Varieties of Emergency
Emergencies, as perceived by legislature or executive in the United States since 1933, have been occasioned by a wide range of situations, classifiable under three principal heads: a. economic, b. natural disaster, and c. national security.
ECONOMIC EMERGENCIES
Depression: President Roosevelt in declaring a bank holiday a few days after taking office in 1933 proclaimed that “heavy and unwarranted withdrawals of gold and currency from ... banking institutions for the purpose of hoarding; and ... continuous and increasingly extensive speculative activity abroad in foreign exchange” resulting in “severe drains on the Nation’s stocks of gold ... have created a national emergency,” requiring his action.[66] The Bank Conservation Act, passed a few days later gave the President plenary power in time of war or during any other period of “national emergency” to control transactions in foreign exchange, transfers of payment, and prevention of hoarding. It also declared “that a serious emergency exists and that it is imperatively necessary speedily to put into effect remedies of uniform national application.”[67] Later in March, in permitting Federal Reserve Bank loans to state banks and trust companies, Congress made specific reference to the existing emergency in banking.[68]
The Federal Emergency Relief Act of 1933 opened with a declaration that the economic depression created a serious emergency, due to wide-spread unemployment and the inadequacy of State and local relief funds, resulting in the existing or threatened deprivation of a considerable number of families and individuals of the necessities of life, and making it imperative that the Federal Government cooperate more effectively with the several States and Territories and the District of Columbia in furnishing relief to their needy and distressed people.[69] Here then was an emergency created by the inadequacy of previous effort to cope with abnormal threats to the well-being of the population. The Municipal Bankruptcy Act of May 24, 1934 also described the emergency in terms which related it to the inability of local government units to function properly. Congress declared a national emergency existed, caused by the increasing financial difficulties of many local governmental units, which rendered imperative “the further exercise of the bankruptcy powers of the Congress.”[70]
On the same day that he signed the Emergency Relief Act, the President also signed an Act describing another facet of the emergency. The latter Act stated “the present acute economic emergency” was in part the result of very low prices for farm products. The effect of declining income for the American farmer had virtually destroyed his purchasing power, thus undermining the agricultural assets supporting the national credit structure.[71] The causal phenomena for declarations of emergency were, according to the statutes, heavy and unwarranted withdrawals of gold, severe drains on the Nation’s stocks of gold, widespread unemployment, and a severe and increasing disparity between the prices of agricultural and other commodities. Efforts to meet the emergency situation were directed immediately to ameliorate the existing emergency conditions and ultimately so alter the causal phenomena as to eliminate the causes of the existing threat to national well-being. The Gold Reserve Act of 1934 made passing reference to “the existing emergency.”[72] The President in January 1936 proclaimed that this emergency had not been terminated but, on the contrary, had been intensified in different ways by unsettled conditions in international commerce and finance and in foreign exchange.[73] As late as 1941 Congress continued certain of the powers delegated in the Gold Reserve Act until June 1943 “unless the President shall sooner declare the existing emergency ended.”[74]
In 1953 Congress authorized the President to declare the existence of economic disaster in any area. Thereafter the Secretary of Agriculture, on finding that an economic disaster had created a need for agricultural credit that could not be met for a temporary period from commercial banks or other responsible sources, might authorize emergency loans to farmers.[75]
Some statutes, on the other hand, identify emergency with the causal phenomena instead of their product. The National Industrial Recovery Act, for example, simply declared that a national emergency existed. This emergency, according to the statute was productive of widespread unemployment and disorganization of industry, which burdened interstate and foreign commerce, affected the public welfare, and undermined the standards of living of the American people.[76]
The Securities Exchange Act of 1934 found that national emergencies, which produced widespread unemployment and the dislocation of trade, transportation, and industry, burdened interstate commerce and adversely affected the general welfare, were “precipitated, intensified, and prolonged by manipulation and sudden and unreasonable fluctuations of security prices and by excessive speculation on such exchanges and markets.”[77] In these two statutes the term emergency is first used in a context associating it with causal agency, and secondly as something intermediate between the causal agents and the disagreeable ultimate effects.
