. L.Q. ...

Law Review

—

3

S.Ct.

’’The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may...

—

200. SEPARATION OF POWERS: THE APPOINTMENT OF BILL LANN LEE AS ACTING ASSISTANT ATTORNEY GENERAL FOR CIVIL RIGHTS, 26 Hastings Const. L.Q. 935, 950+

1999

Law Review

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3

S.Ct.

In June, 1997, President Clinton announced he would nominate Bill Lann Lee for Assistant Attorney General for Civil Rights. The nomination required the advice and consent of the...

—

201. THE CONSTITUTIONALITY OF THE LINE 1997 ITEM VETO ACT OF 1996: THREE POTENTIAL SOURCES FOR PRESIDENTIAL LINE ITEM VETO POWER, 25 Hastings Const. L.Q. 119, ...

Law Review

—

3

S.Ct.

I. Introduction. 120 II. Evolution of the Line Item Veto. 122 A. The Need for Presidential Line Item Veto Power and the Passage of the Line Item Veto Act of 1996. 122 B. Summary of...

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131

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 202. IMPLEMENTING A UNITED NATIONS SECURITY COUNCIL RESOLUTION: THE PRESIDENT’S POWER TO USE FORCE WITHOUT THE AUTHORIZATION OF CONGRESS, 15 Hastings Int’...

Date 1991

Type Law Review

Depth —

Headnote(s) 3

6

10

S.Ct.

After Iraq invaded Kuwait on August 2, 1990, the United Nations became the focus of a successful international effort to expel Iraqi forces from Kuwait. The end of the Cold War...

—

Law Review

—

—

2010

Law Review

—

—

205. DEFERRING TO THE ASSERTION OF 2011 NATIONAL SECURITY: THE CREATION OF A NATIONAL SECURITY EXEMPTION UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969, 17...

Law Review

—

—

Law Review

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203. THE CASE FOR RETURNING POLITICIANS 2010 TO THE SUPREME COURT, 61 Hastings L.J. 1353, 1392+ In the past few decades, prior service in the federal judiciary has become an increasingly important qualification for appointment to the Supreme Court. As a result, the Court has...

—

204. THE SUPREME COURT AND PUBLIC OPINION IN TIMES OF WAR AND CRISIS, 61 Hastings L.J. 1453, 1501+ Observers have long speculated about the effect of war on judicial behavior. While common lore maintains that courts are reluctant to affirm claims against the government in...

—

I. Introduction. 3 II. The Purposes and Goals of the National Environmental Policy Act of 1969. 4 III. The Courts’ Review of Cases. 9 A. Cases in Which Courts Deferred to the...

—

206. NOTES ON PRESIDENTIAL FOREIGN POLICY POWERS (PART II), 11 Hofstra L. Rev. 773, 783+

1983

3

6

10

S.Ct.

In the area of foreign affairs, the Supreme Court has consistently allowed the President broad power by either upholding his actions or refusing to decide cases that raise a...

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132

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Treatment —

Title 207. JUSTICIABILITY AND THE LIMITS OF PRESIDENTIAL FOREIGN POLICY POWER, 11 Hofstra L. Rev. 517, 556+

Date 1982

Type Law Review

Depth —

Headnote(s) 3

6

S.Ct.

It is ‘’the province and duty of the judicial department, to say what the law is.’’’ With this awesome power the federal courts may strike down any governmental act they deem to be...

—

208. THE PRICE OF PURITY: WEAKENING THE EXECUTIVE MODEL OF THE UNITED STATES’ COUNTER-TERROR LEGAL SYSTEM, 47 Hous. L. Rev. 1421, 1455+

2011

Law Review

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2005

Law Review

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—

I. Introduction. 1422 II. Foundations of Executive Power. 1424 A. Origins. 1424 B. The Evolution of Emergency Powers. 1425 C. Theoretical Frameworks. 1428 III. Detention...

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209. MILITARY TRIBUNALS: CURE FOR THE TERRORISM VIRUS OR A PLAGUE ALL THEIR OWN?, 42 Hous. L. Rev. 911, 940+

3

S.Ct.

I. Introduction. 912 II. The Authorization for Use of Military Force (AUMF) and the President’s Military Order. 913 A. The AUMF Authorizes Action Against Those Involved in the...

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210. IS THE 1996 LINE-ITEM VETO CONSTITUTIONAL?, 34 Hous. L. Rev. 1161, 1194+

1997

Law Review

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3

6

12

6

10

4

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S.Ct.

C1-3Table of Contents I. Introduction. 1162 II. History of the Line-item Veto--Examples of Line-Item Veto Legislation. 1163 III. The Four Types of LineItem Vetoes. 1166 A. The...

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211. A PROPOSED MODEL FOR DETERMINING 1992 THE VALIDITY OF THE USE OF FORCE AGAINST FOREIGN ADVERSARIES UNDER THE UNITED STATES CONSTITUTION, 29 Hous. L. Rev. 3...

Law Review

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3

S.Ct.

I. Introduction II. Overview Considerations A. The Fundamental Nature of the Use of Force Question B. Guiding Principles for Resolving the Use of Force Question 1. Principle one: a...

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212. PRESIDENTIAL WAR POWERS IN A 2006 NEVER-ENDING “WAR”, 13 ILSA J. Int’l & Comp. L. 221, 239+

Law Review

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3

S.Ct.

On December 16, 2005, the New York Times ran an article revealing that the Bush Administration had, in the months immediately following the attacks of September 11, secretly...

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Title

Date

213. LISTENING TO THE ENEMY: THE 2006 PRESIDENT’S POWER TO CONDUCT SURVEILLANCE OF ENEMY COMMUNICATIONS DURING TIME OF WAR, 13 ILSA J. Int’l & Comp. L. 49, 66+

Type Law Review

Depth —

Headnote(s) 3

6

10

6

10

6

10

6

10

6

10

S.Ct.

Ever since the New York Times published classified information in December 2005 about the efforts by the National Security Agency to intercept enemy communications to or from...

—

214. CAN THE PRESIDENT BE TORTURER IN CHIEF?, 81 Ind. L.J. 1145, 1155+

2006

Law Review

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3

S.Ct.

It is a very great honor to be back in Bloomington, which I last visited when I delivered the 1998 Addison Harris Lecture on the subject of how international human rights law is...

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215. THE STATUTORY COMMANDER IN CHIEF, 81 Ind. L.J. 1169, 1169+

2006

Law Review

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3

S.Ct.

This symposium asks us to consider the scope and limits of presidential power in the context of war and terrorism. This question strongly suggests a constitutional focus. Because...

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216. LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT, 81 Ind. L.J. 1374, 1375+

2006

Law Review

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3

S.Ct.

January 19, 2006 As the President has explained, since shortly after the attacks of September 11, 2001, he has authorized the National Security Agency (’’NSA’’) to intercept...

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217. WAR POWERS: WHAT ARE THEY GOOD FOR? : CONGRESSIONAL DISAPPROVAL OF THE PRESIDENT’S MILITARY ACTIONS AND THE MERITS OF A CONGRESSIONAL SUIT AGAINST THE...

2003

Law Review

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3

S.Ct.

Like father, like son. In 1990, then-President George H.W. Bush led the United States into war against Iraq-the Persian Gulf War. His son, current President George W. Bush,...

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134

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 218. CLASSIFICATION OF ENEMY COMBATANTS AND THE USURPATION OF JUDICIAL POWER BY THE EXECUTIVE BRANCH, 40 Ind. L. Rev. 177, 203+

Date

Type

Depth

Headnote(s) —

2007

Law Review

—

1996

Law Review

—

The accumulation of all powers legislative, executive and judiciary, in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may...

—

219. A LAW CLERK AND HIS JUSTICE: WHAT WILLIAM REHNQUIST DID NOT LEARN FROM ROBERT JACKSON, 29 Ind. L. Rev. 535, 592+

3

6

12

4

6

6

10

6

10

4

12

S.Ct.

When William Rehnquist took his seat on the Supreme Court bench in 1972, he became the second member of a highly select fraternity: former law clerks who returned as Justices....

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220. EMERGENCY CONTEXTS WITHOUT EMERGENCY POWERS: THE UNITED STATES’ CONSTITUTIONAL APPROACH TO RIGHTS DURING WARTIME, 2 Int’l J. Const. L. 296, 316+

2004

Law Review

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3

S.Ct.

The United States’ constitutional system has no explicit grant of power that defines a set of circumstances or processes through which the government is granted distinct,...

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221. THE STATUTORY PRESIDENT, 90 Iowa L. Rev. 539, 600+

2005

Law Review

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3

S.Ct.

Abstract: American public law has no answer to the question of how a court should evaluate the president’s assertion of statutory authority. In this Article, I develop an answer by...

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222. THE NATIONAL SECURITY AGENCY AND ITS INTERFERENCE WITH PRIVATE SECTOR COMPUTER SECURITY, 72 Iowa L. Rev. 1015, 1039+

1987

Law Review

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3

S.Ct.

Cryptography is a coding technique applied to the transmission of information for the purpose of providing precautions against possible security breaches. Historically, government...

—

223. 10 IUS Gentium 11, PREEMPTIVE WAR AND THE LEGAL LIMITS OF NATIONAL SECURITY POLICY

2004

Law Review

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3

S.Ct.

We fight, as we always fight, for a just peace - a peace that favors liberty. We will defend the peace against the threats from terrorists and tyrants. We will preserve the peace...

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135

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Treatment —

Title 224. WITHOUT JUSTIFICATION: MISPLACED RELIANCE ON UNITED NATIONS SECURITY COUNCIL RESOLUTIONS FOR PRESIDENTIAL WAR MAKING, 31 J. Marshall L. Rev. 583, 645...

Date 1998

Type Law Review

Depth —

Headnote(s) 3

6

10

6

9

6

10

S.Ct.

’’[T]o support and defend the Constitution,’’ such is the oath taken by members of the armed forces. This oath implies that a soldier’s duty to follow orders does not extend to...

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225. WHO KNOWS YOU ARE READING THIS? UNITED STATES’ DOMESTIC ELECTRONIC SURVEILLANCE IN A POST-9/11 WORLD, 2008 U. Ill. J.L. Tech. & Pol’y 409, 438+

2008

Law Review

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3

S.Ct.

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a...

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226. 10 J. L. Society 77, LITTLE v. BARREME: THE LITTLE CASE CAUGHT IN THE MIDDLE OF A BIG WAR POWERS DEBATE

2008

Law Review

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3

S.Ct.

C1-2Table of Contents I. Introduction II. The Case and Context of Little A. Pinpointing the Little Holding B. A ‘’War Powers’’ Case Without a War? C. Was Little Really a ‘’War...

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227. 9 J. L. Society 53, ASSESSING THE CONSTITUTIONALITY OF PRESIDENT GEORGE W. BUSH’S FAITH-BASED INITIATIVES

2008

Law Review

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2002

Law Review

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—

I. Introduction and Argument II. Constitutional Provisions Implicated in this Article III. President Bush’s Faith-Based and Community Initiatives (FBCI) A. Executive Orders B. The...

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228. PRESIDENT OR KING? THE USE AND ABUSE OF EXECUTIVE ORDERS IN MODERNDAY AMERICA, 28 J. Legis. 1, 86+

3

6

10

6

10

S.Ct.

Stroke of the pen, law of the land. Kind of cool. -former Clinton advisor Paul Begala Don’t be fooled . . . the pen that can wipe out a man’s very existence is still there. Right...

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229. THE CONSTITUTION AS CHAPERON: PRESIDENT CLINTON’S FLIRTATION WITH GAYS IN THE MILITARY, 20 J. Legis. 57, 73+

1994

Law Review

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3

S.Ct.

President Clinton probably did not anticipate the backlash that his unsuccessful attempt to allow avowed homosexuals to serve in the military would unleash. What began as a...

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136

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Treatment —

Title 230. CONSTITUTIONALITY OF A MULTINATIONAL PATENT SYSTEM, PART I, 81 J. Pat. & Trademark Off. Soc’y 657, 665+

Date 1999

Type Law Review

Depth —

Headnote(s) 3

10

S.Ct.

I. Introduction. 658 II. Constitutional Issues Concerning the Patent Power A. Patent Practice. 659 B. Missouri v. Holland. 660 III. The Treaty Power under the U.S. Constitution....

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231. THE CONSTITUTIONALITY OF AN EXECUTIVE SPENDING PLAN, 92 Ky. L.J. 149, 179+

2004

Law Review

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3

6

10

6

12

S.Ct.

Operation of government in the absence of appropriations has become relatively common in the United States, particularly when projected expenses exceed projected revenue, making...

—

232. FROM PREROGATIVE TO ACCOUNTABILITY: THE AMENABILITY OF THE PRESIDENT TO SUIT, 80 Ky. L.J. 739, 813+

1992

Law Review

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3

S.Ct.

When in the fall of 1990 President George Bush announced a shift in his Persian Gulf strategy from a defensive to an offensive posture, a number of lawsuits were filed against the...

—

233. THE FUTURE AND PAST OF U.S. FOREIGN 2004 RELATIONS LAW, 67-FALL Law & Contemp. Probs. 169, 193+

Law Review

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3

10

S.Ct.

Well before Iraq, the United States had carved for itself a reputation of a global power that tried not to concern itself with the rest of the globe, even, or perhaps especially,...

—

234. IS THE STATE SECRETS PRIVILEGE IN THE CONSTITUTION? THE BASIS OF THE STATE SECRETS PRIVILEGE IN INHERENT EXECUTIVE POWERS & WHY COURTIMPLEMENTED SAFE...

2012

Law Review

—

10

S.Ct.

The invocation of the state secrets privilege frequently acts to bar all further litigation of a case, even where core civil liberties and constitutional rights are at stake. Given...

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137

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Treatment —

Title

Date

235. TRIGGERING CONGRESSIONAL WAR 2010 POWERS NOTIFICATION: A PROPOSAL TO RECONCILE CONSTITUTIONAL PRACTICE WITH OPERATIONAL REALITY, 14 Lewis & Clark L. Rev. 6...

Type Law Review

Depth —

Headnote(s) 3

6

10

6

10

5

6

6

10

4

6

S.Ct.

In 1973, a supermajority of Congress overcame President Nixon’s veto to enact the War Powers Resolution. That law was intended to restore the Founders’ vision of cooperative...

—

236. THE PROTECT AMERICA ACT: ONE NATION UNDER ((STRIKE THROUGH))GOD))END STRIKE THROUGH)) SURVEILLANCE, 29 Loy. L.A. Ent. L. Rev. 133, 162+

2009

Law Review

—

3

S.Ct.

