Chapter IV Emergency Powers Over Persons
Constitutional democracies as well as authoritarian states are confronted in time of military crisis with the need for a maximum productive and military effort directed at national survival. Totalitarian nations in their practice of total absorption of the materials and energies of conquered nations, and the Western democracies in their insistence upon “unconditional surrender” have contributed to the transformation of modern war from a struggle for limited objectives to a struggle for survival.
The initial response of Great Britain in the First World War indicated an assumption that war imposed upon a nation the necessity to adapt the machinery of the government, and especially its military arm, to the attainment of victory. Twentieth century wars, like those of the Nineteenth century, were to be fought by the military. In terms of the total national energies, war represented a temporary, localized diversion. Democracies continue to manifest a not necessarily unhealthy predisposition, even in the atomic age, to treat war as a subsidiary effort which should not unduly ripple the accustomed habits and interests of the major segment of the population and economy. War is fought by governments, not by peoples. True, perhaps, in regard to police actions which constitute occasional escape valves for aggressive energies which might otherwise erupt in world war, this aphorism which is maintained as a fiction in time of major war, is a residue of an earlier and simpler age.
However tentative their initial response to World War II, the Western democracies soon came to regard it as imposing the need not simply to adapt governmental structure to the major purpose of victory, but to maintain consistency between the political and economic activities of individuals and this overriding goal. Exercising a frankly coercive power, governments in the Second World War conscripted the energies of individuals. Great Britain imposed a labor draft as well as a military draft. The United States, resisting nationwide demands for conscription of labor, satisfied itself with commanding the military services of individuals. Both countries identified individuals whom, it seemed, could best be integrated in the war effort by being integrated out of it—i.e., potential saboteurs, espionage agents, and the like. However adequate or inadequate the techniques for measuring individual and group loyalty, the measurement was undertaken and thousands found themselves immobilized behind barbed wires.
A person naive in political and human relations or a government facing nascent revolution would resort solely to the technique of command and coercion to secure the adjustment of individual goals and efforts to those of the nation. Thus in the United States many war programs depended upon the offering of incentives or simple exhortation and appeal to individual loyalty for their effectiveness. And, in a democracy it remains true in time of war as in peacetime, that the essential nature of the political process is “the translation of conflict among interest groups into authoritative decision.”127
These are the conditions under which statutes and presidential proclamations relating to the mobilization of the human resources of the nation will be discussed.
Positive Integration
Civilian Labor Force: Notwithstanding the failure of the United States to adopt a form of outright labor conscription in the last war, a number of statutory provisions did attempt to integrate segments of the labor force more closely in the war effort. Those which were primarily repressive in nature—i.e., which principally concerned the imposition of penalties or the prohibition of specified activities—are treated in the second section of this chapter.
In June 1939, Congress set up a program for the training of civil aircraft pilots.128 The Navy Department Appropriations Act for fiscal 1941129 included an emergency fund to enable the President, among other things, to procure and train civilian personnel necessary in connection with the production of critical and essential items of equipment and material and the use or operation of such equipment and material. A month later, Congress authorized the Secretary of War, during the period of any national emergency declared by the President, to employ laborers and mechanics in excess of forty hours per week, at time and one-half for overtime.130 Another 1940 law suspended during the national emergency statutory provisions imposing the eight hour day for Maritime Commission contractors.131
Section 801 of the Second War Powers Act of 1942 authorized the President to direct the assignment of Civilian Conservation Corps manpower to protect the munitions, aircraft, and other war industries, municipal water supply, power, and other utilities, and to protect resources subject to the hazards of forest fires.132
Emergency conditions may lead to relaxation of the traditional American rule, based upon the assumption that public employment is a privilege and upon security grounds, that aliens are ineligible for governmental positions—especially positions in the military establishments. In 1946 Congress suspended statutory provisions prohibiting the employment of aliens.133 Thus the Secretary of the Navy could authorize the Navy Department to employ non-citizens whose special technical or scientific knowledge or experience would be of benefit to the military services of the United States. The wisdom of this legislation may be more readily appreciated when it is remembered that German rocket experts like Dr. Werner von Braun were able to serve in the United States rather than behind the Iron Curtain. Similarly, as illustrated by the Selective Service Act of 1948,134 effective mobilization of the labor force requires exemption of some specially skilled persons from military conscription. This Act authorized the President to provide for the deferment from training and service certain categories of individuals in many different fields as found to be necessary to the maintenance of the national health, safety, or interest.
