Transcriber’s Notes:
Text enclosed by underscores is in italics (_italics_).
The whole number part of a mixed fraction is separated from the
fractional part with -, for example, 18-1/2.
Additional Transcriber’s Notes are at the end.
* * * * *
POWERS OF THE PRESIDENT DURING CRISES
POWERS
OF THE
PRESIDENT
DURING
CRISES
J. Malcolm Smith
and
Cornelius P. Cotter
PUBLIC AFFAIRS PRESS
WASHINGTON, D. C.
* * * * *
Copyright, 1960, by Public Affairs Press
419 New Jersey Avenue, S.E., Washington, D. C.
Printed in the United States of America
Library of Congress Catalog Card No. 59-14964
FOREWORD
The use of emergency power in a democracy raises many questions
relative to the constitutional basis for its authorization and the
manner of its exercise. If used too little and too late a democratic
state might be destroyed when the proper use of the emergency power
possibly could have saved it. If used arbitrarily and capriciously, its
use could degenerate into the worst form of dictatorship.
As a boy I was the chauffeur for a country doctor. One day while
driving to see a patient who was gravely ill, the doctor opened his
medicine chest and pointed to a glass vial containing morphine. “That
drug,” he said, “is the most potent medicine in my chest but requires
great skill in prescribing. Used properly it relieves pain and
suffering. Used improperly it makes animals of men.” Emergency power
bears to government the same general relationship of morphine to man.
Used properly in a democratic state it never supplants the constitution
and the statutes but is restorative in nature. Used improperly it
becomes the very essence of tyranny.
By reference to particular statutes and specific instances this volume
affords a graphic picture of the broad extent to which emergency power
has been employed by the United States government in recent years.
Many will view this development with alarm for the many instances of
its use make a lengthy list. Military emergency today is but one type
of national emergency. Catastrophes and economic emergencies may also
require the exercise of this type of power. Indeed, its use in this day
and time has been so frequent that the very term “emergency” is being
“shorn of meaning.”
In the present volume the authors describe and comment upon the use of
emergency power in the United States since 1933. It is their contention
that the use of emergency power was contemplated and provided for in
the Constitution. The law also provides restraints upon its use. As
Professor McIlwain has concluded, the proper test of constitutionalism
is the existence of adequate processes for keeping government
responsible. It is comforting to know that these processes exist within
our government. The primary requirement of all Americans, then, is to
keep government responsible and within these limitations, for only
when this is done can emergency power be justified under the law of the
land.
The always present danger is that emergency power may be used by
an officer or an agency of the government in order to have its own
way when constitutional or other legal restrictions might irritate
or interfere. This danger can be lessened by the selection of good
governmental personnel, but removed to a greater degree by the
enforcement of these constitutional and statutory limitations which are
made effective at times by resort to judicial review.
Readers will be indebted to the authors for this first exhaustive
account of the actual use of emergency power by the United States
government since 1933. The restraint on the freedom of the individual,
the regulation of private enterprise, the control of communications are
but some of the topics that receive minute and careful treatment. Some
readers will be concerned with the frequency of the resort to emergency
power and will view with uneasiness, as does this writer, the possible
curtailment of individual rights. Yet the authors would be the first to
agree with the statement that, “Freedom and civil liberties, far from
being incompatible with security, are vital to our national strength.”
Security and rights are here made interdependent. Others will take
satisfaction in the flexibility of the United States government that
can maintain its democratic character and still have the means of
preserving its existence under the tremendous pressure of a world war
and periods of economic crises. Irrespective of attitude, the present
volume is a telling account of the manner in which the government of
the United States has been made adaptable under the Constitution to the
problems and exigencies of the modern world.
ROBERT S. RANKIN
_Washington, D. C._
PREFACE
A preface is a kind of last call to dinner, as it were, in which the
authors suggest the purpose of their undertaking, chart the course they
have chosen to pursue, and acknowledge the help they have received.
This study of the President’s use of emergency powers grew out of
research and discussions in Washington, D. C., and at Harvard, the
University of California, and other institutions. In one sense, it is
a sequel to Dr. Cotter’s study of emergency powers in Great Britain,
prepared under Harvard’s Sheldon Travelling Fellowship during the
academic year 1951-52.
In preparing a political science course at the University of
California’s Riverside campus, one of the most significant gaps in
available sources and treatises about the Presidency concerned the vast
range of power, generally called emergency powers, available to the
Chief Executive should he choose to follow the prescription used by
many predecessors, notably F.D.R.
Both authors have, of course, profited from the monumental work of
Professor Edward S. Corwin, whose classic study, _The President: Office
and Powers_ remains the outstanding work in the field. Professor Robert
S. Rankin’s study, _When the Civil Law Fails_, contained valuable
historical data of particular importance. Both authors have also had
the inestimable privilege and opportunity of studying under Professor
Charles Fairman, now at Harvard Law School. Professor Fairman’s study,
_The Law of Martial Rule_, was very helpful in providing the historical
setting for government under military control. The authors were
fortunate in having read Professor Fairman’s paper delivered at the
National War College, “A Post-Atomic Attack Situation,” wherein it is
clearly brought forth that a complete plan and pattern for dealing with
a nuclear attack must be worked out that does envisage the restoration
of civil government to the nation as quickly as circumstances permit,
should the cold war ever turn into an all-out nuclear holocaust.
While the original work on the manuscript was completed before either
of the authors came to Washington, both have benefitted from the
experience of working in the Pentagon, the Commission on Civil Rights,
the Republican National Committee and the U. S. Senate. One is apt
to view the executive branch of government from a slightly different
perspective, once having been associated with “the Hill.” And, while
the Congress may feel powerless to act against a determined Chief
Executive, the power of the purse still provides the most effective of
all the “checks and balances” in our national government, except in
time of war.
The Fund for the Republic provided the authors with a grant-in-aid in
1955 to begin work on the book, although the Fund had no contact or
association with the authors during the preparation of the manuscript.
Parts of some chapters have previously appeared as article in the
_Western Political Quarterly_ and _The Journal of Politics_, and
the authors wish to acknowledge their appreciation at being able to
reproduce all or parts of these articles.
Mr. Warren Campbell served as a helpful research assistant while a
graduate student at Stanford and rendered invaluable aid. Dr. Norman
Small of the American Law Division of the Library of Congress performed
an essential editorial task in reading the entire manuscript and
suggesting very useful changes.
The authors are both grateful to Mrs. Connie Smith, a patient wife,
who spent long, dreary hours typing and re-typing the manuscript. And,
last, but by no means least, the authors reserve a special vote of the
very deepest appreciation to the Executive Director of Public Affairs
Press, Mr. M. B. Schnapper whose patience, confidence and continued
good humor made publication possible.
J. MALCOLM SMITH AND CORNELIUS P. COTTER
_Washington, D. C._
CONTENTS
I
Introduction 1
II
The Concept of Emergency in Democratic Political Thought 4
III
The Concept of Emergency in American Legislation 14
IV
Emergency Powers Over Persons 26
V
Governmental Acquisition of Property 47
VI
Regulation of Property 55
VII
Control of Communications 73
VIII
Legislative Restraints on the Administration of Emergency Powers 93
IX
Inter-Agency Relationships 110
X
Judicial Review 125
XI
Conclusions 144
References 147
Index 177
ABOUT THE AUTHORS
J. Malcolm Smith received his education at the U.S. Naval Academy, the
University of Washington, and Stanford University. After three years
as an officer in the Army during World War II, he received an A.B.
degree from the University of Washington in 1946, and an M.A. (1948)
and Ph.D. (1951) from Stanford University. He has combined academic
and governmental service since he began his career as an instructor
in political science at Stanford University in 1947. He has taught at
Columbia University and the University of California. He organized the
first World Affairs Council in Los Angeles, for the Foreign Policy
Association and served as its first Executive Director from 1952-54.
Since coming to Washington, D. C., Mr. Smith served as a consultant to
the Assistant Secretary of the Air Force (1957-58), and the President’s
Commission on Civil Rights (1958-59) before joining the staff of
Senator Thomas H. Kuchel of California as Assistant to the Minority
Whip of the U.S. Senate.
Cornelius P. Cotter began his academic career at Stanford University
in 1946 following three years as a Navy Seabee in the Pacific during
the Second World War. He received his A.B. in 1949 from Stanford,
and an M.P.A. (1951) and Ph.D. in government (1953) from Harvard
University. He was a Sheldon Travelling Fellow from Harvard University
to the University of London from 1951-52. After serving as Instructor
in Government at Columbia University 1952-53, he returned to his
alma mater, Stanford, in 1953 as an Assistant Professor of Political
Science. He is currently on leave as an Associate Professor from
Stanford University to serve as a special assistant to the Chairman
of the Republican National Committee, Senator Thruston B. Morton.
From December 1958 to December 1959, he served as the Citizenship
Clearinghouse Fellow to the Republican National Committee.
The authors have contributed to the Western Political Quarterly,
Stanford Law Review, the Journal of Politics, and the Midwestern
Political Science Review. Currently they are collaborating on a
textbook in American Government.
This study of presidential emergency powers was initiated by the
authors in 1955 while teaching at Stanford and the University of
California; revision and expansion were undertaken in Washington, D.
C., during 1959 and 1960.
CHAPTER I INTRODUCTION
The general welfare, and military effectiveness of a modern industrial
nation depend upon the harmonious interaction of a complex,
interdependent network of production and transportation facilities.
The interruption of this process at any of a myriad of critical points
can disrupt the supply of essential civilian and military materials,
possibly undermining the economic health or military security of the
nation.[1] The urban concentration of population and the refinement of
communication devices and techniques for manipulating public opinion
make it increasingly possible to instill in the civilian population
an hysteria and terror which could effectively thwart national
mobilization.[2] Realization of the magnitude of the problem, and a
pervasive fear of military assault, vitally influence the process of
continuous redefinition of the balance between collective authority and
individual liberty which is the essential task of democratic government
in war as in peace. Emergency government has become the norm for
twentieth century constitutional states.
An assessment of the adequacy with which democratic government has, in
the recurrent economic and military emergencies since 1933, combined
mobilization of “the ... power of every individual and of every
material resource at its command”[3] toward the objective of national
survival and well-being, with the protection of basic individual
freedoms and the principle of responsible government which are the
heart of democracy, must in substantial part rest upon an analysis of
the contents of the statute books. That is the purpose of this study.
Its classification of legislative delegations of emergency powers to
the executive since 1933 should provide not only indication of the
extent to which coercive powers over persons and property have been
granted the executive in the name of emergency, but also a framework
for the organization of a series of studies into the use of such powers
by the executive branch, and the success of congressional and other
efforts to maintain responsible administration in time of emergency.
There exists no dearth of recorded efforts to define the ultimate
scope of the constitutional emergency power of the American executive.
Various justices of the Supreme Court have hypothesized, at one end
of a continuum, inflexible constitutional restraints upon executive
response to perceived emergency,[4] and at the other end an emergency
power which is either unrestrained[5] or unrestrainable.[6] In this
manner the Supreme Court has sought to resolve the conundrum, “How
can a virtually unlimited emergency power and a systematic body of
constitutional limitations upon government action logically coexist?
How can constitutionalism be ought but an anachronism in the twentieth
century unless constitutional governments are equipped with adequate
legal authority to carry the body politic through economic and military
emergencies of staggering dimensions?”
The considerable body of scholarly literature in this field is
principally devoted to speculation on the breadth of the “inherent,”
“residual,” “executive,” or “war” power of the President, and
description of occasions on which the nation’s chief executives have
considered it necessary to exercise a prerogative “power to act
according to discretion for the public good, without the prescription
of the law and sometimes even against it.”[7] But despite such
incidents as President Roosevelt’s 1942 Labor Day speech admonishing
the Congress that unless it repealed certain provisions of the
Emergency Price Control Act by October 1st, he would consider them
repealed,[8] emergency administration is overwhelmingly characterized
by joint participation and cooperation of the varying branches of
the federal government. American government in time of war does not
degenerate to anything resembling dictatorship, and to focus attention
upon the exceptions to executive-legislative cooperation in war
administration is to study the pathology of emergency administration.
The statute books provide at any given time a more accurate indication
of the breadth and limits of executive emergency power than do exegeses
on the Constitution, or histories emphasizing executive action
unsupported by Congress. For in theory[9] and in practice the President
will resort to an “inherent” emergency power only to the extent to
which Congress has failed to anticipate and prescribe remedial action
for such an emergency. On the assumption that a detailed study of the
emergency powers which have been delegated to the executive by Congress
in the immediate past provides insight into the probable range of such
powers which will be exercised by government in the future, the authors
have undertaken to survey and classify such delegations in the period
1933 to 1955.[10]
It is believed that the accumulation in selected contexts of the
instances of legislative delegation of emergency power will provide
striking revelation of the scope and detail of control over individuals
and groups which is practiced by constitutional governments in time of
emergency. To this we now turn.
CHAPTER II THE CONCEPT OF EMERGENCY IN DEMOCRATIC POLITICAL THOUGHT
When President Eisenhower on June 16, 1955 suspended the privilege
of the writ of _habeas corpus_ and declared a nationwide state of
mock martial law, in response to simulated A-bomb and H-bomb attacks
taking a toll of some 14 million civilian casualties, he acted on the
premise that the ordinary processes of democratic and constitutional
government do not suffice to protect the state in time of emergency and
must surrender to a modified authoritarian regime.[11] This premise
is deeply embedded in the teachings of democratic political theory,
which in its traditional and contemporary expression have counseled the
need to abandon the processes of democratic government as the first
essential response to emergency conditions.
Thus, ironically, the Western democracies which today approach the
close of three decades of economic and military emergency, and turn
their faces to additional decades in the shadow-land between peace and
war, are offered a guiding theory which regards emergency governance
as an aberration, supplanting the relationships between the various
branches of government, and between rulers and ruled which prevail
in “normal” times. In theory the struggle to preserve limited and
popularly responsible government has already been lost, for this is a
luxury we are told we cannot afford.
In the United States we have been especially prone to accept the
alleged need for transition from responsible to authoritarian
government in time of emergency, for we have on the one hand accepted
an interpretation of the Constitution whereunder the rigid restraints
imposed thereby on governmental power are susceptible of contradiction
in time of emergency, and on the other hand we have with considerable
complacence assigned to the Supreme Court the function of protecting
the essentials of constitutionalism and democracy through periods of
emergency. These two attitudes combine to enhance the sense of need
and lull the fear of supposedly temporary reversions to authoritarian
government.
In the belief that it is increasingly essential that emergency action
be sustained by a workable and empirically-based theory of democratic
emergency governance, the authors have undertaken, in the present
study, to survey the treatment of emergency by democratic political
theorists; to review the work of the Supreme Court in assessing the
validity of governmental exercises of emergency powers (placing special
emphasis upon the implications of the 1952 “Steel Seizure” cases); and,
in conclusion, to submit tentatively an approach to emergency which
they consider related to the needs of today and the realities of recent
experience.
Democratic political theorists traditionally have assumed the need in
time of emergency to subvert the governmental processes prescribed
for peacetime and to rely upon a generically different method of
government, frequently designated “constitutional dictatorship.” Many
factors contribute to this tendency.
First, it must be recognized that a theory of democratic government so
comprehensive as to traverse every vicissitude which might confront it
cannot reasonably be demanded of political philosophers.
Second, a certain amount of inertia is inevitable in any phase of man’s
endeavors. Thus it is not surprising that political theorists to date
have picked up the traditional interpretation of emergency in terms of
the Roman dictatorship and fitted it to their schemes of constitutional
government. It is a safely ambiguous doctrine with the respectability
of age. It invests an aspect of the experience of constitutional
democracies, about which very little in the way of cumulative knowledge
has been attained, with an aura of reassuring and doctrinaire certainty.
A third factor influencing the casual reliance of democratic theorists
on emergency dictatorship is the tendency to polarize the concept of
“limited” government and the supposed need for “unlimited” emergency
action. This is related to the tendency to exaggerate substantively
limited (enumerated) powers, and compartmentalized powers as integral
elements in the concept of constitutionalism.[12] In positing rigidly
circumscribed and divided governmental powers, one posits a need
contingent upon emergency to transcend such limitations. The doctrine
of constitutional dictatorship fulfills this need.
DEMOCRATIC POLITICAL THEORISTS
John Locke, describing the architecture of civil government, called
upon the English doctrine of prerogative to cope with the problem of
emergency. In times of danger to the nation, positive law set down
by the legislature might be inadequate or even a fatal obstacle to
the promptness of action necessary to avert catastrophe. In these
situations the Crown retained a prerogative “power to act according to
discretion for the public good, without the prescription of the law and
sometimes even against it.”[13] The prerogative “can be nothing but the
people’s permitting their rulers to do several things of their own free
choice where the law is silent, and sometimes too against the direct
letter of the law, for the public good and their acquiescing in it when
so done.”[14]
Properly the prerogative was exercisable only for the public good.
But Locke recognized that this moral restraint might not suffice to
avoid abuse of prerogative powers. When one government has utilized
prerogative powers for the public good, a successor may retain the
habit or resort to such powers, utilizing them for a less worthy
purpose.[15] Who shall judge the need for resorting to the prerogative,
and how may its abuse be avoided? Here Locke, too, readily admits
defeat, suggesting that “the people have no other remedy in this, as
in all other cases where they have no judge on earth, but to appeal to
Heaven.”[16]
Rousseau also assumed the need for temporary suspension of democratic
processes of government in time of emergency:
“The inflexibility of the laws, which prevents them from adapting
themselves to circumstances, may, in certain cases, render them
disastrous, and make them bring about, at a time of crisis, the ruin of
the State....
“It is wrong therefore to wish to make political institutions so strong
as to render it impossible to suspend their operation. Even Sparta
allowed its laws to lapse.
“... If ... the peril is of such a kind that the paraphernalia of the
laws are an obstacle to their preservation, the method is to nominate a
supreme ruler, who shall silence all the laws and suspend for a moment
the sovereign authority. In such a case, there is no doubt about the
general will, and it is clear that the people’s first intention is that
the State shall not perish. Thus the suspension of the legislative
authority is in no sense its abolition; the magistrate who silences it
cannot make it speak; he dominates it, but cannot represent it. He can
do anything, except make laws.”[17]
Rousseau did not fear the abuse of the emergency dictatorship or
“supreme magistracy” as he termed it. It would more likely be cheapened
by “indiscreet use.”[18]
He would rely upon a tenure of office of prescribed duration to avoid
perpetuation of the dictatorship:
“However this important trust be conferred, it is important that its
duration should be fixed at a very brief period, incapable of being
ever prolonged. In the crises which lead to its adoption, the State
is either soon lost, or soon saved; and, the present need passed,
the dictatorship becomes either tyrannical or idle. At Rome, where
dictators held office for six months only, most of them abdicated
before their time was up. If their term had been longer, they might
well have tried to prolong it still further, as the decemvirs did when
chosen for a year. The dictator had only time to provide against the
need that had caused him to be chosen; he had none to think of further
projects.”[19]
Rousseau was unwilling to rely upon an “appeal to Heaven.”
John Stuart Mill concluded his ardent defense of representative
government with a shattering aside: “I am far from condemning, in cases
of extreme necessity, the assumption of absolute power in the form of
a temporary dictatorship.”[20] This is not a loose usage of the term
“dictatorship,” but a forthright support of a grant of “absolute power”
to the dictator.
Just as in political theory the nineteenth century liberals neglected
adequately to provide for the problems which war creates, so also in
their economic theory they ignored the dislocations of a war period.
In his study of war in the nineteenth century,[21] Edmund Silberner
has shown how the liberals’ repugnance to the destructiveness of war,
their conviction of its immorality and stupidity, coupled with their
faith that the economic and cultural bonds which would be created among
nations by extensive free trade would prevent future wars, caused
them to neglect adequate theoretical treatment of the problem of war
in their economic thought. Silberner points out, for example, that in
his chief work, _Elements of Political Economy_ (1821), James Mill
virtually does not deal at all with war.[22] And Mill’s distinguished
son is brief on the subject of war. John Stuart Mill, according to
Silberner’s interpretation, seemed to admit that virtually everything
that can be said on this theme had already been expressed before
him.[23]
Thus do democratic political theorists tacitly admit the existence of a
fatal defect in any system of constitutional democracy: Its processes
are inadequate to confront and overcome emergency.
MACHIAVELLI
Machiavelli’s view of emergency powers as one element in the whole
scheme of limited government furnishes an ironic contrast to the
Lockean theory of prerogative. He recognized and attempted to bridge
this chasm in democratic political theory:
“Now in a well-ordered republic it should never be necessary to resort
to extra-constitutional measures; for although they may for the time
be beneficial, yet the precedent is pernicious, for if the practice is
once established of disregarding the laws for good objects, they will
in a little while be disregarded under that pretext for evil purposes.
Thus no republic will ever be perfect if she has not by law provided
for everything, having a remedy for every emergency, and fixed rules
for applying it.”[24]
Machiavelli attempted, perhaps without complete success, but with
greater caution than the later theorists, to design a system of
constitutionalized emergency powers.
The incumbent executive authority, on finding that an emergency
existed, could appoint a temporary “dictator”[25] on the Roman model.
The constitution was not suspended, and the emergency executive did
not enjoy absolute power. His narrow function was to cope with the
emergency.[26] He operated under the surveillance of the regularly
constituted legislators and government officials. A key element of
Machiavelli’s scheme was a short term of office--“and I call a year or
more a long time.”[27]
Thus Machiavelli--in contrast to Locke, Rousseau and Mill--sought to
incorporate into the constitution a regularized system of standby
emergency powers to be invoked with suitable checks and controls in
time of national danger. He attempted forthrightly to meet the problem
of combining a capacious reserve of power and speed and vigor in
its application in time of emergency, with effective constitutional
restraints.
CONTEMPORARY THEORISTS
Contemporary political theorists, addressing themselves to the problem
of response to emergency by constitutional democracies, have employed
the doctrine of constitutional dictatorship. Criticism of their schemes
for emergency governance is made difficult by the ambiguities latent
in the terminology they adopt. An effort is made below to distinguish
between those who mean dictatorship when they say dictatorship, and
those who say dictatorship when they mean to refer to any effort
by constitutional government to respond adequately to emergency
conditions. However idiosyncratic the individual definitions of
dictatorship, the theories of constitutional dictatorship explicitly or
implicitly posit a transition in time of emergency from the processes
of constitutionalism to those of an outright or slightly modified
authoritarian system.
Frederick M. Watkins, who is responsible for the classic study of the
Weimar experience with emergency powers,[28] appears to have based
his general discussion of emergency powers upon _a priori_ reasoning
rather than upon empirical research.[29] Provided it “serves to protect
established institutions from the danger of permanent injury in a
period of temporary emergency, and is followed by a prompt return to
the previous forms of political life,” Watkins can see “no reason why
absolutism should not be used as a means for the defense of liberal
institutions.”[30] He recognized the two key elements of the problem
of emergency governance, as well as all constitutional governance:
increasing administrative powers of the executive while at the same
time “imposing limitations upon that power.”[31] He rejects legislative
checks upon the exercise of executive emergency powers as an effective
method of imposing such limitations, for “it is clearly unrealistic to
rely on a government-controlled majority in the legislature to exercise
effective supervision over that same government in its use of emergency
powers.”[32] On the other hand, judicial review of executive emergency
action on its merits is regarded with admiration tempered only by
regret at the delay inherent in judicial proceedings.[33]
Watkins places his real faith in a scheme of “constitutional
dictatorship.” These are the conditions of success of such a
dictatorship: “The period of dictatorship must be relatively short....
Dictatorship should always be strictly legitimate in character....
Final authority to determine the need for dictatorship in any given
case must never rest with the dictator himself....”[34] The objective
of such an emergency dictatorship should be “strict political
conservatism.”
“Radical social and economic measures may, of course, be necessary as
a means of preventing political change.... Boldly inventive as it may
be in other directions, however, a truly constitutional dictatorship
must always aim at the maintenance of an existing _status quo_ in the
field of constitutional law. Deviations from the established norms of
political action may be necessary for the time being. The function of
a truly constitutional dictatorship is to provide such deviations and
at the same time to make sure that they do not go any further than is
actually necessary under the circumstances.”[35]
Carl J. Friedrich casts his analysis in terms similar to those of
Watkins.[36] It is a problem of concentrating power--in a government
where power has consciously been divided--“to cope with ...
situations of unprecedented magnitude and gravity.[37] There must be
a broad grant of powers, subject to equally strong limitations as
to who shall exercise such powers, when, for how long, and to what
end.”[38] Professor Friedrich, too, offers criteria for judging the
adequacy of any scheme of emergency powers. The emergency executive
(“dictator”) must be appointed by constitutional means--_i.e._, he
must be legitimate; he should not himself enjoy power to determine
the existence of an emergency (and here, strangely enough, he finds
the United States and Great Britain conforming to the criterion);
emergency powers should be exercised under a strict time limitation;
and last, the objective of emergency action must be the defense of the
constitutional order.[39]
Recognizing that “there are no ultimate institutional safeguards
available for insuring that emergency powers be used for the purpose of
preserving the constitution” excepting “the people’s own determination
to see them so used,” Friedrich nonetheless sees some indefinite but
influential role which the courts, even though “helpless in the face of
a real emergency,” may play to restrict the use of emergency powers to
legitimate goals. They may “act as a sort of keeper of the President’s
and the people’s conscience.”[40]
Clinton L. Rossiter, after surveying the recent history of the
employment of emergency powers in Great Britain, France, Weimar
Germany, and the United States, reverts to a description of a scheme
of “constitutional dictatorship” as solution to the vexing problems
presented by emergency.[41] Like Watkins and Friedrich, he is concerned
to state, _a priori_, the conditions of success of the “constitutional
dictatorship.”
“1. No general regime or particular institution of constitutional
dictatorship should be initiated unless it is necessary or even
indispensable to the preservation of the state and its constitutional
order....
“2. ... the decision to institute a constitutional dictatorship should
never be in the hands of the man or men who will constitute the
dictator....”[42]
“3. No government should initiate a constitutional dictatorship without
making specific provision for its termination....
“4. ... all uses of emergency powers and all readjustments in the
organization of the government should be effected in pursuit of
constitutional or legal requirements....
“5. ... no dictatorial institution should be adopted, no right invaded,
no regular procedure altered any more than is absolutely necessary for
the conquest of the particular crisis....
“6. The measures adopted in the prosecution of a constitutional
dictatorship should never be permanent in character or effect....
“7. The dictatorship should be carried on by persons representative of
every part of the citizenry interested in the defense of the existing
constitutional order....
“8. Ultimate responsibility should be maintained for every action taken
under a constitutional dictatorship....
“9. The decision to terminate a constitutional dictatorship, like the
decision to institute one, should never be in the hands of the man or
men who constitute the dictator....
“10. No constitutional dictatorship should extend beyond the
termination of the crisis for which it was instituted....
“11. ... the termination of the crisis must be followed by as
complete a return as possible to the political and governmental
conditions existing prior to the initiation of the constitutional
dictatorship....”[43]
Rossiter accords to the legislature (in the case of the United States,
at any rate) a far greater role in the oversight of executive exercise
of emergency powers than does Watkins. He would secure to Congress
final responsibility for declaring the existence or termination of
an emergency,[44] and he places great faith in the effectiveness of
congressional investigating committees.[45] In this work he offers no
clear statement of the proposed relationship of the judiciary to his
scheme of “constitutional dictatorship.” In a subsequent study, he
concluded on the basis of a critical review of the Supreme Court that
it was impotent “as overseer and interpreter of the war powers.”[46]
CONTEMPORARY THEORIES IN THE LIGHT OF RECENT EXPERIENCE.
The suggestion that democracies surrender the control of government to
an authoritarian ruler in time of grave danger to the nation is not
based upon sound constitutional theory, or the experience of Great
Britain or the United States in this century.
To appraise emergency powers--in spite of all experience to the
contrary--in terms of the Procrustean mold of constitutional
dictatorship serves merely to distort the problem and hinder realistic
analysis. It matters not whether the term “dictator” is used in its
normal sense (as applied to recent authoritarian rulers) or is employed
as Friedrich makes explicit[47] and Rossiter implies, to embrace
all chief executives administering emergency powers. However used,
“constitutional dictatorship” cannot be divorced from the implication
of suspension of the processes of constitutionalism. Suspension is
required because constitutionalism is viewed as a system imposing and
providing inflexible safeguards against evasion of these limitations.
A concept of constitutionalism which is less misleading in the analysis
of problems of emergency powers, and which is consistent with the
findings of this study, is that formulated by Charles H. McIlwain.[48]
While it does not by any means necessarily exclude some indeterminate
limitation upon the substantive powers of government, full emphasis
is placed upon procedural limitations, and political responsibility.
McIlwain clearly recognized the need to repose adequate power in
government. And in discussing the meaning of constitutionalism he
insisted that the historical and proper test of constitutionalism
was the existence of adequate processes for keeping government
responsible. He refused to equate constitutionalism with the enfeebling
of government by an exaggerated emphasis upon separation of powers
and substantive limitations on governmental power. He found that
“the really effective checks on despotism have consisted not in the
weakening of government, but rather in the limiting of it; between
which there is a great and very significant difference.”[49] In
associating constitutionalism with “limited” as distinguished from
“weak” government, McIlwain meant government limited to the orderly
procedure of law as opposed to the processes of force.[50] “The two
fundamental correlative elements of constitutionalism for which all
lovers of liberty must yet fight are the legal limits to arbitrary
power and a complete political responsibility of government to the
governed.”[51]
If such is the basic nature of constitutionalism, it does not wrap
government in the steel bonds of a series of substantive limitations,
or compartmentalize power in discrete units.[52] The true nature of
the issue which emergency presents for constitutional governments
may then be recognized: It is the two-pronged problem of determining
the extent to which the objectives of human action shall be socially
defined and achieved or self-determined by the individual or group;[53]
and, correlatively, that of balancing, through adequate legislative,
administrative and judicial checks, the increased discretionary powers
of the executive which accompany expanded governmental functions. It
is a matter of historical fact that modern constitutional democracies
have not, upon the rise of emergency conditions, found it necessary
to suspend constitutional processes, or to resort to the schemes for
organization of power hypothesized by those who hitherto have written
on the subject.
What the British, particularly, have come to recognize in the course
of the last five decades is that emergency governance is one form of
an acute and continuing problem in modern constitutional democracies:
that of allotting increasing areas of discretionary powers to the
executive, while insuring that such powers will be exercised with a
sense of political responsibility and under effective limitations
and checks.[54] In time of emergency, governmental action may vary
in breadth and intensity from more normal times, yet it need not be
less constitutional. In time of war as in peace government according
to the orderly procedure of the law, and government responsible to
the governed, has proven its ability to meet the needs imposed by the
accelerated tempo and the growing complexity of the twentieth century.
CHAPTER III THE CONCEPT OF EMERGENCY IN AMERICAN LEGISLATION
Emergency, as a generic term applicable to individual and group
situations as well as to the state, connotes the existence of
conditions suddenly intensifying the degree of existing danger to life
or well-being beyond that which is accepted as normal. (A standard
dictionary definition mentions the element of surprise, which may be
present but is by no means necessarily integral to the existence of an
emergency. An intense threat to life or well-being is not necessarily
lessened by anticipation.) An emergency requires extraordinary and
prompt corrective action. A typical British recital of the proper
objectives of emergency action inferrentially includes “... securing
the public safety, the defense of the realm, the maintenance of public
order and the efficient prosecution of any war in which His Majesty
may be engaged, and ... maintaining supplies and services essential
to the life of the community.”[55] Public disorder, war and threat of
invasion, interruption of the production or flow of essential supplies
and services--any of these may intensify danger to life or well-being
beyond acceptable limits. A similarly broad definition is contained
in the American Labor-Management Relations Act of 1947, the national
emergency section of which permits the President to curb strike action
which “if permitted to occur or to continue, [would] imperil the
national health or safety.”[56]
Implicit in these definitions are the elements of intensity, variety,
and perception. Presumably when the point of normal tolerance of danger
has been passed, it remains possible to measure the intensity of the
danger according to some scale. Obviously there are varieties of
emergency. A war emergency differs in some respects from an emergency
caused by natural catastrophe or industrial unrest. Emergencies vary in
their source or cause, and in their impact. Finally, before corrective
action can be taken, someone in a position of authority must perceive
the existence of the emergency.
It would be idle to conduct an analysis of the problem of emergency
in the constitutional state without first determining the range of
situations which have been recognized by democratic legislatures and
executives to constitute emergencies--_i.e._, to warrant exceptionally
quick, vigorous, and possibly novel action. When the legislature
enacts a standby statute, instead of itself proclaiming an emergency,
to whom does it entrust the power to determine the existence of an
emergency, and within what limits? What are the powers which democratic
legislatures grant the executive branch, enabling it to so order
individual and group behavior as, in the first instance, to avoid
intensification of the threat to the life or well-being of community
and state, and ultimately restore conditions to normal? Finally, what
if any measures are prescribed for insuring responsible administration
of such powers?
This chapter is addressed to the basic questions going to the nature of
emergency--intensity, variety, perception. The remaining parts of this
study respond to the other questions posed above.
EMERGENCIES VARY IN INTENSITY
The executive and the legislature certainly appear to think in terms
of a scale of intensity when they declare emergencies. We might,
perhaps, project our listing from the shadow land verging upon or
falling just short of emergency. A Presidential Proclamation of 1934
speaks of regulations justified by the existence of “exceptional and
exigent circumstances.”[57] The Central Intelligence Agency Act of 1949
uses the terms extraordinary and emergency interchangeably, speaking
of expenditure of unaudited funds “for objects of a confidential,
extraordinary, or emergency nature.”[58] The simple declaration “that a
national emergency exists,”[59] contained in the President’s September
8, 1939 Proclamation of a neutrality emergency, will serve as well
as any other enactment as a characteristic example of the scale of
intensity necessary to declare a national emergency.
Beyond this intensity of emergency, Congress has addressed itself
to “distressed” emergencies,[60] “serious” emergencies,[61]
“intensified” emergencies,[62] “unprecedented” emergencies,[63] “acute”
emergencies,[64] and at the outer extreme, “unlimited” emergencies.[65]
VARIETIES OF EMERGENCY
Emergencies, as perceived by legislature or executive in the United
States since 1933, have been occasioned by a wide range of situations,
classifiable under three principal heads: a. economic, b. natural
disaster, and c. national security.
ECONOMIC EMERGENCIES
_Depression_: President Roosevelt in declaring a bank holiday a few
days after taking office in 1933 proclaimed that “heavy and unwarranted
withdrawals of gold and currency from ... banking institutions for the
purpose of hoarding; and ... continuous and increasingly extensive
speculative activity abroad in foreign exchange” resulting in “severe
drains on the Nation’s stocks of gold ... have created a national
emergency,” requiring his action.[66] The Bank Conservation Act, passed
a few days later gave the President plenary power in time of war or
during any other period of “national emergency” to control transactions
in foreign exchange, transfers of payment, and prevention of hoarding.
It also declared “that a serious emergency exists and that it is
imperatively necessary speedily to put into effect remedies of uniform
national application.”[67] Later in March, in permitting Federal
Reserve Bank loans to state banks and trust companies, Congress made
specific reference to the existing emergency in banking.[68]
The Federal Emergency Relief Act of 1933 opened with a declaration that
the economic depression created a serious emergency, due to wide-spread
unemployment and the inadequacy of State and local relief funds,
resulting in the existing or threatened deprivation of a considerable
number of families and individuals of the necessities of life, and
making it imperative that the Federal Government cooperate more
effectively with the several States and Territories and the District of
Columbia in furnishing relief to their needy and distressed people.[69]
Here then was an emergency created by the inadequacy of previous effort
to cope with abnormal threats to the well-being of the population. The
Municipal Bankruptcy Act of May 24, 1934 also described the emergency
in terms which related it to the inability of local government
units to function properly. Congress declared a national emergency
existed, caused by the increasing financial difficulties of many local
governmental units, which rendered imperative “the further exercise of
the bankruptcy powers of the Congress.”[70]
On the same day that he signed the Emergency Relief Act, the President
also signed an Act describing another facet of the emergency. The
latter Act stated “the present acute economic emergency” was in
part the result of very low prices for farm products. The effect of
declining income for the American farmer had virtually destroyed
his purchasing power, thus undermining the agricultural assets
supporting the national credit structure.[71] The causal phenomena for
declarations of emergency were, according to the statutes, heavy and
unwarranted withdrawals of gold, severe drains on the Nation’s stocks
of gold, widespread unemployment, and a severe and increasing disparity
between the prices of agricultural and other commodities. Efforts to
meet the emergency situation were directed immediately to ameliorate
the existing emergency conditions and ultimately so alter the causal
phenomena as to eliminate the causes of the existing threat to national
well-being. The Gold Reserve Act of 1934 made passing reference to “the
existing emergency.”[72] The President in January 1936 proclaimed that
this emergency had not been terminated but, on the contrary, had been
intensified in different ways by unsettled conditions in international
commerce and finance and in foreign exchange.[73] As late as 1941
Congress continued certain of the powers delegated in the Gold Reserve
Act until June 1943 “unless the President shall sooner declare the
existing emergency ended.”[74]
In 1953 Congress authorized the President to declare the existence
of economic disaster in any area. Thereafter the Secretary of
Agriculture, on finding that an economic disaster had created a need
for agricultural credit that could not be met for a temporary period
from commercial banks or other responsible sources, might authorize
emergency loans to farmers.[75]
Some statutes, on the other hand, identify emergency with the causal
phenomena instead of their product. The National Industrial Recovery
Act, for example, simply declared that a national emergency existed.