Early in the morning on December 16, 2005, people across the United States awoke to the smell of freshly brewed coffee and learned that their own government had been spying on them...

—

237. INTERNATIONAL WRONGS, STATE LAWS 2010 AND PRESIDENTIAL POLICIES, 32 Loy. L.A. Int’l & Comp. L. Rev. 19, 43+

Law Review

—

3

S.Ct.

In Movsesian v. Victoria Versicherung AG, the Ninth Circuit invalidated a California law on the grounds that it conflicted with, and therefore was preempted by, the President’s...

—

238. ILLUMINATING THE SHADOWS OF 2008 CONSTITUTIONAL SPACE WHILE TRACING THE CONTOURS OF PRESIDENTIAL WAR POWER, 39 Loy. U. Chi. L.J. 295, 328+

Law Review

—

3

S.Ct.

[I] opposed the right of the President to declare anything future on the question, Shall there or shall there not be war[?] -- Thomas Jefferson, 1793 [War,] the true nurse of...

—

239. ADJUSTING THE REAR-VIEW MIRROR: RETHINKING THE USE OF HISTORY IN SUPREME COURT JURISPRUDENCE, 89 Marq. L. Rev. 475, 540+

2006

Law Review

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3

S.Ct.

I. Introduction. 476 II. Deliberative History and Thinking in Time. 481 A. Deliberative History. 481 B. The Content of Deliberative History: Neustadt and May’s Suggested...

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138

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

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Title

Date

240. STRUCTURAL INTERPRETATION AND THE 2005 NEW FEDERALISM: FINDING THE PROPER BALANCE BETWEEN STATE SOVEREIGNTY AND FEDERAL SUPREMACY, 88 Marq. L. Rev. 693, 7...

Type Law Review

Depth —

Headnote(s) 3

12

S.Ct.

In a series of cases that have come to be known as the ‘’new federalism,’’ five members of the current Supreme Court, led by Chief Justice William Rehnquist, have resurrected the...

—

241. TRUE BELIEVERS AT LAW: NATIONAL SECURITY AGENDAS, THE REGULATION OF LAWYERS, AND THE SEPARATION OF POWERS, 68 Md. L. Rev. 1, 88+

2008

Law Review

—

3

6

10

4

6

3

6

S.Ct.

Ideological agendas distort the deliberation required for sound legal advice about national security. Elite government lawyers after September 11 advanced a theory at the expense...

—

242. YOUNGSTOWN, HAMDAN, AND “INHERENT” EMERGENCY PRESIDENTIAL POLICYMAKING POWERS, 66 Md. L. Rev. 787, 804+

2007

Law Review

—

3

S.Ct.

This is form gulping after formlessness . . . . Wallace Stevens, The Auroras of Autumn. The doctrine of the Youngstown case, increasingly identified with Justice Jackson’s...

—

243. EXAMINING PRESIDENTIAL POWER THROUGH THE RUBRIC OF EQUITY, 108 Mich. L. Rev. 113, 151+

2009

Law Review

—

2

S.Ct.

In this Note I propose a method to examine presidents’ actions taken outside the normal bounds of executive power by employing the general rubric of equity, in an attempt to find...

—

244. IRRELEVANT OVERSIGHT: 2009 “PRESIDENTIAL ADMINISTRATION” FROM THE STANDPOINT OF ARBITRARY AND CAPRICIOUS REVIEW, 107 Mich. L. Rev. 643, 674+

Law Review

—

3

S.Ct.

The president is now regularly and heavily involved in the decision-making processes of administrative agencies. What began in the mid-twentieth century as macro-level oversight...

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139

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 245. INTERNATIONAL LAW AND CONSTITUTIONAL INTERPRETATION: THE COMMANDER IN CHIEF CLAUSE RECONSIDERED, 106 Mich. L. Rev. 61, 100+

Date 2007

Type Law Review

Depth —

Headnote(s) 3

6

10

9

10

6

9

4

6

4

6

S.Ct.

The Commander in Chief Clause is a difficult, underexplored area of constitutional interpretation. It is also a context in which international law is often mentioned, but not fully...

—

246. BURKEAN MINIMALISM, 105 Mich. L. Rev. 353, 408+

2006

Law Review

—

6

S.Ct.

Burkean minimalism has long played an important role in constitutional law. Like other judicial minimalists, Burkeans believe in rulings that are at once narrow and theoretically...

—

247. FROM NADIR TO ZENITH: THE POWER TO 2011 DETAIN IN WAR, 207 Mil. L. Rev. 203, 215+

Law Review

—

3

S.Ct.

Remarkably . the state of the law regarding the scope of the President’s authority to detain . remains unsettled. On January 30, 2009, the United States charged Mohammed Jawad with...

—

—

248. BUILDING A BETTER CYBERSECURITY 2010 ACT: EMPOWERING THE EXECUTIVE BRANCH AGAINST CYBERSECURITY EMERGENCIES, 206 Mil. L. Rev. 1, 17+

Law Review

249. LEGISLATING MILITARY DOCTRINE: CONGRESSIONAL USURPING OF EXECUTIVE AUTHORITY THROUGH DETAINEE INTERROGATIONS, 193 Mil. L. Rev. 97, 111+

Law Review

2007

—

3

S.Ct.

—

3

S.Ct.

Congress must restrain itself from legislating military doctrine and permit the Executive to exercise its authority in control of military operations, including detainee...

—

250. EMERGENCY POWERS AND TERRORISM, 185 Mil. L. Rev. 69, 86+

2005

Law Review

—

3

S.Ct.

The moral strength, vitality and commitment proudly enunciated in the Constitution is best tested at a time when forceful, emotionally moving arguments to ignore or trivialize its...

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140

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 251. THE SUPREME COURT’S ROLE IN DEFINING THE JURISDICTION OF MILITARY TRIBUNALS: A STUDY, CRITIQUE, & PROPOSAL FOR HAMDAN v. RUMSFELD, 186 Mil. L. Rev. 1,...

Date 2005

Type Law Review

Depth —

Headnote(s) 3

6

12

4

10

6

10

S.Ct.

Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters....

—

252. PRESIDENTIAL WAR POWER: DO THE COURTS OFFER ANY ANSWERS?, 157 Mil. L. Rev. 180, 191+

1998

Law Review

—

3

S.Ct.

Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has...

—

253. FUNDING “NON-TRADITIONAL” MILITARY 1998 OPERATIONS: THE ALLURING MYTH OF A PRESIDENTIAL POWER OF THE PURSE, 155 Mil. L. Rev. 1, 84+

Law Review

—

3

S.Ct.

Every [military] undertaking must be, at least ought to be, regulated by the state of our Finances .; without this disappointment, disgrace, and increase of debt will follow on our...

—

254. FIXING THE WAR POWERS, 141 Mil. L. Rev. 1993 83, 148+

Law Review

—

3

4

S.Ct.

I. Introduction Shortly after the Vietnam War ended, Congress passed the War Powers Resolution (WPR), a unique and enduring legacy of Vietnam and the besieged President who ended...

—

255. PRESIDENTIAL AUTHORITY TO DISPLACE 1990 CUSTOMARY INTERNATIONAL LAW, 129 Mil. L. Rev. 77, 99+

Law Review

—

6

10

S.Ct.

At the basis of international law lies the notion that a state occupies a definite part of the surface of the earth, within which it normally exercises, subject to the limitations...

—

256. THE PRESIDENT’S POWER TO PROMULGATE DEATH PENALTY STANDARDS, 125 Mil. L. Rev. 143, 180+

1989

Law Review

—

3

4

6

S.Ct.

The Court of Military Appeals in United States v. Matthews held that the system for assessing capital punishment in the military was defective because the sentencing procedures...

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141

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Title

Date

257. WARTIME JUDGMENTS OF PRESIDENTIAL 2009 POWER: STRIKING DOWN BUT NOT BACK, 93 Minn. L. Rev. 1778, 1819+

Type

Depth

Headnote(s)

Law Review

—

—

—

When assessing presidential actions taken during war, Supreme Court Justices do not merely acknowledge the objective threat that the nation faces. They often argue, and almost...

—

258. MURDER AND THE MILITARY COMMISSIONS: PROHIBITING THE EXECUTIVE’S UNAUTHORIZED EXPANSION OF JURISDICTION, 93 Minn. L. Rev. 1871, 1901+

2009

Law Review

—

—

259. THE FOUNDERS’ PRIVACY: THE FOURTH AMENDMENT AND THE POWER OF TECHNOLOGICAL SURVEILLANCE, 86 Minn. L. Rev. 1325, 1378+

2002

Law Review

—

3

5

6

6

10

4

6

S.Ct.

[O]urs is a government of laws, not of men, and . . . we submit ourselves to rulers only if under rules. A great challenge of constitutional law is to interpret a document...

—

260. UNCONSTITUTIONAL RULEMAKING: THE CIVIL JUSTICE REFORM ACT AND SEPARATION OF POWERS, 77 Minn. L. Rev. 1283, 1299+

1993

Law Review

—

10

S.Ct.

C1-2TABLE OF CONTENTS Introduction. 1284 I. The Civil Justice Reform Act and the Separation-ofPowers Doctrine. 1289 A. The Civil Justice Reform Act as an Idiosyncratic...

—

261. THE CONSTITUTIONAL CASE AGAINST INTRACIRCUIT NONACQUIESCENCE, 75 Minn. L. Rev. 1339, 1380+

1991

Law Review

—

3

S.Ct.

Introduction I. Defining Intracircuit Nonacquiescence II. The Equal Protection and Due Process Arguments A. Equal Protection B. Due Process III. The Separation-of-Powers...

—

262. UPHOLDING JUSTICE IN THE AGE OF TERRORISM, 28-NOV Mont. Law. 6, 8+

2002

Law Review

—

3

S.Ct.

This past May I was fortunate enough to be able to attend a seminar co-sponsored by the International Bar Association and the National Association of Criminal Defense Lawyers on...

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142

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 263. UNITED STATES EXCHANGE STABILIZATION FUND: THE CONSTITUTIONALITY OF PRESIDENT CLINTON’S $20 BILLION PESO RESCUE PLAN, 1-SUM NAFTA: L. & Bus. Rev. Am. ...

Date 1995

Type Law Review

Depth —

Headnote(s) 3

6

10

6

10

6

10

6

10

S.Ct.

I have frequently said that today we have a Federal Government of, by and for the bureaucrats, instead of one that is of, by, and for the people. But even I did not realize how...

—

264. AXES OF POWER: PREDICTING THE 2009 RECEPTION OF ASSERTIONS OF PRESIDENTIAL WAR POWERS IN THE COURTS, 58 Naval L. Rev. 1, 14+

Law Review

—

3

S.Ct.

The sphinx-like nature of constitutional war powers are purposefully ambiguous in their allocation and definitions, yet judicial decisions that have faced presidential exertions of...

—

265. OUT OF SIGHT, OUT OF MIND? A CASE FOR LONG RANGE IDENTIFICATION AND TRACKING OF VESSELS ON THE HIGH SEAS, 56 Naval L. Rev. 219, 249+

2008

Law Review

—

6

S.Ct.

The United States’ ‘’National Strategy for Maritime Security’’ provides that ‘’[i]nterdiction of personnel and materials that pose a threat to the United States or the maritime...

—

266. THE LEGALITY OF AMERICAN MILITARY TROOPS ENGAGING IN DOMESTIC LAW ENFORCEMENT IN THE EVENT OF A MAJOR TERRORIST ATTACK, 41 New Eng. L. Rev. 199, 246+

2006

Law Review

—

3

S.Ct.

’’[S]oldiers quartered in a populous town, will always occasion two mobs, where they prevent one.--They are wretched conservators of the peace!’’ Imagine a hypothetical. Major...

—

267. BANK HOLIDAY: THE 2002 CONSTITUTIONALITY OF PRESIDENT MAHUAD’S FREEZING OF ACCOUNTS AND THE CLOSING OF ECUADOR’S BANKS, 15 N.Y. Int’l L. Rev. 61, 74+

Law Review

—

3

S.Ct.

In 1999, the President of the Republic of Ecuador, Jamil Mahuad, closed over 9 major banks and froze their customers’ assets, which totaled more than $3 billion in deposits. The...

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143

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Title

Date

268. THE JOSE PADILLA STORY, 48 N.Y.L. Sch. 2004 L. Rev. 39, 67+

Type Law Review

Depth —

Headnote(s) 3

5

6

6

10

S.Ct.

The editors of the New York Law School Law Review have compiled the following article primarily from briefs submitted to the United States District Court for the Southern District...

—

269. PROCESS DANGERS OF MILITARY INVOLVEMENT IN CIVIL LAW ENFORCEMENT: RECTIFYING THE POSSE COMITATUS ACT, 9 N.Y.U. J. Legis. & Pub. Pol’y 167, 250+

2006

Law Review

—

3

S.Ct.

I. Introduction. 169 II. The Posse Comitatus Act. 173 A. Service Components Governed by the PCA. 174 1. Army, Air Force, Navy, and Marine Corps. 174 2. Service...

—

270. THE “SURVEIL OR KILL” DILEMMA: SEPARATION OF POWERS AND THE FISA AMENDMENTS ACT’S WARRANT REQUIREMENT FOR SURVEILLANCE OF U.S. CITIZENS ABROAD, 86 N.Y...

2011

Law Review

—

3

9

S.Ct.

In July 2010, Nasser Al-Aulaqi, the father of suspected terrorist leader and U.S. citizen Anwar AlAulaqi, filed a lawsuit alleging that his son had been placed on a targeted...

—

271. IMAGINING A FEDERAL EMERGENCY BOARD: A FRAMEWORK FOR LEGALIZING EXECUTIVE EMERGENCY POWER, 85 N.Y.U. L. Rev. 1263, 1290+

2010

Law Review

—

3

10

S.Ct.

In the United States, the tripartite system ensures the rule of law by dividing the power to make laws between Congress and the President. The system, however, makes virtually no...

—

—

272. “(WE) CAN NEITHER CONFIRM NOR DENY 2010 THE EXISTENCE OR NONEXISTENCE OF RECORDS RESPONSIVE TO YOUR REQUEST” (FN1): REFORMING THE GLOMAR RESPONSE UNDER FOI...

Law Review

273. THE SUPREME COURT DURING CRISIS: HOW WAR AFFECTS ONLY NON-WAR CASES, 80 N.Y.U. L. Rev. 1, 116+

Law Review

2005

—

3

10

S.Ct.

—

3

4

6

S.Ct.

Does the U.S. Supreme Court curtail rights and liberties when the nation’s security is under threat? In hundreds of articles and books, and with renewed fervor since September 11,...

