Emergency Powers Statutes 001

8/6/2019 Emergency Powers Statutes 001

1/50

93D CONGRESS1st Session f SENATE

EMERGENCY POWERS STATUTES:PROVISIONS OF FEDERAL LAW

Now IN EFFECT DELEGATING TO THEEXECUTIVE EXTRAORDINARY AUTHORITY

IN TIME OF NATIONAL EMERGENCY

REPORTOF THE

SPECIAL COMMITTEE ON THETERMINATION OF THE

NATIONAL EMERGENCYUNITED STATES SENATE

NOVEMBER 19 , 1973

U.S. GOVERNMENT PRINTING OFFICEWASHINGTON " 1973

REPORTNo. 93-549

24-509 0


2/50

SPECIAL COMMITTEE ON THETERMINATION OF THE NATIONAL EMERGENCY

FRANK CHURCH, Idaho Co-Chairmen CHARLES McC. MATHIAS. JL., MarylandPHILIP A. HART, Michigan CLIFFORD P. CASE. New JerseyCLAIBORNE PELL, Rhode Island JAMES B. PEARSON, KansasADLAI E. STEVENSON III, Illinois CLIFFORD P. HANSEN, Wyoming

WILLIAM G. MILLER, Staff DirectorTROMAs A. DINE, Profeusional StaffOil)


3/50

FOREWORD

Since March 9, 1933, the United States has been in a state of declarednational emergency. In fact, there are now in effect four presiden-tially proclaimed states of national emergency: In addition to thenational emergency declared by President Roosevelt in 1933, there arealso the national emergency proclaimed by President Truman on De-cember 16, 1950, during the Korean conflict, and the states of nationalemergency declared by President Nixon on March 23, 1970, andAugust 15, 1971.These proclamations give force to 470 provisions of Federallaw. These hundreds of statutes delegate to the President extraor-dinary powers, ordinarily exercised by the Congress, which affect thelives of American citizens in a host of all-encompassing manners. Thisvast range of powers, taken together, confer enough authority to rulethe 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; seizecommodities; assign military forces abroad; institute martial law;seize and control all transportation and communication; regulate theoperation of private enterprise; restrict travel; and, in a plethora ofparticular ways, control the lives of all American citizens.

With the melting of the cold war-the developing ditente with theSoviet Union and China, the stable truce of over 20 years durationbetween North and South Korea, and the end of U.S. involvement inthe war in Indochina-there is no present need for the United StatesGovernment to continue to function under emergency conditions.The Special Committee on the Termination of the National Emer-gency was created I to examine the consequences of terminating the de-clared states of national emergency that now prevail; to recommendwhat steps the Congress should take to ensure that the termination canbe accomplished without adverse effect upon the necessary tasks of gov-erning; and, also, to recommend ways in which the United States canmeet future emergency situations with speed and effectiveness butwithout relinquishment of congressional oversight and control.

In accordance with this mandate, the Special Committee-in con-junction with the Executive branch, expert constitutional authorities,as well as former high officials of this Government-is now engaged

1 S. Res. 9, 93d Cong., let Sess.


4/50

in a detailed study to determine the most reasonable ways to restorenormalcy 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 extraordinarypowers upon the Executive branch in times of national emergency.

This has been a most difficult task. Nowhere in the Government, ineither the Executive or Legislative branches, did there exist a com-plete catalog of all emergency statutes. Many were aware that therehad been a delegation of an enormous amount of power but, of howmuch power, no one knew. In order to correct this situation, theSpecial Committee staff was instructed to work with the Executivebranch, the Library of Congress, and knowledgeable legal authoritiesto compile an authoritative list of delegated emergency powers.

This Special Committee study, which contains a list of all provisionsof Federal law, except the most trivial, conferring extraordinarypowers in time of national emergency, was compiled by the staff underthe direction of Staff Director William G. Miller, and Mr. Thomas A.Dine; utilizing the help of the General Accounting Office, the Ameri-can Law Division of the Library of Congress, the Department ofJustice, the Department of Defense, and the Office of EmergencyPlanning.The Special Committee is grateful for the assistance provided byJackGoldklang of the Office of Legal Counsel, Department of Justice;Lester S. Jayson, the director of the Congressional Research Serviceof the Library of Congress; Joseph E. Ross, head of the AmericanLaw Division of CRS; and especially Raymond Celada of the Ameri-can Law Division and his able assistants, Charles V. Dale and GroverS. Williams; Paul Armstrong of the General Accounting Office; LindaLee, Patrick Norton, Roland Moore, William K. Sawyer, AudreyHatry, 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 ofemergency, at a later date.

CHARLES McC. MATHIAS, JR.FRANK CHURCH,Co-chairnen.


5/50

CONTENTSPageForeword ------------------------------------------------------- II

Introduction:A-A brief historical sketch of the origins of emergency powers now inforce - .-. 1B-Summary views of the present status of emergency powers statutes- 6

Textual Note:Compiling the texts of emergency power statutes------------------- 15Summary of statutes delegating powers in time of war or nationalemergency:United States Code:Title 2 ---------------------------------------------------- 175 .............. ...... ............ ......... ...... - 177 --------------------------------------------------- 188 ................................................... - 1810 --------------------------------------------------- 1912 --------------------------------------------------- 2914 --------------------------------------------------- 2915 --------------------------------------------------- 3016 ---------------------------------------------------- 3018.. . .. . .. . .. . .. . .. . .. . .. . .. . .. . . 3 119 ---------------------------------------------------- 3220 --------------------------------------------------- 3222---------------------------------------------------- 3325 --------------------------------------------------- 3326---------------------------------------------------- 33

29---------------------------------------------------- 3431 ---------------------------------------------------- 3432---------------------------------------------------- 3433--------------------------------------------------- 3535 --------------------------------------------------- 3537---------------------------------------------------- 3538 ---------------------------------------------------- 3640 ---------------------------------------------------- 3641 --------------------------------------------------- 3742 ---------------------------------------------------- 3743 ---------------------------------------------------- 3844--------------------------------------------------- 3945 ---------------------------------------------------- 3946 --------------------------------------------------- 3947 ---------------------------------------------------- 4149 ---------------------------------------------------- 4150 --------------------------------------------------- 4250 App----------------------------------------------- 43Public Laws, enacted by:68th Congress ------------- 4769th Congress --------------------------------------------- 4771st Congress---------------------------------------------- 4872d Congress ------------------------------ 4874th Congress -. 4875th Congress --. 4979th Congress_-- 5080th Congress ---------------------------------------------- 5081st Congress -------------------.. 5082d Congress------------------ 51

(v)


6/50

-Summary of statutes delegating powers in time of war or nationalRmergency-ContinuedPublic Laws, enacted by-Continued rDir83d Congress---------------------------------------------- 5184th Congress-------------------------------------------- 5485th Congress--------------------------------------------- 5886th Congress--------------------------------------------- 60

87th Congress ............................................. 6188th Congress--------------------------------------------- 6189th Congress --------------------------------------------- 6291st Congress --------------------------------------------- 6292d Congress ---------------------------------------------- 62Texts of statutes delegating powers in time of war or national emergency:United States Code, Title 2-The Congress:2 U.S.C. 198. Adjournment ------------------------------ 65United States Code, Title 5-Government Organizations and Em-ployees:5 U.S.C. 701. Application; definitions ---------------------- 65702. Right of review---------------------------- 66

3101. General authority to employ------------------ 663326. Appointments of retired members of the ArmedForces to positions in the Department ofDefense --------------------------------- 685305. Annual pay reports and adjustments---------- 695335. Periodic step-increases ---------------------- 705532. Employment of retired officers of the uniformedservices; reduced in retired or retirement pay;exceptions------------------------------- 715564. Travel and transportation; dependents; house-hold and personal effects; motor vehicles;sale of bulky items; claims for proceeds;appropriation chargeable ------------------ 728332. Creditable service-------------------------- 74United States Code, Title 7 -Agriculture:7 U.S.C. 1158. Suspension of quota and authorization provi-sions------------------------------------ 761332. National marketing quota------------------- 781371. General adjustment of quotas ---------------- 791743. Reduction of set-aside---------------------- 801903. Limitations on Government procurement andprice support; modification during nationalemergency; statement of eligibility---------- 81United States Code, Title 8-Aliens and Nationality:8 U.S.C. 1182. Excludable aliens -------------------------- - 821185. Travel control of citizens and aliens during waror national emergency --------------------- 821440. Naturalization through active-duty service inthe Armed Forces during World War I,World War II, Korean hostilities, Vietnamhostilities, or other periods of military hostili-ties ------------------------------------- - 851440e. Exemption from naturalization fees for aliensnaturalized through service during Vietnamhostilities or other subsequent period ofmilitary hostilities; reports by clerks of courtsto Attorney General--------...............-861442. Alien enemies ..................... 871481. Loss of nationality by native-born or naturalized 87citizen; voluntary action; burden of proof;presumptions ----------------------------- 8


