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93d
Congress
1st Session
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}
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Senate
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Report
No. 93-549
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EMERGENCY
POWERS STATUTES:
PROVISIONS OF FEDERAL LAW
NOW IN EFFECT DELEGATING TO THE
EXECUTIVE EXTRAORDINARY AUTHORITY
IN TIME OF NATIONAL EMERGENCY
REPORT
OF THE
SPECIAL COMMITTEE ON THE
TERMINATION OF THE NATIONAL EMERGENCY
UNITED STATES SENATE
NOVEMBER 19, 1973
U.S.
GOVERNMENT PRINTING OFFICE
WASHINGTON : 1973
24-509 O
I
SPECIAL COMMITTEE ON THE
TERMINATION OF THE NATIONAL EMERGENCY
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FRANK CHURCH, Idaho Co-Chairman
PHILIP A. HART, Michigan
CLAIBORNE PELL, Rhode Island
ADLAI E. STEVENSON III, Illinois
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CHARLES McC MATHIAS, Jr., Maryland
CLIFFORD P. CASE, New Jersey
JAMES B. PEARSON, Kansas
CLIFFORD P. HANSEN, Wyoming
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WILLIAM G.
MILLER, Staff Director
THOMAS A. DINE, Professional Staff
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II
Since March 9, 1933, the United States has been in a state of declared
national emergency. In fact, there are now in effect four
presidentially-proclaimed states of national emergency: In addition to the
national emergency declared by President Roosevelt in 1933, there are also the
national emergency proclaimed by President Truman on December 16, 1950, during
the Korean conflict, and the states of national emergency declared by President
Nixon on March 23, 1970, and August 15, 1971.
These proclamations give force to 470 provisions of Federal law. These
hundreds of statutes delegate to the President extraordinary powers, ordinarily
exercised by the Congress, which affect the lives of American citizens in a
host of all-encompassing manners. This vast range of powers, taken together, confer
enough authority to rule the country without reference to normal Constitutional
processes.
Under the powers delegated by these statutes, the President may:
seize property; organize and control the means of production; seize
commodities; assign military forces abroad; institute martial law; seize and
control all transportation and communication; regulate the operation of private
enterprise; restrict travel; and, in a plethora of particular ways, control the
lives of all American citizens.
With the melting of the cold war--the developing detente with the Soviet
Union and China, the stable truce of over 20 years duration between North and
South Korea, and the end of U.S. involvement in the war in Indochina-there is
no present need for the United States Government to continue to function under
emergency conditions.
The Special Committee on the Termination of the National Emergency was
created
1
to examine the consequences of terminating the declared states of national
emergency that now prevail; to recommend what steps the Congress should take to
ensure that the termination can be accomplished without adverse effect upon the
necessary tasks of governing; and, also, to recommend ways in which the United
States can meet future emergency situations with speed and effectiveness but
without relinquishment of congressional oversight and control.
In accordance with this mandate, the Special Committee-in conjunction with
the Executive branch, expert constitutional authorities, as well as former high
officials of this Government-is now engaged
Note 1: S. Res. 9, 93d Cong., 1st Sess.
III
in a detailed study to determine the most reasonable ways to restore
normalcy to the operations of our Government.
A first and necessary step was to bring together the body of statutes, which
have been passed by Congress, conferring extraordinary powers upon the
Executive branch in times of national emergency.
This has been a most difficult task. Nowhere in the Government, in either
the Executive or Legislative branches, did there exist a complete catalog of
all emergency statutes. Many were aware that there had been a delegation of an
enormous amount of power but, of how much power, no one knew. In order to
correct this situation, the Special Committee staff was instructed to work with
the Executive branch, the Library of Congress, and knowledgeable legal
authorities to compile an authoritative list of delegated emergency powers.
This Special Committee study, which contains a list of all provisions of
Federal law, except the most trivial, conferring extraordinary powers in time
of national emergency, was compiled by the staff under the direction of Staff
Director William G. Miller, and Mr. Thomas A. Dine; utilizing the help of the
General Accounting Office, the American Law Division of the Library of
Congress, the Department of Justice, the Department of Defense, and the Office
of Emergency Planning.
The Special Committee is grateful for the assistance provided by Jack.
Goldklang of the Office of Legal Counsel, Department of Justice; Lester S.
Jayson, the director of the Congressional Research Service of the Library of
Congress; Joseph E. Ross, head of the American Law Division of CRS; and
especially Raymond Celada of the Ameri- can Law Division and his able
assistants, Charles V. Dale and Grover S. Williams; Paul Armstrong of the
General Accounting Office; Linda Lee, Patrick Norton, Roland Moore, William K.
Sawyer, Audrey Hatry, Martha Mecham, and David J. Kyte.
The Special Committee will also publish a list of Executive Orders, issued
pursuant to statutes brought into force by declared states of emergency, at a
later date.
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CHARLES McC. MATHIAS, JR.
FRANK CHURCH,
Co-Chairmen.
