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
Our findings appear to suggest that either Congress has a considerable
feeling for the subtle nuances of administrative interrelationships,
or that it is loose and inconsistent in the language it employs.
The statutory provisions run a gamut, permitting the exchange of
information, providing formally prescribed sources of advice,
compelling agencies to consult, to consult and consider, to consult
prior to taking specific action, hinging action to the receipt of a
prior enabling report or request, requiring prior consultation and
fact finding, requiring clearance or approval from a source external
to the agency, and finally, compelling action in conformance with the
request of another agency. It has harnessed the judgment and resources
of many agencies to the making of particular kinds of decisions,
it has provided for interagency co-operation and assistance in the
accomplishment of policy goals; and it has taken care to assure
co-ordination of related programs.
These are the relationships which Congress has sought to establish
among administrative agencies.
CHAPTER X JUDICIAL REVIEW
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.”[719]
The United States Supreme Court, rather than the judicial system, is
popularly conceived to have a distinctive role to play in checking
arbitrary government in time of emergency;[720] 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”[721] during an emergency, 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
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