ing, after the words, "Presidential proclamation and Executive orders," at the beginning of the clause, the following additional words :

whether so designated or otherwise, the purpose being to include all forms of Presidential action pursuant to authorization by statute, or under the constitutional or inherent power of the President,

The sentence would then continue with the exceptions, which would remain as they are.

No doubt this language can be improved upon. If an adequately comprehensive formula can be devised, it should cover the situation, and yet not require the publication in the Federal Register of actions which are purely special, or which involve only matters of housekeeping within the executive branch of the Government.

As I see it, no further sanction is needed except to make it clear that the relevant documents must be published no matter how they are designated, or what name is attached to them, with the correlative provision that no such item is binding on any individual unless it is published or he has actual knowledge of it. On the whole, it seems to me better to do this by a single sweeping designation, rather than to try to list all the titles and sorts of documents which have been devised in recent years. If the latter road is followed, then the requirement of publication can be readily circumvented simply by adopting new titles which are not included in the listing made by Congress.

An amendment of this sort should invite cooperation by the executive branch. Acts of Congress are not kept secret, and there is no reason why any action of the President which is of general applicability should be so guarded that it can only be found in a filing cabinet somewhere in the White House, as was the case with that Food and Drug regulation to which I referred in the opening of my remarks, which was, in substance, the original cause of the adoption of the Federal Register Act

With respect to the other questions which are before the Special Committee, I have only a few observations. Generally speaking, I do not find any serious constitutional problems with the delegations of authority which Congress has made to the President over the years. The President is the Chief Executive and it is appropriate to give him authority to meet various situations with which he has to deal. The important thing here, it seems to me, is that Congress is always, or can be, in control. Congress can determine what delegations it will make, and the conditions under which such delegated authority can be exercised; and Congress can terminate the delegation whenever it wishes to do so.

There is little, if any, authority in the books to the effect that a delegation of power from Congress to the President violates the Constitution. On the whole, it does not seem to me to be profitable to think of this problem in constitutional terms.

There is, however, ample room for Congress to reexamine the delegations it has made, and to rethink the whole area, and, as a citizen, I welcome the actions of this committee to that end. In particular, it seems to me that the following steps may well be taken.

1. As I understand the actions of the committee so far, a complete compilation has been made of all the delegations of authority which are now outstanding in the statute books. These should be carefully reviewed, and a large number of them should be repealed, either on the ground that they are now obsolete, or on the ground that they are relatively unimportant, and the problem with which they deal can be handled in other ways.

2. It may well be desirable to reexamine the concept of "emergency." This has not had any clear meaning over the past 25 years, or more. In many cases, it would seem to be better to make a general delegation which the President could use whenever he thought such action was desirable, without specifically involving the conception of declaring an emergency. In particular, under the present practice, the declaration of an emergency for one purpose, triggers the existence of power under a large number of other statutes which may have no real relationship to the problem which brought about the declaration of emergency.

3. To the extent that the declaration of an emergency is utilized as a basis for Presidential authority, there should be a statutory provision which brings it under control. In particular, all such declarations should be subject to a specific time limit. I think this time limit should be fairly short, no more than a year, or perhaps a shorter period, such as 6 months.

There should be provisions for extending the emergency period, but this should require a new declaration, subject to the same time limits.

4. Moreover, whenever an emergency is declared, the statute should require immediate report of this fact to Congress (as well as publication in the Federal Register), and it should also be required that any exercise of delegated authority under the emergency declaration should be immediately reported to Congress, as well as published in the Federal Register. This would enable Congress to take such action as it thought appropriate. If it felt that the actions of the President under the delegations were not warranted, Congress should repeal the authority, or modify it. Or, if it chose, Congress could repeal or modify the provision for declaration of an emergency.

It may well be that Congress should establish a Joint Committee for the Oversight of Delegated Authority. The Congress has long exercised oversight of the Internal Revenue Service through the Joint Committee on Internal Revenue Service. This committee has an excellent staff which not only keeps Congress informed but makes frequent and substantial contributions to the development of the Internal Revenue Law, and to the Treasury, all under the general oversight of the committee's congressional members. It seems likely that a similar committee, with a small but competent staff, could be of great use to Congress and the country, and the executive branch as well, by keeping close track of the exercises of delegated power, including the declaration of emergencies, and reporting to Congress so that these matters could always be under active consideration and would not go by default, as they often seem to do now.

In short, as I see it, the answer to the problem will not be found in repealing all delegations of authority, or in repealing provisions for declarations of emergency. The problem is not essentially a constitutional problem, or even one of separation of powers, for there is nothing in the Constitution which prevents the Congress and the President from working together.

