Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

The Concurrent Resolution

The suggestion has been made that Congress would be better informed and could exercise a more adequate check upon the administration of delegated powers “if the major rules and regulations of the agencies were submitted to Congress under a provisional order system. Under this system they would become effective after a certain time, unless negatived by Congress.”[612] This would in effect adapt to American purposes the provisions of the British Statutory Instrument Act of 1946, requiring that important administrative rules and regulations issued under delegatory statutes be submitted to the Parliament, where they would be reviewed by a “Scrutiny Committee” of the Commons.

The resultant veto power might be exercised in a number of ways. A congressional committee might be given power to scrutinize and report on such rules and regulations, or delegated a final power to approve or disapprove. We have earlier noted the extent to which Congress has equipped committees with a power to review and approve or disapprove administrative action.

Were Congress to utilize the Joint Resolution as an instrument for approving or disapproving administrative action, no innovation would be involved. The Joint Resolution requires presidential signature to become effective. This legislative instrument traditionally has been relied upon to clarify congressional intent in delegatory statutes which it thought had been misinterpreted by administrative agencies or the courts. However, if in delegating powers to the executive, Congress conditioned the grant by reserving power to itself by concurrent resolution or by simple resolution of one house to define the terms under which the executive was to act and to review, approve or disapprove such administrative action, a signal departure from established practice would be recorded. In effect, the Congress would have retained the power to curb administration through legislative procedures which do not require Presidential signature to be effective, and which traditionally do not have the force of law, serving simply to express the intent of the Congress.[613]

While the Constitution provides that “every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary ... shall be presented to the President ... and before (they) take effect shall be approved by him,” concurrent resolutions have not for over a century and a quarter been submitted for presidential approval.[614] Apparently the earliest use of the concurrent resolution as a device for enhancing the ability of Congress to control administrative action is to be found in the Reorganization Act of 1932, followed by the Reorganization Act of 1939.[615] These statutes empowered the President to submit reorganization plans to Congress, the plans to have legal effect unless disapproved by concurrent resolution adopted within a prescribed period.

Within the past two decades all three instruments—the joint resolution, the concurrent resolution, and the simple resolution passed by one house—have been used by Congress in an attempt to retain influence and control over the administration of emergency programs. Whether for good or for bad, in statutes delegating emergency authority the present trend is pointed toward inclusion of congressional power to review administrative action by concurrent resolution.

DELEGATORY LEGISLATION INCORPORATING POWER TO CHECK BY CONCURRENT RESOLUTION

Congress appears to have pursued a variety of objectives in incorporating within delegatory statutes a power to influence or control administration through concurrent or simple resolution. (a) In some instances it has reserved power to terminate a statute or program by concurrent resolution. (b) It has asserted power to enable or require executive action by concurrent resolution. (c) Finally, it has made administrative exercise of delegated power subject to congressional approval or disapproval by concurrent or simple resolution. The forty odd delegatory statutes noted in the course of this study, which reserve to Congress the right to influence or limit administrative action by simple or concurrent resolution, will be discussed in this order.

Terminating Programs: Use of the concurrent resolution for the express purpose of terminating legislative delegations of power to the executive branch may take two forms: (a) congressional reservation of a power to repeal the authorizing statute, or (b) congressional reservation of the right, by concurrent resolution, to declare an end to the particular conditions under which the President is empowered to take action. Exercise of congressional power to repeal by concurrent resolution generally has been expressed as follows: “The provisions of this Act, ... shall terminate on June 30, 1943, or upon the date of a proclamation by the President, or upon the date specified in a concurrent resolution ...”[616] A similar provision is contained in at least twenty-three emergency statutes enacted since 1941 and listed below.[617] The Mutual Defense Assistance Act of 1949 secured to the Congress a form of item veto through reserving to it the power by concurrent resolution to terminate assistance to any nation under the Act.[618]

Instances in which Congress reserves the right by concurrent resolution to declare terminated the conditions authorizing executive action are fewer. In a 1941 statute the Secretary of the Navy was authorized to establish a plant protection force for naval shore establishments and to maintain and operate this force until June 30, 1943, unless Congress at an earlier date, by concurrent resolution, declared such force no longer necessary.[619] A 1942 amendment to the Communications Act of 1934 gave the President certain powers to control wire communication facilities upon proclamation by the President that a state or threat of war exists involving the United States. The President’s powers in this respect were to end not later than six months after the termination of such state or threat of war and not later than such earlier date as the Congress by concurrent resolution may designate.[620] In defining national emergency for purposes of the Federal Civil Defense Act of 1950,[621] Congress stipulated that “the provisions of this title shall be operative only during the existence of a state of civil defense emergency.... The existence of such emergency may be proclaimed by the President or by concurrent resolution of the Congress if the President in such proclamation, or the Congress in such resolution, finds that an attack upon the United States has occurred or is anticipated and that the national safety therefore requires an invocation of the provisions of this title.” Congress also has reserved the right, although not on an exclusive basis, to determine by concurrent resolution the “dates of commencement and termination of an armed conflict.”[622]

