Our findings appear to suggest that either Congress has a considerable feeling for the subtle nuances of administrative interrelationships, or that it is loose and inconsistent in the language it employs. The statutory provisions run a gamut, permitting the exchange of information, providing formally prescribed sources of advice, compelling agencies to consult, to consult and consider, to consult prior to taking specific action, hinging action to the receipt of a prior enabling report or request, requiring prior consultation and fact finding, requiring clearance or approval from a source external to the agency, and finally, compelling action in conformance with the request of another agency. It has harnessed the judgment and resources of many agencies to the making of particular kinds of decisions, it has provided for interagency co-operation and assistance in the accomplishment of policy goals; and it has taken care to assure co-ordination of related programs.
These are the relationships which Congress has sought to establish among administrative agencies.
Chapter X
JUDICIAL REVIEW
Edward S. Corwin has appraised as a misfortune the fact that “Constitutionalism has worked in this country to impress upon the discussion of public measures a legalistic—not to say theological—mold,” and has substituted “for the question of the beneficial use of the powers of government ... the question of their existence.”[719]
The United States Supreme Court, rather than the judicial system, is popularly conceived to have a distinctive role to play in checking arbitrary government in time of emergency;[720] and it endeavors to perform that role, albeit none too successfully at times by ruling on the constitutionality of the government power asserted during such period of crisis. However, as the chief appellate body in a judicial system which as a whole “handles a mere trickle of the great issues arising”[721] during an emergency, the Supreme Court cannot reasonably be expected to formulate a coherent theory of democratic response to emergency whereby action designed to meet the exigencies of war can be harmonized with our constitutional system with only minimum risk to the preservation thereof.
The Supreme Court’s Approach
In its effort to avoid the Scylla of judicial refusal to review the constitutionality of legislative or executive emergency action, and the Charybdis of declaring unconstitutional emergency action which might be vital to national survival,[722]—i.e., in its efforts to “reconcile the irreconcilables” which Cardozo considered the essence of the judicial function—the Supreme Court has traveled various routes. The majority opinions of the Court, or the concurring or dissenting opinions of individual justices, have at times asserted that (a) the Constitution is a rigorously confining document to be inflexibly applied by the Court in measuring governmental action in war and peace; (b) there exists an emergency power which is above constitutional limitations; (c) the Constitution is a flexible charter permitting government action commensurate with need as measured by the Court.
All three of these approaches are characterized by a preoccupation with the question of the existence of the asserted emergency power. Under the first, the Court is guided by a narrow interpretation of the quantum of constitutional emergency power and appears disposed to appraise the validity of asserted authority independently of any consideration of the indispensability of the power exercised for successful resolution of the crisis. Involving covertly virtual acceptance of the principle, inter arma selent legis, the second is extremely dangerous; for if applied extensively, it would erode constitutional balance and restraint and perhaps terminate responsible government in time of peril. Insofar as it chooses to be guided by the third and purports to sanction only that which it concedes to be essential for combating an emergency, the Court not only assumes a task for which it is ill-suited but also frequently shirks its responsibilities in the performance thereof. Too often when it dares to condemn as ultra vires action believed unavoidable in the prosecution of a war, it postpones its invalidation until after hostilities have terminated. Such post mortem judicial observations afford most inadequate guides for ascertaining what will be constitutionally permissible in time of crisis.
Apart from a few brief illustrations of the aforementioned judicial approaches, we have placed major emphasis upon the Steel Seizure Case [Youngstown v. Sawyer, 343 U.S. 579 (1952)], for in that decision are to be found signally important indications of the most effective contribution which the Federal judiciary hereafter may make in sustaining responsible government. The need for a more extensive review of the Supreme Court’s appraisal of emergency power has been dispelled by Clinton Rossiter’s study of The Supreme Court and the Commander-in-Chief.[723]
The Constitution as a Rigidly Restrictive Document: In one of the extremely rare instances in which a Supreme Court Justice has defied the Chief Executive engaged in prosecuting a war, Chief Justice Roger B. Taney in 1861, presiding as Circuit Court Judge at Baltimore, demanded that the military produce in court one John Merryman, who had been arrested. When Merryman’s jailers replied to Taney that by virtue of the President’s proclamation suspending the writ of habeas corpus, they had been directed not to respond to the writ, the venerable Chief Justice wrote a stinging opinion informing the President that the power to suspend the writ belonged to Congress alone and could not be exercised by the chief executive. Notwithstanding his ruling, Merryman was not released and the President continued his suspension of the writ, although Congress did not validate his action until 1863.[724]