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to manufacture in arsenals, factories, in shipyards under their jurisdiction, or otherwise procure to the extent of which funds are made availableand so forth.
This act that we have under consideration can only be in operation to the extent which funds have been made available, but what is your interpretation of the phraseology “or otherwise procure”? Does that mean that the President of the United States has a right in any manner under the eminent-domain theory, to seize any property that he is desirous of seizing for the benefit of the lend-lease bill?
Mr. EMERY. No; I don't think so. I think that “to otherwise procure” is what modifies the previous statement, because the authority is given to manufacture in the arsenals or other places of production belonging to the United States.
The CHAIRMAN. “Or otherwise procure”?? Mr. EMERY. Or otherwise procure, and it is modified by what follows, “otherwise procure' to the extent “to which funds are made available or contracts authorized.”
The CHAIRMAN. And the act that we are considering now? Mr. EMERY. “Any defense article for the government of any country.”
The CHAIRMAN. Now, the act that we are considering would be to procure only to the extent that funds were available for the purchase of machine tools or factories or plants or real estate, isn't that true?
Mr. EMERY. Well, the President has the authority to take over that property and to make an offer for it.
The CHAIRMAN. Under this bill he has that authority? Mr. EMERY. No; he has no authority to take over private property in here. I am talking about the lend-lease bill.
The CHAIRMAN. “Or otherwise procure”?
The CHAIRMAN. It isn't specifically confined by words to that? Mr. EMERY. I think it is because the procurement is limited by the available funds and by contracts authorized by Congress. And this is for the government of any other country.
The CHAIRMAN. And under the act we are considering he would be limited to the extent of having been provided by the Congress with funds to make payments for property, personal or real, seized, wouldn't he?
Mr. EMERY. Yes; but that might be subject to subsequent appropriations.
The CHAIRMAN. And this might be made subject to future appropriations. At the present time we have appropriated $7,000,000,000. I am like Senator Johnson, I voted against the lend-lease bill and I am just wondering if that lend-lease bill didn't provide the President with the authority to acquire everything that is procurable under the bill that we are considering now, but in the first instance to seize and to turn over the property of the citizens of the United States to foreign governments.
Now, if that authority is given under the lend-lease bill, which to my mind and as far as I am concerned personally is a very interesting question, because I don't know what my position on the present bill will be-I want to get the benefit of your ideas and the ideas of the members of the committee, but if we gave to the President-if the Government gave to the President the authority to take the property of our private citizens or otherwise procure, acquire, and turn it over to a foreign government, I don't think there ought to be any more authority to give our property to somebody else.
As a matter of fact, I would have liked any property that is going to be given away be given to us if it is going to be seized.
My idea in debating and opposing the lend-lease bill was that I thought it ought to go to the United States before anybody else got it.
Mr. EMERY. I think the fact that there is no authorization in the lend-lease bill for the seizure of private property of citizens, except such property as was subject to seizure under existing legislation as existed at the time, is evidenced by the presence of this bill before you now.
Senator Johnson of Colorado. No, no; the reason for this bill before us now is so we can seize these properties for our own use. The lend-lease bill only allowed us to seize property for some other foreign power. Now, we can take them for our own use.
The CHAIRMAN. That is the point I wanted to make. I thank the Senator very much. That is what is in my mind.
Mr. Emery, Senator Johnson and I stated that we opposed the lend-lease bill. I am of the opinion that the President had a right to seize any property of a private citizen, take anything that belongs to the Army or Navy or any of the armed forces of the United States and turn it over to foreign governments. Now, that is what I thought that that thing did and I opposed it because I wanted us to defend ourselves first before giving anything to anybody else. But now we come along with abill here authorizing the administration to take property of private citizens and it is proposed because these seizures will be for the benefit of our own Government.
I would like to have your opinion about that because you seem to know what you are talking about. You have cited all these cases and you have the reputation of being an eminent lawyer.
Mr. EMERY. I thought, Senator, in response to your inquiry, that the United States did not possess at the time of the passage of the lend-lease bill the authority to take over the private property of citizens of the United States except under the statutes then in existence.
