Thursday, June I, 1SS1
MEDfORD (OREGON) MAIL TRIBUNE THREE
Text of
(Editor'! nolti Because oi
the widespread inUrait in
the Supreme Court's decision
reversing President Truman's
seisure oi the nation's steel
mills, the majority opinion, js
delivered br Justice Black, is
herewith printed in lull.)
Washington Mr. Justice
Black delivered the opinion of
the Court.
We are asked to decide wheth
er the President was acting with
in 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
PrMiHont's order amounts to law
making, a legislative function
which the Constitution has ex
pressly confided to the Congress
and not to the President.- i
The Government's position is
that the order was made on find
lno nf the President lhat his
action was necessary to avert a
national catastrophe which would
inevitably result from a stop
page of teel production, and that
in meeting this grave emergency
the President was acting within
the aggregate of his constitu
tional powers as the Nation's
Chief Executive and the Com
mander in Chief of the Armed
Forces of the United States
Basia of Issue
The issue emerges here from
h follnwinff series of events:
in the latter Dart of 1951, a
dispute arose between the steel
companies and tneir employees
over terms and conditions that
should be included in new col
lective bargaining agreements
Long-continued conferences fail
H n resolve the dispute. On De
cember 18, 1981, the employees'
representative, U n 1 1 e a oieei
workers of America, CIO, gave
nntfnp nt an intention to strike
when the existing bargaining
agreements expired on Decern
ber 31.
- Thorntinnn the Federal Medi-
tiin and r.nnpilliation Service
intervened in an effort to get
lahnr nnH management to agree.
This failing, the President on
December 22, 1951, reterrea xne
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Decision Revoking Steel Mill
dispute to the Federal Wage Sta
bilization Board (1) to investigate
and make recommendations for
fair and equitable terms of set
tlement. This board's report re
sulted in no settlement.
Union Gave Notice
On April 3, 1952, the union
gave notice of a nationwide
strike called to begin at 12:01
a.m., April 9.
The . indispensability of steel
as a component of substantially
all weapons and other war ma
terials led the President to oe
lieve 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 ac
tions, the President, a few hours
before the strike was to begin:
issued Executive Order No.
10.340. a copy of which is at
tached at the end of this opinion
as an appendix. The order direct
ed the Secretary of commerce
to take possession of and operate
most of the steel mills mrougn
out the country.
Orders Issued
The secretary immediately is
sued his own possessory orders,
calling upon the Presidents ot
the various companies to serve
as operating -managers for the
United States. They were direct
ed- to carry on their activities
in ' accordance with regulations
and directions of the Secretary.
The next morning the Presi
dent sent a message to Congress
reporting his action. Cong. Rec,
April 9, 1952, p. 3,962. Twelve
davs later he sent a second mes
sage. Cong. Rec, April 21, 1952,
p. 4,192 Congress has taken no
action.
Obevina the Secretary's orders
under protest, the companies
brought proceedings against him
in-the district court. Their com-
nlaints charaed that the seizure
was not authorized by an act of
Congress or by any constitution
al provisions. The district court
was asked to declare the orders
of the President and Secretary
invalid and to issue preliminary
and permanent injunctions re
straining their enforcement.
Opposing' the motion for pre
liminary injunction, tne unueo.
States asserted that a strike dis
rupting steel production for even
a brief period would so endan-
eer the well-being ana sareiy
of the Nation that the President
had "inherent power" to do what
he had done power "supported
by the Constitution, by histori
cal nrecedent, and by court de
cisions." 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 irrepar
able.; -
Holding against the . Govern
ment on all points, the district
court on April 30 issued a pre
liminary injunction restraining
the Secretary from "continuing
the seizure and possession of the
plant . . . and from acting under
the purported authority of Execu
tive Order No. 10,340." 103 F,
Supp. 659. On the same day the
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court of appeals stayed the dis-
trict court's injunction. 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.
