United Steelworkers of America v. United States/Dissent Frankfurter

by Felix Frankfurter

United States Supreme Court

361 U.S. 39

United Steelworkers of America  v.  United States

Separate opinion of Mr. Justice FRANKFURTER and Mr. Justice HARLAN, concurring in the opinion of the Court dated November 7, 1959.

This action by the United States for an injunction under § 208 of the Labor Management Relations Act, 1947 (61 Stat. 155, 29 U.S.C. § 178, 29 U.S.C.A. § 178) was commenced by the Attorney General at the direction of the President of the United States in the District Court for the Western District of Pennsylvania on October 20, 1959. The strike which was the concern of the action arose out of a labor dispute between petitioner, the collective bargaining agent of the workers, and the steel companies, and was nationwide in scope. The strike began on July 15, 1959, fifteen days after the contracts between the steel companies and petitioner expired. On October 9, 1959, the President created the Board of Inquiry provided by §§ 206 and 207 of the Act, 29 U.S.C.A. §§ 176, 177, to inquire into the issues involved in the dispute. The President deemed the strike to affect a 'substantial part of * * * an industry,' and concluded that, if allowed to continue, it would imperil the national 'health and safety.' On October 19 the Board submitted its report, which concluded: '(T)he parties have failed to reach an agreement and we see no prospects for an early cessation of the strike. The Board cannot point to any single issue of any consequence whatsoever upon which the parties are in agreement.' The President filed the report with the Federal Mediation and Conciliation Service and made its contents public, in accordance with § 206, and ordered the Attorney General to commence this action, reiterating his former pronouncements that the continuance of the strike constituted a threat to the national health and safety.

Pursuant to stipulations of the parties, the District Court heard the case on affidavits. On October 21 it granted the injunction. Its order was stayed by the Court of Appeals for the Third Circuit, pending that court's final determination of petitioner's appeal. On October 27 it affirmed the decision of the District Court (one judge dissenting) and granted an additional stay to enable petitioner to seek relief here. On October 28 this Court denied the motion of the United States to modify the stay. On October 30 we granted certiorari, set the argument down for November 2, and extended the stay pending final disposition. In a per curiam opinion on November 7, this Court affirmed the decision of the Court of Appeals, Mr. Justice Douglas dissenting. We noted our intention to set forth at a later time the grounds for our agreement with the Court's disposition and not delay announcement of the result until such a statement could be prepared.

The injunction was challenged on three grounds: (1) the lower courts were not entitled to find that the national emergency, upon which the District Court's jurisdiction is dependent under § 208, existed; (2) even if the emergency existed, the District Court failed to exercise the discretion, claimed to be open to it under § 208, whether or not to grant the relief sought by the United States; (3) even if the injunction was otherwise unassailable it should have been denied because § 208 seeks to charge the District Courts with a duty outside the scope of 'judicial power' exercisable under Art. III, § 2, of the Constitution.

Section 208 provides that the District Court 'shall have jurisdiction to enjoin' a 'threatened or actual strike or lockout' if the court finds that it '(i) affects an entire industry or a substantial part thereof engaged in * * * commerce * * * or engaged in the production of goods for commerce; and (ii) if permitted to occur or to continue, will imperil the national health or safety * * *.' The District Court found, and it was not contested here, that the strike satisfied the first condition in that it affected a substantial portion of the steel industry. Petitioner urged, however, that the lower courts had no basis for concluding that it satisfied the second.