Work stoppages are the nemesis of any defense production program. The wartime efforts to prevent or speedily terminate such stoppages are reported in the next section, on the theory that they were primarily coercive in nature. The Defense Production Act of 1950,135 however, clearly reflects the statutory trend in the United States against the outlawing of strikes in time of emergency. Section 502 of the Act emphasizes that national policy is to place primary reliance upon the parties to any labor dispute to settle their differences through negotiation and collective bargaining, making full use of available mediation and conciliation facilities. All settlements should be made in the national interest. The President is to initiate strike settlement conferences, with representatives of the public present, but no action inconsistent with the Labor-Management Relations Act of 1947 may be taken.136
Current information on the availability of essential skills must be maintained. The National Science Foundation Act of 1950 included among the functions of the agency that of maintaining a register of scientific and technical personnel and providing a central clearinghouse for information covering all scientific and technical personnel in the United States.137
The Military Services: Maintenance on active duty or in reserve status of armed forces components adequate to the defense of the United States is of continuing concern to the government. It is not alone in time of war that attention is given to the adequacy of the military services. Thus the 1930’s witnessed a series of amendments to the 1916 National Defense Act designed to improve the status of the reserve components of the Army. In June 1933, during the famous first hundred days of the Roosevelt administration, it was not too preoccupied with depression legislation to secure legislation introducing changes into procedures for establishing National Guard policy. All policies and regulations affecting the organization, training and distribution of the National Guard were to be prepared by committees of appropriate branches or divisions of the War Department General Staff.
The Guard would be entitled to equal representation with the Regular Army in formulating Guard policies, but the paramount fact was that of federal supervision and integration of the National Guard.138 Further, the President was empowered to determine the number of reserve officers in the various grades to be appointed to the Officers’ Reserve Corps, and to make such appointments, subject to Senatorial approval for ranks above Colonel.139 This is a characteristic extension of the president’s power as Commander-in-Chief.
Two years later, in June 1935, a further amendment to the 1916 statute gave the President authority in an emergency at any time to order officers of the National Guard to active duty for the duration of the emergency, with the proviso, however, that no officer could be employed on active duty for more than fifteen days in any calendar year without his own consent.140 Later that year the President was authorized to call annually one thousand Reserve Officers (mostly R.O.T.C. graduates) for a year’s active duty with the Regular Army in the grade of second lieutenant. Only those who applied and who had been screened by the War Department were eligible.141
Continuing to elaborate amendments to the National Defense Act, Congress, in April 1938, established the requirement that line officers should not be detailed to or remain as members of the General Staff Corps unless two of their immediately preceding six years had been served in actual command of or on duty other than General Staff duty, with troops of one or more of the combatant arms or as instructor with the National Guard, Organized Reserves, or Reserve Officers’ Training Corps.142 Two days later in another amendment to the basic act, Congress provided for establishment of a Regular Army Reserve, membership in which was restricted to persons under 36 years of age who had served in the Regular Army and from which an honorable discharge had been received.143 The Regular Army Reserve was subject to call to active duty by the President in case of emergency declared by him. Within six months after the termination of an emergency declared by the President, the Reserve forces were to be placed in an inactive status or discharged, whichever was the more appropriate.144
In June 1938 the 1916 statute was amended to increase the allowed strength of enlisted men in the Army Air Corps from 16,000 to 21,500.145 That same month an earlier Naval Reserve statute (Act of February 28, 1925) was superseded and a Naval Reserve to consist of the Fleet Reserve, the Organized Reserve, the Merchant Marine Reserve, and the Volunteer Reserve was created. All were to constitute a component part of the Navy.146 The same Act also provided for a Marine Corps Reserve.147 The reserve units were to be composed of persons transferred, enlisted, or appointed to them.148
But it is in 1940 that the statute books commence to reflect administration and congressional anticipation of American participation in the War and the attendant necessity to compel individuals to give military service. On May 14, 1940 provision was made for the extension of all enlistments in the active military service for the duration, plus six months in the event of war or other emergency declared by Congress.149 The Secretary of the Navy was given power, six days following Pearl Harbor, to extend for the duration of the war plus six months all enlistments in the Navy, Marine Corps, and Coast Guard.150 Another enactment of that date permitted the similar extension of Army service.151 This Act also eliminated all territorial restrictions on the use of units and members of the Army.152
Congress, having made provision for the extension of regular service enlistments for the duration in the event of emergency, then granted the President authority to call the reserve to active duty. This was accomplished in August 1940 when Congress delegated to the President power until June 30, 1942 to order into the active military service for a twelve month period any or all members and units of any or all reserve components of the Army of the United States, and retired personnel of the Regular Army, with or without their consent, in any manner the President deemed necessary for the strengthening of the national defense.153 The August statute having empowered the President to order the National Guard, as well as other reserve units, into active duty, it seemed desirable to equip the States with authority to set up military units for home duty in the absence of the Guard.
An October 1940 statute accomplished this purpose by authorizing the states, while any part of the National Guard of the state concerned was in active federal service, to organize and maintain whatever military forces other than National Guard were believed necessary by the state.154 These forces were subject to the Secretary of War’s regulation on matters of discipline and training. They were not subject to federal call, but neither were individual members exempt by reason of service in such units from military service under any federal law. In September 1950, three months after outbreak of the Korean War, Congress authorized the President to call up reserve forces and retired personnel from all military branches, with or without the consent of those called.155 And, as in the Second World War, state authorities were again empowered to set up military units to substitute for the National Guard as long as any part of the National Guard was in active federal service.156
Meanwhile the gradual inclusion of compulsory service provisions in statutes was carried to its ultimate conclusion in the Selective Training and Service Act of 1940.157 The Act required the registration of all male citizens of the United States and male alien residents between the ages of 21 and 36.158 The President was authorized from time to time, whether or not a state of war existed, to select and induct into the land and naval forces of the United States for training and service whatever number of men in his judgment might be required for such forces in the national interest.159 A peacetime ceiling of 900,000 inductees was established, and provision made for a twelve months’ maximum training period subject to extension whenever the Congress declared that the national interest was imperiled.160 The remaining powers granted to the President in the Act, and the limitations which circumscribed his exercise of them, will be discussed in other contexts.
