xt7msb3wtd0h_57 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/mets.xml https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2.dao.xml unknown 166 Cubic Feet 381 document boxes, seven textile items, three map folders, one artwork archival material 72m2 English University of Kentucky The physical rights to the materials in this collection are held by the University of Kentucky Special Collections Research Center.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Frederick Moore Vinson papers Economic stabilization. Elections -- United States -- Congresses. Judges -- Correspondence. Judges -- United States. Judicial opinions Judicial process -- United States Legislators -- Correspondence. New Deal, 1933-1939. World War, 1914-1918 -- Veterans. World War, 1939-1945. Youngstown Sheet and Tube Co. v. Sawyer, Chief Justice dissent - nos. 744-745 text Youngstown Sheet and Tube Co. v. Sawyer, Chief Justice dissent - nos. 744-745 2019 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2/Box_222/Folder_2_5/Multipage6971.pdf 1951 1951 1951 section false xt7msb3wtd0h_57 xt7msb3wtd0h SUPREME COURT OF THE UNITED STATES

Nos. 744 AND 745.—OCTOBER TERM, 1951.

The Youngstown Sheet and Tube
Company, et al., Petitioners,
744 1). On Writs of Certiorari
Charles Sawyer. to the United States
Court of Appeals
Charles Sawyer, Petitioner, for the District of
745 1;, Columbia Circuit.

The Youngstown Sheet and Tube
Company, et al.

[June 2, 1952.]

REED and MR. JUSTICE MINTON join, dissenting.

The President of the United States directed the Sec—
retary of Commerce to take temporary possession of the-
Nation’s steel mills during the existing emergency be—
cause “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 air—
men 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 au—
thorization. Other members of the Court affirm on the-
basis of their reading of certain statutes. Because we
cannot agree that affirmanee is proper on any ground, and
because of the transcending importance of the questions-


 744 & 745—DISSENTING.

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.


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

Those who suggest that this is a case involving extra—
ordinary powers should be mindful that these are extra-
ordinary 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 was instrumental in
securing adoption of the United Nations Charter, ap—
proved by the Senate by a vote of 89 to 2. The first pur—
pose 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, . . . 3’1 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 sup—
portF 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 reaffirmed.3 Congres-

1 50 Stat. 103i, 1037 (19-15); 91 Cong. llee. 8100 (1945).

'-’ U. N. Security Council, U N. Doe. 8/1501 (1950); Statement
by the Presidenty June ‘35, 19:30, United States Policy in the Korean
Crisis, Dept. of State Pub. (1050), lti.

4‘ U. N. General Asseinbiy, U. N. Doc. A/lTTl (1051).


 744 & 745—DISSENTING.

sional support of the action in Korea has been manifested
by provisions for increased military manpower and equip-
ment and for economic stabilization, as hereinafter

Further efforts to protect the free world from aggres—
sion are found in the congressional enactments of the
Truman Plan for assistance to Greece and Turkey 4 and
the Marshall Plan for economic aid needed to build up
the strength of our friends in ll'estern Europe." 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.0 Congress
immediately implemented the North Atlantic Treaty by
authorizing military assistance to nations dedicated to
the principles of mutual security under the United
Nations Charter.T The concept of mutual security re—
cently has been extended by treaty to friends in the

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 secur-
ity 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 pres-

“ (31 Stat. 103 (1917).

“(5‘2 Stat. 137 (19-18), as amended, 03 Stat. 50 (1949), G-L Stat.
1518 (1950).

‘5 (53 Stat. 2241 (1040), extended to Greece and Turkey, S. Exec. E,
R‘ld Cong, 2d Sess. (1952), advice and consent of the Senate granted.
Cong. tee, Feb. 7, 19.32, 1). 04—1.

7 (33 Stat. 714 (1940).

RS. Execs. A, 1’), C and D, 82d Cong, 2d Sess. (1052), advice and
consent of the Senate granted. Cong. llee., Mar. 20, 1952, pp. 2635,
215.36, 2046.


