Following Roosevelt's declaration, the United States remained in a state of national emergency for more than 45 years. sures that a stricken Nation in the But in the event that Congress Roosevelt's first official act, at 1 A.M. on March 6, 1933, was to issue Proclamation 2038." The proclamation declared a state of national emergency and established a bank holiday, citing as authority the 1917 Trading with the Enemy Act (TWEA). That act, however, provided no such authority: expressly, it governed no transactions among citizens within the United States-and no transactions absent a declared state of war. Following Roosevelt's declaration, the United States remained in a state of national emergency for more than 45 years." 101 100 On March 9, 1933, Congress obligingly amended TWEA to remove the wartime limitation; at the same time, Congress broadly authorized the newly sworn-in president's actions ex post facto.102 By its action, Congress "approved and confirmed . . . actions, regulations, orders and proclamations heretofore and hereafter taken, promulgated, made, or issued by the President of the United States or the Secretary of the Treasury... pursuant to the authority conferred by subdivision (b) of section 5103 of the Act of October 6, 1917” (i.e., TWEA). 104 The act further appropriated $2 million, "which shall be available for expenditure, under the direction of the President and in his discretion, for any purpose in connection with the carrying out of this Act.' 105 Thus, the act not only gave the president (and Treasury secre 106 tary) carte blanche approval of actions previously taken pursuant to section 5(b) of TWEA but also, in language that remains in the U.S. Code to this day, granted carte blanche congressional authorization to anything any president has done since March 9, 1933-or will do in the future-"pursuant❞ to section 5(b) of TWEA. That amendment to TWEA was part of the Emergency Banking Relief Act, which passed the House after only 38 minutes of debate. The bill was not even in print when it was passed by both houses of Congress." 107 108 With such a beginning, it is hardly surprising that Roosevelt became the most prolific author of presidential directives—and a favored model for recent presidents. Roosevelt exercised legislative powers aggressively, freely invading private rights with presidential directives. He issued executive orders to create labor-management dispute resolution mechanisms109 and to seize private businesses, even before the United States entered World War II.110 On June 7, 1941, for example, Roosevelt issued EO 8773 to seize the North American Aviation Plant because of an ongoing strike, and with EO 8928 he seized another airplane parts facility that had refused to hire back striking workers. 111 But the greatest and most notorious invasion of private rights occurred when Roosevelt issued EO 9066, under which more than 112,000 U.S. citizens and residents of Japanese descent were removed from their homes and forced into relocation camps. The order was based solely on his assertion of authority as commander in chief,112 although the Congress subsequently "ratified and confirmed" the executive order. Roosevelt was not content simply to legislate, however. During the war he demanded that Congress repeal a statutory provision, threatening that "in the event that Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act." Thus, not only did Roosevelt claim the power to act contrary to statute, he also asserted the dictatorial right to unilaterally supersede a law. 113 62-209 00-3 Roosevelt's administration constituted one continuous state of national emergency. Using presidential directives he asserted leg. islative authority that no president had ever before asserted, particularly in peacetime. He was also extremely creative in the development of different forms of presidential directive. Of the 24 different types identified by the Congressional Research Service, at least eight were initiated by Roosevelt-and three of those he alone used.114 President Harry Truman President Harry Truman followed Roosevelt's example, using presidential directives to seize manufacturing plants, textile mills, slaughterhouses, coal mines, refineries, railroads, and other transportation companies facing threatened or actual strikes.115 Thus, with EO 9728 (May 21, 1946), Truman seized most of the nation's bituminous coal mines so that the secretary of the interior could negotiate a contract with mineworkers. 116 As the Supreme Court observed, the resulting agreement "embodied far reaching changes favorable to the miners.' 117 As authority, EO 9728 had cited, among other things, the War Labor Disputes Act 118 Truman's seizure of private enterprises to obtain raises and benefits for unionized workers was eventually checked by the Supreme Court. In Youngstown Sheet & Tube v. Sawyer, the Court found that EO 10340 (April 8, 1952), under which Truman seized steel mills in order to provide a 26 cent per hour raise to unionized steelworkers, was unconstitutional. As noted earlier, the Court determined that, for the executive order to be valid, the president's power to issue it "must stem either from an Act of Congress or from the Constitution itself."120 119 In Youngstown, Justice Hugo Black, writing for the Court, found that no statute had expressly authorized the president's action. He then said that no statute had been identified "from which such a power can be fairly implied." [121 Two statutes did give the president authority to seize private property, the Court continued, but counsel for the United States had admitted that the president had not acted in accordance with the terms of those acts. Congress had considered giving the president the power he exercised under EO 10340, the Court concluded, but then "refused to adopt that method of settling labor disputes." 