Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

The Supreme Court’s Approach

In its effort to avoid the Scylla of judicial refusal to review the constitutionality of legislative or executive emergency action, and the Charybdis of declaring unconstitutional emergency action which might be vital to national survival,[722]—i.e., in its efforts to “reconcile the irreconcilables” which Cardozo considered the essence of the judicial function—the Supreme Court has traveled various routes. The majority opinions of the Court, or the concurring or dissenting opinions of individual justices, have at times asserted that (a) the Constitution is a rigorously confining document to be inflexibly applied by the Court in measuring governmental action in war and peace; (b) there exists an emergency power which is above constitutional limitations; (c) the Constitution is a flexible charter permitting government action commensurate with need as measured by the Court.

All three of these approaches are characterized by a preoccupation with the question of the existence of the asserted emergency power. Under the first, the Court is guided by a narrow interpretation of the quantum of constitutional emergency power and appears disposed to appraise the validity of asserted authority independently of any consideration of the indispensability of the power exercised for successful resolution of the crisis. Involving covertly virtual acceptance of the principle, inter arma selent legis, the second is extremely dangerous; for if applied extensively, it would erode constitutional balance and restraint and perhaps terminate responsible government in time of peril. Insofar as it chooses to be guided by the third and purports to sanction only that which it concedes to be essential for combating an emergency, the Court not only assumes a task for which it is ill-suited but also frequently shirks its responsibilities in the performance thereof. Too often when it dares to condemn as ultra vires action believed unavoidable in the prosecution of a war, it postpones its invalidation until after hostilities have terminated. Such post mortem judicial observations afford most inadequate guides for ascertaining what will be constitutionally permissible in time of crisis.

Apart from a few brief illustrations of the aforementioned judicial approaches, we have placed major emphasis upon the Steel Seizure Case [Youngstown v. Sawyer, 343 U.S. 579 (1952)], for in that decision are to be found signally important indications of the most effective contribution which the Federal judiciary hereafter may make in sustaining responsible government. The need for a more extensive review of the Supreme Court’s appraisal of emergency power has been dispelled by Clinton Rossiter’s study of The Supreme Court and the Commander-in-Chief.[723]

The Constitution as a Rigidly Restrictive Document: In one of the extremely rare instances in which a Supreme Court Justice has defied the Chief Executive engaged in prosecuting a war, Chief Justice Roger B. Taney in 1861, presiding as Circuit Court Judge at Baltimore, demanded that the military produce in court one John Merryman, who had been arrested. When Merryman’s jailers replied to Taney that by virtue of the President’s proclamation suspending the writ of habeas corpus, they had been directed not to respond to the writ, the venerable Chief Justice wrote a stinging opinion informing the President that the power to suspend the writ belonged to Congress alone and could not be exercised by the chief executive. Notwithstanding his ruling, Merryman was not released and the President continued his suspension of the writ, although Congress did not validate his action until 1863.[724]

Perhaps a better example of Taney’s attitude toward the relaxing of constitutional restraints in wartime is to be found in an earlier, unpublished opinion, quoted by Swisher in his biography of the Chief Justice:

“A civil war or any other war does not enlarge the powers of the federal government over the states or the people beyond what the compact has given to it in time of war. A state of war does not annul the 10th article of the amendments to the Constitution, which declares that ‘the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people.’

“Nor does a civil war or any other war absolve the judicial department from the duty of maintaining with an even and firm hand the rights and powers of the federal government, and of the states, and of the citizens, as they are written in the Constitution, which every judge is sworn to support.”[725]

For the other expressions of this absolutist view, we must look to opinions handed down in the immediate postwar periods of 1866 and 1946. Ex parte Milligan[726] involved the incarceration of a northerner suspected of Southern sympathies. Could such an individual be tried, convicted and sentenced to death by a military tribunal, in an area far behind the Northern lines, in fact, in a State which had never been invaded by the Southern armies? Scores of such instances of military trial and conviction of civilians had occurred in Northern states untouched by the war.

