Strike hirings pass test in court Clinton pledges fight asserting his power to bar replacements

February 03, 1996|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Setting the stage for a constitutional clash in the Supreme Court over presidential power, a federal appeals court yesterday struck down an order by President Clinton that barred thousands of companies from permanently replacing workers who strike.

The decision, by the U.S. Circuit Court of Appeals here, was based on a finding that the president violated labor law in March by issuing an order forbidding government contractors to hire replacements after their workers have struck.

But the language of the 31-page opinion was far broader. It raised questions about how far presidents may go with executive orders that create policies at odds with federal laws.

If, as expected, the ruling is tested in the Supreme Court, it appears likely to test federal courts' power over presidential authority to alter social policy through orders.

The appeals court declared that no president or other federal official has power to "alter the delicate balance of bargaining and economic power" between management and unions under federal labor law.

Mr. Clinton's executive order was aimed at companies that employ one out of four U.S. workers and do $400 billion a year of business with the government. He used his broadly worded authority over federal contracting as his basis for the order.

The president said the permanent replacement of strikers causes strikes to run longer, deepens disputes between management and labor, and causes a loss of experienced workers' skills and know-how.

The appeals court said it would not analyze Mr. Clinton's motives. But it concluded that he simply had no power to issue the order. Presidential authority over government purchases, it said, does not include the power to nullify federal labor law. The law allows management to replace strikers with permanent substitutes.

Mr. Clinton said he would instruct the Justice Department "to take all appropriate steps to have this decision overturned." That could include a plea to the appeals court to reconsider -- a move likely to fail -- as well as an appeal to the Supreme Court.

In a statement issued at the White House, the president said his executive order was "economically sound, fair and legal."

The AFL-CIO joined Labor Secretary Robert B. Reich in denouncing the ruling. The labor federation said the decision "serves those employers who want to wage war on workers. We will fight against this decision."

The U.S. Chamber of Commerce, which took the lead in business groups' challenge to the Clinton order, said the ruling put a stop to "a transparent political payoff to this administration's labor union allies."

Besides nullifying Mr. Clinton's order on striker replacements, the appeals court opinion also suggested that President George Bush probably acted illegally when he issued two executive orders. One required government contractors to remind their workers that they need not join labor unions; the other order barred agreements in which unions secure pledges from contractors to hire only unionized workers.

By implication, the appeals court ruling affecting Mr. Clinton's order may also have cast doubt on the president's authority to require government contractors to adopt programs that give job preferences to minorities and women.

The Clinton order applied to all government contracts worth more than $100,000. Government contractors employ 26 million workers, about 22 percent of the labor force.

Their business with the government represents about 6.5 percent of the nation's total output.

A federal judge had thrown out the court challenge, saying that judges could not review the president's use of his powers over federal purchasing. The appeals court overturned that result yesterday, laying a broad claim to judicial authority over presidential actions that courts find in conflict with federal laws.

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