This emergency, according to the statute was productive of widespread
unemployment and disorganization of industry, which burdened interstate
and foreign commerce, affected the public welfare, and undermined the
standards of living of the American people.[76]
The Securities Exchange Act of 1934 found that national emergencies,
which produced widespread unemployment and the dislocation of
trade, transportation, and industry, burdened interstate commerce
and adversely affected the general welfare, were “precipitated,
intensified, and prolonged by manipulation and sudden and unreasonable
fluctuations of security prices and by excessive speculation on such
exchanges and markets.”[77] In these two statutes the term emergency
is first used in a context associating it with causal agency, and
secondly as something intermediate between the causal agents and the
disagreeable ultimate effects.
While calling attention to the occasionally variable usage of the term
emergency, we by no means intend to develop a metaphysics of emergency
in order to settle the question whether it is rightfully applied
to cause, effect, or something intermediate. We are satisfied to
accept the overwhelming legislative tendency to apply the term to the
undesired effects of events, attributing variant usages to imprecise
draftmanship.
At this point it is appropriate to indicate that many statutes (some
of which are described here; some of which, for sake of brevity or
avoiding the redundant, are not) either declare the existence of,
or describe action to be taken in the event of the occurrence of,
a situation which by other statutes has been termed an emergency.
Statutes in this category, describing the situation but refraining from
applying the term emergency to them, are illustrated by the following:
A Tariff Act amendment of June 1934 gives the President the power
to curtail imports if he finds that existing duties or other import
restrictions of the United States or any foreign country burden and
restrict the foreign trade of the United States.[78] The Securities
Exchange Act associates emergency, among other things, with the
burdening of interstate and foreign commerce.
Did Congress intend the Tariff Act Amendment as an emergency statute?
At that particular time, probably not. But later amendments to the
Tariff Act specifically refer to emergency conditions affecting the
American fisheries industry. We do not believe it is necessary to
ferret out the precise Congressional intent in Acts which do not
explicitly use the term emergency or describe the object of correcting
legislation in terms which clearly reflect Congress’ finding that an
emergency exists.
_Inflation_: We have included in the economic section some of the
statutes designed to prevent or alleviate wartime inflation. Enacted
within months after Japan’s attack on Pearl Harbor, the Emergency Price
Control Act of 1942 was designed to prevent economic dislocations
from endangering the national defense and security and the effective
prosecution of the war.[79] The factors contributing to the national
emergency included “speculative, unwarranted, and abnormal increases
in prices and rents; ... profiteering, hoarding, manipulation,
speculation, and other disruptive practices.” The war effort would
be aided through insuring that defense appropriations were not
dissipated by excessive prices; by protecting persons with relatively
fixed and limited incomes, consumers, wage earners, investors, and
persons dependent on life insurance, annuities, and pensions, from
undue impairment of their standard of living through skyrocketing
prices. Colleges, local government units, and other institutions
with relatively fixed incomes were also to be protected against the
inflationary spiral. The emergency price control measure was formulated
in anticipation of a possible post emergency collapse of values and was
aimed at the avoidance thereof.
The Proclamation of May 27, 1941, in which President Roosevelt declared
the existence of an unlimited emergency caused by the supposed expanded
war aims of the Axis powers, carefully translated the emergency into
economic terms. The President advised businessmen that in maximizing
war production they would be protecting a world in which free
enterprise could exist; and workingmen, in so doing, would protect a
society in which labor and management could bargain on free and equal
terms. Benefits were also forecast for privately endowed institutions
and local governmental units.[80] The extension of price controls in
1946 was attributed to the continued existence “of abnormally excessive
spending power in relation to the presently available supply of
commodities.”[81] And the Renegotiation Act was addressed to meeting
the emergency within an emergency created by the wartime disruption
of competitive conditions in regard to the placing of defense
contracts.[82]
_Strikes_: The Emergency Railroad Transportation Act of 1933 was
designed to relieve obstructions and burdens on interstate commerce
resulting from “the present acute economic emergency.”[83]
The Railway Labor Act of 1934 thereupon sought, by imposing collective
bargaining upon the railroads and through a National Mediation Board
and _ad hoc_ emergency boards appointed by the President (nothing
new, of course, in railroad regulation), to avoid exacerbation of
the emergency through rail strikes.[84] The War Labor Disputes Act
permitted drastic presidential and War Labor Board regulation of
labor-management relations to avoid impeding or delaying the war effort
in consequence of strikes.[85] The Labor Management Relations Act,
better known as the Taft-Hartley Act, created special procedures for
delaying strikes whenever in the opinion of the President a threatened
strike or lock-out affecting an entire industry or substantial part
thereof would imperil the national health or safety if the strike
occurred or were allowed to continue. This Act of course, grants the
determining power to the President only where interstate commerce, in
all its varieties, is involved.[86]
_Housing_: The Veterans’ Emergency Housing Act of 1946 declared that
the long-term housing shortage and the war combined to create an
unprecedented emergency shortage of housing, particularly for veterans
of World War II and their families.[87] President Truman promptly cited
the building program provided for in the Act and the unprecedented
emergency shortage of housing in exercising his authority under the
Tariff Acts to remove the duty from articles certified by the Housing
Expediter as timber, lumber, or lumber products suitable for the
construction or completion of housing accommodations.[88] The Housing
and Rent Act of 1949 also was directed at this emergency.[89]
_Agricultural Commodities_: Congress occasionally has recognized the
existence of an emergency with regard to a particular agricultural or
other commodity. Without using the term emergency, Congress plainly was
taking emergency action when it adopted a concurrent resolution in June
1934 directing the Federal Trade Commission to investigate conditions
with respect to the sale and distribution of milk and other dairy
products.[90] Decline in the price of milk to the farmer had produced
severe hardships and suffering to milk producers throughout the United
States and strikes and violence in many rural and metropolitan centers.
The Resolution went on to say that the continuation of the practices
then engaged in by milk distributors and certain leaders of milk
cooperatives, seriously endangered the efforts of the Agricultural
Adjustment Administration and of the several States to alleviate and
remedy the distress so widespread among dairy farmers in the United
States at the time. If this distress were permitted to continue
the result would be the destruction of the already sorely pressed
agricultural industry. Congress clearly noted the inability of the
states to cope with an emergency situation and proceeded to initiate
its own action.
In like manner the Tobacco Control Act of 1934 was aimed at improving
conditions in the tobacco-growing industry by placing it on a sound
financial and economic basis and by eliminating unfair competition and
practices in the production and marketing of tobacco entering into
the channels of interstate and foreign commerce. Moreover the Act was
in general designed to “relieve the present emergency with respect to
tobacco.”[91] The Sugar Act of 1937 permitted the President to suspend
certain of its provisions upon a finding that a national economic or
other emergency exists with respect to sugar or liquid sugar.[92] The
President found conditions sufficiently severe in the sugar industry to
declare a sugar emergency in 1939, 1942, and 1947.[93]
A 1942 Presidential Proclamation noted that codfish constituted one
of the basic staples in the diet of the low-income groups in Puerto
Rico. Unfortunately, the war imposed severe limitations on this import
from Canada, Newfoundland and Labrador, thereby vitally affecting
Puerto Ricans dependent on this basic food in their diet.[94] The
President sought a quick remedy by invoking the emergency provisions
of the Tariff Act of 1930[95] to authorize the duty-free importation
of “jerked beef ... a satisfactory substitute for codfish,” at
least according to the proclamation. Invoking the same statute, the
President, again in April 1942, authorized the duty-free importation
of food, clothes, and medical, surgical, and other supplies by or
directly for the account of The American National Red Cross for use
by that agency in emergency relief work in connection with the “war
emergency.”[96]
EMERGENCIES OCCASIONED BY NATURAL CATASTROPHES
_Drought_: Two statutes and one Presidential Proclamation in this
category attribute emergency conditions to drought. In February 1934
Congress authorized the Farm Credit Administration to make loans for
feed for livestock in drought- and storm-stricken areas.[97] The
Emergency Appropriation Act for fiscal 1935 appropriated funds to meet
the emergency and necessity for relief in stricken agricultural areas
and in another section referred to “the present drought emergency.”[98]
The Presidential Proclamation noting that an unusual lack of rain in
several western and mid-western states had caused an acute shortage
of feed for livestock,[99] declared an emergency under the suitable
provision of the 1930 Tariff Act and authorized suspension of duties
on livestock feeds. Only livestock owners in the affected area were
eligible to benefit from duty free livestock feeds.[100]
The Communications Act of 1934[101] and its 1951 amendment[102] grant
the President certain powers in time “of public peril or disaster.”
The other statutes provide for existing or anticipated emergencies
attributable to earthquake, flood, tornado, cyclone, hurricane,
conflagration and landslides.[103]
_Agricultural Pests_: A joint resolution of April 1937 made “funds
available for the control of incipient or emergency outbreaks of insect
pests or plant diseases, including grasshoppers, Mormon crickets, and
chinch bugs.”[104] Funds were appropriated on this authorization later
that month.[105]
_Famine_: The India Emergency Food Aid Act of 1951 provided for
emergency shipments of food to India to meet famine conditions then
ravaging the great Asian sub-continent.[106] In August 1953 Congress
enacted general enabling legislation to permit the President to
furnish emergency assistance on behalf of the people of the United
States to friendly peoples in meeting famine or other urgent relief
requirements.[107] Thus the American Congress has sometimes defined
emergency in terms of occurrences in other countries.
NATIONAL SECURITY EMERGENCIES
These may be cataloged under the heads of (1) Neutrality, (2) Defense,
(3) Civil Defense, (4) Hostilities or War.
_Neutrality Emergencies_: For a nation which, at least during the
1930s raised to the topmost position on its list of twentieth century
mistakes its involvement in the First World War, and which during the
same period embraced the policy of non-involvement in future wars,
the chief problem of national security was not so much to be prepared
for war or to avoid the occurrence of war, as it was, rather, to
stay out of other people’s wars, all wars being other people’s. The
existence of a war elsewhere in the world, especially one involving a
major power, creates the need for emergency action designed to avoid
the greatest of all emergencies, participation in a war. This is the
meaning of the Neutrality Act of 1935 and its successors. The import
thereof is embodied in the Presidential Proclamations which, under
the Neutrality Acts, proclaimed the existence of wars between states
or factions within states; but also the more important Proclamation
of September 8, 1939 which, without citing the acts, declared the
existence of a national emergency “to the extent necessary for proper
observance, safeguarding, and enforcing of the neutrality of the United
States and the strengthening of our national defense within the limits
of peacetime authorizations.”[108] Neutrality doctrine, oriented as
this was, contained the seeds of a more aggressive policy, and it
was appropriate that the President should phrase his May 27, 1941
declaration of an unlimited national emergency as an enlargement upon
the earlier Proclamation. The President declared that an unlimited
national emergency confronting the country required that its military,
naval, air and civilian defenses be placed in a condition of readiness
to repel any and all acts or threats of aggression directed toward any
part of the Western Hemisphere.[109] The need was now for adequate
preparation rather than insulation. President Roosevelt’s forthright
statement of the Nation’s security requirements left little doubt that
we had passed from neutrality to all-out preparedness as a national
policy. For the security of this Nation and Hemisphere, we should
pass from peacetime authorizations of military strength to whatever
basis was needed to protect this entire hemisphere against invasion,
encirclement or penetration by foreign agents.[110] The concept of
neutrality dominant for a few years had been superseded by events.
_Defense_: Many of the statutes directed at meeting the threat
to national survival posed by war are phrased in terms of the
existence of war or threat of war. Thus it is not rigidly possible
to assign separate pigeon-holes to those statutes which explicitly
or by inference define emergency in terms of the need for defense
preparedness, and those which define emergency in terms of the need
for response to existing hostilities. The 1951 amendments to the
Universal Military Training and Service, like the 1940 Act,[111] by
inference suggest that military emergency is not related solely to
the existence of hostilities. The President is authorized under the
statute “from time to time, whether or not a state of war exists, to
select and induct for training in the National Security Training Corps
... such number of persons as may be required....”[112] The Interior
Department Appropriation Act for fiscal 1948 included provision for
cases of emergency caused by fire, flood, storm, act of God, or
sabotage.[113] One cannot draw too sharp a distinction between war
and peace; an act of sabotage is as likely as fire, flood, storm,
or act of God. An Act of November 1940 launches upon an extensive
list of national-defense material and national-defense premises--so
comprehensive as to include anything whatsoever associated with defense
production or transportation, including public utilities--and lists
punishments for the willful injury or destruction of war material, or
of war premises.[114] And following the war, it must be made clear
that the emergency and the need for emergency action continue. The war
emergency has reverted to a defense emergency. And so we turn to the
First War Powers Act of 1941 and revise it “by striking out the words
‘the prosecution of the war effort’ and ‘the prosecution of the war’
and inserting the words ‘the national defense’.”[115]
_Civil Defense_: By Proclamation, on October 22, 1941, having in the
spring of that year created an Office of Civilian Defense, President
Roosevelt indicated that among the facets of a war emergency might
be the endangering of civilian lives and property, and he invited
all persons throughout the nation to give thought to their duties
and responsibilities in the defense of this country, and to become
better informed of the many vital phases of the civilian defense
program.[116] The Federal Civil Defense Act of 1950 contemplated an
attack or series of attacks by an enemy of the United States which
conceivably would cause substantial damage or injury to civilian
property or persons in the United States by any one of several means:
sabotage, the use of bombs, shellfire, or atomic, radiological,
chemical, bacteriological, or biological means or other weapons or
processes.[117] Such an occurrence would cause a “National Emergency
for Civil Defense Purposes,” or “a state of civil defense emergency,”
during the term which the Civil Defense Administrator would have
recourse to extraordinary powers outlined in the Act.[118] Powers and
relationships set up to effectuate response to a preparedness or civil
defense emergency are shortly seen to be convenient for application
to any garden-variety emergency which happens along, and so it is not
surprising to observe that arrangements created in anticipation of
military emergency are soon applied to natural catastrophes. The New
York-New Jersey Civil Defense Compact supplies an illustration in this
context for emergency cooperation. “‘Emergency’ as used in this compact
shall mean and include invasion or other hostile action, disaster,
insurrection or imminent danger thereof....”[119]
_Hostilities or War_: The Tariff Act of 1930[120] which has already
been cited a number of times in this chapter, permitted certain action
by the President whenever an emergency exists by reason of a state
of war, or otherwise. The Communications Act of 1934 and its 1951
amendment grant exceptional powers when there exists war or a threat of
war.[121] The 1940 National Defense Act amendments extended enlistments
in the Army in time of war or other emergency.[122] The May 1945
extension of the Selective Training and Service Act continued it in
effect for the duration of hostilities in the present war.[123] And the
threat seems the more intimate when the emergency is defined in terms
of enemies who have entered upon the territory of the United States as
part of an invasion or predatory incursion, ... to commit sabotage,
espionage or other hostile or warlike acts.[124] The 1950 Emergency
Detention Act[125] permits the President to declare the existence
of an Internal Security Emergency, upon the occurrence of invasion,
declaration of war by Congress, or insurrection within the United
States.
PERCEIVING THE EXISTENCE OF AN EMERGENCY
Congress is more than likely to delegate to the President power to
determine an emergency’s existence, sometimes providing him with
connotative definitions--such as “by reason of flood, earthquake, or
drought”--for guidance. It is particularly inclined to permit the
President to declare the termination of an emergency, frequently
hinging the life of an emergency statute to such a Presidential
declaration or to the continuance of emergency previously proclaimed
by the President. But there is a growing tendency for the Congress
to grant contingent powers which may be exercised in the event of a
declaration of emergency either by Congress or the President, and
sometimes by Congress alone. We discuss elsewhere the growing trend
toward reservation to the Congress of power to terminate an emergency
through adoption of a concurrent resolution (which does not require
the President’s signature). The Emergency Detention Act provision
for declaration of an Internal Security Emergency, mentioned above,
hinges the presidential declaration, among other things, to a prior
Congressional declaration of war. Thus when Congress has declared a
war emergency to exist, the President, at his discretion may declare
the existence of an Internal Security Emergency caused by the prospect
of internal subversion. Congress, perhaps, forecast the future
trend of legislative-executive relations in this field and in the
adaptation of emergency action when in the First Decontrol Act of 1947
it declared “in each ... limited instance [that it is necessary to
continue emergency controls in effect] the authority for such emergency
controls and war powers should not be exercised by the grant of broad,
general war powers but should be granted by restrictive, specific
legislation.”[126]
CONCLUSION
It may be seen that a varied assortment of situations threatening
the economic interests of groups, the life and limb of the populace,
or the physical integrity of the nation itself, have been defined as
emergencies in the United States. The spread lies between a liquid
sugar or codfish emergency and an emergency caused by the global
military and ideological activities of the communist movement. The
citizen of the democratic state, having weathered depression, natural
disaster, agricultural, defense and war emergencies, and recognizing
that by popular consensus he lives in a time of cold war emergency
which may turn into a war emergency, or if lessened, may create an
emergency by virtue of the threat to continued prosperity resulting
from curbed defense orders, is entitled to be apprehensive.
The variety is so great, the invocation of emergency so ready that
one must ask whether the term is not becoming shorn of meaning--a
shibboleth for the legitimization of ordinarily suspect governmental
action desired by influential groups. Shibboleth or not, the individual
citizen, as we shall see subsequently, finds that its incantation is
associated with increasing constrictions upon his freedom of action.
CHAPTER IV EMERGENCY POWERS OVER PERSONS
Constitutional democracies as well as authoritarian states are
confronted in time of military crisis with the need for a maximum
productive and military effort directed at national survival.
Totalitarian nations in their practice of total absorption of
the materials and energies of conquered nations, and the Western
democracies in their insistence upon “unconditional surrender” have
contributed to the transformation of modern war from a struggle for
limited objectives to a struggle for survival.
The initial response of Great Britain in the First World War indicated
an assumption that war imposed upon a nation the necessity to adapt
the machinery of the government, and especially its military arm, to
the attainment of victory. Twentieth century wars, like those of the
Nineteenth century, were to be fought by the military. In terms of
the total national energies, war represented a temporary, localized
diversion. Democracies continue to manifest a not necessarily unhealthy
predisposition, even in the atomic age, to treat war as a subsidiary
effort which should not unduly ripple the accustomed habits and
interests of the major segment of the population and economy. War is
fought by governments, not by peoples. True, perhaps, in regard to
police actions which constitute occasional escape valves for aggressive
energies which might otherwise erupt in world war, this aphorism which
is maintained as a fiction in time of major war, is a residue of an
earlier and simpler age.
However tentative their initial response to World War II, the Western
democracies soon came to regard it as imposing the need not simply to
adapt governmental structure to the major purpose of victory, but to
maintain consistency between the political and economic activities of
individuals and this overriding goal. Exercising a frankly coercive
power, governments in the Second World War conscripted the energies of
individuals. Great Britain imposed a labor draft as well as a military
draft. The United States, resisting nationwide demands for conscription
of labor, satisfied itself with commanding the military services of
individuals. Both countries identified individuals whom, it seemed,
could best be integrated in the war effort by being integrated _out_
of it--_i.e._, potential saboteurs, espionage agents, and the like.
However adequate or inadequate the techniques for measuring individual
and group loyalty, the measurement was undertaken and thousands found
themselves immobilized behind barbed wires.
A person naive in political and human relations or a government facing
nascent revolution would resort solely to the technique of command
and coercion to secure the adjustment of individual goals and efforts
to those of the nation. Thus in the United States many war programs
depended upon the offering of incentives or simple exhortation and
appeal to individual loyalty for their effectiveness. And, in a
democracy it remains true in time of war as in peacetime, that the
essential nature of the political process is “the translation of
conflict among interest groups into authoritative decision.”[127]
These are the conditions under which statutes and presidential
proclamations relating to the mobilization of the human resources of
the nation will be discussed.
POSITIVE INTEGRATION
_Civilian Labor Force_: Notwithstanding the failure of the United
States to adopt a form of outright labor conscription in the last war,
a number of statutory provisions did attempt to integrate segments
of the labor force more closely in the war effort. Those which were
primarily repressive in nature--i.e., which principally concerned the
imposition of penalties or the prohibition of specified activities--are
treated in the second section of this chapter.
In June 1939, Congress set up a program for the training of civil
aircraft pilots.[128] The Navy Department Appropriations Act for
fiscal 1941[129] included an emergency fund to enable the President,
among other things, to procure and train civilian personnel necessary
in connection with the production of critical and essential items of
equipment and material and the use or operation of such equipment and
material. A month later, Congress authorized the Secretary of War,
during the period of any national emergency declared by the President,
to employ laborers and mechanics in excess of forty hours per week, at
time and one-half for overtime.[130] Another 1940 law suspended during
the national emergency statutory provisions imposing the eight hour day
for Maritime Commission contractors.[131]
Section 801 of the Second War Powers Act of 1942 authorized the
President to direct the assignment of Civilian Conservation Corps
manpower to protect the munitions, aircraft, and other war industries,
municipal water supply, power, and other utilities, and to protect
resources subject to the hazards of forest fires.[132]
Emergency conditions may lead to relaxation of the traditional American
rule, based upon the assumption that public employment is a privilege
and upon security grounds, that aliens are ineligible for governmental
positions--especially positions in the military establishments. In 1946
Congress suspended statutory provisions prohibiting the employment of
aliens.[133] Thus the Secretary of the Navy could authorize the Navy
Department to employ non-citizens whose special technical or scientific
knowledge or experience would be of benefit to the military services of
the United States. The wisdom of this legislation may be more readily
appreciated when it is remembered that German rocket experts like Dr.
Werner von Braun were able to serve in the United States rather than
behind the Iron Curtain. Similarly, as illustrated by the Selective
Service Act of 1948,[134] effective mobilization of the labor force
requires exemption of some specially skilled persons from military
conscription. This Act authorized the President to provide for the
deferment from training and service certain categories of individuals
in many different fields as found to be necessary to the maintenance of
the national health, safety, or interest.
Work stoppages are the nemesis of any defense production program. The
wartime efforts to prevent or speedily terminate such stoppages are
reported in the next section, on the theory that they were primarily
coercive in nature. The Defense Production Act of 1950,[135] however,
clearly reflects the statutory trend in the United States against the
outlawing of strikes in time of emergency. Section 502 of the Act
emphasizes that national policy is to place primary reliance upon
the parties to any labor dispute to settle their differences through
negotiation and collective bargaining, making full use of available
mediation and conciliation facilities. All settlements should be
made in the national interest. The President is to initiate strike
settlement conferences, with representatives of the public present, but
no action inconsistent with the Labor-Management Relations Act of 1947
may be taken.[136]
Current information on the availability of essential skills must be
maintained. The National Science Foundation Act of 1950 included
among the functions of the agency that of maintaining a register
of scientific and technical personnel and providing a central
clearinghouse for information covering all scientific and technical
personnel in the United States.[137]
_The Military Services_: Maintenance on active duty or in reserve
status of armed forces components adequate to the defense of the United
States is of continuing concern to the government. It is not alone in
time of war that attention is given to the adequacy of the military
services. Thus the 1930’s witnessed a series of amendments to the 1916
National Defense Act designed to improve the status of the reserve
components of the Army. In June 1933, during the famous first hundred
days of the Roosevelt administration, it was not too preoccupied with
depression legislation to secure legislation introducing changes into
procedures for establishing National Guard policy. All policies and
regulations affecting the organization, training and distribution of
the National Guard were to be prepared by committees of appropriate
branches or divisions of the War Department General Staff.
The Guard would be entitled to equal representation with the Regular
Army in formulating Guard policies, but the paramount fact was that
of federal supervision and integration of the National Guard.[138]
Further, the President was empowered to determine the number of reserve
officers in the various grades to be appointed to the Officers’ Reserve
Corps, and to make such appointments, subject to Senatorial approval
for ranks above Colonel.[139] This is a characteristic extension of the
president’s power as Commander-in-Chief.
Two years later, in June 1935, a further amendment to the 1916 statute
gave the President authority in an emergency at any time to order
officers of the National Guard to active duty for the duration of the
emergency, with the proviso, however, that no officer could be employed
on active duty for more than fifteen days in any calendar year without
his own consent.[140] Later that year the President was authorized to
call annually one thousand Reserve Officers (mostly R.O.T.C. graduates)
for a year’s active duty with the Regular Army in the grade of second
lieutenant. Only those who applied and who had been screened by the War
Department were eligible.[141]
Continuing to elaborate amendments to the National Defense Act,
Congress, in April 1938, established the requirement that line officers
should not be detailed to or remain as members of the General Staff
Corps unless two of their immediately preceding six years had been
served in actual command of or on duty other than General Staff duty,
with troops of one or more of the combatant arms or as instructor
with the National Guard, Organized Reserves, or Reserve Officers’
Training Corps.[142] Two days later in another amendment to the basic
act, Congress provided for establishment of a Regular Army Reserve,
membership in which was restricted to persons under 36 years of age who
had served in the Regular Army and from which an honorable discharge
had been received.[143] The Regular Army Reserve was subject to call
to active duty by the President in case of emergency declared by him.
Within six months after the termination of an emergency declared by the
President, the Reserve forces were to be placed in an inactive status
or discharged, whichever was the more appropriate.[144]
In June 1938 the 1916 statute was amended to increase the allowed
strength of enlisted men in the Army Air Corps from 16,000 to
21,500.[145] That same month an earlier Naval Reserve statute (Act of
February 28, 1925) was superseded and a Naval Reserve to consist of the
Fleet Reserve, the Organized Reserve, the Merchant Marine Reserve, and
the Volunteer Reserve was created. All were to constitute a component
part of the Navy.[146] The same Act also provided for a Marine Corps
Reserve.[147] The reserve units were to be composed of persons
transferred, enlisted, or appointed to them.[148]
But it is in 1940 that the statute books commence to reflect
administration and congressional anticipation of American participation
in the War and the attendant necessity to compel individuals to give
military service. On May 14, 1940 provision was made for the extension
of all enlistments in the active military service for the duration,
plus six months in the event of war or other emergency declared by
Congress.[149] The Secretary of the Navy was given power, six days
following Pearl Harbor, to extend for the duration of the war plus six
months all enlistments in the Navy, Marine Corps, and Coast Guard.[150]
Another enactment of that date permitted the similar extension of Army
service.[151] This Act also eliminated all territorial restrictions on
the use of units and members of the Army.[152]
Congress, having made provision for the extension of regular service
enlistments for the duration in the event of emergency, then granted
the President authority to call the reserve to active duty. This was
accomplished in August 1940 when Congress delegated to the President
power until June 30, 1942 to order into the active military service
for a twelve month period any or all members and units of any or all
reserve components of the Army of the United States, and retired
personnel of the Regular Army, with or without their consent, in
any manner the President deemed necessary for the strengthening
of the national defense.[153] The August statute having empowered
the President to order the National Guard, as well as other reserve
units, into active duty, it seemed desirable to equip the States with
authority to set up military units for home duty in the absence of the
Guard.
An October 1940 statute accomplished this purpose by authorizing the
states, while any part of the National Guard of the state concerned
was in active federal service, to organize and maintain whatever
military forces other than National Guard were believed necessary by
the state.[154] These forces were subject to the Secretary of War’s
regulation on matters of discipline and training. They were not subject
to federal call, but neither were individual members exempt by reason
of service in such units from military service under any federal law.
In September 1950, three months after outbreak of the Korean War,
Congress authorized the President to call up reserve forces and retired
personnel from all military branches, with or without the consent of
those called.[155] And, as in the Second World War, state authorities
were again empowered to set up military units to substitute for the
National Guard as long as any part of the National Guard was in active
federal service.[156]
Meanwhile the gradual inclusion of compulsory service provisions in
statutes was carried to its ultimate conclusion in the Selective
Training and Service Act of 1940.[157] The Act required the
registration of all male citizens of the United States and male alien
residents between the ages of 21 and 36.[158] The President was
authorized from time to time, whether or not a state of war existed, to
select and induct into the land and naval forces of the United States
for training and service whatever number of men in his judgment might
be required for such forces in the national interest.[159] A peacetime
ceiling of 900,000 inductees was established, and provision made for a
twelve months’ maximum training period subject to extension whenever
the Congress declared that the national interest was imperiled.[160]
The remaining powers granted to the President in the Act, and the
limitations which circumscribed his exercise of them, will be discussed
in other contexts.
By proclamation that day, and on October 1, 8, and November 12, the
President established registration days in the United States proper,
Hawaii, Puerto Rico, and Alaska.[161] A second registration day was
proclaimed in May 1941, and a third on January 5, 1942.[162] The
Conscription Act was continued in effect for the duration of the
war. A post-war, or “cold war”, conscription program was set up in
June 1948.[163] The new statute provided for the registration of
male citizens and alien residents between the ages of 18 and 26, and
made those between 19 and 26 subject to induction into the armed
forces at the discretion of the President.[164] He was empowered
to induct a sufficient number of persons to maintain the personnel
strengths of the armed forces at three million men.[165] The maximum
term of service was two years, and the Act’s duration was set at two
years. A September 1950 amendment to the Act allowed the President
to require special registration of medical, dental, and allied
specialties, drafting persons below the age of 50 from the lists to
fill requisitions submitted by the Department of Defense and approved
by the President.[166] An eleventh hour enactment of June 23, 1950
deferred expiration of the Selective Service Act for fifteen days,[167]
and seven days later July 9, 1951 was substituted for the July 9, 1950
expiration date.[168]
The next year saw systematic amendment of the 1948 statute, including
a change of title to the Universal Military Training and Service
Act.[169] The maximum of two years’ service was continued, and the
minimum age for both registration and induction set at 18-1/2 years.
A 1953 amendment to the Act provided for the special registration,
classification, and induction of medical, dental, and allied specialist
personnel.[170] A method for gaining release from military service,
anachronistic in the age of universal military service and the citizen
army, was removed when in July 1953 Congress repealed provisions
of 1890 and 1893 statutes which permitted enlisted men to purchase
discharge from the armed services.[171]
A series of non-coercive statutes from 1939 on were designed to augment
the armed services. In June 1939 Congress established a Coast Guard
Reserve, composed of owners of motorboats and yachts.[172] In March
1941 the President was empowered to appoint within the Navy 100 acting
assistant surgeons above previous quotas, and the Secretary of the
Navy given power in time of war or national emergency declared by the
President to appoint for temporary service, such acting assistant
surgeons as the exigencies of the service required.[173]
A June 1942 statute suspended all limitations on personnel strength in
the military services.[174] Upon emergence of the “Cold War” Congress
again authorized increases in military strength. In April 1946 the Navy
and Marine Corps were permitted to increase the number of commissioned
officers on the active list, and to maintain enlisted strength at
500,000 for the Regular Navy, and at 200,000 for the Marine Corps.[175]
A Civil Air Patrol, to serve as a volunteer civilian auxiliary to the
Air Force, was established in May 1948.[176] The Air Force was to
establish, maintain, supply, and equip liaison offices with the CAP,
and to detail Air Force military and civilian personnel to assist in
training CAP members. Not dissimilar to the provision establishing
the CAP as a civilian adjunct to the Air Force was a 1953 statute
authorizing the President to employ the American National Red Cross
under the Armed Forces whenever the President found it necessary to
order such employment.[177]
The Women’s Armed Services Integration Act of June 1948 integrated
the women’s services as Regular units within the Army, Navy, Marine
Corps, and Air Force.[178] Four years later Congress authorized
the appointment of qualified women as physicians and specialists
in the medical services of the Army, Navy, and Air Force.[179] In
1950 provision was made for the five year enlistment in the Regular
Army of 2,500 qualified unmarried male aliens.[180] Alien enlistees
were integrated into established units with citizen soldiers and not
segregated into separate organizations for aliens.
NEGATIVE INTEGRATION
It has become an axiom of democratic government that in time of
emergency threatening the health or safety of the community or the
territorial integrity of the nation, the objective of communal survival
takes precedence over the desires and conveniences of the individual.
The energies, wealth, talents of individuals may be conscripted in
the national interest. Democratic governments also have asserted the
right to constrict the range of permissible activities of individuals
whose freedom, if unlimited, is calculated to exacerbate the emergency.
Such limitations may apply to the population generally or to defined
segments of it. The intensity of such limitations may be measured on
a continuum ranging from precautionary detention to the relatively
mild requirement that persons in defined categories register with the
government.
_Preventive Detention_: At an early date Congress, with judicial
approval, exercised the power to apprehend and detain all enemy aliens.
On December 7, 1941, President Roosevelt issued the first of ten
wartime proclamations founded upon Congressional enactments of 1798 and
1918, imposing limitations upon the activities of enemy aliens, and
specifically announcing that “All aliens shall be liable to restraint,
or to give security,”[181] and that dangerous aliens might be
subjected to arrest and confinement. In two statutes enacted in 1952,
Congress reiterated its desire that illegal entrants be apprehended and
detained pending deportation. These statutes provided for the search
of vessels and arrest of persons seeking to enter the United States
illegally,[182] and authorized the establishment of necessary detention
facilities to hold those arrested.[183]
It is well known that in World War II persons of Japanese ancestry,
including even those possessed of American citizenship, were subjected
to preventive detention.[184] Presidential exercise of this form
of restraint is now sanctioned on a standby basis. Title II of the
Internal Security Act of 1950 empowers the President in time of
“Internal Security Emergency” to order the apprehension and detention
of persons “as to whom there is reasonable ground to believe that,” if
free, they “will engage in, or probably will conspire with others to
engage in, acts of espionage or of sabotage.”[185] The President may
declare a state of internal security emergency upon the invasion of the
United States or any of its territories or possessions, the declaration
of war by Congress, or insurrection within the United States in aid of
a foreign enemy.
_Access to the U.S. and U.S. Citizenship_: Closely related to the
detention of enemy aliens or others whose liberty is perceived to
endanger the security of the state is the control of access to the
United States and the acquisition of United States citizenship. By
Act of June 20, 1941[186] Congress instructed American diplomatic and
consular officers to refuse visas or entry permits to aliens believed
seeking entry into the United States for the purpose of engaging in
activities which would endanger the public safety. The following day
Congress granted the President power during the existing national
emergency to place restrictions and prohibitions in addition to those
already provided by law upon the departure of persons from and their
entry into the United States.[187] In proclamations of July and
September 1945 and April 1946, President Truman ordered the deportation
of enemy aliens resident in the United States without admission under
the immigration laws, or enemy aliens deemed dangerous to the public
peace and safety of the United States.[188]
In an earlier statute Congress excluded from admission to the United
States persons who have departed from the jurisdiction of the United
States for the purpose of evading or avoiding training or service in
the armed forces of the United States during time of war or during a
period declared by the President to be a period of national emergency.
