Chapter XLVII: Section 3: He shall from time to time give to the Congress (2)

The right of the President to use force in vindication of American rights of person and property abroad was demonstrated in 1854 by the bombardment of Greytown, Nicaragua by Lieutenant Hollins of the U.S.S. Cyane, in default of reparation from the local authorities for an attack by a mob on the United States consul at that place. Upon his return to the United States Hollins was sued in a federal court by one Durand for the value of certain property which was alleged to have been destroyed in the bombardment. His defense was based upon the orders of the President and Secretary of the Navy, and was sustained by Justice Nelson, then on circuit, in the following words: "As the Executive head of the nation, the President is made the only legitimate organ of the General Government, to open and carry on correspondence or negotiations with foreign nations, in matters concerning the interests of the country or of its citizens. It is to him, also, the citizens abroad must look for protection of person and of property, and for the faithful execution of the laws existing and intended for their protection. For this purpose, the whole Executive power of the country is placed in his hands, under the Constitution, and the laws passed in pursuance thereof; and different Departments of government have been organized, through which this power may be most conveniently executed, whether by negotiation or by force--a Department of State and a Department of the Navy.

"Now, as it respects the interposition of the Executive abroad, for the protection of the lives or property of the citizen, the duty must, of necessity, rest in the discretion of the President. Acts of lawless violence, or of threatened violence to the citizen or his property, cannot be anticipated and provided for; and the protection, to be effectual or of any avail, may, not unfrequently, require the most prompt and decided action. Under our system of Government, the citizen abroad is as much entitled to protection as the citizen at home. The great object and duty of Government is the protection of the lives, liberty, and property of the people composing it, whether abroad or at home; and any Government failing in the accomplishment of the object, or the performance of the duty, is not worth preserving."[415]

PRESIDENTIAL WORLD POLICING

In his little volume on World Policing and the Constitution[416] Mr. James Grafton Rogers lists 149 episodes similar to the Greytown affair, stretching between the undeclared war with France in 1798 and Pearl Harbor. While inviting some pruning, the list demonstrates beyond peradventure the existence in the President, as Chief Executive and Commander in Chief, of power to judge whether a situation requires the use of available forces to protect American rights of person and property outside the United States and to take action in harmony with his decision. Such employment of the forces have, it is true, been usually justifiable acts of self defense rather than acts of war, but the countries where they occurred were entitled to treat them as acts of war nevertheless, although they have generally been too feeble to assert their prerogative in this respect, and have sometimes actually chosen to turn the other cheek. Thus when in 1900 President McKinley, without consulting Congress, contributed a sizable contingent to the joint forces that went to the relief of the foreign legations in Peking, the Chinese Imperial Government agreed that this action had not constituted war.[417]

The Atlantic Pact

Article V of the Atlantic Pact builds on such precedents. The novel feature is its enlarged conception of defensible American interests abroad. In the words of the published abstract of the Report of the Committee on Foreign Relations on the Pact, "Article 5 records what is a fact, namely, that an armed attack within the meaning of the treaty would in the present-day world constitute an attack upon the entire community comprising the parties to the treaty, including the United States. Accordingly, the President and the Congress, each within their sphere of assigned constitutional responsibilities, would be expected to take all action necessary and appropriate to protect the United States against the consequences and dangers of an armed attack committed against any party to the treaty."[418] But from the very nature of things, the discharge of this obligation against overt force will ordinarily rest with the President in the first instance, just as has the discharge in the past of the like obligation in the protection of American rights abroad. Furthermore, in the discharge of this obligation the President will ordinarily be required to use force and perform acts of war. Such is the verdict of history, a verdict which was foreseen more or less definitely by the framers themselves.[419]

PRESIDENTIAL ACTION IN THE DOMAIN OF CONGRESS: THE STEEL SEIZURE CASE

Facts[420]

To avert a nation-wide strike of steel workers which he believed would jeopardize the national defense, President Truman, on April 8th, 1952, issued Executive Order 10340[421] directing the Secretary of Commerce to seize and operate most of the steel mills of the country. The Order cited no specific statutory authorization, but invoked generally the powers vested in the President by the Constitution and laws of the United States. Secretary Sawyer forthwith issued an order seizing the mills and directing their presidents to operate them as operating managers for the United States in accordance with his regulations and directions. The President promptly reported these events to Congress, conceding Congress's power to supersede his Order; but Congress failed to do anything about the matter either then or a fortnight later, when the President again brought up the subject in a special message.[422] It had in fact provided other methods of dealing with such situations, in the elaboration of which it had declined repeatedly to authorize governmental seizures of property to settle labor disputes. The steel companies sued the Secretary in a federal district court, praying for a declaratory judgment and injunctive relief. The district court issued a preliminary injunction, which the court of appeals stayed.[423] On certiorari to the court of appeals, the district court's order was affirmed by the Supreme Court by a vote of six justices to three. Justice Black delivered the opinion of the Court in which Justices Frankfurter, Douglas, Jackson, and Burton formally concurred. Justice Clark expressly limited his concurrence to the judgment of the Court. All these Justices presented what are termed "concurring" opinions. The Chief Justice, speaking for himself and Justices Reed and Minton, presented a dissenting opinion.

