accordance with the requirements of due process, and would be subject to appropriate judicial review."

On its face, therefore, plaintiffs' contention that they will be subjected to increased costs which cannot otherwise be compensated comes to a contention that plaintiff's have a constitutionally protected and judicially recognizable right to profits greater than those permitted under the Defense Production Act. This contention cannot be sustained. The constitutional validity of a system of price control during a time of emergency is no longer subject to doubt. Yakus v. United States, 321 U. S. 414. Nor do we think it can be questioned that the basing of ceiling prices on a standard related to past profits is permissible. See, e. g., Gillespie-Rogers, Pyatt Co. v. Bowles, 144 F. 2d 361 (E. C. A.); $15 West 97th Street Realty Co., Inc. v. Bowles, 156 F. 2d 982, 985 (E. C. A.), certiorari denied, 329 U. S. 801; Curtiss Candy Co. v. Clark, 165 F. 2d 791, 795 (E. C. A.), certiorari denied, 334 U. S. 820. See also Cavers, et al., Problems in Price Control: Pricing Standards, Office of Temporary Controls, Office of Price Administration (Historical Reports on War Administration: Office of Price Administration, General Publication No. 7) (1947), c. 2, "Industry Earnings Standard," pp. 27–89; Nathanson, Problems in Price Control: Legal Phases, Office of Temporary Controls, Office of Price Administration (Historical Reports on War Administration: Office of Price Administration, General Publication No. 11) (1947), pp. 5 ff. Since this is so, we do not perceive how an imposition of additional labor costs whose effect, if any, on plaintiffs' profits is merely to reduce them to the maximum permissible level, can be said to work the kind of irreparable injury which would warrant a court of equity in interposing its hand to enjoin action taken by the President to meet a grave national emergency. We do not mean to suggest that this Court need pass on the present controversy between the plaintiffs and the Office of Price Stabilization. But the fact that plaintiffs would have been willing to agree to wage increases such as those which they now complain are threatened to be imposed on them, provided only a substantial price increase were allowed, certainly sheds light on their claim that imposition of those terms would result in enormous and irreparable injury. Just as, in the event of a taking, compensation for any amount in excess of the established lawful ceiling price cannot be allowed save in exceptional circumstances, United States v. Commodities Trading Corp., 339 U. S. 121, so we think that in the present situation a threatened loss of profits, which leaves those profits at or above the level at which plaintiffs' ceiling prices are certainly "generally fair and equitable to sellers and buyers of such material service and to sellers and buyers of related or competitive materials and services," (Defense Production Act, Sec. 402 (b) (2)), can hardly be said to result in such irreparable injury as would justify the issuance of an injunction nullifying the President's act. Cf. Lichter v. United States, 334 U. S. 742. And to the extent that plaintiffs' ceiling prices may, as a result of increased costs, become less than "generally fair and equitable”, they have an adequate remedy by application to the Office of Price Stabilization for a price increase. See supra, pp. 82-84.

2. Any injury to plaintiffs is more than counterbalanced by the injury to the public from the granting of an injunction.—Assuming, however, that plaintiffs' showing, by itself, is sufficient to establish irreparable injury to them, that showing must be balanaced against the showing of injury to the public from the granting of an injunction. The rule is well settled that "an injunction is not a remedy which issues as of course," Harrisonville v. Dickey Clay Co., 289 U. S. 334, 337–338. Particularly where great public interests are involved, it is established that "Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved." Virginian Ru Co. v. System Federation, 300 U. S. 515, 552.

Steel prices are now being maintained under a voluntary agreement, entered into under Section 402 (a) and 70% of the Defense Production Act. and no maximum price regulation covering steel has been issued. However, the companies are free at any time to withdraw from that voluntary agreement and to set their own prices, thus impelling OPS to issue a price regulation Accordingly, if OPS refused a request by the companies for a price increase, they would be able to obtain administrative and judicial review (in the Emergency Court of Appeals) by withdrawing from the voluntary agreement and protesting and appealing the price regulation or order which would undoubtedly follow See fu. 64, infra, p. 84.

