JURISDICTION OF BOARD—MUNICIPAL DISPUTES—EXECUTIVE ORDER CREATING BOARD -CONSTITUTIONAL SOVEREIGNTY OF LOCAL GOVERNMENTS-ADVISORY RECOMMENDATIONS-DETERMINATION IN INDIVIDUAL CASES Board does not have jurisdiction of disputes between local governments and their employees, since (1) Board's jurisdiction, powers, and duties are derived from Executive Order creating Board and such Order does not delegate any authority to Board over such disputes and (2) if such delegation had been attempted, sovereignty of local governments would have been violated, at least in absence of showing in given case that local governmental processes had broken down to detriment of war effort. Although Board does not have jurisdiction finally to determine disputes be tween local governments and their employees, Board will determine in specifie cases whether to render advisory opinion or make recommendations for settlements of such disputes where parties mutually request Board assistance. Unanimous decision of Board rejecting panel report in Case No. 47. Opinion by Wayne L. Morse, public member. Public members concurring: William H. Davis, George W. Taylor, and Frank P. Graham. Employer members concurring with separate opinion: Roger D. Lapham, Cyrus S. Ching, Harry L. Derby, and Reuben B. Robertson. Labor members concurring with statement of belief that discussion of right of government employees to strike is irrelevant: Matthew Woll, George Meany, Van. A. Bittner, and Delmond Garst RESOLUTION OF THE BOARD After careful consideration of all the matters presented to the National War Labor Board at and in connection with the public hearings on December 9, 1942, the Board finds that it has no power under Executive Order No. 9017 to issue any directive order or regulation in these disputes governing the conduct of the State or municipal agencies involved. OPINION OF THE BOARD The National War Labor Board is unanimously of the opinion that as a matter of law, it does not have jurisdiction over labor disputes between State governments, including political subdvisions thereof, and their public employees. The well-established doctrines in American law pertaining to the sovereign rights of State and local governments clearly exclude such disputes from the jurisdietion and powers of the Board. It is to be remembered that the National War Labor Board is the creature of the President and its jurisdiction and authority is circumscribed by the language of the Executive Order of January 12, 1942, as supplemented by Executive Order of October 3, 1942. There is no doctrine more firmly established in American jurisprudence than the one that State governments and their subdivisions within the sphere of their own jurisdiction are sovereign. This sovereignty cannot be interfered with or encroached upon by the United States Government. Under the Constitution of the United States, the powers possessed by the Federal Government are commonly expressed as "delegated" powers, whereas the powers possessed by the states are termed “reserved” powers. Thus there is a division of powers between the Government of the United States and the government of the states, the former possessing only the powers granted to it by the Constitution and the latter having the vast residue of powers which have not been granted to the Federal Government and which have not been denied to them by implication. This fundamental concept was admirably summarized by Barbour, J., in the United States Supreme Court case of New York v. Miln: 2 "We choose rather to plant ourselves on what we consider impregnable positions. They are these: That a State has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign bation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States. That, by virtue of this, it is not only right, but the bounden and solemn duty of a State, to advance the safety, happiness, and prosperity of its people, and to provide for its general welfare, by any and every act of legislation which it may deem to be conducive to these ends; where the 1 See 1 Willoughby Constitutional Law (2d ed. 1929), § 45. 11 Peters 102, 139 (1837). A or power over the particular subject, or the manner of its exercise is not surrendered or restrained, in the manner just stated. That all those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these, the authority of a state is complete, unqualified, and exclusive." Illustrative of the doctrine that the United States is without power to encroach upon the sovereign rights of the several states is the relatively early decision of the United States Supreme Court wherein it was held that the United States could not tax the revenues of the city of Baltimore either directly or indirectly and that a federal statute which attempted indirect taxation of that type was void. Another decision emanating from our highest court decided that matters pertaining to titles and modes of disposing of real property within a state could not be placed within the control of the Federal Government.1 In the famous case of Gibbons v. Ogden, the United States Supreme Court made these comments with reference to the enactment of certain state inspection laws: "They act upon the subject, before it becomes an article of foreign commerce, or of commerce among the states, and prepare it for that purpose. They form a portion of that immense mass of legislation, which embraces everything within the territory of a state, not surrendered to the general government; all of which can be most advantageously exercised by the states themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state, and those which respect turnpike-roads, ferries, etc., are component parts of this mass." Only a few of the very large body of cases which uphold this fundamental doctrine