Power of the U.S. government to seize the property of citizens, businesses, and persons identified with an enemy power during a time of war.

Wartime seizure power may be directed at both foreign and domestic property. Although substantial resources are available to redirect the nation’s economy in support of armed conflict or national defense, Congress passed a number of statutes penalizing private businesses or persons for failure to cooperate. The most important provisions are in the Trading with the Enemy Act (1917), the Selective Service Act (1940), the Atomic Energy Act (1946), and the Defense Production Act (1950).Korean War

The Trading with the Enemy ActTrading with the Enemy Act authorized the restriction of property use within the United States by people or entities considered to be hostile. The law enabled the president to investigate, prohibit, or freeze financial and property transactions by people or involving property subject to U.S. jurisdiction. It also mandated that alien property rights come under the control of the United States in time of war or national emergency. The Supreme Court consistently recognized that confiscation of property incident to the exercise of the war powerWar powers is not subject to Fourth Amendment (unreasonable searches and seizures) or Fifth Amendment (due process) guarantees (Brown v. United States, 1814; Conrad v. Waples, 1878). After World War I (1917-1918), the Court upheld the seizure of property held by a German company under the act (Stoehr v. Wallace, 1921). In this case, the Court recognized the president’s power to obtain documentary evidence and to determine the government’s access to and control over enemy property.

Provisions of the Selective Service Act included penalties for not giving priority to government procurement orders for materials needed by the armed forces. The law further called for requisition of private property in the event of noncompliance. The Defense Production Act gave the president authority to determine priorities in the fulfillment of contracts and imposed penalties for hoarding scarce materials or for failure to comply. The Atomic Energy Act established controls over the production and distribution of nuclear material and provided for its recapture in cases of war and national emergency.

During World War II (1941-1945), the Court upheld the power of the government to seize German property in Silesian-American Corp. v. Clark[case]Silesian-American Corp. v. Clark[Silesian-American Corp. v. Clark] (1947). The war also occasioned a dramatic increase in domestic property seizures, with more than fifty seizures of property taking place under various statutes passed by Congress.

The most significant case involving the seizure of a domestic industry during a wartime was Youngstown Sheet and Tube Co. v. Sawyer[case]Youngstown Sheet and Tube Co. v. Sawyer[Youngstown Sheet and Tube Co. v. Sawyer] (1952), also known as the Steel Seizure case. President Harry S Truman feared that an impending steel strike would disrupt production and lead to ammunition shortages that would jeopardize an already unpopular war in KoreaKorean War. Truman claimed the power to seize the mills based on the general grant of executive power in Article II of the U.S. Constitution and the specific grant of power as commander in chief. He also hoped that the provisions of the Defense Production Act would substantiate his claims. The Court did not agree. In part, it relied on Congress’s earlier use of the 1947 Taft-Hartley ActTaft-Hartley Act to refuse the president the power to seize striking industrial plants. Although Taft-Hartley did give the president a sixty-day window to keep plants open during labor negotiations, Truman had chosen to bypass its use.

In the majority opinion, Justice Hugo L. Black wrote that Truman lacked the statutory authority for the seizure and that the Article II grants of power did not provide the necessary authority. Five other members of the Court wrote concurring opinions, with most leaving room for the exercise of inherent executive powers in cases of emergency. Justice Robert H. Jackson’s concurring opinion remains an important and influential part of the Youngstown opinion. In it, Jackson asserted that the president enjoys maximum power when acting on the implied or express authorization of Congress and finds power at its lowest when acting contrary to the will and intent of Congress. In between is a “zone of twilight,” where the two branches may exercise concurrent authority and the distribution of power is uncertain. Jackson stated, however, that Truman’s actions did not fall into that uncertain zone and therefore deserved the strictest level of judicial review. Jackson concluded that unlike past cases dealing with the seizure of property owned by alien enemies during wartime, this case involved a taking of private property without due process of law in violation of the Fifth Amendment.

Although Youngstown remains valid law and is often quoted in discussions of presidential power in times of war and emergency, its strength as legal precedent is questionable. In Dames and Moore v. Regan[case]Dames and Moore v. Regan[Dames and Moore v. Regan] (1981), the Court upheld President Jimmy Carter’s freeze of Iranian assets within the United States. Dames and Moore sought to regain more than three million dollars owed to it for services performed for the Iranian government. It claimed that the president’s executive order went beyond his statutory and constitutional powers. However, the Court upheld Carter’s actions, eight to one.

• Fisher, Louis. Presidential War Power. Lawrence: University Press of Kansas, 1995.
• Marcus, Maeva. Truman and the Steel Seizure Case. Durham, N.C.: Duke University Press, 1994.
• O’Brien, David. Constitutional Law and Politics: Struggles for Power and Governmental Accountability. 3d ed. New York: W. W. Norton, 1997.

Dames and Moore v. Regan

Japanese American relocation

Military and the Court

National security

War powers

World War II

Youngstown Sheet and Tube Co. v. Sawyer