7/50

UnitedlStates Code, Title 10-Armed Forces:10 U.S.C.2L123. Suspension of certain provisions of law relating Pageto reserve commissioned officers------------ 89125. Functions, powers, and duties; transfer, reas-signment, concolidation, or abolition-------- 90142. Chairman---------------------------------- 91143. Joint taff--------------------------------- 92262. Purpose--- ------------------------------- 93263. Basic policy for order into Federal service ---- 94269. Ready Reserve: placement in; transfer from-- 95271. Ready Reserve: continuous screening--------- 96331. Federal aid for State government -------------- 96332. Use of militia and Armed Forces to enforceFederal authority------------------------- 97333. Interference with State and Federal laws ------ 97334. Proclamation to disperse --------------------- 97351. During war or threat to national security ------ 97506. Regular components: extension of enlistmentsduring war ------------------------------ 98511. Reserve components: terms ...... 99519. Temporary enlistments: during war or emer-

gency- --------------------------------- 100565. Warrant officers: suspension of laws for promo-tion or mandatory retirement or separationduring war or emergency ------------------ 101599. Warrant officers: suspension of laws for promo-tion or mandatory retirement or separationduring war or emergency -----.- -.--- - 101671a. Members: service extension during war ..... 101671b. Members: service extension when Congress isnot in session ............ 101672. Reserve components generally 103673. Ready Reserve ..... 104674. Standby Reserve ........... 106675. Retired Reserve -- - - - 107679. Active duty agreements --------------------- 107681. Reserves: release from active duty ---------- 108687. Non-Regulars: readjustment payment upon in-voluntary release from active duty ---------- 108712. Foreign governments: detail to assist --------- 110802. Art. 2. Persons subject to this chapter -------- 112843. Art. 43. Statute of limitations --- - 113871. Art. 71. Execution of sentence; suspension ofsentence ................. 1141035. Deposits of savings 1151161. Commissioned officers: limitations on dismissal- 116

2231. Purpose ------------------------------------ 1162233. Acquisition -.. .- - -- - 1172235. Administration; other use permitted by Secre-tary 1182236. Contributions to States; other use permitted byStates...----------------------------- 1182304. Purchases and contracts: formal advertising;exceptions -..--------------------........ 1192542. Equipment for instruction and practice: Amer-ican National Red Cross. ----------------- 1232602. American National Red Cross; cooperation andassistance ......... 12 32604. United Seamen's Service: cooperation and as-sistance ................................. 124


8/50

Texts of statutes delegating power in time of war or emergency--ContinuedUnited States Code, Title 10-Armed Forces--Continued10 U.S.C. 2632. Transportation to and from certain places of p8geemploym ent ----------------------------- 1252663. Acquisition - - - ----------------------------- 262664. Acquisition of property for lumber production- 1272667. Leases: non-excess property------------------ 128

2674. Establishment and development of militaryfacilities and installations costing less than$300,000-------------------------------- 1292733. Property loss; personal injury or death; incidentto noncombat activities of Department ofArmy, Navy, or Air Force----------------- -1302734. Property loss; personal injury or death: inci-dent to noncombat activities of the ArmedForces; foreign countries ------------------ 1313031. Composition: assignment and detail of mem-bers of Army and civilians ----------------- 13 33034. Chief of Staff: appointment; duties----------- 1343062. Policy; composition; organized peace establish-ment------------------------------------ 1353063. Basic branches ----------------------------- 1363201. Army: members on active duty--------------- 1363202. Army: officers in certain commissioned grades- 1373313. Suspension of laws for promotion or mandatoryretirement or separation during war or emer-gency ----------------------------------- 138

3444. Commissioned officers: during war or emer-gency ------------------------------ ----- 1393445. Officers: additional appointment during war orem ergency ---------------------------- 1393500. Army National Guard in Federal service: call__ 1403741. Medal of Honor: award ------ 1403742. Distinguished Service Cross: award ----------- 14 13746. Silver Star: award--------------------------- 1413750. Soldier's Medal: award; limitations ----------- 1424025. Production of supplies and munitions: hours andpay of laborers and mechanics -------------- 14 24501. Industrial mobilization: orders; priorities; pos-session of manufacturing plants; violations-- 1424502. Industrial mobilization: plants; lists; Board onMobilization of Industries Essential forMilitary Preparedness --------------------- 1434742. Control of transportation systems in time ofwar 1434776. Emergency construction: fortifications -------- 1444780. Acquisition of buildings in District of Columbia 1445081. Chief of Naval Operations: appointment; termof office; powers; duties------------------- 1445201. Commandant: appointment; term; emoluments. 1455231. Navy positions: admirals and vice admirals --- 14 65232. Marine Corps positions: general and lieutenant

general--------------------------------- 1465234. Suspension provision------------------------ 1475402. Regular Marine Corps: total; enlisted members. 14 85447. Navy: line officers on the active list; permanentgrade .........................------ 1485448. Marine Corps: officers on the active list; perma-nent grade ------------------------------- 1505449. Navy: staff corps officers on the active list;permanent grade --------- ------------- 15 25450. Regular Navy: retired flag officers on active

duty ------------------------------------ 15 35451. Suspension: preceding sections ----------------- 15 3


9/50

10 U.S.C. 5597. Navy and Marine Corps: temporary appoint. Pagements in time of war or national emergency-_ 1535598. Naval Reserve and Marine Corps Reserve:temporary appointments in time of war ornational emergency -- - 1545599. Medical Corps: acting appointments for tempo-rary service----------------------------- 1555662. Suspension: preceding sections --------------- 1555711. Suspension and exceptions: preceding sections-- 1565785. Suspension: preceding sections --------------- 1575787. Temporary promotions in time of war ornational emergency 1575982. Ships and squadrons: detail of retired officers tocommand -------------------------------- 1606241. Medal of H onor---------------------------- 1616242. Navy Cross ------- 1616244. Silver Star Medal --------------------------- 1616246. Navy and Marine Corps Medal --------------- 1626386. Suspension: preceding sections --------------- 1626408. Navy and Marine Corps; warrant officers; W-1:

limitation on dismissal-------------------- 1636481. Retired officers of the Regular Navy andRegular Marine Corps: authority to recall--- 1636482. Retired enlisted members of the Regular Navyand Regular Marine Corps: authority torecall 1636485. Members of the Fleet Reserve and Fleet MarineCorps Reserve: authority to recall---------- 1646486. Members of the Fleet Reserve and Fleet Ma-rine Corps Reserve: release from active duty- 1646487. Retired rear admirals: retired pay after 2 yearsof active duty----------------------------- 1646911. Aviation cadets: grade; procurement; transfer- 1657224. Transportation on naval vessels during war-time------------------------------------- 1657722. Stay of suit 165'7724. Stay of proceedings for taking evidence beforesuit is filed------------------------------- 1667727. Duration of stay 1668031. Composition: assignment and detail of membersof Air Force and civilians ------------------ 1688034. Chief of Staff: appointment; duties ----------- 1698202. Air Force: officers in certain commissionedgrades- -- 1708212. Regular Air Force; Air Force Reserve; AirNational Guard of United States: strengthin grade; temporary increases--------------- 1718257. Regular Air Force: aviation cadets; qualifica-tions, grade, limitations------------------- 1718313. Suspension of laws for promotion or mandatoryretirement or separation during war oremergency 1728395. During war --------------------------------- 1728444. Commissioned officers: during war or emer-gency - --- - 1728445. Officers: additional appointments during waror emergency ----------------------------- 1738500. Air National Guard in Federal service: call_--- 1738741. Medal of Honor: award---------------------- 1738742. Air Force Cross: award ---- - -- 1748746. Silver Star: award -- - - 1748750. Airman's Medal: award; limitations ....------ 175


10/50

Texts of statutes delegating power in time of war or emergencyContinedUnited States Code, Title 10-Armed Forces-Continued page10 U.S.C. 9022. Contract surgeons-------------------------- 1759025. Production of supplies and munitions: hoursand pay of laborers and mechanics --------- 1759441. Status: support by Air Force; employment ---- 1759501. Industrial mobilization: orders; priorities; pos-session of manufacturing plants; violations-- 1769502. Industrial mobilization: plantS; lists; Board onMobilization of Industries Essential for Mil-itary Preparedness ------------------------ 1779591. Utilities: proceeds from overseas operations-. 1789742. Control of transportation systems in time ofwar ------------------------------------9773. Acquisition and construction: air bases anddepots --------------------------------- 1789776. Emergency construction: fortifications --------- 1809780. Acquisition of buildings in District of Columbia. 180United States Code, Title 12-Banks and Banking:12 U.S.C. 95. Emergency limitations and restrictions on busi-ness of members of Federal Reserve System- 18095a. Regulation of transactions in foreign exchangeof gold and silver; property transfers; vestedinterests, enforcement and penalties-------- 181249. Regulation of consumer credit---------------- 191635. Powers and functions of bank---------------- 1921425a. Liquidity requirements---------------------- 1951703. Insurance of financial institutions------------- 1971705. Allocation of funds------------------------- 2031748b. Insurance of mortgages -------------------- 203United States Code, Title 14-Coast Guard:14 U.S.C. 3. Relationship to Navy Department ------------ 204214. Original appointment of temporary officers .... 204275. Wartime temporary service promotions -------- 205331. Recall to active duty during war or nationalemergency ------------------------------- 206359. Recall to active duty during war or nationalemergency------------------------------ 206367. Detention beyond term of enlistment ----------- 206371. Aviation cadets; procurement; transfer-------- 207491. Medal of Honor---------------------------- 208493. Coast Guard Medal ------------------------- 209652. Removing restrictions ----------------------- 210778. Suspension of this subchapter in war or national

emergency ------------------------------- 210United States Code, Title 15-Commerce and Trade:15 U.S.C. 76. Retaliation against restriction of importationsin time of war---------------------------- 21177. Discrimination against neutral Americans intime of war ------------------------------ 211United States Code, Title 16---Conservation:16 U.S.C. 440. Same; closure in times of national emergency-- 21 3590p. Limitation on obligations incurred; Great

