Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

Integrative Relationships

The statutory provisions enumerated above have the apparent objective of facilitating communication between agencies or introducing checks and balances—contrived frustrations—into the administrative process. At the least intense end of the scale is permissive interagency communication; gradually the relating of interagency communication and agency action intensifies until the point is reached at which an agency may exercise a delegated power only upon clearance with another agency, or is compelled to exercise it upon the direction of another. However, the relationship between agencies is communicative, and they do not by statute have joint responsibility for decision-making or day-to-day program development and execution.

The broad group of statutes to which we now turn attempts to distribute among a number of agencies responsibility and authority for joint decision-making and action. The resources and judgment of many agencies may be focused on one program, or a system may be set up for co-ordinating the activities of many agencies toward the attainment of broad policy goals. The kind of interagency relationship contemplated by Congress appears to be more active and positive, more a harnessing of equals, than those which we have [thus far reviewed.][692]

Four principal categories of statutory provisions may be distinguished under this general head. Some aim at joint decision-making by two or more agencies. Others enjoin agencies to “co-operate” in the administration of a given program. A third group establishes mutual assistance arrangements among agencies. Finally, we have those statutory provisions which seek co-ordination of interagency activities.[693]

JOINT DECISION-MAKING

A 1939 stockpiling act required the Secretary of War, the Secretary of the Navy, and the Secretary of the Interior, to determine whether certain materials purchased under the Act were strategic and critical. Once this determination was made, they then were permitted to determine the quality and quantities of materials to be purchased under the Act.[694] The Secretary of War and the Secretary of the Navy, when they considered such action appropriate because the domestic production or supply of certain materials was insufficient to meet the industrial, military, and naval needs of the country, were to direct the Secretary of the Treasury, through the medium of the Procurement Division of his Department to make purchases in accordance with specifications prepared by the Procurement Division of the Treasury Department and approved by the Secretary of War and the Secretary of the Navy. Two months later Congress authorized the Commodity Credit Corporation to accept such strategic and critical materials in exchange for such surplus agricultural commodities; and for the purpose of such exchange it was left to the three Secretaries to determine which materials are strategic and critical and the quantity and quality of such materials needed.[695]

The Central Intelligence Agency Act of 1949 set up procedures for granting asylum to foreign nationals who have performed valuable security services for the United States. Whenever the Director of the CIA, the Attorney General, and the Commissioner of Immigration determines that the entry of a particular alien for permanent residence is in the interest of national security or essential to the furtherance of the national intelligence mission, such alien and his immediate family shall be given entry into the United States for permanent residence without regard to their inadmissibility under the immigration or any other laws and regulations, or to the failure to comply with such laws and regulations pertaining to admissibility.[696] The Immigration and Nationality Act of 1952 assigns to the Secretary of State, the Secretary of Commerce, and the Attorney General jointly the function of determining the annual quota of immigrants for any quota area.[697] On June 30, 1952, the President issued a proclamation reciting that the quotas had been determined, and listing them.[698]

The National Security Act of 1947 recited as one of its purposes the establishment of integrated policies and procedures for the departments, agencies, and functions of the Government relating to the national security.[699]

CO-OPERATION

Joint decision-making shades into co-operative relationships which, if loose and flexible, may be continuing and steady. Such relations may exist with private as well as official groups.

Must Co-operate: The Small Business Concerns Mobilization Act made it the duty of the Chairman of the War Production Board to co-operate to the fullest practicable extent with the Director of Civilian Supply and other appropriate governmental agencies in the issuance of all orders limiting production by business enterprises with a view to insuring that small business concerns would not be bypassed in the production of war materials and goods essential to the civilian population.

In granting the Secretary of the Interior power to construct demonstration plants for production of synthetic and liquid fuels from coal oil shale, and agricultural and forestry products, the Congress specified that “any activities under this Act relating to the production of liquid fuels from agricultural and forestry products should be carried out in co-operation with the Department of Agriculture and subject to the direction of the Secretary of Agriculture.”[700] A 1945 flood-control act clearly sought to effect interagency co-operation in facilitating the replacement by farmers of flood-damaged or -destroyed [farm equipment.][701] The War Production Board, and every other governmental agency which had jurisdiction over allocations and priorities relating to farm machinery and equipment were authorized and directed immediately to take whatever steps were necessary to provide for the necessary allocations and priorities to enable farmers in the areas affected by floods in 1944 and 1945 to replace and repair their farm machinery and equipment which was destroyed or damaged by such floods, or windstorms, or fire caused by lightning, and to continue farm operations.[702]

The Defense Production Act of 1950 provided that whenever the price and wage stabilization powers contained in the Act were exercised, all agencies of the Government dealing with price and wage stabilization, within the limits of their authority and jurisdiction, should co-operate in carrying out the purposes of the Act.[703]

May Co-operate: The Emergency Price Control Act of 1942 was in part designed “to permit voluntary co-operation between the Government and producers, processors, and others to accomplish the ... purposes” of stabilizing prices and preventing speculation.[704] “It shall be the policy of those departments and agencies of the Government dealing with wages (including the Department of Labor and its various bureaus, the War Department, the Navy Department, the War Production Board, the National Labor Relations Board, the National Mediation Board, the National War Labor Board, and others heretofore or hereafter created), within the limits of their authority and jurisdiction, to work toward a stabilization of prices, fair and equitable wages, and cost of production.”[705]

MUTUAL ASSISTANCE

Congress will not infrequently require or enable one agency, on an interim or continuing basis, to come to the assistance of another in the execution of its program. This may take the form of providing money, material, facilities, or service to the agency. It is a kind of mutual assistance program within the executive branch.