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IV
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}
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Senate
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{
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Report
No. 93-549
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EMERGENCY
POWERS STATUTES:
PROVISIONS OF FEDERAL LAW
NOW IN EFFECT DELEGATING TO THE
EXECUTIVE EXTRAORDINARY AUTHORITY
IN TIME OF NATIONAL EMERGENCY
November 19, 1973. - Ordered
to be printed
Mr. MATHIAS (for Mr. CHURCH) as co-chairman of the Special Committee on the
Termination of the National Emergency, submitted the following
REPORT
[Pursuant to S. Res. 9, 93d Cong.]
INTRODUCTION
A
- A BRIEF HISTORICAL SKETCH OF THE ORIGINS
OF EMERGENCY POWERS NOW IN FORCE
A
majority of the people of the United States have lived all of their lives under
emergency rule. For 40 years, freedoms and governmental procedures guaranteed
by the Constitution have, in varying degrees, been abridged by laws brought
into force by states of national emergency. The problem of how a constitutional
democracy reacts to great crises, however, far antedates the Great Depression.
As a philosophical issue, its origins reach back to the Greek city-states and
the Roman Republic. And, in the United States, actions taken by the Government
in times of great crises have-from, at least, the Civil War-in important ways,
shaped the present phenomenon of a permanent state of national emergency.
American political theory of emergency government was derived and enlarged
from John Locke, the English political-philosopher whose thought influenced the
authors of the Constitution. Locke argued that the threat of national
crisis-unforeseen, sudden, and potentially catastrophic-required the creation
of broad executive
(1)
emergency powers to be exercised by the Chief Executive in situations where
the legislative authority had not provided a means or procedure of remedy.
Referring to emergency power in the 14th chapter of his Second Treatise on
Civil Government as "prerogative"; Locke suggested that it:
...should
be left to the discretion of him that has the executive power...since in some
governments the lawmaking power is not always in being and is usually too
numerous, and so too slow for the dispatch requisite to executions, and
because, also it is impossible to foresee and so by laws to provide for all
accidents and necessities that may concern the public, or make such laws as
will do no harm, if they are executed with an inflexible rigour on all
occasions and upon all persons that may come in their way, therefore there is a
latitude left to the executive power to do many things of choice; which the
laws do not prescribe.
To what extent the Founding Fathers adhered to this view of the executive
role in emergencies is a much disputed issue. Whatever their conceptions of
this role, its development in practice has been based largely on the manner in
which individual President's have viewed their office and its functions.
Presidents Theodore Roosevelt and William Howard Taft argued the proper role of
the President and, perhaps, their debate best expounds diametrically-opposed
philosophies of the presidency. In his autobiography, Roosevelt asserted his
"stewardship theory."
My view was that every Executive
officer...was a steward of the people bound actively and affirmatively to do
all he could for the people and not to content himself with the negative merit
of keeping his talents undamaged in a napkin...My belief was that it was not
only [the President's] right but his duty to do any thing that the needs of the
Nation demanded unless such action was forbidden by the Constitution or by the
laws. Under this interpretation of executive power I did and caused to be done
many things not previously done by the President and the heads of departments.
I did not usurp power but I did greatly broaden the use of executive power. In
other words, I acted for the common well being of all our people whenever and
whatever measure was necessary, unless prevented by direct constitutional or
legislative prohibition.
Roosevelt compared this principle of "stewardship" to what he
called the Jackson-Lincoln theory, and contrasted it to the theory ascribed to
William Howard Taft.
Roosevelt's ideas on the limit of presidential authority and responsibility
were vigorously disputed by Taft. In lectures on the presidency--delivered at
Columbia University in 1915-1916-Taft responded that: ". . . the wide
field of action that this would give to the Executive one can hardly limit. A
President can exercise no power which cannot fairly and reasonably be traced to
some specific grant of power." And he cautioned that: ". . . such
specific grants must be
(2)
either in the Federal Constitution, or in any act of Congress passed in
pursuance thereof. There is no undefined residuum of power which he can exercise
because it seems to him to be in the public interest."
In recent years, most scholars have interpreted the Roosevelt-Taft dispute
in Roosevelt's favor. In the prevailing academic view, Roosevelt is described
as "active", "expansionist", and "strong." The
historical reality, in fact, does not afford such a sharp distinction either
between the actions of these two Presidents, or between their analysis of the
problem of emergency powers. Taft, in his concluding remarks to his Columbia
lectures, said : "Executive power is limited, so far as it is possible to
limit such a power consistent with that discretion and promptness of action
that are essential to preserve the interests of the public in times of
emergency or legislative neglect or inaction." Thus, even Taft was
disposed to employ emergency power when the need arose, but, he did not wish to
go beyond his own narrower, conservative conception of what was meant by
constitutional and legal bounds. Thus, the dispute was over where those bounds
lay, rather than the nature of the office itself.
Taft's successor, Woodrow Wilson, was no less zealous in observing what he
thought the Constitution demanded. Faced with the exigencies of World War I,
Wilson found it necessary to expand executive emergency powers enormously. In
many respects, this expansion ofpowers in wartime was based on precedents set
by Lincoln decades earlier. Unlike Lincoln, however, Wilson relied heavily on
Congress for official delegations of authority no matter how broadly these
might be.
