EXHIBIT 35

App. 1062

0ffice-Supreme Co_Jrt,W.S."
F T T, _53:E)

MAY 1 0 1952
"IN

THE

._HARLESELMORCROPL[':Y

(go rt ol Ne Ill

uprrmr

OCTOBER TERM, 1951

NO. 744.

THE

YOUNGSTOWN
LIC

STEEL

SHEET

B_T_LE_E_I
STEEL

E.

J.

AND

CORPORATION,

TUBE

ARI%ICO

SteEL CO_PANY,

CORPORAT.[ON,

UNITED

CONI-pANY,
STEEL

et,al.,JoNm

STATES

el: a_., REPUB-

CORPORATION,

STEEL

e_ C/_._

& LaUOaLIN
C05[PANY,
and

LAVINO & CO_IeANY,

Petitioners,
V

CHARLES

SAWYER_

Respondent.
No. 745.

CHARLES

SAWYER,

Petitioner,
V

T_E

YOUNGSTOWN

St-tEET AND

TUBE

COMPANY_

et at.,

Respondents.

BRIEF FOR PLAINTIFF

COMPANIES,
IN NO. 744 AND RESPONDENTS

PETITIONERS
IN NO. 745.

App. 1063

TABLE

OF

CONTENTS
_PAGE

Opinion

Below

Jurisdiction
Questions

......................................................................

..........................................................................

Presented

..........................................................

Constitutional

and

Status

Parties

of the

Statenmnt

Statutory

..................................

A.

Events

Before

B.

Events

After

What

of

This

ARGUMENT

the
the

3
3

:....... :.................

Seizure
Seizure

Argument
Case

....................

........................................................

of Facts

Summary

Provisions

4
'

......................................

10

....................................................

Does

Not,

Involve

15

..............................

16

POINT IMr_ Sawyer's inw_sion of plaintiffs'rights is an

arbitrary action inconsistent with, and directly
contrary to, the remedy
Congress
A.

B.

......................................................................

Congress

has

a remedy

which

There
For

expressly provided by

Was

provided

and

Disregarding

has

for

this

not been

Could

Be

precise

followed
No

_:he Remedy

1S

Valid

case
............

19

Reason

Provided

by

Congress
and Adopting
Instead
an Entirely
Inconsistent
and Unlawful
Procedure
..........

App. 1064

24

PAGE

POINTIIThe

seizure

Sawyer's
with

of

other

respect

The

action,

are

B.

Necessary

The

and

unlawful

and

that

other

and

States

Mr.

threatened

conditions

of

unconstitutional

Backgroundithe

Struggle
Against
its Cuhnination
United

properties

including

to wages

employment,
A.

plaintiffs'

..

Successful

the Crown Prerogative

and
in the Constitution
of the
........................................................

Constitution

Provides

30

No Authority

for

the Seizure
or for Mr. Sawyer's
Other
tions
........................................................................
C.

This

Seizure,

Under
cute
as
D.

the
the

The

as
Seizure

from

Executive

Laws,

The Seizure
Cannot
Be
Power

E.

Far

Enacted

Being

by

Congress

Cannot

r.

Never

the

Laws

................................

43

Other Actions
the President's

in Chief
be Justified

Legally

37

to Exe-

With

and Mr. Sawyer's

Justified
Under
Commander

Ac-

Authorized

Responsibility

is in Conflict

of an "Aggregate
of Powers"
Instances
of Past
Executive
Were

27

......................
by Any

52

Claim

or by Isolated
Action
Which

Challenged

....................

62

Mr.
Sawyer's
Action
Violates
the
Fifth
Amendment
to the Constitution
........................

67

G. Denial of the Sweeping

Executive
Claimed
Will
N,ot Leave
the
Powerless

to

Meet

an

Emergency

Power Here
Govermnent
................

App. 1065

69

iii
PAGE

POINT IIIThe

seizm'e

and

Mr.

Sawyer's

are

causing

and

will

cause

rable

injury

remedy
A.

for

at law

Money

action

plaintiffs
have

irrepa-

no

adequate

..............................................................

threatened

serious
grave

injury
injury

74

to the
is im-

..........................................

damages--assuming

covered--would
C.

the

they

The seizure
is causing
plaintiffs
and further
mediately

B.

which

threatened

they

be wholly

could

74

be re-

inadequate

............

In any event no money damages

are recoverable ..........................................................................

78

80

Po_N_ IVThe

prelhninary

sued
POINT

by

the

injunctions

District

Court

were

providently

.........................

is-

: ............

V-

This

is not a suit

against

District

Court

quested

injunctions

had

the

jurisdiction

President;

and

the

the

re-

to grant

....................................................

CONCLVSm_ ............................................................................

APPENDIX

90
97

A :

Relevani:

Provisions

Apl)licable
Relations
U.

86

S.

158(d),

of the

Constitution

................

la

Provisions
of The Labor Nanagement
Act of 1947, 61 Star
136 et seq., 29
C.

Supp.

176-180

IV,

158(a)(5),

158(b)(3),

............................................................

App. 1066

4a

iv
PAGE

The

Defense

Stat.

798, 65 Star.

2081,
The

Production

2121-23

Act,

as

Amended,

64

132, 50 U. S. C. A., Appendix,

.............................................................

Universal

Military

Training

and Service

Act,

62 Stat. 625 et seq., 50 U. S. C. A., Appendix,

tion 468 ..........................................................................
AUT_0RITIES

Cases

Sec12a

CITED

Alabama

v. United

American

States,

Federation

279 U. S. 229 (1929)

of Labor

v. Watson,

Relations
cert.

Board,

granted,

Ashwander
288

v. Tennessee

(1936)

Bell v. Hood,
Hotel

1948)
Boyce

2d

307

(5th

Valley

Cir.

1951),

................................

Authority,

v. Okely,

4 Wheat.

327 U. S. 678 '(1946)

Corp.

v. Woods,

v. United

States,

79

234 (1819)

........ 31 fn.

....................................

168 F. 2d 694 (Sth

93 F. Supp.

78
Cir.
89

866 (S. D. Iowa

..................................................................................
v. Weaver,

Britton
1872)
Brown

4 Fed.

Cas.

177

81

............................

274: (lst

States,

v. District
Cir.

1944),

8 Cranch
Court
cert.

58

(C. C. S. D. N. Y.

..................................................................................
v. United

Buscaglia
(1945)

251 U. S. 57 (]919)

v. Butler,

77

297 U. S.

..................................................................................

1950)
Bragg

F.

88

76, 78, 79
Labor

........................................................................

of Columbia

Benson

187

342 U. S. 809 (1951)

........

327 U. S.

582 (1946)
..................................................................
American
National
Insurance
Co. v. National

Bank

8a

110 (1814)

of San
denied,

Juan,
323

58 fn.

................
145
U.

58

F. 2d
S. 793

................................................................................

App. 1067

87, 89

V
PAGE

Case

of

Proclamations,

English
Case

Reprint

1352

of Prohibitions,

Reprint

1342

12

Coke's

Reports

74,

....................................................

12 Coke's

Reports

of Ship

3 Howell's
Catlin

Money

v. United
v. United

Chicago

& N. W.

1888)

Coates

63, 77 English

Cir.

States,

Dean

Milk Co. v. Madison,

Dorr

v. United
of Sanford

Ex

parte

Quirin,

v. United

Fleming
(D.

(:[947)
Fleming

Home

.............. 68, 85
............

866

58

(C. C.

88

1950)

80
88

............

69

................

70

308 U. S. 39 (1939)

2 (1866)

...... 81 fn.

..............................

40, 54,
56, 71

............ 40, 53, 57 fn., 71

123 U. S. 227 (1887)

cert.

Co.,

Cir.

340 U. S. 349 (1951)

_'[ilk Products

1947),

Telephone

501 (2d Cir. 1922)

317 U. S. 1 (1942)
States,

97 fn.

........................................

195 U. S. 138 (1904)

4 Wall.

v. Moberly
C. Cir.

35 Fed.

285 Fed.

v. Comm'r,

Milligan,

Finn

1922)

Inc.,

States,

parte

Hampden),

................ 33, 34 fn., 35

181 F. 2d 816 (8th

v. Prestonettes,

Ex

35

............................................................

(6th

v. United

33
Trials

160 U. S. 499 (1896)

Co. v. De),,

v. Louisville

949

v. John

324 U. S. 229 (1945)

Coty

Estate

King

826 '(1637)

States,
Ry.

of Louisville

279 Fed.

Trials

States,

Chappell

City

(The

State

S. D. Iowa

33

....................................................................

Case of the Seven Bishops,

12 Howell's
State
183 ......................................................................................
Case

77

....................

81 fn.

Co., 160 F. 2d 259

d'ismisse(l,

331 U.

S. 786

................................................................................
v. Page,

9 How.

603 '(1850)

94

................................

Foster

Packing

Co. v. Haydel,

F_'aser

v. Oeist,

1 F. R. D. 267 (E. D. Pa. 1940)

278 U. S. 1. (1928)

54
....

............

App. 1068

89
79

vi
PAGE

Garber

v. United

Gibbs

v. Buck,

Gilehrist

States,

46 Ct.

307 U. S. 66 (1939)

v. Collector

(1911)

......

10 Fed.

Cas.

v. N. Y. ex rel. O'Keefe,

I-Iebert

v. Louisiana

8_
89

355

................................................

Graves

Home

503

................................

of Charleston,

(C. C. D. S. C. 1808)

Hirabayashi
golzendorf

Cls.

45, 46, 95

306 U. S. 466 (1939)..

Co., 272 U. S. 312 (1926)

............

70
68

v. United
States,
320 U. S. 81 (1943) .... 48, 71
v. Hay, 20 App. D. C. 576 (1902) ............
92

Bldg.

& L. Assn.

v. Blaisdell,

290 U.

S. 398

(1934)
................................................................................
70
ttooe v. Uuited
States,
218 U. S. 322 (1910) ........ 57, 81, 82
House

v. Mayes,

Humphrey's

Executor

(1935)
Hurley

v. Grimes
v. Fox,

Packing

Cir.
Jones
1949)

40

295 U. S. 602

(1937)

Service

83, 84

........

......................................

v. Asso_ated

Press,

248
78
S.

........................................................................
Inv.

Co., 200

Fed.

48

113

(1st

..........................................................................

v. United

States,

89 F. Supp.

980

88

(S. D. Iowa

....................................................................................

Ken-Rad

Tube

Supp.
Kendall

193 (W.
v. United

Kessler

v. Eldred,

and

Lamp

D. Ky.
States,

Corp.

v.

92
91

................................................................
Co. v. United
States,
300 U.

Co. v. Gardiner
1912)

39 fn.

........................

Co., 337 U. S. 86 (1949)

S. 82 (1937)

News

U. S. 215 (1918)
Isbrandlsen-Moller

Jackson

States,

2S5 U. S. 95 (1932)

300U.

International

139

v. United

............................

................................................................................
v. Kincaid,

Hynes
Ickes

219 U. S. 270 (1911)

Badeau,

81
55

F.

1944) ........................................
64
12 Pet. 522 (1838) ................ 92, 93

206 U. S. 285

(1907)

........................

App. 1069

79

vii
PAGE

l_[ilhourn

v. Thompson,

Kimhall

Laundry

1 (1949)
Kohl

103 U. S. 1.68 (1881.) ................ 37 fn.

Co. v.

United

States,

338

U.

S.

............................................................................

v. United

States,

91 U. S. 367

(1875)

84

................

82

Land v. Dollar,
330 U. S. 731. (1947) ............................
78, 91
Langford
v. United States, 101 U. S. 341 '(1879) ............
82
Larson

v.

Domestic

337 U.
Lauterbach
Wash.

Lord

h'ifg.

5_adden

170

............... 82,83,90
479 (W. D.
81

S. 742

(1948)

(1804)

.......... 44, 45, 46, 95

73 F: Supp.

S.S. Co. v. Norton,

........ 40, 53

984 (D. D. C.

of America,
cided

Union,

79 F. Supp.

v. IGnsella,
Zpril

Marbury

28, 1952

J. B. MeCrary
Cls.

Meceano,

79

Workers

616 (D. D. C. 1948)

Term,

..............

137

States,

(1803)

54

................ 92,93

84 F. Supp.

368

................................................................

v. Maryland,
v. John

4 _qmat.

316

Wanamaker,

(1819)
253

............

U.

v. Johnson,

4 Wall.

475

(1.866)

81
70

S. 136

................................................................................

Mississippi

23

1951, de-

......................................................
1 Craneh

Co. v. United
1949)

Ltd.

(1920)

707 (E. D.

l_Tnited Mine

No. 411, October

v. Madison,

McCulloch

21 F. Supp.

92

............................................................................

v. International

Madsen

Mitchell
Mitchell

334 U.

2 Cranch

Co. v. Stimson,

Pa. 1937)

(Ct.

Corp.,

....................................................................................

Luekenbach

Munro

States,

v. Barreme,

1947)

Commerce

......................................................................

v. United

Little

Foreign

S. 682 (1949)
..............................
v. United
States,
95 F. Supp.
1951)

Lichter

and

88

................ 96, 97

v. lZiarmony,
13 How. 115 (1851)
.... 54, 55, 56, 71
v. United
States,
267 U. S. 341. (1925) ........
82
v. United

States,

303 U. S. 36

(1938)

............ Sl. fn.

App. 1070

o.

Vlll
PAGE

Murray's

Lessee,

merit

et al. v. Hoboken

Co., 18 How.

Myers

v. United

National

Labor

land

Mills,

O'Neal

272

States,

(11855) ....................................
272 U. S. 52

Relations

Inc.,

v. United

Land and Improve-

Board

v.

31 fn.

............ 39 fn.

Crompton-High-

337 U. S. 217 (1949)

States,

(1926)

........................

140 F. 2d 908 (6th

Cir.

77

1944),

cert. denied, 322 U. S. 729 (1944) ................................

53, 54
Ohio Oil Co. v. Conway,
279 U. S. 813 (1929) ............
89
Ohio

Tax

Cases,

Old ICing Coal

(S. D. Iowa
Osborne

232 U. S. 576 (1914)

Co. v. United
States,
88 F. Supp.
1949) ..........................................................

& Company

pany,

v. Missouri

147 U. S. 248 (1893)

Penello

v. International

of America,
Pewee

Philadelphia
(1912)
Pierce

88 F. Supp.

Company

United

Com-

Mine

78

Workers

935 (D. D. C. 1950)

States,
v.

8S F. Supp.

Stimson,

of Sisters,

............

223

23

426 (Ct.

U.

63, 64
S.

605

(1951)
Cases,

Cir.

91

268 U. S. 51.0 (1925)

Co. v. Puerto

189 F. 2d 39 (lst
Prize

81

................................................................................

Rico Tel.

830

Railway

124

..........................................................................

v. Society

Porto

Pacific

78

............................................

Union,

Coal Co. v. United

Cls. 1950)

............................

Rico

1951),

Comm.

cert.

....

denied,

342 U. S.

........................................................................
2 Black

635 (1862)

78

Authority,
84

................................

56, 57 fn.

Rindge
Co. v. Los Angeles,
262 U. S. 700 (1923) ........
Roof v. Conway,
133 F. 2d 819 (6th Cir. 1943) ............

58
79

Shaffer

78

Southern
Sterling

v. Carter,
Pacific

252 U. S. 37 (1920)
v. United

v. Constantin,

States,
287 U.

............................

200 U. S. 341 (1906)

S. 378

(1932)

............

App. 1071

78
54

IX
PAGE

Swift

& Co. v. Hocking

(1917)

Yalley

Terrace

v. Thompson,

Texas

Ry.

Co., 243 U. S. 281

................................................................................
263 U. S. 197 (1923)

Co. v. Central

1912)

Fuel

Co., 194 Fed.

81 fn.

................
i

(8th

Cir.

..................................................................................

Texas

& N.

Clerks,

O. R.

Peoria

Supp.

5S7

Toledo

Co.

v.

281 U. S. 548

Toledo,

and

Ill.

R.R.v.

1945)

States,

of

Railway

........................................

Western

(S. D.

v. United

Brotherhood

(1930)

79

Stover,

Truax

v. Raieh,

; United

95 F.

States

239 U. S. 33

v. Baltimore

225 U. S. 306

(1912)

U. S. v. Bethlehem

60

Supp.

838

Corp.,

v. Carmack,
v. Causby,

United

States

v. Corrick,

States

United

States

United

States

United

States

v.

(D.

P. R.

275 U.

United
408

States

Cir. 1945),
United

States

Trading

Motors

Company,
87
53

................

Corporation,

88

323

312 U. S. 203 (1941)

106 U. S. 196

grm_ted,
S. 485
1945),

dismissed
v. North

15 F.

(1882)
2d 823

273 U. S. 688 (1927),

(1927)

v. Montgomery

(N. D. Ill.

78

315 U. S. 289 (1942) ....

v. McFarland,

voked,

............................

298 U. S. 435 (1936)

v. G oltra,

cert.

81
77

........

............................................................

v. Lee,

1926),

40

329 U. S. 230 (1.946) ........ 58 fn.

328 U. S. 256 (1946) ............
82

General

(1943)

(1915)

& Ohio R.ailroad

Steel

States
States

S. 373

F.

......................................................

United
United
United

79

........................................

1951)
..................................................................................
Tower Hosiery
Mills, 81 N. L. :R. B. 658 (1949)

U.

78

84

............

................
(4th

82
90, 94

Cir.

cert.

re-

........................................
Ward

reversed,
as moot,

59

& Co., 58 F. Supp.

150 F. 2d 369

(7th

326 U. S. 690 (1945)..

American

Co., 253 U. S. 330 (1920)

Transportation
................................

57 fn.
&
58, 82

App. 1072

X
PAGE

United

States

U_fited

States

(1946)

v.

States

(1951)

States

United
United

States
States

1934),

United

denied,

United

U.

S.

34=1 U.

ex tel.

63, 64,
79, 84, 85

(1934)

Workers

................ 58 fn.

of America,

....................................................

(4th

Cir.

Virginia

19'41),

cert.

42

327 U. S. 546

Power

58 fn.

Co., 122 F. 2d

denied,

314

U.

S.

683

..................................................................................

United

States

Fed.

311
Cir.

Virginia

v. Western
(D.

1921)

Ry.

S. 515

Co.

v. _'[acy,

Walla

Walla

(1898)
Wallace

Telegraph
aft'd,

58 fn.
Co., 272

272

Fed.

v. System

Federation

No.

246 U. S. 606

v. Walla

Walla

denied,

v. Pahner

(1918)

40, 300

Water

(1944)

v. Owings,

17 How.

Williams

v. Tanning,

332 U. S. 490 (1947)

262 U. S. 522

Co. v. Court
(1923)

79
Cir.

................ 81fn.

Co., 270 U. S. 402 (1926)

47

90

Co., 172 U. S. 1

323 U. S. 712

Brothers

79

............................

Wickliffe

Pacldng

41

............................................................

................................................................................
v. United
States,
142 F. 2d 240 (2d
cert.

893

................................................................

(1937)

Waite

Union

C. N. Y. 1921),

58

623 (1871) .... 5'4, 55, 56

2d 464 (10th Cir.

T. V. A. v. Welch,

v. West

83

S. 11'4

748 (S. D. Ga. 1895)

Mine

56

372

:........................

293 U. S. 620

(1947)

....

................................................................................
States

(1941)

Wolff

(1887)

327

Co., Inc.,

70 Ted.

v. United

States

(1946)

1944),

Co.,

v. Russell,
13 Wall.
v. Threlkeld,
72 F.

States

Weaver

Coal

v. l_auers,

U. S. 258

(2d

Motor

v. Pewee

cert.

United

733

Petty

120 U. S. 227

................................................................................

United

330

R.R.,

.......................................................

United

U.

v. Pacific

(1854)

of Industrial

69

......................

78

....................

91, 92

Relations,

......................................................

App. 1073

78

xi
PAGE

Yakus
Yick

v. United

States,

Wo v. Hopkins,

Statutes,

321 U. S. 414 (].944)

118 U. S. 356 (1886)

................

89

....................

68

eto. :

Blaekstone's
Commentaries,
Book 1, Chapters
13 ........................................................................................
Cooley,

Principles

of Constitutional

Law

7 and
53 fn.

114

(1896

Ed.) ....................................................................................
95
Corwin,
Corwin,
Ed.

Libel:ty
Against
The President:
1948)

Government
(1948)
............ 30,31
Office and Powers
365 (3rd

......................................................

3 fn., 34 fn., 66

93 Cong.

Rec. 3637-3645

(1947)

........................................

22

93 Cong.

Rec.

(1947)

........................................

21

96 Cong.
98 Cong.

3835-3836

Rec.

2774-2775

Rec.

....................................................

67

4067

(April

16, 1952),

4159

(April

18,

1952),

4193, 4197

(April

21, 1952),

4287

(April

22,

1952)

..................................................................................

48 fn.

98 Cong. Rec. 4192, 4216 (April 21, 1952) ......... : ............

98 Cong. Rec. 4579 (April
28, 1952), 4617 (April
29,
1952)
98 Cong.
Davis,
Defense

48

..................................................................................

48

Rec. 4621, 4626 '(April

48

The

Early

Stuarts

Production

Act

798, 799, 65 Star.

2121-2123 :

29, 1952)

1603-1660

........................

(1937)

................

of 1.950, as amended,

64 Stat.

132; 50 U. S. C. A. App.

30

2081,

Section

201 ..........................................................

3, 47 fn., 49

Section

201(a)

............................................................

50

Section

201 (b)

............................................................

50

Section

501

..................................................................

51

Section

502

..................................................................

51

Section

503

..................................................................

51

App. 1074

xii
I:'AGE

Departruent
Dicey,

of Commerce

Law

at

p.

of the

33

[British]

140 ..............................

Constitution,

1920

74 fn.

ed.,

............................................................................

Emancipation

Proclamation

Emergency
April

Order

Powers
14, 1952)

(12

Interim

Stat.

1267,

Continuation

Act

96

1268)

....

65

(enacted

................................................................

47

English
Bill of Rights
(1 Will. & Mary Sess. 2, c. 2
(16.q8))
..............................................................................
Executive
Order :
9934

..............................................................................

26 fn.

............................................................................

26 fn.

9934a
9939

and

9959

..............................................................................

26 fn.

9964

..............................................................................

26 fn.

9987

..............................................................................

26 fn.

10106

..............................................................................

26 fn.

10340

..............................................

Federal

9970

Tort

............................................................

Claims

Act,

28 U. S. C. _2680-a
Federalist,

Nos.

Fortescue,

De

H.

36

62 Star.

47, 48, 69
Laudibus

H. R. Rep.
1947)

as amended,

Cong.

1'o. 245, 80th

80

Cong.

Angliae

1st Sess.

(1951)

1st Sess.

109 (1927)

1st Sess.

37,52

....................

32

............

.... 37 fn.

............................................................................
No. 510, 80th

Cong.

1st Sess.

No. 2759, 81st Cong.

Management

29 U.

S.

Relations

C. _176-180

2d Sess.

43

22

(June

4 (1950)

3,
22

............ 51 fn.

Act of 1947, 61 Star.

............................

59

5, 21 (April

..................................................................................

H. Rep.
Labor

982,

..............................................

Lebmn

H. R. Doc. No. 398, 69th Cong.

11, 1947)

8, 9, 26, 27, 39, 48, 59, 75

........................................................

R. Doe. No. 1, 82nd

H. R. Rep.

26 fn.

136,

3, 19, 22, 25,46,

47

Section

101

..................................................................

Section

202 ....................................................................

19

Section

206 ....................................................................

3, 19

App. 1075

Xlll
PAGE

Section

207 ....................................................................

Section

208 ....................................................................

Section

209

Section

210 ....................................................................

Lowenstein,

Magna

German

Treaties,

etc. of the United

Defense

S.ctlon
Sectioli
Opinion

Act

General

Railroad

Telegraph

and

c. 45, 12 Stat.
and
Board,

Roetter:

69 fn.

12 Fed.

vol. 2, p. 506
120,

1947

of

Reg.

3!) Star.
47 fn.

War

............. :..........

Seizure

Act

31, 1862)

Law,

Wage

[1945]

and Service
(September

No. 105, 80th

The

Cong.,

Constitution,

1268)

Proclamation

46 fn.

o[" l_b_,_
66

Stabiliza-

Wisc.

7 fn.

L. Rev.
69 fn.

Act of 1940, c. 720,

16, 1940) .................... 47 _:n.
1st Sess.

.51492,

1562

15 (1947)..20,
(Cooley's

......................................................................

Supplemental

77

................ 47 fn.,

l_r, p. 47 ....................................

of Nazi

22
22

Labor

1 ................................

of the

65

amendment

the

(1944)

Lines

Appendix

31

......................................................................................

Rep.

Stat.

the

2578

Recommendations

Selective
Training
9, 54 Star. 892

1873)

c. ]34,

by

334 (January

Impact

States,

Counsel

15 ]5. R. R.. _'[an.

2714,

Story,

............................

................................................
Act:

added

Proclamation

Sen.

of 1916,

3, 19].6)
Relations

iS(b)(3),
S(d)

of the

Board,

516

(1937)

3, 20

1933-1937,

39 ....................................................................

213-214
(June
National
Labor

tion

537

3, 20, 25

Carta:

National

Report

Constitution,

of Chi. L. Rev.

Chapter
Miller,

3, 19

..............................................................

The

4 Univ.

3, 19

.of January

22, 42

Ed.
39 fn., 53 fn.

1, 1863

........................................................................

(12
65

App. 1076

XiV
PAGE

Taft,

Our

Chief

(1916)

Magistrate

and

His

Powers,

139-140

................................................................................

Transportation

System

1, 39 Stat.

645

Control

(August

Act

29, 1916)

41

of 1916,

c. 418,

............................

47 fn.

Trevelyan,
England
Under
the Stuarts
(17th
1938) ..................................................................................

Ed.

Tucker

886,

on

the

Constitution,

ol.

2, pp.

30

716-17,

seq .................................................................................
Universal
Stat.

Military

Training

and

36 fn., 54

Service

Act,

625; 50 U. S. C. A. App. 468:

Section
18 ........................................................

62

3, 47 fn., 49

28 U. S. C. 1254(1)

............................................................

28 U. S. C. 1346-b

..............................................................

80 fn.

................................................................

80 fn.

28 U. S. C. 2680-a

U. S. Constitution:
Article

I ........................................................................

Section

1 ....................................................................

Section

Article

II

3
37

............................................................

37, 40, 53

..................................................................

3, 38, 39

Amendment

IV

Amendment

V ....................................................

Amendment

IX

............................................................

3, 40

Amendment

X ..............................................................

3, 40

War

Labor

Stat.
Whyte,

Disputes

164-166

Webnar

............................................................

(June

Constitution
The War

L. Rev.

Powers

Act

of 1943,

25, 1943)

c. 14_,

....................

in Germany,

Article

of the President,

3
3, 31 fn., 67

3-6,

57

46, 47 fn., 57 fn.

48 ............ 69 fn.
[1943]

Wis.

205, 210 ..............................................................

App. 1077

37, 66

IN

THE

lh premegourtof thethtileil @tares

OCTOBER

TEal,I,

1951

No. 744.

THE

YOUNGSTOWN
LIC

STEEL

SHEET

BETHLEHEm[
STEEL

E.

AND

CORPORATION,
STEEL

C0I_IPANY,

COR.PORAT[O_,

J. LA_NO

TUBE

_.StRh[CO

U/'TITED

COI_[2ANY,
STEEL
e_

at.,

STATES

al.,

et

REPUB-

CORPORATION,
JONES
STEEL

&

et,

al.,

LhUOHLIN

and

COhIPANY,

& CO_PANY,
Petitioners,
V

C T_ARLES

SAWYER_

Respondent.

No. 745.

CHARLES

SAWYER_

Petitioner,
V

THE

YOUNGSTOWN

SHEET

AND

TUBE

COMPANY,

et

al.,

Respondents.

BRIEF

FOR

IN NO.

PLAINTIFF
744

AND

COMPANIES,

RESPONDENTS

Opinion
The opinion
officially

of the District

PETITIONERS
IN NO.

745.

Below
Court

(R. 66) has not yet been

reported.

App. 1078

Jurisdiction
The

jud_nents

inary

of

injunctions

the

District

in favor

Court,

granting

of the plaintiffs,*

were

prelhnentered

on

April
30, 1952 (R. 76).
On the same day the defendant
Sawyer*
docketed
an appeal in tim Court of Appeals
(R. 77,
442).

The

Court

peal.

Both

of Appeals

sides

on May

has

not

acted

upon

2, 1952 petitioned

that

for

ap-

certiorari,

plaintiffs'
petition
being No. 744 and Mr. Sawyer's
petition
being No. 745. Both petitions
were granted
on May 3, 1952.
Jurisdiction

of this

Court

is invoked

under

28 U. S. C. A.,

. 1254(1).
Questions
Tile questions
by the District
1.
the

Whether
of

_'[r.

wage

and

Whether

Whether

lacking

any

ble relief
by the
To
spondent"
"Mr.

and

an

adequate

right

to seize

to retain

incident

by executive

"inherent

seizure

pos-

of

that

fiat,

new

emergency"

when

under

property

Congress

has

excluding

seiz-

emergency."

faced
remedy

power"

of private

remedy--specifically

in the form

prevent

as

has

a "national

plaintiffs,

District

lawful

resolved

of emplo3unent.

Executive

such

correctly

8, 1952,

and,

of a "national

just

any

April

to authorize

a different

ure-for

were

on plaintiffs,

terms
the

on the claim
provided

had
on

properties

Constitution

3.

Sawyer

to impose

scales

2.

which

properties
those

possession,

the

presented,
Court, are:

plaintiffs'

session

Presented

with

irreparable

at law, are

of the preliminary

injury

entitled

and

to equita-

injunctions

issued

Court.
confusion,

shall

refer

we
to

shall
the

avoid
parties

the

terms

respectively

"petitioner"
as

and

"plaintiffs"

Sawyer".

App. 1079

"reand

Constitutional
The

relevant

and

constitutional

II, and Amendments

Constitution.
of 1947,

158(b)3,

Prod.uctio.n.

statutory

provisions

Stat.

29

U.

S.

Titles

II

136,

2081,

s(d

a.nd Service

Training
468.

They

Status
_kll the

plaintiffs

steel companies
seized
Order

158(a)(5),

64 Star.
62

Defe,nse

798, 65 Star.

and

Act,
set forth

E.

plants,

J.

LavinG

The

Univer-

Stat.

625,

50

in Appendix

A.

facilities

& Company

are

and properties

were

by Mr. Sawyer
on April
8, 1952 under
Executive
10340 (R. 6) and Mr. Sawyer's
Order No. 1 (R. 22).

