Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

May Act on Receipt of Advice or Request: The 1937 statute extending the life of the Reconstruction Finance Corporation permitted the Board of Directors of the Corporation to report to the President that private credit was sufficiently available from private sources to meet legitimate demands of any class of eligible borrowers, whereupon the President might authorize the directors to suspend lending to that class.[673] Here, in effect, the Board of Directors of the RFC was given power to report (recommend) and thereby enable presidential action. The 1947 surplus property act authorized the disposal agency, upon the request of the Administrator of Civil Aeronautics, the Secretary of War, or the Secretary of the Navy to omit any of the terms, or conditions for the transfer of title to such property.[674] The agency granted a dispensing power which it was enabled to exercise upon receipt of a request from specified officials.

The first of these two statutes enabled the President to act after the RFC had made what amounted to a finding. In this, it is similar to the Nationality Act of 1940, which provided that the President might, in his discretion, exempt certain aliens in the United States from the classification of alien enemy, provided the Department of Justice investigated and established the loyalty of the alien.[675] A Department of Justice finding of loyalty enables but does not compel the President to act.

The Secretary of War was granted power in 1941 to remove any officer from the active list of the Regular Army for such causes and under such regulations as he might prescribe. He could not exercise this power in individual cases, however, until the officer had been recommended for removal by a board of not less than five general officers convened for this purpose by the Secretary of War.[676]

Action on Making an Independent Finding: At least two of the statutes covered in this survey required the President not only to consult, or to receive recommendations prior to taking action, but in addition, to make an explicit finding of fact. The India Emergency Food Aid Act of 1951 permitted the President, after consultation with appropriate Government officials and representatives of private shipping, and after finding and proclaiming that private shipping was not available on reasonable terms and conditions for transportation of supplies made available under Act, to provide for carriage in government-owned ships.[677] Four days after signing the Act, the President proclaimed that he had consulted with public officials and private shipping representatives, and had found it necessary to use government ships.[678] The 1951 amendments to the Universal Military Training and Service Act authorized the President “upon finding by him that such action is justified by the strength of the Armed Forces in the light of international conditions,” and “upon recommendation of the Secretary of Defense” to decrease or eliminate periods of compulsory military service.[679]

The remaining statutes, in varying degree, subject administrative decision-making to external controls.

Action if Acceptable to Others: Congress in 1935 imposed, for three years, limitations upon imports of Philippine yams, twines, cables, and other fibers. The limitation was subject to continuance for an additional three years by presidential proclamation, provided such extension was acceptable to the President of the Commonwealth.[680] Such an extension was made by a proclamation of January, 1938, in which the President recited that “the President of the Commonwealth of the Philippines has indicated to me ... his acceptance of an extension of the operation of that Act for an additional period of three years.”[681] Unlike the earlier statutes which require consultation prior to action, or sometimes permit action only following recommendation and findings, here the substance of the President’s action is subject to approval from a source external to the presidency.

Action Upon Receipt of Prior Approval: We have already employed, in another context, the provision of the War Risk Insurance Act of 1950, which hinged action by the Secretary of Commerce to the prior approval of the President.[682] The Defense Production Act of 1950 exempted from anti-trust prosecution business agreements made pursuant to the request of the President. The President was given a limited authority to delegate this power to subordinate officials, but only upon the condition that such officials consult with the Attorney General and with the Chairman of the Federal Trade Commission not less than ten days before making any request or finding thereunder. In addition, the request was to be subject to the prior approval of the Attorney General.[683] In August, 1950, Congress legislated on the matter of termination of government employment for security reasons. Persons whose employment was thus terminated might be employed elsewhere in the government only if the Civil Service Commission approved a request coming from the individual or the prospective employing agency.[684]

The Rubber Producing Facilities Disposal Commission was directed to “consult and advise with the Attorney General” concerning the disposal of such facilities. The 1953 statute creating the Commission required that its report to Congress, suggesting an appropriate manner of disposing of government-owned producing facilities, be submitted first to the Attorney General who would advise the Commission “whether, in his opinion, the proposed disposition would violate the anti-trust laws.” His findings approving the proposed disposals were to be appended to the report which the Commission made to Congress. Thus, in effect, the Commission was gently admonished to bring in a report bearing the Attorney General’s approval.[685]

Must Act in Conformance With Request: The next group of statutes compel the administrator to accept and to act in accordance with recommendations or requests coming from a source beyond his agency. The Foreign Agents Registration Act of 1938, as amended in 1942, permitted certain exemptions from its registration provisions. The Attorney General might, after notice to the employing government or the person concerned, and with the approval of the Secretary of State, terminate in whole or in part an exemption from registration granted to United States residents who were employees of a foreign government. When the Secretary of State initiated a request for termination of an exemption, the Attorney General had to comply with the request.[686] The Second War Powers Act of 1942 contained a provision for the waiving of navigation and inspection laws under certain conditions. The head of each department or agency responsible for the administration of the navigation and vessel inspection laws was directed to waive compliance of such laws upon the request of the Secretary of the Navy or the Secretary of War to the extent believed necessary in the conduct of the war by the officer making the request.[687]

The discretion of federal jurists has to some extent been subjected to constriction by the executive. The Secretary of the Navy was given power, in a July, 1944, statute, to certify to federal courts that pending suits arising out of damage caused by naval vessels or towage or salvage services to naval vessels would, if tried, tend to endanger the security of naval operations. Upon receiving such a certification, the federal court having jurisdiction in the case was required to stay further proceedings until six months after the cessation of hostilities or such earlier date as the Secretary of the Navy might set.[688]