available clauses. Cf. Woods v. Miller Co., 333 U. S. 138, 144. Rigid concepts comparable to notions of common law pleading, which would require either the President or the Congress to specify particular powers as the basis for necessary and valid action, at their peril, should be taken as of no more value in resolving the living problems present in these cases than is the discredited technique of constitutional interpretations, based on "immutable" principles, which was employed by the court below.

4. We have sought to show affirmatively the precise nature of the area of constitutional powers involved in these cases. We think it plain that the action to be tested must be seen as temporary in nature and taken in an emergency situation and must be measured against a variety of constitutional powers ganted to the President by Article II. The narrow constitutional question actually presented, then, is one of means, whether seizure is a method available to the President, in the exercise of his constitutional powers to avert a crisis of this type.

B. THE PRESIDENT, WITHOUT SPECIFIC STATUTORY AUTHORITY, MAY SEIZE PROPERTY TO AVERT CRISES DURING TIME OF WAR OR NATIONAL EMERGENCY, SUBJECT TO THE PAYMENT OF JUST

COMPENSATION

Turning then to the precise question presented here, it should first be noted that, where the President possesses constitutional powers to meet emergencies, he necessarily has "wide scope for the exercise of judgment and discretion in determining the nature and extent of the threatened injury or danger and in the selection of the means for resisting it." Hirabayashi v. United States, 320 U. S. 81, 93. Second, it cannot be overemphasized that, considered as federal gove mental action, there can be no doubt of the validity of what was done. That is to say, if precisely such a seizure made in precisely this manner and followed by precisely the same actions or proposed actions in respect of the management of the seized plants had been taken under explicit Congressional authorization, there could, we submit, be no conceivable question of its validity. Cf. United States v. United Mine Workers, 330 U. S. 258; Du Pont de Nemours & Co. v. Davis, 246 U. S. 456, 462; United States v. Montgomery Ward & Co., 150 F. 2d 369 (C. A. 7), vacated as moot, 326 U. S. 690; Ken-Rad Tube & Lamp Corp. v. Badeau, 55 F. Supp. 193 (W. D. Ky.); Alpirn v. Huffman, 49 F. Supp. 337 (D. Neb.).

'History records numerous well-known incidents in which executive powers taken as a whole have been broadly exercised, and we think it unnecessary to rehearse them here extensively. A few notable examples, which readily come to mind, may be mentioned. Perhaps the earliest instance of broad executive action is President Washington's Neutrality Proclamation of 1793, which was at first criticized as an usurpation of authority but "has now come to be regarded as one of the greatest and most valuable acts of the first President's Administration." Myers v. United States, 272 U. S. at 137. Authority for its Issuance has been laid in the provision vesting the executive power in the President and in the provision empowering him to execute the laws. Cf. 7 Hamilton, Works of Alexander Hamilton (1851) pp. 80-81; Story, Commentaries on the Constitution (1891) Sec. 1570. Similarly, such incidents as the suppression of the Pennsylvania Whiskey Rebellion by President Washington. President Jackson's Proclamation of 1832 that he would employ force to prevent the execution of the South Carolina Ordinance of Nullification, and President Cleveland's dispatch of troops to Illinois in 1894 in connection with the Pullman Company strike were constitutionally authorized by virtue of the President's power to execute the laws, his power as Commander-in-Chief, and the vesting in him of executive power. Cf. In re Debs, 158 U. S. 564. Again, based on these sources of authority and upon the President's power in the field of foreign relations, President Tyler, without statutory authority, sent naval vessels and soldiers to Texas in 1844 to protect Texas against Mexican aggression pending Senate ratification of the Treaty of Annexation which he had negotiated. Indeed, in reliance upon this aggregate of Presidential powers, there have been more than 100 occasions in which the Presidents, without Congressional authorization and in the absence of a declaration of war, have ordered our armed forces to take action or maintain positions abroad to protect the lives and property of the United States citizens, to protect the honor of the United States, to open areas to the foreign commerce of the United States and to defend the United States. See H. Rept. 127, 82d Cong., 1st Sess., pp. 55-62.