LavinG manufactures
refractories
is not engaged
in the manufacture
(R. 192).
theless

Sections
Relatio_s

V of the

2121-2123;
are

I and
States

of the Parties

except

whose

C. A.

and

of 195o, as amended,

U. S. C. A. App.

are

Management

]32, 50 U. S. C. A. App.
Military

Articles

Labor

176-180;

Act

are

X of the United

210 of the

61

15S(d),

Provisions

provisions

IV, V, IX and

Relevant

101, 206 through

Act

Statutory

Its

plants,

included

facilities

in the

and

and

seizure

ferro manganese
and
or fabrication
of steel

properties

orders

were

never-

(R. 11, 26).

All of the plaintiffs

in the District
Court

(including
LavinG)
brought
for declaratory
judgment
and

actions
injunc-

tion.

not been

in this

The

cases

have

formally

consolidated

Court, but as they all present

the same basic questions
they
are being hgard together
upon one printed
record;
and this
brief

is filed

* In
in

the

its
those

case

District

affidavits
For

the

on behalf

of

example,
labor
of

of

plaintiff

Court
its

vice
it

were

steel

Lavin%
pleaded

presidents,

is

not

industry;

further
in

Andrew

engaged

classifications
the

of all plaintiffs.*

and

in
their

it

was

its
Leith

the

for

and

and

George

manufacture

content
not

grounds

complaint

are

a party

B.
or

the
Gold

the

(R.

sought
in

220).

of

steel;

different

controversy

the

192,

fabrication

substantially
to

relief

established

from

before

App. 1080

the

Statement
The

true

appears
dispute
on

nature

of Mr.

clearly
which

April

upon
led

of Facts

Sawyer's

a review

to his seizure

8, 1952,

and

action

of the

here

challenged

background

of the plaintiffs'

of the

events

which

of the
properties

have

occurred

had

collective

since.
A.
Plaintiffs,

C.I.0.
that

than

to January

days

open

negotiation

for

apparent
to be

Wage
the

of

the

District

those
in

this

brief,
See

Company
Plaintiff
there

are

but

davit

other

forth

of

but

it did

right

to

to

Ex. A
with

factual

did
ask

to

differefices

them

in

its

it

Because,

its

to
744,

special

United

the

of

consider

opinion

(R.

67).

and

joins

situation.
States

c,f Mr.
L,hrentz
on a different

and

how-

judgment

No.

own

plaintiff

affidavit
expired

is-

of the

occasion
in

further

between

five years,

and

have

was

be many

200-202).

certiorari

between

to moving
the Union

conditions

contract

decision

not

refer

develop

negotiutions

Union,
contract

the

prior

president

(1_. 192-198,

Conrt

and

would

the

"not

days

in almost

there

which

plaintiffs

its

time

meet

sixty

entire

ex-

other

Steel

(R.
date;

92).
and

plaintiffs

(cf.

footnote).

Companies
of

(R.

59),

since

it

All

other

agreements

should

file terms

that

upon
that

detail,

the

chronology

so

based,

reserves

"_ Report
and
Matter
of United
Ore

and

Those

as the

first

of

which

than

Although

grounds
in

with

and the
Lavino's

preceding

for the

were

grounds

joined

more

Inasnmc]l

Board;

Steelworkers

Union"),

the Union

to negotiate

all-inclusive

further

Lavino

not

negotiated.**

.Court

United
"the

(R. 81, 95).

at the outset

Stabilization

ever,

companies,

the

and

and

1, 1952"
agreement.

Seizure*

caned

31, 1951

of a new

sues

with

the Company

fllirty

the

steel

(hereafter

on December

provided

it was

other

agreements

America,

less

Be]ore

like most

bargaining
pired

Events

page

Recommendations
Steel
Workers
(Case

Harry
and

No.

Weiss,
was

as

references

to

D-18-C),

Executive

omitted

is. available

of

in

p.

5.

This

Director
the

a separate
the

of the Wage
America-CIO

Report

printed

Report

of

the

record

printed
_xe

Stabilization
and Various

Wage
to

the

is Appendix
Wage

by

IV

to

Stabilizat;ion

stipulation

Stabilization
Wage

Board
in the
Steel
and
Iron

Stabilization

(R.
Board

affi-

Board
61_

451)

document.
Board

App. 1081

print.

Union

on November

request

for

delayed

submitting

(R. 92).

the

mitted

'of negotiations

it_ demands
time

steel

As

from

the

separate

general

counsel

explained

a panel

' established

(R.

Wage

twenty-two

proposals

encompassed

proposals"

(R.

Subsequent

plaintiffs

and

the

a'n agredment
intervened

92).

Union

and

On that

day,

_o n_ore

As

the

Union's

hearings

before

StabilizationB0ard,
"literally

President

directed

between

in progress

22, 1951,

(R.: 92-93.).

the:

100-contract,

conferences

on De'cember.

the

demands

92).

did not result

in tim dispute

The full
not stii)'-

Union'spr_)posals

at tim subsequent
the

twenty-

however,..uhtil'De:
the

general

items

by

27; .1951

'some

terrns
(R. 92).
demands.were

date,

twenty-two

a hundred

the Union

-November.

enumerated

companies,

of that

a routine

(R..95),

until

the Union

of the

10, 1951.

grown

than

to the plaintiffs

in broad and general

details
of the Union's

to any

cember
had

opening

At that

two demands
and complex

1, 1951,sent

tlie

toward

tl_e' Oovernnient

'

the WageStabi]iT,

a-

tion Board to investigate

and inquire
into the issues in dispute and promptly
to report
to: lfim its redommendations
as
to fair
was

and

equitable

a procedure

not pursued

devised

under

any

procedures.
the steel

At the
companies

work

production

and

terms

by the

same
and

panies
." _
with

The
labor

Wage

schedules

of the Defense
stabilization.

He

while
cited

the

Board

The

Board's

Production

Act.

This

ad hoc*;
statutory

itwas
or other

of

matter
the

and

the

was

reasons

steel

for

com-

there

no

statutory

autliority_'forz

stotutoryauthorit:?

ifi under

Title'lT

problems
'
"

of wage
'" :

1950.
"

which
relates
_ '
" _.....

appears

be-

and
has

only

the

among

Union

at an ira,passe

Stabilization

disputes.

81).

time the President'

called upon
the Union
to maintain
normal

between

are

(R.

President

of the established

fore the Board

(R.. 93).
his action the fact that:
"Negotiations

of settlement

to
'

to be no
dealing

App. 1082

hope

of settlement

means

is found

of the

steel

through

for

mediation.

Unless

breaking

this

impasse

at

end

of this

industry

the

some

a shutdown
month

is in

prospect.""
There

is no

doubt

for the purpose

statutory
which

The

Board

on

steel

panel,

of the

pubhc,

the

and

argmnents
as

the

public

a labor

action

dispute

procedures
would
imperil

January
industry,

Board

in New

mitted

was

and

taken

that

he was

designed
to
the national

prevent
health

in

York

(R. 61, 93).

On March

sideration

of the

the

reaching

The

January
1-16,

positions

to continue

panel

held

10-12,

1952,

and

sub-

the issues

again

and production
panel

there-

of the

15, 1952, the Board

of the

evidence

1952,

13, 1952, outlining

the

work

report

parties

the
reports

parties

requested

to permit

(R.

negotiations

con-

61),

and

again

with

a view

to

a settlement

" * * * and
panies

with

and

production
tory

the

the
and

agreement

has

to strike

written

notice

and
Report

of
omitted
and

the

understanding

steelworkers
that

intends

* Statement
a_davit

on

each

such

93).

on February
March

to continue

asked

(R.

summarizing

the parties

a tripartite

to hear

make

Washington

dated

and

labor,

and

direct

City

appointed

of two representatives
and

might

a report

in dispute

3, 1952,

consisting

in the dispute

hearings

and

President's

safety.

special

on

the

of setthng

not following
work stoppages
and

that

that
will

if by April
not

reached

President,

Recommendations

dated
record
of

60,

the

Wage

and

satisfacthe

_nion

96 hours

prior

(R. 94).**

December
(R.

com-

work

and

it will give

to the companies"

in printed

continue

4 a mutually

been

thereafter

the steel

22,

1951,

annexed

to

Weiss

61).
Stabilization

Board,

p. 45.

App. 1083

The

Board

on March
no

submitted

binding

agreed

authority

report

a general

(R.

increase

1, 1952,

a further

effective

July

1, 1952,

and

effective

January

anlounts

(_.

The

94).
As

the

As

The

of

affidavit

of

plaintiff

recommended
would

increase
and

tiffs

disclose

Republic

Report

its
the

and

per

hour

of 21/2
increases

be

were
met

3ohn

A.

when

direct
same

applied

would

1953.
situation.

increased

by

in
filed

Thus,
at

least

it would
(R. 164).

Recommendations

costs

of

be

the

the
$6

per

increased

Wage

members

of

effort

was
to

not

acceptable

to

members

of

of

(R.

the

Industrial

99)

states

employees
by

the

industry
President

the

Affidavits

accepted
part

be acceptable

were

all

94).

reflect
a conscious
terms of settlement

Company

to

employment

in

pronlptly

No similar

Vice

Steel

(R.

industry

accept.

Stephens,

include

in substantial

out by the

States

parties

contracts

of the Board

steel
products
shipped
by
or many
millions
of dollars
_

recomeffective

other

the

new

that the terms

involved."'*

United

$141,000,000
would

that

as a whole
to recommend

pointed

increases,

1952,

with

dissenting

would

recommendations
plaintiffs.

"

together

They
the

Union

made to assure
the companies

tions

increase

in their

" The reconunendations

and admitted
effort

the

of 2

recommended

(R.

Union
demands.
the Board
stated:

The

Board

increase

reconlmendations

Union

which

The

never

which in all would impose

on plaintiffs,
additional
employment
costs in enormous

provision

Board's

the

164).

had

an additional

1, 1953,

also

shop

The
by

parties

94, 164).*

Board

a union

the

had

of 121/'2 per hour

as of January

in fringe
benefits
if put into effect,

recommendations

recommendations

and

by them
wage

and

These

in law;

to be bound

mended

its

20, 1952 (R. 81, 94).

sum
officials

of
of
of

employment
ton.

and
by

at

Stabilization

that

least

the

company,

$100,400,000
the

other

costs,
the

Relathat

average
$12

Board,

in
plain-

alonc_

of

cost
per

p.

of
ton,

28.

App. 1084

the

Board,

effect,

they

were

contrary

did not
eral

make

issues

They

to

existing

clear

of

would

excessive

and

great

in amount,

stabilization

positive

to

staggering

in

regulations_

recommendations

importance

hnpose

inflationary

the

on sev-

steel

increases

and

companies.

in costs

upon

the

plaintiffs
which
they
could
not absorb
the financial
stability
of their businesses

without
risk
to
(R. 107-110, 125,

131, 132,

importantly,

union

141,

shop

ployment

164).

I_[oreover,

recommendation

relationships

and

very

involved

a question

of fundamental

96-hour

failed to reach agreement

4, 1952 the Union gave

notice

(1_. 94)_
On the

of a strike

evening

States

issued

Order

directed

Executive

8, the

at 12:01
President

Order

.the Secretary

and

10340

(R.

of Commerce

em-

to the

mediation,

(R. 15, 142).

the previously

call,.effective

of April

of

significance

managements
of all t-he companies.
After
an intensive
period
of negotiation
the parties
: On April

the

agreed

a.m., April
of the
6,

United

94).

(h'[r.

This

Sawyer)

forthwith
to take possession
of such of the plants,
facilities
and other properties
of more
than. 80 named
comPanies
including
the plaintiffs,
the interest
of national
"to

operate

or to arrange

to _lo all things

eration."
The

sion

for

necessary

Order

Secretary

-scribe
which

should
and

deem

necessary

the Operation

thereof

for,

or incident

in

and

to, such

op-

(I_. 7)

Executive

"The

as he
defense,

of Commerce

terms

and

the plants,
of which

also provided
shall

conditions
facilities

is taken

(paragraph

of

and other

pursuant

determine

3, R. 8) :
and

pre-

employment

under

properties

posses-

to this

order

shall

operated."

App. 1085

be

The Executive Order stated that the seizure was made

"by virtue
tution

or' the authority

and laws _ of tile United

' of the

United

armed

forces

Likewise
with
sued
that

vested

States

and

evening

lne

States,
States

of April

and

of all but

a few

Executive
Order.
Mr.
the properties
seized
"shall

include

personal

but not

property,

assets

used

of such

simultaneousl),

plants,

Over protest,
-seized
company
States"

and

Mr.
as.

directed

ject to his supervision

tions and orders
(g.

".In
specifically
claims
on

their

argument

in

disclaimed
any
the Constitution

and

sale

and

coal

listed

recited

to any
rights,

in connection

facilities

railroads

order

be limited

and

Mr. Sawyer
isas of midnight

companies

franchises,

or useful

the distribution
excluding

Sawyer's

(R.

metal

22)

and

all real
and

with

other

in the

funds
the

and
other

and

thereof

mines

that

operation

properties

of the products
and

of tile

* * * " (R. 7).

8 and

of the

as President

in Chief

the isstlance
of the Executive
Order,
his Order
No. l, taking
possession,
night,

tile Consti-

by

Commander

of the United

on the

in

in

* * *"

(R.. 22).

Sawyer
named
the presiclent
of each
Operating
_{anager
for the United
them
and
22).

the

District

statutory
alone.

to operate

their

in accordance
.
'.

Court
authority

(R.
for

371)
the

companies
with

counsel
seizure,

sub-

hi s regula-

:for
and

Mr.

Sawyer

rested

App. 1086

their

10

B.

Immediately
tiffs

Events

after

Mr.

Republic

Sawyer

in the

for the District

of Columbia

ing the seizure

illegal,

On

April

Those
Judge

posed,

urging

ment

had "power

emergency
the

that

the

255),

an adequate

from

bench

damage

"True,
taken

that

the

denied

the

moqnent

Judge

supersede

seems
cient

to the

its

Court

to constitute

tl_ese

that

possibilities

orders,
renewed

if

they
a_d

in other

these

a showing
arise,
are

quotations

restrain-

of

the

in times

to achieve

were

legal,
Judge
upon

had

not

and

that

Holtzoff

the

ground

shown

irrepa-

added,

however,

drastic
steps may be
management
or which

over

labor

relations.

possibilities

are

of irreparable

It

not suffi-

damage.
for

and

well-fou._ded,

(R.

265)

throughout

Govern-

of national

at law.

applications

proper

considered."

hold-

appropriate

goltzoff

control

judgments

(R. 1, 154, 116).

applications

plaintiffs

(R. 263).

Court

temporary

seizures
remedy

suits*

brought
on the same
for Mr. Sawyer
op-

the country
seem

plain-

filed
District

Branch

plaintiff's
fear that other
which would
displace
the

would

and

for

were
Counsel

means

had

rable

States

Executive

(R.

the

United

applied

to protect

as of that

Bethlehem

for declaratory

they

plaintiffs
that

of the seizure,

and

applications
Holtzoff.

by whatever

end"

Seizure

and for injunctions

9, 1952,

ing orders.
day before

the

the announcement

Youngstown,

against

.4]ter

restraining
n_;y

(Emphasis
this hrief

If
be

here
has

been

supplied)

* Republic, Youngstown,
and later United
States Steel, each brought
two
identical
suits against
Mr. Sawyer, one with a summons calling for a 60-day
answer under Rule 12(a),
and the other with a summons calling for a 20-day
answer under the same rule.

App. 1087

11
Following
ceeded

Judge

to make

indicated
--to

consent

funds

announcements,

if

caused irreparable
damage.*
Some of the earher
of these
in the

moving

repeated

affidavits

ahnost

down

on the afternoon
Thus

on "Monday
he would

the

terms

panies

be

except
over

by

and

the

that

no

such

few

of

approximately

reach

Director

as

would

for

if they
continue

by
Stephens

Republic
for

to
him

impair

establish,

affidavit
]59,

and

163)

(i.e.,
of an

increased
of

the"

Office

the

of

to

bargaining

issue

at

U.

could
labor

S. Steel

; Watson

Jones
& Laughlin
(R. 123, 130).

(R.

not

reestablish

relations,

of

(R.

99)

affidavit
140);

; Magee
for

McMath

but
the

to
that

issues
Union

plaintiffs;

existing
and
(R.

and

would
be
he might
wage

scale

strikes.

See,

Schlendorf

Bromley

of

the

they
which

Youngstown
and

all

the

strife
and

the

possible

a time,

from

the

turmoil,

not

in

compensation

concessions
positions

only

that

of
the

be

com-

announced

constituted

settlement

corresponding

the

Stabilization;

dispute;

increase

not

of

publicly

it was

one

On
costs

could

Price

wages

affidavits

upon
were

upon

103)

products

labor

settling

action

production

had

the

21 or

increases
the

that

April
(R.

regain
possession
of their
properties
any
increased
rate
of compensation

strained
for

that

wage

in

by

Sawyer
the

publicly

announced

prices

depended

obtaining

should
to pay

without
(R.

making

agreement
Mr.

were

Sawyer

granted;

officials

if

permanently

be

involved

bargaining
so that

without

permitted

affidavit
Bethlehem

the

detailed
acted

Stabilization

issues

over-all

collective

employees

altered
e.g.,

10{)

have

this Court

that

by

Price

would

are

Others

threatened

selling

of

(R.

would

employment".

authorized

Office

effect

when

week."

disclosed
the

in the

increase
of

of

Court

prices
the

opinion

that
even
forced
to
be

price

"package",

the
he

of

a satisfactory

successful

of next

from

into
out,

"consideration

increase

above

that

exporienced

the

anticipated

and

May 3.

conditions

before

might

103).

the conl-

by appropriating

carried

18, Mr.

undertake

and

Affidavits
recovered

April

or Tuesday

22)

which

(R..

re-

in terms

changes

to the moment

labor

upon

announcements

of Saturday,

on Friday,

fit, and

ttoltzoff

of

changes

those

which

Judge

control

he saw

to put

pro-

occasions,
of

whatever

of emplo)_nent

These

words

Sawyer

to do this by imposing

their

companies'

103).

the

[Inanagenlent's]

lie proposed
without

conditions
the

its

Mr.

on several

intention--in

"supersede

panies

decision,

announcenlents,

his

lations",

tIoltzoff's

affidavits
16)

; Elliot

affidavits

for

App. 1088

12
Sunday,

April

"there

will

20,

he

publicly

certainly

be

stated

some

categorically

wage

increases

that
granted"

(R. 103).
On April
Sawyer
before

22 press

reports

had indicated
the Government

workers

in the

seized

threats,
the three
Bethlehem)
which
the

applications

on motions
They

joined
Ulfited

had

in the

meanwhile

tory

judgment

two

though

its formal

was

for

Pine

wages

that

repeated

Mr.

'(like

Sawyer

and

Laugh-

each

actions

briefed

of which

for

and

24, and

declara-

those

to oust

Mr.

limited

al-

plaintiffs)

Sawyer
froin

final

25)

Steel,

from

its prayer

restrained

pending

argued

April

States

of the other

argument
be

were

Friday,

United

injunction

conditions

13, 166, 128).

(Jones

shnilar

brought

(t. 134, 143, 144, 153, 80, 88,

April

on the

(R.

Lavino),

280-427).

motion

or working

and

extensively

(R.

of its plants,

a request

these

orders

plaintiffs

Steel

brought

a preliminary

control

with

injunctions

(Thursday,

Judge

of Mr.

be another
day or two
a pay raise
for the

restraining

injunction

were

before

"associates"

Faced

temporary

States

and

days

mills".

by the other

lin, Armco,

for

"it may
announces

preliminary

167, 184).
These motions

that

plaintiffs
(Youngstown,
Republic
and
had appeared
before
Judge
Holtzoff
on

for

for

were

that

stated

to

changing

hearing

(R. 67).

But it coupled
this prayer
with a proposal
for "trial
on
the merits
of this case immediately"
in contrast
to Mr.
Sawyer's

counsel's

At the argument
yer

declined
was

before

to give any

act to change
case

opposition

wages

sz_.b judice

to early

trial

Pine,

counsel

Judge
assurance

or working
(R.

365-366).

that

(R. 411).
for ]_[r. Saw-

his client

conditions
Judge

even
Pine

would

not

while

the

thereupon

proceeded
to work on his opinion,
which was delivered
the late afternoon
on Tuesday,
April 29 (R.. 66).

App. 1089

on

13
He

held

that

the

thority

of

law,

that

the plaintiffs,

and

stored

to the

States

Steel

seizures

were

irreparable
that

plaintiffs

illegal

and

damage

would

possession

should

(R. 73-76).

With

CompaJ_y's

more

limited

without

au-

result

therefore
regard

prayer,

to

be reto United

he said

that

he

"could

not

would

consistently

contemplate

defendant's

acts,

expressed

issue

such

u possible
in view

* *

an injunction

basis

of my

for

which

the validity

opinion

of

hereinabove

" (1_. 76)

He added"If the United

its verbal

Company

and

wishes

proceed

leave

will be granted

same

injunction

issued

the

to withdraw

on the

motion,

plaintiffs."
This

Steel

amendment

original
and

States

for

basis
that

of its

puri_ose,

to it as to the

other

(R. 76)

was

accordingly

done

(R. 115, 439).

Immediately
upon the announcement
of Judge Pine's
decision,
the Union
issued
a strike
call and its members
started

to leave

the

was

complete.

stoppage
On April
and
they
fective
this

appeal

until
Mr.

Court.

Pine

(R. 77-78).
on

by the

By

the

same

narrow
this
The

a stay

When

this

day

acted

counsel

Court

(April

of the
was

to the

Court

stated

of Appeals

same 5 to 4 vote,
by the plaintiffs

(R. 79),

of Appeals,
a stay

for

they

that
petition

the Court
to insert

ef-

certiorari

would

provided
if such

the

of appeal

denied

on a petition
had

30)

injunctions

of 5 to 4, granted

would continue
beyond
]_ay 2 only
filed on that day (R. 442, 444).
On May 1, by the
denied an application

day

filed notice

for

margin

Court

Sawyer's

the next

for h'[r. Sawyer

to Judge

applied

which,
wlfich

30, counsel

applied

pending

mills.

file in
its

stay
were

of Appeals
a condition

App. 1090

14
in the stay desiguedto prevent Mr. Sawyer from unilaterally altering terms andconditionsof employmentpending
disposition of Mr. Sawyer's contemplated petition for
certiorari (R. '444, 446).
On Friday,
certiorari
day

May

Mr.

upon

to alter

Plaintiffs

by

wages

a condition

at a settlement

morning
order

changes
into

5],

with

impose
any
ment without
Beginning
over

the

Mr.

would

Sawyer

leave

at any

him

moment.

granted

this

from

happening.

May

3, 1952, the President

companies

and

labor
be

it should

the

Union

con-

did

controversy,

prepared

on

as we can

and

conditions

3, this

Court

No. 745, set the

issued
the

for

conditions

will

of May

No. 744 and

12, and

filed by the

of the injunction

get

Monday
ready,

to

of employment

effect."

On the afternoon

decision

to

were

or as soon

in terms

brief

which

of their

government
[May

to be put

May

steel

filed

party

stay

of Saturday,

if the

" * * * the

in both

working

if any

each

Counsel
stay

for
same

(Docket

as to a stay

Court.

to prevent

that,

arrive

and

that

On the morning
not

this

which

Court
on the

certiorari

in an amicus

raised

an unconditional

urged

declared

and

was

for

reply

this

afterwards

petitioned

of the other,

decision

insisted

petitioned
Soon

in the

the question

pending

tain

likewise

petitions,

the petition

free

No. 744).

Sawyer

No. 745).
In both
Union,

2, plaintiffs

(Docket

a stay

of the

direction

that

granted

case

for

certiorari
argument

injunction
Mr.

Sawyer

on

pending

its

should

not

changes
in terms
and conditions
of employthe consent
of the Union and the companies.
on Friday

week-end,

to work;

and

as this

returned

approximately

afternoon,

the

Union's

brief

May

2, and

members

started

is written,

steel

continuing
to return

production

to normal.

App. 1091

has

15

Summary
This

is not a case

Executive

Branch

and
no

action
by

taken

executive

remedy
The

action,
and

pletely

purpose

fiat,

the

including

with,

common
They

where

a labor

and

it is
dispute

contrary
to meet

properties

and

his threatened

authority

in its

sudden

contrary,

settling

conditions,

States.

--either

the

the

to, the

just

such a

pp. 18-26).

working

founded.

in a situation

by Congress

of plaintiffs'

United

that

to meet

On

of

inconsistent
provided

without

of the

emergency

for

the

can be made

to act

is available.

(infra,

wages

of

national

seizure

other

the claim

remedy

expressly

situation

where

is compelled

unanticipated
statutory

of Argument

law

under

the

are

upon

which

Sawyer's
changes

unlawful

and

Constitution

contrary

are not warranted

terms

unilateral
are

They

Mr.

and

to the

the

laws

traditions

Constitution

was

by the Constitution

or as construed

from

in
com-

the

itself,

beginning

of the Republic
until now. They cannot be justified
either
on the theory
of executive
responsibility
to "take Care that
the Laws be faithfully
executed,"
or under
the President's
power as Conmmnder
in Chief,
ent powers"
(infra, pp. 27-73).
The
spect

seizure,
to

caused

and
will

which

there

money

damages

The
the

against

preliminary
Mr.

are

and

the
in the

final hearing

working

remedy

injunctions
seizure,

are

or

at

against
terms
(infra,

any

and

law

have

and

for

for
which

pp. 74-86).

providently
very
unilateral

conditions

re-

injury

entitled

the

with

conditions,

(infra,

were

Plaintiffs

at

of "inher-

action

irreparable

not recoverable

Court.

theory

threatened

plaintiffs

is no adequate

injunction

Sawyer

pending

wages
cause

preliminary

District

relief

Mr. Sawyer's

changing
and

or on any

issued
to

by

injunctive

minhnum,

to a

changes

by

of employ_nent

pp. 86-89).

App. 1092

16
This is not a suit against the President; and the District
Court bad jurisdiction to grant the requestedinjunctions
(infra, pp. 90-97).
What
This

case

This

does

Case

not

Does

involve

Not

the

Involve

question

whether

the

nation,
or our troops
in Korea,
need uninterrupted
steel
production.
Obviously
they do. Counsel
for Mr. Sawyer,
in the affidavits
submitted
in opposition
below, and in the
petition

for certiorari

of the nation
origin;

in No. 745, emphasized

in this

nor

has

for assuring

respect.

Congress

continued

so requires.

Those

been

effective

ure.

Those

at any
means

even

and would
and effective

it should

time

at the

in any

the

the statutory

processes
Sawyer's
Congress

of

labor

seizure

as

a means

complflsory
Sawyer
conditions
Plaintiffs
of the
ture
desire

seeks

uninterrupted

depends
that

upon

would

moment
would

was

production

have

been

ignored;

true

intention

made.

have

of the

seiz-

have

been

They

are

for

and

under

as well

as

the

of steel.

it. Plaintiffs,

like _ir.

should

in this fact
plaintiffs'

occur

arbi-

excluded

disputes;

yet

is what

l_ir.

terms

and

new
plaintiffs.

Sawyer

production

no interruption

and

of seizure

all

Mr.

But

those

by imposing

upon

of steel.

expressly

with

force

to achieve

why

for compulsory

has

dealing

is no reason

in seizing

has not provided

of employment
know

and

the

disputes,

arbitration

now

safety

may be, tbere

is found
tration

means

and

seizure

decision
affect

properties.

lawful

be effective
now.
They
will still be
when this Court hands down its deci-

way

Mr.

to the

needs

not of recent

the national

available

available

time

that

where

down

are

to provide

were

were

available
available

Whatever

failed

the vital

needs

production
means

effective

sion.

Those

the

importance

Indeed

their

Sawyer,
in their

fu-

earnestly
operations.

App. 1093

17
They

have

no intention

of discontinuing

operations.

They

stand ready today, as throughout

the period
of their negotiations
with the Union,
to bal:ga[n
collectively
with the
Union
Nor

in the manner
does

this

prescribed

case

will not be concerned

tions

of the Wage

by law.

inv01ve--and

we believe

this

withithe

merits

of the

Stabilization

Board,

or the merits

Court

reconunendaof the

respective
positions
of either
the companies
or the
The issue, in brief, is not whether
steel production
be continued,

or how an interruption

Should

Union.
must

be avoided.

It

is not whether
the Union is or is not entitled
to more wages,
or the companies
to higher prices.
The sole issue which is
before

this Court--and

the companies
seize
-own

private
settlement

and

which
the Unioniis

property,
of

If arbitrary
today,

wage

decrease,

equally
all

lawful

citizens--not

executive
then

or longer
tomorrow;
of these

by

and

to force
executive

hours,
plaintiffs

may

fiat

his

to con-

of what

that

a wage

increase

is

action

to force

or anything
the

Sawyer

proceed

out his views

action

and

Mr.

between

administrative

dispute,

to carry

arbitrary

all issues

whether

hnpose

a labor

fiscate private
property
settlement
should
be.
lawful

transcends

constitutional
aloneiwill

else,

will

rights

be
of

be gravely

endangered.

App. 1094

18
ARGUMENT
POINT
Mr.
trary
the

Sawyer's
action

action

sole

Obviously

provided
now

strike

the

steel

which
both,

a labor

fact

* Page

And

references

and

memorandum

flied on behalf

which

we
ex-

should

not

of

process.

is described

it obviously

as

is--or

the production

for

present

flies
for

throughout

squarely

this

of

purposes
in the

this precise

of the

be

actions

process

inconsistent
action

action

development

had
long

deliberately

the

prescription

to this

memorandum

Union

Sawyer's

admit

con-

Congress
with

most

to continue
his

the

is that

dispute--which

is that
the

too,

serious

for Mr.

a wholly

certainly

of a Congressional

a_ en_rgency.

of

emergency."

to follow

Sawyer's

by a desire

we may
the

for

a labor

production

the most

should

refuses
_[r.

motivated

the

authorization
upon

to settle

to settle

eventuality

what

insists

action

thing

with

therefore,

action

have

very

specified

admittedly

and

as spokesmen

national

Obviously,

and

asserted

Whether,

of

significant

against

and

not,

insisted,

would

nation.

The

intention
The

of was

period

confronted,

mimeographed

for

p. 1.)*

to the

a strike.

are

face

counsel

of the Presidential

the uninterrupted

this

a steel

ago

--or

to,

Court,

object

have

to insure

(Memorandum,

Congress

District

and

complained

during

sequences

for

management
but

steel

plainly

is an arbicontrary

by Congress.

in the

reason

herein

steel

dispute,

done.

rights
directly

stated:

" * * * the

pressed

and

provided

memorandum

Sawyer

called

with,

expressly

In their

the

of plaintiffs'

inconsistent

remedy

Mr.

invasion

kind

of

situation

as it

brief

to tho

are

of Mr. Sawyer in the District

App. 1095

Court.