By proclamation that day, and on October 1, 8, and November 12, the President established registration days in the United States proper, Hawaii, Puerto Rico, and Alaska.161 A second registration day was proclaimed in May 1941, and a third on January 5, 1942.162 The Conscription Act was continued in effect for the duration of the war. A post-war, or “cold war”, conscription program was set up in June 1948.163 The new statute provided for the registration of male citizens and alien residents between the ages of 18 and 26, and made those between 19 and 26 subject to induction into the armed forces at the discretion of the President.164 He was empowered to induct a sufficient number of persons to maintain the personnel strengths of the armed forces at three million men.165 The maximum term of service was two years, and the Act’s duration was set at two years. A September 1950 amendment to the Act allowed the President to require special registration of medical, dental, and allied specialties, drafting persons below the age of 50 from the lists to fill requisitions submitted by the Department of Defense and approved by the President.166 An eleventh hour enactment of June 23, 1950 deferred expiration of the Selective Service Act for fifteen days,167 and seven days later July 9, 1951 was substituted for the July 9, 1950 expiration date.168
The next year saw systematic amendment of the 1948 statute, including a change of title to the Universal Military Training and Service Act.169 The maximum of two years’ service was continued, and the minimum age for both registration and induction set at 18 1/2 years. A 1953 amendment to the Act provided for the special registration, classification, and induction of medical, dental, and allied specialist personnel.170 A method for gaining release from military service, anachronistic in the age of universal military service and the citizen army, was removed when in July 1953 Congress repealed provisions of 1890 and 1893 statutes which permitted enlisted men to purchase discharge from the armed services.171
A series of non-coercive statutes from 1939 on were designed to augment the armed services. In June 1939 Congress established a Coast Guard Reserve, composed of owners of motorboats and yachts.172 In March 1941 the President was empowered to appoint within the Navy 100 acting assistant surgeons above previous quotas, and the Secretary of the Navy given power in time of war or national emergency declared by the President to appoint for temporary service, such acting assistant surgeons as the exigencies of the service required.173
A June 1942 statute suspended all limitations on personnel strength in the military services.174 Upon emergence of the “Cold War” Congress again authorized increases in military strength. In April 1946 the Navy and Marine Corps were permitted to increase the number of commissioned officers on the active list, and to maintain enlisted strength at 500,000 for the Regular Navy, and at 200,000 for the Marine Corps.175 A Civil Air Patrol, to serve as a volunteer civilian auxiliary to the Air Force, was established in May 1948.176 The Air Force was to establish, maintain, supply, and equip liaison offices with the CAP, and to detail Air Force military and civilian personnel to assist in training CAP members. Not dissimilar to the provision establishing the CAP as a civilian adjunct to the Air Force was a 1953 statute authorizing the President to employ the American National Red Cross under the Armed Forces whenever the President found it necessary to order such employment.177
The Women’s Armed Services Integration Act of June 1948 integrated the women’s services as Regular units within the Army, Navy, Marine Corps, and Air Force.178 Four years later Congress authorized the appointment of qualified women as physicians and specialists in the medical services of the Army, Navy, and Air Force.179 In 1950 provision was made for the five year enlistment in the Regular Army of 2,500 qualified unmarried male aliens.180 Alien enlistees were integrated into established units with citizen soldiers and not segregated into separate organizations for aliens.
Negative Integration
It has become an axiom of democratic government that in time of emergency threatening the health or safety of the community or the territorial integrity of the nation, the objective of communal survival takes precedence over the desires and conveniences of the individual. The energies, wealth, talents of individuals may be conscripted in the national interest. Democratic governments also have asserted the right to constrict the range of permissible activities of individuals whose freedom, if unlimited, is calculated to exacerbate the emergency. Such limitations may apply to the population generally or to defined segments of it. The intensity of such limitations may be measured on a continuum ranging from precautionary detention to the relatively mild requirement that persons in defined categories register with the government.