* It should perhaps be emphasized that the President's action in no way violates any of the prohibitions on governmental action contained in the first ten Amendments. There is no question here, for example, of any infringement by the President of the rights of freedom of speech, religion, or press guaranteed by the First Amendment, or of the right to be secure from search and seizure guaranteed by the Fourth Amendment or of the rights of jury trial, privilege against self-incrimination, assistance of counsel, etc, guaranteed by the Fifth and Sixth Amendments. The President's action is entirely consistent with the rights of property guaranteed by the Fifth Amendment. That amendment expressly recognizes that private property may be taken for public use upon payment of just compensation, and we concede that just compensation will here be payable in respect of any injury which the plaintiffs may prove to have resulted from the taking. See Point I Å, supra. The invasion of property rights is only to the extent and for the period of time necessary to meet the emergency.

The real question here, therefore, is whether seizure was a means available to the President, in the exercise of his constitutional powers, to meet the pressing emergency which faced the nation. On this issue, ample support is to be found in executive and legislative precedent for the President's action. Moreover, there is direct judicial recognition of executive seizure as a means of meeting emergency situations.

1. Executive construction.-During the Revolution and the War of 1812 there were numerous instances of taking of property for the benefit of the armed services by military officers. While the exact nature of these takings is seldom clear from the available records, most of them appear to have been based entirely on executive authority. The records show that during the Revolution, the buildings of Rhode Island College, as well as other buildings throughout the country, were taken over for use as hospitals and barracks. Other instances were the taking of wagons, horses, and slaves required for public service. During the War of 1812 the property of traders at Chicago was taken to prevent its falling to the enemy, rope walks at Baltimore were destroyed for the same purpose, a house was taken to hold military stores and was later blown up to prevent those stores falling to the enemy, and, in Louisiana, General Jackson freely took plantations, fencing, and supplies as the emergency dictated. By the close of the War of 1812, it was firmly established that property could be taken in wartime emergencies as an exercise of independent executive power.

More pertinent parallels in history are found during the administration of Presidents Lincoln, Wilson, and Franklin D. Roosevelt.

The first discovered instance of a taking by order of the President himself, as distinguished from a taking by a subordinate military official, occurred in the first year of the Civil War. On April 27, 1861, Secretary of War Cameron, at the direction of the President, issued a declaration taking over the railroads and telegraph lines between Washington and Annapolis."

Confronted with secession, President Lincoln exercised greater executive power than had been exercised by any previous President. His most dramatic act of executive taking was his Emancipation Proclamation of January 1, 1863, an action resting exclusively on his constitutional powers as Commander-in-Chief." Although the Proclamation was operative only in the Confederate areas, it is indicative of Lincoln's basic conception of the power of the Chief Executive in time of war. He said in a comment on the constitutionality of the Proclamation:

I think the Constitution invests its Commander-in-Chief with the law of war in time of war. The most that can be said-if so much—is that slaves are property. Is there has there ever been-any question that by the law of war, property, both of enemies and friends, may be taken when needed? And is it not needed whenever taking it will help us, or hurt the enemy?'

American State Papers, Class IX. Claims No. 86, p. 197: No. 584, p. 833: No 590, p. 838: No. 243, p. 424'; No. 258, p. 441; No. 266, p. 446; No. 345, p. 521: No. 356, p. 525. No. 461, p. 649.

The

In case No. 461, p. 649, General Swartwout, under order of General Wilkinson, took certain vessels to be used in operations on the St. Lawrence in 1813. The general wis sued in a New York state court and judgment was given against him for $2560 00. Committee on Military Affairs recommended that this sum be repaid to General Swartwout, saying "In the circumstances of war, such exigencies will frequently occur in which the commanding officer will stand justified in taking, by force, such necessaries, either for sup port or conveyance, as are absolutely indispensable and which cannot be obtained by any other means."

The power of seizure of private property had apparently also been exercised during the War with Mexico by military officers. One such seizure resulted in the celebrated case of Mitchell v. Harmony, 13 How. 115, which is discussed in detail infra, pp. 126-131

War of the Rebellion, Official Records of the Union and Confederate Armies, Series 1 v. II p 603. Secretary Cameron's correspondence shows that he acted with full Pro «i dential authority. Ibid., 604 For details of the control, see ibid., pp 605, 609, 610, 611, 623.

↑ Less pertinent here, but equally broad and vigorous, were the actions taken by Lincoln when, without statutory authority, he increased the size of the Army and the Navy or dered the payment from the Treasury of monies to those not authorized to receive it and suspended the writ of habeas corpus. Corwin, The President, Office and Powers (194) edi pp. 277 278 In addition, he proclaimed a blockade of the Southern ports and ordered the taking of blockade runners an order which, although without congressional authori zation, was upheld in the Prize Cases, 2 BL. 635.