The majority opinion for the Supreme Court disposing of this issue was written by Justice Davis and constitutes as rigid a definition of the limits circumscribing the war powers as could possibly be stated:

“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.”[727]

This opinion by a Lincoln appointee to the Court was offset in part by the concurring opinion of Lincoln’s former Secretary of the Treasury. Chief Justice Chase could conceive of a situation in which Congress might find such measures “essential to the prosecution of the war with vigor and success,” and would therefore be entitled under the Constitution to resort to them. Independent of statutory authorization the President, however, could not employ such power. He was limited to executing the measures adopted by Congress.[728]

Some eighty years later, in 1941, martial law was declared in Hawaii. From that time through the Fall of 1945, the Islands were ruled by the military. After bitter and protracted litigation, in which the federal courts in Honolulu were particularly outspoken against the type of military rule practiced in the Islands, the cases of Duncan v. Kahanamoku and White v. Steer managed to surmount the obstacle course to the Supreme Court.[729] Duncan and White were civilians who had been apprehended during the war and tried and convicted by the military, the former for assault against a Marine sentry, and the latter for embezzlement. Both were crimes under the Hawaiian civil code. Challenging the jurisdiction of the military to try these men, a lower federal court ordered their release upon petition for habeas corpus; and on appeal the validity of the District Court order was sustained by the Supreme Court in an opinion written by Justice Black. The case turned upon a narrow interpretation of the meaning of “martial law.” The term did not, Black said, embrace trial of civilians by military courts. He did leave the door ajar, however, implying that it is not inconceivable in a situation of dire necessity, that such trial of civilians by the military might be upheld.

In a concurring opinion, however, Justice Murphy restated the principle expressed in the Milligan case. Exalting civilian supremacy over the military, he reiterated the Milligan rule that civilians may not be tried by the military when the courts are open and functioning. Not only did he agree with Justice Black that the acts of the military contravened statutory law, but he also was of the belief they were proscribed by the due process clause and therefore manifestly unconstitutional. Unlike the Civil War Justices, however, he suggested that until the courts were able to resume their functions the military might retain custody of its prisoners.[730]

Extra-Constitutional Sources of Emergency Power: Perhaps the most expansive argument for a constitutionally sanctioned, unqualified emergency power is that developed and expressed by Justice George Sutherland in a work published in 1919,[731] before his accession to the bench, and restated in his opinion for the Court in United States v. Curtiss-Wright Export Corporation.[732] In Constitutional Power and World Affairs, he asserted:

“As the highest duty of the nation is self-preservation, the rights of peace must then be held in subjection to the necessities of war. This does not result in a suspension of the Constitution, as some have petulantly suggested, but it may result in a suspension of constitutional rights of the individual because they conflict with the paramount powers of war....

“This power is tremendous; it is strictly constitutional; but it breaks down every barrier so anxiously erected for the protection of liberty, of property and of life.”[733]

The later Supreme Court opinion only removes the inconsistencies from these passages, and recognizes the war powers as extra-constitutional in nature:

“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.”[734]

Justice Jackson, dissenting in the Japanese relocation case, Korematsu v. United States,[735] advocated complete judicial abnegation of any pretended power to review the necessity for emergency action. Favoring, however, a reversal of the judgment and a “discharge of the prisoner,” Jackson added that he couldn’t subscribe to the view that the existence of “reasonable military grounds” for such a wartime program made it constitutionally valid and subject to judicial enforcement.[736] The Court cannot

“... require such a commander in such circumstances to act as a reasonable man; he may be unreasonably cautious and exacting. Perhaps he should be....

“But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient....

“A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes a doctrine of the Constitution ... a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order....”[737]

It is true that the existence of this power in the government in wartime, and the admitted inability of the Court to restrict it, is “an inherent threat to liberty.”

“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 into 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.”[738]

Like Machiavelli, Jackson conducts an analysis in simple power terms. But while Machiavelli suggested it was possible to devise ways to circumscribe and check the exercise of emergency power by leaders in a republic, the modern liberal, true to the tradition of Locke, can conceive of no limits upon the actions of a war government but the force of public opinion.

The Constitution as a Flexible Charter: Although as recently as World War II all three strains of thought regarding emergency powers of the Chief Executive during wartime found effective expression in opinions of individual justices on the Court, the most persistent has been the attempt to compromise the range of views by positing a Constitution broad and flexible enough to encompass emergency action responsive to existing need, as measured by the Court. This has been described by Professor Corwin as “constitutional relativity.”[739]

The “clear and present danger” doctrine, first enunciated by Justice Holmes in the Schenck case[740] is an example of constitutional relativity. Its recent application illustrates what is to be expected when the Court, having accepted the obligation to determine the necessity for emergency action, subsequently is led by doubts as to the adequacy of its tools for measurement to redefine the conditions of an emergency in such a manner as virtually to evade the problem.[741] It also points up some of the difficulties in consistently applying whatever criteria for measurement are developed by the Court.