Preventive Detention: At an early date Congress, with judicial approval, exercised the power to apprehend and detain all enemy aliens. On December 7, 1941, President Roosevelt issued the first of ten wartime proclamations founded upon Congressional enactments of 1798 and 1918, imposing limitations upon the activities of enemy aliens, and specifically announcing that “All aliens shall be liable to restraint, or to give security,”181 and that dangerous aliens might be subjected to arrest and confinement. In two statutes enacted in 1952, Congress reiterated its desire that illegal entrants be apprehended and detained pending deportation. These statutes provided for the search of vessels and arrest of persons seeking to enter the United States illegally,182 and authorized the establishment of necessary detention facilities to hold those arrested.183
It is well known that in World War II persons of Japanese ancestry, including even those possessed of American citizenship, were subjected to preventive detention.184 Presidential exercise of this form of restraint is now sanctioned on a standby basis. Title II of the Internal Security Act of 1950 empowers the President in time of “Internal Security Emergency” to order the apprehension and detention of persons “as to whom there is reasonable ground to believe that,” if free, they “will engage in, or probably will conspire with others to engage in, acts of espionage or of sabotage.”185 The President may declare a state of internal security emergency upon the invasion of the United States or any of its territories or possessions, the declaration of war by Congress, or insurrection within the United States in aid of a foreign enemy.
Access to the U.S. and U.S. Citizenship: Closely related to the detention of enemy aliens or others whose liberty is perceived to endanger the security of the state is the control of access to the United States and the acquisition of United States citizenship. By Act of June 20, 1941186 Congress instructed American diplomatic and consular officers to refuse visas or entry permits to aliens believed seeking entry into the United States for the purpose of engaging in activities which would endanger the public safety. The following day Congress granted the President power during the existing national emergency to place restrictions and prohibitions in addition to those already provided by law upon the departure of persons from and their entry into the United States.187 In proclamations of July and September 1945 and April 1946, President Truman ordered the deportation of enemy aliens resident in the United States without admission under the immigration laws, or enemy aliens deemed dangerous to the public peace and safety of the United States.188
In an earlier statute Congress excluded from admission to the United States persons who have departed from the jurisdiction of the United States for the purpose of evading or avoiding training or service in the armed forces of the United States during time of war or during a period declared by the President to be a period of national emergency. Among the myriad restrictions of the Internal Security Act of 1950 are to be found additional categories of aliens ineligible for entry into the United States, principally aliens who at any time have been members of the Communist or other totalitarian party of any state of the United States, of any foreign state, or of any political or geographical subdivision of any foreign state, and aliens who advocate the economic, international, and governmental doctrines of world communism or of any form of totalitarianism.189
Naturalization is refused or citizenship withdrawn from persons falling into classifications created by a security-conscious Congress. The Nationality Act of 1940190 restricted the eligibility of alien enemies for nationalization to those whose declaration of intention was made not less than two years prior to the beginning of the state of war and specified that enemy aliens were eligible for apprehension and removal at any time previous to actual naturalization. Section 25 of the Internal Security Act amends the Nationality Act of 1940 to make ineligible for naturalization persons subscribing to or giving evidence of subscribing to anarchist, communist, or any totalitarian movement or body of sentiment. Those who within the ten years next preceding the filing of naturalization petitions, or in the period between such filing and the time of taking the final oath of citizenship, have been members of, or affiliated with, communist-front organizations registered under the Subversive Activities Control Act of 1950, must rebut a presumption that they are persons not attached to the principles of the Constitution and thus ineligible for citizenship.191
Congress has devised appropriate means for handling the cases of persons seeking to renounce American citizenship. To facilitate the surrender of United States citizenship by persons of Japanese ancestry, Congress in July, 1944, specified that with the permission of the Attorney General, and when the United States is at war, citizens may accomplish expatriation by the simple act of making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before an officer designated by the Attorney General.192 The assumption that persons departing from or remaining outside of the jurisdiction of the United States in time of war for the purpose of evading or avoiding military service renounce their American citizenship was created by an Act of Congress in September, 1944.193
President Roosevelt by proclamation of July 1941 provided for establishment of “The Proclaimed List of Certain Blocked Nationals” to be published in the Federal Register. The list was to contain the names of those persons deemed to be, or to have been, acting on behalf of the interests of Germany and Italy. Any material or article exported from the United States through the efforts of German and Italian “blocked nationals” was declared to be detrimental to the interest of national defense in the United States.194 The Secretary of State, acting in conjunction with the Secretary of the Treasury, the Attorney General, the Secretary of Commerce, the Administrator of Export Control, and the Coordinator of Commercial and Cultural Relations between the American Republics was required to prepare the list.195
Persons naturalized after January 1, 1951 created a prima facie case that they were not attached to the principles of the Constitution of the United States at the time of naturalization, if within five years after naturalization they joined as a member or affiliated with any organization, attachment to which would have precluded or hindered naturalization in the first place. The unwary risked cancellation of his citizenship for fraud if found to be connected with an organization whose goals and objectives were directed against the United States. This is one of the Internal Security Act provisions196 designed to exclude communists from naturalization. The Expatriation Act of 1954 provides for the loss of nationality of persons (whether natural born or naturalized citizens) convicted by a court or court martial of committing treason against the United States, or engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them.197
Circumscribing Movement of Persons: The area of permissible mobility is narrowed for all persons in time of war or emergency. The population generally is excluded from specified security areas. By Act of January, 1938,198 Congress authorized the President to define certain vital military and naval installations or equipment and made it unlawful to photograph or sketch such installations without proper authority. This obviously limits access to and activity in areas adjacent to such equipment. A 1950 amendment to the Civil Aeronautics Act, for example, empowered the Secretary of Commerce, after consultation with the Department of Defense and the Civil Aeronautics Board, to define zones or areas in the airspace above the United States, its Territories, and possessions as he may find necessary in the interests of national security. The Secretary is also given authority to prohibit or restrict flights of aircraft which he cannot effectively identify, locate, and control in those areas.199 Selected groups of persons, generally enemy aliens, may be prohibited from entering or remaining in certain areas of the country. Proclamation No. 2525, December 7, 1941,[200] forbade the presence of alien Japanese in the Canal Zone, and restricted their entry into, or departure from, Hawaii, the Philippine Islands, and the United States, and provided for their exclusion from designated areas. Of maximum severity were limitations on mobility beyond the limits of a community, or confinement in a camp or cell. The movement to restrict travel by Americans dates from the 1935 endeavor of the American Congress to avoid American involvement in any future conflict. Section 6 of the Neutrality Act of 1935201 empowered the President to prohibit or regulate travel by American citizens as passengers on the vessels of any belligerents in a war in which the United States was a neutral. Individuals travelling in violation of orders did so at their own risk.