Crucial Issues
Two crucial issues have de
veloped. First, should final de
termination 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?
It is urged that there were
non-constitutional grounds upon
which the district court could
have denied the preliminary in
iunction and thus have followed
the customary practice of de
clining to reach and decide con
stitutional questions until com
pelled to do so. On this basis it
is argued that Equity's extra
ordinary injunction relief should
have been denied because (a)
seizure of the companies' prop
erties did not inflict irreparable
damages, and (b) there were
available legal remedies ade
quate to afford compensations
for any possible damages wnicn
they might suffer.
Closely Related
While separately argued by
the Government, these two con
tentions are here closely related,
if not identical. Arguments as
to both rest in large part on the
Government's claim that should
the seizure ultimately be held
unlawful, the companies could
recover full compensation in the
court of claims for the unlawful
taking. Prior cases in this court
have cast doubt on the right to
recover in the court of claims on
account of properties unlawfully
taken by Government officials
for public use as these proper
ties were alleged to have been.
See E. G-. Hooe v. United States,
218 U. S. 322, 335-336; United
States v. North American Co.,
253 U. S. 330, 333. But see Lar
son v. Domestic & Foreign Corp.,
337 tJ.- S. 682, 701-702. More
over, seizure and government op
eration of these going businesses
were bound to result in many
present and future damages of
such nature as to be aitncuii,
if. not incapable, of measure
ment.
Viewing the case this way, and
in the light of the facts present
ed, the District Court saw no
reason for delaying decision of
the Constitutional validity of the
orders. We agree with the Dis
trict Court and can see no rea
son why that question was not
ripe for determination on the
record presented. We shall there
fore consider and determine that
question now.
No Authority Statute
The President's power 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 di
rected from which such power
can fairly be implied. Indeed, we
do not understand the govern
ment to rely on statutory author-
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Ization for this seizure. There are
two statutes which do authorize
the President to take both per
sonal 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 them.
The government refers to the
seizure provisions of one of these
statutes (Section 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 seiz
ure technique to solve labor dis
putes in order to prevent work
stoppages was not . only unau
thorized by. any congressional
enactment; prior to this contro
versy, Congress had ; retusea to
adopt that method of settling la
bor disputes. '
Rejected
When the Taft-Hartley act was
under consideration in 1947, Con
gress rejected an amendment
which would have authorized
such governmental seizures in
cases of emergency. (3) Appar
ently it was thought that the
techniaue of seizure, like that of
compulsory arbitration, would in
terfere with the process of col
lective bargaining. -(4) Conse
quently, the plan Congress
adopted in that act did not pro
vide for seizure under any cir
cumstances. Instead, the plan
sought to bring . about settle
ments by use of the customary
devices of mediation, . ' concilia
tion, investigation -by, boards of
inauirv. and public reports. In
some Instances temporary in
junctions were authorized to pro
vide cooling-off periods. All this
failing, the unions were left free
to strike if the majority of the
employees, by secret ballot, ex
pressed a desire tcr do so. 19)
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 ex-
press constitutional language
grants this power to trie Presi
dent. The contention is that
presidential power, should be im
plied from the aggregate of his
powers under Article II of the
Constitution. Particular reliance
is placed on the provisions which
say that "the executive power
shall be vested in a Fresi-
Ident . . .;" that , "he shall take
care that the laws be faithfully
executed;" and that he "shall
be commander-in-chief of the
Army and Navy of the United
States. j .. .'
No Such Power ?i
The order cannot properly be
sustained as ah exercise of the
President's military power as
Commander-in-Chief of the arm
ed forces. The Government at
tempts to do so by citing a num
ber of cases' upholding broad
powers in military-commanders
engaged in day-to-day fighting
in a theater of war. Such eases
need not concern us here. Even
though "theater of war" be an
expanding ' concept,' we cannot
with faithfulness to our constitu
tional system hold that the Commander-in-chief
: of t h e . armed
forces has the ultimate power as
such to take possession of pri
vate property in order to keep
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duction. This is a job for the
Nation's lawmakers, not for its
military authorities.
