Secretary TOBIN. I agree.

Senator SMITH. We must keep Communist influence out of our labor organizations and out of our industries.

Secretary TOBIN. And out of our professional fields, out of every segment of our economy.

Senator DONNELL. Mr. Chairman, the bell having rung, I make a point of order. The Senate is in session.

I simply want to state for the benefit of the Secretary that I have been unable to complete my examination of him and I will have to ask that he return when our committee resumes its deliberations.

The CHAIRMAN. The Senate is now in session, so we will have to adjourn.

The rule made last night means that we will come back at 3 o'clock if the Senate has adjourned or gone into recess, and we will ask Secre tary Tobin to come. If we do not meet this afternoon, we will meet this evening at 7:30, and Senator Murray will be the chairman. We stand in recess.

(Whereupon, at 12: 05 p. m., a recess was taken.)

AFTERNOON SESSION

The CHAIRMAN. The committee will be in order.

Senator Morse wants to make a statement for the subcommittee handling the hearings.

Senator DONNELL. Will the Senator yield for a request for insertion, please?

Senator MORSE. Yes.

Senator DONNELL. At the conclusion of the analysis which I made this morning of the letter written by Frank Murphy, then Attorney General of the United States, I ask that there be inserted in the record a copy appearing at page 2643 of 45 U. S. Statutes at large, part 2 of the document entitled:

Proclaiming a national emergency in connection with the observance, safeguarding, and enforcement of neutrality and the strengthening of the national defense within the limits of peacetime authorizations.

This is a proclamation issued by Franklin D. Roosevelt under date. of September 8, 1939.

The CHAIRMAN. Senator Donnell merely wants the reference, does he not?

Senator DONNELL. I would like the proclamation copied. It is not very long and I would like to have that in at the conclusion of the discussion relative to Mr. Murphy's letter.

The CHAIRMAN. The reporter will please take care of it. (The document referred to above is as follows:)

PROCLAMATION, SEPTEMBER 8, 1939, PROCLAIMING A NATIONAL EMERGENCY IN CONNECTION WITH THE OBSERVANCE, SAFEGUARDING, AND ENFORCEMENT OF NEUTRALITY AND THE STRENGTHENING OF THE NATIONAL DEFENSE WITHIN THE LIMITS OF PEACETIME AUTHORIZATIONS BY THE PRESIDENT OF THE UNITED STATE OF AMERICA

A PROCLAMATION

Whereas a proclamation issued by me on September 5, 1939, proclaimed the neutrality of the United States in the war now unhappily existing between certain nations; and

Whereas this state of war imposes on the United States certain duties with respect to the proper observance, safeguarding, and enforcement of such neutrality, and the strengthening of the national defense within the limits of peacetime authorizations; and

Whereas measures required at this time call for the exercise of only a limited number of the powers granted in a national emergency;

NOW, THEERFORE, I, FRANKLIN D. ROOSEVELT, President of the United States of America, do proclaim that a national emergency exists in connection with and to the extent necessary for the proper observance, safeguarding, and enforcing of the neutrality of the United States and the strengthening of our national defense within the limits of peacetime authorizations. Specific directions and authorizations will be given from time to time for carrying out these two purposes.

IN WITNESS WHEREOF I have hereunto set my hand and caused the seal of the United States of America to be affixed.

DONE at the city of Washington this eighth day of September, in the year of our Lord nineteen hundred and thirty-nine and of the Independence of the United States of America the one hundred and sixty-fourth.

[SEAL]

FRANKLIN D. ROOSEVELT.

By the President:

CORDELL HULL,

Secretary of State.

(Pursuant to subsequent colloquy Senator Morse submitted the following memorandum :)

THE LIBRARY OF CONGRESS-LEGISLATIVE REFERENCE SERVICE

POWER OF PRESIDENT TO DECLARE AN EMERGENCY

An emergency does not create power (Home Owners Building and Loan Association v. Blaidsdell (1933) 290 U. S. 398). Nevertheless, an emergency may afford a reason for the exertion of a living power not already employed (Home Owners Building and Loan Association v. Blaisdell, supra; Wilson v. New (1917) 243 U. S. 332). Commentators seem agreed that the National Government has an inherent power to deal with national emergencies within, of course, constitutional limits (Hayes, Emergencies and the Power of the United States Government to Meet Them (1942) 16 Temple L. Q. 173; Corwin, The President; Offices and Powers (2d ed. 1941) 133). And this is borne out by the cases, Wilson v. New, supra; Block v. Hirsh ((1920) 256 U. S. 135); City of Cleveland v. U. S. ((1945) 323 U. S. 329).

