The National emergencies act (Public Law 94-412)

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Title:
The National emergencies act (Public Law 94-412) source book, legislative history, texts, and other documents
Physical Description:
ix, 360 p. : ; 24 cm.
Language:
English
Creator:
United States -- Congress. -- Senate. -- Committee on Government Operations
United States -- Congress. -- Senate. -- Special Committee on National Emergencies and Delegated Powers
Publisher:
U.S. Govt. Print. Off.
Place of Publication:
Washington
Publication Date:

Subjects

Subjects / Keywords:
War and emergency legislation -- United States   ( lcsh )
United States   ( lcsh )
Genre:
bibliography   ( marcgt )
federal government publication   ( marcgt )
non-fiction   ( marcgt )

Notes

Bibliography:
Bibliography: p. 335-360.
General Note:
At head of title: 94th Congress, 2d session. Committee print.
Statement of Responsibility:
Committee on Government Operations and the Special Committee on National Emergencies and Delegated Emergency Powers, United States Senate.

Record Information

Source Institution:
University of Florida
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
aleph - 025986845
oclc - 02671118
System ID:
AA00022606:00001

Table of Contents
    Front Cover
        Front Cover 1
        Front Cover 2
    Title Page
        Page i
        Page ii
    Letter of transmittal
        Page iii
        Page iv
    Preface
        Page v
        Page vi
    Introduction
        Page vii
        Page viii
    Table of Contents
        Page ix
        Page x
    I. The evolution of the National emergencies act (Public law 94-412)
        Page 1
        Page 2
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        Page 4
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    II. The special committee on the termination of the national emergency/national emergencies and delegated emergency powers
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    III. The national emergencies act (Public law 94-412)
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    Appendixes
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    Appendix A. Proclamations of national emergency terminated by Public Law 94-412
        Page 351
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    Appendix B. The Federal government and national emergency powers: A general bibliography
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    Back Cover
        Back Cover 1
        Back Cover 2
Full Text



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94TH CONGRESS [COMMITTEE PRINT]
2d Session


THE NATIONAL EMERGENCIES ACT
(PUBLIC LAW 94-412)


Source Book: Legislative History,


Texts, and


Other Documents




COMMITTEE ON GOVERNMENT OPERATIONS
AND THE


SPECIAL


COMMITTEE ON NATIONAL


EMERGENCIES AND DELEGATED
EMERGENCY POWERS


UNITED STATES


SENATE


NOVEMBER 1976


U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1976


For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402- Price $3.30


66-474 0























COMMITTEE ON GOVERNMENT OPERATIONS
ABRAHAM RIBICOFF, Connecticut, Chairman


JOHN L. McCLELLAN, Arkansas
HENRY M. JACKSON, Washington
EDMUND S. MUSKIE, Maine
LEE METCALF, Montana
JAMES B. ALLEN, Alabama
LAWTON CHILES, Florida
SAM NUNN, Georgia
JOHN GLENN, Ohio


CHARLES H. PERCY, Illinois
JACOB K. JAVITS, New York
WILLIAM V. ROTH, JR., Delaware
BILL BROCK, Tennessee
LOWELL P. WEICKER, JR., Connecticut


RICHARD A. WEGMAN, Chief Counsel and Staff Director
PAUL Hopp, Counsel
PAUL L. LEVENTHAL, Counsel
ELI E. NOBLEMAN, Counsel
DAVID R. SCHAEFER, Counsel
MATTHEW SCHNEIDER, Counsel
FRED ASSELIN, Investigator
ELLEN S. MILLER, Professional Staff Member
JOHN B. CHILDERS, Chief Counsel to the Minority
BRIAN CONBOY, speciall Counsel to the Minority
MARILYN A. HARRIS, Chief Clerk
ELIZABETH A. PREAST, Assistant Chief Clerk
HAROLD C. ANDERSON, Staff Editor



SPECIAL COMMITTEE ON NATIONAL EMERGENCIES AND
DELEGATED EMERGENCY POWERS
FRANK CHURCH, Idaho Co-Chairmen CHARLES MCC. MATHIAS, JR., Maryland


PHILIP A. HART, Michigan
CLAIBORNE PELL, Rhode Island
ADLAI E. STEVENSON III, Illinois


CLIFFORD P. CASE, New Jersey
JAMES B. PEARSON, Kansas
CLIFFORD P. HANSEN, Wyoming


JERRY "I. BRADY, Staff Director
VILLIAM K. SAWYER, Professional Staff
GrAYLE D. FITZPATRICK, Chief Clerk


(II)











LETTER OF TRANSMITTAL


1.S, SENATE,
COMMITTEE ON -GOVERN3ENT OPERATIONS.
Vash;rqto. D.C. ( October 20. 1916.
Hon. NELSON A. ROCKEFELLER.
Presrlent of the ,S senate.
The Capitol, Wa.AI~th gto. D.('.
DEAR MR. VICE PRESI)ENT: The Committee on Government Opera-
tions transmits herewith for publication as a committee print a com-
pilation of materials relative to the legislative history of the National
Emergencies Act which was signed by the President on ,eptember 14.
1976 (Public Law 94-412).
This material, referred to as a Source Book, summarizes the activi-
ties of the Special Committee on National Emergencies and Delegated
Emergency Powers. and the work of the Senate and the House of
Representatives and the Senate Committee on Government Operations
and the House Comnmittee on the Judiciary. which processed the legis-
lation in their respective Houses.
The Special Committee terminated its existence on April 30, 1976.
and its co-chairnien requested the Committee on Government Opera-
tions to assume responsibility for the completion of the Source Book.
It is believed that this compilation will prove valuable and useful to
scholars and other interested andaffected p)ersons.
ABE IBIiOitFF, (]Cha'i/U.
(III)














PREFACE


This compilation of materials relating to the legislative history of
Public Law 94-412. the National Emergencies Actsummarizes the
three-year investigative and legislative activity culminating in this
statute designed to guide the exercise of national emergency powers.
These efforts were undertaken by a special Senate study commit-
tee-The Special Committee on the Termination of the. National
Emergency which was later renamed The Special Committee on Na-
tional Emergencies and Delegated Emergency Powers-and two
legislative committees, the House Committee on the Judiciary and the
Senate Committee on Government Operations.
This sourcebook was prepared by Dr. Harold C. Relyea. Congres-
sional Research ervice. Library of Congress, and William IK. Sawyer
and Gayle 1). Fitzpatrick of the Special Committee.




















Digitized by the Internet Archive
in 2013














http://archive.org/detaiIs/mergenc0Ou nit












INTRODUCTION


Passage of the National Emergencies Act culminates three years of
work by the Special Committee on National Emergencies and Dele-
gated Emergency Powers. The legislation terminates powers and au-
thorities possessed by the President as a result of existing states of
national emergency and establishes procedural guidelines for the han-
dlilng of future emeroelicies with provision for regular Congressional
review. The bill should end the disarray that has characterized emer-
gency laws and procedures in the United States.
To understand the full significance of the National Emergencies
Act, one must place it within the context of Congressional efforts to
reclaim prerogatives abandoned to the Executive. The Vietnam War
and the abuses known collectively as "Watergate" have led Congress to
assume a more proitiinent role, most notably in foreign policy and the
budgetary process. It has enacted a War Powers Act, defeated major
weapons proposals, investigated the intelligence community, and
moved to impeach a President. Congress has insisted upon increased
Executive accountability andL greater f ieedom of information. The Na-
tional Emergencies Actis consistent with these efforts to make the Ex-
ecutive accountable for his actions and to restore Congress as an equal
partner in the government.
This sourcebook is a chronicle of the efforts behind this one Act. We
trust that scholars will find this document helpful and hope that the
nation enjoys such domestic tranquility that its authorities are never
invoked.
FRLNK Cm uMc'iJ.
CHARLES M CC. Y\IATIIAS. Jr.,

