Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

CHAPTER I

[1] Stanford Research Institute, Impact of Air Attack in World War II; Selected Data for Civil Defense Planning, especially Division II, vol. 1, “Economic Effects:—Germany” (Federal Civil Defense Administration, 1953).

[2] Id., Division III, vols. 1 and 2, “Social Organization, Behavior, and Morale Under Stress of Bombing,” and Irving L. Janis, Air War and Emotional Stress (McGraw-Hill, 1951, for the Rand Corporation).

[3] Robert Connery, The Navy and Industrial Mobilization in World War II (Princeton University Press, 1951) p. 6.

[4] Exemplified by Justice Davis’s decision for the majority of the Court in Ex parte Milligan, 4 Wall. 2, 120-21, 126 (1866):

“The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism; but the theory of necessity on which it is based is false; for the government, within the constitution, has all the powers granted to it, which are necessary to preserve its existence....

“... It could well be said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation.”

[5] Justice Sutherland for the Court in the 1936 case of United States v. Curtiss-Wright Export Corporation, 299 U. S. 304, 316-18:

“And since the states severally never possessed international powers, such powers could not have been carved from the mass of state powers but obviously were transmitted to the United States from some other source....

“It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have been vested in the federal government as necessary concomitants of nationality.”

[6] Justice Jackson, dissenting in the Japanese relocation case, Korematsu v. United States, 323 U. S. 214, 248 (1944) admonished the Court as follows:

“But I would not lead people to rely on this Court for a review that seems to me wholly delusive. The military reasonableness of these orders can only be determined by the military superiors. If the people ever let command of the war power fall in irresponsible hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country in the future, as in the past, must be their responsibilities to the political judgments of their contemporaries and to the moral judgments of history.”

[7] The words are, of course, those of John Locke, Of Civil Government, Bk. II, Ch. XIV.

The studies referred to include: Edward S. Corwin, The President: Office and Powers (New York: New York University Press, 3rd ed., 1948); and Total War and the Constitution (New York: Knopf, 1947); Clarence Berdahl, War Powers of the Executive in the United States, (Urbana: University of Illinois Press, 1921); Clinton L. Rossiter, Constitutional Dictatorship (Princeton: Princeton University Press, 1948) and The Supreme Court and the Commander in Chief (Ithaca: Cornell University Press, 1951); Wilfred E. Binkley, President and Congress (New York: Knopf, 1947); Bennett M. Rich, The President and Civil Disorder (Washington, D. C.: Brookings, 1941); Louis W. Koenig, The Presidency and the Crisis (New York: King’s Crown Press, 1944); John W. Burgess, Ch. XXVIII, vol. 2, The Civil War and the Constitution (New York: Scribners, 1901); James Hart, The Ordinance Making Powers of the President of the United States (Baltimore: Johns Hopkins Press, 1925); James G. Randall, Constitutional Problems Under Lincoln, rev. ed. (Urbana: University of Illinois Press, 1951); and a recent article by Albert L. Sturm, “Emergencies and the President,” 11 Journal of Politics, 121, 1949, in which he says, “Lincoln’s precedents have afforded warrant for his aggressive successors to meet extraordinary needs with extraordinary remedies, despite their doubtful constitutionality.” Perhaps as broad a claim to an executive prerogative as has been made in the United States is that which Lucius Wilmerding, Jr., bases upon his study of The Spending Power (New Haven: Yale University Press, 1943): “There are certain circumstances which constitute a law of necessity and self-preservation and which render the salus populi supreme over the written law. The officer who is called to act upon this superior ground does indeed risk himself on the justice of the controlling powers of the Constitution, but his station makes it his duty to incur that risk.” p. 12.

[8] Edward S. Corwin strongly emphasizes that incident in his The President: Office and Powers (New York: New York University Press, 3rd ed., 1948), pp. 303-6.

[9] This is the doctrine which would seem to emerge from Youngstown Sheet and Tube Co. v. Sawyer, 343 U. S. 579 (1952), in which the Court rejected contentions on behalf of President Truman that he enjoyed an “inherent” emergency power to seize private industry in time of emergency occasioned by work stoppages.

[10] This study should not be interpreted as an effort to catalog exhaustively existing delegations of emergency powers to the President. Statutes of the era 1933 to 1955 are analyzed without regard to their present status as expired or in force.