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

144

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 274. THE IMPERIAL PRESIDENCY STRIKES BACK: EXECUTIVE ORDER 13,233, THE NATIONAL ARCHIVES, AND THE CAPTURE OF PRESIDENTIAL HISTORY, 79 N.Y.U. L. Rev. 1570, ...

Date 2004

Type Law Review

Depth —

Headnote(s) 3

6

10

6

10

6

10

4

6

S.Ct.

In November 2001, after delaying the release of President Reagan’s presidential papers, President Bush issued Executive Order 13,233, which limits the ability of the public to...

—

275. CIVIL LIBERTIES DURING NATIONAL 2005 EMERGENCIES: THE INTERACTIONS BETWEEN THE THREE BRANCHES OF GOVERNMENT IN COPING WITH PAST AND CURRENT THREATS TO THE ...

Law Review

—

3

S.Ct.

Echoing the obvious, the Supreme Court historically has recognized that ‘’no governmental interest is more important than the security of the Nation.’’ In light of the events of...

—

—

276. A FATHER WAITS: MEDELLIN V. TEXAS AND THE APPLICATION OF WORLD COURT DECISIONS ON U.S. DOMESTIC LAW, 35 N.C. J. Int’l L. & Com. Reg. 233, 261+

2009

277. THE PROCESS DUE INDEFINITELY DETAINED CITIZENS, 85 N.C. L. Rev. 1687, 1740+

2007

Law Review

—

3

S.Ct.

Law Review

—

3

S.Ct.

A very controversial feature of the ‘’war on terror’’ is the scope of the power which Congress has granted President George W. Bush to designate suspected terrorists enemy...

—

278. EXECUTIVE AGREEMENTS AND THE 1998 (NON)TREATY POWER, 77 N.C. L. Rev. 133, 240+

Law Review

—

3

6

S.Ct.

Executive agreements have played an increasingly important role in the foreign affairs of the United States in the twentieth century. These international agreements, sometimes...

—

279. TAKE CARE, MR. PRESIDENT, 64 N.C. L. Rev. 381, 382+

1986

Law Review

—

5

6

9

S.Ct.

On December 17, 1984, the Director of the Office of Management and Budget (OMB), David Stockman, acting on the advice of the Attorney General of the United States, issued a...

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145

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 280. INTERNATIONAL LAW AND CONSTITUTIONAL LAW: INTERNATIONAL COURT OF JUSTICE AND EXECUTIVE POWERINTERPRETING AND IMPLEMENTING INTERNATIONAL TREATY OBLIGA...

Date 2009

Type Law Review

Depth —

Headnote(s) 3

6

10

4

12

6

10

4

6

S.Ct.

In 1994, Jose Ernando Medellín, a Mexican national, was convicted of capital murder and sentenced to death in a Texas state court for the gang rapes and murders of two Houston...

—

281. PRIVATE AND PUBLIC NECESSITY AND 2007 THE VIOLATION OF PROPERTY RIGHTS, 83 N.D. L. Rev. 651, 733+

Law Review

—

3

S.Ct.

I. INTRODUCTION. 653 II. VIOLATION OF PROPERTY RIGHTS BASED ON PRIVATE NECESSITY. 655 A. Trespass to Prevent Serious Harm to Oneself, One’s Land, Third Parties, or One’s...

—

282. ENDING THE KOREMATSU ERA: AN EARLY VIEW FROM THE WAR ON TERROR CASES, 105 Nw. U. L. Rev. 983, 1041+

2011

Law Review

—

9

S.Ct.

Introduction. 983 I. The Korematsu Era. 991 A. A Revisionist History of Korematsu v. United States. 992 B. Korematsu ‘s Companions: Identifying the Korematsu Era. 1002 C. The...

—

283. RAISING THE PAQUETE HABANA: IS VIOLATION OF CUSTOMARY INTERNATIONAL LAW BY THE EXECUTIVE UNCONSTITUTIONAL?, 80 Nw. U. L. Rev. 321, 324+

1985

Law Review

—

3

S.Ct.

I. L2-5,T2Introduction. .322 II. L2-5,T2Three Tiers of Presidential-Congressional Power: The Framework. .325 A. L3-5,T3Statutory Approval. .326 B. L35,T3Statutory Disapproval....

—

284. CREATING LEGAL RIGHTS FOR SUSPECTED TERRORISTS: IS THE COURT BEING COURAGEOUS OR POLITICALLY PRAGMATIC?, 84 Notre Dame L. Rev. 1975, 2051+

2009

Law Review

—

3

S.Ct.

Boumediene v. Bush continued the Supreme Court’s quixotic quest to establish legal guidelines for the War on Terrorism, which George Bush waged-- with the support of...

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146

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Title

Date

285. THE “ENEMY COMBATANT” CASES IN 2007 HISTORICAL CONTEXT: THE INEVITABILITY OF PRAGMATIC JUDICIAL REVIEW, 82 Notre Dame L. Rev. 1005, 1083+

Type Law Review

Depth —

Headnote(s) 3

4

6

6

10

6

10

6

10

6

10

S.Ct.

What is the judiciary’s proper role in reviewing claims that the federal government, in attempting to protect national security, has violated individual rights? This perennial...

—

286. REDISCOVERING THE NONDELEGATION DOCTRINE THROUGH A UNIFIED SEPARATION OF POWERS THEORY, 81 Notre Dame L. Rev. 419, 447+

2005

Law Review

—

3

S.Ct.

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...

—

287. THE CONSTITUTION OF NECESSITY, 79 Notre Dame L. Rev. 1257, 1297+

2004

Law Review

—

3

S.Ct.

No axiom is more clearly established in law, or in reason, than that whenever the end is required, the means are authorized; whenever a general power to do a thing is given, every...

—

288. THE LEGACY OF DAMES & MOORE V. REGAN: THE TWILIGHT ZONE OF CONCURRENT AUTHORITY BETWEEN THE EXECUTIVE AND CONGRESS AND A PROPOSAL FOR A JUDICIALLY MAN...

2003

Law Review

—

3

S.Ct.

Introduction. 292 I. The Nature of the Power Exercised by Executive Order No. 12,294. 296 A. A Summary of the Court’s Interpretation of Executive Order No. 12,294. 298 B. The...

—

289. CONGRESSIONAL ASSERTIVENESS, 1989 EXECUTIVE AUTHORITY AND THE INTELLIGENCE OVERSIGHT ACT: A NEW THREAT TO THE SEPARATION OF POWERS, 64 Notre Dame L. Rev. 5...

Law Review

—

3

S.Ct.

As the Iran-Contra affair vividly illustrated, the conduct of foreign policy under our constitutional system is often an ‘invitation to struggle’ between the executive and...

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147

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Treatment —

Title

Date

290. SEPARATION OF POWERS1982 CONGRESSIONAL ACQUIESCENCE TO EXECUTIVE DISCRETION IN FOREIGN AFFAIRS, 57 Notre Dame Law. 868, 881+

Type Law Review

Depth —

Headnote(s) 3

6

10

6

10

6

10

6

10

4

6

S.Ct.

The Supreme Court of the United States has often struggled with the question of the scope and nature of the President’s power over foreign affairs. This question is most pertinent...

—

291. NIXON, MITCHELL, AND WARRANTLESS WIRETAPS: A PRESIDENTIAL ATTEMPT TO SUSPEND THE FOURTH AMENDMENT, 16 Ohio N.U. L. Rev. 637, 652+

1989

Law Review

—

3

S.Ct.

In previous articles on the opinions of the Attorney General and the development of presidential power, I have established a specific relationship between the President and his...

—

292. CONFLICTS BETWEEN THE COMMANDER 2008 IN CHIEF AND CONGRESS: CONCURRENT POWER OVER THE CONDUCT OF WAR, 69 Ohio St. L.J. 391, 467+

Law Review

—

3

S.Ct.

The Bush Administration has asserted that the President has broad and exclusive power to conduct its war on terror under the Constitution as Commander in Chief. In doing so the...

—

293. FOREIGN RELATIONS AS A MATTER OF 2006 INTERPRETATION: THE USE AND ABUSE OF CHARMING BETSY, 67 Ohio St. L.J. 1339, 1390+

Law Review

—

3

S.Ct.

Charming Betsy is a canon of construction that construes legislative enactments consistent with the law of nations. This canon promotes the passive virtue of avoiding...

—

294. THE CONCURRENT RESOLUTION PROVISION OF THE WAR POWERS RESOLUTION: IMMIGRATION AND NATURALIZATION SERVICE v. CHADHA AND THE SOURCES OF PRESIDENTIAL WAR...

1984

Law Review

—

3

S.Ct.

Both before and after the Supreme Court’s decision in Immigration and Naturalization Service v. Chadha, members of the government have argued that the concurrent resolution...

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148

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Treatment —

Title

Date

295. HABEAS CORPUS JURISDICTION VERSUS 2009 EXECUTIVE WAR POWER: THE COURT’S ROLE IN PROTECTING INDIVIDUAL RIGHTS, 34 Okla. City U. L. Rev. 565, 590+

Type Law Review

Depth —

Headnote(s) 3

6

10

5

6

S.Ct.

In peaceable and quiet times, our legal rights are in little danger of being overborne; but when the wave of power lashes itself into violence and rage, and goes surging up against...

—

296. WHOSE WAR IS IT ANYWAY? THE WAR IN 2007 IRAQ: SHARED WAR POWERS OF THE EXECUTIVE BRANCH AND THE CONGRESSIONAL BRANCH AND THE 2008 PRESIDENTIAL ELECTION, 32...

Law Review

—

3

S.Ct.

I. Introduction. 2 II. Fighting Terrorism: A Preamble to the War in Iraq. 3 A. National and Global Terrorism Defined. 3 1. Why So Difficult to Define?. 4 2. History of...

—

297. THE IMPLICITLY CONSTITUTIONAL ITEM VETO, 19 Okla. City U. L. Rev. 161, 166+

1994

Law Review

—

3

S.Ct.

This Note examines the subject of one of American history’s most recurrent debates: the presidential item veto. Of course, the United States Constitution confers upon the President...

—

298. LIMITING THE USE OF FUNDS 1988 APPROPRIATED FOR EXECUTIVE FUNCTIONS: IS THE 1984 BOLAND AMENDMENT CONSTITUTIONAL?, 13 Okla. City U. L. Rev. 569, 606+

Law Review

—

3

6

S.Ct.

Off and on through history, the Congress of the United States raises its lumbering head in an effort to affect the nation’s foreign relations policy. In the years since the...

—

299. ATTORNEY GENERAL ROBERT JACKSON’S BRIEF ENCOUNTER WITH THE NOTION OF PRECLUSIVE PRESIDENTIAL POWER, 30 Pace L. Rev. 364, 395+

2010

Law Review

—

3

6

10

S.Ct.

Justice Robert H. Jackson’s concurring opinion in the Steel Seizure case is the best judicial opinion ever written on the vexing question of the President’s constitutional power...

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149

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Treatment —

Title 300. DO WE HAVE AN AGREEMENT? EXAMINING THE CONSTITUTIONALITY AND LEGALITY OF THE SECURITY AND PROSPERITY PARTNERSHIP OF NORTH AMERICA, AND THE LEGAL RAMIF...

Date 2009

Type Law Review

Depth —

Headnote(s) 3

S.Ct.

The Security and Prosperity Partnership of North America (’’SPP’’) is a tri-lateral partnership formed in 2005 between the United States, Canada, and Mexico. The three countries...

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301. TO PRESERVE, PROTECT, AND DEFEND: AN IMMINENT THREAT APPROACH TO RESOLVING THE QUESTION OF INHERENT POWERS AFTER ACLU V. NSA, 112 Penn St. L. Rev. 315...

2007

Law Review

—

3

S.Ct.

Throughout the history of the United States, various Presidents have relied upon their inherent powers to justify action they believed was for the good of the nation. In order to...

—

302. BEYOND THE EXECUTIVE AGREEMENT: THE FOREIGN POLICY PREFERENCE UNDER MOVSESIAN AND THE RETURN OF THE DORMANT FOREIGN AFFAIRS POWER IN NORTON SIMON, 38 ...

2011

Law Review

—

3

S.Ct.

I. Introduction II. Preemption Under the Doctrine of Foreign Affairs A. Express Preemption B. Implied Preemption Under the Modern Approach 1. Conflict Preemption 2....

—

303. GIVEN AN INCH, THE DETAINEE EFFORT 2008 TO TAKE A MILE: THE DETAINEE LEGISLATION AND THE DANGERS OF THE “LITIGATION WEAPON IN UNRESTRAINED ENEMY HANDS”, 36...

Law Review

—

6

S.Ct.

I. Introduction II. Background A. Origin and Evolution of the Writ in England B. Constitutional Incorporation of the English Common Law Writ C. The Operation of the Writ in...

—

304. A WOLF IN SHEEP’S CLOTHING: THE 2007 UNILATERAL EXECUTIVE AND THE SEPARATION OF POWERS, 6 Pierce L. Rev. 265, 297+

Law Review

—

3

4

6

S.Ct.

’’Everybody sees what you appear to be, few feel what you are, and those few will not dare to oppose themselves to the many, who have the majesty of the state to defend them.’’...

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150

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 305. COORDINATING THE FORCES: MILITARY COMMAND OF NON-DOD CONTRACTORS IN BATTLESPACE EMERGENCIES, 38 Pub. Cont. L.J. 259, 269+

Date 2008

Type Law Review

Depth —

Headnote(s) 3

4

10

6

10

6

10

S.Ct.

I. L2-3,T3Introduction 259. II. L2-3,T3The Case for Military Command of Non-DoD Contractors 261. III. L2-3,T3Barriers in the Present State of Battlespace Contracting 262. A. The...

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306. TERRORIST FINANCE TRACKING PROGRAM: ILLEGALITY BY THE PRESIDENT OR THE PRESS?, 26 Quinnipiac L. Rev. 213+

2007

Law Review

—

3

S.Ct.

On the Tuesday morning of September 11, 2001, the people of the United States awoke to an attack on their country. Four airline carriers were hijacked by al Qaeda operatives and...

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307. PAX AMERICANA Y LA ARROGANCIA DEL 2004 PODER: APUNTES CRÍTICOS SOBRE LA CRISIS EN IRAK Y EL BALANCE INSTITUCIONAL ENTRE LAS RAMAS CONSTITUCIONALES DE ESTAD...

Law Review

—

3

S.Ct.

[W]e must face the fact that the United States is neither omnipotent nor omniscient —that we are only 6 percent of the world’s population— that we cannot impose our will upon the...

