The function of making laws is
peculiar to Congress, and the Executive can not exercise that function
to any degree. But this is not to say that all of the _subjects_
concerning which laws might be made are perforce removed from the
possibility of Executive influence. The Executive may act upon things
and upon men in many relations which have not, though they might have,
been actually regulated by Congress. In other words, just as there are
fields which are peculiar to Congress and fields which are peculiar to
the Executive, so there are fields which are common to both, in the
sense that the Executive may move within them until they shall have
been occupied by legislative action. These are not the fields of
legislative prerogative, but fields within which the lawmaking power may
enter and dominate whenever it chooses. This situation results from the
fact that the President is the active agent, not of Congress, but of the
Nation. As such he performs the duties which the Constitution lays upon
him immediately, and as such, also, he executes the laws and regulations
adopted by Congress. He is the agent of the people of the United States,
deriving all his powers from them and responsible directly to them. In
no sense is he the agent of Congress. He obeys and executes the laws of
Congress, not because Congress is enthroned in authority over him, but
because the Constitution directs him to do so. Therefore it follows that
in ways short of making laws or disobeying them, the Executive may be
under a grave constitutional duty to act for the national protection in
situations not covered by the acts of Congress, and in which, even, it
may not be said that his action is the direct expression of any
particular one of the independent powers which are granted to him
specifically by the Constitution. Instances wherein the President has
felt and fulfilled such a duty have not been rare in our history,
though, being for the public benefit and approved by all, his acts have
seldom been challenged in the courts."[446]

Concurring Opinions

Justice Frankfurter begins the material part of his opinion with the
statement: "We must * * * put to one side consideration of what powers
the President would have had if there had been no legislation whatever
bearing on the authority asserted by the seizure, or if the seizure had
been only for a short, explicitly temporary period, to be terminated
automatically unless Congressional approval were gi