Wilson's exercise of power in the First World War provided a model for
future Presidents and their advisors. During the preparedeness period of
1915-1916, the submarine crisis in the opening months of 1917, and the period
of direct involvement of U.S. armed forces from April 1917 to November 1918,
Wilson utilized powers as sweeping as Lincoln's. Because governmental agencies
were more highly organized and their jurisdictions wider, presidential powers
were considerably more effective than ever before. Yet, perhaps, because of
Wilson's scrupulous attention to obtaining prior congressional concurrence
there was only one significant congressional challenge to Wilson's wartime
measures.
That challenge came in February-March 1917, following the severance of diplomatic
relations with Germany. A group of Senators successfully filibustered a bill
authorizing the arming of American merchant ships. In response--records
American historian Frank Freidel in his book
Roosevelt: the Apprenticeship
- Assistant Secretary of the Navy Franklin D. Roosevelt found an old statute
under which the President could proceed without fresh authorization from
Congress. Roosevelt, impatient for action, was irritated because Wilson waited
a few days before implementing the statute.
Lincoln had drawn most heavily upon his power as Commander-in-Chief; Wilson
exercised emergency power on the basis of old statutes and sweeping new
legislation--thus drawing on congressional delegation as a source of authority:
The most significant Wilsonian innovations were economic, including a wide
array of defense and war agencies, modeled to some extent upon British wartime
(3)
precedents. In August 1916 just prior to the United States entry into the
war, Congress at Wilson's behest established a Council of National
Defense-primarily advisory. In 1917, a War Industries Board, also relatively
weak, began operating. The ineffectiveness of the economic mobilization led
Republicans in Congress - in the winter of 1917-1918 to demand a coalition War
Cabinet similar to that in England. Wilson forestalled Congress by proposing
legislation delegating him almost total economic power and, even before
legislative approval, authorized the War Industries Board to exercise extensive
powers. Subsequently Congress enacted Wilson's measure, the Overman Act, in
April 1918. Other legislation extended the economic authority of the Government
in numerous directions.
Following the allied victory, Wilson relinquished his wartime authority and
asked Congress to repeal the emergency statutes, enacted to fight more
effectively the war. Only a food-control measure and the 1917 Trading With the
Enemy Act were retained.
This procedure of terminating emergency powers when
the particular emergency itself has, in fact, ended has not been consistently
followed by his successors.
The next major development in the use of executive emergency powers came
under Franklin D. RooseveIt. The Great Depression had already overtaken the
country by the time of Roosevelt's inauguration and confronted him with a
totally different crisis. This emergency, unlike those of the past, presented a
nonmilitary threat. The Roosevelt administration, however, conceived the
economic crisis to be a calamity equally as great as a war and employed the
metaphor of war to emphasize the depression's severity. In his inaugural
address, Roosevelt said: "I shall ask the Congress for the one remaining
instrument to meet the crisis--broad executive power to wage a war against the
emergency, as great as the power that would be given me if we were in fact
invaded by a foreign foe."
Many of the members of the Roosevelt administration, including F.D.R.
himself, were veterans of the economic mobilization of World War I and drew
upon their experiences to combat the new situation. The first New Deal
agencies, indeed, bore strong resemblance to wartime agencies and many had the
term "emergency" in their titles-such as the Federal Emergency Relief
Administration and the National Emergency Council.
In his first important official act, Roosevelt proclaimed a National Bank
Holiday on the basis of the 1917 Trading With the Enemy Act - itself a wartime
delegation of power. New Deal historian William E. Leuchtenburg writes:
When he sent his banking bill to Congress,
the House received it with much the same ardor as it had greeted Woodrow
Wilson's war legislation. Speaker Rainey said the situation reminded him of the
late war when "on both sides of this Chamber the great war measures
suggested by the administration were supported with practical
unanimity....Today we are engaged in another war, more serious even in its
character and presenting greater dangers to the Republic." After only 38
minutes debate, the House passed the administration's banking bill, sight
unseen.
(4)
The Trading With the Enemy Act had, however, been specifically designed by
its originators to meet only
wartime exigencies. By employing it to meet
the demands of the depression, Roosevelt greatly extended the concept of
"emergencies" to which expansion of executive powers might be
applied. And in so doing, he established a pattern that was followed
frequently: In time of crisis the President should utilize
any statutory
authority readily at hand, regardless of its original purposes, with the firm
expectation of
ex post facto congressional concurrence.
Beginning with F.D.R., then, extensive use of delegated powers exercised under
an aura of crisis has become a dominant aspect of the presidency. Concomitant
with this development has been a demeaning of the significance of
"emergency." It became a term used to evoke public and congressional
approbation, often bearing little actual relation to events. Roosevelt
brain-truster, Rexford G. Tugwell, has described the manner in which Roosevelt
used declarations of diferent degrees of emergency:
The "limited emergency" was a creature of Roosevelt's imagination,
used to make it seem that he was doing less than he was. He did not want to
create any more furor than was necessary. The qualifying adjective had no
limiting force. It was purely for public effect. But the finding that an
emergency existed opened a whole armory of powers to the Commander-in-Chief,
far more than Wilson had had.
Roosevelt and his successor, Harry S. Truman, invoked formal states of
emergency to justify extensive delegations of authority during actual times of
war. The Korean war, however, by the fact of its never having been officially
declared a "war" as such by Congress, further diluted the concept of
what constituted circumstances sufficiently critical to warrant the delegation
of extraordinary authority to the President.
