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CRS Annotated Constitution

Article II -- Table of ContentsPrev | Next

Presidential Theory of the Commander–in–Chiefship in World War II—And Beyond

In his message of September 7, 1942, to Congress, in which he demanded that Congress forthwith repeal certain provisions of the Emergency Price Control Act of the previous January 30th,119 President Roosevelt formulated his conception of his powers as “Commander in Chief in wartime” as follows:

“I ask the Congress to take this action by the first of October. Inaction on your part by that date will leave me with an inescap[p.441]able responsibility to the people of this country to see to it that the war effort is no longer imperiled by threat of economic chaos.

“In the event that the Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act.

“At the same time that farm prices are stabilized, wages can and will be stabilized also. This I will do.

“The President has the powers, under the Constitution and under Congressional acts, to take measures necessary to avert a disaster which would interfere with the winning of the war.

“I have given the most thoughtful consideration to meeting this issue without further reference to the Congress. I have determined, however, on this vital matter to consult with the Congress. . . .

“The American people can be sure that I will use my powers with a full sense of my responsibility to the Constitution and to my country. The American people can also be sure that I shall not hesitate to use every power vested in me to accomplish the defeat of our enemies in any part of the world where our own safety demands such defeat.

“When the war is won, the powers under which I act automatically revert to the people—to whom they belong.”120

Presidential War Agencies.—While congressional compliance with the President’s demand rendered unnecessary an effort on his part to amend the Price Control Act, there were other matters as to which he repeatedly took action within the normal field of congressional powers, not only during the war, but in some instances prior to it. Thus, in exercising both the powers which he claimed as Commander–in–Chief and those which Congress conferred upon him to meet the emergency, Mr. Roosevelt employed new emergency agencies, created by himself and responsible directly to him, rather than the established departments or existing independent regulatory agencies.121

Constitutional Status of Presidential Agencies.—The question of the legal status of the presidential agencies was dealt with judicially but once. This was in the decision of the United States Court of Appeals of the District of Columbia in Employers Group v. National War Labor Board,122 which was a suit to annul and enjoin a “directive order” of the War Labor Board. The Court[p.442]refused the injunction on the ground that at the time when the directive was issued any action of the Board was “informatory,” “at most advisory.” In support of this view the Court quoted approvingly a statement by the chairman of the Board itself: “These orders are in reality mere declarations of the equities of each industrial dispute, as determined by a tripartite body in which industry, labor, and the public share equal responsibility; and the appeal of the Board is to the moral obligation of employers and workers to abide by the nonstrike, no–lock– out agreement and . . . to carry out the directives of the tribunal created under that agreement by the Commander in Chief.”123 Nor, the Court continued, had the later War Labor Disputes Act vested War Labor Board orders with any greater authority, with the result that they were still judicially unenforceable and unreviewable. Following this theory, the War Labor Board was not an office wielding power, but a purely advisory body, such as Presidents have frequently created in the past without the aid or consent of Congress. Congress itself, nevertheless, both in its appropriation acts and in other legislation, treated the presidential agencies as in all respects offices.124

Evacuation of the West Coast Japanese.—On February 19, 1942, President Roosevelt issued an executive order, “by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy,” providing, as a safeguard against subversion and sabotage, power for his military commanders to designate areas from which “any person” could be excluded or removed and to set up facilities for such persons elsewhere.125 Pursuant to this order, more than 112,000 residents of the Western States, all of Japanese descent and more than two out of every three of whom were natural–born citizens, were removed from their homes and herded into temporary camps and later into “relocation centers” in several States.

It was apparently the original intention of the Administration to rest its measures concerning this matter on the general principle of military necessity and the power of the Commander–in–Chief in wartime. But before any action of importance was taken under the order, Congress ratified and adopted it by the Act of March 21, 1942,126 by which it was made a misdemeanor to knowingly enter, remain in, or leave prescribed military areas contrary to the orders of the Secretary of War or of the commanding officer of the area. The cases which subsequently arose in consequence of the order[p.443]were decided under the order plus the Act. The question at issue, said Chief Justice Stone for the Court, “is not one of Congressional power to delegate to the President the promulgation of the Executive Order, but whether, acting in cooperation, Congress and the Executive have constitutional . . . [power] to impose the curfew restriction here complained of.”127 This question was answered in the affirmative, as was the similar question later raised by an exclusion order.128

Presidential Government of Labor Regulations.—The most important segment of the home front regulated by what were in effect presidential edicts was the field of labor relations. Exactly six months before Pearl Harbor, on June 7, 1941, Mr. Roosevelt, citing his proclamation thirteen days earlier of an unlimited national emergency, issued an Executive Order seizing the North American Aviation Plant at Inglewood, California, where, on account of a strike, production was at a standstill.129 Attorney General Jackson justified the seizure as growing out of the “duty constitutionally and inherently rested upon the President to exert his civil and military as well as his moral authority to keep the defense efforts of the United States a going concern,” as well as “to obtain supplies for which Congress has appropriated the money, and which it has directed the President to obtain.”130 Other seizures followed, and on January 12, 1942, Mr. Roosevelt, by Executive Order 9017, created the National War Labor Board. “Whereas,” the order read in part, “by reason of the state of war declared to exist by joint resolutions of Congress, . . . the national interest demands that there shall be no interruption of any work which contributes to the effective prosecution of the war; and Whereas as a result of a conference of representatives of labor and industry which met at the call of the President on December 17, 1941, it has been agreed that for the duration of the war there shall be no strikes or lockouts, and that all labor disputes shall be settled by peaceful means, and[p.444]that a National War Labor Board be established for a peaceful adjustment of such disputes. Now, therefore, by virtue of the authority vested in me by the Constitution and the statutes of the United States, it is hereby ordered: 1. There is hereby created in the Office for Emergency Management a National War Labor Board. . . .”131 In this field, too, Congress intervened by means of the War Labor Disputes Act of June 25, 1943,132 which, however, still left ample basis for presidential activity of a legislative character.133