IVII


















CONTENTS


Page
Letter of transmittal-----------------------------------------------III
Preface------------------------------------------------------------v
Introductioni-------------------------------------------------------Vi
I. The Evolution of the National Emergencies Act (Public Law 94-412)___ 1
II. The Special Committee on the Termination of the National Emergency/
National Emergencies and Delegated Emergency Powers----------------13
A. Initial authorizing resolution of the Special Committee (Congres-
sional Record, v. 118, May 23, 1972: pp. $18367-$18369) --------13
B. A Recommended National Emergencies Act (S. Rept. 93-1170)- .... 19
C. Final report of the Special Committee on National Emergencies
and Delegated Emergency Act (S. Rept. 94-922) ---------------29
III. The National Emergencies Act (Public Law 94-412) -----------------71
A. Introduction of S. 3957, 93d Congress (Congressional Record, v.
120, August 22, 1974: pp. $15784-$15794)---------------------71
B. Text of S. 3957, 93d Congress-----------------------------------92
C. Report on S. 3957, 93d Congress, by the Committee on Government
Operations, United States Senate (S. Rept. 93-1193) -------------95
I). Debate and adoption of S. 3957, 93d Congress, by the United States
Senate (Congressional Record, v. 120, October 7, 1974: pp.
S18356-S1&367)-------------------------------------------145
E. Introduction of H.R. 16668, 93d Congress (Congressional Record, v.
120, September 16, 1974: p. H9266, H9296)----------------------175
F. Text of H.R. 16668, 93d Congress------------------------------177
G. Introduction of H.R. 3884, 94th Congress (Congressional Record, v.
121, February 27, 1975: p. H1225)----------------------------179
H. Text of H.R. 3884, 94th Congress------------------------------180
I. Report on H.R. 3884, 94th Congress, by the Committee on the Judi-
clary, House of Representatives (H. Rept. 94-238)-------------183
J. Debate and adoption of H.R. 3884, 94th Congress, by the House of
Representatives (Congressional Record, v. 121, September 4,
1975: pp. 118325-118341)------------------------------------239
K. Introduction of S. 977, 94th Congress (Congressional Record,
v. 121, March 6, 1975: p. S3202)------------------------------285
L. Text of S. 977, 94th Congress----------------------------------287
M. Report on H.R. 3884. by the Committee on Government Operations,
U.S. Senate (S. Rept. 94-1168)------------------------------290
N. Debate and adoption of H.R. 3884 by the U.S. Senate (Congres-
sional Record, v. 122, August 27. 1976, pp. S14840-814844)---- 332
0. Adoption of Senate amendments to H.R. 3884, 94th Congress, by the
House of Representatives (Congressional Record, v. 122, August
31, 1976, p. H9253)-----------------------------------------341
P. Text of President's statement upon signing H.R. 3884 "Weekly Com-
pilation of Presidential Documents", v. 12, September 20, 1976.
p. 1340---------------------------------------------------343
Q. Text of Public Law 94-412, the National Emergencies Act (90 Stat.
1255)----------------------------------------------------344
Appendixes
A. Proclamations of national emergency terminated by Public Law
94-412-----------------------------------------------------351
B. The Federal Government and National Emergency Powers: A
General Bibliography--------------------------------------355
(Ix)













THE EVOLUTION OF THE NATIONAL EMERGENCIES ACT
(PUBLIC LAW 94-412)*
Momentary exigencies in the life of a democracy may require the
temporary exercise of extraordinary power to ensure the continued
existence of that state and the preservation of the freedoms and rights
guaranteed to its citizens during normal times. The aim of the Na-
tional Emergencies Act is to insure that the exercise of national emer-
gency authority is responsible, appropriate, and timely.
The origins of national emergency power in the evolution of Amer-
ica's national government can be traced to legislation enacted in 1775
by the Continental Congress.' Shav's Rebellion was probably the first
emergency test for the new Federal administration. Until the crisis
of World War I. Presidents utilized emergency authority, whether
specified in the statutes or implied by the Constitution, at their own
discretion. Special Presidential proclamations often announced the
exercise of this exigency authority. Since the period of the First
World W ar. the Chief Executive has. by means of a proclamation.
declared a condition of national emergency. sometimes confining the
matter of crisis to a specific policy sphere and sometimes placing no
limitation on the pronouncement whatsoever.
National err17 ge e ency p ,Oclama tiols
The first national emergency proclamation, explicitly issued as such.
was made (39 Stat. 1814) by President Woodrow Wilson on Febrni-
ary 5, 1917. Issued by virtue of the authority conferred upon the
President )v legislation establishingr the I-nited States Shipping
Board (39 Stat. 728), the proclamation was concerned with matters
of water transportation policy. It was terminated, along with a variety
of other wartime measures, by statute (41 Stat. 1359) on March 3,
1921.
The next national emergency proclamation was issued (48 Stat.
1689) by President Franklin b. Roosevelt on March 6, 1933, some
48 hours after assuming office. Issued upon the somewhat questionable
authority of the Trading With the Enemy Act of 1917 (40 Stat. 411),
the proclamation declared a "bank holiday" and halted all financial
transactions by closing the banks. The Chief Executive's action and
proclamation were sanctioned by Congress with the passage of the
Emergency Banking Act (48 Stat. 1) on March 9. The day this legis-
lation was signed into law the President issued a second banking proc-
lamation (48 Stat. 1691), based upon the authority of the new law,
continuing the bank holiday until the various banking institutions
*Prepared for the Special Committee by Harold C. Relyea, Analyst in American Na-
tional Government, Government Division. Congressional Research Service, Library of
Congress. under the direction of the staff of the Special Committee.
'-For a concise history of the evolution and exercise of emergency powers in the
United States see U.S. Congress. Senate. Special Committee on National Emergencies
and Delegated Emergency Powers. A Brief History of Emergency Powers in the United
States by Harold C. Relyea. Committee print 93rd Congress, 2d session. Washington,
U.S. Govt. Print. Off., 1974.
(1;







established that they were capable of conducting business in accord-
ance with new banking policy.
Actually, the powers possessed by the President as a result of this
emergency proclamation continued in force until their termination
was provided for in the National Emergencies Act, some four decades
later.
On February 28, 1935, President Roosevelt promulgated a proclama-
tion (49 Stat. 3438) which, while it did not directly announce a con-
dition of national emergency, recognized the continuation of an exist-
ing national emergency in the agricultural industry. Accordingly, the
proclamation established the effective dates of the Cotton Control Act
(48 Stat. 598) approved April 21, 1934. It was repealed on Febru-
ary 10, 1936 (49 Stat. 1106).
On September 8, 1939, President Roosevelt issued a proclamation
(54 Stat. 2643) of "limited" national emergency, though the law gave
no recognition to the qualifying term. Two years later, on May 27,
1941, the President issued a proclamation (55 Stat. 1647) of "un-
limited" national emergency. This action did not add any new powers
to the list of emergency authorities made available to the Chief Execu-
tive by the 1939 proclamation. Instead, the action was a political
gesture prompted by the conflict in Europe and growing tensions in
Asia.
These two war-related proclamations of a general condition of na-
tional emergency remained in effect until 1947 when certain specific
emergency and war statute provisions were terminated by a law (61
Stat. 449) approved on July 25 that year. Earlier, on September 29,
1945, President Truman had, by proclamation (59 Stat. 886), with-
drawn certain emergency provisions of the Internal Revenue Code as
the end of hostilities in both theaters of war made their use no longer
warranted.
On October 19, 1951, Congress terminated (65 Stat. 451) the declara-
tion of war against Germany. On March 20, 1952, the Senate ratified
the. treaty of peace with Japan. Because these actions legally estab-
lished the end of World War II, congressional action was required to
continue certain emergency provisions. By joint resolution, Congress
enacted the Emergency Powers Interim Continuation Act (66 Stat.
54) to maintain such emergency authority and continued to extend the
life of the measure (66 Stat. 96; 66 Stat. 137; 66 Stat. 296) until the
Emergency Powers Continuation Act was prepared and ratified (66
Stat. 330). This latter statute was continued (67 Stat. 18; 67 Stat. 131)
mtil August, 1953, when its emergency authorities were finally allowed
to elapse. On April 28, 1952, President Truman terminated by procla-
mation (66 Stat. c31) the 1939 and 1941 declared emergency conditions,
leaving operative only those statutorily continued by the above noted
laws.
Truman's 1952 termination announcement specifically exempted a
p)elaiation of national emergency (64 'Stat. A454) issued by Tru-
man on December 16, 1950. The 1950 national emergency, proclaimed
to provide the Chief Executive with additional powers to respond to
hostilities iii Korea, remained operative until 2 years after the enact-
ieint of the National Emergencies Act.
Ilat legislation also provided for the effective termination of two
emergency proclamations issued by President Richard M. Nixon. One







