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

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 [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.