unpopularity of necessary executive action, but must independently determine for itself whether the President was acting, as required by the Constitution, "to take Care that the Laws be faithfully executed."

As the District Judge stated, this is no time for "timorous" judicial action. But neither is this a time for timorous executive action. Faced with the duty of executing the defense programs which Congress had enacted and the disastrous effects that any stoppage in steel production would have on those programs, the President acted to preserve those programs by seizing the steel mills. There is no question that the possession was other than temporary in character and subject to congressional direction-either approving, disapproving or regulating the manner in which the mills were to be administered and returned to the owners. The President immediately informed Congress of his action and clearly stated his intention to abide by the legislative will. No basis for claims of arbitrary action, unlimited powers or dictatorial usurpation of congressional power appears from the facts of this case. On the contrary, judicial, legislative and executive precedents throughout our history demonstrate that in this case the President acted in full conformity with his duties under the Constitution. Accordingly, we would reverse the order of the District Court.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1951

No. 745

CHARLES SAWYER, SECRETARY OF COMMERCE, PETITIONER

v.

THE YOUNGSTOWN SHEET AND TUBE COMPANY, ET AL.1

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR PETITIONER

OPINIONS BELOW

The opinion of the District Court (R. 63–76) is not yet reported. The opinion of the Court of Appeals for the District of Columbia Circuit (R. 447-449), on consideration of motions for stavs. is not yet reported.

JUBISDICTION

The orders of the District Court were entered on April 30, 1952 (R. 76). On April 30, 1952, petitioner field notice of appeal and docketed the appeal with the Court of Appeals for the District of Columbia (R. 77). The petition for certiorari was filed, prior to judgment by the Court of Appeals, on May 2, 1952 (R. 456). Certiorari was granted on May 3, 1952. The jurisdiction of this Court rests on 28 U. S. C. 1254 (1).

QUESTIONS PRESENTED

1. Whether, on the facts recited in Executive Order No. 10340 and established by the uncontroverted affidavits, the President had constitutional authority to take possession of plaintiffs' steel mills in order to avert an imminent nationwide cessation of steel production.

2. Whether, in the circumstances of this case, the district court erred in reaching and deciding the constitutional issues on motions for preliminary injunctions. 3. Whether the district court erred in granting injunctive relief.

CONSTITUTIONAL PROVISIONS AND EXECUTIVE ORDER INVOLVED

Article II of the Constitution provides, in pertinent part:

SECTION 1. The executive Power shall be vested in a President of the United States of America. **

1 Since respondents herein have filed a petition in No. 744 we shall, to avoid confusion, refer to them as "plaintiffs."

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:-"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

SECTION 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

SECTION 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

The Fifth Amendment provides:

No person shall be *** deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Executive Order 10340, and orders issued pursuant thereto, are set out at R. 6, 22.

STATEMENT

These are proceedings for injunctive relief against the petitioner, the Secretary of Commerce, to restrain through him the action of the President in ordering the taking of possession and operation of certain of plaintiffs' properties by Executive Order 10340, 17 F. R. 3139, issued on April 8, 1952. The underlying circumstances and the proceedings below are as follows:

1. THE WAGE DISPUTE

On November 1, 1951, plaintiffs' employees, represented by the United Steelworkers of America, C. I. O., which had a collective bargaining agreement due to expire on December 31, 1951, gave notice to the plaintiffs that they wished in a proposed new collective bargaining agreement between the parties to effect changes in wages and working conditions over those established by the old contract (R. 3, 81). No progress was made in the negotiations which followed and, on December 22, 1951, the dispute was referred by the President to the Wage Stabilization Board, in accordance with the provisions of Executive Order 1023, 16 F. R. 3503. The Presidential letter of referral, a copy of which is attached to the affidavit of Mr. Harry Weiss, Executive Director of the Wage Stabilization Board, requested the Board to investigate the dispute and promptly to report with recommendations as to fair and equitable terms of settlement.' The President noted that the union and the steel producers had made no progress in resolving their differences and that it appeared unlikely that further bargaining

