Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

“But I would not lead people to rely on this Court for a review that seems to me wholly delusive. The military reasonableness of these orders can only be determined by the military superiors. If the people ever let command of the war power fall into irresponsible hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibilities to the political judgments of their contemporaries and to the moral judgments of history.”[738]

Like Machiavelli, Jackson conducts an analysis in simple power terms. But while Machiavelli suggested it was possible to devise ways to circumscribe and check the exercise of emergency power by leaders in a republic, the modern liberal, true to the tradition of Locke, can conceive of no limits upon the actions of a war government but the force of public opinion.

The Constitution as a Flexible Charter: Although as recently as World War II all three strains of thought regarding emergency powers of the Chief Executive during wartime found effective expression in opinions of individual justices on the Court, the most persistent has been the attempt to compromise the range of views by positing a Constitution broad and flexible enough to encompass emergency action responsive to existing need, as measured by the Court. This has been described by Professor Corwin as “constitutional relativity.”[739]

The “clear and present danger” doctrine, first enunciated by Justice Holmes in the Schenck case[740] is an example of constitutional relativity. Its recent application illustrates what is to be expected when the Court, having accepted the obligation to determine the necessity for emergency action, subsequently is led by doubts as to the adequacy of its tools for measurement to redefine the conditions of an emergency in such a manner as virtually to evade the problem.[741] It also points up some of the difficulties in consistently applying whatever criteria for measurement are developed by the Court.

Schenck had been convicted under the Espionage Act of 1917 for seeking to obstruct the draft. He had circularized a mailing list with literature opposing the World War I draft law. Included on the list were a number of persons in the military service at the time of receipt of the material. Holmes’ reasoned as follows:

“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree....

“It seems to be admitted that if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced.... If the act, ... its tendency and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime.”[742]

Schenck remained in jail.

In a subsequent case under the same Act, involving a group of “radicals” who had disseminated a pamphlet condemning United States intervention in Russia and threatening to thwart that intervention by causing trouble on the home front, calling upon munitions workers to quit their jobs, and advocating revolution, Holmes dissented from a decision upholding their conviction.[743] Rejecting as fallacious the conclusion of his colleagues that the surreptitious publishing of a “silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so,” Holmes maintained:

“An intent to prevent interference with the revolution in Russia might have been satisfied without any hindrance to carrying on the war in which we were engaged....