e authorizing seizure of the steel mills as a the military procurement program and the 2> live mini today been thought to prevent the President 7. as an administrative commission confined to the

ver which it was created, or the head of a departapreciar statute, the President is a constitutional me that a “mass of legislation" be executed. Flexiameet critical situations is a matter of practical scretion of the "Take Care" clause, advocated by

this Court in In re Neagle, In re Debs and other Se parte Quirin, 317 U. S. 1, 26 (1942). Although executive power, advocated in dissenting opinions of sand Brandeis, were emphatically rejected by this Sales, supra, members of today's majority treat these

bee.ating seizure as a method of enforcing legislative as wise indicated that its legislation is not to be private property (subject of course to the payment legislation cannot otherwise be executed.

Indeed,

izing and Service Act authorizes the seizure of any a Government contract or the properties of any steel avate steel as directed for defense production.& And ered Act authorizes the President to requisition equipment operty needed without delay in the defense effort.s Where 2 les sure in instances not necessarily crucial to the defense stably be said to have disclosed an intention to prohibit seizures the execution of that legislative program.

be sex set of Presidential power on more tranquil occasions, and the President to execute legislative programs as he sees e mode of execution to Congress, the single Presidential this record is to faithfully execute the laws by acting in maintain the status quo, thereby preventing collapse of the 40 - scris until Congress could act. The President's action served the ss as a judicial stay entered to maintain the status quo in order

risdiction of a court. In his Message to Congress immediately rare, the President explained the necessity of his action in *tary procurement and anti-inflation legislative programs and sg 28 desire to cooperate with any legislative proposals approving, erecting the seizure of the steel mills. Consequently, there is no Paaver of any Presidential purpose to defy Congress or act in any NY Aissive; with the legislative will.

saw States v. Midwest Oil Co., supra, this Court approved executive where, as here, the President acted to preserve an important matter until 0168 could act-even though his action in that case was contrary to an exIn this case, there is no statute prohibiting the action taken by beesident in a matter not merely important but threatening the very safety De Vade Executive inaction in such a situation, courting national disaster, & to the concept of energy and initiative in the Executive as created by V Wardog Fathers. The Constitution was itself "adopted in a period of Kode envergency. . . . While emergency does not create power, emergency may Nas the accasion for the exercise of power." The Framers knew, as we soovid know in these times of peril, that there is real danger in Executive weakhere is no cause to fear Executive tyranny so long as the laws of Con4 vs are being faithfully executed. Certainly there is no basis for fear of dicworship when the Executive acts, as he did in this case, only to save the situamurit Congress could act.

V

1987

Pantiff's place their primary emphasis on the Labor Management Relations Act of 1947, hereinafter referred to as the Taft-Hartley Act, but do not contend that that Act contains any provision prohibiting seizure.

Under the Taft-Hartley Act, as under the Wagner Act, collective bargaining and the right to strike are at the heart of our national labor policy. Taft-Hartley

62 Stat. 604, 626 (1948), 50 U. S. C. App. (Supp. IV) § 468 (c).

62 Stat. 604, 627 (1948), 50 U. S. C. App. (Supp. IV) § 468 (h) (1).

**Tit. 11, 64 Stat. 798 (1950), as amended 65 Stat. 138 (1951).

Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 425-426 (1934).

83

preserves the right to strike in any emergency, however serious, subject only to an 80-day delay in cases of strikes imperiling the national health and safety. In such a case, the President may appoint a board of inquiry to report the facts of the labor dispute. Upon receiving that report, the President may direct the Attorney General to petition a District Court to enjoin the strike. If the injunction is granted, it may continue in effect for not more than 80 days, during which time the board of inquiry makes further report and efforts are made to settle the dispute. When the injunction is dissolved, the President is directed to submit a report to Congress together with his recommendations.

80

Enacted after World War II, Taft-Hartley restricts the right to strike against private employers only to a liminted extent and for the sole purpose of affording an additional period of time within which to settle the dispute. Taft-Hartley in no way curbs strikes before an injunction can be obtained and after an 80-day injunction is dissolved.