The Doctrine of the Opinion of the Court

The chief points urged in the Black opinion are the following: There was no statute which expressly or impliedly authorized the President to take possession of the property involved. On the contrary, in its consideration of the Taft-Hartley Act in 1947, Congress refused to authorize governmental seizures of property as a method of preventing work stoppages and settling labor disputes. Authority to issue such an order in the circumstances of the case was not deducible from the aggregate of the President's executive powers under Article II of the Constitution; nor was the Order maintainable as an exercise of the President's powers as Commander in Chief of the Armed Forces. The power sought to be exercised was the lawmaking power, which the Constitution vests in the Congress alone. Even if it were true that other Presidents have taken possession of private business enterprises without congressional authority in order to settle labor disputes, Congress was not thereby divested of its exclusive constitutional authority to make the laws necessary and proper to carry out all powers vested by the Constitution "in the Government of the United States, or any Department or Officer thereof."[424]

The Factual Record

The pivotal proposition of the opinion is, in brief, that inasmuch as Congress could have ordered the seizure of the steel mills, the President had no power to do so without prior congressional authorization. To support this position no proof is offered in the way of past opinion, and the following extract from Justice Clark's opinion presents a formidable challenge to it: "One of this Court's first pronouncements upon the powers of the President under the Constitution was made by Mr. Chief Justice John Marshall some one hundred and fifty years ago. In Little _v._ Barreme,[425] 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 authority to the seizure of vessels bound or sailing to a French port, the legislature seems to have prescribed that the manner in which this law shall be carried into execution, was to exclude a seizure of any vessel not bound to a French port.' 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."[426]

Another field which the President and Congress have each occupied at different times is extradition. In 1799 President Adams, in order to execute the extradition provisions of the Jay Treaty, issued a warrant for the arrest of one Jonathan Robbins. As Chief Justice Vinson recites in his opinion: "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, in the course of his successful defense of the President's action, said: '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.'"[427] In 1848 Congress enacted a statute governing this subject which confers upon the courts, both State and Federal, the duty of handling extradition cases.[428]

The first Neutrality Proclamation was issued by President Washington in 1793 without congressional authorization.[429] The following year Congress enacted the first neutrality statute,[430] and since then proclamations of neutrality have been based on an act of Congress governing the matter. The President may, in the absence of legislation by Congress, control the landing of foreign cables in the United States and the passage of foreign troops through American territory, and has done so repeatedly.[431] Likewise, until Congress acts, he may govern conquered territory[432] and, "in the absence of attempts by Congress to limit his power," may set up military commissions in territory occupied by the armed forces of the United States.[433] He may determine, in a way to bind the courts, whether a treaty is still in force as law of the land, although again the final power in the field rests with Congress.[434] One of the President's most ordinary powers and duties is that of ordering the prosecution of supposed offenders against the laws of the United States. Yet Congress may do the same thing.[435] On September 22, 1862, President Lincoln issued a proclamation suspending the privilege of the writ of habeas corpus throughout the Union in certain classes of cases. By an act passed March 3, 1863, Congress ratified this action of the President and at the same time brought the whole subject of military arrests in the United States under legal control.[436] Conversely, when President Wilson failed in March 1917 to obtain Congress's consent to his arming American merchant vessels with defensive arms, he went ahead and did it anyway, "fortified not only by the known sentiments of the majority in Congress but also by the advice of his Secretary of State and Attorney General."[437]

On the specific matter of property seizures, Justice Frankfurter's concurring opinion in the Youngstown Case is accompanied by appendices containing a synoptic analysis of legislation authorizing seizures of industrial property and also a summary of seizures of industrial plants and facilities by Presidents without definite statutory warrant. Eighteen such statutes are listed, all but the first of which were enacted between 1916 and 1951. Of presidential seizures unsupported by reference to specific statutory authorization, he lists eight as occurring during World War I. To justify these it was deemed sufficient to refer to "the Constitution and laws" generally. For the World War II period he lists eleven seizures in justification of which no statutory authority was cited. The first of these was the seizure of the North American Aviation, Inc., of Englewood, California. In support of this action Attorney General Jackson, as Chief Justice Vinson points out in his dissenting opinion, "vigorously proclaimed that the President had the moral duty to keep this nation's defense effort a 'going concern.'"[438] Said the then Attorney General, "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. For the faithful execution of such laws the President has back of him not only each general law-enforcement 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."[439] In the War Labor Disputes Act of June 25, 1943,[440] such seizures were put on a statutory basis. As the Chief Justice points out, the purpose of this measure, as stated by its sponsor, was not to augment presidential power but to "let the country know that the Congress is squarely behind the President."[441]