In any event, plaintiffs have an adequate procedure by which any attack on that method of fixing prices could be made Sections 407 and 408 of the Defense Production Act; Yakus v. United States, 321 U. S. 414 See fn. 63, supra, p. 83.

In accordance with these principles, we think it clear that the district judge erred in granting a preliminary injunction here. As this Court has said in Yakus v. United States, 321 U. 9. 414, 440, the award of an interlocutory injunction even in private cases "has never been regarded as strictly a matter of right, even though irreparable injury may otherwise result to the plaintiff." See opinion of the Court of Appeals below, 448-449. See also Tennessee Valley Authority v. Tennessee Electric Power Co., 90 F. 2d 885 (C. A. 6), certiorari denied, 301 U. S. 710; Eighth Regional War Labor Board v. Humble Oil Co., 145 F. 2d 462, 464–465 (C. A. 5), certiorari denied, 325 U. S. 883; Communist Party of United States v. McGrath, 96 F. Supp. 47 (D. D. C.).

The injury to the public interest from any return to the status quo which existed on the night of April 8, 1952, would be enormous and irreparable, affecting our national safety, our discharge of international commitments, and the lives of our soldiers. See pp. 9-15, 28-49, supra. Unlike the allegations of petitioners' affidavits, many of which we are prepared to controvert, the showing of damage to the public interest from any stoppage of production is not, and cannot be, controverted." The district judge erroneously rejected that showing. He doubted whether he should balance the equities at all (R. 74). Moreover, in attempting to do so, he assumed, contrary to fact, that the status quo which he sought to preserve did not include any likelihood of a strike. (R. 74, 75). In fact, not only was a strike imminent on April 8, but one began on April 30, 1952, fifteen minutes after Judge Pine's order. Whether that strike was justified or not is aside from the point; any realistic appraisal of the situation should have recognized its likelihood.

In essence, moreover, the judge rested his idea of balancing equities on a prejudging of the merits. He felt that the enormous damage from a cessation of production "would be less injurious to the public than the injury that would flow from a timorous judicial recognition that there is some basis" for the defendant's contentions in this case as he misconceived them (R. 75). We submit the proper procedure is the other way; and balancing of equities must be before determination of the merits, and where public action is sought to be enjoined, the normal presumption of constitutionality of the act of a coordinate branch of the Government should lead the courts, on preliminary injunction, to assume at least a substantial likelihood that the public officer will pervail on the merits, and to consider seriously the damage to the public interest that would result on the assumption that he acted constitutionally."

On these grounds we urge that no preliminary injunction should have been granted. We go further, however, and urge also that it is clear that no final relief can be granted. The principles of balancing the equities and of endeavoring to avoid injury to the public interest apply to final as well as preliminary injunctions, Harrisonville v. Dickey Clay Co., supra; Hurley v. Kincaid, 285 U. S. 95; New York City v. Pine, 185 U. S. 93, 97; Virginian Ry. v. Federation, supra: Pennsylvania v. Williams, 294 U. S. 176, 185; United States ex rel. Greathouse v. Dern, 289 U. S. 352, 360; Morton Salt Co. v. Suppiger Co. 314 U. S. 488, 492, 494; Mercoid Corp v. Mid-Continent Co., 320 U. S. 661, 670. "The history of equity jurisdiction is the history of regard for public consequences in employing the extraordinary remedy of the injunction." Railroad Commission v. Pullman Co., 312 U. S. 496, 500. At the very least, those principles require

65 In this connection, we wish to point out that many of plaintiffs' affidavits were not served on counsel for defendant until the hearing on preliminary injunction. Thus, the Stephens affidavit and others submitted by the U. S. Steel Company were filed April 24, 1952 (R. 96, 99), the day of the hearing on preliminary injunction. Excerpts were read at the hearing (294-299) but defendant's counsel did not receive copies until the lunch

recess.

On the other hand, defendant's affidavits were actually served in two of the cases, Republic, No. 1539, and Youngstown, No. 1550, on April 15 and in fact, counsel for all the plaintiffs also obtained copies at or about that time, although in some of the other cases they were not formally served until shortly before the hearing.

