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Doing JUST K an oral 343 U.S. 579 (1952) YOUNGSTOWN SHEET & TUBE CO. ET AL. v. brief y SAWYER. M No. 744. * This is the jury on this Supreme Court of United States. Opinion Argued May 12-13, 1952. Decided June 2, 1952. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT." John W. Davis argued the cause for petitioners in No. 744 and respondents in No. 745. On the brief were Mr Davis, Nathan L. Miller, John Lord O'Brian, Roger M. Blough, Theodore Kiendl, Porter R. Chandler and Howard C. Westwood for the United States Steel Co.; Bruce Bromley, E. Fontaine Brown and John H. Pickering for the Bethlehem Steel Co.; Luther Day, T. F. Patton, Edmund L. Jones, Howard Boy and John C. Gall for the Republic Steel Corp.; John C. Bane, Jr., ghlin Steel Corp.; Mr. Gall John J. Wilson and J. E. Bennett for Co. et al.; Charles H. Tuttle, Winfred K. Petigrue and Joseph P. Tumulty, Jr. (who also filed an additional brief) for the Armco Steel Corp. et al.; and Randolph W. Childs, Edgar S. Mckaig and James Craig Peacock (who also filed an additional brief) for E. J. Lavino & Co., petitioners in No. 744 and respo Solicitor General Perlman argued the cause for respondent in No. 744 and petitioner in No. 745. With him on the brief were Assistant Attorney General Baldridge, James L. Morrisson, Samuel D. Slade, Oscar H. Davis, Robert W. Ginnane, Marvin E. Frankel, Benjamin Forman and Herman Marcuse. By special leave of Court, Clifford D. O'Brien and Harold C. Heiss argued the cause for the Brotherhood of Locomotive Engineers et al., as amici curiae, supporting petitioners in No. 744 and respondents in No. 745. With them on the brief were Ruth Weyand and V. C. Shuttleworth. By special leave of Court, Arthur J. Goldberg argued the cause for the United Steelworkers of America, C. I. O. as amicus curiae. With him on the brief was Thomas E. Harris. MR. JUSTICE BLACK deliver ion of the Court We are asked to decide whether the President was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take posses he Nation's steel mills. The mill owners argue that the President's order amounts to lawmaking, a legislative function which the Constitution has expressly confided to the Congress a o the President. The Government's position is that the order was made on findings of the President that his action was necess ional catastrophe which would inevitably result from a stoppage of steel production, and that in meeting this cy the President was acting within the aggregate of his constitutional pow ers as the Nation's Chief Executive and the Commander in Chief of the Armed Forces of the United States. The issue emerges he lowing series of events: In the latter part of 1951, a dispute arose between the steel companies and their employees over terms and conditions that should be included in new collective bargaining agreements. Long-continued conferences failed to resolve the dispute. On December 18, 1951, the employees' representative, United Steelworkers of America, C. I. O., gave notice of an intention to strike when the existing bargaining agreements expired on December 31. The Federal Mediation and Conciliation Service then intervened in an effort to get labor and management to agree. This failing, the President on December 22, 1951, referred the dispute to the Federal Wage Stabilization 5 Boardill to investigate and makerecommendations for fair and equitable terms of settlement. This Board's report resulted in no settlement. On April 4, 1952, the Union gave notice of a nation-wide strike called to begin at 12:01 a. m. April 9. The indispensability of steel as a component of substantially all weapons and other war materials led the Presiden to believe that the proposed work stoppage would immediately jeopardize our national defense and that governmental seizure of the steel mills was necessary in order to assure the continued availability considerations for his action, the President, a few hours before the strike was to begin, issued Executive Order 10340, a copy of which is attached as an appendix, post, p. 589. The order directed the Secretary of Commerce to take possession of most of the steel mills and keep them running. The Secretary immediately iss rs, calling upon the presidents of the various seized companies to serve as operating managers for the United States. They were directed to carry on their activities in accordance with regulations and directi ns of the Secretary. The next morning the President sent a message to Congress reporting his action. Cong. Rec., April 9, 1952, p. 3962. Twelve days later he sent a second message. Cong. Rec., April 21, 1952, p. 4192. Congress has taken no ac Obeying the Secretary's orders under protest, the companies brought proceedings against him in the District Court. Their complaints charged that the seizure was n an act of Congress or by any constitutional provisions. The District Court was asked to declare the orders of the President and th cretary invalid and to issue preliminary and permanent forcement. Opposing the motion for preliminary injunction, the United States asserted that a strike di luction for even a brief period would s endanger the well-being and safety of the Nation that the Preside to do what he had done-power "supported by the cedent, and by court decisions." The Government also contended that in any event no preliminary injunction should se the companies had made no showing that their available legal remedies were inadequate or that their injuries from seizure would be irreparable. Holding against the Government on all points, it on April 30 issued a preliminary injunction restraining the Secretary from "continuing the seizure and possession of . and from acting under the purported authority of Executive Order No. 10340." 103 F. Supp. 569. On the same day the Court of Appeals stayed the District Court's injunction. 90 U. S. App. D. C._ 197 F. 2d 582. Deeming it best that the issues raised be promptly decided by this Court, we granted certiorari on May 3 and set the cause ument on May 12. 343 U. S. 937. Two crucial issues have developed: First. Should final determination of the constitutional validity of the President's order be made in this case which has proceeded no further than the preliminary injunction stage? Second. If so, is the seizure order within the constitutional power of the President? 