Implicit in these definitions are the elements of intensity, variety, and perception. Presumably when the point of normal tolerance of danger has been passed, it remains possible to measure the intensity of the danger according to some scale. Obviously there are varieties of emergency. A war emergency differs in some respects from an emergency caused by natural catastrophe or industrial unrest. Emergencies vary in their source or cause, and in their impact. Finally, before corrective action can be taken, someone in a position of authority must perceive the existence of the emergency.
It would be idle to conduct an analysis of the problem of emergency in the constitutional state without first determining the range of situations which have been recognized by democratic legislatures and executives to constitute emergencies—i.e., to warrant exceptionally quick, vigorous, and possibly novel action. When the legislature enacts a standby statute, instead of itself proclaiming an emergency, to whom does it entrust the power to determine the existence of an emergency, and within what limits? What are the powers which democratic legislatures grant the executive branch, enabling it to so order individual and group behavior as, in the first instance, to avoid intensification of the threat to the life or well-being of community and state, and ultimately restore conditions to normal? Finally, what if any measures are prescribed for insuring responsible administration of such powers?
This chapter is addressed to the basic questions going to the nature of emergency—intensity, variety, perception. The remaining parts of this study respond to the other questions posed above.
Emergencies Vary in Intensity
The executive and the legislature certainly appear to think in terms of a scale of intensity when they declare emergencies. We might, perhaps, project our listing from the shadow land verging upon or falling just short of emergency. A Presidential Proclamation of 1934 speaks of regulations justified by the existence of “exceptional and exigent circumstances.”[57] The Central Intelligence Agency Act of 1949 uses the terms extraordinary and emergency interchangeably, speaking of expenditure of unaudited funds “for objects of a confidential, extraordinary, or emergency nature.”[58] The simple declaration “that a national emergency exists,”[59] contained in the President’s September 8, 1939 Proclamation of a neutrality emergency, will serve as well as any other enactment as a characteristic example of the scale of intensity necessary to declare a national emergency.
Beyond this intensity of emergency, Congress has addressed itself to “distressed” emergencies,[60] “serious” emergencies,[61] “intensified” emergencies,[62] “unprecedented” emergencies,[63] “acute” emergencies,[64] and at the outer extreme, “unlimited” emergencies.[65]
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]