While calling attention to the occasionally variable usage of the term emergency, we by no means intend to develop a metaphysics of emergency in order to settle the question whether it is rightfully applied to cause, effect, or something intermediate. We are satisfied to accept the overwhelming legislative tendency to apply the term to the undesired effects of events, attributing variant usages to imprecise draftmanship.
At this point it is appropriate to indicate that many statutes (some of which are described here; some of which, for sake of brevity or avoiding the redundant, are not) either declare the existence of, or describe action to be taken in the event of the occurrence of, a situation which by other statutes has been termed an emergency. Statutes in this category, describing the situation but refraining from applying the term emergency to them, are illustrated by the following: A Tariff Act amendment of June 1934 gives the President the power to curtail imports if he finds that existing duties or other import restrictions of the United States or any foreign country burden and restrict the foreign trade of the United States.[78] The Securities Exchange Act associates emergency, among other things, with the burdening of interstate and foreign commerce.
Did Congress intend the Tariff Act Amendment as an emergency statute? At that particular time, probably not. But later amendments to the Tariff Act specifically refer to emergency conditions affecting the American fisheries industry. We do not believe it is necessary to ferret out the precise Congressional intent in Acts which do not explicitly use the term emergency or describe the object of correcting legislation in terms which clearly reflect Congress’ finding that an emergency exists.
Inflation: We have included in the economic section some of the statutes designed to prevent or alleviate wartime inflation. Enacted within months after Japan’s attack on Pearl Harbor, the Emergency Price Control Act of 1942 was designed to prevent economic dislocations from endangering the national defense and security and the effective prosecution of the war.[79] The factors contributing to the national emergency included “speculative, unwarranted, and abnormal increases in prices and rents; ... profiteering, hoarding, manipulation, speculation, and other disruptive practices.” The war effort would be aided through insuring that defense appropriations were not dissipated by excessive prices; by protecting persons with relatively fixed and limited incomes, consumers, wage earners, investors, and persons dependent on life insurance, annuities, and pensions, from undue impairment of their standard of living through skyrocketing prices. Colleges, local government units, and other institutions with relatively fixed incomes were also to be protected against the inflationary spiral. The emergency price control measure was formulated in anticipation of a possible post emergency collapse of values and was aimed at the avoidance thereof.
The Proclamation of May 27, 1941, in which President Roosevelt declared the existence of an unlimited emergency caused by the supposed expanded war aims of the Axis powers, carefully translated the emergency into economic terms. The President advised businessmen that in maximizing war production they would be protecting a world in which free enterprise could exist; and workingmen, in so doing, would protect a society in which labor and management could bargain on free and equal terms. Benefits were also forecast for privately endowed institutions and local governmental units.[80] The extension of price controls in 1946 was attributed to the continued existence “of abnormally excessive spending power in relation to the presently available supply of commodities.”[81] And the Renegotiation Act was addressed to meeting the emergency within an emergency created by the wartime disruption of competitive conditions in regard to the placing of defense contracts.[82]
Strikes: The Emergency Railroad Transportation Act of 1933 was designed to relieve obstructions and burdens on interstate commerce resulting from “the present acute economic emergency.”[83]
The Railway Labor Act of 1934 thereupon sought, by imposing collective bargaining upon the railroads and through a National Mediation Board and ad hoc emergency boards appointed by the President (nothing new, of course, in railroad regulation), to avoid exacerbation of the emergency through rail strikes.[84] The War Labor Disputes Act permitted drastic presidential and War Labor Board regulation of labor-management relations to avoid impeding or delaying the war effort in consequence of strikes.[85] The Labor Management Relations Act, better known as the Taft-Hartley Act, created special procedures for delaying strikes whenever in the opinion of the President a threatened strike or lock-out affecting an entire industry or substantial part thereof would imperil the national health or safety if the strike occurred or were allowed to continue. This Act of course, grants the determining power to the President only where interstate commerce, in all its varieties, is involved.[86]