Sanctions Implementing Presidential Directives.—To implement his directives as Commander–in–Chief in wartime, and especially those which he issued in governing labor disputes, President Roosevelt often resorted to “sanctions,” which may be described as penalties lacking statutory authorization. Ultimately, the President sought to put sanctions in this field on a systematic basis. The order empowered the Director of Economic Stabilization, on receiving a report from the National War Labor Board that someone was not complying with its orders, to issue “directives” to the appropriate department or agency requiring that privileges, benefits, rights, or preferences enjoyed by the noncomplying party be withdrawn.134

Sanctions were also occasionally employed by statutory agencies, such as OPA, to supplement the penal provisions of the Emergency Price Control Act of January 30, 1942.135 In the case of Steuart & Bro. v. Bowles,136 the Supreme Court had the opportunity to regularize this type of executive emergency legislation. Here, a retail dealer in fuel oil was charged with having violated a rationing order of OPA by obtaining large quantities of oil from its supplier without surrendering ration coupons, by delivering many thousands of gallons of fuel oil without requiring ration coupons, and so on, and was prohibited by the agency from receiving oil for resale or transfer for the ensuing year. The offender conceded the validity of the rationing order in support of which the suspension order was issued but challenged the validity of the latter as imposing a penalty that Congress had not enacted and asked the district court to enjoin it.

The court refused to do so and was sustained by the Supreme Court in its position. Said Justice Douglas, speaking for the Court: “Without rationing, the fuel tanks of a few would be full; the fuel[p.445]tanks of many would be empty. Some localities would have plenty; communities less favorably situated would suffer. Allocation or rationing is designed to eliminate such inequalities and to treat all alike who are similarly situated. . . . But middlemen—wholesalers and retailers—bent on defying the rationing system could raise havoc with it. . . . These middlemen are the chief if not the only conduits between the source of limited supplies and the consumers. From the viewpoint of a rationing system a middleman who distributes the product in violation and disregard of the prescribed quotas is an inefficient and wasteful conduit. . . . Certainly we could not say that the President would lack the power under this Act to take away from a wasteful factory and route to an efficient one a previous supply of material needed for the manufacture of articles of war. . . . From the point of view of the factory owner from whom the materials were diverted the action would be harsh. . . . But in time of war the national interest cannot wait on individual claims to preference. Yet if the President has the power to channel raw materials into the most efficient industrial units and thus save scarce materials from wastage it is difficult to see why the same principle is not applicable to the distribution of fuel oil.”137 Sanctions were, therefore, constitutional when the deprivations they wrought were a reasonably implied amplification of the substantive power which they supported and were directly conservative of the interests which this power was created to protect and advance. It is certain, however, that sanctions not uncommonly exceeded this pattern.138


Footnotes

119 56 Stat. 23 (1942).
120 88 Rec.7044 (1942). Congress promptly complied, 56 Stat. 765 (1942), so that the President was not required to act on his own. But see E. Corwin, op. cit., n.44, 65–66.
121 For a listing of the agencies and an account of their creation to the close of 1942, see Vanderbilt, War Powers and Their Administration, in 1942 Annual Survey of American Law (New York Univ.), 106.
122 143 F.2d 145 (D.C.Cir. 1944).
123 Id., 149.
124 E. Corwin, op. cit., n.42, 244, 245, 459.
125 E.O. 9066, 7 Reg.1407 (1942).
126 56 Stat. 173 (1942).
127 Hirabayashi v. United States, 320 U.S. 81, 91–92 (1943).
128 Korematsu v. United States, 323 U.S. 214 (1944). Long afterward, in 1984, a federal court granted a writ of coram nobis and overturned Korematsu’s conviction, Korematsu v. United States, 584 F.Supp. 1406 (N.D.Calif. 1984), and in 1986, a federal court vacated Hirabayashi’s conviction for failing to register for evacuation but let stand the conviction for curfew violations. Hirabayashi v. United States, 627 F.Supp. 1445 (W.D.Wash. 1986). Other cases were pending, but Congress then implemented the recommendations of the Commission on Wartime Relocation and Internment of Civilians by acknowledging “the fundamental injustice of the evacuation, relocation and internment,” and apologizing on behalf of the people of the United States. P. L. 100– 383, 102 Stat. 903, 50 U.S.C. App. Sec. 1989 et seq. Reparations were approved, and each living survivor of the internment was to be compensated in an amount roughly approximating $20,000.
129 E.O. 8773, 6 Reg.2777 (1941).
130 E. Corwin, Total War and the Constitution (New York: 1946), 47–48.
131 7 Reg.237 (1942).
132 57 Stat. 163 (1943).
133 See Vanderbilt, War Powers and their Administration, 1945 Annual Survey of American Law (N.Y. Univ.), 254, 271–273.
134 E.O. 9370, 8 Reg.11463 (1943).
135 56 Stat. 23 (1942).
136 322 U.S. 398 (1944).
137 Id., 404–405.
138 E. Corwin, op. cit., n.44, 249–250.
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