Article II, Section 2, Clause 1:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
To implement his directives as Commander in Chief in wartime, and especially those which he issued in governing labor disputes, President Franklin Roosevelt often resorted to “sanctions,” which may be described as penalties lacking statutory authorization. Ultimately, the President sought to put sanctions by the National War Labor Board on a systematic basis.1 The order empowered the Director of Economic Stabilization, on receiving a report from the Board that someone was not complying with its orders, to issue “directives” to the appropriate department or agency requiring that privileges, benefits, rights, or preferences enjoyed by the noncomplying party be withdrawn.2
Sanctions were also occasionally employed by statutory agencies, such as the Office of Price Administration (OPA), to supplement the penal provisions of the Emergency Price Control Act of January 30, 1942.3 In Steuart & Bro. v. Bowles,4 the Supreme Court had the opportunity to regularize this type of executive emergency legislation. Here, a retail dealer in fuel oil was charged with having violated a rationing order of OPA by obtaining large quantities of oil from its supplier without surrendering ration coupons, by delivering many thousands of gallons of fuel oil without requiring ration coupons, and so on, and was prohibited by the agency from receiving oil for resale or transfer for the ensuing year. The offender conceded the validity of the rationing order in support of which the suspension order was issued but challenged the validity of the latter as imposing a penalty that Congress had not enacted and asked the district court to enjoin it.
The court refused to do so5 and was sustained by the Supreme Court in its position. Justice William Douglas wrote for the Court:
“[W]ithout rationing, the fuel tanks of a few would be full; the fuel tanks of many would be empty. Some localities would have plenty; communities less favorably situated would suffer. Allocation or rationing is designed to eliminate such inequalities and to treat all alike who are similarly situated. But middlemen—wholesalers and retailers—bent on defying the rationing system could raise havoc with it. These middlemen are the chief if not the only conduits between the source of limited supplies and the consumers. From the viewpoint of a rationing system a middleman who distributes the product in violation and disregard of the prescribed quotas is an inefficient and wasteful conduit. Certainly we could not say that the President would lack the power under this Act to take away from a wasteful factory and route to an efficient one a precious supply of material needed for the manufacture of articles of war. From the point of view of the factory owner from whom the materials were diverted the action would be harsh . . . . But in times of war the national interest cannot wait on individual claims to preference. Yet if the President has the power to channel raw materials into the most efficient industrial units and thus save scarce materials from wastage it is difficult to see why the same principle is not applicable to the distribution of fuel oil.” 6
Sanctions not expressly supported by statue were, therefore, constitutional when the deprivations they wrought were a reasonably implied amplification of the substantive power which they supported and were directly conservative of the interests which this power was created to protect and advance. It is certain, however, that sanctions not uncommonly exceeded this pattern.7
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Footnotes
- 1
- Exec. Order No. 9370, 8 Fed. Reg. 11,463 (1943).
- 2
- Id.
- 3
- 56 Stat. 23 (1942).
- 4
- 322 U.S. 398 (1944).
- 5
- L.P. Steuart & Bro. v. Bowles, 55 F. Supp. 336, 337 (D.D.C, 1944) ( “I see no reason why the O.P.A. should not revoke the allocation to and the authority of the agency. If it can do this, it can do the lesser. If it can put an end to the allocation it can suspend it.” ).
- 6
- Id. at 405–06.
- 7
- Edward Corwin, The President, Office and Powers 284–85 (1984).