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]