the determination of rights, and I would say that I am in favor of having a provision in this bill so clear that no human being can misunderstand it, a provision giving to the President the right to secure an injunction.

Now, as to the details of it-I mean in the event of national emergency, as to the details of the procedure, I do not know how much in detail it would be necessary to set forth the procedure, but certainly there ought to be enough in the bill to make it clear beyond peradventure of doubt that the right to secure the injunction is provided for and specified in the bill.

If on the other hand we do not desire to have an injunctive right, if we do not like it, if we do not want to have it, that should be put in the bill, so that the people of this country will know conclusively and finally whether or not the President has the right to secure this injunction.

Senator DOUGLAS. Mr. Chairman, may I say something?

Senator AIKEN. May I say something?

Senator DOUGLAS. I will be very glad to yield to the Senator from Vermont.

Senator AIKEN. I wanted to direct a question to the witness.
Senator DOUGLAS. It might be appropriate, and I will yield.
The CHAIRMAN. Senator Aiken.

Senator AIKEN. Mr. Chairman, I was going to ask the witness, if the President has had these broad inherent powers referred to in the Attorney General's letter all the time, why did he ask the Congress for special legislation to give him authority to control strikes affecting the national security and safety in critical industries?

Secretary TOBIN. Senator, I do not feel quite qualified to answer that question after the long interpretation of the opinion of the Attorney General by Senator Donnell.

I would be in no position to answer that question.

The Senator is a constitutional lawyer, and I do not happen to be

one.

Senator AIKEN. You and I are on even terms, Mr. Tobin, or hardly even terms because you had some days at law school that I never had.

Senator DOUGLAS. Since so much time has been consumed in the interesting declaration by the Senator from Missouri, I should like to take about 5 minutes in a statement, disguised as a question, if I may, to the Secretary.

Mr. Secretary, do we not really have two conflicting points of view in this discussion: There are those represented by my good friend from Missouri, and possibly by other representatives on the other side, who say that we should have in a national labor law every conceivable situation dealt with specifically by statute and that every possible point that might arise should be covered by a statutory provision.

If you adopt that idea, you get a statute, do you not, of interminable length, arousing many conflicting interests, and on the other side, do you not have those of us who believe that you should set up machinery whereby employers and employees may deal with each other freely through the processes of collective bargaining in the belief

that if you do that, the vast majority of disputes will be settled by the parties themselves?

But, of course, in the background there are always these powers of the Government to preserve the health and safety of the people.

Now, the Senator from Missouri would like to have these powers explicitly defined. Is it not possible that one of the virtues of the American system is that they are not precisely defined? Is not perhaps their vagueness one of the sources of strength, that they are in the background, and people do not know precisely what they are; but each side is afraid to go too far or press its interest too far lest they run up against these powers?

In this connection I would like to read into the record, and ask if you would generally approve it, Mr. Secretary, a statement made by a very distinguished lawyer, and I believe, a very wise man, Mr. William H. Davis, who has had a fine career at the bar, who was head, I believe, of the National War Labor Board, and served with our distinguished Senator from Oregon on that Board, and who, in an address at the University of California in March of 1947 said this, and I quote I do not say that I approve of this statement or disapprove it, but I would like to have the Senators have the benefit of the comment of this experienced and wise man :

Somebody is going to say, "Yeah, but suppose they don't work it out?”—that is, suppose the processes of collective bargaining do not.

"Suppose in the last analysis they shut down the railroads?"

Well, I say—

that is Davis speaking

"The President will do what the President has always done. He will come in and keep the railroads running."

I said that one of the virtues of our Constitution was that the President's powers remain undefined although ample for the emergency. The result was that in our history, and we have had emergencies since we began, each time we have had a President with the courage to act and save the Union

and I would include Abraham Lincoln in it-that is my comment, not the comment of Davis

usually unconstitutionally or extraconstitutionally.

That is the comment of Davis.

Then after the Union is saved and the emergency is over, the thing gets into the Supreme Court and they say that the thing is unconstitutional and thereby save the Constitution.