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308. ON THE SLIPPERY SLOPES OF AFGHANISTAN: MILITARY COMMISSIONS AND THE EXERCISE OF PRESIDENTIAL POWER, 71 Rev. Jur. U.P.R. 667, 678+

2002

Law Review

—

3

S.Ct.

Peace is not an absence of war, it is a virtue, a state of mind, a disposition for benevolence, confidence, justice. —Spinoza On September 11, 2001, two commercial airliners were...

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309. RESTORING THE CONGRESSIONAL DUTY 2011 TO DECLARE WAR, 63 Rutgers L. Rev. 407, 519+

Law Review

—

9

10

S.Ct.

[The President’s authority] would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy;...

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151

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title

Date

310. A PERTINENT MESSAGE FOR TODAY 2003 FROM KEY CONSTITUTIONAL AND ADMINISTRATIVE RULINGS OF YESTERDAY, 40 San Diego L. Rev. 1533, 1553+

Type Law Review

Depth —

Headnote(s) 3

4

6

6

10

S.Ct.

In the aftermath of September 11, 2001 and debate over whether traditional mechanisms for adjudication can deal adequately with alleged perpetrators of terrorism, I’ve been...

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311. WAR DECISIONS IN THE LATE 1990S BY PARTIAL CONGRESSIONAL DECLARATION, 36 San Diego L. Rev. 1, 39+

1999

Law Review

—

3

S.Ct.

The great surprise in actual war powers decision making of the late 1990s has been the emergence of a practically decisive, yet constitutionally unexplored paradigm: ‘’partial’’...

—

312. ASYMMETRIC WORLD JURISPRUDENCE, 32 Seattle U. L. Rev. 569, 589+

2009

Law Review

—

3

10

S.Ct.

An asymmetric world--marked by gross imbalances of power and unconventional tactics--requires that we regularly reexamine federal judicial power and its limits. Now, more than...

—

313. THE CONSTITUTIONAL STATUS OF THE PRESIDENT’S IMPOUNDMENT OF NATIONAL SECURITY FUNDS, 12 Seton Hall Const. L.J. 1, 117+

2001

Law Review

—

3

6

10

6

10

S.Ct.

INTRODUCTION I. The Distinction Between National Security and Domestic Affairs II. The History of Impoundment A. The Role of Custom in Constitutional Law B. The Framers and the...

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314. ARTICLE I, SECTION 7, CLAUSE 21999 PRESENTMENT CLAUSE-A FEDERAL STATUTE THAT AUTHORIZES THE PRESIDENT OF THE UNITED STATES TO RENDER DULY ENACTED ITEMS OF...

Law Review

—

3

S.Ct.

The Line Item Veto Act authorizes the President himself to effect the repeal of laws, for his own policy reasons, without observing the procedures set out in Article I, § 7. The...

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152

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title

Date

315. SEPARATION OF POWERS-PRESIDENTIAL 1998 IMMUNITY-THE PRESIDENT DOES NOT HAVE IMMUNITY FROM CIVIL LIABILITY FOR ACTS TAKEN IN HIS UNOFFICIAL CAPACITYCLINTON...

Type Law Review

Depth —

Headnote(s) 3

6

12

4

12

4

6

6

12

S.Ct.

Similar to many other American principles of law, sovereign immunity, and its companion doctrine of executive immunity, has its basis in English tradition. Rooted in the English...

—

316. THE CHANGING MEANING OF THE RIGHT TO BEAR ARMS, 6 Seton Hall Const. L.J. 101, 188+

1995

Law Review

—

3

S.Ct.

I. INTRODUCTION. 103 II. THE METHOD: DUALISM AND SYNTHESIS. 109 III. THE RIGHT TO BEAR ARMS IN THE FEDERALIST FRAMEWORK. 111 A. Division of Power Between the Federal Standing...

—

317. ILLEGAL CONFINEMENT: PRESIDENTIAL 2002 AUTHORITY TO SUSPEND THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS DURING TIMES OF EMERGENCY, 12 S. Cal. Interdisc. L.J...

Law Review

—

3

S.Ct.

Civil liberties during war and national emergency are often redefined to strike a balance between safeguarding individual freedoms and furthering America’s national interests. ...

—

318. THE POLITICAL ECONOMY OF YOUNGSTOWN, 83 S. Cal. L. Rev. 263, 328+

2010

Law Review

—

3

S.Ct.

The time is ripe for a nondoctrinal assessment of Justice Jackson’s famous three-category framework for challenges to presidential action, elaborated in Youngstown Sheet & Tube Co....

—

319. ON THE COMMANDER IN CHIEF POWER, 81 S. Cal. L. Rev. 477, 569+

2008

Law Review

—

4

9

S.Ct.

BRADBURY: Obviously, the Hamdan decision, Senator, does implicitly recognize that we’re in a war, that the President’s war powers were triggered by the attacks on the country, and...

—

320. DETENTIONS, MILITARY COMMISSIONS, TERRORISM, AND DOMESTIC CASE PRECEDENT, 76 S. Cal. L. Rev. 1371, 1407+

2003

Law Review

—

3

4

6

S.Ct.

Laura Dickinson’s recent article in this journal substantially improves appreciation of how the United States has detained suspects and instituted military commissions as well as...

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

153

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title

Date

321. CONTROLLING INHERENT PRESIDENTIAL 1983 POWER: PROVIDING A FRAMEWORK FOR JUDICIAL REVIEW, 56 S. Cal. L. Rev. 863, 869+

Type Law Review

Depth —

Headnote(s) 3

6

10

4

6

4

6

4

10

4

6

S.Ct.

In the past decade, the Supreme Court repeatedly has been asked to define the scope of the President’s inherent powers. Did President Carter have the authority to freeze all...

—

322. THE SEPTEMBER 11 IMMIGRATION DETENTIONS AND UNCONSTITUTIONAL EXECUTIVE LEGISLATION, 29 S. Ill. U. L.J. 5, 15+

2005

Law Review

—

3

S.Ct.

In response to the tragic September 11 attacks, the U. S. government waged ‘’war’’ on terror internationally and domestically. One key component of the domestic ‘’war’’ on terror...

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323. ACCESS TO COUNSEL FOR “ENEMY COMBATANT” CITIZENS IN MILITARY DETENTION: A STATUTORY OR CONSTITUTIONAL RIGHT? PADILLA V. BUSH, 233 F. SUPP. 2D 564 (S.D...

2004

Law Review

—

3

S.Ct.

For the first time since World War II, two American citizens have been detained in military custody as enemy combatants, a consequence of the Bush Administration’s response to the...

—

324. COUNTERACTING AMBITION: APPLYING CORPORATE COMPLIANCE AND ETHICS TO THE SEPARATION OF POWERS CONCERNS WITH DOMESTIC SURVEILLANCE, 60 SMU L. Rev. 1571,...

2007

Law Review

—

3

S.Ct.

MY first political memory is from 1974, when I was seven years old. I remember seeing a man on television, and to my young mind, something did not look right. I asked my father who...

—

325. RASUL V. BUSH: VICTORY FOR ENEMY 2006 ALIENS AS EXECUTIVE EMERGENCY POWER IS SEIZED, 20 St. John’s J. Legal Comment. 385, 418+

Law Review

—

3

S.Ct.

The United States Constitution does not contain emergency provisions. There is not an emergency system of government, nor any formal acceptance of exceptions to the normal...

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154

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 326. CHECKING EXECUTIVE DISREGARD, 84 St. John’s L. Rev. 329, 361+

Date 2010

Type Law Review

Depth —

Headnote(s) 3

5

6

6

10

S.Ct.

’’I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection.’’ James Madison ‘’It...

—

327. FOREIGN AFFAIRS ORIGINALISM IN YOUNGSTOWN’S SHADOW, 53 St. Louis U. L.J. 29, 38+

2008

Law Review

—

3

S.Ct.

It is always a daunting task to write a response devoted entirely to an individual article. It is that much heavier a burden when the article is as thoughtful, careful, and, in...

—

328. TOM EAGLETON AND THE “CURSE TO OUR CONSTITUTION”, 52 St. Louis U. L.J. 109, 136+

2007

Law Review

—

3

6

S.Ct.

If my friend Tom Eagleton had lived a few more months, I’m sure he would have been amazed--and amused in a Tom Eagleton sort of way--by the astonishing story of Alberto Gonzales’s...

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329. BROWN V. BOARD OF EDUCATION AND THE JURISPRUDENCE OF LEGAL REALISM, 48 St. Louis U. L.J. 795, 838+

2004

Law Review

—

2

4

6

4

6

S.Ct.

We are here today to commemorate the fiftieth anniversary of Brown v. Board of Education, surely the most important case decided in the Twentieth Century by the Supreme Court of...

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330. COULD A CIA OR FBI AGENT BE QUARTERED IN YOUR HOUSE DURING A WAR ON TERRORISM, IRAQ OR NORTH KOREA?, 48 St. Louis U. L.J. 587, 668+

2004

Law Review

—

3

S.Ct.

After the September 11, 2001 terrorist attacks against the United States, the United States-led coalition of nations commenced a ‘’War on Terrorism.’’ Part of the effort to defeat...

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331. THE PRESIDENCY AND THE RULE OF 1999 LAW: SOME PRELIMINARY EXPLORATIONS, 43 St. Louis U. L.J. 791, 852+

Law Review

—

3

6

S.Ct.

The Rule of Law constitutes a fundamental commitment of American life. As Professor Richard H. Fallon, Jr. put it, ‘’[r]espect for the Rule of Law is central to our political and...

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155

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Treatment

Title

Date

Type

Depth

Headnote(s) —

—

332. THE POWER TO END WAR: THE EXTENT AND LIMITS OF CONGRESSIONAL POWER, 41 St. Mary’s L.J. 445, 477+

2010

Law Review

—

—

333. JOSE PADILLA AND DUE PROCESS OF LAW, 19 St. Thomas L. Rev. 199, 247+

2006

Law Review

—

3

10

S.Ct.

I. INTRODUCTORY. 199 II. JOSE PADILLA. 201 III. THE OPINIONS. 202 A. Padilla I.. 202 B. Padilla II.. 205 C. Padilla IIA. 206 D. Padilla III.. 207 E. Padilla IV.. 209 ...

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334. THE STATUS OF THE GENERAL AGREEMENT ON TARIFFS AND TRADE IN UNITED STATES DOMESTIC LAW, 26 Stan. J. Int’l L. 479, 498+

1990

Law Review

—

3

6

10

6

10

S.Ct.

L1-2Introduction 480 I. The History of the GATT as United States Law. 482 A. Congressional Authority for Negotiating Trade Agreements in 1947. 482 B. Congressional Authority for...

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335. THE SURPRISINGLY STRONGER CASE FOR THE LEGALITY OF THE NSA SURVEILLANCE PROGRAM: THE FDR PRECEDENT, 60 Stan. L. Rev. 1023, 1076+

2008

Law Review

—

3

S.Ct.

Introduction. 1024 I. The NSA Controversy. 1029 A. The Foreign Intelligence Surveillance Act. 1029 B. The NSA Program. 1032 II. The Precursor to the FDR Precedent: Nardone I...

—

336. WILLIAM REHNQUIST, THE SEPARATION OF POWERS, AND THE RIDDLE OF THE SPHINX, 58 Stan. L. Rev. 1735, 1762+

2006

Law Review

—

3

S.Ct.

Introduction. 1735 I. The Roots of Rehnquist’s Separation of Powers Jurisprudence. 1737 A. Rehnquist as a Law Clerk for Justice Robert Jackson. 1737 B. Rehnquist in the Office...

—

337. CONSIDERING “POWER” IN SEPARATION OF POWERS, 46 Stan. L. Rev. 361, 371+

1994

Law Review

—

3

10

S.Ct.

Samuel Cooper summarizes the two leading theories of separation of powers: formalism and functionalism. Finding neither of these theories persuasive, he proposes a ‘’power...

—

338. THE FUTURE OF THE WAR POWERS RESOLUTION, 36 Stan. L. Rev. 1407, 1433+

1984

Law Review

—

3

6

10

S.Ct.

During the 1970s, following Watergate and the war in Vietnam, Congress became increasingly concerned about the growth of the ‘Imperial Presidency.’ It enacted laws reasserting its...

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

156

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 339. SEPARATION OF POWERS AND THE SCOPE OF FEDERAL EQUITABLE REMEDIES, 30 Stan. L. Rev. 661, 724+

Date 1978

Type Law Review

Depth —

Headnote(s) 3

4

6

S.Ct.

In recent years, both popular and academic attention has begun to focus on the innovative and expansive remedies that federal courts have utilized with increasing frequency,...

—

340. GOVERNMENT BY PERMANENT 2000 EMERGENCY: THE FORGOTTEN HISTORY OF THE NEW DEAL CONSTITUTION, 33 Suffolk U. L. Rev. 259, 276+

Law Review

—

3

S.Ct.

’’We have long since discovered that nothing lasts longer than a temporary government program.’’ The New Deal Court of the late 1930s and 1940s rewrote American constitutional law...

—

341. RUNNING FOR COVER BEHIND 1995 PRESIDENTIAL IMMUNITY: THE OVAL OFFICE AS SAFE HAVEN FROM CIVIL SUITS, 29 Suffolk U. L. Rev. 195, 231+

Law Review

—

3

6

S.Ct.

’’No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest...

—

342. CONSTITUTIONAL LAW AND PUBLIC OPINION, 20 Suffolk U. L. Rev. 751, 752+

1986

Law Review

—

2

3

6

4

6

S.Ct.

A few weeks ago when I was meeting with a group of people visiting the Supreme Court one of them asked me, ‘Do judges respond to public opinion?’ I am always glad afterwards that...

—

343. MINIMALISM AT WAR, 2004 Sup. Ct. Rev. 47, 109+

2004

Law Review

—

3

S.Ct.

The Founders intended that the President have primary responsibility—along with the necessary power—to protect the national security and to conduct the Nation’s foreign relations.....

—

344. ASSESSING THE LEGALITY OF THE PRESIDENT’S TERRORIST SURVEILLANCE PROGRAM: BALANCING THE PROTECTION OF INDIVIDUAL LIBERTIES AGAINST IMPROVING NATIONAL ...

2008

Law Review

—

3

S.Ct.

Please note that at the time this paper was completed, the Sixth Circuit had not yet rendered their appellate decision for the controversial ACLU v. NSA case that this note is...