I didn't conceive that the lend-lease bill, by any provision in it, expanded the authority of the President to seize the private property of citizens.
Senator JOHNSON of Colorado. "Or otherwise procure” is a pretty broad term.
Mr. EMERY. Yes; but “otherwise procure" is limited by the clauses which follow it.
The CHAIRMAN. That is the only limitation. Mr. EMERY. There was one method of acquiring property only provided in here, and that was by the authorization of the Secretary of War or Secretary of Navy to produce in the Army or navy yards articles or supplies of a military nature which were defined in here as“defense articles," and the second means by which they were authorized to procure them was by contract or arrangement. So it seemed to me that there were two types of properties then that were subject to transfer to any foreign power which the President deemed necessary for our defense, and that was property in the possession of the United
States or property which the United States could acquire by contract for production or by purchase of existing supplies, and with respect to these the President could certainly transfer them under that bill to any foreign power that he deemed necessary for national defense. And that certainly applied to any property which was in the possession of the United States at the time this bill was passed.
Senator JohnSON of Colorado. I think it went far beyond that.
Mr. EMERY. I don't think you could construe the term “procure,” Senator, into an authorization to seize private property in the United States except under existing statutes. That is if the United States wanted to exercise the power of eminent domain subject to the conditions under which it could be exercised at that time and take over property that had a military value. It could then transfer the property under the terms of the lend-lease bill—I don't question that for a moment.
The CHAIRMAN. Under the theory of eminent domain the Government of the United States, or any of its political subdivisions, is vested with that power and would have the right to seize real estate, wouldn't they? Mr. EMERY. Yes, sir.
The CHAIRMAN. And therefore it follows that they would have the right to seize any buildings constructed upon the real estate itself.
Mr. EMERY. Well, they would have the right to take it over for such purposes as were specified by the law.
The CHAIRMAN. But of course the law requires that they be compensated for the property; but in taking over the real estate upon which there is a dwelling they are taking over personal property, in a sense. Mr. EMERY. You mean realty?
The CHAIRMAN. They could take over our buildings if the State wanted a certain piece of property for the purpose of building a highway, they could take over your buildings or any other presonal property on the land under the theory of eminent domain, couldn't they? Mr. EMERY. Yes.
The CHAIRMAN. They have a right under the law of the land and have had for many years, to procure your property or confiscate your property, you might say—that is hardly the correct term, but confiscate it by way of satisfying you for the cost of it, but to some people it might be a confiscation of their property if they didn't get what they thought they should get for it. But anyway, they can get the property under the law of the land and that law existed prior to the enactment of the lend-lease bill, didn't it?
to the EMERY. Yes, Sow, in your d not have the
The CHAIRMAN. Now, in your opinion, the employment of the words “or otherwise procure' would not have then or now given the President the right under the lend-lease bill, to take over any property and give it to somebody else?
Mr. EMERY. No. I thought that the term "procure” was limited by the clause which followed it and it referred to the acquisition of military supplies by contract under the authorizations which thereafter followed.
I don't question this, Senator, if this is what you mean
The CHAIRMAN. I am not arguing with you. I am simply trying to get your views on the matter so I may come to some conclusion myself in regard to the present bill and how far it goes, and also in reference to the lend-lease bill in its application to the present bill.
Senator KILGORE. Might I ask a question right there? The CHAIRMAN. Certainly. Senator KilGORE. Under the lend-lease bill is there any way set forth for procuring property without what we say in legal terminology “due process of law”!? I mean without a day in court.
Mr. EMERY. Yes, sir.
Mr. EMERY. Without a day in court after seizure but not before. Usually when the Government exercises the power of eminent domain in times of peace, a proceeding is brought for the condemnation of property and if there is an objection raised by the owner of that property on the ground of lack of necessity or the fact that it is not being used, in other words, for a public purpose, or the compensation offered is not fair, those are matters for judicial determination.