At the end of the Korean war, moreover, the official state of emergency was
not terminated. It is not yet terminated. This may be primarily attributed to
the continuance of the Cold War atmosphere which, until recent years, made the
imminent threat of hostilities an accepted fact of everyday life, with
"emergency" the normal state of affairs. In this, what is for all
practical purposes, permanent state of emergency, Presidents have exercised
numerous powers - most notably under the Trading With the Enemy Act -
legitimated by that ongoing state of national emergency. Hundreds of others
have lain fallow, there to be exercised at any time, requiring only an order
from the President.
Besides the 1933
1 and Korean
war emergencies,
2
two other states of declared national emergency remain in existence. On March
23, 1970, confronted by a strike of Postal Service employees, President Nixon
declared a national emergency.
3 The
following year, on August
Note 1: See Appendix. p. 594.
2: - Ibid
3 - Ibid, p. 596.
(5)
15, 1971, Nixon proclaimed another emergency,
1 under which
he imposed stringent import controls in order to meet an international monetary
crisis. Because of its general language, however, that proclamation could serve
as sufficient authority to use a substantial proportion of all the emergency
statutes now on the books.
Over the course of at least the last 40 years, then, Presidents have had
available an enormous - seemingly expanding and never-ending - range of
emergency powers. Indeed, at their fullest extent and during the height of a
crisis, these "prerogative" powers appear to be virtually unlimited,
confirming Locke's perceptions.
Because Congress and the public are unaware
of the extent of emergency powers, there has never been any notable
congressional or public objection made to this state of affairs. Nor have the
courts imposed significant limitations.
During the New Deal, the Supreme Court initially struck down much of
Roosevelt's emergency economic legislation
(Schecter v.
United
States, 295 U.S. 495). However, political pressures, a change in personnel,
and presidential threats of court-packing, soon altered this course of
decisions
(NLRB v.
Jones & Lauqhlin Steel Corp., 301 U.S. 1).
Since 1987, the Court has been extremely reluctant to invalidate any
congressional delegation of economic powers to the President. It appears that
this will not change in the foreseeable future.
In a significant case directly confronting the issue of wartime emergency
powers,
Youngstown Sheet & Tube Co. v.
Sawyer (343 U.S. 579),
the Court refused to allow the President to rely upon
implied constitutional
powers during a crisis. The action at issue involved presidential seizure of
steel plants in a manner apparently directly at odds with congressional policy,
Justice Black's plurality opinion specifically acknowledges that if Congress
delegates powers to the President for use during an emergency those powers are
absolutely valid within constitutional restraints on Congress'
own power
to do so. Concurring opinions appear to agree on this point. It should be
noted, therefore, that
all statutes in this compilation are precisely
these kinds of specific congressional delegations of power.
The 2,000-year-old problem of how a legislative body in a democratic
republic may extend extraordinary powers for use by the executive during times
of great crisis and dire emergency - but do so in ways assuring both that such
necessary powers will be terminated immediately when the emergency has ended
and that normal processes will be resumed - has not yet been resolved in this
country. Too few are aware of the existence of emergency powers and their
extent, and the problem has never been squarely faced.
B
- SUMMARY VIEWS OF THE PRESENT STATUS
OF EMERGENCY POWERS STATUTES
A review of the laws passed since the first state of national emergency was
declared in 1933, reveals a consistent pattern of lawmaking. It is a pattern
showing that the Congress, through its own actions, transferred awesome
magnitudes of power to the executive ostensibly to meet the problems of
governing effectively in times of great crisis. Since 1933, Congress has passed
or recodified over 470 significant statutes delegating to the President powers
that had been
Note 1:
Ibid, p. 597.
(6)
the prerogative and responsibility of the Congress since the beginning of
the Republic. No charge can be sustained that the Executive branch has usurped
powers belonging to the Legislative branch; on the contrary, the transfer of
power has been in accord with due process of normal legislative procedures.
It is fortunate that at this time that, when the fears and tensions of the
cold war are giving way to relative peace and detente is now national policy,
Congress can assess the nature, quality, and effect of what has become known as
emergency powers legislation. Emergency powers make up a relatively small but
important body of statutes - some 470 significant provisions of law out of the
total of tens of thousands that have been passed or recodified since 1933. But
emergency powers laws are of such significance to civil liberties, to the
operation of domestic and foreign commerce, and the general functioning of the
U.S. Government, that, in microcosm, they reflect dominant trends in the
political, economic, and judicial life in the United States.
A number of conclusions can be drawn from the Special Committee's study and
analysis of emergency powers laws now in effect. Congress has in most important
respects, except for the final action of floor debate and the formal passage of
bills, permitted the Executive branch to draft and in large measure to
"make the laws." This has occurred despite the constitutional
responsibility conferred on Congress by Article I Section 8 of the Constitution
which states that it is Congress that "makes all Laws . . ."
