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1973

On Emergency Powers of the President: Every Incha King?Gerhard Casper

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Recommended CitationGerhard Casper, "On Emergency Powers of the President: Every Inch a King?," University of Chicago Law Occasional Paper, No. 6(1973).

OCCASIONAL PAPERS

FROM THE LAW SCHOOL

THE UNIVERSITY OF CHICAGO

NO. 6

1973

Occasional Papersfrom

THE LAW SCHOOLTHE UNIVERSITY OF CHICAGO

On Emergency Powersof the President:

Every Inch a King?

By GERHARD CASPER

@Copyright 1973 Univeisity of Chicago Law School

On Emergency Powersof the President:

Every Inch a King?

By GERHARD CASPER

On Emergency Powersof the President:Every Inch a King?

By Gerhard Casper*

I am grateful to the Committee for providingme with this opportunity to testify on the im-portant subject which is the concern of the Com-mittee. I shall discuss the emergency powers ofthe executive, first by analyzing the constitutionalframework, and then by raising some even largerhistorical and political questions.

L

While the constitutions of other democracies,for instance France and Germany, include moreor less elaborate rules for institutional adjust-ments to be made during emergencies (like trans-fer of legislative powers to the executive or aparliamentary committee), the United StatesConstitution does not provide for suspendingthe basic and ordinary distribution and separa-tion of powers in times of emergency. This isnot to say that the Constitution is void of anyrules for extraordinary situations, but rather thatthese rules are narrow in scope.

In view of the attitudes prevailing at the Con-stitutional Convention, it should come as no sur.prise that no drastic structural changes for copingwith national emergencies were contemplated.To confer upon the President extraordinary con-stitutional authority to deal independently withemergencies, would have only further heightenedthe widespread fear that the Presidency mightbe turned into a temporary monarchy or mightfall into the hands of a Cataline or Cromwell,

*This paper Is based upon the statement by Gerhard Casper.Professor of Law and Political Science, The University of Chi.cago, before the United States Senate's Special Committee onThe Termination of the National Emergency, April I, 1973.

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and would have jeopardized its adoption. AsFranklin said when speaking against an absolutenegative for the executive: "The first man putat the helm will be a good one. Nobody knowswhat sort may come afterwards. The executivewill always be increasing here, till it ends in aMonarchy." [Madison, Notes of Debates in theFederal Convention of 1787, 66 (Norton Library1969)]. Corwin's assertion that "the Presidencywas designed in great measure to reproduce themonarchy of George III with the corruption leftout," can claim to be no more than a clever re-sponse to Sir Henry Maine's dictum, that "theAmerican constitution is the British constitutionwith the monarchy left out." [Corwin, The Pres-ident: Office and Powers 14, 4th ed. (1957)].

As concerns the most dangerous of all emer-gencies: war, the Constitutional Conventiongave the executive the power to repel suddenattacks but left declarations of war to Congress.[Madison, supra at 476]. The problem with thewar powers of the Confederation, after all, hadnot been the fact that they were vested in theContinental Congress, but that they were insuffi-cient vis-a-vis the states. In addition to the quotasystem of financial contributions, the Confedera-tion depended on quota requisitions of man-power. These were the deficiencies the newconstitution was primarily designed to resolve.Otherwise, we do well to remember that the Warof Independence was carried to its successful endby the Congress itself. [On the prevailing viewsabout the weaknesses of the Confederation, cf.Wood, The Creation of the American Republic1776-1787, 471ff (1969)].

On the same day on which the Conventiondiscussed the war power, August 16, 1787, italso dealt with the internal emergency of re-bellions within a state. Governeur Morris, other-wise a friend of a strong executive, argued againsthampering the general government by not per-mitting it to intervene without application by astate legislature: "We are acting a very strangepart. We first form a strong man to protect us,and at the same time wish to tie his hands be-

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hind him. The legislature may surely be trustedwith such a power to preserve the public tran-quility." [Madison, supra at 475]. In context,"strong man" meant the general governmentand "legislature" the national legislature.