Plaintiffs admit that the emergency procedures of Taft-Hartley are not mandatory. Nevertheless, plaintiffs apparently argue that, since Congreses did provide the 80-day injunction method for dealing with emergency strikes, the President cannot claim that an emergency exists until the procedures of Taft-Hartley have been exhausted. This argument was not the basis of the District Court's opinion and, whatever merit the argument might have had following the enactment of Taft-Hartley, it loses all force when viewed in light of the statutory pattern confronting the President in this case.

In Title V of the Defense Production Act of 1950," Congress stated:

"It is the intent of Congress, in order to provide for effective price and wage stabilization pursuant to title IV of this Act and to maintain uninterrupted production, that there be effective procedures for the settlement of labor disputes affecting national defense." (§ 501.)

Title V authorized the President to initiate labor-management conferences and to take action appropriate to carrying out the recommendations of such conferences and the provisions of Title V. (§ 502.) Due regard is to be given to Collective bargaining practice and stabilization policies and no action taken is to be inconsistent with Taft-Hartley and other laws. (§ 503.) The purpose of these provisions was to authorize the President "to establish a board, commission or other agency, similar to the War Labor Board of World War II, to carry out the title." "1"

92

The President authorized the Wage Stabilization Board (WSB), which adZinisters the wage stabilization functions of Title IV of the Defense Production Act, also to deal with labor disputes affecting the defense program." When extension of the Defense Production Act was before Congress in 1951, the Chairman of the Wage Stabilization Board described in detail the relationship between the Taft-Hartley procedures applicable to labor disputes imperiling the pational health and safety and the new WSB dispute procedures especially derised for settlement of labor disputes growing out of the needs of the defense program. Aware that a technique separate from Taft-Hartley had been devised, members of Congress attempted to divest the WSB of its disputes powers. These atttempts were defeated in the House, were not brought to a vote in the Senate and the Defense Production Act was extended through June 30, 1852, without change in the disputes powers of the WSB. Certainly this legislative creation of a new procedure for dealing with defense disputes negatives any notion that Congress intended the earlier and discretionary Taft-Hartley procedure to be an exclusive procedure.

See Bus Employees v. Wisconsin Board, 340 U. S. 383 (1951).

¡¡ 206-210, Labor Management Relations Act of 1947. 29 U. S. C (Supp. IV) II 176-180. 64 Stat. 132 (1950).

HR Rep. No. 3042, 81st Cong., 2d Sess. 35 (1950) (Conference Report). See also & Bet No. 2250, 81st Cong. 2d Sess. 41 (1950). Exee. Order 10161, 15 Fed. Reg. 6105 (1950), as amended, Exec. Order 10233, 16 Fed. Bez 503 (1951).

Hearings before the House Committee on Banking and Currency on Defense Production Art Amendments of 1951, 82d Cong., 1st Sess. 305-306, 312-313 (1951).

The Lucas Amendment to abolish the disputes function of the WSB was debated at in the House, the sponsor of the amendment pointing out the similarity of the WSB tions to those of the War Labor Board and noting the seizures that occurred when War Board orders were not obeyed. Cong. Rec., July 18, 1951, pp. 8580-8606. The mendment was rejected by a vote of 217 to 113. Id., at 8606. A similar amendment conduced in the Senate was withdrawn. Cong. Rec., June 28, 1951, pp. 7592-7593. The Production Act was extended without amending Tit. V or otherwise affecting the tes functions of the WSB. 65 Stat. 132 (1951).

Accordingly, as of December 22, 1951, the President had a choice between alternate procedures for settling the threatened strike in the steel mills: one route created to deal with peacetime disputes; the other route specially created to deal with disputes growing out of the defense and stabilization program, There is no question of bypassing a statutory procedure because both of the routes available to the President in December were based upon statutory authorization. Both routes were available in the steel dispute. The Union, by refusing to abide by the defense and stabilization program, could have forced the President to invoke Taft-Hartley at that time to delay the strike a maximum of 80 days. Instead, the Union agreed to cooperate with the defense program and submit the dispute to the Wage Stabilization Board.