Schenck had been convicted under the Espionage Act of 1917 for seeking to obstruct the draft. He had circularized a mailing list with literature opposing the World War I draft law. Included on the list were a number of persons in the military service at the time of receipt of the material. Holmes’ reasoned as follows:

“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree....

“It seems to be admitted that if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced.... If the act, ... its tendency and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime.”[742]

Schenck remained in jail.

In a subsequent case under the same Act, involving a group of “radicals” who had disseminated a pamphlet condemning United States intervention in Russia and threatening to thwart that intervention by causing trouble on the home front, calling upon munitions workers to quit their jobs, and advocating revolution, Holmes dissented from a decision upholding their conviction.[743] Rejecting as fallacious the conclusion of his colleagues that the surreptitious publishing of a “silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so,” Holmes maintained:

“An intent to prevent interference with the revolution in Russia might have been satisfied without any hindrance to carrying on the war in which we were engaged....

“Even if I am technically wrong and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper; I will add, even if what I think the necessary intent were shown; the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges but for the creed that they avow....”[744]

The significance of this latter opinion would appear to derive from the fact that by employing the descriptive adjectives “silly” and “puny” Holmes transformed his clear and present danger doctrine into a vehicle for opposing conviction of persons for what would seem, on the face of the record, possibly a more aggravated offense than Schenck’s. Thus the “clear and present danger” test in application may become entangled with the sentiment of the person applying it. Secondly, it is important to note the appraisal which Holmes made as to the military significance of American intervention in Russia. In his estimation, had it been thwarted our war effort would not have been effected. As a dissenter Holmes, with the support of Brandeis, persisted in applying the “clear and present danger” test in a number of later decisions, notably the Gitlow case and the Whitney case.[745]

In the post-World War II era, however, this test definitely appears to have been radically altered, if not conclusively rejected. Thus in Dennis v. United States, sustaining the conviction under the Smith Act[746] of eleven top Communist Party leaders, Judge Learned Hand, presiding over the U.S. Court of Appeals for the Second Circuit, stated:

“The phrase, ‘clear and present danger,’ has come to be used as a shorthand statement of those among such mixed or compounded utterances which the Amendment does not protect.... It is a way to describe a penumbra of occasions, even the outskirts of which are indefinable, but within which, as is so often the case, the courts must find their way as they can. In each case they must ask whether the gravity of the ‘evil,’ discounted by its improbability, justified such invasion of free speech as is necessary to avoid the danger....

“... When does the conspiracy become a ‘present danger’? The jury has found that the conspirators will strike as soon as success seems possible, and obviously, no one in his senses would strike sooner. [Meanwhile, the Communist leaders claim the right to continue their activities.] That position presupposes that the Amendment assures them freedom for all preparatory steps and in the end, the choice of initiative, dependent upon the moment when they believe us, who must wait the blow, to be the worst prepared to receive it.”[747]

By substituting “probability” for “imminence” in time, Hand substantially changed the clear and present danger doctrine. On appeal the Supreme Court, with certain modifications, in effect affirmed Hand’s redefinition.[748]

In connection with these examples of judicial application of the “clear and present danger” doctrine it is equally pertinent to set forth Chief Justice Hughes’ famous dictum that “the war power of the Federal Government ... is a power to wage war successfully,”[749] and to refer to the decisions arising out of World War II Japanese curfew and relocation[750] and rent control.[751] The Court’s approach is epitomized by Black’s reasoning in his majority opinion in Korematsu v. United States:

“But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger....

“... hardships are a part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure.”[752]

Whether the Court is competent to fulfill the role of protector of the Constitution in wartime is highly debatable. Is the Court capable of performing the task, even if time were available? Obviously not. It does not have the information requisite for determination of current needs and the adequacy and appropriateness of government actions to meet them. It cannot be presumed to possess the fund of knowledge essential for appraising issues largely military in nature, and, consequently upon the advent of actual hostilities, it invariably displays a reluctance to countermand the executive and legislative branches, no matter how extreme their action. Furthermore, the judicial process with its haphazard accretion of cases, the manifest capacity of government to make cases moot, or failure to prosecute, frequently makes it impossible for the Court even to review significant controversies produced by action of the political departments. For every Milligan or Duncan who manages to bring his case to the Court (usually for post mortem relief), there are hundreds who submit to abusive governmental action without ever contesting the validity thereof. This alone affords adequate demonstration that the court is ineffective in maintaining constitutionalism in time of war. For fulfillment of this objective vigilance on the part of Congress and the Executive no less than the electorate is imperative.

In a democracy the function of defending liberty cannot safely be relegated to any single institution.