122 Finding no statutory authority, the Court next considered whether Truman had constitutional authority for his action. Counsel for the United States had identified three constitutional provisions purporting to provide such authority. "The executive Power shall be vested in a President" (Article II, section 1); "The President shall be Commander in Chief" (Article II, section 2); and "He shall take Care that the Laws be faithfully executed" (Article II, section 3). In response, the Court found that the executive power did not authorize the executive order because it directed the execution of a presidential policy in a manner prescribed by the president, not the execution of a congressional policy in a manner prescribed by Congress. Likewise, the commander in chief's power was found not to include "the ultimate power to take possession of private property in order to keep labor disputes from stopping production." Finally, the president's power "to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. 123 The Court concluded that Truman lacked authority to issue the order. Therefore, it invalidated the order, observing that "Congress has... exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution 'in the Government of the United States, or any Department or Officer thereof.124 Without comparable deference to the text of the Constitution, several concurring opinions expanded on the principle that a president has limited authority to act under the Constitution. Justice Robert Jackson's concurring opinion observed that “[t]he executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will Truman's seizure of private enterprises to obtain raises and benefits for unionized workers was eventually checked by the Supreme Court. Our forefathers "knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation." of the President and represents an exercise of authority without law."125 Jackson rejected the appeal to the president's "inherent powers" arising out of the state of national emergency, noting that our forefathers "knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies." He concluded that "[w]ith all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the executive be under the law, and that the law be made by parliamentary delibera tions. "127 »126 In the course of his opinion, Jackson set forth a three-part test for authoritative presi dential directives: 1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. 128 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. 129 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. 130 Justice Felix Frankfurter's concurring opinion observed that it is one thing "to say that Congress would have explicitly written what is inferred, where Congress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld. Frankfurter added that the American system of government, “with distributed authority, subject to be challenged in the courts of law, at least long enough to consider and adjudicate the challenge, labors under restrictions from which other governments are free. It has not been our tradition to envy such governments."132 Unfortunately, with the exception of the Reich case in 1996, as discussed at the outset, the Youngstown case constitutes the highwater mark for judicial review of executive usurpation of legislative authority. 133 For the next major test did not come until 1981, in Dames & Moore v. Regan, and in that case the Court's deference to the executive branch returned. In Regan the Court upheld President Ronald Reagan's EO 12294134 which suspended private claims filed against Iran in the federal courts-on the theory that Congress had delegated its authority to the president by mere "acquiescence." Notice that such "authority" is even weaker than the retroactive approval granted to other presidential directives. 135 According to Justice William Rehnquist, writing for the Court, while no specific statutory language authorized the presidential directives at issue, the Supreme Court "cannot ignore the general tenor of Congress' legislation in this area." Evidently, that tenor was in harmony with the nearly unbounded executive discretion exercised by Presidents Carter and Reagan to control the judicial consideration of claims against Iran. Given President Clinton's aggressive use of presidential directives, as discussed earlier, and the weight the Court appears to give to congressional "tenor," it is imperative that Congress carry out its constitutional duty to check the executive's usurpation of congressional authority and to restore the separation of powers. Likewise, it is imperative that states do the same to check the executive's usurpation of state authority and to restore the division of powers, as the governors did recently when they resisted Clinton's federalism order. Yet even when Congress or the states fail in those duties, the courts have no real warrant for ignoring their own duty to secure constitutional principles through the cases or controversies that are brought before them. Congressional Solutions Watergate-Era Congressional Efforts to Congress has not been entirely silent, of course, especially during the administration of President Richard Nixon-and particularly regarding Nixon's use of emergency powers to prosecute the Vietnam War. In fact, in 1972 Congress created a special Senate committee, the Special Committee on the Termination of the National Emergency, to study the problem of presidential usurpation through declarations of national emergency." 136 Perhaps believing that presidential directives were too firmly established to be challenged directly, the committee focused on the states of national emergency that undergirded many of the most aggressive executive usurpations of lawmaking power. Rechartered in 1974 as the Special Committee on National Emergencies and Delegated Emergency Powers, the committee, by a unanimous vote, recommended legislation to regulate presidential declarations of national emergency as well as congressional oversight of such emergencies. That legis lation became the National Emergencies Act, signed by President Gerald Ford on September 14, 1976. 