Two months after passage of the Neutrality Act, in October 1935, President Roosevelt issued Proclamation No. 2142, applying Section 6 to the Ethiopian conflict, and ordering American citizens to refrain from traveling as passengers on vessels of either belligerent. The May 1937 amendments to the Neutrality Act202 strengthened this provision by making it unlawful for any United States citizen to travel on belligerent vessels in contravention of the President’s prohibition or regulation of such travel. In 1939 these provisions were broadened to include any American travelling on such a vessel as a member of its crew,203 and to prohibit American ships from carrying goods or passengers to belligerent ports204 or combat areas.
President Roosevelt’s Neutrality Proclamation of September 5, 1939, among other things, prohibited Americans from accepting commissions with belligerents, or enlisting in the service of a belligerent. Hiring persons to enlist, or going beyond the jurisdiction of the United States with the intent to join belligerent forces, were also prohibited.205
By Act of March 28, 1940,206 Congress extended application of an earlier prohibition207 on unauthorized entry on military reservations to the outlying possessions of the United States. A year later it granted the Secretaries of War and Navy, jointly or singly, power to define areas within such reasonable distance of any military or naval camp or station in which prostitution would be prohibited by federal law.
By Proclamation of December 27, 1941 President Roosevelt established the Hawaiian Maritime Control Area, and regulated entry, radio calls, visual communications, and traffic in that area. Naval authorities were granted power to establish supplementary regulation.208 Subsequently, the President established Maritime Control Areas for Cristobal and the Gulf of Panama,209 Boston,210 San Francisco, Columbia River, Puget Sound, Southeastern Alaska, and other areas.211 On May 20, 1942, invoking his powers as Commander-in-Chief, the President established the Padre Island Sea Range Area, and imposed regulations controlling entry to an activity in that area. The next day he signed into law an enactment providing a maximum penalty of $5,000 fine and one year imprisonment for knowingly violating restrictions established by the President, the Secretary of War, or military commanders designated by him, on entering, remaining in, leaving, or committing proscribed acts in military areas or zones.212
The areas thus far described were defined principally for exclusionary purposes. It is not unusual to define areas with a view to confining therein specific persons or categories of persons. Invoking a 1909 statute, the President on September 5, 1939 made it illegal for interned members of the armed forces of belligerent nations to leave the jurisdiction of the United States, or the limits of their internment, without permission.213 In a later proclamation the President stipulated that no alien would be permitted to depart from the United States if the Secretary of State were satisfied that the alien’s departure would be prejudicial to the interests of the United States.214
Section 6 of the Internal Security Act of 1950 makes it illegal for members of an organization which has registered under the Act as a communist organization or has been ordered to do so by the Subversive Activities Control Board, to apply for a passport, or to use or attempt to use a passport. It is also an offense for a federal officer knowingly to issue a passport to such a person. The Immigration and Nationality Act also empowers the President, in time of war or national emergency, to impose restrictions and prohibitions upon the departure of persons from the United States.215
Registration: The requirement that specified categories of individuals register, in consequence of their backgrounds, associations, or activities, or as a result of possession of certain articles, becomes increasingly familiar in the United States. Legislative motivation in requiring such registration may be varied and complex. The registration provision invariably provides the basis for defining new crimes and therefore opportunity to prosecute persons whose backgrounds, activities and beliefs are anathema to powerful groups in the nation. Combined with periodic reporting, registration may act as a deterrent to the commission of certain acts considered socially or politically undesirable. It may simply facilitate the informative function of government, enabling authorities to become aware of and continuously check upon the activities of selected groups of persons affecting the public interest. Or, registration may serve as a mild, yet nonetheless effective, restraint upon the freedom of individuals. Certainly, for example, it is an essential prerequisite to paroling enemy aliens in time of war, although its usefulness is not limited to wartime only.