In its finding of fact No. 15, the District Court described four instances of serious impediment to national defense programs as a result of existing and prospective procurement problems due to the strike. The programs affected included the missible, nuclear submarine and naval shipbuilding, and space programs. Each of these findings had, as the Court of Appeals found, ample support in the affidavits submitted by the United States. According to the affidavit of Thomas S. Gates, Jr., Acting Secretary of Defense, delays in delivery of materials critical to the creation of the Atlas, Titan and Polaris missile systems had become so severe that each additional day of the strike would result in an equal delay in project completion; and a 'significant portion of the steel specified in the procurement contracts is of a composition not common to commercial usage nor available from existing civilian inventories by exercise of allocation or eminent domain powers of the Government. * * * (T) hese programs in many cases require special sizes and shapes, many of which can be fabricated only by firms having a long experience in their production and the necessary special facilities therefor. * * *'

The affidavit of Hugh L. Dryden, Deputy Administrator of the Aeronautics and Space Administration, stated, in some detail, that space projects, including tracking centers, rocket engine test stands, and other critical facilities, were, at the time of the hearing in the District Court, already subjected to delays of as much as seven weeks, with longer delays anticipated from the continuation of the strike. The affidavit of A. R. Luedecke, the General Manager of the Atomic Energy Commission, stated that minor delays in projects had, at the time of its making, already been experienced in critical programs of the Atomic Energy Commission, and that if the strike should continue into 1960 'there would be an appreciable effect upon the weapons program.'

In view of such demonstrated unavailability of defense materials it is irrelevant that, as petitioner contended and the United States conceded, somewhat in excess of 15% of the steel industry remained unaffected by the stoppage, and that only about 1% of the gross steel product is ordinarily allocated to defense production.

However, petitioner also contested the sufficiency of the affidavits on the ground that they did not present the facts giving rise to the asserted emergencies with sufficient particularity to justify the findings made. This objection raises an issue which was essentially for the trier of fact, and the two lower courts found the affidavits sufficient. It is not for the judiciary to canvass the competence of officers of cabinet rank, with responsibility only below that of the President for the matters to which they speak under oath, to express the opinions set forth in these affidavits. Findings based directly upon them surely cannot be said to be 'clearly erroneous.' Fed.Rules Civ.Proc., rule 52(a), 28 U.S.C.A.

Moreover, under § 208 the trier of these facts was called upon to make a judgment already twice made by the President of the United States: once when he convened the Board of Inquiry; and once when he directed the Attorney General to commence this action. His reasoned judgment was presumably based upon the facts we have summarized, and it is not for us to set aside findings consistent with them. The President's judgment is not controlling; § 208 makes it the court's duty to 'find' the requisite jurisdictional fact for itself. But in the discharge of its duty a District Court would disregard reason not to give due weight to determinations previously made by the President, who is, after all, the ultimate constitutional executive repository for assuring the safety of the Nation, and upon whose judgment the invocation of the emergency provisions depends.

The petitioner next asserted that the findings made were insufficient as a matter of law to support the District Court's jurisdiction under § 208. Conceding that peril to the national defense is peril to the national safety, it asserted that the peril to the national safety which is made an element of the court's jurisdiction by part (ii) of § 208(a) must result from the substantial character of the effect upon an industry required by part (i), and that if it does not so result a District Court is without power to enjoin the stoppage or any part of it. Alternately, it urged that the jurisdiction which is conferred by the section is limited to relief against such part of the total stoppage as is found to be the cause in fact of the peril. Petitioner claimed that as a matter of fact the procurement embarrassments found by the courts below were the result not of the entire steel stoppage or even of a substantial part of it, but only of the closing of a 'handful' of the hundreds of plants affected; and that therefore the entire industry-wide strike should not have been enjoined under either construction of § 208 which it asserted.

In the first place, the requisite fact was found against petitioner's contention. The Court of Appeals found that '(t)he steel industry is too vast and too complicated to be segmented' so as to alleviate the existing and foreseeable peril to the national defense by the mere reopening of a few plants. It expressly relied upon the affidavit of Dr. Raymond J. Saulnier, Chairman of the Council of Economic Advisers of the Federal Government, which was before both the lower courts. Dr. Saulnier stated that:

'Steel is produced through closely interrelated processes that often cannot be separated technically or economically to allow production of items 'needed' * * * while omitting items 'not needed.' * * * '(I)n order to satisfy defense requirements alone from the standpoint of size, grade, and product, it would be necessary to reactivate 25 to 30 hot rolling mills, together with supporting blast furnaces, and Bessemer, electric, open hearth, and vacuum-melting furnaces. Additional facilities for pickling, coating, heat treating, cold finishing, shearing, cutting, testing, and the like would also be required. To reopen these plants for the production of steel products to meet only defense requirements would be totally impracticable. The problems of scheduling the limited tonnages involved, plus the cost and technical difficulty of start-ups and shutdowns would appear to be insurmountable." The lower courts had before them, as did this Court, the conflicting affidavit of Robert Nathan, the economist for the Steelworkers. But the trier of fact was not bound to prefer the arguments, however weighty, of petitioner's economist, however estimable, as against the views of the highest officers in the land and their economic advisers regarding the means for securing necessary defense materials.

Nor we it a refutation of the finding of the Court of Appeals to suggest, as petitioner did here, that 'needed' facilities might be opened for all purposes. The problem is self-evidently one of programming months in advance every specialized commodity needed for defense purposes, a project which itself would require months of effort and the delays such effort would entail. Other obvious difficulties are not less formidable. Upon what basis would the plants to be reopened be chosen, assuming the number of plants needed could be determined? According to what standard would the production of particular complexes of plants be regulated? What of problems of cost and overhead, and the cost of and time required for intra-company planning to determine the practicality of partially restricting the operation of giant complexes such as those of the major producers?

No doubt a District Court is normally charged with the duty of independently shaping the details of a decree when sitting in equity in controversies that involve simple and relatively few factors; factors, that is, far less in number, less complicated and less interrelated than in the case before us. But a court is not qualified to devise schemes for the conduct of an industry so as to assure the securing of necessary defense materials. It is not competent to sit in judgment on the existing distribution of factors in the conduct of an integrated industry to ascertain whether it can be segmented with a view to its reorganization for the supply exclusively, or even primarily, of government-needed materials. Nor is it able to readjust or adequately to reweigh the forces of economic competition within the industry or to appraise the relevance of such forces in carrying out a defense program for the Government. Against all such assumptions of competence, the finding of the Court of Appeals was amply supported by the record.

Even without such a finding, however, petitioner's contention would fail. There are controlling reasons for concluding that § 208 neither imposes upon the United States, as a condition for securing an injunction, the burden of establishing that the peril shown proceeds from the unavailability of a 'substantial number' of particular facilities, nor limits the scope of the court's injunctive process to such part of the total stoppage as appears to be the cause in fact of the peril.

First, on its face § 208 states two separate criteria, both of which must be satisfied before an injunction may issue against a strike, and it states no other relationship between them than that both must proceed from ' such strike.' No other relationship is suggested by the legislative history of these emergency provisions. There is, accordingly, no foundation for the drastic limitation on their scope which would be imposed if petitioner's contention had been adopted, that a District Court is without jurisdiction unless the abstract quantitatively substantial character of the effect of the stoppage is found to be the cause in fact of the peril.

The legislative history confirms what the provisions themselves amply reveal, that this portion of the Taft-Hartley Act contains a dual purpose, on the one hand to alleviate, at least temporarily, a threat to the national health or safety; and on the other to promote settlement of the underlying dispute of industry-wide effect. The former purpose is to be accomplished by the injunction, and by whatever additional remedies the President may seek and the Congress grant in pursuance of the command of § 210 of the Act, 29 U.S.C.A. § 180, that the matter be returned to Congress by the President with full report in the event of a failure of settlement within the injunction period. The latter purpose is to be accomplished by the command of § 209, 29 U.S.C.A. § 179, that the parties to the dispute 'make every effort to adjust and settle their differences'; by the secret ballot of employees provided by § 209 with reference to the last offer of the companies; and finally by further action by the President and Congress pursuant to § 210. To hold, as petitioner alternatively urged, that a District Court may enjoin only that part of the total stoppage which is shown to be the cause in fact of the peril, would at best serve only the purpose of alleviating the peril, while stultifying the provisions designed to effect settlement of the underlying dispute.