19
existed

on

making.
some

April

The

situation

overnight

first

and

then

for

tive

procedure

and

then

gress

The

upon

the

for

would

when

imperil

the

that

Attorney

while

precise

national

to adjust
pointed

to seek

61

Stat.

136,

is

or

S.

C. A.

which

created

nmtually

to

satisfac-

By Section
to appoint
strike

or lockout,
part

safety.

hearings

206

a Board
of

it,

Section

207

to ascertain

the

receiving
the Board's
report,
by Section
208 to direct
the
an injunction

unsettled,

President
U.

Corn

which

consequences

substantial

health

of their

remains

29

which

of 1947"

or actual
or

injunction

the settlement
by the

emergency

a remedy

interests.

to conduct

the

Act

created
dispute

the

infra,

After

Board
the

the
the

strike

Federal

by Section 202,
in their efforts

differences.

is to report
176-180,

against

is in effect,

Mediation
and Conciliation
Service,
is to assist the parties
to the labor
if the dispute

to

by an execu-

case

is authorized

dispute.
After
is authorized
While

of Congress

a means

encouraging

industry

Board

General

or lockout.

cirlaw

means

disastrous

a threatened

entire

facts of the
the President

this

of conflicting

an

empowers

the

Relations

Act, the President

affecting

present
by some

of the

instead

for avoiding

economy

of Inqlfiry

resemble

by the Executive.

Management

reconciliation

of that

creation

using

provided
followed.

procedures

nation's

tory

the

right

in the

usurpation

in these

frustrated

disregardblg
and

exclusively

Labor

careful

awaits

remotely
executive

If,

is utterly

which

months

is warranted

constitutional

A. Congress
has
has not been

even

usurpation

the

provided

fashioned

not

been

requiring

emergencies

insists

has

had

afterward.

executive

of necessity,

year

does

catastrophe

legalization

cumstances,
provide

8 of this

60 days,

of Inquiry
current

Appendix

A,

ap-

position
pp.

5a-8a.

App. 1096

2O
of the parties,
the efforts
made for settlement,
and a statement of the employer's
last offer of settlement.
This report

is to be made

lowed,

withi._

available

15 days,

to ascertain

whether

settleme_#.

(Section

are

certified

has been
must then
the

209.)

ballot

_en

the

is to be fol-

of the

to accept

Attorney

this

employees

last

results

General,

is discharged,

to Congress

Board

of Inquiry,

action.

with

(Section

offer

of this

or

program

for

There

at any

earlier
left

protecting

for
and

to

of the

appropri-

is, of course,

notlfing

to

asking

addi-

void

in its

date.
no

the

General
After

is required

to Congress,

Congress

ballot

the findings

h.is recommendations

210.)

of

if a settlement

President

including

reporting

legislation,

Accordingly,

the

his report,

him from

tional

wish

and

reached
by the parties,
the Attorney
move the court to discharge
its injunction.

injunction

prevent

by a secret
they

to the

submit
ate

to the public

procedural

national

interest

when

im-

periled
by a threatened
strike.
It did not leave for the
Executive
the determination
of the course
of action
to be
followed

when

hausted

without

the dispute

inescapable

intent

The
pute

was

was

situation
the

procedures

not resolved

injunction
Report

the

in effect,

states

80-day

that

for
if the

period,

"the

the

seems

necessary

to preserve

Nation

in the

Sess.
The
ically

crisis."

was

that,

if the disthe

President

should

present

the

legislation.
is not

provides

Congress
(Sen.

ex-

in which

bill

before

are

period

dispute

the matter

Act

settled.

the 80-day

necessary

laying

in the

been

of Congress

during

to Congress

detailed
having

the
Rep.

The

terminated
for

the

and

during

President's

for whatever
health

Senate

legislation
safety

No. 105, 80th

of the

Cong.,

1st

15 (1947).)
fact
left

that
for

subsequent
Congress

emergency
itself

to take

action

was

is furtlmr

specifclearly

App. 1097

21
shown by tile statementon the Senatefloor of the author
of the bill:
"We did not feel that we should put into the law,
as a part of the collective-bargaining machinery, an
ultimate resort to compulsoryarbitration, or to seizure,
or to any other action. We feel that it would interfere
with the whole process of collective bargaining. If
such a remedyis 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 processthan it would receivein collective bargaining, and it will back out of collective bargaining.
It will not make a bona-fideattempt to settle if it
thinks it will receivea better deal under the final arbitration which may be provided.
"We ]lave felt that perhapsin the caseof a general
strike, or in the caseof other seriousstrikes, after the
termination of every possibleeffort to resolve the dispute, the remedy might be an emergencyact by Congress for that particular purpose.
"I have had in mind drafting such a bill, giving
power to seizethe plants, andother necessaryfacilities,
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 booksuntil weactually face suchan emergency,and
Congressapplies the remedyfor the particular emergency only. Eighty days will provide plenty of time
within which to consider the possibility of what should
be done;andwe believevery strongly that there should
not be anything in this law which prohibits finally the
right to strike." (93 Cong.Rec. 3835-36(1947).)

App. 1098

22
At

the

same

the procedure
ment

which

in the

time
adopted

would

event

have

vote.

Moreover,

Mr.

threatened,

the

a statutory

duty

was

on the part of his

Act, as amended,

not

on

the

given

the

3637-3645

employees'

Act

and
only

(1947).)
and

to collective

employee
the

8(b)(3)

by the

the

made

to bargain

employer
and

right

employees.
preserves

bar-

Congress

collectively

was

un-

the

era-

to require

bar-

employer's

it places

bargaining

by an

accomplished

of 1947,

correlative

but in Section

seizure

legislation.
Act, as amended

to bargain

ployer

amend-

rejected

rights

time,

against

A proposed

both

employer

to that

gaining
The

to bargain,

Rec.

plaintiffs'

of both
Prior

will

governmental

actions,

Relations

its

specifically

by Congressional
Labor
Relations

l_anagement

collectively.

for

was

(93 Cong.

destroy

it an obligation
der

provided

Sawyer's

gaining
conferred
In the National

expressed

by Mr. Sawyer.

of emergency

overwhelming

Labor

Congress

duty

a similar

representative

duty

and

thus

gives the employer

the same right to the process
and procedures
of collective
bargaining
as is accorded
to the employees'

representative.

In

Section

8(d),

also

added

in

1947, collective
bargaining
is defined as the "performance
of the mutual
obligation
of the employer
and representative
of the

employees."

The

Congressional

employee
lively

throughout

nmtual

obligation

Indeed,
ferred

* H.

43

80th

the courts
upon

R.

Rep.

Cong.

have

No.

245,
Sess.

80th

and

for both employer

rights

the Senate
will

and have

Cong.

2B (1947)

; H.

and

the

1st
R.

Sess.
Rep.

House
by

statutory

enforced

5,

and

to bargain

be enforced

recognized

the enlployer

1st

to create

duties

is evident

This

105,

intent

correlative

21

Reports.
the

con-

tlle duty

80th

courts.

rig!it

(1947);

1_'o. 510,

collec-

of a

Sen.

Rep.

Cong.

:lst

(1947).

App. 1099

:No.
Sess.

23
union to bargain
collectively
by granting
requested
by the National
Labor
Relations
v. International

Union,

88 F.,Supp.
Union,

United

Mine

(D. D. C. 1948).
situation

that

Labor

Mine

this

granted

here,

meeting

the

propriety

we cannot

ignore

the

of public

interest

Thus

the

relies,
directly
rights

but,
this

to the

kind

parties

status

is not

in support

of one

bargaining

Under
are

the

party

to the

finally

fail,

con-

which

Mr.
not
the

collective
and

specific

Saws"er
only

run

Congress

destroy

dispute.

has

statutory
prescripbargabting

equality

by arbitrary
labor

be per(Virginia

Congressional
the

preserved

disturbed

should

relief."

which
and

of emergency,

the

300 U. S. 515, 551-

on

deny

peace.

is taking,

procedures

in so doing,

of both

gaining

Federation,

he

of Conthat

at

which

to give

which

relief

indicated
its purpose
is in itself a declara-

authorization

action

of the plaintiffs.
for

rights

lective

the

counter

established
tion

asserted

and

judgment

emob-

policy

courts

Railway
Co. v. System
552 (1937).)

equitable

employees

and

in inducblg

by the
Court

aid to industrial

"The
fact
that
Congress
has
to make negotiation
obligatory
suasive

brought
The

in legislation,
and

is a powerful
O

tion

by the Railway
of his employees

of the

expressed

616

in an analogous

on a carrier

of employers

table

79 F. Supp.

held

by injunction
in a suit
accredited
representative.

deliberately

ference

of America,
has

of America,

v. Inter,_mtional

with tim representatives

considering

gress,

Workers

Madden

Court

the duty imposed

is enforceable
ployees'
duly
served :
"In

Workers

And

Act to treat

the

United

935 (D. D. C. 1950);

an injunction
as
Board.
Penello

of bar-

intervention
Should

Congressional

colaction

App. 1100

24
would

follow

with

due

regard

for

the

interests

of both

parties.
In fact, the procedures
directly
contrary
to those
the Act, as amended.
of 80 days

The Act provides

of continued

with

present
the

seriously

to the

that

prejudiced

for a period

unprejudiced

empowered
to issue
of recomanendations.

dispute

request

in effect

bargaining,

appointment
of a board
tions or by the issuance
of the

adopted
by the Executive
were
contemplated
and prescribed
by

the
the

Wage

Board

by

recommendaThe referral

Stabilization

make

bargaining,

the

Board,

recommendations,

because

neither

side

colfld afford
to make concessions
new floor for the recommendations

which might establish

a
which the Board
would

issue.

were

After

further
and

had

witho_t

There
ing

and

by the

Labor

follow

that

Congress

in any

No

Valid

by

failing

and

case

Court,
the

the

can thereby

unwarranted

emergency

to the

Unlawful

of

Constitution

Disregard-

Adopting

and

it may

required

Act.

ta

prescribed
it does

not

provided
for itself

procedures
and

be

by law

But

procedure
create

In-

Procedure.

procedure

Relations
to use

caused
foreseen

a board

For

and

is not

the Executive
both

Reason

District

given

for

Congress

President

Management
by

to invoke
contrary

in the
the

they
had

recommendations.

Inconsistent

that

in motion

Be

Provided

asserted
here,

issued

Congress

by providing

to make

Could

Remedy

was

which

to avoid

an Entirely

asserted
set

difficulties
power

Was
the

stead

It

recommendations

attempted

inquiry
B.

the

bargaining

to the

by

a right

altogether
plain

intent

of Congress.
In the

District

following
during

the
the

in November

Court,

procedure

period
1951

from

the chief
laid

excuse

down

by

the commencement

to their

breakdown

advanced
Congress

for
was

not
that

of negotiations
in April

1952

App. 1101

the

25
Union had voluntarily allowed its membersto remain at
work for more than the 80-day "cooling-off period" prescribed by the Lahor ManagementRelationsAct. It is not
claimed that this voluntary abstentionby the Union operatedto bar the Government,onany theory of estoppel,from
using the remediesprovided by Congress;and during this
voluntary abstentionperiod therewas of coursenoresort to
the procedureslaid downby the Act, including particularly
the provision for a secret ballot of the employeesto ascertain whether they wished to acceptthe last offer of settlemerit nmdeby management.
It has also beensuggestedthat resort, either at the time
of the seizureor now, to the remedyprovided by Congress
might befutile, sinceit nfight simply postponethe problem
for another 80 days. This is sheer speculation.
Among
other

things,

the

during

the

80 days

the

members

the

Act--an
(iii)

time
the

for

claim
work

there

of the

Congress
already

that

the

was

Act

considerations
under

the

tion Board
96 hours
case

(the

have

apart,
the Union

8,

been
this
had

agreed

of its strike

Longshoremen's

call.
strike

when

call

overlooks
the

to give,

and

August

mere
not

instead
the

seiz-

already

an injunction
All
the

Wage

In at least
of

along

was

to obtain

hefore

ample

resorting

a shutdown.

argument
made

offer,

be

remedies

that

of

last

might

strike

too late

209
present

Congress

below

to prevent

that

The

it and

'/ii)

pp. 20-21).

by

action.
also made

that

the

would

the necessary

provided

arrangements
notice

there

(i)

under

under

management's

for disregarding

in order

ballot

(s_l,pra,

April

of account

to them

80 days

to provide

on

it would

secret

to accept

the

remedy

made

the

by

out

be a settlement,

denied

mentioned

is no excuse

out and
under

Union

within

to entirely
extra-legal
The assertion
was
ure

might

choose

that

lines

leaves

opportunity

procedure--might
and

argument

fact

other
that

Stabiliza-

actually
one

gave,

previous

1948,

noted

App. 1102

26
below*) a four-day period was adequateto set in motion
the entire emergencymachinery of the Act, down to and
including the issuanceof an injunction.
When Mr. Screwer, ill justifying
his action
here, relies
on Executive

Order

10340

provided

by Congress,

a square

conflict

between

power,

The
been

on

injunctions

_ere

at

Attorney

General.

Carbide
Fed.

March

but

March
3333.

Temporary

settled

by

phone

a_d

2707.

Board

June

1948,

August
4779.

with

which

pointed

February
Exec.

Order

issued

five
reported

August
1_ed.

Reg.
between

Order
settled

of
of

_'ed.

the

by

Federal

America

Reg.

(Meat

1375.

Board

and

no

America

13

injunction

the

of

of

9970,

court

between

but

Workers
and

:Fed.

issued.

proceeding

(coal

Reg.

1579,

Dispute

and

other

as
issues

parties.

Telephone

Workers

Order

injunction

(American

No.

9959,

13

Tele-

Fed.

Reg.

Fed.

Reg.

issued.

strike----Exee.

Order

No.

9964,

13

issued.
Longshoremen's

Injunction
the

hearings
19.

Mine

Company)--Exec.

emergency
August

1950,
days

back

United

to

15

Mine
Fed.

the

President

8873.

Injunction

operate.

August

_aetal
issued.

of

649.
on

to

President

the

America

The

apboard

President

on

(coal

day

the

of

by

order

inquiry,

order

Order
settled

strike)--

restraining

board

strike--Exec.
Dispute

:Fed.

rapidity

21.

the

the

13

the
1948.

Temporary

of

9987,

The
17,

back

on

Workers
Reg.

No.

illustrates

August

reported

appointment

Non.ferrot_8

can
on

issued

the

1951,
the

and

Order

instance

inquiry

was

10106,
after

of
18

injunction

No.

This

machinery

board

on
An

strike--Exec.

issued.

a statutory

August

assistance

13

has
these_

were:

Dispute

Wor!_ers

9939

order

Union

Shipping

]948,

Reg.

of

Cerporation--Exec.

with

collateral

negotiation

Injunction

Act

six

cases

issued.

9934A,

United

in

appointed

In

These

House

Orders

American

Telegraph

the

issued.

19_8,

settled

direct

1948,

and

Relations

passage.

Chemical

No.

restraining

fund

May

had

Packin

cascs)--Exec.

t(_ pension

tion

June

its

Injunction

Order

no injunction

and

strike,--$wo

held

United

resolution

Congress

Management

the parties
Service.

str_ke>--Exec.

appointed

3009.

]259.

between
Conciliation

1945,

Labor

,$" Carbon

Reg.

remedy

way.

since

the

the

Court's

of

of

direct
negotiation
Mediation
and

Packers'

the

of the

that conflict,
the Conagainst
the dominion
of

occasions

nine

1948,
23

word

machinery
by

9934,

the

the

least

secured

March
No.

for

To resolve
of struggle

will point

emergency

invoked

exclusion

he poses

will of the Executive.

sfitution,
and centuries
executive

to the

was
No.

direct

which
issued.

10283,
negotia-

parties.

App. 1103

16

27

POINT
The

seizure

other

of plaintiffs'

action,

including

properties
that

Sawyer's

seizure

the

The

claimed

and

authority

Order

by its

"Constitution

and

control

Order

and

As is clear

are

States."

thereunder

or law

Court,

with
based

No.

10340.

under

the

In fact,

the

support

in

find

filed

plants

action
are

of the United

the

to

unlaw-

plaintiffs'

to be issued

memorandum

District

respect

Order

United

action

the

of

Executive

purports

provision
from

in the

with

his threatened
of employment,

of the

Mr. Sawyer's

no constitutional
behalf

of

terms
]aws

Mr. Sawyer's

of employment,

and other
facilities,
including
respect
to terms and conditions
on

and

threatened

wages and other conditions

ful and unconstitutional.
Mr.

II

States.

on Mr. Sawyer's

asserted

right

to

seize

and exercise
control
over the steel industry--including
the
right to supplant
the steel companies
in collective
bargaining and to change terms of employment--rests
a claimed
prerogative
or "inherent
power"
dent

as Chief

armed
ure

to the

and

These

purported

Executive

Mr. Sawyer's
unlimited

powers

rights

by virtue

the President

in any

exists.

declaration

as Commander

simply

position

an emergency
tive

Executive

forces.

For,

field

in. the

argument
"The

unlimited

was

thus

before

Court:
power

stated
Judge

So

you

in time

to in-

office.

exercise

he chooses

to say

view,

Executive
by Mr.

Under

virtually
that

the Execu-

is non-reviewable

the emergency
is proclaimed,
the
yond the control
of tt'm Courts.
position

of the'

claimed

of his
may

where

in Chief

are

in his counsel's

of emergency

This

solely upon
of the Presi-

and,
action

Sawyer's

once
is be-

counsel

Pine:
contend
of

the

Executive

has

an emergency?

App. 1104

28
Mr.

Baldridge:

action

He

as is necessary

The

Court:

limited,

If

power

the

to

take

such

emergency.

emergency

is great,

it is

un-

is it?

conclusion,
that there

power.

One

time

of

I suppose
that
are
is

impeachment.
The Court:
in

the

to meet
the

Mr. Baldridge:
cal
out

has

if you

is true.
But
two limitatioils

the

Then,

ballot

carry

I do want
to point
on the Executive

box

and

as I understand

emergency

the

it to its logi-

the

other

it, you claim

Executive

has

this

is
that

great

power.
Mr. Baldridge:
That
The Court:
And that
emergencies

and

is correct.
the Executive

the

Courts

determines

cannot

whether
it is an emergency.
Mr. Baldridgc:
That
is correct."

"The

Court:

So, when

the

Constitution,

it enumerated

the

Constitution

but

and

limited

did not limit

Is that
Mr.

"It
only

what

power

you

is our
to

the

concept
is presented

set
of

up

the

judiciary,

in

Conbut

it

Executive.

is the

way

we read

Article

II

(R. 377)

country,

that
and

conclusive."
of

adopted

powers

powers

of the

of the

people

say?

position

are

the
the

powers

That

Constitution."

President
This

the

the powers

Baldridgc:

of the

limited

review

(R.. 371-372)

sovereign

the
gress

even

the

unbridled
in its most

the

President

that
(R.

the

is accountable
decisions

of

the

380)

and
extreme

unchecked
posture

executive
by the

App. 1105

ac-

29
tion

here

regard

challenged.

in keeping

_dth

for the

handling

Again,

in

with

its

disregard

his employees,

while

case

is an attempt,
and solely
appropriate

any
was

the

Sawyer

without

any

industry.
mandate
collectively

has

announced

his

employees
he would

In essential

vestige

Constitution,

to bargain

that

]ud_ce.

the

Congressional

of plaintiffs'

assurance
sub

dis-

by Congress,

in the steel

the right

Mr.

a complete

under

dispute

of

the wages

to give
the

reflects
established

responsibility

an employer

to increase

declined

seizure

machinery

of the labor

flat

guaranteeing
tion

The

of the statutory

inten-

and

not

do this

analysis,

of statutory

has
this

authority

on the assertion
of inherent
executive
plaintiffs'
funds
for pa)unent
of

power,
wages

to
in

whatever
Before

amounts
Mr. Sawyer
may choose to establish.
considering
the pertinent
provisions
of the Con-

stitution,

and

the

scope

respective
branches
ment, it would appear
conmmn

law

of the

background

which

form of our government

nection
to the guarantees
Constitution.

For

root

absolutism
threat

of

safeguards
framing

of centuries

against

claim

so strongly

of

an

of bloody
the

specifically

Constitution

on

the

of governthe English
affected

the

inherent

overriding

to act by fiat in disregard

of the
It is precisely
the claim which was

English

which
by

the

the

it confers
system
briefly

and had so direct

a causal
conof liberty
established
in the

this

power
in the Executive
law is not a new one.
at the

powers

in our tripartite
in order to review

struggle

Crown.

It

Founding
limiting
of the

to overcome
was

precisely

Fathers

the

established

executive

United

the

power

in

States.

App. 1106

3O

A. The Necessary

Backgroundmihe

Successful

Struggle

the Crown Prerogative

and its Culmination
tution of the United States.
We

have

no

extended

intention

account

century

of burdening

of the

England

over

tile

continuous

the

Against

in the Consti-

Court

with

controversy

royal

in

prerogative.

an
17th

This

is

story known
in detail by the Founding
Fathers,
known
in
basic
outline
by most Americans
and well documented
elsewhere.
See, e.g., Trevelyan,
England
Under
the Stuarts (17th Ed. 1938) ; Davis, The Early
Stuarts
1603-1660
(1937) ; Corwin,
Liberty
Agai_zst Government
(1948).
But
a brief

discussion

content

of the

larly

pertinent

here.

of the maxim
The

of that

that

present

the

and
It

ago

history

repeats

of the

authority

that

by

James

its effect

is singu-

a striking

example

to an inherent

necessary

for

consulting

was

on the

States,

itself.

Executive

under

which

and
United

we have

good--without

any

is precisely

turies

here

he considers

common

without

of the

For

claim

to do whatever
as

controversy,

Constitution

law

what
the

is not

made

I of England

right

he

views

legislature
a new

more

than

when

he

clainl.

three

cen-

claimed

for

himself
the right to make law by proclamation
and asserted
that it was treason
to maintain
that the King was under
the

law.

his

life

It is precisely
and

precisely
colonies.
lish

of the
vided
The
King

the claim
In short,

Crown

hated

James

in the

his

War

claim
throne.

for

which

Most

Charles

I lost

importantly,

it is

for which George

III lost lfis American
it was the continued
effort of the Eng-

to exercise

United
in the

the

II

unfettered

prerogative

of Independence

States

under

the

and
form

that

the

cuhni-

establishment

of government

pro-

Constitution.

controversies
demonstrate

over
two

the

prerogative

significant

of

propositions

the

Enghsh

which

App. 1107

era-

31
phasize
the restricted
scope
of the responsibilities
ferred
upon
the President
in the United
States
stitution
First,

the

stood

at the

no such
as those

time

the

and

fully

mindful

been

required

it clear

clency,

they

scribed
The
ing

of

were

powers

Chapter
See_

39**
e.g.,

from

(1948).

of Magna

Corwin_

The

law--

office of the

Presi-

right

The

more

circum-

to the

Crown.*

in English-speak-

arbitrary

acts

of the

2 of Corwin's
story

Carta

that

the

of far

in chapter

Crown

struggle

attributed

against

success-

the

under

the

of the citizen's

property

the

bitter

a position

to protection

Gover.mne.t_t

private
Order.

Crown

then

embodied

against

and

that

those

is summarized

agai_st
Carta.

long

creating

development

Executive

the

as under-

drafted,

colonies

in establishing

than

countries

was

Fathers--fresh

to place

that,

Grown,

control
over
the Executive

of tlm American

had

English

Our Constitution

Founding

struggle

made

of the

rights
of arbitrary
now asserted
under

Second,
ful

prerogative

conCon-

Liberty

is as old as h{agna

says:

President:

Office

and

Powers

365

(3d

Ed.

1948).
_

Chapter

39

of

State
Constitutions.
this Court
held that
"intended

. And

to

Magna

Carta

In Bank
it was

of

secure

powers

of

private

rights

and

276
said:
"The

vey

the

words_

_due

meaning

Lord

Coke,

mean

due

et

al.

interpreting

same

Clmrtu.
they

distributive

from

as
in

process

v. Hoboken'

of

the

some

of

234,

arbitrary

the

the

242

early

(1819),

exercise

established

Land

:Fifth

law,'

words,

his commentary
of

the

by

in

4 Wheat.

of

the

principles

of

justice."

the

process

verbatim

v. Okely,

unrestrained

Lessee.

(1855)_

copied

individual

Gevernment,

in Murray's

How.
_72,
this Court

the

was
Columbia

and

Improveme.nt

Amendment

were

the

undoubtedly

_by tho
on

to

law

those

of
words

Co.,

intended
the

land,'
(2

lS

Constitution,

to

con-

in Magna

Inst.

50)/says

law."

'

App. 1108

32
"No

freeman

disseised

shall

be taken,

of his freehold,

or be outlawed,

or exiled,

nor

pass

will we not

At

least

five

other

28, 30, 31, 52 and

vate

property

will

not

or any

upon

him, but by lawful

law of the land."

him,

judgment

articles

56)

by the

deal
and

otherwise
nor

in the
give

destroyed;

peers,

Great

property

points

out,

upon

or by

Charter
seizures

assurances

that

be

customs,

will we send

wrongful

and

or

or free

of his

with

Crown,

be repeated

or imprisoned,

or liberties,

the

(Nos.
of pri-

that

they

unlawfully

taken

will be restored.
As

Professor

Corwin

Magna Carta were absorhed

into the
mon law. They were well established
when

Sir John

King's
famous
thesis

Bench,
treatise
of that
of the

as

Wars

continental
36)

"can

Crown
In

make

realm

burden

them,

sitions,

so that

raade

by

of

of the comof that law

Justice

of the

Chapter

any

alteration,

without

the

against

their

own

being
deprived
other."

of them,

later

when

in the

of the

subject,

with

governed

it was to Magna
he and

strange

by such

and

laws

laws
nor
impoas are

approbation

without
by

the
the

Carta,
the

Chapter

or change

wills,

either

in

of

of England

consent

and

as early

powers

again

King

consent

securely

Coke appealed
declared

the

even

arbitrary

9 (and

that

constitutional

existed

the

out

a people

their

the limited

with

properties

Centuries

Chief

as they

Roses,

points

neither

their

that
land

British

rulers.

of the

18 years

was to contrast

of the

Fortescue

for

provisions

somewhere
around
the year 1468 wrote
his
De Laudibus
Legum. A_zgliae.
The whole
book

powers
the

Fortescue,

these

principles
as a part

other

enjoy
hazard

King

and

or

of
an),

to Fortescue,

judges

of Eng-

App. 1109

33
" * * * that
the

law

tio_s,
1354.)
and

the King
of the

hath

land

12 Coke's

no prerogative,

allows

Reports

him."

but that

(Case

which

of Proclama-

74, 77 English

Reprint

]352,

that
"The

common

the

King

anyone's
erty.)
And

has

they

in the

not

Case

the

take

(i.e.,

63; 3 Inst.

prerogatives

away

anyone's

1342, 1343,

private

prop-

12 Coke's

the

Judges

Relmrts

laid

said,

that

then

the

he should

treason
to affirm,
Bracton
said, q_od
s_b Deo et lege."
controversies

came

to a head

Ship

Mo_tey

(Tl_e
State
about

the

lawyers

Crown

was

to give
for the

greatly

offe,lded,

and

the

law, which

was

be under

Charles

Ki_g

the

Crown

:[ in the

v. John

and

Parliament

celebrated

Hampde,t_),

Case

reported

of
in

Trials
826 (1637).
What
is particularly
that case in the present
connection
is that
based

their

claims

sqlmrely

upon

claims
of "national
emergency,"
"common
defense"
"inherent
powers
of the Comnmnder
in chief."
After
England

that

as he said;
to which
I said, that
Rex no_. dcbct esse _.teb homi_w, szd

between

under

3 Howell's
interesting

King

63,

down

could not take upon himself

the power
in any case, since that
was a matter

which

of

or prejudice

84.)

of Prohibitio_Ts,

Reprint

" * * * with

The

so limited

shall

inheritance."
(2 Inst.

77 English
the King
judgment
courts--

law

that

proclamations
had been made reciting
was then at peace there were wars

continent

of Europe,

England

was

that

in danger

the

seas

of losing

were
control

the
and

tlmt although
raging
on the

unsafe,

and

o)f the

sea

tlmt
and

App. 1110

34
of invasion,
to provide

the

Hampden)

before

His

various

General

Crown,

put

forthwith

One citizen

heard

judges

of the

and

their

counties

defense.

case was

all twelve

Solicitor

for the

required

for the common

resisted.

Chamber
courts.
The

King

ships

Attorney

in the
three

Exchequer
common-taw

General,

arguments

(John

squarely

appearing
on the

inher-

ent emergency
powers
of the King as Commander
in Chief,
and argued that in time of emergency even Magna Carta
and statutes
must give way to those "inherent
powers."
A

majority

Mr.

of

Justice

contentions
at bar,

the

"It

advanced

on behalf

doth

appear

destruction,
the

well

resist:

judge

dishonor
king

of 5Ir.

No.

of no

delay."
same

King's

views.

similar

to the

Sawyer

in Chief

was

emergencies,

of the
Professor

other

to bind

and

in the

must

case

instant,

the

aid

the King

judges

invalid,
and

asserted
that

that

of his
resort

subjects,

any

Parliament
King

admits

1087.)

prerogative
the

the

to Parlia-

at
that

and

greater

and

Trials

King's

that

and

is instant

State

king-

of ruin
and

and

danger

the

tile whole

land,

oppression,

without

see the

that

sea

and

(3 Howell's

vein,

attempted
in

can,

We

record,

by

imminent

Whether

ments?

In the

both

is present,

than

slowly

the

surprisingly

by this

is in danger,

danger

mander

accepted

in words

said:

dom

which

judges

Crawley,

statute
as

Com-

moved

too

the

sole

was

necessity.*
Corwin

(The

President:

"The classic expression

of
ment in the Ship Money Case:
his subjects for the safety and
any act of Parliament,
and a
doth not bind the king, and
cases of necessity.'

Office and

Powers

494_ fn.

70)

says:

Stuart
theory is Justice
Vernon's
state'The King pro bona publioo may charge
defense of the kingdom, notwithstanding
statute
derogatory
from the prerogative
the king may dispense
with any law in

l_ex v. Bampden,

3 S. T. 825 (1637)."

App. 1111

35
A minority
the

King.