Given the fact that the United States Consti-tution has been interpreted by almost all an-alysts, American and foreign, as an extremelycarefully engineered document, characterized bya sustained sombreness of mood, anticipating"little good, but mainly evil: war, universalcorruption, public insolence and insubordina-tion," Uacobson, Political Science and PoliticalEducation, 57 The American Political ScienceReview 561, 562 (1963)] the refusal to arrangefor institutional changes during emergencies ex-presses the confidence of the Founding Fathersthat the ordinary institutions were so designedas to be capable of coping with extraordinaryevents. After all, their system of government, asThe Federalist amply demonstrates, was based onthe "scientific" insight that "power controled orabridged is almost always the rival and enemy ofthat power by which it is controled or abridged."[Hamilton, Federalist No. 15]. Checks wereheaped upon checks so that the love for powercould be harnessed.' In the decade following theWar of Independence, distrust of power seemsto have been the most widespread sentimentamong Americans.

What are those constitutional provisions whichmay be considered to have a bearing on thequestion of emergency powers? Article I Section8 gives the Congress the power

To declare War ... ;To raise and support Armies, but no Appropri-ation of Money to that use shall be for a longerterm than two years;To provide and maintain a Navy;To make Rules for the Government and Regu-lation of the land and naval Forces;To provide for calling forth the Militia to exe-cute the Laws of the Union, suppress Insurrec-tions and repel Invasions;To provide for organizing, arming, and disci-plining the Militia...

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Section 9 of the same Article prohibits suspen-sion of the privilege of the writ of habeas corpus,"unless when in Case of Rebellion or Invasionthe public Safety may require it."

Unless the grant of the executive power per seis seen as giving the President emergency powers,a queer interpretation in light of the Conven-tion's detailed delegation of powers and especiallyin light of the "necessary and proper clause,"Article II which deals with the Presidency hasonly two relevant provisions.* Section 2 makesthe President "Commander in Chief of the Armyand Navy of the United States and of the Militiaof the several States, when called into the actualService of the United States." Section 3 em-powers the President to convene both Housesor either of them "on extraordinary occasions."

Finally, Section 4 of Article IV, the articlewhich regulates certain aspects of federalism,provides:

The United States shall guarantee to everyState in this Union a Republican Form ofGovernment, and shall protect each of themagainst Invasion; and on Application of theLegislature, or of the Executive (when theLegislature cannot be convened) against do-mestic Violence.

*Almost all the considerable substantive powers of the modernpresidency have been conferred upon that office by Congressionallegislation. The Constitution itself carefully enumerates (andthus limits) Presidential powers. An analysis of the Constitutionyields something like the following list.

I. Legislative process(1) "power" (duty) to Inform the Congress about the state

of the union and to make recommendations;(2) power to convene both Houses of Congress, or either of

them, on extraordinary occasions;(3) power to adjourn Congress In case of disagreement

between the Houses:(4) Veto power:(5) "power" (duty) to execute the laws (this Includes dele-

gated rule-making powers).II. "Foreign Affairs" powers

(1) power to make treaties by and with the consent andadvice of two-thirds of the Senate;

(2) power to receive envoys;(3) power to appoint envoys, subject to Senate confirmation.

III. Power as Commander-In-Chief, including the power to re-pel sudden attacks on the United States or its armed forces.

IV. Sundry powers(1) power to receive advice from department heads;(2) power of pardon;(3) power of appointments, subject to constraints listed in

Article II, Section 2.

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Beyond these specific provisions, Congress may,of course, in the exercise of its power to make allnecessary and proper laws for executing powersvested in the Government of the United States,authorize the President to take certain measuresin specified emergencies. Since the Constitutionnowhere gives the President either the power todeclare a national emergency or to legislate in-dependently of Congress, such declarations mustgenerally be based on Congressional delegation,subject to the restrictions which limit delegationof powers.