Second, the evidentiary burdens upon the Government which would have resulted from the adoption of either of the constructions urged by petitioner would tend to cripple the designed effectiveness of the Act. It is extremely doubtful whether in strikes of national proportion information would be available to the United States within a reasonable time to enable it to show that particular critical orders were placed with particular facilities no longer available; or whether the United States could, within such time, effect a theoretical reorganization of its procurement program so as to demonstrate to a court that it cannot successfully be conducted without the reopening of particular facilities.

Finally, § 208 is not to be construed narrowly, as if it were merely an exception to the policies which led to the restrictions on the use of injunctions in labor disputes embodied in the Norris-LaGuardia Act, 47 Stat. 70 (1932), 29 U.S.C. §§ 101-115, 29 U.S.C.A. §§ 101-115. Totally different policies led to the enactment of the national emergency provisions of the 1947 Act. The legislative history of these provisions is replete with evidence of the concern of both the proponents and the opponents of the bill to deal effectively with large-scale work stoppages which endanger the public health or safety. To stop or prevent public injury, both management and labor were brought within the scope of the injunctive power, and both were subjected to the command to 'make every effort to adjust and settle their differences * * *.' § 209. The preamble to the Act succinctly states this purpose:

'Industrial strife which interferes with the normal flow of commerce * * * can be avoided or substantially minimized if employers, employees and labor organizations each * * * above all recognize under law that neither party has any right in its relations with any other to engage in acts or practices which jeopardize the public health, safety, or interest * * *.' Labor Management Relations Act (1947), § 1(b), 61 Stat. 136, 29 U.S.C. § 141(b), 29 U.S.C.A. § 141(b).

The Norris-LaGuardia Act had limited the power of the federal courts to employ injunctions to affect labor disputes. The purpose of that Act was rigorously to define the conditions under which federal courts were empowered to issue injunctions in industrial controversies as between employers and employees, and to devise a safeguarding procedure for the intervention of the federal judiciary in the course of private litigation. It is not without significance that this Act was found not to deprive a federal court of jurisdiction to issue an injunction at the behest of the Government as industrial operator. United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884. Moreover, as the preamble to the Norris-LaGuardia Act indicated, the formulation of policy of that statute was made in 1932 'under prevailing economic conditions.' 29 U.S.C.A. § 102. Congress at different times and for different purposes may gauge the demands of 'prevailing economic conditions' differently or with reference to considerations outside merely 'economic conditions.' Here Congress has made the appraisal that the interests of both parties must be subordinated to the overriding interest of the Nation. The following observations of Mr. Justice Brandeis are apposite:

'Because I have come to the conclusion that both the common law of a state and a statute of the United States declare the right of industrial combatants to push their struggle to the limits of the justification of self-interest, I do not wish to be understood as attaching any constitutional or moral sanction to that right. All rights are derived from the purposes of the society in which they exist; above all rights rises duty to the community. The conditions developed in industry may be such that those engaged in it cannot continue their struggle without danger to the community. But it is not for judges to determine whether such conditions exist, nor is it their function to set the limits of permissible contest and to declare the duties which the new situation demands. This is the function of the legislature which, while limiting individual and group rights of aggression and defense, may substitute processes of justice for the more primitive method of trial by combat.' Duplex Printing Press Co. v. Deering, 1921, 254 U.S. 443, 488, 41 S.Ct. 172, 184, 65 L.Ed. 349 (dissent).

These sections were designed to provide machinery for safeguarding the comprehensive interest of the community, and to promote the national policy of collective bargaining. They must be construed to give full effect to the protections they seek to afford.

Petitioner's final contention with regard to the statutory standard of peril to the national safety appears to have been that the United States must resort to other modes of relief than this Act to meet the national peril created by a stoppage in a substantial part of an industry, before such peril can be said to exist or be threatened. In substance petitioner urged: (1) that the United States has powers under the Defense Production Act of 1950, 64 Stat. 798, 50 U.S.C.App. § 2061, 50 U.S.C.A.Appendix, § 2061, the exercise of which would, even during the course of these proceedings, have permitted it to alleviate the critical shortages which in fact resulted or threatened to result from the strike; and (2) that the United States failed to reveal to petitioner or to the courts what plants might have been reopened so as to remove the peril to the national defense. In the light of what we have already said, it is apparent that neither of these matters is relevant to the judicial determination required by § 208. The remedy available to the United States under these provisions is independent of other powers possessed by it and is not encumbered by any burden upon it to seek to persuade or enable the defendants to effect a piecemeal alteration of their conduct to avoid the court's jurisdiction.