1. It is urged that there were non-constitutional grounds upon which the District Court could have denied the preliminary injunction and thus have followed the customary judicial practice of declining to reach and decide constitutional questions until compelled to do so. On this basis it is argued that equity's extrao injunction relief should have been denied because (a) seizure of the co properties did not inflict irreparable damages, 85 and (b) there were available legal remedies adequate to afford compensa r any possible damages which they might suffer. While separately argued by the elated, if not identical. Arguments as to both rest in large part on the ent's claim that should the seizure ultimately be held unlawful, the companies could recover full compensation in the Co it of Claims for the unlawful taking. Prior cases in this Court have cast doubt on the right to rec erties unlawfully taken by government officials for public use as these properties we U. S. 322. 335-336: United States v. North American Co., 253 U. S. 330. 333. But see Larson v. Domestic & Foreign Corp., 337 U. S. 682 701-702. Moreover, seizu re and governmental operation these going businesses were bound to result in many present and future damages of such nature as to be difficult, if not incapable, measurement. Viewing the case this way, and in the light of the facts presented, the District Court saw no reason for delaying decision of the constitutional validity of the orders. We agree with the District Court and can see no reason why that question was not ripe for determination on the record presented. We shall therefore consider and determine that question now.II. The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution any act of capture that expressly authorizes the President to take possession of proper been directed from possession of property as he did here. Nor is Congress to which our attention has been directed from which such a Indeed, we do not understand the Government to rely on statutory auto on such a power can fairly be implied. which do authorize the President o rely on statutory authorization for this seizure. There are two statutes conditions wereyou personal and real property under certain conditions. However, the Government admits that these conditions were not met an statutes. The Government refers to the cologne for mer and that the President's order was not rooted in either of the seizure provisions of one of these statutes ($ 201 (b) of the Defense Production Act) as "much too cumbersome, involved, and time-consuming for the crisis which was at hand," rized by youthe seizure technique to solve labor disputes in order to prevent work stoppages was not only unauthorized by any congressional enactment; prior to this controversy, Congress had refused to adopt that me settling labor disputes. When the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency. Apparently it was thought that the technique of seizure, like that of compulsory arbitration, would process of collective bargaining. "] Consequently, the plan Congress adopted in that Act did not for seizure under any circumstances. Instead, the plan sought to bring about settlements by use of the customary devices of mediation, conciliation, investigation by boards of inquiry, and public reports. In some instances temporary injunctions were authorized to provide cooling-off periods. All this failing, unions were left free to strike after a secret vote by employees as to whether they wished to accept their employers' final settlement offer. ($1 It is clear that if the President had authority to issue the order he did, it must be found in some provision of the Constitution. And it is not claimed that express constitutional language grants this power to the Presid contention is that presidential power should be implied from the aggregate of his powers under the Constitution Particular reliance is placed on provisions in Article II which say that "The executive Power shall be vested in a President . . ."; that "he shall take Care that the Laws be faithfully executed"; and that he "shall be Commander in Chief of the Army and Navy of the United States." The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though ater of war" be an expanding concept, we cannot with faithfulnes of with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities. Nor can the seizure order be sustained because of the several constitutional provisions Tonal provisions that grant executive power to nt. In the framework of our Constitution, the President's power to see that the laws are faithfully executed he idea that he is to be a be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The *586 first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States . . . ." After granting many powers to the Congress, Article I goes on to provide that Congress may "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." The President's order does not direct that a congressional policy be executed in a manner pre whowould manner prescribed by Congress -it that a presidential policy be executed in a manner prescribed by the President. The preamble of the order itself. of many statutes, sets out reasons why the President believe lieves certain policies should be adopted, proclaims these policies as rules of conduct to be followed, and again, like a statute, authorizes a government official toWHEREAS a continuing and uninterrupted supply of steel is also indispensable to the maintenance of the economy of the United States, upon which our military strength depends; and WHEREAS a controversy has arisen between certain companies in the United States producing and fabricating steel and the elements thereof and certain of their workers represented by the United Steel Workers of America, CIO, regarding terms and conditions of employment; and WHEREAS the controversy has not been settled through the processes of collective bargaining or through the efforts of the Government, including those of the Wage Stabilization Board, to which the controversy was re December 22, 1951, pursuant to Executive Order No. 10233, and a strike has been called for 12:01 A. M., A 1952; and WHEREAS a work stoppage would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field; and WHEREAS in order to assure the continued availability of steel and steel products during the existing emergency, it is necessary that the United States take possession of and operate the plants, facilities, and other property of the said companies as hereinafter provided: NOW. THEREFORE, by virtue of the authority vested in me by the Constitution and laws of the United States, and as President of the United States and Commander in Chief of the armed forces of the United States, it is hereby ordered as follows: 1. The Secretary of Commerce is hereby authorized and directed to take possession of all or such of the plants, facilities, and other property of the companies named in the list attached hereto, or any part thereof, as he may deem necessary in the interests of national defense; and to operate or to arrange for the operation thereof and to do all as necessary for, or incidental to, such operation. 