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.