Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

When it authorized the establishment of a long-range proving ground for guided missiles in 1949, Congress stipulated that prior to the acquiring of lands under this law the Secretary of the Air Force had to come “into agreement with the Armed Services Committees of the Senate and the House of Representatives with respect to the acquisition of such lands.”[582] This clearly established a joint committee-agency decision-making arrangement. A 1951 statute required the Secretaries of the Army, Air Force, and Navy, and the Federal Civil Defense Administrator, to come into agreement with the two Armed Services Committees whenever real estate actions by or for the use of the military departments or the Federal Civil Defense Administration were involved.[583] The Emergency Powers Interim Continuation Act of July 1952, continued this provision in force.[584]

In conclusion we mention a device for securing to congressional committees a form of suspensive power over administrative action. This is the familiar provision for suspension of deportation orders where either the Immigration and Naturalization Committee of the House or of the Senate Committee on Immigration has favorably acted on a bill for the relief of the alien in question. The Act cited here was restricted in effect to the Seventy-fifth Congress, and stays of deportation under it were to be terminated at least by the date of adjournment of the first regular session of the Seventy-sixth Congress.[585]

Accounting to Congress

The preponderance of relevant data collected under this particular head consists of routine requirements, inserted in delegatory statutes, that administrators periodically report to the Congress on the discharge of their functions. It need hardly be stressed that by this method of acquiring information Congress not only equips itself with data vitally prerequisite to its exercise of the function of oversight, but that its demand for such information in itself represents a form of control. The necessity of periodic reporting interposes an effective psychological hurdle between the administrator and intentional malfeasance. Certain reporting provisions clearly reflect a desire to maintain a continuous check upon the administration; others appear directed more at securing information and advice as an aid to policy-making.

Reporting Administrative Activity: In delegating powers in the areas of defense, foreign affairs or in time of emergency, Congress is inclined to insist upon frequent reporting, and to specify carefully the kind of information and supporting documentation it expects to receive. It may stipulate, as in the Japanese Evacuation Claims Act of 1948 and the Mutual Defense Assistance Act of 1949, the subjects on which it wishes reports, and refrain from imposing an obligation to report at specified calendar intervals. The Japanese Claims Act instructed the Attorney General to submit to Congress a full and complete statement of all adjudications, name and address of each claimant, the amount of the settlement and a brief synopsis of the facts of each claim case and the reasons for each adjudication.[586] A 1935 statute required that the Secretary of the Navy report to Congress at the next regular session thereof all expenditures on ship repairs in excess of the amounts specified by appropriations legislation.[587] In April, 1937 the Secretary of Agriculture was granted one million dollars to “be expended for the control of grasshoppers, Mormon crickets or cinch bugs,” and required to report to Congress on his handling of the fund.[588] Similarly, in establishing an emergency fund for the President in 1940, to enable him to furnish government-owned facilities to privately owned plants and procure and train civilian personnel in the production of critical materials, Congress stipulated that an account be kept of all expenditures made from the fund and required that a report on the condition of the fund be submitted to the Congress on or before June 30, 1942.[589]

The Federal Emergency Relief Act of 1933 went so far as to require the Federal Emergency Relief Administrator to print a report of his activities and expenditures monthly, and submit them to the President and the Congress.[590] The foregoing, like the statute of June 1942, mobilizing small business concerns for war production, which provided for reports to Congress by the Attorney General at least once every quarter (“not less frequently than once every one hundred and twenty days”[591]) is somewhat unusual. Standard practice requires quarterly,[592] biannual,[593] or annual reporting. Annual reporting may be in terms of a report to be submitted to both houses of Congress “on the first day of”[594] or “at the beginning of”[595] each regular session of Congress. However, it more likely will be phrased an “annual report.”[596]

Congress sometimes requires great specificity in administrative reporting. Exemplifying such demands are the following statutes. A 1950 statute limited the number of Army officers who might be assigned to permanent duty in the Department of the Army and the number who could be assigned to the Army General Staff at any one time. The Secretary of the Army is required to report quarterly to the Congress the number of officers and the justification therefor.[597] This is a simple but extremely precise reporting requirement. The May, 1937 amendment to the Neutrality Act more generally defined and described the various topics to be covered in the annual report of the National Munitions Control Board, but stipulated that the report contain a list of all persons required to register under the provisions of the Act, and full information concerning the licenses which had been issued thereunder.[598] A like blend of liberality and rigidity in stipulating the content of reports was manifested in a 1937 Act designed to establish a government monopoly of the production of helium gas.[599] The National Munitions Control Board was to include in its Annual Report to the Congress full information concerning the export licenses issued thereunder and whatever additional information and data the Board considered of value in the determination of questions related to the exportation of helium gas.[600]

The Secretary of the Navy was directed in 1938 to report annually to the Congress all agreements entered into for leasing naval petroleum reserves;[601] and a 1939 statute to facilitate certain construction work for the Army required the Secretary of War to report annually to the Congress all contracts entered into under authority of the Act, including the names of the contractors and copies of the contracts concerned, together with the amounts involved.[602] The Sixth Supplemental National Defense Appropriation Act of 1942 established the duty of the Secretary of War and Secretary of the Navy to submit a complete list of all contracts awarded in excess of $150,000 together with the names of the contractors, and the subject matter of each contract. If the contract had been awarded without competitive bidding, the Secretaries had to supply Congress with a statement of the principal or controlling reason for selection of the contractors. Reports had to be submitted within sixty days after the end of the fiscal year.[603]

In the main the congressional requirement of reporting is cast in general terms, permitting the administrator considerable discretion as to content and precise date (if not periodicity) of submission. On occasion, however, Congress is disposed to insist upon specificity in exacting reports from agencies, particularly agencies assigned such tasks as the registering of individuals, licensing, letting contracts, and the like.

Informing and Advising the Congress: A large number of statutes require reports which appear not so much directed at enforcing responsibility on the part of executive agencies as eliciting information and specialized advice for policy-making. In 1934 Congress required the Federal Power Commission to submit a report and analysis of rate schedules charged by private and municipal utility companies at the earliest practicable date.[604] The Tennessee Valley Authority Act[605] contains a reporting requirement commonly found in legislation pertaining to newly established programs. The President was directed to recommend to Congress such legislation as he deemed proper to carry out the general purposes stated in the law.[606] His recommendations were to be made from time to time as work progressed. In 1934 Congress authorized the President “to appoint a Commission composed of five members ... for the purpose of making an immediate study and survey, and to report to Congress not later than February 1, 1935, its recommendations of a broad policy covering all phases of aviation and the relation of the United States thereto.”[607] In setting up the Federal Communications Commission in 1934 Congress indicated that it expected the Commission’s annual reports to contain information and advice facilitating further congressional policy-making in the communications field. The Commission was directed to prepare an annual report for the Congress which would contain information and data collected by the Commission considered to be of value in the determination of questions connected with the Commission’s regulatory responsibilities involving wire and radio communication and radio transmission of energy. The Commission was also required to submit recommendations for additional legislation in the report if the Commission believed it necessary. And on February 1, 1935 the Commission was specifically directed to make a special report to the Congress recommending amendments to the F.C.C. Act.[608]