Justice
and

But

(author

of his

impeached

the

and
laws

the realm
of England;
duce all arbitrary
and

The judgment

and

]lad

against

In 1640 Mr.
above

voted

quoted)

for

_ against

the laws

the

King

and

to the

to subvert

govermnent

and instead
thereof,
tyrannical
government
State

Trials

Money

of

to introagainst

1283).

case itself

was

(iirected

as being

of tlie realm,

and contrary

Trials

endeavored

established

to be cancelled

of property,
State

interesting.

wickedly'

in the Ship

by Parliament

liament

voted

statement

who

* * * " (3 Howell's

" **

Croke,

for having

fundamental

law

by

was
of

colleagues

" * * * traitorously
the

headed

tile aftermath

Crawley

some

were

of judges,

to former

Petition

the

subject's

resolutions

of l_ight"*

right
in Par-

(3 Howell's

1261).

In the reign of James II the controversy

broke out afresh.
The King claimed
the power in cases of urgent
necessity
to
dispense
with
the laws.
Fina]ly_
when
he pushed
the
matter

too far by indicting

posed

his

views,

the Seven

there

Bishops

was

that
"If

a reaction;

(12 ttowell's

tice Powell
declared
that
"amounts
to an abrogation
and

for seditious
State

libel those

who

and

Case

Trials

in the

183) Mr.

opof
Jus-

the claimed
royal
prerogative
and utter repeal of all the laws }'

:
this

ment;
a thing

be once
all

the

allowed
legislature

worth

considering."

of, there

will need

will be in the
(12 ttowell's

no parlia-

king,
State

which

is

Trials

427.)
3 Car. I_ c. 1 (1628).

"

App. 1112

36
The

culmination

passage

under

(t Will.

& Mary

the

Sess.
of our

the following

own

of

of the

English

Bill

limited

respects
That

e.xile

2, c. 2 (1688)),

specifically

"1.

the

his successors

provisions

document

was

James

are

powers

laws,

pretended

hath
Thus,

the

or the
been

of

assumed

seizure

and

of the

of property

Parliament

was

In the

decades

American

the

Carta

the

and

the
of

Crown

the

were
of

struggle,

attempts

of and
of British

to enforce

latures

of the

Tucker

with

authority,

the

as it

is illegal."

English

without

War

people,

authority

their

George

III

and

the

colonists
as

Bill

"has

of

against

See, e.g., Resolutions

on the Constitution

affected

constantly

appealed

under
King,

he "has
without

to render

at the beginning

of the First
886 et seq.

Civil

Cantiueutal

the
Decla-

among
consent
the

Power."

denounced

as tyrannical

the

kept
the

to, the
were

Magna

In cataloging

the

generals
rule

the

struggle
ministers.

Englishmen

of Rights.

colonies

own
his

superior

martial
various

of Independence

with

colonists

and

lution

of dispensing

faced

rights

English
the

legislature"

independent

of
with-

bloody struggle,
finally
estabunder the law. It was clear that

ration
of Independence
states
that
in times of peace, standing
Armies
our

in

suspending

of late,

18th century,

preceding

fundamental

grievances

That

Crown

authority,

by regal

exercised

by the

actions

Throughout
to their

of

illegal.

colonists

against

power

of laws

after a long and frequently

fished that the Crown was
the

taken.

of the

power

pretended

execution

by the start

many

the

That

the

of Rights

which

laws, or the execution

of laws, by regal
out consent
of parliament,
is illegal.
"2.

and

Bill

from

of Rights
the

II

us,
of

military
Various

of the

Revo-

by the legisand

Congress

despotic.
quoted

App. 1113

in 2

37
See Whyte;
L. Rev.

The

War

Powers

of the Preside_t

It was
against
this
background
Fathers
drafted
our Constitution.
bates,

as

graphic

long

people

in

that

excesses
the

the

reported

clarity

recent
and

the

of the
and

of

and

of other

from

the

mffettered

and

many

of

firmly
had

in mind
the

been

the

colonies
waged

European

at first

exercise

them

with

by

countries,

power had been circumIt was in this framework

men who knew

rogative,

reveal

against

that

the royal
the law.*

resulting

hand

of the

lawyers

the evil

royal

deeply

pl:e-

read

in

constitutional
history
of the mother
country--drafted
own Constitution.
It is against
this real fear of uncon-

trolled
tution
B.

]lad

Crown

struggle

England

Journal,

delegates

English

costly

file delegates--all

the
our

XfYis.

that
the Founding
The constitutional
de-

Madison's

such as Holland,
before
scribed and placed under
that

[1943]

205, 210.

executive
action that
must be considered.

The
for

As

Constitution
Mr.

Sawyer's

is well

the

Provides

No

Other

Actions.

the

framers

known,

provisions

Authority

of the

for

of the

the

Seizure

that in a tripartite
form of governmentlay
safeguards
of the people's
liberties.**

took especial
of executive

care, therefore,
and le_slative

I, sec. 1 of the

in. Congress
alone
I, sec. 8 enumerates

all

or

Constitution

lieved firmly
of the surest

Article

Consti-

beone
They

to prevent
any concentration
powers
in the same hands.
Constitution

unequivocally

vests

legislative
powers
granted:
Article
powers
granted
to Congress--includ-

Madison's
.]ournal,
reprinted
in tt. l_. Dec. No. 398, 69th Cong.,.lst
109 (1927),
at, e.g.. :132-13_, 149-151, 397, 417-421.
** See, e.g. Madison
in The Federalist,
Kilbo_trn v. Thompson,
]03 U. 8. 168 (188]).

Nos.

47

and

48;

and

Bess.

compare

App. 1114

38
ing the power
to "lay and collect
and Excises,
to pay the debts and
Defense
"to

and

general

regulate

relating
Section
Laws

Welfare

commerce

which

shall

or in any

fashion

exclusive

power

and

defense

and propel'

for carrying

of the United

States,

[el.

thereof"

Constitution

places

all laws

nation.

The

emergencies,

of America"

and

sponsibilities

assigned

ment,

are

relies
just

for

"Section
Chief
the

"Section
that
The

duty

function--to

the

legisla-

otherwise,

in Article

1I.

It

upon

in keeping

and

which

power.
system

The

re-

with

the

of govern-

adaninistrative.

Mr. Sawyer
in addition

The

apparently
to the

clause

these:
2.

Mihtia

actual

and

that

to the tripartite
executive

The

of the Army

of the

to define

for his actions,

are

for

military

the

the weffare

responsibility

to the President,

basic

of the Article

quoted,

In this

in Congress

necessary

both

proceeds

as authority

18].

[sec. 1,. cl. 1] that "The executive

in a President
of the United
States

intrinsically

provisions

into

or Officer

the

of powers

powers

in tile (overnment

with a provision
shall be vested

division

several

and all other

is categorically
vested in Congress.
The office of the Presidency
is covered
opens
Power

[cl. 1] ;

vested

to enact

with

States"

Powers

of the

tion to cope

Imports
common

and waging
of war [el. 11-16].
the authorization
"To make all

Powers,

Department

clear-cut

of the United

be necessary

the foregoing

by this Constitution

Duties,
for the

* * * " [cl. 3] ; and

to the declaration
8 concludes
with

execution

Taxes,
provide

and

of the

Service
3.
Laws

President

shall

Navy
several

of the

be

of the

United

States,

United

Commander
States,

and

called

into

when

States;

* * *

* * * he [the

President]

shall

be faithfully

executed

* _ "

to execute
implement

the

laws
and

is by its
administer

terms
the

in

take

Care

an executive
laws

enacted

App. 1115

39
113' Congress.*

It

history

and

dent's

military

settled
or

The

auy

Although
Order

10340,

a power
observed

military

any

as he deems

express

best

that

power

for the

or otherwise.

provides

to take

public

judge

extraordinary
of them.
Thus

time

to time

the

power

is reposed

exclusively

shell

those
executing
executive
officers
power
295

_" Cf.

U.

Story,
and

in
of

power

executive

to

quate

that

Senate,

the

the

President
"Article

Oovcrnmeat_

Le.,

was

The

explains

[i.e.,
means

expressly

002,

626

section
to

may

legal

occasions,

the

that

"the

President

executhe

the Executive
8. 52, 163-]64

remove
grants

general

inci-

Branch
(1926),

a postmaster
to

the

with-

President

administrative

of appointment
in the Myers
in

1562

provision

may
the

provide

the

control

and
removal
case with regard

H_mphrey's

of
of
to

E:rccator

v.

U_ited

where

the

author

(]935).

Constitution,
this

in

II

the

disapproved

or either

Branch.

functioning
of
8totes,
27'_ U.

the

3,

"give

_n.a.y "on

Houses
and

grants

the laws,
including
the power
_ N * ,, 0ertnin
broad
language

S.

and

both

provision

stated

Section
shall

extraordinary

Presidentt"

to insure
the
Myers
v. United

holding
the

of

"Occasions
ernment

with
in

in an emerII,

expedient"

and

action

State of the Union,

such Measures
as

in the Legislative

vested

required
See

Court
assent

8totes,

Executive

President

measures

ordinary

together

be

authority
Government.
the

justifies

both

previsiou_

Power

executive

ques-

pursuant

Article

the

convene

to frame

on

'* This

and

occasions"**

remedies,

the

not

either

On the contrary,

from

necessary

shall

out

do

or related
from

interest,

he

where

functions

such undefined

Information
as to the
to their
Consideration

dental
of the

the

to be acting

to the Congress
and recommend

tive

to

of

on war

case

Presi-

direction

as is apparent

in this

tile

is limited

asserted
to exist in a national
emergency,
it will be
that
the Constitution
nowhere
confides
in the

Executive
gency

function--the

Executive,

of both

that

in Chief

to legislate

elahued

a matter

interpretation,

President's

power

the

as

as Commander

executive

forces.

encompass
tions.

cleat',

judicial

power

a command
arrued

is equally

arise

President

to mitigate

by
in

the
and

(Cooley's

Ed.

1873)

stating:
reocss
Congress

or overcome

of

Congress
together]

_nexpected

requiring
* * * to

the

Gov-

pro_ide

ade-

calamities."

App. 1116

4O
If

there

is any

such

thing

herent
in the Federal
it is in Congress,
and
I,

Section

8, Clause

government
not in the

people,

and

of powers"

supra,

p.

is not

vested

IX and X.
branch
of our

under,

Constitution.

like

not

above,

Congress,

possesses

Constitution.
parte

Ex

Milligatb

States,

tile
no

p(_rte

4 Wall.

334 U.

power

@dri_,
779

peace

or in war

be scrupulously
spective

powers
assigned
U. S. at 779.)
If executive
tional

action

provisions

is not

the

concept,

ship,

of "inherent

yond

those

in Toledo,

There

specifically
Peoria

and

that

both

the

Government
by

the

that
keep

Wester_

the

under

these
the

to monarchy
by the

the
(334

constitu-

to Congressional
under

re-

within

Constitution."

stat-

Constitution
and

or a "residuum

granted

219

Constitution

particularly

pursuant

powers"

v. United

v. Mayes,

case :

is no place

familiar

; Lichter

Hou,se

authorized

or taken

ute, it is invalid.
for

to each

is

President,

derived

(1866)

and

of the

Government

the

it is essential

branches

President,

; Ex

(1948);

obeyed,

either
or to

from

U. S. 270, 281-282 (1911).

As this Court said in the Liet_ter
"In

upon
States

The

not

any

317 U. S. 1, 25 (1942)

2, 136-137

S. 742,

That

in the

is made clear by Amendments

It is axiomatic
that each
and

38.

conferred
expressly
is reserved
to the

therefore

in-

under
the Constitution,
President,
under
Article

18, quoted

"residuum
of power"
not
the President
or Congress
the

as a "residuum

dictator-

of powers"

charter.

As

R. R. v. Stover,

bestated

60 F. Supp.

587, 593 (S. D. Ill. 1945):

"The

executive

exceed
and

the

granted

the

department
powers

Congress,
to

it,

granted
and

or

of our

to it by

if it does

attempts

government

to

the

Constitution

exercise
exercise

cannot

a power

not

power

not

App. 1117

41
granted to it, or attempts to exercise a power in a
manner not authorized by statutory enactment,such
executive act is of no legal effect."
In
Fed.

United
311 (D.

1921),
out

remanded

ttand

that

power

contention

the

Hand

_'The implications
right,

are

without

(2d

of bill

Judge

no) power

landing

withN.

possesses
interest.

to prevent

its

had

Cir.

Augustus

in tlle public
cable

asserted

in

a
the

,the.execu-

independently

of statute

said :

o[ the power
very

an)'

893

dismissal

had

from

Co., 272

the President

this nmtter

Judge

government

that

presidents

to regulate

years,

for
(1922),

President

although

Telegraph

272 Fed.

to legislate

company

States,

for fifty

aft'd,

S. 754

power

cable

United

192].),

U.

the

or other

In holding

Unio_

by stipulation
260

rejected

domestic

v. Western

C. N. .

prejudice,

inherent

tive

States

great.

contended

If

legislative

the

for by the

President

sanction,

has

the

to prevent

the

landing
of cables, why has he not a right to prevent
the importation
of opium
on the ground
that it is a
deleterious
because

See,

drug,
such

this

country

Fed.

at 31.5.)

to similar

Presidency.
139-140

(1916)
"The

which
specific
within
its

the

importation

of silk

inay

tend

and

the

national

injure

effect,
Taft,

conceive

or

importation

William

Our

Howard

to reduce

Magistrate

of the

Executive

steel

welfare?"

Taft's

Chief

or

wages

study

and

His

in
(272

of the
Powers,

true

view

it, that

the

Presiden.t

cap,not

be fairly

and

grant

of power

or _ustly

such

exarcise.

express
Such

grant
specific

functions

can

exercise

reasonably

grant

traced

implied

as proper
must

is, as I
no power

and

and

to some
included

necessary

be either

to

in the

App. 1118

42
Federal Constitution or in an act of Congresspassed
in pursuance thereof.
There
can

is _o u_zdefi_ed

exercise

lic interest,

because
and

its definition

plainly

must

be justified
or

It is against

As

this

Mr. Justice

epitomizes
society.

into

Massachusetts

not indulging
aim

laration

John

who,

of laws
terms

may
pronounced

So challenged,
Constitution
and

must

be
opin-

of America,

of laws

with
and

and

of rule

be challenged
by this

this seizure
is necessarily

put

him,

phrase
he was

He was

express-

framed

the

founded
by fiat,
an

Dec-

the

Repubhc.

was

the rejec-

whether

power.
by

not

of our

that

of Rights

not of men'

or private

and

character

Adams
flourish.

of Independence

in positive

as finally

Workers

Declaration

of those

of governmental

protec-

in his concurring

Mine

not

so carefully

seizure

the distinguishing

fiat

juris-

it does

lasting

'a government

When

tion

his

in a rhetorical

'A government

government

grants

by affirmative
or

this

said

phrase

political

the

and

or in other

but

to insure
that

v. Uuited

historic

hun,

framework,

Frankfurter

of men'

ing

case
The

vindicated

Fathers

liberties,

States

the

States,

provision,

constitutional

330 U. S. 258, 307 (1947)

"The

for

and

statutory

citizen's

ion in United

to be in the pub-

an inference.

marked

by the Founding

tion of the
tested.

he

power
are necessarily
in general
terms
to embarrass
the Executive
within
the

constitutional
exist."

wrought

such

which

in the Neagle

of the United

of action

diction

of power

to him

is nothing

warranting

of Executive
in order
not
field

it seems

there

of a law

precedents,

residuum

by the

Every
appeal

act

of

to law,

Court."

cannot
be squared
with the
invahd.
Far from finding

App. 1119

43
support

in the

cisely

the

type

government
C. This

of rule

of laws

Seizure,

tive

Far

The
plainly

of

within

be followed

Being

of pre-

no place

in a

the

Under

Laws,

the

Execu-

is in Conflict

With

by Congress.

labor
the

can have

Authorized

to Execute

proceeding

handling

example

not of men.

from

as Enacted

present

it is a classic

by fiat which

and

Responsibility

the Laws

the

Constitution,

involves
disputes

province

in dealing

of

with

a continning
of national
Congress.

these

problem-importance--

Procedures

disputes

call

to

for

Con-

gressional
action.
There
can be no argument
about this.
And Congress
has acted.
After
extensive
consideration
: and

mature

deliberation

Management

Relations

governing
security.
The

labor

disputes

Constitution

ful execution
failed

the Labor

charges
this

of

enacted,
1947,

affecting

of the laws.

to discharge

apply

Congress
Act

the

the
President

with

Relations

has seized

plaintiffs'

private

plaintiffs

in their

collective

bargaining

and

threatens

now

whatever

scale

disruptive

to use plaintiffs'

he chooses

to adopt.

and undemocratic

as a means
by executive

action

In the first
that

faithhe has

and

has

The apphcable

refused

ignored.
Instead
of the Executive

property

and supplanted

with their
funds

employees,

to pay

wages

Seizure--precisely
which

to

at
the

Congress

rejected

of handhng
labor disputes--has
been applied
fiat. On its face this action cannot be defended

as the execution
of the laws
cisely the reverse.
lished

the

or

Act.

procedures
provided
in the Act have been
Mr. Sawyer,
under the purported
authority
Order,

health

controversy

responsibility

Labor

legislation

national

In the present

Management

in the

detailed

years

under

of the
the

of the United

Republic,

Constitution

States;

this Court
there

could

it is pre-

firmly

estab-

be no execu-

App. 1120

44
tive encroachmenton authority vestedby the Constitution
in Congress.In Little v. Barreme, 2 Cranch 170 (1S04), this
Court_

speaking

rejected

the

through

attempt

sional power.
That case involved

to stop

suspected

authorized

the

ships

examine

bound

any

This

seized

to pay

seas

American

such

vessels

damages

for the
whether

power
seizure

Acting

in the

absence

of vessels

Little

bound

from

affirmed
owner
seizure.

these

and

seized

port.

directed

Captain

Court,

after

would

of Congressional
in the

under

stopped
which

The

restored
Little
first

have

action

illicit

and

to any

all American

a French

the President

engaged

traffic

an order

and

on the

of the statute
accompanied

ports.

Captain

ing the question

copies
vessels,

French

to its

under

sailing

to seize

a vessel

port

vessels

them

unanimously

vessel

French

directing

to or from

Court

in 1799 sus-

in the prohibited

of any

instructions,

on the high

sharply
Congres-

provisiou
authorized
the
of United
States
armed

of engaging

seizure

instructions

presidential

the

to any

ports.
President
Adams
sent
commanders
of United
States

by written

Marshall,
to usurp

by Congress

A further
conmlanders

and

high seas
French
to the

to proceed

of forfeiture.
to instruct

vessels

Justice

President

intercourse
between
the United
States
the mldeclared
naval war between
the
act provided
that
no 2unerican
vessel

be permitted

penalty
President

the

an act passed

pending
commercial
and France
during
two nations.
The
should

Chief

by

traffic,

pos-

had

the

to order

the

pointed

out

that Congress
had prescribed
by its legislation
the manner
in which seizures
were to be carried
into execution
and had
excluded

the

to a French

This

Court

that

the

President

care

that

the

seizure

of any

port.*

The

there
laws

said,
of

bc

the

Court
Cranch

United

faithfully

vessel

bolmd

held
170,

States,
exeeuted_

that,

177:
whose
_ and

from
even

"It

is

high
who

by
duty

is

rather

than

though
no
it

means
is

commander

App. 1121

the
clear

to

'take

in

chief

45"
executive
vessels
lated

construction
bound

from

to hmrease

Executive

had

Commander
cuting

a few years
holding

sitting

on Circuit,

There

had forbidden
but

provision
tain
ever,

of law

vessels
in their

10 Fed.
Acts

was

calcuthe

authorized

by Congress.
v. Barreme,
of this

Bee in Gilchrist

355 (C. C. D. S. C.,

of the Jefferson
to trade

Collectors

Adminiswith foreign

to continue.

One

of Customs

on a coastwise

the intention

as
exe-

Johnson

Judge

shipping

bound

power

of faithfully

in Little

Cas.

to

legislation,

his general
guise

vessels

coastwise

opinion,

the

by Mr. Justice

American

ostensibly

the

and District

Embargo

permitted

the Embargo
instructions
lector

the

under

of seizure

ports)

of

the decision

made

of Charleston,

tration

power

the law as enacted

after
was

1808).
ports,

either

or lmder

to expand

0nly

v. Collector

effectiveness

no right,

in Chief

a similar

the

as well as to French
the

the laws,

Court,

(extending

voyage,

is to violate

to de"when-

or evade"

Act.
The Secretary
of the Treasury,
under
from President
Jefferson,
instructed
the Col-

of Customs

at Charleston

to detain

all vessels

carry-

ing specified
cargoes,
regardless
of where they were bound
or whether
the Collector
had any reason to believe that there
was

an intention

of the armies

to evade

and navies

the Act.

of the United

States,

m_ght

not, without

authority
for that purpose,
in the then existing
state of things,
powered
the officers commanding
the armed
vessels of the United
seize and send into port for adjudication,
American
vessels which

any

special

have emStates,
to
were for-

feited by being engaged

in this illicit commerce.
But when it is observed that
the general
clause
of the first section
of the tact, which declares
that such
vessels may be seized, and may be prosecuted
in any district
or circuit court,
which shall be holden within
or for the district
where the seizure shall be
made,'
obviously
contemplates
a seizure
the 5th section gives a special authority
that authority
to the seizure of vessels

within the United

States;
and that
to seize on the high seas, and limits
bound,
or sailing to_ a French
port,

the legislature
seems to have prescribed
that the manner
shall be carried
into execution
was to exclude u seizure
bound
to a French
port."

in which this
of any vessel

law
not

App. 1122

46
The

Court

rejected

this

attempted

expansion,

by Presi-

dential
order, of the detention
provisions
laid down by statute, and issued a mandamus
against
the Collector
to compel
him to clear the vessels which he had detained
under Presidential

instructions.

The

basic

judiciary

to strike

as controlling
Barre_ne

that

ple

was

today

the

executive

stay

adapted

caused

in the

time

There

the

the

out

are

of Little
basic

of law

action

with
their

v.

princi-

bounds

of executive

to be compatible
to carrying

the

encroaclmmnt

within

the rejection

be said

and

were

must

which

executive

v. Collector.

to require

Congress

the

as they

Gitchrist

plausibly

principles

down

and

held

might

constitutional

the

which
Acts

general

of

intent.

Here, even such conceivable

basis for the executive
action
is plainly lacking.
By no stretch
of the imagination
can Mr.
Sawyer's

actions

laws passed
The

be said

Labor
on

expiration

of the War

Following

June

the
in
on

courts

authority

no

reeord

answer

to

they

_"

The

certain
war,
the

Fed.

the

Attorney

War

its

cessation

of

hostilities

declaration
12

Fed.

Reg.

The

authorization

law

is not

terms

new

having

was
week

Collector,

thn

by

at

359

seq.)

mandamus

case

an

]=[is

with

explanation

views

are

substantially
at

seize

six

months

in

World

been

by

before

the

(10

an

of

Cas.

to Presithat
the

Executive

Order,

of impeachment
thereupon
placed

his

opinion

particularly

every

Fed.

General
argued

and

apposite,

argument

made

an
since

by

Mr.

bar.

Act_
to

enacted

report

rendered
by the Attorney
which
the Attorney
General

interfere

to the

disputes.

Act. _*

of the President
was _Cto the court
to the courts.
Mr. Justice
Johnson

Disputes

conditions

by

2714,

the

one

Disputes
v.

labor

Act

just

Gilchrist

General.

Labor

expired

in

demolish,

in

specified

dential

Gas.

and

counsel

Labor

to

(10

anticipate,

8awyer's

1947,

an opinion
subject,
in

that
the responsibility
to the nation"
and not

on

by

full
the

to give effect

emergency

Relations

23,

decision

at 357)
quotes
dent
Jefferson
had

covering

Management

Congress

and
and

to be calculated

by Congress

which

had

facilities
after
War

made

authorized
necessary

the
II,

on

the
for

declaration
i.e.,

on

by

June

30_

31,

1946

December

President

under

prusecutioa
the

of

President

1947_

the

the
of

Presi-

(Proclamation

1).
of
or

seizure

unfamiliar

in particular
to

Congress.

cases

and

At

ninny

within
times

limits
in

the

App. 1123

laid
past,

down
and

47
The

pattern

agement

established

Relations

dispute

cannot

vided

Act

be resolved

by the Act,

problem
authorized.
posed,

to

firmly

The

the

and

during

President

Congress
Congress,

the problem

by Congress

for
when

(s_tpra,

clear.

the

rejected

If

80-day

is to report
its action.
the device

formally

Executive

in the Labor

is unmistakably

Man-

the labor

period

pro-

the enlergency

Seizure
of seizure

its use

was not
was pro-

ill dealing

with

p. 22).

Order

and

Mr.

Sawyer's

action

must

be

considered
in the framework
of this unequivocal
Congressional action.
It is difficult to conceive
of Executive
action
more

directly

On

inconsistent

every

proper

with

occasion

Congressional

which

seizure,
Congress
has expressed
the Emergency
Powers
Interim
authorized

emergency

short-term

statutes,

ing contained
"shall

now,

be construed

Congress

has

problems

affecting

gressional

authorization

authorized

the

seizure

national
of

31, 1862);
Defense
Act

as

designated

provided

seizure

a method

interest.

seizure

and

that

noth-

by the

are

Telegraph

as

Lines

extended,
which are

o:f dealing

Outstanding

govern-

with

specific

examples

of

Con-

32

Star.

follows:
Seizure

Act

e. 134,

120,

39

Control

Act

of

1916,

c. 418,

1,

39

Star.

645

Service

Act

of

1940,

e. 720,

9_ 54

Stat.

892

of

1916,

of

1862,

c. 45,

Star.

213-214

(June

Transportation
(August

-9,

System
1916);

Selective'Training
(September
War
(June

certain

pointedly

this

In passing
Act, which

authority
of any act herein
owned plants
or facilities

(January
National

3, 1916)

of

to authorize

Railroad
334

since

its opposition.
Continuation

extension

Congress

intent.

arisen

in the Act

ment, under
the
of any privately
even

has

16,
Labor

25,

Disputes

Act

of

1943,

e. 144,

3-6,

57

Star.

164-166

3943);

Universal

Military

1, :18, 62 Stat.
Defense
(September

and
1940);

625

Production
8, 1950);

Training
(June

24,

and
1948)

Service

Act

of

194S,

e.

625,

Title

Act
of 1950,
e. 932_ Title
2, 201,
64
c. 275, Title
1, 102(b),
65 star.
132

Star.
(July

799
31,

1951).

App. 1124

48
not

public

Sess.

5, April

Similarly
mental
that

the

(Pub.

Senate,

of the

in passing
Act

funds

of enforcing

4192, 4216

L. No. 313, 82nd

Rec.

Office

of 1952,

Executive

(April

Federal

(April
Security

4626 (April
The

Appropriation,

situation

is precisely
and

deemed

funds

for

illegal

ratified

the

Co. v. U_.ited

sistent

with

ment,*

Congress

must

also

wartime
States,

by

by placing
Treasury

inthis
and

98

29, 1952)

Cong.

; LaborRec. 4621,

has

be contrasted
curfew

program

320 U. S. 81 (1943).

has

in which

on

occasion

appropriation

See,

e.g.,

of

Isbra_dtsen-

300 U. S. 139, 147 (1937).

tripartite

issue

seizure.
of the Executive

in this

joint

the President,
upheld
There,
making

exercise

its obinstance

of the

exemplified

in Hirabayashi
in affirming

Con-

of govern-

expressed

the

with

system
and

with
and

of a statute

subsequent

of our

taken

of that

action

purpose.

States,

the dignity

by Congress

of violation

(April

the

98 Cong.

1953,

the converse
the

to the unwarranted
unauthorized
action

powers

See

for

two later

1953, 98 Cong.

executive

particular

Moller

jection
The

10340.

its view
measures.

4617

provided

29, 1952).

unauthorized
been

2d

Supple-

be used

In at least

Appropriations,

28, 1952),

Third

specifically
shall

Order

21, 1952).

Departments

4579

on the

appropriated

stances
the Senate
has reiterated
same prohibition
on appropriation
Post

Cong.,

14, 1952.)

Appropriations
none

purpose
Rec.

utilities."

war

by the
v. United

a conviction

it a misdemeanor

to dis-

A strong deterrent to additional

formal Congressional
action against
Mr.
Sawyer's unconstitutional
exercise of the executive power has been the reahzation that the unwarranted
executive action should be handled by the judiciary
in
the exercise of its respon._bilitics
under the Constitution.
This salutary
attitude
that the interests
of our form of Government
are best served by having constitutional
rights prc_tected by the courts has been constantly
reiterated
in Congress since the seizure of plaintiffs'
properties
under the purported
authority
of the Executive
Order.
See, e.g., 98 Cong. Rec. 4067 (April
16, 1952), 4159
(April 18, 1952), 4193, _197 (April 21, 1952), 4287 (April 22, 195'_).

App. 1125

49
obey

curfew

orders

pursuant
to an
the statute
had
The

Court,

promulgated

executive
order, this
ratified
and confirmed

after

emphasizing

conviction

was based

few order,

pointed

cooperative
The

by military

Executive

and

in essence

of Congress
action

Court concluded
that
the executive
order.

the statute

contemplated

out that

action

that

on which

authorized
the

and

under

commanders

the cur-

case involved

the

scrutiny

the
the

Executive.

here

lies at precisely

the opposite
end of the spectrum.
Congress
has explicitly
refused
to authorize
the use of seizure in the type of situation

here

presented.

the emergency

machinery

Management
Executive
spheres
/t quite

And

operate

inquiry

which

smoothly

remains

to take

the

production

facilities

Universal

any

Training

625; 50 U. S. C. A. App.
fense

Production

65 Star.

132;

Act
50 U.

their

respective

chose
other

and

468)

and

of 1950,

to follow

law

are

of

Section

Seryice
Section

as amended

S. C. A. App.

the

the

the seizure
of plainauthorize
seizure
of

by the President

Military

in the Labor
and

within

whether

of

Congress

Executive
course.

United
States furnishes
authority
for
tiffs' properties.
The only laws which
.any

advantage

by Congress

Act--under

of responsibility--the
different
and contrary

The

than

provided

Relations
would

rather

2081).

Act

18 of

(62 Star.

201 of the
(64

Star.

See

De799,

Appendix,

_tfra.

Mr.
District
freely

Saw_,er's

counsel

in

their

memorandum

conclusively
Section
that

that

no claim

could

]8 of the U_iversal
provides

it is in the

prompt

the

Court (p. 62), and again on oral argtmmnt

(R. 371),
achnitted
that the Executive
Order
and the action

taken under it are not based on these or any

Even brief consideration
of these two statutes

ice Act

in

delivery

that,
interest
of any

upon

be made

Military
the

of the
articles

to the

contrary.

