Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

Congress, in February, 1952, took emergency action temporarily suspending the import duty on lead. The Tariff Commission was to advise the President at the end of any month in which the average market price of lead delivered at New York had fallen below eighteen cents per pound, “and the President shall, by proclamation, not later than twenty days after he has been so advised by the Tariff Commission, revoke such suspension of the duties.”[689] In June, 1952, the President issued a proclamation under this Act, revoking the suspension of the duty.[690]

The converse of these arrangements whereby an administrator is compelled to take prescribed action upon the request, or upon a finding of others, is the situation in which he may be barred from taking contemplated action, in consequence of a request or finding coming from another agency. Our final illustration falls into this bracket. The President was permitted by the Export Control Act of 1949 to “prohibit or curtail the exportation from the United States ... of any articles, materials, or supplies, including technical data.” But he could not exercise this power “with respect to any agricultural commodity, including fats and oils, during any period for which the supply of such commodity is determined by the Secretary of Agriculture to be in excess of the requirements of the domestic economy.”[691]

Integrative Relationships

The statutory provisions enumerated above have the apparent objective of facilitating communication between agencies or introducing checks and balances—contrived frustrations—into the administrative process. At the least intense end of the scale is permissive interagency communication; gradually the relating of interagency communication and agency action intensifies until the point is reached at which an agency may exercise a delegated power only upon clearance with another agency, or is compelled to exercise it upon the direction of another. However, the relationship between agencies is communicative, and they do not by statute have joint responsibility for decision-making or day-to-day program development and execution.

The broad group of statutes to which we now turn attempts to distribute among a number of agencies responsibility and authority for joint decision-making and action. The resources and judgment of many agencies may be focused on one program, or a system may be set up for co-ordinating the activities of many agencies toward the attainment of broad policy goals. The kind of interagency relationship contemplated by Congress appears to be more active and positive, more a harnessing of equals, than those which we have [thus far reviewed.][692]

Four principal categories of statutory provisions may be distinguished under this general head. Some aim at joint decision-making by two or more agencies. Others enjoin agencies to “co-operate” in the administration of a given program. A third group establishes mutual assistance arrangements among agencies. Finally, we have those statutory provisions which seek co-ordination of interagency activities.[693]

JOINT DECISION-MAKING

A 1939 stockpiling act required the Secretary of War, the Secretary of the Navy, and the Secretary of the Interior, to determine whether certain materials purchased under the Act were strategic and critical. Once this determination was made, they then were permitted to determine the quality and quantities of materials to be purchased under the Act.[694] The Secretary of War and the Secretary of the Navy, when they considered such action appropriate because the domestic production or supply of certain materials was insufficient to meet the industrial, military, and naval needs of the country, were to direct the Secretary of the Treasury, through the medium of the Procurement Division of his Department to make purchases in accordance with specifications prepared by the Procurement Division of the Treasury Department and approved by the Secretary of War and the Secretary of the Navy. Two months later Congress authorized the Commodity Credit Corporation to accept such strategic and critical materials in exchange for such surplus agricultural commodities; and for the purpose of such exchange it was left to the three Secretaries to determine which materials are strategic and critical and the quantity and quality of such materials needed.[695]

The Central Intelligence Agency Act of 1949 set up procedures for granting asylum to foreign nationals who have performed valuable security services for the United States. Whenever the Director of the CIA, the Attorney General, and the Commissioner of Immigration determines that the entry of a particular alien for permanent residence is in the interest of national security or essential to the furtherance of the national intelligence mission, such alien and his immediate family shall be given entry into the United States for permanent residence without regard to their inadmissibility under the immigration or any other laws and regulations, or to the failure to comply with such laws and regulations pertaining to admissibility.[696] The Immigration and Nationality Act of 1952 assigns to the Secretary of State, the Secretary of Commerce, and the Attorney General jointly the function of determining the annual quota of immigrants for any quota area.[697] On June 30, 1952, the President issued a proclamation reciting that the quotas had been determined, and listing them.[698]

The National Security Act of 1947 recited as one of its purposes the establishment of integrated policies and procedures for the departments, agencies, and functions of the Government relating to the national security.[699]