The Constitution of the United States of America: Analysis and Interpretation Part 77

THE PRIZE CASES

The basis for a broader conception was laid in certain early acts of Congress authorizing the President to employ military force in the execution of the laws.[49] In his famous message to Congress of July 4, 1861,[50] Lincoln advanced the claim that the "war power" was his for the purpose of suppressing rebellion; and in the Prize Cases[51] of 1863, a sharply divided Court sustained this theory. The immediate issue of the case was the validity of the blockade which the President, following the attack on Fort Sumter, had proclaimed of the Southern ports.[52] The argument was advanced that a blockade to be valid must be an incident of a "public war" validly declared, and that only Congress could, by virtue of its power "to declare war," const.i.tutionally impart to a military situation this character and scope. Speaking for the majority of the Court, Justice Grier answered: "If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be '_unilateral_.' Lord Stowell (1 Dodson, 247) observes, 'It is not the less a war on _that account_, for war may exist without a declaration on either side. It is so laid down by the best writers on the law of nations. A declaration of war by one country only is not a mere challenge to be accepted or refused at pleasure by the other.' The battles of Palo Alto and Resaca de la Palma had been fought before the pa.s.sage of the act of Congress of May 13, 1846, which recognized '_a state of war as existing by the act of the Republic of Mexico_.' This act not only provided for the future prosecution of the war, but was itself a vindication and ratification of the Act of the President in accepting the challenge without a previous formal declaration of war by Congress. This greatest of civil wars was not gradually developed by popular commotion, tumultuous a.s.semblies, or local unorganized insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of _war_. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact. * * * Whether the President in fulfilling his duties, as Commander in Chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided _by him_, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. 'He must determine what degree of force the crisis demands.' The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circ.u.mstances peculiar to the case."[53]

IMPACT OF THE PRIZE CASES ON WORLD WARS I AND II

In brief, the powers claimable for the President under the Commander in Chief clause at a time of wide-spread insurrection were equated with his powers under the clause at a time when the United States is engaged in a formally declared foreign war; and--impliedly--vice versa. And since Lincoln performed various acts especially in the early months of the Civil War which, like increasing the Army and Navy, admittedly fell within the const.i.tutional province of Congress, it seems to have been a.s.sumed during World War I and World War II that the Commander in Chiefs.h.i.+p carries with it the power to exercise like powers practically at discretion; and not merely in wartime but even at a time when war becomes a strong possibility. Nor was any attention given the fact that Lincoln had asked Congress to ratify and confirm his acts, which Congress promptly did,[54] with the exception of his suspension of the _habeas corpus_ privilege which was regarded by many as attributable to the President in the situation then existing, by virtue of his duty to take care that the laws be faithfully executed.[55] Nor is this the only respect in which war or the approach of war operates to enlarge the scope of power which is claimable by the President as Commander in Chief in wartime.[56] For at such time the maxim that Congress may not delegate its powers is, by the doctrine of the Curtiss-Wright case,[57]

in a state of suspended animation.[58]

PRESIDENTIAL THEORY OF THE COMMANDER IN CHIEFs.h.i.+P IN WORLD WAR II

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,[59] the late 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 Const.i.tution 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 Const.i.tution 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."[60]

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. Oldest of all these Presidential agencies was the Office for Emergency Management (OEM), which was created by an executive order dated May 25, 1940. Others were the Board of Economic Warfare (BEW), the National Housing Agency (NHA), the National War Labor Board (NWLB), or more shortly (WLB), the Office of Censors.h.i.+p (OC), the Office of Civilian Defense (OCD), the Office of Defense Transportation (ODT), the Office of Facts and Figures (OFF), presently absorbed into the Office of War Information (OWI), the War Production Board (WPB), which superseded the earlier Office of Production Management (OPM), the War Manpower Commission (WMC), etc. Earlier there had been the Office of Price Administration and Civilian Supply (OPACS), but was replaced under the Emergency Price Control Act of January 30, 1942, by OPA. Later OWI was created by executive order, as was also the Office of Economic Stabilization (OES). The Office of War Mobilization and Reconversion (OWMR), one of the last of the war agencies to appear, was established by the War Mobilization and Reconversion Act of October 3, 1944.[61]

CONSt.i.tUTIONAL 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, in June 1944, of the United States Court of Appeals of the District of Columbia in a case styled Employers Group of Motor Freight Carriers _v._ National War Labor Board,[62] 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 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 tripart.i.te 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." Nor, the Court continued, had the later War Labor Disputes Act vested War Labor Board's orders with any greater authority, with the result that they were still judicially unenforceable and unreviewable. Following this theory, 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.[63]

THE WEST COAST j.a.pANESE

On February 19, 1942 the President issued an executive order the essential paragraphs of which read as follows:

"Whereas the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities * * *

"Now, therefore, by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion. The Secretary of War is hereby authorized to provide for residents of any such area who are excluded therefrom, such transportation, food, shelter, and other accommodations as may be necessary, in the judgment of the Secretary of War or the said Military Commander, and until other arrangements are made, to accomplish the purpose of this order. * * *

"I hereby further authorize and direct all Executive Departments, independent establishments and other Federal Agencies, to a.s.sist the Secretary of War or the said Military Commanders in carrying out this Executive Order, including the furnis.h.i.+ng of medical aid, hospitalization, food, clothing, transportation, use of land, shelter, and other supplies, equipment, utilities, facilities and services."[64]

In pursuance of this order more than 112,000 j.a.panese residents of Western States, of whom nearly two out of every three were natural-born citizens of the United States, were eventually removed from their farms and homes and herded, first in temporary camps, later in ten so-called "relocation centers," situated in the desert country of California, Arizona, Idaho, Utah, Colorado, and Wyoming and in the delta areas of Arkansas.

