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the termination of hostilities on December 31, 1946,166 and, in July 1947, Congress enacted a joint resolution that repealed a great variety of wartime statutes and set termination dates for others.167 Signing the resolution, the President said that the emergencies declared in 1939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


Proc. 2714, 12 Fed. Reg. 1 (1947). back
S.J. Res. 123, 61 Stat. 449 (1947). back
Woods v. Cloyd W. Miller Co., 333 U.S. 138, 140 n.3 (1948). back
61 Stat. 193 (1947). back
62 Stat. 604 (1948). back
Defense Production Act of 1950, 64 Stat. 798. back
E.O. 10161, 15 Fed. Reg. 6105 (1950). back
333 U.S. 138 (1948). back
333 U.S. at 143–44. back
333 U.S. at 146–47. back
335 U.S. 160, 175 (1948). back
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). back
§ 301(1), 55 Stat. 838, 839–840 (1941). back
91 Stat. 1626, 50 U.S.C. §§ 17011706. back
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. back
Pub. L. 94–412, 90 Stat. 1255 (1976). back