Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

The Emergency Railroad Transportation Act of 1933 is infused with a quality of briskness which is absent from the statutes alluded to above. In this Act Congress created a co-ordinator of transportation and a number of regional railroad co-ordinating committees. It stipulated that the co-ordinator must “confer freely with the committees, and the committees, the carriers, the subsidiaries, and the Interstate Commerce Commission shall furnish him ... such information and reports as he may desire.”[664]

The Defense Production Act of 1950 required the President, in exercising the price and wage stabilization provisions of the Act, “so far as practicable, (to) advise and consult with, and establish and utilize the committees of, representatives of persons substantially affected by regulations or orders issued hereunder.”[665]

Must Consider: While not saying that proffered advice must be accepted, Congress indicated in a 1946 statute that the Civil Aeronautics Administrator was to hold himself open to influence. In drawing up his plan for the development of public airports in the United States, he was required as far as possible to consult and give consideration to the views and recommendations of the Civil Aeronautics Board, the States, the Territories, Puerto Rico, and their political subdivisions.[666] He also had to consult and consider to the extent feasible the views and recommendations of the Federal Communications Commission.

The Philippine War Damage Commission was created in 1946 and assigned the task of making compensation for war damage to private property in the Philippines. The Commission was required so far as practicable to give consideration to the recommendations of the Filipino Rehabilitation Commission created in an earlier act. But, said Congress, the Commission was not required to await, or be bound by such recommendations.[667]

Communication Related to Framing of a Particular Decision

The foregoing advice and consultation provisions fall short of setting the requirement in a specific action context. They seem to have the objective of maximizing the likelihood that interested official and private groups will have the opportunity to influence program content. At the same time they imply or categorically state that the action agency need not be guided by such advice. It is not patently clear in any instance that the administrator must defer action until after consultation; and, of course, in one instance he is specifically advised that he is free of such a requirement.

The statutes referred to below clearly link the prescribed advice or consultation to the taking of specified action by the administrator. In some instances he must advise with others prior to taking action, but is not required to follow the advice. In others he is enabled but not required to act upon receipt of a report or information from another agency. An occasional statute will require not only consultation, but the making of specific findings precedent to exercising powers delegated by Congress. The administrator will sometimes find himself in a position in which he may take certain action only if it is acceptable to, or meets the approval of, other groups. And, carrying us to the end of this progression, we have the statutory requirement that the administrator act in conformance with advice received.

Must Seek Advice Prior to Acting: A June, 1934 amendment to the Tariff Act of 1930 sought to assist recovery from “the present emergency in restoring the American standard of living” by authorizing the President to enter into reciprocal trade agreements for the relaxation of duties and import restrictions.[668] Prior to concluding individual agreements, however, the President had to seek information and advice with respect thereto from the United States Tariff Commission, the Departments of State, Agriculture, and Commerce and from such other sources as he deemed appropriate. The advice need not be followed, but it must be sought precedent to concluding a reciprocal trade agreement. The 1934 grant of power to the President to prohibit the sale of arms to participants in the Chaco War made the exercise of that power contingent upon prior consultation with governments of other American Republics.[669]

Similarly, in granting the President power, in March, 1941 to authorize the transfer of American military equipment to the government of any country whose defense the President considered vital to the defense of the United States, Congress specified that no defense article not manufactured for such a foreign power might be disposed of except after consultation with the Chief of Staff of the Army or the Chief of Naval Operations of the Navy, or both.[670] The War Risk Insurance Act of 1950 permitted the Secretary of Commerce “with the approval of the President, and after such consultation with interested agencies of the Government as the President may require,” to “provide insurance and reinsurance against loss or damage” of American merchant vessels “by war risks.”[671] In 1950 security provisions were added to the Civil Aeronautics Act of 1938. Among these was an authorization for the Secretary of Commerce to establish zones or areas in the airspace above the United States as he found necessary in the interests of national security. Having established such spaces, he might, “after consultation with the Department of Defense and the Civil Aeronautics Board ... prohibit or restrict flights of aircraft” within them.[672]

These statutes simply open up the channels of communication and insist that they be used prior to the taking of action. They do not explicitly require the administrator to accept proffered advice, and whatever effect they have upon his freedom of discretion is subtle and impalpable.