proclamation was issued on March 23, 1970, in response to a postal
strike. A second proclamation, issued on August 23. 1971, announced
a national emergency with regard to balance of payments in overseas
trade.
Con gressional concerns
As the years passed, concern was expressed in Congress over the
fact that President Truman's 1950 proclamation of national emer-
gency continued to exist long after the conditions prompting its issu-
ance had disappeared. (Other proclamations of emergency were not
apparent until studies disclosed their existence in 1973.) Senator
Charles McC. Mathias (R-Md.), in particular, was concerned that the
President was retaining extraordinary powers intended only for time
of genuine emergency and that the Chief Executive was thwarting
the legislative intent of the Congress by his failure to terminate the
declared national emergency. At the same time, concern over the Presi-
dent's exercise of war powers was growing as the United States be-
came deeply embroiled in hostilities in Vietnam. In the course of
examining American commitments in Southeast Asia, efforts were
initiated to bring a special focus to bear on the exercise of national
emergency powers. As Senator Mathias, a leader in this policy area,
later testified:
My own interest in the question of emergency powers developed out of our
experience in the Vietnam War and the incursion into Cambodia. It became clear
that the President had powers to commit us to warfare without adequate respect
for the constitutional requirement that Congress alone can declare a state of war.
During the years 1969-1972, particularly, I introduced or cosponsored numerous
bills to repeal Congressional resolutions in support of the President's actions, for
example, in Formosa and the Gulf of Tonkin. In 1971, I submitted Senate Con-
current Resolution 27 to establish a special joint committee to study the effect
of terminating the first state of emergency we found in existence, that declared
by President Truman in 1950 during the Korean War. Then on May 23, 1972, I
introduced, with Senator [Frank] Church's co-sponsorship, Senate Resolution 304,
which called for the creation of the Senate Special Committee on the Termination
of the National Emergency. The committee was to be empowered "to conduct a
study and investigation with respect to the termination of the 1950 emergency,"
to consider problems which might arise as the result of the termination and to
consider what administrative or legislative actions might be necessary.2
The Special Committee was initially established after S. Res. 304
was considered and reported by the Foreign Relations Committee (S.
Rept. 92-858, June 2, 1972) and the Senate Rules and Administration
Committee (S. Rept. 92-914, June 21, 1972). Reported from the latter
panel with technical amendments, the resolution was adopted by the
Senate on June 23.
With the convening of the 93rd Congress, the Special Committee on
the Termination of the National Emergency was again approved on
January 6, 1973, through S. Res. 9 after the Foreign Relations Com-
mittee was discharged from any further consideration of the instru-
ment. The Special Committee was subsequently continued by S. Res.
242, reported (S. Rept. 93-715) from the Committee on Rules and
Administration on February 28, 1974, and voted by the chamber on
March 1. With this measure the name of the panel was changed to the
Special Committee on National Emergencies and Delegated Emer-
2U.S. Congress. House. Committee on the Judiciary. Subcommittee on Administrative
Law and Governmental Relations. National Emergencies Act. Hearings. 94th Congress,
1st session. March 6, 13, 19, and April 9, 1975. Washington, U.S. Govt. Print. Off.,
1975, p. 20.







gency Powers to reflect its focus upon matters apart from the 1950
emergency proclamation.
At the opening of the 94th Congress, the Special Committee's man-
date was again extended with S. Res. 10 which was discharged from
the Foreign Relations Committee on February 5 and referred to the
Rules and Administration Committee where it was reported (S. Rept.
94-323) on July 23 and adopted three days later on July 26, 1975.
Unexpected legislative delay necessitated extension of the Special
Committee's life for an additional two months in 1976. S. Res. 370,
which authorized the extension, was introduced in the Senate on Jan-
uary 30, reported by the Rules and Administration Committee (S.
Rept. 94-672) on February 26, and passed by the Senate on March 1,
1976.
Committee operations
The Special Committee was organized and prepared to begin its
studies of emergency powers matters by the first week of January,
1973.3 During its entire life, the panel was co-chaired by Senator
Frank Church (D.-Idaho) and Senator Charles McC. Mathias, Jr.
(R.-Md.). Other members of the unit during its existence were Sen-
ators Philip A. Hart (D.-Mich.), Clifford P. Case (R.-N.J.), Clai-
borne Pell (D.-R.I.), James B. Pearson (R.-Kan.), Adlai E. Steven-
son III (D.-Ill.), and Clifford P. Hansen (R.-Wyo.). Generally,
during the 93rd Congress, the principal research and investigative
staff members of the Special Committee were William G. Miller, Staff
Director, and Thomas A. Dine. For the 94th Congress, the panel was
assisted by Jerry M. Brady, Staff Director, and William K. Sawyer.
An expression of the. spirit nd manner of procedure followed by
the Special Committee may be found in the following (April 11, 1973)
statement by Co-chairman Mathias:
The committee's bipartisan nature reflects the intention of the Senate to
examine emergency powers legislation solely from a constitutional perspective.
We want to determine how these powers affect the proper relationship between
the Executive and Legislative branches. For this reason, as specified by the
authorizing resolution, the Special Committee is working closely with the Admin-
istration. Attorney General [Richard] Kleindienst, in response to a specific
request of the Special Committee, has assigned members of the Justice Depart-
ment to work with the staff of the Special Committee, and, we are happy to report
that cooperation from the Justice Department has been full and thorough. It is
expected that other departments and agencies will provide similar assistance.
The first and most difficult task of the Special Committee is to be certain that
all of the statutes and relevant Executive Orders have been collected for study
and deliberation. At the present time, nowhere in the government---either in
Congress or in the Executive Branch-is there a complete catalogue of statutes
and Executive Orders pertaining to emergency powers. The staff of the Commit-
tee has undertaken-in cooperation with the Library of Congress, the General
Accounting Office, and the Justice Department-a computer search of all relevant
statutes in the U.S. Code. These findings are now being checked by the staff and
we expect that a reasonably complete catalogue of all emergency power statutes
will be issued as a committee print.
When the statutes and Executive Orders are assembled, the Special Committee
intends to work with the appropriate Executive departments and agencies to
review every statute to determine which statutes would be required in the event
of a future emergency. This process, in essence, would be an evaluation of their

3 P.S. Congress. Senate. Special Committee on the Termination of the National Emer-
gencYv. Review and Manner of Investigating Mandate Pursuant to S. Res. 9. 93d Congress:
A Working Paper. Committee print. 93d Congress, 1st session. Washington, U.S. Govt.
Print. Off.. 1973, p. 17.





5

present and future utility. Concurrently, the Special Committee intends to consult
with each standing committee of the Senate with regard to the particular emer-
gency powers that apply to its separate area of responsibility, and, to ask for its
judgment on which should be amended.4
Early in its work, the panel became aware of the existence of proc-
lamations of national emergency other than the 1950 declaration and
began grappling with a growing canon of emergency law revealed
through diligent research .5 Ultimately, three compilations were pro-
duced by the unit. The first of these, released in the autumn of 1973,
identified 470 provisions of Federal law delegating" extraordinary au-
thority to the Executive in time of national emergencv.6 The second
study, appearing in the spring- of 1974, identified a panoply of Execu-
tive Orders and Presidential proclamations implementing or otherwise
bearing upon the exercise of emergency power by the Executive.7 And
the final research product, offered during the summer of 1974, briefly
surveyed the history of the utilization and evolution of Federal emer-
gency power from the earliest days of the Republic to the closing
months of 1974.'
On April 11, 1973, the Special Committee began public hearings on
the matter of national elneroencies and the status of emergency powers,
the first such deliberations by a congressional panel since 1952.9 The
proceedings of April 11 and 12 and November 28 were devoted to con-
stitutional questions concerning emergency powers with some of the
leading constitutional scholars of the country offering their views to
the panel. Professor Robert S. Rankin of I)uke University (Emeritus),
Professor Cornelius P. Cotter of the university of Wisconsii., and
Professor J. Malcom Smith of the California State University testified
before the Special (onmittee on generally historical and legal matters
pertaining- to enier'ency l)owers. Dean Adrian S. Fisher of the Georoe-
town University Law School addressed tihe circumstances surrounding
the declaration of the 1950 national eiiergencv, citing his experience
as an advisor to President Trunan at the tillme tlhat declaration was
mnade. IDr.('erhard Casper, Professor of Law and Political Science
-it the Universitv of Chicago, sIok before the panel regarding con-
stitutional matters stirroundinc iExecuitve use of emergency powers
and comparing the experiences of other democratic states, particularly
those of the German NVeinar Republic. On July 24, former Attorneys
General Tom C. Clark (1945-1949). Nicholas (10f. Katzenbach (1965-
1967), and Ramsey Clark (1967-1969) offered their historical and
professional views on the emierrency powers situation. After his
4 U.S. Congress. Senate. Special Committee on the Termination of the National Emer-
gency. National Emergency. Hearings, 93d Congress, 1st session. April 11, 1973. Wash-
ington, U.S. Govt. Print. Off.. 1973. pp. 4-5.
5 See U.S. Congress. Senate. Special Committee on the Termination of the National
Emergency. Review and Manner of Investigating Mandate Pursuant to S. Res. 9. 93d
Congress: A Working Paper. Committee print. 93d Congress. 1st session. Washington,
U.S. Govt. Print. Off.. 1973, pp. 2-6.
See U.S. Congress. Senate. Special Committee on the Termination of the National
Emergency. Emergency Powers Statutes: Provisions of Federal Law Now in Effect Dele-
gating to the Executive Extraordinary Authority in Time of National Emergency. Com-
mittee print, 93d Congress. 1st session. Washington, U.S. Govt. Print. Off., 1973. [Also
issued as S. Rept. 93-549 and In an abridged form.]
7 See U.S. Congress. Senate. Special Committee on National Emergencies and Delegated
Emergency Powers. Executive Orders in Times of War and National Emergene '. Com-
mittee Print. 93d Congress, 2d session. Washington, U.S. Govt. Print. Off., p. 1974.
8 See Note 1.
9 See U.S. Congress. House. Committee on the Judiciary. Subcommittee No. 4. Emergency
Powers Continuation Act. Hearings. 2d Congress, 2d session. February 27. 28. 29,
March 6. 7, 12. 13. 21, 24, 26, 28, April 2, 7, 25, 28, 1952. Washington, U.S. Govt. Print.
Off., 1952.







