Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

Instances in which Congress reserves the right by concurrent resolution to declare terminated the conditions authorizing executive action are fewer. In a 1941 statute the Secretary of the Navy was authorized to establish a plant protection force for naval shore establishments and to maintain and operate this force until June 30, 1943, unless Congress at an earlier date, by concurrent resolution, declared such force no longer necessary.[619] A 1942 amendment to the Communications Act of 1934 gave the President certain powers to control wire communication facilities upon proclamation by the President that a state or threat of war exists involving the United States. The President’s powers in this respect were to end not later than six months after the termination of such state or threat of war and not later than such earlier date as the Congress by concurrent resolution may designate.[620] In defining national emergency for purposes of the Federal Civil Defense Act of 1950,[621] Congress stipulated that “the provisions of this title shall be operative only during the existence of a state of civil defense emergency.... The existence of such emergency may be proclaimed by the President or by concurrent resolution of the Congress if the President in such proclamation, or the Congress in such resolution, finds that an attack upon the United States has occurred or is anticipated and that the national safety therefore requires an invocation of the provisions of this title.” Congress also has reserved the right, although not on an exclusive basis, to determine by concurrent resolution the “dates of commencement and termination of an armed conflict.”[622]

Enabling or Requiring Executive Action: An example of the use of the concurrent resolution as an enabling device is the provision of the Neutrality Act of 1939,[623] which imposed rigorous limitations upon United States carriage to belligerents “whenever the President, or the Congress by concurrent resolution, shall find that there exists a state of war between foreign states.”

The Legislative Veto: The Reorganization Acts of 1939, 1945 and 1949[624] are also illustrations of the use of the simple and concurrent resolution to effect approval or disapproval of administrative action. All three Acts were designed to foster reorganization to enable the government to cope with emergency conditions, and the 1945 Act had the expressed purpose of facilitating orderly transition from war to peace.[625] The 1939 Act stipulated that the President’s reorganization plans were to take effect sixty calendar days after the date on which the plan was transmitted to the Congress, but only if during the sixty-day period the two Houses of Congress had not passed a concurrent resolution stating in substance that the Congress did not favor the reorganization plan. A similar provision was contained in the 1945 Act, and on July 15, 1946 Congress, by concurrent resolution, disapproved the President’s Reorganization Plan No. 1.[626] The 1949 Act provided for a veto of Reorganization Plans by one house. Under the latter, a reorganization plan becomes operative “upon the expiration of the first period of sixty calendar days, of continuous session of the Congress, following the date on which the plan is transmitted to it; but only if, between the date of transmittal and the expiration of such sixty-day period there has not been passed by either of the two Houses, by the affirmative vote of a majority of the authorized membership of that House, a resolution stating in substance that the House does not favor the reorganization plan.”[627]

In a class by itself is the Federal Civil Defense Act of 1950, by the terms of which the concurrent resolution may be employed to veto interstate civil defense compacts.[628] The consent of the Congress would be granted to each compact, after the termination of sixty calendar days of continuous session of the Congress from the time Congress first received notice of the compact. But Congressional consent could be denied anytime during the sixty day period if Congress passed a concurrent resolution stating that it did not approve the compact.

Remaining for consideration is the utilization of the concurrent resolution to enable Congress to achieve a more intimate participation in the administration of selected programs, principally in the field of immigration and naturalization. In the Alien Registration Act of 1940[629] Congress provided for the deportation of additional classes of aliens. Aliens of proved good moral character might have deportation suspended under certain conditions at the discretion of the Attorney General. However, if deportation were suspended for more than six months, all of the facts and pertinent provisions of law in the case must be reported to the Congress within ten days after the beginning of its next regular session, with the reasons for such suspension. If during that session the two Houses pass a concurrent resolution stating in substance that the Congress does not favor the suspension of such deportation, the Attorney General is required to carry out the deportation as provided by law. If, however, during that session the two Houses fail to pass such a resolution, the Attorney General is required to cancel deportation proceedings at the end of the session. In subsequent legislation Congress reserved the right by concurrent resolution to suspend deportation of aliens or to grant permanent residence,[630] and a considerable proportion of the concurrent resolutions enacted each year now constitute directives to the Attorney General in this regard.[631]

The Rubber Producing Facilities Disposal Act of 1953[632] set up a Rubber Producing Facilities Disposal Commission and authorized it to enter into contracts for disposal of federally held rubber producing facilities. The Commission was to report to Congress in considerable detail on the negotiations and the contents of the contracts. The report had to be submitted to both Houses of Congress on the same day. Upon the expiration of sixty days of continuous session of the Congress following the date upon which the report was submitted to it, the Commission was free to proceed to carry out the contracts and proposals as outlined in its report, but only to the extent that such contracts and proposals had not been disapproved by either House of Congress by a resolution during the sixty-day period. Congress in recent years also has asserted the right by concurrent resolution to “declare ... that the period of active service required of any age group” under the Universal Military Training and Service Act “should be decreased ... or ... should be eliminated.”[633]

USE OF CONCURRENT RESOLUTION PROVISIONS TO CHECK ADMINISTRATIVE ACTION

A survey of the statute books from 1939 through 1954 reveals few instances of congressional employment of the device of the concurrent resolution so thoughtfully included in delegatory statutes. However, the Congressional Record for the same period bears evidence of repeated effort on the part of members of the legislature to influence the administration of delegatory statutes through concurrent or, in some instances, the simple resolution.

Terminating Powers: Legislative efforts to terminate statutes by concurrent resolution prove anticlimactic in view of the many instances in which the power to accomplish this was included in the delegatory statute. The statute which provoked the most vigorous and persistent effort at termination by concurrent resolution was that of January 20, 1942, establishing daylight saving time.[634] From 1943 through 1945 some twenty-four concurrent resolutions were introduced to terminate the effect of the Daylight Savings Act.[635] None of these concurrent resolutions survived committee screening.

In 1941 a House concurrent resolution abrogating the authority of the President to provide aid to Russia under the Lend-Lease Act died in the Foreign Relations Committee.[636] The appropriate provision of the Lend-Lease Act provided in general terms for termination of the lend-lease authority upon adoption of a concurrent resolution by both Houses.[637] The Act did not provide for suspension by concurrent resolution of authority to aid specified countries and the resolution probably sought to exercise a power which Congress had not reserved to itself in the Act.