Most of the statutes pertaining to emergency powers were passed in times of
extreme crisis. Bills drafted in the Executive branch were sent to Congress by the
President and, in the case of the most significant laws that ate on the books,
were approved with only the most perfunctory committee review and virtually no
consideration of their effect on civil liberties or the delicate structure of
the U.S. Government of divided powers. For example, the economic measures that
were passed in 1933 pursuant to the proclamation of March 5, 1933, by President
Roosevelt, asserting that a state of national emergency now existed, were
enacted in the most turbulent circumstances. There was a total of only 8 hours
of debate in both houses. There were no committee reports; indeed, only one
copy of the bill was available an the floor.
This pattern of hasty and inadequate consideration was repeated during World
War II when another group of laws with vitally significant and far reaching
implications was passed. It was repeated during the Korean war and, again, in
most recent memory, during the debate on the Tonkin Gulf Resolution passed on
August 6, 1064.
On occasion, legislative history shows that during the limited debates that
did take place, a few, but very few, objections were raised by Senators and
Congressmen that expressed serious concerns about the lack of provision for
congressional oversight. Their speeches raised great doubts about the wisdom of
giving such open-ended authority to the President, with no practical procedural
means to withdraw that authority once the time of emergency had passed.
For example, one of the very first provisions passed in 1933 was the Emergency
Banking Act based upon Section 5(b) of the Trading With the Enemy Act of 1917.
The provisions gave to President Roosevelt, with the full approval of the
Congress, the authority
(7)
to control major aspects of the economy, an authority which had formerly
been reserved to the Congress. A portion of that provision, still in force, is
quoted here to illustrate the kind of open-ended authority Congress has given
to the President during the past 40 years:
(1) During the time of war or during any other period of national emergency
declared by the President, the President may, through any agency that he may
designate, or otherwise, and under such rules and regulations as he may
prescribe, by means of instructions, licenses, or otherwise -
(A) investigate, regulate, or prohibit, any transactions in foreign
exchange, transfers of credit or payments between, by, through, or to any
banking institution, and the importing, exporting, hoarding, melting, or
earmarking of gold or silver coin or bullion, currency or securities, and
(B) investigate, regulate, direct and compel, nullify, void, prevent or
prohibit, any acquisition, holding, withholding, use, transfer, withdrawal,
transportation, importation or exportation of, or dealing in, or exercising any
right, power, or privilege with respect to, or transactions involving, any
property in which any foreign country or a national thereof has any interest.
by any person, or with respect to any property, subject to the jurisdiction
of the United States; and any property or interest of any foreign country or
national thereof shall vest, when, as, and upon the terms, directed be the
President, in such agency or person as may be designated from time to time by
the President, and upon such terms and conditions as the President may
prescribe such interest or property shall be held, used, administered,
liquidated, sold, or otherwise dealt with in the interest of and for the
benefit of the United States, and such designated agency or person may perform
any and all acts incident to the accomplishment or furtherance of these
purposes; and the President shall, in the manner hereinabove provided, require
any person to keep a full record of, and to furnish under oath, in the form of
reports or otherwise, complete information relative to any act or transaction
referred to in this subdivision either before, during, or after the completion
thereof, or relative to any interest in foreign property, or relative to any
property in which any foreign country or any national thereof has or has had
anger interest, or as may be otherwise necessary to enforce the provisions of
this subdivision, and in any case in which a report could be required, the
President may, in the manner hereinabove provided, receive the production, or
if necessary to the national security or defense, the seizure, of any books of
account, records, contracts, letters. memoranda. or other papers, in the
custody or control of such person; and the President, may, in the manner
hereinabove provided, take other and further measures not inconsistent herewith
for the enforcement of this subdivision.
(2) Any payment, conveyance, transfer, assignment, or delivery of property
or interest therein, made to or for the account of the United States, or as otherwise
directed, pursuant to this subdivision or any rule, regulation, instruction,
(8)
or direction issued hereunder shall to the extent thereof be a full
acquittance and discharge for all purposes of the obligation of the person
making the same; and no person shall be held liable in any court for or in
respect to anything done or omitted in good faith in connection with the
administration of, or in pursuance of and in reliance on, this subdivision, or
any rule, regulation, instruction, or direction issued hereunder.
To cite two further examples:
In the context of the war powers issue and the long debate of the past
decade over national commitments, 10 U.S.C. 712 is of importance:
10 U.S.C. 712. Foreign governments: detail to assist.
(a) Upon the application of the country concerned, the President, whenever
he considers it in the public interest, may detail members of the Army, Navy,
Air Force, and Marine Corps to assist in military matters -
(1) any republic in North America, Central America, or South America;
(2) the Republic of Cuba, Haiti, or Santo Domingo and
(3) during a war or a declared national emergency, any other country that he
considers it advisable to assist in the interest of national defense.
(b) Subject to the prior approval of the Secretary of the military
department concerned, a member detailed under this section may accept any
office from the country to which he is detailed. He is entitled to credit for
all service while so detailed, as if serving with the armed forces of the
United States. Arrangements may be made by the President, with countries to
which such members are detailed to perform functions under this section, for
reimbursement to the United States or other sharing of the cost of performing
such functions.
The Defense Department, in answer to inquiries by the Special Committee
concerning this provision, has stated that it has only been used with regard to
Latin America, and interprets its applicability as being limited to noncombatant
advisers. However, the language of Section 712 is wide open to other
interpretations. It could be construed as a way of extending considerable
military assistance to any foreign country. Since Congress has delegated this
power, arguments could be made against the need for further congressional
concurrence in a, time of national emergency.
