J. Malcolm Smith

“ In an era in which governmental controls invade every sphere of human activity, from economic to cultural and political, administrative 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. ”

“ Thus, ironically, the Western democracies which today approach the close of three decades of economic and military emergency, and turn their faces to additional decades in the shadow-land between peace and war, are offered a guiding theory which regards emergency governance as an aberration, supplanting the relationships between the various branches of government, and between rulers and ruled which prevail in “normal” times. In theory the struggle to preserve limited and popularly responsible government has already been lost, for this is a luxury we are told we cannot afford. ”

“ For a nation which, at least during the 1930s raised to the topmost position on its list of twentieth century mistakes its involvement in the First World War, and which during the same period embraced the policy of non-involvement in future wars, the chief problem of national security was not so much to be prepared for war or to avoid the occurrence of war, as it was, rather, to stay out of other people’s wars, all wars being other people’s. ”

“ One cannot draw too sharp a distinction between war and peace; an act of sabotage is as likely as fire, flood, storm, or act of God. An Act of November 1940 launches upon an extensive list of national-defense material and national-defense premises—so comprehensive as to include anything whatsoever associated with defense production or transportation, including public utilities—and lists punishments for the willful injury or destruction of war material, or of war premises. [114] And following the war, it must be made clear that the emergency and the need for emergency action continue. ”

“ In the United States we have been especially prone to accept the alleged need for transition from responsible to authoritarian government in time of emergency, for we have on the one hand accepted an interpretation of the Constitution whereunder the rigid restraints imposed thereby on governmental power are susceptible of contradiction in time of emergency, and on the other hand we have with considerable complacence assigned to the Supreme Court the function of protecting the essentials of constitutionalism and democracy through periods of emergency. ”

“ Some persons will fear that a President might take action unnecessarily under such a proclamation of emergency. The answer to this is three-fold: first, it is in the nature of our political system that we must repose a certain amount of faith in the basic integrity and wisdom of the Chief Executive; secondly, the President must operate within carefully prescribed procedural limitations; and third, the President has only today to declare a nation-wide state of martial law in order to equip himself with vast power to take emergency action virtually free from concurring legislative participation. ”

“ The establishment of priorities for the fulfillment of contracts presupposes voluntary fulfillment of government contracts by private industry. Do the principles of democratic government preclude conscription of industrial plants, regardless of the willingness or unwillingness of owners to execute war contracts? Having conscripted physically eligible young men under the Selective Training and Service Act of 1940 Congress also established therein priority for industrial performance on military orders, and a provision to compel acceptance and priority performance on defense orders. ”

“ It cannot be presumed to possess the fund of knowledge essential for appraising issues largely military in nature, and, consequently upon the advent of actual hostilities, it invariably displays a reluctance to countermand the executive and legislative branches, no matter how extreme their action. Furthermore, the judicial process with its haphazard accretion of cases, the manifest capacity of government to make cases moot, or failure to prosecute, frequently makes it impossible for the Court even to review significant controversies produced by action of the political departments. ”

“ The suggestion that democracies surrender the control of government to an authoritarian ruler in time of grave danger to the nation is not based upon sound constitutional theory, or the experience of Great Britain or the United States in this century. ”

“ American government in time of war does not degenerate to anything resembling dictatorship, and to focus attention upon the exceptions to executive-legislative cooperation in war administration is to study the pathology of emergency administration.
The statute books provide at any given time a more accurate indication of the breadth and limits of executive emergency power than do exegeses on the Constitution, or histories emphasizing executive action unsupported by Congress. ”

“ The recurrent trouble which the nation has confronted in taking timely and effective emergency action at the national level stems from the existence on the statute books of a confusing array of provisions for the declaration of various kinds of emergency, and the excessively precise definition of the techniques which must be employed in coping with the emergency. This invites efforts at evasion of statutory limitations as in the instance of the 1952 steel strike, or requires recurrent special legislation dealing with successive particularized emergencies. ”

“ It need hardly be stressed that by this method of acquiring information Congress not only equips itself with data vitally prerequisite to its exercise of the function of oversight, but that its demand for such information in itself represents a form of control. The necessity of periodic reporting interposes an effective psychological hurdle between the administrator and intentional malfeasance. Certain reporting provisions clearly reflect a desire to maintain a continuous check upon the administration; others appear directed more at securing information and advice as an aid to policy-making. ”

“ An occasional statute will require not only consultation, but the making of specific findings precedent to exercising powers delegated by Congress. The administrator will sometimes find himself in a position in which he may take certain action only if it is acceptable to, or meets the approval of, other groups. And, carrying us to the end of this progression, we have the statutory requirement that the administrator act in conformance with advice received. ”

“ The urban concentration of population and the refinement of communication devices and techniques for manipulating public opinion make it increasingly possible to instill in the civilian population an hysteria and terror which could effectively thwart national mobilization. [2] Realization of the magnitude of the problem, and a pervasive fear of military assault, vitally influence the process of continuous redefinition of the balance between collective authority and individual liberty which is the essential task of democratic government in war as in peace. ”

“ Whenever in the opinion of the President of the United States, a threatened or actual strike or lock-out affecting an entire industry or a substantial part thereof engaged in trade, commerce, transportation, transmission, or communication among the several States or with foreign nations, or engaged in the production of goods for commerce, will, if permitted to occur or to continue, imperil the national health or safety, he may appoint a board of inquiry to inquire the issues involved in the dispute and to make a written report to him within such time as he shall prescribe. ”

“ Twentieth century wars, like those of the Nineteenth century, were to be fought by the military. In terms of the total national energies, war represented a temporary, localized diversion. Democracies continue to manifest a not necessarily unhealthy predisposition, even in the atomic age, to treat war as a subsidiary effort which should not unduly ripple the accustomed habits and interests of the major segment of the population and economy. War is fought by governments, not by peoples. ”

“ Thus, by formal organization we mean a planned system of co-operation effort in which each participant has a recognized role to play and duties or tasks to perform” (p. 5) . “... the dignity of the individual can be respected only in an administrative situation in which all participants will gain, in one way or another, from the accomplishment of the organization goal. In such a situation, administration can be ‘co-operative’ in the broadest sense” (p. 23) . ”

“ The Proclamation of May 27, 1941, in which President Roosevelt declared the existence of an unlimited emergency caused by the supposed expanded war aims of the Axis powers, carefully translated the emergency into economic terms. The President advised businessmen that in maximizing war production they would be protecting a world in which free enterprise could exist; and workingmen, in so doing, would protect a society in which labor and management could bargain on free and equal terms. ”

“ What the British, particularly, have come to recognize in the [13] course of the last five decades is that emergency governance is one form of an acute and continuing problem in modern constitutional democracies: that of allotting increasing areas of discretionary powers to the executive, while insuring that such powers will be exercised with a sense of political responsibility and under effective limitations and checks. [54] In time of emergency, governmental action may vary in breadth and intensity from more normal times, yet it need not be less constitutional. ”

“ In the Mutual Defense Assistance Act of 1951, which established an embargo on the shipment of arms, ammunition, and implements of war to any nation or combination of nations threatening the security of the United States, Congress gave the Administration the power to determine what items constituted arms, ammunition, and implements of war and items should be embargoed. ”