*Letter to James C. Conkling. Aug. 26, 1863, IX Nicolay and Hay, Works of Abraham Lincoln. 95 at 98. The effect of the Emancipation Proclamation was considered in a number of cases, but none has been discovered which relate to the immediate problem The Emanicpation Caxes, 31 Tex 504 (1868): Slaback v. Cushman, 12 Fla. 472 (1869), Dorris v Grace, 24 Ark 326 (1866); Morgan v. Ncison, 43 Ala. 586 (1869).

Following the precedent set by President Lincoln, Wilson, too, exercised his constitutional powers to seize the property of the Smith & Wesson Company on August 31, 1918. See Testimony of Attorney General Biddle, Hearings, House Select Committee To Investigate Montgomery Ward Seizure, 78th Cong., 2d Sess., pursuant to H. Res. 521, June 8, 1944, pp. 167–168. In describing that action in a letter to striking workmen of the Remington Arms Company in Bridgeport, Connecticut, Wilson stated (Baker, Woodrow Wilson, Life & Letters, Armistice (1939), Vol. 8, pp. 401-402):

The Smith & Wesson Company, of Springfield, Mass., engaged in government work, has refused to accept the mediation of the National War Labor Board and has flaunted its rules of decision approved by Presidential Proclamation. With my consent the War Department has taken over the plant and business of the Company to secure continuity in production and to prevent industrial disturbance.

It is of the highest importance to secure compliance with reasonable rules and procedure for the settlement of industrial disputes. Having exercised a drastic remedy with recalcitrant employers, it is my duty to use means equally well adapted to the end with lawless and faithless employees. In addition to his actual seizure of Smith & Wesson and his threat of a similar measure as a sanction against the employees of the Remington Arms Company (Corwin, op. cit. supra (1948), p. 298), Wilson also seriously contemplated the seizure of the Colorado coal mines in 1914 because of a strike there. No seizure was effected, however. Woodrow Wilson Papers, File 6, Box 393, Nos. 901, 902, Division of Manuscripts, Library of Congress; Corwin, op. cit. supra (1948), p. 453, n. 107.'

The most recent and extensive exercise of the executive power to seize property without statutory authority occurred during the administration of President Franklin D. Roosevelt. On twelve occasions prior to the enactment of the War Labor Disputes Act on June 25, 1943 (57 Stat. 163, 50 U. S. C. App. 150-1511), which authorized the seizure of plants, President Roosevelt issued Executive Orders taking possession of various companies when it appeared that a work stoppage would seriously impede operations. The first seizure occurred as

Prior to his accession to the Presidency, Wilson had expressed views comparable to Theodore Roosevelt's "stewardship" theory of executive power. Wilson, Constitutional Government in the United States, pp. 88–89. During World War I, he adhered to those views, and, acting without statutory authority, created a War Industries Board, a War Labor Board, and a Committee on Public Information. Berdahl, War Powers of the Executive, p. 172. On April 28, 1917, he ordered that all telegraph and telephone lines and cables be operated only pursuant to regulations of the Secretary of War or the Secretary of the Navy, although there was no statutory authority for this action. On July 13, 1917, again without statutory authority, Wilson issued a proclamation preventing German marine and war-risk insurance companies from operating in the United States on the ground that the German Government apparently was obtaining information concerning ship movements through these companies. Again in 1917, President Wilson asked Congress to arm merchant vessels and when such authority was not forthcoming he, as an exercise of his constitutional powers, gave notice of determination to arm all American merchant vessels and placed naval personnel and guns thereon. From 1917 to 1922, troops were sent into the States more than 30 times, a maiority of these instances being in connection with labor disputes. Corwin, op. cit. supra (1948), pp. 287, 166; Berdahl, op. cit. supra, pp. 68-70, 200. 19 List of plants and facilities taken by President Roosevelt prior to the passage of the War Labor Disputes Act.

much as six months prior to Pearl Harbor," and a total of three plants were seized before our entry into the War."