resignation as head of the Justice Department, Elliot Richardson pre-
sented his views to the Special Committee as did former Solicitor Gen-
eral Erwin N. Griswold (1967-1972).10 After these hearings were
concluded, the Special Committee, on August 22, 1974, issued an in-
terini report (S. 93-1170) of findings and recommendation, saying, in
part:
In our view, Congress should provide statutory guidelines to assure the full
operation of constitutional processes in time of war or emergency. This is the
best prescription to avoid any future exercise of arbitrary authoritarian power.
For as the Youngstown Case [Youngstoum Sheet & Tube Company v. Sawyer,
343 U.S. 579 (1952)1 decided where there is a statute, the Executive is obliged
to use the statutory remedy; where there are no l-awful statutory guidelines is
to invite so-called inherent powers to come into play. There is without question
a need, in the view of the Special Committee, to provide the Executive branch
with an effective, workable method for dealing with future emergencies in accord
with constitutional processes. The Special Committee has sought to do this in
fulfillment of its mandate.
By unanimous approval of its membership on July 11, the Special
Committee recommended legislation "[t]o terminate certain authori-
ties with respect to national emergencies still in effect, and to provide
for orderly implementation and termination of future national emer-
gencies." As proposed, the measure (1) would terminate, after 271
days from the date of enactment, all powers and authorities conferred
by law upon the President or his Executive branch subordinates and
all powers and authorities conferred by any Executive Order pursuant
to law as a result of the existence of any national emergency currently
in effect, (2) established a procedure whereby future proclamations of
a national emergency by the Chief Executive would have to be pub-
lished in the Federal Register and in accordance with the requirements
of the act, (3) required that the President indicate what provisions of
emergency law he sought to have come into effect upon proclaiming a
national emergency with notice of same being made both to Congress
and in the Federal Register, (4) provided that a proclamation of na-
tional emergency would terminate after 180 days from date of declara-
tion unless terminated earlier or extended by an act of Congress, (5)
required that pertinent executive branch orders, rules, and regula-
tions having a bearing upon the exercise of national emergency author-
ity be maintained in a file, indexed, and otherwise made known to
Congress, and (6) repealed certain provisions of emergency law
deemed no longer worthy of continuation. In arriving at this
recommended legislation, the Special Committee had consulted the
Executive regarding the utility of existing emergency statutes, recom-
mendations for legislative action, and views as to the repeal of certain
provisions of emergency law."
National Emergencies Act
The Special Committee's recommended legislation (S. 3957) was
introduced in the Senate on August 22, 1974, by Senator Church for
10See U.S. Congress. Senate. Special Committee on the Termination of the National
Emergency. National Emergency. Hearings, 93d Congress, 1st session. April 11, 12;
July 24; [and] November 2S, 1973. Washington, U.S. Govt. Print. Off., 1973.
11 These views have been collected and published in U.S. Congress. Senate Special
Committee on National Emergencies and Delegated Emergency Powers. Executive Replies:
Evanluation of Emergency Powers Statutes. Committee print, 93d Congress, 2d session.
Washington. U.S. Govt. Print. Off., 1974; -. Executive Replies: Sum-
maries of the Executive Branch and Committee Recommendations. Committee print, 93d
Congress, 2d session. Washington, U.S. Govt. Print. Off., 1974;
Executive Replies: Statutes at Large. Committee print, 93d Congress, 2d session, Wash-
ington, U.S. Govt. Print. Off., 1974.







himself and seven other members of the panel (Senators Mathias,
Case, Hansen, Hart, Pearson, Pell and Stevenson) as well as Sena-
tors Lawton Chiles (D.-Fla.) and Sam Erwin (D.-N.C.) .12 Othor
subsequent co-sponsors included Senators Harrison Williams (D.-
N.J.), Edmund Muskie (D.-Maine), Jacob Javits (R.-N.Y.), Abra-
ham Ribicoff (D.-Conn.) and William Roth (R.-Del.). Referred to
the Committee on Government Operations, the measure was reported
(S. Rept 93-1193) on September 30 without public hearings or amend-
ment. The bill was debated on October 7, at which time Senator
Mathias offered certain amendments suggested in behalf of the Presi-
dent by the Office of Management and Budget which were accepted,
and adopted.13 Summarizing the proposed amendments, Senator
Mathias said:
What they do is very simple. They extend the grace period' [regarding the re-
peal of certain emergency power provisions of the U.S. Code] provided in the
bill from nine months to a year.
They provide that while Congress can terminate a national emergency at
any time by a concurrent resolution, there will be no automatic termination
after six months if there is no affirmative action. This has been replaced by a
requirement for the Congress to meet every six months to consider whether
to terminate an emergency. An expedited privileged procedure would assure
consideration and a vote should the Congress so decide.
We have reduced the list of statutes to be repealed. In working with the
other body, partially as a result of special committee studies, most of the pro-
visions that have been deleted from our original list are to be taken care of in
various deadwood projects by the Codification Committee of the House of
Representatives.
There are six statutes which are to be exempted from the provisions of this
act. These statutes include Trading With the Enemy Act, a Ready Reserve
provision, purchasing contract lease and claims authorities believed by the
Executive branch to be absolutely essential for the operation of government.
There is a requirement that the committees with jurisdiction over these provi-
sions must make a study and report recommendations within nine months about
modifications or any other changes to be made.
Finally, the requirement for accounting of expenditures incurred under the
authority of emergency powers statutes.., has been included.14
Although a version of the Special Committee's recommended legis-
lation was introduced in the House (H.R. 16668) by Representative
Peter Rodino, Jr. (D.-N.J.) on September 16, the Committee on the
Judiciary, to which the measure was referred, did not have an op-
portunity to consider either that bill or the Senate adopted proposal
due to the press of other business, chiefly the impeachment of Presi-
dent Richard M. Nixon and the nomination of Nelson A. Rockefeller
to be Vice President of the United States.15 The National Emergen-
cies Act thus failed to obtain passage in both Houses of Congress be-
fore the expiration of the 93rd Congress.
With the convening of the next Congress, the proposal was again
introduced in both chambers. In the House, Representative Rodino
offered the bill (H.R. 3884) for himself, Representatives Walter
Flowers (D.-Ala.), George Danielson (D.-Calif.), Barbara Jordan
(D.-Te:.), Romano Mazzoli (D.-Ky.), Edward Pattison (D.-N.Y.)
and Hamilton Fish, Jr. (R.-N.Y.) on February 27. 1975.16 Special
12 Congressional Record, v. 120. August 22. 1974 [Daily edition], S15784-15794.
13 Ibid., October 7, 1974 [Daily edition], pp. S18356-S18367.
14 Ibid.. p. 1,8357.
15 gee Ibid., September 16, 1974 [Daily edition], p. H9266.
"6 See Ibid., v. 121, February 27, 1975 [Daily edition], p. H1260.


66-474 0 76 2







Committee Co-chairmnen Church and Mathias introduced an identical
measure (S. 977) in the Senate on March 6.17
Hearings were held in the House before the Subcommittee on Ad-
ministrative Law and Government Relations, under the chairmanship
of Representative Flowers, on March 6, 13, 19 and April 9.18 Testi-
mony was taken from a number of government witnesses; the bill
was subsequently marked up and, on April 15, the Subcommittee re-
ported, by a 4-0 vote, an amended version of the measure to the full
Committee on the Judiciary. Major changes in the proposal included
the addition of further emergency power provisions of the U.S. Code
to the exemption from termination section of the legislation and an
extension of the one year grace period on terminated provisions to two
years. On May 21, the full Committee, by voice vote, reported (H.Rept.
94-238) the bill with technical amendments.'9
During the course of debate on the proposal on September 4, the
House agreed to the Committee amendments, adopted an amendment
1)providing that national emergencies end automatically one yet'r after
the declaration date unless the President transmits a message to Con-
gress and prints notice in the Federal Register that the emergency
is still in effect, and accepted the bill on a 388-5 yea-and-nay vote.20
The. measure was then sent to the Senate and referred to the Committee
on Government Operations.2'
On May 28, 1976, the Senate Special Committee on National Emer-
i'encies and Delegated Emergrency Powers issued its final report
(S. Rept. 94-922). After summarizing its activities and efforts, the
Special Committee urged immediate passage of the National Emer-
'eClles Act, close congressional committee scrutiny of the statutes
exelmll)ted from the rescinding provisions of the Act, careful congres-
sional review of future requests for 1)ermanent statutory emergency
authority, 'vigilance in detecting potential efforts to bypass or circum-
vent the intent of the Act. congressional inquiry into emergency pre-
paredness efforts conducted by the Executive, congressional prepara-
tion foir dealing with a declared emergency (including continuous
review of the canon of emergency law), striving to halt open-ended
,iants of authority to the Executive, more vigorous investigation and
oversitit of dele, 'ated powers, and improvement of accountability
rOcedi-res withIiregard to Executive decision-making.22 The Special
(ommittee's mandate and operational authority terminated on April
30.
Tlle Senate ('omnittee on Government Operations subsequently re-
l)orted (S. Rept. 94-1168) the National Emiergencies Act on ugust
26 witi one substantive and several technical amendments. According
to the panel report"
with respect to the substantive ameiidient, following consuItations with
several colstitutiolal law experts, the (1nimittee concluded that section 201(a)
I, See Ibid., March 6, 1975 [Daily edition, p. S3202.
18 U.S. Congress, House Committee on the Judiciary. Subcommittee on Administrative
Law and Governmental Relations. National Emergency Act. Hearings, 94th Congress. 1st
Session. :\larch 3, 1,. ,19. and April 9, 1!975. Washington, U.S. ovt. Print. Off., 1975.
19Congressional Record. v. 120. May 21. 1975 [Daily edition], p. 114577.
21 Ibid., September 4. 1975 [Daily edition], p. 115327-HS341.
"I Tbid., September 5. 1975 [Daily edition]. ). S15373.
22 U.g. Congress. Senate. Special Committee on National Emergencies and Delegated
Emergency Powers. National Emergencies and Delegated Emergency Powers. Washington,
U.S. Govt. Print. Off., 1976. 38 p. (94th Congress, 2d session. Senate. Report No. 94-922).








