Chapter V EXECUTIVE DIRECTIVES Strikes in major industries frequently raise the possibility of serious disruptions in the economy as a whole. During war they may cripple military production. Confronted by such strikes, Presidents have relied on a whole spectrum of authorities to terminate the threat and, whenever possible, resolve the labor-management dispute as well. Most of these responses were under the expressly delegated authority of Congress, but on at least one occasion a President relied solely on what he regarded as his right ful constitutional power. If normal labor-management negotiations have failed to head off a strike in a major sector of the economy, the typical Presidential response seems to be the establishment of an "emergency board" to mediate and report back to the President. Executive Orders 11276 (April 21, 1966) and 11694 (January 2, 1973) are included here as examples of this kind of action. Many hundreds of such boards have been set up over the last few decades, all by orders very similar in format to these. When it appears that whatever action the Executive may take will not avert serious economic dislocations, the President may set priorities for contract fulfillments, giving preference to governmental contractors or others whose activity he deems sufficiently important (50 U.S.C. App. 2071(a), based on the Defense Production Act of 1950). President Nixon relied upon this power in issuing Executive Order 11594 to set priorities in the use of other transportation facilities during a railroad strike in 1971. This authority could, however, be used in many other circumstances. On a number of occasions, especially in the wake of World War II, Presidents have felt it necessary actually to seize control of an industry and maintain its production in the face of a strike. This has, indeed, been done more than 70 times.1 In the period immediately after World War II, authority for such seizures was based on the Smith-Connally Act of 1945, formerly known as the War Labor Disputes Act. Executive Order 9728 is included here as an example of this kind of seizure. Subsequent to the Smith-Connally Act's expiration on June 30, 1947, some seizures were successfully based on the Transportation Act of 1916. Refusal to renew Smith-Connally in 1947 reflected a growing Congressional policy in the late 1940's to discourage plant seizures in response to labor disputes. During the Korean War President Truman 1 John L. Blackman, Jr., Presidential Seizure in Labor Disputes (Cambridge, 1967). 41-118 O 74 - 14 was confronted with a stoppage of steel production and was unable to find sufficient statutory authority on which to base seizure of that industry. He seized the steel plants, nonetheless (Executive Order 10340), citing his inherent powers under the Constitution as President and Commander-in-Chief. This action was litigated in the famous "Steel Seizure Case" (Youngstown v. Sawyer, 343 U.S. 579), in which the Supreme Court rejected Truman's claim of inherent Presidential power. The Court decided that, at least in areas where the President and Congress have overlapping constitutional powers, the President must defer to clear congressional policy as expressed in statutes. In Youngstown that policy, as clearly defined by legislative history, was not to allow such seizures, and therefore the Supreme Court ruled that President Truman's action was in excess of his legitimate power. A strike in the public sector-specifically, the postal service-has also occasioned extraordinary Presidential action. On March 23, 1970, President Nixon declared that the post office strike constituted a “national emergency" (Proclamation 3972), and called into active military service members of the Army and Air National Guards (Executive Order 11519) to handle the mails. As authority for this action he relied on 10 U.S.C. 3500 and 8500 empowering him to call up the Ready Reserve when he is "with the regular forces unable to execute the laws of the United States." It may be questioned whether a mail stoppage was envisioned in granting this power. In any event, the declaration of a full state of national emergency in these circumstances to meet a mail delivery strike activated all of the President's over 470 statutory emergency powers. As such, this action represents a good illustration of the broad use of "emergency" terminology and the manner in which it may, in fact, authorize powers far beyond those actually required by the particular events. Executive Order 9728-May 21, 1946 AUTHORIZING THE SECRETARY OF THE INTERIOR TO TAKE POSSESSION OF AND TO OPERATE CERTAIN COAL MINES WHEREAS after investigation I find and proclaim that there are interruptions or threatened interruptions in the operation of the mines producing bituminous coal as a result of existing or threatened strikes and other labor disturbances; that the coal produced by such mines is. required for the war effort and is indispensable for the continued operation of the national economy during the transition from war to peace; that the war effort will be unduly impeded or delayed by such interruptions; and that the exercise, as hereinafter specified, of the powers vested in me is necessary to insure the operation of such mines in the interest of the war effort and to preserve the national economic structure in the present emergency: NOW, THEREFORE, by virtue of the power and authority vested in me by the Constitution and laws of the United States, including Section 9 of the Selective Training and Service Act of 1940 (54 Stat. 892) as amended by the War Labor Disputes Act (57 Stat. 163), as President of the United States and Commander-in-Chief of the Army and Navy of the United States, it is hereby ordered as follows: 1. The Secretary of the Interior is authorized and directed to take possession of any and all such mines, and, to the extent that he may deem necessary, of any real or personal property, franchises, rights, facilities, funds, and other assets used in connection with the operation of such mines; to operate or to arrange for the operation of such mines in such manner as he may deem necessary in the interest of the war effort; and to do all things necessary for, or incidental to, the production, sale, and distribution of the coal produced, prepared, or handled by the said mines. 2. The Secretary of the Interior shall operate the said mines in accordance with such terms and conditions of employment as are in effect at the time possession thereof is taken, subject to the provisions of Section 5 of the War Labor Disputes Act. 3. Subject to the national wage and price stabilization policies as determined by the National Wage Stabilization Board and the Economic Stabilization Director, the Secretary of the Interior is authorized, pursuant to the provisions of Section 5 of the War Labor Disputes Act, following such negotiations as he may deem necessary with the duly constituted representatives of the employees, to apply to the National Wage Stabilization Board for appropriate changes in the terms and conditions of employment for the period of the operation of the mines by the Government. 