If I may interject, the President saves the country, and then the Supreme Court saves the Constitution.

That is not so facetious as it seems. Let me put it another way. We have these undefined powers of the President which are ample for the emergency. People say they ought to be defined. All right. By whom? By Congress within limits. Suppose Congress says, "In such an emergency the President is authorized to do so-and-so." The first thing would have to be seizure, just because you can't make people work for a private employer. So it would be seizure.

The fifth amendment of the Constitution says that Congress shall pass no law depriving the citizens of the United States of life, liberty, or property without due process. So the first thing Congress has to do is to set up due process. And the second requirement of the amendment A is, if you take a man's property you must make just compensation for it, and the Supreme Court has said that a man's labor is a property right. So I say, if Congress is going to pass any law on the subject it should be a law which does not become effective until there

has been a declaration of national emergency. If Congress wants to join with the President in that declaration, all right.

Now, here is a very significant comment that he made:

The danger is that the collective bargainers will know beforehand where to go to get out of the hole they are in, and if they know it beforehand it is always going to be more attractive to one side than the other, and there goes your collective bargaining.

Now, Mr. Secretary, doesn't it seem to you to be a rather wise statement to indicate that if we attempt to spell out the precise powers of the Federal Government in these matters it would involve us in a whole range of subjects such as seizure, compensation, injunctionsall these things that we have argued about for months, and not gotten anywhere? Isn't it better to try to set the processes of collective bargaining at work, trusting to the good sense of the parties but keeping in the background these emergency powers which, although vague, have always been exercised by Presidents to preserve the life, health, and safety of the United States of America?

Secretary TOBIN. Absolutely, I agree with you, Senator.

Senator TAFT. May I ask Senator Douglas a question?
Senator DOUGLAS. Yes; surely.

Senator TAFT. This act, however, purports to deal with the question of injunctions. If the Senator will turn to page 19, it says:

The Act

namely the Norris-La Guardia Act-this is the Thomas substitute, section 401, the Norris-La Guardia Act

is continued and other acts are continued in full force and effect in accordance with the provisions of such other Acts, except that the provisions of such other Acts and such section shall not be construed to be applicable with respect to section 10 of the National Labor Relations Act.

Now, certainly there is a question whether the Norris-La Guardia Act has not put an end to the emergency powers of the President. It is entirely possible. No court has held that the Norris-La Guardia Act does not apply to the Government except when the Government is an employer. In one case it holds that it does not apply, in an injunction against their own employees in the coal case, but certainly this section at once raises the question of whether, even if there were such an emergency section, that the power is not expressly repealed, and limited by the Norris-La Guardia Act, so that I backed up Senator Donnell's insistence that this question must be qualified, and I strongly object to the effort to please people by saying there is an injunction, and please the labor people by saying there is no injunction.

I think this committee has the absolute duty to put into effect legislation which will say whether there is an injunctive power or not, and it is particularly required by the presence of this section in the Thomas bill.

Senator DOUGLAS. Senator Taft, I am not a lawyer and I have a great deal of respect, built up over many years, both for your ability as a lawyer and for your clarity of thought, and that is a very sincere

statement.

I have before me the case of the United States v. The United Mine Workers, to which the Senator has referred-Senator Donnell.

85905-49-pt. 1- 19

I have not been able to analyze it very fully, but I would like to ask you this question: Did the Court hold in that opinion that after the Government had seized the mines the Norris-La Guardia Act did not apply?

Senator TAFT. Yes; after the Government seized the mines they could get an injunction against their own employees.

Senator DOUGLAS. Yes.

Senator TAFT. That they held, but the question of whether the Government can just go out and get an injunction against anybody or any number of laboring people is certainly one that has not been settled by the courts, and this is the first time we put in the Norris-La Guardia Act the exception "except the provisions of such act shall not be construed with reference to section 10 of the National Labor Relations Act," which seems to imply that it does apply to everything else except that one act.