In the event this case should be remanded for final hearing, we, of course, reserve the right to put plaintiffs to their proof, and to offer contrary proof, on all issues relating to the injury assertedly anticipated by them. We, accordingly, would not agree that "nothing that could be submitted at trial on the facts' (R. 74) could alter this case. We feel that the complaints can properly be dismissed now on any of the grounds here urged. But if this Court is not willing to order them dismissed, then the preliminary injunction should be vacated and the case remanded for trial.

For the foregoing reasons, the usual rule that granting or denial of a preliminary injunction rests in the trial judge's discretion, Rice & Adams v. Lathrop, 278 U. S. 509, 514, is inapplicable here, even assuming that it may ever be applied in cases where a wrong exercise of that discretion has led the trial judge erroneously to reach and decide great constitutional issues and to interfere with action of the President.

that any doubts as to the showing of irreparable injury, or as to the availability and adequacy of a remedy at law, be resolved against the plaintiffs in order to avoid both the certain and enormous public injury which would flow from a granting of an injunction and also the necessity for passing on constitutional issues of grave moment. In our view, plaintiffs' remedy at law is certain and entirely adequate. But, in any event, the principle that "a court of equity acts with caution and only upon a clear showing that its intervention is necessary in order to prevent an irreparable injury," Hurley v. Kincaid, supra, 104n., which has been applied in cases involving far less threat to the public and presenting no important constitutional issues, clearly requires that plaintiffs be left to that remedy for whatever injury, if any, they may suffer.

It should be strongly emphasized that the basic issue is not whether the plaintiff's will suffer damage. Rather, the point is whether any damages which they may incur from continuance of the seizure will outweigh the injury to the public from the grant of an injunction. At this stage it is entirely conjectural whether in fact any damage to plaintiffs will have resulted from the President's acts. But it is certain that grave and incalculable harm will follow the continuance of a restraint on defendant. At the same time, it appears highly probable, if not absolutely certain, that the plaintiff's have a sufficient judicial remedy under the Tucker Act. But whether they have or not, equity cannot permit a catastrophic injury to the entire public in order to avoid a private injury that may be relatively insignificant.

II

THE TAKING OF PLAINTIFFS' PROPERTIES WAS A VALID EXERCISE OF AUTHORITY CONFERRED ON THE PRESIDENT BY THE CONSTITUTION AND LAWS OF THE UNITED STATES

A. GENERAL NATURE OF THE AREA OF CONSTITUTIONAL POWER INVOLVED

For the reasons and under the principles set forth in the preceding point, this Court need not here reach constitutional issues. If, however, constitutional issues are to be reached, they must be considered and resolved in the light of the well settled rule, another aspect of judicial restraint in the delicate process of constitutional adjudication, that courts will not "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." Liverpool, N. Y. & P. S. S. Co. v. Emigration Commissioners, 113 U. S. 33, 39; Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 347 (concurring opinion); Rescue Army v. Municipal Court, 331 U. S. 549, 569; Federation of Labor v. McAdory, 325 U. S. 450, 461. Moreover, neither here, nor in any constitutional case, is the Court faced with the need to solve an abstract problem. On the contrary, “* * * the constitutional question presented in the light of an emergency is whether the power possessed embraces the particular exercise of it in response to particular conditions ***." Home Building & Loan Association v. Blaisdell, 290 U. S. 398, 426; and see Opinion of Attorney General Murphy, 39 Op. A.G. 343, 347–348.

Given these two principles, precise analysis of the nature of the problem presented will serve to eliminate much of the rhetoric which has characterized plaintiff's approach in these cases. It will also serve to sustain, beyond doubt, the validity of the action taken by the President on the night of April 8. On that night, the President took action, purely temporary in nature and subject to various limitations, to meet a critical emergency. And he so acted in the discharge of his constitutional function as Chief Executive and as Commanderin-Chief, of his unique constitutional responsibility for the conduct of foreign affairs, and of his constitutional power and duty to execute the laws. In short, he brought to solution of the emergency the sum of his powers.

