So far this semester we have discussed the judicial authority and the legislative powers. Now, we begin to turn towards the executive powers. But before we do so, it is important to introduce the topic by briefly discussing the separation of powers.

An Introduction

The Federalist No. 47

Although the branches of government are seen as separate and equal, some of their powers overlap. This is not contrary to the history of the States, where all constitutions have had some overlap between the branches of government. For the most part, the powers are separated, but there is nothing wrong with the checks and balances introduced through overlapping powers.

The Federalist No. 48

Madison argues that not only is complete separation unavoidable, some connection is necessary. He enters the discussion by talking about how the legislative protects against the crave of power by the executive, and vice versa.

Thus, the separation of powers serves two purposes:

  1. To promote efficiency
  2. To prevent tyranny

Much has changed since the foundation of the constitution was established. Some argue that with this development, more powers should be divested into the executive branch. Others disagree, arguing that the passage of time has already divested too much power to the President and thus we need to transition back to what was initially intended, a strong legislature to check the executive brach that is watched carefully by the judiciary.

Presidential Seizure

Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case)

343 U.S. 579 (1952).

Sawyer was the secretary of commerce.


Does the President have the Constitutional power to take possession of private property to keep it running?


“The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.”


There was no Congressional or Constitutional authority granted, the seizure was illegal. Affirmation of the District Court and reversal of the appellate court.


In 1952, the Unions of Steel companies gave national notice of a strike in the plants that manufacture steel. President Truman, worried of the effects this would have on weapons manufacturing, ordered the Secretary of Commerce to seize the mills and keep them open. The order was issued, and the mills remained open. Although the President gave notice to Congress of this action, Congress had not acted to preserve the order. Several of the unions sued.

The argument of the unions: This exercise of power is tantamount to legislative authority and is therefore unconstitutional.

The argument of the government: This exercise of power is related to the President’s military power as Commander in Chief of the Armed Forces.


This order must obtain authority from one of two places, Congress or the Constitution. If no authority is obtained, the order must fail for constitutionality.

Congress has not given authority to use this power. In fact, in the past, Congress has expressly denied this power to the President. Therefore, the only way this order can stand is if the President can derive some Constitutional authority. However, the President fails to do so. Although the war powers are expansive, the Supreme Court fails to recognize this authority over labor development, especially in times of peace. Thus, this is not a congressional policy being enforced by the President, this is a executive policy being enforced by the order. The actions are unconstitutional and the order must fall.


Frankfurter emphasizes that Congress had not given the executive authority in this instance. In the past, Congress has given authority, but has kept that authority very limited. Other times, Congress has refused authority altogether. Thus, Congress is the function by which the power must be approved. Since approval was lacking, no authority was granted.

Jackson states the three categories which a President may freely (or lack of freedom) exercise power. First, when the President is in line with Congress, he has the most authority (not present here because the government says Congress did not give authority). Second, when powers are uncertain from Congress, the President may exercise some authority (not present here because Congress has expressly removed authority in the past). Finally, the President must obtain authority through personal Constitutionally authorized merits. This third category is where most of the concurrence dwells. In summary, the several powers mentioned by the government fail to meet the Constitutional authority and the concurrence thinks it unwise to expand that uncertain authority even in a state of emergency.


The dissent focuses on how the President in the past has exercised authority to enact laws, sometimes with and sometimes without the approval of Congress. Likewise here, the President was focused on following the guidance that Congress would give, having informed them of his actions. Those situations all occurred without a state of emergency. Here, there was a state of emergency which should give the President broad authority to execute the law.

Additional Notes

The first power relied on by the President is the Commander in Chief provision. This provision does not work because this was not a “theater of war” but instead focused on the seizure of personal property at home.

Justice Black says that there are no implied powers (textual). Frankfurter says that this action was unprecedented throughout history (Historical practice). However, Jackson’s concurrence is the controlling opinion in this case. He says that there are implied powers and sets up several categories to determine if the Presidential Power is allowed:

  1. President and Congress align – President has most implied power
  2. Congress is silent – Examine the imperatives of events (circumstances) to determine if the President has implied power.
  3. President and Congress do not align – President has the least power (must be examined with caution).

The dissent argues that the implied powers should not be based on what Congress thinks about a particular issue, “the President is not Congress’s messenger boy.”


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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