Chapter XI Conclusions
The doctrine of constitutional dictatorship is inappropriate for analysis of the problem of democratic response to emergency.
Judicial review of a chief executive’s finding that an emergency exists amounts to involvement of Supreme Court Justices in a genre of decision-making which should more properly be performed by the President and Congress, although the 1959 Steel Seizure decision reveals the effective role which the Supreme Court may play in holding the President to the forms of emergency action prescribed by the Congress, if the Congress has so prescribed them.
The recurrent trouble which the nation has confronted in taking timely and effective emergency action at the national level stems from the existence on the statute books of a confusing array of provisions for the declaration of various kinds of emergency, and the excessively precise definition of the techniques which must be employed in coping with the emergency. This invites efforts at evasion of statutory limitations as in the instance of the 1952 steel strike, or requires recurrent special legislation dealing with successive particularized emergencies. Also, in forewarning the private parties in dispute, in the case of a strike, of the precise time-table and program of action to which the executive must adhere, it may lessen their incentive to settle the dispute, for the course of action prescribed by statute may, depending upon the situation, strengthen the bargaining position of one of the disputants.
The recent use of the concurrent resolution in Congress provides a key to the means for equipping the President with the broad discretion he should have to identify conditions warranting emergency action, and to select the appropriate tools to deal with an emergency, while simultaneously keeping him under Congressional surveillance and control.
We propose a generic statute to empower the President to proclaim a national or regional emergency. Under such a proclamation the President may issue rules and regulations which have the force of law. A proclamation of emergency would be placed before the Congress within twenty-four hours of its issuance. If Congress were not in session, it would be called into session within five days from the time of the declaration of emergency. The proclamation of emergency would stand unless revoked by concurrent resolution by both Houses of Congress within five days of Congress’ coming into special session.
The rules and regulations issued under the proclamation would be similarly subject to revocation by concurrent resolution and Congress should possess the item veto in this respect; i.e., it may revoke one rule, while permitting others to stand. An emergency proclamation and regulations issued under it, would automatically expire after thirty days, but would be subject to reissuance by the President, provided the Congress concurred. Congress, upon the issuance of an emergency proclamation would establish a scrutiny committee on emergency powers, patterned after the Joint Committee on Atomic Energy. Congress would maintain continuous scrutiny of the administration of powers exercised under the proclamation. The Committee’s primary responsibility would be to keep Congress sufficiently advised as to whether powers had been responsibly administered.
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.
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).
2 Id., Division III, vols. 1 and 2, “Social Organization, Behavior, and Morale Under Stress of Bombing,” and Irving L. Janis, Air War and Emotional Stress (McGraw-Hill, 1951, for the Rand Corporation).
3 Robert Connery, The Navy and Industrial Mobilization in World War II (Princeton University Press, 1951) p. 6.
4 Exemplified by Justice Davis’s decision for the majority of the Court in Ex parte Milligan, 4 Wall. 2, 120-21, 126 (1866):
“The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism; but the theory of necessity on which it is based is false; for the government, within the constitution, has all the powers granted to it, which are necessary to preserve its existence....
“... It could well be said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation.”
5 Justice Sutherland for the Court in the 1936 case of United States v. Curtiss-Wright Export Corporation, 299 U. S. 304, 316-18:
“And since the states severally never possessed international powers, such powers could not have been carved from the mass of state powers but obviously were transmitted to the United States from some other source....
“It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have been vested in the federal government as necessary concomitants of nationality.”
6 Justice Jackson, dissenting in the Japanese relocation case, Korematsu v. United States, 323 U. S. 214, 248 (1944) admonished the Court as follows:
“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 in 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.”
7 The words are, of course, those of John Locke, Of Civil Government, Bk. II, Ch. XIV.
The studies referred to include: Edward S. Corwin, The President: Office and Powers (New York: New York University Press, 3rd ed., 1948); and Total War and the Constitution (New York: Knopf, 1947); Clarence Berdahl, War Powers of the Executive in the United States, (Urbana: University of Illinois Press, 1921); Clinton L. Rossiter, Constitutional Dictatorship (Princeton: Princeton University Press, 1948) and The Supreme Court and the Commander in Chief (Ithaca: Cornell University Press, 1951); Wilfred E. Binkley, President and Congress (New York: Knopf, 1947); Bennett M. Rich, The President and Civil Disorder (Washington, D. C.: Brookings, 1941); Louis W. Koenig, The Presidency and the Crisis (New York: King’s Crown Press, 1944); John W. Burgess, Ch. XXVIII, vol. 2, The Civil War and the Constitution (New York: Scribners, 1901); James Hart, The Ordinance Making Powers of the President of the United States (Baltimore: Johns Hopkins Press, 1925); James G. Randall, Constitutional Problems Under Lincoln, rev. ed. (Urbana: University of Illinois Press, 1951); and a recent article by Albert L. Sturm, “Emergencies and the President,” 11 Journal of Politics, 121, 1949, in which he says, “Lincoln’s precedents have afforded warrant for his aggressive successors to meet extraordinary needs with extraordinary remedies, despite their doubtful constitutionality.” Perhaps as broad a claim to an executive prerogative as has been made in the United States is that which Lucius Wilmerding, Jr., bases upon his study of The Spending Power (New Haven: Yale University Press, 1943): “There are certain circumstances which constitute a law of necessity and self-preservation and which render the salus populi supreme over the written law. The officer who is called to act upon this superior ground does indeed risk himself on the justice of the controlling powers of the Constitution, but his station makes it his duty to incur that risk.” p. 12.
8 Edward S. Corwin strongly emphasizes that incident in his The President: Office and Powers (New York: New York University Press, 3rd ed., 1948), pp. 303-6.
9 This is the doctrine which would seem to emerge from Youngstown Sheet and Tube Co. v. Sawyer, 343 U. S. 579 (1952), in which the Court rejected contentions on behalf of President Truman that he enjoyed an “inherent” emergency power to seize private industry in time of emergency occasioned by work stoppages.
10 This study should not be interpreted as an effort to catalog exhaustively existing delegations of emergency powers to the President. Statutes of the era 1933 to 1955 are analyzed without regard to their present status as expired or in force.