The decade prior to the Second World War is popularly, and accurately, perceived as one of sustained economic emergency. During the second half of this decade the Congress frequently was preoccupied with the need for legislation designed to protect the United States from involvement in another world war. The Neutrality Act of 1935216 referred to above contained a registration feature. Under the terms of that Act, every person engaged in the business of manufacturing, exporting, or importing any arms, ammunition, and implements of war was required to register within ninety days of entering such a business. Such individuals or firms had to provide the Secretary of State with a $500 registration fee, and information including personal or business name, principal place of business, places of business in the United States, and a list of the arms, ammunition and other implements of war which they handled. They were also required to inform the Secretary of State of any changes, and had to keep permanent records of business transactions which were subject to the scrutiny of the National Munitions Control Board.217 The registration provision was retained in the May 1937 amendment to the Neutrality Act with very little change.218
In June 1938 Congress chose to compel registration of persons employed by agencies to disseminate propaganda in the United States.219 Every person then acting as an agent for a foreign principal was given thirty days after the Act went into effect to register with the Secretary of State. His registration statement, under oath, required the agent’s name and address, the name and address of his principal, and a copy of the contract or oral agreement covering the agent’s services, including compensation. The agent was also to file a copy of the charter as well as a statement of the objectives of the organization employing him.220 The term “agent of a foreign principal” was rather broad and included any person who acted or engaged or agreed to act as a public-relations counsel or publicity agent for a foreign principal or for any domestic organization subsidized directly or indirectly in whole or in part by a foreign principal.221 New information statements were to be filed each six months. Failure to file and the making of false statements were punishable by a maximum of $1,000 fine and two years’ imprisonment.222
Six months prior to Pearl Harbor, Congress enacted the Alien Registration Act, requiring all aliens fourteen years of age or older and remaining in the United States for thirty days or more, to apply for registration and be fingerprinted at post offices and other places to be designated by the Commissioner of Immigration and Naturalization. Parents must register for aliens under fourteen.223 Alien registrants who were residents of the United States were required to notify the Commissioner in writing of each change of residence and new address within five days from the date of such change. All others were to notify him of their addresses at the expiration of each three months’ period of residence in the United States.224 And by Proclamation No. 2537, January 14, 1942,[225] the President ordered all alien enemies within the continental United States, Puerto Rico, and the Virgin Islands to apply for and acquire certificates of identification.
In the Spring of 1942 the Foreign Agents Registration Act was adapted to changed conditions. Congress announced its purpose to protect the national defense, internal security, and foreign relations of the United States by requiring public disclosure by persons engaging in propaganda activities and other activities. Anyone acting for or on behalf of a foreign government, foreign political party or other foreign principal would be identified and the Government and the American people would be in a better position to appraise their statements and actions in the light of their associations and activities.226 In addition to elaborating the definition of a foreign principal, the Act specified numerous exemptions from its registration provisions. Agents whose foreign principals were governments, the defense of which was deemed by the President to be vital to the defense of the United States, were not required to register provided their activities were not intended to conflict with any of the domestic or foreign policies of the Government of the United States.227
A related statute of October, 1940 also compelled certain groups to register with the Attorney General.228 Four categories of organizations were required to register: (1) Organizations subject to foreign control and engaging in political activity, (2) Organizations engaging both in civilian-military activity and in political activity, (3) Those subject to foreign control and engaging in civilian-military activity, and (4) Any organization one of whose aims was the overthrow of a government or subdivision thereof by force or violence.229 By political activity Congress had reference to activity aimed at the control by force or overthrow of the Government of the United States or any of its subdivisions.230 An organization, according to the statute, was engaged in civilian-military activity if it gave or received instruction in the use of firearms or other weapons, or participated, with or without arms, in military maneuvers, drills or parades of a military or naval character. And an organization was deemed subject to foreign control if its financial support was derived directly or indirectly from a foreign government, or if its policy was determined by, or at the suggestion of, or in collaboration with, a foreign government.231
The registration statements were to contain the name and address of the organization, the names of officers and contributors, the qualifications for membership, organizational aims, assets, income, and activities. Violation of the Act might entail a fine of $10,000 and five years’ imprisonment.
The Internal Security Act of 1950 contains provisions similar to the older wartime law. Briefly stated, the Act defines “communist-action” and “communist-front” organizations, which together comprise a class of communist organizations.232 Such organizations are compelled to register with the Attorney General, filing, in the case of communist-front organizations, a list of officers at time of registration and in the preceding twelve months; and, in the case of communist-action organizations, a list of officers and members for the preceding twelve months.233 A complete financial accounting is required and current information must be supplied in annual reports.