2. In carrying out this order the Secretary of Commerce may act through or with the aid of such public or private nstrumentalities or persons as he may designate; and all Federal agencies shall cooperate with the Secretary of Commerce to the fullest extent possible in carrying out the pu 3. The Secretary of Commerce shall determine and prescribe terms and conditions of employment under which the plants, facilities, and other properties possession of which is taken pursuant to this order shall be operated. The Secretary of Commerce shall recognize the rights of work collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining, adjustment of grievances or other mutual aid or protection, provided that such activities do not interfere with the operation of such plants, facilities, and other properties. 4. Except so far as the Secretary of Commerce shall otherwise provide from time to time, the managements of the plants. facilities, and other properties possession of which is taken pursuant to this order shall continue their functions including the collection and disbursement of funds in the usual and ordinary course of business in the names of their respective companies and by means of any instrumentalities used by such companies 5. Except so far as the Secretary of commerce may otherwise direct, existing rights and obligations of such companies shall remain in full force and effect, and there may be made, in due course, payments of dividends on stock, and of principal, interest, sinking funds, and all other distributions upon bonds, debentures, and other obligations, and expenditures may be made for other ordinary corpor ess purposes. 6. Whenever in the judgment of the Secretary of Commerce further possession and operation by him of any plant, facility, or other property is no longer necessary or expedient in the interest of national defense, and the Secretary has reason to believe that effective future operation is assured, he shall return the possession and operation of such plant,shift facility, or other property to the company in possession and control thereof at the time possession was taken under this order. 7. The Secretary of Commerce is authorized to prescribe and issue such regulations and orders not inconsistent herewith as he may deem necessary or desirable for carrying out the purposes of this order; and he may delegate and authorize subdelegation of such of his functions under this order as he may deem desirable. Harry S. Truman. The White House, April 8, 1952 MR. JUSTICE FRANKFURTER, concurring. Before the cares of the White House were his own, President Harding is reported to have said that government after all is a very simple thing. He must have said that, if he said it, as a fleeting inhabitant of fairyland. The opposite is the truth. A constitutional democracy like ours is perhaps the most difficult of man's social arrangements to manage successfully. Our scheme of society is more dependent than any other form of government on knowledge and wisdom and self-discipline for the ason on the most extensive scale. The Founders of this Nation were not imbued with the modern cynicism that the only thing that history teaches is that it teaches nothing. They acted on the conviction that the experience of man sheds a good deal of light on his nature. It sheds a good deal of light not merely on the need for effective power, if a society is to be at once cohesive and civilized, but also on the need for limitat over the governed. To that end they rested the structure of our central government on the system of checks and balances. For them the doctrine of separation of powers was not mere theory; it was a felt necessity. Not so long ago it was fashionable to find our system of checks and balances obstructive to at system as outmoded-too easy. The experience through which the world has passed in our own day has made vivid the realization that the Framers of ou perienced doctrinaires. These long-headed statesmen had no illusion that our people enjoyed biological m the hazards of concentrated power. It is absurd to see a dictator in a representative product of the sturdy democratic traditions of the Mississippi Valley. y. It does come, however slowly, from the generative force of unchecked disregard of the restric ce in even the most disinterested assertion of authority. The Framers, however, did not make the judiciary the overseer of our government. They were familiar with the revisory functions entrusted to judges in a few of the States and power can be exercised only as to matters that were the traditional concern of the courts at Westminster, and only if they arise in ways that to the expert feel of lawyers cons stions that were the staple of judicial business, it is not for the courts to pass upon them unless they are indispensably involved in a conventional litigation - and then, only to the exten he narrow scope of the judicial function is especially demanded in contro use appeals to the Constitution. The attitude with which this Court must ap d with such issues is precisely the opposite of that normally manifested by the general public. So-called co popular mind. This eager a specific problem on the basis of the broadest possible constitutional pronouncements may not unfairly be ca minor national traits. An English observer of our scene has acutely described it: "At the first sound of a new argument over the United States Constitution and its interpretation the hearts of Americans earful joy. The blood stirs powerfully in their veins and a new lustre brightens their eyes. Like King Harry's men before Harfleur, they stand like greyhounds in the slips, straining upon the start." The Economist, May 10, 1952, p. 370. The path of duty for this Court, it bears repetition, lies in the opposite direction, Due regard for the implications of the distribution of powers in our Constitution and for the nature of the judicial process as the ultimate authority in interpreting the Constitution, has not only confined the Court within the narrow domain of appropriate adjudication. It