Presidential Theory of the Commander-in-Chiefship in World War II—And Beyond
In his message to Congress of September 7, 1942, in which he demanded that Congress forthwith repeal certain provisions of the Emergency Price Control Act of the previous January 30th,146 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 inescapable 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.”147
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.148
Constitutional Status of Presidential Agencies.
The ques- tion 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 for the District of Columbia in Employers Group v. National War Labor Board,149 which was a suit to annul and enjoin a “directive order” of the War Labor Board. The Court refused the injunction on the ground that 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.”150 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.151
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.152 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 rely on the general principle of military necessity and the power of the Commander-in-Chief in wartime as authority for the relocations. But before any action of importance was taken under the order, Congress ratified and adopted it by the Act of March 21, 1942,153 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 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.”154 This question was answered in the affirmative, as was the similar question later raised by an exclusion order.155
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.156 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.”157 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 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 . . . .”158 In this field, too, Congress intervened by means of the War Labor Disputes Act of June 25, 1943,159 which, however, still left ample basis for presidential activity of a legislative character.160
Sanctions Implementing Presidential Directives.
To imple- ment 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.161
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, 1942.162 In Steuart & Bro. v. Bowles,163 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. Justice Douglas wrote for the Court: “[W]ithout rationing, the fuel tanks of a few would be full; the fuel 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 precious 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 times 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.”164 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.165
The Postwar Period.
The end of active hostilities did not ter- minate either the emergency or the Federal Government’s response to it. President Truman proclaimed the termination of hostilities on December 31, 1946,166 and, in July 1947, Congress enacted a joint resolution that repealed a great variety of wartime statutes and set termination dates for others.167 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.”168 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 1942169 and continued the military draft.170 With the outbreak of the Korean War, legislation was enacted establishing general presidential control over the economy again,171 and by executive order the President created agencies to exercise the power.172 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.,173 the Court held constitutional the new rent control law on the ground that cessation of hostilities did not end the government’s war power, but that the power continued to remedy the evil arising out of the emergency. Yet, Justice Douglas noted for the Court, “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.”174 Justice Jackson, though 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 “be scrutinized with care.”175 And, in Ludecke v. Watkins,176 four dissenting Justices were prepared to hold that the presumption in the statute under review of continued war with Germany was “a pure fiction” and not to be used.
But the postwar period 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.177 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.178
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, in whole or part, under the Trading with the Enemy Act,179 under-girded 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,180 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.181 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.182
- 56 Stat. 23 (1942).
- 88 CONG. 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, supra, 65–66.
- 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 106 (New York Univ.).
- 143 F.2d 145 (D.C. Cir. 1944).
- 143 F.2d at 149.
- E. Corwin, supra at 244, 245, 459.
- E.O. 9066, 7 FED. REG. 1407 (1942).
- 56 Stat. 173 (1942).
- Hirabayashi v. United States, 320 U.S. 81, 91–92 (1943).
- 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.Cal. 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. Pub. L. 100–383, 102 Stat. 903 (1988), 50 U.S.C. App. §§ 1989 et seq. Reparations were approved, and each living survivor of the internment was to be compensated in an amount roughly approximating $20,000.
- E.O. 8773, 6 Fed. Reg. 2777 (1941).
- E. CORWIN, TOTAL WAR AND THE CONSTITUTION 47–48 (1946).
- 7 Fed. Reg. 237 (1942).
- 57 Stat. 163 (1943).
- See Vanderbilt, War Powers and their Administration, in 1945 ANNUAL SURVEY OF AMERICAN LAW 254, 271–273 (N.Y. Univ.).
- E.O. 9370, 8 Fed. Reg. 11463 (1943).
- 56 Stat. 23 (1942).
- 322 U.S. 398 (1944).
- 322 U.S. at 405–06.
- E. Corwin, supra, at 249–250.
- Proc. 2714, 12 Fed. Reg. 1 (1947).
- S.J. Res. 123, 61 Stat. 449 (1947).
- Woods v. Cloyd W. Miller Co., 333 U.S. 138, 140 n.3 (1948).
- 61 Stat. 193 (1947).
- 62 Stat. 604 (1948).
- Defense Production Act of 1950, 64 Stat. 798.
- E.O. 10161, 15 Fed. Reg. 6105 (1950).
- 333 U.S. 138 (1948).
- 333 U.S. at 143–44.
- 333 U.S. at 146–47.
- 335 U.S. 160, 175 (1948).
- See A. KELLY & W. HARBISON, THE AMERICAN CONSTITUTION: ITS ORIGINS AND DEVELOPMENT, ch. 31 (4th ed. 1970).
- Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
- § 301(1), 55 Stat. 838, 839–840 (1941).
- 91 Stat. 1626, 50 U.S.C. §§ 1701–1706.
- 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. § 1701.
- Pub. L. 94–412, 90 Stat. 1255 (1976).