Among the myriad restrictions of the Internal Security Act of 1950 are
to be found additional categories of aliens ineligible for entry into
the United States, principally aliens who at any time have been members
of the Communist or other totalitarian party of any state of the United
States, of any foreign state, or of any political or geographical
subdivision of any foreign state, and aliens who advocate the economic,
international, and governmental doctrines of world communism or of any
form of totalitarianism.[189]
Naturalization is refused or citizenship withdrawn from persons falling
into classifications created by a security-conscious Congress. The
Nationality Act of 1940[190] restricted the eligibility of alien
enemies for nationalization to those whose declaration of intention
was made not less than two years prior to the beginning of the state
of war and specified that enemy aliens were eligible for apprehension
and removal at any time previous to actual naturalization. Section 25
of the Internal Security Act amends the Nationality Act of 1940 to make
ineligible for naturalization persons subscribing to or giving evidence
of subscribing to anarchist, communist, or any totalitarian movement
or body of sentiment. Those who within the ten years next preceding
the filing of naturalization petitions, or in the period between such
filing and the time of taking the final oath of citizenship, have
been members of, or affiliated with, communist-front organizations
registered under the Subversive Activities Control Act of 1950,
must rebut a presumption that they are persons not attached to the
principles of the Constitution and thus ineligible for citizenship.[191]
Congress has devised appropriate means for handling the cases of
persons seeking to renounce American citizenship. To facilitate the
surrender of United States citizenship by persons of Japanese ancestry,
Congress in July, 1944, specified that with the permission of the
Attorney General, and when the United States is at war, citizens may
accomplish expatriation by the simple act of making in the United
States a formal written renunciation of nationality in such form as
may be prescribed by, and before an officer designated by the Attorney
General.[192] The assumption that persons departing from or remaining
outside of the jurisdiction of the United States in time of war for the
purpose of evading or avoiding military service renounce their American
citizenship was created by an Act of Congress in September, 1944.[193]
President Roosevelt by proclamation of July 1941 provided for
establishment of “The Proclaimed List of Certain Blocked Nationals” to
be published in the Federal Register. The list was to contain the names
of those persons deemed to be, or to have been, acting on behalf of
the interests of Germany and Italy. Any material or article exported
from the United States through the efforts of German and Italian
“blocked nationals” was declared to be detrimental to the interest of
national defense in the United States.[194] The Secretary of State,
acting in conjunction with the Secretary of the Treasury, the Attorney
General, the Secretary of Commerce, the Administrator of Export
Control, and the Coordinator of Commercial and Cultural Relations
between the American Republics was required to prepare the list.[195]
Persons naturalized after January 1, 1951 created a _prima facie_ case
that they were not attached to the principles of the Constitution of
the United States at the time of naturalization, if within five years
after naturalization they joined as a member or affiliated with any
organization, attachment to which would have precluded or hindered
naturalization in the first place. The unwary risked cancellation of
his citizenship for fraud if found to be connected with an organization
whose goals and objectives were directed against the United States.
This is one of the Internal Security Act provisions[196] designed
to exclude communists from naturalization. The Expatriation Act
of 1954 provides for the loss of nationality of persons (whether
natural born or naturalized citizens) convicted by a court or court
martial of committing treason against the United States, or engaging
in a conspiracy to overthrow, put down, or to destroy by force the
Government of the United States, or to levy war against them.[197]
_Circumscribing Movement of Persons_: The area of permissible mobility
is narrowed for all persons in time of war or emergency. The population
generally is excluded from specified security areas. By Act of January,
1938,[198] Congress authorized the President to define certain vital
military and naval installations or equipment and made it unlawful
to photograph or sketch such installations without proper authority.
This obviously limits access to and activity in areas adjacent to such
equipment. A 1950 amendment to the Civil Aeronautics Act, for example,
empowered the Secretary of Commerce, after consultation with the
Department of Defense and the Civil Aeronautics Board, to define zones
or areas in the airspace above the United States, its Territories,
and possessions as he may find necessary in the interests of national
security. The Secretary is also given authority to prohibit or restrict
flights of aircraft which he cannot effectively identify, locate, and
control in those areas.[199] Selected groups of persons, generally
enemy aliens, may be prohibited from entering or remaining in certain
areas of the country. Proclamation No. 2525, December 7, 1941,[200]
forbade the presence of alien Japanese in the Canal Zone, and
restricted their entry into, or departure from, Hawaii, the Philippine
Islands, and the United States, and provided for their exclusion from
designated areas. Of maximum severity were limitations on mobility
beyond the limits of a community, or confinement in a camp or cell. The
movement to restrict travel by Americans dates from the 1935 endeavor
of the American Congress to avoid American involvement in any future
conflict. Section 6 of the Neutrality Act of 1935[201] empowered the
President to prohibit or regulate travel by American citizens as
passengers on the vessels of any belligerents in a war in which the
United States was a neutral. Individuals travelling in violation of
orders did so at their own risk.
Two months after passage of the Neutrality Act, in October 1935,
President Roosevelt issued Proclamation No. 2142, applying Section 6
to the Ethiopian conflict, and ordering American citizens to refrain
from traveling as passengers on vessels of either belligerent. The May
1937 amendments to the Neutrality Act[202] strengthened this provision
by making it unlawful for any United States citizen to travel on
belligerent vessels in contravention of the President’s prohibition
or regulation of such travel. In 1939 these provisions were broadened
to include any American travelling on such a vessel as a member of
its crew,[203] and to prohibit American ships from carrying goods or
passengers to belligerent ports[204] or combat areas.
President Roosevelt’s Neutrality Proclamation of September 5, 1939,
among other things, prohibited Americans from accepting commissions
with belligerents, or enlisting in the service of a belligerent.
Hiring persons to enlist, or going beyond the jurisdiction of the
United States with the intent to join belligerent forces, were also
prohibited.[205]
By Act of March 28, 1940,[206] Congress extended application of an
earlier prohibition[207] on unauthorized entry on military reservations
to the outlying possessions of the United States. A year later it
granted the Secretaries of War and Navy, jointly or singly, power to
define areas within such reasonable distance of any military or naval
camp or station in which prostitution would be prohibited by federal
law.
By Proclamation of December 27, 1941 President Roosevelt established
the Hawaiian Maritime Control Area, and regulated entry, radio calls,
visual communications, and traffic in that area. Naval authorities were
granted power to establish supplementary regulation.[208] Subsequently,
the President established Maritime Control Areas for Cristobal and the
Gulf of Panama,[209] Boston,[210] San Francisco, Columbia River, Puget
Sound, Southeastern Alaska, and other areas.[211] On May 20, 1942,
invoking his powers as Commander-in-Chief, the President established
the Padre Island Sea Range Area, and imposed regulations controlling
entry to an activity in that area. The next day he signed into law
an enactment providing a maximum penalty of $5,000 fine and one year
imprisonment for knowingly violating restrictions established by the
President, the Secretary of War, or military commanders designated by
him, on entering, remaining in, leaving, or committing proscribed acts
in military areas or zones.[212]
The areas thus far described were defined principally for exclusionary
purposes. It is not unusual to define areas with a view to confining
therein specific persons or categories of persons. Invoking a 1909
statute, the President on September 5, 1939 made it illegal for
interned members of the armed forces of belligerent nations to
leave the jurisdiction of the United States, or the limits of their
internment, without permission.[213] In a later proclamation the
President stipulated that no alien would be permitted to depart from
the United States if the Secretary of State were satisfied that the
alien’s departure would be prejudicial to the interests of the United
States.[214]
Section 6 of the Internal Security Act of 1950 makes it illegal for
members of an organization which has registered under the Act as a
communist organization or has been ordered to do so by the Subversive
Activities Control Board, to apply for a passport, or to use or
attempt to use a passport. It is also an offense for a federal officer
knowingly to issue a passport to such a person. The Immigration and
Nationality Act also empowers the President, in time of war or national
emergency, to impose restrictions and prohibitions upon the departure
of persons from the United States.[215]
_Registration_: The requirement that specified categories of
individuals register, in consequence of their backgrounds,
associations, or activities, or as a result of possession of certain
articles, becomes increasingly familiar in the United States.
Legislative motivation in requiring such registration may be varied
and complex. The registration provision invariably provides the basis
for defining new crimes and therefore opportunity to prosecute persons
whose backgrounds, activities and beliefs are anathema to powerful
groups in the nation. Combined with periodic reporting, registration
may act as a deterrent to the commission of certain acts considered
socially or politically undesirable. It may simply facilitate the
informative function of government, enabling authorities to become
aware of and continuously check upon the activities of selected groups
of persons affecting the public interest. Or, registration may serve
as a mild, yet nonetheless effective, restraint upon the freedom of
individuals. Certainly, for example, it is an essential prerequisite to
paroling enemy aliens in time of war, although its usefulness is not
limited to wartime only.
The decade prior to the Second World War is popularly, and accurately,
perceived as one of sustained economic emergency. During the second
half of this decade the Congress frequently was preoccupied with
the need for legislation designed to protect the United States from
involvement in another world war. The Neutrality Act of 1935[216]
referred to above contained a registration feature. Under the terms
of that Act, every person engaged in the business of manufacturing,
exporting, or importing any arms, ammunition, and implements of war was
required to register within ninety days of entering such a business.
Such individuals or firms had to provide the Secretary of State with a
$500 registration fee, and information including personal or business
name, principal place of business, places of business in the United
States, and a list of the arms, ammunition and other implements of war
which they handled. They were also required to inform the Secretary of
State of any changes, and had to keep permanent records of business
transactions which were subject to the scrutiny of the National
Munitions Control Board.[217] The registration provision was retained
in the May 1937 amendment to the Neutrality Act with very little
change.[218]
In June 1938 Congress chose to compel registration of persons employed
by agencies to disseminate propaganda in the United States.[219] Every
person then acting as an agent for a foreign principal was given thirty
days after the Act went into effect to register with the Secretary of
State. His registration statement, under oath, required the agent’s
name and address, the name and address of his principal, and a copy of
the contract or oral agreement covering the agent’s services, including
compensation. The agent was also to file a copy of the charter as
well as a statement of the objectives of the organization employing
him.[220] The term “agent of a foreign principal” was rather broad
and included any person who acted or engaged or agreed to act as a
public-relations counsel or publicity agent for a foreign principal
or for any domestic organization subsidized directly or indirectly
in whole or in part by a foreign principal.[221] New information
statements were to be filed each six months. Failure to file and the
making of false statements were punishable by a maximum of $1,000 fine
and two years’ imprisonment.[222]
Six months prior to Pearl Harbor, Congress enacted the Alien
Registration Act, requiring all aliens fourteen years of age or older
and remaining in the United States for thirty days or more, to apply
for registration and be fingerprinted at post offices and other places
to be designated by the Commissioner of Immigration and Naturalization.
Parents must register for aliens under fourteen.[223] Alien registrants
who were residents of the United States were required to notify the
Commissioner in writing of each change of residence and new address
within five days from the date of such change. All others were to
notify him of their addresses at the expiration of each three months’
period of residence in the United States.[224] And by Proclamation No.
2537, January 14, 1942,[225] the President ordered all alien enemies
within the continental United States, Puerto Rico, and the Virgin
Islands to apply for and acquire certificates of identification.
In the Spring of 1942 the Foreign Agents Registration Act was adapted
to changed conditions. Congress announced its purpose to protect the
national defense, internal security, and foreign relations of the
United States by requiring public disclosure by persons engaging
in propaganda activities and other activities. Anyone acting for
or on behalf of a foreign government, foreign political party or
other foreign principal would be identified and the Government
and the American people would be in a better position to appraise
their statements and actions in the light of their associations and
activities.[226] In addition to elaborating the definition of a foreign
principal, the Act specified numerous exemptions from its registration
provisions. Agents whose foreign principals were governments, the
defense of which was deemed by the President to be vital to the defense
of the United States, were not required to register provided their
activities were not intended to conflict with any of the domestic or
foreign policies of the Government of the United States.[227]
A related statute of October, 1940 also compelled certain groups
to register with the Attorney General.[228] Four categories of
organizations were required to register: (1) Organizations subject to
foreign control and engaging in political activity, (2) Organizations
engaging both in civilian-military activity and in political activity,
(3) Those subject to foreign control and engaging in civilian-military
activity, and (4) Any organization one of whose aims was the overthrow
of a government or subdivision thereof by force or violence.[229]
By political activity Congress had reference to activity aimed at
the control by force or overthrow of the Government of the United
States or any of its subdivisions.[230] An organization, according
to the statute, was engaged in civilian-military activity if it gave
or received instruction in the use of firearms or other weapons, or
participated, with or without arms, in military maneuvers, drills or
parades of a military or naval character. And an organization was
deemed subject to foreign control if its financial support was derived
directly or indirectly from a foreign government, or if its policy was
determined by, or at the suggestion of, or in collaboration with, a
foreign government.[231]
The registration statements were to contain the name and address
of the organization, the names of officers and contributors, the
qualifications for membership, organizational aims, assets, income, and
activities. Violation of the Act might entail a fine of $10,000 and
five years’ imprisonment.
The Internal Security Act of 1950 contains provisions similar to the
older wartime law. Briefly stated, the Act defines “communist-action”
and “communist-front” organizations, which together comprise a
class of communist organizations.[232] Such organizations are
compelled to register with the Attorney General, filing, in the case
of communist-front organizations, a list of officers at time of
registration and in the preceding twelve months; and, in the case of
communist-action organizations, a list of officers and members for
the preceding twelve months.[233] A complete financial accounting is
required and current information must be supplied in annual reports.
In July 1954 Congress amended the reporting provision to require
a listing, in such form and detail as the Attorney General might
prescribe, of all printing presses and machines used or intended to
be used by a communist-action or communist-front organization. The
statute went so far as to require registration of any printing machine
used by an organization in which the communists or affiliates had
an interest.[234] Adequate procedural protection and provision for
judicial review is afforded those charged with failure to register.[235]
The Communist Control Act of 1954 amplified the Internal Security
Act. It purports to be an Act to outlaw the Communist Party and to
prohibit members of communist organizations from serving in certain
representative capacities, and for other purposes. Despite its title,
the Act does not outlaw the Communist Party in the sense of making
membership in it illegal and proscribing its existence. It simply
deprives the Communist Party of certain rights, privileges and
immunities attendant upon legal bodies created under the jurisdiction
of the laws of the United States or any political subdivision
thereof.[236] The Act then defines a new species within the genus
communist organization.[237] In effect it amends the Internal Security
Act by setting up the trilogy; communist-action, communist-front,
and communist-infiltrated organizations. And communist-infiltrated
organizations--a euphemism for communist dominated trade unions must
register.[238] Such organizations are ineligible to act as collective
bargaining representatives and are deprived of access to the National
Labor Relations Board.[239]
The Act makes it illegal for any member of a communist organization,
which either has registered with the Attorney General or been ordered
to register by the Subversive Activities Control Board, “to hold office
or employment with any labor organization, ... or to represent any
employer in any matter proceeding arising or pending under the National
Labor Relations Act.”[240]
_Freedom of Association_: The Communist Control Act of 1954 and the
registration provisions of the Internal Security Act might well have
been subsumed under the classification freedom of association. Both
have grave implications for the freedom of individuals to associate at
will and according to conscience with political and economic groups.
And similarly far-reaching in implication for this traditional freedom
are those provisions which, going one step further than stipulating
disqualifications for office-holding in representative associations,
prohibit the creation of an employer-employee relationship, or
facilitate the disruption of such relationships where they already
exist.
The wheel has taken a full turn since the American Congress in 1937
repealed a District of Columbia Appropriation Act provision that no
part of any appropriation for the public schools would be available
for the payment of the salary of any person teaching or advocating
communism.[241] Today, of course, the trend is toward maximizing
the political disqualifications for public and private employment.
This trend can be traced from the pre-war efforts of the Congress to
prevent penetration of defense industries and government agencies by
subversives.
We look first to legal efforts to exclude persons conceived to be
subversive from private employment, and then survey the statutes
governing public employment. The Defense Production Act of June 21,
1940,[242] for example, imposed the rule that aliens working for
a defense contractor whose contract involved access to classified
information were ineligible to work for the contractor. If, however,
the head of the government agency for whom secret work was being
performed gave the contractor written consent to use aliens, the
contractor was free to do so.
Attempting to insure that employment opportunities created by the
induction of young men into the service did not accrue to members
of groups then opposing the American defense effort, Congress, in
enacting the Selective Training and Service Act of 1940, stipulated
that whenever a vacancy was caused in the employment rolls of any
business or industry by reason of an employee’s induction into the
Armed Services of the United States, the vacancy could not be filled by
any person then a member of the Communist Party or the German-American
Bund.[243] Ten days after Pearl Harbor, restraints were placed on the
liberty of maritime employers to hire radio operators for service on
American flag vessels. For the duration of war emergency it became
unlawful to employ any person to serve as radio operator aboard any
vessel (other than a vessel of foreign registry) if the Secretary of
the Navy (1) had disapproved such employment for any specified voyage,
route, or area of operation, and (2) had notified the master of the
vessel of such disapproval prior to the vessel’s departure.[244]
Since the war, no less significant prohibitions have been placed on
public or private employment of members of communist organizations.
The effect thereof will be determined by the success of the Subversive
Activities Control Board in compelling the registration of such groups.
Section 5 of the Internal Security Act of 1950 makes it illegal for
members of registered communist organizations to conceal or fail to
disclose such membership in seeking or accepting any employment in any
defense facility, as defined and listed by the Secretary of Defense.
This provision was extended to make illegal defense employment for
members of registered “Communist action” groups.[245]
It may be noted that the Butler Bill of April 1955 would have empowered
the President to establish procedures for screening any person in
defense employment “as to whom there is reasonable cause to believe may
engage in sabotage, espionage, or other subversive acts.” This process
of screening also would be applied to firms seeking or holding defense
contracts. Thus, increasingly access of private firms to government
contracts as well as access of individuals to jobs under such
contracts, which today may be the staff of life, is being restricted.
Contributing to this trend is the provision in the Rubber Producing
Facilities Disposal Act of 1953 that purchase proposals shall not be
accepted from any person who has not identified his principal, or is
not financially responsible, or is a poor security risk.[246]
Freedom of employees to strike defense industries or to engage in
so-called emergency strikes has on occasion been severely limited. The
War Labor Disputes Act of 1943 required that the government be given
notice of labor disputes, and that production continue for a period
of thirty days after notice of intention to strike. A secret ballot
of employees had to be conducted prior to calling a strike.[247] The
President was granted ultimate power to seize plants if necessary to
avoid interruption of war production occasioned by labor disputes,
and interference with government operation of such plants was made
illegal.[248] The plants were to be operated under the terms and
conditions of employment which were in effect at the time possession
was taken by the government.[249]
In the post-war Labor-Management Relations Act a national emergency
strike is defined as one imperiling “the national health or
safety.”[250] When, in the opinion of the President, a threatened
or existing strike or lockout affecting an entire industry or a
substantial part thereof imperils the national health or safety, he
may appoint a board of inquiry to inquire into the issues involved in
the dispute and to make a written report to him within such time as he
shall prescribe.[251] When the President has received a report from
a board of inquiry, he may direct the Attorney General to petition
any district court of the United States having jurisdiction of the
parties to enjoin such strike or lockout or its continuance, and if the
court finds that a threatened or actual strike or lockout (1) affects
an entire industry or a substantial part thereof engaged in trade,
commerce, transportation, transmission, or engaged in the production of
goods for commerce; and (2) if permitted to occur or to continue, will
imperil the national health or safety, it shall have jurisdiction to
enjoin any such strike or lockout.[252]
The President will be advised of such a strike or lockout sufficiently
in advance of its occurrence because Section 8 (d) of the Act requires
60 days’ written notice of termination or modification of a collective
bargaining contract, and notification of the Federal Mediation and
Conciliation Service and equivalent state or territorial services
within thirty days after such notice of the existence of a dispute.[253]
Looking to restrictions upon federal employment, it is convenient
to begin with 1940, the year in which, in an effort to expedite the
strengthening of the national defense, Congress gave the Secretary of
War limited power to remove army civil service employees for security
reasons. The Secretary might remove from the classified civil service
of the United States any employee of the Military Establishment
forthwith if he found that such person had been guilty of conduct
inimical to the public interest in the defense program of the United
States, and if the person terminated had received notice of the
charges.[254] Discharged employees were given the opportunity within
thirty days of removal to answer charges in writing and to submit
affidavits in support of written answers.[255]
Great discretion was permitted the civilian heads of the armed services
in promoting or demoting regular officers during wartime, and as early
as July 29, 1941 the President signed a Joint Resolution giving the
Secretary of War power during the time of the national emergency to
remove any officer from the active list of the Regular Army. The only
restriction on the exercise of this power was that a comparison of the
officer’s performance-of-duty record with those of his fellow officers
would be made. But retention in or dismissal from the active list, of
any officer, ultimately could be determined by the Secretary,[256]
even though affected officers were guaranteed a hearing before a board
of not less than five general officers prior to separation.[257]
Supplementing this was the provision that no payment could be made from
money appropriated in the Act to any officer on the retired list of the
Army who, for himself or for others, was engaged in the selling or the
sale of any war materials or supplies either to the Army or the War
Department.[258]
Since 1950 it has become common practice for the Congress to attach to
appropriation bills the provision that no salary or wages will be paid
from any appropriation to an individual who either asserts the right to
strike against the Government or belongs to an employees’ organization
asserting this right. And no monies will be paid to an individual
who advocates or is a member of an organization that advocates the
overthrow of the Government of the United States.[259] The Defense
Production Act of 1950 contained this type of provision.[260] It
further provided that an affidavit shall be _prima facie_ evidence
that the person making it has acted contrary to the statute.[261]
Agencies also have been delegated broad power to suspend employees
deemed security risks. An August, 1950 statute permitted the heads
of the State, Commerce, Defense, Justice, and Treasury Departments,
the Secretaries of the Army, Navy and Air Force, and others, in their
absolute discretion and when deemed necessary in the interest of the
national security, to suspend, without pay, any civilian official or
employee.[262] Following notice and an opportunity to the suspended
employee to submit statements and affidavits, and after investigation
and review by the employing agency, his employment might be terminated
as necessary or advisable in the interest of the national security.
Since the employee is informed of the reasons for his suspension only
to the extent that such agency head determines that the interests
of the national security permit, he may encounter difficulty in
formulating his defense.
Interestingly enough while military emergency may be assigned as
justifiable for banning or terminating employment of persons on the
basis of their political affiliations, Congress has recognized that
other kinds of emergency may require temporary suspension of such
disqualifications to federal employment. The Department of Interior
Appropriation Act of 1948 provided that in cases of emergency, caused
by fire, flood, storm, act of God, or sabotage, persons might be
employed for periods of not more than thirty days and be paid salaries
and wages without the necessity of inquiring into their membership in
any organization.
_Traditional Procedural Rights of Individuals_: Whether justifiable
or not, in time of crisis encroachment upon the traditional rights
and privileges of individuals invariably has been recorded. The
Compulsory Testimony Act of August, 1954[263] may be an example of
such legislation. It enables Congressional Committees in a limited
number of instances to solicit the courts in compelling testimony from
recalcitrant witnesses who have invoked their constitutional privilege
against self-incrimination. Suspension of this constitutional safeguard
is achieved by the immunity from prosecution accorded the witness under
the terms of this measure. As to the scope of the immunity therein
afforded, it is not in excess of that granted in laws previously
enacted, notably the following: Interstate Commerce Act, Sherman
Anti-Trust Act, Securities Exchange Act, Communications Act, National
Labor Relations Act, Motor Carrier Act, Federal Power Act, Public
Utility Holding Company Act, Industrial Alcohol Act, Merchant Marine
Act, Bituminous Coal Act, Natural Gas Act, Civil Aeronautics Act,
Fair Labor Standards Act, Railroad Unemployment Insurance Act, Social
Security Act, Investment Company Act, Investment Advisers Act, Second
War Powers Act, and Emergency Price Control Act, 1942. See a more
extended listing in _Shapiro_ v. _U.S._[264]
Emergency entails restraints upon the freedom of individuals to
manipulate their property and to act as they please. Not only does
the government, as has been noted, seize factories and mines, but can
compel acceptance of government orders.
CHAPTER V GOVERNMENTAL ACQUISITION OF PROPERTY
In recent years the federal government has set up programs for the
acquisition or disposition of productive facilities and natural
resources. These programs have had various objectives, as for example
the acquisition in conjunction with its parity payments policy of
surplus agricultural commodities. Later acquisition programs, justified
in terms of national defense, include the following: stockpiling of
strategic raw materials; acquisition of land and equipment for military
sites and for federally-owned productive facilities; the lending or
leasing of federally-owned productive equipment to private producers;
and the acquisition of plants and raw and finished materials incidental
to enforcement of emergency control programs.
STOCKPILING
The Government may acquire natural resources in an effort to stockpile
for defense purposes, in the course of expanding the military
establishments or governmentally owned productive facilities, or it
may acquire such resources to facilitate a privately financed defense
project. This last purpose sometimes leads the Government to lend its
power of eminent domain to private business concerns.
In June 1939 Congress assigned to the Secretary of the Interior and the
Army and Navy Munitions Board the task of determining which materials
are strategic and critical to American defense, and provided for
acquisition of stocks of these materials.[265] Congress also encouraged
the development of mineral resources within the United States. Two
months later Congress approved the exchange of surplus agricultural
commodities held by the Commodity Credit Corporation for stocks of
strategic and critical materials produced abroad.[266] Under the
fiscal 1941 Appropriations Act, the Navy Department obtained funds for
procurement of strategic and critical materials in accordance with
the Act of June 7, 1939.[267] In this statute, and in a July 1940 Act
to expedite the strengthening of the national defense, the President
also was authorized to expend large sums on acquisition of such
materials.[268]
The Defense Production Act of 1950 empowers the President to make
provision either for purchases of, or commitments to purchase metals
and other raw materials, including liquid fuels. The government may use
the acquired items or offer them for resale. The same Act also empowers
the President to encourage the exploration, development, and mining of
critical and strategic minerals and metals.[269] The Mutual Security
Act of 1951 also provides sustenance for the stockpiling program.
The Director for Mutual Security is authorized to initiate projects
designed to increase production and help in obtaining raw materials in
which deficiencies exist among the United States’ free world allies.
The purpose of aiding recipients of American aid to develop their own
stockpiling program of critical materials is to reduce the steady drain
on United States resources.[270] The power of condemnation was added
to the power of requisitioning granted in the 1950 Defense Production
Act when Congress in a 1951 amendment empowered the President in
the interest of national defense, and when deemed necessary by him,
to acquire materials needed by the government. Acquisition may be
by transfer, donation, purchase, or, if needed, properly instituted
judicial proceedings.[271]
The Domestic Minerals Program Extension Act of 1953 sought to reduce
American dependence on overseas sources of supply for strategic or
critical minerals and metals during periods of threatening world
conflict.[272] This was to be accomplished through a united effort
on the part of each department and agency of the government having
responsibility for the discovery, development, production, and
acquisition of strategic or critical minerals and metals in order to
decrease further and to eliminate where possible the dependency of the
United States on overseas sources of supply of each such material.[273]
The Act extended for an additional two years the termination dates of
all purchase programs designed to stimulate the domestic production
of tungsten, manganese, chromite, mica, asbestos, beryl, and
columbium-tantalum-bearing ores and concentrates and established by
regulations issued pursuant to the Defense Production Act of 1950.[274]
MILITARY SITES AND PRODUCTIVE FACILITIES
Scattered through the statute books, of course, are numerous
authorizations to defense agencies to acquire land for specific
projects. For example, a July 1939 statute authorized the Secretary
of War to acquire fourteen described plots,[275] and a May 1949
statute authorized the Secretary of the Air Force to establish a joint
long-range proving ground for guided missiles and other weapons and
to acquire lands and rights necessary to set up the project.[276] An
Act of 1951 authorized the Secretary of the Navy to enlarge existing
water-supply facilities for the San Diego, California area for the
purpose of insuring the existence of an adequate water supply for
naval installations and defense production plants in that area.[277]
Of equal, if not greater significance than the scope of the delegation
contained therein are the provisions for extension of Congressional
control set-out in these authorizations for acquisition of specific
items.
In the Second War Powers Act, breadth of Congressional delegation
rather than intensity of control is the dominant fact. For example, the
President was authorized to permit the Secretaries of War and Navy,
or any other officer, board or commission, to acquire real property
by any means necessary, including condemnation, to insure its use by
the Government when needed.[278] Immediate possession might be taken
after filing of a condemnation petition.[279] Among the many powers
granted to the Federal Civil Defense Administrator in the 1951 statute
creating the FCDA was that of procuring by condemnation or otherwise,
constructing, or leasing materials and facilities.[280]
Because they are extremely scarce or non-existent in their natural
state in the United States, a few elements or other commodities have
been the object of intensive government efforts to either directly
produce them on a full scale, or to encourage private production by
acquiring and transferring to private firms certain of the assets
requisite to production. These are nitrogen, helium gas, fuels, rubber,
synthetic liquid and abaca (a plant the fiber of which is used in
making hemp).[281] Thus the Board of Directors of the Tennessee Valley
Authority were given power to exercise the right of eminent domain[282]
and to make and sell fixed nitrogen and fertilizers with the specific
injunction that it maintain in stand-by condition suitable facilities
for the production of explosives in the event of war or a national
emergency.[283] The plant might be used for the fixation of nitrogen
for agricultural purposes or leased, as long as conversion to war
production could be made quickly. The TVA of course was authorized to
produce and sell electric power,[284] but the government reserved the
right in case of war or national emergency declared by Congress to
preempt TVA-produced electricity as well as nitrogen.[285] The Helium
Gas Conservation Act of 1937 authorized the Secretary of the Interior,
through the Bureau of Mines, to acquire lands, and acquire or construct
such plants as were necessary to establish a federal monopoly of helium.
In 1942 the Secretary of Agriculture was authorized to construct or
operate factories for the growth and processing of guayule and other
rubber-bearing plants.[286] In 1947 Congress proclaimed the continued
existence of a short supply of rubber, a highly strategic and critical
material needed for the common defense and which cannot, in its natural
state, be grown in the United States. It reaffirmed the policy that
there shall be maintained at all times in the interest of the national
security and common defense, in addition to stock piles of natural
rubber, a technologically advanced and rapidly expandable domestic
rubber-producing industry. To this end, the powers of the United States
to manufacture and sell synthetic rubber were to continue in force
and the government would retain at least the minimum copolymer plant
capacity to produce “not less than six hundred thousand long tons per
year.”[287] A year later, in March 1948, a policy of reliance upon the
development of a free, competitive synthetic-rubber industry and the
termination of government production was enunciated, the President
to exercise certain powers of control to insure the existence of an
extensive government demand for domestic synthetic-rubber.[288]
The synthetic liquid fuels program was established in 1944. The
Secretary of the Interior, acting through the Bureau of Mines, was
authorized to develop and maintain one or more demonstration plants
to produce synthetic liquid fuels from coal, oil shale, and other
substances, and one or more demonstration plants to produce liquid
fuels from agricultural and forestry products. The Bureau of Mines
would also develop all facilities and accessories for the manufacture,
purification, storage, and distribution of the products.[289] Unlike
the other plans for production of essential defense elements or
commodities, this program was not designed directly to meet a major
portion of defense needs for the commodity produced. Rather, the plants
were to be of the minimum size which would allow the government to
furnish industry with the necessary cost and engineering data for the
development of a synthetic liquid-fuel industry.[290]
In the Abaca Production Act of 1950, Congress declared that abaca,
a hard fiber used in the making of marine and other cordage, is a
highly strategic and critical material which cannot be produced
in commercial quantities in the continental United States, and of
which an adequate supply is vital to the industrial and military
requirements for the common defense of the United States.[291] The
federal government was therefore to continue the program for the
production and sale of abaca in which it was engaged at the termination
of hostilities and to encourage abaca production throughout the world.
The total acreage produced by the government was not to exceed fifty
thousand, fluctuating below that upper limit at the discretion of the
President.[292]
The year of Dunkirk witnessed a number of Congressional authorizations
to the Executive to acquire and either directly utilize, or pass on
to private enterprise, material of war, or productive equipment and
facilities. In mid-1940 the President was given power to authorize the
Secretary of War to manufacture in factories and arsenals under his
jurisdiction, or otherwise procure, coast-defense and anti-aircraft
material, including ammunition therefor, on behalf of any American
Republic. He might also establish repair facilities for such
equipment.[293] This was shortly extended to manufacturing for the
government of any country whose defense the President deemed vital to
the defense of the United States.[294] Later in 1940 he was authorized
to requisition and take over for use of the United States any military
or naval equipment or munitions which had been ordered for export, but
which then could no longer be exported. Certain items of a military
nature could not, for example, be sent to France once the Germans had
occupied that country. The President could dispose of such material to
a private corporation or individual if such action was deemed to be
in the public interest.[295] The June 30, 1942 termination date was
moved forward to June 30, 1944, and the President’s power enlarged to
requisition in the interest of national defense or prosecution of war
in July 1942.[296]
In June 1940 the Secretary of the Navy was authorized to provide
necessary construction facilities or manufacturing plants on federal
land or elsewhere, and to man them with federal employees or otherwise
whenever he found it impossible to make contracts or to secure
facilities for procurement or construction of items authorized in
connection with national defense.[297] By October 1941 this authority
had grown to a general authorization to the President, that if he
found that the use of any military or naval equipment, supplies,
or munitions, or machinery, tools, or materials necessary for the
manufacture, servicing and operation of such equipment, were needed
for the defense of the United States the President could requisition
such property. Only two conditions prevailed: first, that the need
was immediate and impending, and second, that just compensation was
paid to the owners. The original expiration date of June 30, 1943 was
later changed to June 30, 1944.[298] But long before the Second World
War, Congress gave the President authority to requisition merchant
vessels. In Section 902 (a) of the Merchant Marine Act of 1936 the
government reserved the right to requisition any vessel documented
under the laws of the United States, during any national emergency
declared by proclamation of the President.[299] In authorizing the
President to utilize the power of eminent domain to acquire land needed
for pipe-line construction by private firms, Congress provided that
in the event it was impracticable for any private person promptly and
satisfactorily to construct such lines, the President could provide
for the construction by such department as he might designate.[300]
The government thus was privileged to go into the pipe-line business,
constructing and operating defense needed pipe-lines. Among the
prerogatives which Congress made available to the Secretary of the
Navy for purposes of insuring adequacy of maritime salvage operations
during the war, was that of acquiring such vessels and equipment as he
might deem necessary therefor.[301] The Secretary also was empowered
to transfer, by charter or otherwise, such equipment for operation by
private salvage companies.
The Defense Production Act of 1950 gave the President powers virtually
equal to those granted by Congress to the President in 1941. Again the
President was empowered to requisition needed materials for the defense
of the United States.[302] And in July 1953 the three armed service
secretaries were empowered to acquire, construct, establish, expand,
rehabilitate or convert industrial plants, either publicly or privately
owned, as might be needed for the defense of the United States. The
statutory language followed the familiar prescription that acquisition
could be by purchase, donation, lease, condemnation or otherwise as
necessary.[303]
FACILITATING ACQUISITION BY PRIVATE ENTERPRISES
In July 1941 Congress used the power of eminent domain to facilitate
the construction of public utilities for defense purposes.[304] Upon
finding that the construction of any pipe-line for the transportation
and/or distribution of petroleum or petrol products moving in
interstate commerce was or might be necessary for national-defense
purposes, the President was permitted to acquire such land or interest
in land, including rights-of-way or easements, by the exercise of the
right of eminent domain, as, in his opinion might be necessary.[305]
The President invoked this Act on a number of occasions.[306]
The Second War Powers Act earlier mentioned not only authorized the
acquisition of real property by the Secretaries of War and Navy or
their agents, but permitted them to dispose of such property or
interest therein by sale, lease or otherwise.[307] The Small Business
Concerns Mobilization Act of June 1942 empowered the Smaller War Plants
Corporation, established under the Act,[308] to purchase or lease
land, to purchase, lease, build, or expand plants, and to purchase or
produce equipment, facilities, machinery, materials, or supplies, as
might be needed to enable the Corporation to provide small business
concerns with the means and facilities to engage in the production of
war materials.[309] The Corporation could also enter into contracts
with the United States government and any department, agency, or
officer of the government having procurement powers and obligate the
Corporation to furnish articles, equipment, supplies, or materials to
the government.
AVAILABILITY OF FEDERALLY OWNED PROPERTY TO PRIVATE ENTERPRISE
Actually no clean demarcation can be made between this and the
preceding section. A graduation can be established, moving from
statutes lending the power of eminent domain to private enterprise,
to those emphasizing government acquisition and lending or leasing,
and ultimately to those principally concerned with providing
government-owned equipment to private enterprise--the equipment
presumably already in the hands of the government or subject to
acquisition under other statues.
One of the very first Acts to provide for placing educational
production of munitions of war stipulated that initial orders placed
with any person, firm, or corporation for supplying such munitions,
accessories, or parts, could include a complete set of such gages,
dies, jigs, tools, fixtures, and other special aids and appliances,
including drawings as needed for the production of munitions in
quantity in the event of emergency.[310] The title to all such
facilities was to remain in the government of the United States. The
fiscal 1941 Navy Department Appropriations Act granted the Navy funds
to furnish Government-owned facilities at privately owned plants,[311]
and a July 1940 Act to expedite the strengthening of the national
defense accorded like authority to the President.[312] Section 303 (a)
(d) of the Defense Production Act of 1950 gave the President a general
power to purchase raw materials including liquid fuels for government
use or for resale, and when in his judgment it would aid the national
defense, to install government-owned equipment in plants, factories,
and other industrial facilities owned by private persons.[313]
ACQUISITIONS INCIDENTAL TO ENFORCEMENT OF A CONTROL PROGRAM
Of the acquisition statutes hitherto discussed, most required that
an effort be made to negotiate a fair price with the individual or
concern whose property was acquired and, failing that, recourse might
be had to eminent domain proceedings. By the terms of the latter,
private entrepreneurs or investors in effect are confronted with the
option of utilizing their property in conformity with the Government’s
mobilization program or, in lieu thereof, of relinquishing it to the
Government. The statutes now to be considered sanction acquisition of
private property in those cases in which the owners or operators are
not managing it to the Government’s satisfaction.