Enabling or Requiring Executive Action: An example of the use of the concurrent resolution as an enabling device is the provision of the Neutrality Act of 1939,[623] which imposed rigorous limitations upon United States carriage to belligerents “whenever the President, or the Congress by concurrent resolution, shall find that there exists a state of war between foreign states.”

The Legislative Veto: The Reorganization Acts of 1939, 1945 and 1949[624] are also illustrations of the use of the simple and concurrent resolution to effect approval or disapproval of administrative action. All three Acts were designed to foster reorganization to enable the government to cope with emergency conditions, and the 1945 Act had the expressed purpose of facilitating orderly transition from war to peace.[625] The 1939 Act stipulated that the President’s reorganization plans were to take effect sixty calendar days after the date on which the plan was transmitted to the Congress, but only if during the sixty-day period the two Houses of Congress had not passed a concurrent resolution stating in substance that the Congress did not favor the reorganization plan. A similar provision was contained in the 1945 Act, and on July 15, 1946 Congress, by concurrent resolution, disapproved the President’s Reorganization Plan No. 1.[626] The 1949 Act provided for a veto of Reorganization Plans by one house. Under the latter, a reorganization plan becomes operative “upon the expiration of the first period of sixty calendar days, of continuous session of the Congress, following the date on which the plan is transmitted to it; but only if, between the date of transmittal and the expiration of such sixty-day period there has not been passed by either of the two Houses, by the affirmative vote of a majority of the authorized membership of that House, a resolution stating in substance that the House does not favor the reorganization plan.”[627]

In a class by itself is the Federal Civil Defense Act of 1950, by the terms of which the concurrent resolution may be employed to veto interstate civil defense compacts.[628] The consent of the Congress would be granted to each compact, after the termination of sixty calendar days of continuous session of the Congress from the time Congress first received notice of the compact. But Congressional consent could be denied anytime during the sixty day period if Congress passed a concurrent resolution stating that it did not approve the compact.

Remaining for consideration is the utilization of the concurrent resolution to enable Congress to achieve a more intimate participation in the administration of selected programs, principally in the field of immigration and naturalization. In the Alien Registration Act of 1940[629] Congress provided for the deportation of additional classes of aliens. Aliens of proved good moral character might have deportation suspended under certain conditions at the discretion of the Attorney General. However, if deportation were suspended for more than six months, all of the facts and pertinent provisions of law in the case must be reported to the Congress within ten days after the beginning of its next regular session, with the reasons for such suspension. If during that session the two Houses pass a concurrent resolution stating in substance that the Congress does not favor the suspension of such deportation, the Attorney General is required to carry out the deportation as provided by law. If, however, during that session the two Houses fail to pass such a resolution, the Attorney General is required to cancel deportation proceedings at the end of the session. In subsequent legislation Congress reserved the right by concurrent resolution to suspend deportation of aliens or to grant permanent residence,[630] and a considerable proportion of the concurrent resolutions enacted each year now constitute directives to the Attorney General in this regard.[631]

The Rubber Producing Facilities Disposal Act of 1953[632] set up a Rubber Producing Facilities Disposal Commission and authorized it to enter into contracts for disposal of federally held rubber producing facilities. The Commission was to report to Congress in considerable detail on the negotiations and the contents of the contracts. The report had to be submitted to both Houses of Congress on the same day. Upon the expiration of sixty days of continuous session of the Congress following the date upon which the report was submitted to it, the Commission was free to proceed to carry out the contracts and proposals as outlined in its report, but only to the extent that such contracts and proposals had not been disapproved by either House of Congress by a resolution during the sixty-day period. Congress in recent years also has asserted the right by concurrent resolution to “declare ... that the period of active service required of any age group” under the Universal Military Training and Service Act “should be decreased ... or ... should be eliminated.”[633]

USE OF CONCURRENT RESOLUTION PROVISIONS TO CHECK ADMINISTRATIVE ACTION

A survey of the statute books from 1939 through 1954 reveals few instances of congressional employment of the device of the concurrent resolution so thoughtfully included in delegatory statutes. However, the Congressional Record for the same period bears evidence of repeated effort on the part of members of the legislature to influence the administration of delegatory statutes through concurrent or, in some instances, the simple resolution.