Nor can the seizure order be
sustained because of the several
constitutional provisions that
grant executive power to the
President. In the framework of
our Constitution, the President's
power to see that the laws are
faithfully executed refutes the
idea that he is to be a lawmaker.
The Constitution limits his func
tions in the lawmaking process
to the recommending of laws he
thinks wise and the vetoing of
laws he thinks bad. And the Con
stitution is neither silent nor
equivocal about who shall make
laws which the President is to
execute. The first section of the
first article says that "all legis
lative 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 carry
ing 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."
Rule Denial
The President's order does not
direct that a congressional policy
be executed in a manner pre
scribed by Congress It directs
that a presidential policy be exe
cuted 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, pro
claims these policies as rules of
conduct to be followed, and
again, like a statute, autiiorizes
a Government official to pro
mulgate additional rules and
regulations consistent with the
policy proclaimed and needed
to carry that policy into execu
tion. The power of Congress to
adopt such public policies as
those proclaimed by the order is
beyond question. It can authroize
the taking of private property
for public use. It can make laws
regulating the relationships be
tween employers and em
ployees, prescribing rules - de
signed 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 presiden
tial or military supervision or
control. r -
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 con
stitutional authority to make
laws necessary and proper to
carry out the powers vested by
the Constitution in the Goven-
ment of the United States, or
any department or officer there
of."
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Seizure
do no good to recall the historical
events, the fears of power and
the hopes for freedom that lay
behind their choice. Such a re
view would but confirm our
holding that this seizure order
cannot stand. -
The judgment of the District
Court is affirmed.
Mr. Justice Frankfurter.
Although the considerations
relevant to the legal enforcement
of the principle of separation of
powers seem to be more compli
cated and flexible than may ap
pear from what Mr. Justice
Black has written, I join his
opinion because .1 throughly
agree with the application of
the , principle to the circum
stances of this case. Even though
such differences in attitude to
ward this principle may be mere
ly differences in emphasis and
nuance, they can be reflected
by a single opinion for the court.
Individual expression of views in
reaching a common result Is
therefore important.
Appended to the majority opin
ion was the text of President
Truman's order of April 8 di
recting seizure of the steel in
dustry. Footnotes:
1 This board was established
under executive order 10,233, 16
Federal Register 3,503. '
2 The Selective Service Act
of 1948, 62 Stat. 604, 625-627,
50 U.S.C. App. (Supp. IV) Sec
tion 468; the Defense Produc
tion Act of 1950, Tit; II, 64 Stat.
798 as amended, 65 Stat. 138,
3 93 Congressional Record
3637-3645.
4 93 Congressional Record
3835-3836.
5 Labor Management Rela
tions Act, 1947, 61 Stat. 136,
152-156, 29 U.S.C. (Supp. IV)
Sections 141, 171-180.
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Oregon High Court Rules
On Death Sentence; Upholds
Legality of Death Penalty
Salem U.R) The Oregon
Supreme Court has upheld the
death sentence of Frank Oliver
Payne, who shot a Portland mer
chant while attempting a hold
up, and at the same time upheld
the constitutionality of Oregon's
death penalty.
Convicted of Shooting
Payne was convicted of shoot
ing to death H. Nathan Butler,
who operated a small store In
Portland on the evening of Jan.
9, 1951. Payne ordered a pack
of cigarettes. While Butler was
ringing up the sale, Payne took
a revolver from his pocket and
told Butler it was a holdup.
When Butler apparently resisted,
Payne shot him five times. Payne
left the store but was later
caught and confessed
Among legal points presented
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Court was the constitutionality
of the amendment to the con
stitution of 1920 restoring the
death penalty. The opinion of
the high court, written by Jus-
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tice Earl C. Latourette, upheld
the amendment and declared it
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