Through the Revolving Door

A sense of constitutional history in the making pressed heavily on Federal District Judge David A. Pine. For four days he pored over transcripts, briefs and precedents; at night he slept fitfully. On the appointed afternoon last week, when his decision was ready for release, an impatient crowd of newsmen, lawyers and court hangers-on shoved into his clerk's office. While bailiffs shouted, "We'll do this orderly, we'll do this orderly," the newsmen snatched up the 500 mimeographed copies of Pine's ruling.

In his 4,500-word decision, Judge Pine had brusquely set aside the Truman Administration's seizure of the steel mills and, with his judgment, delivered a powerful argument for rule by congressional law and not by executive fiat. "The fundamental issue," wrote Pine, "is whether the seizure is or is not authorized by law." He found nothing in the Constitution to support the Administration's claim of unlimited "inherent" or "residual" executive power to act in an emergency.

Said Judge Pine: "To my mind this spells a form of government alien to our constitutional Government of limited powers."

"I Disagree." With equal firmness, Pine refused to accept the Administration's argument that past emergency actions by a President sanctioned the steel seizure. Many of the precedents, he pointed out, were based on specific laws. As to those without authority of statute, "it is difficult to follow [the] argument that several prior acts apparently unauthorized by law, but never questioned by the courts, by repetition clothe a later unauthorized act with the cloak of legality ... I disagree." Then, in a series of blunt paragraphs, Judge Pine rejected the Administration's whole philosophy of government by expediency. Wrote Pine:

"I am told by defendant [Secretary of Commerce Sawyer] of the disastrous effects on our defense efforts and economy if an injunction should be granted, because it would automatically be followed by a crippling strike; and I am asked to weigh that damage against the incalculable and irreparable injuries to plaintiffs' multi-billion-dollar industry, if I should refuse to issue it ...

[That] presupposes that the Labor-Management Relations Act of 1947 [the Taft-Hartley law] is inadequate when it has not yet been tried, and is the statute provided by Congress to meet just such an emergency. And it further presupposes, as defendant apparently does, that, this statute being inadequate, Congress will fail in its duties, under the Constitution, to legislate immediately and appropriately to protect the nation from this threatened disaster.

"I am unwilling to indulge in that assumption, because I believe that our procedures under the Constitution can stand the stress and strains of an emergency today as they have in the past, and are adequate to meet the test of emergency and crisis . . .

"Furthermore ... I believe that the contemplated strike, if it came, with all its awful results, would be less injurious to the public than the injury which would flow from a timorous judicial recognition that there is some basis for this claim to unlimited and unrestrained Executive power . . ." With that, P: e ordered the mills returned to their private owners.

Strike! Appeal! Within a matter of hours, the alliance of Truman Administra tion and Steelworkers' Union plunged back into the fight to make seizure stick. In Cleveland, before a labor convention, Steelworkers' Boss Philip Murray had just finished an oration denouncing the steel companies when a phone call from his Washington headquarters told him of the district court's action. Out went his order: Strike at once. Before midnight, the walkout from the mills was under way, and the flow of steel came to a stop.

From the White House went another order: Appeal Pine's decision to the higher courts. Next morning in Judge Pine's court, when the injunction papers were signed, Assistant Attorney General Holmes Baldridge asked for a stay of the injunc tion. "I deny it," said Pine. "Now you are free to seek relief elsewhere." Baldridge, grim and frustrated, stomped out of the courtroom. But that afternoon he showed up again in the grey-walled Circuit Court of Appeals (right next door to Pine's chamber), flanked this time by Acting Attorney General Philip B. Perlman. All the court's nine judges had as sembled to hear almost three hours of argument by Government's top counsel and by a battery of 17 steel lawyers.

Injunction Stayed. First Baldridge, then Perlman pleaded with the court for a stay of Pine's injunction pending an immediate appeal to the Supreme Court.

Only by keeping the Government in possession of the mills, they argued, could the workers be induced to call off their strike. Cried Perlman : "This case may involve the very existence of the nation.

It is imperative that everything possible be done to keep the mills in operation." After 40 minutes in conference, the judges returned their verdict: by a majority of 5 to 4, they granted an indefinite stay of injunction, provided that the Government appealed to the Supreme Court within two days. In effect, the Government could hold the steel mills until the Supreme Court handed down a ruling. In a subsequent memorandum, the majority explained why they had granted the stay of injunction. They found two arguable points in Pine's ruling: 1) In the past, the Supreme Court had held that emergencies gave the President the right to seize private property, and 2) since the U.S. Government is liable for damages suffered by private owners because of Government seizures, the question of "irreparable damages" to the steelowners had yet to be proved. "There is at least a serious question," said the court, "as to the correctness of [Judge Pine's] view . . ."

Telegrams from the White House. Phil Perlman's victory grin, and the steel lawyers' open dismay, showed how the tide of the legal battle had apparently shifted in the Administration's favor. But Phil Murray did not volunteer to call off the strike. The day after the circuit court decision, Harry Truman had to move again. At his regular news conference, he insisted that he would abide by the court rulings. He had no ambition to be a dictator, he said. He just wanted to keep the country running. That night he sent off telegrams to Phil Murray and to the presidents of six steel companies. He appealed to the Steelworkers, "as loyal Americans," to go back to work, and he asked Murray and the steel company presidents to meet with him at the White House.

Coming back through the revolving door, Murray called off the strike, after a loss of more than a million tons in production. U.S. Steel Corp., biggest of the steel firms, at first refused to open its gates for the returning workers; it wanted "reasonable assurance" of no walkout again. But it soon fell into line and started firing up the cold furnaces once more.

Ultimatum Upset. At week's end, the President himself opened the new collective bargaining talks in the White House Cabinet Room. He began with a pep talk, stressing the national need for uninterrupted steel production. But the appeal to patriotism was mixed with a sharp ultimatum: "The Government will be prepared ... to order changes in terms and conditions of employment ... if you cannot agree ... I didn't send for you just to make a speech. I sent for you for action and, gentlemen, I want it."

Before the day was out, the Supreme Court of the U.S. stepped into the case. It agreed to review Judge Pine's ruling, and continued Government possession of the steel mills. But, until the court hands down a decision, it ordered a freeze of wages and other working conditions, unless the companies and union agreed on changes. And if they could not break the bargaining deadlock, the seizure issue would be finally decided by the nation's highest court.

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