Terminating Powers: Legislative efforts to terminate statutes by concurrent resolution prove anticlimactic in view of the many instances in which the power to accomplish this was included in the delegatory statute. The statute which provoked the most vigorous and persistent effort at termination by concurrent resolution was that of January 20, 1942, establishing daylight saving time.[634] From 1943 through 1945 some twenty-four concurrent resolutions were introduced to terminate the effect of the Daylight Savings Act.[635] None of these concurrent resolutions survived committee screening.

In 1941 a House concurrent resolution abrogating the authority of the President to provide aid to Russia under the Lend-Lease Act died in the Foreign Relations Committee.[636] The appropriate provision of the Lend-Lease Act provided in general terms for termination of the lend-lease authority upon adoption of a concurrent resolution by both Houses.[637] The Act did not provide for suspension by concurrent resolution of authority to aid specified countries and the resolution probably sought to exercise a power which Congress had not reserved to itself in the Act.

Pressure to terminate war controls intensified following the September 2, 1945, signing of the Japanese instrument of surrender. On September 14, House Concurrent Resolution 84 was introduced, “to terminate the effectiveness of certain provisions of the Second War Power Act, 1942.” Section 1501 of the Act provided for termination of certain of the Titles of the Act by concurrent resolution.[638] The resolution did not emerge from the Judiciary Committee, to which it was referred. Another unsuccessful effort was made to invoke the concurrent resolution provisions of the Act two years later.[639] The year following termination of hostilities saw a short-lived effort to terminate by concurrent resolution a statute which did not incorporate provision to this effect.[640]

Some ten additional concurrent resolutions were introduced in the two years succeeding 1945, the effect of which would have been formal termination of the state of hostilities to which the lives of various statutes had been hinged.[641] None of the resolutions emerged from committee.

Enabling and Requiring Executive Action: Aside from action on reorganization plans submitted to Congress by the President, the sole striking instance of successful employment of a concurrent resolution provision incorporated in a delegatory statute concerned initiation of a postwar highway construction program, under the Federal-Aid Highway Act of 1944. The Act, it will be recalled, enabled the Congress by concurrent resolution to stipulate the date the program was to go into effect. Senate and House concurrent resolutions were introduced in the Seventy-ninth Congress in 1945 fixing the first post-war fiscal year under the Act as the year ending June 30, 1946.[642] The House resolution passed in that chamber and was agreed to by the Senate.[643]

The Neutrality Act of 1939 is the outstanding, in fact the only, recent instance of congressional effort to exercise power by concurrent resolution to require executive action.[644] The Act drastically curbed American carriage to and trade with belligerents. The President could proclaim the existence of war between two nations; or, upon passage of a concurrent resolution finding that war existed between two countries, the President must issue a proclamation identifying the belligerents.[645] Thereupon the trade restrictions in the Act become effective and criminal penalty attaches to their violation.

On the theory that Section 1 (a) “places on this Congress a responsibility corresponding with that which has been placed on the President in the matter of finding a condition of war to exist,”[646] individual members introduced concurrent resolutions declaring the existence of war between the U.S.S.R. and Finland,[647] Japan and China,[648] and Germany and the U.S.S.R.[649] These were decently interred in committee.

The Legislative Veto: Although the first Reorganization Act containing provision for legislative veto of reorganization plans was enacted in 1939, concurrent resolutions disapproving such plans were introduced in vain until 1946. In July of that year both houses agreed to House Concurrent Resolution 155 disapproving President Truman’s Reorganization Plan No. 1.[650] The next May a new Congress disapproved Reorganization Plan No. 2 of 1947.[651] The third and last reorganization plan to be defeated by concurrent resolution was Plan No. 1, 1948, which incurred congressional disapproved in March of that year.[652] The Reorganization Act of 1949 permitted veto of the President’s plans by simple resolution of one house.[653] President Truman’s efforts to elevate the Federal Security Agency to departmental status were frustrated by Senate Resolution 147 of 1949, which was adopted by that body on August 16, 1949.[654] All of the veto resolutions passed by Congress were favorably reported from committee to the house of origin.

During the period studied three veto resolutions died in committee,[655] three (all favorably reported from committee) passed the House of Representatives only to be rejected by the Senate,[656] and four were adversely reported from committee and defeated in the chamber in which they originated.[657] Only one veto resolution was discharged from committee. It subsequently passed the House but failed in the Senate.[658]