Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

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.