Plaintiffs had no objection whatever at that time to the President's choice of the WSB route. As a result, the strike was postponed, a WSB panel held hearings and reported the position of the parties and the WSB recommended the terms of a settlement which it found were fair and equitable. Moreover, the WSB performed a function which the board of inquiry contemplated by TaftHartley could not have accomplished when it checked the recommended wage settlement against its own wage stabilization regulations issued pursuant to its stabilization functions under Title IV of the Defense Production Act. Thereafter, the parties bargained on the basis of the WSB recommendation.

When the President acted on April 8, he had exhausted the procedures for settlement available to him. Taft-Hartley was a route parallel to, not connected with, the WSB procedure. The strike had been delayed 99 days as contrasted with the maximum delay of 80 days under Taft-Hartley. There had been a hearing on the issues in dispute and bargaining which promised settlement up to the very hour before seizure had broken down. Faced with immediate national peril through stoppage in steel production on the one hand and faced with destruction of the wage and price legislative programs on the other, the President took temporary possession of the steel mills as the only course open to him consistent with his duty to take care that the laws be faithfully executed.

Plaintiffs' property was taken and placed in the possession of the Secretary of Commerce to prevent any interruption in steel production. It made no difference whether the stoppage was caused by a union-management dispute over terms and conditions of employment, a union-Government dispute over wage stabilization or a management-Government dispute over price stabilization. The President's action has thus far been effective, not in settling the dispute, but in saving the various legislative programs at stake from destruction until Congress could act in the matter.

VI.

The diversity of views expressed in the six opinions of the majority, the lack of reference to authoritative precedent, the repeated reliance upon prior dissenting opinions, the complete disregard of the uncontroverted facts showing the gravity of the emergency and the temporary nature of the taking, all serve to demonstrate how far afield one must go to affirm the order of the District Court. The broad executive power granted by Article II to an officer on duty 365 days a year cannot, it is said, be invoked to avert disaster. Instead, the President must confine himself to sending a message to Congress recommending action. Under this messenger-boy concept of the Office, the President cannot even act to preserve legislative programs from destruction so that Congress will have something left to act upon. There is no judicial finding that the executive action was unwarranted because there was in fact no basis for the President's finding of the existence of an emergency" for, under this view, the gravity of the emergency and the immediacy of the threatened disaster are considered irrelevant as a matter of law.

Seizure of plaintiffs' property is not a pleasant undertaking. Similarly unpleasant to a free country are the draft which disrupts the home and military procurement which causes economic dislocation and compels adoption of price controls, wage stabilization and allocation of materials. The President informed Congress that even a temporary Government operation of plaintiffs' properties was "thoroughly distasteful" to him, but was necessary to prevent immediate paralysis of the mobilization program. Presidents have been in the past, and any man worthy of the Office should be in the future, free to take at least interim action necessary to execute legislative programs essential to survival of the Nation. A sturdy judiciary should not be swayed by the unpleasantness or

95 Compare Sterling v. Constantin, 287 U. S. 378, 399-401 (1932).

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 subpect to congressional direction-either approving, disapproving or regulating the manner in which the mills were to be administered and returned to the wners. 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 ecutive 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

3 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 f the Court of Appeals for the District of Columbia Circuit (R. 447–449), on nsideration of motions for stavs. is not yet reported.

JUEISDICTION

The orders of the District Court were entered on April 30, 1952 (R. 76). On Atril 30, 1952, petitioner field notice of appeal and docketed the appeal with the art of Appeals for the District of Columbia (R. 77). The petition for torari was filed, prior to judgment by the Court of Appeals, on May 2, 1952 R456). Certiorari was granted on May 3, 1952. The jurisdiction of this Court ts on 28 U. S. C. 1254 (1).

QUESTIONS PRESENTED

1. Whether, on the facts recited in Executive Order No. 10340 and established the uncontroverted affidavits, the President had constitutional authority to e possession of plaintiffs' steel mills in order to avert an imminent nation1.de cessation of steel production.

Whether, in the circumstances of this case, the district court erred in reachand deciding the constitutional issues on motions for preliminary injunctions. 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. *

mee respondents herein have filed a petition in No. 744 we shall, to avoid confusion, 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.

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 10233, 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

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