Question 1 Executive Order 10340 by President Harry Truman
Summary of the Executive Order
Executive Order 10340, which was issued on April 8, 1952 by President Harry Truman, directed the Secretary of Commerce to take possession of all steel companies and their corresponding properties and facilities listed in the EO. The EO listed more than 80 steel companies located all over the country. The Secretary was also directed to operate or cause the operation of such facilities with the help of any entities, public or private, as he may designate. The EO further directed the Secretary to do the following: determine the terms and conditions of employment in the steel companies; observe the rights of employees to engage in concerted actions for collective bargaining purposes, except when they interfere with the operations of the companies; and return the control and operation of the companies to their owners, but only when the national defense is no longer threatened.
The issuance of the EO was grounded on national defense interest. The President perceived an impending strike by steel workers union in the named companies to pose a threat against national defense. He, thus, ordered the taking of the steel companies to ensure that their operations continue and there would be no disruption in the supply of steel, which was important in the manufacture of weapons and the research conducted by the Atomic Energy Commission.
Impact of EO 10340
Background to the EO
In 1951, during which time the US was engaged in an armed conflict with Korea, several steel companies and their employees came to a head over collective bargaining terms. The Steelworkers Union, which represented the employees, gave notice of a strike to start on April 9, 1952. A day before the strike, then President Harry Truman issued EO 10340 (Lundmark 2008).
Subsequent Events
The Secretary immediately acted upon the orders of the EO by issuing possessory orders and appointing the presidents of the steel companies to act as operating managers of their respective companies. On the morning of April 9, Truman reported his action to Congress and 12 days later, he sent a second message. Congress, however, did not act on the report (Killian et al, 2004).
The seized steel companies reluctantly conformed to the direction and supervision of the Secretary of Commerce. They brought an action against the Secretary in the District Court and asked for the issuance of an injunction on the grounds that the EO was invalid as it was not authorized by Congress or by the Constitution. On the other hand, the Government contended that the impending strike would jeopardize the security of the country and that the President possessed the inherent power to issue such order. The companies succeeded in the District Court, but the preliminary injunction it issued was stayed by the Court of Appeals. The case was elevated to the Supreme Court.
Youngstown Sheet & Tube Co. v. Sawyer
The case of Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952), otherwise known as the Steel Seizure Case, finally determined the validity of EO 10340. It also determined the constitutionality of a presidential order mandating the seizure of private companies. The Court, through Justice Black, held that neither Congress nor the Constitution authorized the President to seize the steel companies and EO 10340, therefore, was not valid. Citing the Taft-Harley Act of 1947 where Congress refused to approve an amendment that would have authorized seizure of companies as a mode of settling labor disputes. Moreover, the seizure power conflicted with the executive power, which is the duty to faithfully execute laws.
Question 2 Federal Agencies
Creation of Federal Agencies
Federal agencies are created by Congress through ‘enabling laws.’ This power stems from the Constitutional provision that authorized it to “make all laws which are necessary and proper” (cited Jackson 2009). However, several intelligence agencies were created by presidential EOs in the past, such as the NSA and the NCTC (Jackson 2009). Just like any other law enacted by Congress, a House Representative or a Senator must sponsor the bill creating a federal agency. The bill is then assigned a number, i.e. HR# or S#, and cited in the Congressional Record. Thereafter, it is referred to one of the committees for deliberation. If approved, it goes to the formal legislative process initiated by placing it in the legislative calendar, where it is scheduled for debates, voted upon, and referred to the other chamber. To remove conflicts on the bill, a conference committee is held by the two Houses. If an agreement is reached, the bill is enrolled and submitted to the President for approval (Longley 2014).
The Process of Informal Rule-Making
An agency can initiate its rule-making power by announcing such intent to the public through its Regulatory Plan published in the fall or Agenda of Regulatory and Deregulatory Action in the spring and fall. These plans are also published in the Federal Register. The agency must involve the public by accepting petitions, feedback, comments and other information within a designated period. It can also hold public meetings or hearings for the same purpose. Thereafter, the agency makes the final rule. Before publication, the President has to review it. It is finally published in the Federal Register and takes effect on the date indicated therein, which should not be less than 30 days although exceptions can be made on the grounds of ‘good cause’ (Office of the Federal Register 2011).
Fictional Agency: Commission on Data and Information Protection or CDIP
Assuming that I a HR or Senator, I will have to draft and sponsor a bill proposal entitled “An Act to Establish the Data and Information Protection Act of 2014 and the Commission on Data and Information Protection (CDIP hereinafter)”. To ensure its successful passage, I must persuade as many colleagues as I can to support and co-sponsor it. The urgency of creating a sole federal agency authorized to protect and regulate the flow of information and data must be stressed. Once the House assigns a number to my bill, I will have to wait for its approval by the committee where it is assigned to. After such approval, my work as its main sponsor resumes by taking the House floor and persuading colleagues of its merits and answering questions posed by them. The final decision is then left to the Chamber to finally vote on it.
Fictional CDIP Regulation
Rules on General Enforcement
Sec. 1.1 Pursuant to the Data and Information Protection Act of 2014, the Commission on Data and Information Protection (the ‘Commission’ hereafter) enacts these rules on practices and procedures. The adoption of these rules seeks to clarify and enhance understanding of the Agency’s administration of the aforementioned law and thus, improve the protection of the public from questionable use of personal data and information by unscrupulous parties.
Sec. 2.1 The Commission, upon information or recommendation from the public or private persons, or upon its own instance, may conduct investigation on any person, organization or entity suspected of misusing personal data and information of private individuals.
Sec. 2.2 Persons or entities found by the Commission to have violated any of the provisions of the Data and Information Protection Act of 2014, which it administers, shall be recommended for prosecution to any appropriate government agency.
References
DHS (2014). Creation of the Department of Homeland Security. Department of Homeland Security. http://www.dhs.gov/creation-department-homeland-security.
Jackson, B. (2009). The Challenge of Domestic Intelligence in a Free Society: A Multidisciplinary Look at the Creation of a U.S. Domestic Counterterrorism Intelligence Agency. Rand Corporation.
Killian, J., Costello, G. and Thomas, K. (2004). The Constitution of the United States of America: Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States to June 28, 2002. Government Printing Office.
Longley, R. (2014). The U.S. Legislative Process: How Bills Become Laws. http://usgovinfo.about.com/od/uscongress/a/legprocess.htm.
Lundmark, T. (2008). Power & Rights in US Constitutional Law. New York, NY: Oxford University Press.
Office of the Federal Register (2011). A Guide to the Rulemaking Process. https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf
Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952).
