Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

In his dissenting opinion Chief Justice Vinson maintained that the majority justices had each assumed the unarticulated major premise that the emergency was not of sufficient gravity to warrant the mode of action adopted by the President. The Chief Justice chided his colleagues for not weighing the magnitude of the emergency accurately.[800] But this seems hardly a warrantable criticism of a group of opinions which manifested little concern with substantive constitutional limitations upon executive emergency action, but rather emphasized the necessity for compliance with a congressional program anticipating such an emergency and prescribing the mode of response to it.

THE STEEL STRIKE OF 1959

In 1959 the nation’s great steel industry once again occupied the center of a dispute which had far reaching consequences.

The dispute was that between representatives of the twelve largest steel producers in the United States and representatives of the United Steelworkers of America, the union representing most of the non-supervisory employees employed in the steel industry.

As the time for negotiating new contracts between the union and the steel companies drew near the deadline date of June 30, 1959, it became evident to representatives of both labor and management that no agreement for new contracts would be reached. Shortly before the June 30th deadline the parties agreed at the request of President Eisenhower, to extend the old agreements for two weeks. By July 15, there was still no settlement, and a strike by 500,000 steelworkers began immediately.

From July until early November the steelworkers refused to return to their jobs. Although negotiations continued between union and management representatives no settlement of the dispute was reached. The President sought during the 116 day old strike to have the strike settled without recourse to the Labor-Management Relations Act (Taft-Hartley) of 1947. On September 8, President Eisenhower wrote a letter to the United Steelworkers of America and to the steel companies in which he expressed disappointment that so little progress toward settlement of the steel dispute had been made, and he urged the parties to act expeditiously to reach agreement.[801]

As the impact of the strike was felt in an ever-widening sector of the American economy, the President of the United States took the first step under the Labor Management Relations Act of 1947[802] by issuing Executive Order No. 10843 pursuant to section 206 of the Act.[803] He appointed a board of inquiry to inquire into the issues involved in the dispute and to make a written report to him. In the Executive Order, the President expressed the opinion that the strike, if permitted to continue would imperil the national health and safety. In his statement explaining his issuance of the Executive Order, the President pointed to the “shutting off” of practically all new supplies of steel, the unemployment of hundreds of thousands of employees in steel and related industries, and the imminent threat to the economic health of the nation if production was not quickly resumed.

The Board of Inquiry submitted its written report to the President on October 19[804] setting forth a summary of the negotiations up to October 19 and the issues in dispute between the parties.[805] The Board concluded that “we see no prospects for an early cessation of the strike. The Board cannot point to any single issue of any consequence whatsoever upon which the parties are in agreement.”[806]

Upon receiving the report, the President directed the Attorney General to petition any district court having jurisdiction over the parties to enjoin the continuance of the strike and to order such other relief as might be necessary or appropriate.

On October 20, 1959, the Attorney General filed a petition in the United States District Court for the Western District of Pennsylvania, seeking an injunction against the union and the steel companies pursuant to section 208 of the Taft-Hartley Act.[807] The Government’s petition described the requisite statutory steps which had been taken by the President, and alleged that prolongation of the widespread strike in the steel industry would imperil the health and safety of the country. In summary form the petition stated some of the consequences of the strike on employment, both in the steel industry and many other areas of the economy, on the availability of essential steel products, and on vital national defense projects.[808] The strike had shut down approximately 85 percent of the steel producing capacity of the United States. More than 765,000 persons had been made idle by the strike. If it were allowed to continue, strike-caused unemployment would have reached three million by January 1, 1960.