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157

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 345. THE COMMANDER-IN-CHIEF AND THE NECESSITIES OF WAR: A CONCEPTUAL FRAMEWORK, 83 Temp. L. Rev. 599, 664+

Date 2011

Type Law Review

Depth —

Headnote(s) 3

4

9

4

6

6

10

4

6

6

10

6

10

S.Ct.

While the current Administration has largely abandoned claims of plenary presidential authority to fight the nation’s wars, courts, scholars, and policy makers continue to debate...

—

346. DOUBLE-CHECKING EXECUTIVE EMERGENCY POWER: LESSONS FROM HAMDI AND HAMDAN, 80 Temp. L. Rev. 451, 488+

2007

Law Review

—

3

S.Ct.

The Constitution is vague regarding how the respective powers of the various branches blend during national emergencies, such as war. It gives Congress the power to declare war,...

—

347. MESSING WITH TEXAS? WHY PRESIDENT 2006 BUSH’S MEMORANDUM ORDER TRUMPS STATE CRIMINAL PROCEDURE, 79 Temp. L. Rev. 1029, 1074+

Law Review

—

3

S.Ct.

On February 28, 2005, President George W. Bush shocked the international legal community by announcing in a memorandum order (’’Avena Order’’) that the United States had an...

—

348. SEPARATION OF POWERS AS A SAFEGUARD OF FEDERALISM, 79 Tex. L. Rev. 1321, 1459+

2001

Law Review

—

3

S.Ct.

I. Supremacy, Federal Lawmaking Procedures, and Federalism. 1328 A. The Text of the Constitution. 1331 1. The Exclusivity of Federal Lawmaking Procedures. 1331 2....

—

349. FORCING CONSTRAINT: THE CASE FOR 2000 AMENDING THE INTERNATIONAL EMERGENCY ECONOMIC POWERS ACT, 78 Tex. L. Rev. 1181, 1213+

Law Review

—

3

S.Ct.

From which may be drawn a general rule, which never or very rarely fails, that whoever is the cause of another becoming powerful, is ruined himself. Machiavelli recognized that how...

—

350. REMEDYING DISCRIMINATION IN SENIORITY SYSTEMS: THE CONFLICT BETWEEN TITLE VII AND EXECUTIVE ORDER NO. 11,246, 59 Tex. L. Rev. 1077, 1091+

1981

Law Review

—

3

S.Ct.

Seniority systems, from the simple ‘’last-hired-firstfired’’ type to complex multi-tiered programs allocating both pay and other benefits, are at the heart of the American labor...

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

158

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 351. EXECUTIVE ORDERS, PRESIDENTIAL INTENT, AND PRIVATE RIGHTS OF ACTION, 59 Tex. L. Rev. 837, 843+

Date 1981

Type Law Review

Depth —

Headnote(s) 3

6

10

6

10

6

10

6

12

6

10

6

10

S.Ct.

When a private party violates the requirements of a Presidential executive order and another private party is injured, the injured party may seek damages in federal court from the...

—

352. THE USE AND ABUSE OF EXECUTIVE ORDERS AND OTHER PRESIDENTIAL DIRECTIVES, 5 Tex. Rev. L. & Pol. 267, 316+

2001

Law Review

—

3

S.Ct.

I. Introduction. 269 II. The Separation of Powers. 271 III. Defining Presidential Directives. 273 A. Early Presidential Directives. 273 B. Sources of Presidential Authority....

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353. THE COEXISTENCE OF UNITED STATES V. 2000 CURTISS-WRIGHT AND YOUNGSTOWN SHEET & TUBE V. SAWYER IN NATIONAL SECURITY JURISPRUDENCE, 16 J.L. & Pol. 1, 111+

Law Review

—

3

S.Ct.

’’[I]n the law, lines are pricked out by the gradual approach and contact of decisions on the opposing sides.’’ Noble State Bank v. Haskell, 219 U.S. 104, 112 (1911) (Holmes, J.,...

—

354. NOTE: EXECUTIVE AUTHORITY TO 1999 PERFORM INTERSTATE LAND EXCHANGES, 15 J.L. & Pol. 195, 210+

Law Review

—

3

S.Ct.

For decades, the federal land exchange program operated in the quiet recesses of the federal bureaucracy. In 1996, however, the program was catapulted into the national spotlight...

—

355. BANNING THE PERMANENT 1996 REPLACEMENT OF STRIKERS BY EXECUTIVE ORDER: THE CONFLICT BETWEEN EXECUTIVE OREDER 12954 AND THE NLRA, 12 J.L. & Pol. 1, 61+

Law Review

—

3

S.Ct.

It may be stated then, as a general rule inherent in the American constitutional system, that, unless otherwise expressly provided or incidental to the powers conferred, the...

—

356. EXECUTIVE DISCRETION TO REGULATE FOREIGN INVESTMENT IN THE UNITED STATES, 7 J.L. & Pol. 289, 316+

1991

Law Review

—

3

S.Ct.

The powers of government are separated, according to the rules of Locke and Montesquieu in every microcosm of our government. . . the first question is whether the system of law we...

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159

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Treatment —

Title

Date

357. EXECUTIVE ORDERS 12,291 AND 12,498: A 1988 TEST CASE IN PRESIDENTIAL CONTROL OF EXECUTIVE AGENCIES, 4 J.L. & Pol. 483, 514+

Type Law Review

Depth —

Headnote(s) 3

6

10

4

6

6

10

9

10

4

6

6

10

S.Ct.

Throughout American history, presidents of the United States have sought to direct or otherwise control the numerous agencies of the federal government. Depending upon the nature...

—

358. CIVIL WAR AS PARADIGM: REESTABLISHING THE RULE OF LAW AT THE END OF THE COLD WAR, 5-WTR Kan. J.L. & Pub. Pol’y 129, 139+

1996

Law Review

—

3

S.Ct.

America transformed its legal and governmental structure in response to the perceived dangers of Soviet expansionism in the decades after World War II. The Cold War lasted so long,...

—

359. YOUNGSTOWN’S FOURTH TIER: IS THERE 2010 A ZONE OF INSIGHT BEYOND THE ZONE OF TWILIGHT?, 40 U. Mem. L. Rev. 541, 602+

Law Review

—

3

S.Ct.

Introduction. 542 I. Formalism and Functionalism: Diverging Schools of Jurisprudential Thought. 546 A. Formalism. 546 B. Functionalism. 549 II. Youngstown Analyzed: Justice...

—

—

360. THE CASE FOR PRUDENTIAL STANDING, 39 U. Mem. L. Rev. 727, 756+

2009

361. BETWEEN CIVIL LIBERTARIANISM AND EXECUTIVE UNILATERALISM: AN INSTITUTIONAL PROCESS APPROACH TO RIGHTS DURING WARTIME, 5 Theoretical Inquiries L. 1, 4...

2004

Law Review

—

3

S.Ct.

Law Review

—

3

S.Ct.

Times of heightened risk to the physical safety of their citizens inevitably cause democracies to recalibrate their institutions and processes and to reinterpret existing legal...

—

362. IT WILL TAKE MORE THAN AN ORDER: WHAT THE COMMANDER IN CHIEF WILL NEED TO OVERTURN THE BAN ON GAYS IN THE MILITARY, 25 T. Jefferson L. Rev. 247, 270+

2002

Law Review

—

3

S.Ct.

It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For...

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160

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title

Date

363. CAUSE AND EFFECT: THE ORIGINS AND 2009 IMPACT OF JUSTICE WILLIAM O. DOUGLAS’S ANTI-MILITARY IDEOLOGY FROM WORLD WAR II TO O’CALLAHAN V. PARKER, 26 T.M. Coo...

Type Law Review

Depth —

Headnote(s) 4

S.Ct.

Appointed to the United States Supreme Court by President Franklin Delano Roosevelt in 1939, William O. Douglas (1898-1980) was one of the foremost judicial activists in the field...

—

364. A JUDICIAL “GREEN LIGHT” FOR THE EXPANSION OF EXECUTIVE POWER: THE VIOLATION OF CONSTITUTIONAL RIGHTS AND THE WRIT OF HABEAS CORPUS IN THE JAPANESE AM...

2007

Law Review

—

3

6

9

6

10

S.Ct.

’’Those who cannot learn from history are doomed to repeat it.’’ In times of war, national security is a prime concern. However, there is a fine line between the preservation of...

—

365. CONGRESS, THE COMMANDER-IN-CHIEF, 2007 AND THE SEPARATION OF POWERS AFTER HAMDAN, 16 Transnat’l L. & Contemp. Probs. 933, 958+

Law Review

—

3

S.Ct.

I. Introduction. 934 II. ‘’Disabling’’: From Little v. Barreme to Youngstown. 941 A. Little and the Quasi-War. 941 B. Brown and the War of 1812. 944 C. Youngstown on...

—

366. STRUCTURAL OBJECTIONS TO THE 2007 INHERENT COMMANDER-IN-CHIEF POWER THESIS, 16 Transnat’l L. & Contemp. Probs. 965, 989+

Law Review

—

3

6

S.Ct.

I. Introduction. 966 II. The Meaning of the Commander-in-Chief Clause. 967 A. The Conventional View that Congress Authorizes the President. 968 B. The Inherent...

—

367. WE’RE NO ANGELS: PAULA CORBIN JONES V. WILLIAM JEFFERSON CLINTON, 71 Tul. L. Rev. 897, 985+

1997

Law Review

—

3

6

12

S.Ct.

On January 13, 1997, the United States Supreme Court heard oral argument in William Jefferson Clinton v. Paula Corbin Jones. The main issue argued before the Court was whether the...

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161

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Treatment —

Title 368. NORMALIZING THE SEPARATION OF POWERS, 70 Tul. L. Rev. 2681, 2717+

Date 1996

Type Law Review

Depth —

Headnote(s) 3

6

10

S.Ct.

This Essay proposes a new model for deciding separation-of-powers cases. The modern jurisprudence on the separation of powers has become muddled because of the seemingly...

—

369. RESTORING THE BALANCE: THE HAMDAN 2007 DECISION AND EXECUTIVE WAR POWERS, 42 Tulsa L. Rev. 681, 698+

Law Review

—

Law Review

—

—

In November 2001, Salim Ahmed Hamdan, a former driver for Osama bin Laden, was detained in Afghanistan by U.S. soldiers and subsequently transferred to the Guantanamo Bay Detention...

—

370. GEORGE BUSH AND THE ABUSE OF HISTORY: THE CONSTITUTION AND PRESIDENTIAL POWER IN FOREIGN AFFAIRS, 12 UCLA J. Int’l L. & Foreign Aff. 75, 144+

2007

3

4

10

S.Ct.

In his capacity as a wartime executive, President George W. Bush has adduced, in the name of national security and foreign affairs, broad authority under the banner of inherent...

—

371. THE “APPEARANCE OF FAIRNESS” 1994 VERSUS “ACTUAL UNFAIRNESS”: WHICH STANDARD SHOULD THE ARKANSAS COURTS APPLY TO ADMINISTRATIVE AGENCIES?, 16 U. Ark. Littl...

Law Review

—

6

10

S.Ct.

Administrative agencies, with their inherent combination of legislative, executive, and judicial functions, are in direct conflict with the separation of powers doctrine. This fact...

—

372. CUTTING THE PRESIDENT OFF FROM TIN CUP DIPLOMACY, 24 U.C. Davis L. Rev. 841, 858+

1991

Law Review

—

3

6

10

6

10

S.Ct.

In 1979 a Nicaraguan popular front led by the Sandinistas overthrew dictator General Anastasio Somoza Debayle. After the revolution relations between the United States and the...

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373. THE JURISPRUDENCE OF TREATY INTERPRETATION, 21 U.C. Davis L. Rev. 1023, 1043+

1988

Law Review

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3

S.Ct.

The interpretation of treaties has been the dispositive question in cases both sacred and profane: from litigation over fundamental human rights to litigation over payroll taxes;...

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162

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 374. THE PRESIDENT’S UNCONSTITUTIONAL TREATYMAKING, 59 UCLA L. Rev. 598, 673+

Date 2012

Type Law Review

Depth —

Headnote(s) 9

S.Ct.

The President of the United States frequently signs international agreements but postpones ratification pending Senate consent. Under international law, a state that signs a treaty...

—

375. “WHICH IS TO BE MASTER,” THE JUDICIARY OR THE LEGISLATURE? WHEN STATUTORY DIRECTIVES VIOLATE SEPARATION OF POWERS, 56 UCLA L. Rev. 837, 898+

2009

Law Review

—

3

6

10

6

10

6

10

6

12

S.Ct.

Statutory interpretation is at the cutting edge of legal scholarship and, now, legislative activity. As legislatures have increasingly begun to perceive judges as activist...

—

376. REVISITING YOUNGSTOWN: AGAINST THE 2007 VIEW THAT JACKSON’S CONCURRENCE RESOLVES THE RELATION BETWEEN CONGRESS AND THE COMMANDER-IN-CHIEF, 54 UCLA L. Rev. ...

Law Review

—

3

S.Ct.

Virtually all legal analysts believe that the tripartite framework from Justice Jackson’s Youngstown Sheet & Tube Co. v. Sawyer concurrence provides the correct framework for...

—

377. EXECUTIVE AGGRANDIZEMENT IN FOREIGN AFFAIRS LAWMAKING, 54 UCLA L. Rev. 309, 371+

2006

Law Review

—

3

S.Ct.

This Article analyzes the claimed power of the president to create federal law on the foundation of the executive’s status as the constitutional representative of the United States...

—

378. THIS ESSAY IS BRILLIANT/THIS ESSAY IS STUPID: POSITIVE AND NEGATIVE SELFREFERENCE IN CONSTITUTIONAL PRACTICE AND THEORY, 46 UCLA L. Rev. 501, 575+

1998

Law Review

—

3

S.Ct.

The problem of foundational disagreement is pervasive in modern intellectual life, in which an elite consensus about frameworks for discussion has begun to break down. It is...

—

379. EXECUTIVE POWER AND THE DISCIPLINE 2011 OF HISTORY, 78 U. Chi. L. Rev. 377, 443+

Law Review

—

9

S.Ct.

For all the angst about the proper role of history in constitutional analysis, custom and tradition have long played a central role in foreign affairs and national security law....

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163

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 380. CHECKS AND BALANCES IN AN ERA OF PRESIDENTIAL LAWMAKING, 61 U. Chi. L. Rev. 123, 187+

Date 1994

Type Law Review

Depth —

Headnote(s) 3

6

10

4

6

4

6

6

10

4

6

S.Ct.

Perhaps there was no argument urged with more success, or more plausibly grounded against the Constitution, under which we are now deliberating, than that founded on the mingling...

