Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

Acquisition of Information by the Government

Examined herein are statutes requiring private persons or groups to report their activities to government agencies, or compelling them to testify before such agencies; and providing for the conduct or study of experiments by government agencies, including congressional committees, for the purpose of obtaining certain information. Other measures provide for a variety of investigations, inventories, audits, etc., to be conducted by government agencies and congressional committees, and intelligence.

Compulsory Reporting:[499] Compulsory reporting on an occasional or periodic basis, it is generally assumed, constitutes an effective enforcement device. Thus to aid the President in effectively exercising the powers granted therein, the Bank Conservation Act of 1933[500] provided that he might require specific, detailed, and confidential information to be given under oath by any person then engaged in the banking business. The President could require the production of private papers, letters, contracts, books of account or other papers in the custody of the person required to produce them. Not until a very detailed and thorough examination of the information sought had been completed, could an accurate report be prepared in compliance with the Act.[501] The National Industrial Recovery Act permitted the President to impose such conditions (including requirements for the making of reports, the keeping of records and the keeping of accounts) for the protection of consumers, competitors, employees, and others, and in furtherance of the public interest as he saw fit, as a condition of approval of codes of fair competition.[502] Another section of the Act required trade or industrial associations, if they were to receive the benefit of exemption from antitrust prosecution, to file a statement with the President in accordance with regulations promulgated by the Chief Executive.[503] The Securities Exchange Act of 1934 similarly required periodical reporting[504] as did the 1935 enactment directed at preventing the interstate shipment of contraband oil.[505]

The first Neutrality Act imposed upon all persons required to register with the National Munitions Control Board an obligation to maintain permanent records of all arms, ammunition and implements of war manufactured for importation and exportation under the rules prescribed by the Board.[506] The requirement was continued in the 1937 Amendment which designated the Secretary of State (Chairman of the N.M.C.B. under the old and the amended Act) as recipient of the information to be submitted.[507] The Foreign Agents Registration Act of 1938 (as amended in April 1942) not only required the filing of registration statements by agents of foreign powers, but compelled each registered agent to keep and preserve books of account and other records which he was required to disclose under regulations prescribed by the Attorney General.[508]

As to procurement statutes, Congress, in connection with a 1934 enactment directed against excessive profit-making or collusive bidding in connection with naval construction contracts, required contractors to agree, as a condition of receiving a navy contract, to submit reports which would show conformance or non-conformance with the provisions of the Act.[509] The Second War Powers Act of 1942 followed up the grant of power to exact priorities with a section entitling the President to obtain a wide variety of information from any persons holding defense contracts. Contractors were required to keep accurate records in readiness for whatever accounting the President might eventually request.[510]

Authorization for the Conduct or Study of Experiments: The Tennessee Valley Authority Act authorized the T.V.A. to establish the physical plants necessary to undertake experiments for the production of nitrogen products for military and agricultural uses. Such experiments were to emphasize both economy and high standards of efficiency.[511] A 1938 statute authorizing the construction of naval vessels included provision for the construction of experimental vessels and the construction of a rigid airship of American design and American construction.[512] Implementing the latter, appropriations were authorized for the purpose of rotary-wing and other aircraft research, development, procurement, experimentation, and operation for service testing.[513]

The National Science Foundation was established in 1950 as an independent agency, but within the executive branch of government.[514] Functions of this Foundation include promotion of basic research and education in the sciences, initiation and support of basic scientific research, initiation and support at the request of the Secretary of Defense of specific scientific research activities in connection with matters relating to the national defense, evaluation of scientific research programs undertaken by agencies of the federal government, and correlation of the Foundation’s work with that of private and public research groups or individuals.[515] The functions enumerated do not exhaust the total of those assigned to the above mentioned agency.

In 1952 Congress authorized construction of aeronautical research facilities by the National Advisory Committee for Aeronautics. These facilities were to be used for the effective prosecution of aeronautical research. The Committee could expand certain of its experimental facilities especially since one of the purposes of the Act was to promote the national defense.[516] A similar kind of statute enacted in 1953 created an Advisory Committee on Weather Control. The function of this Committee was to make a complete study and evaluation of public and private experiments in weather control for the purpose of determining the extent to which the United States should experiment with, or engage in, or regulate activities designed to control weather conditions.[517] It was to correlate and evaluate the information derived from experimental activity and to cooperate with the several States in encouraging the intelligent experimentation and the beneficial development of weather modification and control. In carrying out these objectives, the Committee was also required to keep a “weather eye” on seeing to it that harmful and indiscriminate techniques for weather control were not fostered.[518]