is overly broad, and might be construed to delegate additional authority to the
President with respect to declarations of national emergency. In the judgment
of the committee, the language of this provision was unclear and ambiguous
and might have been construed to confer upon the President statutory authority
to declare national emergencies, other than that which he now has through
various statutory delegations.
The Conmitte? amendment elarifies and narrows this language. The Committee
decided that the definition of when a President is authorized to (leeare a national
emergency shouldd be left to the various statutes which give him extraior(linary
powers. The Naticnal Emergencies Act is not intenlded to enlarge or add to Exe'u-
tive power. Rather the statute is an effort by the (ongress to establish clear
procedures and safeguards upon him by other statutes.
Therefore, the Committee nmni(nent makes nm attenI)t to define when a dec-
laration of national emergency is proper. The amen(dnent silnI)ly requires the
President to transit to ilie Congress and publish in the Fdral Register a
Presidential declaration of national emergency authorized by other Acts of
Congress.'
The following (day the Senate adopted the bill with all committee
amendments and returned the measure to the House.24 On August 31
the House agreed to the Senate amendments, clearing the proposal for
the President's signature.25
President Ford signed the bill into law (Piblic Law 94-412) on
September 14, 1976.26
Other ]I'mergencwy po wer, aetsi,
During the course of the adoption of the National Emergencies Act.
three other significant emergency powers developments occurred. Al-
though efforts were made to continue the authority, a title of the
Federal Civil Defense Act of 1950 (50 U.S.C. App. 2297) granting
the President or Congress power to declare a civil defense emergency
whenever an attack on the United States occurred or was anticipated
expired on June 30, 1974 after the House Committee on Rules failed
to report on the measure extending the statute.(I Thus, a means of
declaring an emergency was terminated and statutes activated )iirsii-
ant to this provision were relegated to permanent dormancy.
By proclamation of February 19. 1976 (41 F.R. 7741), President
Ford( gave notice that E.O. 9066. providing for the interment of
Japanese-Americans during World War II. was cancelled as of the
issuance of the proclamation (11 F.R. 1) formally establishing the
cessation of the hostilities of World War II on D ecember 31. 1946.
Certain statutory authority (18 U.S.C. 13S3) relevant to this Execu-
tive order is cancelled by the National Emergencies Act.2s
Also, legislation was adopted (Public Law 94-286) on May 14.
1976. ,granting the President the authority to order certain selected
members of an armed services Reserve component to active duty other
than during" a state of war or a condition of national emergency. Pre-

U.S. Congress. Senate. Committee on Government Operations. National Emergencies
Act. Washington, U.S. Govt. Print. Off., 1976. (94th Congress, 2d session. Senate. Report
94-1168), p. 3.
24 See Congres8ional Record, v. 112, Aug. 27, 1976: S14840-S14844.
25See ibid., Aug. 31, 1976: H9253.
26See Weekly Compilation of Presidential Documents, v. 12, Sept. 20, 1976; 1340.
27 See U.S. Congress. House. Committee on Armed Services. Full Committee Considera-
tion of . H.R. 13329. . Hearings, 93d Congress, 2d session July 25, 1974. Wash-
ington. U.S. Govt. Print. Off., 1974. 30 p.; -. -.. Extending Civil De-
fense Emergency Authorities. Washington, U.S. Govt. Print. Off., 1974. 22 p. (93d Cong.,
2d session. House. Report No. 93-1243).
21However. not all such authority is cancelled by the statute" see 10 U.S.C. 2152.






10


viously, this authority (10 U.S.C. 673) had been limited to a "time of
national emergency declared by the President" or "when otherwise
authorized by law." 29

-9 See U.S. Congress. Senate. Committee on Armed Services. Subcommittee on Manpower
and Personnel. Military Manpower Issues of the Past and Future. Hearings, 93d Congress,
2d session. August 13 and 14, 1974. Washington, U.S. Govt. Print. Off., 1974, pp. 7-9, 17,
32-36, 38-40; -. ; Reserve Call-Up. Hearings, 94th Congress,
1st session. July 30, 1975. Washington, U.S. Govt. Print. Off., 1975. 35 p. ;
Enabling the President to Authorize the Involuntary Order to Active'Duty of
Selected Reservists for a Limited Period Without a Declaration of War or National Emer-
gency. Washington, U.S. Govt. Print. Off., 1975. (94th Congress, 1st session. Senate.
Report No. 94-562) 23 p. ; House. 'Committee on Armed Services. Full Committee
Consideration of S. 2115. ... Hearings, 94th Congress, 2d session. April 17, 1976. Wash-
ington, U.S. Govt. Print. Off., 1976; 4 p. ; -. Authority For Limited
Reserve Mobilization. Washington, U.S. Govt. Print. Off., 1976. (94th Congress, 2d session.
House. Report No. 94-1069) 27 p.; Robert K. Musil. Troops for a Five-Star President.
The Nation, v. 222, Feb. 28, 1976: 238-241.
























II
THE SPECIAL Com-MITrEE ON THE TERMINATION OF THE NATIONAL
EM ERGENCY
AND

THE SPECIAL C03MITrEE ON NATIONAL EMERGENCIES AN-I)
DELEGATED EMERGENCY POWERS
1. Initial authorizing resolution
2. Recommended National Emergencies Act
3. Final report














INITIAL AUTHORIZING RESOLUTION OF THE
SPECIAL COMMITTEE
[Congressional Record-v. 118, May 23, 1972-pp. S18367-S18369]
SENATE RESOLUTION 304--SUBMISSION OF A RESOLUTION AUTHORIZING
EXPENDITURES BY THE SPECIAL COMMITTEE ON TERMINATION OF THE
NATIONAL EMERGENCY
(Referred to the Committee on Foreign Relations.)

LET'S END THE NATIONAL STATE OF EMERGENCY
Mr. MATHIAS. Mr. President, on behalf of Senators Pell, Hart,
Church, Gravel, Eagleton, Cooper, Stevenson, Williams, Javits,
Mansfield, Hartke, Case, Chiles, Cranston, and myself, I submit a
resolution which is 20 years overdue. As my colleagues will recall, last
year, with the cosponsorship of 15 other Senators, I submitted Sen-
ate Concurrent Resolution 27 to establish a special joint committee to
study the effects of terminating the state of national emergency de-
clared by President Harry Truman in 1950. Today I am introducing a
revised version of that resolution which reflects its consideration by
the Senate Foreign Relations Committee, the Department of State,
and a variety of concerned citizens and groups throughout the country.
It may surprise some to learn that we are still in a state of national
emergency proclaimed in the depth of the Korean War. And that
while the Korean War has passed into history, the emergency pro-
claimed to deal with that war remains in force.
Based on authority granted by the Emergency Banking Act of 1933,
a President can, by the simple expedient of declaring a national emer-
grency, assume a vast web of powers rendering the Congress expend-
able. This is not simply an interesting anachonism without practical
force. The powers available to the President under this state of emer-
gency are not trivial-fully some 200 special powers accrue to the
President from it. In January, 1968, for example, President Johnson
used it to control American investments abroad in an effort to ease
that year's balance-of-payments crisis. In February, 1971, President
Nixon invoked the same authority to suspend the provisions of the
Davis-Bacon Act.
In this past year, we have witnessed a striking application of Presi-
dential emergency powers. With a single speech on August 15, Presi-
dent Nixon did more than months of Senate hearings to dramatize
the enormous arsenal of powers within the grasp of the Executive.
Wielding authority granted him by law, the President drastically
changed the economic course of the Nation and the world. By the time
Congress returned three weeks later, it was required to legislate in a
radically altered political and economic context.
(13)