—

381. THE WAR POWERS AND THE POLITICAL QUESTION DOCTRINE, 49 U. Colo. L. Rev. 65, 88+

1977

Law Review

—

3

S.Ct.

A fundamental and potentially healthy tension exists between democratic government, under which the majority ordinarily prevails, and judicial review, by which the judiciary may...

—

382. ONE TIN SOLDIER: A NEW LOOK AT THE CONSTITUTIONALITY OF PLACING UNITED STATES SOLDIERS UNDER THE COMMAND OF THE UNITED NATIONS, 22 U. Dayton L. Rev. 1...

1996

Law Review

—

3

S.Ct.

Page I. Introduction. 125 II. Background. 126 A. The Case of Army Spc. Michael New. 126 B. The Constitutional Basis for Presidential and Congressional War Powers. 128 C. The...

—

383. THE UNITED STATES SENTENCING 1990 GUIDELINES: HAS SENTENCING REFORM OVERSTEPPED SEPARTION OF POWERS?, 3 U. Fla. J.L. & Pub. Pol’y 145, 154+

Law Review

—

3

S.Ct.

Petitioner moved to have the United States Sentencing Commission’s Sentencing Guidelines declared unconstitutional. Petitioner alleged establishment of the Commission violated the...

—

384. ABUSES OF PRESIDENTIAL POWER: IMPEACHMENT AS A REMEDY, 62 U. Miami L. Rev. 213, 227+

2008

Law Review

—

3

S.Ct.

In light of this symposium’s rich discussion about such issues as the mistreatment of detainees and torture, I want to look at the problem of the uses and abuses of executive power...

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164

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title

Date

385. THE CONSTITUTIONALITY OF 2008 WARRANTLESS ELECTRONIC SURVEILLANCE OF SUSPECTED FOREIGN THREATS TO THE NATIONAL SECURITY OF THE UNITED STATES, 62 U. Miami L...

Type Law Review

Depth —

Headnote(s) 3

6

10

6

10

5

10

6

10

4

6

S.Ct.

In the fall of 2001, shortly after the terrorist attacks of September 11, the National Security Agency (’’NSA’’) launched a secret program to engage in electronic surveillance,...

—

386. WHAT THE CONSTITUTION MEANS BY EXECUTIVE POWER, 43 U. Miami L. Rev. 165, 199+

1988

Law Review

—

3

S.Ct.

I. CHARLES J. COOPER. 165 II. MICHAEL TIGAR. 177 A. Introduction. 177 B. The Constitution, Foreign Affairs, and the Judiciary. 179 C. The Sources of Law. 182 D. Implications...

—

387. JUDICIAL DEFERENCE TO THE CHIEF 1987 EXECUTIVE’S INTERPRETATION OF THE IMMIGRATION REFORM AND CONTROL ACT OF 1986 ANTIDISCRIMINATION PROVISION: A CIRCUMVEN...

Law Review

—

3

S.Ct.

In an effort to remove the lure that attracts illegal aliens into the United States, the Immigration Reform and Control Act of 1986 (IRCA) imposes sanctions on employers who hire...

—

388. “THE WAR OF INFORMATION”: THE 2006 FOREIGN INTELLIGENCE SURVEILLANCE ACT, HAMDAN V. RUMSFELD, AND THE PRESIDENT’S WARRANTLESS-WIRETAPPING PROGRAM, 9 U. Pa....

Law Review

—

3

S.Ct.

It is easy to eavesdrop: Every time an American calls in sick to work, or sits on hold with the phone company, or phones a coconspirator to discuss a criminal plot, he or she...

—

389. PUNISHMENT AND THE WAR ON TERRORISM, 6 U. Pa. J. Const. L. 1116, 1158+

2004

Law Review

—

3

S.Ct.

Certain features of the war on terrorism impose novel and controversial punishment schemes. For example, President George W. Bush has unilaterally invoked executive authority to...

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165

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title

Date

390. ON THE SLIPPERY SLOPES OF 2002 AFGHANISTAN: MILITARY COMMISSIONS AND THE EXERCISE OF PRESIDENTIAL POWER, 4 U. Pa. J. Const. L. 648, 734+

Type Law Review

Depth —

Headnote(s) 3

4

6

6

12

6

10

4

10

4

6

S.Ct.

Peace is not an absence of war. -- Spinoza INTRODUCTION. 650 I. PRESIDENTIAL AUTHORITY TO ISSUE THE ORDER. 653 A. The Constitution. 653 1. The Youngstown Sheet case. 658 ...

—

391. INSULATING DOMESTIC POLICY THROUGH INTERNATIONAL LEGAL MINIMALISM: A RE-CHARACTERIZATION OF THE FOREIGN AFFAIRS TRADE DOCTRINE, 25 U. Pa. J. Int’l Eco...

2004

Law Review

—

3

S.Ct.

1. INTRODUCTION. 2 2. THE FOREIGN AFFAIRS TRADE DOCTRINE. 15 3. THE STEEL INDUSTRY AND ANTI-DUMPING RULES: SOME HISTORY AND CONTEXT THAT HAS SHAPED U.S. AND GATT/WTO...

—

392. THE POLITICAL ASPECTS OF JUDICIAL POWER: SOME NOTES ON THE PRESIDENTIAL IMMUNITY DECISION, 131 U. Pa. L. Rev. 1341, 1375+

1983

Law Review

—

3

S.Ct.

We live in a society that chooses with increasing frequency to leave its most difficult questions for judicial resolution. Until recently, however, the problem of how to punish a...

—

393. WAR-MAKING BY THE PRESIDENT, 121 U. Pa. L. Rev. 29, 32+

1972

Law Review

—

3

S.Ct.

To a nation wracked by interminable, undeclared war in Vietnam—described by an informed English observer as ‘’the greatest tragedy that has befallen the United States since the...

—

394. JUDICIAL REVIEW OF PRESIDENTIAL INITIATIVES, 46 U. Pitt. L. Rev. 421, 435+

1985

Law Review

—

3

S.Ct.

Constitutional questions involving the President move from one crisis to the next. Few of the incidents are actually resolved in the courts, but, when they are, the judicial...

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166

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title

Date

395. THE EFFECT OF THE APPOINTMENT OF A 1996 SUPREME COURT JUSTICE, 28 U. Tol. L. Rev. 37, 87+

Type Law Review

Depth —

Headnote(s) 3

6

S.Ct.

DURING the eight-year period from September, 1986 to August, 1994, six justices were appointed to the U.S. Supreme Court. There is general agreement that changes in the membership...

—

396. BEYOND THE ZONE OF TWILIGHT: HOW 2007 CONGRESS AND THE COURT CAN MINIMIZE THE DANGERS AND MAXIMIZE THE BENEFITS OF EXECUTIVE ORDERS, 42 Val. U. L. Rev. 385...

Law Review

—

3

6

10

6

10

S.Ct.

The government of the United States of America is at a precipice. The year is 2015 and the clash between the executive and legislative branches-forged in impeachment scandals of...

—

397. BREAKING THE STALEMATE: THE 2007 JUDICIARY’S CONSTITUTIONAL ROLE IN DISPUTES OVER THE WAR POWERS, 41 Val. U. L. Rev. 1517, 1534+

Law Review

—

3

S.Ct.

Historically, the goal of the three-part American government structure is to separate and balance the power to govern. Separation prevents any branch of the government from...

—

398. HEAD OF STATE IMMUNITY AS SOLE 2011 EXECUTIVE LAWMAKING, 44 Vand. J. Transnat’l L. 911, 997+

Law Review

—

3

9

S.Ct.

At the request of the Executive Branch, courts routinely dismiss private suits against sitting heads of foreign states. Congress has never delegated authority to the Executive...

—

399. CIVILIANS IN CYBERWARFARE: CONSCRIPTS, 43 Vand. J. Transnat’l L. 1011, 1076+

2010

Law Review

—

3

6

10

S.Ct.

Civilian-owned and -operated entities will almost certainly be a target in cyberwarfare because cyberattackers are likely to be more focused on undermining the viability of the...

—

400. JUDICIAL REVIEW UNDER A BRITISH WAR 2010 POWERS ACT, 43 Vand. J. Transnat’l L. 611, 648+

Law Review

—

3

4

S.Ct.

This Article considers how U.K. courts might exercise review under a hypothetical British ‘’war powers act,’’ in the event that the current Labour Government or an incoming Tory...

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167

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 401. A PAPER TIGER WITH BITE: A DEFENSE OF THE WAR POWERS RESOLUTION, 40 Vand. J. Transnat’l L. 861, 897+

Date

Type

Depth

Headnote(s) —

2007

Law Review

—

2009

Law Review

—

The War Powers Resolution (WPR) has led a beleaguered existence. Since its enactment in 1973, it has been labeled ineffectual and useless. This Note proves, however, that to...

—

402. THE REVIEWABILITY OF THE PRESIDENT’S STATUTORY POWERS, 62 Vand. L. Rev. 1171, 1213+

3

6

10

6

10

S.Ct.

Introduction. 1172 I. The Reviewability Barrier: From Federalist Origins to Contemporary Application. 1178 A. Origins in the Federalist Military. 1178 B. Growth and...

—

403. WAR AND AMERICAN CONSTITUTIONAL ORDER, 56 Vand. L. Rev. 1815, 1869+

2003

Law Review

—

3

S.Ct.

I. Introduction. 1815 II. History of American Military Conflict. 1817 III. Constitutional Implications. 1821 A. National Ethos. 1824 B. Rights. 1829 C. Operation of...

—

404. A CRITICAL CONSIDERATION OF EXECUTIVE ORDERS: GLIMMERINGS OF AUTOPOIESIS IN THE EXECUTIVE ROLE, 35 Vt. L. Rev. 333, 411+

2010

Law Review

—

1996

Law Review

—

—

William G. Howell described executive power as ‘’inversely proportional to legislative strength.’’ If Howell’s statement adequately captured the full function of executive power,...

—

405. FORGOTTEN RIGHTS: TAKING CLAIMS AND THE INTERNATIONAL EMERGENCY ECONOMIC POWERS ACT, 21 Vt. L. Rev. 591, 600+

3

6

10

6

12

S.Ct.

On October 22, 1995, President Clinton, acting under the authority of the International Emergency Economic Powers Act (IEEPA), blocked ‘’all property and interests in property’’ of...

—

406. MINNESOTA V. MILLE LACS BAND OF CHIPPEWA INDIANS: SHOULD THE COURTS INTERPRET TREATY LAW TO EMPOWER TRADITIONAL NATIVE AMERICAN TRIBES TO HATCHET THE ...

2000

Law Review

—

3

S.Ct.

As increasing globalization brings countries and cultures closer together, treaty law will play a major role in the protection of the environment and the preservation of natural...

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168

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 407. THE MILITARY COMMISSION IN THE WAR ON TERRORISM, 51 Vill. L. Rev. 737, 786+

Date 2006

Type Law Review

Depth —

Headnote(s) 3

6

10

6

10

6

10

S.Ct.

I. Introduction. 737 II. The History of Military Commissions. 739 A. The Four Types of Military Jurisdiction. 740 B. Executive Military Commission Precedent. 742 1. The...

—

408. WILL AN ATTACK ON AMERICA JUSTIFY AN ATTACK ON AMERICANS?: CONGRESSIONAL AND CONSTITUTIONAL PROHIBITIONS ON THE EXECUTIVE’S POWER TO DETAIN U.S. CITIZ...

2004

Law Review

—

3

S.Ct.

I. Introduction. 1146 II. Youngstown Analysis. 1150 III. The Plain Language of 18 U.S.C. § 4001(a) Prohibits the Detention of American Citizens without Explicit Congressional...

—

409. DOMESTICATING SOLE EXECUTIVE AGREEMENTS, 93 Va. L. Rev. 1573, 1661+

2007

Law Review

—

3

S.Ct.

Introduction. 1574 I. The Constitutional Structure. 1578 A. The Treaty Clause. 1580 1. Nontreaty Agreements. 1581 a. Sole Executive Agreements. 1581 b....

—

410. FOREIGN AFFAIRS IN THE TWILIGHT ZONE: THE FOREIGN AFFAIRS POWERS OF THE FEDERAL COMMUNICATIONS COMMISSION, 83 Va. L. Rev. 207, 245+

1997

Law Review

—

3

10

S.Ct.

Two notable trends shape American government in the twentieth century: globalization of the issues facing government and expansion of federal regulatory authority. Globalization...

—

411. SEPARATING THE STRANDS IN SEPARATION OF POWERS CONTROVERSIES, 74 Va. L. Rev. 1253, 1293+

1988

Law Review

—

3

6

12

6

10

S.Ct.

Cases involving separation of powers issues have proliferated in the last decade. Congressional efforts to streamline the adjudicative process, congressional endeavors to retain...

—

412. FOREIGN STATES AND THE CONSTITUTION, 73 Va. L. Rev. 483, 538+

1987

Law Review

—

3

S.Ct.

What rights, if any, do foreign states have under our Constitution? The question deserves a careful answer in light of growing opportunities for judicial confrontation between...

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169

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title

Date

413. THE LIMITS OF CONSTITUTIONAL POWER: 1985 CONFLICTS BETWEEN FOREIGN POLICY AND INTERNATIONAL LAW, 71 Va. L. Rev. 1071, 1119+

Type Law Review

Depth —

Headnote(s) 3

6

10

6

10

6

12

S.Ct.

In recent years courts have faced numerous challenges to United States foreign policy based on international law. Although the courts have usually dismissed such suits, the cases...

—

414. CONGRESSIONAL POWER AND CONSTITUTIONAL RIGHTS: REFLECTIONS ON PROPOSED “HUMAN LIFE’ LEGISLATION, 68 Va. L. Rev. 333, 394+

1982

Law Review

—

3

S.Ct.

I. THE ‘HUMAN LIFE’ BILL. 337 A. The Argument. 338 B. Response to the Argument. 340 1. Attempts to Skirt the Issue. 340 a. ‘Collateral Legislation’. 340 b....

—

415. JUDICIAL REVIEW AND THE PRESIDENT’S 1982 STATUTORY POWERS, 68 Va. L. Rev. 1, 10+

Law Review

—

3

S.Ct.

It is tempting to regard the law that governs the Presidency as flowing mostly from the handful of great constitutional cases that have infused article II with meaning. Of course,...

—

416. UNITED STATES NATIONAL SECURITY LAW AND UNITED NATIONS PEACEKEEPING OR PEACEMAKING OPERATIONS, 29 Wake Forest L. Rev. 435, 508+

1994

Law Review

—

3

10

S.Ct.

The scope of U.S. participation in U.N. peacekeeping or peacemaking operations is a topic of current political debate, as the many headlines on Bosnia, Somalia, and other...

