Inherent Presidential Power (pp. 229–242)

• Hamilton argued that the president has authority not specifically delineated in the Constitution.

• Madison argued that the president has no powers that are not enumerated in Article II and, indeed, such unenumerated authority would be inconsistent with a Constitution creating a government of limited authority.

Majority: J. Black

• View: Madisonian
• "The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice."

Concurrence: J. Jackson

• View: Madisonian
• Classifies 3 Manners of Presidential Authority
  • Maximum
    • When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth), to personify the federal sovereignty.
  • Uncertain
    • When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.
  • Minimum/Lowest
    • When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.
• How does the action here fit into these categories?
  • Maximum: "It is eliminated from the first by admission, for it is conceded that no congressional authorization exists for this seizure."
  • Uncertain: "It seems clearly eliminated from that class because Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure."
  • Minimum: "This leaves the current seizure to be justified only by the severe tests under the third grouping, where it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject. In short, we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress."
    • "Thus, this Court’s first review of such seizures occurs under circumstances which leave Presidential power most vulnerable to attack and in the least favorable of possible constitutional postures."

Concurrence: J. Douglas

• View: Madisonian.
• The emergency existed, but the emergency didn't justify the use of executive power.
  • "The Congress, as well as the President, is trustee of the national welfare. The President can act more quickly than the Congress. The President with the armed services at his disposal can move with force as well as with speed. All executive power—from the reign of ancient kings to the rule of modern dictators—has the outward appearance of efficiency."
• This acted more as a 5th Amendment condemnation/taking of property, to which the President has no power to commence, than a settling of a labor controversy.

Concurrence: J. Frankfurter

• View: Madisonian.
• While Congress—to date of this decision—had provided for condemnation and nationalization 16 times, it did not do so here. Because it did not do so for this instance, the President overextended his executive powers.

Dissent: J. Vinson, J. Reed, J. Minton

• Views: Hamiltonian.