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VINSON, C. J., dissenting.

343 U.S.

mand and the implication is clear that he should not allow them to become paralyzed by failure to obtain supplies for which Congress has appropriated the money and which it has directed the President

to obtain." 60 At this time, Senator Connally proposed amending the Selective Training and Service Act to authorize the President to seize any plant where an interruption of production would unduly impede the defense effort.61 Proponents of the measure in no way implied that the legislation would add to the powers already possessed by the President 62 and the amendment was opposed as unnecessary since the President already had the power. The amendment relating to plant seizures was not approved at that session of Congress.

Meanwhile, and also prior to Pearl Harbor, the President ordered the seizure of a shipbuilding company and an aircraft parts plant.65 Following the declaration of war, but prior to the Smith-Connally Act of 1943, five additional industrial concerns were seized to avert inter

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60 See 89 Cong. Rec. 3992 (1943). The Attorney General also noted that the dispute at North American Aviation was Communist inspired and more nearly resembled an insurrection than a labor strike. The relative size of North American Aviation and the impact of an interruption in production upon our defense effort were not described.

61 87 Cong. Rec. 4932 (1941). See also S. 1600 and S. 2054, 77th Cong., 1st Sess. (1941).

62 Reps. May, Whittington; 87 Cong. Rec. 5895, 5972 (1941).

63 Reps. Dworshak, Feddis, Harter, Dirksen, Hook; 87 Cong. Rec. 5901, 5910, 5974, 5975 (1941).

64 The plant seizure amendment passed the Senate, but was rejected in the House after a Conference Committee adopted the amendment. 87 Cong. Rec. 6424 (1941).

65 Exec. Order 8868, 6 Fed. Reg. 4349 (1941); Exec. Order 8928, 6 Fed. Reg. 5559 (1941).

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ruption of needed production. During the same period, the President directed seizure of the Nation's coal mines to remove an obstruction to the effective prosecution of the war.67

The procedures adopted by President Roosevelt closely resembled the methods employed by President Wilson. A National War Labor Board, like its predecessor of World War I, was created by Executive Order to deal effectively and fairly with disputes affecting defense production.68 Seizures were considered necessary, upon disobedience of War Labor Board orders, to assure that the mobilization effort remained a "going concern,” and to enforce the economic stabilization program.

At the time of the seizure of the coal mines, Senator Connally's bill to provide a statutory basis for seizures and for the War Labor Board was again before Congress. As stated by its sponsor, the purpose of the bill was not to augment Presidential power, but to "let the country know that the Congress is squarely behind the President.” 69 As in the case of the legislative recognition of President Lincoln's power to seize, Congress again recognized that the President already had the necessary power, for there was no intention to “ratify” past actions of doubtful validity. Indeed, when Senator Tydings offered an amendment to the Connally bill expressly to confirm and validate the seizure of the coal mines, sponsors of the bill

66 Exec. Order 9141, 7 Fed. Reg. 2961 (1942); Exec. Order 9220, 7 Fed. Reg. 6413 (1942); Exec. Order 9225, 7 Fed. Reg. 6627 (1942); Exec. Order 9254, 7 Fed. Reg. 8333 (1942); Exec. Order 9351, 8 Fed. Reg. 8097 (1943).

67 Exec. Order 9340, 8 Fed. Reg. 5695 (1943).

68 Exec. Order 9017, 7 Fed. Reg. 237 (1942); 1 Termination Report of the National War Labor Board 5–11.

69 89 Cong. Rec. 3807 (1943). Similar views of the President's existing power were expressed by Senators Lucas, Wheeler, Austin and Barkley. Id., at 3885-3887, 3896, 3992.

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opposed the amendment as casting doubt on the legality of the seizure and the amendment was defeated." When the Connally bill, S. 796, came before the House, all parts after the enacting clause were stricken and a bill introduced by Representative Smith of Virginia was substituted and passed. This action in the House is significant because the Smith bill did not contain the provisions authorizing seizure by the President but did contain provisions controlling and regulating activities in respect to properties seized by the Government under statute "or otherwise." 71

After a conference, the seizure provisions of the Connally bill, enacted as the Smith-Connally or War Labor Disputes Act of 1943, 57 Stat. 163, were agreed to by the House.