A June 1940 Act to expedite national defense empowered the Secretary
of the Navy, under the general direction of the President, whenever he
deemed any existing manufacturing plant or facility necessary for the
national defense, and whenever he was unable to arrive at an agreement
with the owner of any such plant or facility for its use or operation,
to take over and operate such plant or facility either by Government
personnel or by contract with private firms.[314] The Selective
Training and Service Act of 1940 authorized the President, acting
through the Secretaries of War or Navy, to take immediate possession
of any plant or plants which in the opinion of the Secretary of War or
the Secretary of the Navy were capable of being readily geared to war
production. This drastic action came only when the owners refused to
give to the United States preference in the matter of the execution of
orders, or refused to manufacture the kind, quantity, or quality of
arms or ammunition, or who refused to furnish the materials demanded at
a reasonable price.[315]
The War Labor Disputes Act gave the President a similar power to
seize struck industries. It might be exercised with respect to any
plant, mine, or facility equipped for the manufacture, production,
or mining of any articles or materials which might be required for
the war effort, or which might be useful in connection therewith.
But a presidential finding was necessary first, that there was an
interruption of the operation of the plant, mine, or facility as a
result of a strike or other labor disturbance, and that the war effort
would be unduly impeded or delayed by the interruption, and that the
exercise of such power and authority was necessary to insure operation
in the interest of the war effort.[316]
Not, perhaps, punitive in its object, but nonetheless related to
enforcement of a control program, was the provision of the Emergency
Price Control Act of 1942, permitting the Price Administrator to buy
or sell commodities and goods or grant subsidies to assure necessary
production.[317]
CHAPTER VI REGULATION OF PROPERTY
We have seen that the effort to rationalize the national economy in
time of economic or war emergency may lead democratic governments
to assert a power to acquire the raw materials of production and
productive facilities. This power of acquisition may be designed or
exercised as a sanction for the coercion of “co-operation” upon the
part of the private units of the economy, or it may express the finding
that particular stockpiling or production functions can only, or most
efficiently be conducted by public agencies.
Significant as may be the readiness of democratic governments in time
of critical economic or crucial war emergency to enter the market
place or to produce, either to the exclusion of private enterprises
or in competition with them, these are exceptional circumstances;
rationalization of the economy is principally achieved by coercing
private owners and producers to act consistently with a governmental
definition of the public interest. It is such examples of direct
governmental control of private entrepreneurs, producers, and
distributors that are to be examined in this chapter.
CONTROL OF GOODS AND MATERIALS
In surveying the possible alternatives of a nation aware of a
threatened or existing shortage of strategic raw materials or finished
products it is appropriate to review first negative and general
controls and thereafter to consider those which become increasingly
particular and positive. An initial precautionary move in such
circumstances is to prevent the escape of scarce materials from
the country. Also relevant thereto is the conservation of domestic
supplies. Beyond conservation, implementing these safeguards are
affirmative programs encouraging increased domestic production of such
materials as well as their importation from abroad. Such programs have
been reviewed under the heading of government acquisition. It will
be recalled that in addition to stockpiling strategic materials, the
government created and operated new productive facilities in an effort
to insure adequate supply. However, in addition to these measures
the government generally has been unable to escape the necessity of
establishing priorities and allocations systems to insure that whatever
supply is available is utilized for successful prosecution of the war
or to combat effectively any other domestic emergency.
_Restrictions on Export_: Congress, in the Tennessee Valley Authority
Act of 1933, stipulated that no products of the Corporation could
be sold for use outside of the United States, its Territories and
possessions, except to the United States government for the use of its
Army and Navy, or to its allies in case of war.[318]
In a series of enactments, commencing with a joint resolution of May
1934, Congress sought to insulate the United States from the danger
of involvement in foreign wars by embargoing the shipment of arms to
foreign belligerents. The resolution mentioned enabled the President
after consultation with the governments of other American Republics
to proclaim that the prohibition of the sale of arms and munitions
of war in the United States to those countries then engaged in armed
conflict in the Chaco might contribute to the reestablishment of
peace between those countries, after which it would become illegal
to sell such material to the disputants or their agents.[319] On the
same day that he signed the Chaco resolution, President Roosevelt
issued the proclamation contemplated by the Act.[320] In August 1935
the embargo method was imposed uniformly without limitation as to
area. The Neutrality Act of that year provided that if war broke out
between two or more foreign states, the President should proclaim this
fact, and thereafter it would be unlawful to export arms, ammunition
or implements of war from any place in the United States, or its
possessions to the belligerents, or to any neutral area for eventual
trans-shipment to a belligerent country.[321] In addition, the Act
placed a blanket prohibition upon the export or import of arms,
except insofar as authorized under license procured from the National
Munitions Control Board established by the Act.[322] When he had cause
to believe a given ship was about to carry material to a belligerent,
but the evidence was not deemed sufficient to justify forbidding the
departure, the President could require the owner or commander to give
a bond to the United States, with sufficient sureties, that the vessel
would not deliver the men, or the cargo, or any part thereof to a
belligerent.[323]
Congress maintained a vigilant oversight over enforcement of its
neutrality policy. Since the embargo authorized by the 1935 Act could
be applied only on the occurrence of war between, or among, two or
more foreign states, it could not be invoked in the Spanish Civil
War. This situation Congress immediately rectified upon assembling in
January 1937. Public Resolution No. 1, which became law on January 8,
1937, specifically prohibited the export of war material for use of
either of the opposing forces in Spain.[324] Thereafter it amended the
1935 statute, retaining its provisions virtually intact, but directing
it at instances of internecine as well as international war.[325] The
same day that the President signed this law, he issued a proclamation
finding that a state of civil strife unhappily existed in Spain and
prohibited the direct or indirect export of material of war to either
of the opposing armies.[326]
A series of proclamations were issued under this and other contingent
emergency statutes in September 1939.[327] The prohibition on export
of war material was narrowed to a prohibition on the export of such
material until title had unconditionally passed to the foreign
purchaser--the cash and carry system.[328] A number of Presidential
proclamations effected application of the new statute.[329]
Presidential proclamations also reflect the change in emphasis of
statutory prohibitions of the export of war materials. In September
1939, the President issued a clearly neutrality-oriented proclamation
prohibiting enlistment in, or recruitment for, belligerent armed
forces, provisioning of belligerent ships,[330] and subsequent
proclamations of 1940 and 1941 were equally clearly concerned with
preserving adequate domestic stocks of strategic materials.[331]
Upon amendment of the July 1940[332] Act in June 1942, the President
was authorized to prohibit or curtail the exportation of any articles,
technical data, materials, or supplies, except under such rules and
regulations as he might prescribe.[333] Unless the President otherwise
directed, the functions and duties of the President under this section
of the Act were to be performed by the Board of Economic Warfare.[334]
The Export Control Act of 1949 empowered the President to prohibit
or curtail the exportation from the United States, its Territories
and possessions, of any articles, materials, or supplies, including
technical data but excluding agricultural commodities in excess of
domestic requirements.[335] The purpose here was to protect the
United States from the excessive drain of scarce materials.[336] The
Atomic Energy Act also prohibited the export from or import into the
United States or curtail the exportation from the United States, its
Territories and as authorized by the Atomic Energy Commission upon a
determination by the President that the common defense and security
would not be adversely affected thereby.[337]
Obviously embraced within the power to embargo is the power
conditionally to permit exports. Thus, in December 1941 following Pearl
Harbor, Congress permitted the President, whenever he deemed it to be
in the interest of national defense, to authorize the Secretary of War
to sell, transfer title to, exchange, lease, lend, or otherwise dispose
of, to the government of any country whose defense the President deemed
vital to the defense of the United States, any defense article procured
from funds appropriated for the military establishment prior to or
since March 11, 1941.[338]
In formulating an export policy for the period following World War II
era, Congress doubtless has been influenced by the post war inflation.
The Export Control Act of 1949, in granting the President power to
prohibit or curtail the exportation of certain materials, including
technical data,[339] made explicit the Congressional intent to protect
the domestic economy from the excessive drain of scarce materials and
to reduce the inflationary impact of abnormal foreign demand.[340]
_Domestic Conservation_: With a view to stabilizing prices and
encouraging the conservation of deposits of crude oil situated within
the United States Congress in 1935 prohibited the interstate shipment
of contraband oil (i.e., oil produced in excess of state imposed
quotas).[341] Two different provisions of the Second War Powers Act
of 1942 related to conservation of strategic materials. Section 801
empowered the President to direct the Administrator of the Federal
Security Agency to assign the manpower of the Civilian Conservation
Corps to the extent necessary to protect the munitions, aircraft,
and other war industries, municipal water supply, power and other
utilities, and to protect resources subject to the hazards of forest
fires.[342] Section 1201 permitted the Director of the Mint to vary
the metallic composition of five cent pieces to conserve strategic
metals.[343]
_Priorities and Allocation_: In late May 1941, Congress provided
that whenever the President was satisfied that the fulfillment of
requirements for the defense of the United States would result
in a shortage in the supply of any material for defense or for
private account or for export, the President could allocate the
material in whatever manner he deemed necessary or appropriate in
the public interest and to promote the national defense.[344] This
provision was retained in the Second War Powers Act of 1942.[345]
In a joint resolution of March 1947 declaring the need for
maintenance of a technologically advanced and rapidly expandable
domestic rubber-producing industry and for a Congressional study of
the problem, Congress provided that in the interim, pending the
enactment of permanent legislation, the government should continue
allocation, specification, and inventory controls of natural and
synthetic rubber.[346] A year later this power was continued. The
President was authorized to exercise allocation, specification, and
inventory controls of natural rubber and synthetic rubber to insure
the consumption of general-purpose synthetic rubber as a part of the
estimated total annual consumption of natural rubber.[347]
The First Decontrol Act of 1947, providing for the termination of
certain of the provisions of the Second War Powers Act, permitted
the continued exercise of power to allocate materials which were
certified by the Secretaries of State and Commerce as necessary to meet
international commitments.[348] Section 101 of the Defense Production
Act of 1950 empowered the President to allocate materials in such
manner, upon such conditions, and to such extent as he deems necessary
or appropriate to promote the national defense.[349] A related section
provided that no person should accumulate (1) in excess of the
reasonable demands of business, personal, or home consumption, or (2)
for the purpose of resale at prices in excess of prevailing market
prices, materials which had been designated by the President as scarce
materials or materials the supply of which would be threatened by such
accumulation.[350] The Atomic Energy Act of 1946, as amended in 1951,
expands the allocation power to its logical extreme by allocating all
fissionable material to the federal government, making it unlawful for
any person to possess or transfer any fissionable material, except as
authorized by the Atomic Energy Commission.[351]
CONTROL OF PRODUCTIVE FACILITIES
_Priorities_: Particularly in the conversion period preceding
full-scale defense production it is necessary to compel producers
to accord first priority to fulfillment of government contracts.
During such interval prior to all-out defense mobilization, when his
competitors may be satisfying the demands of consumers, the businessman
has ample cause to fear that in giving priority to government orders
disgruntled private customers will be permanently lost to competing
firms. Accordingly, a June 1940 statute provided that, in the
discretion of the President, fulfillment of Army or Navy contracts
was to take priority over all deliveries for private account or for
export.[352] In a year this was amended to extend the President’s power
over priorities to include contracts or orders for the Government of
any country whose defense the President deemed vital to the defense
of the United States and contracts or orders, or subcontracts or
sub-orders, which the President deemed necessary or appropriate to
promote the defense of the United States.[353] In May 1941 the Maritime
Commission was empowered to demand that work on its contracts take
priority over the furnishing of materials or performance of work for
private account or for export.[354] The Second War Powers Act continued
in effect the provision of the June 1940 and May 1941 statutes[355] by
providing that all orders for vessels, equipment, and weapons placed
by the Army and Navy were, in the discretion of the President, to take
priority over all deliveries for private account or for export.
To repair the Spring 1945 flood damages, Congress in June of that
year granted the War Production Board, and every other governmental
agency which had jurisdiction over allocations and priorities relating
to farm machinery and equipment, authorization to take such steps
as might be necessary to provide for the necessary allocations and
priorities to enable farmers in the areas affected by floods in 1944
and 1945 to replace and repair their farm machinery and equipment which
was destroyed or damaged by floods, or windstorms, or fire caused by
lightning, and to continue farming operations.[356]
Again, the Defense Production Act of 1950 gave the President virtually
plenary power to require that defense orders be given priority by
private industry: “The President is hereby authorized ... to require
that performance under contracts or orders (other than contracts of
employment) which he deems necessary or appropriate to promote the
national defense shall take priority over performance under any other
contract or order.”[357] Perhaps not classifiable as examples of an
assertion of governmental priority in the use of productive facilities
are three enactments under which the Federal Government has exercised
the right to withhold issuance of patents and to reserve certain
inventions for its exclusive use whenever the public safety or defense
so require.[358]
_Compulsory Orders_: The establishment of priorities for the
fulfillment of contracts presupposes voluntary fulfillment of
government contracts by private industry. Do the principles of
democratic government preclude conscription of industrial plants,
regardless of the willingness or unwillingness of owners to execute
war contracts? Having conscripted physically eligible young men
under the Selective Training and Service Act of 1940 Congress also
established therein priority for industrial performance on military
orders, and a provision to compel acceptance and priority performance
on defense orders.[359] The President was empowered, through the head
of the War Department or the Navy Department, to place orders with any
individual, firm, association, company, corporation, or organized
manufacturing industry for whatever materials might be required, and
which were of the nature and kind usually produced or at least capable
of being produced by the productive units involved. General Motors
produced automobiles, but they could also produce tanks or trucks as
the Army required. Compliance with all such orders for products or
materials was obligatory and took precedence over all other orders
and contracts previously placed.[360] The use of plant seizure by
the government as the sanction for infraction of the provision has
previously been reviewed in the section on acquisition. In the Second
War Powers Act of 1942 the President was given the plenary power to
require acceptance of and performance under defense contracts or orders
in preference to all other contracts or orders.[361] More recently, the
Defense Production Act of 1950 and the 1953 amendment to it authorize
the President to require acceptance and performance of such contracts
or orders as he deems necessary or appropriate to promote the national
defense.[362]
_Protection of Quality_: Only one example in this category has been
discovered. In 1940 Congress amended an old World War I law, vintage
1918, that provided punishment for the willful injury or destruction
of war materials or war premises used in connection with war
material.[363] Sections 5 and 6 of this Act imposed maximum penalties
of $10,000 fine and ten years imprisonment for willfully injuring or
destroying national defense materials, whatever they might be, premises
or utilities, or willfully making defective defense material or
equipment utilized for the production of defense material. An important
element of the offense was existence of an intent to injure, interfere
with, or obstruct the national defense of the United States.[364] While
laws against sabotage have been enforced vigorously, this 1918 law was
designed to protect the Government against shoddy workmanship and poor
equipment.
_Controlling Labor Relations_: Emergency provisions regulating
labor relations in private enterprise appear to have four different
motivations. First, wide scale control of the relations between
employers and employees may constitute an integral part of a total
program aimed at countering an economic depression. Second, it may be
aimed at preventing unethical practices. Third, the purpose may be
to avoid interruption of vital production. And, fourth, the control
may be designed as a precaution against espionage, sabotage, or other
violation of the national security.
The National Industrial Recovery Act obviously conceived as emergency
legislation which it indubitably was, is the outstanding example of an
endeavor in part through the regulation of employer-employee relations,
to overcome an economic depression.[365] The objective of course was
to increase consumer income and purchasing power, which in turn was
to stimulate production, with related chain effects. Section 7 (a)
required that every code of fair competition established under the
Act guaranteed employees the right to bargain collectively, and to
join or refrain from joining a union. Company unions were outlawed.
Employers were to comply with the maximum hours or labor, minimum rates
of pay, and other conditions of employment, approved or prescribed
by the President. In Section 4 (b) the President was granted the
unprecedented power whenever he found “that destructive wage or price
cutting or other activities contrary to the policy of this title were
being practiced in any trade or industry or any subdivision thereof,”
to license business enterprises in order to make effective a code of
fair competition or an agreement that would carry out the policy of the
Act. Once a finding had been made, and publicly announced, no one could
carry on any business, if in interstate commerce, unless a license had
been obtained. Any order of the President suspending or revoking any
such license was to be final if in accordance with law.
Title II of the Act, pertaining to public works projects, closely
regulated employment practices on projects contracted under the Act:
Convict labor was prohibited; no one, except in an administrative
or executive position could work more than thirty hours a week;
all employees were to be paid just and reasonable wages sufficient
to provide a standard of living in decency and comfort; wherever
possible ex-servicemen with dependents were to be given preference
in employment; and human labor in preference to machinery was to be
used wherever practicable and consistent with sound economy and public
advantage.[366] In June 1934 Congress authorized the establishment
of labor boards to enforce the labor relations provisions of the
N.I.R.A.[367] As is well known these sweeping provisions were later
swept aside in the famed case of _Schechter Poultry Corporation_ v.
_United States_,[368] wherein Mr. Justice Cardozo, speaking for a
unanimous Court, said “this is delegation run rampant.”
Next to be considered are controls designed to forestall interruption
of vital production. Section 8 of the War Labor Disputes Act required
30 days notice of a prospective strike and secret balloting of the
union members concerned.[369] Other sections of the Act authorized
government seizure of struck plants, and made it unlawful to interfere
with government operation of plants.[370] The Labor Management
Relations Act of 1947 set forth procedure whereby the President may
secure injunctions postponing strikes or lockouts which will, if
permitted to occur or to continue, imperil the national health or
safety.[371]
_Controlling Profits_: The campaign of the 1930’s to take the profits
out of war is well known. Correlative to the deeply felt aspiration in
time of peace to end the resort to war as an instrument of policy, is
the popular thesis that war and the profitability of war production
have a causal connection. In time of war, the public, on the other
hand, is receptive to the proposal that command of the services and
lives of mature young human beings warrants conscription of capital at
least to the extent necessary to avoid profiteering, or to the extent
such conscription facilitates the attainment of other worthy defense
goals. In harmony with these beliefs the Vinson-Trammell Act of 1934
authorizing naval construction within the limits of the Washington and
London treaties of 1922 and 1930 instructed the Secretary of the Navy
to make no contract for the construction and/or manufacture of any
complete naval vessel or aircraft, or any portion thereof unless the
contractor agreed to certain conditions: (1) he had to agree to pay
any profit in excess of ten percent of the total contract price to the
United States Treasury (twelve percent was allowed as the profit margin
on aircraft); and (2) he could make no subdivisions of any contract or
subcontract for the same article or articles for the purpose of evading
the provisions of the Act.[372]
In 1938 provisions for close supervision of the leasing of naval
petroleum reserves also were imposed upon the Navy Department,
obviously directed in part at precluding extortionate profit-making
from such leases.[373]
In permitting emergency negotiation of contracts for the acquisition
of construction of war vessels or material with or without competitive
bidding, upon determination that the price was fair and reasonable
the Act of June 28, 1940 to expedite national defense afforded the
Secretaries of War and Treasury authority to modify existing contracts,
including Coast Guard contracts, as the Secretary concerned believed
necessary.[374] Presumably upon a later finding that an agreed price
was not fair and reasonable, profits could be revised downward through
resort to Section 9 permitting contract modification at the discretion
of the Secretary. Again, the Second War Powers Act of 1942, in
permitting the Secretary of the Navy, when authorized by the President,
to negotiate contracts for the acquisition, construction, repair,
or alteration of complete naval vessels or aircraft, or any portion
thereof,[375] stipulated that the cost-plus-a-percentage-of-cost system
of contracting should not be used unless considered necessary by the
Secretary of the Navy, in which case the percentage was not to exceed
seven percent.[376] By way of enforcement the government reserved the
right to inspect the plants and audit the books of contractors.[377]
Authority to award contracts without competitive bidding was not
freely granted. A Supplemental Defense Appropriations Act of 1942
required the Secretaries of War and Navy to report to the Congress all
defense contracts in excess of $150,000 and to justify those awarded
without competitive bidding.[378] The Secretaries were authorized and
directed to insert in any contract for an amount in excess of $100,000
a provision for the renegotiation of the contract price.[379] In 1951,
declaring that sound execution of the national defense program requires
the elimination of excessive profits from contracts made with the
United States, and from related subcontracts, in the course of such
program, Congress enacted the Renegotiation Act of 1951 providing for
the renegotiation of defense contracts netting contractors more than a
reasonable profit.[380]
CONTROL OF CREDIT, EXCHANGE, PRICES
_Credit_: The major purpose of the Defense Production Act of 1950 was
to place the national economy on a war production footing with minimal
possible effect upon civilian production and consumption. An effort
was made to expand the total productive facilities of the nation
beyond the levels needed to meet the civilian demand, thus reducing
the need to curtail civilian consumption. To some extent, however, it
was anticipated that normal civilian production and purchases would
have to be curtailed and redirected.[381] In this connection the
Federal Reserve Board by law was empowered to impose consumer credit
controls pursuant to an Executive Order[382] until such time as the
President determined that the exercise of such controls were no longer
necessary. The controls, of course, were to be directed at carrying out
the objectives of the Defense Production Act.[383] In addition, the
President was authorized from time to time to prescribe regulations for
regulating real estate construction credit as he believed necessary
to prevent or reduce excessive fluctuations in such credit. He was
empowered to prescribe maximum loan or credit values, minimum down
payments, trade-in or exchange values, maximum maturities and maximum
amounts of credit.[384] These, of course, were direct controls,
as distinguished from inducements or incentives designed to reduce
civilian demand for materials and productive facilities needed by the
military establishment.
Opposite to the use of credit controls as a means of reducing effective
consumer demand is direct intervention to insure that adequate credit
is available to finance business activities declared by the Government
to be essential to national defense. Conceivably the government could
require that lending institutions, under certain conditions, make such
grants. In lieu thereof it sought to provide incentives to lending
institutions to make loans to defense producers, and avoided compelling
extension of such credit. In fact, credit was made available through
the Reconstruction Finance Corporation, the Smaller War Industries
Administration and most recently the Small Business Administration. As
a _quid pro quo_ the government compels the recipient of such aid to
submit to supervision.[385] Equally effective as loans in financing
needed defense construction or production are advances to contractors.
In providing for the construction of pipe-lines for the transportation
of petroleum products, Congress in 1941 permitted the President to
make such advances as he deemed advisable, through such departments
as he might designate to the contractors.[386] It also authorized the
Secretary of Navy to advance to private salvage companies such funds as
the Secretary thought necessary to provide for the immediate financing
of salvage operations.[387]
_Exchange_: The May 1937 amendment to the Neutrality Act made it
unlawful, when the President had issued a proclamation that a state of
war between two or more states or a state of civil war in a foreign
state existed for any person in the United States to purchase, sell, or
exchange bonds, securities or other obligations of the governments of
any belligerent states or to loan, or to collect contributions.[388]
The First War Powers Act of 1941 echoed this provision, providing
in Title III, Trading with the Enemy, that the President in time of
national emergency declared by him might investigate, regulate, or
prohibit any transactions in foreign exchange, transfers of credit
or payments.[389] The Export Control Act of 1949 permitted the
President to stipulate the rules which should apply to the financing,
transporting, and other servicing of exports.[390]
_Price Control_: In time of war the capitalist economy is transformed
into a closely administered economy regulated in an effort to maximize
war production and minimize dislocation of the civilian economy. To
prevent speculation and dissipation of tax and consumer dollars through
continuous and unchecked price increases, it becomes necessary that
prices be subjected to government control. This was the aim of the
Emergency Price Control Act of 1942. Whenever in the judgment of the
Price Administrator the price or prices of a commodity or commodities
threatened to rise to an extent inconsistent with the purposes of
the Act, the Price Administrator could establish whatever maximum
price or prices he thought equitable and fair. The only guide lines
for “fair and equitable” in establishing a maximum price were the
prices prevailing between October 1 and October 15, 1941.[391] He was
further empowered to recommend stabilization or reduction of rents
in defense-rental areas. Where state or local boards failed to heed
the recommendation the Administrator could by regulation or order
establish maximum rents for such accomodations as in his judgment would
be generally fair and equitable and would effectuate the purposes of
the Act. Rent levels were established on the basis of those prevailing
on April 1, 1941. The Act was amended in October 1942 when Congress
authorized and directed the President on or before November 1, 1942, to
issue a general order stabilizing prices, wages, and salaries affecting
the cost of living. Stabilization was so far as practicable, to be on
the basis of the levels which existed on September 15, 1942.[392] The
President was also given power by regulation to limit or prohibit the
payment of double time except when, because of emergency conditions,
an employee is required to work for seven consecutive days in any
regularly scheduled work week.[393]
In an effort to adapt the price control program to postwar reconversion
and prepare for its eventual termination Congress in July 1946 extended
the life of the Price Control Act of 1942 to June 30, 1947, admonishing
the Office of Price Administration and other agencies to use their
price powers to promote the earliest practicable balance between
production and demand: Congress wanted the control of prices and the
use of subsidy powers to be terminated as rapidly as possible.[394]
The President was directed to recommend to the Congress legislation
needed to establish monetary, fiscal, and other policies adequate to
supplement the control of prices and wages during the balance of the
fiscal year 1947. A Joint Resolution of March 1947 continued the price
control program with regard to sugar until October 31, 1947.[395] Rent
control as well as other war production controls continued in effect by
the Defense Production Act of 1950 which authorized the President to
establish a ceiling or ceilings on the price, rental, commission, rate,
fee, charge or allowance paid or received on the sale or delivery,
or the purchase or receipt, by or to any person, of any material or
service. And the same Act required that the President issue regulations
and orders stabilizing wages, salaries, and other compensation.[396]
Once the Korean War ended, all controls, price, rent and credit were
swept off the statute books.
CONTROL OF COMMON CARRIERS
Congressional enactments under this head generally fall into three
major categories: control of domestic transportation, control of
carriage by American ships, and control of foreign vessels in American
ports. Our interest is confined exclusively to emergency controls
exercisable by the Interstate Commerce Commission and similar federal
regulatory agencies.
_Control of Domestic Common Carriers_: The Emergency Railroad
Transportation Act of 1933 was designed to facilitate rehabilitation of
the depression ridden American railroads. An Act addressed to economic
rather than military emergency, it had nonetheless military overtones.
The maintenance of an efficiently functioning railroad system capable
of meeting potential American defense needs was an objective that could
not be overlooked in the formulation of a successful railroad policy.
The Act set up a Coordinator of Transportation who was to divide the
railroad lines into three groups: eastern, southern, and western.[397]
A number of railroad coordinating committees were created to carry out
the purposes of the Act--i.e., elimination of unnecessary duplication
of services and facilities, control of allowances, etc., and avoidance
of undue impairment of net earnings, and other wastes and preventable
expense, and promotion of financial reorganization.[398] Whenever
unable to carry out these reforms the committees were to recommend
action to the Coordinator who might, at his discretion, issue an order
embodying their recommendations. When the committees failed to act on
matters brought to their attention by the Coordinator he was authorized
and directed to issue and enforce such order, giving appropriate
directions to the carriers and subsidiaries subject to the Interstate
Commerce Act as he found to be consistent with the public interest.[399]
Like the N.I.R.A. the Act contained a provision dealing with labor
relations. The Railroads were prohibited from reducing the number of
their employees below the number as shown by the pay rolls of employees
in service during the month of May, 1933, after deducting the number
who had been removed from the payrolls after the effective date of
the Act by reason of death, normal retirement, or resignation.[400]
A regional committee system was established for the representation
of employees, and provision made for regional boards of adjustment
to settle controversies between carriers and employees. Carriers and
employees were to be equally represented on such boards.[401] The
Railway Labor Act of 1926, as amended in 1934, attempted to establish a
pattern of free union-management negotiation of disputes with ultimate
recourse to a National Mediation Board.[402]
Air transportation received the attention of Congress in a June 1934
statute establishing a commission to make a report to the Congress
recommending an aviation policy.[403] The Commission was to report
its recommendations of a broad policy covering all phases of aviation
and the relation of the United States thereto. Subsequently the Civil
Aeronautics Act of 1938 was enacted, embodying congressional policy
in this field.[404] In 1950 a security provision was added to the
Act, permitting the Secretary of Commerce whenever he determined such
action to be required in the interest of national security to establish
airspace zones in which civilian flights could be restricted or
prohibited.[405]
Another original statute in this field was the Communications Act of
1934, whereunder interstate and foreign commerce in communication by
wire and radio is regulated. Federal controls were aimed at insuring
existence of a rapid, efficient, Nation-wide, and world-wide wire and
radio communication service for the convenience of the public and
for the purpose of national defense.[406] Created thereunder was the
Federal Communications Commission to which elaborate regulatory powers
were granted. During the continuance of a war in which the United
States was engaged, the Act authorized the President to direct that
such communications as in his judgment were deemed to be essential to
the national defense and security should have preference or priority
with any carrier subject to the Act. He could give these directions
at and for such times as he determined and he could modify, change,
suspend or annul them.[407] The President also was authorized to
prevent any obstructions by physical force or intimidations by
threats of physical force of interstate and foreign radio or wire
communications.[408]
The pipe-line construction provision of July 30, 1941 required that
pipe lines constructed with government aid be constructed subject to
whatever terms and conditions the President prescribed as necessary
for national defense purposes.[409] The second War Powers Act of 1942
gave the Interstate Commerce Commission wartime authority with respect
to motor carriers, to be exercised under circumstances and procedure
equivalent to the authority it had with respect to other carriers.
It could issue reasonable directives with respect to equipment,
service and facilities of motor carriers and require the joint use of
equipment, terminals, warehouses, garages, and other facilities. Motor
carriers were to be subject to the same penalties for failure to comply
with action taken by the Commission as any other carriers under its
jurisdiction.[410] In June 1953 Congress continued in effect traffic
priority powers of the I.C.C. which had been granted during the war and
continued by the Emergency Powers Continuation Act.[411]
_Control of Carriage by American Vessels_: The Neutrality Act of 1935
had provided that, following a presidential finding of the existence
of war between two foreign states, it would be unlawful for any
American vessel to carry any arms to any port of the belligerent
or to any neutral port for trans-shipment to, or for the use of,
belligerents.[412] Penalty for violation of this prohibition might
include $10,000 fine, five years imprisonment, and, in addition,
the vessel, her tackle, apparel, furniture, equipment and armaments
would be forfeited to the United States.[413] In addition vessels
were prohibited from carrying war material to belligerent warships
which presumably would effect transfer at sea. If the President or
his delegate had adequate reason to believe a ship about to carry war
material to a belligerent warship, he could prohibit departure; or if
the evidence did not warrant this, the owner or commander could be
required to give a bond to the United States, with sufficient sureties,
in whatever amount the President deemed proper, conditioned so that the
vessel would not deliver the men or the cargo, or any part thereof,
to any warship. Evasion of this prohibition subjected a vessel to the
possibility of being confined to port for the duration of the war.[414]
Application of this Act to Spain was effected by a Joint Resolution of
January 8, 1937.[415]
The prohibition of American carriage of war material to belligerents in
international or civil war was rephrased in the 1937 amendments to the
Act but kept essentially intact. Section 10 of the 1937 Act explicitly
prohibited the arming of American vessels engaged in commerce with
any belligerent state, or any state wherein civil strife exists.[416]
President Roosevelt immediately issued a Proclamation finding the
existence of civil war in Spain, promulgating a list of articles to be
considered material of war, and prohibiting their carriage to Spain by
American vessels.[417]
The Neutrality Act was made more stringent in November 1939. While
it was unlawful to export or transport war materials from the United
States to a belligerent until all right, title, and interest therein
had been transferred to some foreign government,[418] it was unlawful
for American vessels to carry _any_ passengers or _any_ articles or
materials to _any_ belligerent.[419] Furthermore, the President was
empowered to define combat areas, from which American vessels were
by law excluded. The prohibition against arming American merchant
vessels was continued. In August 1940, following the fall of France,
and while the British prepared for a German channel invasion, the
Act was liberalized to permit American vessels in ballast, unarmed
and not under convoy to transport refugee children, under sixteen
years of age, from war zones, or combat areas if the vessel were
proceeding under safe conduct granted by all of the States named in the
proclamations.[420]
In 1953 Congress placed on the statute books a provision suggestive of
the old neutrality acts. Under this law the Secretary of the Treasury,
or anyone designated by the President, could seize and detain any
carrier-vessel, vehicle or aircraft carrying munitions of war from the
United States. The authority to “seize and detain” came into operation
whenever an attempt was made to export, ship or take out of the United
States any munitions of war or other materials in violation of law.
Moreover, the law became operative as long as there was “probable cause
to believe” that prohibited items were being removed from the United
States in violation of the law.[421]
The Merchant Marine Act of 1936 is, of course, another of those
organic statutes designed to promote, rehabilitate, and regulate in
the interest of the trade and of the public, a segment of the American
transportation system. We have already seen that in this Act the
government secured the right in time of war emergency to requisition
American registered vessels. As a condition of the grant of subsidies
toward the construction of vessels in American yards, the Maritime
Commission reserved a power of final approval of the design of such
vessels. This power was of course shared with the Navy Department
which had to approve all defense features in the proposed vessel.[422]
Under the terms of the Act any vessels, the construction of which
was subsidized, were to be so designed as to be readily and quickly
convertible into transport and supply vessels in a time of national
emergency.[423] By permitting it to subsidize operation on approved
routes, Title VI of the Act in effect enabled the Commission to control
also the allocation of American shipping on the various world trade
routes.
In July 1941 the President was given power, during the emergency which
he had declared on May 27 of that year, to authorize the Maritime
Commission to issue warrants entitling vessels to priority over
merchant vessels not holding such warrants, in the use of facilities
for loading, discharging, lighterage or storage of cargoes, the
procurement of fuel, towing, overhauling, drydocking or repair of such
vessels. Vessels holding warrants had priority among themselves in
accordance with the rules of the Maritime Commission.[424] In granting
warrants, the Commission was to make fair and reasonable provision
for priorities. The criteria for helping the Commission determine
priorities were: (1) the importation of substantial quantities of
strategic and critical materials, (2) the transportation of substantial
quantities of materials when such transportation was requested by any
defense agency, and (3) the transportation in the foreign or domestic
commerce of the United States of substantial quantities of materials
deemed by the Commission to be essential to the defense of the United
States.[425]
Certain controls were imposed on the staffing of American vessels. A
statute of December 17, 1941 made it unlawful to employ any person
or to permit any person to serve as radio operator abroad any vessel
(other than a vessel of foreign registry) if the Secretary of the Navy
disapproved the employment for any specified voyage, route, or area of
operation and had notified the master of the vessel of the disapproval
prior to the vessel’s departure.[426] In 1934 a new stipulation
permitted the Commission to suspend the rule requiring radio operators
to have at least six months service before being qualified as a radio
operator. However, suspension of this qualification could not be
retained once the emergency had been terminated.[427]
_Control of Foreign Vessels in American Waters_: The Neutrality Act
of 1935, as amended in May 1937, empowered the President to place
special restrictions on the use of the ports and territorial waters of
the United States. The restrictions which could be imposed involved
limiting access to American ports and territorial waters by the
submarines or merchant vessels of a foreign state. Special restrictions
could be imposed at the President’s discretion once he determined that
such restrictions were needed to protect the commercial interests of
the United States and its citizens, or to promote the security of
the United States. Once limitations on port usage had been imposed,
it became unlawful for any foreign submarine or armed merchant vessel
to enter a port or territorial water of the United States. Only the
President could prescribe the conditions and circumstances which would
justify an exception to the rule.[428]
On October 18, 1939, President Roosevelt issued Proclamation No. 2371
declaring it unlawful for belligerent submarines, whether commercial or
ships of war, to enter the ports or territorial waters of the United
States except when forced into such ports by _force majeure_.[429] The
Panama Canal Zone was exempted from this order. Following enactment
of the November 4, 1939 amendment to the Neutrality Act,[430] a new
proclamation with identical provisions was promulgated in conformity
with the revised law.[431]
CHAPTER VII CONTROL OF COMMUNICATIONS
A contemporary “revisionist” school of historians devoted to a
reappraisal of accepted views of the cause and effect of American
participation in the Second World War, attributes significance to
the charge that the Roosevelt and Truman Administrations selected,
withheld, and released data to historians in a manner calculated to
distort the reasons for American involvement in that war.[432] Similar
charges of selective withholding or release of information, have, of
course, been levied against the Eisenhower Administration.