of division of powers are cited below. The states have the undisputed power to regulate working hours of those who are deemed to require special protection of the state. Thus, the United States Supreme Court has upheld the validity of state statutes regulating the hours of work of children and women. It has never been suggested that the state lacks power to limit the hours of labor of its own employees. Rather, it has been held to be within the power of the state to limit the hours of labor of those in its employ. Furthermore, the multitude of details pertaining to the compensation of municipal employees may be governed either by statutory, charter, or ordinance provisions.10 It has never been suggested that the Federal Government has the power to regulate with respect to the wages, working hours, or conditions of employment of those who are engaged in performing services for the States or their political subdivisions. Any action by the National War Labor Board in attempting to regulate such matters by directive order would be beyond its powers and jurisdiction. The employees involved in the instant cases are performing services for political subdivisions of State governments. Any directive order of the National War Labor Board which purported to regulate the wages, the working hours, or the conditions of employment of State or municipal employees would constitute a clear invasion of the sovereign rights of the political subdivisions of the local State government. Does the fact that the Nation is at war lessen in any way the sovereign rights of local State governments? Clearly not. However, the existence of war does call upon Congress and the executive branch of the Federal Government to exercise their war powers within the framework of the Constitution. The exercise of those war powers in the interest of the common defense and for the purpose of preserving our republican form of government, including the sovereign rights of local State governments, necessitates Federal wartime orders and restrictions which, on the surface, may seem to encroach upon so-called fundamental and Inalienable rights of individuals and sovereign rights of local governments. ted States v. Railroad Company, 84 U. S. 322 (1872). Laited States v. For, 94 U. S. 315 (1876). 19 Wheat. 1, 203 (1824). Lane County v. Oregon, 7 Wall. 71 (1868). United States v. Crinchshank, 92 Ú. S. 542 (1875). See People v. Orange County Road Construction Company, 175 N. Y. 84, 89; 64 N. E. 129 (1903). 10 37 Am. Jur. 879, § 255. Aff'd 243 U. S. 629 (1916). There have always been those among us in past wars, as well as in this one, who have insisted that the war powers of the Congress and of the President must be strictly construed and that the Constitution must be given a literal and statie meaning. Fortunately, our forefathers who wrote the Constitution apparently were familiar with the unpredictable exigencies of war and recognized that a war cannot be waged successfully by the sovereign States, and hence they vested broad powers in Congress and the President to wage war in the common defense. The granting of that power to the Federal Government did not impair the sovereignty of the States under our republican form of government, but rather provided for the preservation of that sovereignty. Apparently recognizing that time is of the essence in the successful prosecution of a war and that power to take quick action on the part of the Commander in Chief may, under certain circumstances, mean the difference between a battle lost or won, or between victory and defeat in the total war effort, the framers of the Constitution did not phrase the war powers of Congress and of the President in language so narrow in meaning as to make it impossible for them to act in the interest of the common defense without first obtaining a court interpretation or a constitutional amendment. The briefs and arguments of some of the counsel appearing in this case in behalf of the local governments cited controlling court decisions as to the extent of the war powers of Congress and of the President. Then counsel proceeded to place very narrow and restrictive interpretations upon the language used by the courts in the cases cited, with the result that their interpretations do violence, not only to the meaning of the language of the courts, but also to the meaning of the clear language of the Constitution itself. Thus, in interpreting the language of the United States Supreme Court in the recent case of ex parte Quirin," counsel arued that the war powers of the President "of necessity must stem from congressional action." Counsel then admitted that the President, as Commander in Chief of the Army and Navy, does possess such implied war powers as are necessary to carry into effect the successful prosecution of the war by the Army and Navy. However, counsel seemed to question whether or not such implied powers give to the President, in the absence of congressional action, authority to create by Executive order a War Labor Board with jurisdiction to finally determine labor disputes including disputes between local governments and their employees. Counsel is quite right that any attempt upon the part of the War Labor Board to exercise jurisdiction over disputes between local governments and their em ployees would invade the sovereign rights of local government. However, it would be a strict interpretation of the Constitution indeed if it were to be held that the war powers of the President are so limited in their constitutional meaning as to prevent his controlling industrial disturbances which threatened to interfere with the war effort. Modern warfare requires the cooperative and coordinated effort of the productive resources of the Nation to the end of