we are going to have Communist affidavits for union officers, it should be applied to business officers, not just corporations, but business all the way down the line, because if a Communist is evil on one side, he is evil on the other in terms of his relationships to the economy. Could I ask the Senator just a question in reference to your earlier one? Senator DONNELL. Yes. Did you want to ask me a question in regard to Communist matters, too? I would be glad to answer it. Senator HUMPHREY. I would want you to make your statement on it. But first I want to ask about the no-strike requirement on Government employees under the law. I wonder whether you would be willing to incorporate in the law that denies the Government employees the right to strike, a protection that will guarantee that the economic grounds, the working-condition grounds that cause strikes would be handled by the Government of the United States? For example, the District of Columbia happens to be under the jurisdiction of the Congress, and I know that our distinguished colleague, Senator Johnston of South Carolina, is now asking for a little pay increase. Frankly, the employees of the District of Columbia have been notoriously discriminated against. They have good grounds for being a bit unhappy, and yet we have been very derelict in the Congress of the United States in taking care of their financial requirements to meet their basic needs. I am perfectly willing to say it might be all right to deny people the right to strike, provided the humanitarian hand of wisdom and justice is there to see to it that these people have no grounds on which to use their economic weapon to strike. If somebody will prepare an amendment to this act which will see to it that all the grounds for the possibility of a justifiable strike on the basis of working conditions and economic situations are removed, then I think we are being fair. However, we deny people the right to strike and leave them to the mercy of the capricious hands of people busy with great and weighty matters of state, who might forget about the simple bread and butter matters of those employees. Senator DONNELL. I am in hearty accord with the general sentiment expressed. It is the duty of the Government to see that its employees are adequately compensated, and I think the adequate compensation would in the main take care of the proposition the distinguished Senator has so clearly set forth. With respect to the District of Columbia, we have there involved in it the municipal problem, and I am not certain how to work it out for the District. However, on the broad general principle, I am in thorough accord that by appropriation or other appropriate measure the United States Government should see that those employed by it should not have any just reason to strike if these people are denied the right to strike. Senator HUMPHREY. It should be in the same law? Senator DONNELL. That is fair. Senator AIKEN. Mr. Chairman. The CHAIRMAN. Senator Aiken. Senator AIKEN. May I ask the Senator from Minnesota who would determine the justification of the right to strike against the Government? Senator HUMPHREY. I don't know. This question was posed by our good friend, the Senator from Missouri. Senator AIKEN. I was wondering whether it would be the Government or the employees or who would determine that justification. Senator HUMPHREY. As to whether or not they should have the right to strike? Senator AIKEN. Yes; strike against the Government. Who would determine when working conditions were such that a strike was warranted? Senator HUMPHREY. I will leave that up to you gentlemen. Senator DONNELL. I think there should be an absolute final prohibition against any governmental employee striking. I think when at man accepts employment in the Government, he should accept that subject to the right that it shall be unlawful for him to strike. Now, as a corollary to that, I think the suggestion of the Senator from Minnesota is meritorious and that the Government should see that from a human standpoint and all standpoints those employees are fairly and properly treated. Secretary TOBIN. I would like to state that any action which would. be taken in a general over-all law that would apply to Communists as officers of labor organizations should likewise apply to officers in corporations so that there would be a balance. Senator DONNELL. Before I forget it, the Senator from Minnesota addressed the inquiry to the Secretary with respect to Communists holding offices in corporations. I think the Senator from Minnesota has a real point, and I am in accord with certainly the general principle. I realize, I think, as the Secretary himself has very properly suggested, that there may be very grave constitutional questions involved. Of course, I should certainly feel we should not violate any provision of the Constitution of the United States. Senator HUMPHREY. I agree. Senator MORSE. Will the Senator yield? Senator DONNELL. Yes. Senator MORSE. I simply wish to make the observation that in my opinion it is a matter of law that Government employees in America do not now have the right to strike against the Government. In support of that observation, I ask permission, Mr. Chairman, to have incorporated in the record at this point the decision of the War Labor Board during the war in the New York Transit case. (The decision referred to, being found at 5 War Labor Reports, 286, is as follows:) MUNICIPAL GOVERNMENT, CITY OF NEWARK In re Municipal Government, City of Newark, N. J., and State, County, and Muncipal Workers of America, Local 277 (CIO); Board of Transportation of the City of New York and Transport Workers Union of America (CIO) and Transport Workers Union of Greater New York, Local 100 (CIO): Metropolitan Utilities District, Omaha, Nebr., and American Federation of State, County, and Municipal Employees, Local 431 (AFL), Nos. 47 and 726, December 24, 1942 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 between local governments and their employees, Board will determine in specific 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 ir relevant: 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 ageneies 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 jurisdiction 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.1 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 nation, 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. 211 Peters 102, 139 (1837). 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.4 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.8 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.9 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. Schechter Corp. v. United States, 295 U. S. (1935). Aff'd 243 U. S. 629 (1916). 8 Dominion Hotel Company v. Arizona, 249 U. S. 265 (1919). See People v. Orange County Road Construction Company, 175 N. Y. 84, 89; 64 N. E. 129 (1903). 10 37 Am. Jur. 879, § 255. 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 static 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.12 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 11 Ex 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." * |