A daily reading of responsible newspapers quickly discloses abundant
examples of careful selectivity in the release of information by
government officials, can scarcely be denied. Indeed scholars,
journalists, and the American public are becoming increasingly
dependent upon the release of information by the federal government
for their interpretation of recent historical and current events.[433]
Whatever the import of this development, however, it is not within the
scope of this treatise. The present chapter is limited to a survey and
classification of statutory provisions relating to the withholding and
release of information by the government. It is accordingly appropriate
merely to acknowledge the possibility that intensive research
subsequently may disclose to what extent public opinion has been
prejudiced, distorted, or confused by the federal government’s policies
concerning the release of information.
THE RELEASE OF INFORMATION BY THE GOVERNMENT
Statutes concerning the release of information by government agencies
appear to have been drafted with a view to accomplishing the following
purposes: (a) the convenience of other federal agencies; (b) promotion
of program administration or enforcement; (c) to enable public opinion
to influence and restrict administrative action. Legislative provisions
aimed at disseminating information for the convenience of the public
are included with (b) and (c).
_The Convenience of Federal Agencies_: The Tennessee Valley Authority
Act of 1933 contains the only clearcut and noteworthy example of
the convenience type of provision thus far ascertained. Section 19
of that Act affords the Tennessee Valley Corporation access to the
Patent Office as an instrumentality and agency of the United States
Government. The Corporation is authorized to study, ascertain, and
copy all methods, formulate any scientific information necessary to
enable it to employ the most efficient and economical process for the
production of fixed nitrogen.[434]
_Publicity as an Instrument of Program Administration_: As an
instrument of program administration, publicity may be utilized to
influence or coerce conformity with a program of control, or to
facilitate the servicing of agency clientele. The use of publicity
as an integral part of a control program is exemplified by routine
publication of that which is prohibited, as well as by disclosure
designed to exact compliance with government policy by subjecting those
exposed to unfavorable publicity. Section 102 of the Defense Production
Act of 1950, for example, prohibits the accumulation of scarce
materials in excess of personal or business needs or for purposes
of speculation. The President was directed to publish either in the
_Federal Register_ or elsewhere, a list of materials the accumulation
of which would be unlawful.[435] Violators of this section of the
law would presumably suffer from publicity about unlawful hoarding,
if and when their activities became known to the federal government.
More explicit, but indicative of the same intent, was an Act of July
1940 permitting the President to publish a list of persons designated
as collaborators with the Axis powers. Any person so designated
was prohibited from receiving military equipment or munitions for
export.[436] In a proclamation of July 1941, President Roosevelt
authorized compilation and publication in the _Federal Register_ of
“The Proclaimed List of Certain Blocked Nationals” under the Act.[437]
In statutory provisions for registration of categories of persons,
or maintenance of lists of various kinds, it is difficult, if not
impossible, to discern the various purposes to be served by such
requirements. Thus, if the major objective of the Foreign Agents
Registration Act of June 1938 was to secure for the government current
information concerning persons representing foreign governments or
businesses, and to impose a penalty for failure to register as a
foreign agent, certainly a minor purpose was to insure that members of
the public also should have this information available to them. Section
4 of the Act required the Secretary of State to retain in permanent
form all statements filed under the Act, and to make them available
for public examination and inspection at all reasonable hours.[438]
One can hazard a guess as to what extent this publicity provision was
designed to intimidate so-called foreign agents.
For a precise illustration of an attempt to utilize public opinion as
a sanction, we need only look to the Labor-Management Relations Act of
1947, which, in specifying the procedures to be followed in settling
national emergency strikes, obviously contemplated the marshalling of
public opinion, at a strategic point, through publication of the second
report of the President’s board of inquiry, describing the current
position of the parties and the efforts made for settlement.[439] The
report is releasable after expiration of a sixty-day suspension of
the strike, as ordered by a Federal district court on petition of the
Attorney General.[440]
In the Armed Services Procurement Act of 1947, Congress announced its
intention that a fair proportion of the total purchases and contracts
for supplies and services for the government should be placed with
small business concerns, and provided with certain exceptions for
suitable advance publicity to achieve this end.[441]
In setting up the Small Business Administration in July 1953,
Congress directed it to provide technical and managerial aids to
small-business concerns, by advising and counselling on matters in
connection with government procurement and on policies, principles,
and practices of good management. Part of this responsibility would
be met by maintaining a clearing house for information concerning the
managing, financing, and operation of small business enterprises,
by disseminating such information, and by such other activities as
were deemed appropriate.[442] Designed to achieve a similar result is
the provision of the Federal Defense Act of 1950 enumerating among
the functions of the Federal Civil Defense Agency that of publicly
disseminating appropriate civil defense information.[443]
To protect private enterprise the Defense Housing and Community
Facilities and Services Act of 1951 requires that private enterprise
be afforded full opportunity to provide the defense housing needed
wherever possible and that, among other things, the number of permanent
dwelling units needed shall be publicly announced and printed in the
Federal Register.[444] The Domestic Minerals Program Extension Act of
1953 provides that the responsible agencies controlling such strategic
or critical minerals and metals purchase programs publish the amounts
of each of the ores and concentrates purchased at the end of each
calendar quarter under the program.[445]
_Publicity Designed to Enable Public Opinion to Influence and
Restrict Administrative Action_: Characteristic provisions in this
category range from the requirement of publicity prior to taking
action, sometimes with the explicit provision for outside approval or
disapproval of proposed agency action, to the simple publication of
action taken by the agency, and sometimes to an explanation thereof.
The Bank Conservation Act of 1933 stated that before returning to
private management a bank for which he had appointed a “conservator”
(receiver), the Comptroller of the Currency publicize his intentions
and obtain permission of the depositors and stockholders.[446]
A steadily increasing number of statutory provisions require an agency
to report in advance to Congress, the substance of contemplated agency
action, which action cannot be implemented unless approved by the
Congress.[447] One example will suffice as an illustration. The Alien
Registration Act of 1940 entrusted the Attorney General with a limited
power to suspend deportation of certain aliens upon his finding that
such deportation would result in serious economic detriment to a
citizen or legally resident alien who is the spouse, parent, or minor
child of the deportable alien.[448] Whenever deportation is suspended
for more than six months, however, the Attorney General must furnish
Congress the name of the person involved and all of the facts and
pertinent provisions of law in the case. The information sent to the
Congress is printed as a public document. If during the time Congress
is in session the two houses pass a concurrent resolution stating in
substance that the Congress does not favor the suspension of such
deportation, the Attorney General is obligated to deport the alien in
the manner provided by law.[449]
The Reciprocal Tariff Act of 1934 provides that prior to conclusion of
a foreign trade agreement reducing tariffs, reasonable public notice
of the intention to negotiate an agreement should be given in order
that any interested person might have an opportunity to communicate
his views to the President.[450] A similar provision in the Emergency
Price Control Act of 1942 required, so far as practicable, consultation
by the President with members of affected industries prior to
establishment of maximum prices, and publication of such regulations or
orders accompanied by a statement of the considerations involved in the
issuance thereof.[451]
The remaining statutes simply provide for publication of agency
action, although in a context which indicates that publication could
be viewed as a check upon the agency’s discretion. The Coordinator
of Transportation, an office created by the Emergency Railroad
Transportation Act of 1933, was required to make public in such
reasonable manner as he might determine orders which he issued under
the Act.[452] The orders were to become effective not less than twenty
days from the date of publication[453] and in the interim interested
parties might file petitions asking that the order be reviewed and
suspended pending review.[454] The Chairman of the War Production
Board, acting with the Attorney General, was given the power with
regard to the antitrust laws and the Federal Trade Commission Act to
temporarily suspend action against violators. The Attorney General was
required to order published in the _Federal Register_ every instance
of the exercise of this power.[455] The Japanese Evacuation Claims
Act of July 1948 provided that written records of hearings, open to
public inspection, be maintained.[456] In formulating new criteria
for identification of a critical defense housing area Congress,
in the Housing and Rent Act of 1953, required publication in the
_Federal Register_ of notices that before applying the new criteria,
a determination had been made to the effect that a specified area
constituted a critical defense housing area.[457]
SUPPRESSION OF INFORMATION BY GOVERNMENT
Statutory provisions falling within this category may be subdivided
into four groupings: (a) exceptions to statutory reporting requirement;
(b) suspension of the requirement that contracts be let only after
public bidding; (c) suppression of information concerning patent
applications of military significance; (d) maintenance of secrecy
of testimony under certain conditions at the request of the person
testifying.
_Exceptions to Statutory Reporting Requirements_: As chief recipient
of agency reports, Congress very obviously suffers the maximum loss
when it sanctions suppression of reporting requirements in the interest
of national security. Indicative of its sacrifice are provisions in
the Communications Act of 1934 authorizing the Federal Communications
Commission “to withhold publication of records or proceedings
containing secret information effecting the national defense.”[458]
Of like import is the requirement in a statute delegating to the
President power to authorize production, transfer or export of war
material by federal agencies. The Chief Executive had to notify
Congress at least every 90 days regarding war material exports. He
could withhold, however, whatever information disclosure of which
he deemed incompatible with the public interest.[459] In the month
following Pearl Harbor the Secretary of State was authorized during the
existence of a state of war to omit or dispense with reports required
by the Neutrality Act of 1939.[460] In extending the effect of certain
emergency statutes Congress, in the Mutual Security Act of 1951,
permitted the President to submit biannual reports on operations under
the Act. He was privileged to exclude from his report information, the
disclosure of which he deemed incompatible with the security of the
United States.[461]
To prevent information of value to the enemy from being disclosed
in litigation during World War II, Congress provided for staying of
judicial proceedings against the U.S. in time of war on claims for
damages caused by Navy vessels, or for towage or salvage services
to such vessels, when the Secretary of the Navy certified that the
prosecution of such proceedings would endanger the security of naval
operations or interfere therewith.[462] Upon receipt of certification
courts were required to stay all further proceedings in a suit until
six months after the cessation of hostilities or until an approved
earlier date as stated in the certificate. The claimant could petition
the Secretary of the Navy to reconsider the stay, but his petition was
not to contain any recital of the facts or circumstances involved.
Identification of a petitioner’s case was to be solely by reference to
the Secretary’s certificate.[463]
_Suspension of Financial Controls_: In a partially regulated
economy, advertising and competitive bidding on public contracts
benefit producer and taxpayer. These requirements insure relatively
equal access to public contracts by private entrepreneurs, minimize
nepotism or favoritism, and protect the public from extravagance. In
a controlled war economy advertising and public bidding very probably
would frustrate efforts to rationalize the productive facilities
of the nation, and certainly would present the enemy with valuable
intelligence. Indeed, intelligence considerations may lead to provision
for the secret letting of certain contracts, even in time of peace.
The chief of the supply service of the War Department was authorized
in 1936 to purchase materials for the Chemical Warfare Service or
the Signal Corps in whatever manner he deemed most economical.
This authority was delegated to the chief of the supply service in
order to prevent secret military information from being divulged to
the public.[464] A 1939 Act to authorize the procurement, without
advertising, of certain aircraft parts and instruments or aeronautical
accessories, contained a similar provision.[465] If a secret order was
necessary, the Secretary of War, after certification to that effect,
could submit the proposed purchase to three reputable concerns for
their respective bids.[466]
After the fall of France, an act of June 28, 1940 to expedite national
defense authorized the Secretary of the Navy, whenever deemed necessary
by the President during the existing emergency, to negotiate contracts
with or without advertising or competitive bidding upon determination
that the price was fair and reasonable.[467] A few days later a more
general statute gave the President plenary power to authorize the War
Department to purchase urgently needed military hardware during the
great national defense revival of 1940-41, with or without reference
to advertised bids.[468] As long as the President could justify
his actions as necessary “to provide for emergencies affecting the
national security and defense,” (and who, within the Congress or among
the public, had access to the information essential to challenge the
military necessity for given presidential action), he had virtually
a _carte blanche_ authority to write his own ticket. The great
atomic bomb project, involving the ultimate in secrecy, was carried
forward without the Congress being aware that the two billion dollars
subsequently appropriated for the Manhattan Project were being expended
for development of a weapon that might never work.[469]
Title II of the First War Powers Act, enacted shortly after Pearl
Harbor, permitted the President to “authorize any department or
agency of the Government exercising functions in connection with the
prosecution of the war effort, ... to enter into contracts and into
amendments or modifications of contracts ... without regard to the
provisions of law”.[470]
Appropriation measures, as for example the Independent Offices
Appropriation Act of 1948, included funds to be expended for objects
of a confidential nature and required auditing officials to accept the
certificate of the expending agency as to the amount of the expenditure
and that it was deemed inadvisable to specify the nature thereof.[471]
Similarly, the National Military Establishment Appropriation Act of
1950 stipulated that the determination of the propriety of expenditure
of the funds by the Secretaries of the military departments should be
final and conclusive upon the accounting officers of the government.
Payments from this appropriation might in the discretion of the
Secretary, be made on his certificate that the expenditures were
necessary for confidential military purposes.[472] The Central
Intelligence Agency Act of 1949 granted the Central Intelligence Agency
a sweeping exemption “from the provisions of any law which requires
the publication or disclosure of the organization, functions, names,
official titles, salaries, or numbers of personnel employed by it,” and
provided further that “the Director of the Bureau of the Budget shall
make no reports to the Congress in connection with the Agency.”[473]
_Suppression of Information Concerning Inventions of Military
Significance_: Here an abridgment of a private economic right which is
quasi-constitutional in character is justified on grounds of security.
The Government appears to be concerned not so much with gaining access
to inventions as with suppression of the publication, particularly
abroad, of inventions of military value.[474]
A Congressional Act of July 1, 1940 states in part: “Whenever the
publication or disclosure of an invention by the granting of a patent
might, in the opinion of the Commissioner of Patents, be detrimental to
the public safety or defense he may order that the invention be kept
secret and withhold the grant of a patent for such period or periods as
in his opinion the national interest requires.”[475]
Like provisions are contained in the Invention Secrecy Act of 1951.
When the head of a government agency holding a property interest in
an invention deems publication or disclosure by the grant of a patent
detrimental to the national security, the Secretary of Commerce, as
soon as notified, is required to order that the invention be kept
secret and withhold the patent therefore.[476] When the Secretary of
Commerce believes that publication or disclosure of an invention by the
granting of a patent, in which the government does not have a property
interest, might be detrimental to the national security, he must
make the application for patent in which such invention is disclosed
available for inspection to the Atomic Energy Commission, the Secretary
of Defense, and the chief officer of any other department or agency
of the government designated by the President as a defense agency of
the United States. He must also issue a secrecy order at the request
of any of the defense agencies. Moreover, if there is a proper showing
by the head of the department or agency who caused the secrecy order
to be issued that the examination of the application might jeopardize
the national interest, the Secretary of Commerce must maintain the
application in a sealed condition and notify the applicant accordingly.
_Secrecy of Testimony_: Two statutes examined contained provisions
requiring or approving the suppression of information at the request
of persons who had provided it to emergency agencies. In Section 202
thereof the Emergency Price Control Act of 1942 authorized the Price
Administrator to make investigations, subpoena witnesses, and compel
testimony upon the grant of immunity from prosecution. The same Act
also provided that the Administrator should not publish or disclose
any information obtained under the Act that the Administrator deemed
confidential or with reference to which a request for confidential
treatment had been made by the person furnishing such information,
unless he determined that the withholding thereof was contrary to the
interest of the national defense and security.[477] This, of course,
is the reverse of the usual requirement that information be made
public unless contrary to the interest of the national defense and
security. The Export Control Act of 1949 also contained a compulsory
testimony provision, with the requirement that, except as necessary
to the national interest, information given in such testimony be kept
confidential upon request of the witness.[478]
REGULATION OF PROPAGANDA ACTIVITIES
The Foreign Agents Registration Act of 1938, provided for public
disclosure by persons engaging in propaganda activities and other
activities for or on behalf of foreign governments, foreign political
parties, and other foreign principals so that the government and the
public could be informed of the identity of such persons and could
thereby appraise their statements and actions in the light of their
associations and activities.[479] By virtue of a 1942 amendment the
necessity for foreign agents to register with the Attorney General was
waived for agents of allied and friendly nations and thus propaganda
efforts encouraged.[480] These agents could escape the registration
requirement provided they engaged only in activities which were in
furtherance of the policies, public interest, and national defense,
of their own government and the American government, and were not
intended to conflict with any of the domestic or foreign policies of
the United States. However, the agent had to be convinced of the truth
and accuracy of each communication or expression which he made in this
country.
Under the same Act persons required to register as foreign agents
also had to furnish the Library of Congress with two copies of any
political propaganda intended for dissemination to two or more
persons. This material had to be transmitted within forty-eight
hours after dissemination had begun and it had to be accompanied
by a statement, duly signed by or on behalf of the agent, setting
forth full information as to the places, times, and extent of actual
transmittal.[481] In addition, the Act made it unlawful to disseminate
the matter unless the political propaganda was conspicuously marked
at its beginning with, or prefaced or accompanied by, a true and
accurate statement, in the language or languages used in the political
propaganda. The Act further required that the person transmitting
political propaganda be registered under the Act with the Department of
Justice “as an agent of a foreign principal, together with the name and
address of the agent and of each of his foreign principals.”[482]
The Internal Security Act of 1950 applied a similar requirement to
any organization registered as a Communist organization, or ordered
to register by the Subversive Activities Control Board.[483] Such an
organization is guilty of a crime if it transmits through the United
States mails or by any means or instrumentality of interstate or
foreign commerce, any publication which is intended to be, or which
it is reasonably believed will be, circulated or disseminated among
at least two or more persons, unless the container in which the
publication is mailed contains this statement: “Disseminated by ----, a
Communist organization.” Programs sponsored by Communist organizations
on radio or television, in order to comply with the Internal Security
Act, must be preceded by the statement, “the following program is
sponsored by ----, a Communist organization.”
CENSORSHIP AND OTHER RESTRICTIONS
Thus far we have surveyed the discretionary power granted government
agencies, consistently with national defense to withhold information
from the public, the courts or the legislature, and those powers
accorded the executive branch to regulate or conditionally promote
propaganda activities of foreign nations. The following section
pertaining to censorship and other restrictions may be differentiated
from the foregoing as follows. Whereas the first section dealt with
government agencies as custodians of information, here we are concerned
with limitations imposed upon the efforts of individuals and groups to
secure information or to disseminate specified kinds of information
which they may possess.
The relevant statutes are reviewed under three headings. Certain
statutes prohibit the acquisition or attempted acquisition of specified
types of defense data. Others prohibit the dissemination of specified
kinds of information, or the communication of prescribed opinions. A
third group of statutes reflect the disposition of Congress to empower
the government to review and edit personal communications media.
_Illegal Acquisition of Defense Information_: In January 1938 the
President was authorized to define certain vital military and naval
installations or equipment requiring protection against the general
dissemination of information about them. It became unlawful thereafter
to make any photograph, sketch, picture, drawing, map, or graphical
representation of these vital military and naval installations or
equipment without first obtaining the permission of the commanding
officer of the installation concerned. If permission were granted to
anyone seeking information, it was necessary to submit to censorship
whatever information had been obtained.[484]
_Dissemination of Information and Proscribed Opinions_: The same 1938
statute also made it illegal to reproduce, publish, sell, or give
away data without first obtaining official permission.[485] The Alien
Registration Act of 1940 proscribed the advocacy of certain opinions.
It is unlawful for any person, with intent to interfere with, impair,
or influence the loyalty, morale, or discipline of the military or
naval forces of the United States by seeking to advise, counsel, urge,
or in any manner cause insubordination, disloyalty, mutiny, or refusal
of duty by any member of the military or naval forces of the United
States. And it is unlawful for any person to distribute any written
or printed matter which advises, counsels, or urges insubordination,
disloyalty or mutiny.[486] This Act also makes it unlawful to knowingly
or willfully seek the overthrow of any government in the United States
by direct or indirect action. Equally proscribed is any effort which
has as its goal the assassination of any governmental official.[487]
Conspiracy to commit any of the acts enumerated in the statute is also
unlawful.[488]
The Export Control Act of 1949 gave the President power to prohibit
or curtail the export of technical data.[489] Also pertinent is the
stipulation in an August 1953 statute permitting the government to lend
certain vessels to Italy, which prohibited the transmission to Italy of
information, plans, advise, material, documents, blueprints, or other
papers bearing a secret or top secret classification.[490]
In 1951 legislation was enacted prohibiting disclosure of classified
information. It is unlawful knowingly and willingly to communicate,
furnish or transmit to an unauthorized person the following categories
of classified information: (1) codes, cipher or the cryptographic
system of the United States or any foreign government; (2) the
design, construction, use, maintenance, or repair of any device,
apparatus, or appliance used or prepared or planned for use by the
United States or any government for cryptographic or communication
intelligence purposes; (3) the communication intelligence activities
of the United States or any foreign government; or (4) obtained by
the processes of communication intelligence from the communications
of any foreign government knowing the same to have been obtained
by such processes.[491] Violators of this law can be fined up to
$10,000, be imprisoned for ten years, or suffer the imposition of both
penalties.[492]
The Communist Organization Registration Act of July 1954 requires
organizations found by the Subversive Activities Control Board to
be Communist-action or Communist-front organizations to provide the
Attorney General a listing of all printing presses and machines.[493]
The list of different kinds of presses is very extensive.[494]
_Censorship of Communications Media_: The War Powers Act of December
1941 specifically empowered the President to establish censorship of
communications between the United States and foreign countries. During
the existence of the war, the President, at his discretion, established
rules and regulations for the censorship of communications by mail,
cable, radio, or other means of transmission passing between the United
States and any foreign country. The authority to prescribe the rule by
which censorship would be applied, extended to communications carried
by any vessel or other means of transportation touching at any port,
place, or territory of the United States and bound to or from any
foreign country.[495]
A month later the Communications Act of 1934 was amended to enable
the President during time of war or threat of war to regulate or
close any or all facilities or stations for wire communication within
the jurisdiction of the United States.[496] Nearly ten years later
this power was extended to any or all stations or devices capable of
emitting electromagnetic radiations within the jurisdiction of the
United States.[497] The power to close stations for radio communication
within the jurisdiction of the United States included those suitable as
navigational aids beyond five miles of the United States.[498]
ACQUISITION OF INFORMATION BY THE GOVERNMENT
Examined herein are statutes requiring private persons or groups to
report their activities to government agencies, or compelling them to
testify before such agencies; and providing for the conduct or study of
experiments by government agencies, including congressional committees,
for the purpose of obtaining certain information. Other measures
provide for a variety of investigations, inventories, audits, etc., to
be conducted by government agencies and congressional committees, and
intelligence.
_Compulsory Reporting_:[499] Compulsory reporting on an occasional
or periodic basis, it is generally assumed, constitutes an effective
enforcement device. Thus to aid the President in effectively exercising
the powers granted therein, the Bank Conservation Act of 1933[500]
provided that he might require specific, detailed, and confidential
information to be given under oath by any person then engaged in the
banking business. The President could require the production of private
papers, letters, contracts, books of account or other papers in the
custody of the person required to produce them. Not until a very
detailed and thorough examination of the information sought had been
completed, could an accurate report be prepared in compliance with the
Act.[501] The National Industrial Recovery Act permitted the President
to impose such conditions (including requirements for the making of
reports, the keeping of records and the keeping of accounts) for the
protection of consumers, competitors, employees, and others, and in
furtherance of the public interest as he saw fit, as a condition of
approval of codes of fair competition.[502] Another section of the Act
required trade or industrial associations, if they were to receive the
benefit of exemption from antitrust prosecution, to file a statement
with the President in accordance with regulations promulgated by the
Chief Executive.[503] The Securities Exchange Act of 1934 similarly
required periodical reporting[504] as did the 1935 enactment directed
at preventing the interstate shipment of contraband oil.[505]
The first Neutrality Act imposed upon all persons required to register
with the National Munitions Control Board an obligation to maintain
permanent records of all arms, ammunition and implements of war
manufactured for importation and exportation under the rules prescribed
by the Board.[506] The requirement was continued in the 1937 Amendment
which designated the Secretary of State (Chairman of the N.M.C.B.
under the old and the amended Act) as recipient of the information to
be submitted.[507] The Foreign Agents Registration Act of 1938 (as
amended in April 1942) not only required the filing of registration
statements by agents of foreign powers, but compelled each registered
agent to keep and preserve books of account and other records which he
was required to disclose under regulations prescribed by the Attorney
General.[508]
As to procurement statutes, Congress, in connection with a 1934
enactment directed against excessive profit-making or collusive
bidding in connection with naval construction contracts, required
contractors to agree, as a condition of receiving a navy contract, to
submit reports which would show conformance or non-conformance with the
provisions of the Act.[509] The Second War Powers Act of 1942 followed
up the grant of power to exact priorities with a section entitling the
President to obtain a wide variety of information from any persons
holding defense contracts. Contractors were required to keep accurate
records in readiness for whatever accounting the President might
eventually request.[510]
_Authorization for the Conduct or Study of Experiments_: The Tennessee
Valley Authority Act authorized the T.V.A. to establish the physical
plants necessary to undertake experiments for the production of
nitrogen products for military and agricultural uses. Such experiments
were to emphasize both economy and high standards of efficiency.[511]
A 1938 statute authorizing the construction of naval vessels included
provision for the construction of experimental vessels and the
construction of a rigid airship of American design and American
construction.[512] Implementing the latter, appropriations were
authorized for the purpose of rotary-wing and other aircraft research,
development, procurement, experimentation, and operation for service
testing.[513]
The National Science Foundation was established in 1950 as an
independent agency, but within the executive branch of government.[514]
Functions of this Foundation include promotion of basic research and
education in the sciences, initiation and support of basic scientific
research, initiation and support at the request of the Secretary of
Defense of specific scientific research activities in connection with
matters relating to the national defense, evaluation of scientific
research programs undertaken by agencies of the federal government, and
correlation of the Foundation’s work with that of private and public
research groups or individuals.[515] The functions enumerated do not
exhaust the total of those assigned to the above mentioned agency.
In 1952 Congress authorized construction of aeronautical research
facilities by the National Advisory Committee for Aeronautics.
These facilities were to be used for the effective prosecution of
aeronautical research. The Committee could expand certain of its
experimental facilities especially since one of the purposes of the
Act was to promote the national defense.[516] A similar kind of
statute enacted in 1953 created an Advisory Committee on Weather
Control. The function of this Committee was to make a complete study
and evaluation of public and private experiments in weather control
for the purpose of determining the extent to which the United States
should experiment with, or engage in, or regulate activities designed
to control weather conditions.[517] It was to correlate and evaluate
the information derived from experimental activity and to cooperate
with the several States in encouraging the intelligent experimentation
and the beneficial development of weather modification and control.
In carrying out these objectives, the Committee was also required to
keep a “weather eye” on seeing to it that harmful and indiscriminate
techniques for weather control were not fostered.[518]
GOVERNMENT INVESTIGATIONS, INVENTORIES, AUDITS
Statutory provisions in this category are classifiable as follows:
investigations, inventories, audits, etc., (a) incidental to program
development or enforcement; (b) precedent to the establishment of
policy in certain fields; (c) designed to aid specified agency
clientele (private groups); (d) accusatory in nature; (e) military
intelligence.
_Investigations Incidental to Program Development or Enforcement_: The
Economy Act passed in the first month of the Roosevelt administration
effected reductions in government pensions and salaries with a view to
reducing the cost of Federal operations. Salary reductions were to vary
with fluctuations in a cost of living index to be ascertained through
investigation by government agencies.[519] The Agricultural Adjustment
Act of 1933, in setting up an emergency program for the rehabilitation
of growers of certain commodities directed the Secretary of Agriculture
to make investigations and such reports to the President concerning
the program as appeared necessary to its execution. In conjunction
with the National Industrial Recovery Act of June 1933 was a 1934
amendment which authorized the President to establish a board or boards
to investigate issues, facts, practices, or activities of employers
or employees in any controversies arising under section 7 (a) of the
statute which were burdening, obstructing, or threatening to burden or
obstruct, the free flow of interstate commerce.[520]
The Second War Powers Act required the Secretary of Commerce, under
Presidential direction, to make such special investigations and reports
of census or statistical matters as might be needed in connection
with conduct of the war. The Act imposed a penalty against anyone who
refused to answer questions, gave false statements or deliberately
neglected to answer questions asked by Departmental subordinates in
the conduct of investigations.[521] It also accorded the government
the right to inspect the plants and audit the books of defense
contractors.[522]
Before presenting to a court a certificate requesting a stay
of judicial proceedings on claims for damages caused by naval
vessels during the War, the Secretary of the Navy had to conduct
an investigation of the case in order to satisfy himself that the
issuance of the certificate was necessary.[523] A principal purpose
of the Employment Act of 1946 was the establishment of an agency
to investigate and report upon the current state of the national
economy.[524] The Housing and Rent Act of 1948 specified that the
Housing Expediter should make surveys from time to time with a view
to decontrolling housing accommodations at the earliest practicable
date.[525] The Federal Civil Defense Administrator is charged by
the statute creating the Federal Civil Defense Administration with
responsibility to prepare national plans and programs, and to request
reports on state plans directed at fulfillment of the objectives of the
Act.[526]
_Policy Development_: A number of statutes contain provisions
designed to satisfy congressional need for information as an aid in
policy-making. A joint resolution of April 1934 directed the Federal
Power Commission to investigate the rates charged by private and
municipal corporations, prepare a compilation of the respective rate
structures and submit the information requested to the Congress as
quickly as possible. In making its compilation, the Commission was
requested to submit any analysis it had made of the difference in rates
charged between the privately owned and publicly owned utilities.[527]
The Commission might require reports and testimony from private power
officials and was given the right to examine and copy any documentary
evidence relative to the sale of electrical energy or its service to
consumers by any corporation engaged in the sale of electricity.[528]
Collecting accurate and comprehensive information regarding the rates
charged for electrical energy and its service to residential, rural,
commercial and industrial consumers throughout the United States[529]
was directed toward satisfying needs of both the agency and the
Congress.
Again in 1934, Congress established a Commission to make an immediate
study and survey of aviation and its relation to the United States
and to report to Congress its recommendations of a broad policy
covering all phases of aviation and its significance to the
United States.[530] The Railroad Retirement Board was directed to
make specific recommendations for such changes in the retirement
system created by the Railroad Retirement Act of 1934 as would
assure the adequacy and permanency of the retirement system on the
basis of its experience and all information and experience then
available. For this purpose the Board was directed from time to
time to make investigations and actuarial studies necessary to
provide the fullest information practicable for the Board’s report
and recommendation.[531] In the third year of World War II a Joint
Committee on Organization of Congress was established. The Joint
Committee was given the responsibility of preparing a full and complete
study of the organization and operation of the Congress together with
recommendations for improvement in its organization and operation.
Congress sought from the study and report the means for strengthening
the Legislative branch of the government by simplifying its operation,
improving relations between the Congress and other branches of
government, and enabling it to better meet its responsibilities under
the Constitution.[532] While some of the more archaic rules under
which the Congress operated, indeed to some extent still does operate,
were long overdue for a complete overhaul, the more immediate stimulus
to action arose from a candid and searching appraisal of Congress’
inability to stem the rising tide of government by the executive. The
demands of emergency government of all kinds even before the Japanese
attack on Pearl Harbor, tended to reduce the role of the Congress to
that of mere ratification of executive action, the latter usually taken
without regard to possible Congressional objections. Reorganization of
the Congress resulting from the Joint Committee study and report was in
response to a growing awareness of the need to improve the functioning
of Congress as an organ for control of a wartime executive.
An important recent statute within this category is the Civil Rights
Act of 1957.[533] This Act created a Commission on Civil Rights,
empowered only to investigate, to study, to appraise and make findings
and recommendations. It was not to be a Commission for the enforcement
of civil rights. Specifically, the Civil Rights Act of 1957 directed
the Commission to:
“(1) investigate allegations in writing under oath or affirmation
that certain citizens of the United States are being deprived of
their right to vote and have that vote counted by reason of their
color, race, religion, or national origin, which writing, under oath
or affirmation, shall set forth the facts upon which such belief or
beliefs are based;
“(2) study and collect information concerning legal developments
constituting a denial of equal protection of the laws under the
Constitution; and
“(3) appraise the laws and policies of the Federal Government with
respect to equal protection of the laws under the Constitution.”[534]
The Commission was instructed to submit to the President and
Congress a comprehensive report of its activities, findings, and
recommendations not later than two years from the enactment of the Act.
The Commission’s report was submitted to the Congress on September 9,
1959,[535] just in time to win the Commission a two year lease on life.
Many of the statutes in this category are directed at securing
information on which to base natural resources or scarce materials
policy. In 1947 the President was requested to prepare, through the
appropriate departments of the Government, a comprehensive plan for
the development of the resources of Alaska, and the expansion and
development of the facilities of commerce between the United States and
Alaska and within the Territory. The President was requested to have
the report ready for the consideration of the second session of the
Seventy-fifth Congress thirty-five days after Congress reconvened.[536]
A strategic materials stockpiling statute of 1939 directed the
Secretary of the Interior through the Director of the Bureau of
Mines and the Director of the Geological Survey to make scientific,
technological, and economic investigations concerning the extent
and mode of occurrence, the development, mining, of ores and other
mineral substances found in the United States which were considered
essential to the common defense or the industrial needs of the United
States.[537] Preparatory to enacting definitive post-war legislation
establishing United States policy with regard to the domestic
rubber-producing industry, Congress in 1947 provided for the conduct
of a thorough study of the field.[538] Under the Rubber Producing
Facilities Disposal Act of 1953 the Rubber Producing Facilities
Disposal Commission was created and granted access to all available
information concerning the Government-owned rubber-producing facilities
in the possession of any department, agency, officer, Government
corporation, or instrumentality of the United States concerned with
Government-owned rubber-producing facilities.[539] Included in the
data it was required to furnish the Congress was an inventory report
concerning the Government’s current stocks of synthetic rubber and its
component materials.[540]
Endeavoring to expand production of abaca within the Western
Hemisphere, Congress in 1950 authorized such surveys and research as
were necessary or desirable to obtain the best available land in the
Western Hemisphere for abaca production.[541]
_Information-Gathering For the Aid of Agency Clientele_: In 1938
Congress set up the Mediterranean Fruit Fly Board to conduct a complete
investigation and survey of all losses sustained by growers and farmers
in the State of Florida resulting from the campaign to eradicate the
Mediterranean fruit fly within the State.[542] It carefully stipulated
that the Board’s report did not bind Congress legally or morally to
grant relief to the affected farmers.[543]
Like the farmer, the small businessman receives his full share of
congressional consideration. For the sake of the nation and the small
businessman, the Small Business Concerns Mobilization Act of June
1942 sought to integrate him into the war effort.[544] It created the
Smaller War Plants Corporation and included among its functions that
of making studies with respect to the means by which small business
concerns may be supplied with essential raw materials and receive
fair and reasonable treatment from all Government departments without
interfering with the efficiency of the war-production program.[545]
In liquidating the Reconstruction Finance Corporation in July 1953,
Congress substituted for it the Small Business Administration,
which, among other things, was to obtain information as to methods
and practices which Government prime contractors utilize in letting
subcontracts and to take action to encourage the letting of
subcontracts by prime contractors to small-business concerns.[546] It
was also to make a complete inventory of all productive facilities
of small-business concerns which could be used for war or defense
production, or to arrange for the inventory to be made by any other
governmental agency which has the facilities.[547] Further, it could
obtain from suppliers of materials information pertaining to the method
of filling orders and the bases for allocating their supply, whenever
it appeared that any small business is unable to obtain materials
from its normal sources for war or defense production. And it was
directed to make studies and recommendations to the appropriate federal
agencies to insure a fair and equitable share of materials, supplies,
and equipment to small-business concerns in order to effectuate war or
defense programs.[548] On the other hand, as a condition to securing
loans from the Administration, small business concerns must certify
to it the names of any attorneys, agents, or other persons engaged by
or on behalf of such business enterprise for the purpose of expediting
applications made to the Administration for assistance of any sort, and
the fees paid or to be paid to any such persons.[549]
_Accusatory Action_: The two items of legislation involved here--one
a joint resolution, the other a concurrent resolution--extended the
statute of limitations as it affected “the possible prosecution of
any person or persons, military or civilian, connected with the Pearl
Harbor catastrophe of December 7, 1941”[550] and created a joint
congressional committee to make a full and complete investigation of
the facts relating to the events and circumstances leading up to or
following the attack made by Japanese armed forces upon Pearl Harbor on
December 7, 1941.[551]
_Intelligence_: The obvious example here is the statute setting up the
Central Intelligence Agency in 1947. Its Director was intrusted with
responsibility for protecting intelligence sources and methods from
unauthorized disclosure and for operating an American intelligence
network.[552]
PROTECTING FREEDOM OF COMMUNICATION
It would be distorting the picture not to take into account those
instances in which Congress displayed concern lest the control programs
it enacted would constrict freedom of communication. Thus while the
Price administrator had the power to require licenses of anybody
selling commodities regulated by his office, his power did not extend
to various media of communication. The selling or distributing of
newspapers, periodicals, books or printed or written material, motion
pictures or radio time were exempted from the license requirement.[553]
The Universal Military Training and Service Act of 1951 permits any
member of the Armed Forces to communicate directly or indirectly with
any Member of Congress. The statute expressly forbids any one from
restricting or preventing a serviceman from writing to his Congressman
or Senator. The only limitation placed on such communication is
that the subject matter does not violate the law or the regulations
necessary to the security and safety of the United States.[554]
CHAPTER VIII LEGISLATIVE RESTRAINTS ON THE ADMINISTRATION OF EMERGENCY
POWERS
It is generally conceded that the problem of the responsibility of
administrative officials in a democracy is the very crux of the problem
of the maintenance of the democratic system,[555] and that we must
look chiefly to the Congress for performance of the task of happily
combining administrative responsibility with the administrative
discretion so vital to the maintenance of the democratic government in
time of peace or war. Members and critics of the federal legislature,
particularly since the 77th or first wartime Congress (1941-1942), have
acknowledged and responded to the need to equip it more effectively
to formulate basic policy as well as to scrutinize administrative
execution of the legislative mandate.[556] As appraised by these
critics the problem is one of adequately and accurately informing the
Congress,[557] of concentrating congressional checks upon essentials
rather than trivia,[558] and, in contradiction of those who seek an
unchecked executive discretion in time of emergency, of “including
closer, stronger, steadier cooperation between the President and the
Congress.”[559]
Among recent innovations which may be viewed as the product of this
movement to perfect administrative accountability to Congress are the
requirements of executive reporting to the Legislative Branch and the
“legislative veto.” Whether statutes embodying these devices provide
Congress with a check on the Executive Branch in excess of that deemed
essential, and in effect, accord to the Legislative Branch an actual
participation in the administration of the laws is the major issue to
which this chapter is devoted.
