Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

ABOUT THE AUTHORS

J. Malcolm Smith received his education at the U.S. Naval Academy, the University of Washington, and Stanford University. After three years as an officer in the Army during World War II, he received an A.B. degree from the University of Washington in 1946, and an M.A. (1948) and Ph.D. (1951) from Stanford University. He has combined academic and governmental service since he began his career as an instructor in political science at Stanford University in 1947. He has taught at Columbia University and the University of California. He organized the first World Affairs Council in Los Angeles, for the Foreign Policy Association and served as its first Executive Director from 1952-54.

Since coming to Washington, D. C., Mr. Smith served as a consultant to the Assistant Secretary of the Air Force (1957-58), and the President’s Commission on Civil Rights (1958-59) before joining the staff of Senator Thomas H. Kuchel of California as Assistant to the Minority Whip of the U.S. Senate.

Cornelius P. Cotter began his academic career at Stanford University in 1946 following three years as a Navy Seabee in the Pacific during the Second World War. He received his A.B. in 1949 from Stanford, and an M.P.A. (1951) and Ph.D. in government (1953) from Harvard University. He was a Sheldon Travelling Fellow from Harvard University to the University of London from 1951-52. After serving as Instructor in Government at Columbia University 1952-53, he returned to his alma mater, Stanford, in 1953 as an Assistant Professor of Political Science. He is currently on leave as an Associate Professor from Stanford University to serve as a special assistant to the Chairman of the Republican National Committee, Senator Thruston B. Morton. From December 1958 to December 1959, he served as the Citizenship Clearinghouse Fellow to the Republican National Committee.

The authors have contributed to the Western Political Quarterly, Stanford Law Review, the Journal of Politics, and the Midwestern Political Science Review. Currently they are collaborating on a textbook in American Government.

This study of presidential emergency powers was initiated by the authors in 1955 while teaching at Stanford and the University of California; revision and expansion were undertaken in Washington, D. C., during 1959 and 1960.

Chapter I
INTRODUCTION

The general welfare, and military effectiveness of a modern industrial nation depend upon the harmonious interaction of a complex, interdependent network of production and transportation facilities. The interruption of this process at any of a myriad of critical points can disrupt the supply of essential civilian and military materials, possibly undermining the economic health or military security of the nation.[1] The urban concentration of population and the refinement of communication devices and techniques for manipulating public opinion make it increasingly possible to instill in the civilian population an hysteria and terror which could effectively thwart national mobilization.[2] Realization of the magnitude of the problem, and a pervasive fear of military assault, vitally influence the process of continuous redefinition of the balance between collective authority and individual liberty which is the essential task of democratic government in war as in peace. Emergency government has become the norm for twentieth century constitutional states.

An assessment of the adequacy with which democratic government has, in the recurrent economic and military emergencies since 1933, combined mobilization of “the ... power of every individual and of every material resource at its command”[3] toward the objective of national survival and well-being, with the protection of basic individual freedoms and the principle of responsible government which are the heart of democracy, must in substantial part rest upon an analysis of the contents of the statute books. That is the purpose of this study. Its classification of legislative delegations of emergency powers to the executive since 1933 should provide not only indication of the extent to which coercive powers over persons and property have been granted the executive in the name of emergency, but also a framework for the organization of a series of studies into the use of such powers by the executive branch, and the success of congressional and other efforts to maintain responsible administration in time of emergency.

There exists no dearth of recorded efforts to define the ultimate scope of the constitutional emergency power of the American executive. Various justices of the Supreme Court have hypothesized, at one end of a continuum, inflexible constitutional restraints upon executive response to perceived emergency,[4] and at the other end an emergency power which is either unrestrained[5] or unrestrainable.[6] In this manner the Supreme Court has sought to resolve the conundrum, “How can a virtually unlimited emergency power and a systematic body of constitutional limitations upon government action logically coexist? How can constitutionalism be ought but an anachronism in the twentieth century unless constitutional governments are equipped with adequate legal authority to carry the body politic through economic and military emergencies of staggering dimensions?”