The power of the President in relation to an emergency must be considered from two aspects. In the first, the power is delegated by a congressional enactment, leaving the President some discretion to act if the situation warrants. Throughout United States history a substantial number of such laws have been passed. See enumeration in Hayes, op. cit. supra. Under the principles already stated Congress clearly has the power, within the boundaries of its constitutional authority, to enact legislation of this sort and to delegate to the President the power to execute it (Corwin, op. cit. supra 133-135). In Hayes, op. cit. supra, 182, 183, the author states:

"The existence of certain emergency powers seems fairly well proved. The manner of their exercise is another matter. It must be plain that effective action in some crises cannot wait upon the delays of parliamentary procedure. That Congress has recognized this is shown by its passage of numerous laws, discussed in part I of this paper, which in effect give Congress' consent in advance to actions of the President in emergencies. This is obviously the only way in which Congress can exercise its legislative power and yet not inevitably hamstring the Government in critical times.

"There is thus clearly lodged in the United States Government a power to meet emergencies. The statutes which are cited above were passed with a view to the exercise of that power. They give the previous consent of Congress to executive acts in the event of emergency, whether that emergency be of economic origin, from a disaster, or from the threat of war. They cover a wide area of possible events. They furnish a pattern for the passage of other laws, if and when Deeded."

Particularly with respect to foreign affairs and the external interests of th. 4 country may Congress legislate and confer broad discretion upon the Presider? to act. As a government, the United States is "invested with all the attributes of sovereignty" and "it has the powers of nationality" (U. S. v. Curtiss-Wright Export Corp. (1936) 299 U. S. 304). Thus Congress may give the President authority to restrict by proclamation the export of arms to warring powers (V. S. v. Curtiss-Wright Export Corp., supra). In the Curtiss-Wright case, the Supreme Court made some significant observations. The Court said (pp. 311⁄2, 319-320, 321, 322):

"Not only as we have shown is the Federal power over external affairs in origin and essential character different from that over internal affairs, bur participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems the President alone has the power to speak or listen as a representative of the Nation. He makes treaties with the advice and consent of the Senate; br he alone negotiates. Into the field of negotiation the Senate cannot intrude ; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, The President the sole organ of the Nation in its external relations, and its sole representat ve with foreign nations.' Annals, Sixth Congress, column 613.

"It is important to bear in mind that we are here dealing not alone w** an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the Federal Government in the field of inter national relations-a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power must be exercised in subordination to the applicable provisions of the Constitution. It is quite apparent that if, in the maintenance of our international relations, embarrassment--perhaps serious embarrassment-is to be avoided and success for our aims achieved, congressional legislation which is to be me effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutore restriction which would not be admissible were domestic affairs alone involved Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results.

*

"When the President is to be authorized by legislation to act in respect of a matter intended to affect a situation in foreign territory, the legislator proper v bears in mind the important consideration that the form of the President's action- or, indeed, whether he shall act at all---may well depend, among other things, upon the nature of the confidential information which he has or may thereafter receive, or upon the effect which his action may have upon our foreig relations. This consideration, in connection with what we have already said on the subject, discloses the unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed.

"In the light of the foregoing observations, it is evident that this court should not be in haste to apply a general rule which will have the effect of condemnit 2 legislation like that under review as constituting an unlawful delegation of legs lative power. The principles which justify such legislation find overwhelming support in the unbroken legislative practice which has prevailed almost from the inception of the National Government to the present day."

The second aspect of Presidential power is presented when there is no legislation on the matter. The Constitution designates the President as the Commander v Chief of the Army and Navy (article H, section 2, clause 1); he has the executive power of government (article II, section 1, clause 1): he has the power, by and with the advice and consent of the Senate, to make treaties (article II, section 2 clause 2); he must preserve and protect and defend the Constitution (article II. section 1, clause 7); and he must take care that the laws be faithfully executed (article II, section 3).

These powers are most frequently alluded to whenever the President's power › deal with an emergency is discussed. It has been contended that they, plus a esidual power to protect the Union, justify and support the thesis that if an mergency is sufficiently pressing, the President may so declare and adopt emporary measures of his own to meet it. (Foley, Some Aspects of the Contitutional Powers of the President (1941) 27 A. B. A. J. 485; (Corwin, op. cit. upra 133, 135-136; Franklin, War Powers of the President (1942) 17 Tulane L. lev. 217; Morgan, President's Address (1941) 10 S. D. B. J. 119, 124–125). Whatever may be the true view with respect to domestic or economic emergenles, there would seem to be strong support for the proposition that with respect o the external affairs of the Nation, the President may recognize an emergency nd act accordingly. See Foley, op. cit. supra. for a number of historic instances where this has been done. As already noted, the President's power in the field of nternational relations is "plenary and exclusive" and does not require congresional sanction for its exercise. (U. S. v. Curtiss-Wright Export Corp. supra). When a crisis is such that war is imminent or threatened, the Executive may tet without waiting for congressional authorization. This was sustained in the Price cases (1863) 2 Black 635. See also discussion in Haves, op. cit. supra. Even when war is not imminent, it has been asserted that the President may act to protect American interests. (In Taft, The Boundaries Between the Executive, the Legislative and the Judicial Branches of the Government (1916) 25 Yale L. J. 599, 610, the then ex-President said):