Because the District Court's finding of peril to the national safety resulting from impediments to the programs for national defense was itself sufficient to satisfy the requirement of § 208(a)(ii), it is not necessary to determine whether perils to defense exhaust the scope of 'safety' as used in this statute, or to consider its findings with regard to peril to the national health.

Having decided that the strike was one which created a national emergency within the terms of the statute, the next question is whether, upon that finding alone, the 'eighty-day' injunction for which the Government prayed should have issued, or whether the District Court was to exercise the conventional discretionary function of equity in balancing conveniences as a preliminary to issuing an injunction. The petitioner argued that under the Act a District Court has 'discretion' whether to issue an 'eighty-day' injunction, even though a national emergency be found. It argued that the district judge in this case did not consider that he had such 'discretion.' Alternatively, it argued that if the district judge did exercise 'discretion' he abused it, for the broad injunctive relief he granted was not justifiable in this case. The contention was that the relief had the effect of hindering rather than promoting a voluntary settlement of the dispute, and of unnecessarily coercing hundreds of thousands of employees, when an injunction of only a small part of the strike, or other non-injunctive remedies, assertedly less drastic, were available, and would have equally well averted the threat to public safety. We do not think it necessary to embark upon the speculative consideration whether the district judge in fact made a discretionary determination, and, if be did, whether that determination was justifiable. We conclude that under the national emergency provisions of the Labor Management Relations Act it is not for judges to exercise conventional 'discretion' to withhold an 'eighty-day' injunction upon a balancing of conveniences.

'Discretionary' jurisdiction is exercised when a given injunctive remedy is not commanded as a matter of policy by Congress, but is, as a presupposition of judge-made law, left to judicial discretion. Such is not the case under this statute. The purpose of Congress expressed by the scheme of this statute precludes ordinary equitable discretion. In this respect we think the role of the District Courts under this statute is like the role of the Courts of Appeals under provisions for review by them of the orders of various administrative agencies, such as the National Labor Relations Board. 29 U.S.C. § 160(e), 29 U.S.C.A. § 160(e). This Court has held that it the Board's findings are sustained, the remedy it thought appropriate must be enforced. National Labor Relations Board v. Bradford Dyeing Ass'n, 310 U.S. 318, 60 S.Ct. 918, 84 L.Ed. 1226.

In the national emergency provisions of the Labor Management Relations Act, Congress has with particularity described the duration of the injunction to be granted and the nature of specific collateral administrative procedures which are to be set in motion upon its issuance. We think the conclusion compelling that Congress has thereby manifested that a District Court is not to indulge its own judgment regarding the wisdom of the relief Congress has designed. Congress expressed its own judgment and did not leave it to a District Court. The statute embodies a legislative determination that the particular relief described is appropriate to the emergency, when one is found to exist. Moreover, it is a primary purpose of the Act to stop the national emergency at least for eighty days, which would be defeated if a court were left with discretion to withhold an injunction and thereby permit continuation of an emergency it has found to exist. The hope is that within the period of the injunction voluntary settlement of the labor dispute will be reached, and to that end the statute compels bargaining between the parties during that time. If no voluntary settlement is concluded within the period of the injunction, the President is to report to Congress so that that body may further draw upon its constitutional legislative powers. How else can these specific directions be viewed but that the procedures provided are, in the view of Congress, the way to meet the emergencies which come within the statute? It is not for a court to negative the direction of Congress because of its own confident prophecy that the 'eighty-day' injunction and the administrative procedures which follow upon it will not induce voluntary settlement of the dispute, or are too drastic a way of dealing with it.

