An entirely different problem arises when, instead of directing another department of government to apply a general statute to individual cases, or to supplement it by detailed regulation, Congress commands that a previously enacted statute be revived, suspended or modified, or that a new rule be put into operation, upon the finding of certain facts by an executive or administrative officer. Since the delegated function in such cases is not that of "filling up the details" of a statute, authority for it must be sought elsewhere than in Wayman v. Southard and its progeny. It is to be found in an even earlier case—The Brig Aurora[67]—where the revival of a law upon the issuance of a Presidential proclamation was upheld in 1813. After previous restraints on British shipping had lapsed, Congress passed a new law stating that those restrictions should be renewed in the event the President found and proclaimed that France had abandoned certain practices which violated the neutral commerce of the United States. To the objection that this was an invalid delegation of legislative power, the Court answered briefly that "we can see no sufficient reason, why the legislature should not exercise its discretion in reviving the act of March 1st, 1809, either expressly or conditionally, as their judgment should direct."[68]
MODIFICATION OF TARIFF LAWS
This point was raised again in Field v. Clark,[69] where the Tariff Act of 1890 was assailed as unconstitutional because it directed the President to suspend the free importation of enumerated commodities "for such time as he shall deem just" if he found that other countries imposed upon agricultural or other products of the United States duties or other exactions which "he may deem to be reciprocally unequal and unjust." In sustaining this statute the Court relied heavily upon two factors: (1) legislative precedents which demonstrated that "in the judgment of the legislative branch of the government, it is often desirable, if not essential, * * *, to invest the President with large discretion in matters arising out of the execution of statutes relating to trade and commerce with other nations";[70] (2) that the act "did not, in any real sense, invest the President with the power of legislation. * * * Congress itself prescribed, in advance, the duties to be levied, * * *, while the suspension lasted. Nothing involving the expediency or the just operation of such legislation was left to the determination of the President. * * * He had no discretion in the premises except in respect to the duration of the suspension so ordered."[71] By similar reasoning, the Court sustained the flexible provisions of the Tariff Act of 1922 whereby duties were increased or decreased to reflect differences in cost of production at home and abroad, as such differences were ascertained and proclaimed by the President.[72]
ARMS EMBARGO
That the delegation of discretion in dealing with foreign relations stands upon a different footing than the transfer of authority to regulate domestic concerns was clearly indicated in United States v. Curtiss-Wright Export Corp.[73] There the Court upheld the Joint Resolution of Congress which made it unlawful to sell arms to certain warring countries "if the President finds that the prohibition of the sale of arms and munitions of war in the United States to those countries now engaged in armed conflict in the Chaco may contribute to the reestablishment of peace * * *, and if * * *, he makes proclamation to that effect, * * *" Said Justice Sutherland for the Court: "It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the Federal Government in the field of international relations—* * *, Congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved."[74]
INTERNAL AFFAIRS
Panama Refining Co. v. Ryan[75] was the first case in which the President had been authorized to put into effect by proclamation, a new and independent rule pertaining to internal affairs. One section of the National Industrial Recovery Act authorized the President to forbid the shipment in interstate commerce of oil produced or withdrawn from storage in violation of State law. Apart from the purposes broadly stated in the first section—economic recovery and conservation of natural resources—the measure contained no standard or statement of policy by which the President should be guided in determining whether or when to issue the order. Nor did it require him to make any findings of fact to disclose the basis of his action. By a vote of eight-to-one the Court held the delegation invalid. The only case in which the power of an administrative official to modify a rule enacted by Congress relating to domestic affairs has been sustained is Opp Cotton Mills v. Administrator.[76] That case involved the provisions of the Fair Labor Standards Act which authorized the appointment of Industry Advisory Committees to investigate conditions in particular industries, with notice and opportunity to be heard afforded to interested parties. Upon consideration of factors enumerated in the law and upon finding that the conditions specified in the law were fulfilled, such Committees were empowered to recommend and the Administrator to adopt, higher minimum wage rates for particular industries. Emphasizing the procedure which the agency was directed to follow and the fact that it would be impossible for Congress to prescribe specific minimum wages for particular industries,[77] a unanimous court sustained the law on the ground that the sole function of the Administrator was to put into effect the definite policy adopted by the legislators.
EMERGENCY STATUTES
Occupying a midway station between legislation which deals with foreign affairs and purely domestic legislation is what may be termed "emergency statutes." These are largely the outgrowth of the two World Wars. Thus on December 16, 1950, President Truman issued a proclamation declaring "the existence of a national emergency," and by so doing "activated" more than sixty statutes or parts thereof which by their terms apply to or during "a condition of emergency" or "in time of war or national emergency," etc. Most of these specifically leave it to the President to determine the question of emergency, and the White House assumption seems to be that they all do so. Many of the provisions thus activated delegate powers of greater or less importance to the President himself or remove statutory restrictions thereon.[78]