Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

Attempting to insure that employment opportunities created by the induction of young men into the service did not accrue to members of groups then opposing the American defense effort, Congress, in enacting the Selective Training and Service Act of 1940, stipulated that whenever a vacancy was caused in the employment rolls of any business or industry by reason of an employee’s induction into the Armed Services of the United States, the vacancy could not be filled by any person then a member of the Communist Party or the German-American Bund.[243] Ten days after Pearl Harbor, restraints were placed on the liberty of maritime employers to hire radio operators for service on American flag vessels. For the duration of war emergency it became unlawful to employ any person to serve as radio operator aboard any vessel (other than a vessel of foreign registry) if the Secretary of the Navy (1) had disapproved such employment for any specified voyage, route, or area of operation, and (2) had notified the master of the vessel of such disapproval prior to the vessel’s departure.[244]

Since the war, no less significant prohibitions have been placed on public or private employment of members of communist organizations. The effect thereof will be determined by the success of the Subversive Activities Control Board in compelling the registration of such groups. Section 5 of the Internal Security Act of 1950 makes it illegal for members of registered communist organizations to conceal or fail to disclose such membership in seeking or accepting any employment in any defense facility, as defined and listed by the Secretary of Defense. This provision was extended to make illegal defense employment for members of registered “Communist action” groups.[245]

It may be noted that the Butler Bill of April 1955 would have empowered the President to establish procedures for screening any person in defense employment “as to whom there is reasonable cause to believe may engage in sabotage, espionage, or other subversive acts.” This process of screening also would be applied to firms seeking or holding defense contracts. Thus, increasingly access of private firms to government contracts as well as access of individuals to jobs under such contracts, which today may be the staff of life, is being restricted. Contributing to this trend is the provision in the Rubber Producing Facilities Disposal Act of 1953 that purchase proposals shall not be accepted from any person who has not identified his principal, or is not financially responsible, or is a poor security risk.[246]

Freedom of employees to strike defense industries or to engage in so-called emergency strikes has on occasion been severely limited. The War Labor Disputes Act of 1943 required that the government be given notice of labor disputes, and that production continue for a period of thirty days after notice of intention to strike. A secret ballot of employees had to be conducted prior to calling a strike.[247] The President was granted ultimate power to seize plants if necessary to avoid interruption of war production occasioned by labor disputes, and interference with government operation of such plants was made illegal.[248] The plants were to be operated under the terms and conditions of employment which were in effect at the time possession was taken by the government.[249]

In the post-war Labor-Management Relations Act a national emergency strike is defined as one imperiling “the national health or safety.”[250] When, in the opinion of the President, a threatened or existing strike or lockout affecting an entire industry or a substantial part thereof imperils the national health or safety, he may appoint a board of inquiry to inquire into the issues involved in the dispute and to make a written report to him within such time as he shall prescribe.[251] When the President has received a report from a board of inquiry, he may direct the Attorney General to petition any district court of the United States having jurisdiction of the parties to enjoin such strike or lockout or its continuance, and if the court finds that a threatened or actual strike or lockout (1) affects an entire industry or a substantial part thereof engaged in trade, commerce, transportation, transmission, or engaged in the production of goods for commerce; and (2) if permitted to occur or to continue, will imperil the national health or safety, it shall have jurisdiction to enjoin any such strike or lockout.[252]

The President will be advised of such a strike or lockout sufficiently in advance of its occurrence because Section 8 (d) of the Act requires 60 days’ written notice of termination or modification of a collective bargaining contract, and notification of the Federal Mediation and Conciliation Service and equivalent state or territorial services within thirty days after such notice of the existence of a dispute.[253]

Looking to restrictions upon federal employment, it is convenient to begin with 1940, the year in which, in an effort to expedite the strengthening of the national defense, Congress gave the Secretary of War limited power to remove army civil service employees for security reasons. The Secretary might remove from the classified civil service of the United States any employee of the Military Establishment forthwith if he found that such person had been guilty of conduct inimical to the public interest in the defense program of the United States, and if the person terminated had received notice of the charges.[254] Discharged employees were given the opportunity within thirty days of removal to answer charges in writing and to submit affidavits in support of written answers.[255]

Great discretion was permitted the civilian heads of the armed services in promoting or demoting regular officers during wartime, and as early as July 29, 1941 the President signed a Joint Resolution giving the Secretary of War power during the time of the national emergency to remove any officer from the active list of the Regular Army. The only restriction on the exercise of this power was that a comparison of the officer’s performance-of-duty record with those of his fellow officers would be made. But retention in or dismissal from the active list, of any officer, ultimately could be determined by the Secretary,[256] even though affected officers were guaranteed a hearing before a board of not less than five general officers prior to separation.[257] Supplementing this was the provision that no payment could be made from money appropriated in the Act to any officer on the retired list of the Army who, for himself or for others, was engaged in the selling or the sale of any war materials or supplies either to the Army or the War Department.[258]

Since 1950 it has become common practice for the Congress to attach to appropriation bills the provision that no salary or wages will be paid from any appropriation to an individual who either asserts the right to strike against the Government or belongs to an employees’ organization asserting this right. And no monies will be paid to an individual who advocates or is a member of an organization that advocates the overthrow of the Government of the United States.[259] The Defense Production Act of 1950 contained this type of provision.[260] It further provided that an affidavit shall be prima facie evidence that the person making it has acted contrary to the statute.[261] Agencies also have been delegated broad power to suspend employees deemed security risks. An August, 1950 statute permitted the heads of the State, Commerce, Defense, Justice, and Treasury Departments, the Secretaries of the Army, Navy and Air Force, and others, in their absolute discretion and when deemed necessary in the interest of the national security, to suspend, without pay, any civilian official or employee.[262] Following notice and an opportunity to the suspended employee to submit statements and affidavits, and after investigation and review by the employing agency, his employment might be terminated as necessary or advisable in the interest of the national security. Since the employee is informed of the reasons for his suspension only to the extent that such agency head determines that the interests of the national security permit, he may encounter difficulty in formulating his defense.

Interestingly enough while military emergency may be assigned as justifiable for banning or terminating employment of persons on the basis of their political affiliations, Congress has recognized that other kinds of emergency may require temporary suspension of such disqualifications to federal employment. The Department of Interior Appropriation Act of 1948 provided that in cases of emergency, caused by fire, flood, storm, act of God, or sabotage, persons might be employed for periods of not more than thirty days and be paid salaries and wages without the necessity of inquiring into their membership in any organization.