The repeal of almost all of the Emergency Detention Act of 1950 was a
constructive and necessary step, but the following provision remains:
18. U.S.C. 1383. Restrictions in military areas and zones.
Whoever, contrary to the restrictions applicable thereto, enters, remains
in, leaves, or commits any act in any military area or military zone prescribed
under the authority of an Executive order of the President, by the Secretary of
the Army, or by any military commander designated by the Secretary of the Army,
shall, if it appears that he knew or
(9)
should have known of the existence and extent of the restrictions or order
and that his act was in violation thereof, be fined not more than $5,000 or
imprisoned not more than one year, or both.
18 U.S.C. 1383 does not appear on its face to be an emergency power. It was
used as the basis for internment of Japanese-Americans in World War II.
Although it seems to be cast as a permanent power, the legislative history of
the section shows that the statute was intended as a World War II emergency
power only, and was not to apply in "normal" peacetime circumstances.
Two years ago, the Emergency Detention Act was repealed, yet 18 U.S.C. 1383 has
almost the same effect.
Another pertinent question among many, that the Special Committee's work has
revealed, concerns the statutory authority for domestic surveillance by the
FBI. According to some experts, the authority for domestic surveillance appears
to be based upon an Executive Order issued by President Roosevelt during an
emergency period. If it is correct that no firm statutory authority exists,
then it is reasonable to suggest that the appropriate committees enact proper
statutory authority for the FBI with adequate provision for oversight by
Congress.
What these examples suggest and what the magnitude of emergency powers
affirm is that most of these laws do not provide for congressional oversight or
termination. There are two reasons which can be adduced as to why this is so.
First, few, if any, foresaw that the temporary states of emergency declared in
1938, 1939, 1941, 1950, 1970, and 1971 would become what are now regarded
collectively as virtually permanent states of emergency (the 1939 and 1941
emergencies were terminated in 1952).
Forty years can, in no way, be defined
as a temporary emergency. Second, the various administrations who drafted
these laws for a variety of reasons were understandably not concerned about
providing for congressional review, oversight, or termination of these
delegated power's which gave the President enormous powers and flexibility to
use those powers.
The intense anxiety and sense of crisis was contained in the rhetoric of
Truman's 1950 proclamation:
Whereas recent events in Korea and elsewhere constitute a grave threat to
the peace of the world and imperil the efforts of this country and those of the
United Nations to prevent aggression and armed conflict; and
Whereas world conquest by communist imperialism is the goal of the forces of
aggression that have been loosed upon the world; and
Whereas, if the goal of communist imperialism were to be achieved, the
people of this country would no longer enjoy the full and rich life they have
with God's help built for themselves and their children; they would no longer
enjoy the blessings of the freedom of worshipping as they severally choose, the
freedom of reading and listening to what they choose, the right of free speech,
including the right to criticize their Government, the right to choose those
who will con-
(10)
duct their Government, the right to engage freely in collective bargaining,
the right to engage freely in their own business enterprises, and the many
other freedoms and rights which are a part of our way of life; and
Whereas, the increasing menace of the forces of communist aggression
requires that the national defense of the United States be strengthened as
speedily as possible:
Now, therefore, I, Harry S. Truman, President of the United States of
America, do proclaim the existence of a national emergency, which requires that
the military, naval, air, and civilian defenses of this country be strengthened
as speedily as possible to the end that we may be able to repel any and all
threats against our national security and to fulfill our responsibilities in
the efforts being made through the United Nations and otherwise to bring about
lasting peace.
I summon all citizens to make a united effort for the security and
well-being of our beloved country and to place its needs foremost in thought
and action that the full moral and material strength of the Nation may be
readied for the dangers which threaten us.
I summon our farmers, our workers in industry, and our businessmen to make a
mighty production effort to meet the defense requirements of the Nation and to
this end to eliminate all waste and inefficiency and to subordinate all lesser
interests to the common good.
I summon every person and every community to make, with a spirit of
neighborliness, whatever sacrifices are necessary for the welfare of the
Nation.
I summon all State and local leaders and officialsto cooperate fully with
the military and civilian defense agencies of the United States in the national
defense program.
I summon all citizens to be loyal to the principles upon which our Nation is
founded, to keep faith with our friends and allies, and to be firm in our
devotion to the peaceful purposes for which the United Nations was founded.
I am confident that we will meet the dangers that confront us with courage
and determination, strong in the faith that we can thereby "secure the
Blessings of Liberty to ourselves and our Posterity."
In witness whereof, I have hereunto set my hand and caused the Seal of the
United States of America to be affixed.
Done at the City of Washington this 16th day of December (10:90 a.m.) in the
year of our Lord nineteen hundred and fifty, and of the Independence of the
United States of America the one hundred and seventy-fifth.
HARRY S. TRUMAN
[SEAL]
By the President:
DEAN ACHESON,
Secretary of State
(11)
The heightened sense of crisis of the cold war so evident in Truman's
proclamation has fortunately eased. The legislative shortcomings contained in
this body of laws can be corrected on the basis of rational study and inquiry.