Plains Conservation Service-------------- 213809. Temporary use by Government of projectsworks for national safety; compensation foruse --------------------..-------------- 219824a. Interconnection and coordination of facilities;

emergencies; transmission to foreign coun-tries--------------------------------831d. Directors; maintenance and operation -of plant 219for production, sale, and distribution offertilizer and power---------------------- 221831n-4. Bonds for financing power program ------- 22383 1s. Possession by Government in time of war;damages to contract holders ..........832g. Purchase of supplies and services------------ 225833f. Purchase of supplies and services ------------ 227


11/50

United States Code, Title 18-Crimes and Criminal Procedure:18 U.S.C. 793. Gathering, transmitting or losing defense infor- Pasemation ------ 228794. Gathering or delivering defense information toaid foreign government --------------------- 231795. Photographing and sketching defense installa-tions ................. 231798. Disclosure of classified information I----------- 232798. Temporary extension of section 794 ----------- 233963. Detention of armed vessel -------------------- 234967. Departure of vessel forbidden in aid of neu-trality----------------------------------- 2371383. Restrictions in military areas and zones ------ 2372153. Destruction of war material, war premises; orwar utilities----------------------------- 2372154. Production of defective war material, warpremises, or war utilities------------------- 2382157. Temporary extension of sections 2153 and 2154- 2382391. Temporary extension of section 2388---------- 2392511. Interception and disclosure of wire or oral com-munications prohibited --------------------- 2403287. Wartime suspension of limitations------------ 242United States Code, Title 19-Customs Duties:19 U.S.C. 1318. Emergencies ------------------------------- 2431351. Foreign trade agreements -------------------- 2441862. Safeguarding national security --------------- 250United States Code, Title 20-Education:20 U.S.C. 79. Barro Colorado Island in Gatun Lake to be setaside ---- ------------------------------- 253241-1. Assistance for current school expenditures in

cases of certain disasters ---------------- 253646. Assistance in cases of certain disasters--------- 256United States Code, Title 22-Foreign Relations and Intercourse:22 U.S.C. 401. Illegal exportation of war materials ----------- 259441. Proclamation of state of war between foreignstates ---------------------------------- 260447. Financial transactions ----------------------- 261450. Restrictions on use of American ports --------- 263451. Submarines and armed merchant vessels------- 263461. Enforcement by courts; employment of land ornaval forces ------------------------------ 264464. Detention by collectors of customs ----------- 2651611. Congressional declaration of policy; embargo onwar materials; denial of assistance to nationsfailing to embargo shipments; administration

of chapter---.... 2651611a. Responsibility for administration- ------------ 2661611b. Determination of items to be embargoed --- 2661611c. Resumption of assistance -------------------- 2671611d. Definitions-------------------------------- 2671962. Military assistance; use of Armed Forces---- 2681963. United Nations Emergency Force------------ 2691965. Expiration --------------------------------- 2692370. Prohibitions against furnishing assistance------ 2692410. Sale of supersonic planes to Israel ------------ 278United States Code, Title 25-Indians:25 U.S.C. 72. Abrogation of treaties----------------------- 278United States Code, Title 26-Internal Revenue Code:26 U.S.C. 168. Amortization of emergency facilities ---------- 2797508. Time for performing certain acts postponed byreason of war---------------------------- 284United States Code, Title 29-Labor:29 U.S.C. 176. National emergencies; appointment of board ofinquiry by Preident; report; contents; filing

with service----------------------------- 286


12/50

Texts of statutes delegating power in time of war or emergency-CotinuedUnited States Code, Title 29--Labor---Continued

29 U.S.C. 178. Same; strikes subject to injunction; inapplica-bility of sections 101 to 11 5 of this title;review ----------------------------------United States Code, Title 3t-Money and Finance:31 U.S.C. 80a. Same; extension of time during war or emer-gency ---------------------------------80b. Administrative examination of accounts ofU.S. Marine Corps expenditures -----------80c. Administrative examination of accounts ofNavy expenditures; extension of time duringwar or emergency.....................203. Assignments of claims; set-off against assignee-2 4 1 Sam e ; p ay men ts ... .- -. - -United States Code, Title 32-National Guard:32 U.S.C. 104. Units; location; organization; command -------111. Suspension of certain provisions of this title ....302. Enlistments, reenlistments, and extensions -----715. Property loss; personal injury or death: activ-ities under certain sections of this title -----United States Code, Title 33-Navigation and Navigable Waters:33 U.S.C. 853. Appointments and promotions made by Presi-dent; suspension during war or emergency---854a-1. Temporary appointment or advancement ofcommissioned officers in time of war ornational emergency ....................855. Cooperation with and transfer to military de-partments -------------------------------United States Code, Title 35-Patents:35 U.S.C. 181. ecrecy of certain inventions and withholding ofp aten t .. -----------------------------United States Code, Title 37-Pay and Allowances of the UniformedServices:37 U.S.C. 202. Pay grades; assignment to; rear admirals ofupper half; officers holding certain positionsin the N avy -----------------------------310. Special pay; duty subject to hostile fire -----407. Travel and transportation allowances; disloca-tion allowance --------------427. Family separation allowance ........--_--901.Wartime pay of officer of Armed Force exercis-ing command higher than his grade..----United7Stats Code, Title 38-Veterans' Benefits:38]U.S.C. 101. Definitions ..........

521. Veterans of the Mexican border period, WorldWar I, World War II, the Korean conflict, orthe Vietnam era ..United'States Code, Title 40-Public Buildings, Property and Works:40]U.S.C. 71d. Proposed Federal and District developmentsand projects ---------- ---..........-276a-5. Suspension of sections 276a to 2 7 6a-5 duringemergency ----------------278b. Same; exception of certain vital leases duringwar or emergency -------314. Sale of war supplies, lands, and buil-ings------484. Disposal of surplus property ------- --534. Waiver of procedures for disposal of urban landsacquisition or change of use of real property- -United States Code, Title 41-Public Contracts:41 U.S.C. 11. No contracts or purchases unless authorized orunder adequate appropriation; report to theCongress ......................15 . Transfers of contracts; assignments-of claims;set-off against assignee ------------------252. Purchases and contracts for property-------


13/50

XIllUnited States Code, Title 42-The Public Health and Welfare: Pig42 U.S.C. 204. Composition of commissioned corps; appoint-ment of commissioned officers of Regular andReserve Corps -------------------------- 326210-1. Annual and sick leave --------------------- 327211. Promotion of commissioned officers ----------- 327211b. Promotion of commissioned officers---------- 331217. Use of Service in time of war or emergency ---- 332266. Special quarantine powers in time of war --- 3321313. Assistance for U.S. citizens returned fromforeign countries------------------------- 3331477. Preferences for veterans and families of deceasedservicemen ------------------------------ 3341541. Termination of subchapters II-VII; savingclause-- ------------ - - - - 3351592. Authority of Administrator -------------------- 3351711. Definitions ..-------------------------------- 3361712. Disqualification from benefits---------------- 3392138. Suspension of licenses during war or nationalemergency ------------------------------- 339

2165. Security restrictions ------------------------ 3402201. General duties of Commission (AEC)--------- 342United States Code, Title 43-Public Lands:43 U.S.C. 155. Withdrawal, reservation, or restriction of publiclands for defense purposes; definition; excep-tion .........- 348315q. Witldrawarof lands for war or national defensepurposes; payment for cancellation of permitsor licenses------------------------------ 33361611. Restriction on delivery of water for productionof excessive basic commodities ------------ 3491314. Rights and powers retained by the UnitedStates; purchase of natural resources; con-demnation of lands----------------------- 3491341. Reservation of lands and rights--------------- 350United States Code, Title 44-Public Printing and Documents:44 U.S.C. 1505. Documents to be published in the FederalRegister -------------------------------- 3513311. Destruction of records outside continentalUnited States in time of war or when hostileaction seems imminent; written report toAdministrator of General Services---------- 353United States Code, Title 45-Railroads:45 U.S.C. 228c-1. Military service------------------------ 353United States Code, Title 46-Shipping:46 U.S.C. 133. Hospital ships in time of war ---------------- 354134. Designation by President Of hospital shipsexempted-------------------------------- 355

