“... The statute was designed to provide a public remedy in times of emergency; we cannot construe it to require that the United States either formulate a reorganization of the affected industry to satisfy its defense needs without the complete reopening of closed facilities, or demonstrate in court the unfeasibility of such a reorganization. There is no room in the statute for this requirement which the petitioner seeks to impose on the Government.”[812]
The steel strike was finally settled on January 4, 1960, following all-night negotiations between the Vice-President, the Secretary of Labor, representatives of the steel companies and representatives of the steel companies and representatives of the steelworker’s union. Vice-President Nixon and Secretary of Labor Mitchell, acting under instructions from President Eisenhower, had been conducting negotiations for several weeks with the parties to the dispute.
While all parties involved were gratified to have this long and costly strike ended, the method of settlement does not confirm the efficacy of the emergency provision of the Taft-Hartley Act. Indeed, it is further confirmation of the fact that the American approach to emergency powers has imposed upon successive executives, not only the incentive, but the absolute need to resort to extra-statutory means for settling emergencies.
Chapter XI
CONCLUSIONS
The doctrine of constitutional dictatorship is inappropriate for analysis of the problem of democratic response to emergency.
Judicial review of a chief executive’s finding that an emergency exists amounts to involvement of Supreme Court Justices in a genre of decision-making which should more properly be performed by the President and Congress, although the 1959 Steel Seizure decision reveals the effective role which the Supreme Court may play in holding the President to the forms of emergency action prescribed by the Congress, if the Congress has so prescribed them.
The recurrent trouble which the nation has confronted in taking timely and effective emergency action at the national level stems from the existence on the statute books of a confusing array of provisions for the declaration of various kinds of emergency, and the excessively precise definition of the techniques which must be employed in coping with the emergency. This invites efforts at evasion of statutory limitations as in the instance of the 1952 steel strike, or requires recurrent special legislation dealing with successive particularized emergencies. Also, in forewarning the private parties in dispute, in the case of a strike, of the precise time-table and program of action to which the executive must adhere, it may lessen their incentive to settle the dispute, for the course of action prescribed by statute may, depending upon the situation, strengthen the bargaining position of one of the disputants.
The recent use of the concurrent resolution in Congress provides a key to the means for equipping the President with the broad discretion he should have to identify conditions warranting emergency action, and to select the appropriate tools to deal with an emergency, while simultaneously keeping him under Congressional surveillance and control.
We propose a generic statute to empower the President to proclaim a national or regional emergency. Under such a proclamation the President may issue rules and regulations which have the force of law. A proclamation of emergency would be placed before the Congress within twenty-four hours of its issuance. If Congress were not in session, it would be called into session within five days from the time of the declaration of emergency. The proclamation of emergency would stand unless revoked by concurrent resolution by both Houses of Congress within five days of Congress’ coming into special session.
The rules and regulations issued under the proclamation would be similarly subject to revocation by concurrent resolution and Congress should possess the item veto in this respect; i.e., it may revoke one rule, while permitting others to stand. An emergency proclamation and regulations issued under it, would automatically expire after thirty days, but would be subject to reissuance by the President, provided the Congress concurred. Congress, upon the issuance of an emergency proclamation would establish a scrutiny committee on emergency powers, patterned after the Joint Committee on Atomic Energy. Congress would maintain continuous scrutiny of the administration of powers exercised under the proclamation. The Committee’s primary responsibility would be to keep Congress sufficiently advised as to whether powers had been responsibly administered.