Following passage of the Smith-Connally Act, seizures to assure continued production on the basis of terms recommended by the War Labor Board were based upon that Act as well as upon the President's power under the Constitution and the laws generally. A question did arise as to whether the statutory language relating to "any plant, mine, or facility equipped for the manufacture, production, or mining of any articles or materials” authorized the seizure of properties of Montgomery Ward & Co., a retail department store and mail-order concern. The Attorney General (Biddle) issued an opinion that the President possessed the power to seize Montgomery Ward properties to prevent a work stoppage whether or not the terms of the Smith-Connally Act authorized such a seizure.73 This opinion was in line with

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70 89 Cong. Rec. 3989-3992 (1943).

71 S. 796, 78th Cong., 1st Sess., $$ 12, 13 (1943), as passed by the House.

72 57 Stat. 163, 164 (1943).

73 40 Op. Atty. Gen. 312 (1944). See also Hearings before House Select Committee to Investigate Seizure of Montgomery Ward & Co., 78th Cong., 2d Sess. 117-132 (1944).

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the views on Presidential powers maintained by the Attorney General's predecessors (Murphy 74 and Jackson +5) and his successor (Clark 70). Accordingly, the President ordered seizure of the Chicago properties of Montgomery Ward in April, 1944, when that company refused to obey a War Labor Board order concerning the bargaining representative of its employees in Chicago.” In Congress, a Select Committee to Investigate Seizure of the Property of Montgomery Ward & Co., assuming that the terms of the Smith-Connally Act did not cover this seizure, concluded that the seizure “was not only within the constitutional power but was the plain duty of the President.” 78 Thereafter, an election determined the bargaining representative for the Chicago employees and the properties were returned to Montgomery Ward & Co. In December, 1944, after continued defiance of a series of War Labor Board orders, President Roosevelt ordered the seizure of Montgomery Ward properties throughout the country." The Court of Appeals for the Seventh Circuit upheld this seizure on statutory grounds and also indicated its disapproval of a lower court's denial of seizure power apart from express statute.so

74 39 Op. Atty. Gen. 343, 347 (1939). 75 Note 60, supra.

76 Letter introduced in Hearings before Senate Committee on Labor and Public Welfare on S. 249, 81st Cong., 1st Sess. 232 (1949) pointing to the “exceedingly great” powers of the President to deal with emergencies even before the Korean crisis.

77 Exec. Order 9438, 9 Fed. Reg. 4459 (1944).

78 H. R. Rep. No. 1904, 78th Cong., 2d Sess. 25 (1944) (the Committee divided along party lines).

79 Exec. Order 9508, 9 Fed. Reg. 15079 (1944).

80 United States v. Montgomery Ward & Co., 150 F. 2d 369 (C. A. 7th Cir. 1945), reversing 58 F. Supp. 408 (N. D. III. 1945). See also Ken-Rad Tube & Lamp Corp. v. Badeau, 55 F. Supp. 193, 197–199 (W. D. Ky. 1944), where the court held that a seizure was proper with or without express statutory authorization.

VINSON, C. J., dissenting.

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More recently, President Truman acted to repel aggression by employing our armed forces in Korea. 81 Upon the intervention of the Chinese Communists, the President proclaimed the existence of an unlimited national emergency requiring the speedy build-up of our defense establishment.82 Congress responded by providing for increased manpower and weapons for our own armed forces, by increasing military aid under the Mutual Security Program and by enacting economic stabilization measures, as previously described.

This is but a cursory summary of executive leadership. But it amply demonstrates that Presidents have taken prompt action to enforce the laws and protect the country whether or not Congress happened to provide in advance for the particular method of execution. At the minimum, the executive actions reviewed herein sustain the action of the President in this case. And many of the cited examples of Presidential practice go far beyond the extent of power necessary to sustain the President's order to seize the steel mills. The fact that temporary executive seizures of industrial plants to meet an emergency have not been directly tested in this Court furnishes not the slightest suggestion that such actions have been illegal. Rather, the fact that Congress and the courts have consistently recognized and given their support to such executive action indicates that such a power of seizure has been accepted throughout our history.

History bears out the genius of the Founding Fathers, who created a Government subject to law but not left subject to inertia when vigor and initiative are required.

81 United States Policy in the Korean Crisis (1950), Dept. of State Pub. 3922.

82 15 Fed. Reg. 9029 (1950).

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