Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

Air transportation received the attention of Congress in a June 1934 statute establishing a commission to make a report to the Congress recommending an aviation policy.[403] The Commission was to report its recommendations of a broad policy covering all phases of aviation and the relation of the United States thereto. Subsequently the Civil Aeronautics Act of 1938 was enacted, embodying congressional policy in this field.[404] In 1950 a security provision was added to the Act, permitting the Secretary of Commerce whenever he determined such action to be required in the interest of national security to establish airspace zones in which civilian flights could be restricted or prohibited.[405]

Another original statute in this field was the Communications Act of 1934, whereunder interstate and foreign commerce in communication by wire and radio is regulated. Federal controls were aimed at insuring existence of a rapid, efficient, Nation-wide, and world-wide wire and radio communication service for the convenience of the public and for the purpose of national defense.[406] Created thereunder was the Federal Communications Commission to which elaborate regulatory powers were granted. During the continuance of a war in which the United States was engaged, the Act authorized the President to direct that such communications as in his judgment were deemed to be essential to the national defense and security should have preference or priority with any carrier subject to the Act. He could give these directions at and for such times as he determined and he could modify, change, suspend or annul them.[407] The President also was authorized to prevent any obstructions by physical force or intimidations by threats of physical force of interstate and foreign radio or wire communications.[408]

The pipe-line construction provision of July 30, 1941 required that pipe lines constructed with government aid be constructed subject to whatever terms and conditions the President prescribed as necessary for national defense purposes.[409] The second War Powers Act of 1942 gave the Interstate Commerce Commission wartime authority with respect to motor carriers, to be exercised under circumstances and procedure equivalent to the authority it had with respect to other carriers. It could issue reasonable directives with respect to equipment, service and facilities of motor carriers and require the joint use of equipment, terminals, warehouses, garages, and other facilities. Motor carriers were to be subject to the same penalties for failure to comply with action taken by the Commission as any other carriers under its jurisdiction.[410] In June 1953 Congress continued in effect traffic priority powers of the I.C.C. which had been granted during the war and continued by the Emergency Powers Continuation Act.[411]

Control of Carriage by American Vessels: The Neutrality Act of 1935 had provided that, following a presidential finding of the existence of war between two foreign states, it would be unlawful for any American vessel to carry any arms to any port of the belligerent or to any neutral port for trans-shipment to, or for the use of, belligerents.[412] Penalty for violation of this prohibition might include $10,000 fine, five years imprisonment, and, in addition, the vessel, her tackle, apparel, furniture, equipment and armaments would be forfeited to the United States.[413] In addition vessels were prohibited from carrying war material to belligerent warships which presumably would effect transfer at sea. If the President or his delegate had adequate reason to believe a ship about to carry war material to a belligerent warship, he could prohibit departure; or if the evidence did not warrant this, the owner or commander could be required to give a bond to the United States, with sufficient sureties, in whatever amount the President deemed proper, conditioned so that the vessel would not deliver the men or the cargo, or any part thereof, to any warship. Evasion of this prohibition subjected a vessel to the possibility of being confined to port for the duration of the war.[414] Application of this Act to Spain was effected by a Joint Resolution of January 8, 1937.[415]

The prohibition of American carriage of war material to belligerents in international or civil war was rephrased in the 1937 amendments to the Act but kept essentially intact. Section 10 of the 1937 Act explicitly prohibited the arming of American vessels engaged in commerce with any belligerent state, or any state wherein civil strife exists.[416] President Roosevelt immediately issued a Proclamation finding the existence of civil war in Spain, promulgating a list of articles to be considered material of war, and prohibiting their carriage to Spain by American vessels.[417]

The Neutrality Act was made more stringent in November 1939. While it was unlawful to export or transport war materials from the United States to a belligerent until all right, title, and interest therein had been transferred to some foreign government,[418] it was unlawful for American vessels to carry any passengers or any articles or materials to any belligerent.[419] Furthermore, the President was empowered to define combat areas, from which American vessels were by law excluded. The prohibition against arming American merchant vessels was continued. In August 1940, following the fall of France, and while the British prepared for a German channel invasion, the Act was liberalized to permit American vessels in ballast, unarmed and not under convoy to transport refugee children, under sixteen years of age, from war zones, or combat areas if the vessel were proceeding under safe conduct granted by all of the States named in the proclamations.[420]

In 1953 Congress placed on the statute books a provision suggestive of the old neutrality acts. Under this law the Secretary of the Treasury, or anyone designated by the President, could seize and detain any carrier-vessel, vehicle or aircraft carrying munitions of war from the United States. The authority to “seize and detain” came into operation whenever an attempt was made to export, ship or take out of the United States any munitions of war or other materials in violation of law. Moreover, the law became operative as long as there was “probable cause to believe” that prohibited items were being removed from the United States in violation of the law.[421]

The Merchant Marine Act of 1936 is, of course, another of those organic statutes designed to promote, rehabilitate, and regulate in the interest of the trade and of the public, a segment of the American transportation system. We have already seen that in this Act the government secured the right in time of war emergency to requisition American registered vessels. As a condition of the grant of subsidies toward the construction of vessels in American yards, the Maritime Commission reserved a power of final approval of the design of such vessels. This power was of course shared with the Navy Department which had to approve all defense features in the proposed vessel.[422] Under the terms of the Act any vessels, the construction of which was subsidized, were to be so designed as to be readily and quickly convertible into transport and supply vessels in a time of national emergency.[423] By permitting it to subsidize operation on approved routes, Title VI of the Act in effect enabled the Commission to control also the allocation of American shipping on the various world trade routes.

In July 1941 the President was given power, during the emergency which he had declared on May 27 of that year, to authorize the Maritime Commission to issue warrants entitling vessels to priority over merchant vessels not holding such warrants, in the use of facilities for loading, discharging, lighterage or storage of cargoes, the procurement of fuel, towing, overhauling, drydocking or repair of such vessels. Vessels holding warrants had priority among themselves in accordance with the rules of the Maritime Commission.[424] In granting warrants, the Commission was to make fair and reasonable provision for priorities. The criteria for helping the Commission determine priorities were: (1) the importation of substantial quantities of strategic and critical materials, (2) the transportation of substantial quantities of materials when such transportation was requested by any defense agency, and (3) the transportation in the foreign or domestic commerce of the United States of substantial quantities of materials deemed by the Commission to be essential to the defense of the United States.[425]

Certain controls were imposed on the staffing of American vessels. A statute of December 17, 1941 made it unlawful to employ any person or to permit any person to serve as radio operator abroad any vessel (other than a vessel of foreign registry) if the Secretary of the Navy disapproved the employment for any specified voyage, route, or area of operation and had notified the master of the vessel of the disapproval prior to the vessel’s departure.[426] In 1934 a new stipulation permitted the Commission to suspend the rule requiring radio operators to have at least six months service before being qualified as a radio operator. However, suspension of this qualification could not be retained once the emergency had been terminated.[427]