Senator DONNELL. Will the Senator yield for just an expression of opinion as to the mine workers? The Court says, and it is referring to the references to the debates in the Houses of Congress-I think it was on the Norris-La Guardia Act, and it is on pages 278 and following, Senator Douglas, near the top, and it says:

The frequency of these references and the attention directed to their subject matter are compelling circumstances—

and this sentence is what I had particular reference to along the line that Senator Taft has mentioned

We agree that they indicate that Congress, in passing the act, did not intend to permit the United States to continue to intervene by injunction in purely private labor disputes. But whether Congress so intended or not is a question different from the one before us now. Here we are concerned only with the Government's right to injunctive relief in a dispute with its own employees.

Senator DOUGLAS. Well, that indicates that injunctive powers were still possessed by the Government in the event of seizure, in the opinion. of the Court.

Senator DONNELL. Oh, yes; and seizure under the War Disputes Act.

Senator DOUGLAS. And that is precisely

Senator DONNELL. Seizure by the President and not by the Court. Senator DOUGLAS. What Mr. Davis said in the statement that I read-that if you are to deal with these matters by statute, you will first have to provide for seizure.

Senator DONNELL. Mr. Chairman, I cannot see that any great burdening of the statute is necessary. The Taft-Hartley Act did it in a very few words, providing for an injunction for a period of 80 days in the event of a national emergency. It is perfectly clear, without any undue detail.

I think it can be done as clearly as can be, and certainly I cannot conceive that it is sound to say that it is wiser to leave it vague and undetermined so that nobody knows what the law is, rather than to say definitely and distinctly to the people and the labor people what the law is.

Senator DOUGLAS. Thank you very much.

The CHAIRMAN. Are there any more questions you wish to ask Mr. Tobin, Senator?

Senator MORSE. Mr. Chairman, I would like to ask some questions. The CHAIRMAN. Senator Morse.

Senator MORSE. I first want to say that I associate myself completely with the analysis of the Attorney General's letter which was so ably presented by the Senator from Missouri.

I wish to say further that I think he has made a great contribution to the record of this hearing by putting that analysis in at this point, because the Attorney General's letter was made a part of the record, and as the Senator from Missouri has pointed out, it has received what one would expect to be the usual interpretation of it; namely, that the President of the United States has such power as the Attorney General refers to in that letter.

I think the American people are entitled to know immediately when the matter is brought before them the other point of view which the Senator from Missouri so ably presented.

Before I address my question on this matter to the Secretary of Labor, I want to make this additional point: We need to keep in mind the fact that the United Mine Workers case was a case which arose, as the Senator from Missouri pointed out, under a Government seizure, but in accordance with a War Powers Act, and that it stems. from the power of the President under that act. Therefore, as I intimated last night, I think, as far as the operating facts before us in respect to the issue of this bill are concerned, the Attorney General miscited the case because, in my opinion, it is not at all applicable to the point which we have under consideration.

Senator Douglas is quite right when he cites, I think with some approval, although he cites it to speak for itself, the observation of Mr. Will Davis, that throughout our history there have been great crises in which a President has proceeded to act, and subsequently his acts have been challenged in the Supreme Court, but they have become moot by that time in the sense that the crisis is past and the Supreme Court has raised questions as to whether or not his original act was in accordance with his power. Thus, as Senator Douglas points out, it can be said, as Mr. Davis has so very ably said, on several occasions the President has saved the Nation and the Supreme Court has saved the Constitution.

With world changes occurring as fast as they are occurring in the decade in which we live, we are nevertheless, in my judgment, dealing this morning with a question that is very fundamental-the liberties of the American people. If it is contemplated by this administration to exercise any such power as the Attorney General alludes to in hist letter then, I say the administration owes it to the American people to say so specifically and unequivocally, and ask the Congress of the United States, as the elected representatives of the people, to pass legislation to place such power in statutory form.

I disagree with the Senator from Missouri in regard to the use of the injunctive power, because I am opposed to the use of the injunctive power in labor disputes. But I, for one, as a member of this commmittee, now that this issue has been raised, will press for all I am worth to force this administration to take an unequivocal position in statutory language as to whether or not it proposes to exercise injunctive power in case of an emergency dispute, in case of an emergency strike.