1. Separating these elements, first, it cannot be denied that the Presidential action with which this Court is concerned is intended to be temporary in nature Less than a day after the issuance of the Executive Order, the President, in a message to Congress, stated that he had undertaken to provide for "temporary operation of the steel mills by the Government" and that he wanted to see Government operation “ended as soon as possible." House Document No. 422, 824 Cong., 2d Sess., 98 Cong. Rec. 3962. See also the President's letter of April 21, 1952, 98 Cong. Rec. 4192. In both of these messages to Congress, moreover, President Truman has expressed a readiness to abide by any program or direc tive which Congress may enact with regard to the emergency situation presented by the threatened shut-down of the steel mills.

2. That the President's action on the night of April 8 was taken in response to a pressing emergency cannot seriously be questioned. Plaintiffs have not controverted, nor can they, the recitals of the executive order or the supporting affidavits which were introduced on behalf of Secretary Sawyer in the district court. Supra, pp. 9-15. From these, and from the detailed statement set forth above, pp 28-49, it is clear beyond question that the President acted in a situation of national emergency in which a shut-off of steel supplies would have been catastrophic. Thus, putting to one side the fact that no issue has been raised as to the findings upon which the President's action was based and assuming that such findings are subject to judicial review, the President's action was clearly based upon and directed to an emergency. This Court has stated that it will inquire into the correctness of such recitals only to determine "whether in the light of all the facts and circumstances there was any substantial basis" for the challenged action. Hirabayashi v. United States, 320 U. S. 81, 95; and compare United States v. Russell, 13 Wall. 623, in which this Court concluded that a constitutional emergency existed in a case in which the sole evidence was the bare statement of the assistant quartermaster commandeering the ships that "imperative military necessity requires the services of your steamers for a brief period." There is no need, however, for us to labor any such restraints upon judicial inquiry in these cases. It is inconceivable that, as a matter of fact, this Court could do other than to conclude that the President was faced by the gravest sort of national crisis on April 8.

3. The sources of the President's power to act must similarly be considered in the light of the actual situation in which the President acted. Whatever view might be taken, broad or narrow, as to the scope of the President's function under any particular clause of Article II of the Constitution, we think it clear that the complex and completely integrated nature of the situation in which the emergency arose brought into play all of his powers.

Each part of the Constitution, as well as the charter as a whole, must be given living and flexible meaning so that it can be ever adapted to vastly differing occasions in the course and development of our national life. "It is no answer *** to insist that what the provision of the Constitution meant to the vision of that day it must mean to the vision of our time. If by the statement that what the Constitution meant at the time of its adoption it means to-day, it is intended to say that the great clauses of the Consitution must be confined to the interpretation which the framers, with the conditions and outlook of their time would have placed upon them, the statement carries its own refutation. It was to guard against such a narrow conception that Chief Justice Marshall uttered the memorable warning-'We must never forget that it is a constitution we are expounding' (McCulloch v. Maryland, 4 Wheat. 316, 407)-'a constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.' Id., p. 415. When we are dealing with the words of the Constitution, said this Court in Missouri v. Holland, 252 U. S. 416, 433, 'we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters ***. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago." Home Bldg. & L. Assn. v. Blaisdell, 290 U. S. at 442-443.

Thus, even if the validity of the President's action in these cases had to be resolved exclusively in terms of any one of the granting clauses of Article II, as plaintiffs appear to insist, we submit that each clause is sufficiently broadly drawn and wide in purpose to support emergency executive action.

Section 1 of Article II provides that "the executive Power shall be vested in a President of the United States of America." In our view, this clause constitutes a grant of all the executive powers of which the Government is capable. Cf. Myers v. United States, 272 U. S. 52; Works of Alexander Hamilton (Lodge Ed.), Vol. 4, p. 438; Theodore Roosevelt, Autobiography, pp. 388-389. Remembering

1 This principle is particularly applicable where, as here, the President's decision rested in large part on information available to him as to military and international considerations. Cf., C. & S. Air Lines v. Waterman Corp., 333 U. S. 103, 111:

The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences.

