There is nothing novel about this proposal. The British have operated under similar statutes in peace and war for fifty years with a record of great success in two respects:
(1) They reacted efficiently to emergencies ranging from a dock strike, and a general strike to two world wars;
(2) Powers during an emergency have been responsibly administered under Parliamentary observation and control.
Under this plan, the Executive can act, fully cloaked with legitimacy to respond to emergencies ranging from a hydrogen attack to a capital transit strike, and might employ techniques ranging from replacement of state and local administrations which have been destroyed by hydrogen bombings, to compelling motor-car men to return to work.
Such a statute exemplifies our commitment to democratic government and democratic theory in a number of ways. It provides legislative sanction for executive action and precludes the coming into being of a situation which in the words of Locke, “the executive has to act in the absence of law,” and it gives the President sufficiently broad and generic power. As contrasted with the unrealistically detailed and restrictive emergency provisions of existing statues, the President is empowered to deal with an emergency without the need to resort to the use of Locke’s prerogative: to act under the law, in the absence of the law, or even contrary to the law. In effect it renders unnecessary and unlikely that a future President will define the alternatives which Lincoln once perceived: to act under the Constitution and lose the Union, or to save the Union by transgressing against the Constitution.
Some persons will fear that a President might take action unnecessarily under such a proclamation of emergency. The answer to this is three-fold: first, it is in the nature of our political system that we must repose a certain amount of faith in the basic integrity and wisdom of the Chief Executive; secondly, the President must operate within carefully prescribed procedural limitations; and third, the President has only today to declare a nation-wide state of martial law in order to equip himself with vast power to take emergency action virtually free from concurring legislative participation.
The vital lesson which emerges from this study is that it is possible to equip government to cope with the crises of Twentieth Century existence without surrendering the two vital principles of constitutionalism that have marked the course of American political development: the maintenance of legal limits to arbitrary power, and political responsibility of the government to the governed.
REFERENCES
CHAPTER I
[1] Stanford Research Institute, Impact of Air Attack in World War II; Selected Data for Civil Defense Planning, especially Division II, vol. 1, “Economic Effects:—Germany” (Federal Civil Defense Administration, 1953).