ACCOUNTING TO COMMITTEES
In the course of signing H. R. 6042, a defense appropriations bill,
on July 15, 1955, President Eisenhower rebuked Congress for including
therein Section 638 requiring the Secretary of Defense to secure prior
consent of the House and Senate Appropriations Committees before
separating from his Department functions which he thinks could
better be performed by private industry. The President alleged that
the Congress has no right to confer upon its committees the power to
veto Executive action or to prevent Executive action from becoming
effective. Invoking the constitutional principle of the separation of
powers, he declared his intention to ignore this provision.[560]
While the bill which President Eisenhower reluctantly signed
represented an effort to delegate a share in the executive function
to committees of the Congress, such legislative action is not wholly
without precedent. A survey of legislation in the fields of foreign
affairs and economic or military emergency since 1933 indicates not
infrequent attempts by Congress to secure for its committees some
measure of continuing influence over the exercise of powers delegated
to the executive. This may take the form of requiring periodic or
special reports to policy committees instead of the full houses, it may
take the form of compulsory consultation with committees--and whatever
this entails by way of consequent committee influence on administrative
action, or the committee may be secured a suspensive, enabling, or veto
power over administrative action. It would be rash to construct, on the
basis of our study, a judgment of the potential good or evil attending
the increasing effort of Congress to share the detailed burdens of
administration. The trend, it seems clear, exists, however.
_Reporting to Committees_: The requirement that administrative units
report to superiors, to Congress, or to units of the latter, may be
designed to achieve many purposes. The requirement may be devoid of any
overtone of control--e.g., its aim may be limited solely to providing
of technical information or advice as an aid to policy formulation, or
it may be utilized to promote maximum scrutiny and control of executive
action. For when one must report in detail and frequently on the
discharge of delegated functions, it is necessary either to attempt to
mislead the Congress--a dangerous pastime--or to toe the line and act
as a meticulous surrogate of the legislature, in anticipation of an
imminent accounting with it.
Thus it would be difficult to distinguish the informative and
control purposes of the provision of the Supplemental National
Defense Appropriations Act of 1948 requiring that the Secretary of
Defense report quarterly “to the Committees on Appropriations and
Armed Services of the Congress ... the amounts obligated” for “the
construction of aircraft and equipment.”
The Secretary’s reports were to include a statement of finding by
the President that the contracts let were necessary in the interest
of the national defense and that the contract specifications insured
the maximum utilization of improvements in aircraft and equipment
consistent with the defense needs of the United States.[561] The Mutual
Defense Assistance Act of 1949 permitted the President, upon his own
determination of the need therefore, to transfer funds from one project
to another provided for in the Act. The amounts transferred could not
exceed five percent of the total funds appropriated.[562] Whenever
he made such a determination, however, he was required forthwith to
notify the Committee on Foreign Relations of the Senate, the Committees
on Armed Services of the Senate and of the House of Representatives,
and the Committee on Foreign Affairs own determination of the need
therefore, to transfer funds from one to report to the Congress
biannually on the administration of the Act.[563] The Mutual Security
Act of 1951 contained a similar provision.[564]
Similar to the above is the 1950 requirement that the Secretary of
the Navy annually file with the Committees on Armed Services in the
Congress information as to the proceeds of all sales of condemned
naval material and the expenses connected with such sales.[565] The
1950 statute permitting the summary suspension of civilian officers
and employees of specified departments and agencies (State, Commerce,
Justice, Defense, Treasury, Atomic Energy Commission, National Security
Resources Board, National Advisory Committee for Aeronautics) gave the
President authority to extend the list of agencies to which the Act
applied. Any additions to the list, however, had to be based upon the
best interests of national security and communicated to the Committees
on the Armed Services of the Congress.[566]
In the Mutual Defense Assistance Act of 1951, which established an
embargo on the shipment of arms, ammunition, and implements of war
to any nation or combination of nations threatening the security of
the United States, Congress gave the Administration the power to
determine what items constituted arms, ammunition, and implements of
war and items should be embargoed.[567] Aid to any nation knowingly
permitting shipment of such materials or equipment to the U.S.S.R. and
its satellites was to be suspended, unless the President found that
unusual circumstances indicated that the cessation of aid would clearly
be detrimental to the security of the United States. Upon making such
a decision, the President was to report his decision and the reasons
for it to the Appropriations and Armed Services Committees of the
Senate and House of Representatives, the Committee on Foreign Relations
of the Senate, and the Committee on Foreign Affairs of the House of
Representatives. Moreover, the President was required to review, at
least once each quarter, all determinations made previously and report
his conclusions to the foregoing committees.[568]
A postwar statute of limited dimensions was enacted in August 1953,
enabling the President to lend to Italy, France, and any friendly
foreign nation in the Far Eastern area, on terms satisfactory to him,
naval vessels of stated categories.[569] This legislation charged the
Secretary of Defense with the duty to keep the respective Committees
on Armed Service of the Senate and the House of Representatives
advised of all transfers or other dispositions of naval vessels.[570]
The Defense Cataloguing and Standardization Act of 1952 established
within the Department of Defense a Defense Supply Management Agency
which was to develop a single catalogue system and related supply
standardization program.[571] The Director of the Agency was required
to transmit to the Committees on Armed Services of the Senate and
House of Representatives on January 31 and July 31 of each year,
progress reports on the cataloguing and standardization programs.[572]
Similarly, in authorizing the Secretaries of the Army, Navy, and Air
Force to acquire or develop industrial plants as needed for defense
mobilization Congress required the Secretary of Defense to report
semi-annually to the Committees on Armed Services of the Senate and
of the House of Representatives with respect to those activities
authorized by statute which were not otherwise the subject of reporting
under law.[573]
The foregoing can perhaps best be characterized as legislative
adaptations of Carl J. Friedrich’s so-called “rule of anticipated
reaction.”[574] In context the rule implies that administrative
officers, aware of the imminent necessity of reporting to the
legislature the details of exercise of discretion under delegatory
statutes, will attempt so to pattern their action as to maximize the
likelihood of legislative approval.
_Consultation with Committees_: Legislative restraint is less
obvious--though nonetheless present--in statutes which, instead
of requiring detailed reporting of administrative discharge of
delegated functions, provide for periodic or continuous administrative
consultation with congressional committees. The Economic Co-operation
Act of 1948 created a Joint Committee on Foreign Economic Co-operation,
consisting of ten members from the Foreign Relations and Appropriations
Committees of the Senate, and the Foreign Affairs and Appropriations
Committees of the House. The Economic Cooperation Administrator was
to consult with the committee from time to time as the Committee might
request.[575] In 1950 the Secretary of Defense was empowered after
consultation with the respective Armed Services Committees of the
Congress to provide the facilities necessary or the administration
and training of the Reserve components of the Armed Forces.[576] The
Defense Production Act of 1950 established a Joint Committee of Defense
Production to make a continuous study of the programs authorized by
the Act, and to review the progress achieved in the execution and
administration of such programs. It required all agencies and officials
administering programs authorized by the Act, at the request of the
committee, to consult with the committee, from time to time, with
respect to their activities under this Act.[577] A Joint Committee on
Immigration and Nationality Policy was created to make a continuous
study of the administration of the Immigration and Nationality Act of
1952.[578] The Act instructed the Attorney General and the Secretary
of State to submit to the Committee all regulations, instructions, and
all other information as requested by the Committee relative to the
administration of the Act. The Secretary of State and the Attorney
General were required to consult with the Committee from time to time
with respect to their activities under this Act.[579]
_Committee Participation in Administrative Decision-Making_: The
history of recent use of the “legislative veto” might lead one to
expect that, in those instance in which it seeks to retain a power
of continuous oversight of administration action, Congress would
be prone to locate this function in either or both houses rather
than to delegate it to committees. However, the fiscal 1956 Defense
Appropriations Act, earlier mentioned, is by no means the first
instance in which committees have been assigned the function of
participating in administrative decision-making. In fact, careful
study of the functioning of Congressional Committees might reveal that
compulsory consultation and joint committee-agency decision-making are
more the rule than the exception.[580]
Certainly Congress, in requiring the Atomic Energy Commission to
report to the Joint Committee on Atomic Energy any instances in which
it imparted atomic secrets to other nations, contemplated committee
control of such action. Arrangements with other nations were not to be
consummated until the Joint Committee on Atomic Energy had been fully
informed for a period of thirty days in which the Congress was in
session.[581] If the Committee disapproved the arrangement and found
the Commission unresponsive to its influence, the former would have
time in which to report this fact to Congress.
When it authorized the establishment of a long-range proving ground
for guided missiles in 1949, Congress stipulated that prior to the
acquiring of lands under this law the Secretary of the Air Force had to
come “into agreement with the Armed Services Committees of the Senate
and the House of Representatives with respect to the acquisition of
such lands.”[582] This clearly established a joint committee-agency
decision-making arrangement. A 1951 statute required the Secretaries
of the Army, Air Force, and Navy, and the Federal Civil Defense
Administrator, to come into agreement with the two Armed Services
Committees whenever real estate actions by or for the use of the
military departments or the Federal Civil Defense Administration were
involved.[583] The Emergency Powers Interim Continuation Act of July
1952, continued this provision in force.[584]
In conclusion we mention a device for securing to congressional
committees a form of suspensive power over administrative action. This
is the familiar provision for suspension of deportation orders where
either the Immigration and Naturalization Committee of the House or of
the Senate Committee on Immigration has favorably acted on a bill for
the relief of the alien in question. The Act cited here was restricted
in effect to the Seventy-fifth Congress, and stays of deportation under
it were to be terminated at least by the date of adjournment of the
first regular session of the Seventy-sixth Congress.[585]
ACCOUNTING TO CONGRESS
The preponderance of relevant data collected under this particular head
consists of routine requirements, inserted in delegatory statutes, that
administrators periodically report to the Congress on the discharge
of their functions. It need hardly be stressed that by this method of
acquiring information Congress not only equips itself with data vitally
prerequisite to its exercise of the function of oversight, but that its
demand for such information in itself represents a form of control. The
necessity of periodic reporting interposes an effective psychological
hurdle between the administrator and intentional malfeasance. Certain
reporting provisions clearly reflect a desire to maintain a continuous
check upon the administration; others appear directed more at securing
information and advice as an aid to policy-making.
_Reporting Administrative Activity_: In delegating powers in the areas
of defense, foreign affairs or in time of emergency, Congress is
inclined to insist upon frequent reporting, and to specify carefully
the kind of information and supporting documentation it expects to
receive. It may stipulate, as in the Japanese Evacuation Claims Act
of 1948 and the Mutual Defense Assistance Act of 1949, the subjects
on which it wishes reports, and refrain from imposing an obligation
to report at specified calendar intervals. The Japanese Claims Act
instructed the Attorney General to submit to Congress a full and
complete statement of all adjudications, name and address of each
claimant, the amount of the settlement and a brief synopsis of the
facts of each claim case and the reasons for each adjudication.[586] A
1935 statute required that the Secretary of the Navy report to Congress
at the next regular session thereof all expenditures on ship repairs
in excess of the amounts specified by appropriations legislation.[587]
In April, 1937 the Secretary of Agriculture was granted one million
dollars to “be expended for the control of grasshoppers, Mormon
crickets or cinch bugs,” and required to report to Congress on his
handling of the fund.[588] Similarly, in establishing an emergency fund
for the President in 1940, to enable him to furnish government-owned
facilities to privately owned plants and procure and train civilian
personnel in the production of critical materials, Congress stipulated
that an account be kept of all expenditures made from the fund and
required that a report on the condition of the fund be submitted to the
Congress on or before June 30, 1942.[589]
The Federal Emergency Relief Act of 1933 went so far as to require
the Federal Emergency Relief Administrator to print a report of his
activities and expenditures monthly, and submit them to the President
and the Congress.[590] The foregoing, like the statute of June
1942, mobilizing small business concerns for war production, which
provided for reports to Congress by the Attorney General at least once
every quarter (“not less frequently than once every one hundred and
twenty days”[591]) is somewhat unusual. Standard practice requires
quarterly,[592] biannual,[593] or annual reporting. Annual reporting
may be in terms of a report to be submitted to both houses of Congress
“on the first day of”[594] or “at the beginning of”[595] each regular
session of Congress. However, it more likely will be phrased an “annual
report.”[596]
Congress sometimes requires great specificity in administrative
reporting. Exemplifying such demands are the following statutes. A
1950 statute limited the number of Army officers who might be assigned
to permanent duty in the Department of the Army and the number who
could be assigned to the Army General Staff at any one time. The
Secretary of the Army is required to report quarterly to the Congress
the number of officers and the justification therefor.[597] This is
a simple but extremely precise reporting requirement. The May, 1937
amendment to the Neutrality Act more generally defined and described
the various topics to be covered in the annual report of the National
Munitions Control Board, but stipulated that the report contain a list
of all persons required to register under the provisions of the Act,
and full information concerning the licenses which had been issued
thereunder.[598] A like blend of liberality and rigidity in stipulating
the content of reports was manifested in a 1937 Act designed to
establish a government monopoly of the production of helium gas.[599]
The National Munitions Control Board was to include in its Annual
Report to the Congress full information concerning the export licenses
issued thereunder and whatever additional information and data the
Board considered of value in the determination of questions related to
the exportation of helium gas.[600]
The Secretary of the Navy was directed in 1938 to report annually to
the Congress all agreements entered into for leasing naval petroleum
reserves;[601] and a 1939 statute to facilitate certain construction
work for the Army required the Secretary of War to report annually to
the Congress all contracts entered into under authority of the Act,
including the names of the contractors and copies of the contracts
concerned, together with the amounts involved.[602] The Sixth
Supplemental National Defense Appropriation Act of 1942 established
the duty of the Secretary of War and Secretary of the Navy to submit
a complete list of all contracts awarded in excess of $150,000
together with the names of the contractors, and the subject matter of
each contract. If the contract had been awarded without competitive
bidding, the Secretaries had to supply Congress with a statement of
the principal or controlling reason for selection of the contractors.
Reports had to be submitted within sixty days after the end of the
fiscal year.[603]
In the main the congressional requirement of reporting is cast in
general terms, permitting the administrator considerable discretion
as to content and precise date (if not periodicity) of submission. On
occasion, however, Congress is disposed to insist upon specificity in
exacting reports from agencies, particularly agencies assigned such
tasks as the registering of individuals, licensing, letting contracts,
and the like.
_Informing and Advising the Congress_: A large number of statutes
require reports which appear not so much directed at enforcing
responsibility on the part of executive agencies as eliciting
information and specialized advice for policy-making. In 1934
Congress required the Federal Power Commission to submit a report and
analysis of rate schedules charged by private and municipal utility
companies at the earliest practicable date.[604] The Tennessee Valley
Authority Act[605] contains a reporting requirement commonly found in
legislation pertaining to newly established programs. The President
was directed to recommend to Congress such legislation as he deemed
proper to carry out the general purposes stated in the law.[606] His
recommendations were to be made from time to time as work progressed.
In 1934 Congress authorized the President “to appoint a Commission
composed of five members ... for the purpose of making an immediate
study and survey, and to report to Congress not later than February
1, 1935, its recommendations of a broad policy covering all phases
of aviation and the relation of the United States thereto.”[607] In
setting up the Federal Communications Commission in 1934 Congress
indicated that it expected the Commission’s annual reports to contain
information and advice facilitating further congressional policy-making
in the communications field. The Commission was directed to prepare
an annual report for the Congress which would contain information
and data collected by the Commission considered to be of value in
the determination of questions connected with the Commission’s
regulatory responsibilities involving wire and radio communication
and radio transmission of energy. The Commission was also required
to submit recommendations for additional legislation in the report
if the Commission believed it necessary. And on February 1, 1935 the
Commission was specifically directed to make a special report to the
Congress recommending amendments to the F.C.C. Act.[608]
In the Price Control Act of 1946 Congress indicated its desire that the
control of prices be terminated as rapidly as possible, and directed
the President to recommend to the Congress whatever was judged by him
as needed to supplement the control of prices and wages during the
remainder of 1947.[609] The national emergency provisions of the Labor
Management Relations Act provide that upon exhaustion of the procedures
for deferring and attempting settlement of national emergency strikes
“the President shall submit to the Congress a full and comprehensive
report of the proceedings ... together with such recommendations as he
may see fit to make for consideration and appropriate action.”[610]
A final illustration is drawn from the June, 1951 amendments to the
Universal Military Training and Service Act. This measure established
a National Security Training Commission of five members which, in
addition to generally supervising the training of the National Security
Training Corps, was to submit to the Congress certain legislative
recommendations. These recommendations were to include, but not be
limited to--(a) a broad outline for a program to assure that the
training be of a military nature, (b) measures for the personal safety,
health, welfare and morals of members of the Corps and (c) a code of
conduct.[611]
THE CONCURRENT RESOLUTION
The suggestion has been made that Congress would be better informed
and could exercise a more adequate check upon the administration of
delegated powers “if the major rules and regulations of the agencies
were submitted to Congress under a provisional order system. Under
this system they would become effective after a certain time, unless
negatived by Congress.”[612] This would in effect adapt to American
purposes the provisions of the British Statutory Instrument Act of
1946, requiring that important administrative rules and regulations
issued under delegatory statutes be submitted to the Parliament, where
they would be reviewed by a “Scrutiny Committee” of the Commons.
The resultant veto power might be exercised in a number of ways. A
congressional committee might be given power to scrutinize and report
on such rules and regulations, or delegated a final power to approve
or disapprove. We have earlier noted the extent to which Congress has
equipped committees with a power to review and approve or disapprove
administrative action.
Were Congress to utilize the Joint Resolution as an instrument for
approving or disapproving administrative action, no innovation would
be involved. The Joint Resolution requires presidential signature to
become effective. This legislative instrument traditionally has been
relied upon to clarify congressional intent in delegatory statutes
which it thought had been misinterpreted by administrative agencies
or the courts. However, if in delegating powers to the executive,
Congress conditioned the grant by reserving power to itself by
concurrent resolution or by simple resolution of one house to define
the terms under which the executive was to act and to review, approve
or disapprove such administrative action, a signal departure from
established practice would be recorded. In effect, the Congress would
have retained the power to curb administration through legislative
procedures which do not require Presidential signature to be effective,
and which traditionally do not have the force of law, serving simply
to express the intent of the Congress.[613]
While the Constitution provides that “every order, resolution, or vote
to which the concurrence of the Senate and House of Representatives
may be necessary ... shall be presented to the President ... and
before (they) take effect shall be approved by him,” concurrent
resolutions have not for over a century and a quarter been submitted
for presidential approval.[614] Apparently the earliest use of the
concurrent resolution as a device for enhancing the ability of Congress
to control administrative action is to be found in the Reorganization
Act of 1932, followed by the Reorganization Act of 1939.[615] These
statutes empowered the President to submit reorganization plans
to Congress, the plans to have legal effect unless disapproved by
concurrent resolution adopted within a prescribed period.
Within the past two decades all three instruments--the joint
resolution, the concurrent resolution, and the simple resolution passed
by one house--have been used by Congress in an attempt to retain
influence and control over the administration of emergency programs.
Whether for good or for bad, in statutes delegating emergency authority
the present trend is pointed toward inclusion of congressional power to
review administrative action by concurrent resolution.
DELEGATORY LEGISLATION INCORPORATING POWER TO CHECK BY CONCURRENT
RESOLUTION
Congress appears to have pursued a variety of objectives in
incorporating within delegatory statutes a power to influence or
control administration through concurrent or simple resolution. (a)
In some instances it has reserved power to terminate a statute or
program by concurrent resolution. (b) It has asserted power to enable
or require executive action by concurrent resolution. (c) Finally,
it has made administrative exercise of delegated power subject
to congressional approval or disapproval by concurrent or simple
resolution. The forty odd delegatory statutes noted in the course of
this study, which reserve to Congress the right to influence or limit
administrative action by simple or concurrent resolution, will be
discussed in this order.
_Terminating Programs_: Use of the concurrent resolution for the
express purpose of terminating legislative delegations of power to the
executive branch may take two forms: (a) congressional reservation
of a power to repeal the authorizing statute, or (b) congressional
reservation of the right, by concurrent resolution, to declare an end
to the particular conditions under which the President is empowered to
take action. Exercise of congressional power to repeal by concurrent
resolution generally has been expressed as follows: “The provisions
of this Act, ... shall terminate on June 30, 1943, or upon the date
of a proclamation by the President, or upon the date specified in a
concurrent resolution ...”[616] A similar provision is contained in at
least twenty-three emergency statutes enacted since 1941 and listed
below.[617] The Mutual Defense Assistance Act of 1949 secured to the
Congress a form of item veto through reserving to it the power by
concurrent resolution to terminate assistance to any nation under the
Act.[618]
Instances in which Congress reserves the right by concurrent resolution
to declare terminated the conditions authorizing executive action are
fewer. In a 1941 statute the Secretary of the Navy was authorized to
establish a plant protection force for naval shore establishments and
to maintain and operate this force until June 30, 1943, unless Congress
at an earlier date, by concurrent resolution, declared such force no
longer necessary.[619] A 1942 amendment to the Communications Act of
1934 gave the President certain powers to control wire communication
facilities upon proclamation by the President that a state or threat of
war exists involving the United States. The President’s powers in this
respect were to end not later than six months after the termination of
such state or threat of war and not later than such earlier date as
the Congress by concurrent resolution may designate.[620] In defining
national emergency for purposes of the Federal Civil Defense Act of
1950,[621] Congress stipulated that “the provisions of this title shall
be operative only during the existence of a state of civil defense
emergency.... The existence of such emergency may be proclaimed by the
President or by concurrent resolution of the Congress if the President
in such proclamation, or the Congress in such resolution, finds that an
attack upon the United States has occurred or is anticipated and that
the national safety therefore requires an invocation of the provisions
of this title.” Congress also has reserved the right, although not on
an exclusive basis, to determine by concurrent resolution the “dates of
commencement and termination of an armed conflict.”[622]
_Enabling or Requiring Executive Action_: An example of the use of the
concurrent resolution as an enabling device is the provision of the
Neutrality Act of 1939,[623] which imposed rigorous limitations upon
United States carriage to belligerents “whenever the President, or the
Congress by concurrent resolution, shall find that there exists a state
of war between foreign states.”
_The Legislative Veto_: The Reorganization Acts of 1939, 1945
and 1949[624] are also illustrations of the use of the simple
and concurrent resolution to effect approval or disapproval of
administrative action. All three Acts were designed to foster
reorganization to enable the government to cope with emergency
conditions, and the 1945 Act had the expressed purpose of facilitating
orderly transition from war to peace.[625] The 1939 Act stipulated that
the President’s reorganization plans were to take effect sixty calendar
days after the date on which the plan was transmitted to the Congress,
but only if during the sixty-day period the two Houses of Congress
had not passed a concurrent resolution stating in substance that the
Congress did not favor the reorganization plan. A similar provision was
contained in the 1945 Act, and on July 15, 1946 Congress, by concurrent
resolution, disapproved the President’s Reorganization Plan No. 1.[626]
The 1949 Act provided for a veto of Reorganization Plans by one house.
Under the latter, a reorganization plan becomes operative “upon the
expiration of the first period of sixty calendar days, of continuous
session of the Congress, following the date on which the plan is
transmitted to it; but only if, between the date of transmittal and
the expiration of such sixty-day period there has not been passed by
either of the two Houses, by the affirmative vote of a majority of the
authorized membership of that House, a resolution stating in substance
that the House does not favor the reorganization plan.”[627]
In a class by itself is the Federal Civil Defense Act of 1950, by
the terms of which the concurrent resolution may be employed to veto
interstate civil defense compacts.[628] The consent of the Congress
would be granted to each compact, after the termination of sixty
calendar days of continuous session of the Congress from the time
Congress first received notice of the compact. But Congressional
consent could be denied anytime during the sixty day period if Congress
passed a concurrent resolution stating that it did not approve the
compact.
Remaining for consideration is the utilization of the concurrent
resolution to enable Congress to achieve a more intimate participation
in the administration of selected programs, principally in the field
of immigration and naturalization. In the Alien Registration Act of
1940[629] Congress provided for the deportation of additional classes
of aliens. Aliens of proved good moral character might have deportation
suspended under certain conditions at the discretion of the Attorney
General. However, if deportation were suspended for more than six
months, all of the facts and pertinent provisions of law in the case
must be reported to the Congress within ten days after the beginning
of its next regular session, with the reasons for such suspension.
If during that session the two Houses pass a concurrent resolution
stating in substance that the Congress does not favor the suspension
of such deportation, the Attorney General is required to carry out the
deportation as provided by law. If, however, during that session the
two Houses fail to pass such a resolution, the Attorney General is
required to cancel deportation proceedings at the end of the session.
In subsequent legislation Congress reserved the right by concurrent
resolution to suspend deportation of aliens or to grant permanent
residence,[630] and a considerable proportion of the concurrent
resolutions enacted each year now constitute directives to the Attorney
General in this regard.[631]
The Rubber Producing Facilities Disposal Act of 1953[632] set up a
Rubber Producing Facilities Disposal Commission and authorized it to
enter into contracts for disposal of federally held rubber producing
facilities. The Commission was to report to Congress in considerable
detail on the negotiations and the contents of the contracts. The
report had to be submitted to both Houses of Congress on the same day.
Upon the expiration of sixty days of continuous session of the Congress
following the date upon which the report was submitted to it, the
Commission was free to proceed to carry out the contracts and proposals
as outlined in its report, but only to the extent that such contracts
and proposals had not been disapproved by either House of Congress by
a resolution during the sixty-day period. Congress in recent years
also has asserted the right by concurrent resolution to “declare ...
that the period of active service required of any age group” under the
Universal Military Training and Service Act “should be decreased ... or
... should be eliminated.”[633]
USE OF CONCURRENT RESOLUTION PROVISIONS TO CHECK ADMINISTRATIVE ACTION
A survey of the statute books from 1939 through 1954 reveals few
instances of congressional employment of the device of the concurrent
resolution so thoughtfully included in delegatory statutes. However,
the _Congressional Record_ for the same period bears evidence of
repeated effort on the part of members of the legislature to influence
the administration of delegatory statutes through concurrent or, in
some instances, the simple resolution.
_Terminating Powers:_ Legislative efforts to terminate statutes
by concurrent resolution prove anticlimactic in view of the many
instances in which the power to accomplish this was included in the
delegatory statute. The statute which provoked the most vigorous and
persistent effort at termination by concurrent resolution was that of
January 20, 1942, establishing daylight saving time.[634] From 1943
through 1945 some twenty-four concurrent resolutions were introduced to
terminate the effect of the Daylight Savings Act.[635] None of these
concurrent resolutions survived committee screening.
In 1941 a House concurrent resolution abrogating the authority of the
President to provide aid to Russia under the Lend-Lease Act died in
the Foreign Relations Committee.[636] The appropriate provision of
the Lend-Lease Act provided in general terms for termination of the
lend-lease authority upon adoption of a concurrent resolution by both
Houses.[637] The Act did not provide for suspension by concurrent
resolution of authority to aid specified countries and the resolution
probably sought to exercise a power which Congress had not reserved to
itself in the Act.
Pressure to terminate war controls intensified following the September
2, 1945, signing of the Japanese instrument of surrender. On September
14, House Concurrent Resolution 84 was introduced, “to terminate the
effectiveness of certain provisions of the Second War Power Act, 1942.”
Section 1501 of the Act provided for termination of certain of the
Titles of the Act by concurrent resolution.[638] The resolution did not
emerge from the Judiciary Committee, to which it was referred. Another
unsuccessful effort was made to invoke the concurrent resolution
provisions of the Act two years later.[639] The year following
termination of hostilities saw a short-lived effort to terminate by
concurrent resolution a statute which did not incorporate provision to
this effect.[640]
Some ten additional concurrent resolutions were introduced in the two
years succeeding 1945, the effect of which would have been formal
termination of the state of hostilities to which the lives of various
statutes had been hinged.[641] None of the resolutions emerged from
committee.
_Enabling and Requiring Executive Action:_ Aside from action on
reorganization plans submitted to Congress by the President, the sole
striking instance of successful employment of a concurrent resolution
provision incorporated in a delegatory statute concerned initiation of
a postwar highway construction program, under the Federal-Aid Highway
Act of 1944. The Act, it will be recalled, enabled the Congress by
concurrent resolution to stipulate the date the program was to go into
effect. Senate and House concurrent resolutions were introduced in
the Seventy-ninth Congress in 1945 fixing the first post-war fiscal
year under the Act as the year ending June 30, 1946.[642] The House
resolution passed in that chamber and was agreed to by the Senate.[643]
The Neutrality Act of 1939 is the outstanding, in fact the only, recent
instance of congressional effort to exercise power by concurrent
resolution to require executive action.[644] The Act drastically
curbed American carriage to and trade with belligerents. The President
could proclaim the existence of war between two nations; or, upon
passage of a concurrent resolution finding that war existed between
two countries, the President must issue a proclamation identifying the
belligerents.[645] Thereupon the trade restrictions in the Act become
effective and criminal penalty attaches to their violation.
On the theory that Section 1 (a) “places on this Congress a
responsibility corresponding with that which has been placed on the
President in the matter of finding a condition of war to exist,”[646]
individual members introduced concurrent resolutions declaring the
existence of war between the U.S.S.R. and Finland,[647] Japan and
China,[648] and Germany and the U.S.S.R.[649] These were decently
interred in committee.
_The Legislative Veto:_ Although the first Reorganization Act
containing provision for legislative veto of reorganization plans
was enacted in 1939, concurrent resolutions disapproving such plans
were introduced in vain until 1946. In July of that year both houses
agreed to House Concurrent Resolution 155 disapproving President
Truman’s Reorganization Plan No. 1.[650] The next May a new Congress
disapproved Reorganization Plan No. 2 of 1947.[651] The third and
last reorganization plan to be defeated by concurrent resolution was
Plan No. 1, 1948, which incurred congressional disapproved in March
of that year.[652] The Reorganization Act of 1949 permitted veto
of the President’s plans by simple resolution of one house.[653]
President Truman’s efforts to elevate the Federal Security Agency to
departmental status were frustrated by Senate Resolution 147 of 1949,
which was adopted by that body on August 16, 1949.[654] All of the veto
resolutions passed by Congress were favorably reported from committee
to the house of origin.
During the period studied three veto resolutions died in
committee,[655] three (all favorably reported from committee) passed
the House of Representatives only to be rejected by the Senate,[656]
and four were adversely reported from committee and defeated in the
chamber in which they originated.[657] Only one veto resolution was
discharged from committee. It subsequently passed the House but failed
in the Senate.[658]
CONCLUSION
In an era in which governmental controls invade every sphere of human
activity, from economic to cultural and political, administrative
responsibility is essential to the maintenance of the democratic
system. Administration which is responsible is lacking in the elements
of bad faith, arbitrariness, or capriciousness. It constitutes a
reasoned effort, in good faith, to approximate the legislative intent.
Congress is one important source of oversight of administration. Its
effectiveness in performing this role is a function of (a) the adequacy
of its tools, and the skill, conscience, and sustained interest of the
members in wielding them, and (b) the standards it applies in measuring
the adequacy of administrative action.
Experience in this area indicates that Congress is more imaginative in
fashioning tools for checking and influencing the administration of
delegated powers than it is skillful and determined in employing them
to hold administrators to clearly defined standards of performance.
The national legislature has attempted to employ reporting devices and
the concurrent resolution to influence, enable or require executive
action, to terminate or suspend the conditions authorizing it, or
to restrict the application of programs to specified groups. Not
infrequently it has made the exercise of delegated powers contingent
upon prior congressional approval or disapproval.
With the exception of the last category, however, Congress has not
effectively wielded the tool it engineered. The veto resolution has
received ample use because the executive automatically initiates
congressional review when it invokes the delegated power which is
subject to veto. Where Congress must initiate review, the concurrent
resolution provisions tend to lie dormant, or congressional action
tends to be directed at vindicating sectional interests (revocation
of daylight saving time), or direct participation in the framing of
administrative decisions, case by case (deportation suspensions).
Perhaps the moral of the story is that we must free congressmen from
constituency loyalties and subject them to strict party discipline if
we wish to insure that available techniques for the legislative control
of administration are effectively employed to serve an interest which
is broad and public.
CHAPTER IX INTER-AGENCY RELATIONSHIPS
The study of administration proceeds within the framework of a taxonomy
of human relationships, the breadth and content of which remain
fluid. In large measure, when we speak of law we refer to a socially
prescribed and sanctioned taxonomy of human relations. The analysis
offered in this chapter is grounded upon the premise that clarification
and refinement of a taxonomy of administrative relationships
may result from the study of legislative enactments prescribing
relationships between administrative agencies. It also reflects the
supposition that at a time when the behavioral or human-relations
approach to the study of administration is in ascendancy, such a review
may provide an essential foundation for the contrasting of formality
and actuality which is one of the characteristics of behaviorism.
In the following pages we record and classify various kinds of
inter-agency relationship prescribed by statute. We have attempted to
employ the inductive approach, permitting the categories and gradations
of relationship to emerge from the materials. But we are not unaware of
the inevitable intermixture of the _a priori_.
When fashioning economic regulatory legislation, Congress must heed
the complexity of the industrial society to which the controls are to
be applied, and of the bureaucracy through which regulation is to be
accomplished. It will be possible to realize the legislative purpose
only if the active co-operation and help of a wide variety of official
agencies and private groups can be enlisted. And these must include the
groups to be regulated.[659]
Thus it is not surprising to find, upon examining a large number of
emergency regulatory statutes enacted during the last twenty-five
years, that they contain many provisions detailing the relationships
which should prevail between the administering agencies and other
groups, official, semiofficial, or private. Such provisions establish
a variety of rights and obligations. They may have the effect of
enlarging or constricting the discretion of a particular agency to
interpret and pursue legislative policy goals. In the pages which
follow we attempt to sort out and categorize such provisions.
The confusing medley of statutory provisions for kinds and gradations
of inter-agency relationship is perhaps best reduced to order by
invoking the image of three overlapping spheres.
