days as contrasted with the maximum delay of 80 days under Taft-Hartley. There had been a hearing on the issues in dispute and bargaining which promised settlement up to the very hour before seizure had broken down. Faced with immediate national peril through stoppage in steel production on the one hand and faced with destruction of the wage and price legislative programs on the other, the President took temporary possession of the steel mills as the only course open to him consistent with his duty to take care that the laws be faithfully executed.

Plaintiffs' property was taken and placed in the possession of the Secretary of Commerce to prevent any interruption in steel production. It made no difference whether the stoppage was caused by a union-management dispute over terms and conditions of employment, a union-Government dispute over wage stabilization or a management-Government dispute over price stabilization. The President's action has thus far been effective, not in settling the dispute, but in saving the various legislative programs at stake from destruction until Congress could act in the matter.

VI.

The diversity of views expressed in the six opinions of the majority, the lack of reference to authoritative precedent, the repeated reliance upon prior dissenting opinions, the complete disregard of the uncontroverted facts showing the gravity of the emergency and the temporary nature of the taking all serve to demonstrate how far afield one must go to affirm the order of the District Court.

The broad executive power granted by Article II to an officer on duty 365 days a year cannot, it is said, be invoked to avert disaster. Instead, the President must confine himself to sending a message to Congress recommending action. Under this messenger-boy concept of

the Office, the President cannot even act to preserve legislative programs from destruction so that Congress will have something left to act upon. There is no judicial finding that the executive action was unwarranted because there was in fact no basis for the President's finding of the existence of an emergency for, under this view, the gravity of the emergency and the immediacy of the threatened disaster are considered irrelevant as a matter of law.

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Seizure of plaintiffs' property is not a pleasant undertaking. Similarly unpleasant to a free country are the draft which disrupts the home and military procurement which causes economic dislocation and compels adoption of price controls, wage stabilization and allocation of materials. The President informed Congress that even a temporary Government operation of plaintiffs' properties was "thoroughly distasteful" to him, but was necessary to prevent immediate paralysis of the mobilization program. Presidents have been in the past, and any man worthy of the Office should be in the future, free to take at least interim action necessary to execute legislative programs essential to survival of the Nation. A sturdy judiciary should not be swayed by the unpleasantness or unpopularity of necessary executive action, but must independently determine for itself whether the President was acting, as required by the Constitution, to "take Care that the Laws be faithfully executed."

As the District Judge stated, this is no time for "timorous" judicial action. But neither is this a time for timorous executive action. Faced with the duty of executing the defense programs which Congress had enacted and the disastrous effects that any stoppage in steel production would have on those programs, the President acted to preserve those programs by seizing the steel mills.

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Compare Sterling v. Constantin, 287 U. S. 378, 399–401 (1932).

78-505 0-67-pt. 1-34

There is no question that the possession was other than temporary in character and subject to congressional direction-either approving, disapproving or regulating the manner in which the mills were to be administered and returned to the owners. The President immediately informed Congress of his action and clearly stated his intention to abide by the legislative will. No basis for claims of arbitrary action, unlimited powers or dictatorial usurpation of congressional power appears from the facts of this case. On the contrary, judicial, legislative and executive precedents throughout our history demonstrate that in this case the President acted in full conformity with his duties under the Constitution. Accordingly, we would reverse the order of the District Court.

VI-c. (Source: Archibald Cox. In Emergency Disputes and National Policy. New York, N.Y., Harper & Bros., Publishers, 1955, pp. 224-242)

SEIZURE IN EMERGENCY DISPUTES

BY ARCHIBALD COX

Harvard University

The haphazard evolution of "seizure" as a technique for dealing with national emergency disputes makes it appropiate to review what has been done in the name of seizure before turning to appraisal of its future uses and, finally, to a short analysis of the legal problems.1

THE HISTORY OF SEIZURE

In May 1941, North American Aviation and UAW-CIO locked horns in a labor dispute. Despite their agreement to continue production while the National Defense Mediation Board endeavored to arrange a settlement, pickets were posted about the plant in Inglewood, California. The Communist party line still called for impeding rearmament, and there was reason to believe that the picketing stemmed from Communist activities and that once the workers entered, the pickets would be removed. For the government to seek an injunction would provoke hostility, even if the Norris-LaGuardia Act were not an insuperable barrier. Use of troops to break the picket lines for a private employer would recall bloodshed reaching back to the Pullman strike of 1894. President Wilson's seizures of industrial property during World War I fur

For helpful and more detailed discussions of seizure, see Ludwig Teller, "Government Seizure in Labor Disputes," Harvard Law Review, LX (1947), p. 1017; Bertram F. Willcox and Elizabeth S. Landis, "Government Seizures in Labor Disputes," Cornell Law Quarterly, XXXIV (1948), p. 155.

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nished a happier example, for if the flag were raised over the premises and the workers were called upon to serve their government, a military squad might march through the picket line without reviving such bitter memories. Accordingly, the President directed the Secretary of War to take possession of the North American plant. Soldiers entered the plant, the flag was raised, and production was resumed immediately. The North American management continued to operate the business, and when the seizure ended thereafter, the government and company exchanged mutual releases. No one was concerned at that stage with the effect of seizure upon the parties' negotiations.

Several months later the National Defense Mediation Board recommended that Federal Shipbuilding and Dry Dock Company and Industrial Union of Marine and Shipbuilding Workers, CIO, include a maintenance-of-membership clause in their collective bargaining agreement. When the company refused, the union called a strike. After the company offered the shipyard to the Navy Department for immediate possession and operation, the President directed the Secretary of the Navy to take possession. The strike ended, and a little later the NDMB recommend. n was put into effect. As at North American, events marched too fast for precise analysis of legal problems concerning the status of workers and the rights and obligations of the government.

The Federal Shipbuilding seizure set a pattern followed throughout the war. Authority for the early seizures was found in the President's powers as Chief Executive and Commander-in-Chief of the Army and Navy. Later the War Labor Disputes Act provided statutory power to take possession of and operate for the government any "plant, mine or facility equipped for the manufacture, production, or mining of any articles or materials which may be required for the war effort or which may be useful in connection therewith.” Existing terms and conditions of employment were preserved except that the War Labor Board was authorized to order changes upon application of the agency operating the seized

establishment.

During World War II the primary goal of the national labor policy was maximum production of military equipment and essen257 Stat. 163 (1943).