 744 & 745—DISSENTING.

ently available to the United States and the countries
joined with us in mutual security arrangements. Con—
stant 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 undertak-
ing. Success of these measures may. as has often been
observed, dramatically influence the lives of many gen—
erations of the world's peoples yet unborn. Alert to our
responsibilities, which coincide with our own self preser-
vation through mutual security, Congress has enacted a
large body of implementing legislation. As an illustra-
tion 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 au-
thorized “military, economic, and technical assistance to

friendly countries to strengthen the mutual security
and individual and collective defenses of the free

V; 0

world, . . Over $51.1) billion were appropriated for
military assistance for fiscal year 1952, the bulk of that
amount to be devoted to purchase of military equipment.“
A request for over $7 billion for the same purpose for
fiscal year 1953 is currently pending in Congress.11 In ad-
dition 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

"(35 Stat. 373 (1951).

1'" (55 Stat. 730 (19.51); sec 11. R. Doc. No. 117, 82d Cong, 1st
Sogs. :; {1951).

“ See If. It. Doc. 38?, 52d Cong, _d Sess. (1952).

“Hearings before Senate Committee on Foreign Relations on the
Mutual Security Act of 1052, 82d Cong, 2d Scss. 565—566 (1052);
Hearings before House Committee on Foreign Affairs on the Mutual

Security Act of 1052, 82d Cong, 2d Sess 370 (1-952).


 744 & 745—DISSENTING.

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
the armed forces.13 As a result, we now have over
3,500,000 men in our armed forces.“

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.“ A request for $51 billion for the De—
partment of 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 Commission 1" and the expansion of the
Nation’s productive capacity affirmatively encouraged by

Congress recognized the impact of these defense pro-

grams upon the economy. Following the attack in
1305 Stat. 75 (1951); S. llcp. No. 117, 82d Cong, 1st Sess. 3

“Address by Secretary of Defense Lovctt Before the American
Society of Newspaper Editors, “’ashington, April 18, 1952.

I“Fiscal Year 1952, [3:3 Stat. 423, 760 (1951); F. Y. 1951, 64 Stat.
.305, 1011, 12-23, 65 Stat. 48 (1950—1951); F. Y. 1950, 63 Stat. 860,
97:}, 987 (1949); F. Y. 1949, 6'2 Stat. I347 (1948); F. Y. 1948, 61
Stat. 551 (1947).

1“Sec II. It. llep. No. 1085, Sid Cong, 2d Sess. 2 (1952), on
H. R. 7391.

17S00 H. R. Rep. No. 5-384, 82d Cong, lst Scss. 5 (1951); Cong.
lice, Oct. 19, 1951, pp. 13842—13844.

”Defense Production Act, Tit. III. 64 Stat. 798 (1950), 65 Stat..
138 (1951).


 744 & 745—DISSENTING.

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
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.” 2“ 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 \Vork—
crs, were due to expire on December 31, 1951, and a strike
shutting down the entire basic steel industry was threat-
ened, the President acted to avert a complete shutdown

1” Note 18, supra, Tits. IV and V.
9” S. Rep. No. 170, S‘Zd Cong, 1st Sess. S (1951).
5‘ Id., at 8—9.


 744 & 745—DISSENTING.

of steel production. On December 22, 1951, he certified
the dispute to the Wage Stabilization Board, requesting
that the Board investigate the dispute and promptly re-
port its recommendation as to fair and equitable terms of
settlement. The Union complied with the President’s
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 recommen—
dations 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. 111., April 9, 1952, but
bargaining between the parties continued with hope of
settlement until the evening of April 8, 1952. After bar-
gaining had failed to avert the threatened shutdown of

steel production, the President issued the following EX-
ecutive Order:

“WHEREAS on December 16, 1050, 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 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 aggres—
sion in Korea, and forces of the United States are sta-
tioned elsewhere overseas for the purpose of par-
ticipating 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


 744 & 745—DISSENTING.

us in the defense of the free world are produced to a
great extent in this country, and steel is an indis-
pensable 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 Com-
mission of vital importance to our defense efforts;

“WHEREAS a continuing and uninterrupted sup-
ply 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 cer-
tain 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 condi-
tions 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, pur-
suant to Executive Order No. 10233, and a strike has
been called for 12:01 A. 31., April 9, 1952; and

“WHEREAS a work stoppage would immediately
jeopardize and imperil our national defense and the»
defense of those joined with us in resisting aggression,
and would add to the continuing danger of our sol-
diers, 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,


 744 & 745—DISSENTING.