249a. Distinctive service ribbon bar; issuance; cost;replacements----------------------------- 35835. Restrictions on transfer of shipping facilitiesduring war or national emergency ----- 356861. Purpose and policy of United States ---------- 3591132. Citizenship of officers and crew---------------- 3601151. Subsidy authorized for vessels to be operated inforeign trade----------------------------- 3611161. Reserve funds for construction or acquisition ofvessels; taxation -------------------------- 3631202. Insurance requirements; repairs; inspection bySecretary; termination of charter in nationalemergency ------------------------------- 3641241. Transportation in American vessels of Govern-ment personnel and certain cargoes --.------ 365


14/50

Texts of statutes delegating power in time of war or emergency---ContinuedUnited States Code, Title 46-Shipping--Continued

46 U.S.C. 1242. Requisition or purchase of vessels in time of P19eemergency ------------------------------- 3671294. Expiration of authority to provide insurance --- 3691402. Application for subsidy; conditions ----------- 3691406. Supervision of construction; submission of plansto Secretary of Defense------------------- 371United States Code, Title 47-Telegraphs, Telephones, and Radio-telegraphs:47 U.S.C. 308. Same; application; conditions and restrictions inlicense for foreign communication ----------- 371606. War powers of President -------------------- 373United States Code, Title 49-Transportation:49 U.S.C. 1. Regulation in general; car service; alteration ofline - 3756. Schedules and statements of rates, etc., jointrail and water transportation--------------- 3801020. Special powers during time of war or otheremergency ----------------- ------ 3821343. General powers and duties of Administrator --- 3821348. Airspace control and facilities ---------------- 383United States Code, Title 50-War and National Defense:50 U.S.C. 21. Restraint, regulation, and removal ----------- 38482. Procurement of ships and material during war;changes in contracts; commandeering fac-tories, etc -- - 38498d. Release of stockpile materials -------------- 385167c. Licensing--------------------------------- 385191. Regulation of anchorage and movement ofvessels during national emergency ---------- 388196. Emergency foreign vessel acquisition; purchaseor requisition of vessels lying idle in U.S.waters ---------------------------------- 389197. Same; voluntary purchase or charter agree-ments---------------- -- ---------- 389198. Same; documentation of vessels; waiver ofcompliance; coastwise trade; inspection; re-conditioning of vessels; elective period;definition --------------------------------- 390205. Suspension of commercial intercourse with Statein insurrection -------------------------- 392206. Suspension of commercial intercourse with partof State in insurrection -------------------- 392207. Persons affected by suspension of commercialintercourse ------------------------------ 393208. Licensing or permitting commercial intercoursewith State or region in insurrection ------ 393212. Confiscation of property employed to aid insur-rection---------------------------------- 394223. Forfeiture of vessels owned by citizens of insur-rectionary States ------------------------- 394451. Congressional declaration of purpose and policy- 394452. Definitions -------------------------------- 395453. Powers and duties of Secretary of Defense ---- 396454. Plant disposal; modification of national securityclause; transfer to Administrator of GeneralServices; machine tools----------------. . 396

455. Acceptance of plants by Administrator ofGeneral Services; disposition; conditions oflease -------------.---456. Powers of Secretary of Defense -respecting 397property in national industrial reserve------- 398


15/50

50 U.S.C. 457. Transportation, maintenance, disposition, etc.,by Administrator of General Services of Pagetransferred property -- - - -- 399458. Limitation on acquisition of property ---------- 399459. Industrial Reserve Review Committee; compo-sition, appointment, tenure, and compensa-tion; laws applicable ---------------------- 400460. Duties of committee; recommendations -------- 401461. Reports to Congress -------- 401462. Appropriations ------------------------------ 401812. Declaration of "internal security emergency" byPresident; events warranting; period ofexistence --------------------------------- 401832. Full field investigation and appraisal ---------- 4021431. Authorization; official approval ---------------- 4031435. Effective period-_ 4031511. Reports to Congress------------------------- 4061512. Transportation, open air testing, and disposal;Presidential determination; report to Con-gress; notice to Congress and State Governors - 406

1513. Deployment, storage, and disposal; notificationto host country ano Congress; internationallaw violations; reports to Congress and inter-national organizations ------------------- 4071515. Suspension; Presidential authorization -------- 4081516. Delivery systems -- 4081517. Immediate disposal when health or safety areendangered - ---- - 4091518. Disposal; detoxification; report to Congress;emergencies ------------------------------- 409United States Code, Title 50, Appendix-War and National Defense:50 U.S.C. App. 3. Acts prohibited ----------------------------- 4094. Licenses to enemy or ally of enemy insurance orreinsurance companies; change of name; doingbusiness in United States------------------ 41 05. Suspension of provisions relating to ally ofenemy; regulation of transactions in foreignexchange of gold or silver, property transfers,vested interests, enforcement and penalties_- 4136. Alien Property Custodian; general powers andduties-----------------------.. 4157. Lists of enemy or ally of enemy officers, directorsor stockholders of corporations in UnitedStates; acts constituting trade with enemyprior to passage of act; conveyance of propertyto custodian; voluntary payment to custodianby holder; acts under order, rule, or regula-tion------------------------------------- 4158. Contracts, mortgages, or pledges against or withenemy or ally of enemy; abrogation of con-tracts; suspension of limitations ----------- 4209. Claims to property transferred to custodian;notice of claim; filing; return of property;suits to recover; sale of claimed property intime of war or during national emergency--- 42110. Acts permitted; applications for patents, orregistration of trademarks or copyrights;payment of tax in relation thereto; licensesunder enemy owned patent or copyright;statements by licensees; term and cancella-tion; suits against licensees; restraining in-fringements; powers of attorney; keepingsecret inventions ---- -- 43011. Importations prohibited - 43312 . Property transferred to Alien Property Custo-dian ---------------------------------- 434


16/50

X1lITexts of statutes delegating power in time of war or emergency---Continued

United States Code, Title 50, Appendix-War, etc.-Continued50 U.S.C. App. 14.'Same; refusal of clearance; reports of gold or Pagesilver coin in cargoes for export------------- 43619. Print, newspaper, or publication in foreignlanguages -------------------------------- 43632. Return of property -------------------------- 438

38. Shipment of relief supplies; definitions --------- 44340. Intercustodial conflicts involving enemy prop-erty; authority of President to conclude; dele-gation of authority ----------------------- 444785. Effective date of sections 781 to 785---------- 4441211. Congressional declaration of policy----------- 4451213. Definitions -------------------------------- 4461216. Exemptions -------------------------------- 4471622. Disposal to local governments and nonprofitinstitutions ------------------------------ 4531742. Price adjustment on prior sales to citizens -- 4571744. Composition of national defense reserve fleet;vessels available to State marine schools ----- 4601878e. Extension of loan to France; availability ofvessels to European, Latin America, andFar Eastern nations; pool of vessels; rulesand regulations -------------------------- 4601878s. Loans of naval vessels to friendly foreignnations from Reserve Fleet---------------- 4621878vv. Five-year period limitation on loans; discre-tionary extension; acts of warfare byrecipient country, early termination ------- 4622005. Prisoners of war---- ----------------------- 4632071. Priority in contracts and orders -------------- 4682072. Hoarding of designated scarce materials------- 4702073. Penalties ---------------------------------- 4712093. Purchase of raw materials and installation ofequipment ------------------------------- 4712151. Small business----------------------------- 4732152. Definitions -------------------------------- 4752153. Delegation of authority; creation of newagencies; appointment and. compensation ofofficers and personnel; State representationin regional offices ------------------------- 4762154. Rules, regulations, and orders ---------------- 4762155. Investigations; records; reports; subpenas; rightto counsel ------------. .---------- - 4772157. Liability for compliance with invalid regulations ;discrimination against orders or contractsaffected by priorities or allocations---------- 4792158. Voluntary agreements and programs- exemptionsfrom antitrust laws and Federal tr[ade Com-mission Act; surveys and reports to Congress;term ination ------------------------ 4792159. Exemption from Administrative Procedure Act-statements in rules, regulations, and orders asto consultation with industry representatives 4802160, Employment of personnel; appointment policies :nucleus executive reserve; use of confidentialinformation by employees; printing and dis-tribution of reports -- 481

2161. Appropriations authorized; availability of funds 48 42162. Joint Committee on Defense Production - 48 52163. Territorial application of act--------- -- 4872166. Termination of Act ................- 48 72291. Sections 2291 to 2297 of this appendix effectiveonly during civil defense emergency; proc-lamation of emergency; termination --------- 48 9


17/50

XVUPage50 U.S.C. App. 2292. Utilization of Federal departments and agencies- 4902293. Emergency powers of Administrator---------- 4912294. Government immune from liability for death orpersonal injury to employees; benefits em-ployees entitled to ------------------------ 4922295. Waiver of Administrative Procedure Act ------ 4922297. Termination of sections 2291 to 2297 of this

appendix-- Y .-----.--------------------- 49 22401. Congressional findings -- -- - 4932402. Congressional declaration of policy - - 49 32403. Authority to effectuate policy -- 49 42404. Consultations for determination of controls;standards or criteria established ---.------ 49 62405. Violations and penalties--------------------- 4962406. Enforcement-- 4972407. Exemption from administrative procedure andjudicial review provisions ----------------- 4982408. Information to exporters-------------------- 49 92409. quarterly reports..-.-.---------------- 4992410. Definitions-------------------------------- 49 92411. Effects on other acts------------------------ 50 02412. Effective date-_ 50 02413. Termination date---------------------------- 50 0Public Laws: .68th Cong., Public Law 438-43 Stat. 959-60 ------------------ 501479-43 Stat. 984-5 ------------ 502568--43 Stat. 1129 ------------------- 50469th Cong., Public Law 99-44 Stat. 241-------------------- 505