While the President's new economic policies represent a bold and
necessary response to a serious crisis and they have my support, the
powers he was able to invoke emphasize anew the scope of authority
which Congress has relinquished to the Office of the President. Thus, in
adding power over the dollar to his command of American military
forces and his influence over mass media, the President has lent sup-
port to the conclusion of Professor I)uane Lockard, chairman of the
Department of Politics at Princeton, that-
In essence the Presidency has become an elective kingship with decisive power
in a broad range of matters ... He can start a war or end one; he can breathe
life into a domestic project or smother it.
This situation is not without legislative precedent. Alas, Congress
has frequently been accomplice in its own decline, conceding initiatives
to the Executive and tolerating procedural abuses when their ends
were agreeable. One need only name the Formosa Resolution of 19551
the Middle East Resolution of 1957, the Cuba Resolution of 1962, and
the Gulf of Tonkin Resolution of 1964 to illustrate how readily Con-
gress delivered up to the President large elements of its constitutional
jurisdiction.
Mr. President. the resolution which I am introducing today seeks to
restore the constitutional balance between the Presidency and the Con-
gress. It establishes a bipartisan Senate committee to study the prob-
lems which may arise as the result of terminating our protracted state
of national emergency and to consider the necessary or desirable legis-
lative actions toward this end. It is expected that the committee's rec-
ommendations would, among other things, have the effect of restoring
to Congress its full constitutional authority to regulate commerce, and
would clearly define a national emergency. Together with the War
Powers bill which was passed by the Senate in April, this would serve
to assure that emergency powers would only be applied for the dura-
tion of genuine emergencies.
In the effort to restore the constitutional balance between the Execu-
tive and Legislative branches of our Government, the War Powers bill
and now the emergency powers resolution, represents a good start. We
must press forward to see them passed this year. And we must repel
any effort to bring them into the arena of partisan politics in this elec-
tion year. Restoring to Congress its constitutional responsibility is an
effort which must be joined by Republicans and Democrats, liberals
and conservatives. Can we really afford the cavalier disdain of George
Washington Plunkett, a Tammany Hall ward heeler who once asked:
What's the Constitution among friends?
I believe not. I believe it is now our task to press on in trying to make
the Constitution work-among friends.
Mr. President, upon introduction of my emergency powers resolu-
tion last year, I spoke at length about the long and lamentable history
of accumulation of power in the office of the President. I do not wish to
take up my colleague's time today by reiterating my remarks, but I ask
unanimous consent that they be printed in the Record at this point,
together with the text of my resolution.
[There being no objection, the remarks and resolution were ordered
to be printed in the Record, as follows:]








REMARKS OF MR. MATHIAS
Mr. MATHIAS. Mr. President, last year, Congress revoked the Gulf of Tonkin
Resolution of 1964. It was a first step in the long-overdue effort to restore to
Congress its responsibilities under the Constitution for questions of war and
peace.
In February of this year, Senator Javits introduced S. 731, A Bill to Regulate
Undeclared War. Also in February, Senator Church introduced Senate Joint
Resolution 48 to repeal the Formosa Resolution of 1955. I was pleased to co-spon-
sor both. In the next weeks, I shall introduce legislation to repeal the Middle East
Resolution of 1957 and the Cuba Resolution of 1962.
Today, I rise to present a Senate Concurrent Resolution aimed at terminating
the state of national emergency proclaimed by President Truman in December,
1950, in the depth of the Korean War. It is a sad paradox that this country has
remained officially in a state of emergency since that time. Indeed, it may be
useful at this point briefly to review how Congress-with barely a whimper-re-
linquished important parts of its constitutional authority to the office of the
President.
On May 9, 1933, at a moment of dire Depression emergency, Franklin D. Roose-
velt convened the Congress and demanded, in effect, that it revamp the Constitu-
tion before midnight. The purpose of the reform was to make Congress-and the
Constitution-optional at the discretion of the President, as the national interest
required.
The demand came as part of the Emergency Banking Act, an omnibus bill re-
organizing the nation's then collapsing banking system and retroactively legitimiz-
ing the President's Bank Holiday proclamation of three days before. Referred to
the Banking and Currency Committee-with instructions that it be reported out
in an hour-the bill was not printed and was not available for Senators to read.
Senator Long complained that he did not know what was in it until it was read
by the clerk. Most Senators indicated that they had grave reservations about
what they understood to be the bill's provisions and Senator Long protested the
extraordinary powers it granted to the President. But in the extremity of the
crisis at hand, Congress felt it had to act immediately as the President demanded.
The bill was passed by both Houses before midnight and the American constitu-
tional Republic has been in its Damoclean shadow ever since.
The key provision, not much remarked by the Congress at the time, came in an
amendment to section 5b of the Trading With the Enemy Act of 1917. As enacted
in 1917, section 5b shifted from Congress to the President the power to regulate
trade and financial transactions between Americans and foreigners in wartie.
The 1933 amendment to 5b authorized the President-by the simple expedient of
declaring a national emergency-to assume in peacetime these extensive wartime
emergency powers.
By declaring in the 1933 amendment that the President could assume emergency
Lowers by declaration in peacetime, Congress established a principle with rever-
berations going far beyond the legislation at hand. For the courts have interpreted
the principle as creating a virtually unlimited Executive prerogative that now
applies to some 200 laws granting special powers to the President during national
emergencies. But neither Congress nor the courts has set criteria to define the
kind of crisis which would justify invocation of these multifarious powers. Since
1933 they have been available essentially as the President wishes.
In accord with President Roosevelt's approach, the President is left to deter-
mine by himself when a national emergency exists and when it ends-when the
Executive should have access to the near dictatorial authority conveyed in emer-
gency legislation. The President decides when he should share power with Con-
gress as the Constitution prescribes, and when Congress can be made optional by
proclamation.
This assignment of emergency powers has worked very smoothly over the years.
Since that dire extremity of 1933, there have been six Presidents-four Democrats
and two Republicans. They have disagreed on many issues. But they have been
unanimous on the question of when the country is in a state of national emer-
gency and when the Congress, on a wide range of issues, is optional. Their answer,
quite simply put-in a word-is: always. In the last 37 years, the country has
passed through many vicissitudes of war and peace. But Presidential powers have
been continuously "at war." Not once during that period has a President allowed
his special powers to la)se. The result, described by Jeffrey G. Miller and John








R. Garson in an excellent article in the lFebruary, 1970, issue of the Boston College
Industrial and Con~imercial Law Review', is that "some 60 percent of the nation's
population have lived their entire lives under a continuous unbroken chain of
national emergencies."
A court did judicially acknowledge-in 1962-that the Depression had ended.
But no authority has yet recognized the end of the Korean emergency, proclaimed
by President Truman on December 16, 1950, and still in effect today. Since the
President declared with reference to Korea that "world conquest by communist
imperialism is the goal of the forces of aggression," the State Department has
interpreted the emergency as meaning the Cold War.
This interpretation, however, has not limited the emergency powers to military
matters affecting the protracted conflict with the Communists. The Korean au-
thority, in fact, was most recently invoked in 1968 in relation to our economic
competition with our European allies. President Johnson felt he would have diffi-
culty securing from Congress the broad powers he needed to deal with the deficit
which had been emerging for several years in the nations balance of payments,
Yet the Constitution clearly reserves to the Legislative branch all powers for reg-
ulating foreign commerce. So the President invoked the emergency powers
granted in 1950 in relation to the Korean War and signed Executive Order 11387,
"Governing Certain Transfers Abroad." The Department of Commerce immedi-
ately issued the Foreign Direct Investment Regulations (FDIR). The Executive
Order and the FDIR restrict the amounts of capital that American investors may
transfer to or accumulate in foreign affiliates and compel repatriation of short-
term liquid balances such as foreign bank deposits.
Without citation of the Korean War powers, these measures clearly represent
an unconstitutional encroachment on legislative authority. The courts have up-
held them, however, and they remain the law of the land. It is currently the law
of the land, therefore: that the state of national emergency proclaimed by Presi-
(lent Truman in 1950 in relation to the Korean conflict can be invoked in rela-
tion to a balance of payments deficit 18 years later. Similarly, regulations against
gold hoarding, activated by the Depression emergency, are continued under the
1950 Iproclamation. Other measures invoked under section 5b pursuant to the
Korean proclamation include the Foreign Assets Control Regulations, the Egyp-
tian Assets Control Regulations, and the Cuban Assets Control Regulations. The
('uban trade embargo of 1962 was also based in part on the 1950 emergency.
Among the nearly 200 other emergency laws are measures permitting the Pres-
ident to sell stocks of strategic materials, revoke leases on real and personal
property, suspend rules and regulations applicable to broadcasting stations,
detain enlisted troops beyond the term of their enlistments, detail military
men to the governments of other countries, and exercise control over consumer
credit. Among hundreds of local properties available to the Executive, the
President may take over parts of Howard University, an( in my own state of
Maryland, he may close Fort MeHenry-the birthplace of the "Star Spangled
Banner"-and "use it for such period thereafter as the public needs may require."
These powers infringe on so many crucial constitutional rights and principles
that collectively they may b~e seen as placing our system of democratic govern-
ment in jeopardy. Certainly the deprivation of rights and property is author-
ized without due process. But perhaps most important, these measures threaten
the (-onstitutional balance of powers between the Executive and Legislative
I'alches. Because a state of official emergency has continued since 1933-
and has been upheld by the courts to validate actions unrelated to the original
cisis--th e 11a1 iol'l ll emlergell'c p* owers have :ccllelil'Ited and becolne
institutionalized in the Executive. The Presidency, already enhanced by modern
trends, has been further aggra ndized by the paradox of the continuous emner-
gency.
Unless we accept the princilde of anl optional Constitution and an optional
Congress, we must reject the concept of national emergencies declarable by the
President at his discretim1 in I)eacetime without termination dates. Since this
concept has 1ill1en upheld in essence by the Courts, it is up to the Congress to
recover by legislation the constitutional role that it has allowed the Executive
to usirp. We must reassert the principle that emergency powers are available
only for brief periods when Congress is unable to act and for purposes directly
related to the emergency at hand.
This is easier said than done. We discover that the continue mis and cumulative
Ind institutionalized emergency is also almost irrevocable. So many Executive






