The steel companies brought proceedings against the Secretary of Commerce arguing that the seizure of steel mills nationwide was not authorized by an act of Congress or by any constitutional provisions.
The President’s power to issue the order must stem either from an act of Congress or from the Constitution itself.
The steel companies and their employees could not reach a new collective bargaining agreement in 1951 and the Union gave notice of a nation-wide strike. The indispensability of steel as a component of substantially all weapons and other war materials led the President to believe that the proposed work stoppage would immediately jeopardize our national defense. The President issued an executive order which directed the Secretary of Commerce to take possession of most of the steel mills and keep them running. The Secretary immediately issued his own orders calling upon various seized companies to serve as operating for the United States. The next morning and twelve days later, the President notified Congress of his action. Congress has taken no action.
Does the President act within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation’s steel mills?
No, because there is no statute that expressly authorizes the President to take possession of property as he did here nor is there any at of Congress to which our attention has been directed from which such a power can fairly be implied. While the Government contends that presidential power should be implied from the aggregate of his powers under the Constitution, including his military power as Commander in Chief of the Armed Forces, the Commander in Chief of the Armed Forces does not have the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for Congress, not for its military authorities.
Justice Frankfurter, Douglas, and Jackson
Frankfurter: Congress has frequently provided for executive seizure of production, transportation, communications, or storage facilities. In every case, Congress has qualified this grant of power with limitations and safeguards. The power to seize has uniformly been given only for a limited period or for a defined emergency. The President could not ignore the specific limitations of prior seizure statutes, but he has the power to seize factories in times of emergency.
Douglas: The emergency which caused the President to seize steel mills was one that bore heavily on the country. But the emergency did not create power; it merely marked an occasion when power should be exercised. All executive power has the outward appearance of efficiency. The President might seize and the Congress by subsequent action might ratify the seizure. But until and unless Congress acted, no President’s action would be lawful.
Jackson: Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress. The President has the widest latitude in his exclusive function to command the instruments of national force when turned against the outside world for the security of our society. However, when it is turned inward as here, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such broad latitude. His command in power is not as absolute as might be implied from that office in a militaristic system but is subject to limitations.
The President’s power to see that the laws are faithfully executed refutes the idea that is a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. The Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The Constitution expressly states that all legislative powers granted shall be vested in the Congress. Moreover, the use of the seizure technique to solve labor disputes to prevent work stoppages was not only unauthorized by any congressional enactment, and Congress has refused to adopt that method of affecting labor disputes prior to this case. It was thought that the technique of seizure, like that of compulsory arbitration, would interfere with the process of collective bargaining. Thus, the President may not order its Secretary of Commerce to seize all steel mills.