—

417. REVIVING THE NIXON DOCTRINE: NSA SPYING, THE COMMANDER-IN-CHIEF, AND EXECUTIVE POWER IN THE WAR ON TERROR, 13 Wash. & Lee J. Civil Rts. & Soc. Just. 1...

2006

Law Review

—

3

6

10

S.Ct.

’’When the President does it, that means that it is not illegal.’’ So Richard Nixon infamously defended his approval of a plan to engage in warrantless wiretapping of Americans...

—

418. JUDICIAL PERSONALITY: RHETORIC AND 2002 EMOTION IN SUPREME COURT OPINIONS, 59 Wash. & Lee L. Rev. 193, 203+

Law Review

—

3

12

S.Ct.

I. L2-4,T4Introduction 193 II. L2-4,T4The Roosevelt Court Quartet: Four Judicial Voices 195 A. L34,T4Finding a Voice 195. B. L3-4,T4The Quartet Speaks 197. 1. Justice Black: The...

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170

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 419. THE DOMESTIC LEGAL STATUS OF THE GATT: THE NEED FOR CLARIFICATION, 51 Wash. & Lee L. Rev. 1481, 1498+

Date 1994

Type Law Review

Depth —

Headnote(s) 3

6

12

6

10

6

10

6

12

4

12

6

12

S.Ct.

The growing economic interdependence of the nations of the world needs no comment. Armed conflict and social unrest in the Middle East affect farmers in Iowa and France and motor...

—

420. THE PENNSYLVANIA AVENUE TUG-OFWAR: THE PRESIDENT VERSUS CONGRESS OVER THE BAN ON HOMOSEXUALS IN THE MILITARY, 45 Wash. U. J. Urb. & Contemp. L. 175, ...

1994

Law Review

—

3

S.Ct.

The election of William Jefferson Clinton as the forty-second President of the United States placed the issue of homosexuals in the military at the forefront of the national...

—

421. HAMDAN’S ILLUMINATION OF ARTICLE III JURISPRUDENCE IN THE WAKE OF THE WAR ON TERROR, 53 Wayne L. Rev. 991, 1016+

2007

Law Review

—

3

S.Ct.

C1-2Table of Contents I. Introduction. 992 II. Revitalizing Judicial Authority by Invoking The Treaty Obligation Under Article III of The Geneva Convention. 1004 III. Examining...

—

422. THE NEW POST 9/11 AMERICA OR THE 2004 MAKING OF KING GEORGE: A REVIEW OF EXECUTIVE POWER IN THE EFFORT TO COMBAT GLOBAL TERRORISM AS IT RELATES TO THE POWE...

Law Review

—

3

S.Ct.

I. L2-4,T4Introduction 446 II. L2-4,T4Historical American Unpreparedness for Crisis and Subsequent Kneejerk Reactions 447 III. L24,T4Post 9/11 American Reactions 453 IV....

—

423. CLINTON V. JONES: THE KING HAS NO CLOTHES (NOR ABSOLUTE IMMUNITY TO BOOT), 100 W. Va. L. Rev. 493, 535+

1997

Law Review

—

3

S.Ct.

I. Introduction. 494 II. Background of the Law. 497 A. Common Law Foundation and Framers’ Intent. 497 B. The Supreme Court’s Exercise of Authority Over the Executive Branch....

—

424. 19 Widener L.J. 873, PRIVACY IS THE PROBLEM

2010

Law Review

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

—

3

S.Ct.

171

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Treatment —

Title

Date

425. 12 Widener L.J. 373, FEDERALISM, HUMAN 2003 RIGHTS, AND THE REALPOLITIK OF FOOTNOTE FOUR

Type Law Review

Depth —

Headnote(s) 3

10

S.Ct.

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among...

—

426. THE MIDDLE GROUND IN JUDICIAL 2009 REVIEW OF ENEMY COMBATANT DETENTIONS, 45 Willamette L. Rev. 453, 471+

Law Review

—

3

6

10

4

6

6

12

S.Ct.

In periods of heightened national security concern, it is perhaps inevitable that the judiciary will be called upon to balance the government’s asserted need for extraordinary...

—

427. PRESIDENTIAL POWERS REVISITED: AN 2007 ANALYSIS OF THE CONSTITUTIONAL POWERS OF THE EXECUTIVE AND LEGISLATIVE BRANCHES OVER THE REORGANIZATION AND CONDUCT ...

Law Review

—

3

S.Ct.

Two hundred and eighteen years after George Washington was elected to serve as the first President of the United States, the Framers of the Constitution would likely be heartened...

—

428. CONGRESS HAS THE POWER TO ENFORCE THE BILL OF RIGHTS AGAINST THE FEDERAL GOVERNMENT; THEREFORE FISA IS CONSTITUTIONAL AND THE PRESIDENT’S TERRORIST SU...

2007

Law Review

—

3

S.Ct.

Liberty is always at stake when one or more of the branches seek to transgress the separation of powers. -Justice Anthony Kennedy The principal point of this Article is that...

—

429. IF AT FIRST YOU DON’T SUCCEED, SIGN 2007 AN EXECUTIVE ORDER: PRESIDENT BUSH AND THE EXPANSION OF CHARITABLE CHOICE, 15 Wm. & Mary Bill Rts. J. 1103, 1172+

Law Review

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3

S.Ct.

This Article analyzes whether President Bush’s charitable choice executive orders, which permit religious organizations to apply for federal funds to deliver social services, are a...

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172

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Treatment —

Title

Date

430. THE CONSTITUTIONAL INFIRMITY OF 2006 WARRANTLESS NSA SURVEILLANCE: THE ABUSE OF PRESIDENTIAL POWER AND THE INJURY TO THE FOURTH AMENDMENT, 15 Wm. & Mary Bi...

Type Law Review

Depth —

Headnote(s) 3

6

10

6

10

4

6

6

10

5

6

S.Ct.

In the past year, there have been many revelations about the tactics used by the Bush administration to prosecute its war on terrorism. These stories involve the exploitation of...

—

431. INTERNATIONAL SECURITY AND THE 2000 WAR POWERS RESOLUTION, 8 Wm. & Mary Bill Rts. J. 725, 757+

Law Review

—

3

S.Ct.

In recent history, the authority to commit U.S. troops to theaters of conflict has shifted from Congress to the President. After the Vietnam War, the War Powers Resolution was...

—

432. RESTRUCTURING AMERICA’S 2006 GOVERNMENT TO CREATE SUSTAINABLE DEVELOPMENT, 30 Wm. & Mary Envtl. L. & Pol’y Rev. 371, 470+

Law Review

—

3

S.Ct.

If this were an ordinary case, I would join the opinion and the Court’s judgment and be quite content. But this is not ordinary, run-of-the-mill litigation. The case poses-if only...

—

433. BANGING ON THE BACKDOOR DRAFT: THE CONSTITUTIONAL VALIDITY OF STOPLOSS IN THE MILITARY, 47 Wm. & Mary L. Rev. 1061, 1109+

2005

Law Review

—

3

S.Ct.

On September 14, 2001, in response to the terrorist attacks on the World Trade Center and the Pentagon just three days earlier, President George W. Bush declared a state of...

—

434. AMERICAN INSURANCE ASSOCIATION v. 2004 GARAMENDI AND EXECUTIVE PREEMPTION IN FOREIGN AFFAIRS, 46 Wm. & Mary L. Rev. 825, 895+

Law Review

—

3

S.Ct.

C1-2Table of Contents Introduction. 827 I. The Holocaust-era Insurance Claims. 833    A. California and the Claims. 833    B. The United States and the Claims. 836 II. Foreign...

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173

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Treatment —

Title 435. CLINTON, KOSOVO, AND THE FINAL DESTRUCTION OF THE WAR POWERS RESOLUTION, 42 Wm. & Mary L. Rev. 1149, 1190+

Date 2001

Type Law Review

Depth —

Headnote(s) 3

6

12

6

9

S.Ct.

In February of 1999, as the rhetoric of possible United States use of force against the Federal Republic of Yugoslavia began to reach a crescendo, Congressman Tom Campbell and...

—

436. A “TIER-FUL” REVELATION: A PRINCIPLED APPROACH TO SEPARATION OF POWERS, 34 Wm. & Mary L. Rev. 1403, 1406+

1993

Law Review

—

5

S.Ct.

In Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, Inc., the Supreme Court used formalist analysis to hold that Congress’ transfer of...

—

437. RESPONSES TO THE TEN QUESTIONS, 37 2011 Wm. Mitchell L. Rev. 5099, 5114+

Law Review

—

9

11

S.Ct.

I. Pendleton Herring and the Forgotten Birth of ‘’National Security’’ . 5103 II. American Primacy and the Failure of Procedural Reform. 5109 III. Conclusion: Breaking Out of the...

—

438. ECONOMIC SANCTIONS, DOMESTIC DEPRIVATIONS, AND THE JUST COMPENSATION CLAUSE: ENFORCING THE FIFTH AMENDMENT IN THE FOREIGN AFFAIRS CONTEXT, 13 Yale J. ...

1988

Law Review

—

3

6

10

6

10

6

9

S.Ct.

When President Teddy Roosevelt summarized his brand of foreign policy with the phrase ‘’speak softly and carry a big stick,’’ the ‘’big stick’’ he referred to was likely to be a...

—

439. THE PRESIDENT’S COMPLETION POWER, 2006 115 Yale L.J. 2280, 2312+

Law Review

—

3

S.Ct.

ABSTRACT. This Essay identifies and analyzes the President’s completion power: the President’s authority to prescribe incidental details needed to carry into execution a...

—

440. SETTING THE WORLD RIGHT, 115 Yale L.J. 2006 2350, 2379+

Law Review

—

3

S.Ct.

ABSTRACT. Five years after September 11, 2001, America’s response to that traumatic day has effectively turned the world of American public law upside down. Claiming that a global...

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

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Treatment —

Title 441. EMERGENCY POWER AND THE MILITIA ACTS, 114 Yale L.J. 149, 194+

Date 2004

Type Law Review

Depth —

Headnote(s) 3

4

6

5

6

4

10

S.Ct.

Introduction. 151 I. The First militia Clause and the Militia Acts. 156 A. The Constitution and Emergency Power. 156 B. ‘’Calling Forth’’ the State Militias: The 1792 and 1795...

—

442. WAGING WAR, DECIDING GUILT: TRYING THE MILITARY TRIBUNALS, 111 Yale L.J. 1259, 1310+

2002

Law Review

—

3

S.Ct.

A time of terror may not be the ideal moment to trifle with the most time-tested postulates of government under law. It is certainly not a good time to dispense lightly with...

—

443. UNDERSTANDING CONSTITUTIONAL WAR 1996 POWERS TODAY: WHY METHODOLOGY MATTERS Presidential War Power. By Louis Fisher. Lawrence: University Press of Kansas, ...

Law Review

—

3

S.Ct.

In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. ....

—

444. A BROODING OMNIPRESENCE: 1996 TOTALITARIANISM IN POSTWAR CONSTITUTIONAL THOUGHT, 106 Yale L.J. 423, 457+

Law Review

—

3

4

S.Ct.

Totalitarianism in Postwar Constitutional Thought In Dennis v. United States, Justice Robert Jackson noted that lawmaking in his generation involved never-ending quests for a legal...

—

445. ADVENTURES IN THE ZONE OF TWILIGHT: 1996 SEPARATION OF POWERS AND NATIONAL ECONOMIC SECURITY IN THE MEXICAN BAILOUT, 105 Yale L.J. 1311, 1345+

Law Review

—

3

6

S.Ct.

On January 12, 1995, President Clinton requested legislation providing $40 billion in loan guarantees to prevent Mexico from defaulting on bonds worth billions of dollars. Less...

—

446. EMERGENCY POWER AND THE DECLINE OF LIBERALISM, 98 Yale L.J. 1385, 1408+

1989

Law Review

—

3

4

6

S.Ct.

In 1987, The Miami Herald broke two major national news stories. The first captivated the public and mass media with lurid details of Democratic presidential candidate Gary Hart’s...

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

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Title

Date

447. WHY THE PRESIDENT (ALMOST) ALWAYS 1988 WINS IN FOREIGN AFFAIRS: LESSONS OF THE IRAN-CONTRA AFFAIR, 97 Yale L.J. 1255, 1283+

Type Law Review

Depth —

Headnote(s) 3

6

10

6

10

6

10

6

12

4

6

6

10

S.Ct.

The Iran-Contra Affair, the latest in a line of disturbing American foreign policy imbroglios, has forced national reexamination of the process by which the United States conducts...

—

448. A DEFENSE OF THE WAR POWERS RESOLUTION, 93 Yale L.J. 1330, 1342+

1984

Law Review

—

3

S.Ct.

During the Vietnam era, public concern over the legitimacy of U.S. military involvement in Indochina heightened interest in the constitutional division of the war powers....

—

449. PROTECTING THE PUBLIC INTEREST: NONSTATUTORY SUITS BY THE UNITED STATES, 89 Yale L.J. 118, 136+

1979

Law Review

—

3

S.Ct.

In a series of cases decided during the last century, the Supreme Court recognized the standing of the United States, with or without statutory authority, to sue to protect the...

—

450. PRESIDENTIAL POWER AND ADMINISTRATIVE RULEMAKING, 88 Yale L.J. 451, 471+

1979

Law Review

—

3

S.Ct.

The expanding scope of federal regulatory activities may require the development of innovative management and review techniques. In this decade alone, the government has undertaken...

—

451. THE STEEL SEIZURE RECONSIDERED Truman and the Steel Seizure Case: The Limits of Presidential Power. By Maeva Marcus. New York: Columbia University Pre...

1978

Law Review

—

3

S.Ct.

For more than two decades Youngstown Sheet & Tube Co. v. Sawyer was regarded as sui generis or aberrant. Justice Black’s holding that the seizure violated the separation of powers...

—

452. HONORED IN THE BREECH: 1973 PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale L.J. 130, 135+

Law Review

—

3

S.Ct.

The recent assertions of an expanded presidential power to use military force domestically to execute the laws in peacetime have gone largely unnoticed, despite the vigorous debate...

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

176

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment —

Title 453. PROTECTING THE FISE: EXECUTIVE IMPOUNDMENT AND CONGRESSIONAL POWER, 82 Yale L.J. 1636, 1658+

Date 1973

Type Law Review

Depth —

Headnote(s) 3

6

10

6

10

S.Ct.

The power of the purse has long been a keystone of the authority of the legislative branch of government. Recent moves by the President, however, have encroached on this once...