In July 1954 Congress amended the reporting provision to require a listing, in such form and detail as the Attorney General might prescribe, of all printing presses and machines used or intended to be used by a communist-action or communist-front organization. The statute went so far as to require registration of any printing machine used by an organization in which the communists or affiliates had an interest.234 Adequate procedural protection and provision for judicial review is afforded those charged with failure to register.235
The Communist Control Act of 1954 amplified the Internal Security Act. It purports to be an Act to outlaw the Communist Party and to prohibit members of communist organizations from serving in certain representative capacities, and for other purposes. Despite its title, the Act does not outlaw the Communist Party in the sense of making membership in it illegal and proscribing its existence. It simply deprives the Communist Party of certain rights, privileges and immunities attendant upon legal bodies created under the jurisdiction of the laws of the United States or any political subdivision thereof.236 The Act then defines a new species within the genus communist organization.237 In effect it amends the Internal Security Act by setting up the trilogy; communist-action, communist-front, and communist-infiltrated organizations. And communist-infiltrated organizations—a euphemism for communist dominated trade unions must register.238 Such organizations are ineligible to act as collective bargaining representatives and are deprived of access to the National Labor Relations Board.239
The Act makes it illegal for any member of a communist organization, which either has registered with the Attorney General or been ordered to register by the Subversive Activities Control Board, “to hold office or employment with any labor organization,... or to represent any employer in any matter proceeding arising or pending under the National Labor Relations Act.”240
Freedom of Association: The Communist Control Act of 1954 and the registration provisions of the Internal Security Act might well have been subsumed under the classification freedom of association. Both have grave implications for the freedom of individuals to associate at will and according to conscience with political and economic groups. And similarly far-reaching in implication for this traditional freedom are those provisions which, going one step further than stipulating disqualifications for office-holding in representative associations, prohibit the creation of an employer-employee relationship, or facilitate the disruption of such relationships where they already exist.
The wheel has taken a full turn since the American Congress in 1937 repealed a District of Columbia Appropriation Act provision that no part of any appropriation for the public schools would be available for the payment of the salary of any person teaching or advocating communism.241 Today, of course, the trend is toward maximizing the political disqualifications for public and private employment. This trend can be traced from the pre-war efforts of the Congress to prevent penetration of defense industries and government agencies by subversives.
We look first to legal efforts to exclude persons conceived to be subversive from private employment, and then survey the statutes governing public employment. The Defense Production Act of June 21, 1940,242 for example, imposed the rule that aliens working for a defense contractor whose contract involved access to classified information were ineligible to work for the contractor. If, however, the head of the government agency for whom secret work was being performed gave the contractor written consent to use aliens, the contractor was free to do so.
Attempting to insure that employment opportunities created by the induction of young men into the service did not accrue to members of groups then opposing the American defense effort, Congress, in enacting the Selective Training and Service Act of 1940, stipulated that whenever a vacancy was caused in the employment rolls of any business or industry by reason of an employee’s induction into the Armed Services of the United States, the vacancy could not be filled by any person then a member of the Communist Party or the German-American Bund.243 Ten days after Pearl Harbor, restraints were placed on the liberty of maritime employers to hire radio operators for service on American flag vessels. For the duration of war emergency it became unlawful to employ any person to serve as radio operator aboard any vessel (other than a vessel of foreign registry) if the Secretary of the Navy (1) had disapproved such employment for any specified voyage, route, or area of operation, and (2) had notified the master of the vessel of such disapproval prior to the vessel’s departure.244
Since the war, no less significant prohibitions have been placed on public or private employment of members of communist organizations. The effect thereof will be determined by the success of the Subversive Activities Control Board in compelling the registration of such groups. Section 5 of the Internal Security Act of 1950 makes it illegal for members of registered communist organizations to conceal or fail to disclose such membership in seeking or accepting any employment in any defense facility, as defined and listed by the Secretary of Defense. This provision was extended to make illegal defense employment for members of registered “Communist action” groups.245
It may be noted that the Butler Bill of April 1955 would have empowered the President to establish procedures for screening any person in defense employment “as to whom there is reasonable cause to believe may engage in sabotage, espionage, or other subversive acts.” This process of screening also would be applied to firms seeking or holding defense contracts. Thus, increasingly access of private firms to government contracts as well as access of individuals to jobs under such contracts, which today may be the staff of life, is being restricted. Contributing to this trend is the provision in the Rubber Producing Facilities Disposal Act of 1953 that purchase proposals shall not be accepted from any person who has not identified his principal, or is not financially responsible, or is a poor security risk.246
Freedom of employees to strike defense industries or to engage in so-called emergency strikes has on occasion been severely limited. The War Labor Disputes Act of 1943 required that the government be given notice of labor disputes, and that production continue for a period of thirty days after notice of intention to strike. A secret ballot of employees had to be conducted prior to calling a strike.247 The President was granted ultimate power to seize plants if necessary to avoid interruption of war production occasioned by labor disputes, and interference with government operation of such plants was made illegal.248 The plants were to be operated under the terms and conditions of employment which were in effect at the time possession was taken by the government.249
