Powers of the President during crises — John Shaqi
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
An assessment of the adequacy with which democratic government has, in
the recurrent economic and military emergencies since 1933, combined
mobilization of “the ... power of every individual and of every
material resource at its command”[3] toward the objective of national
survival and well-being, with the protection of basic individual
freedoms and the principle of responsible government which are the
heart of democracy, must in substantial part rest upon an analysis of
the contents of the statute books. That is the purpose of this study.
Its classification of legislative delegations of emergency powers to
the executive since 1933 should provide not only indication of the
extent to which coercive powers over persons and property have been
granted the executive in the name of emergency, but also a framework
for the organization of a series of studies into the use of such powers
by the executive branch, and the success of congressional and other
efforts to maintain responsible administration in time of emergency.
There exists no dearth of recorded efforts to define the ultimate
scope of the constitutional emergency power of the American executive.
Various justices of the Supreme Court have hypothesized, at one end
of a continuum, inflexible constitutional restraints upon executive
response to perceived emergency,[4] and at the other end an emergency
power which is either unrestrained[5] or unrestrainable.[6] In this
manner the Supreme Court has sought to resolve the conundrum, “How
can a virtually unlimited emergency power and a systematic body of
constitutional limitations upon government action logically coexist?
How can constitutionalism be ought but an anachronism in the twentieth
century unless constitutional governments are equipped with adequate
legal authority to carry the body politic through economic and military
emergencies of staggering dimensions?”
The considerable body of scholarly literature in this field is
principally devoted to speculation on the breadth of the “inherent,”
“residual,” “executive,” or “war” power of the President, and
description of occasions on which the nation’s chief executives have
considered it necessary to exercise a prerogative “power to act
according to discretion for the public good, without the prescription
of the law and sometimes even against it.”[7] But despite such
incidents as President Roosevelt’s 1942 Labor Day speech admonishing
the Congress that unless it repealed certain provisions of the
Emergency Price Control Act by October 1st, he would consider them
repealed,[8] emergency administration is overwhelmingly characterized
by joint participation and cooperation of the varying branches of
the federal government. 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.
Public-domain text, read in full here on John Shaqi.
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