[Illustration:
permissive or
mandatory
solicitation
or receipt
or advice of
a nonbinding
nature
mandatory
performance in
accordance with
instruction of
another agency
joint pursuit
of policy goals
by co-ordinate
agencies
]
The center sphere, into which and from which the others spill,
represents the kind of inter-agency relationship in which one agency
performs a mandatory, nondiscretionary function at the direction or
“request” of another. Flowing into it, from the left, is the sphere in
which agencies are permitted or compelled to receive advice from, to
consult or confer with others, but are under no obligation to follow
the advice received. The third sphere is that in which two or more
co-ordinate agencies share active responsibility and authority for the
pursuit of a common policy goal.
If the interagency relationships provided for by statute are scaled
according to the binding quality of the advice received by one agency
from another or according to the degree to which two or more agencies
share authority and responsibility for program administration subtle
nuances of interagency relationship are revealed. Advice received may
be purely of an informative and nonbinding nature, or the statute may
be so worded as to indicate that “advice” from one agency to another
amounts virtually to direction. In the sharing of program authority
and responsibility, one agency may perform ministerial functions at
the direction or “request” of another, or, at the opposite extreme,
interagency personnel, judgment, and resources may be fused toward the
accomplishment of a common goal.
COMMUNICATION
Herbert A. Simon’s definition of communication “as any process whereby
decisional premises are transmitted from one member of an organization
to another,”[660] generally describes the kinds of legislative
provisions which will be reviewed in this section, with the exception
that we are here concerned with the transmission of decisional premises
from one agency to another. The transmission may be permissive or
mandatory. The information or advice conveyed may or may not be related
to the framing of a particular decision; it may or may not be binding
upon the recipient agency.
COMMUNICATION UNRELATED TO THE FRAMING OF A PARTICULAR DECISION
_Permissive Consultation_: Provisions for communication are perhaps
seen in their mildest form in the Foreign Agents Registration Act of
1938, which established the right, although clearly not the duty, of
the Secretary of the Treasury and the Postmaster General to accede
to the request of the Librarian of Congress that they provide the
librarian with copies of foreign printed matter excluded from the
United States under congressional statutes.[661]
_Must Receive Advice_: The 1938 Naval Reserve Act created a Naval
Reserve Policy Board, at least half the members of which were to
be naval reserve officers called to Board duty from inactive duty
status, which was to be convened annually for the purpose of advising
the Secretary of the Navy on the formulation of Naval Reserve
Policies.[662] Here a definite obligation to communicate, and a special
agency for communication are established, and the Secretary of the Navy
is by inference required to receive proffered advice, although he is
not obligated to act in conformance with it.
_Must Confer or Consult_: Dictionaries tend to regard the words
“advice” and “consult” as synonyms. And it may be that the Congress
tends to employ these terms interchangeably. Yet it is reasonable
to suppose that the legislature does not regard the transmission of
decisional premises as an invariable one-way process. If this be true,
it is possible although not demonstrable that “advise” as employed in
statutes connotes the offering of counsel or opinion, recommending as
wise or prudent--the communications process flowing in one direction;
and “consult” implies a two-way communication process, “talking over a
situation or a subject with someone to decide points in doubt.”[663]
The Emergency Railroad Transportation Act of 1933 is infused with a
quality of briskness which is absent from the statutes alluded to
above. In this Act Congress created a co-ordinator of transportation
and a number of regional railroad co-ordinating committees. It
stipulated that the co-ordinator must “confer freely with the
committees, and the committees, the carriers, the subsidiaries, and the
Interstate Commerce Commission shall furnish him ... such information
and reports as he may desire.”[664]
The Defense Production Act of 1950 required the President, in
exercising the price and wage stabilization provisions of the Act, “so
far as practicable, (to) advise and consult with, and establish and
utilize the committees of, representatives of persons substantially
affected by regulations or orders issued hereunder.”[665]
_Must Consider_: While not saying that proffered advice must be
accepted, Congress indicated in a 1946 statute that the Civil
Aeronautics Administrator was to hold himself open to influence. In
drawing up his plan for the development of public airports in the
United States, he was required as far as possible to consult and give
consideration to the views and recommendations of the Civil Aeronautics
Board, the States, the Territories, Puerto Rico, and their political
subdivisions.[666] He also had to consult and consider to the extent
feasible the views and recommendations of the Federal Communications
Commission.
The Philippine War Damage Commission was created in 1946 and assigned
the task of making compensation for war damage to private property in
the Philippines. The Commission was required so far as practicable
to give consideration to the recommendations of the Filipino
Rehabilitation Commission created in an earlier act. But, said
Congress, the Commission was not required to await, or be bound by such
recommendations.[667]
COMMUNICATION RELATED TO FRAMING OF A PARTICULAR DECISION
The foregoing advice and consultation provisions fall short of setting
the requirement in a specific action context. They seem to have the
objective of maximizing the likelihood that interested official and
private groups will have the opportunity to influence program content.
At the same time they imply or categorically state that the action
agency need not be guided by such advice. It is not patently clear
in any instance that the administrator must defer action until after
consultation; and, of course, in one instance he is specifically
advised that he is free of such a requirement.
The statutes referred to below clearly link the prescribed advice or
consultation to the taking of specified action by the administrator. In
some instances he must advise with others prior to taking action, but
is not required to follow the advice. In others he is enabled but not
required to act upon receipt of a report or information from another
agency. An occasional statute will require not only consultation,
but the making of specific findings precedent to exercising powers
delegated by Congress. The administrator will sometimes find himself in
a position in which he may take certain action only if it is acceptable
to, or meets the approval of, other groups. And, carrying us to the
end of this progression, we have the statutory requirement that the
administrator act in conformance with advice received.
_Must Seek Advice Prior to Acting_: A June, 1934 amendment to the
Tariff Act of 1930 sought to assist recovery from “the present
emergency in restoring the American standard of living” by authorizing
the President to enter into reciprocal trade agreements for the
relaxation of duties and import restrictions.[668] Prior to concluding
individual agreements, however, the President had to seek information
and advice with respect thereto from the United States Tariff
Commission, the Departments of State, Agriculture, and Commerce and
from such other sources as he deemed appropriate. The advice need not
be followed, but it must be sought precedent to concluding a reciprocal
trade agreement. The 1934 grant of power to the President to prohibit
the sale of arms to participants in the Chaco War made the exercise of
that power contingent upon prior consultation with governments of other
American Republics.[669]
Similarly, in granting the President power, in March, 1941 to authorize
the transfer of American military equipment to the government of any
country whose defense the President considered vital to the defense
of the United States, Congress specified that no defense article not
manufactured for such a foreign power might be disposed of except
after consultation with the Chief of Staff of the Army or the Chief
of Naval Operations of the Navy, or both.[670] The War Risk Insurance
Act of 1950 permitted the Secretary of Commerce “with the approval of
the President, and after such consultation with interested agencies of
the Government as the President may require,” to “provide insurance
and reinsurance against loss or damage” of American merchant vessels
“by war risks.”[671] In 1950 security provisions were added to the
Civil Aeronautics Act of 1938. Among these was an authorization for the
Secretary of Commerce to establish zones or areas in the airspace above
the United States as he found necessary in the interests of national
security. Having established such spaces, he might, “after consultation
with the Department of Defense and the Civil Aeronautics Board ...
prohibit or restrict flights of aircraft” within them.[672]
These statutes simply open up the channels of communication and
insist that they be used prior to the taking of action. They do not
explicitly require the administrator to accept proffered advice, and
whatever effect they have upon his freedom of discretion is subtle and
impalpable.
_May Act on Receipt of Advice or Request_: The 1937 statute extending
the life of the Reconstruction Finance Corporation permitted the
Board of Directors of the Corporation to report to the President that
private credit was sufficiently available from private sources to meet
legitimate demands of any class of eligible borrowers, whereupon the
President might authorize the directors to suspend lending to that
class.[673] Here, in effect, the Board of Directors of the RFC was
given power to report (recommend) and thereby enable presidential
action. The 1947 surplus property act authorized the disposal agency,
upon the request of the Administrator of Civil Aeronautics, the
Secretary of War, or the Secretary of the Navy to omit any of the
terms, or conditions for the transfer of title to such property.[674]
The agency granted a dispensing power which it was enabled to exercise
upon receipt of a request from specified officials.
The first of these two statutes enabled the President to act after
the RFC had made what amounted to a finding. In this, it is similar
to the Nationality Act of 1940, which provided that the President
might, in his discretion, exempt certain aliens in the United States
from the classification of alien enemy, provided the Department of
Justice investigated and established the loyalty of the alien.[675] A
Department of Justice finding of loyalty enables but does not compel
the President to act.
The Secretary of War was granted power in 1941 to remove any officer
from the active list of the Regular Army for such causes and under such
regulations as he might prescribe. He could not exercise this power in
individual cases, however, until the officer had been recommended for
removal by a board of not less than five general officers convened for
this purpose by the Secretary of War.[676]
_Action on Making an Independent Finding_: At least two of the statutes
covered in this survey required the President not only to consult, or
to receive recommendations prior to taking action, but in addition,
to make an explicit finding of fact. The India Emergency Food Aid Act
of 1951 permitted the President, after consultation with appropriate
Government officials and representatives of private shipping, and
after finding and proclaiming that private shipping was not available
on reasonable terms and conditions for transportation of supplies
made available under Act, to provide for carriage in government-owned
ships.[677] Four days after signing the Act, the President proclaimed
that he had consulted with public officials and private shipping
representatives, and had found it necessary to use government
ships.[678] The 1951 amendments to the Universal Military Training and
Service Act authorized the President “upon finding by him that such
action is justified by the strength of the Armed Forces in the light of
international conditions,” and “upon recommendation of the Secretary
of Defense” to decrease or eliminate periods of compulsory military
service.[679]
The remaining statutes, in varying degree, subject administrative
decision-making to external controls.
_Action if Acceptable to Others_: Congress in 1935 imposed, for three
years, limitations upon imports of Philippine yams, twines, cables,
and other fibers. The limitation was subject to continuance for an
additional three years by presidential proclamation, provided such
extension was acceptable to the President of the Commonwealth.[680]
Such an extension was made by a proclamation of January, 1938, in
which the President recited that “the President of the Commonwealth
of the Philippines has indicated to me ... his acceptance of an
extension of the operation of that Act for an additional period
of three years.”[681] Unlike the earlier statutes which require
consultation prior to action, or sometimes permit action only following
recommendation and findings, here the substance of the President’s
action is subject to approval from a source external to the presidency.
_Action Upon Receipt of Prior Approval_: We have already employed, in
another context, the provision of the War Risk Insurance Act of 1950,
which hinged action by the Secretary of Commerce to the prior approval
of the President.[682] The Defense Production Act of 1950 exempted
from anti-trust prosecution business agreements made pursuant to the
request of the President. The President was given a limited authority
to delegate this power to subordinate officials, but only upon the
condition that such officials consult with the Attorney General and
with the Chairman of the Federal Trade Commission not less than ten
days before making any request or finding thereunder. In addition,
the request was to be subject to the prior approval of the Attorney
General.[683] In August, 1950, Congress legislated on the matter of
termination of government employment for security reasons. Persons
whose employment was thus terminated might be employed elsewhere in the
government only if the Civil Service Commission approved a request
coming from the individual or the prospective employing agency.[684]
The Rubber Producing Facilities Disposal Commission was directed to
“consult and advise with the Attorney General” concerning the disposal
of such facilities. The 1953 statute creating the Commission required
that its report to Congress, suggesting an appropriate manner of
disposing of government-owned producing facilities, be submitted first
to the Attorney General who would advise the Commission “whether, in
his opinion, the proposed disposition would violate the anti-trust
laws.” His findings approving the proposed disposals were to be
appended to the report which the Commission made to Congress. Thus,
in effect, the Commission was gently admonished to bring in a report
bearing the Attorney General’s approval.[685]
_Must Act in Conformance With Request_: The next group of statutes
compel the administrator to accept and to act in accordance with
recommendations or requests coming from a source beyond his agency.
The Foreign Agents Registration Act of 1938, as amended in 1942,
permitted certain exemptions from its registration provisions. The
Attorney General might, after notice to the employing government or
the person concerned, and with the approval of the Secretary of State,
terminate in whole or in part an exemption from registration granted
to United States residents who were employees of a foreign government.
When the Secretary of State initiated a request for termination of an
exemption, the Attorney General had to comply with the request.[686]
The Second War Powers Act of 1942 contained a provision for the waiving
of navigation and inspection laws under certain conditions. The head
of each department or agency responsible for the administration of the
navigation and vessel inspection laws was directed to waive compliance
of such laws upon the request of the Secretary of the Navy or the
Secretary of War to the extent believed necessary in the conduct of the
war by the officer making the request.[687]
The discretion of federal jurists has to some extent been subjected
to constriction by the executive. The Secretary of the Navy was given
power, in a July, 1944, statute, to certify to federal courts that
pending suits arising out of damage caused by naval vessels or towage
or salvage services to naval vessels would, if tried, tend to endanger
the security of naval operations. Upon receiving such a certification,
the federal court having jurisdiction in the case was required to stay
further proceedings until six months after the cessation of hostilities
or such earlier date as the Secretary of the Navy might set.[688]
Congress, in February, 1952, took emergency action temporarily
suspending the import duty on lead. The Tariff Commission was to advise
the President at the end of any month in which the average market price
of lead delivered at New York had fallen below eighteen cents per
pound, “and the President shall, by proclamation, not later than twenty
days after he has been so advised by the Tariff Commission, revoke such
suspension of the duties.”[689] In June, 1952, the President issued a
proclamation under this Act, revoking the suspension of the duty.[690]
The converse of these arrangements whereby an administrator is
compelled to take prescribed action upon the request, or upon a finding
of others, is the situation in which he may be barred from taking
contemplated action, in consequence of a request or finding coming from
another agency. Our final illustration falls into this bracket. The
President was permitted by the Export Control Act of 1949 to “prohibit
or curtail the exportation from the United States ... of any articles,
materials, or supplies, including technical data.” But he could not
exercise this power “with respect to any agricultural commodity,
including fats and oils, during any period for which the supply of such
commodity is determined by the Secretary of Agriculture to be in excess
of the requirements of the domestic economy.”[691]
INTEGRATIVE RELATIONSHIPS
The statutory provisions enumerated above have the apparent objective
of facilitating communication between agencies or introducing checks
and balances--contrived frustrations--into the administrative process.
At the least intense end of the scale is permissive interagency
communication; gradually the relating of interagency communication and
agency action intensifies until the point is reached at which an agency
may exercise a delegated power only upon clearance with another agency,
or is compelled to exercise it upon the direction of another. However,
the relationship between agencies is communicative, and they do not by
statute have joint responsibility for decision-making or day-to-day
program development and execution.
The broad group of statutes to which we now turn attempts to distribute
among a number of agencies responsibility and authority for joint
decision-making and action. The resources and judgment of many
agencies may be focused on one program, or a system may be set up for
co-ordinating the activities of many agencies toward the attainment of
broad policy goals. The kind of interagency relationship contemplated
by Congress appears to be more active and positive, more a harnessing
of equals, than those which we have thus far reviewed.[692]
Four principal categories of statutory provisions may be distinguished
under this general head. Some aim at joint decision-making by
two or more agencies. Others enjoin agencies to “co-operate” in
the administration of a given program. A third group establishes
mutual assistance arrangements among agencies. Finally, we have
those statutory provisions which seek co-ordination of interagency
activities.[693]
JOINT DECISION-MAKING
A 1939 stockpiling act required the Secretary of War, the Secretary
of the Navy, and the Secretary of the Interior, to determine whether
certain materials purchased under the Act were strategic and critical.
Once this determination was made, they then were permitted to determine
the quality and quantities of materials to be purchased under the
Act.[694] The Secretary of War and the Secretary of the Navy, when they
considered such action appropriate because the domestic production or
supply of certain materials was insufficient to meet the industrial,
military, and naval needs of the country, were to direct the Secretary
of the Treasury, through the medium of the Procurement Division of
his Department to make purchases in accordance with specifications
prepared by the Procurement Division of the Treasury Department and
approved by the Secretary of War and the Secretary of the Navy. Two
months later Congress authorized the Commodity Credit Corporation to
accept such strategic and critical materials in exchange for such
surplus agricultural commodities; and for the purpose of such exchange
it was left to the three Secretaries to determine which materials are
strategic and critical and the quantity and quality of such materials
needed.[695]
The Central Intelligence Agency Act of 1949 set up procedures for
granting asylum to foreign nationals who have performed valuable
security services for the United States. Whenever the Director of
the CIA, the Attorney General, and the Commissioner of Immigration
determines that the entry of a particular alien for permanent residence
is in the interest of national security or essential to the furtherance
of the national intelligence mission, such alien and his immediate
family shall be given entry into the United States for permanent
residence without regard to their inadmissibility under the immigration
or any other laws and regulations, or to the failure to comply with
such laws and regulations pertaining to admissibility.[696] The
Immigration and Nationality Act of 1952 assigns to the Secretary of
State, the Secretary of Commerce, and the Attorney General jointly
the function of determining the annual quota of immigrants for any
quota area.[697] On June 30, 1952, the President issued a proclamation
reciting that the quotas had been determined, and listing them.[698]
The National Security Act of 1947 recited as one of its purposes
the establishment of integrated policies and procedures for the
departments, agencies, and functions of the Government relating to the
national security.[699]
CO-OPERATION
Joint decision-making shades into co-operative relationships which, if
loose and flexible, may be continuing and steady. Such relations may
exist with private as well as official groups.
_Must Co-operate_: The Small Business Concerns Mobilization Act made it
the duty of the Chairman of the War Production Board to co-operate to
the fullest practicable extent with the Director of Civilian Supply and
other appropriate governmental agencies in the issuance of all orders
limiting production by business enterprises with a view to insuring
that small business concerns would not be bypassed in the production of
war materials and goods essential to the civilian population.
In granting the Secretary of the Interior power to construct
demonstration plants for production of synthetic and liquid fuels
from coal oil shale, and agricultural and forestry products, the
Congress specified that “any activities under this Act relating
to the production of liquid fuels from agricultural and forestry
products should be carried out in co-operation with the Department
of Agriculture and subject to the direction of the Secretary of
Agriculture.”[700] A 1945 flood-control act clearly sought to effect
interagency co-operation in facilitating the replacement by farmers of
flood-damaged or -destroyed farm equipment.[701] The War Production
Board, and every other governmental agency which had jurisdiction over
allocations and priorities relating to farm machinery and equipment
were authorized and directed immediately to take whatever steps were
necessary to provide for the necessary allocations and priorities
to enable farmers in the areas affected by floods in 1944 and 1945
to replace and repair their farm machinery and equipment which was
destroyed or damaged by such floods, or windstorms, or fire caused by
lightning, and to continue farm operations.[702]
The Defense Production Act of 1950 provided that whenever the price
and wage stabilization powers contained in the Act were exercised, all
agencies of the Government dealing with price and wage stabilization,
within the limits of their authority and jurisdiction, should
co-operate in carrying out the purposes of the Act.[703]
_May Co-operate_: The Emergency Price Control Act of 1942 was in part
designed “to permit voluntary co-operation between the Government and
producers, processors, and others to accomplish the ... purposes” of
stabilizing prices and preventing speculation.[704] “It shall be the
policy of those departments and agencies of the Government dealing
with wages (including the Department of Labor and its various bureaus,
the War Department, the Navy Department, the War Production Board,
the National Labor Relations Board, the National Mediation Board, the
National War Labor Board, and others heretofore or hereafter created),
within the limits of their authority and jurisdiction, to work toward
a stabilization of prices, fair and equitable wages, and cost of
production.”[705]
MUTUAL ASSISTANCE
Congress will not infrequently require or enable one agency, on an
interim or continuing basis, to come to the assistance of another in
the execution of its program. This may take the form of providing
money, material, facilities, or service to the agency. It is a kind of
mutual assistance program within the executive branch.
The Reconstruction Finance Corporation, for example, was occasionally
treated by Congress as a source of credit to enable agencies to
launch authorized programs immediately after enactment, and thus
avoid the delays which attend appropriation of funds for authorized
programs. The Far Eastern Economic Assistance Act of 1950 authorized
the appropriation to the President of sixty million dollars to enable
the Economic Co-operation Administration to furnish assistance to the
Republic of Korea. As a way of getting the program started at once,
the Reconstruction Finance Corporation was authorized and directed to
make advances not to exceed thirty million dollars in the aggregate,
until the regular appropriation was available.[706] It can readily be
seen that this device might be employed not only to avoid the normal
delays of the appropriations process, but to circumvent or nullify the
obstructive tactics of an unfriendly appropriations subcommittee.
The India Emergency Food Aid Act of 1951 contained a similar provision.
If the President, after consultation with public and private shipping
officials, found that private shipping was not available to carry
American food to India on reasonable terms and conditions, the
Reconstruction Finance Corporation was authorized and directed to
make advances not to exceed in the aggregate twenty million dollars
to the Department of Commerce for activation of vessels for such
transportation.[707]
Other mutual assistance provisions enable or require agencies to
produce or procure goods or services for other agencies under
certain conditions. The Tennessee Valley Authority Act required the
Corporation, upon the requisition of the Secretary of War or the
Secretary of the Navy to manufacture for and sell at cost to the United
States explosives or their nitrogenous content. Upon the requisition
of the Secretary of War the Corporation was to allot and deliver
without charge to the War Department whatever power was necessary in
the judgment of the Department for use in operation of all locks,
lifts, and other facilities in aid of navigation.[708] The Helium Gas
Act of 1937 permitted the Army, Navy, and other government agencies to
requisition helium from the Bureau of Mines, which agency was charged
with responsibility for the production of helium.[709]
The Maritime Commission was assigned responsibility, in July, 1941, for
meeting the shipping needs of defense agencies.[710] The Secretary of
the Air Force was directed to make available to the Civil Air Patrol by
gift or by loan, sale or otherwise, with or without charge, obsolete or
surplus aircraft and aircraft parts to permit utilization of facilities
of the Air Force, and to furnish to Civil Air Patrol the fuel needed to
enable it to complete any specifically assigned mission.[711]
CO-ORDINATION
If co-operation involves working together, co-ordination is the process
whereby things are placed in position relative to each other and to the
system of which they form parts. Administrators may work together, or
co-operate, toward the end of co-ordinating their programs. But joint
decision-making, or co-operative programming are vitally, if subtly,
different from the co-ordination of programs. In the first place,
joint decision-making or co-operation have the purpose of focusing
the judgment and resources of many agencies upon the execution of one
program, whereas co-ordination involves the relating of many similar,
or possibly diverse, programs. Secondly, to indulge a tautology,
joint-decision-making and co-operation (as provided for in the statutes
just reviewed) involve a positive, creative elaboration and execution
of programs, whereas co-ordination consists of minimizing conflict of
purpose among two or more programs.
The Commissioners of the District of Columbia were authorized in
August, 1950, to set up an Office of Civil Defense for the District,
which office would, among other things, plan for integration of the
District’s civil defense effort with that of the federal government and
nearby states, and co-operate with governmental and nongovernmental
agencies and co-ordinate the activities within the district.[712] The
National Science Foundation’s functions include that of correlating
its scientific research programs with those undertaken by individuals
and by public and private research groups.[713] The Immigration and
Nationality Act of 1952 authorized the Commissioner of Immigration and
the administrator of the Bureau of Security and Consular Affairs of
the Department of State to maintain direct and continuous liaison with
the Directors of the Federal Bureau of Investigation and the Central
Intelligence Agency and with other internal security officers of the
Government for the purpose of obtaining and exchanging information
for use in enforcing the provisions of this Act in the interest of
the internal security of the United States. The Commissioner and the
administrator are to maintain direct and continuous liaison with
each other with a view to a co-ordinated, uniform, and efficient
administration of this law, and all other immigration and nationality
laws.[714]
There were some statutes with regard to which it is difficult, if not
impossible, upon the basis of reading alone, to determine whether
the purpose was to bring the facilities of many agencies to bear
upon the administration of one program, or to enhance the prospect
that the program would be administered in a manner consistent with
the objectives of other related programs. A study of the legislative
history and the administration of these provisions would probably
disclose that the legislative intent was mixed, or that in the process
of administration both objectives were joined.
We might include within this category the Neutrality Act of 1935
which set up the National Munitions Control Board, to be composed of
the Secretaries of State, Treasury, War, and Navy. The Board, acting
largely through the Secretary of State, was the agency for execution of
the neutrality program.[715] The Contract Settlement Act of 1944 set up
an Office of Contract Settlement, headed by a Director, and a Contract
Settlement Advisory Board, with which the Director was required to
advise and consult. The Board was composed of the Director, the
Secretaries of War, Navy, and Treasury, the Chairman of the Maritime
Commission, the Administrator of the Foreign Economic Administration,
the Chairman of the Board of Directors of the Reconstruction Finance
Corporation, the Chairman of the War Production Board, the Chairman
of the Board of Directors of the Smaller War Plants Corporation,
and the Attorney General.[716] Any of these officials might appoint
representatives.
The Atomic Energy Act of 1946 contained provision for a Military
Liaison Committee.[717] The National Advisory Committee for
Aeronautics, created to supervise the scientific study of the
problems of flight, under a 1948 statute, was to be composed of not
more than seventeen members appointed by the President including
two representatives of the Department of the Air Force; two of the
Department of the Navy, from the office in charge of naval aeronautics,
two of the Civil Aeronautics Authority; one of the Smithsonian
Institute; one of the United States Weather Bureau; one of the National
Bureau of Standards; the Chairman of the Research and Development Board
of the National Military Establishment; and others.[718]
Are these representative of congressional efforts to organize
co-operation, or to organize co-ordination? We think the latter,
although it is clear that reasonable men could differ, and a careful
legislative history might prove us wrong.
CONCLUSIONS
Our findings appear to suggest that either Congress has a considerable
feeling for the subtle nuances of administrative interrelationships,
or that it is loose and inconsistent in the language it employs.
The statutory provisions run a gamut, permitting the exchange of
information, providing formally prescribed sources of advice,
compelling agencies to consult, to consult and consider, to consult
prior to taking specific action, hinging action to the receipt of a
prior enabling report or request, requiring prior consultation and
fact finding, requiring clearance or approval from a source external
to the agency, and finally, compelling action in conformance with the
request of another agency. It has harnessed the judgment and resources
of many agencies to the making of particular kinds of decisions,
it has provided for interagency co-operation and assistance in the
accomplishment of policy goals; and it has taken care to assure
co-ordination of related programs.
These are the relationships which Congress has sought to establish
among administrative agencies.
CHAPTER X JUDICIAL REVIEW
Edward S. Corwin has appraised as a misfortune the fact that
“Constitutionalism has worked in this country to impress upon
the discussion of public measures a legalistic--not to say
theological--mold,” and has substituted “for the question of the
beneficial _use_ of the powers of government ... the question of their
existence.”[719]
The United States Supreme Court, rather than the judicial system, is
popularly conceived to have a distinctive role to play in checking
arbitrary government in time of emergency;[720] and it endeavors to
perform that role, albeit none too successfully at times by ruling on
the constitutionality of the government power asserted during such
period of crisis. However, as the chief appellate body in a judicial
system which as a whole “handles a mere trickle of the great issues
arising”[721] during an emergency, the Supreme Court cannot reasonably
be expected to formulate a coherent theory of democratic response to
emergency whereby action designed to meet the exigencies of war can be
harmonized with our constitutional system with only minimum risk to the
preservation thereof.
THE SUPREME COURT’S APPROACH
In its effort to avoid the Scylla of judicial refusal to review the
constitutionality of legislative or executive emergency action, and
the Charybdis of declaring unconstitutional emergency action which
might be vital to national survival,[722]--i.e., in its efforts to
“reconcile the irreconcilables” which Cardozo considered the essence of
the judicial function--the Supreme Court has traveled various routes.
The majority opinions of the Court, or the concurring or dissenting
opinions of individual justices, have at times asserted that (a) the
Constitution is a rigorously confining document to be inflexibly
applied by the Court in measuring governmental action in war and peace;
(b) there exists an emergency power which is above constitutional
limitations; (c) the Constitution is a flexible charter permitting
government action commensurate with need as measured by the Court.
All three of these approaches are characterized by a preoccupation
with the question of the existence of the asserted emergency power.
Under the first, the Court is guided by a narrow interpretation of
the quantum of constitutional emergency power and appears disposed
to appraise the validity of asserted authority independently of any
consideration of the indispensability of the power exercised for
successful resolution of the crisis. Involving covertly virtual
acceptance of the principle, _inter arma selent legis_, the second
is extremely dangerous; for if applied extensively, it would erode
constitutional balance and restraint and perhaps terminate responsible
government in time of peril. Insofar as it chooses to be guided by
the third and purports to sanction only that which it concedes to
be essential for combating an emergency, the Court not only assumes
a task for which it is ill-suited but also frequently shirks its
responsibilities in the performance thereof. Too often when it dares to
condemn as ultra vires action believed unavoidable in the prosecution
of a war, it postpones its invalidation until after hostilities
have terminated. Such post mortem judicial observations afford most
inadequate guides for ascertaining what will be constitutionally
permissible in time of crisis.
Apart from a few brief illustrations of the aforementioned judicial
approaches, we have placed major emphasis upon the Steel Seizure Case
[Youngstown v. Sawyer, 343 U.S. 579 (1952)], for in that decision
are to be found signally important indications of the most effective
contribution which the Federal judiciary hereafter may make in
sustaining responsible government. The need for a more extensive
review of the Supreme Court’s appraisal of emergency power has been
dispelled by Clinton Rossiter’s study of _The Supreme Court and the
Commander-in-Chief_.[723]
_The Constitution as a Rigidly Restrictive Document_: In one of the
extremely rare instances in which a Supreme Court Justice has defied
the Chief Executive engaged in prosecuting a war, Chief Justice Roger
B. Taney in 1861, presiding as Circuit Court Judge at Baltimore,
demanded that the military produce in court one John Merryman, who had
been arrested. When Merryman’s jailers replied to Taney that by virtue
of the President’s proclamation suspending the writ of habeas corpus,
they had been directed not to respond to the writ, the venerable Chief
Justice wrote a stinging opinion informing the President that the
power to suspend the writ belonged to Congress alone and could not be
exercised by the chief executive. Notwithstanding his ruling, Merryman
was not released and the President continued his suspension of the
writ, although Congress did not validate his action until 1863.[724]
Perhaps a better example of Taney’s attitude toward the relaxing of
constitutional restraints in wartime is to be found in an earlier,
unpublished opinion, quoted by Swisher in his biography of the Chief
Justice:
“A civil war or any other war does not enlarge the powers of the
federal government over the states or the people beyond what the
compact has given to it in time of war. A state of war does not
annul the 10th article of the amendments to the Constitution, which
declares that ‘the powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are reserved to the
states respectively or to the people.’
“Nor does a civil war or any other war absolve the judicial department
from the duty of maintaining with an even and firm hand the rights
and powers of the federal government, and of the states, and of the
citizens, as they are written in the Constitution, which every judge is
sworn to support.”[725]
For the other expressions of this absolutist view, we must look to
opinions handed down in the immediate postwar periods of 1866 and 1946.
_Ex parte Milligan_[726] involved the incarceration of a northerner
suspected of Southern sympathies. Could such an individual be tried,
convicted and sentenced to death by a military tribunal, in an area far
behind the Northern lines, in fact, in a State which had never been
invaded by the Southern armies? Scores of such instances of military
trial and conviction of civilians had occurred in Northern states
untouched by the war.
The majority opinion for the Supreme Court disposing of this issue was
written by Justice Davis and constitutes as rigid a definition of the
limits circumscribing the war powers as could possibly be stated:
“The Constitution of the United States is a law for rulers and
people, equally in war and in peace, and covers with the shield
of its protection all classes of men, at all times, and under all
circumstances. No doctrine, involving more pernicious consequences, was
ever invented by the wit of man than that any of its provisions can
be suspended during any of the great exigencies of government. Such
a doctrine leads directly to anarchy or despotism; but the theory of
necessity on which it is based is false; for the government, within the
constitution, has all the powers granted to it, which are necessary to
preserve its existence....
“... It could well be said that a country, preserved at the sacrifice
of all the cardinal principles of liberty, is not worth the cost of
preservation.”[727]
This opinion by a Lincoln appointee to the Court was offset in part by
the concurring opinion of Lincoln’s former Secretary of the Treasury.
Chief Justice Chase could conceive of a situation in which Congress
might find such measures “essential to the prosecution of the war
with vigor and success,” and would therefore be entitled under the
Constitution to resort to them. Independent of statutory authorization
the President, however, could not employ such power. He was limited to
executing the measures adopted by Congress.[728]
Some eighty years later, in 1941, martial law was declared in Hawaii.
From that time through the Fall of 1945, the Islands were ruled by
the military. After bitter and protracted litigation, in which the
federal courts in Honolulu were particularly outspoken against the type
of military rule practiced in the Islands, the cases of _Duncan_ v.
_Kahanamoku_ and _White_ v. _Steer_ managed to surmount the obstacle
course to the Supreme Court.[729] Duncan and White were civilians who
had been apprehended during the war and tried and convicted by the
military, the former for assault against a Marine sentry, and the
latter for embezzlement. Both were crimes under the Hawaiian civil
code. Challenging the jurisdiction of the military to try these men,
a lower federal court ordered their release upon petition for habeas
corpus; and on appeal the validity of the District Court order was
sustained by the Supreme Court in an opinion written by Justice Black.
The case turned upon a narrow interpretation of the meaning of “martial
law.” The term did not, Black said, embrace trial of civilians by
military courts. He did leave the door ajar, however, implying that it
is not inconceivable in a situation of dire necessity, that such trial
of civilians by the military might be upheld.
In a concurring opinion, however, Justice Murphy restated the principle
expressed in the _Milligan_ case. Exalting civilian supremacy over the
military, he reiterated the _Milligan_ rule that civilians may not be
tried by the military when the courts are open and functioning. Not
only did he agree with Justice Black that the acts of the military
contravened statutory law, but he also was of the belief they were
proscribed by the due process clause and therefore manifestly
unconstitutional. Unlike the Civil War Justices, however, he suggested
that until the courts were able to resume their functions the military
might retain custody of its prisoners.[730]
_Extra-Constitutional Sources of Emergency Power:_ Perhaps the most
expansive argument for a constitutionally sanctioned, unqualified
emergency power is that developed and expressed by Justice George
Sutherland in a work published in 1919,[731] before his accession
to the bench, and restated in his opinion for the Court in _United
States_ v. _Curtiss-Wright Export Corporation_.[732] In _Constitutional
Power and World Affairs_, he asserted:
“As the highest duty of the nation is self-preservation, the rights
of peace must then be held in subjection to the necessities of war.
This does not result in a suspension of the Constitution, as some
have petulantly suggested, but it may result in a suspension of
constitutional rights of the individual because they conflict with the
paramount powers of war....
“This power is tremendous; it is strictly constitutional; but it breaks
down every barrier so anxiously erected for the protection of liberty,
of property and of life.”[733]
The later Supreme Court opinion only removes the inconsistencies from
these passages, and recognizes the war powers as extra-constitutional
in nature:
“It results that the investment of the federal government with the
powers of external sovereignty did not depend upon the affirmative
grants of the Constitution. The powers to declare and wage war, to
conclude peace, to make treaties, to maintain diplomatic relations
with other sovereignties, if they had never been mentioned in the
Constitution, would have been vested in the federal government as
necessary concomitants of nationality.”[734]
Justice Jackson, dissenting in the Japanese relocation case,
_Korematsu_ v. _United States_,[735] advocated complete judicial
abnegation of any pretended power to review the necessity for emergency
action. Favoring, however, a reversal of the judgment and a “discharge
of the prisoner,” Jackson added that he couldn’t subscribe to the
view that the existence of “reasonable military grounds” for such a
wartime program made it constitutionally valid and subject to judicial
enforcement.[736] The Court cannot
“... require such a commander in such circumstances to act as a
reasonable man; he may be unreasonably cautious and exacting. Perhaps
he should be....
“But if we cannot confine military expedients by the Constitution,
neither would I distort the Constitution to approve all that the
military may deem expedient....
“A military commander may overstep the bounds of constitutionality,
and it is an incident. But if we review and approve, that passing
incident becomes a doctrine of the Constitution ... a judicial
opinion rationalizes such an order to show that it conforms to the
Constitution, or rather rationalizes the Constitution to show that the
Constitution sanctions such an order....”[737]
It is true that the existence of this power in the government in
wartime, and the admitted inability of the Court to restrict it, is “an
inherent threat to liberty.”
