Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

In the Spring of 1942 the Foreign Agents Registration Act was adapted to changed conditions. Congress announced its purpose to protect the national defense, internal security, and foreign relations of the United States by requiring public disclosure by persons engaging in propaganda activities and other activities. Anyone acting for or on behalf of a foreign government, foreign political party or other foreign principal would be identified and the Government and the American people would be in a better position to appraise their statements and actions in the light of their associations and activities.[226] In addition to elaborating the definition of a foreign principal, the Act specified numerous exemptions from its registration provisions. Agents whose foreign principals were governments, the defense of which was deemed by the President to be vital to the defense of the United States, were not required to register provided their activities were not intended to conflict with any of the domestic or foreign policies of the Government of the United States.[227]

A related statute of October, 1940 also compelled certain groups to register with the Attorney General.[228] Four categories of organizations were required to register: (1) Organizations subject to foreign control and engaging in political activity, (2) Organizations engaging both in civilian-military activity and in political activity, (3) Those subject to foreign control and engaging in civilian-military activity, and (4) Any organization one of whose aims was the overthrow of a government or subdivision thereof by force or violence.[229] By political activity Congress had reference to activity aimed at the control by force or overthrow of the Government of the United States or any of its subdivisions.[230] An organization, according to the statute, was engaged in civilian-military activity if it gave or received instruction in the use of firearms or other weapons, or participated, with or without arms, in military maneuvers, drills or parades of a military or naval character. And an organization was deemed subject to foreign control if its financial support was derived directly or indirectly from a foreign government, or if its policy was determined by, or at the suggestion of, or in collaboration with, a foreign government.[231]

The registration statements were to contain the name and address of the organization, the names of officers and contributors, the qualifications for membership, organizational aims, assets, income, and activities. Violation of the Act might entail a fine of $10,000 and five years’ imprisonment.

The Internal Security Act of 1950 contains provisions similar to the older wartime law. Briefly stated, the Act defines “communist-action” and “communist-front” organizations, which together comprise a class of communist organizations.[232] Such organizations are compelled to register with the Attorney General, filing, in the case of communist-front organizations, a list of officers at time of registration and in the preceding twelve months; and, in the case of communist-action organizations, a list of officers and members for the preceding twelve months.[233] A complete financial accounting is required and current information must be supplied in annual reports.

In July 1954 Congress amended the reporting provision to require a listing, in such form and detail as the Attorney General might prescribe, of all printing presses and machines used or intended to be used by a communist-action or communist-front organization. The statute went so far as to require registration of any printing machine used by an organization in which the communists or affiliates had an interest.[234] Adequate procedural protection and provision for judicial review is afforded those charged with failure to register.[235]

The Communist Control Act of 1954 amplified the Internal Security Act. It purports to be an Act to outlaw the Communist Party and to prohibit members of communist organizations from serving in certain representative capacities, and for other purposes. Despite its title, the Act does not outlaw the Communist Party in the sense of making membership in it illegal and proscribing its existence. It simply deprives the Communist Party of certain rights, privileges and immunities attendant upon legal bodies created under the jurisdiction of the laws of the United States or any political subdivision thereof.[236] The Act then defines a new species within the genus communist organization.[237] In effect it amends the Internal Security Act by setting up the trilogy; communist-action, communist-front, and communist-infiltrated organizations. And communist-infiltrated organizations—a euphemism for communist dominated trade unions must register.[238] Such organizations are ineligible to act as collective bargaining representatives and are deprived of access to the National Labor Relations Board.[239]

The Act makes it illegal for any member of a communist organization, which either has registered with the Attorney General or been ordered to register by the Subversive Activities Control Board, “to hold office or employment with any labor organization, ... or to represent any employer in any matter proceeding arising or pending under the National Labor Relations Act.”[240]

Freedom of Association: The Communist Control Act of 1954 and the registration provisions of the Internal Security Act might well have been subsumed under the classification freedom of association. Both have grave implications for the freedom of individuals to associate at will and according to conscience with political and economic groups. And similarly far-reaching in implication for this traditional freedom are those provisions which, going one step further than stipulating disqualifications for office-holding in representative associations, prohibit the creation of an employer-employee relationship, or facilitate the disruption of such relationships where they already exist.

The wheel has taken a full turn since the American Congress in 1937 repealed a District of Columbia Appropriation Act provision that no part of any appropriation for the public schools would be available for the payment of the salary of any person teaching or advocating communism.[241] Today, of course, the trend is toward maximizing the political disqualifications for public and private employment. This trend can be traced from the pre-war efforts of the Congress to prevent penetration of defense industries and government agencies by subversives.

We look first to legal efforts to exclude persons conceived to be subversive from private employment, and then survey the statutes governing public employment. The Defense Production Act of June 21, 1940,[242] for example, imposed the rule that aliens working for a defense contractor whose contract involved access to classified information were ineligible to work for the contractor. If, however, the head of the government agency for whom secret work was being performed gave the contractor written consent to use aliens, the contractor was free to do so.