Traipsing

President's
national

other statutes.
demonstrates
a_d Serv-

determination
security

or materials,

to obtain

the

procure-

App. 1126

5O
ment of which has beenauthorizedby Congressexclusively
for the use of the armed forces or the Atomic Energy
Commission, the United States is authorized to place
orders for such articles or materials. The order must
specifically

state

that

it is being

provisions

of the

section.

an order

is placed

refuses

is authorized
son's

to

plant

and

articles

or

States.

Plaintiffs

to the

Section

time

preparation

and

property

that

all

hausted,
property
section

is

other
and

(ii)

upon

requisitioned
specifically

the

United

pursuant

Act

of 1950, as

(i)

demonstrates
seizure

during

after

for

the

fixing
and

the

only

this

national

have
of

of

that

defense

use

value

President

personal

determination

its

payment

the

of real
even

defense.

obtaining

forbids

also

to requisition

essential
of

but

property

for

only

means

per-

placed

unrestricted

President

then

that

of such

by

order

Production

industrial

the

of

production

required
no

such

President

section.*

against

private

of urgent

the

be

of the Defense

It authorizes
property.,

the

to the

whom

possession

only is not applicable,

of Congress

personal

may

with

to fill it, the

it for

received

of this

201(a)

the policy

as
have

pursuant

person

inunediate

materials

not

the

or fails

to operate

provisions

amended,
and

take

If

placed

the

its

and

been

ex-

personal

value.

The

to requisition

real

property.
Section

201(b)

excludes

by providing
that,
interest
of national
institution

of

executive

seizure

of real

ff its acquisition
is necessary
defense,
the President
is confined

regular

condemnation

proceedings

estate,
in the
to the
in

the

courts.

that

Uncoutroverted
this is true as

sworn statements
of the plaintiffs'
to U. S. 8reel (R. 83);
Bethlehem

(R. 163);

and Youngstown

the other

plaintiffs.

(R.

17).

There

executives
(R. 119);

is no contrary

claim

disclose
Republic

as to any of

App. 1127

51
Moreover,
Congress

in Title
expressed

cedure

for

national

the

settlement

defense."

thorize
agement,

with

action

1950 are

expressly

labor

worth

as well as personal
real

The

estate

of 1947

was

has

to

of

Title

settlement

That

of

Congressional

stringent

is

clear.

"The
The

It.

requisitioning
has
_rms

been
Q _

:No.

to

is
upon

that
unable
" "

the

desirous
the

obtain

8]st

thus

far

laws
Act

of

1951 amendreal

Alnendment
he was

estate
of Jtfly

to requisigiven

instead

to institute

con-

pursuant

to

Act and has taken

personal
property

been

seizure
earlier

has
and

Cong.,

is a drastic
of

public.

authority
to

net

the

2759,

to requisition

committee

requiring

to the

determination

against

respect

Rep.

power

have

no
Man-

implemented

with

re-

disputes.

policy

With

eliminated),

defense
Labor

authority

and

in don-

applicable

authority
merely
in the courts.**

labor

that

to requisition

away,

marl-

(Section

503.)
Production

By the

no

on to auauthorizes

between

other

of the Defense
Production
acquire
either
real
or

provisions
the

or

Act, prior

made

goes
and

of the

(Section
Defense

President

taken

the

national

132) the President's

President

The

(now

Act

more limited
proceedings

any provisions
no action
to
thereunder.

_*

affecting
provisions

That

affecting

however,

the

property.

(65 Stat.

the much
detonation

spect

provided,

disputes

the

pro-

of the public.

with

noting.

Act,

be effective

Act

conferences

authorized

31, 1951

The

representatives

be taken under Title V.

1951 amendments
to the

ments,

tion

501.)

voluntary

and

Production

disputes

to initiate

Relations

should
The

of labor

facilities,

inconsistent

agement

there

conciliation

Congress

nection

Defense

"that

and

labor

502.)*

the

(Section

mediation

the President

V of
its intent

2d

Scss.

exercise

reducing

to

Provisions
cannot

be

the

property

steadily
me, re

of

become

drastic
4

(1950)

the

minimnm

the

have

therefore

been

on

unless
fair

said:

sovereign

the

exercised

the
and

more

provisions

power.
effect
inserted,
President

reasonable

App. 1128

of

52
We have,

then,

unauthorized
contrary
gress
the

a situation

by any

where

existing

this

act

to the

procedures

specifically

every

applicable

statute

in
present

seizure

not

of Congress
laid

for

but
down

dealing

only is
is flatly
by

Con-

with

just

situation.

D. The Seizure and Mr. Sawyer's Other Actions Cannot Be Justified Under the President's Power as Commander in Chief.
Paralleling

the responsibility

execution

of the laws passed

military

function

Navy..

The

of the

colonies

firmly

in mind,

function
the

"In

the

conferred

of direction

this

of military

of the

with
King

the

respect

his

Army

the

and

his

President

" Several
to Congress
claimed and
according
to

generals

the

limited

operations.

As

stated

would

be nominally

more

authority

than

the

supreme

and

naval

command
forces

and

in

which,

by the

appertain

the

Constitution

to the

under

in
to

direc-

* * * ; while

of the British
king extends
to the declaring
and to the raising
and regulating
of fleets and
would

and

grievances

of the king of Great

Britain,
but
inferior
to it. It would
amount

tion of the military

--all

the

No. 69:

same with that

substance
much
nothing

English
upon

for

is the President's

in Chief

Convention,

against

Executive

by Congress

as Commander

Constitutional

Federalist,

as Chief

that

of war
armies,

consideration,

legislature."*

of the "war powers" which the Constitution

entrusted
specifically
and not to the President
were, by contemporary
practice,
still
exercised
by the British
Crown as Commander in Chief.
Thus,
Blackstone
it was the King and not the Parliament
which had

power to declare
war, grant letters
of marque and reprisal,
concerning
captures
on land and water.
Likewise
according
it was still a part of the Crown's prerogative
to organize
and

and make rules

to Blackstone,
arm the militia,

to make rules for the government

and regulation
of the land and naval forces,
and possibly even to raise armies.
Even the power of compulsory
military
service
(in the form of impressment
of seamen, particularly
distasteful_
by

App. 1129

53
As
the

we have

defense

support

seen,

of the

Congress

armed

under

President's

related
are

within

the

the Executive

which to protect
Constitution
has
power

them."

1, 26 (1942)
Cir.

Court
powers

; O'Neal

1944),

the

on the

war

and

1375, 87 L. Ed.
and

As

was

315 U. S. 289, 309

of additional

Lichter

laws

v. United

_)(irte

Sh_tes,

by
the
the

States,

Q uirin,

317 U. S.

140 F. 2d 908,

does

locate,

ration,

etc.]

power'

with

experience,

stone's

King

to

the

911

As the

specifically

transferred
also

Story,

of

Book

regarded
The

rather

country

President,

is

part

principal

war
any

drastic

which

in

the

falls
the

colonists)

7 and

Constitution

Constitution,

war

to

13.

declared

It

See,

the

legislative
Ed.

Arlny

power

legis[to

the
is

by

in

al-

'legis-

invested

Blackstone

generally,

is noteworthy

prerogative

149 "0. (Coolcy's

of the

power

within

authority.

executive

power

Congress
was

Parliamentary
the

Hira-

of the

not include
necessarily

of

conferred

I_iyoski

* * Such

1, Chapters

as

than

320 U. S. 81, 93, 63 S. Ct.

the

American

independent

Commentaries,
powers,

this

on the

nature

lative

the

legislative

as Commander-in-Chief

and

in its

in

States,
1774,

arises

Navy

lative

See

Laws

war profiteering,
not to this Court,

are

power

v. United

President

these

is

of our

322 U. S. 729 (1944).

rationing

Congress

bayashi

in

den.led,

forces.

of Congress.

; Ex

v. United

cert.

to establish
:

"While

be

also

and

said in the O'Neal

case, in pointing
out that such
as the right to allocate
defense
materials
and facili-

ties and
executive

actual

See
(1948)

in
The

maintenance

Corp.,

is in need

765-766

placed

nature

arlned

the

the nation
against
given to Congress,

to make

334 U. S. 742,
(6th

Steel

the

Constitution.
in

sole domain

to

and

specifically

of the
and

relating

of war,

ntilitary

of war

in U. S. v. Bethlehem.
"if

was

to the direction

defenses

laws

8 of tile

is purely

to the conduct

(1942),

to enact

the prosecution

I, see.

relating
said

power
forces,

Art.

power

directly

tile

of the nation,

to
Black-

tlmt
England,

all

of

were

branch.
1873).

App. 1130

54
(Art.

I, Section

1, U.

S. Constitution)."

(140

F. 2d

at 911.)*
The
in

limits

Chief

It has
is

on the

have

long

been

strictly

power

been

of the President

clearly

settled

military

that

in

as Commander

delineated
under

by

this

character,

the

this

Court.

authority,

which

President

has

the

power
to control
civilian
activity
only where
the emergency
is so imminent
and the threat
of military
danger
to the nation
so pressing
that the slightest
delay
would
lead

to disaster;

court

review.

Mitchell

See

v. Har_nony,

to

provide

Ez

Parte
H

the

award

into

Wall.

private

Mexico
the

Army

damages

by

the

the

it is said

Milli-

to

Congress
injury

consent

of

Congress."

October

the

President

Term,

courts

in

jurisdiction
Articles

in
of

all

respects7

the

country,

decided

where

which

they

of

War.

of

alia:

Commander

areas,

that

following

1951,

as

occupied

held
seizure

inter

the

411,

trader

who
the

accompanied

Mexican

distance

nppellant_
and

the

enemy
Mitchell_

"train

for

affirmed

an
with

April
in

Chief

Congress

had

possessed
But

on

see

for
by

also

was

train

Harmony
him

service.

train

Expedi-

wagon

compelled

substantial
this

American
a

territory,

military

wagon

Mitchell
was

War

into

Colonel

wagon

Colonel
jury

placed
where

the

(1850);

(1866).

retreated
sued

the

of

during

his

it was

justify

to

revised

some
used

Harmony
of

where
not

power

existing

Congress

and

No.

power

of

progressing

troops

American

Mexicans.

parte

to

v. R l_ssell, 13 Wall.
287 U. S. 378, 400-

is subordinate

and

military

when

whereupon

the

the

courts

was

After

; Ex

716

military

Kinsella,

by

Milligan,

return,

with

1916,

Force

goods.
to

trial

Harmony

tionary

v.
with

such

29,

115 (1851)

Court

Chief

his

concurrence

Madscn
for

615

did

this

is subject

603,

Constitution
in

use

the

dealing

deprived

August

_*
The

cannot
with

Compare

action

9 How.

supra,

power

Commander

he

except

1952,

war

2 .Tucker,

"The
and

28,

13 How.

property,
also

his

2 (1866);
United
States
Sterling
v. Constantin,

President's

plaintiff's

then

v. Page,

v. Harmony,

401 (1932).
In Mitchell

not

even

Flemitl9

gan, 4 Wall.
623 (1871);

the

and

to

of
tried

remain

Subsequently

captured
damages,

Court.

App. 1131

by

the

and

the

55
limitation
Commander

on tile exercise
in Chief:

"There

are, without

property

may

to prevent

public

enemy;

ctmrged

with

property

into

tile

doubt,

lawfully

stroyed

use

of

occasions

be taken

it from
and

also

where

cases

we are
the

or the
will

not

"Our

clearly

danger

urgent

admit

duty

private

insure

ilapress

or take

of the
officer,
private

it for

public

and

service,

and

under

that

the law does

stringent
over

emphasized

in

where
public

United

this
danger,

mental
processes
the Court said:

ever,

beyond

malting

impossible,

"Extraordinary

and
all

the

civilian

must

unforeseen

doubt,

in cases

by

a public

at 134-135.)
of

property

v. Russell,

military
was

13

Wall.

it apparent

recourse

the

may
deem
it
it very clear

exercise

nmde

of the

owner

(13 How.

for

again

as

circumstances

against

and

States

Court

action

the

officer
we think
it."

such

And the question

it to be taken
to

ente,'prise

not permit

activity

fro,n

of war.
permits

of any

requirement
civilian

the

impending;

in providing
_ * *
wlmt

be taken

officer in a ti,ne
whether
the law
success

where

too late
calls for

is to determine

the

in all of these

the .public

would
be
the occasion

may

that

be immediate

enemy
_hich
the commanding
advisable
to undertake.
And

treme

military

for

of delay,

property

military
here is,

(1871)

of opinion,

nmst

necessity

civil authority
means wliicli

power

private
of or de-

may

serviee

as

* * _

"But

This

in which

into tile hands

duty,

public

power

possession

falling

a particular
the

Presidential

re623

that

ex-

to normal

govern-

be established.

There

occasions

arise,

of extreme

how-

necessity

App. 1132

56
in time

of war

or of immediate

danger,

in which

into

public

the

private

and

impending

property

service_

or may

may

public

be impressed

be seized

and

appro-

priated
to the public use, or may even be destroyed
_dthout the consent
of tl_e owner.*
* * Where
such an
extraordinary

and

unforeseen

public service
in time
that the power
of the

emergency

of war no
government

occurs

in the

doubt is entertained
is ample to supply

for the moment

the public
wants
in that way to the
extent of the immediate
public exigency,
but the public
danger
and

must

the

treme
tlm

emergency

and

delay

be immediate,
in the

imperative,

or a resort
the

must

exercise

or impending

gency,

as was

right,

shown

and

the

strictly

military

within

the

theatre

I-Iow.

115

(1851);

taining

power

the

of

rebellion,

and
of

as
war.

kind

a great
that

of

of supply,

and
re-

in respect

appropriated,
do arise

in time

but it is the emer-

magistrate,
the

be ex-

admit

imperatively
power

danger,

that

emergency

taking

can

courts

the

neutral

Commander
is designed
See

E:v flarte
proper

by military
commanders
during
a war
(United.
227 (1887))

of the

the

in character,

of the
by

extreme

it is clear
before

as

must

gives

must

be

be

justified."

at 627-628.)

Moreover,

Indicative

by

source

such

impending,

not

so finpressed,

public

said

to exist

(13 Wall.

other

Exigencies

of war
the

as will

be

property

or destroyed.

service

such

of that

to the particular

and

public

and

to any

circumstances

quire

imminent,

Milligan,

scope
of

Mitchell
of

such

in

Chief,

for

exercise

being
only

v. Harmony,
4 Wall.

the

power

action

as

13

2 (1866).
is the

sus-

destruction,

in the field, of railroad

bridges
States
v. Pacific
It. R., 120 U. S.

seizure,
vessels

when

confronted

running

with

blockade

armed
(Prize

App. 1133

57
Cases,

2 Black

of tile

steel

Umted

635

industry

States

what

(1862).*
situated

and

proportion

Ttle

seized

or

nationwide

throughout

properties

the

indiscriminately

type

of products

continental

regardless
were

designed

military
use, certainly
cannot
be characterized
within a theatre
of military
operations.
**
Although
justifies

the Presidential
the

stringent

taking

ference

private

power,

the

any

property

taking

Congressional
for

"The

ized,
some

United

Significant
were

that

also

under

armed

force

to

specifically
_
Ill.

Cf.

reversed
Labor

express

8tares

Commander

in

Disputes

that

Act_

clearly

Quirin,
members

317
of

U.

of

an
of

S.

by

of

Ward

Chief

since

seizure

F.

2d

(trial

engaged

to

officer
author-

to do so by
Government."
See,

the

armed
in

authorizing
had

also,

rebellion,
Chief
him

passed

but

to

use

legislation

blockade.
_. Co..
not

plants
(7th

of
the

an

being

Commander

Congress

Ward

was

as

statute

plants

369

(1942)

army

addition

that
the

is recognized
that,
may
be considered

fol'ei_,_

Taking

legislature;

without

only

early

and

under

to take property
by
Congressional
authori-

in

not

Montgomery

the

150

U. S. 69t} (1945).
It
tinental
United
States
l'arte

v.

domain.
of the

use,

Cases,

acting

declaration

seizure

ground

Prize

was

insurrection,
the

(holding
on

the

mili-

be made

necessary
implication,
is not the act of the

authority

suppress

U._lited

as

in

it does

President's

property

public

the

When, as
for inter-

218 U. S. 322, 336 (1910).

Lincoln

ratifying

1945)

power

faetnrs

eminent

private

for

States,

President
the

present,

must

is a power

of

States

the

department
be based on

expressly
or by
act of Congress,

Hooev.

of

use

taking

of the United

under

of property

power

public

right
of the executive
eminent
domain
must
zation.

when

the function
of eminent
domain.
situation,
there is no foundation

with

property

are

being

in Chief

of property

for its exercise

for

as

as Commander

destruction

requirements

not encompass
in the present
tary

or

power

of

outside

justified
Cir.

by

F.

the

under
1945),

under
,:erta.in
within
the

in acts

58

justified

military
of

war

Supp.

408

under
'ttheatre
section

dismissed

(N.

of
3 of
as

war"),
the

War

moot.

326

circumstances,
theatre
of war.
tribmad
on United

D.

:President's

of

the conCf. Ea_

saboteurs

States

soil).

App. 1134

58
United

States

v. North

Ame,rican

Co., 253 U. S. 330, 333 (1920)

Fed.

748

(S. D. Ga. 1895);

U. S. 700,
(1919);

709

(1923);

Chappell

Transportation
; United

Rindge

Bragg

v.

States

v. Rauers,

70

Co. v. Los Angeles,

v. Weaver,

U_dted

Tradi_tg

States,

251 U.

160

U.

that

upon

262

S. 57, 58

S.

499,

510

(1896).*
Moreover,

although

it is settled

ing out of war enemy

is subject
to seizure
sistently

held

under

the

has

no

that

this
power

enemy

The

very

to those

yet

which

was

within

nature
in

principle

within

the
329

122

F.
**
Y.

2d

To

order

that

on]y

the
such

Court

seizures
States,

said:

the power

of confiscat-

legislature,
its

and

will

our territory

by or

Executive

v. United

this

declared

of the

Chief

that

the

1872),
"Under
enemy

so

733

S.

eminent

long
by the
of

that

the

to confiscate
at the declara-

(4th

in
the

Cir.
effect

which

it was

and

may

cert.

States

denied,

which

only

e.g,
T.

citing
the
due

Brown

United
to

an

U.

4 Fed.
v.

S.

6S3

Cas.
United

States,

the

enemy

is in

to

recent
years
the "taking"

U_ited

!7. A.

can-

pursuant

that
in
whether

Seej
tel.

as

restricted

danger

exercised

ex

324

v. Butler,

held,
of

be

power

be

v.

v. Threl_eld,
72 F. 2d 464
(10th
; U_ited
States
v. West
Virginia

Britton

debts

use

established
limited
to

authority.

United

1941),
see

constituti.n

property

domain

StTtes
(1934)

its

public

and
thoroughly
courts
has
been

(1946);

military

that

congressional

230

; United
U. S. 620

same

President's

requires

of immediate

scope
U.

U. S. 5411 (1946)
cert.
denied,
293

N.

not

instances

Carmack,

or

Brown

is in the

has

of Congress
is
principal
inquiry

was

that

of war."**

Commander

The

be exercised

make

to the Court,

the break-

within our territory

it has been con-

and

in which

property

property
tion

to

(1S14)

"It appears
legislature

can

legislation.

110, 129

ing

power

of Congress,

Congressional

SCranch

act
the

property
found
and confiscation,

direction

inherent

without

law

_tates
Welch,

v.
327

Cir. 1934),
Power
Co.,

(t941).

177,

IS0

(C.

C. S. D.

States:
power
congress

of

confiscating
alone."

App. 1135

59
not be handled
States

by normal

v. McF_l.rla_nd,

gray,ted,

governmental

]5

action.

F. 2d 823

273 U. S. 688 (1927),

(4tb

cert.

Cir.

[the

within

President's

narrow

In

the

bounds."

case

remaining

power

at

from

as

there

World

War

is no
II.

longer

The

Treaty

Senate

gave

h{arch

20, 1952, was

ratified

by the President

iting

such
28.

took effect
ratification

In fact

(R.

expressly

Chief]

the

and

Court

disclaimed

any

15th,

of

State

in their

on oral

idea

seizure
on any claim of a technical
from World
War II.

on

act of depos-

both

(p. 58) and

with

consent

on April

Department
counsel

of war

of Peace

its advice

the ministerial

with

in the District

371)

after

Mr. Sawyer's

orandum

in

a state

the

April

as to
of this

(15 F. 2d at 826.)

bar

to which

formally

cert.

275 U. S. 485
standard
exercise

Commander

Japan,
and

United

1926),

revoked,

(1927),
the Court emphasized
the salutary
"how careful
the courts are to restrict
the
power

In

on

mem-

argument

of justifying

state

of war

the

remaining

The preamble
clauses
of Executive
Order
No. 10340
refer to the hostilities
in I_.orea and "our national
defense
and

the defense

sion"
tiffs

of those

(I_. 7).
have

should

no argument

take

steps

fact

remains

ment

There

joined

with

be no need

with

the

necessary

to resist

that

the Constitution

do not

ent situation,
in Clfief.
In

January,

State

of the

visualize
under
1951,
Union*

this

us in resisting

fact
and

problem

1, 82nd

met,

placed

major

emphasis

beyond

Cong.,

1st

argument

in the

Sess.

pres-

Commander
on

on the

a strong
continued
that

must

of govern-

in his message

President,

as

plain-

inescapable

form

the

It is clear
No.

n . The
our

power

to two years.
Doc.

nation

being

and the need to present

Korean
hostilities
have

It.

that

our

the President's

of aggression
defense.
The

H.

to say

that

aggressio

aggres-

the

the

threat

national
for close
present

(1951).

App. 1136

6O
controversy

does

emergency.
The affidavits

not

present

submitted

situation

in opposition

of

to the
themselves
controversy

no stretch

to involve

of the imagination,

imminent

threat

of

be said

military

disaster

the exercise
of presidential
power
Those affidavits
clearly
reveal that
a problem

of more

of securing
production
ties,

Atomic

and

for

and

continuing

And

Congress

]ms

in this

desirable.

As

disputes

aspects

of our

the

to the

supply

of vital

effort,

is necessarily
stress--has

consideration,

existence
months
sudden

as long

these
for

Commander
seizure
and

ago

contimfing

periods

of years,

of the

military

from

one

on a completely

authority

as provided

and

other

this

ques-

in any

no

power

is based

"war

of

and

period

received

exten-

have

a minimum

present

power

The

relation

that

which

of that

by the

to
was

as 19'47.

version

Congress

seen

of the

in Chief.
Any contention
other
action
can be based

delineated

the

us, and

military
and

reluctance

materials

problems,

ranging

to a number
exercise

udth

pro-

authority

of

a continuing
been

facili-

is a broad

or

we have

the

of Congress.

particular

defense

of national
Patently,

hesitation
question

for

transport

province

basic

tion-which
sive

no

problem

construction
expansion

the

whenever

The

other

industry

shown

area

for

and

within

justifies

equipment,

Conmfission

petroleum

the sudden

which

standing.

military

vehicles

Energy
question

legislate
labor

for

the most
can, b)"

as Commander
in Chief.
what is involved
here is

two years'
steel

of civilian

for

grams

than

necessary

sudden

applications

for injunctive
relief
(R. 27-62) are
eloquent
testimony
that the present
and

been

in

of several

basis

for

any

President

as

that Mr. Sawyer's

on the President's
indefensible
in the

per-

Constitution

courts.

powers"

of

the

President,

the

United
not

States
those

of

are
the

those
President

App. 1137

of

61
alone. It is for Congress,and not for tile President, "to
raise and support Armies", and for the President to direct
them. Under the President's power as Commander in
Chief, as the courts have uniformly held, property can be
seizedor destroyed only in the course of battle in order
that our arms may prevail. This is a far cry from a contention that the power extendsin any way to a continuing
domesticprobleminvolving a major aspectof our economy.
The

present

controversy

does

not present

in a campaign

in the field. It is a question

import

must

which

be--and

has

a problem
of broad

been--dealt

arising

legislative

with

by Con-

gress.
Constitutional

guarantees

President,

after

ignoring

gress

after

failing

an,]

to take

other

action

then

claim

zure

of an entire

Above

the

would

be meaningless

the procedures
to request

wlfich

existence

he might
of an

if

provided

by Con-

Congress

for

deem

desirable,

emergency

the

authority

justifying

could
sei-

industry.

all, there

can be found

no basis

in the Executive's

military
power for any action by Mr. Sawyer
to the terms
and conditions
o employment

with respect
of plaintiffs'

employees.

of power

defendant's
can be no
in

Chief

announced
increases
employment,
funds

Entirely

aside

from

the

seizure
of plaintiffs'
basis in the President's
for

placing

in

absence

properties,
power

effect,

in

for

there
clearly
as Conmmnder

accordance

with

the

and
repeated
threats
of Mr. Sawyer,
wage
and other
changes
in terms
and conditions
of
or for the forcible

to carry

out

those

appropriation

of plaintiffs'

changes.

App. 1138

62
E. The

Seizure

gregate
tive

Cannot

be Justified

of Powers"

Action

or by Isolated

Which

Were

At tim argument

power

that

Court:

was

to deal

Well,

and

adequate

But

(R.

opinion),

Sa_wyer

this

in

the

an unreexisted

colloquy

crises

oc-

before

in

machinery

it.
that it?
it that if you

backed

nebulous

theory

President

and

by

power"

Court,

below

action

provision

of

this
which
the

and is indeed
somehow

filed

on behalf

his

petition
in the

specifically,

of
for

that

implication,

residuum

the
Con-

and

the

upon

the

of powers"

in the

of powers.

theory

boils

is not

authorized

Constitution

doom

or

inconsistent
achieves

of

Pine's

unchanged.

somewhere

proceeded

"aggregate"

assertion

requirement

by necessary

now

of Judge

and

to the

certiorari
(the

remains

of a "broad
analysis,

claim
language

be found

proceeds
of his

for

the memorandum

must

essential

statute,

strong

District

executive
States,

petition

lip service

the argument
here

existing

with

argument

that

pay

power

argument

United

had

coun-

pp. 27-29).

governmental

appalling

the

fact

here,

President's

specific

Sawyer's

following

have
had

in their

basic

the

certiorari

In

Mr.

it is expediency

justified

their

Despite

that

we

Execu-

Challenged.

for expediency.
Isn't
Well, you might call

say

repudiate
fully

stitution,

the

to cope

counsel

expressly

Mr.

of Past

"Ag-

420).

Although
which

we

Pine

of an

with it (cf. swpra,

we have

You are arguing

Mr. Baldridge:
like.

Instances
Legally

Judge

statement

this country,

Claim

that the President

had both
to decide whether
an emergency

In his concluding
curred :
"The

Never

before

sel argued
squarely
viewable
discretion
and an unlimited

by Any

an),

with

validity

to a claim
under
law

every

when

any
of

the

specific
all provL

App. 1139

63
sions

of the

Constitution

and

statutes

are

considered

to-

Executive

Order

and

being

without

au-

gether.
We

respectfully

action

purportedly

thority

under

submit
taken

ally

cannot

be validated

"broad

residuum"

Closely
gestion

that

justified

the

past

velt

Court

prior

under
reasons,

Order

to the
the

acted

passage

without

lawfulness

seized

of citations

presented

War

Labor

despite

irt the opposing

case

complete
1.

referred

to United

(1951),

in the President
gency.

Stat.es

as confirming
This

trovertible
question

fact
of tbe

that
power

erty--was

not an issue

the

of Claims.

Court

below

(see

v. Pewee

the

during
of

Executive

in the case,
See Pewee

the
brief

the

actions
to con-

considera-

for the present

in the

legality

of the

extended

Memoran-

341 U. S. 114
power

a national
face

the
action.

of a constitutional

made

of
ever

demonstrates

Coal Co., l_c.,

property

was

Act

was

the

p. 57 of their

the existence

l_.oose-

a variety

Brief

however,

or support

to seize
assertion

advanced.

examples,

lack of precedent

Counsel

dum)

every

or

memorandum

sider

random

in
in the

seizures

authority
supporting
unduly
extend
this

individually

action

Disputes

For

of these
that,

sug-

Presidents

by President

below, there is no judicial

here attacked..it
would
tion of a few

as

constitutional

as President.

of none

is the

the memorandum

of the

powers

such

h'[r. Sawyer's

in which

example,

put to judicial
test.
It must also be emphasized
parade

and

lists :[2 properties

his purported

of labels

contention

instances

For

provision,

of powers.

foregoing

apparently

statutory

application

Executive

authority.

District

or

or "aggregate"
to the

the

have

thereunder,
the

by various

legislative

the

constitutional
by

related

are

that

of the

emerincon-

taking--i.e.,
to seize

as specifically

the

the
prop-

stated

Coal Co. v. U_dted

by

States,

App. 1140

64
88 F.

Supp.

parties

426,

430

in the Pewee

the legality
ment

(Ct.
case

of the seizure

before

Judge

Cls.

1950).

were

The

in complete

was not in issue

Pine

Mr.

Sawyer's

briefs

of bofll

agreement

that

;* and on the argucounsel

so conceded

(p. 184).
2.

The

cases

cited

involving

seizures

of facilities

dur-

ing wartime
55 F. Supp.

(e.g., Ken-r_zd Tube and Lamp Corp. v. Badea_,

193 (_V. D. Ky. 1944)),
although
presented
as

justification

for inherent

actually
of the
out

involved
War

seizures

Labor

made

Disputes

power

under
Act,

to take

property,

the specific

authority

as Judge

Pine

3.

Counsel

now

that

principles

the

assert

if contemporaneously
to prevent
Purchase
pation

President
and

Jefferson

President

Proclamation.

on April
France.

This
(8 Star.

treaty

ciples did nothing

to buy Louisiana,
The brief of
at page 10:

for

from

making

from

is

sheer

gone
the

issuing

208)

States

with

in the

same

brief

"In both cases, the

lenged by either party,
these circumstances,
it
just

to make the

And see also Pewee's

same

brief

Louisiana

the

at page

Emanci-

the

a treaty

Government

constitutional

No.

President
by the
168, October

"Ncither
party has challenged
the validity of these
the Executive
Order, or the Secretary's
general action
again

as

nonsense.

accepted

(Docket

No.

below,
so far

did was to negotiate

under

United

in

decision

have

more than give the

subject
to ratification

the

certiorari

in the

would

Lincoln

Jefferson

30, 1803
That

(petition
embodied

applied,

All that President

And

pointed

(I_. 71).

745)

stated

executive

of
prin-

an option
Senate
and
Term

1950)

particular
actions,
under the Order."

89:

administrative
regulations
have not been chaiand their validity
is not iu dispute. " _ " In
is both procedurally
prop,.,r and substantively
assumption

on the merits,

in this Court,

_ " _ "

p. 36.

App. 1141

65
to the appropriation
The
conditions
Senate ratified
31, 1803

both

the Louisiana
later

they

of tile purchase

of the
the treaty
Houses

authorized

territory

pursuant

appropriated

(2 Stat.