The only exception to this rule involves thePresident's power to repel sudden attacks on theUnited States (and its armed forces stationedabroad) which surely includes the power to takeemergency action. But since the ultimate warpower is in the hands of the Congress, the scopeof the President's power in this area is uncertain:it falls into what Justice Jackson has called "azone of twilight." [Youngstown Sheet & TubeCo. v. Sawyer, 348 U.S. 579, 687 (Jackson concur-ring) (1952)]. Not as a matter of constitutionallaw, but as a factual matter, public confusionabout the borders of this zone has been con-siderably increased due to the inertia of Congresswith respect to the Korean and Vietnam enter-prises.

What is reasonably clear, however, is that thePresident's portion of the so-called "foreign af-fairs power" does not give him any special emer-gency power outside the framework of Congres-sional delegation. It is important to rememberthat foreign affairs is not an exclusive domainof the President. More importantly, power overforeign affairs does not give the President addedpower over internal, including economic affairs.[343 U.S. 579, 644]. United States v. Curtiss-Wright is not a case to the contrary, since theCourt limited it to its facts which involved "asituation entirely external to the United States."[United States v. Curtiss-Wright Export Corp.,299 U.S. 304, 315 (1936)]. Justice Sutherland'sextravagant dicta in that case about "the verydelicate, plenary and exclusive power of the Pres-

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ident as the sole organ of the federal governmentin the field of international relations" [299 U.S.304, 320] are irrelevant, precisely because theyare dicta. The President in that case had actedin accordance with a very specific and narrowJoint Resolution of Congress which would meetanybody's standards for delegation of powers.

There must be grave doubts, for example,about the constitutionality of the surcharge im-posed by President Nixon on August 15, 1971and apparently justified by his declaration of anational emergency, since in that situation statu-tory authority was insufficient. [Pres. Proclama-tion No. 4074, 36 Fed. Reg. 15,724 (1971)]. ThePresident has no constitutional authority to en-gage in regulation of the economy by mere in-cantation of the word "emergency." [Comment,The United States Response to Common MarketTrade Preferences and the Legality of the Im-port Surcharge, 39 The University of ChicagoLaw Review 177, 234 (1971)]. Here, as elsewhere,the Congress, of course, bears responsibility. Sinceit generally applauded the measures of August 15,1971, it apparently considered itself relieved ofinstitutional constraints. In the end, the Con-gress neither ratified nor removed the surcharge.The President did so when he thought it hadaccomplished its goal.

Whatever emergency powers are to be giventhe President by the Congress ought to be cir-cumscribed as to the specific circumstances inwhich they may be invoked, must include stand-ards for their exercise and must, in any event,never amount to transfer of legislative powers tothe executive or to abdication on the part of theCongress. [Schechter Poultry Corp. v. UnitedStates, 295 U.S. 495, 529 (1935)]. This principledoes not exclude delegation of somewhat broaderrule-making powers for and during emergenciesthan would be permitted under delegation ofpowers standards for ordinary times. As JusticeJackson wrote in the Steel Seizure Cases:

In the practical working of Government, wealready have evolved a technique within theframework of the Constitution by which nor-

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mal executive powers may be considerably ex-panded to meet an emergency. Congress mayand has granted extraordinary authoritieswhich lie dormant in normal times but maybe called into play by the Executive in war orupon proclamation of a national emergency.[343 U.S. 579, 652].The most important conclusion to follow from

the prohibition of transfer of legislative powersand abdication is that it is generally the obliga-tion of Congress to determine when an emergencybegins and when it ends. While fixing the be-ginning may be very difficult since abstract lan-guage has to be used to define future events neverexactly foreseeable, determination of the end ofan emergency is considerably less difficult sincethe Congress will have or should have all thenecessary information.