In United States _v._ Pewee Coal Company, Inc.[442] the Court had before it the claim of a coal mine operator whose property was seized by the President without statutory authorization, "to avert a nation-wide strike of miners." The company brought an action in the Court of Claims to recover under the Fifth Amendment for the total operating losses sustained during the period in which this property was operated by the United States. The Court awarded judgment for $2,241.46 and the Supreme Court sustained this judgment, a result which implied the validity of the seizure.[443] Said Justice Reed, in his concurring opinion of the case: "The relatively new technique of temporary taking by eminent domain is a most useful administrative device: many properties, such as laundries, or coal mines, or railroads, may be subjected to public operation only for a short time to meet war or emergency needs, and can then be returned to their owners." The implications of United States _v._ Pewee Coal Company, Inc.,[444] clearly sustained the Government in Youngstown, assuming that Congress had not acted in the latter case. And one instance of seizure by executive order Justice Frankfurter fails to mention. This was the seizure by President Wilson in the late summer of 1914, following the outbreak of war in Europe, of the Marconi Wireless Station at Siasconset when the Company refused assurance that it would comply with naval censorship regulations. Attorney General Gregory's justification of this action at the time was quoted on an earlier page.[445]

The doctrine dictated by the above considerations as regards the exercise of executive power in the field of legislative power was well stated by Mr. John W. Davis, principal counsel on the present occasion for the steel companies, in a brief which he filed nearly forty years ago as Solicitor General, in defense of the action of the President in withdrawing certain lands from public entry although his doing so was at the time contrary to express statute. "Ours," the brief reads, "is a self-sufficient Government within its sphere. (Ex parte Siebold, 100 U.S. 371, 395; in re Debs, 158 U.S. 564, 578.) 'Its means are adequate to its ends' (McCulloch _v._ Maryland, 4 Wheat. 316, 424), 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 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."[446]

Concurring Opinions

Justice Frankfurter begins the material part of his opinion with the statement: "We must * * * put to one side consideration of what powers the President would have had if there had been no legislation whatever bearing on the authority asserted by the seizure, or if the seizure had been only for a short, explicitly temporary period, to be terminated automatically unless Congressional approval were given."[447] He then enters upon a review of the proceedings of Congress which attended the enactment of the Taft-Hartley Act, and concludes that "Congress has expressed its will to withhold this power [of seizure] from the President as though it had said so in so many words."[448]

Justice Douglas's contribution consists in the argument that: "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 the President has effected. That seems to me to be the necessary result of the condemnation provision in the Fifth Amendment."[449] This contention overlooks such cases as Mitchell _v._ Harmony;[450] United States _v._ Russell;[451] Portsmouth Harbor Land and Hotel Co. _v._ United States;[452] and United States _v._ Pewee Coal Co.;[453] in all of which a right of compensation was recognized to exist in consequence of damage to property which resulted from acts stemming ultimately from constitutional powers of the President. In United States _v._ Pink,[454] Justice Douglas quotes with approval the following words from the Federalist,[455] "all constitutional acts of power, whether in the executive or in the judicial branch, have as much validity and obligation as if they proceeded from the legislature." If this is so as to treaty obligations, then all the more must it be true of obligations which are based directly on the Constitution.[456]

Justice Jackson's opinion contains little that is of direct pertinence to the constitutional issue. Important, however, is his contention, which, seems to align him with Justice Frankfurter, that Congress had "not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure"; from which he concludes that "* * * we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress."[457] The opinion concludes: "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. * * * 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 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 emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers."[458]

Justice Burton, referring to the Taft-Hartley Act, says: "* * * the most significant feature of that Act is its omission of authority to seize," citing debate on the measure.[459] "In the case before us, Congress authorized a procedure which the President declined to follow."[460] Justice Clark bases his position directly upon Chief Justice Marshall's opinion in Little _v._ Barreme.[461] He says: "I conclude that where Congress has laid down specific procedures to deal with the type of crisis confronting the President, he must follow these procedures in meeting the crisis; * * * I cannot sustain the seizure in question because here, as in Little _v._ Barreme, Congress had prescribed methods to be followed by the President in meeting the emergency at hand."[462] His reference is to the Taft-Hartley Act. At the same time he endorses the view, "taught me not only by the decision of Chief Justice Marshall in Little _v._ Barreme, but also by a score of other pronouncements of distinguished members of this bench," that "the Constitution does grant to the President extensive authority in times of grave and imperative national emergency."[463]