The Act of March 21, 1942

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 Executive Order 9066, Congress ratified and adopted it by the act of March 21, 1942,[65] 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 const.i.tutional * * * [power] to impose the curfew restriction here complained of."[66] This question was answered in the affirmative, as was the similar question later raised by an exclusion order.[67]

PRESIDENTIAL GOVERNMENT OF LABOR RELATIONS

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. Attorney General Jackson justified the seizure as growing out of the "'duty const.i.tutionally 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."[68] 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 Const.i.tution 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, * * *"[69] In this field, too, Congress intervened by means of the War Labor Disputes Act of June 25, 1943,[70] which however still left ample basis for Presidential activity of a legislative character.[71]

"SANCTIONS"

To implement his directives as Commander in Chief in wartime, and especially those which he issued in governing labor relations, Mr.

Roosevelt often resorted to "sanctions," which may be described as penalties lacking statutory authorization. Ultimately, the President sought, by Executive Order 9370 of August 16, 1943, to put sanctions in this field on a systematic basis. This order read:

"(a) To other departments or agencies of the Government directing the taking of appropriate action relating to withholding or withdrawing from a noncomplying employer any priorities, benefits or privileges extended, or contracts entered into, by executive action of the Government, until the National War Labor Board has reported that compliance has been effectuated;

"(b) To any Government agency operating a plant, mine or facility, possession of which has been taken by the President under section 3 of the War Labor Disputes Act, directing such agency to apply to the National War Labor Board, under section 5 of said act, for an order withholding or withdrawing from a noncomplying labor union any benefits, privileges or rights accruing to it under the terms of conditions of employment in effect (whether by agreement between the parties or by order of the National War Labor Board, or both) when possession was taken, until such time as the noncomplying labor union has demonstrated to the satisfaction of the National War Labor Board its willingness and capacity to comply; but, when the check-off is denied, dues received from the check-off shall be held in escrow for the benefit of the union to be delivered to it upon compliance by it.

"(c) To the War Manpower Commission, in the case of noncomplying individuals, directing the entry of appropriate orders relating to the modification or cancellation of draft deferments or employment privileges, or both.

"Franklin D. Roosevelt.

"The White House, _Aug. 16, 1943._"[72]

CONSt.i.tUTIONAL BASIS OF SANCTIONS

Sanctions were also occasionally employed by statutory agencies, as by OPA, to supplement the penal provisions of the Emergency Price Control Act of January 30, 1942;[73] and in the case of Steuart and Bro., Inc.

_v._ Bowles,[74] the Supreme Court had the opportunity to attempt to regularize this type of executive emergency legislation. Here a retail dealer in fuel oil in the District of Columbia was charged with having violated a rationing order of OPA by obtaining large quant.i.ties 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 has 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 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 conduct. * * * 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 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."[75] Sanctions were, therefore, const.i.tutional 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.[76]

MARTIAL LAW AND CONSt.i.tUTIONAL LIMITATIONS

Two theories of martial law are reflected in decisions of the Supreme Court. By one, which stems from the Pet.i.tion of Right, 1628, the common law knows no such thing as martial law;[77] at any rate martial law is not established by official authority of any sort, but arises from the nature of things, being the law of paramount necessity, of which necessity the civil courts are the final judges.[78] By the other theory, martial law can be validly and const.i.tutionally established by supreme political authority in wartime. The latter theory is recognized by the Court in Luther _v._ Borden,[79] where it was held that the Rhode Island legislature had been within its rights in 1842 in resorting to the rights and usages of war in combating insurrection in that State.

The decision in the Prize Cases,[80] while not dealing directly with the subject of martial law, gave national scope to the same general principle in 1863. The Civil War being safely over, however, a sharply divided Court, in the elaborately argued Milligan case,[81] reverting to the older doctrine, p.r.o.nounced void President Lincoln's action, following his suspension of the writ of _habeas corpus_ in September, 1863, in ordering the trial by military commission of persons held in custody as "spies" and "abettors of the enemy." The salient pa.s.sage of the Court's opinion bearing on this point is the following: "If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, _then_, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a subst.i.tute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued _after_ the courts are reinstated, it is a gross usurpation of power.

Martial rule can never exist where the courts are open, and in proper and un.o.bstructed exercise of their jurisdiction. It is also confined to the locality of actual war."[82] Four Justices, speaking by Chief Justice Chase, while holding Milligan's trial to have been void because violative of the act of March 3, 1863 governing the custody and trial of persons who had been deprived of the _habeas corpus_ privilege, declared their belief that Congress could have authorized Milligan's trial. Said the Chief Justice: "Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as Commander in Chief. Both these powers are derived from the Const.i.tution, but neither is defined by that instrument. Their extent must be determined by their nature, and by the principles of our inst.i.tutions.

* * * We by no means a.s.sert that Congress can establish and apply the laws of war where no war has been declared or exists. Where peace exists the laws of peace must prevail. What we do maintain is, that when the nation is involved in war, and some portions of the country are invaded, and all are exposed to invasion, it is within the power of Congress to determine in what States or districts such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offences against the discipline or security of the army or against the public safety."[83] In short, only Congress can authorize the subst.i.tution of military tribunals for civil tribunals for the trial of offenses; and Congress can do so only in wartime.

MARTIAL LAW IN HAWAII

The question of the const.i.tutional status of martial law was raised in World War II by the proclamation of Governor Poindexter of Hawaii, on December 7, 1941, suspending the writ of _habeas corpus_ and conferring on the local commanding General of the Army all his own powers as governor and also "all of the powers normally exercised by the judicial officers * * * of this territory * * * during the present emergency and until the danger of invasion is removed." Two days later the Governor's action was approved by President Roosevelt. The regime which the proclamation set up continued with certain abatements until October 24, 1944.