We are also persuaded by the fact that, before the statute is invoked, there must be a Presidential determination that the 'eighty-day' injunction is the promising method for dealing with the emergency arising from the labor dispute. Section 206 provides that whenever the President is of the 'opinion' that a strike or lockout will create a national emergency, he may appoint a board of inquiry, which shall submit to him a report containing the facts relating to the dispute and the positions of the parties to it. Upon receiving this report the President 'may' direct the Attorney General to petition to enjoin the strike or lockout. It is undoubtedly one of the factors in the President's decision to direct the Attorney General to act that he considers such an injunction the best available course to relieve the emergency. Such a decision by the President to invoke the courts' jurisdiction to enjoin, involving, as it does, elements not susceptible of ordinary judicial proof nor within the general range of judicial experience, is not within the competent scope of the exercise of equitable 'discretion.' It may be that the assumptions on the basis of which Congress legislated were ill-founded or have been invalidated by experience. It may be that the considerations on the basis of which the President exercised his judgment in invoking the legislation will be found wanting by hindsight. These are not matters within the Court's concern. They are not relevant to the construction of § 208 nor to its judicial enforcement. They certainly do not warrant the Judiciary's intrusion into the exercise by Congress and the President of their respective powers and responsibilities.

Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754, heavily relied on, dealt with quite a different situation. There we held that the application of the Administrator of the Emergency Price Control Act of 1942 for an injunction of violations of that Act might be refused, in the exercise of the District Court's 'discretion.' But the scheme of the statute in Hecht v. Bowles was significantly different from that of the statute in this case. The Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 925(a), provided that the District Court should grant, at the Administrator's application, 'a 'permanent or temporary injunction, restraining order, or other order." This Court emphasized the alternative character of this provision for an 'other order' an imparting to the District Court discretion to withhold an injunction. 321 U.S., at page 328, 64 S.Ct. at page 591. Under the Labor Management Relations Act the District Court is given jurisdiction to enjoin 'and to make such other orders as may be appropriate.' Congress thus provided a jurisdiction additional to the power to grant an injunction, not alternative to it: an 'other order' may only supplement an injunction, it may not supplant it. Beyond this difference are the considerations that, under the Emergency Price Control Act of 1942, an injunction did not, as it does here, bring into play other carefully prescribed relief designed by Congress to alleviate the cause of the evil which it was the purpose of the statute to correct, nor was the duration of the injunction specifically limited as in this case. There was not, therefore, in Hecht v. Bowles the strong showing we have here that the Congress has resolved the question of the appropriate form of relief for the condition the statute is meant to correct, and the Court there concluded that the Administrator's application for judicial relief was an appeal to the ordinary equity jurisdiction and 'discretion' of the District Court. In Hecht v. Bowles itself the Court recognized that there might be 'other federal statutes governing administrative agencies which * * * make it mandatory that those agencies take action when certain facts are shown to exist.' 321 U.S., at page 329, 64 S.Ct. at page 591. In essence this describes the situation under the Labor Management Relations Act.

We come finally to the petitioner's contention that the grant to the District Courts by § 208(a) of the Labor Management Relations Act of jurisdiction to enjoin strikes such as this one is not a grant of 'judicial Power' within the meaning of Art. III, § 2, of the Constitution, and was therefore beyond the power of Congress to confer on the District Courts. What proceedings are 'Cases' and 'Controversies' and thus within the 'judicial Power' is to be determined, at the least, by what proceedings were recognized at the time of the Constitution to be traditionally within the power of courts in the English and American judicial systems. Both by what they said and by what they implied, the framers of the Judiciary Article gave merely the outlines of what were to them the familiar operations of the English judicial system and its manifestations on this side of the ocean before the Union. Judicial power could come into play only in matters such as were the traditional concern of the courts at Westminster and only if they arose in ways that to the expert feel of lawyers constituted 'Cases' or 'Controversies.'