The Reconstruction Finance Corporation, for example, was occasionally treated by Congress as a source of credit to enable agencies to launch authorized programs immediately after enactment, and thus avoid the delays which attend appropriation of funds for authorized programs. The Far Eastern Economic Assistance Act of 1950 authorized the appropriation to the President of sixty million dollars to enable the Economic Co-operation Administration to furnish assistance to the Republic of Korea. As a way of getting the program started at once, the Reconstruction Finance Corporation was authorized and directed to make advances not to exceed thirty million dollars in the aggregate, until the regular appropriation was available.[706] It can readily be seen that this device might be employed not only to avoid the normal delays of the appropriations process, but to circumvent or nullify the obstructive tactics of an unfriendly appropriations subcommittee.

The India Emergency Food Aid Act of 1951 contained a similar provision. If the President, after consultation with public and private shipping officials, found that private shipping was not available to carry American food to India on reasonable terms and conditions, the Reconstruction Finance Corporation was authorized and directed to make advances not to exceed in the aggregate twenty million dollars to the Department of Commerce for activation of vessels for such transportation.[707]

Other mutual assistance provisions enable or require agencies to produce or procure goods or services for other agencies under certain conditions. The Tennessee Valley Authority Act required the Corporation, upon the requisition of the Secretary of War or the Secretary of the Navy to manufacture for and sell at cost to the United States explosives or their nitrogenous content. Upon the requisition of the Secretary of War the Corporation was to allot and deliver without charge to the War Department whatever power was necessary in the judgment of the Department for use in operation of all locks, lifts, and other facilities in aid of navigation.[708] The Helium Gas Act of 1937 permitted the Army, Navy, and other government agencies to requisition helium from the Bureau of Mines, which agency was charged with responsibility for the production of helium.[709]

The Maritime Commission was assigned responsibility, in July, 1941, for meeting the shipping needs of defense agencies.[710] The Secretary of the Air Force was directed to make available to the Civil Air Patrol by gift or by loan, sale or otherwise, with or without charge, obsolete or surplus aircraft and aircraft parts to permit utilization of facilities of the Air Force, and to furnish to Civil Air Patrol the fuel needed to enable it to complete any specifically assigned mission.[711]

CO-ORDINATION

If co-operation involves working together, co-ordination is the process whereby things are placed in position relative to each other and to the system of which they form parts. Administrators may work together, or co-operate, toward the end of co-ordinating their programs. But joint decision-making, or co-operative programming are vitally, if subtly, different from the co-ordination of programs. In the first place, joint decision-making or co-operation have the purpose of focusing the judgment and resources of many agencies upon the execution of one program, whereas co-ordination involves the relating of many similar, or possibly diverse, programs. Secondly, to indulge a tautology, joint-decision-making and co-operation (as provided for in the statutes just reviewed) involve a positive, creative elaboration and execution of programs, whereas co-ordination consists of minimizing conflict of purpose among two or more programs.

The Commissioners of the District of Columbia were authorized in August, 1950, to set up an Office of Civil Defense for the District, which office would, among other things, plan for integration of the District’s civil defense effort with that of the federal government and nearby states, and co-operate with governmental and nongovernmental agencies and co-ordinate the activities within the district.[712] The National Science Foundation’s functions include that of correlating its scientific research programs with those undertaken by individuals and by public and private research groups.[713] The Immigration and Nationality Act of 1952 authorized the Commissioner of Immigration and the administrator of the Bureau of Security and Consular Affairs of the Department of State to maintain direct and continuous liaison with the Directors of the Federal Bureau of Investigation and the Central Intelligence Agency and with other internal security officers of the Government for the purpose of obtaining and exchanging information for use in enforcing the provisions of this Act in the interest of the internal security of the United States. The Commissioner and the administrator are to maintain direct and continuous liaison with each other with a view to a co-ordinated, uniform, and efficient administration of this law, and all other immigration and nationality laws.[714]

There were some statutes with regard to which it is difficult, if not impossible, upon the basis of reading alone, to determine whether the purpose was to bring the facilities of many agencies to bear upon the administration of one program, or to enhance the prospect that the program would be administered in a manner consistent with the objectives of other related programs. A study of the legislative history and the administration of these provisions would probably disclose that the legislative intent was mixed, or that in the process of administration both objectives were joined.

We might include within this category the Neutrality Act of 1935 which set up the National Munitions Control Board, to be composed of the Secretaries of State, Treasury, War, and Navy. The Board, acting largely through the Secretary of State, was the agency for execution of the neutrality program.[715] The Contract Settlement Act of 1944 set up an Office of Contract Settlement, headed by a Director, and a Contract Settlement Advisory Board, with which the Director was required to advise and consult. The Board was composed of the Director, the Secretaries of War, Navy, and Treasury, the Chairman of the Maritime Commission, the Administrator of the Foreign Economic Administration, the Chairman of the Board of Directors of the Reconstruction Finance Corporation, the Chairman of the War Production Board, the Chairman of the Board of Directors of the Smaller War Plants Corporation, and the Attorney General.[716] Any of these officials might appoint representatives.

The Atomic Energy Act of 1946 contained provision for a Military Liaison Committee.[717] The National Advisory Committee for Aeronautics, created to supervise the scientific study of the problems of flight, under a 1948 statute, was to be composed of not more than seventeen members appointed by the President including two representatives of the Department of the Air Force; two of the Department of the Navy, from the office in charge of naval aeronautics, two of the Civil Aeronautics Authority; one of the Smithsonian Institute; one of the United States Weather Bureau; one of the National Bureau of Standards; the Chairman of the Research and Development Board of the National Military Establishment; and others.[718]

Are these representative of congressional efforts to organize co-operation, or to organize co-ordination? We think the latter, although it is clear that reasonable men could differ, and a careful legislative history might prove us wrong.