The considerable body of scholarly literature in this field is principally devoted to speculation on the breadth of the “inherent,” “residual,” “executive,” or “war” power of the President, and description of occasions on which the nation’s chief executives have considered it necessary to exercise a prerogative “power to act according to discretion for the public good, without the prescription of the law and sometimes even against it.”[7] But despite such incidents as President Roosevelt’s 1942 Labor Day speech admonishing the Congress that unless it repealed certain provisions of the Emergency Price Control Act by October 1st, he would consider them repealed,[8] emergency administration is overwhelmingly characterized by joint participation and cooperation of the varying branches of the federal government. American government in time of war does not degenerate to anything resembling dictatorship, and to focus attention upon the exceptions to executive-legislative cooperation in war administration is to study the pathology of emergency administration.
The statute books provide at any given time a more accurate indication of the breadth and limits of executive emergency power than do exegeses on the Constitution, or histories emphasizing executive action unsupported by Congress. For in theory[9] and in practice the President will resort to an “inherent” emergency power only to the extent to which Congress has failed to anticipate and prescribe remedial action for such an emergency. On the assumption that a detailed study of the emergency powers which have been delegated to the executive by Congress in the immediate past provides insight into the probable range of such powers which will be exercised by government in the future, the authors have undertaken to survey and classify such delegations in the period 1933 to 1955.[10]
It is believed that the accumulation in selected contexts of the instances of legislative delegation of emergency power will provide striking revelation of the scope and detail of control over individuals and groups which is practiced by constitutional governments in time of emergency. To this we now turn.
Chapter II
THE CONCEPT OF EMERGENCY IN DEMOCRATIC POLITICAL THOUGHT
When President Eisenhower on June 16, 1955 suspended the privilege of the writ of habeas corpus and declared a nationwide state of mock martial law, in response to simulated A-bomb and H-bomb attacks taking a toll of some 14 million civilian casualties, he acted on the premise that the ordinary processes of democratic and constitutional government do not suffice to protect the state in time of emergency and must surrender to a modified authoritarian regime.[11] This premise is deeply embedded in the teachings of democratic political theory, which in its traditional and contemporary expression have counseled the need to abandon the processes of democratic government as the first essential response to emergency conditions.
Thus, ironically, the Western democracies which today approach the close of three decades of economic and military emergency, and turn their faces to additional decades in the shadow-land between peace and war, are offered a guiding theory which regards emergency governance as an aberration, supplanting the relationships between the various branches of government, and between rulers and ruled which prevail in “normal” times. In theory the struggle to preserve limited and popularly responsible government has already been lost, for this is a luxury we are told we cannot afford.
In the United States we have been especially prone to accept the alleged need for transition from responsible to authoritarian government in time of emergency, for we have on the one hand accepted an interpretation of the Constitution whereunder the rigid restraints imposed thereby on governmental power are susceptible of contradiction in time of emergency, and on the other hand we have with considerable complacence assigned to the Supreme Court the function of protecting the essentials of constitutionalism and democracy through periods of emergency. These two attitudes combine to enhance the sense of need and lull the fear of supposedly temporary reversions to authoritarian government.
In the belief that it is increasingly essential that emergency action be sustained by a workable and empirically-based theory of democratic emergency governance, the authors have undertaken, in the present study, to survey the treatment of emergency by democratic political theorists; to review the work of the Supreme Court in assessing the validity of governmental exercises of emergency powers (placing special emphasis upon the implications of the 1952 “Steel Seizure” cases); and, in conclusion, to submit tentatively an approach to emergency which they consider related to the needs of today and the realities of recent experience.
Democratic political theorists traditionally have assumed the need in time of emergency to subvert the governmental processes prescribed for peacetime and to rely upon a generically different method of government, frequently designated “constitutional dictatorship.” Many factors contribute to this tendency.
First, it must be recognized that a theory of democratic government so comprehensive as to traverse every vicissitude which might confront it cannot reasonably be demanded of political philosophers.