The Presidential letter of referral, the report of March 13, 1952, by the Steel Parel which heard the presentation of steel wage dispute, and the "Report and Recomme... la tions" of the Wage Stabilization Board of March 20, 1952, all of which are contsines, in the certified transcript of record as appendices to the affidavit of Mr. Harry Weiss 59-61) were omitted in printing the record. Copies of these documents have been a bied and deposited with the Clerk for the Court's use.

or mediation and conciliation would suffice to avoid early and serious production losses in the vital steel industry. The President emphasized that the entire progress of national defense was threatened because any work stoppage would paralyze the entire steel industry and have an immediate and serious impact on the defense effort.

Pursuant to the referral, the Board immediately appointed a tripartite special steel panel (consisting of representatives of the public, of industry, and of labor) to hear all evidence and argument in the dispute and to make such reports as the Board might direct (R. 59). After a procedural meeting, public hearings were held in Washington, D. C., and New York City beginning on January 10, and continuing until February 16 (R. 60). The participating parties and the masses of evidence and argument heard are indicated by the Panel Report, dated March 13, 1952, a copy of which is attached to Mr. Weiss' affidavit. This Panel Report outlined the issues in dispute, summarized the position of the parties, and was submitted to the parties for consideration and comment. Meanwhile, the Board met and prepared the "Report and Recommendations of the Wage Stabilization Board," dated March 20, 1952, and submitted it to the President on that date. A copy of the Board Report is attached to the affidavit of Mr. Weiss. The Board's recommendations, acceptable to the union, were rejected by steel management (R. 81).3

2. THE SEIZURE

As noted above, no progress was made in negotiations between the parties pursuant to the union's notice of November 1, 1951, and a strike was called, as contemplated by the notice, for December 31, 1951. After the President's referral of the dispute to the Wage Stabilization Board on December 22, 1951, the union voluntarily deferred the strike which had previously been set. After plaintiffs' refusal to accept the Board's recommendations, the strike was called for 12:01 A. M., April 9, 1952 (R. 7). Ninety-six hours' notice had been given; the mills were closing and the fires were being banked. The resulting catastrophic threat to steel production was averted by the Executive Order issued by the President directing the Secretary of Commerce to take possession of the steel industry on the night of April 8, 1952. The Secretary of Commerce thereupon issued Order No. 1 taking possession of the plants, facilities and other properties of plaintiffs and numerous other steel companies (R. 22). The Order, and the accompanying telegrams sent to the companies, designated the president or chief executive officer of each company as the Operating Manager for the United States and directed that the management's officers and employees of the plants continue their functions (R. 21).

The union immediately called off the contemplated strike and full-scale production of steel continued without interruption until April 29, 1952 after the issuance of Judge Pine's decision in the District Court. See infra, pp. 22-24. In his Executive Order, the President set forth his findings that steel is an indispensable component of substantially all the weapons used by the armed forces, that it is indispensable in carrying out the programs of the Atomic Energy Commission, and that a continuing and uninterrupted supply of steel is indispensable for the maintenance of the civilian economy of the United

Rejection of the Board's recommendations by plaintiffs was consistent with their position from the outset of the dispute. As stated by the Chairman of the Board in the March 20 report (pp. 5-6), after reviewing the critical nature of any labor dispute in the key steel industry, the "situation clearly called for unusually extensive bargaining. Instead, there was virtually no bargaining." On the major issues, such as wages, fringe benefits, etc.. plaintiffs made no counter proposals, at least until after March 20, 1952. Report, PP. 67 Panel Report, March 13, 1952, passim. The need for bargaining in the best faith was underscored by the fact that the dispute presented the first occasion since 1947 for thorough review and revision of the collective bargaining agreements between the parties Report, March 20, p. 5), and the fact that the Board's recommendations to the President were of a "catch-up" nature, designed to equate the position of steel workers with workers in comparable industries. Testimony of Nathan P. Feinsinger, Chairman, Wage Stabilization Board. Hearing before Subcommittee on Labor and Labor-Management Relations, Senate Committee on Labor and Public Welfare, 82d Cong., 2d Sess., March 31, 1952. See also Steel Panel Report, passim: Staff Report to Subcommittee on Labor and Labor-Management Relations, Senate Committee on Labor and Public Welfare, Senate Document 122. $2d Cong., 2d Sess. Perhaps, a principal stumbling block was the position taken by plaintiffs that any increase in wages required a compensating increase in prices, a position which Price Stabilization officials deemed absolutely destructive of the present stabilization program. See Statement on Steel by Ellis Arnall, Director of Price Stabilization, before the Senate Committee on Labor and Public Welfare, Senate Document No. 118, 82d Cong., 21 Sess.. pp. 6-7, and passim..