The problem, I believe, is the much more practical one of devising means by which Congress can monitor the exercise of delegated powers, particularly in emergencies, and of controlling such actions as Congress may find unnecessary or undesirable, or may otherwise disapprove. For, as I have indicated, Congress is always in control of the delegations it makes. It can repeal or modify them at any time it chooses to do so. In the past though, Congress has repeatedly made broad delegations, and has then, in effect, cast them to the wind. Very rarely does Congress examine in detail actions which are taken pursuant to the delegations it has made, and even more rarely has Congress exercised its authority to modify or qualify or repeal the delegations it has made.

In my view, as I have indicated, it is entirely appropriate for Congress to make fairly widespread delegations of authority, particularly in the modern world which has become so complex, and where speedy action is sometimes important or essential. The difficulties have arisen, I believe, because Congress has not taken steps to watch with care the delegations which it has made, and to keep control of them. It is this objective of care and control, which, it seems to me, is the most fruitful source of inquiry for this committee. Clearer and stronger provisions for publication of Executive actions in the Federal Register may well be an appropriate part of the process of developing that control.

INHERENT CONSTITUTIONAL AUTHORITY IS CRITICAL QUESTION

Senator MATHIAS. In your colloquy with Senator Church and Senator Case, I think the really critical question surfaced. I wish both you and General Richardson would comment on it, and that is this: If the President can terminate a national emergency by his own action, then does he have any inherent constitutional authority to proclaim or to create one?

Mr. GRISWOLD. Well, all I can say about this issue is that I was here in Washington when President Franklin Roosevelt did so on March 4, 1933. Shortly thereafter, Congress, in effect, ratified that by approving it in a statute which, I think, perhaps, indicated not only Congress

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approved of what he had done, but perhaps some doubt as to how valid and effective it was without some action by Congress.

I don't know what it means for a President simply to declare an emergency. My recollection of the situation in March 1933 was that President Roosevelt's declaration of an emergency was primarily for psychological effect for the public, to galvanize the public, to make the people feel there were people in Washington who cared and were doing things, to change the public morale. It was then followed by a succession of statutes which were proposed from the White House, and which, for the most part, Congress quickly enacted.

Senator MATHIAS. Parenthetically, we had testimony before this committee from Dean Fisher-who had some role in drafting the Korean emergency proclamation-that this proclamation was intended entirely as a public gesture. It was not, at that point, intended to have any legal force and effect, because we were still in a state of war, and legal force and effect was not needed.

Mr. GRISWOLD. Well, I was saying this by way of leading up to the next thing, which is: That in the absence of a statute passed by Congress giving the President some kind of special authority in the event an emergency is declared, I don't see that the declaration of an emergency by the President has any significance except psychological and public relations. It only gives him new powers if there is some statute which says that in the event an emergency is declared, you have those new powers.

Senator CHURCH. There are 470 of them.

Mr. GRISWOLD. Well, I hope 350 of them are soon repealed, and half of the rest are qualified and modified, and that provisions for time limits and reporting are enacted by the Congress pursuant to recommendations of this committee.

Senator MATHIAS. Could we get General Richardson's response on the question of the inherent constitutional powers of the Presidency.

UNILATERAL DECLARATION CAN'T ADD TO POWERS

Mr. RICHARDSON. I think the points Dean Griswold has made impresses me as entirely valid.

There remains, of course, the further question of what inherent power does the President have to deal with an emergency. Conceding that, in the absence of a statutory delegation which makes important his declaration of an emergency, a unilateral declaration by him does not add to his powers, the question remains: What can he do? Also, I suppose that is a largely unanswered question. He has broader powers as Commander in Chief, I assume, than he has in any other respects to deal with an emergency situation. But I suppose he has certain inherent powers, depending upon the degree of the emergency, to take actions affecting the civilian economy and the civilian population. But I don't know of any significant body of authority that encompassed and delineated the limits.

Senator MATHIAS. You have before you a draft bill entitled Future National Emergencies. Would legislation such as that provide either a definition of such Presidential authority or a proper limitation on it?

1 See Part 1, hearing of April 12, 1973, p. 65.

Mr. RICHARDSON. If we are talking about inherent constitutional power, no. I don't think you can either add to or detract from the President's constitutional powers by legislation. You can't do it by definition, in fact.