In the post-war Labor-Management Relations Act a national emergency strike is defined as one imperiling “the national health or safety.”250 When, in the opinion of the President, a threatened or existing strike or lockout affecting an entire industry or a substantial part thereof imperils the national health or safety, he may appoint a board of inquiry to inquire into the issues involved in the dispute and to make a written report to him within such time as he shall prescribe.251 When the President has received a report from a board of inquiry, he may direct the Attorney General to petition any district court of the United States having jurisdiction of the parties to enjoin such strike or lockout or its continuance, and if the court finds that a threatened or actual strike or lockout (1) affects an entire industry or a substantial part thereof engaged in trade, commerce, transportation, transmission, or engaged in the production of goods for commerce; and (2) if permitted to occur or to continue, will imperil the national health or safety, it shall have jurisdiction to enjoin any such strike or lockout.252
The President will be advised of such a strike or lockout sufficiently in advance of its occurrence because Section 8 (d) of the Act requires 60 days’ written notice of termination or modification of a collective bargaining contract, and notification of the Federal Mediation and Conciliation Service and equivalent state or territorial services within thirty days after such notice of the existence of a dispute.253
Looking to restrictions upon federal employment, it is convenient to begin with 1940, the year in which, in an effort to expedite the strengthening of the national defense, Congress gave the Secretary of War limited power to remove army civil service employees for security reasons. The Secretary might remove from the classified civil service of the United States any employee of the Military Establishment forthwith if he found that such person had been guilty of conduct inimical to the public interest in the defense program of the United States, and if the person terminated had received notice of the charges.254 Discharged employees were given the opportunity within thirty days of removal to answer charges in writing and to submit affidavits in support of written answers.255
Great discretion was permitted the civilian heads of the armed services in promoting or demoting regular officers during wartime, and as early as July 29, 1941 the President signed a Joint Resolution giving the Secretary of War power during the time of the national emergency to remove any officer from the active list of the Regular Army. The only restriction on the exercise of this power was that a comparison of the officer’s performance-of-duty record with those of his fellow officers would be made. But retention in or dismissal from the active list, of any officer, ultimately could be determined by the Secretary,256 even though affected officers were guaranteed a hearing before a board of not less than five general officers prior to separation.257 Supplementing this was the provision that no payment could be made from money appropriated in the Act to any officer on the retired list of the Army who, for himself or for others, was engaged in the selling or the sale of any war materials or supplies either to the Army or the War Department.258
Since 1950 it has become common practice for the Congress to attach to appropriation bills the provision that no salary or wages will be paid from any appropriation to an individual who either asserts the right to strike against the Government or belongs to an employees’ organization asserting this right. And no monies will be paid to an individual who advocates or is a member of an organization that advocates the overthrow of the Government of the United States.259 The Defense Production Act of 1950 contained this type of provision.260 It further provided that an affidavit shall be prima facie evidence that the person making it has acted contrary to the statute.261 Agencies also have been delegated broad power to suspend employees deemed security risks. An August, 1950 statute permitted the heads of the State, Commerce, Defense, Justice, and Treasury Departments, the Secretaries of the Army, Navy and Air Force, and others, in their absolute discretion and when deemed necessary in the interest of the national security, to suspend, without pay, any civilian official or employee.262 Following notice and an opportunity to the suspended employee to submit statements and affidavits, and after investigation and review by the employing agency, his employment might be terminated as necessary or advisable in the interest of the national security. Since the employee is informed of the reasons for his suspension only to the extent that such agency head determines that the interests of the national security permit, he may encounter difficulty in formulating his defense.
Interestingly enough while military emergency may be assigned as justifiable for banning or terminating employment of persons on the basis of their political affiliations, Congress has recognized that other kinds of emergency may require temporary suspension of such disqualifications to federal employment. The Department of Interior Appropriation Act of 1948 provided that in cases of emergency, caused by fire, flood, storm, act of God, or sabotage, persons might be employed for periods of not more than thirty days and be paid salaries and wages without the necessity of inquiring into their membership in any organization.
Traditional Procedural Rights of Individuals: Whether justifiable or not, in time of crisis encroachment upon the traditional rights and privileges of individuals invariably has been recorded. The Compulsory Testimony Act of August, 1954263 may be an example of such legislation. It enables Congressional Committees in a limited number of instances to solicit the courts in compelling testimony from recalcitrant witnesses who have invoked their constitutional privilege against self-incrimination. Suspension of this constitutional safeguard is achieved by the immunity from prosecution accorded the witness under the terms of this measure. As to the scope of the immunity therein afforded, it is not in excess of that granted in laws previously enacted, notably the following: Interstate Commerce Act, Sherman Anti-Trust Act, Securities Exchange Act, Communications Act, National Labor Relations Act, Motor Carrier Act, Federal Power Act, Public Utility Holding Company Act, Industrial Alcohol Act, Merchant Marine Act, Bituminous Coal Act, Natural Gas Act, Civil Aeronautics Act, Fair Labor Standards Act, Railroad Unemployment Insurance Act, Social Security Act, Investment Company Act, Investment Advisers Act, Second War Powers Act, and Emergency Price Control Act, 1942. See a more extended listing in Shapiro v. U.S.264
Emergency entails restraints upon the freedom of individuals to manipulate their property and to act as they please. Not only does the government, as has been noted, seize factories and mines, but can compel acceptance of government orders.