Housing: The Veterans’ Emergency Housing Act of 1946 declared that the long-term housing shortage and the war combined to create an unprecedented emergency shortage of housing, particularly for veterans of World War II and their families.[87] President Truman promptly cited the building program provided for in the Act and the unprecedented emergency shortage of housing in exercising his authority under the Tariff Acts to remove the duty from articles certified by the Housing Expediter as timber, lumber, or lumber products suitable for the construction or completion of housing accommodations.[88] The Housing and Rent Act of 1949 also was directed at this emergency.[89]
Agricultural Commodities: Congress occasionally has recognized the existence of an emergency with regard to a particular agricultural or other commodity. Without using the term emergency, Congress plainly was taking emergency action when it adopted a concurrent resolution in June 1934 directing the Federal Trade Commission to investigate conditions with respect to the sale and distribution of milk and other dairy products.[90] Decline in the price of milk to the farmer had produced severe hardships and suffering to milk producers throughout the United States and strikes and violence in many rural and metropolitan centers. The Resolution went on to say that the continuation of the practices then engaged in by milk distributors and certain leaders of milk cooperatives, seriously endangered the efforts of the Agricultural Adjustment Administration and of the several States to alleviate and remedy the distress so widespread among dairy farmers in the United States at the time. If this distress were permitted to continue the result would be the destruction of the already sorely pressed agricultural industry. Congress clearly noted the inability of the states to cope with an emergency situation and proceeded to initiate its own action.
In like manner the Tobacco Control Act of 1934 was aimed at improving conditions in the tobacco-growing industry by placing it on a sound financial and economic basis and by eliminating unfair competition and practices in the production and marketing of tobacco entering into the channels of interstate and foreign commerce. Moreover the Act was in general designed to “relieve the present emergency with respect to tobacco.”[91] The Sugar Act of 1937 permitted the President to suspend certain of its provisions upon a finding that a national economic or other emergency exists with respect to sugar or liquid sugar.[92] The President found conditions sufficiently severe in the sugar industry to declare a sugar emergency in 1939, 1942, and 1947.[93]
A 1942 Presidential Proclamation noted that codfish constituted one of the basic staples in the diet of the low-income groups in Puerto Rico. Unfortunately, the war imposed severe limitations on this import from Canada, Newfoundland and Labrador, thereby vitally affecting Puerto Ricans dependent on this basic food in their diet.[94] The President sought a quick remedy by invoking the emergency provisions of the Tariff Act of 1930[95] to authorize the duty-free importation of “jerked beef ... a satisfactory substitute for codfish,” at least according to the proclamation. Invoking the same statute, the President, again in April 1942, authorized the duty-free importation of food, clothes, and medical, surgical, and other supplies by or directly for the account of The American National Red Cross for use by that agency in emergency relief work in connection with the “war emergency.”[96]
EMERGENCIES OCCASIONED BY NATURAL CATASTROPHES
Drought: Two statutes and one Presidential Proclamation in this category attribute emergency conditions to drought. In February 1934 Congress authorized the Farm Credit Administration to make loans for feed for livestock in drought- and storm-stricken areas.[97] The Emergency Appropriation Act for fiscal 1935 appropriated funds to meet the emergency and necessity for relief in stricken agricultural areas and in another section referred to “the present drought emergency.”[98] The Presidential Proclamation noting that an unusual lack of rain in several western and mid-western states had caused an acute shortage of feed for livestock,[99] declared an emergency under the suitable provision of the 1930 Tariff Act and authorized suspension of duties on livestock feeds. Only livestock owners in the affected area were eligible to benefit from duty free livestock feeds.[100]
The Communications Act of 1934[101] and its 1951 amendment[102] grant the President certain powers in time “of public peril or disaster.” The other statutes provide for existing or anticipated emergencies attributable to earthquake, flood, tornado, cyclone, hurricane, conflagration and landslides.[103]
Agricultural Pests: A joint resolution of April 1937 made “funds available for the control of incipient or emergency outbreaks of insect pests or plant diseases, including grasshoppers, Mormon crickets, and chinch bugs.”[104] Funds were appropriated on this authorization later that month.[105]
Famine: The India Emergency Food Aid Act of 1951 provided for emergency shipments of food to India to meet famine conditions then ravaging the great Asian sub-continent.[106] In August 1953 Congress enacted general enabling legislation to permit the President to furnish emergency assistance on behalf of the people of the United States to friendly peoples in meeting famine or other urgent relief requirements.[107] Thus the American Congress has sometimes defined emergency in terms of occurrences in other countries.