30572-53-30

that we do not have a parliamentary form of Government but rather a tripartite system which contemplates a vigorous executive (The Federalist, Nos. 70 and 71 see also Thach, The Creation of the Presidency, 1775-1789 (Johns Hopkins University Studies, 1922), Chapters IV, V), it seems plain that Clause 1 of Article II cannot be read as a mere restricted definition which would leave the Chief Executive without ready power to deal with emergencies. Here, as in connec tion with each aspect of the President's constitutional powers, a specific and compelling frame of record is provided by the nature of the grave crisis with which the country was faced in the event of a production stoppage in the steel industry. Again, Section 2 of Article II provides that "the President shall be Commanderin-Chief of the Army and Navy of the United States ***." Powers stemming from the President's position as Commander-in-Chief, specifically invoked in Executive Order 10340 (R. 6), are also clearly available as the basis for the challenged action in these cases. Cf. The Prize Cases, 2 Bl. 635. The place of steel at the very heart of our defense and combat activities, and those of our allies, is forcefully demonstrated by the material described above, pp. 39-49. Included in any consideration of the relationship between steel production and the President's position as Commander-in-Chief must be a genuine recognition of his affirmative power in connection with the safety and effectiveness of American troops in Korea. Hirota v. MacArthur, 338 U. S. 197, 207-208 (Mr. Justice Douglas, concurring). From this basis alone, we submit, would stem ample power to "supply an army in a distant field * * *,” United States v. Russell, 13 Wall. 623, 627, to take whatever steps were necessary to insure that no condition of danger be created by reason of a failure of supply of steel. Perhaps the most forceful illustration of the scope of Presidential power in this connection is the fact that American troops in Korea, whose safety and effectiveness are so directly involved here, were sent to the field by an exercise of the President's constitutional powers.

In addition to the general grant of executive power in Section 1 and the powers thus clearly stemming from the Commander-in-Chief clause, the President is under the duty imposed on him by Section 3 of Article II to "take Care that the Laws be faithfully executed." The broad scope of Section 3 has been delineated by this Court (In re Neagle, 135 U. S. 1, and, again, in In re Debs, 158 U. S. 564; see also Statement by Attorney General Jackson, June 10, 1941, 89 Cong. Rec. 3992) and is also available to justify the action taken by the President in these cases as a necessarily implied part of his express obligation to carry out our national policy to deter and repel aggression. See supra, pp. 28–39; infra, pp. 144-150.

But the validity of the President's action on April 8 is not to be determined, either as a matter of common sense construction or as a matter of historic judicial method, by reference to one specific clause. On the contrary, from the beginning of the Republic, it has been recognized that Presidential power to act on a particular occasion may derive from more than one of the grants contained in Article II. For example, the legislative decision of 1789 as to the removal power of the President was bottomed upon both the vesting of the executive power in the President and upon his power and duty to take care that the laws shall be faithfully executed. See Substitute Brief for the United States on Reargument in Myers v. United States, No. 2, October Term, 1926, pp. 49-91. And this Court's decision on this question in Myers v. United States, 272 U. 8. 52, was likewise based not upon a single provision of Article II but upon the combined force of the several provisions. Similarly, the doctrine, announced as early as 1800 by Chief Justice Marshall as a Member of the House of Representatives, that "the President is the sole organ of the nation in its external relations, and its sole representative with foreign nations" (Annals of Cong, 6th Cong., col. 613) does not rest upon any single provision of Article II but upon a combination of provisions. Cf. United States v. Curtiss-Wright Export Corp.. 249 U. S. 304; United States v. Pink, 315 U. S. 203. Again, the authority and ability of the President to execute the laws depends not only on the provision that "he shall take Care that the Laws be faithfully executed." but also upon his authority as Chief Executive, as Commander-in-Chief, and as the organ of foreign relations. Cf. In re Neagle, 135 U. S. 1; In re Debs, 158 U. S. 564.

It is thus plain that, in the light of the circumstances which confronted the President on April 8, there could be no justification for a requirement that his action be seen as confined to any one of the provisions set forth in Article II. On the contrary, this power to act must be taken as having sprung from all the