245-265).

The

Emancipation

was

purely

to operate

federate

territory.

January

1, 1863

Proclamation

the

solely

against

enemy

1268),

and

West
Virgi_fia

Slaves

in those

tuck)',

Delaware,

areas,

the

Sherman's
his march
4.

of January

among

seizure

at

and

a time

actually
was
passed

for

in early
in the

theatre

in danger
a statute

specifically
'_ 2 Miller,

1861

gave
Treaties,

of

being
which

the

as

the

Federal

of

origbml
all of

portions

of

troops.

States

(Ken-

did not

receive

Amendment.
that

in enemy

Mr.

of

The

it was

"a fit

Sawyer's

Executive

during

counsel

action

"the
of the
and
bello

the

area

Civil

on

War

when

the

territory

lines between
Washington
again, was nmde flagrante
in question

of hostilities

and

isolated.

Congress

in effect

the President
etc.

.in Con-

excepted

by

recited

certiorari

Lincoln

telegraph
_q?his seizure,

that'

suppressing
said rebellion"
it was no dffferent
from

"precedents"

by President

railroads
Annapolis".

well

of property

petition
the

which

Thirteenth

1, 1863

destruction
to the sea.

In their

cite

by

Missouri),

and necessary
war measure
for
(12 Star. 1268).
Constitutionally,

1268)

Proclamation

as well as in the border

until

1267,

property

occupied

and

ten days
payment

It recited

specifically
as

then

Maryland

freedom

Proclamation

Virginia

to occupy
for

Star.

hello.

Supplemental

Stat.

and

Houses.

; and

stuns
(12

was put into effect,

Louisiana

legal

to the treaty

flagrante

The
(12

by both

President

necessary

measure,

Tennessee

their

the

Proclamation

a war

it w'as

price

option
were
duly
fulfilled.
The
oll October 20, 1803. * On October

of the United

ratified

control
States

the
this

capital

was
itself

subsequently
seizure

and

of all raih'oads

and

506.

App. 1142

66
telegraph
lines.
remain
in force
suppression
12 Star.
5.

The Act in terms

only so long as

of this

rebelhon."

provided
that
was "necessary

(Act

of Jan.

it was to
for the

31, 1862, c. 15;

334.)

Mr. Sawyer's

Presideq_t:
action
in

counsel

below,

Office and Powers,

President
Theodore

citing

from

p. 190, finds
Roosevelt's

Corwin's

The

support
for his
"stewardship

theory"
seizure

as exemplified
of coal mines

by his consideration
of the
during
a strike
to prevent

possible
a coal

shortage.
Corwin

Counsel
neglected
to point
out, however,
in the very next paragraph
of his study had

that
this

to add :
"One

fact

Attorney

'T.R.'

General

omits

to mention,

Knox

advised

and

him that

that

is that

his 'intended'

step would be illegal

and unconstitutional.
For some
reason the opinion is still buried among similar
areana
of the Department
Past

executive

support

acts

for sustaining

past
and threatened
observed
:
"Acts

based

ability

ing
The

(p. 191).

of doubtful

validity

the Executive
actions.

on this

of excuse

pretend
and are,

of Justice"

law
or

can

Order

As

recent

of necessity

and

of subsequent

commentator

asslm_ed

ratification

of constitutional
of the President,

no

and defendant's

to be supported
by constitutional
of course, of no value as precedents

the existence
War Powers

furnish

probdo not

authority
establish-

power."
[1943] Wis.

Whyte,
L. Rev.

205, 211-212.
There
foreign

could

to the

can through
present

be no more

dangerous

Constitution--than

some

legerdemain

principle--nor
a rule

serve

that

one more
past

as authority

illegality
to legalize

illegality.

App. 1143

67
Indeed,

if Executive

validity,

a nlost

During

the

Labor

construction

recent

coal

example

strike

Management

is to be accorded
is directly

of 1950

Relations

the

in our

President

Act;

and

any
favor.

invoked

on March

the

3, 1950,

he sent a message
to Congress
reciting
the steps
taken
mid
st_ecifically
reqzt, esting
Co_.gressio_lal
a,u,thorization
for

thc seizl_re
Mr.

and

of the

Sawyer's

has always

In

their

went
not

coal mi_les.*

counsel

now

had, an "inherent

melnorandum

so far

as to assert
or

Chief

situation,

for

existence'of

that

F. Mr. Sawyer's

this

limited

to effect
(p.

to

ask

has,

seizm:es.

60-A)

they

power"

Congress.

clearly

such "inherent

President

Pine

The

in an almost

seems

Action

the

"inherent

by

it necessary

seizure

any

Judge

Executive,

tllought

thorization

that
power"

before

he diminished

the present

clainl

could

fact

identical

that
recent

Congressional

inconsistent

au-

with

the

to

the

power".

Violates

the Fifth Amendment

Constitution.
In view of the complete
stitution
and laws of the
action,

it is clear

with

these

plaintiffs'

appears

"The

cna!

though

produce

believe

panied
trouble.

we
by

_rge

authorize
and
of

cure.

have

no

Rec.

sick
be

am

industry.

therefore,

Congress,
turn

its

to

attention
of

the

to
coal

It

effort
the men

seizure

by

that

Above

the

circumstances,
a_dhority

urge

with

it

1)eeltufla
be

accom-

to get at the root

of
who work
the mines.

employers.
oct

of due

concludes

present

seizure
But

to

take

interference

Temp-rary
under

the ConSaw'yer's

them

(1950).

recomlneading

alternative.

the

difficulties

2774-2775

and
constructive
the interest
of

Government

other

deprive

necessary

of their
people.

to

basic

is
may

and

rights

in the interest
the American

the

then
the

T
it

now

a positive
This
is in

is equally
interest
of

seizure
and

ill 90 Cong.

iudustl

Government,
I

the

property

_ The message
words:

cannot

that

lack of authority
lmder
United
States
for Mr.

all,

immediately

on

possession

of

and

operate

legislation

looking

toward

it

is

in

the
It
the

legislation
the
a

to
mines,

solution

industry.".

App. 1144

68
process
it were

in violation
of the Fifth Amendment.
to be assumed
that the Executive
could

circumstances

authorize

despite
the
other action

utter
lack
necessarily

The

argument

the guaranty
be deprived
seizure

of

property

U.

of Mr. Sawyer

Executive

said,

and

S. 356,

316

which

lie

the

(1926).

Yick

Wo

as

this

principles

of

which,

base

of all

our

v. Louisiana

hloreover,

the

provision
Unless

due

plainis com-

(Cf.

(1886)),

at

the

discretion,

"fundamental

Hebert

and the just compensation

ment are not alternatives.
taking
under
purported
stitutional.
Cf. Catli_

leaving

requirement

the

institutions".

S. 312,

fiat,

369-370

embraces

justice

political

that

ignores

that no person
shall
process
of law. The

of Mr. Sawyer's

with

118 U.

has

and

by

challenged,

basis,
the seizure
and
the due process
clause.

on behalf

at the mercy

v. Hopkins.s,
liberty

of statutory
contravene

advanced

incompatible

Court

of the kind here

of the Fifth Amendment

of property
without
due

tiffs literally
pletely

action

But even if
under some

civil

Co.,

process

272

clause

of the Fifth Amendboth are satisfied,

the

governmental
v. United
States,

authority
is uncon324 U. S. 229, 241

(1945).
Furthermore,
less

drastic

there
means

are

for

readily

dealing

available

with

the

other

problem

and

far

posed

by

the controversy
between
the plaintiffs
and the Union-means
which carefully
safeguard
the rights
of both sides
to the

controversy,

encourage

maximum

the processes
of collective
mate and extreme
action,

bargaining,
in the event

after

the

deliberate

the

Executive

that

these

considered
and
methods

and
the
for

Legislative
dealing

signed

to protect

of all

parties--and

rights
stances

to the extent most feasible

of a particular
emergency.

participation
Branch.

with

all interests--those
to minimize

possible

to

the

of both

It is apparent
problem

of the nation
the

resort

and permit
the ultiof an impasse,
only

disruption

are

de-

and those
of private

in the particular
circumWith these alternative

App. 1145

69
means

readily

drastic

and

violates

available,

inherently

the

Fifth

the choice
arbitrary

course

Amendment.

340 U. S. 349, 354-355

Brothers

Co., 270 U. S. 402 (1926).

G. Denial

of the Sweeping

of the sweep

claimed
for Mr.
sterile
construction

tution

government
nmnds
that

the

our

executive

District

Cotlrt

The
easily

they

the

test

idea

action

tainty

which

of meeting

here

procedures

stress

have

and

of emergency

and

and

to deal
should

crisis."

real

lull

us,

of
the

can

emergency
adequate
(R.

executive

power,

emergencies

simplicity

as it has

today
to meet

75)

other

and

cer-

nations,*

Constitution
in Germany
provided
that
"take any measures
necessary
to restore

public safety and order".

It was by the use of this provision,
Reichstag
tire in 1933_ that ]:Iitler established
the legal basis
torship.
Roetter:
Impact
The German Constitution,

be recog-

of Congress:

or ima&dned

a deceptive

Article
48 of the late Weimar
bl an emergency
the President
could

are

that

Constitution

of an
and

de-

from

only branch
matter.
As

the role
the

of

varying

must

unreviewable

with
has

not

out

in a
Gov-

charter

follow

challenged

strains
past,

expedient,

is here

within
the
the Consti-

the

not

under

in the

available

which

operative

it does

in pointing

of a strong

as deemed

continuously
but

stated,

the

as

power

The executive
is not the
which is concerned
in the

" " " * our

stand

v. Pal_ner

actions
would
not result
Constitution
or leave the

is capable

society;

nized as valid.
the Government

; Weaver

Co. v.

to Meet an Emergency.

of executive

and

which

of

in this case

Dea_z. Milk

to deal
with emergencies
Constitution.
It is true that

is a dynamic

of the

Power Here Claimed Will

Powerless

Sawyer's
of the

ernment
powerless
framework
of the

(1951)

Executive

Not Leave the Government

Executive

selected

Compare

Madiso_b

Negation

by the

follouqng
the
for his dicta-

of Nazi Law, [1945] Wisc. L. Rev. 516; Lowenstein,

1933.I937,
4 Univ. of Chi. L. Rcv. 537_ 539 (1937).

App. 1146

7O
into forgetting

that

it is alien

of a government
of laws
fact that the Constitution
powers,
those
being
and

consisting
reasonably
reserved

Tenth

and not
created

of those

Bldg.

Cf.

Justice

Hughes

"Emergency
not

ish

The

of grave

said

States

and

they

are

was

thus

granted

were

imposed

will be,

Its

and

questions

"While

subject

power
348.
braces

particular

the

the

not

Fed-

power

of

of emergency
What
were

power
thus

been,

and

examination

create

occasion

never

a reason

enjoyed.'

constitutional

of an emergency

light

always

imal-

under

may

lived,
for

Wilson

particular

exercise

conditions.

Thus,

the
not

emer-

exercise
call

into

nevertheless

the exertion
v. New,

question

is whether

power,

for

an emergency
has

afford

already
The

to the

of the

lhnitations

does

furnish

which

may

or

system.

'Although

a power

granted

emergency.

of close

in a period

of power

have

(1934)

or dimin-

power

in the
by

what

emergency

may

in Home

Emergency

adopted

limitations

which

the

Court

power.

upon

195 U. S.
306 IT. S.

or remove

grants

its

altered

otlr constitutional

power.

and

v. Maryla_d,

this

was

determined

not

ways

gency

create
power

and

tbe

gency

granted

290 U. S. 398, 425-426

not

emergency.

are

for

Constitution

Government

posed

McCulloch

granted

restrictions

reserved.
eral

does

increase

lhe

expressly

Dorr v. United
States,
v. N. 17. exrcl.
O'Kccfe,

_ L. Ass_7.. v. Blaisdell,

does

concept

of men, or blind us to the

a government
of limited

powers

Amendments.

Chief

fundamental

to be implied
therefrom,
all other powers
to the people or to the States by the Ninth

Wheat.
316, 420 (1819);
138, 140 (1904) ; Graves
466, _:77 (1939).
As

to our

power
of

the

it
war

emerof a living

243 U. S. 332,

presented

the

of
life

in the light
possessed

in

em-

response

power

of

App. 1147

to
the

71
Federal

Government

of war,
It

is not created

but it is a power

is a power

permits

the

people

war

harnessing

in a supreme

nation.

given

to wage

But

even

"5

See

eel,

33

Co.,

251

Ex

Wall.
U.

Parte
623,

the

of the
war

S.

146,

155;

that

entire

power

4: Wall.

Hamilton

not

United

States

v.

thus

it

of the
the

remove

con-

essential

2, 120-127;
Kentucky

emergency.
and

to preserve

does

v.

emergency

energies

effort

safeguarding

Milligan,

627;

to meet
successfully,

cooperative

stitutional
limitations
ties2 * * *"

by the

United

States

Distilleries

_.

Grocery

Co.,

Cohen

liber-

v. Rue-

Warehouse
255

U.

8.

81_ 88."

111 accordance
with the views
has not hesitated
on various
sufficiency

of circumstances

executive
action

action

was

was

supported

thus expressed,
this Court
occasions
to consider
the

on the

assertedly

basis

taken,

by statute.

See,

of which
even

drastic

where

that

e.g., Hirabayashi

v.

U,tl.ited States,
320 U. S. 81, 91-95, 101-102
(1943);
Parte
Quirin, 317 U. S. 1, 24-25, 29 (1942).
See also
Parte
Milligan,
4 Wall.
2, 120-122,
124-127
(1866);

Ex
Ex
cf.

Mitchell
cordingly

Acad-

v. Harmony,
13
there
is clearly

vanced

in the memorandum

Court,

at

"emergency"
What
is
that

stoppage

pages

19-22

for
and

is not subject
the emergency
of steel

How. 115, 133-135

(1851).
no nlerit
to the contention
Mr. Sawyer

59,

t]mt

the

in the District
nature

of

to judicial
review.
which
is here
claimed?

production,

as the

result

that tl_e Executive

Order
and
assert
(1_. 6-9, 27-62).
Nowhere

any

It

is

of a labor

dispute,
would be catastrophic
to the civilian
economy
the military
needs of the nation.
No one denies that
a stoppage,
if continued
for
have
disastrous
consequences.

the

substantial
time,
That
in substance

and
such
would
is all

the affidavits
in opposition
in those affidavits
is there

App. 1148

72
any intimation that the challengedseizureis the only wa),,
or eventhat it is the way, in which to avoid the stoppage
of steel production. The Executive
Order
states
merely
that

it is necessary

properties
of steel.

of plaintiffs

Moreover_
denly,
duction

the

had

gency

are

of

"A

the

(R.

kinds;

Similarly,

in
of

if

the

"The

proand

the contracts

expired

the

of

more

steel

to

production

forms
of

extent
could

that
be

the

the

any

will

the

has
Labor

affidavit

it

prolonged

result

essential

continue,

of

would
the

of

period

and

weaken
sa/_ety

the

of

immediately

weapons

imperil

and

is not

the
of

in

munitions
our

Defense

defense
fghting

Production

of

the
the

it

meet

be

disruptive
qualification

productive
to

the

states

presently
not

steel

National
(R.

36)

available
and

and

the

elements

effects
that

requirements

of

Production

particular
by

the particular
steel

said

of

operating
a particular

alloys

work

of the stoppage
they
would
be
the

Authority

:
to indicate

the

interrupted

capacity
the

of

defense."

products

would
to
to

fabrication

national

eves

steel

which

used

emer-

Congress

from

for

Administrator

the

but

of

The statements
as
below
arc subject

claimed

which

industry
of

Administrator

detailed

" * _ * Information
and

steel

would

production

the

of

to

the

of the

34):

is necessary

affidavit

mills

sud-

statements

production

of

(.R.

continued

thereof

the

not

permitted

affidavit

states

shapes

arise

tools

following

all critical
areas
and
that
of the Nation."

Adnfinistration

somewhat

availability

a situation--namely

29 t 31)

stoppage

curtailment

effort
in
men and

The

of the

such

are

Defense

work

all

did

the

to continued
steel
between
plaintiffs

before

"The
cessation
of production
would
be catastrophic.

serious
of

even

side

with

examples

Secretary

threat
dispute

operate

continued

characteristics

along

to deal

" Typical

time

foregoing

laid

provided

the

emergency

The
labor

clear

of and

3i, 1951.

_.Vhen the

is

claimed

been

on December

possession

to assure

or over night.
posed by the

tile Union

the

to take

the

stoppage.

as set forth
alleviated
to
iron

and

steel

program."

App. 1149

73
Management

Relations

Act

of 1947,

of Section

18 of the Universal

vice

and

Act,

Section

201

the
of

gency

Defense

are

does

not

Military

requisitioning

the

amended--and

tested

create

be only

one answerithat

without

warrant

Production

power,

we

Any

ernment

is

powerless

production
As

which

stated

various
And,

means

the

by

those
be said

We

that

do

alternatives
control
Executive

the

argue

discretion
is

Court
has the
is constitutional.

that

dealing

never
duty

1950,

that

that

there
are

conclusion

with

from

the

the

can

wholly

would

have

ease

the

Gov-

threat

to

steel

labor

been

dealing

not

when

dispute.

provided

with

prove

sys-

that

current

has

for

should

mean

as

emer-

with

the

matter.

adequate--which

they

have

not

even

can legislate
appropriately
and spethe nation
from threatened
disaster.
As
stated
(I. 175), there is no reason
to

Congress

not
for

of

actions

not

Executive

to be the

been triediCongress
cifically
to protect
the District
Court
believe

deal

Congress

means

by

for our constitutional

it protects.*
does

to

arises

above,

if

cannot

of course

Ser-

Act

submit

other

and

conferred

principle

h'fr. Sawyer's

of law.

conclusion

the

provisions

Training

authority

against

the most ominous

implications
tem and for the rights
which
This

the seizure

with
involved

free

to

and

the

would

when

fail

the

Executive

a situation
in
resort
power

the

that
to
to

in that

choice.
an

has
courts

regard.

a choice
may

We

do

unconstitutional

determine

whether

of

review
say,

constitutional
the

wisdom

however,
procedure,
the

procedure

that

or
the

and

this
taken

App. 1150

74
POINT
The

seizure

causing
for

and

which

A.

and

The

will

they

Sawyer's

cause

have

seizure

further

Mr.

is

the

plaintiffs

injury

of the

at once caused

a most

plaintiffs'

executive

displaced

from

office--but

subject

to Mr. Sawyer's

ble for

plaintiffs

normal

way.

were

There

as demanding

upon

tives,

as dependent

upon

plans

for

the morrow.

in an ambiguous

of directors

in a quandary.

dustry.*
ness

Any present

any

at any

time.

accordance

that

assumptions

will be upset
themselves

* See Department

position

and

decisions

is revealed
Commerce

position

Order

of "busi-

day

to day

always

to

they

in

against

through,

or that
are

based

of Mr. Sawyer.
in which

situation

140,

as
in-

of the business

from

on which

by the

boards

of lfis power

phase

edict

of

set up a

Mr. Sawyer

be carried

events

with

so organized
tile entire
steel

hedged

supervening

as

the managers
the several

can act only

of the impossible

of

from

in a

of execu-

has already

machinery,
and control

cannot

impossi-

as complex

day's

leaves

decisions,

of future
by some

An example
find

they

each

not

properties

properties

by a reservation

tentative

to plain-

judgment

see fit on any

Management
with

the possibility
the

he may

their

of

were

became

businesses

seizure

assurance

is qualified

orders

injury

those

Mr. Sawyer

governmental
to coordinate

as usual"

issue

to run

meshing
The

and

business

personnel

the managerial

the plants

comprehensive
to enable him

serious

at once

are few if any

steel,

plaintiffs

and

told to run

orders--it

to continue

the

properties

tiffs.

own

injury

threatened.

the plaintiffs
While

are

at law.

to

is immediately

seizure

action

irreparable

remedy

serious

injury

l_[r. Sawyer's

threatened

no adequate

causing

grave

lII

quoted

plaintiffs

of the
in

Stephens

United
atfidavit

(R. 100-101).

App. 1151

75
States

Steel

Fairless

Company,

Works,

sions

affecting

every

day.

less

make,

is a far

more

many

types

this

Court's

of equity.

prevailing

126, 141).
this

will alter

The
and

Unioncame

terms

and

plaintiffs'
had

ordered

otherwise,

to an agreement

than

which

have

save

for

under

the

3 of Executive

the

Order

conditions

plants
such

the

(sl_pra.,

of

(R.

announced,

that

unless

to
may

injury

by l_[r. Sawyer

the

at once,

they

in prospect,

himself

taken

moment

on title,

President

Court

be taken,

in

Deci-

and managers

grievous

of paragraph

(R. 8) which

fore

an order

authority

employment

and

The

be made

decision

as clouds

is immediately

protection,

purported
10340

immediate

there

must
at any

of any

courts

case,

exposed

revocation

plant,

(R. 97-98).

the owners

and

such

steel

operations

leaves

of damage,

moved
any

new

completed

and

which

or

In

half

of uncertainty

revision

always

than

a huge

investment

A seizure

in a morass
forced

with

103,

just

action

be-

would

plaintiffs

and

the

p. 14).

If that action were to adopt the recommendations

made
by the Wage Stabilization
Board it would involve hundreds
of millions
nually,

of dollars

to be paid

of additional

out of the private

to hundreds

of thousands

Mr.

would

(vhre

Sawyer
removed,

of no great
mendations
only

of the

in part.

would

the

plaintiffs

present
cannot

whether

Wage

In an),

case

be, for he himself

costs

funds

plaintiffs

of the

of employees.*

do if the

significance

employment

Precisely

injunctive
tell

he would

Stabilization

impose
Board

and

serious

has stated

that

there

what

protection

(R. 105).

injury,

an-

But

it is

the recomin whole

injury,
would

or

there

certainly

be 'wage increases
(R. 103);
and the entire
focus of Mr.
Sa_vyer and of those acting with him since the seizure
has
been

upon

_ See

the grant

footnotej

p.

of concessions

to the Union.

7, supra.

App. 1152

76
Moreover
and

the Wage

it would

Stabihzation

be open

shop

(R.

affect

the plaintiffs'

94, 104,

to Mr.

125)

which

labor

Board

Sawyer
not

costs

recommended--

to impose--the
only

would

but would

union

drastically

alter

the pattern

of employer-employee
relations
in a manner
which could
never be undone.
In American
Federatioq_
of Labor v. Watson,

327 U. S. 582, 593-595

impairment
of
mental
outlawry
ble injury
Finally,
tion
tions
tiffs

of that

decision

most

the

and

100 issues

comprehensive

160).

Extensive

Stabilization

are

as were
Board,

issues

and

bargaining
the

did

plainof a

agreement.

parties

(R. 103,

of the Wage

not

of labor

be resolved

the plain-

between
the
the formulation

between

they

principle

condi-

the Union.

the recommendations

even

It is a basic

outstanding

collective

in dispute

consumma-

terms
damage

with

is a far reaching
controversy
the Union in connection
with

Over

of equity.

here.

gravely

position

that

by governan irrepara-

importance,

to alter

would

bargaining

new

issues.

is applicable

threat

of employ_nent

There
tiffs and

asserted

of a court

not of least

Sawyer's

in their

Court

the interposition

but certainly

of Mr.

this

collective
labor
relationships
of the closed shop is in itself

warranting

The principle

(1946),

deal

with

all

the

that

all

161).

In

negotiations

together

(R. 104,

the present
case outstanding
unresolved
issues of vital concern to management
include
those having
a direct
effect
upon

the efficiency

Whatever

may

of operation
be the

(1_. 103-104,

order

which

now prepared
to issue--whether
bilization
Board
recommendations,
103,

142)--the

floor

for the

with

the plaintiffs.

dantly

clear

nection

with

result
Union
to this

will

be to create

Union

Court

the petitions

has

in its
for

160).
Sa_wer

is even

it be the full Wage Staor something

less (R.

in its continued
The

Mr.

and

a new
future

already
amicus

certiorari.

made
brief
There,

and

higher

negotiations
that
filed

abunin con-

at pp. 5-6,

App. 1153

77
the

Union

[the

said

that,

plaintiffs']

will again

duty

ing the then current

As a practical
ever
ties

matter,

to negotiate
always

of a

government

Board,
tice
upon
worldng

their

the War
with

conditions,

for

that

the

period

short

and

the

effect

period."
Board,

the

beyond
the

agency

as

the

affidavit

126), the owners

of coal
War Labor
Disputes
Act
called

Krug-Lewis

of their
be argued

that,

And

may

once

the

it a pracpassing

"the

last

likeli-

beyond

of emplo_nent

without
National
Mills,

Inc.,

Insura_ce
2d 307,
(1951)

to the

return

that
the

prior

Co. v. Natio_d
309

; Tower

(5th

Labor

Cir.

1951),

Hosiery

Mills,

Mr.

to plaintiffs

(1949)

Sawyer's

cert.

(R.

in 1946 under
the
to assume
the so-

is ended,

existed

337 U. S. 217, 224-225

Consequently,
injurious

wlfich

this

shows

be recognized

first exhausting
the collective
Labor
Relatio_z_
Board
v.

be

Labor

it may

steel

com-

panies
would not have the right under
the National
Relations
Act unilaterally
to restore
the terms
and
tions

in

may

of the War

as a condition

seizure

Labor

a change

McMath

mines seized
were required
it must

period

operation

of R. E.

Agreement

properties.

the

recognized

changes

con-

War
when

for

Opinion of the General

Cou_sel
15 L. R. R. Man. 2578 (1944).

Moreover,

and

Act, made

of a plant

Board

are

of the par-

terms

of governmental
of the

conditions

positions

Disputes

of a government

it

the clock and

is why

owners

and
concern-

back

consequences

Labor
the

hood

and

to turn

That

right

conditions."

respective

seizure.

proposals

the

to their

the Union

and working

the

restored

(]overnment-inlposed

have

under

with

once new terms

from

to consult

are

will have

be impossible

now are.

ditions

they

to bargain

wages

it would

as they

the mills

possession

be their

prescribed,

"when

to

the

Labor
condiseizure

bargaining
process.
Cro_pton-Higlda,nd
; American

Relations

National

Board,

granted,

187 F.

342 U. S. 809

81 N. L. 1_. B. 658 (1949).

threatened

action

not only in the immediate

would
dollars

be
and

App. 1154

7S
cents

damage

consequent

the weakening
with

respect

pute

with

of the
to all

the

portance-in

upon
plaintiffs'

the

wages

bargaining

unresolved

Union
the

increased

and--of

weakening

position

issues
equal

of

in the

or

the

but also

even

in

today

labor

dis-

greater

im-

plaintiffs'

bargaining

position
at all times in the future
with respect
to any and
all issues
which will be faced
at the end of the seizure
period

and

thereafter.

A_terican

Federation

of Labor

v.

Watsort, 327 U. S. 582 (1946) ; cf. Wolff Pa.cking

of Ind, ustrial Relations,
262 U. S. 522 (1923).

Co. v. Court

B.

recovered--

Money

damages---assuming

would

be wholly

A simple

cloud

relief

because

Wickli[fe

on title

no

has

other

v. Owings,

cific v. United

of the

plaintiffs,

least
any

The

Osborne

seizure
with

its

problems

are

as a cloud

at law

would

_ Co_npany
; cf. Tr,tt_x

_uttional

News

236-237

(1918)

(1923)

; Pierce

(1925)

; see also

Even
the

suit

damages

would

; Shaffer

host

Service

; Land

Tax

252 U. S.

and

business
and

appeal

In these

legal

position

to equity

Pacific

at

circumstances,

be inadequate.
Railway

v. Dollar,

See

ComFa_y,

330 U. S. 731, 738

239 U. S. 33, 38 '(1915)

v. Associated

; Terrace

v. Carter,

necessarily

Pa-

; Ohio

the ambiguous

should

on title.

v. Raich,,

Press,

; Inter-

248 U. S. 215,

v. Thompson.

263 U. S. 197, 214-215

of Sisters,

268 U. S. 510, 534-536

v. Society

Bell v. Hood,
were

327 U. S. 678, 684 (1946).

to sue

to be entertained,
be

; SoTtthern

properties

from

to grant

or adequate.

of uncertainties

v. Misso_ri

if plaintiffs
were

is complete

of the

left,

147 U. S. 248, 258 (1893)

(1947)

equity

arising

owners

as strongly
remedy

moved

47, 50 (1854)

(1920).

the

always

200 U. S. 341, 352 (1906)

232 U. S. 576, 587 (1914)

practical

be

17 How.

States,

37, 48

in which

could

remedy

Cases,

and

they

inadequate.

severe.

at law
the

The

for

damages,

problem

diversity

of

and

of proof

of

opinion

in

App. 1155

79
U_ited

States

suggests

v. Pewee

the

problem.

be necessary
would
have
there

have

Coal Company,

341 U. S. 114 (1951),

On one

or another,

to speculate
occurred
had
been

a strike

theory

it might

as to the course
of events
that
there been no seizure:
Would

of any

significant

duration?

Would

there have been a change in emplo.mnent

conditions
in connection
with the settlement
of such a strike_
The need to
wrestle
they
its

with
lead,

such

have

questions,

always

interposition.

can
U.

only

322

(1907);

827 (6th
269

Cir.

1943)

1, 11 (8th
(E.

D. 1)a. 1940)
707, 709 (E.

Moreover
of plaintiffs'

D. Pa.

No judgment

could

age,

furthermore,

long

as the

with

each

measure
shop,

other.
for

which

Compare

American

U. S. 582, 593-595

will have

one of the
and

round

which
Nor

within

abide
Union

there

cannot

impairment

yet

unresolved
of issues

with

be any

possible
purported

of Labor

v.

for

as

relationship

Sawyer's

; Virginia

dam-

degree

any
such

Mr.

the Union.

damage--a

in some
have

pos-

its consequences

of conditions

Federation
(1946)

here

settlement

for this

the

could

21

The

issues

in the

would

and

l F. ]_. D. 267,

of negotiation

the imposition
are

terms.

fix reparation

plaintiffs

F.ucl Oil Co., 194

of the damage

controversy,

yet to come in the next

Co., 172

S. ,?. Co. v. Norton,

position

of every

in the present

Wa.tcr

133 F. 2d S19, 826-

v. Gcist,

monetary

bargaining

297

1937).

part

into

in the settlement

; Froser

an adequate

206 U. S. 285,

Walla

v. Co nway,

which

Authority,

v. Eldred,

; L_wkenbacb

the greater

be translated

is not

Co. v. Ce_dral

1912)

to warrant

damages

Valley

v. Walla

; Texas

Cir.

for

a process

; Roof

to which

by equity

suit

Kessler

Wcdla

(1898)

F. Supp.
sibly

such

(1936);

spezlflation

thought

v. Ten,nessee

Walla

U. S. 1, 11-12
Fed.

by

'Ash.wa'nder

S. 288,

290

been

the

A prospective

be proved

remedy.

and

monetary

as the

union

powers.