The point of the matter is that it would beunrealistic not to view rule-making powers ofthe President during emergencies as essentiallylegislative in nature. Delegation under these cir-cumstances will give the President not just dis-cretion as to details, but often will be open-endedas to content and scope of the authorization. Tomake this state of affairs constitutionally proper,it has to be put under severe constraints in termsof Congressional oversight and termination. Ifthis argument has any power, those laws presentlyon the books must be considered unconstitutionalwhich give the executive extraordinary powerswithout providing for termination of a Presiden-tially invoked emergency. They constitute anunchecked transfer of legislative powers.

It does not take any particular legal sensitivityto find it shocking that as late as 1970, a UnitedStates Court of Appeals upheld the Cuban AssetsControl Regulations on the authority of theKorean Emergency. [Nielsen v. Secretary of theTreasury, 424 F.2d 833 (1970). See also Sardinov. Federal Reserve Bank of New York, 361 F.2d106 (1966)]. How can the Congress expect a cit-izen to abide by principles of law and order, ifhe is called upon to obey regulations which byno stretch of the imagination can be related tothe state of affairs which allegedly justifies them.

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This surrealistic nightmare (has the Great De-pression emergency ended?) is also extremely badpolitics, since the only way a citizen can be ex-pected to cope with appeals for extraordinarysacrifices which are normally associated withemergency proclamations is not to take them tooseriously. Public rhetoric suffers anyway frominflation.

Constitutional and orderly lawmaking callsfor no less than restricting to an absolute min-imum those laws which confer emergency powerson the President. But more importantly, it ismandatory for the Congress to provide regularreview for all emergencies which have been in-voked. To force the Congress to do so, no emer-gency authority should be permitted to continuebeyond a fixed time span (for instance, sixmonths), unless re-enacted by the Congress. Aprinciple which would continue an emergencyunless ended by the Congress after mandatoryreview will probably not do constitutionally, be-cause our experience with the inertia of Congresshas shown Congressional veto to be futile as wellas unconstitutional. Inaction on the part of theCongress can be as unconstitutional as action.In short, it is not only the legislative prerogativeof the Congress, but it is its duty tightly to con-trol emergencies. Otherwise, this could truly be-come a "garrison state."

Challenged to define "emergency" one feels in-clined to answer: "An emergency is an emergency,is an emergency.. ." To define emergencies in dic-tionary terms ("an unforeseen combination of cir-cumstances or the resulting state that calls forimmediate action") is not exactly helpful either.Attempts to give meaning to the concept of emer-gency by providing examples (war, insurrection)simply tend to shift the definitional burden.These conceptual difficulties point to the natureof the problem: whether a state of affairs maybe designated an emergency and thus bring ex-traordinary powers of government into play, isa question of context evaluation and judgment.Under the American system of government, judg-ments of this nature, i.e., judgments with far-

10

reaching consequences for rights and obligations,are committed to the Congress. I am thereforeof the opinion that the President alone cannot-as a rule and with the previously noted excep.tion of his right to repel sudden attacks-declarea state of emergency. There may be extremelyrare situations where the President may considerit his responsibility to invoke emergency powersand only subsequently ask the Congress for rati-fication. One should perhaps conceptualize suchemergencies as "extraordinary" even by compar-ison with other emergencies. For instance, I donot believe that the so-called "balance of pay-ments" emergency was of such a nature.

Congressional emergency legislation, as I en-visage it, falls into three different categories. (1)Substantive legislation: this is legislation of thetype which says, that in case of a Congressionallydeclared emergency the President may do suchand such. Present legislation and future pro-posals of this nature should be carefully reviewedfor their constitutionality in terms of delegationof powers and restrictions of individual rights.(2) The second category I shall call, for lack of abetter term, "invocation" legislation: Congress,through legislation or joint resolution, in aspecific instance invokes emergency powers. Invo-cation legislation would list in detail those stat-utes which the emergency brings into operation.(5) The last category I shall call "framework"legislation: this is legislation of the type con-templated by the Special Committee. It spellsout that "invocation" is principally a functionof Congress. It would require that in the raresituations where the President has the authorityto declare an emergency, he has to seek Con-gressional ratification (within 30 or 60 days). Itwould further provide that a state of emergencymust not last longer than six months unless re-newed by the Congress.