Beginning at least as early as the sixteenth century the English courts have issued injunctions to abate public nuisances. Bond's Case, Moore 238 (1587); Jacob Hall's Case, 1 Ventris 169, 1 Mod. 76 (1671); The King v. Betterton, 5 Mod. 142 (1696); Baines v. Baker, 3 Atk. 750, 1 Amb. 158 (1752); Mayor of London v. Bolt, 5 Ves. 129 (1799). See also Eden, Injunctions (3d ed. 1852), Vol. II, 259; Blackstone, Commentaries (12th ed. 1795), Vol. IV, 166. This old, settled law was summarized in 1836 by the Lord Chancellor in the statement that 'the court of exchequer, as well as this Court, acting as a court of equity, has a well established jurisdiction, upon a proceeding by way of information to prevent nuisances to public harbours and public roads; and, in short, generally to prevent public nuisances.' Attorney General v. Forbes, 2 M. & C. 123, 133. And two years later this Court recognized that 'it is now settled, that a court of equity may take jurisdiction in cases of public nuisance by an information filed by the attorney general.' City of Georgetown v. Alexandria Canal Co., 1838, 12 Pet. 91, 98, 9 L.Ed. 1012. See also Payne v. Hook, 7 Wall. 425, 430, 19 L.Ed. 260. Since that time this Court has impressively enforced the judicial power to abate public nuisances at the suit of the Government. In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092. The crux of the Debs decision, that the Government may invoke judicial power to abate what is in effect a nuisance detrimental to the public interest, has remained intact. The heart of the case was approvingly cited by Mr. Justice Brandeis for the Court in Jacob Ruppert, Inc. v. Caffey, 251 U.S. 264, 301, 40 S.Ct. 141, 150, 64 L.Ed. 260. The scope of the injunction in the Debs case no doubt gave rise to the much-criticized extensive use of the injunction in ordinary employer-employee controversies. See Frankfurter and Greene, The Labor Injunction, pp. 18 et seq., 62-63, and 190, and for the terms of the decree see p. 253. Congress dealt with this proliferating and mischievous use of the labor injunction first through the Clayton Act, 29 U.S.C.A. § 52, and later through the Norris-LaGuardia Act. But even the severest critics of the Debs injunction have recognized that it was not a 'new invention.' See, Id., p. 20. The judicial power to enjoin public nuisance at the instance of the Government has been a commonplace of jurisdiction in American judicial history. See., e.g., Attorney General v. Tudor Ice Co., 1870, 104 Mass. 239, 244; Village of Pine City v. Munch, 1890, 42 Minn. 342, 343, 44 N.W. 197, 6 L.R.A. 763; Board of Health of City of Grand Rapids v. Vink, 1915, 184 Mich. 688, 151 N.W. 672.

The jurisdiction given the District Courts by § 208(a) of the Labor Management Relations Act to enjoin strikes creating a national emergency is a jurisdiction of a kind that has been traditionally exercised over public nuisances. The criterion for judicial action-peril to health or safety-is much like those upon which courts ordinarily have acted. Injunction relief is traditionally given by equity upon a showing of such peril, and the court, as was traditional, acts at the request of the Executive. There can therefore be no doubt that, being thus akin to jurisdiction long historically exercised, the function to be performed by the District Courts under § 208(a) is within the 'judicial Power' as contemplated by Art. III, § 2, and is one which Congress may thus confer upon the courts. It surely does not touch the criteria for determining what is 'judicial Power' that the injunction to be issued is not a permanent one, and may last no longer than eighty days. Given the power in Congress to vest in the federal courts the function to enjoin absolutely, it does not change the character of the power granted or undermine the professional competence of a court for its exercise that Congress has directed the relief to be tempered.

These controlling constitutional considerations were sought to be diverted by the petitioner through abstract discussion about the necessity for Congress to define legal rights and duties. The power of Congress to deal with the public interest does not derive from, nor is it limited by, rights and duties as between parties. Congress may impose duties and enforce obligations to the Nation as a whole, as it has so obviously done in the Labor Management Relations Act. Such congressional power is not to be subordinated to a sterile juristic dialectic.

Notes