<<  <  >  >>

Roosevelt's administration constituted

States had admitted that the president had

one continuous state of national emergency.

not acted in accordance with the terms of

Using presidential directives he asserted leg-

those acts. Congress had considered giving

islative authority that no president had ever

the president the power he exercised under

before asserted, particularly in peacetime. He

EO 10340, the Court concluded, but then

was also extremely creative in the develop-

"refused to adopt that method of settling

labor disputes."122

ment of different forms of presidential direc-

tive. Of the 24 different types identified by

Finding no statutory authority, the Court

the Congressional Research Service, at least

next considered whether Truman had consti-

eight were initiated by Roosevelt--and three

tutional authority for his action. Counsel for

of those he alone used.114

the United States had identified three consti-

tutional provisions purporting to provide

President Harry Truman

such authority: "The executive Power shall be

vested in a President" (Article II, section 1);

President  Harry  Truman  followed

"The President shall be Commander in

Roosevelt's example, using presidential direc-

Chief" (Article II, section 2); and "He shall

tives to seize manufacturing plants, textile

take Care that the Laws be faithfully execut-

mills, slaughterhouses, coal mines, refineries,

Truman's seizure

ed" (Article II, section 3). In response, the

railroads, and other transportation companies

of private enter-

facing threatened or actual strikes.115 Thus,

Court found that the executive power did not

authorize the executive order because it

with EO 9728 (May 21, 1946), Truman seized

prises to obtain

directed the execution of a presidential policy

most of the nation's bituminous coal mines so

raises and bene-

in a manner prescribed by the president, not

that the secretary of the interior could negoti-

ate a contract with mineworkers.116 As the

fits for unionized

the execution of a congressional policy in a

manner prescribed by Congress. Likewise, the

Supreme Court observed, the resulting agree-

workers was

commander in chief's power was found not

ment "embodied far reaching changes favor-

eventually

able to the miners."117 As authority, EO 9728

to include "the ultimate power to take pos-

session of private property in order to keep

had cited, among other things, the War Labor

checked by the

Disputes Act.118

labor disputes from stopping production."

Supreme Court.

Finally, the president's power "to see that the

Truman's seizure of private enterprises to

laws are faithfully executed refutes the idea

obtain raises and benefits for unionized

that he is to be a lawmaker."1 2 3

workers was eventually checked by the

Supreme Court. In Youngstown Sheet & Tube v.

The Court concluded that Truman lacked

Sawyer, the Court found that EO 10340

authority to issue the order. Therefore, it

(April 8, 1952), under which Truman seized

invalidated the order, observing that

steel mills in order to provide a 26 cent per

"Congress has . . . exclusive constitutional

hour raise to unionized steelworkers, was

authority to make laws necessary and proper

unconstitutional.119 As noted earlier, the

to carry out the powers vested by the

Constitution `in the Government of the

Court determined that, for the executive

United States, or any Department or Officer

order to be valid, the president's power to

thereof.'"1 2 4

issue it "must stem either from an Act of

Congress or from the Constitution itself."120

Without comparable deference to the text

of the Constitution, several concurring opin-

In Youngstown, Justice Hugo Black, writing

ions expanded on the principle that a presi-

for the Court, found that no statute had

dent has limited authority to act under the

expressly authorized the president's action.

Constitution. Justice Robert Jackson's con-

He then said that no statute had been identi-

curring opinion observed that "[t]he execu-

fied "from which such a power can be fairly

implied."121 Two statutes did give the presi-

tive, except for recommendation and veto,

has no legislative power. The executive action

dent authority to seize private property, the

we have here originates in the individual will

Court continued, but counsel for the United

17