Watson,

327

Ry. Co. v. Sy,_'tcm

Fed-

App. 1156

8O
eration

No.

40, 300

U.

S. 515,

N. O. R. Co. v. Brotherhood
548, 568-569
C.

550-553

(1937);

of Railway

Clerks,

damages

are recoverable.

No adequate
money
damages,
of
covered
from Mr. Sawyer
personally,

course,
could be reeven for that portion

of the injuries
which might
be measured
individual
wealth
could not approach
the

in money.
His
amount
of dam-

age which this industry

will suffer.
There remains
only the question
whether
be recoverable

Sawyer's
not.
The
(i)

counsel
United

under

for just
edy
(i)

281 U. S.

(1930).

In any event no money

would

Texas

the

against

has

States

suggested.
has

Federal

compensation

the

that

to be sued

Claims

in the Court

Act

damages

States,

It is plain

consented

Tort

money

United

and

of Claims.

as

they
for

(ii)

Mr.

would

damages
in a suit

Neither

rem-

is available.
The

Federal

Tort

Claims

Act

is obviously

unavail-

able.
Mr. Sawyer's
counsel
suggested,
in the District
Court,
that a suit thereunder
would lie (R. 380) ; but this suggestion
has not been pursued
and

is hardly

in the petition

to be taken

Act,* and its legislative

Coates v. United
States,

seriously.

for certiorari
The

plain

in No. 745
words

of the

history,
exclude
any such suit.
181 F. 2d 816, 818-819
(8th Cir.

28 U. S. C. 1346-b
permits
action
against
the United
States
for
injury "caused by the negligent
or wrongful
act or omission of any employee
of the Government
while acting within the scope of his office or employment."
If the seizure was unlawful, as we contend_ _ir. Sawyer was not acting "within
the scope of his office or employment."
In any event 28 U. S. C. 2680-a
expressly
excludes
acts or omissions
regulation,

whether

from the scope of the Tort Claims Act claims based upon
of Government
employees
"in the execution
of a statute or
or not such statute

or regulation

be vahd".

App. 1157

81
1950).

See

Supp.

124

F. Supp.

also,

Old King

(S. D. Iowa
980

Coal Co. v. United

19491;

(S. D. Iowa

1949);

States,

95 F.

United

States,

95 F. Supp.

United

States,

93 F. Supp.

McCrary
1949).
(ii)
Court

Supp.

479

Co. v. United

It is equally
of Claims.

The

argument

assumes

that

counsel

(S.

D. Iowa

84 F.

Supp.

that

there

of such

was

so conceded

was unlawful,

Decisions

of this Court

"The

United
said:
constitutional

property

for

directed
ity

legislative

The
that
are
the

atteml,ts

have

an

use

Government.
States,
123

242-243

(2d
were

that

of

that

adequate

It

Pine

(R. 380).*
just

Cir.

1944)_

cert.
as

denied,
to

the

private

compensation

and

in

the
of

District
a suit

of

Court
in

U.

of Sa.nford
v. Comm'r,
308 U. S. 39_ 51
l_y. Co., 243 U. S. 281_ 289 (1917).

8.

7:12
are

the

(19391

; 8wilt

private

to

"concede"

Court

of

Claims

that
attorneys
for
defenses
available

(:19441.
not

indi-

the author-

taking

established
or concede

which

is

not against

without

way

323

Thus

taldng

just

is well
to waive

law_

com-

clear.

Munro
v. United
3tates_
303 U. S. 36, 41 (19381
U. S. 227_ 233
(18871 i Wallace
v. United
States,

t_OllCessiolls

action

against

The

by

necessarily

for which

proceeding

counsel

i_ the

(1910),

without

remedy

Cls.

h'[r. Sawyer's

proposition

enactment.

(Ct.

S. 322, 335-336

the government,
officers

v.

J. B.

Mr. Sawyer's

States

218 U.

not binding
on the Government.
United
States
do net have
power

.concessions
Estate
Valley

varinus

plaintiffs

to the
United
240_

against
or public

Judge

prohibition

public

vidual
of

make

Boyce

368

Indeed

before

Sta_tes,

v.

1950);

a remedy

as we insist,

was not a "taking"

by the United
pensation
is recoverable.
i21 Hooev.
this Court

Toledo

is no remedy

lawful.

89

v. United

19511;

(D. P. 1_. 19511;

866

88 F.

States,

ef. Lauterbach

838

obvious

v. United

D. Wash.

States,

seizure

expressly

If the seizure

(W.

in support

the

Jones

States,

; Finn
142 F.

Moreover,

binding

on

v.
2d
the

a court.

_" Co. v. lloekiag

App. 1158

82
property

by an officer

use,

without

sary

implication,

not the
As

pointed

authorized

govermnent."

out

above,

the

v. North

that

the

appear

that

session

of the

either

also

La_tgford

v. United

Sawyer's
said

under

the Fifth

domain
United

States

counsel

to support

by

Amendment

Government

conferred
States,

upon

power

exercise

national

Again,
claimant

of the
in United
was

States

allowed

it mus{

taken

authorized

pos-

so to do,
upon

whom

312 U. S. 203, 208-209

to the District
"even

cases

them

right

(1879).

Court

in the absence
of the

to confer

to acquire
right

power

of express

to pursue

In Kohl

in question
upon

the grounds

the

of eminent

this Court

of eminent

v. Cau_by,

various

to involve

by the legislature.
(1875),

to compensation

he referred

officials

intention

of the Treasury

restated

be liable

of the act of Congress

" * * * a clear

and

267 U. S. 341, 345 (1925)

91 U. S. 367, 374-5

the provisions

fested

Court

101 U. S. 341, 345-346

cited

The

this

or by the official

a claimant's

provision."

existing

power."

States,

States,

is not
in con-

in

physically

duly

v. Goltra,

v. United

only

is

Transportation

has

was

the

not

shall

who

by Congress

United

cases

exercise

officer

neces-

expressed

A_nerican

property

public

but is squarely
as

Govermnent

conferred

; Mitchell

statutory

the

directly

Congress

Mr.

Congress

for
or by

of Congress,

seizure

of Congress,

of

States

order

See

act

will

present

act

Co., 253 U. S. 330, 333 (1920),

that:

"In

(1941)

so by some

of the

the

States

expressly

act

In United
Trading
the rule

of the United

authorized,
to do

by any

flict with
legislation.

that

being

mani-

the Secretary
needed

by the'

domain.*

* *"

328 U. S. 256 (1946),

his remedy

v.

asserted

in the

Court

App. 1159

the
of

83
Claims for a taking authorized by tile Civil Aeronautics
Act. And in the recent case of Larso_ v. Domestic
and
Foreign
Court

Commerce
stated

compensable

337 U.

that

only because

terms

of valid

serts,

citing

is no

constituted
in a suit

U_ited

[the

for breach

if tl_e Administrator's

a_thority

co_dd

such

the
as-

218 U. S, 322:
action

* * * There

could

admittedly

has

a remedy,

in the

Court

of Claims.

of contract,

* _ O_ly

with

the opinion

taking.

respondent

this
were

administrator's]

an unconstitutional
the

in accordance
Indeed,

States,

that

(1949),

of the sovereign

were

authority.

claim

be since

S. 682, 695

the actions
they

statutory
Hooev.

"There
not

Corp.,

explicitly

action,

suit

be

was within

maintained."

his
(337

U. S. 682, 703 and n. 27.)

The
this

distinction

Court

private

hetween

is obvious.

property

these

Where

pursuant

cases

and

that

a Government

to statutory

now before
official

takes

the

prop-

authority,

erty owner may sue for just compensation

even though the
taking
nmy not conlply full), with the statutory
procedure.
As pointed
out in footnote
11 on page 17 of the memorandum on behalf
of illegality
Hl_rley

of Mr. Sawyer
"does

in the District

not go to the

v. Kinc.aid,

essence

Court,

that

type

of the taking."

285 U. S. 95, 104 (1932).

But

See

where

the

taking
itself
is utterly
devoid
of authority,
the very illegalit5 _ of which the plaintiffs
complain
also deprive
them of
an)' remedy
Amenchnent.
This
sition

clear

and

are
were

available
of equity

for just

repeatedly

in a legal

rights
For

in a stilt

asserted

system,

such

not at the mercy

the
for

rule

as

closed

under

rule
ours,

unauthorized
to the

the Fifth

is a basic
in

of unfettered

otherwise--were

a wholly

thereby

compensation

which

executive

action.

compensation
taking,
private

and

interest--not

propoprivate
at

the

law

doors
only

App. 1160

84
would the Federal Treasury be exposedto incalculableexpense,but citizenswould be exposedto arbitrary action by
governmental officials to an extent altogether startling in
its consequences.Compare Garber v. United States, 46 Ct.
Cls. 503, 507-508
No one would
minimmn
Fifth
tical

(1911).
contend--least

constitutional

Amendment
sense.
Thus

compensation

is adequately
in U_dtcd

327 U. S. 372, 377-378

in federal

and

various

States

383 (1943),

not

Again

U. S. 114,

to compensate
to the
of the use

remedy

Claims
color

as

where

v. United
as

to

question--such
Hnrley
another
quite

thing
lawlessly,

to

authority

lmve

revolves

285 U.
the

and
the

the

to

Lc_undry

or where

about

some

S. 95,

104 (1932).
rights
left

the

Co.
only

incidental

will be paid,

property
owner

of hying

to monetary

(Kimball

damages

of

is without

price

subnfit

not treat
Court

a taking

well be the

is lawful

as the time when

and

inability
taken

do

in

where

It may

that

341

in fixing,

the courts

338 U. S. 1, 5 (1949))

to say

was

inherent

379,

Amend-

Co., Inc.,
the

property

that

remedy

the taking

v. Ki_waid,

losses

in United

the Fifth
Coal

compensation

society

expense
are re-

concern".

monetary

States,

said

recognized

problems

therefore,

authority.

"evi-

323 U. S. 373,

under

Court

of a going

organized

damages

that

Business

were

_. Pewee

one whose

an available

of legal

in an

dispute

of

this

"difficult

It is no wonder,
the

States

(1951),

referred
value

damages
Corporation,

to be compensable

properly

in any pracMotor
Co.,

stated

proceedings."

Motors

in United
117

Court

by the

damage
to good-will,
the
such consequential
losses

consequential

v. General

ment.

this

condemnation

the

contemplated

compensatory
States
v. Petty

(1946),

dence of loss of profits,

of relocation
and other
fused

of all tile courts--that

as in

It is quite

may

be taken

to monetary

App. 1161

claims

85
which can never,

ill any

realisticsense,

replace

the

rights

leads

the

courts

lost.
It is doubtless

this

so meticulously
question

the

stitutional
action,
pair

to make
legality

right,

Tel.

39 (1st

the

Co. v. Puerto

Rico

Cir. 1951), cert.

denied,

ocably,

Comm.

the'owner

no

statute's

Congress
(sa'pra.,
tioned
tender

doubtless

to provide
p.

50)

that

for defense
of payment,

189 F. 2d

this

title

which

compensation
v ali_t, would

this

Court

irrev-

to question

the only

remedy

which would be
raise serif)us ques-

validity.":

consideration

in the Defense
personal

In Cat-

passes

opportunity

or one for

tion concerning

the

See Porto

A_.tlwrity,

that

any

will im-

342 U. S. 830 (1951).

construction,
validity

take

which

in an); way.

to

as a con-

may

of property,

the

it was

opportunity

324 U. S. 229, 241 (1945),

leaving

taking's

full

be assured,

government

would be to accept
just if the takingwere

And

that
must

use of his property

alternative

the

certain

to a "taking"

lin v. United
States,
put the matter
thus:
"The

which

of a taking
before

pursuant

the owner's

Rico

consideration

also

Production

property

Act

could

use only after a previous

and that realproperty

requisitioned
at all, hut could be taken
tion proceedings
in the courts.

which

led

of 1950

be requisi-

valuation
and
could not be

only by condenma-

The chief reliance

of M'r. Sawyer's
counsel for theproposition that money damages
are available
in the Court of Claims
has
I.nc.,

been

the

citation

341 U.

S. 114

of United
(1951).

But

States

v. Pewee

in that

noted
(supra,
pp. 63-64), both the
of Claims and the hriefs of bothsides

case,

decision
in this

Coal
as

Co.,

already

of the Court
Com't made it

App. 1162

86
plain
was

that
not

the legality
decided,

District

Court

of the seizure

as Mr.

Sawyer's

by the

preliminary
District

While

counsel

the

involves

preliminary

were

providently

Court

of Mr. Sawyer

of the seizure

is now

end

an order

injunctions,

of that

on behalf

in the

IV

injunctions

case

opinion

conceded

and

issued

Court.

this

granting

not in issue

(R. 388).

POIN'T
The

was

and
that

ripe

to put

an

parties
should

but to the public

be finally
resolved.

District

it is apparent
from

the

the vital

for

issue

prejudicial
interest,

from

filed

here

of the legality

filed

not

that

Court

both

petition

final determination.

to uncertainty

Page 11 of the petition

No. 745 states:

of the

In order
only

to the

paramount

on behalf

of Mr.

issue

Sawyer

in

"The uncertainty
which necessarily
adheres
in the present status of these cases overshadows
all other considerations
public

and
interest

sweepingly
Again,

requires
the

decided

on p. 21, the

"As

of

an

the

parties

affected

United

States

nation

against

steel

same

respective

production

substantive

resolution
issues

in the

which

were

below."

long as the ultimate

doubt,

immediate

petition

recognizes:

disposition
rights

and

will be uncertain
to take
any

steps

further

of these
obligations

and

necessary
cessation

will be a nmtter

cases

is in
of

the ability

all

of the

to protect

the

or impairment

of

of potential

contro-

versy."

App. 1163

$7
In
and

these

circumstances,

continuing

District
decided

injury

and

in view

of the

to which

plaintiffs

are

Court, on the motions

for preliminary
"the fundamental
issue"
whether
the

authorized

by law.

(Opinion

of Judge

Pine,

nizing that the matter had been thoroughly

ultimate
merits,
the Court asserted:
"Nothing
facts

that
would

could
alter

be submitted

the

legal

irreparable
exposed,

injunctions,
seizure
was

R. 68)

Recog-

presented

at

such

conclusion

the

on the

trial

I have

on the

reached."

(R. 74)
Accordingly,
nothing
final hearing
in the
issue there decided.
Even where
a final decision

could be gained
District
Court

an appellate
of a lower

merits
on an appeal
injunction
where--as

court
court,

by the formality
of a
on the constitutional

has power to review

only
it will decide the ultimate

from an order
in the present

"in fact fully adjudicated

v. District
Court of San

issuing
a preliminary
case--the
lower court

rights"
in question.
Buscaglia
Juan, 145 F. 2d 274, 281 (1st Cir.

1944), cert. denied,

323 U. S. 793 (1945).
And this
said in U_ited
States
v. Baltimore
_ Ohio Railroad
pa_ty, 225 U. S. 306, 326 (19!2)
" * * * we must
way

implying

the merits
acter

that
one

jud_nent,

be understood
the
before

order

of the whole

controversy

est

would

duty

that
result

was

order

of the general

that

the

considering

posing of the controversy

without
the court below to do so."

char-

it plainly,

granting

a decision

detriment

to examine

where

on the merits,
not

or in any

not exist

in effect

grave
from

as deciding

would

us in a case

appeared

preliminary
demonstrable

of a preliminary

of the

in our

not

Court
Com-

of

the

by the court

or where

it was

to the public

inter-

and

remanding

finally

dis-

to enable

App. 1164

88
See Coty

v. Prestonettes,
Inc.,
; Jackson
Co. v. Gardiner

1922)

119 (1st Cir. 1912)

Tele.plwne
The

Co., 279 Fed.

only

reason

the petition
of

the

validity
issues

moment.

irreparable
ceed
restore

Moreover

the
with

the

incident

status

quo

to terms
them

propriate

by

turbed.

An
will

showing

that

v. Corrich:,
States,

no

if this

Court

to determine

not

the

granting

or denying

be reversed

sought
threatened

to

S. 229,

231

doubt
enjoined

which

foisted

will

and
destroy

the
a

at
dis-

States

v. United

Ltd.

v. John

of Louisville
949,

956

is warranted
validity
status

ina clear

United

City

showing
the

be

of

Meccano,

injunction
to

issues

; Alabama

Co., 279 Fed.

as

it inap-

not

absence

granted.
(1936)

(1929);

Telephone

A preliminary
be

loss

a preliminary

in the

it was improvidently

serious

for

the

to feel

should

253 U. S. 136, 141 (1920);

is

whole
and

constitutional

Home

1922).

could

employment

were

Wanamaker,
Cir.

to pro-

decree

plaintiffs

v. Louisville
there

fact

continuing

permitted

injunction

298 U. S. 435, 437-438

279 U.

im-

the

and

position
of

the

in this case.

possible
the

with
of an

ignores

Sawyer

conditions

preliminary

order

junction

possible

Sawyer.

even

the

constitu-

last

issues

immediate

make

that

importance

bargaining

and

Mr.

finally

stage,

and

argument

the

argmnent

Mr.

in

the

inconsistent

the

hearing,

of their

Consequently
this

Were
final

in_pairment

upon

faced

injury.

pending

until

of the constitutional

are

Sawyer

of the issuance

Order--is

upon

Home

1922).

of Mr.
for

is singularly

insistence

86.

Cir.

the propriety

avoided

argument

plaintiffs

(6th

on behalf

Executive
be

disposition

S_tq_ra., p.

the

of the

This

v. Louisville

injunction--except

should

petition's

mediate

949, 957

in No. 745 against

tional
same

of Louisville

advanced

preliminary

on the

that

; cf. City

285 Fed. 501, 516 (2d Cir.

Inv. Co., 200 Fed. 113, 115,

of
that
quo

(6th

where

the

action

an

act

and

is

cause

App. 1165

89
the complainant irreparable injury.
U. S. 66, 77-78
813, 815

(1939);

(1929);

Ohio

Foster

1 (1928);

Buscaglia

F. 2d 274,

281 (lst

Packi_g

Cir.

At

the

very

present

cert.

in tlm terms

been

altogether

prescribed

and

the

candid,

public

in

statement

to the government's

blunt.

mated
The

final

within

hearing

by this

a few

considerations

stating

days

the
440
of

for

obiter
(1944),
this

a short

dicta
even

-kind,

time

in Yakus
were

would

venience
has resulted
and none could result

they
have

any

this

from
from

be

in issuing

intentions

to

on May

remand

be
by this

unanimously

v. Uq_ited

these

States,

otherwise
relevance;

Court.
to reCourt's
of that

circumstances
321 U.

applicable
no

mor_

consum-

quo pending
this
to a continuation
In

act,

3 with

is even

would

Court

longer.

no

the

should

action

decision

after

leading

uphold

Court

President

quire maintenance
of the status
review would be fully applicable
restraint

his

prospective
and

not

696

would come on promptly.

of fact.
Mr. Sawyer
has

of the

respect

323 U. S. 793

injunction

its stay. A final hearing

obviously
There
can be no disputed
issues

145

168 F. 2d 694,

should

prelinfinary

S.

278 U. S.

of 5'aq_ Juan,

denied,

Court

307

279 U.

v. Haydel,

v. Woods,

if this

injunction,

continued

Co.
Court

1944),
Corp.

least,

v. Buck,

Oil Co. v. Conway,

v. District

(945) ; Bcnsoq_. Hotel

(Sth Cir. 1948).

Gibbs

S. 414,

to a case

public

incon-

the stay issued

by this Court
a brief continuance
thereof.

App. 1166

9O

POINT
This
trict

is not

Court

a suit

had

against

the

jurisdiction

President;

to grant

and

the

the

Dis-

requested

in-

junctions.
It was

argued

below

that

although

the President

was not

named as a party, the action was in substance

against
him,
since
the defendant
Sawyer
was
(in the phrase
of his
counsel)
the "alter ego of the President",
and that therefore
no injunction
There
for

could

decision

lawfully.

here

Court

stitutional
enactment.
pensable

authority,
In these
holds

party

Sovereign.

and

Waite

v. Lee,

Recently,
Corp.,

Mr.

"***

that

the

that

the relief

United

v. Maey,

States
sought

v. Domestic

announced

action

of an

taking

and

(1949),
its

of

conduct

scope

is not
is not

of con-

an indis-

against

the

; el. United

or otherwise
can

permit

a suit

for specific

of
legally

be regarded
relief

or, if within
exercise

tionally

void."

those

in the

Commerce

the

powers,

rule

sovereign
affecting

only
case,

that

as

to

as an

statutory

if the powers,
are

it

the plain-

the officer

the officer's

the

(be

so 'illegal'

against

particular

reviewed

to the

as

only if it is not within

or their

Foreign

this Court

adherence

o_cer

property)

powers

the

246 U. S. 606 (1918)

tiff's

individual

officers

their

106 U. S. 196 (18S2).

and

holding,

that

when

exceeds

un-

no defense.

or is pursuant
to an unconstitutional
instances,
the uniform
course
of judi-

in Larson

the

question

is acting

are

sued

statute,

only

Sawyer

recognized
be

337 U. S. 682, 701-702

precedents

The

orders

may

by any

decision

claim.

consistently

branch

is unauthorized

States

is whether

has

executive

cial

to this

If he is, Presidential

This
the

issue.

is no substance

constitu-

App. 1167

91
Similarly in
this

La_d
observed:

Court
"But

public

ceeding

v. Dollar,

officials

the

unlawfully

limits

may

a money

judgment."

The principles

v. Fox,

300 U.

S. 82

exthey

or chattels,

of Claims

to recover

in determining

a suit will lie against

a Federal
officer are
which govern
the problem
of indispensable
in Ickes

by

at law or m equity,

Court

are followed

(1947),

where

realty

action

to the

which

And

a citizen's

by appropriate
relegated

738

tort-feasors

authority.

or hold

he is not

S. 731,

become

of their

seize

recoverable

330 U.

(1937)_

whether

necessarily
parties.

this

Court

those
Thus,
had

for

consideration
the question
whether
the Secretary
of the Interior
could be enjoined
from enforcing
an order
issued
under
the Reclamation
Act of 1902. This Court asserted
that,

if the

United

States

fendant,

the

held

the United

that

in a suit
an order
vested

suit

must

was
fail,

States

an indispensable

regardless
was

party

of its

merits,

rights.

This

Court

granted

and

the

that

President

the

demonstrated
Ttmt
out
was

was

present
his

suit

is not

by Willimns

party.

relief

situation,
be granted

superior

in

a local

language

this

Court

against
situations

the

v.

him

here

is further

332 U. S. 490 (1947).

postmaster

from

the Postmaster
General
was
peculiarly
that
"the

carrying

General.
It
not an indis-

pertinent

subordinate
where

on the

party

against

stated

of
of

Co_pa_y

indispensable

directed

order
of
Postmaster

In

an

v. Fanning,

a suit to enjoin

a postal
fraud
held that the

pensable
could

is not

party

official
plaintiff

"recognized
rule"
set forth
in Philadelphia
Stimso_b
223 U. S. 605, 619 (1912).
That

but

not an indispensable

to enjoin enforcement
by a government
which
would
illegally
deprive
the

property

de-

equitable
without
decree

to the
relief
joining
which

App. 1168

is

92
entered will effectively grant the relief desired by expending itself on the subordinate official who is before the
court." (332 U. S. at 494.) See also, Hynes v. Grimes
Pctcki_9

Co.,

v. Stick,son,

337 U.

S. 86, 96-97

73 F. Supp.

Therefore,
whether
the
judiciary.

984, 987

There

is here

counsel

Court,

to the
held

District

that

the

Here,

of Mr.

attention.
the courts

implicit
Sawyer

For
can

n'on, 1 Cranch

in this

affirma-

with

foreign

the

not

plaintiffs

which

branch

is, however,

and

will

be

seek

result

in

of the

worthy

"The

argument

of more

137

522

(1803).

Court
executive

were

the

among

(1838),
In

so far as his powers

lie is beyond

reach

detailed

and

on

is vested

are de, rived

of any other

is directed
Court for

Holze_do'rf
them

the

case

Ke_dalt

Marbury

the Ke_.dall

observed
power

on

is apparently
advanced
that
whatever
to thwart
a Presi-

others,

12 Pet.

Congress--this

,l

to take

page

which,

the Postan act

of
cited:

in a President;
from

v.

v. Marli-

case,--in

way, a mandamus
was issued
against
General
to compel
him
to observe

Pet.

the

of State
of relations
action

proposition

above,
States,

by the
master

There

would

though
the judicial
restraint
official.
Cited to the District

remarkable

discussed
United

in point.

contrary,

the argument
take no action

dent's
will even
to a subordinate
tlfis

the

Mr. Sawyer

injury.
theory

behalf

on

question
by the

injunction

Secretary

of unlawful

Co.

Holze._l.dorf
v. Hay,
by Mr.
Sawyer's

is not

the conduct

restrai_t

irreparable
The

the

to compel

Thus
cited

nmndatory

involving

governments.
only

to compel

tive action

Mfg.

(D. D. C. 1947).

no attempt
action.
(1902),

granted

Lord

this Court
need
never
reach
the
President
could be directly
enjoined

to take any affirmative

20 App.
D. C. 576
court

(1949);

and

the Co_lstitution

department

* * " (12

at 610.)

App. 1169

93.
"It was ul:ged at the
eral was alone
subject
of tile president,
duty
of

with

imposed
the

upon

president

bar, that the postmaster-gento the direction

and control
respect

him

to the

by

tiffs

is claimed,

as

execution

law;

and

of the

this

growing

out

right
of

the

obligation
imposed
upon him by the constitution,
to
take care that the laws be faithfully
executed.
This
is a doctrine
that cannot
receive
the sanction
of this
court.

It would

be vesting

in the

president

a dispens-

ing power,
which has no countenance
for its support,
in any part
of the constitution;
and is asserting
a
principle,
which, if carried
cases falling
within it, would
with

a power

gress,

and

"To

entirely

paralyze

contend,

out in its
he clothing

to control
the

the legislation

administration

the

obligation

imposed

the

laws

faithfully

executed,

to see

power
struction

to forbid
their
execution,
of the constitution
and

* "

Similarly

of con-

of justice.

that

president

sible.

results,
to all
the president

on

the

implies

is a novel
conentirely
inadmis-

(12 :Pet. at 612-613)

a quotation

from

Marbury

v. Madison,

relied

upon by h:[r. Sawyer's

counsel,
is directed
cretion
of thd President
in the exercise

toward
of the

the disspecific

political
tution.

by the
bearing

Constion the

powers
with
(1 Cranch
at

power

of

the

officer

whose

tional

powers

In

ever

Courts

of the

are

to

completely

restrain
beyond

an

executive

the

constitu-

Executive.

v. Madison,

moreover,

tiffs

Court

observed

at 16'4-165):

"Is
are

Federal
actions

Ma_'bury

(1 Cranch

which he is invested
165-166).
It has no

it to be contended

not amenable
the

practice

that

to the laws
on particular

the

heads

of their

of departments
country?

occasions

may

Whatbe,

the

App. 1170

94
theory of this principle will certainly never be maintained. No act of the legislature confers so extraordinary a privilege, nor can it derive countenance
from the doctrines of the conmlonlaw. After stating
that personalinjury from the king to a subject is presumed to be impossible,Blackstone (vol. 3, p. 255),
says,'but injuries to the rights of property can scarcely
be committed
its officers;
entertains

no respect

methods

Eloquent

affirmation

331

restraint
acterized

was
160 F.

U.

various

and misconduct

of the power

unconstitutional

tive departlnent
Products
Co.,

action

of those

deceived

of the

and

Federal

by officers

in-

Courts

of the

execu-

given in Flemi'ng
v. Moberly
Milk
2d 259 (D. C. Cir. 1947), cert. dis-

S. 786

(]947).

The

suggestion

that

such

is beyond
the power
of the judiciary
was charas a doctrine
which "would spell executive
absolu-

a concept

"If

the errors

but furnishes

by whom the king has been

to do a temporary
injustice.'"

to restrain

tism,

or delicacy;

of detecting

agents,
duced

missed,

by tile crown without

the intervention
of
for whom
the law, in matters
of right,

the

unknown

judiciary

only practical
the executive
concept

to our law."
has

no

restraint
branch.

of the

The

power

Court

in

such

concluded
matter,

:
the

would be the self-restraint

of
Such a result
is foreign
to our

division

of the powers

of government."

(160 F. 2d at p. 265.)
And
this

in Un.ited

Court

v. Lee,

106 U. S. 196, 220 (1882),

declared:

"No

man

the law.
ance

with

from

the

law,

States

and

in this

country

No officer

of the

impunity.
highest
are

hound

is so high
law may

All the officers

to the

lowest,

to obey

that

set that
are

of the

he is above
law

at defi-

government,

creatures

it."

App. 1171

of the

95
Nor has the judiciary in the past felt itself powerlessto
declare the illegality of Presidential orders. In Little "v.
Barreme,

2 Cranch

170, 179

served
of all unlawful
to a naval
officer
" " * * the

seizure

instructions

transaction,

nor

instructions,

would

This

Court

was

illegal,

who

acted

cannot

it furnished

issued

change

an act

have

held

p. 44)

order

legalize

further

been

that

it, and

a clear
the

personally

liable

for

rendered

damages.
by

The

a great

unanimous
Court)
issued
by the very

who had

appointed

him to the bench.

Prilciples

of Coustitu.tio,nzl

proposition

that

the

those,

President's

Ltw

naval

Little

was

is noteworthy
Chief

powers

protection
And

while

It is cited
(1896

war prevails

recognized

to officers

in Gilch, rist
the

court,

identical

with

protests

of

the

by the

superior

doctrine

acting

v. Collector,
in the

those

that

is no defense

face

in Cooley,

Ed.)

for

the

the President
laws

and

under

them."