NATIONAL SECURITY EMERGENCIES
These may be cataloged under the heads of (1) Neutrality, (2) Defense, (3) Civil Defense, (4) Hostilities or War.
Neutrality Emergencies: For a nation which, at least during the 1930s raised to the topmost position on its list of twentieth century mistakes its involvement in the First World War, and which during the same period embraced the policy of non-involvement in future wars, the chief problem of national security was not so much to be prepared for war or to avoid the occurrence of war, as it was, rather, to stay out of other people’s wars, all wars being other people’s. The existence of a war elsewhere in the world, especially one involving a major power, creates the need for emergency action designed to avoid the greatest of all emergencies, participation in a war. This is the meaning of the Neutrality Act of 1935 and its successors. The import thereof is embodied in the Presidential Proclamations which, under the Neutrality Acts, proclaimed the existence of wars between states or factions within states; but also the more important Proclamation of September 8, 1939 which, without citing the acts, declared the existence of a national emergency “to the extent necessary for proper observance, safeguarding, and enforcing of the neutrality of the United States and the strengthening of our national defense within the limits of peacetime authorizations.”[108] Neutrality doctrine, oriented as this was, contained the seeds of a more aggressive policy, and it was appropriate that the President should phrase his May 27, 1941 declaration of an unlimited national emergency as an enlargement upon the earlier Proclamation. The President declared that an unlimited national emergency confronting the country required that its military, naval, air and civilian defenses be placed in a condition of readiness to repel any and all acts or threats of aggression directed toward any part of the Western Hemisphere.[109] The need was now for adequate preparation rather than insulation. President Roosevelt’s forthright statement of the Nation’s security requirements left little doubt that we had passed from neutrality to all-out preparedness as a national policy. For the security of this Nation and Hemisphere, we should pass from peacetime authorizations of military strength to whatever basis was needed to protect this entire hemisphere against invasion, encirclement or penetration by foreign agents.[110] The concept of neutrality dominant for a few years had been superseded by events.