States upon which our military strength depends (R. 6-9). He concluded with the finding that

a work stoppage would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field

and that in order to avert these dangers it

is necessary that the United States take possession of and operate the plants, facilities and other properties of [the plaintiffs].

The affidavits filed below by petitioner, which were not controverted, spell out in greater detail these findings of the President. Secretary of Defense Lovett, the cabinet officer most directly concerned with all problems of armed forces procurement and development, points out, in his affidavit, the following (R. 27-31) That an adequate and continuing supply of steel is essential to every phase of our defense production effort at home, including the ever increasing needs of troop training; that a continuing steel supply is essential to the effectiveness, safety and very existence of the armed forces fighting in Korea and stationed elsewhere overseas as part of our effort in world defense; and that no cessation of steel production can fail to add materially to the risk, from a military point of view, to which we are already subject by reason of the "stretch out" of our amament program and as a result of which we are barely able to meet our defense goals. Secretary Lovett, after disclosing, to the extent permitted by the grave considerations of security which are involved in any information of this type, the large percentage of steel production which goes into current defense requirements, emphasized the almost unbelievable extent to which our entire combat technique depends on the fullest use and availability of industrial strength and the use of vastly improved weapons, by reason of which he stated that "we are holding the line [in Korea] with ammunition and not with the lives of our troops" (R. 30). From all of these factors, Secretary Lovett concluded that any curtailment in the production of steel, even for a short period of time, would imperil the safety of our fighting men and that of the nation.

Again, the grave effect of any interruption in steel production on the national saftey and defense efforts is sharply emphasized in the affidavit of Mr. Gordon Dean, Chairman of the Atomic Engery Commission (R. 31–33). Mr. Dean, referring to the curernt major expansion of construction facilities for the production of atomic weapons, points out that success is governed by the completion of the facilities construction program on schedule; that time has already been lost and must be recovered; that the most varied and unusual types of structural steel and stainless steel must be continuously available; that inventories of materials needed for such critical projects as development of A. E. C. construction sites are abnormally low; and that, consequently, any cessation of deliveries of steel will have the critical effect of causing an inability to step up the production of atomic weapons to the rate required to meet goals established by the Presi dent.

Mr. Henry H. Fowler, Administrator of the National Production Authority, deposes (R. 34-38) that the products of the iron and steel industry are indispensable in the manufacture of military weapons and equipment and in the production of items required for defense-supporting programs such as those of the Atomic Energy Commission and the construction and expansion of power plants and of steel and aluminum facilities for production of railroad equipment ships, machine tools and the like. He points out that the effect of a stoppage of steel production would vary according to inventories available to the manufacturers but in any event would quickly diminish the volume of output. Because of inventory shortages there would be an immediate slow-down in the manufacture of certain types of ammunition and with respect to certain essential programs of the Atomic Energy Commission, which is in short supply on certain vital specialty items. The production of antifriction bearings, mechanical power transmissions and aircraft fasteners would be quickly affected, resulting in the immediate curtailment and early shut-down of the production of aircraft, tanks and other military equipment. The same is true as to the production of

As indicated above, serious security problems are presented in furnishing any detailed Information as to the effect of a cessation of steel production on defense production » ?.? ules and needs. This consideration is particularly apposite in the case of the Atomen Energy Commission.