In the view of the Special Committee, an emergency does not now exist.
Congress, therefore, should act in the near future to terminate officially the
states of national emergency now in effect.
At the same time, the Special Committee is of the view that it is essential
to provide the means for the Executive to act effectively in an emergency. It
is reasonable to have a body of laws in readiness to delegate to the President
extraordinary powers to use in times of real national emergency. The portion of
the concurring opinion given by Justice Jackson in the
Youngstown Steel
case with regard to emergency powers provides sound and pertinent guidelines
for the maintenance of such a body of emergency laws kept in readiness to be
used in times of extreme crisis. Justice Jackson, supporting the majority
opinion that the "President's power must stem either from an act of
Congress or from the Constitution itself" wrote:
The appeal, however, that we declare the existence of inherent powers
ex
necessitate to meet an emergency asks us to do what many think would be
wise, although it is something the forefathers omitted. They knew what
emergencies were, knew the pressures they engender for authoritative action,
knew, too, how they afford a ready pretext for usurpation. We may also suspect
that they suspected that emergency powers would tend to kindle emergencies.
Aside from suspension of the privilege of the writ of habeas corpus in time of
rebellion or invasion, when the public safety may require it, they made no
express provision for exercise of extraordinary authority because of a crisis.
I do not think we rightfully may so amend their work, and, if we could, I am
not convinced it would be wise to do so, although many modern nations have
forthrightly recognized that war and economic crises may upset the normal
balance between liberty and authority. Their experience with emergency powers
may not be irrelevant to the argument here that we should say that the
Executive, of his own volition, can invest himself with undefined emergency
powers.
Germany, after the First World War, framed the Weimar Constitution, designed
to secure her liberties in the Western tradition. However, the President of the
Republic, without concurrence of the Reichstag, was empowered temporarily to
suspend any or all individual rights if public safety and order were seriously
disturbed or endangered. This proved a temptation to every government, whatever
its shade of opinion, and in 13 years suspension of rights was invoked on more
than 250 occasions. Finally, Hitler persuaded President Von Hindenburg to
suspend ail such rights, and they were never restored.
The French Republic provided for a very different kind of emergency
government known as the "state of seige." It differed from the German
emergency dictatorship particularly in that emergency powers could not be
assumed at will
(12)
by the Executive but could only be granted as a parliamentary measure. And
it did not, as in Germany, result in a suspension or abrogation of law but was
a legal institution governed by special legal rules and terminable by
parliamentary authority.
Great Britain also has fought both World Wars under a sort of temporary
dictatorship created by legislation. As Parliament is not bound by written
constitutional limitations, it established a crisis government simply by
delegation to its Ministers of a larger measure than usual of its own un1imited
power, which is exercised under its supervision by Ministers whom it may
dismiss, This has been called the "high-water mark in the voluntary
surrender of liberty," but, as Churchill put it, "Parliament stands
custodian of these surrendered liberties, and its most sacred duty will be to
restore them in their fullness when victory has crowned our exertions and our
perseverance." Thus, parliamentary controls made emergency powers
compatible with freedom.
This contemporary foreign experience may be inconclusive as to the wisdom of
lodging emergency powers somewhere in a modern government. But it suggests that
emergency powers are consistent with free government only when their control is
lodged elsewhere than in the Executive who exercises them. That is the
safeguard that would be nullified by our adoption of the "inherent
pointers" formula. Nothing in my experience convinces me that such risks
are warranted by any real necessity, although such powers would, of course, be
an executive convenience.
In the practical working of our Government we already have evolved a
technique within the framework of the Constitution by which normal executive
powers may be considerably expanded to meet an emergency, Congress may and has
granted extraordinary authorities which lie dormant in normal times but may be
called into play by the Executive in war or upon proclamation of a national
emergency. In 1939, upon congressional request, the Attorney General listed
ninety-nine such separate statutory grants by Congress of emergency or wartime
executive powers. They were invoked from time to time as need appeared. Under
this procedure we retain Government by law-special, temporary law, perhaps, but
law nonetheless. The public may know the extent and limitations of the powers
that can be asserted, and persons affected may be informed from the statute of
their rights and duties.
In view of the ease, expedition and safety with which Congress can grant and
has granted large emergency powers, certainly ample to embrace this crisis, I
am quite unimpressed with the argument that we should affirm possession of them
without statute. Such power either has no beginning or it has no end, If it
exists, it need submit to no legal restraint. I am not alarmed that it would
plunge us straightway into dictatorship, but it is at least a step in that
wrong direction.
*
* *
* * *
24-509 O - 73 - 3
(13)
But I have no illusion that any decision by this Court can keep power in the
hands of Congress if it is not wise and timely in meeting its problems. A
crisis that challenges the President equally, or perhaps primarily, challenges
Congress. If not good law, there was worldly wisdom in the maxim attributed to
Napoleon that "The tools belong to the man who can use them." We may
say that power to legislate for emergencies belongs in the hands of Congress,
but only Congress itself can prevent power from slipping through its fingers.
