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responsibility is essential to the maintenance of the democratic system. Administration which is responsible is lacking in the elements of bad faith, arbitrariness, or capriciousness. It constitutes a reasoned effort, in good faith, to approximate the legislative intent.

Congress is one important source of oversight of administration. effectiveness in performing this role is a function of (a) the adequacy of its tools, and the skill, conscience, and sustained interest of the members in wielding them, and (b) the standards it applies in measuring the adequacy of administrative action.

Its

Experience in this area indicates that Congress is more imaginative in fashioning tools for checking and influencing the administration of delegated powers than it is skillful and determined in employing them to hold administrators to clearly defined standards of performance.

The national legislature has attempted to employ reporting devices and the concurrent resolution to influence, enable or require executive action, to terminate or suspend the conditions authorizing it, or to restrict the application of programs to specified groups. Not infrequently it has made the exercise of delegated powers contingent upon prior congressional approval or disapproval.

With the exception of the last category, however, Congress has not effectively wielded the tool it engineered. The veto resolution has received ample use because the executive automatically initiates congressional review when it invokes the delegated power which is subject to veto. Where Congress must initiate review, the concurrent resolution provisions tend to lie dormant, or congressional action tends to be directed at vindicating sectional interests (revocation of daylight saving time), or direct participation in the framing of administrative decisions, care by

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case (deportation suspensions).

Perhaps the moral of the story is that we must free congressmen from constituency loyalties and subject them to strict party discipline if we wish to insure that available techniques for the legislative control of administration are effectively employed to serve an interest which is broad and public.

A ROLE FOR THE COURTS

47.

Edward S. Corwin has appraised as a misfortune the fact that "Constitutionalism has worked in this country to impress upon the discussion of public measures a legalistic--not to say theological--mold," and has substituted "for the question of the beneficial use of the powers of government the question of their existence."1

...

The United States Supreme Court, rather than the judicial system,

is popularly conceived to have a distinctive role to play in checking

2

arbitrary government in time of emergency; and it endeavors to perform

that role, albeit none too successfully at times by ruling on the constitutionality of the government power asserted during such period of crisis. However, as the chief appellate body in a judicial system which as a whole "handles a mere trickle of the great issues arising"3 during an emergency,

1"The Constitution as Instrument and as Symbol," 30 American Political Science Review, 1936, 1071 at 1077.

2Yet note Harold D. Lasswell's suggestion: "It is important to view the court system as a whole and not limit ourselves entirely to the words uttered by the Supreme Court. The damage to private rights and civilian principles can be accomplished in the thousands of minor jurisdictions (Federal, State, Local) into which our country is divided. Much of this damage is not brought to the notice of the highest tribunal in the land, if at all, until years have elapsed. In one of our earliest crises of national security, for example, the Alien and Sedition Acts were passed (1798). Thousands of persons were imprisoned, and the Acts were presently repealed. Their constitutionality was never passed upon by the Supreme Count." National Security and Individual Freedom (New York: McGraw-Hill, 1950), pp. 45-46.

3Albert L. Sturm, "Emergencies and the President," II Journal of Politics, 1949, 121, 141. Sturm said: "Since the judiciary handles a mere trickle of the great issues arising in periods of crisis, it has been unable to retain its traditional potency. When the national security is imperiled, the Supreme Court, along with the other branches of the government, becomes a part of the national mechanism for preserving the existing social order." We doubt that the Supreme Court and the judicial system bot adequately been integrated into this effort thus far.

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the Supreme Court cannot reasonably be expected to formulate a coherent theory of democratic response to emergency whereby action designed to meet the exigencies of war can be harmonized with our constitutional system with only minimum risk to the preservation thereof.

THE SUPREME COURT'S APPROACH

In its effort to avoid the Seylla of judicial refusal to review the constitutionality of legislative or executive emergency action, and the Charybdis of declaring unconstitutional emergency action which might be vital to national survival,"--i.e., in its efforts to "reconcile the irreconcilables" which Cardozo considered the essence of the judicial function--the Supreme Court has traveled various routes. The majority opinions of the Court, or the concurring or dissenting opinions of individual justices, have at times asserted that (a) the Constitution is a rigorously confining document to be inflexibly applied by the Court in measuring governmental action in war and peace; (b) there exists an emergency power which is above constitutional limitations; (c) the Constitution is a flexible charter permitting government action commensurate with need as measured by the Court.

All three of these approaches are characterized by a preoccupation with the question of the existence of the asserted emergency power. Under

"Note, c.f., Duncan v. Kahanamouku, 327 U.S. 304 (1945), in which Justice Black on behalf of the majority was careful to rest upon statutory interpretation his 1946 (post mortem) invalidation of certain aspects of military rule in the Hawaiian Islands during the War. Dissenting, Burton and Frankfurter asked the Justices in the majority whether the latter, if obliged to dispose of the case during the conduct of the war, would have reached the same conclusion and whether their holding would have been enforced by the Executive.

13.

the first, the Court is guided by a narrow interpretation of the quantum of constitutional emergency power and appears disposed to appraise the validity of asserted authority independently of any consideration of the indispensability of the power exercised for successful resolution of the crisis. Involving covertly virtual acceptance of the principle, inter arma selent legis, the second is extremely dangerous; for if applied extensively, it would erode constitutional balance and restraint and perhaps terminate responsible government in time of peril. Insofar as it chooses to be guided by the third and purports to sanction only that which it concedes to be essential for combating an emergency, the Count not only assumes a task for which it is ill-suited but also frequently shirks its responsibilities in the performance thereof. Too often when it dares to condemn as ultra vires action believed unavoidable in the

prosecution of a war, it postpones its invalidation until after hostilities Such post mortem judicial observations afford most

have terminated.

inadequate guides for ascertaining what will be constitutionally permissible in time of crisis.

The Constitution as a Rigidly Restrictive Document

In one of the extremely rare instances in which a Supreme Court Justice has defied the Chief Executive engaged in prosecuting a war, Chief Justice Roger B. Taney in 1861, presiding as Circuit Court Judge at Baltimore, demanded that the military produce in court one John Merryman, who had been arrested. When Merryman's jailers replied to Taney that by virtue of the President's proclamation suspending the writ of habeas corpus, they had been directed not to respond to the writ, the venerable Chief Justice wrote a stinging opinion informing the President that the power to suspend the writ belonged to Congress alone and could not be