CRS Annotated Constitution

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The Postwar Period.—The end of active hostilities did not terminate either the emergency or the federal–governmental response to it. President Truman proclaimed the termination of hostilities on December 31, 1946,139 and Congress enacted a joint resolution which repealed a great variety of wartime statutes and set termination dates for others in July, 1947.140 Signing the resolution, the President said that the emergencies declared in 1939 and 1940 continued to exist and that it was “not possible at this time to provide for terminating all war and emergency powers.”141 The hot war was giving way to the Cold War.

Congress thereafter enacted a new Housing and Rent Act to continue the controls begun in 1942 142 and continued the draft.143 [p.446]With the outbreak of the Korean War, legislation was enacted establishing general presidential control over the economy again144 and by executive order the President created agencies to exercise the power.145 The Court continued to assume the existence of a state of wartime emergency prior to Korea but with misgivings. In Woods v. Cloyd W. Miller Co.,146 the Court held constitutional the new rent control law on the ground that cessation of hostilities did not conclude the Government’s powers but that the power continued to remedy the evil arising out of the emergency. Yet for the Court, Justice Douglas noted: “We recognize the force of the argument that the effects of war under modern conditions may be felt in the economy for years and years, and that if the war power can be used in days of peace to treat all the wounds which war inflicts on our society, it may not only swallow up all other powers of Congress but largely obliterate the Ninth and Tenth Amendments as well. There are no such implications in today’s decision.”147 Justice Jackson, while concurring, noted that he found the war power “the most dangerous one to free government in the whole catalogue of powers” and cautioned that its exercise should “be scrutinized with care.”148 And in Ludecke v. Watkins,149 four Justices were prepared to hold that the presumption in the statute under review of continued war with Germany was fiction and not to be utilized.

But the postwar was a time of reaction against the wartime exercise of power by President Roosevelt, and President Truman was not permitted the same liberties. The Twenty–second Amendment writing into permanent law the two–term custom, the “Great Debate” about our participation in NATO, the attempt to limit the treaty–making power, and other actions, bespoke the reaction.150 The Supreme Court signalized this reaction when it struck down the President’s action in seizing the steel industry while it was struck during the Korean War.151

Nonetheless, the long period of the Cold War and of active hostilities in Korea and Indochina, in addition to the issue of the use of troops in the absence of congressional authorization, further created conditions for consolidation of powers in the President. In particular, a string of declarations of national emergencies, most[p.447]under, in whole or partially, the Trading with the Enemy Act,152 undergirded the exercise of much presidential power. In the storm of response to the Vietnamese conflict, here, too, Congress reasserted legislative power to curtail what it viewed as excessive executive power, repealing the Trading with the Enemy Act and enacting in its place the International Emergency Economic Powers Act (IEEPA),153 which did not alter most of the range of powers delegated to the President but which did change the scope of the power delegated to declare national emergencies.154 Congress also passed the National Emergencies Act, prescribing procedures for the declaration of national emergencies, for their termination, and for presidential reporting to Congress in connection with national emergencies. To end the practice of declaring national emergencies for an indefinite duration, Congress provided that any emergency not otherwise terminated would expire one year after its declaration unless the President published in the Federal Register and transmitted to Congress a notice that the emergency would continue in effect.155 Whether the balance of power between President and Congress shifted at all is not really a debatable question.

The Cold War and After: Presidential Power To Use Troops Overseas Without Congressional Authorization

Reaction after World War II did not persist, soon running its course, and the necessities, real and only perceived as such, of the United States role as world power and chief guarantor of the peace operated to expand the powers of the President and to diminish congressional powers in the foreign relations arena. President Truman did not seek congressional authorization before sending troops to Korea and subsequent Presidents similarly acted on their own in putting troops into many foreign countries, the Dominican Republic, Lebanon, Grenada, Panama, and the Persian Gulf, among them, as well as most notably into Indochina.156 Eventually, public opposition precipitated another constitutional debate whether the President had the authority to commit troops to foreign combat without the approval of Congress, a debate which went on inconclu[p.448]sively between Congress and Executive157 and one which the courts were content generally to consign to the exclusive consideration of those two bodies. The substance of the debate concerns many facets of the President’s powers and responsibilities—from his obligation to protect the lives and property of United States citizens abroad, to execute the treaty obligations of the Nation, to further the national security interests of the Nation, and to deal with aggression and threats of aggression as they confront him. Defying neat summarization, the considerations nevertheless merit at least an historical survey and an attempted categorization of the arguments.


139 Proc. 2714, 12 Reg.1 (1947).
140 S.J. Res. 123, 61 Stat. 449 (1947).
141 Woods v. Cloyd W. Miller Co., 333 U.S. 138, 140 n.3 (1948).
142 61 Stat. 193 (1947).
143 62 Stat. 604 (1948).
144 Defense Production Act of 1950, 64 Stat. 798 .
145 E.O. 10161, 15 Reg.6105 (1950).
146 333 U.S. 138 (1948).
147 Id., 143–144.
148 Id., 146–147.
149 335 U.S. 160 (1948).
150 See A. Kelly & W. Harbison, The American Constitution—Its Origins and Development (New York: 4th ed. 1970), ch. 31.
151 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
152 Sec. 301(1), 55 Stat. 838, 839 –840 (1941).
153 91 Stat. 1626 , 50 U.S.C. §§ 1701 –1706.
154 Congress authorized the declaration of a national emergency based only on “any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or the economy of the United States. . . .” 50 U.S.C. Sec. 1701 .
155 P. L. 94–412, 90 Stat. 1255 (1976).
156 See the discussion in National Commitments Resolution, Report of the Senate Committee on Foreign Relations, S. Rept. No. 91– 129, 91st Congress, 1st sess. (1969); U.S. Commitments to Foreign Powers, Hearings before the Senate Committee on Foreign Relations, 90th Congress, 1st sess. (1967), 16–19 (Professor Bartlett).
157 See under Article I, Sec. 8, cls. 11–14.
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