“But I would not lead people to rely on this Court for a review that
seems to me wholly delusive. The military reasonableness of these
orders can only be determined by the military superiors. If the people
ever let command of the war power fall into irresponsible hands, the
courts wield no power equal to its restraint. The chief restraint upon
those who command the physical forces of the country, in the future as
in the past, must be their responsibilities to the political judgments
of their contemporaries and to the moral judgments of history.”[738]
Like Machiavelli, Jackson conducts an analysis in simple power terms.
But while Machiavelli suggested it was possible to devise ways to
circumscribe and check the exercise of emergency power by leaders in
a republic, the modern liberal, true to the tradition of Locke, can
conceive of no limits upon the actions of a war government but the
force of public opinion.
_The Constitution as a Flexible Charter_: Although as recently as World
War II all three strains of thought regarding emergency powers of the
Chief Executive during wartime found effective expression in opinions
of individual justices on the Court, the most persistent has been the
attempt to compromise the range of views by positing a Constitution
broad and flexible enough to encompass emergency action responsive to
existing need, as measured by the Court. This has been described by
Professor Corwin as “constitutional relativity.”[739]
The “clear and present danger” doctrine, first enunciated by Justice
Holmes in the _Schenck_ case[740] is an example of constitutional
relativity. Its recent application illustrates what is to be expected
when the Court, having accepted the obligation to determine the
necessity for emergency action, subsequently is led by doubts as to the
adequacy of its tools for measurement to redefine the conditions of
an emergency in such a manner as virtually to evade the problem.[741]
It also points up some of the difficulties in consistently applying
whatever criteria for measurement are developed by the Court.
Schenck had been convicted under the Espionage Act of 1917 for
seeking to obstruct the draft. He had circularized a mailing list
with literature opposing the World War I draft law. Included on the
list were a number of persons in the military service at the time of
receipt of the material. Holmes’ reasoned as follows:
“The question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present
danger that they will bring about the substantive evils that Congress
has a right to prevent. It is a question of proximity and degree....
“It seems to be admitted that if an actual obstruction of the
recruiting service were proved, liability for words that produced that
effect might be enforced.... If the act, ... its tendency and the
intent with which it is done are the same, we perceive no ground for
saying that success alone warrants making the act a crime.”[742]
Schenck remained in jail.
In a subsequent case under the same Act, involving a group of
“radicals” who had disseminated a pamphlet condemning United States
intervention in Russia and threatening to thwart that intervention
by causing trouble on the home front, calling upon munitions workers
to quit their jobs, and advocating revolution, Holmes dissented from
a decision upholding their conviction.[743] Rejecting as fallacious
the conclusion of his colleagues that the surreptitious publishing of
a “silly leaflet by an unknown man, without more, would present any
immediate danger that its opinions would hinder the success of the
government arms or have any appreciable tendency to do so,” Holmes
maintained:
“An intent to prevent interference with the revolution in Russia might
have been satisfied without any hindrance to carrying on the war in
which we were engaged....
“Even if I am technically wrong and enough can be squeezed from these
poor and puny anonymities to turn the color of legal litmus paper;
I will add, even if what I think the necessary intent were shown;
the most nominal punishment seems to me all that possibly could be
inflicted, unless the defendants are to be made to suffer not for what
the indictment alleges but for the creed that they avow....”[744]
The significance of this latter opinion would appear to derive from the
fact that by employing the descriptive adjectives “silly” and “puny”
Holmes transformed his clear and present danger doctrine into a vehicle
for opposing conviction of persons for what would seem, on the face of
the record, possibly a more aggravated offense than Schenck’s. Thus the
“clear and present danger” test in application may become entangled
with the sentiment of the person applying it. Secondly, it is important
to note the appraisal which Holmes made as to the military significance
of American intervention in Russia. In his estimation, had it been
thwarted our war effort would not have been effected. As a dissenter
Holmes, with the support of Brandeis, persisted in applying the “clear
and present danger” test in a number of later decisions, notably the
_Gitlow_ case and the _Whitney_ case.[745]
In the post-World War II era, however, this test definitely appears
to have been radically altered, if not conclusively rejected. Thus in
_Dennis_ v. _United States_, sustaining the conviction under the Smith
Act[746] of eleven top Communist Party leaders, Judge Learned Hand,
presiding over the U.S. Court of Appeals for the Second Circuit, stated:
“The phrase, ‘clear and present danger,’ has come to be used as a
shorthand statement of those among such mixed or compounded utterances
which the Amendment does not protect.... It is a way to describe a
penumbra of occasions, even the outskirts of which are indefinable,
but within which, as is so often the case, the courts must find their
way as they can. In each case they must ask whether the gravity of the
‘evil,’ discounted by its improbability, justified such invasion of
free speech as is necessary to avoid the danger....
“... When does the conspiracy become a ‘present danger’? The jury
has found that the conspirators will strike as soon as success seems
possible, and obviously, no one in his senses would strike sooner.
[Meanwhile, the Communist leaders claim the right to continue their
activities.] That position presupposes that the Amendment assures
them freedom for all preparatory steps and in the end, the choice of
initiative, dependent upon the moment when they believe us, who must
wait the blow, to be the worst prepared to receive it.”[747]
By substituting “probability” for “imminence” in time, Hand
substantially changed the clear and present danger doctrine. On appeal
the Supreme Court, with certain modifications, in effect affirmed
Hand’s redefinition.[748]
In connection with these examples of judicial application of the
“clear and present danger” doctrine it is equally pertinent to set
forth Chief Justice Hughes’ famous dictum that “the war power of the
Federal Government ... is a power to wage war successfully,”[749] and
to refer to the decisions arising out of World War II Japanese curfew
and relocation[750] and rent control.[751] The Court’s approach is
epitomized by Black’s reasoning in his majority opinion in _Korematsu_
v. _United States_:
“But when under conditions of modern warfare our shores are threatened
by hostile forces, the power to protect must be commensurate with the
threatened danger....
“... hardships are a part of war, and war is an aggregation of
hardships. All citizens alike, both in and out of uniform, feel the
impact of war in greater or lesser measure.”[752]
Whether the Court is competent to fulfill the role of protector of the
Constitution in wartime is highly debatable. Is the Court capable of
performing the task, even if time were available? Obviously not. It
does not have the information requisite for determination of current
needs and the adequacy and appropriateness of government actions to
meet them. It cannot be presumed to possess the fund of knowledge
essential for appraising issues largely military in nature, and,
consequently upon the advent of actual hostilities, it invariably
displays a reluctance to countermand the executive and legislative
branches, no matter how extreme their action. Furthermore, the
judicial process with its haphazard accretion of cases, the manifest
capacity of government to make cases moot, or failure to prosecute,
frequently makes it impossible for the Court even to review significant
controversies produced by action of the political departments. For
every Milligan or Duncan who manages to bring his case to the Court
(usually for post mortem relief), there are hundreds who submit to
abusive governmental action without ever contesting the validity
thereof. This alone affords adequate demonstration that the court
is ineffective in maintaining constitutionalism in time of war. For
fulfillment of this objective vigilance on the part of Congress and the
Executive no less than the electorate is imperative.
In a democracy the function of defending liberty cannot safely be
relegated to any single institution.
A MORE EFFECTIVE EMERGENCY ROLE FOR THE JUDICIARY
Judicial oversight of government emergency action has suffered from
concentration upon the question of the existence of power. In the
context of emergency the Court can best preserve for itself and the
Federal judicial system a meaningful role in preserving constitutional
processes if it is invited to measure the consistency of executive
action both to executive standards and congressional grants of
power,[753] rather than to rhetorically assert a right to admonish
a government--Congress and President, armed, mobilized and engaged
in war, that the measures which it employs for protection of the
nation are unconstitutional. In testing the vires of administrative
action the courts are acting in an area vital to the preservation of
responsible government, and in which cooperative legislative-executive
validation of judicially disapproved action represents the essence of
constitutionalism rather than constitutional immorality.[754]
THE STEEL SEIZURE CASES[755]
When, on April 8, 1952, President Truman issued Executive Order 10340
directing seizure of the steel industry,[756] he set in motion a train
of events which were to culminate in an historic series of concurring
opinions which may herald a significant change in emphasis on the part
of the Court. The effect of the majority and concurring opinions in
this case is effectively to curb and subject to Congressional sanction
a kind of “homemade prerogative”[757] which the President had asserted,
and to reassert the primacy of the Court’s role as a balancing agent in
the constitutional system. Four days before issuance of the Executive
Order, the C.I.O. United Steelworkers of America had given notice
of a nation-wide strike to begin on April 9.[758] Alleging in his
Order that such a strike would undermine American attempts to fulfill
international responsibilities, to maintain a steady supply of war
materials to the fighting force in Korea, and to maintain the domestic
economy of the nation, the President invoked “the authority vested in
me by the Constitution and laws of the United States, and as President
of the United States and Commander-in-Chief of the armed forces of the
United States,” as his legal justification for directing the Secretary
of Commerce “to take possession of” the steel plants.
On April 9th, Judge Alexander Holtzoff in the United States District
Court for the District of Columbia rejected the application of
Youngstown Sheet & Tube Co., _et al._, for an injunction and
declaratory judgment protecting the mills from seizure by the Secretary
of Commerce.[759] The District Court stated two grounds in support of
its ruling. (1) While it might technically run against Secretary of
Commerce Sawyer, an injunction “actually and in essence ... would be
an injunction against the President.” (2) The steel companies had not
shown irreparable harm.[760]
Three weeks later the steel companies instituted new proceedings
before Judge David A. Pine of the District Court, District of
Columbia.[761] Injunctive relief was now sought on grounds that the
seizure of the mills, not having been authorized by statute, was
unconstitutional.[762] The government’s presentation was completely
prejudiced by the insistence of the Assistant Attorney General that the
President’s actions be upheld on grounds of his “inherent” emergency
powers.[763]
The Court: “And is it ... your view that the powers of the Government
are limited by and enumerated in the Constitution of the United States?”
Mr. Baldridge: “That is true, Your Honor, with respect to legislative
powers.”
The Court: “But it is not true, you say, as to the Executive?”
Mr. Baldridge: “No.”
The Court: “So, when the sovereign people adopted the Constitution, it
enumerated the powers set up in the Constitution but limited the powers
of the Congress and limited the powers of the judiciary, but it did not
limit the powers of the Executive. Is that what you say?”
Mr. Baldridge: “That is the way we read Article II of the
Constitution.”[764]
Judge Pine ruled that the President’s action was unsupported by law and
granted the injunction.
While the government’s claim to an inherent emergency power may
have been extreme, it was a natural culmination of the trend of
judicial and scholarly interpretation of emergency powers through the
Second World War. Two authoritative sources existed, each providing
plausible underpinning for executive assertion of inherent emergency
powers--unlimited by Constitution, Congress or Court. The first was
judicial language such as the Sutherland dicta in _United States_ v.
_Curtiss-Wright_.[765] The second embraced commentaries by persons
generally considered qualified to write exegeses on the Constitution,
wherein the previously unchallenged exercise of emergency power by
the President has been viewed as controlling precedent legitimizing
the acquisition of such power. Thus, as of 1952, in the minds of
many, the President had built up imposing historical precedent for
the exercise of executive discretion adequate to accomplish whatever
purposes appeared to him essential to counter an emergency.[766] In
many instances, however, such action has frequently violated explicit
provisions of the Constitution or of congressional statutes.[767]
Justice Frankfurter indicated his acceptance of the validity of this
line of reasoning when in his concurring opinion in the _Steel Seizure_
cases he asserted that “... a systematic, unbroken, executive practice,
long pursued to the knowledge of the Congress and never before
questioned, engaged in by Presidents who have also sworn to uphold the
Constitution, making as it were such exercise of power part of the
structure of our government, may be treated as a gloss on ‘executive
power’ vested in the President by Sec. 1 of Ar. II.”[768]
By the ruling sustained, however, the District Court and the majority
of the Supreme Court lent color of authority to the steel companies’
contention that “There could be no more dangerous principle--nor one
more foreign to the Constitution--than a rule that past illegality
can through some legerdemain serve as authority to legalize present
illegality.”[769] Justice Jackson disposed of the Solicitor General’s
contention that although Congress had not provided for seizure of
the steel mills, the practice of past Presidents did authorize it,
by stating that while it was not surprising that the Government
should seek support for nebulous, inherent powers in the customs and
unadjudicated claims of preceding administrations, “a judge cannot
accept [executive self-assertions of power] ... as authority in
answering a constitutional question.... Prudence has counseled that
actual reliance on such nebulous claims stop short of provoking a
judicial test.”[770]
The government went into the Court of Appeals, District of Columbia
Circuit, seeking an order staying the injunction pending submission
of a petition for _certiorari_ to the Supreme Court.[771] The order
was granted[772] on May 2, and the following day the Supreme Court
granted _certiorari_, staying the District Court order pending final
disposition of the cases.[773]
Avoiding the bold and indiscreet assertion of undefined inherent powers
which had so prejudiced the government’s case in the District Court,
Solicitor General Philip B. Perlman on appeal to the Supreme Court
submitted a brief devoted to establishing the existence of an emergency
of sufficient magnitude to warrant extraordinary action on the part
of the executive.[774] As assurance of the President’s willingness
to subject himself to the desires of Congress, the brief cited his
communication to the Senate of April 21, 1952, offering to adhere to
any positive line of action prescribed by Congress.[775] The remainder
of the brief enumerates the historical and judicial precedent affording
a legal justification of the steel seizure[776] and concludes with an
argument to the effect that the proper remedy available to the steel
companies was suit for just compensation in the Court of Claims.[777]
In the light of the facts of the case counsel for the steel companies
could most efficiently sustain their contentions by emphasizing the
impropriety of executive seizure in plain opposition to the obvious
intent of Congress expressed in a statute anticipating such emergency
and explicitly providing a different solution. They avoided challenging
the constitutionality in the absence of a statute of an emergency
power to seize private productive facilities. In fact, the steel
companies openly conceded the existence of broad emergency power.
They made it clear that their view “does not mean that the Government
is powerless to deal with the threat to steel production which arises
from the current labor dispute.” If necessary “... Congress can
legislate appropriately and specifically to protect the nation from
threatened disaster.”[778] The determining factor in assessing the
legitimacy of government action in this case, however, was the nature
of the legislative-executive relationship involved. Presidential
action, the companies argued, could be arranged on a “spectrum” of
legitimacy[779]--at one end, cooperative executive-legislative action.
Congress and President might unite in the execution of a program or
Congress subsequently might ratify a prior exercise of power by the
executive.[780] At the other end, as in this case, the presidential
action violates a clear congressional intent.[781]
Here “... the statutory processes have been ignored ...,”[782] and
an early but eminent constitutional precedent was cited as squarely
meeting the instant situation. An Act passed by Congress in 1799
suspended commercial intercourse between the United States and
France during the undeclared naval war between the two nations. The
act provided that no American vessel should be permitted to proceed
to any French port under penalty of forfeiture, and authorized the
seizure of all American ships bound _to_ any French ports. President
Adams instructed commanders of United States armed vessels to
seize all American ships bound _to_ or _from_ French ports. Acting
under these presidential instructions, Captain Little stopped and
seized on the high seas a vessel bound _from_ a French port. The
Court through Chief Justice John Marshall held that Congress had
prescribed by its legislation the manner of which seizures were to
be carried into execution and had excluded the seizure of any vessel
bound _from_ rather than _to_ a French port. And even though the
executive construction was calculated to increase the effectiveness
of the legislation, the executive had no right to expand the law as
enacted.[783]
Justice Black for the majority of the Court rejected the notion that
unchallenged emergency action by former Presidents provided any solid
legal precedent for Truman’s seizure of the steel mills.[784] “The
President’s power to issue the order must stem either from an act of
Congress or from the Constitution itself.”[785] The seizure order could
not be sustained by any of the constitutional grants of executive power
to the President.[786] The President, rather than basing his order
upon a specific statute, had chosen to direct “that a presidential
policy be executed in a manner prescribed by the President.”[787] Black
did not question “the power of Congress to adopt such public policies
as those proclaimed by the order.” The action of the President in
initiating such a policy was, however, an unconstitutional arrogation
of “lawmaking power” to the executive.[788]
Justice Black avoided citation of judicial precedent in that portion of
his opinion which invalidated the President’s action. The reason for
this is clear, and has been stated succinctly by Professor Edward S.
Corwin in comments upon the _Steel Seizure_ cases:
“The doctrine of the case, as stated in Justice Black’s opinion of the
Court, while purporting to stem from the principle of separation of
powers, is a purely arbitrary construction created out of hand for the
purpose of disposing of this particular case, and is altogether devoid
of historical verification.”[789]
Each of the six justices who concurred in Black’s majority opinion
in the _Steel Seizure_ cases stated his reasons in full.[790] By
far the most lucid, best reasoned, and most adequate of any of
the opinions appears to be that of Justice Jackson. He avoided
the oversimplification of issues which weakens Black’s opinion.
Filling the theoretical lacunae which Black in his hasty advance
to the target (invalidation of Truman’s action) left in his wake,
Jackson recognized that the real issue of the case was not that the
President had taken emergency action unsupported by a declaration
of legislative policy, but that his measures had been “incompatible
with the expressed or implied will of Congress.”[791] Justice Jackson
founded his opinion upon the concept of our government as a “balanced
power structure.”[792] The Constitution disperses power among the
branches of government, but contemplates that practice will achieve
the integration essential to effective government. “Interdependence”
rather than “separateness” is the relationship that must exist. The
powers of a President in time of emergency are not, as the Government
had argued, comprehensive and undefined; neither are they fixed,
“but fluctuate, depending upon their disjunction or conjunction
with those of Congress.”[793] Jackson enumerates alternatives of
Presidential-Congressional relationships which may determine the extent
of executive power:
“1. When the President acts pursuant to an express or implied
authorization of Congress, his authority is at its maximum, for it
includes all that he possesses in his own right plus all that Congress
can delegate....
“2. When the President acts in absence of either a congressional grant
or denial of authority, he can only rely upon his own independent
powers....
“3. When the President takes measures incompatible with the expressed
or implied will of Congress, his power is at its lowest ebb, for
then he can rely only upon his own constitutional powers minus any
constitutional powers of Congress over the matter....”[794]
The seizure of the steel mills by President Truman in face of a
contrary congressional policy fell into the third of these categories
and left presidential power “most vulnerable to attack and in the
least favorable of possible constitutional postures.” The Court could
sustain the President’s action “only by holding that seizure of such
strike-bound industries is within his domain and beyond control by
Congress.”[795]
Also concurring, Mr. Justice Clark relied on the precedent of
_Little_ v. _Barreme_.[796] Although “the Constitution does grant to
the President extensive authority in times of grave and imperative
emergency”[797] and in the absence of Congressional action “the
President’s independent power to act depends upon the gravity of
the situation confronting the nation,”[798] the lesson of _Little_
v. _Barreme_ and sound constitutional exposition demand that “where
Congress has laid down specific procedures to deal with the type of
crisis confronting the President, he must follow those procedures in
meeting the crisis....”[799]
In his dissenting opinion Chief Justice Vinson maintained that the
majority justices had each assumed the unarticulated major premise
that the emergency was not of sufficient gravity to warrant the
mode of action adopted by the President. The Chief Justice chided
his colleagues for not weighing the magnitude of the emergency
accurately.[800] But this seems hardly a warrantable criticism of a
group of opinions which manifested little concern with substantive
constitutional limitations upon executive emergency action, but rather
emphasized the necessity for compliance with a congressional program
anticipating such an emergency and prescribing the mode of response to
it.
THE STEEL STRIKE OF 1959
In 1959 the nation’s great steel industry once again occupied the
center of a dispute which had far reaching consequences.
The dispute was that between representatives of the twelve largest
steel producers in the United States and representatives of the
United Steelworkers of America, the union representing most of the
non-supervisory employees employed in the steel industry.
As the time for negotiating new contracts between the union and the
steel companies drew near the deadline date of June 30, 1959, it
became evident to representatives of both labor and management that
no agreement for new contracts would be reached. Shortly before the
June 30th deadline the parties agreed at the request of President
Eisenhower, to extend the old agreements for two weeks. By July 15,
there was still no settlement, and a strike by 500,000 steelworkers
began immediately.
From July until early November the steelworkers refused to return
to their jobs. Although negotiations continued between union and
management representatives no settlement of the dispute was reached.
The President sought during the 116 day old strike to have the strike
settled without recourse to the Labor-Management Relations Act
(Taft-Hartley) of 1947. On September 8, President Eisenhower wrote a
letter to the United Steelworkers of America and to the steel companies
in which he expressed disappointment that so little progress toward
settlement of the steel dispute had been made, and he urged the parties
to act expeditiously to reach agreement.[801]
As the impact of the strike was felt in an ever-widening sector of the
American economy, the President of the United States took the first
step under the Labor Management Relations Act of 1947[802] by issuing
Executive Order No. 10843 pursuant to section 206 of the Act.[803] He
appointed a board of inquiry to inquire into the issues involved in the
dispute and to make a written report to him. In the Executive Order,
the President expressed the opinion that the strike, if permitted to
continue would imperil the national health and safety. In his statement
explaining his issuance of the Executive Order, the President pointed
to the “shutting off” of practically all new supplies of steel, the
unemployment of hundreds of thousands of employees in steel and related
industries, and the imminent threat to the economic health of the
nation if production was not quickly resumed.
The Board of Inquiry submitted its written report to the President
on October 19[804] setting forth a summary of the negotiations up to
October 19 and the issues in dispute between the parties.[805] The
Board concluded that “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.”[806]
Upon receiving the report, the President directed the Attorney General
to petition any district court having jurisdiction over the parties to
enjoin the continuance of the strike and to order such other relief as
might be necessary or appropriate.
On October 20, 1959, the Attorney General filed a petition in the
United States District Court for the Western District of Pennsylvania,
seeking an injunction against the union and the steel companies
pursuant to section 208 of the Taft-Hartley Act.[807] The Government’s
petition described the requisite statutory steps which had been taken
by the President, and alleged that prolongation of the widespread
strike in the steel industry would imperil the health and safety of the
country. In summary form the petition stated some of the consequences
of the strike on employment, both in the steel industry and many other
areas of the economy, on the availability of essential steel products,
and on vital national defense projects.[808] The strike had shut down
approximately 85 percent of the steel producing capacity of the United
States. More than 765,000 persons had been made idle by the strike.
If it were allowed to continue, strike-caused unemployment would have
reached three million by January 1, 1960.
A considerable amount of evidence was presented concerning the effect
of the strike on the national defense program. The District Court found
that certain steel products needed in connection with some aspects of
the defense program were unavailable because of the steel strike.
Particular stress was put on the impact of the tie-up on the output
of missiles, nuclear submarines and advanced types of rocket engines.
The Defense Department reported that two plants supplying component’s
for the Polaris missile had been forced to stop production for lack
of alloy steel and four others had given notice of the need to do
the same within a few days.[809] Moreover, the top priority Project
Mercury, an essential part of the nation’s space program was being
injured. Exported steel products, vital to the support of the nation’s
overseas bases, for NATO, and similar collective security groups would
be cut off; continuance of the strike would impair these programs, thus
imperiling the national safety.
On these facts, the District Court made the conclusory finding that
the strike imperiled the national health and safety and issued an
injunction. The court rejected the union’s argument that the statute is
unconstitutional because it authorizes the court to issue an injunction
which does not enforce a pre-existing legal obligation, but merely
creates such an obligation. The court did not pass on the union’s
further argument that it should, in the exercise of its equitable
discretion, refuse to issue an injunction in this case.
The union promptly filed an appeal and moved the District Court for a
brief stay to enable the Union to apply to Judge Staley of the Court of
Appeals for the Third Circuit for a stay pending appeal.
The Court of Appeals affirmed the judgment of the District Court.
Chief Judge Biggs, writing for the majority, analyzed and rejected the
union’s contention that there was no “case or controversy” before the
federal court which it could adjudicate in the sense required by the
Constitution. Turning to the critical findings of the District Court
dealing with the impact of the steel strike, the majority concluded,
after a detailed review of the entire record, that the findings of the
lower court were not clearly erroneous. Significantly, the majority
noted that:
“We cannot accept the Union’s argument in this respect. If our
conclusion is correct that there is sufficient evidence in the record
of the present or future danger to national health or safety, we
conclude that the danger is great enough and calls for a remedy as
sweeping as the law will permit. Whether the remedy provided by the
Labor-Management Relations Act is sufficient to accomplish a cessation
of labor strife is a question not for this court but for Congress. We
conclude, therefore, that the court below did not abuse its discretion
in granting the relief which the United States prayed for.”[810]
The Supreme Court acted with unusual speed. The Court set Tuesday,
November 3, 1959 at 11 a.m. as the time for oral argument. All briefs
had to be on file by noon, Monday, November 2, 1959. The injunction
issued by the U. S. District Court for the Western District of
Pennsylvania on October 21, 1959 as modified by the United States
Court of Appeals for the Third Circuit on October 22, 1959, was stayed
pending the issuance of the judgment of Supreme Court. The petition for
_certiorari_, was filed by the union counsel at 1 p.m. The Government’s
response, asking the court to deny review and thus let the injunction
stand, arrived about 4 p.m.
Half an hour later the nine Justices met in conference, the session
lasting 40 minutes. Reporters learned of the unscheduled meeting from
the ringing of gongs that call the Justices to all formal conferences.
Out of the session came an order in the case entitled _United Steel
Workers of America_, Petitioner v. _United States_, _et al._[811]
The Supreme Court’s opinion was brief. In the _Per Curiam_ Opinion, the
Court stated its acceptance of, and concurrence in, the findings of the
lower Federal Courts which had adjudicated the case:
“... Petitioner here contests the findings that the continuation of
the strike would imperil the national health and safety. The parties
dispute the meaning of the statutory term ‘national health’; the
Government insists that the term comprehends the country’s general
well-being, its economic health; petitioner urges that simply the
physical health of the citizenry is meant. We need not resolve this
question, for we think the judgment ... is amply supported on the
ground that the strike imperils the national safety. Here we rely upon
the evidence of the strike’s effect on specific defense projects; we
need not pass on the Government’s contention that ‘national safety’ in
this context should be given a broader construction and application.
“... The statute was designed to provide a public remedy in times of
emergency; we cannot construe it to require that the United States
either formulate a reorganization of the affected industry to satisfy
its defense needs without the complete reopening of closed facilities,
or demonstrate in court the unfeasibility of such a reorganization.
There is no room in the statute for this requirement which the
petitioner seeks to impose on the Government.”[812]
The steel strike was finally settled on January 4, 1960, following
all-night negotiations between the Vice-President, the Secretary of
Labor, representatives of the steel companies and representatives
of the steel companies and representatives of the steelworker’s
union. Vice-President Nixon and Secretary of Labor Mitchell, acting
under instructions from President Eisenhower, had been conducting
negotiations for several weeks with the parties to the dispute.
While all parties involved were gratified to have this long and costly
strike ended, the method of settlement does not confirm the efficacy of
the emergency provision of the Taft-Hartley Act. Indeed, it is further
confirmation of the fact that the American approach to emergency powers
has imposed upon successive executives, not only the incentive, but
the absolute need to resort to extra-statutory means for settling
emergencies.
CHAPTER XI CONCLUSIONS
The doctrine of constitutional dictatorship is inappropriate for
analysis of the problem of democratic response to emergency.
Judicial review of a chief executive’s finding that an emergency
exists amounts to involvement of Supreme Court Justices in a genre
of decision-making which should more properly be performed by the
President and Congress, although the 1959 Steel Seizure decision
reveals the effective role which the Supreme Court may play in holding
the President to the forms of emergency action prescribed by the
Congress, if the Congress has so prescribed them.
The recurrent trouble which the nation has confronted in taking timely
and effective emergency action at the national level stems from the
existence on the statute books of a confusing array of provisions for
the declaration of various kinds of emergency, and the excessively
precise definition of the techniques which must be employed in coping
with the emergency. This invites efforts at evasion of statutory
limitations as in the instance of the 1952 steel strike, or requires
recurrent special legislation dealing with successive particularized
emergencies. Also, in forewarning the private parties in dispute, in
the case of a strike, of the precise time-table and program of action
to which the executive must adhere, it may lessen their incentive to
settle the dispute, for the course of action prescribed by statute may,
depending upon the situation, strengthen the bargaining position of one
of the disputants.
The recent use of the concurrent resolution in Congress provides a key
to the means for equipping the President with the broad discretion
he should have to identify conditions warranting emergency action,
and to select the appropriate tools to deal with an emergency, while
simultaneously keeping him under Congressional surveillance and control.
We propose a generic statute to empower the President to proclaim a
national or regional emergency. Under such a proclamation the President
may issue rules and regulations which have the force of law. A
proclamation of emergency would be placed before the Congress within
twenty-four hours of its issuance. If Congress were not in session,
it would be called into session within five days from the time of the
declaration of emergency. The proclamation of emergency would stand
unless revoked by concurrent resolution by both Houses of Congress
within five days of Congress’ coming into special session.
The rules and regulations issued under the proclamation would be
similarly subject to revocation by concurrent resolution and Congress
should possess the item veto in this respect; i.e., it may revoke one
rule, while permitting others to stand. An emergency proclamation and
regulations issued under it, would automatically expire after thirty
days, but would be subject to reissuance by the President, provided
the Congress concurred. Congress, upon the issuance of an emergency
proclamation would establish a scrutiny committee on emergency powers,
patterned after the Joint Committee on Atomic Energy. Congress would
maintain continuous scrutiny of the administration of powers exercised
under the proclamation. The Committee’s primary responsibility would
be to keep Congress sufficiently advised as to whether powers had been
responsibly administered.
There is nothing novel about this proposal. The British have operated
under similar statutes in peace and war for fifty years with a record
of great success in two respects:
(1) They reacted efficiently to emergencies ranging from a dock strike,
and a general strike to two world wars;
(2) Powers during an emergency have been responsibly administered under
Parliamentary observation and control.
Under this plan, the Executive can act, fully cloaked with legitimacy
to respond to emergencies ranging from a hydrogen attack to a capital
transit strike, and might employ techniques ranging from replacement of
state and local administrations which have been destroyed by hydrogen
bombings, to compelling motor-car men to return to work.
Such a statute exemplifies our commitment to democratic government and
democratic theory in a number of ways. It provides legislative sanction
for executive action and precludes the coming into being of a situation
which in the words of Locke, “the executive has to act in the absence
of law,” and it gives the President sufficiently broad and generic
power. As contrasted with the unrealistically detailed and restrictive
emergency provisions of existing statues, the President is empowered to
deal with an emergency without the need to resort to the use of Locke’s
prerogative: to act under the law, in the absence of the law, or even
contrary to the law. In effect it renders unnecessary and unlikely that
a future President will define the alternatives which Lincoln once
perceived: to act under the Constitution and lose the Union, or to save
the Union by transgressing against the Constitution.
Some persons will fear that a President might take action unnecessarily
under such a proclamation of emergency. The answer to this is
three-fold: first, it is in the nature of our political system that we
must repose a certain amount of faith in the basic integrity and wisdom
of the Chief Executive; secondly, the President must operate within
carefully prescribed procedural limitations; and third, the President
has only today to declare a nation-wide state of martial law in order
to equip himself with vast power to take emergency action virtually
free from concurring legislative participation.
The vital lesson which emerges from this study is that it is
possible to equip government to cope with the crises of Twentieth
Century existence without surrendering the two vital principles of
constitutionalism that have marked the course of American political
development: the maintenance of legal limits to arbitrary power, and
political responsibility of the government to the governed.
REFERENCES
CHAPTER I
[1] Stanford Research Institute, _Impact of Air Attack in World War II;
Selected Data for Civil Defense Planning_, especially Division II, vol.
1, “Economic Effects:--Germany” (Federal Civil Defense Administration,
1953).
[2] _Id._, Division III, vols. 1 and 2, “Social Organization, Behavior,
and Morale Under Stress of Bombing,” and Irving L. Janis, _Air War and
Emotional Stress_ (McGraw-Hill, 1951, for the Rand Corporation).
[3] Robert Connery, _The Navy and Industrial Mobilization in World War
II_ (Princeton University Press, 1951) p. 6.
[4] Exemplified by Justice Davis’s decision for the majority of the
Court in _Ex parte Milligan_, 4 Wall. 2, 120-21, 126 (1866):
“The Constitution of the United States is a law for rulers and
people, equally in war and in peace, and covers with the shield
of its protection all classes of men, at all times, and under all
circumstances. No doctrine, involving more pernicious consequences was
ever invented by the wit of man than that any of its provisions can
be suspended during any of the great exigencies of government. Such
a doctrine leads directly to anarchy or despotism; but the theory of
necessity on which it is based is false; for the government, within the
constitution, has all the powers granted to it, which are necessary to
preserve its existence....
“... It could well be said that a country, preserved at the sacrifice
of all the cardinal principles of liberty, is not worth the cost of
preservation.”
[5] Justice Sutherland for the Court in the 1936 case of _United States
v. Curtiss-Wright Export Corporation_, 299 U. S. 304, 316-18:
“And since the states severally never possessed international powers,
such powers could not have been carved from the mass of state powers
but obviously were transmitted to the United States from some other
source....
“It results that the investment of the federal government with the
powers of external sovereignty did not depend upon the affirmative
grants of the Constitution. The powers to declare and wage war, to
conclude peace, to make treaties, to maintain diplomatic relations
with other sovereignties, if they had never been mentioned in the
Constitution, would have been vested in the federal government as
necessary concomitants of nationality.”
[6] Justice Jackson, dissenting in the Japanese relocation case,
_Korematsu_ v. _United States_, 323 U. S. 214, 248 (1944) admonished
the Court as follows:
“But I would not lead people to rely on this Court for a review that
seems to me wholly delusive. The military reasonableness of these
orders can only be determined by the military superiors. If the people
ever let command of the war power fall in irresponsible hands, the
courts wield no power equal to its restraint. The chief restraint upon
those who command the physical forces of the country in the future, as
in the past, must be their responsibilities to the political judgments
of their contemporaries and to the moral judgments of history.”
[7] The words are, of course, those of John Locke, _Of Civil
Government_, Bk. II, Ch. XIV.
The studies referred to include: Edward S. Corwin, _The President:
Office and Powers_ (New York: New York University Press, 3rd ed.,
1948); and _Total War and the Constitution_ (New York: Knopf, 1947);
Clarence Berdahl, _War Powers of the Executive in the United States_,
(Urbana: University of Illinois Press, 1921); Clinton L. Rossiter,
_Constitutional Dictatorship_ (Princeton: Princeton University Press,
1948) and _The Supreme Court and the Commander in Chief_ (Ithaca:
Cornell University Press, 1951); Wilfred E. Binkley, _President and
Congress_ (New York: Knopf, 1947); Bennett M. Rich, _The President
and Civil Disorder_ (Washington, D. C.: Brookings, 1941); Louis W.
Koenig, _The Presidency and the Crisis_ (New York: King’s Crown Press,
1944); John W. Burgess, Ch. XXVIII, vol. 2, _The Civil War and the
Constitution_ (New York: Scribners, 1901); James Hart, _The Ordinance
Making Powers of the President of the United States_ (Baltimore: Johns
Hopkins Press, 1925); James G. Randall, _Constitutional Problems Under
Lincoln_, rev. ed. (Urbana: University of Illinois Press, 1951); and
a recent article by Albert L. Sturm, “Emergencies and the President,”
11 _Journal of Politics_, 121, 1949, in which he says, “Lincoln’s
precedents have afforded warrant for his aggressive successors to
meet extraordinary needs with extraordinary remedies, despite their
doubtful constitutionality.” Perhaps as broad a claim to an executive
prerogative as has been made in the United States is that which Lucius
Wilmerding, Jr., bases upon his study of _The Spending Power_ (New
Haven: Yale University Press, 1943): “There are certain circumstances
which constitute a law of necessity and self-preservation and which
render the _salus populi_ supreme over the written law. The officer who
is called to act upon this superior ground does indeed risk himself
on the justice of the controlling powers of the Constitution, but his
station makes it his duty to incur that risk.” p. 12.
[8] Edward S. Corwin strongly emphasizes that incident in his _The
President: Office and Powers_ (New York: New York University Press, 3rd
ed., 1948), pp. 303-6.
[9] This is the doctrine which would seem to emerge from _Youngstown
Sheet and Tube Co. v. Sawyer_, 343 U. S. 579 (1952), in which the Court
rejected contentions on behalf of President Truman that he enjoyed
an “inherent” emergency power to seize private industry in time of
emergency occasioned by work stoppages.
[10] This study should not be interpreted as an effort to catalog
exhaustively _existing_ delegations of emergency powers to the
President. Statutes of the era 1933 to 1955 are analyzed without regard
to their present status as expired or in force.