DANGER OF INHERENT POWER DOCTRINE

Senator CHURCH. That is of course the mischief in the inherent power doctrine. Suppose that the Congress were to pass a comprehensive bill dealing with declarations of national emergencies that lays down the terminal dates and the other items that we have discussed this morning plus what Dean Griswold has recommended, would it then be possible, in your judgment, for the President to say: "I am declaring a national emergency pursuant to my position as Chief Executive, Commander in Chief," or whatever else he might mention, and, "I base this declaration upon my inherent powers under the Constitution, and I do not make it pursuant to the law, that ordinarily governs declarations of national emergency. Therefore, I am not bound by the provisions of that law."

Mr. RICHARDSON. I assume he could do that, as Dean Griswold has pointed out, and I agree. His declaration of the emergency on that basis would not give him any power he did not otherwise have in the absence of the declaration. The issue here is one of the legitimacy of the exercise of power. A statute providing for the declaration of a national emergency, and with the other provisions that have been discussed here today, could spell out specific delegations to the President that he would not otherwise have had once he had declared the emergency. And only after this had been done, pursuant to the provisions of the statute, would he be lawfully able to exercise those powers. That is the kind of thing a statute can and should deal with.

But, I assume the President, in a sufficient dire situation, does have certain inherent powers. The exercise of this power does not depend on any particular declaration by him, nor does the legality or constitutionality turn on the question of whether or not the situation is such that he is exercising Executive powers constitutionally.

WHICH IS THE REAL SITUATION?

Senator CASE. At this very point: Is it the exercise of inherent powers that are available in dire emergencies, or is it taking a chance that what a person does extraconstitutionally will be ratified later? Is that not the real situation? Also, isn't it better, as a matter of legal philosophy, to look at it that way rather than to claim some inherent power in the event of some dire emergency which can be challenged later?

Now, maybe, this is the business of trying to make a distinction without a difference, or how many angels can dance on the point of a needle, or some like sort of thing, but it does make a difference of how you look at this or how the people look at it. Have we a king? Have we an absolute monarch who not only acts when he decides there is a dire emergency, but has the unchallengeable right to declare such an emergency? As President Lincoln said: "You can always find that the armies of the other side are about to cross your borders— remote logic for that purpose-if you grant that authority exists."

Mr. RICHARDSON. You can't construct a government, Senator Case, on the premise that nobody can be trusted.

Senator CASE. We are now in a period which tests this very deeply. Mr. RICHARDSON. If we have reached that point.

Senator CASE. We are already at that point.

Mr. RICHARDSON. No; can you not assume that once you have done what you can under the Constitution to separate powers and create checks and balances, provide for legislative oversight, hearings, inquiries, investigations, create the GÃO, create the kind of Inspector General's office that I proposed to create in the Department of the Attorney General-you can do all of these things, but without a residual, fundamental foundation of trust the system cannot work. And conversely you cannot, it seems to me, conceive of the effect of the ability of a nation to survive in conceivable situations of extremity without contemplating that there is some power in the Executive to take action that does not depend upon specific statutory authorization.

SURVIVAL OF "ROYAL AUTHORITY" POWER

Senator CASE. Well now, this is again coming from the Executive background. Why should that power be in the Executive? Why shouldn't that power be in the Parliament, and historically this is what has happened. They kicked out Charles I because of this kind of thing they did not kick him out, they put him to death.

Mr. RICHARDSON. The fact is that the Constitution does make the President the Commander in Chief of the Army and Navy.

Senator CASE. Is this not just a little bit of the royal authority that survived.

Mr. RICHARDSON. Yes, precisely.

Mr. GRISWOLD. Suppose, Senator, that a great national catastrophe occurs at a time when Congress is not in session and also at a time when there simply is not any oil-there just is not any oil. No trains are running, no airplanes are running, no automobiles are running. It will take at least 2 to 3 weeks for the Congressmen, by whatever means they can do so, to get here to act. I have put an extreme situation which is hard to imagine, but if that situation exists, I have no doubt that the President, as Chief Executive of the country, has substantial powers to take appropriate actions to help to deal with that catastrophe.

Senator CASE. Yes; but suppose the President is sick or something, as Mr. Wilson was sick, then why can't the Chairman of the Joint Chiefs of Staff give an order to his men? That is what could happen in a situation like this, and nobody would question the rightness of it. Mr. GRISWOLD. As far as the disability of the President is concerned, we have a new constitutional provision which may become operative some day.

1

Senator MATHIAS. Aren't we now coming back to the Youngstown Steel case when Justice Jackson, in a concurring opinion, 1 asserted that Congress can best avert the assertion of arbitrary Executive. power by enacting statutes which will meet conceivable situations? Mr. GRISWOLD. Right.

1 See Part 1, Appendix, pp. 349 et seq.