10 Fed.

Cas.

here,

General,
official

obedience

and

355

over

entered

to the unlawful
heart

usages

of

(supra,

substantially

to disregard

lies at the

has

by law, and
will be no

of arguments

presented

Attorney

to compel
a subordinate
order of the President.
The

as

Justice
invalid
President

war, but at all times he must be governed

his orders
which the law does not warrant

p. 45)

officer

therefore

declaring
Federalist

114

order

"As commander,
all

without
trespass."

case

for
order

President

of the

Federalist

(spealdng
wartime

ob-

nature

to any

Captain

Court

by the

which,

since

that

this

the

no protection

under

decision

(stprG

the

strong

mandanms
an

unlawful

orders

of a

of Anglo-American

App. 1172

96
constitutional principles. As laid down by Professor Dicey
(Law of the [British] Constitution, 1920ed., p. 33):
"Indeed every action against a constableor collector
of revenueenforcesthe greatest of all suchprinciples,
namely,that obedienceto administrative orders is no
defenseto an action or prosecutionfor acts done in
excessof legal authority".
Counsel for
basic

h'[r.

principle,

The

and

assertion

enjoin

the

oil this

Court

cite,

branch

from

effect

enjoin

no matter
their

sole

held

not

that

be restrained

an Act

to be

v.

only

of Congress

unconstitutional,

and that a bill for that purpose

in which the President
named as a defendant
could not be filed.
This
"the

single

same
any

was
page,

described
point
the

absolute

commenting

rule

which
Court

opinion

requires
was

of an unconstitutional

to

avoid

imnmnity

the

Court

how can the right

At
laying

from

to restrain

was

at 498)

consideration."

of power
law,

(4 Wall.

careful

of Presidential

on its lack

" * * * and yet

in the

suit.

position
President?"

in principle,
against

from

the

execution

(4 Wall.

at 5000

as
the

down
After

the enactment

observed:

to judicial

interposition

to prevent
such an enactment,
when the purpose
dent and the execution
of that purpose
certain,
tinguished,

to

Mississippi

could

alleged

of law.

cannot

Branch,
startling.

decision

States
into

Act)

rule

this

not be able

arglmlent,

That

carrying

Reconstruction

the

may

as substantially

of the

United

overturn

it therefore

475 (1866).

of the

by injunction
(the

Sawyer

to

to destroy

this

in person,

Mr.

4 Wall.

President

seek

official of the Executive

he may act, is indeed

for

authority
the

because

President

Counsel

now

in so doing

that

any subordinate
how unla_ffully

Johnso_r,

Sawyer

the

right

of such

to such
a law

App. 1173

is evihe disinterby

the

97
Analysis of this keystonedecision in opposing counsel's
argumentdemonstratesthe fallacy of their conclusion.The
plaintiffs no more attempt here, in seekingto enjoin the
action of a Govermnentofficial, to restrain the President
directly in the performance of his duties, than does one
who attacks the constitutionality of a statute seekto impede the functioning of Congress.*
Neither Mississippi
v. Joh_zson nor any other case in this
Court

has

ever

this Court
subordinate
unla_4ul

held,

cannot
officials

or can

be twisted

into

meaning,

that

perform
its historic
duty of holding
of the Government
to account
for their

or unconstitutional

acts.

CONCLUSION
Whether

the position

Court--or

an effort

extreme

form--the

counsel

of support

because

an emergency

action

sented
the

the

detailed

presented.
and

If

for
the

clear

precedent

Executive

See
Ry.

or cmnpel
the

analysis
Co.

v.

nf
Dey,

Missi._sippi
:Fed.

can
hy

Johnson,
872

((3.

S.

here

properties
in wages,
some

fm'ce

for
by

C.

designed

seize

which

action

where

of ignor-

situation

increase

to labor
v.

S66,

case

device

the

that
is pre-

specifically

an

arbitrary

workers

35

hy the

he established

can by similar

in wages

W.

will

reany

Executive

doctrine

in the present

Executive
to force

judicial
without

by the

This

in precisely

present
funds

and
clearly

im-

on the ground

machinery

use

that

of Executive

declared

created

statutory

appropriate

limitations
a seizure,

form

been

District
it in less

inescapable

Constitution,

extreme

Congress

renmins

is sacrosanct.

has

as in the
to present

on a doctrine

has been

thereunder

in its most

the

by

N.

in the

"emergency"

ing

rely

from
constitutional
They seek to justify

vestige

stated

superficially

conclusion

for Mr. Sawyer

munity
straints.

any

be baldly

nmde

future

a decrease

whatever

Brewer,
D., Iowa

d.,
.

hours

in
1888).
.

Chicago
,

App. 1174

_"

98
and
It

u_der
is not

stake
any

whatever
the

here.
such

lished,

conditions

rights
Our

system

concept

must

of these

to our

May

power

which,

District

Court

if once

in each

BLOUGH

Tt_EODORE

KIENDL
R.

C.

subnfitted,

Steel

Company

C]:[ANDLER

WESTWOOD

LEROY L. LEwis
Of Counsel
BI_UCE
BROMLEY
Counsel
for Bethlehem
15 Broad Street
New York 5, N. Y.
E.

FONTAINE

Joa_

Steel

Company

BROUN

H. PmKEm_o
Of Cou_sel
LUTHER
DAY
Counsel
for Republic
1759 Union
Commerce
Cleveland,
Ohio

Steel
Corporation
Building

To_E F. PA_ON
EDMUND

L.

HOWARD

B0_D

Jo_

at
for

estab-

of these

O'BRIAN

]:_.OGEE h_.

HOWARD

place

L. MILLER

LORD

PORTER

no

are

10, 1952.

JOHN
W. DAVIS
Counsel
for U'_ited States
I5 Broad
Street
New York 5, N. Y.
JOHN

has

to impose.
whieli

liberties.

Respectfully

NATttA_

choose
alone

of government

of arbitrary

be fatal

Tile judgments
of the
eases should be affirmed.
Dated:

tie may
plaintiffs

,.]'ONES

C. GALL
Of Counsel

App. 1175

99
JO[:tN
C. BANE,
JI_.
Cou_sel for Jo_zcs Laughlin
747 Union Trust ]3uilding
Pittsburgh
19, Pa.

Steel

Corporatio_

H. PanK_:a S_Am"
S_v_ms WARNER
CARL E. GLOCK, Ja.
W_:rER T. McGouG_
Rol3naa' W. BAlcKs
Of Counsel
JOHN
C. GALL
Counsel
for The Youngstown
Compact.y,
et al.
1625 K Street,
N. W.
Washington,
D. C.

Shcet

wnd l'ubc

Jo_N J. WILSO_
J. E. BEX_E_T

Of Counse_
CHARLES
H. TUTTLE
Counsel/or
Armco
Steel
She]]ield
Steel Corporation
15 Broad
Street
New York 5, N. Y.
Jos_mf
P. Tugrik:Y,
Of Cou,nsel

Corporation

and

Jt.

RANDOLPH
W. C]:[I[LDS
Counsel for E. J. Lavi_w d_ Company
1528 Walnut
Street
Philadelphia
2, Pa.
EOG,_R S. McKAm
,]^_.tEs CRAIG PEACOCK
Of Counsel

App. 1176

APPENDIX
Relevant

Provisions

of the

ARTICLE

Constitution.

]_.

Section i. All legislativePowers herein granted shallbe

vested

in a

consist

of a Senate

Section

Congress

S.

of
and

[Clause

tile

United

House

1.]

States,

which

shall

of Representatives.

The

Congress

shall

]lave

Power

To lay and collect Taxes,

Dnties,
Imposts
and Excises,
to
pay the Debts and provide
for the common
Defence
and
general

Welfare

[Clause

11.]

az_d Reprisal,
and Water ;
[Clause
priation
than

12.]

two

14.]

execute

and

To

grant

support

Letters

Armies,

s'hall

of Marque

Captures

be for

and maintain

make

Rules

and

for

naval

To provide

the Laws
Invasions

on Land

but no Appro;
a longer

Term

the

Government

and

Forces;

for

calling

of the Union,

a Navy;

suppress

forth

tlte Militia

Insurrections

to
and

16.]

disciplining

the

as may

To

provide

Militia,

for

organizing,

for

gcJverning

and

be employed

in

States,
reserving
to the States
merit of the Officers,
and the
Militia

* " *

concerning

Use

To provide

15.]

[Clause

War,

Rules

to that

of the land

[Clause

States;

Years;

[Clause
Regulation

declare

To raise

of Money

13.J

them

To

and nmke

[Clause

repel

of the United

according

to the

discipline

the

Service

respectively,
Authority
prescribed

arming,
such
of the

and

Part

of

United

the Appointof training

the
by Congress;

App. 1177

2a

[Clause

18.]

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.
AR_clm

Section
President

1. The executive
Power
shall
of the United
States of America.

Section

2.

mander

[Clause

in Chief

States,

and

the
the

Opinion,
executive

the

Duties

of

The

the

Service

of their

the United

be vested
* * *

President

Army

and

of the

several

of the United

shall

Navy

of

3.

respective

Reprieves

States,

except

He

Offices,

and

and Pardons

shall

in Cases

from

time

to time

give

necessary

and

convene

expedient;
both

he may,

Houses,

of Disagreement

between

them,

Time

of Adjournment,

lie may

adjourn

public

faithfully

proper;

he shall

Ministers;
executed,

of the United

he shall
and

shall

take

houses,

right
papers,

Care

Commission

to the

Con-

and recomas lie shall

of them,

with

receive

and

Respect

them

to the

to such

Time

Ambassadors
that
all

in

and

the Laws
the

of

4.

the

people

to be secure

and

effects,

against

in their

unreasonable

be

Officers

States.
_EI_DMEI_T

The

have

against

on extraordinary

or either

Case

think

shall

of
to

of Impeachment.

judge

other

called
require

for Offences

Information
of the State of the Union,
to their
Consideration
such Measures

as lie shall

Com-

when

he

United

; he may

gress
mend

Occasions,

be
the

States,

States

in

in writing,
of the principal
Officer in each
Del_artments,
upon any Subject
relating

to grant

Section

1.]

of the Mihtia

into the actual

Power

II.

persons,
searches

App. 1178

3a

and

seizures,

issue,

but

shall

be violated,

upon

probable

and

particularly

firmation,
searched,

not

and

cause,

and
supported

the persons

or things

of a Grand
forces,
War

Jury,

except

or in the Militia,
danger;

the same

offence

nor

be compelled

against
erty,

without

or af-

place

to

be

to be seized.
5.

in cases

arising

when

in actual

nor

to be twice

himself,

be taken

the

shall be held to answer

for a capital,
or othercrime, unless on a presentment
or indictment

or public
shall

shall

by Oath

describing

.A1WENDME:NT

No person
wise infaalous

no Warrants

nor

any

service

person

put in jeopardy

in an), criminal
be deprived

due process

for public

shall

in the land

case

in time

be subject

of life or limb ;

shall private

just

.A.]Y_ENDMENT

of
for

to be a witness

of life, liberty,

of law ; nor

use, without

or naval

or propproperty

compensation.

9.

The enumeration
in the Constitution,
of certain
rights,
shall not be construed
to deny or disparage
others retained
by the people.
AM_._DM_._T
The

powers

Constitution,
served

not
nor

to the States

delegated
prohibited
respectively,

10.

to the

United

by it

to the

States
States,

by

the

are

re-

or to the people.

App. 1179

4a

Applicable

Provisions

Act of 1947,
15a(a)(5),
Sec.

8.

of

The

61 Star.

Labor

158(b)(3),

(a)

It

shall

Management

136 et seq.,

Relations

29 U. S. C. Supp.

158(d),

be an unfair

IV,

176-180.
labor

practice

for

an

employer-*

(5)

to refuse

of his employees,

9(a)

of this
It

(3)

shall

be

an

or its

to refuse

to the provisions

lectively

unfair

labor

the

arising
party,

times

but

this

section,

terms

in good
and

the execution

or

reached
does

require

subject

to bargain
obhgation

of the employees

confer

agreement

an employer,

faith

not
the

of a written

making

of the
respect

of employ-

or any

if requested
compel

col-

to meet

with

conditions

of an agreement,

obligation

agree
to a proposal
sion :._ * *

labor

title;

of the mutual

other
and

any
such

of

and

and

thereunder,

employees

of this

representative

or the negotiation

incorporating

for

with

of his

9(a)

purposes

hours,

practice

collectively

representative

the

at reasonable
ment,

of Section

agents--

of section

and

to wages,

the representa-

to the provisions

is the performance

employer

with

subject

qJ

For

collectively

to bargain

it is the

(d)

title.

organization

provided

to bargain

tives

(b)

either

question
contract
by either
party

to

of a conces-

App. 1180

5a

Sec.

206.

tile United

Whenever
States,

affecting

in

trade,

among

or engaged

merce,

will, if permitted

quiry

health

into

the several
to occur

the issues

appoint

involved

to him within

prescribe.

Such

report

shall

facts

respect

statement

of itsposition

mendations.
The
with the Service

President
and shall

com-

imperil

the

of in-

in the dispute
a

not

and

time as he shall

statement

including

shall

foreign
for

a board

such

include

dispute,
but

or with

of goods

report

to the

thereof

transmission,

or to continue,

he may

of

or lock-out
part

States

production

a written

with

strike

transportation,

in the

or safety,

to inquire

to make

President

or a substantial

commerce,

nations,

of the

or actual

industry

or communication

national

opinion

a threatened

an entire

engaged

in the

of the

each

contain

party's

any

recom-

shall file a copy of such report

make its contents
available
to

the public.
Sec. 207. (a) A board
chairman
and such other

of inquiry
members

determine,

have

power

to sit and

States

and

to conduct

witlfin
either

the

United

or in private,

to ascertain

circumstances

(b)
sation
them
travel
(c)
by any
sections
and

shall

in public

proper,
and

and

Members
at

the

rate

as it may

facts

of a hoard

with

of inquiry

of $50 for

each

act in any
such

deem

i'espect

shall
day

the board,
expenses.

For

of any hearing

the purpose

of a
shall
place

bearings

necessary
to the

or

causes

dispute.

in the work
of
and subsistence

receive

actually

together

compenspent

with

by

necessary

or inquiry

conducted

board appointed
under
this title, the provisions
of
9 and 10 (relating
to the attendance
of witnesses

the production

Federal

the
of the

stroll be composed
as the President

Trade

of books,
Commission

papers,
Act

and documents)

of September

of the

16, 1941,

App. 1181

as

6a

amended

(U. S. C. 19, title

are made
board.

applicable

See. 208.
inquiry

(a)

the

petition

to

Upon

15, sees. 49 and

the

powers

receiving

a report

President

may

direct

district

court

of

any

50, as amended),

and

the
the

duties

from

Attorney
United

of

such

a board

of

General

to

States

having

jurisdiction
of the parties
to enjoin
such strike or lock-out
or the continuing
thereof,
and if the court finds that such
threatened
or actual
strike
or lock-out(i)

affects

an entire

of engaged
sion,

in trade,

nations,

commerce
(ii)
national

healtfi

join

any

such

and

to make
In

for

(c)
and

case,

other

several

there-

transmisStates

production

209.

orders

as may

or with

of goods

for

will imperil

the

shall

or orders

Supreme

the

as amended

under

section

tices

which

imperil

upon

in sections

court
writ

shall

23

Code

to

and

in equity,

208 of this title

to

be subject

court

to

of appeals

of certiorari

239 and

a district
threaten

of March

sitting

States

(U. S. C., title

or

Act

Judicial

be applicable.

United

Whenever

order

not

to enthereof,

be appropriate.

of courts

of the

Court

jurisdiction
continuing

of the

to amend

appropriate

(a)

have
or the

the provisions
Act

as provided

Code,

or to continue,

the jurisdiction

order

by the

See.

in the

it shall

purposes",

by the

tification
cial

the

or lock-out,

other

"An

limit

The

review

or safety,

such

any

and

to occur

strike

1932, entitled
define

transportation,

among

or engaged

part

; and

if permitted

(b)

or a substantial

commerce,

or communication

foreign

and

industry

or cer-

240 of the Judi-

29, sees. 346 and

court

has

347).

issued

an

enjoining

acts

or prac-

imperil

the

national

App. 1182

7a

health

or safety,

labor

dispute

effort

to adjust

sistance

shall
any

(b)

rise

and

settle

with

their

any

board

by

duty

been

position
made

for

parties

settlement,

available

tions

Board,

a secret

to the

within

ballot

stated

by hiln

Attorney

and

General

Sec.

210.

Upon

the

five

granted

the

and

is granted,

President

full

and

comprehensive

ing

the

findings

taken
with

by
such

consideration

the

of the
National

end

include

appropriate

tbat
the
have
by

of the employshall make such

Labor

days,

Rela-

shall

employer

take

involved

of whether
they wish to acmade by their employer
as
the

shall
board

of a sixty-

a statement

fifteen
of each

results

thereof

to the

thereafter.
of the

results

submit
of the

as he may

shall

When

such

such

to the
and
Board,

hapcourt

tben

be

motion

Congress

proceedings,

of inquiry
Relations

of

whichever
nmve the

motion

discharged.

Lahor

re-

whicll

National

which

report

shall

previously

efforts

being reached,
General
shall

recoInmendations
and

the

certification

the injunction
the

the

days

injunction,

or in

Service.

At

The

certify

])allot or upon a settlement

pens sooner,
the Attorney
to discharge

in whole

by the

has

succeeding

shall

as-

Neither

wlfich

shall

employees

within

chapter.

and a statement
The President

in the dispute
on the question
cept the final offer of settlelnent

every
the

has been settled

by
report
to the President

public.

the

of the

make
with

the President

and

and

to the

order,

to file dispute.

each party
of its position
er's last offer of settlement.
report

this

made

of such

of the

to

to accept,

day period
(unless
the dispute
time), the board of inquiry
shall
current

order

differences,

of inquiry

respect

of the parties

to such

of settlement

the issuance
the

duty

created

be under

reconvene
ported

Service

proposal

Upon

be the

giving

of tile

party
part,

it sball

includthe

ballot

together

see fit to make

action.

App. 1183

for

8a
The Defense

Production

Act, as Amended,

65 Stat. 132, 50 U. S. C. A., Appendix,

Sec.
that

201.

(a)

Whenever

the use of any

equipment,

thereof,

or materials

facture,

servicing,

or

component

the

2081,

President
supplies,

or facilities
or operation

parts,

use

and

of such

upon

fair

and

is authorized
for

the

(3)

for

promptly

to be paid
pursuant
be made

have
States

such

property

determine

been

exhausted,

he

or the use thereof

upon

the

or the

amount

the
States

payment

use

The

thereof

President

of the

compensation

or the use thereof

requisitioned

to this title but each such determination

shall
as of the time it is requisitioned
in accordance

entitled

President
same

United

provided.

the

for any property

defense,

of obtaining

of the

United

for

manusupplies

national

means

as hereinafter

parts

the

impending
and such
to any other
source

with the provision

for just compensation
ment to the Constitution
of the United
son

for

the

defense

terms

(1)

or component

such property

of the

compensation

other

the

reasonable

to be determined
shall

all

for

to requisition

defense

of just

that

property

2121-2123.

of such equipment,

is needed

798,

determines

necessary

(2) that such need is immediate

and
as will not admit of delay
or resort
of supply,

64 Stat.

to receive
as just

as full

and

the

amount

compensation
complete

in the fifth amendStates.

If the per-

so determined

is unwilling

compensation

by

to accept

for

the
the

such property

or the use thereof,

he shall he paid promptly
75 per centum
of such amount
and shall be entitled
to recover
from the
United
or,

without

ceeds
within
an

States,
$10,000,
three

additional

in an action
regard

to whether

in any
years

brought

after

anmunt

district
the
which,

in the
the

court
date

amount
of the

of the

when

Court

of Claims

involved
United

President's

added

to

the

ex-

States,
award,
amount

App. 1184

9a

so paid
erty

to trim,

(other

and

shall

thaa

other

Whenever

the

interest

of national

donation,

or other

shall

defense,
in any

for

or used

the national

ance

with

amended,

Act

or any

condemnation
section,

such

of

other

effort

acquire

shall

are

proceedof such
real

prop-

use thereof,
or other
personal
property
lohe deems

1, 1888

necessary

to be in accord(25

Federal
instituted

be made

by purchase,

any

proceedings

applicable

Stat.

357),

number

of persons

to negotiate,
negotiation

or for
would

with

statute.

Before
to this

to acquire

other

reasons,

involve,

the

instituted

shall

not order

sion

in advance

property

taking

has

to be

just

section

of final

been filed,

judgment

of the Act

has

of February
providing

for

title is in dispute,

the court,

upon

to the

owner

at

least

of the

section,

made,

such

posses-

centum

of

estimated

under

the
1421),

declarations.

application,

75 per

court

a declaration

of the amount

been

by

Presi-

the

to surrender

26, 1931 (46 Stat.

U. S. C. 258a],
pay

to acquire

as to be contrary
any condemnation

unless

and a deposit

compensation

effort

to this

in possession

doubt
of the

be necessary

judgment

the property
defense.
In

pursuant

the party

it would
the

in the

dent, such delay in acquiring

to the interest
of national
proceeding

whom

as

pursuant

involved
by negotiation
unless, because
of reasonable
as to the identity
of the owner or owners,
because
large

sub-

in the

jurisdiction

that

August

this

it necessary

having

therewith,

as scrap

or may cause

temporary
with any

prop-

buildings

used
under

condemnation,

proceedings

an

deems

court

defense,

the

and

and

he may

by

erty, including
facilities,
interest
therein,
together
thereon

facilities,

of transfer,

to acquire

No real

be acquired

President

means

ings to be instituted

cated

and

to be demolished

materials)

proceedings

compensation.

equipment

structures,

or secondhand
section.
(b)

be just

first
[40

Unless

shall promptly
of

the

amount

App. 1185

lOa
so deposited, but such payment shall be made without
prejudice to any party to the proceeding. Property acquired under this section may be occupied,used and improved for the purposesof this sectionprior to the approval
of title by the Attorney General as required by section
355of the RevisedStatutes, as amended[33 U. S. C. 733;
34 U. S. C. 520; 40 U. S. C. 255; 50 U. S. C. A., Appendix, 175].
(c) Whenever the President determines that any real
property acquiredunder the title and retained is no longer
neededfor the defenseof the United States,he shall, if the
original owner desires the property and pays the fair
value thereof, return such property to the owner. In the
event the President and the original owner do not agree as
to the fair value of the property, the fair value shall be
determined by three appraisers, one of whom shall be
chosenby the President, one by the original owner, and
the third 1)ythe first two appraisers; the expensesof such
determination shall be paid in equal shares by the Government and the original owner.
(d) Whenever the need for the national defenseof any
personalproperty acquiredunder this title shall terminate,
the President may disposeof suchproperty on such terms
and conditionsas he shall deemappropriate, but to the extent feasibleand practicablehe shall give the former owner
of any property so disposedof an opportunity to reacquire
it (1) at its then fair value as determinedby the President
or (2) if it is to be disposedof (otherwisethan at a public
sale of which he is given reasonable
notice)
at less .than
such

value,

ing

to pay

reacquire
having

at the
therefor:
need

a fair

highest

Provided,

not be given
value

price

of less

an),

other

That

this

person

opportunity

in the case of fnngibles

than

is willto

or items

$1,000.

App. 1186

11a

TITLE

V.--SETTLEMENT

Sec. 501.

It is the intent

for

effective

IV

of this

Act

there

be

that
labor

OF

price

and

and

disputes

LABOR

DISPUTES.

of Congress,

wage

to maintain

to provide

pursuant

uninterrupted

effective

procedures

affecting

national

Sec. 502. The national

reliance
upon
the parties

in order

stabilization
for

to title

production,

the

settlement

of

defense.

policy shall be to place

to any labor
dispute

primary
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.
To this end
the

President

ferences
the

is authorized

between

President

the public,
to take

labor,

designate

to represent

(2) subject

such

action

as

and

appropriate

this

The

President

agencies
as he may
visions of this title.
Sec.
given
by

503.

In

to terms

prevailing

fair
with

such

conditions

and

inconsistent

Standards
et seq.],

policies

Act
other

of

the

provisions

to carry

due

established

and

which

under

provisions

as

amended

[29

labor

standards

statutes,

or with other

applicable

Act, 1947
laws

shall

be

will be

this

the

Federal

shall

will be consistent

1938,

Relations

or

established

with

Management

of

out the pro-

regard

practice

alike,

503
such

persons

of employment

bargaining

management

of section

such

as
and

in any

out

conference,

persons

upon

designate

appropriate

and

such

con-

government

provisions

to carry

any

stabilization

action

deem

voluntary

and

be agreed

may

collective

to labor

to the

may

conference
title.

to initiate

management,

may
and

(1)

of the

Act.

No

Fair

Labor

S.

C. 201

U.

the

Labor

[29 U. S. C. 141 et seq.],

be taken

under

tlfis title.

App. 1187

12a
The

Universal

Military

Training

and

Service

625 et seq., 50 U. S. C. A. Appendix,

See.

1S.

(a)

_qlenever

the

with and receiving

advice
sources
Board
determines
national

security

for

President

from
that

the

Act.

Section
after

the National
Security
Reit is in the interest
of the

Government

to obtain

prompt

or materials
the procurement
by the Congress
exclusively

of the armed

of the United

the

Atomic

the head

Ener_T
of any

son operating

States,

Conmfission,

Government

a plant,

or for

to place

or other

the use

of

through

with

facility

de-

of which
for the use

he is authorized,

agency,

mine,

Stat.

consultation

livery of any articles

has been authorized
forces

62
468.

any

capable

per-

of pro-

ducing such articles

or materials
an order for such quantity
of such articles
or materials
as the President
deems appropriate.

Any

person

to the provisions
order

any

President
tures,

shall

clusively

such

for the

For

the purpose

the trade

use

of this

order
(a),
to all

It

shall

is placed
(1)

to give

other

pursuant
such

orders

order

in such
and

snmll
placed,

forces

or for

other

a business

enterprise

if (1)

does
and

to the
such

busiexFed-

section.
shall

its position

in

is not donfinant,

not

exceed

500, and

operated.

of any

(Government

manufac-

orders

it is a part

owned
duty

the
small

in this

of its employees

be the

procurement,
of American

of the

business"

such

section.

designated

section,

of which

that

of this

contracts,

of the armed

(3) it is independently
(b)

claim

share

pursuant

be advised

national

or hereafter

to be "small

number

is placed

of materials,

a fair

or industry

the

of

the valid

distribution

now

be determined

shall

in such

be granted

agencies

section

program

recognize

in such

eral

an order

to the provisions

to participate
and

ness

whom

pursuant

shall

business

(2)

of this

is placed

Under

with

person

with

provisions

of

precedence
or

private)

whom

an

subsection

with

respect

theretofore

App. 1188

13a
or thereafter

placed

prescribe,
and
time prescribed

with

such person

as the Preside,_t

may

(2) to fill such order

within
the period
by the President
or as soon thereafter

of
as

possible.
(c)

In

ease

pursuant
fails-(1)

to give

to all

other

person

with

provisions

of

sucli

whom

such

(Government

placed

with

such

order

an order

subsection

precedence

refuses

with

or private)

such person

is placed

(a)

or

respect

theretofore

as the President

may

period

pre-

prescribed;

(2 !

to fill

scribed

by the

(3)
terials

by the

to produce
ordered;

or in the
the

operate

it,

(d)
United
pursuant

event

any

of such articles
Government.
and

just

(1)

to an order

the

and

of articles

or ma-

a price,

of articles

under

possession
for

as may

rental
for any plant,
mine, or other
session
is taken
under
sub-section

facility
(c).

and
the

be

to

pro-

required

be paid

or materials
subsection

'(d)

person

agency,

shall

be

subsection

immediate

any articles

or

subsequently

under
of such

or material

placed

to negotiate
quality

to take

compensation

for

agency

facility

Government

of ark
be ne-

Government

as he nlay

to receive

or other

through

and

price

is authorized

States

as possible

kind, and quality

such price as shall

of failure

at such

mine,

Fair

quality

kind,

to be entitled

plant,

or

person

quantity,

ordered

President

duction
by the

Mnd

such

to furnish

of any

thereafter

time

President;

the quantity,
ordered
at

concerned;

determined

of

or

between

nmterials

the

or as soon

the

(4)
to furnish
ticles or materials
gotiated

within

President

as determined

the

order

orders

or thereafter
have

any

to the

by

the

furnished
(a),

or (2) as

of which

pos-

App. 1189

14a
(e)

Nothing

to render
which
State

contained

possession
or Federal

curity,

in this

inapplicable

to any

is taken
pursuant
laws concerning

or employment

(f)

Any

in this

person,

section,

section

plant,

standards
or any

who

be deemed

or

facility

of

to subsection
(c)
the health,
safety,

any
se-

of employees.

officer

willfully

shall

mine,

of any

fails

person

or refuses

as defined
to carry

out

an), duty
imposed
upon
him by subsection
(b) of this
section
shall be guilty
of a felony
and, upon
conviction
thereof,
than

shall
three

years,

or by both
'(g)

by

or by

imprisonment

a fine

of not

imprisonment

As used

The

company,
ness

such

(1)

(A)

be punished

term

and

in this

more

not

than

more

$50,000,

fine.

section-

"person"

association,

for

means

any

corporation,

individual,

or other

firm,

form

of busi-

organization.

(B)

The

term

"Government

partment,
agency,
independent
tion in the Executive
branch

agency"

means

establishment,
of the United

any

de-

or corporaStates
Govern-

ment.
(2)

For

or other

the

articles
with

Resources
verted

shall

or materials

such articles
tion

purposes

facility

of

receiving

Board
to the

section,

a plant,

capable

if it is then

or materials
and

this

be deemed

producing

or if tim President
advice

from

determines

production

that

the
it

or furnishing

mine,

of producing

any

or furnishing
after

consulta-

National

Security

can

be readily

of such

articles

conor

materials.
(h)

(1)

Secretary
the United

The

President

is

empowered,

through

the

of Defense,
to require
all producers
of steel in
States
to make available,
to individuals,
firms,

App. 1190

15a
associations,companies,corporations, or organizedmanufacturing industries having orders for steel products or
steel materials required by the armed forces, such percentages of the steel production of such producers, in
equal proportion deemednecessary for the expeditious
executionof orders for suchproducts or materials. Compliance with such requirement shall be obligatory on all
such producers of steel and such requirement shall take
precedenceover all orders and contractstheretofore placed
with such producers. If any suchproducer of steel or the
responsiblehead or heads thereof refuses to comply with
such requirement, the President, through the Secretary
of Defense,is authorized to take immediate possessionof
the plant or plants of such producer and, through the appropriate branch, bureau, or department of the armed
forces, to insure compliancewith such requirement. Any
such producer of steel or the responsiblehead or heads
thereof refusing to comply with such requirementshall be
deemedglfilty of a felony and upon convictionthereof shall
bepunishedby imprisonment for not more than three years
and

a fine

(2)
final

The
day

enactment

not

President
of each

$50,000.
shall

six-month

of this Act

formation
is
figure, of the
required
execution

exceeding

report

to the

Congress

period

following

the percentage

fig-ure,

the

on the
date

of

or if such

in-

not available,
the approximate
percentage
total steel production
in the United
States

to be made available
of orders
for steel

required
by the armed forces,
excess of 10 per centum.

during
products

such
and

period
for the
steel nmterials

if such percentage

figure

is in

App. 1191