Dissenting Opinion

Chief Justice Vinson launched his opinion of dissent, for himself and Justices Reed and Minton, with a survey of the elements of the emergency which confronted the President: the Korean war; the obligations of the United States under the United Nations Charter and the Atlantic Pact; the appropriations acts by which Congress has voted vast sums to be expended in our defense and that of our Allies in Europe; the fact that steel is a basic constituent of war materiel. He reproaches the Court for giving no consideration to these things, although no one had ventured to challenge the President's finding of an emergency on the basis of them.[464] He asks whether the steel seizure, considering the emergency involved, fits into the picture of presidential emergency action in the past and musters impressive evidence to show that it does. And "plaintiffs admit," he asserts, more questionably, "that the emergency procedures of Taft-Hartley are not mandatory."[465] He concludes as follows: "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 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 emergency for, under this view, the gravity of the emergency and the immediacy of the threatened disaster are considered irrelevant as a matter of law."[466]

Evaluation; Presidential Emergency Power

The doctrine of "the opinion of the Court" is that, if Congress can do it under, say, the necessary and proper clause, then the President, lacking authority from Congress, cannot do it on the justification that an emergency requires it. Although four Justices are recorded as concurring in the opinion, their accompanying opinions whittle their concurrence in some instances to the vanishing point. Justice Douglas's supplementary argument on the basis of Amendment V logically confines the doctrine of the opinion to executive seizures of property. Justices Frankfurter and Burton and, less clearly, Justice Jackson insist in effect that Congress had exercised its power in the premises of the case in opposition to seizure. Justice Clark, on the basis of Chief Justice Marshall's opinion in Little _v._ Barreme, holds unambiguously that, Congress having entered the field, its evident intention to rule out seizures supplied the law of the case. That the President does possess a residual of resultant power above, or in consequence of, his granted powers to deal with emergencies in the absence of restrictive legislation is explicitly asserted by Justice Clark, and impliedly held, with certain qualifications, by Justice Frankfurter and, again less clearly, by Justice Jackson; and is the essence of the position of the three dissenting Justices. Finally, the entire Court would in all probability agree to the proposition that any action of the President touching the internal economy of the country for which the justification of emergency is pleaded is always subject to revision and disallowance by the legislative power. It would seem to follow that whenever the President so acts on his own initiative he should at once report his action to Congress, and thenceforth bring the full powers of his office to the support of the desires of the Houses once these are clearly indicated.

PRESIDENTIAL IMMUNITY FROM JUDICIAL DIRECTION

By the decision of the Court in State of Mississippi _v._ Johnson,[467] in 1867, the President was put beyond the reach of judicial direction in the exercise of any of his powers, whether constitutional or statutory, political or otherwise. An application for an injunction to forbid President Johnson to enforce the Reconstruction Acts, on the ground of their unconstitutionality, was answered by Attorney General Stanbery as follows: "It is not upon any peculiar immunity that the individual has who happens to be President; upon any idea that he cannot do wrong; upon any idea that there is any particular sanctity belonging to him as an individual, as is the case with one who has royal blood in his veins; but it is on account of the office that he holds that I say the President of the United States is above the process of any court or the jurisdiction of any court to bring him to account as President. There is only one court or _quasi_ court that he can be called upon to answer to for any dereliction of duty, for doing anything that is contrary to law or failing to do anything which is according to law, and that is not this tribunal but one that sits in another chamber of this Capitol."[468] Speaking by Chief Justice Chase, the Court agreed: "The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance. The impropriety of such interference will be clearly seen upon consideration of its possible consequences. Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal? And in that case could this court interfere, in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would [not?] the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court?"[469] The Court further indicated that the same principle would apply to an application for a mandamus ordering the President to exercise any of his powers.

THE PRESIDENT'S SUBORDINATES AND THE COURTS

But while the courts are unable to compel the President to act or to keep him from acting, yet his acts, when performed are in proper cases subject to judicial review and disallowance.[470] Moreover, the subordinates through whom he acts may always be prohibited by writ of injunction from doing a threatened illegal act which might lead to irreparable damage,[471] or be compelled by writ of mandamus to perform a duty definitely required by law,[472] such suits being usually brought in the United States District Court for the District of Columbia.[473] Also, by common law principles, a subordinate executive officer is personally liable under the ordinary law for any act done in excess of authority.[474] Indeed, by a recent holding, district courts of the United States are bound to entertain suits for damages arising out of alleged violation of plaintiff's constitutional rights, even though as the law now stands the Court is powerless to award damages.[475] But Congress may, in certain cases, exonerate the officer by a so-called act of indemnity,[476] while as the law stands at present, any officer of the United States who is charged with a crime under the laws of a State for an act done under the authority of the United States is entitled to have his case transferred to the national courts.[477]