314-44 Stat. 677-------------------- 50 571st Cong., Public Law 222-46 Stat. 329-32 ----------------- 50 6280-46 Stat. 479 50672d Cong., Public Law 382-47 Stat. 1367-8------------------ 50774th Cong., Public Law 598-49 Stat. 1278------------------- 50 8624-49 Stat. 1387-------------------- 509704- 49 Stat. 535-6 --------------- 510

730-49 Stat. 557-8 51075th Cong., Public Law 316--50 Stat. 696 -- 511689-52 Stat. 33 ----------------- 51279th Cong., Public Law 465-60 Stat. 32 --------------------- 51380th Cong., Public Law 885-62 Stat. 1229-30 ----------------- 51481st Cong., Public Law 97-63 Stat. 169-70 ------------------ 515593-64 Stat. 310-11----------------- 516755-64 Stat. 591 ------------------- 51782d Cong., Public Law 222-65 Stat. 658--------------------- 519377-66 Stat. 128-9- - - 52 0559-66 Stat. 727 ------------------- 52083d Cong., Public Law 39-67 Stat. 38 52156-67 Stat. 54 --------------------- 52 292-67 Stat. 120--------------------- 52 3169-67 Stat. 244-------------------- 523315- 68 Stat. 32 --------------------- 52 4327-68 Stat. 51 --------------------- 525386-68 Stat. 171 -------------------- 527493-68 Stat. 474-7------------------- 52 8534-68 Stat. 535 - 529556-68 Stat. 586 --------------------- 530711- 68 Stat. 974-5 ------------------ 531712-68 Stat. 975-6 ----------------- 532713-68 Stat. 977-8------------------ 533716-68 Stat. 80-2 -5-- 53484th Cong., Public Law 49-69 Stat. 68-70 ------------------ 535- 50-69 Stat. 70-1 53652-69 Stat. 79 - - 53877-69 Stat. 138-9 -- - 538142-69 Stat. 93-4 -- 540156-69 Stat. 300-1 ----------------- 541


18/50

XvIII-Texts of statutes delegating power in time of war or emergency-Continued

Public Laws-Continued p5g284th Cong., Public Law 301-69 Stat. 592-3 3--542410-70 Stat. 17-8 --------------------- 544413-70 Stat. 21-3 ------------------- 544428-70 Stat. 35-6 ------------------ 547521- 70 Stat. 156 ----------.......... 548598-70 Stat. 296-------------------- 549

616-70 Stat. 335-6 ----------------- 549618-70 Stat. 336-7 ---------------- 550706-70 Stat. 536-7 ----------------- 550719-70 Stat. 550-1 ------------------ 551729-70 Stat. 577-------------------- 552740-70 Stat. 590-------------------- 553819-70 Stat. 698-------------------- 554872-70 Stat. 793--------------------- 555

85th Cong., Public Law 46-71 Stat. 46-8------------------- 556157-71 Stat. 391-------------------- 557185-71 Stat. 467-------------------- 558204-71 Stat. 478-9------------------ 559205-71 54Zt. 479-80 ------------------- 560236-71 Stat. 516-7-------------------- 561258-71 Stat. 580-3------------------ 562260-71 Stat. 584-7 ----------------- 563545-72 Stat. 401 --------------------- 564548-72 Stat. 403-4 ------------------ 565799-72 Stat. 965-------------------- 566

86th Cong., Public Law 323-73 Stat. 594-5 ------------------ 567473- 74 Stat. 143 ------------------- 568602-74 Stat. 355-6------------------ 570611-74 Stat. 369-71 ------------------ 57187th Cong., Public Law 328-75 Stat. 68 -------------------- 572654--76 Stat. 530._ -- -- 573733-76 Stat. 697-------------------- 574794- 76 Stat. 877 ------------------- 57588th Cong., Public Law 228-77 S6t.,470-1 -- 57 689th Cong., Public Law 188-79 Stat. 793-------------------- 57 7257-79 Stat. 982-------------------- 57 8568-80 Stat. 739 -- - - 57991st Cong., Public Law 142-83 Stat. 293-------------------- 580202-84 Stat. 20--------------------- 581

92d Cong., Public Law 145-85 Stat. 394 ------------------ 582-Citation of statutes in accordance to committee jurisdiction:Standing Committees:Agriculture and Forestry 5S5A rmed Services ---------------------------------------- 5q5Banking, Housing and Urban Affairs - 5%Commerce -------------- 586District of Columbia ............................... .,5S7Finance ....- 5s 7Foreign Relations -.------- - --------------------- -77Government Operations -------- -7Interior and Insular Affairs .5'sT he Judiciary -------------------------------------- 5, 8Labor and Public Welfare ............................. 5ssPost Office and Civil Service 5"..P ublic W orks ----- -------------------------------- -- 589Rules and Administration - . . . .5,9V eterans' A ffairs ------------------------------------- 589Joint Committee on Atomic Energy- - - - - - - - - - - - - - - - - - - - - - 589


19/50

APPENDIXTables:1. Provisions of the United States Code that refer to Truman Emer- Pagegency Proclamation eo mine or by date -. - - - 59 12. Provisions of the United States Code that refer to Presidentialdeclaration or proclamation of national emergency that may beaffected by termination of Truman Emergency Proclamation---- 59 13. Provisions of the United States Code that empower the Presidentto declare a national emergency (the President alone or thePresident or the Congress in the alternative) or refer to a presi-dentially declared emergency - 5914. Provisions of the United States Code that provide for a congressional

declaration of national emergency (the Congress alone or theCongress or the President in the alternative) or refer to a congres-sionally declared em ergency ...................... ......- 59 25. Provisions of the United States Code that refer to a declaration ofnational emergency without reference to any declarant --------- 59 26. Provisions of the United States Code that specify emergency author-its applicable in "time of war" or "during a war" 5937. Provisions of the United States Code that refer to a state of war orwar declared by the Congress --- 59 3Proclamations of national emergency still in effect:Excerpt from Public Law 1, 73d Cong., 1st Sess. (1933) ------------ 59 4Proclam ation No. 2914, Dec. 16, 1950 .... . -- 594

Proclamation No. 3972, Mar. 23, 1970 - ---- - 596Proclamation No. 4074, Aug. 15, 1971 --------------- - 59 7Subject in dex --------- ---------------------------------------- 59 8

IXX)


20/50


21/50

93D CONGmSS SENATE REPORT1st Sesaion No. 93-549

EMERGENCY POWERS STATUTES:PROVISIONS OF FEDERAL LAW

Now IN EFFECT DELEGATING TO THEEXECUTIVE EXTRAORDINARY AUTHORITY

IN TIME OF NATIONAL EMERGENCY

November 19 , 1973.-Ordered to be printed

M r. MATHIAS (for Mr. CHURCH) as co-chairini of the SpecialCommittee on th e Termination of the National Emergency, sub-mitted the following

REPORT[Pursuant to S. Res. 9, 93d Cong.]

INTRODUCTIONA-A BRIEF HISTORICAL SKETCH OF THE ORIGINS

OF EMERGENCY POWERS Now IN FORCEA majority of the people of the United States have lived all of their

lives under emergency rule. For 40 years, freedoms and governmentalprocedures guaranteed by the Constitution have, in varying degrees,been abridged by laws brought into force by states of nationalemergency. The problem of how a constitutional democracy reacts togreat crises, however, far antedates the Great Depression. As a philo-sophical issue, its origins reach back to the Greek city-states and theRoman Republic. And, in the United States, actions taken by the Gov-ernment in times of great crises have--from, at least, the Civil War-in important ways shaped the present phenomenon of a permanentstate of national emergency.

American political theory of emergency government was derivedand enlarged from John Locke, the English political-philosopherwhose thought influenced the authors oF the Constitution. Lockeargued that the threat of national crisis-unforeseen, sudden, andpotentially catastrophic-required the creation of broad executive


22/50

emergency powers to be exercised by the Chief Executive ill situ-ations where the legislative authority had not provided a means orprocedure of remedy. Referring to emergency power in the 14th chap-ter of his Second Treatise on Civil Governnent as "prerogative,'Locke suggested that it: . . should be left to the discretion of him that has theexecutive power .. since in some governments the lawmakingpower is not always in being and is usually too numerous,and so too slow for the dispatch requisite to executions, andbecause, also it is impossible to foresee and so by laws toprovide for all accidents and necessities that may concern thepublic, or make such laws as will do no harm, if they are exe-cuted with an inflexible rigour on all occasions and upon allpersons that may come in their way, therefore there is a lati-tude left to the executive power to do many things of choicewhich the laws do not prescribe.