17

ai.encies and procedures are rooted in emergency powers that it is extremely
difficult to rescind them without major administrative disruptions. With this
in mind, the distinguished Majority Leader, Mr. Mansfield, joined with me dur-
ing the last session in S.J. Resolution 166, a resolution which, among other
things, proposed the creation of a special committee to explore with the execu-
tive the consequences of terminating the Korean Emergency. In the aftermath
of the Cambodia incursion, however, our proposals were not acted upon. And
so I am now reintroducing the resolution as a Senate Concurrent Resolution.
It calls for the establishment of a commission to study and make recommenda-
tions terminating the state of national emergency.
It is to be expected that the commission's recommendations would, among other
things, have the effect of restoring to Congress its full constitutional authority
to regulate commerce, and would clearly define a national emergency. To-
gether with S. 731. An Act to Regulate Undeclared War, which was introduced
in February by the distinguished Senator from New York, Mr. Javits, this
would serve to assure that emergency powers would only be applied for the
duration of genuine emergencies. The Constitution did not envision a state of
national emergency to be the normal state of affairs.
Under the best of circumstances, the Congress will not find it easy to main-
tain its historic constitutional role in the modern age. Modern communications,
national interdependence, and international involvement coverage to enhance the
Presidency; real emergencies continually arise requiring the kind of decisive
response the Executive is best equipped to give. But if the Congress allows
these national Executive advantages to be expanded by special emergency pow-
ers responding to unspecified emergencies without determination or limit, the
balance of powers between the branches of our government may be irreparably
broken.
I believe that we do face today a national emergency-even a paradoxically
continuous one. It emerged during the Depression and has been with us for
several decades. It is a crisis that throws our whole system of constitutional
government into jeopardy. This emergency-if I may use the term so loosely-
is the atrophy of Congress. It is not an emergency which calls for the decisive
exercise of Executive powers. It calls for the decisive recovery of legislative
powers.
Only Congress can redeem itself; but in serving itself, it can also save the
Constitution. And I believe that to save the Constitution is to save the most
precious heritage of our country.

S. RES. 304
Whereas, the existence of the state of national emergency proclaimed by the
President on December 16, 1950, is directly related to the conduct of United
States foreign policy and our national security, now, therefore, be it
Resolved, That (a) there is hereby established a special committee of the
Senate to be known as the Special Committee on the Termination of the Na-
tional Emergency (hereinafter referred to as the "Special Committee").
(b) The Special Committee shall be composed of eight Members of the Senate
equally divided between the Majority and Minority parties to be appointed by the
President of the Senate, four of whom shall be members of the Committee on
Foreign Relations.
(c) The Special Committee shall select a chairman and vice chairman from
among its members. A majority of the members of the Special Committee shall
constitute a quorum thereof for the transaction of business, except that the
Special Committee may fix a lesser number as a quorum for the purpose of taking
testimony. Vacancies in the membership of the Special Committee shall not affect
the authority of the remaining members to execute the functions of the Special
Committee.
SEC. 2. (a) It shall be the function of the Special Committee to conduct a study
and investigation with respect to the matter of terminating the national emer-
gency proclaimed by the President of the United States on December 16, 1950,
and announced in Presidential Proclamation Numbered 2914, dated the same
date. In carrying out such study and investigation the Special Committee shall:
(1) con.-ult and confer with the President and his advisers;
(2) consider the problems which may arise as the result of terminating such
national emergency; and






18

(3) consider what administrative or legislative actions might be necessary
or desirable as the result of terminating such national emergency, including con-
sideration of the desirability and consequences of terminating special legislative
powers that were conferred on the President and other officers, boards, and com-
missions as the result of the President proclaiming a national emergency.
SEC. 3. For the purposes of this resolution the Special Committee is authorized
from date of agreement to this Resolution through February 28, 1973, in, its
discretion (1) to make expenditures from the contingent fund of the Senate,
(2) to employ personnel, (3) to hold such hearings, (4) to sit and act at such
times alnd llaees during the sessions, recesses, and adjourned periods of the
Senate, (5) to require by subpoena or otherwise the attendance of such witnesses
and the production of such correspondence, books, papers, and documents, (6)
to take such testimony, (7) to procure the services of individual consultants
or organizations thereof, in accordance with the provisions of section 202(i) of
the Legislative Reorganization Act of 1946, as amneided, and (8) with the prior
consent of the Government department or agency concerned and the Committee on
Rules and Administration, to use on a reimburseable basis the services of person-
nel of any such department or agency.
SEC. 4. The expenses of the Special Committee under this resolution shall not
exceed $100,000, of which amount not to exceed $15,000 shall be available for the
procurement of the services of individual consultants, or organizations thereof
as authorized by section 202 (i) of the Legislative Reorganization Act of 1946, as
amended.
SEC. 5. The Special Committee shall report its findings, together with such
recommendations for legislation as it deems advisable, to the Senate at the
earliest practicable date, but not later than February 28, 1973.
SEC. 6. Expenses of the Special Committee under this resolution shall be paid
from the contingent fund of the Senate upon vouchers approved by the chairman
of the Special Committee.








93D CONGRESS SENATE REPORT
2d Session No. 93-1170





A RECOMMENDED NATIONAL EMERGENCIES ACT


SEPTEMBER 24, 1974.-Ordered to be printed


Mr. CHURCH, from the Special Committee on National Emergencies
and Delegated Emergency Powers, submitted the following

INTERIM REPORT

BY TIE SPECIAL CO-M-MITIEE ON NATIO-NAL EMERGENCIES AND DELE-
GATED EMERGENCY POWERS IN SUPPORT OF A RECOMMENDED NA-
TIONAL EMERGENCIES ACT
The Special Senate Committee on National Emergencies and Dele-
gated Emergency Powers, pursuant to Senate Resolution 304, June 23,
1972, Senate Resolution 9, January 6, 1973, and Senate Resolution 242,
January 23, 1974, submits herein an interim report in support of rec-
ommended legislation: A National Emergencies Act (see attachment).
Because of its critical importance, the Special Committee recommends
that this legislation, approved unanimously by its eight members, be
acted upon at the earliest opportunity.
It is the Special Committee's view that legislative action is required
because it is distressingly clear that our Constitutional government
has been weakened by 41 consecutive years of emergency rule. There
are now in effect four Presidentially proclaimed states of national
emergency which give the President the authority to rule the United
States outside of normal Constitutional processes: The national
emergency declared by President Roosevelt in March 1933 to fight
the 6reat. Depression, the national emergency proclaimed by Presi-
dent Truman in December 1950 during the Korean conflict, the
national emergency declared by President Nixon, March 23, 1970 to
handle the Post Office strike, and the August 15, 1971 national emer-
gency proclaimed to meet balance of payments and other international
economic problems.
A majority of the American people have lived all their lives
under emergency government. During this period of four decades, the
President, through what is now over 470 legally delegated powers, has