"The President has the authority to protect the lives of American citizens and their property with the Army and Navy. This grows out of his control over our foreign relations and his duty to recognize as a binding law upon him the obligation of the Government to its own citizens." See also Foley, op. cit. supra.

Where the argument is made that Presidential activity in such cases infringes on individual rights or substitutes executive for judicial or legislative decision, the answer is that in the international field the President is the supreme organ of Government and to his discretion must be confided the power to act if the Nation is to be preserved. See Foley, op. cit. supra; Hayes, op. cit. supra; U. S. v. Curtiss-Wright Export Corp., supra. This was the view of Alexander Hamilton, who, in No. 70 of the Federalist, said:

"Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy."

And in Moyer v. Peabody (1909) (212 U. S. 78), Mr. Justice Holmes, in a case involving executive power-although not dealing with the President-stated what is probably a guiding principle for "emergency" situations: "When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of Executive process for judicial process." ROBERT S. OGLEBAY, Federal Law Section.

JUNE 27, 1947.

Senator MORSE. On behalf of the Republican side of the committee, I wish to make an announcement covering the selection of witnesses that will appear during the remaining days of the hearing, up until February 10.

I wish to say that we are receiving today, as was to be expected, a great many, shall I say, protests from people who asked to testify at this hearing, but who have not been placed on the witness list because of the limitations of time. The Republicans met at the close of the hearing yesterday afternoon and went over the list of people and organizations that had asked for the privilege of testifying before this committee.

We had to exercise our judgment-unquestionably it might be considered an arbitrary judgment to a certain extent, but an honest judg ment-as to whether or not the witnesses we selected would present a

fair cross section of points of view in opposition to the administration bill.

We found ourselves, Mr. Chairman, pretty much in the positionbeing placed there by our good friends on the other side of the tableof having the responsibility of passing judgment upon witnesses who wished to appear against the bill. As it is generally known, we are not of one mind, even on the Republican side, in regard to what legis lation should be passed. But the Democratic members of the committee advised us through their members on the subcommittee that they have selected all the witnesses they cared to offer in support of the bill and turned over to us the large list of witnesses that wished to appear against the bill.

I want to say for the record that we were unanimous on the Republican side in reaching every decision that was reached concerning who should be invited to appear and who should be required to file statements. We know that we have left off the list of witnesses many. many people and organizations which in our opinion should be granted the time to testify, but which under the limitations of time simply cannot have time reserved on the list.

We have done the best we could, Mr. Chairman, under the circumstances that confronted us, and I want to say that now, as far as we are concerned, any further requests by people to give testimony in this hearing will have to be made through the staff of the Committee on Labor and Public Welfare. Such requests will, of course, be transmitted to the subcommittee, but I would be less than honest if I didn't say here and now that the chances of modifying the list which we have approved are very remote.

Of course, that is nothing new in procedures of this committee, even when we had more time. We have in past years, may I say, found it necessary to limit both the time of the individual witness and the number of witnesses that could be heard. We could proceed with this hearing for months and months if we took the time to listen to all the people who would like to testify.

So it becomes a matter of judgment and of the exercise of fair discretion in these matters. It happens that on this side of the table we feel that the limitation of February 10 constitutes too short a time to do justice to all the individuals and organizations that ought to be heard by this committee, but that decision has been rendered and we abide by it.

So in the interest of saving the time of the members of this committee, I want to say to those who are still meeting us in the halls and calling us on the telephone, the court has rendered its judgment. If you want to appeal from it, you now must go through the office of the Committee on Labor and Public Welfare, file any statement with them that you wish, and they will transmit it to us for such consideration as we feel we can give to it.

We have tried to be fair and reasonable, but a decision had to be made and it has been made. We hope that those who have not been granted the privilege of testifying before the committee will file their statements, and we hope they will not labor under the illusion that filing a statement is an empty gesture. I think I can speak for Senators on both sides of this table, as far as a partisan alinement is concerned and say we do not take lightly filed statements. When we get