supplying the armed forces with the maximum supply of the materials of war in the shortest possible time. The winning of the battle of production is a condition precedent to the winning of victories by our armed forces on land, sea, and in the air. The constitutional power entrusted to the President to serve as Commander-in-Chief of the Army and of the Navy, by necessary implication in light of the needs and techniques of modern warfare, empower him to intervene when the lines of war production are broken by labor disputes. Thus the President in this war, as did the President in the last World War, has, by executive order, created the National War Labor Board to finally determine labor disputes in private industry." Even though the War Labor Board does not have jurisdiction in the instant case, it does not follow that local governments in time of war are free, under the doctrine of sovereignty, to follow any course of action they care to in regard to their relations with their employees irrespective of the effects of a particular policy upon the prosecution of the war. The doctrine of sovereignty is not a "suicidal doctrine." It does not empower local governments to impede the war "Ez parte Quirin, 63 Supreme Court Reporter 2 (1942). 12 As the War Labor Board stated in its decision of July 6, 1942, in the Little Steel case "As Commander in Chief in time of war, the President's authority extends not only to matters of strictly military nature or to problems directly related to military activity, but also to whatever phases of civilian life must be controlled in order to prosecute the war successfully. The history of this Nation is replete with instances in which our war Presidents have exercised very broad and sweeping powers. Congress Itself has on many occasions recognized that it is necessary for the President to exercise broad war powers and hence has passed many statutes implementing those powers." ffort. It is not a legalistic refuge or political sanctuary in which local govrnments can escape a full and complete participation and cooperation in adancing the Nation's war program.. The doctrine of sovereignty cannot be considered and applied in a vacuum, ut must be recognized as a dynamic legal concept possessing meaning only when related to factual situations. War emergencies necessarily give rise to any factual situations which call for the exercise by the Federal Government, within the boundaries of the several States, of the war-power provisions of the Constitution. The exercise of such powers must be in the interest of national reservation, but the very nature of the problems incident to waging war in the ommon defense make it necessary that Congress and the President exercise broad discretion in carrying out their war powers. The test must necessarily e whether the operative facts of a given emergency are inimical to a successful rosecution of the war, thereby necessitating congressional or executive action. f such action is consonant with war powers expressly provided or necessarily mplied from such express provisions in the Constitution, there can be no sound constitutional objections to their exercise on the basis of any claimed violation of sovereignty. In the recent case of ex parte Quirin," decided October 29, 1942, the opinion of the United States Supreme Court states: "We are not here concerned with any question of the guilt or innocence of petiioners. Constitutional safeguards for the protection of all who are charged with offenses are not to be disregarded in order to inflict merited punishment on some who are guilty. Ex parte Milligan, supra, 4 Wall. 119, 132, 18 L. Ed. 281; Tumey v. Ohio, 273 U. S. 510, 535, 47 S. Ct. 437, 445, 71 L. Ed. 749, 50 A. L. R. 1243; Hill v. Teras, 316 U. S. 400, 62 S. Ct. 1159, 1161, 1162, 86 L. Ed.But the detention and trial of petitioners-ordered by the President in the declared exercise of his power as Commander in Chief of the Army in time of war and of grave public danger-are not to be set aside by the courts without the clear conviction that they are in conflict with the Constitution or laws of Congress constitutionally enacted. "Congress and the President, like the courts, possess no power not derived from the Constituion. But one of the objects of the Constitution, as declared by its preamble, is to 'provide for the common defence.' As a means to that end the Constitution gives to Congress the power to 'provide for the common Defence' (Art. I, Sec. 8, cl. 1); "To raise and support Armies,' 'To provide and maintain a Navy' (Art. I, Sec. 8, cl. 12, 13); and To make Rules for the Government and Regulation of the land and Naval Forces' (Art. I, Sec. 14). Congress is given authority "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water' (Art. I, Sec. 8, cl. 11); and 'To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations' (Art. I, Sec. 8, cl. 10). And finally the Constitution authorizes Congress "To 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 (Art. I, Sec. 8, cl. 18). "The Constitution confers on the President the 'executive Power' (Art. II, Sec. 1. cl. 1) and imposes on him the duty to take Care that the Laws be faithfully executed' (Art 11, Sec. 3). It makes him the Commander in Chief of the Army and Navy (Art. II. Sec. 2, cl. 1) and empowers him to appoint and commission officers of the United States (Art. 11, Sec. 3, cl. 1). "The Constitution thus invests the President as Commander in Chief with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offences against the law of nations, including those which pertain to the conduct of war." The language of the court in the Quirin case does not support the very narrow interpretation placed upon it by counsel in the instant case. Rather it would Seem clear