138 137 Effective September 14, 1978, the National Emergencies Act terminated "[a]ll powers and authorities possessed by the President, any other officer or employee of the Federal Government, or any executive agency... as a result of the existence of any declaration of national emergency in effect on September 14, 1976.139 In addition, the act required that before the president could exercise an extraordinary power on the basis of a national emergency, he had to declare such an emergency to Congress and publish that declaration in the Federal Register.10 The act also provided for the termination of national emergencies thereafter, either by joint resolution of Congress, or by presidential proclamation, or on the anniversary of the declaration of that emergency if, within the ninety-day period prior to each anniversary date, the President does not publish in the Federal Register and transmit to the Congress a notice stating that such emergency is to continue in effect after such anniversary, 141 Finally, the act requires the president to indicate the powers and authorities being activated pursuant to the declaration of national emergency and requires certain reports to Congress. 143 After the National Emergencies Act became law, Congress turned its attention to TWEA. Recall that TWEA was a product of World War I. President Roosevelt later used TWEA to close the banks and seize private holdings of gold. Congress amended TWEA in 1977 to expressly state that it applies only after Congress has declared war." 144 145 After TWEA was amended, Congress passed the International Emergency Economic Powers Act (IEEPA), which was fashioned to limit the emergency powers available to the president during peacetime. 146 The avowed purposes of the act are to "bring us back another measure toward Government as the Founders intended" and "to conform the conduct of future emergencies to the constitutional doctrine of checks and balances. 147 Notwithstanding those noble ends, since the passage of IEEPA, there has been an explosive growth in the number of declared national emergencies. President Clinton's use of executive orders to generate multiple concurrent states of When Congress or the states fail in those duties, the courts have no real warrant for ignoring their own duty to secure constitu tional principles. Congress needs to take more effec tive action to check presidential usurpations of legislative power and restore the constitutional structure of government. 148 national emergency demonstrates clearly that the Watergate-era statutes have failed to restore the separation of powers and the constitutional structure of government. Under IEEPA, for example, Clinton has declared national emergencies that have enabled him to prevent U.S. residents from providing humanitarian aid to various groups he disfavors. He has declared a national emergency (annually renewed) with regard to UNITA (anti-communist participants in the Angolan civil war who had received support during the Reagan administration)," certain residents of Bosnia-Herzegovina,' certain groups identified as Middle Eastern terrorists, Colombian drug traffickers," Cubans, 152 certain Burmese, 153 and certain Sudanese. 154 Obviously, there is no objective standard defining what constitutes a national emergency-but surely the United States faces no significant national security risk from UNITA, Burma, or Sudan. Previously, President Bush had followed the same path in order to ban aid to certain Iraqis, Haitians, and Yugoslavians. 130 155 149 certain Congress needs to take more effective action to check presidential usurpations of legislative power and restore the constitutional structure of government. Congress has such power: it may modify or revoke all presidential directives except those undertaken pursuant to constitutional powers, such as the power to pardon, that are vested in the president. Legislative Proposals Given that the congressional efforts of a quarter of a century ago to limit presidential exercises of war and emergency powers have all failed, Congress should now take a more direct approach: it should circumscribe presidential power by dramatically reducing the authority it has statutorily delegated to the executive branch.156 There are currently two proposals before Congress that aim at accomplishing that: House Concurrent Resolution (HCR) 30, cosponsored by Rep. Jack Metcalf (R-Wash.) and 75 other representatives; and the newly introduced HR 2655, cosponsored by Reps. Ron Paul (RTex.) and Metcalf. HCR 30. In the 106th Congress, Representative Metcalf has reintroduced a proposal similar to one he introduced in the 105th Congress. HCR 30 purports to limit the force and effect of executive orders that infringe on congressional powers enumerated in Article I, section 8; or Article I, section 9, clause 7 ("No funds shall be expended except as appropriated by law”) of the Constitution. HCR 30 states in its entirety: To express the sense of the Congress that any Executive order that infringes on the powers and duties of the Congress under article 1, section 8 of the Constitution, or that would require the expenditure of Federal funds not specifically appropriated for the purpose of the Executive order, is advisory only and has no force or effect unless enacted as law. Whereas some Executive orders have infringed on the prerogatives of the Congress and resulted in the expenditure of Federal funds not appropriated for the specific purposes of those Executive orders: Now, therefore, be it Resolved by the House of Representa tives (the Senate concurring), That it is the sense of the Congress that any Executive order issued by the President before, on, or after the date of the approval of this resolution that infringes on the powers and duties of the Congress under article I, section 8 of the Constitution, or that would require the expenditure of Federal funds not specifically appropriated for the purpose of the Executive order, is advisory only and has no force or effect unless enacted as law. Any effort to curtail the usurpation of legislative powers by the president should be |