To what extent the Founding Fathers adhered to this view of theexecutive role in emergencies is a much disputed issue. Whatever theirconceptions of this role, its development in practice has been basedlargely on the manner in which individual President's have viewedtheir office and its functions. Presidents Theodore Roosevelt and Wil-liam Howard Taft argued the proper role of the President and,perhaps, their debate best expounds diametrically opposed philoso-phies of the presidency. In his Autobiography, Roosevelt asserted his"stewardship theory."My view was that every Executive officer ... was a stewardof the people bound actively and affirmatively to do all hecould for the people and not to content himself with the nega-tive merit of keeping his talents undamaged in a napkin...My belief was that it was not only [the President's] right buthis duty to do anything that the needs of the Nation de-manded unless such action was forbidden by the Constitutionor by the laws. Under this interpretation of executive powerI did and caused to be done many things not previously doneby the President and the heads of departments. I did not

usurp power but I did greatly broaden the use of executivepower. In other words, I acted for the common well being ofall our people whenever and whatever measure was necessary,unless prevented by direct constitutional or legislativeprohibition.

Roosevelt compared this principle of "stewardship" to what hecalled the Jackson-Lincoln theory, and contrasted it to the theoryascribed to William Howard Taft.Roosevelt's ideas on the ambit of presidential authority and re-sponsibility were vigorously disputed by Taft. In lectures on the presi-dency-delivered at Columbia University in 1915-1916--Taft re-sponded that: ". . . the wide field of action that this would give tothe Executive one can hardly limit. A President can exercise no powerwhich cannot fairly and reasonably be traced to some specific grant ofpower." And he cautioned that: "_ . . such specific grants must be


23/50

either in tie Federal Constitution, or in any Act of Congress passed inpursuance 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-Taftdispute in Roosevelt's favor. In the prevailing academic view, Roose-velt is described as "active," "expansionist," and "strong." The his-torical reality, in fact, does not afford such a sharp distinction eitherbetween the actions of these two Presidents, or between their analysisof the problem of emergency powers. Taft, in his concluding remarksto his Columbia lectures, said: "Executive power is limited, so far as itis possible to limit such a power consistent with that discretion andpromptness of action that are essential to preserve the interests of thepublic in times of emergency or legislative neglect or inaction." Thus,.even Taft was disposed to employ emergency power when the needarose, but, he did not wish to go beyond his own narrower, conserva-tive conception of what was meant by constitutional and legal bounds.Thus, the dispute was over where those bounds lay, rather than thenature of theoffice itself.Taft's successor, Woodrow Wilson, was no less zealous in observingwhat he thought the Constitution demanded. Faced with the exigen-cies of World War I, Wilson found it necessary to expand executiveemergency powers enormously. In many respects, this expansion ofpowers in wartime was based on precedents set by Lincoln decadesearlier. Unlike Lincoln, however, Wilson relied heavily on Congressfor official delegations of authority no matter how broadly these mightbe.

Wilson's exercise of power in the First World War provided a modelfor future Presidents and their advisors. During the preparedenessperiod of 1915-1916, the submarine crisis in the openng months of1917, and the period of direct involvement of U.S. armed forces fromApril 1917 to November 1918, Wilson utilized powers as sweeping as-Lincoln's. Because governmental agencies were more highly organizedand their jurisdictions wider, presidential powers were considerablymore effective than ever before. Yet, perhaps, because of Wilson'sscrupulous attention to obtaining prior congressional concurrence,there was only one significant congressional challenge to Wilson's war-time measures.That challenge came in February-March 1917, following the sever-ance of diplomatic relations with Germany. A group of Senators suc-cessfully filibustered a bill authorizing the arming of American mer-chant ships. In response--records American historian Frank Freidelin his book Roosevelt: the Apprenticeship-Assistant Secretary of theNavy Franklin D. Roosevelt found an old statute under which thePresident could proceed without fresh authorization from Congress.Roosevelt, impatient for action, was irritated because Wilson waited afew 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 oldstatutes and sweeping new legislation-thus drawing on congres-sional delegation as a source of authority. The most significantWilsonian innovations were economic, including a wide array of de-fense and war agencies, modeled to some extent upon British wartime


24/50

precedents. In August 1916 just prior to United States entry into thewar, Congress at Wilson's behest established a Council of NationalDefense-primarily advisory. In 1917, a War Industries Board, alsorelatively weak, began operating. The ineffectiveness of the economicmobilization 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 himalmost 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 ofthe Government in numerous directions.Following the Allied victory, Wilson relinquished his wartime au-thority and asked Congress to repeal the emergency statutes, enactedto fight more effectively the war. Only a food-control measure and the1917 Trading With the Enemy Act were retained. This procedure ofterminating emergency powers when the particular emergency it-elfhas, in fact, ended has not been consistently followed by his successors.The next major development in the use of executive emergencypowers came under Franklin D. Roosevelt. The Great Depression hadalready overtaken the country by the time of Roosevelt's inaugurationand confronted him with a totally different crisis. This emergency,unlike those of the past, presented a nonmilitary threat. The Roose-velt administration, however, conceived the economic crisis to be a ca-lamity equally as great as a war and employed the metaphor of war toemphasize the depression's severity. In his inaugural address, Roose-velt said: "I shall ask the Congress for the one remaining instrumentto meet the crisis-broad executive power to wage a war against theemergency, as great as the power that would be given me if we were infact invaded by a foreign foe."Many of the members of the Roosevelt administration, includingF.D.R. himself, were veterans of the economic mobilization of WorldWar I and drew upon their experiences to combat the new situation.The first New Deal agencies, indeed, bore strong resemblance to war-time agencies and many had the term "emergency" in their titles-such as the Federal Emergency Relief Administration and the Na-

tional Emergency Council.In his first important official act, Roosevelt proclaimed a NationalBank Holiday on the basis of the 1917 Trading With the EnemyAct-itself a wartime delegation of power. New Deal historian Wil-liam E. Leuchtenburg writes:When he sent his banking bill to Congress, the House re-ceived it with much the same ardor as it had greetedWoodrow Wilson's war legislation. Speaker Rainey said thesituation reminded him of the late war when "on both sidesof this Chamber the great war measures suggested by the ad-ministration were supported with practical unanimity ....Today we are engaged in another war, more serious even in itscharacter and presenting greater dangers to the Republic."After only 38 minutes debate, the House passed the adminis-tration's banking bill, sight unseen.


25/50

The Trading With the Enemy Act had, however, been specificallydesigned by its originators to meet only wartime exigencies. By employ-ing it to meet the demands of the depression, Roosevelt greatly extendedthe concept of "emergencies" to which expansion of executive powersmight be applied. And in so doing, he established a pattern that wasfollowed frequently: In time of crisis the President should utilizeany statutory authority readily at hand, regardless of its originalpurposes, with the firm expectation of ex post facto congressionalconcurrence.Beginning with F.D.R., then, extensive use of delegated powersexercised under an aura of crisis has become a dominant aspect ofthe presidency. Concomitant with this development has been a de-meaning of the significance of "emergency." It became a term used toevoke public and congressional approbation, often bearing little actualrelation to events. Roosevelt brain-truster, Rexford G. Tugwell, hasdescribed the manner in which Roosevelt used declarations of differentdegrees of emergency:The "limited emergency" was a creature of Roosevelt'simagination, used to make it seem that he was doing lessthan he was. He did not want to create any more furorthan was necessary. The qualifying adjective had no limit-ing force. It was purely for public effect. But the finding thatan emergency existed opened a whole armory of powersto the Commander-in-Chief, far more than Wilson had had.

Roosevelt and his successor, Harry S. Truman, invoked formalstates of emergency to justify extensive delegations of authority dur-ing actual times of war. The Korean war, however, by the fact of itsnever having been officially declared a "war" as such bv Congress,further diluted the concept of what constituted circumstances suffi-ciently critical to warrant the delegation of extraordinary authorityto the President.At the end of the Korean war, moreover, the official state of emer-gency was not terminated. It is not yet terminated. This may be pri-marily attributed to the continuance of the Cold War atmospherewhich, until recent years, made the imminent threat of hostilities anaccepted fact of everyday life, with "emergency" the normal state ofaffairs. In this, what is for all practical purposes, permanent state ofemergency, Presidents have exercised numerous powers-most notablyunder the Trading With the Enemy Act-legitimated by that on-going state of national emergency. Hundreds of others have lainfallow, there to be exercised at any time, requiring only an orderfrom the President.Besides the 1933' and Korean war emergencies,' two other statesof declared national emergency remain in existence. On March 23,1970, confronted by a strike of Postal Service employees, PresidentNixon declared a national emergency.' The following year, on August

'See Appendix. . 594,Ibid.'Ibid, p. 596.


