From Dr. Cornelius P. Cotter

CONGRESS AS SOURCE AND OVERSEER OF EMERGENCY POWERS

This statement draws extensively upon the following:

J. Malcolm Smith and Cornelius P. Cotter, Powers of the President During Crises, Washington, D. C., Public Affairs Press, 1960.

Cotter, "Constitutionalizing Emergency Powers: The British Experience," 5 Stanford Law Review, 382-417, 1953.

Cotter, "Emergency Detention in Wartime: The British Experience," 6 Stanford Law Review, 238-86, 1954.

Cotter and Smith, "Administrative Accountability to Congress: The Concurrent Resolution," 9 The Western Political Quarterly, 955-66, 1956.

Smith and Cotter, "Administrative Accountability: Reporting to Congress," 10 The Western Political Quarterly, 405-15, 1957.

Cotter and Smith, "Administrative Responsibility:

Congressional Prescrip

tion of Interagency Relationships," 10 The Western Political Quarterly, 765-82, 1957.

Smith and Cotter, "Freedom and Authority in the Amphibial State,"

1 Midwest Journal of Political Science, 40-59, 1957.

Cotter and Smith, "An American Paradox: The Emergency Detention Act of 1950," 19 Journal of Politics, 20-33, 1957.

Cotter, "Legislative Oversight," pp. 25-81, in Alfred de Grazia, Congress: The First Branch of Government, Washington, D. C., The American Enterprise Institute For Public Policy Research, 1966; also published as an Anchor Book, Garden City, N.Y., Doubleday & Company, Inc., 1967.

The term emergency is applied to situations affecting individuals and groups, as well as to the State. It denotes the existence of

conditions, of varying nature, intensity and duration, which are perceived to threaten life or well-being beyond tolerable limits.

In a democracy it is assumed that the actions of government will conform with established law, and with procedures which have the endorsement of long usage and popular acceptance. In the United States this assumption has been formalized and made explicit in a Constitution which, theoretically, prescribes the permissable range of powers which may be exercised by the President and Congress.

How is government to react with the swiftness which is required both in recognizing and responding to emergency, and how is it to mobilize sufficiently varied and capacious powers to cope with the emergency, consistently with the theories and practices of limited and divided powers? In an era when events which formerly might have been considered

worthy of emergency response have become everyday occurrences and in which earlier declared emergencies linger on to become the norm, how do we distinguish emergency and nonemergency?

The distinction is of analytic importance because our concept of presidential powers is grounded upon the theory that they expand to fill the temporary needs of emergency. The theory that American political theorists have developed is one of temporary emergency "dictatorship" to be followed by a return to the norms of limited government. If this was

ever good theory, can it be an adequate guide in an era of continuing national emergency?

STATUTES DEFINE EMERGENCY

2.

The statute books provide at any given time a more accurate record of the breadth and limits of executive emergency power than do exegeses on the Constitution, or histories emphasizing executive action unsupported by Congress. For in theory and in practice the President will resort to an "inherent" emergency power only to the extent to which Congress has failed to anticipate and prescribe remedial action for such an emergency. On the assumption that a detailed study of the emergency powers which have been delegated to the executive by Congress in the immediate past provides

Robert Connery, The Navy and Industrial Mobilization in World War II (Princeton University Press, 1951), p. 6.

3.

insight into the probable range of such powers which will be exercised

by government in the future, Malcolm Smith and I have surved and classified such delegations for the period 1933 to 1955.

Much of my comment here is based upon that study.

Emergency, as a generic term applicable to individual and group situations as well as to the state, connotes the existence of conditions suddenly intensifying the degree of existing danger to life or well-being beyond that which is accepted as normal. (A standard dictionary definition mentions the element of surprise, which may be present but is by no means necessarily integral to the existence of an emergency. An intense threat to life or well-being is not necessarily lessened by anticipation.) An emergency requires extraordinary and prompt corrective action. A typical British recital of the proper objectives of emergency action

includes " ... securing the public safety, the defense of the realm, the maintenance of public order and the efficient prosecution of any war in which His Majesty may be engaged, and

...

maintaining supplies and services

essential to the life of the community."2 Public disorder, war and threat

of invasion, interruption of the production or flow of essential supplies and services--any of these may intensify danger to life or well-being beyond acceptable limits. A similarly broad definition is contained in the American Labor-Management Relations Act of 1947, the national emergency section of which permits the President to curb strike action which "if permitted to occur or to continue, [would] imperil the national health or safety."3

2The Emergency Powers (Defense) Act, 1939, 2 & 3 Geo. 6, Ch. 62, Sec. 1. 361 Stat. 136, June 23, 1947, Sec. 206, 29 U.S.C. 176.