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 author-
ized and directed to take possession of all or such of
the plants, facilities, and other property of the com-
panies 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 neces-
sary for, or incidental to, such operation. . . .” 23

The next morning, April 9, 1952, the President ad-

dressed the following Message to Congress:

”To the Congress of the United States:

“The Congress is undoubtedly aware of the recent
events which have taken 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 situ-
ation 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.

2’3 Exec. Order 10340, 17 Fed. Reg. 3139 (1952).


 744 & T45—DISSENTING.

“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 dam-
aging with respect to our efforts to support our
Armed Forces and to protect our national security
that it made this alternative unthinkable.

“The only way that I know of, other than Govern-
ment 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 stabiliza—
tion program. I was unwilling to accept the incal—
culable damage which might be done to our country
by following such a course.

“Accordingly, it was my judgment that Govern—
ment 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 be—
lieved it to be, and now believe it to be. my duty and
within my powers as President to follow that course
of 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

“It may be that the Congress will feel the Gov-
ernment 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


 744 & 745*DISSENTING.

“It may even be that the Congress will feel that
we should permit a shut—down 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.

“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 legis—
lation 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 con—
gressional action is essential; but I would. of course,
be glad to cooperate in developing any legislative
proposals 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 re-
turned to their private owners as soon as possible.” '43

Twelve days passed without action by Congress. On
April 21, 10.32. 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.”'-“ Congress has not so
acted to this date.

3Icanwhile. plaintiffs instituted this action in the Dis—
trict Court to compel defendant to return possession of

'-'“('ong. Hera, .\pril 0, 1933, pp. CES'N'v‘l—ZJWLI'}.
3‘ Cong. lice, .\pril 3], 19.32, p. 4102.


 744 & T45—DISSENTING.

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
under which defendant acts is unconstitutional. We
also assume without deciding that the courts may go
behind a President's finding 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 under—
mined. Plaintiffs moved for a preliminary injunction
before answer or hearing. Defendant opposed the mo—
tion, filing uncontroverted affidavits of Government
officials describing the facts underlying the Presidents

Secretary of Defense Lovett swore that “a work stop-
page 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 Self/2: of the national production of certain alloy steel
is currently used for production of military—end items
and that 3557's 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 ammuni-
tion and not with the lives of our troops.”

Affidavits of the Chairman of the Atomic Energy Com-
mission, the Secretary of the Interior, defendant as See—
retary of Commerce, and the Administrators of the
Defense Production Administration, the National Pro-
duction Authority. the General Services Administration
and the Defense Transport Administration were also filed
in the District Court. These affidavits disclose an enor—
mous demand for steel in such vital defense programs as
the expansion of facilities in atomic energy, petroleum,
power, transportation and industrial production, includ—
ing steel production. Those charged with administering


 744 & 745~DISSENTING

allocations and priorities swore to the vital part steel
production plays in our economy. The affidavits em-
phasize the critical need for steel in our defense program,
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 pos-
sibility of executive seizure of a farm, a corner grocery
store or even a single industrial plant. Such considera—
tions 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)” 5 the
uncontroverted affidavits in this record amply support the
finding that “a work stoppage would immediately jeop—
ardize and impcril our national defense.”

Plaintiffs do not remotely suggest any basis for reject—
ing 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 lim-
ited to wage demands but including 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 ['nion and the steel companies
may well engage in a lengthy struggle. Plaintiffs 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

37' ("hit-ago (f' Southern Air Lines v. ll'atcrnmn S. S. Corp, 333
U. S. 103, 111 (19-18), and cases cited.


