Preventive Martial Law
SECTION 3. He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
The question of executive power in the presence of civil disorder is dealt with in modern terms in Moyer v. Peabody,755 to which the Debs case756 may be regarded as an addendum. Moyer, a labor leader, sued Peabody for having ordered his arrest during a labor dispute that had occurred while Peabody was governor of Colorado. Speaking for a unanimous Court (with one Justice absent), Justice Holmes said: “Of course the plaintiff’s position is that he has been deprived of his liberty without due process of law. But it is familiar that what is due process of law depends on circumstances. It varies with the subject-matter and the necessities of the situation. . . . The facts that we are to assume are that a state of insurrection existed and that the Governor, without sufficient reason but in good faith, in the course of putting the insurrection down held the plaintiff until he thought that he safely could release him.”
“. . . In such a situation we must assume that he had a right under the state constitution and laws to call out troops, as was held by the Supreme Court of the State. . . . That means that he shall make the ordinary use of the soldiers to that end; that he may kill persons who resist and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace. Such arrests are not necessarily for punishment, but are by way of precaution to prevent the exercise of hostile power. So long as such arrests are made in good faith and in the honest belief that they are needed in order to head the insurrection off, the Governor is the final judge and cannot be subjected to an action after he is out of office on the ground that he had not reasonable ground for his belief.”
“. . . When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process.”757
The Debs Case.—The Debs case of 1895 arose out of a railway strike which had caused the President to dispatch troops to Chicago the previous year. Coincidentally with this move, the United States district attorney stationed there, acting upon orders from Washington, obtained an injunction from the United States circuit court forbidding the strike because of its interference with the mails and with interstate commerce. The question before the Supreme Court was whether this injunction, for violation of which Debs had been jailed for contempt of court, had been granted with jurisdiction. Conceding, in effect, that there was no statutory warrant for the injunction, the Court nevertheless validated it on the ground that the government was entitled thus to protect its property in the mails, and on a much broader ground which is stated in the following passage of Justice Brewer’s opinion for the Court: “Every government, entrusted, by the very terms of its being, with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other. . . . While it is not the province of the government to interfere in any mere matter of private controversy between individuals, or to use its granted powers to enforce the rights of one against another, yet, whenever the wrongs complained of are such as affect the public at large, and are in respect of matters which by the Constitution are entrusted to the care of the Nation and concerning which the Nation owes the duty to all the citizens of securing to them their common rights, then the mere fact that the government has no pecuniary interest in the controversy is not sufficient to exclude it from the courts, or prevent it from taking measures therein to fully discharge those constitutional duties.”758
Present Status of the Debs Case.—Insofar as the use of injunctive relief in labor disputes is concerned, enactment of the Norris-LaGuardia Act759 placed substantial restrictions on the power of federal courts to issue injunctions in such situations. Though, in United States v. UMW,760 the Court held that the Norris-LaGuardia Act did not apply where the government brought suit as operator of mines, language in the opinion appeared to go a good way toward repudiating the present viability of Debs, though more in terms of congressional limitations than of revised judicial opinion.761 It should be noted that in 1947 Congress authorized the President to seek injunctive relief in “national emergency” labor disputes, which would seem to imply absence of authority to act in situations not meeting the statutory definition.762
With regard to the power of the President to seek injunctive relief in other situations without statutory authority, there is no clear precedent. In New York Times Co. v. United States,763 the government sought to enjoin two newspapers from publishing classified material given to them by a dissident former governmental employee. Though the Supreme Court rejected the Government’s claim, five of the six majority Justices relied on First Amendment grounds, apparently assuming basic power to bring the action in the first place, and three dissenters were willing to uphold the constitutionality of the Government’s action and its basic power on the premise that the President was authorized to protect the secrecy of governmental documents. Only one Justice denied expressly that power was lacking altogether to sue.764
755 212 U.S. 78 (1909).
756 In re Debs, 158 U.S. 564 (1895).
757 212 U.S. at 84–85. See also Sterling v. Constantin, 287 U.S. 378 (1932), which endorses Moyer v. Peabody, while emphasizing the fact that it applies only to a condition of disorder.
758 158 U.S., 584, 586. Some years earlier, in United States v. San Jacinto Tin Co., 125 U.S. 273, 279 (1888), the Court sustained the right of the Attorney General and his assistants to institute suits simply by virtue of their general official powers. “If,” the Court said, “the United States in any particular case has a just cause for calling upon the judiciary of the country, in any of its courts, for relief . . . the question of appealing to them must primarily be decided by the Attorney General . . . and if restrictions are to be placed upon the exercise of this authority it is for Congress to enact them.” Cf. Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792), in which the Court rejected Attorney General Randolph’s contention that he had the right ex officio to move for a writ of mandamus ordering the United States circuit court for Pennsylvania to put the Invalid Pension Act into effect.
759 47 Stat. 170 (1932), 29 U.S.C. §§ 101–115.
760 330 U.S. 258 (1947). In reaching the result, Chief Justice Vinson invoked the “rule that statutes which in general terms divest preexisting rights or privileges will not be applied to the sovereign without express words to that effect.” Id. at 272.
761 Thus, the Chief Justice noted that “we agree” that the debates on Norris-LaGuardia “indicate that Congress, in passing the Act, did not intend to permit the United States to continue to intervene by injunction in purely private labor disputes.” Of course, he continued, “whether Congress so intended or not is a question different from the one before us now.” 330 U.S. at 278.
762 61 Stat. 136, 155 (1947), 29 U.S.C. §§ 176–180. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), with regard to the exclusivity of proceeding.
763 403 U.S. 713 (1971).
764 On Justice Marshall’s view on the lack of authorization, see 403 U.S. at 740–48 (concurring opinion); for the dissenters on this issue, see id. at 752, 755–59 (Justice Harlan, with whom Chief Justice Burger and Justice Blackmun joined); see also id. at 727, 729–30 (Justice Stewart, joined by Justice White, concurring).