Defense: Many of the statutes directed at meeting the threat to national survival posed by war are phrased in terms of the existence of war or threat of war. Thus it is not rigidly possible to assign separate pigeon-holes to those statutes which explicitly or by inference define emergency in terms of the need for defense preparedness, and those which define emergency in terms of the need for response to existing hostilities. The 1951 amendments to the Universal Military Training and Service, like the 1940 Act,[111] by inference suggest that military emergency is not related solely to the existence of hostilities. The President is authorized under the statute “from time to time, whether or not a state of war exists, to select and induct for training in the National Security Training Corps ... such number of persons as may be required....”[112] The Interior Department Appropriation Act for fiscal 1948 included provision for cases of emergency caused by fire, flood, storm, act of God, or sabotage.[113] One cannot draw too sharp a distinction between war and peace; an act of sabotage is as likely as fire, flood, storm, or act of God. An Act of November 1940 launches upon an extensive list of national-defense material and national-defense premises—so comprehensive as to include anything whatsoever associated with defense production or transportation, including public utilities—and lists punishments for the willful injury or destruction of war material, or of war premises.[114] And following the war, it must be made clear that the emergency and the need for emergency action continue. The war emergency has reverted to a defense emergency. And so we turn to the First War Powers Act of 1941 and revise it “by striking out the words ‘the prosecution of the war effort’ and ‘the prosecution of the war’ and inserting the words ‘the national defense’.”[115]
Civil Defense: By Proclamation, on October 22, 1941, having in the spring of that year created an Office of Civilian Defense, President Roosevelt indicated that among the facets of a war emergency might be the endangering of civilian lives and property, and he invited all persons throughout the nation to give thought to their duties and responsibilities in the defense of this country, and to become better informed of the many vital phases of the civilian defense program.[116] The Federal Civil Defense Act of 1950 contemplated an attack or series of attacks by an enemy of the United States which conceivably would cause substantial damage or injury to civilian property or persons in the United States by any one of several means: sabotage, the use of bombs, shellfire, or atomic, radiological, chemical, bacteriological, or biological means or other weapons or processes.[117] Such an occurrence would cause a “National Emergency for Civil Defense Purposes,” or “a state of civil defense emergency,” during the term which the Civil Defense Administrator would have recourse to extraordinary powers outlined in the Act.[118] Powers and relationships set up to effectuate response to a preparedness or civil defense emergency are shortly seen to be convenient for application to any garden-variety emergency which happens along, and so it is not surprising to observe that arrangements created in anticipation of military emergency are soon applied to natural catastrophes. The New York-New Jersey Civil Defense Compact supplies an illustration in this context for emergency cooperation. “‘Emergency’ as used in this compact shall mean and include invasion or other hostile action, disaster, insurrection or imminent danger thereof....”[119]
Hostilities or War: The Tariff Act of 1930[120] which has already been cited a number of times in this chapter, permitted certain action by the President whenever an emergency exists by reason of a state of war, or otherwise. The Communications Act of 1934 and its 1951 amendment grant exceptional powers when there exists war or a threat of war.[121] The 1940 National Defense Act amendments extended enlistments in the Army in time of war or other emergency.[122] The May 1945 extension of the Selective Training and Service Act continued it in effect for the duration of hostilities in the present war.[123] And the threat seems the more intimate when the emergency is defined in terms of enemies who have entered upon the territory of the United States as part of an invasion or predatory incursion, ... to commit sabotage, espionage or other hostile or warlike acts.[124] The 1950 Emergency Detention Act[125] permits the President to declare the existence of an Internal Security Emergency, upon the occurrence of invasion, declaration of war by Congress, or insurrection within the United States.
PERCEIVING THE EXISTENCE OF AN EMERGENCY
Congress is more than likely to delegate to the President power to determine an emergency’s existence, sometimes providing him with connotative definitions—such as “by reason of flood, earthquake, or drought”—for guidance. It is particularly inclined to permit the President to declare the termination of an emergency, frequently hinging the life of an emergency statute to such a Presidential declaration or to the continuance of emergency previously proclaimed by the President. But there is a growing tendency for the Congress to grant contingent powers which may be exercised in the event of a declaration of emergency either by Congress or the President, and sometimes by Congress alone. We discuss elsewhere the growing trend toward reservation to the Congress of power to terminate an emergency through adoption of a concurrent resolution (which does not require the President’s signature). The Emergency Detention Act provision for declaration of an Internal Security Emergency, mentioned above, hinges the presidential declaration, among other things, to a prior Congressional declaration of war. Thus when Congress has declared a war emergency to exist, the President, at his discretion may declare the existence of an Internal Security Emergency caused by the prospect of internal subversion. Congress, perhaps, forecast the future trend of legislative-executive relations in this field and in the adaptation of emergency action when in the First Decontrol Act of 1947 it declared “in each ... limited instance [that it is necessary to continue emergency controls in effect] the authority for such emergency controls and war powers should not be exercised by the grant of broad, general war powers but should be granted by restrictive, specific legislation.”[126]