Although other Presidents apparently did not have the occasion to meet crises of the magnitude and complexity here presented, brief mention should be made of the following incidents of a similar nature which illustrate the views of others who have occupied the office. President Hayes, in connection with the railway strike of 1877 and on other occasions, did not hesitate to make drastic use of his constitutional powers, including the use of troops. Corwin, op. cit. supra, (1948), p. 164. Again, in 1894 President Cleveland, over the objection of the Governor of Illinois, sent troops to Chicago in connection with the Pullman strike in order to remove obstructions to interstate commerce and the passage of mails. President Cleveland proclaimed that this action was taken for the purpose of enforcing the faithful execution of the laws of the United States and the protection of its property and removing obstructions to the United States mail. An injunction in connection with the strike was sustained in the Debs case, 158 U. S. 564, and the use of troops in that instance was approved by the Court as an exercise of the President's constitutional powers to enforce the Federal laws. 158 U. S. 564, 582. Similarly, President McKinley dispatched troops to Idaho in 1899 to suppress the disturbances resulting from a strike of lead and silver miners. Berman, Labor Disputes and the President (1942), Ch. II. In 1902, Theodore Roosevelt seriously considered taking possession of the Pennsylvania coal mines during a strike in the mines to prevent a coal shortage. The taking never became necessary because the dispute was settled. 20 Works of Theodore Roosevelt, p. 466; Corwin, op. cit. supra, (1948), p. 190. Later in his administration, he withdrew from private entry "pending legislation" many parcels of land for forest and coal reserves although the pertinent statutes authorized withdrawal only of lands in which mineral deposits had been found. Corwin, op. cit. supra, (1948), p. 147. President Taft, despite his expression of views as an academic matter, did not hesitate to take similar action, in the teeth of existing statute, as a matter of executive power, based on usage. United States v. Midwest Oil Co., 236 U. S. 459. And President Harding, like his predecessors, employed troops to quell the West Virginia Mine disorders of 1921. Berman, op. cit. supra, pp. 210-213. 2. Legislative construction.-As noted above, the first discovered instance of a Presidential taking was Lincoln's seizure, through his Secretary of War, of the railroad and telegraph lines between Washington and Annapolis in 1861. In January 1862, legislation was enacted which confirmed the Presidential power to take over any railroad or telegraph line in the United States and provided penalties for interference with their operation by the Government (12 Stat. 334)." Throughout the debates on the proposed legislation, virtually every Senator and Representative who addressed himself to the subject either assumed or declared that the President had the inherent constitutional power to take the railroads and telegraph lines if he thought it necessary in the exercise of his war powers. The supporters of the bill advocated its passage as a

"This first seizure, of the North American Aviation Plant, was justified by the then Attorney General Jackson as an act within the "duty constitutionally and inherently rested upon the President to exert his civil and military, as well as his moral, authority to keep the defense efforts of the United States a going concern." 89 Cong. Rec. 3992.

Less pertinent here but equally significant were other actions taken by President Roosevelt without statutory authority, both during the depression emergency and the war emergency. A notable illustrati n during the depression was the National Bank Holiday. The emergency caused by the war in Europe required a frequent exercise of his constitu tional powers both before and after the attack on the United States. A familiar exercise of these powers, for which Wilson in World War I had set a notable precedent in the War Industries Board and other agencies, was in the creation of executive agencies. Thus, the Office of Price Administration and Civilian Supply and the Office of Emergency Maringe ment were created by the President long before our entry into the War. Among the others created before or after the beginning of World War II by executive order were BEW. NWLB, OCD, ODT, OWI, OPM, WMC and NHA. Other types of executive action taken included the occupation of Iceland by our troops, and action taken in connection with labor disputes. Corwin, op. cit. supra, (1948), pp. 293, 294, 299, 300, 493, 494.

An unpublished opinion of Attorney General Knox, dated October 10, 1902, stating that the President had no power to make such a seizure and resting the argument largely on the view that a coal strike in Pennsylvania presented matters of local and not federal concern, may be found in the Manuscript Division of the Library of Congress, among the Theodore Roosevelt papers. For a contrary view as to the power of the President in 1902. see Dakota Coal Co. v. Fraser, 283 Fed. 415, 417 (D. N. D.), vacated on appeal as moot. 267 Fed. 130 (C. A. 8).

On February 11, 1862, President Lincoln, pursuant to that statute, took possession of all railroads in the United States. 6 Richardson, Messages and Papers of the Prendents, 101.

declaration of existing law and as a means of providing a rigorous system of penalties.

