Powers of the President during crisesSmith, J. Malcolm (John Malcolm)
History
Powers of the President during crises
Smith, J. Malcolm (John Malcolm)
Constitutional history -- United States; Executive power -- United States
_Must Receive Advice_: The 1938 Naval Reserve Act created a Naval
Reserve Policy Board, at least half the members of which were to
be naval reserve officers called to Board duty from inactive duty
status, which was to be convened annually for the purpose of advising
the Secretary of the Navy on the formulation of Naval Reserve
Policies.[662] Here a definite obligation to communicate, and a special
agency for communication are established, and the Secretary of the Navy
is by inference required to receive proffered advice, although he is
not obligated to act in conformance with it.
_Must Confer or Consult_: Dictionaries tend to regard the words
“advice” and “consult” as synonyms. And it may be that the Congress
tends to employ these terms interchangeably. Yet it is reasonable
to suppose that the legislature does not regard the transmission of
decisional premises as an invariable one-way process. If this be true,
it is possible although not demonstrable that “advise” as employed in
statutes connotes the offering of counsel or opinion, recommending as
wise or prudent--the communications process flowing in one direction;
and “consult” implies a two-way communication process, “talking over a
situation or a subject with someone to decide points in doubt.”[663]
The Emergency Railroad Transportation Act of 1933 is infused with a
quality of briskness which is absent from the statutes alluded to
above. In this Act Congress created a co-ordinator of transportation
and a number of regional railroad co-ordinating committees. It
stipulated that the co-ordinator must “confer freely with the
committees, and the committees, the carriers, the subsidiaries, and the
Interstate Commerce Commission shall furnish him ... such information
and reports as he may desire.”[664]
The Defense Production Act of 1950 required the President, in
exercising the price and wage stabilization provisions of the Act, “so
far as practicable, (to) advise and consult with, and establish and
utilize the committees of, representatives of persons substantially
affected by regulations or orders issued hereunder.”[665]
_Must Consider_: While not saying that proffered advice must be
accepted, Congress indicated in a 1946 statute that the Civil
Aeronautics Administrator was to hold himself open to influence. In
drawing up his plan for the development of public airports in the
United States, he was required as far as possible to consult and give
consideration to the views and recommendations of the Civil Aeronautics
Board, the States, the Territories, Puerto Rico, and their political
subdivisions.[666] He also had to consult and consider to the extent
feasible the views and recommendations of the Federal Communications
Commission.
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