—

454. THE CONSTITUTIONAL POWER OF THE PRESIDENT TO CONCLUDE INTERNATIONAL AGREEMENTS, 64 Yale L.J. 345, 389+

1955

Law Review

—

3

S.Ct.

One of the most important constitutional issues of recent times is the extent to which the Constitution confers upon the President independent authority to conclude international...

—

—

—

455. 215 BNA Daily Labor Report E-1, 2001 BNA Daily Labor Report

2001

456. 8 BNA United States Law Week Supreme Court Today 59, 2008 BNA United States Law Week Supreme Court Today

2008

457. 4 BNA United States Law Week Supreme Court Today 123, 2004 BNA United States Law Week Supreme Court Today

2004

Other Secondary Source

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Other Secondary Source

—

Other Secondary Source

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S.Ct.

Other Secondary Source

—

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459. 43 International Legal Materials 1166, UNITED STATES SUPREME COURT OF THE UNITED STATES: HAMDI v. RUMSFELD International Legal Materials

2004

Other Secondary Source

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460. 23 International Legal Materials 1274, United States: Court of Appeals for the District of Columbia Circuit Decision in Ramirez v. Weinberger International Legal Materials

1984

Other Secondary Source

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461. 22 International Legal Materials 404, Persinger v. Iran International Legal Materials

1983

Other Secondary Source

—

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

3

4

S.Ct.

458. 47 International Legal Materials 286, 2008 UNITED STATES SUPREME COURT: MEDELLIN v. TEXAS International Legal Materials

—

3

S.Ct.

—

—

6

—

3

4

S.Ct.

2

S.Ct.

—

177

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—

Title

Date

Type

Depth

462. 20 International Legal Materials 897, United 1981 States: Dames & Moore v. Regan, et al. International Legal Materials

Other Secondary Source

—

463. APPENDICES, 919 Practising Law Institute 2009 Commercial Law and Practice 499+ Practising Law Institute Commercial Law and Practice

Other Secondary Source

—

Law Review

—

Headnote(s) 3

10

S.Ct.

3

6

10

4

12

6

12

S.Ct.

Federal Register Vol. 74, No. 156 Friday, August 14, 2009 On August 17, 2001, consistent with the authority provided to the President under the International Emergency Economic...

—

Distinguished by

464. The Lockean Constitution: Separation of Powers and the Limits of Prerogative, 56 McGill L.J. 543, 586+

2011

465. 1200 Sixth Street, LLC v. U.S. ex rel. General Services Admin. 2012 WL 899349, *10+ , E.D.Mich.

Mar. 16, 2012

3

S.Ct.

Case

3

S.Ct.

GOVERNMENT CONTRACTS - Implied Contracts. Government was immune from suit, even in light of General Services Administration’s (GSA) misrepresentations.

Distinguished by

466. Michael Simon Design, Inc. v. U.S. 609 F.3d 1335, 1343+ , Fed.Cir.

Jun. 18, 2010

Case

3

S.Ct.

INTERNATIONAL LAW - Customs and Tariffs. ITC’s act of recommending that the President modify HTSUS was not “final” agency action for purposes of APA, and thus not subject to...

Distinguished by

467. Smith v. Federal Reserve Bank of New York Sep. 11, 2003 Case 280 F.Supp.2d 314, 321+ , S.D.N.Y.

3

S.Ct.

INTERNATIONAL LAW - Foreign Sovereigns. Blocked assets of Iraq were not subject to execution by victims of terrorism.

Distinguished by

468. Citizens for an Orderly Energy Policy, Inc. v. Cuomo 576 N.Y.S.2d 185, 190+ , N.Y.

Oct. 22, 1991

Case

—

Action was brought challenging settlement agreement entered into between governor and private power company to transfer nuclear plant to Long Island Power Authority for closure and...

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

178

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment Discussed by

Title 469. Free Enterprise Fund v. Public Co. Accounting Oversight Bd. 130 S.Ct. 3138, 3155+ , U.S.Dist.Col.

Date Jun. 28, 2010

Type Case

Depth

Headnote(s) 6

S.Ct.

SECURITIES REGULATION - Industry Regulation. Sarbanes-Oxley Act’s dual for-cause limitations on removal of members of board contravened separation of powers.

Discussed by

470. Hamdan v. Rumsfeld 126 S.Ct. 2749, 2774+ , U.S.

Jun. 29, 2006

Case

3

6

10

S.Ct.

MILITARY LAW - Court-Martial. Alien detained at Guantanamo Bay could not be tried before military commission.

Discussed by

471. American Ins. Ass’n v. Garamendi 123 S.Ct. 2374, 2386+ , U.S.

Jun. 23, 2003

Case

3

S.Ct.

INSURANCE - Preemption. California’s Holocaust Victim Insurance Relief Act interfered with foreign affairs and was preempted.

Discussed by

472. Crosby v. National Foreign Trade Council 120 S.Ct. 2288, 2295+ , U.S.Mass.

Jun. 19, 2000

Case

3

S.Ct.

GOVERNMENT - States. State law limiting state’s purchases from companies doing business with Burma was preempted.

Discussed by

473. Minnesota v. Mille Lacs Band of Chippewa Indians 119 S.Ct. 1187, 1189+ , U.S.Minn.

Mar. 24, 1999

Case

3

S.Ct.

NATIVE AMERICANS - Hunting. Mille Lacs Band of Chippewa Indians retained hunting rights guaranteed in 1837 Treaty.

Discussed by

474. Clinton v. City of New York 118 S.Ct. 2091, 2119+ , U.S.Dist.Col.

Jun. 25, 1998

Case

6

S.Ct.

GOVERNMENT - United States. Line Item Veto Act violated Presentment Clause by departing from “finely wrought” constitutional procedure for enactment of law.

Discussed by

475. Clinton v. Jones 117 S.Ct. 1636, 1638+ , U.S.Ark.

May 27, 1997

Case

3

6

S.Ct.

GOVERNMENT - Presidential Immunity. District Court abused its discretion in deferring trial of sexual misconduct claims against President until after President left office.

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

179

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment Discussed by

Title 476. Mistretta v. U.S. 109 S.Ct. 647, 659+ , U.S.Mo.

Date Jan. 18, 1989

Type Case

Depth

Headnote(s) 6

S.Ct.

Prisoners challenged constitutionality of Sentencing Commission. The United States District Court for the Western District of Missouri, Sachs, J., 682 F.Supp. 1033, determined...

Discussed by

477. I.N.S. v. Chadha 103 S.Ct. 2764, 2785+ , U.S.

Jun. 23, 1983

Case

5

6

S.Ct.

Alien whose suspension of deportation had been vetoed by one House of Congress sought review of order of deportation. The Court of Appeals, Kennedy, Circuit Judge, 634 F.2d 408,...

Discussed by

478. Nixon v. Fitzgerald 102 S.Ct. 2690, 2703+ , U.S.Dist.Col.

Jun. 24, 1982

Case

3

6

10

6

10

S.Ct.

Action was brought by discharged air force employee seeking civil damages from former president of the United States, based on actions allegedly taken in the former president’s...

Discussed by

479. Nixon v. Administrator of General Services 97 S.Ct. 2777, 2790+ , U.S.Dist.Col.

Jun. 28, 1977

Case

3

S.Ct.

Former president brought action challenging constitutionality of the Presidential Recordings and Materials Preservation Act. A three-judge court for the District of Columbia, 408...

Discussed by

480. Buckley v. Valeo 96 S.Ct. 612, 684+ , U.S.Dist.Col.

Jan. 30, 1976

Case

5

S.Ct.

Various candidates for federal office and political parties and organizations brought action challenging constitutionality of Federal Election Campaign Act. The District Court for...

Discussed by

481. Holtzman v. Schlesinger 94 S.Ct. 1, 4+ , U.S.

Aug. 01, 1973 Case

—

Proceeding on application to Mr. Justice Marshall, as Circuit Justice, to vacate a stay entered by a three-judge panel of the United States Court of Appeals for the Second Circuit...

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

180

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment Discussed by

Title 482. New York Times Co. v. U.S. 91 S.Ct. 2140, 2154+ , U.S.Dist.Col.

Date Jun. 30, 1971

Type Case

Depth

Headnote(s) 6

S.Ct.

The United States sought to enjoin newspapers from publishing contents of classified historical study on Viet Nam policy. In one case, the District Court for the Southern District...

Discussed by

483. Com. of Massachusetts v. Laird 91 S.Ct. 128, 132+ , U.S.

Nov. 09, 1970 Case

3

4

S.Ct.

On Motion for Leave to File Bill of Complaint. The motion of The Constitutional Lawyers’ Committee on Undeclared War for leave to file a supplemental brief, as amicus curiae, is...

Discussed by

484. Wald v. Regan 708 F.2d 794, 800+ , 1st Cir.(Mass.)

May 16, 1983

Case

3

6

S.Ct.

Plaintiffs brought an action challenging a Treasury Department regulation which prohibited persons who would desire to travel to Cuba from paying for ‘’transportation-related’’...

Discussed by

485. Charles T. Main Intern., Inc. v. Khuzestan Water & Power Authority 651 F.2d 800, 804+ , 1st Cir.(Mass.)

May 22, 1981

Case

3

6

10

S.Ct.

Engineering firm brought suit to recover payment for services rendered in connection with Iranian electrification projects. Subsequent to the hostage release agreement, plaintiff...

Discussed by

486. Arar v. Ashcroft 585 F.3d 559, 611+ , 2nd Cir.(N.Y.)

—

Nov. 02, 2009 Case

GOVERNMENT - Tort Claims. No new Bivens remedy was warranted for alien allegedly removed to Syria for interrogation under torture.

Discussed by

487. Haitian Centers Council, Inc. v. McNary

Jul. 29, 1992

Case

969 F.2d 1350, 1354+ , 2nd Cir.(N.Y.)

3

S.Ct.

After the President of the United States signed an Executive Order directing the Coast Guard to intercept boatloads of Haitian refugees at sea and to return them to their...

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

181

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment Discussed by

Title 488. Samuels, Kramer & Co. v. C.I.R. 930 F.2d 975, 987+ , 2nd Cir.

Date Apr. 02, 1991

Type Case

Depth

Headnote(s) 10

S.Ct.

Taxpayer sought refund in the United States Tax Court. After a special trial judge was appointed, taxpayer moved to vacate assignments on the grounds that assignment was not...

Discussed by

489. Ameron, Inc. v. U.S. Army Corps of Engineers 809 F.2d 979, 992+ , 3rd Cir.(N.J.)

Dec. 31, 1986 Case

6

S.Ct.

Rejected lowest bidder on Government contract brought action seeking preliminary injunction and temporary restraining order enjoining performance of contract pending outcome of...

Discussed by

490. Ameron, Inc. v. U.S. Army Corps of Engineers 787 F.2d 875, 881+ , 3rd Cir.(N.J.)

Mar. 27, 1986

Case

6

S.Ct.

Rejected low bidder on government contract brought action seeking preliminary injunction and temporary restraining order enjoining performance of contract pending outcome of...

Discussed by

491. U.S. v. Solomon 563 F.2d 1121, 1126+ , 4th Cir.(Md.)

Oct. 12, 1977

Case

3

S.Ct.

United States Attorney General brought suit to enjoin certain practices and policies of Maryland mental health administrators that were allegedly in violation of the constitutional...

Discussed by

492. U.S. v. New Orleans Public Service, Inc. Jun. 06, 1977 553 F.2d 459, 467+ , 5th Cir.(La.)

Case

3

S.Ct.

The United States brought action to compel utility’s compliance with Executive Order 11246 which prohibits employment discrimination by government contractors. The United States...

Discussed by

493. American Civil Liberties Union v. National Sec. Agency 493 F.3d 644, 717+ , 6th Cir.(Mich.)

Jul. 06, 2007

Case

3

6

10

S.Ct.

CRIMINAL JUSTICE - Electronic Surveillance. Attorneys and other professionals lacked standing to challenge National Security Agency’s Terrorist Surveillance Program.

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

182

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment Discussed by

Title 494. Local 1330, United Steel Workers of America v. U.S. Steel Corp. 631 F.2d 1264, 1265+ , 6th Cir.(Ohio)

Date Jul. 25, 1980

Type Case

Depth

Headnote(s) 2

3

S.Ct.

Unions and others brought action against steel company seeking order requiring company to keep the plants open or requiring the company to sell the facilities to the unions. The...

Discussed by

495. U.S. v. U.S. Dist. Court for Eastern Dist. of Mich., Southern Div. 444 F.2d 651, 660+ , 6th Cir.(Mich.)

Apr. 08, 1971

Case

3

S.Ct.

Proceeding on petition for writ of mandamus to compel district judge to vacate order directing United States to make full disclosure of monitored conversations. The Court of...

Discussed by

496. Mille Lacs Band of Chippewa Indians v. State of Minn. 124 F.3d 904, 915+ , 8th Cir.(Minn.)

Aug. 26, 1997 Case

3

6

10

S.Ct.

Mille Lacs Band of Chippewa Indians and individual members sued State of Minnesota and its Department of Natural Resources (DNR), seeking declaratory and injunctive relief with...

Discussed by

497. Bissonette v. Haig 776 F.2d 1384, 1389+ , 8th Cir.(S.D.)

Nov. 12, 1985 Case

3

4

S.Ct.

Action was brought by residents of Pine Ridge Indian Reservation against military personnel and federal officials for damages arising from defendants’ alleged seizure and...

Discussed by

498. Movsesian v. Victoria Versicherung AG 578 F.3d 1052, 1059+ , 9th Cir.(Cal.)

Aug. 20, 2009 Case

3

6

10

S.Ct.

INSURANCE - Life. State statute extending limitations period for claims arising out of life insurance policies issued to Armenian Genocide victims was preempted.

Discussed by

499. Gubiensio-Ortiz v. Kanahele 857 F.2d 1245, 1250+ , 9th Cir.(Cal.)

Aug. 23, 1988 Case

3

S.Ct.

Defendants were convicted of unrelated offenses by the United States District Court for the Southern District of California, Rudi M. Brewster, and J. Lawrence Irving, JJ., and...

© 2012 Thomson Reuters. No claim to original U.S. Government Works.

183

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Treatment Discussed by

Title 500. Pangilinan v. I.N.S. 796 F.2d 1091, 1098+ , 9th Cir.(Cal.)

Date

Type

Aug. 11, 1986 Case

Depth

Headnote(s) 3

10

S.Ct.

Appeals were taken from judgments of the United States District Court for the Northern District of California, William W Schwarzer, J., and of the Southern District of California,...

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184