Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

In the Price Control Act of 1946 Congress indicated its desire that the control of prices be terminated as rapidly as possible, and directed the President to recommend to the Congress whatever was judged by him as needed to supplement the control of prices and wages during the remainder of 1947.[609] The national emergency provisions of the Labor Management Relations Act provide that upon exhaustion of the procedures for deferring and attempting settlement of national emergency strikes “the President shall submit to the Congress a full and comprehensive report of the proceedings ... together with such recommendations as he may see fit to make for consideration and appropriate action.”[610] A final illustration is drawn from the June, 1951 amendments to the Universal Military Training and Service Act. This measure established a National Security Training Commission of five members which, in addition to generally supervising the training of the National Security Training Corps, was to submit to the Congress certain legislative recommendations. These recommendations were to include, but not be limited to—(a) a broad outline for a program to assure that the training be of a military nature, (b) measures for the personal safety, health, welfare and morals of members of the Corps and (c) a code of conduct.[611]

The Concurrent Resolution

The suggestion has been made that Congress would be better informed and could exercise a more adequate check upon the administration of delegated powers “if the major rules and regulations of the agencies were submitted to Congress under a provisional order system. Under this system they would become effective after a certain time, unless negatived by Congress.”[612] This would in effect adapt to American purposes the provisions of the British Statutory Instrument Act of 1946, requiring that important administrative rules and regulations issued under delegatory statutes be submitted to the Parliament, where they would be reviewed by a “Scrutiny Committee” of the Commons.

The resultant veto power might be exercised in a number of ways. A congressional committee might be given power to scrutinize and report on such rules and regulations, or delegated a final power to approve or disapprove. We have earlier noted the extent to which Congress has equipped committees with a power to review and approve or disapprove administrative action.

Were Congress to utilize the Joint Resolution as an instrument for approving or disapproving administrative action, no innovation would be involved. The Joint Resolution requires presidential signature to become effective. This legislative instrument traditionally has been relied upon to clarify congressional intent in delegatory statutes which it thought had been misinterpreted by administrative agencies or the courts. However, if in delegating powers to the executive, Congress conditioned the grant by reserving power to itself by concurrent resolution or by simple resolution of one house to define the terms under which the executive was to act and to review, approve or disapprove such administrative action, a signal departure from established practice would be recorded. In effect, the Congress would have retained the power to curb administration through legislative procedures which do not require Presidential signature to be effective, and which traditionally do not have the force of law, serving simply to express the intent of the Congress.[613]

While the Constitution provides that “every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary ... shall be presented to the President ... and before (they) take effect shall be approved by him,” concurrent resolutions have not for over a century and a quarter been submitted for presidential approval.[614] Apparently the earliest use of the concurrent resolution as a device for enhancing the ability of Congress to control administrative action is to be found in the Reorganization Act of 1932, followed by the Reorganization Act of 1939.[615] These statutes empowered the President to submit reorganization plans to Congress, the plans to have legal effect unless disapproved by concurrent resolution adopted within a prescribed period.

Within the past two decades all three instruments—the joint resolution, the concurrent resolution, and the simple resolution passed by one house—have been used by Congress in an attempt to retain influence and control over the administration of emergency programs. Whether for good or for bad, in statutes delegating emergency authority the present trend is pointed toward inclusion of congressional power to review administrative action by concurrent resolution.

DELEGATORY LEGISLATION INCORPORATING POWER TO CHECK BY CONCURRENT RESOLUTION

Congress appears to have pursued a variety of objectives in incorporating within delegatory statutes a power to influence or control administration through concurrent or simple resolution. (a) In some instances it has reserved power to terminate a statute or program by concurrent resolution. (b) It has asserted power to enable or require executive action by concurrent resolution. (c) Finally, it has made administrative exercise of delegated power subject to congressional approval or disapproval by concurrent or simple resolution. The forty odd delegatory statutes noted in the course of this study, which reserve to Congress the right to influence or limit administrative action by simple or concurrent resolution, will be discussed in this order.

Terminating Programs: Use of the concurrent resolution for the express purpose of terminating legislative delegations of power to the executive branch may take two forms: (a) congressional reservation of a power to repeal the authorizing statute, or (b) congressional reservation of the right, by concurrent resolution, to declare an end to the particular conditions under which the President is empowered to take action. Exercise of congressional power to repeal by concurrent resolution generally has been expressed as follows: “The provisions of this Act, ... shall terminate on June 30, 1943, or upon the date of a proclamation by the President, or upon the date specified in a concurrent resolution ...”[616] A similar provision is contained in at least twenty-three emergency statutes enacted since 1941 and listed below.[617] The Mutual Defense Assistance Act of 1949 secured to the Congress a form of item veto through reserving to it the power by concurrent resolution to terminate assistance to any nation under the Act.[618]