air valves required for the production program of the Atomic Energy Commission. With respect to heavy power and electrical equipment, such as engines, turbines, motors, power transformers, the situation is similarly critical; shipment of such equipment would be discontinued within one to three weeks after a production stoppage and Mr. Fowler estimates that "even a one week's stoppage would cause as much as one month's delay in the production of engines and turbines." This in turn would have serious effects upon the programs of the Atomic Energy Commission, the Navy's mine sweeper program and the power, aluminum and steel expansion programs. The production of electronic equipment used for military purposes also would be immediately and seriously affected, and any loss in this field would be irretrievable.

Secretary of Commerce Sawyer's affidavit (R. 49–59) discloses the critical impact which a major stoppage in steel production would have on the transportation programs of the Maritime Administration, the Civil Aeronautics Administration, and the Bureau of Public Roads. He points out that a ten-day interruption in steel production would result in the loss of 96,000 feet of bridge and 1,500 miles of highway, that a twenty-day interruption would result in the loss of 149,000 feet of bridge and 2,280 miles of highway, and that a thirty-day interruption would result in the loss of 196,000 feet of bridge and 2,950 miles of highway; that the highway construction program, vital in defense plant and training areas, cannot continue production from inventory, and that steel for highways and bridges is ordered for specific use, delivered for specific use, and if it is not produced and delivered the program is delayed. With respect to the effect of a steel shutdown on the shipbuilding program, Secretary Sawyer states that of the 98 ships currently in varying degrees of construction, there is sufficient steel in the yards to permit completion of only 21 of the ships, and that 39 ships are in such a stage of construction as to be directly dependent on the receipt of steel products during the present quarter. Further, Secretary Sawyer details the critical effect which a stoppage of steel production would have on the production of carrier and noncarrier aircraft. He emphasizes, with respect to production of transport type aircraft that should the production of certain components be delayed, it is anticipated that both the Convair and Douglas production lines would have to be stopped within 60 days; and that one manufacturer of aircraft has indicated that it would be preferable to close down his operations immediately rather than wait for the anticipated unavailability of a number of items to cause him to close.

Mr. Oscar L. Chapman, Secretary of the Interior, points out in considerable detail in his affidavit (R. 39-43) the drastic repercussions of any delay in deliveries of the various types of steel permitted by Defense Production Administration allotment orders to the petroleum, gas, and electric power utility fields. Most of the steel and steel products thus allocated are for maintenance and expansion of facilities for production and transportation, areas of activity which are obviously of the greatest importance not only for industrial use and expansion but for direct military use. The factors involved in these considerations are elaborated in Mr. Chapman's affidavit. In addition, he sets forth the crucial importance of the continued availability of steel supplies for the maintenance, repair, and operation of coal mines and coke ovens. Failure of steel supplies would result in curtailment of power production necessary for defense and military uses and would also result in a progressively severe decline in the production and availability of coal for all purposes."

3. COURT PROCEEDINGS

Immediately upon the issuance of Executive Order 10340, plaintiffs sought, by court order, to nullify the Presidential action thus taken to prevent the complete cessation of production in the steel industry. On the night of April 8, 1952, applications for temporary restraining orders were presented ex parte to Judge Bastian of the District Court for the District of Columbia. The Judge declined to

Further details of the impact upon our national security of a cessation of steel production are contained in the affidavits of Manly Fleischmann, Administrator of the Defense Production Authority (R. 33-34), Homer C. King, Acting Administrator of the Defense Transportation Administration (R. 46-48), and Jess Larson, General Services Administrator (R. 44-46).

Counsel for plaintiff Republic Steel Company advised the District Court that the plaintiffs produce 70% of the nation's steel (R. 291). In addition, a complaint making similar allegations has been filed by Inland Steel Company in the Northern District of Indiana, Hammond Division. Civil Action No. 1381, filed April 16, 1952. That action has been stayed by agreement pending disposition of the present cases.