that the decision is entirely consistent with the view that the President as Commander in Chief of the Army and Navy is vested with power to wage war which Congress has declared and to carry into effect all laws passed by Congress for the conduct of war. The decision does not hold that in the exercise of his war powers the President can take no action in waging war for the common defense unless Congress has specifically legislated upon the point. It would seem clear that the decision is consistent with the view that as Commander in Chief of the "Supra, note 11, at 9-10. Army and the Navy, the President possesses the constitutional power, by neces sary implication, to take such steps as are required by war exigencies to wage war in the common defense. As the court says "Congress and the President, like the courts, possess no power not derived from the Constitution." However, Art. II. Sec. 2, cl. 1 of the Constitution provides that "the President shall be Commander in Chief of the Army and Navy of the United States and of the militia of the seteral states when called into the actual services of the United States; * This constitutional provision is phrased in broad terms and by necessary implication would seem to give to the President the broad latitude as Commander in Chief to wage war in the common defense in the interest of preserving our repub lican form of government. It was on the basis of such an interpretation of the war powers of the President that the National War Labor Board stated on July 16, 1942, in its decision in the Little Steel case [1 War Lab. Rep. 325] : "A basic reason for the war powers of the President not being subject to exact delineation is that they must be exercised in the light of facts existing during a time of emergency. War powers are by their very nature extraordinary powers designed to meet a situation wherein ordinary legal process is inadequate to meet the war emergency. They are not subject to examination through the magnifying glass of strict legalistic doctrine or technical legal rules applicable to peacetime situations. "It might be said that they are powers which are governed by the laws of national preservation rather than by the rules of the common law. They are powers which contemplate immediate action in order that the President or his agents may preserve, protect, and defend the Constitution of the United States? (Art. II, Sec. 1) and, in order that in so preserving the Constitution, the Presi dent may fulfill its guarantee that The United States shall guarantee to every State in this Union a republican form of government and shall protect each of them against invasion (Art. IV, Sec. 4).'" It does not follow that the war powers of the President are unlimited powers, but rather the contrary is true. He possesses only such powers necessary for the performance of his constitutional duties." Applying the foregoing discussion of the war powers of the President to the facts in the instant case, three things become clear. First, such jurisdiction, powers, and duties which the War Labor Board possesses stem directly from the President's war powers because the Board is the creature of an Executive Order Second, the language of the Executive Order creating the Board does not purport to delegate any authority to the Board over disputes between local governments and their employees. Third, even if such a delegation of power had been attempted, the sovereignty of local governments would have been violated thereby at least in the absence of a showing in a given case that local governmental processes had broken down to the detriment of the war effort. It is conceivable that a dispute between a local government and its employees might reach such a point of disturbance as to impede and interfere with the suc cessful prosecution of the war. Such a case would be an extraordinary one indeed, but, should it occur, it is unthinkable that the doctrine of sovereignty as applied to local governments would be so interpreted as to deny to the President as Commander in Chief of the Army and Navy the power to take such aétion in the premises as might be necessary to carry on a particular service, the disruption of which was impeding the war effort. The sound constitutional doctrine that "The Constitution and all its provi sions look to an indestructible union composed of indestructible states" would become meaningless if, under such circumstances, the doctrine of sovereignty were to be raised as a bar to intervention by the Federal Government. Such an interpretation of the doctrine of sovereignty would certainly be an empty one. To insist upon it at the risk of injuring the war effort would amount to a defense of The following is a quotation from the National War Labor Board's decision of July 16, 1942. in the Little Steel case (1 War Lab. Rep. 325) ; This is brought out very clearly in a letter which Mr. Justice Frank Murphy wrote to the President of the Senate on October 4, 1939, when he was still Attorney General He stated: **The Executive has powers not enumerated in the statutes---powers derived not from statutory grants but from the Constitution. It is universally recognized that the Consti tutional duties of the Executive carry with them the constitutional powers necessary for their proper performance. These Constitutional powers have never been expressly defin st and in fact, cannot be, since their extent and limitations are largely dependent upon conditions and circumstances, In a measure this is true with respect to most of the powers of the Executive, both Constitutional and statutory. The right to take specific action might not exist under one state of facts, while under another it might be the absolute duty of the Executive to take such action.'" |