Given the highly technical nature of law andits language, comparison to laws of foreign na-

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tions is perhaps the most inexact of all socialsciences. The opportunities for error due tofailure to appreciate fully foreign legal intri-cacies and political traditions are virtually end-less. Nevertheless, some comparison with emer-gency powers under the Weimar Constitutionmay be in order. I do not offer this comparisonin order to argue that Weimar ended in a dic-tatorship because of excessive Presidential emer-gency powers. It would be foolish to make thatargument, for such argument must disregardtoo many other explanatory variables, though Ihasten to say that some causal relationship didexist. Instead, I indulge such comparison onlywith reference to the relatively narrow pointabout legislative passivity that I just made. Un-der Art. 48 of the Weimar Constitution, thePresident had the authority to take emergencymeasures when public safety and order were en-dangered. What Constitutional lawyers of theWeimar era called with admirable frankness,"the dictatorial powers" of the President, wereinvoked approximately 136 times between 1919and 1925. Due to the improvement of economicand political conditions in the mid-1920s, theauthority was not utilized for about five years.Beginning in July 1930 and through March 1932,another 61 Presidential orders were promulgatedunder Art. 48. [The figures are taken from An-schiitz, Die Verfassung des Deutschen Reiches279-80 (1933)]. As a safeguard, that Article re-quired the President to report all such measureswithout delay to the Reichstag and to repealthem if the Reichstag so demanded. Between1919 and 1932, this happened exactly three times.(Anschittz, supra at 294]. Parliament was muchtoo confused, split, and passive to counter vig-orous Presidents who claimed to act accordingto the mandate they held on account of popularelection. Furthermore, as Holborn has argued,the use of Art. 48 encouraged the political par-ties "to believe that they could shun unpleasantlegislative responsibilities, because there existedanother power capable of sustaining the govern-ment." (Holborn, A History of Modern Germany

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1840-1945, 546 (1969)). One should add that inthe end, the "other power" also proved itself tobe capable of delivering the republic into thehands of its enemy.

If anything is to be learned from Americanhistory, and from foreign experience, it is, ofcourse, that no amount of constitutional lawwill help unless the Congress pulls itself togetherand jealously and responsibly guards its legis-lative prerogative. Again, this point has beenmade most persuasively by Mr. Justice Jacksonin his Steel Seizure concurrence:

But I have no illusion that any decision bythis Court can keep power in the hands ofCongress if it is not wise and timely in meetingits problems. A crisis that challenges the Presi-dent equally, or perhaps primarily, challengesCongress. If not good law, there was wordlywisdom in the maxim attributed to Napoleonthat "The tools belong to the man who canuse them." We may say that power to legis-late for emergencies belongs in the hands ofCongress, but only Congress itself can preventpower from slipping through its fingers. [343U.S. 579, 654].

Unfortunately, Jackson's pessimism has provedto be amply justified in the few years which havepassed since the only major Supreme Court de-cision on the subject matter.

I turn to somewhat more speculative matters.It is, of course, often argued that Congress cannotwield emergency tools because it is institutionallyincapable of doing so. This argument comes intwo varieties: an absolute one, and a relativeone. The absolute version is clearly not war-ranted in light of the constitutional history ofthe country. In addition to the above mentionedexample of the War of Independence, we woulddo well to remember that following Lincoln'sassassination, almost the entire burden of dealingwith emergency conditions prevailing after theCivil War fell on the Congress. Congress, in par-ticular through the emergency ReconstructionActs of March 1867, by and large acquitted itselfrather admirably. Professor Fairman, one of ourleading constitutional historians on the period,has recently summarized the immensely difficult

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situation with which the Congress was faced inthe following words:

Congress must reckon with a President whohad met every critical measure with a veto, andwho, while adhering to his duty to enforce thestatutes, would yet give them the narrowestconstruction. The Court had not placed itsauthority behind the statutes: indeed it waswidely believed to stand ready to condemn theentire effort. State officers were not merelyevading federal laws by subterfuge: at criticaljunctures they proclaimed them to be uncon-stitutional and refused obedience. What Con-gress did in the prosecution of its effort to re-store the Union on the basis of the FourteenthAmendment is entitled to a far more discrim-inating consideration than it has generally re-ceived. [Fairman, History of the SupremeCourt of the United States: Reconstructionand Reunion, 1864-8B, Part One 342-43 (1971)].It goes without saying that there are many le-

gitimate criticisms of what the Congress did anddid not do during Reconstruction. Yet, anybodyfamiliar with the details of Reconstruction pol-itics must at least admit that the Congress didbetter than President Johnson. And what greateremergency than the Civil War and Reconstruc-tion with their tremendous dissension, dislo-cations and racial problems, has the United Statesseen? Though perhaps larger in operationalscope, World Wars I and II seem to pale by com-parison because in those instances the countrywas more or less united. The last example of"a house divided," the Vietnam War, is no glow-ing testimony to the inherent capacity of thePresidency effectively to resolve emergencies.

The relative variety of the incapacity argumentdoes not deny that the Congress may have beencapable of dealing with emergencies in an earlierage when everything, including emergencies, sup.posedly happened at a slower pace and matterscould be resolved with less of a bureaucratic in-frastructure. It holds that the world has becomeever so much more complex and ever so muchmore swiftly moving and that these externalitiesallegedly have diminished Congressional capacity.

First of all, it should be noted that some of

14

these developments, like the so-called communi-cations revolution, have benefitted the Congress.The President will find it much easier nowadaysto convene the Congress on "extraordinary oc-casions," if that becomes necessary, than in 1787.The fact is that the Congress is nowadays practi-cally in permanent session. Also, many of therecent emergencies, for instance the VietnamWar, did not exactly happen from one minute toanother. The balance of payments emergencywas in the making for many years. As concernsany need to respond swiftly to developments onforeign exchanges: does one really want to arguethat multinational corporations and oil sheikscan amend the United States Constitution?

It is quite true that the Congress does notpresently have the bureaucratic capacities thatmight be needed for careful evaluation of admin-istration policies. That deficiency, however, mostcertainly is remediable. In any event, the allegedlack of information and understanding on thepart of the Congress is largely of the Presidents'making. The executive concludes secret executiveagreements, invokes executive privilege for thevastly expanded White House bureaucracy, im-pounds funds from one day to another, and thenargues that the Congress would not know what todo in an emergency. However, Presidents areonly partially responsible for this state of affairs.If unfortunate and unwise, it is still natural thatthey show no excessive concern for keeping theCongress viable. Most of the responsibility forthe sad state of affairs lies with the Congress.While kings, even presidents, may abdicate, Con-gress has no constitutional right to do so. "Emer-gency powers" are among the most serious dan-gers to democracy. The duty of Congress to abatethe danger is clear. All that is doubtful is whetherthe members of Congress have the will to abidetheir constitutional oath of office.

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Editor: Frank L. Ellsworth

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No. 1. "A Comment on Separation of Power"Philip B. Kurland, November 1, 1971.

No. 2. "The Shortage of Natural Gas"Edmund W. Kitch, February 1, 1972.

No. 3. "The Prosaic Sources of PrisonViolence"

Hans W. Mattick, March 15, 1972.

No.4. "Conflicts of Interest in CorporateLaw Practice"

Stanley A. Kaplan, January 10, 1973.

No. 5. "Six Man Juries, Majority Verdicts-What Difference Do They Make?"

Hans Zeisel, March 15, 1973.

No. 6. "On Emergency Powers of thePresident: Every Inch a King?"

Gerhard Casper, May 31, 1973.

Additional copies may be obtainedfrom the Editor at 50g each.

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