Well, now, under the necessities of war, that is in wartime, the war powers of Congress have extended themselves to the taking of property without those formal proceedings and the determination of what fair compensation for the property so taken is.
The CHAIRMAN. Will you pardon the interruption—this is a reversal of that situation. Mr. EMERY. Yes, sir.
The CHAIRMAN. Under present law notice must be given-proper legal notice must be given-to the parties whose property you are about to seize, but under this bill you may seize it before you give the notice? Mr. EMERY. Yes, sir.
Senator JOHNSON of Colorado. Under the lend-lease bill, section 3, paragraph A, it states:
Notwithstanding the provisions of any other law the President may otherwise procure.
The Presidentmay otherwise procure any machinery, facility, tool, material, or supplies necessary for the manufacture, production, processing, repair, servicing, or operation of any article described in this subsection
And so forth.
Mr. EMERY. I think that reference to any other laws is a reference to laws which would otherwise govern contracts which would be made under section 3.
Senator JOHNSON of Colorado. Well, I think it just lifts all limitations out of it so far as other laws are concerned and makes this law to all of them.
Senator DOWNEY. If I may make this comment: The issue that has been raised here now was very extensively argued on the floor of the Senate while this bill was before us, and some apprehension was expressed along the line that the distinguished chairman and the Senator from California have expressed, but I believe the chairman of the Foreign Relations Committee, as I recall, Mr. George and some other Senators, gave us the assurance that the bill was not intended to enlarge the power of the President to summarily seize property, but was merely meant to give the power to the President within the terms of our appropriations, to procure property by any lawful means, and I do think that the records of debate clearly show that the law was passed by the Senate with the interpretation that Mr. Emery has made here.
That does not mean that some Supreme Court may not later interpret it otherwise, because I do think the language is somewhat ambiguous.
Mr. EMERY. I would like to call your attention in conclusion, gentlemen, that the operating effect of the clause “B” on page 2 is just as broad with respect to the disposition of property taken over by the Government to third persons or to foreign governments, as the language of the lend-lease bill, because there is no limitation to the terms which the Government-upon which the Government may dispose of the property. The Executive may lease it, he may lend it, he may give it away, or he may sell it for less than its value. That, obviously, is included in paragraph “B” to use and on such terms as he shall deem satisfactory, to sell or otherwise dispose of, either temporarily or permanently, any property, right, or interest requisition or taken over pursuant to the provisions of this act.
The CHAIRMAN. Now, under the lend-lease bill he has a perfect right to give that material to them. Mr. EMERY. Yes; and he has here.
The CHAIRMAN. He can lend it to them or he can transfer it to them for any purpose. Mr. EMERY. Yes, sir. The CHAIRMAN. Or he can give it outright to them. Mr. EMERY. The only difference is this, there the transfer or gift can be made only to a foreign government that he deems necessary for national defense, and here it may be given to anybody.
The CHAIRMAN. But this is for the purpose, supposedly, of national defense. Mr. EMERY. But it isn't limited by that, sir.
The CHAIRMAN. That was the question raised by you and also by Senator Lodge.
Mr. EMERY. I can't see any limitation in clause "B."
Senator KilGORE. Might I ask another question: Under the terms of this act wouldn't it be possible for a contractor to contract for the production of material vastly in excess of what he had the facilities to produce, and then procure the seizure of sufficient equipment from, shall we say, a competing plant to enlarge his plant and place it on a basis to produce that material? Could it be possible for that to happen?
Mr. EMERY. Well, if the President concluded that the giving of equipment or the loaning of or the leasing of equipment to such person was necessary for national defense he certainly could do that. He certainly could take it from others and give it to him or loan it to him. That is possible.
Senator KILGORE. In other words, it is open to that kind of abuse? Mr. EMERY. Of course it is.
Senator KILGORE. In other words, it might be possible in such a way for one manufacturer to make way with or dispose of a competitor.
Mr. EMERY. Well, the manufacturer couldn't do it but the power is in the Government to do the thing that you speak of; yes, sir.