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VINSON, C. J., dissenting.

sense is he the agent of Congress. He obeys and executes the laws of Congress, not because Congress is enthroned in authority over him, but because the Constitution directs him to do so.

“Therefore it follows that in ways short of making laws or disobeying them, the Executive may be under a grave constitutional duty to act for the national protection in situations not covered by the acts of Congress, and in which, even, it may not be said that his action is the direct expression of any particular one of the independent powers which are granted to him specifically by the Constitution. Instances wherein the President has felt and fulfilled such a duty have not been rare in our history, though, being for the public benefit and approved by all, his acts have seldom been challenged in the courts. We are able, however, to present a number of apposite cases which were subjected to judicial

inquiry.” The brief then quotes from such cases as In re Debs, supra, and In re Neagle, supra, and continues:

"As we understand the doctrine of the Neagle case, and the cases therein cited, it is clearly this: The Executive is authorized to exert the power of the United States when he finds this necessary for the protection of the agencies, the instrumentalities, or the property of the Government. This does not mean an authority to disregard the wishes of Congress on the subject, when that subject lies within its control and when those wishes have been expressed, and it certainly does not involve the slightest semblance of a power to legislate, much less to 'suspend' legislation already passed by Congress. It involves the performance of specific acts, not of a VINSON, C. J., dissenting.

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legislative but purely of an executive characteracts which are not in themselves laws, but which presuppose a 'law' authorizing him to perform them. This law is not expressed, either in the Constitution or in the enactments of Congress, but reason and necessity compel that it be implied from the exigencies of the situation.

"In none of the cases which we have mentioned, nor in the cases cited in the extracts taken from the Neagle case, was it possible to say that the action of the President was directed, expressly or impliedly, by Congress. The situations dealt with had never been covered by any act of Congress, and there was no ground whatever for a contention that the possibility of their occurrence had ever been specifically considered by the legislative mind. In none of those cases did the action of the President amount merely to the execution of some specific law.

"Neither does any of them stand apart in principle from the case at bar, as involving the exercise of specific constitutional powers of the President in a degree in which this case does not involve them. Taken collectively, the provisions of the Constitution which designate the President as the official who must represent us in foreign relations, in commanding the Army and Navy, in keeping Congress informed of the state of the Union, in insuring the faithful execution of the laws and in recommending new ones, considered in connection with the sweeping declaration that the executive power shall be vested in him, completely demonstrate that his is the watchful eye, the active hand, the overseeing dynamic force of the United States."

49 Brief for the United States, No. 278, October Term, 1914, pp. 11, 75–77, 88-90.

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This brief is valuable not alone because of the caliber of its authors but because it lays bare in succinct reasoning the basis of the executive practice which this Court approved in the Midwest Oil case.

During World War I, President Wilson established a War Labor Board without awaiting specific direction by Congress.50 With William Howard Taft and Frank P. Walsh as co-chairmen, the Board had as its purpose the prevention of strikes and lockouts interfering with the production of goods needed to meet the emergency. Effectiveness of War Labor Board decision was accomplished by Presidential action, including seizure of industrial plants.51 Seizure of the Nation's railroads was also ordered by President Wilson. 52

Beginning with the Bank Holiday Proclamation 53 and continuing through World War II, executive leadership and initiative were characteristic of President Franklin D. Roosevelt's administration. In 1939, upon the outbreak VINSON, C. J., dissenting.

50 National War Labor Board. Bureau of Labor Statistics, Bull. 287 (1921).

51 Id., at 24-25, 32–34. See also, 2 Official U. S. Bull. (1918), No. 412; 8 Baker, Woodrow Wilson, Life & Letters (1939), 400–402; Berman, Labor Disputes and the President (1924), 125–153; Pringle, The Life and Times of William Howard Taft (1939), 915–925.

52 39 Stat. 619, 645 (1916), provides that the President may take possession of any system of transportation in time of war. Following seizure of the railroads by President Wilson, Congress enacted detailed legislation regulating the mode of federal control. 40 Stat. 451 (1918).

When Congress was considering the statute authorizing the President to seize communications systems whenever he deemed such action necessary during the war, 40 Stat. 904 (1918), Senator (later President) Harding opposed on the ground that there was no need for such stand-by powers because, in event of a present necessity, the Chief Executive "ought to" seize communications lines, “else he would be unfaithful to his duties as such Chief Executive.” 56 Cong. Rec. 9064 (1918).

53 48 Stat. 1689 (1933).

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55

of war in Europe, the President proclaimed a limited national emergency for the purpose of strengthening our national defense. In May of 1941, the danger from the Axis belligerents having become clear, the President proclaimed "an unlimited national emergency” calling for mobilization of the Nation's defenses to repel aggression.” The President took the initiative in strengthening our defenses by acquiring rights from the British Government to establish air bases in exchange for overage destroyers.56

In 1941, President Roosevelt acted to protect Iceland from attack by Axis powers, when British forces were withdrawn, by sending our forces to occupy Iceland. Congress was informed of this action on the same day that our forces reached Iceland. The occupation of Iceland was but one of “at least 125 incidents” in our history in which Presidents, "without congressional authorization, and in the absence of a declaration of war, [have] ordered the Armed Forces to take action or maintain positions abroad.” 58

Some six months before Pearl Harbor, a dispute at a single aviation plant at Inglewood, California, interrupted a segment of the production of military aircraft. In spite of the comparative insignificance of this work stoppage to total defense production as contrasted with the complete paralysis now theatened by a shutdown of the entire basic steel industry, and even though

54 54 Stat. 2643 (1939). 55 55 Stat. 1647 (1941).

56 86 Cong. Rec. 11354 (1940) (Message of the President). See 39 Op. Atty. Gen. 484 (1940). Attorney General Jackson's opinion did not extend to the transfer of “mosquito boats,” solely because an express statutory prohibition on transfer was applicable.

57 87 Cong. Rec. 5868 (1941) (Message of the President).

58 Powers of the President to Send the Armed Forces Outside the United States, Report prepared by executive department for use of joint committee of Senate Committees on Foreign Relations and Armed Services, 82d Cong., 1st Sess., Committee Print, 2 (1951).

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our armed forces were not then engaged in combat, President Roosevelt ordered the seizure of the plant "pursuant to the powers vested in [him] by the Constitution and laws of the United States, as President of the United States of America and Commander in Chief of the Army and Navy of the United States.” 59 The Attorney General (Jackson) vigorously proclaimed that the President had the moral duty to keep this Nation's defense effort a "going concern. His ringing moral justification was coupled with a legal justification equally well stated:

"The Presidential proclamation rests upon the aggregate of the Presidential powers derived from the Constitution itself and from statutes enacted by the Congress.

“The Constitution lays upon the President the duty 'to take care that the laws be faithfully executed. Among the laws which he is required to find means to execute are those which direct him to equip an enlarged army, to provide for a strengthened navy, to protect Government property, to protect those who are engaged in carrying out the business of the Government, and to carry out the provisions of the Lend-Lease Act. For the faithful execution of such laws the President has back of him not only each general law-enforcement power conferred by the various acts of Congress but the aggregate of all such laws plus that wide discretion as to method vested in him by the Constitution for the purpose of executing the laws.

"The Constitution also places on the President the responsibility and vests in him the powers of Commander in Chief of the Army and of the Navy. These weapons for the protection of the continued existence of the Nation are placed in his sole com

59 Exec. Order 8773, 6 Fed. Reg. 2777 (1941).

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