26/50

15 , 1971, Nixon proclaimed another emergency,1 under which he im-posed stringent import controls in order to meet an internationalmonetary crisis. Because of its general language, however, that procla-mation could serve as sufficient authority to use a substantial propor-tion of all the emergency statutes now on the books.Over the course of at least the last 40 years, then, Presidents havehad available an enormous-seemingly expanding and never-ending--range of emergency powers. Indeed, at their fullest extent and duringthe hei ht of a crisis, these "prerogative" powers appear to be virtu-ally unlimited, confirming Locke's perceptions. Because Congress andthe public are unaware of the extent of emergency powers, there hasnever been any notable congressional or public objection made to thisstate of affairs. Nor have the courts imposed significant limitations.During the New Deal, the Supreme Court initially struck downmuch of Roosevelt's emergency economic legislation (Schechter v.United States, 295 U.S. 495). However, political pressures, a changein personnel, and presidential threats of court-packing, soon alteredthis course of decisions (NLRB v. Jones & Laughlin Steel Corp.,301 U.S. 1). Since 1937, the Court has been extremely reluctant to in-validate any congressional delegation of economic powers to the Pres-ident. It appears that this will not change in the foreseeable future.In a significant case directly confronting the issue of wartime emer-gency powers, Youngstown Sheet & Tube Co. v. ,Zawyer (343 U.S.579), the Court refused to allow the President to rely upon impliedconstitutional powers during a crisis. The action at issue involvedpresidential seizure of steel plants in a manner apparently directly atodds with congressional policy. Justice Black's plurality opinion spe-cifically acknowledges that if'Congress delegates powers to the Presi-dent for use during an emergency, those powers are absolutely validwithin constitutional restraints on Congress' own power to do so. Con-curring opinions appear to agree on this point. It should be noted,therefore, that all statutes in this compilation are precisely these kindsof snecific congressional delegations of power.The 2.000-year-old problem of how a legislative body in a demo-cratic renublic may extend extraordinary powers for use by the execu-tive during times of great crisis and dire emergenev-but do so inways assuring both that such necessary powers will be terminated im-mediately when the emergency has ended and that normal processeswill be resumed-has not yet been resolved in this country. Toofew are aware of the existence of emergency powers and their extent,and the problem has never been squarely faced.

B-SiUMARYs VTEWS 0- TITE PRESrT STATUSoF EnnRoENcY PowsS STATUTESA review of the laws passed since the first state of nationalemergency was declared in 1933, reveals a consistent pattern of law-making. It is a pattern showing that the Congress, through its ownactions, transferred awesome magnitudes of power to the executiveostensibly to meet the problems of governing effectively in times ofgreat crisis. Since 1933, Congress has passed or recodified over 470significant statutes delegating to the President powers that had been

bid., V. 597.


27/50

the prerogative and responsibility of the Congress since the beginningof the Republic. No charge can be sustained that the Executive branchhas usurped powers belonging to the Legislative branch; on the con-trary, the transfer of power%as been in accord with due process ofnormal legislative procedures.It is fortunate that at this time that, when the fears and tensions ofthe cold war are giving*way to relative peace and detente is now na-tional policy, Congress can assess the nature, quality, and effect ofwhat has become known as emergency powers legislation. Emergencypowers make up a relatively small but important body of statutes-some 470 significant provisions of law out of the total of tens of thou-sands that have been passed or recodified since 1933. But emergencypowers laws are of such significance to civil liberties, to the operationof domestic and foreign commerce, and the general functioning of theU.S. Government, that, in microcosm, they reflect dominant trends inthe political, economic, and judicial life in the United States.

A number of conclusions can be drawn from the Special Commit-tee's study and analysis of emergency powers laws now in effect. Con-gress has in most important respects, except for the final action of floordebate and the formal passage of bills, permitted the Executivebranch to draft and in large measure to "make the laws." This hasoccurred despite the constitutional responsibility conferred on Con-gress by Article I Section 8 of the Constitution which states that itis Congress that "makes all Laws . . ."Most of the statutes pertaining to emergency powers were passedin times of extreme crisis. Bills drafted in the Executive branch weresent to Congress by the President and, in the case of the mostsignificant laws that are on the books, were approved with only themost perfunctory committee review and virtually no consideration oftheir effect on civil liberties or the delicate structure of the U.S. Gov-ernment of divided powers. For example, the economic measures thatwere passed in 1933 pursuant to the proclamation of March 5, 1933,by President Roosevelt, asserting that a state of national emergencynow existed, were enacted in the most turbulent circumstances. Therewas a total of only 8 hours of debate in both houses. There were nocommittee reports; indeed, only one copy of the bill was availableon the floor.This pattern of hasty and inadequate consideration was repeatedduring World War II when another group of laws with vitally sig-nificant and far reaching implications was passed. It was repeateddur-ing the Korean war and, again, in most recent memory, during thedebate on the Tonkin Gulf Resolution passed on August 6, 1964.On occasion, legislative history shows that during the limited de-bates that did take place, a few, but very few, objections were raised bySenators and Congressmen that expressed serious concerns about thelack of provision for congressional oversight. Their speeches raisedgreat doubts about the wisdom of giving such open-ended au-thority to the President, with no practical procedural means to with-draw that authority once the time of emergency had passed.For example, one of the very first provisions passed in 1933 wasthe Emergency Banking Act based upon Section 5(b) of the Trad-ing With the 'Enemy Act of 1917. The provisions gave to PresidentRoosevelt, with the full approval of the Congress, the authority


28/50

to control major aspects of the economy, an authority which hadformerly been reserved to the Congress. A portion of that provision,still in force, is quoted here to illustrate the kind of open-ended au-thority Congress has given to the President during the past 40 years:(b) (1) During the time of war or during any other periodof national emergency declared by the President, the Presi-

dent may, through any agency that he may designate, orotherwise, and under such rules and regulations as he mayprescribe, by means of instructions, licenses, or otherwise-(A) investigate, regulate, or prohibit, any transac-tions in foreign exchange, transfers of credit or paymentsbetween, by, through, or to any banking institution, andthe importing, exporting, hoarding, melting, or ear-marking of gold or silver coin or bullion, currency orsecurities, and(B) investigate, regulate, direct and compel, nullify,void, prevent or prohibit, any acquisition, holdg, with-holding, use, transfer, withdrawal, transportation, im-portation or exportation of, or dealing in, or exercisingany right, power, or privilege with respect to, or trans-actions involving, any property in which any foreigncountry or a national thereof has any interest.by any person, or with respect to any property, subject to thejurisdiction of the United States; and any property or inter-est of any foreign country or national thereof shall vest,when, as, and upon the terms, directed by the President, in

such agency or person as may be designated from time to timeby the President, and upon such terms anfi conditions as thePresident may prescribe such interest or property shall beheld, used, administered, liquidated, sold, or otherwise dealtwith in the interest of and for the benefit of the United States,and such designated agency or person may perform any andall acts incident to the accomplishment or furtherance of thesepurposes; and the President shall, in the manner hereinaboveprovided, require any person to keep a full record of, and tofurnish under oath, in the form of reports or otherwise, com-plete information relative to any act or transaction referredto in this subdivision either before, during, or after the com-pletion thereof, or relative to any interest in foreign property,or relative to any property in which any foreign country orany national thereof has or has had any interest, or as maybe otherwise necessary to enforce the provisions of this sub-division, and in any case in which a report could be required,the President may, in the manner hereinabove provided, re-quire the production, or if necessary to the national securityor defense, the seizure, of any books of account, records, con-tracts, letters. memoranda, or other papers, in the eustodv orcontrol of such person; and the President may, in the mannerhereinabove provided, take other and further measures notinconsistent herewith for the enforcement of this subdivision.(2) Any payment, conveyance, transfer, assignment, ordelivery of pronertv or interest therein, made to or for theaccount of the United States, or as otherwise directed, pur-suant to this subdivision or any rule, regulation, instruction,


29/50

or direction issued hereunder shall to the extent thereof be afull acquittance and discharge for all purposes of the obliga-tion of the person making the same; and no person shall beheld liable in any court for or in respect to anything doneor omitted in good faith in connection with the administra-tion of, or in pursuance of and in reliance on, this subdivision,or any rule, regulation, instruction, or direction issued here-under.

To cite two further examples:In the context of the war powers issue and the long debate of thepast 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, thePresident, whenever he considers it in the public interest, maydetail members of the Army, Navy, Air Force, and MarineCorps to assist in military matters-(1) any republic in North America, Central America, orSouth America;(2) the Republic of Cuba, Haiti, or Santo Domingo and(3) during a war or a declared national emergency, anyother country that he considers it advisable to assist in theinterest of national defense.(b) Subject to the prior approval of the Secretary of themilitary department concerned, a member detailed under thissection may accept any office from the country to which he isdetailed. He is entitled to credit for all service while so de-tailed, as if serving with the armed forces of the UnitedStates. Arrangements may be made by the President, withcountries to which such members are detailed to performfunctions under this section, for reimbursement to the UnitedStates or other sharing of the cost of performing such func-tions.

