'Executive Orders and National Emergencies: How Presidents Have Come to "Run the Country" by Usurping Legislative Power' by William J. Olson and Alan Woll

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reason not to do so. The Executive Order's flexibility is said to ensure that intervention into labor

relations only occurs to the extent necessary to guarantee efficient and economical procurement.

We do not think the scope of the President's intervention into and adjustment of labor

relations policy is determinative, but despite the government's protestations, the impact of the

Executive Order is quite far-reaching. It applies to all contracts over $100,000, and federal

government purchases totaled $437 billion in 1994, constituting approximately 6.5% of the gross

domestic product. STATISTICAL ABSTRACT OF THE UNITED STATES 451 (1995). Federal

contractors and subcontractors employ 26 million workers, 22% of the labor force. GAO

REPORT. The Executive Order's sanctions for hiring permanent replacements, contract

debarment and termination, applies to the organizational unit of the federal contractor who has

hired permanent replacements. The organizational unit includes "any other affiliate of the person

that could provide the goods or services required to be provided under the contract." 60 Fed. Reg.

at 27,861 (emphasis added). If a local unit of Exxon had a contract to deliver $100,001 worth of

gas to a federal agency, the organizational unit would include all the other affiliates of Exxon that

could have provided the gas; no doubt a significant portion of the Exxon corporation. The broad

definition of "organizational unit" will have the effect of forcing corporations wishing to do

business with the federal government not to hire permanent replacements even if the strikers are

not the employees who provide the goods or services to the government. Indeed, corporations

who even hope to obtain a government contract will think twice before hiring permanent

replacements during a strike. It will be recalled that in Kahn, 618 F.2d at 79293, the government

itself asserted that controls imposed on government contractors--given the size of that portion of

the economy--would alter the behavior of non-government contractors.