 744 & 745—DISSENTING.


which their lives depend will be forthcoming—J‘sooner or
later,” or, in other words, “too little and too late.”
Accordingly, if the President has any power under the
Constitution to meet a critical situation in the absence
of express statutory authorization, there is no basis what—
ever for criticizing the exercise of such power in this case.


The steel mills were seized for a public use. The power
of eminent domain, invoked in this case, is an essential
attribute of sovereignty and has long been recognized as
a power of the Federal Government. Kohl v. United
States, 91 U. S. 367 (1876). Plaintiffs cannot complain
that any provision in the Constitution prohibits the exer-
cise 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 other—
wise unlawful, plaintiffs are assured of receiving the re-
quired just compensation. United States v. Pcwee Can
00., 341 U. S. 114 (1951).

Admitting that the Government could seize the mills,
plaintiffs claim that the implied power of eminent do—
main can be exercised only under an Act of Congress;
under no circumstances, they say, can that power be ex-
ercised 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 pre—
liminary injunction. Without an answer, without hear-
ing 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 Gov-
ernment to cope with threatened disaster.


 744 & 745—DISSENTING.

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
capable of action. Under this view, he is left powerless
because a power not expressly given to Congress is never-
theless found to rest exclusively with Congress.

Consideration of this view of executive impotence
calls for further examination of the nature of the separa-
tion of powers under our tripartite system of Government.

The Constitution provides:
TAN). 1,

Section 1. “All legislative Powers herein granted
shall be vested in a Congress of the United
States, . . . .

Art. 11,

Section 1. “The executive Power shall be vested
in a President of the United States of Amer-
ica. . . .

Section 2. “The President shall be Commander
in Chief of the Army and Navy of the United
States, . . .

“He shall have the Power, by and with the Ad-
vice 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, . . . .

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.”


 74:1 & 745—DISSENTING.

The whole of the “executive Power” is vested in the Presi-
dent. Before entering office, the President swears that he
“will faithfully execute the Office of President of the
United States, and will to the best of [his] Ability, pre-
serve, protect and defend the Constitution of the United
States.” Art. II, §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 initia-
tive and vigor in all of the three departments of Govern—
ment, declared Madison, could tyranny in any form 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 admin-
istration of the laws; to the protection of property against
those irregular and high-handed 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.” 2“ It is thus ap—
parent 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 pre-
sented 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.” '33 Cases do arise-

3“ The Federalist, No. XLYIII.
97 The Federalist, No. LXX.
2‘ilIcCulloc/l v. Maryland, 41 Wheat. 316, 415, 4‘34 (1819).


 744 & 745—DISSENTIN G.

presenting quest-ions which could not have been foreseen
by the Framers. In such cases, the Constitution has
been treated as a living document adaptable to new situa-
tions?9 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 through—
out our history. It is those who assert the invalidity of
the Executive Order who seek to amend the Constitution
in this case.

A review of executive action demonstrates that our
Presidents have on many occasions exhibited the leader—
ship 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 exe—
cuted.” With or without explicit statutory authoriza—
tion, 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 re—
sponded to such executive initiative with consistent

Our first President displayed at once the leadership
contemplated by the Framers. When the national reve-
nue laws were openly flouted in some sections of Penn—
sylvania, President YVashington, without waiting for a
call from the state government, summoned the militia
and took decisive steps to secure the faithful execution
of the laws.30 When international disputes engendered
by the French revolution threatened to involve this

3" United States v. Classic, 313 U. S. 200, 315—316 (1041); Home
Building it Loan Assn. V. Blaisr/cll, 290 U. S. 308, 4112—4-13 (1934)..
”’4 Annals of Congress 1411, 1413 (1794).


 7414 & 1 15—1318. ENTING

country in war, and while congressional policy remained
uncertain V19 shington issued his Proclamation of Neu—
t1ality Hamilton whose defense of the Proclamation
has endiued the test of time i111 oked the argument that
the Exec11ti1 c has the duty to do that 11 inch 11111 p1 03011 0
peace until Congiess acts and, 111 addition, pointed to the
need for keeping the Nation informed of the require—
ments of