President Truman issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation’s steel mills. The mill owners argue that the President’s order is not valid under the Constitution and that order should have been issued by Congress.
The President’s power to issue an order must stem either from an act of Congress or from the Constitution itself.
During the Korean War, a dispute arose between the steel companies and their employees over terms and conditions for new collective bargaining agreements and a strike ensued. Because steel was indispensable for making weapons, the President worried that the work stoppage would jeopardize the national defense. The President issued an order directing the Secretary of Commerce to take possession of most steel mills and keep them running. The Secretary of Commerce immediately took actions. While the President reported to Congress, Congress took no action.
Does the President act within his constitutional power when he issues an order directing the Secretary of Commerce to take possession of and operate most of the Nation’s steel mills?
No. If the President had authority to issue the order he did, it must be found in some provision of the Constitution. However, no express constitutional language grants the power to take possession of property as President Truman did here. The Constitution had entrusted the lawmaking power to Congress alone and what the President Truman issued should have been issued by Congress.
The absence of a specific statute authorizing seizure of the steel mills as a mode of executing the laws has not been thought to prevent the President from executing the laws. Currently, there is no statute that prohibits the action taken by the President. In the absence of statutes that prohibit such action, there is no basis for criticizing the exercise of such power. In fact, Presidents have dealt with national emergencies by acting to enforce legislative programs, at least to save those programs until Congress could act.
Justice Frankfurter and Jackson
Justice Frankfurter: The Framers rested the structure of our central government on the system of checks and balances. We must respect the principle of separation of powers. Congress expressly said to the President that he may not seize. The President must respect this because only Congress has the constitutional authority to make laws.
Justice Jackson: When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum whereas the President can only rely on his own independent powers in the absence of congressional grant. When the President takes measures inconsistent with the will of Congress, the President’s power is at its lowest ebb. Such is our case. Thus, the President may not issue the order as did and power to legislate for emergencies belongs to Congress only.
While the Constitution does not grant express power to the President to take possession of steel mills, the opponents argue that such power should be implied from the aggregate of his powers under the Constitution, especially under the provision that the President shall be Commander in Chief. However, even if threat of war may be a broad concept, the Commander in Chief shall not have the ultimate power to take possession of private property to keep labor disputes from stopping production. This must be done by Congress. The Constitution does not, expressly or implicitly, grants the President lawmaking power.