The essence of our free Government is "leave to live by no man's leave,
underneath the law" - to be governed by those impersonal forces which we
call law. Our Government is fashioned to fulfill this concept so far as humanly
possible. The Executive, except for recommendation and veto, has no legislative
power. The executive action we have here originates in the individual will of
the President and represents an exercise of authority without law. No one,
perhaps not even the President, knows the limits of the power he may seek to
exert in this instance and the parties affected cannot learn the limit of their
rights. We do not know today what powers over labor or property would be
claimed to flow from Government possession if we should legalize it, what
rights to compensation would be claimed or recognized, or on what contingency
it would end. With all its defects, delays and in-conveniences, men have
discovered no technique for long preserving free government except that the
Executive be under the law, and that the law be made by parliamentary
deliberations.
Such institutions may be destined to pass away. But it is the duty of the
Court to be last, not first, to give them up.
With these guidelines and against the background of experience of the last
40 years, the task that remains for the Special Committee is to determine - in
close cooperation with all the Standing Committees of the Senate and all
Departments, Commissions, and Agencies of the Executive branch - which of the
laws now in force might be of use in a future emergency. Most important, a
legislative formula needs to be devised which will provide a regular and
consistent procedure by which any emergency provisions are called into force.
It will also be necessary to establish a means by which Congress can exercise
effective oversight over such actions as are taken pursuant to a state of
national emergency as well as providing a regular and consistent procedure for
the termination of such grants of authority.
24-509 O - 73 - 3
(14)
COMPILING
THE TEXTS OF EMERGENCY POWER STATUTES
Pursuant to S. Res. 9 of January 6, 1973, the U.S. Senate directed the
Special Committee on the Termination of the National Emergency to study and
investigate emergency powers legislation now in force.
From the outset of its work, the Special Committee faced the problem of
determining, with reasonable accuracy, the number, nature, and extent of
emergency statutes passed by Congress since 1933 which delegate extraordinary
powers to the President in time of crisis or impending catastrophe. It was
evident, initially, that existing listings of executive emergency powers were
either out-of-date or inadequate for the Special Committee's purposes. It
became apparent, too, that the United States Government has been operating
under an unrelieved state of emergency of 40 years' duration. During this
period, an enormous body of laws dealing with severe economic crisis and
America's response to three wars had been passed by Congress through an almost
unnoticed process of gradual accretion.
In the past, the only way to compile a catalog useful to Congress would have
required going through every page of the 86 volumes of the Statutes-at-Large.
Fortunately, the U.S. Code (1970 edition and one supplement) was put onto
computer tapes by the United States Air Force in the so-called LITE System,
which is located at a military facility in the State of Colorado. The Special
Committee staff, working in conjunction with the Justice Department, the
Library of Congress, and the General Accounting Office, devised several
programs for computer searches. These programs were based on a wide spectrum of
key words and phrases contained in typical provisions of law , which delegate
extraordinary powers. Examples of some trigger words are "national
emergency," "war," "national defense,"
"invasion," "insurrection," etc. These programs, designed
to produce a computer printout of all provisions of the U.S. Code that pertain
to a state of war or national emergency, resulted in several thousand
citations. At this point, the Special Committee staff and the staff of the
American Law Division, Library of Congress, went through the printouts,
separated out all those provisions of the U.S, Code most relevant to war or national
emergency, and weeded out those provisions of a trivial or extremely remote
nature. Two separate teams worked on the computer printouts and the results
were put together in a third basic list of U.S. Code citations.
To determine legislative intent, the U.S. Code citations were then hand
checked against the Statutes-at-Large, the Reports of Stand-
(15)
ing Committees of the U.S. Senate and House of Representatives and, where
applicable, Reports of Senate and House Conferences.
In addition, the laws passed since the publishing of the 1970 Code were
checked and relevant citations were added to the master list. The compilation
was then checked against existing official catalogs: That of the Department of
Defense, "Digest of War and Emergency Legislation Affecting the Department
of Defense"; that of the Once of Emergency Planning, "Guide to the
Emergency Powers Conferred by Laws in Effect on January 1, 1969"; and, the
1962 House Judiciary Committee synopsis of emergency powers, "Provisions
of Federal Law in Effect in Time of National Emergency."
The task of compiling a catalog of emergency powers statutes, therefore, has
been immeasurably assisted by use of computers, but computers could not replace
the need for a systematic and very laborious hand search of all of the volumes
of the U.S. Code, the Statutes-at-Large, and Senate and House Reports. The
following compilation is intended to be used as a working list of the most
relevant emergency provisions of the law. The Special Committee cannot be
certain that every statute that could or may be called into use during a time
of war or national emergency is in the following compilation. However, the
Special Committee believes that the most significant provisions are herein
cataloged.
The compilation is organized as follows:
1. A summary of all the U.S. Code citations in order of their appearance in
the Code, and specific Public Laws with the Congress and the year they were
enacted.
2. The texts of U.S. Code citations and Public Laws with explanatory notes
and such material from Senate and House Reports which explains Congress'
primary intent concerning these provisions of law.
3. Citation of statutes in accordance to committee jurisdictions.
The appendix contains:
1. Seven tables that list various breakdowns of the usage of the United
States Code.
2. The four proclamations of national emergency now in effect.
3. A subject index.
(16)
End of
Senate Report 93-549