Thus, the sponsor of the bill in the Senate, Senator Wade, stated, "Mr. President, this bill confers no additional power upon the Government, as I understand it, beyond what they possess now. It attempts to regulate the power which they undoubtedly have; for they may seize upon private property anywhere, and subject it to the public use by virtue of the Constitution." Cong. Globe, 37th Cong., 2d Sess., p. 509. And the sponsor of the bill in the House, Representative Blair, similarly stated that the bill "does not confer on the Secretary of War any new or any dangerous powers. The Government has now all the powers conferred by this bill; and the simple object of the bill is to regulate, limit, and restrain the exercise of those powers." Ibid., p. 548.

Equally enlightening was the opposition of Senators Cowan, Browning, Grimes, and Fessenden, who voted against the bill on the ground that it was unnecessary and might be construed as a limitation on existing powers. Viewing the question in that light, Senator Cowan, for example, observed that "When Congress declares war, and provides an army and navy for the President to achieve a particular thing, it confers upon him at the same time all the powers necessary to attain the desired end; and among other things it confers on him power, as has been well said, to impress horses, railroads, telegraph lines, men, teams, everything of that kind into his service, and compel them to work according to his plan and pattern." Ibid. p. 516. For similar statements see ibid., p. 512 (Fessenden), ibid., pp. 510, 520 (Browning), and ibid., p. 520 (Grimes)."

The legislative history of the War Labor Disputes Act of June 25, 1943 (57 Stat. 163, 50 U. S. C. App. 1501-1511) is strikingly similar. The Act was passed in the 78th Congress but finds its antecedent in the 77th Congress. On June 5, 1941, Senator Connally introduced S. 1600 (87 Cong. Rec. 4736). This bill was roughly similar to Section 2 of the War Labor Disputes Act as finally enacted, the most notable difference being that the bill covered plants "equipped for the manufacture of any articles or materials" without reference to mining or production. On June 9, 1941, as noted above, p. 109, the President took possession of the North American Aviation plant at Inglewood, California, to end an interruption of production caused by a strike. On June 10, 1941, Senator Connally offered a virtually identical proposal as an amendment to S. 1524, a bill amending the Selective Service Act in certain respects wholly unrelated to the present litigation (87 Cong. Rec. 4932).1

As with the Civil War Congress, discussed above, it was again generally recognized in consideration of the bill that the President already had full constitutional power to take the actions contemplated by the Act. Again, some Congressmen voted against the bill on the ground that it was unnecessary but others thought legislative action desirable to remove any possible doubt. Representative May, Chairman of the House Military Affairs Committee, to which the bill was referred, said (87 Cong., Rec. 5895):

Mr. Chairman, if any Member thinks that is wrong, that it is wrong that the President should have this power to take over an industry for the purpose of policing it just because one or two men may object, that Member will have the opportunity to express himself by his vote; but let me tell you a few things. We hear it said the President already has power to do this. I think he has, and I think he exercised it wisely when he took over the plant in Inglewood, Calif. ***

The nature of the President's powers was also discussed in the Congress in connection with the Act of July 16, 1918, 40 Stat. 904, which authorized the taking of the telephone and telegraph lines during World War I. Relative to that power, President Harding, then Senator Harding, although opposed to the bill, stated:

Mr. President, I listened with a good deal of attention yesterday to the able remarks of the senior Senator from Illin is [Mr. Lewis], and I recall that he said, if there were a real war emergency, if there were a present necessity for the seizure of the lines of communication in this country, the Chief Executive would take them over. else he would be unfaithful to his duties as such Chief Executive. I agree with that statement; and if the President believes that there is such an emergency, he ought to seize them. (56 Cong. Rec. 9064.)

10 The Connally amendment passed the Senate, but was revised into wholly different form and finally rejected altogether by the House. In conference the Connally proposal was adopted but the House rejected the conference report. S. 1524 eventually passed without any amendment on plant seizures. The House Report on the bill is H. Rept. 785, 78th Congress. The House Conference report is reprinted at 87 Cong. Rec. 6331 and the report was rejected by the House at 87 Cong. Rec. 6424. In November 1941, Senator Connally introduced a new bill, S. 2054. The bill was reported favorably. Meanwhile, war was declared, and Senator Connally abandoned the bill for the remainder of the 77th Congress, in view of the President's creation of the War Labor Board.