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If the government were correct, it follows, as the government apparently conceded, that

another President could not only revoke the Executive Order, but could issue a new order that

actually required government contractors to permanently replace strikers, premised on a finding

that this would minimize unions' bargaining power and thereby reduce procurement costs.

Perhaps even more confusing, under the government's theory, the states would be permitted to

adopt procurement laws or regulations that in effect choose sides on this issue, which would

result in a further balkanization of federal labor policy. Yet the whole basis of the Supreme

Court's NLRA pre-emption doctrine has from the outset been the Court's perception that

Congress wished the "'uniform application' of its substantive rules and to avoid the "diversities

and conflicts likely to result from a variety of local procedures and attitudes toward labor

controversies.' " NLRB v. Nash-Finch Co., 404 U.S. 138, 144, 30 L. Ed. 2d 328, 92 S. Ct. 373

(1971) (quoting Garner v. Teamsters Union, 346 U.S. 485, 490, 98 L. Ed. 228, 74 S. Ct. 161

(1953).

The government insists that the President's intervention into the area of labor relations is

quite narrow. In contrast to the Wisconsin debarment scheme in Gould, the Executive Order does

not provide for automatic contract termination or debarment of contractors. The government

emphasizes the discretion that the Secretary and contracting agencies have in deciding whether to

impose the Executive Order's penalties on contractors who hire permanent replacements. The

Secretary may terminate a contract if a contractor has permanently replaced strikers and only if

the agency head does not object. The Secretary is also given discretion as to whether to debar a

contractor and cannot debar a contractor if an agency head concludes that there is a compelling