Scattered through the statute books, of course, are numerous authorizations to defense agencies to acquire land for specific projects. For example, a July 1939 statute authorized the Secretary of War to acquire fourteen described plots,[275] and a May 1949 statute authorized the Secretary of the Air Force to establish a joint long-range proving ground for guided missiles and other weapons and to acquire lands and rights necessary to set up the project.[276] An Act of 1951 authorized the Secretary of the Navy to enlarge existing water-supply facilities for the San Diego, California area for the purpose of insuring the existence of an adequate water supply for naval installations and defense production plants in that area.[277] Of equal, if not greater significance than the scope of the delegation contained therein are the provisions for extension of Congressional control set-out in these authorizations for acquisition of specific items.
In the Second War Powers Act, breadth of Congressional delegation rather than intensity of control is the dominant fact. For example, the President was authorized to permit the Secretaries of War and Navy, or any other officer, board or commission, to acquire real property by any means necessary, including condemnation, to insure its use by the Government when needed.[278] Immediate possession might be taken after filing of a condemnation petition.[279] Among the many powers granted to the Federal Civil Defense Administrator in the 1951 statute creating the FCDA was that of procuring by condemnation or otherwise, constructing, or leasing materials and facilities.[280]
Because they are extremely scarce or non-existent in their natural state in the United States, a few elements or other commodities have been the object of intensive government efforts to either directly produce them on a full scale, or to encourage private production by acquiring and transferring to private firms certain of the assets requisite to production. These are nitrogen, helium gas, fuels, rubber, synthetic liquid and abaca (a plant the fiber of which is used in making hemp).[281] Thus the Board of Directors of the Tennessee Valley Authority were given power to exercise the right of eminent domain[282] and to make and sell fixed nitrogen and fertilizers with the specific injunction that it maintain in stand-by condition suitable facilities for the production of explosives in the event of war or a national emergency.[283] The plant might be used for the fixation of nitrogen for agricultural purposes or leased, as long as conversion to war production could be made quickly. The TVA of course was authorized to produce and sell electric power,[284] but the government reserved the right in case of war or national emergency declared by Congress to preempt TVA-produced electricity as well as nitrogen.[285] The Helium Gas Conservation Act of 1937 authorized the Secretary of the Interior, through the Bureau of Mines, to acquire lands, and acquire or construct such plants as were necessary to establish a federal monopoly of helium.
In 1942 the Secretary of Agriculture was authorized to construct or operate factories for the growth and processing of guayule and other rubber-bearing plants.[286] In 1947 Congress proclaimed the continued existence of a short supply of rubber, a highly strategic and critical material needed for the common defense and which cannot, in its natural state, be grown in the United States. It reaffirmed the policy that there shall be maintained at all times in the interest of the national security and common defense, in addition to stock piles of natural rubber, a technologically advanced and rapidly expandable domestic rubber-producing industry. To this end, the powers of the United States to manufacture and sell synthetic rubber were to continue in force and the government would retain at least the minimum copolymer plant capacity to produce “not less than six hundred thousand long tons per year.”[287] A year later, in March 1948, a policy of reliance upon the development of a free, competitive synthetic-rubber industry and the termination of government production was enunciated, the President to exercise certain powers of control to insure the existence of an extensive government demand for domestic synthetic-rubber.[288]
The synthetic liquid fuels program was established in 1944. The Secretary of the Interior, acting through the Bureau of Mines, was authorized to develop and maintain one or more demonstration plants to produce synthetic liquid fuels from coal, oil shale, and other substances, and one or more demonstration plants to produce liquid fuels from agricultural and forestry products. The Bureau of Mines would also develop all facilities and accessories for the manufacture, purification, storage, and distribution of the products.[289] Unlike the other plans for production of essential defense elements or commodities, this program was not designed directly to meet a major portion of defense needs for the commodity produced. Rather, the plants were to be of the minimum size which would allow the government to furnish industry with the necessary cost and engineering data for the development of a synthetic liquid-fuel industry.[290]
In the Abaca Production Act of 1950, Congress declared that abaca, a hard fiber used in the making of marine and other cordage, is a highly strategic and critical material which cannot be produced in commercial quantities in the continental United States, and of which an adequate supply is vital to the industrial and military requirements for the common defense of the United States.[291] The federal government was therefore to continue the program for the production and sale of abaca in which it was engaged at the termination of hostilities and to encourage abaca production throughout the world. The total acreage produced by the government was not to exceed fifty thousand, fluctuating below that upper limit at the discretion of the President.[292]
The year of Dunkirk witnessed a number of Congressional authorizations to the Executive to acquire and either directly utilize, or pass on to private enterprise, material of war, or productive equipment and facilities. In mid-1940 the President was given power to authorize the Secretary of War to manufacture in factories and arsenals under his jurisdiction, or otherwise procure, coast-defense and anti-aircraft material, including ammunition therefor, on behalf of any American Republic. He might also establish repair facilities for such equipment.[293] This was shortly extended to manufacturing for the government of any country whose defense the President deemed vital to the defense of the United States.[294] Later in 1940 he was authorized to requisition and take over for use of the United States any military or naval equipment or munitions which had been ordered for export, but which then could no longer be exported. Certain items of a military nature could not, for example, be sent to France once the Germans had occupied that country. The President could dispose of such material to a private corporation or individual if such action was deemed to be in the public interest.[295] The June 30, 1942 termination date was moved forward to June 30, 1944, and the President’s power enlarged to requisition in the interest of national defense or prosecution of war in July 1942.[296]
In June 1940 the Secretary of the Navy was authorized to provide necessary construction facilities or manufacturing plants on federal land or elsewhere, and to man them with federal employees or otherwise whenever he found it impossible to make contracts or to secure facilities for procurement or construction of items authorized in connection with national defense.[297] By October 1941 this authority had grown to a general authorization to the President, that if he found that the use of any military or naval equipment, supplies, or munitions, or machinery, tools, or materials necessary for the manufacture, servicing and operation of such equipment, were needed for the defense of the United States the President could requisition such property. Only two conditions prevailed: first, that the need was immediate and impending, and second, that just compensation was paid to the owners. The original expiration date of June 30, 1943 was later changed to June 30, 1944.[298] But long before the Second World War, Congress gave the President authority to requisition merchant vessels. In Section 902 (a) of the Merchant Marine Act of 1936 the government reserved the right to requisition any vessel documented under the laws of the United States, during any national emergency declared by proclamation of the President.[299] In authorizing the President to utilize the power of eminent domain to acquire land needed for pipe-line construction by private firms, Congress provided that in the event it was impracticable for any private person promptly and satisfactorily to construct such lines, the President could provide for the construction by such department as he might designate.[300] The government thus was privileged to go into the pipe-line business, constructing and operating defense needed pipe-lines. Among the prerogatives which Congress made available to the Secretary of the Navy for purposes of insuring adequacy of maritime salvage operations during the war, was that of acquiring such vessels and equipment as he might deem necessary therefor.[301] The Secretary also was empowered to transfer, by charter or otherwise, such equipment for operation by private salvage companies.
The Defense Production Act of 1950 gave the President powers virtually equal to those granted by Congress to the President in 1941. Again the President was empowered to requisition needed materials for the defense of the United States.[302] And in July 1953 the three armed service secretaries were empowered to acquire, construct, establish, expand, rehabilitate or convert industrial plants, either publicly or privately owned, as might be needed for the defense of the United States. The statutory language followed the familiar prescription that acquisition could be by purchase, donation, lease, condemnation or otherwise as necessary.[303]