4. In carrying out this order, the Secretary of the Interior shall act through or with the aid of such public or private instrumentalities or persons as he may designate. All Federal agencies are directed to cooperate with the Secretary of the Interior to the fullest extent possible in carrying out the purposes of this order. 5. The Secretary of the Interior shall make employment available and provide protection to all employees working at such mines and to all persons seeking employment so far as they may be needed; and upon the request of the Secretary of the Interior, the Secretary of War shall take such action, if any, as he may deem necessary or desirable to provide protection to all such persons and mines. 6. The Secretary of the Interior shall permit the managements of the mines taken under the provisions of this order to continue with their managerial functions to the maximum degree possible consistent with the aims of this order. 7. The Secretary of the Interior is authorized and directed to maintain customary working conditions in the mines and customary procedure for the adjustment of workers' grievances. He shall recognize the right of the workers to continue their membership in any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, provided that such concerted activities do not interfere with the operations of the mines. 8. Possession of any mine or mines taken under this order shall be terminated by the Secretary of the Interior as soon as practicable, but in no event more than sixty days after the restoration of the productive efficiency of any such mine or mines prevailing prior to the taking of possession thereof. HARRY S. TRUMAN Executive Order 10340-April 8, 1952 DIRECTING THE SECRETARY OF COMMERCE TO TAKE POSSESSION AND OPERATE THE PLANTS AND FACILITIES OF CERTAIN STEEL COMPANIES WHEREAS on December 16, 1950, I proclaimed the existence of a national emergency which requires that the military, naval, air, and civilian defenses of this country be strengthened as speedily as possible to the end that we may be able to repel any and all threats against our national security and to fulfill our responsibilities in the efforts being made throughout the United Nations and otherwise to bring about a lasting peace; and WHEREAS American fighting men and fighting men of other nations of the United Nations are now engaged in deadly combat with the forces of aggression in Korea, and forces of the United States are stationed elsewhere overseas for the purpose of participating in the defense of the Atlantic Community against aggression; and WHEREAS the weapons and other materials needed by our armed forces and by those joined with us in the defense of the free world are produced to a great extent in this country, and steel is an indispensable component of substantially all of such weapons and materials; and WHEREAS steel is likewise indispensable to the carrying out of programs of the Atomic Energy Commission of vital importance to our defense efforts; and WHEREAS a continuing and uninterrupted supply of steel is also indispensable to the maintenance of the economy of the United States, upon which our military strength depends; and WHEREAS a controversy has arisen between certain companies in the United States producing and fabricating steel and the elements thereof and certain of their workers represented by the United Steel Workers of America, CIO, regarding terms and conditions of employment; and WHEREAS the controversy has not been settled through the processes of collective bargaining or through the efforts of the Government, including those of the Wage Stabilization Board, to which the controversy was referred on December 22, 1951, pursuant to Executive Order No. 10233, and a strike has been called for 12:01 A.M., April 9, 1952; and WHEREAS a work stoppage would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field; and WHEREAS in order to assure the continued availability of steel and steel products during the existing emergency, it is necessary that the United States take possession of and operate the plants, facilities, and other property of the said companies as hereinafter provided: NOW, THEREFORE, by virtue of the authority vested in me by the Constitution and laws of the United States, and as President of the United States and Commander in Chief of the armed forces of the United States, it is hereby ordered as follows: 1. The Secretary of Commerce is hereby authorized and directed to take possession of all or such of the plants, facilities, and other property of the companies named in the list attached hereto, or any part thereof, as he may deem necessary in the interests of national defense; and to operate or to arrange for the operation thereof and to do all things necessary for, or incidental to, such operation. 2. In carrying out this order the Secretary of Commerce may act through or with the aid of such public or private instrumentalities or persons as he may designate; and all Federal agencies shall cooperate with the Secretary of Commerce to the fullest extent possible in carrying out the purposes of this order. 3. The Secretary of Commerce shall determine and prescribe terms and conditions of employment under which the plants, facilities, and other properties possession of which is taken pursuant to this order shall be operated. The Secretary of Commerce shall recognize the rights of workers to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining, adjustment of grievances, or other mutual aid or protection, provided that such activities do not interfere with the operation of such plants, facilities, and other properties. 4. Except so far as the Secretary of Commerce shall otherwise provide from time to time, the managements of the plants, facilities, and other properties possession of which is taken pursuant to this order shall continue their functions, including the collection and disbursement of funds in the usual and ordinary course of business in the names of their respective companies and by means of any instrumentalities used by such companies. 5. Except so far as the Secretary of Commerce may otherwise direct, existing rights and obligations of such companies shall remain in full force and effect, and there may be made, in due course, payments of dividends on stock, and of principal, interest, sinking funds, and all other distributions upon bonds, debentures, and other obligations, and expenditures may be made for other ordinary corporate or business purposes. 6. Whenever in the judgment of the Secretary of Commerce further possession and operation by him of any plant, facility, or other property is no longer necessary or expedient in the interest of national defense, and the Secretary has reason to believe that effective future operation is assured, he shall return the possession and operation of such plant facility, or other property to the company in possession and control thereof at the time possession was taken under this order. 7. The Secretary of Commerce is authorized to prescribe and issue such regulations and orders not inconsistent herewith as he may deem necessary or desirable for carrying out the purposes of this order; and he may delegate and authorize subdelegation of such of his functions under this order as he may deem desirable. HARRY S. TRUMAN |