The D~fense Department, in answer to inquiries by the SpecialCommittee concerning this provision, has stated that it has only beenused with regard to Latin America, and interprets its applicabilityas being limited to noncombatant advisers. However, the language ofSection 712 is wide open to other interpretations. It could be con-strued as a way of extending considerable military assistance to anyforeign 'country. Since Congress has delegated this power, argumentscould be made against the need for further congressional concurrencein a time of national emergency.The repeal of almost all of the Emergency Detention Act of 1950was a constructive and necessary step, but the following provisionremains:

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 militaryarea or military zone prescribed under the authority of anExecutive order of the President, by the Secretary of theArmy, or by any military commander designated by the Sec-retary of 'the Army, shall, if it appears that he knew or


30/50

should have known of the existence and extent of the restric-tions or order and that his act was in violation thereof, befined not more than $5,000 or imprisoned not more than oneyear, 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 inWorld War II. Although it seems to be cast as a permanent power, thelegislative history of the section shows that the statute was intendedas a World War II emergency power only, and was not to apply in"normal" peacetime circumstances. Two years ago, the EmergencyDetention Act was repealed, yet 18 U.S.C. 1383 has almost the sameeffect.Another pertinent question among many, that the Special Com-mittee's work has revealed, concerns the statutory authority for do-mestic surveillance by the FBI. According to some experts, the author-ity for domestic surveillance appears to be based upon an ExecutiveOrder issued by President Roosevelt during an emergency period. Ifit is correct that no firm statutory authority exists, then it is reason-able to suggest that the appropriate committees enact proper statutoryauthority for the FBI with adequate provision for oversight byCongress.What these examples suggest and what the magnitude of emergencypowers affirm is that most of these laws do not provide for con-gressional oversight or termination. There are two reasons which canbe adduced as to why this is so. First, few, if any, foresaw that thetemporary states of emergency declared in 1933, 1939, 1941, 1950, 1970,and 1971 would become what are now regarded collectively as virtuallypermanent states of emergency (the 1939 and 1941 emergencies wereterminated in 1952). Forty years can, in no way, be defined as a tem-porary emergency. Second, the various administrations who draftedthese laws for a variety of reasons were understandably not concernedabout providing for congressional review, oversight, or terminationof these delegated-powets which gave the President enormous powersand flexibility to use those powers.The intense anxiety and sense of crisis was contained in the rhetoricof Truman's 1950 proclamation:Whereas recent events in Korea and elsewhere constitute agrave threat to the peace of the world and imperil the effortsof this country and those of the United Nations to preventaggression and armed conflict; andWhereas world conquest by communist imperialism isthe goal of the forces of aggression that have been loosedupon the world; andWhereas, if the goal of communist imperialism were tobe achieved, the people of this country would no longer enjoythe full and rich life they have with God's help built forthemselves and their children; they would no longer enjoythe blessings of the freedom of worshipping as they severfillychoose, the freedom of reading and listening to what theychoose, the right of free speech, including the right to criti-cize their Government, the right to choose those who con-


31/50

duct their Government, the right to engage freely in collec-tive bargaining, the right to engage freely in their own busi-ness enterprises, and the many other freedoms and rightswhich are a part of our way of life; andWhereas, the increasing menace of the forces of communistaggression requires that the national defense of the UnitedStates be strengthened as speedily as possible:Now, therefore, I, Harry S. Truman, President of theUnited States of America, do proclaim the existence of a na-tional emergency, which requires that the military, naval,air, and civilian defenses of this country be strengthened asspeedily as possible to the end that we may be able to repelany and all threats against our national security and to ful-fill our responsibilities in the efforts being made through theUnited Nations and otherwise to bring about lasting peace.I summon all citizens to make a united effort for the se-curity and well-being of our beloved country and to place itsneeds foremost in thought and action that the full moral andmaterial strength of the Nation may be readied for the dan-gers which threaten us.I summon our farmers, our workers in industry, and ourbusinessmen to make a mighty production effort to meet thedefense requirements of the Nation and to this end to elimi-nate all waste and inefficiency and to subordinate all lesserinterests to the common good.I summon every person and every community to make,with a spirit of neighborliness, whatever sacrifices are neces-sary for the welfare of the Nation.I summon all State and local leaders and officials to coop-erate fully with the military and civilian defense agenciesof the United States in the national defense program.I summon all citizens to be loyal to the principles uponwhich our Nation is founded, to keep faith with our friendsand allies, and to be firm in our devotion to the peaceful pur-poses for which the United Nations was founded.I am confident that we will meet the dangers that confrontus with courage and determination, strong in the faith thatwe can thereby "secure the Blessings of Liberty to ourselvesand our Posterity"In witness whereof, I have hereunto se t my hand andcaused the Seal of the United States of America to be affixed.Done at the City of Washington this 16th day of December(10:20 a.n.) in the year of our Lord nineteen hundred andfifty, and of the Independence of the United States of Amer-ica the one hundred and seventy-fifth. H . T

By the President: DEANt AcryoSONtSecretary of State


32/50

The heightened sense of crisis of the cold war so evident in Truman'sproclamation has fortunately eased. The legislative shortcomingscontained in this body of laws can be corrected on the basis of rationalstudy and inquiry.In the view of the Special Committee, an emergency does not nowexist. Congress, therefore, should act in the near future to terminateofficially the states of national emergency now in effect..At he same time, the Special Committee is of the view that it isessential to provide the means for the Executive to act effectively inani emergency. It is reasonable to have a body of laws in readiness todelegate to the President extraordinary powers to use in times of realnational emergency. The portion of the concurring opinion given byJustice Jackson in the Youngstown Steel case with regard to emer-gency powers provides sound and pertinent guidelines for the main-tenance of such a body of emergency laws kept in readiness to be usedin times of extreme crisis. Justice Jackson, supporting the majorityopinion that the "President's power must stem either from an actof Congress or from the Constitution itself" wrote:

The appeal, however, that we declare the existence of in-lierent powers ex necessitate to meet an emergency asks us todo what many think would be wise, although it is somethingthe 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 emergencypowers would tend to kindle emergencies. Aside from suspen-sion of the privilege of the writ of habeas corpus in time ofrebellion or invasion, when the public safety may require it,they made no express provision for exercise of extraordinaryauthority because of a crisis. I do not think we rightfullymay so amend their work, and, if we could, I am not con-vinced it would be wise to do so, although many modern na-tions have forthrightly recognized that war and economiccrises may upset the normal balance between liberty and au-thority. Their experience with emergency powers may notbe irrelevant to the argument here that we should say thatthe Executive, of his own volition, can invest himself withundefined emergency powers.Germany, after the First World War, framed the WeimarConstitution, designed to secure her liberties in the Westerntradition. However, the President of the Republic, withoutconcurrence of the Reichstag, was empowered temporarily tosuspend any or all individual rights if public safety and orderwere seriously disturbed or endangered. This proved a temp-tation to every government, whatever its shade of opinion,and in 13 years suspension of rights was invoked on morethan 250 occasions. Finally, Hitler persuaded President VonHindenburg to suspend all such rights, and they were neverrestored.The French Republic provided for a very different kindof emergency government known as the 'state of seige."It differed from the German emergency dictatorship particu-larly in that emergency powers could not be assumed at will


33/50

by the Executive but could only be granted as a parliamen-tary measure. And it did not, as in Germany, result in a sus-pension or abrogation of law but was a legal institution gov-erned by special legal rules and terminable by parliamentaryauthority.Great Britain also has fought both World Wars under asort of temporary dictatorship created by legislation. As Par-liament is not bound by written constitutional limitations, itestablished a crisis government simply by delegation to itsMinisters of a larger measure than usual of its own unlimitedpower, which is exercised under its supervision by Ministerswhom it may dismiss. This has been called the "high-watermark in the voluntary surrender of liberty," but, as Churchillput it, "Parliament stands custodian of these surrendered lib-erties, and its most sacred duty will be to restore them in theirfullness when victory has crowned our exertions and ourperseverance." Thus, parliamentary controls made emergencypowers compatible with freedom.This contemporary foreign experience may be inconclu-sive as to the wisdom of lodging emergency powers some-where in a modern government. But it suggests that emer-gency powers are consistent with free government only whentheir control is lodged elsewhere than in the Executive whoexercises them. That is the safeguard that would be nullifiedby our adoption of the "inherent powers" formula. Nothing inmy experience convinces me that such risks are warranted byany real necessity, although such powers would, of course, bean executive convenience.In the practical working of our Government we alreadyhave evolved a technique within the framework of the Con-stitution by which normal executive powers may be consid-erably expanded to meet an emergency. Congress may andhas granted extraordinary authorities which lie dormant innormal times but may be called into play by the Executive inwar or upon proclamation of a national emergency. In 1939.upon congressional request, the Attorney General listednuinety-nine such separate statutory grants by Congress ofemergency or wartime executive powers. They were invokedfrom time to time as need appeared. Under this procedure weretain Government by law-special, temporary law, perhaps,but law nonetheless. The public may know the extent andlimitations of the powers that can be asserted, and personsaffected may be informed from the statute of their rights andduties.In view of the ease, expedition and safety with which Con-gress can grant and has granted large emergency powers,certainly ample to embrace this crisis, I am quite unimpressedwith the argument that we should affirm possession of themwithout statute. Such power either has no beginning or ithas no end. If it exists, it need submit to no legal restraint.I am not alarmed that it would plunge us straightway intodictatorship, but it is at least a step in that wrong direction.

24-509 0 - 73 - 3


34/50