Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

In June 1939, Congress set up a program for the training of civil aircraft pilots.[128] The Navy Department Appropriations Act for fiscal 1941[129] included an emergency fund to enable the President, among other things, to procure and train civilian personnel necessary in connection with the production of critical and essential items of equipment and material and the use or operation of such equipment and material. A month later, Congress authorized the Secretary of War, during the period of any national emergency declared by the President, to employ laborers and mechanics in excess of forty hours per week, at time and one-half for overtime.[130] Another 1940 law suspended during the national emergency statutory provisions imposing the eight hour day for Maritime Commission contractors.[131]

Section 801 of the Second War Powers Act of 1942 authorized the President to direct the assignment of Civilian Conservation Corps manpower to protect the munitions, aircraft, and other war industries, municipal water supply, power, and other utilities, and to protect resources subject to the hazards of forest fires.[132]

Emergency conditions may lead to relaxation of the traditional American rule, based upon the assumption that public employment is a privilege and upon security grounds, that aliens are ineligible for governmental positions—especially positions in the military establishments. In 1946 Congress suspended statutory provisions prohibiting the employment of aliens.[133] Thus the Secretary of the Navy could authorize the Navy Department to employ non-citizens whose special technical or scientific knowledge or experience would be of benefit to the military services of the United States. The wisdom of this legislation may be more readily appreciated when it is remembered that German rocket experts like Dr. Werner von Braun were able to serve in the United States rather than behind the Iron Curtain. Similarly, as illustrated by the Selective Service Act of 1948,[134] effective mobilization of the labor force requires exemption of some specially skilled persons from military conscription. This Act authorized the President to provide for the deferment from training and service certain categories of individuals in many different fields as found to be necessary to the maintenance of the national health, safety, or interest.

Work stoppages are the nemesis of any defense production program. The wartime efforts to prevent or speedily terminate such stoppages are reported in the next section, on the theory that they were primarily coercive in nature. The Defense Production Act of 1950,[135] however, clearly reflects the statutory trend in the United States against the outlawing of strikes in time of emergency. Section 502 of the Act emphasizes that national policy is to place primary reliance upon the parties to any labor dispute to settle their differences through negotiation and collective bargaining, making full use of available mediation and conciliation facilities. All settlements should be made in the national interest. The President is to initiate strike settlement conferences, with representatives of the public present, but no action inconsistent with the Labor-Management Relations Act of 1947 may be taken.[136]

Current information on the availability of essential skills must be maintained. The National Science Foundation Act of 1950 included among the functions of the agency that of maintaining a register of scientific and technical personnel and providing a central clearinghouse for information covering all scientific and technical personnel in the United States.[137]

The Military Services: Maintenance on active duty or in reserve status of armed forces components adequate to the defense of the United States is of continuing concern to the government. It is not alone in time of war that attention is given to the adequacy of the military services. Thus the 1930’s witnessed a series of amendments to the 1916 National Defense Act designed to improve the status of the reserve components of the Army. In June 1933, during the famous first hundred days of the Roosevelt administration, it was not too preoccupied with depression legislation to secure legislation introducing changes into procedures for establishing National Guard policy. All policies and regulations affecting the organization, training and distribution of the National Guard were to be prepared by committees of appropriate branches or divisions of the War Department General Staff.

The Guard would be entitled to equal representation with the Regular Army in formulating Guard policies, but the paramount fact was that of federal supervision and integration of the National Guard.[138] Further, the President was empowered to determine the number of reserve officers in the various grades to be appointed to the Officers’ Reserve Corps, and to make such appointments, subject to Senatorial approval for ranks above Colonel.[139] This is a characteristic extension of the president’s power as Commander-in-Chief.

Two years later, in June 1935, a further amendment to the 1916 statute gave the President authority in an emergency at any time to order officers of the National Guard to active duty for the duration of the emergency, with the proviso, however, that no officer could be employed on active duty for more than fifteen days in any calendar year without his own consent.[140] Later that year the President was authorized to call annually one thousand Reserve Officers (mostly R.O.T.C. graduates) for a year’s active duty with the Regular Army in the grade of second lieutenant. Only those who applied and who had been screened by the War Department were eligible.[141]

Continuing to elaborate amendments to the National Defense Act, Congress, in April 1938, established the requirement that line officers should not be detailed to or remain as members of the General Staff Corps unless two of their immediately preceding six years had been served in actual command of or on duty other than General Staff duty, with troops of one or more of the combatant arms or as instructor with the National Guard, Organized Reserves, or Reserve Officers’ Training Corps.[142] Two days later in another amendment to the basic act, Congress provided for establishment of a Regular Army Reserve, membership in which was restricted to persons under 36 years of age who had served in the Regular Army and from which an honorable discharge had been received.[143] The Regular Army Reserve was subject to call to active duty by the President in case of emergency declared by him. Within six months after the termination of an emergency declared by the President, the Reserve forces were to be placed in an inactive status or discharged, whichever was the more appropriate.[144]

In June 1938 the 1916 statute was amended to increase the allowed strength of enlisted men in the Army Air Corps from 16,000 to 21,500.[145] That same month an earlier Naval Reserve statute (Act of February 28, 1925) was superseded and a Naval Reserve to consist of the Fleet Reserve, the Organized Reserve, the Merchant Marine Reserve, and the Volunteer Reserve was created. All were to constitute a component part of the Navy.[146] The same Act also provided for a Marine Corps Reserve.[147] The reserve units were to be composed of persons transferred, enlisted, or appointed to them.[148]