20


had at hand the power to rule the United States outside of normal
Constitutional processes.
There is no longer any valid reason for emergency rule to continue.
In the judgment of the Special Committee, our government would
be strengthened by bringing to an end all declared states of national
emergency presently in existence, and this should be done as soon as
possible.
The four proclamations of national emergency. together with the
,liithoritv delegated by emergency powers statutes, have provided
the President-any President-with extraordinary powers, among
others, to seize property and commodities. organize and control the
means of production, call to active duty 2.5 million reservists. assign
military forces abroad, seize and control all means of transportation
and communication, restrict travel, and institute martial law, and, in
many other ways, manage every aspect of the lives of all American
citizens.
A few examples from the 470 emergency statutes now in force should
make it clear what kinds of extraordinary discretionary power have
been delegated to the President:
Statute 10 USC 712 permits the President "during a war or a
declared national emergency" to "detail members of the Army,
Navy. Air Force, and Marine Corps to assist in military matters"
in any foreign country.
During the war in Southeast ksin and duringf th Berlin air-
lift on several other occasions. the Department of Defense ,,sed
a little known law of more than 100 years' vintage, The Feed
and Forage Act of 1861, 41 USC 11, to fund certain military
activities not previously authorized by the Congress. The original
intent of the Feed and Forage Act was to enable the United
States cavalry posted on the Western frontier to requisition feed
for its horses and other supplies when Congress was out of session
and thus unable to provide the necessary funds. This law was
kept on the books and was used for deficiency spending for food,
medicines, clothing and other similar supplies when Congress
was not in session. In recent years this law haIl been used to spend
funds not authorized by the express will of the Congress even
when in session.
Under 10 U.S.C. 333, the President can use the militia or armed
forces to suppress "conspiracy" if it is likely that "any nart"
of the people in a state will be deprived of some constitutional
igiht. and the stato itself refiises to act. U under this statute, the
President conceivably could circumvent Article IV, Section 4,
of the Constition even before waitiiwy for state legislatures or
state executives to request Federal troops.
Under 18 'SC 138o, the President has authority to declare
any part or all of the United States military zones. People in
si1(11 zones can be jailed for a Year for violating any "executive
order of the President." Would these arrests be reviewable in
court ? It is not clear. Judicial review of agency actions is guar-
nteed in 5 USC 702. bt 5 USC 701 excludes actions taken uner
declarations of martial law.


S.R. 1170







3

A President could make use of Public Law 733, which expresses
the determination of the United States to prevent "by whatever
means may be necessary including the use of arms," any "sub-
versive" activities by the government of Cuba.
Under 47 USC 308. the Federal Communications Commission
could, during a national emergency, modify existing broadcast
licenses under terms it might prescribe.
Under 47 USC 606, the President can amend "as he sees fit"
the rules and regulations of the Federal Communications Com-
mission and, in particular, can "cause the closing of any facility
or station for wire communications."
If the President finds the nation "threatened by attack," he
could, under 44 USC 1505, cease to publish his regulations in the
Federal Register if he determines that it is "impracticable." This
could open the way to promulgation of secret laws.
At the present time, only a small portion of these 470 delegated
emergency powers is being used. This is proof that there is no longer
an "emergency" that requires extraordinary delegations of power. In
the view of the Special Committee, this body of potentially authori-
tarian power remains a hazard to democratic government. Aggressive
Presidents, permissive Congresses, and a long series of successive crises,
have all contributed to the erosion of the structure of divided powers,
the bedrock of our Constitutional system of government.
The study undertaken by the Special Committee of how the four
states of national emergency came into being, and how the over 470
emergency statutes became the law of the land, provides a disturbing
explanation of the deterioration of law-making during the )ast four
decades.
In the particular area of emergency powers statutes, the constitu-
tionally prescribed roles of the Legislative and Executive branches
have been reversed. The Special Committee's studies show that in far
too many instances, the Executive branch itself drafted the laws and
cast them in such form as to give itself maximum advantage. It is
understandable that the Executive branch, in drafting laws granting
power to itself, did not provide either for oversight or for termination
by Congress. It is also not surprising that most of these laws were
passed in times of crisis, when because of the urgency, Congress acted
hastily without real scrutiny, without thorough hearings, and without
the deliberation that such legislation should have demanded. For these
reasons, Congress has not exercised its responsibilities prudently; it
has not even reserved for itself the means to recoup its lost powers.
Now, in a time of relative world peace, Congress has the opportunity
to draw back and reexamine how profligately we have dealt with war
and other emergencies. Our sobering experience with the undeclared
Korean and Vietnam wars heightens the necessity to understand the
means available within the Constitution, to meet crisis situations af-
fecting our national security.
The Special Committee has held extensive hearings seeking the
views and advice of the country's most distinguished authorities on
Constitutional government in time of crisis. In addition to scholarly
authorities in the fields of political science and the law, the Special


S.R. 1170





22


4

Committee sought the counsel of all the former Attorneys General and
two former Supreme Court Justices, as well as many distinguished
lawyers. On the basis of the suggestions and perspective gained from
these hearings, and from two intensive staff studies of emergency
power statutes and Executive Orders, and upon the basis of the data,
a( vice and counsel supplied by the Executive branch, the Special
Committee has drafted legislation which would provide:
(1) For the termination of the present states of national
emergency;
(2) For the establishment of a regularized procedure for the
use of delegated emergency power in future emergencies. The
President could declare a national emergency and in his public
proclamation would cite the specific statutory powers he requires
to meet the emergency. The Congress would have six months to
act to affirm or reject. If Congress takes no action, the state of
national emergency would lapse after six months. The Congress
could extend any state of national emergency by affirmative vote.
But no extension could last for more than six months without
another affirmative vote by the Congress.
(3) For a means of providing accountability for actions taken
pursuant to emergency power statutes in any future emergency;
and
(4) For a listing of those statutes which both the Executive
branch and the respective standing committees of the Senate agree
can be repealed because they are obsolete.
The recommended legislation, entitled the "National Emergencies
Act," would not come into effect until nine months after its date of
enactment, in order to give Executive branch, agencies and Congres-
sional Committees sufficient time to work out unresolved issues. It is
clear that it may be necessary to cast into permanent form certain
statutes which now are written in a form contingent upon the existence
of a state of national emergency. The grace period would permit all
such matters to be resolved through the normal legislative processes.
The record of cooperation between the Legislative and Executive
branch in working toward a legislative remedy, has been exemplary.
Every department and agency of the Executive branch has coop-
(rated with re(luests from the Special Coimnittee for information in
tlleir areas of jurisdiction. This cooperation. particlarly oil the part
of the I)epartment of I)efense and the I)epartment of Justice. uider
liree Secretaries of I)efense and four Attorneys General respectively,
has been a model of how the two branches can work together. The
Special (onumittee, for example, would still be laboring through S7
\ olumnes of the Statuites-at-Large to find ouit exactly what laws were
i\ol\ ((1. were it not for tle assistance pro\'idel bv t'he U.S. Air Force
which had fortuitously 1)lit the U-.S. Code into its LITE computer svs-
teiui located at a base in Colorado. The General Services Administ'ra-
tion and I)artictilarly the Federal Register of tihe National Archives,
provided invaluable help in bring i n, si bst ance and understandings
into time shadowy world of Executive Orders issle(l pursulan't to states
of emergency. lThe J1stice I)epartment. largely through tile coumisel
of Attorneys General themselves and the Officeof Legal Counsel, has


S.R. 117)





23


5

given expert advice to the Special Committee, and we gratefully ac-
knowledge the importance of their assistance.
The Office of Management and Budget has helped the Special Com-
mittee by providing a detailed evaluation of the current utility of
emergency statutes now in force. It is upon the basis of the Executive
branch's coordinated evaluation of these statutes and their evaluation
by the standing committees that the Special Committee was able to
draft a remedy in accord with the Constitutional responsibility of
Congress to make laws. The Special Committee is confident that
Congress should now proceed forthwith to end the four existing states
of national emergency, repeal certain laws that both the Executive
branch and Congress believe obsolete, and to legislate a definite proce-
dure to be used in the event of future national emergencies.
It has been an underlying premise of the Special Committee that
the findings contained in the Youngstown Steel Case of 1952, particu-
larly the opinion of Justice Jackson, provide sound and pertinent
guidelines for the governance of emergency powers. Justice Jackson,
supporting the majority opinion that the "President's power must
stem either from an act of Congress or from the Constitution itself,"
wrote:
* emergency powers are consistent with free govern-
ment only when their control is lodged elsewhere than in the
Executive who exercises them. That is the safeguard that
would be nullified by our adoption of the "inherent powers"
formula. Nothing in my experience convinces me that such
risks are warranted by any real necessity, although such pow-
ers would, of course, be an executive convenience.
In the practical working of our Government we already
have evolved a technique within the framework of the Con-
stitution by which normal Executive powers may be consider-
ably expanded to meet an emergency. Congress may and has
granted extraordinary authorities which lie dormant in nor-
mal times but may be called into play by the Executive in war
or upon proclamation of a national emergency. * *
In view of the ease, expedition and safety with which Con-
gress can grant and has granted large emergency powers,
certainly ample to embrace this crisis, I am quite unimpressed
with the argument that we should affirm possession of them
without statute. Such power either has no beginning or it has
no end. If it exists, it need submit to no legal restraint. I am
not alarmed that, it would plunge us straightway into dicta-
torship, but it is at least a step in that wrong direction.* *
But I have no illusion that any decision by this Court can
keep power in the hands of Congress if it is not wise and
timely in meeting its problems. A crisis that challenges the
President equally, or perhaps primarily, challenges Congress.
If not good law, there was worldly wisdom in the maxim
attributed to Napoleon that "The tools belong to the man who
can use them." We may say that power to legislate for emer-
gencies belongs in the hands of Congress, but only Congress
itself can prevent power from slipping through its fingers.


66-474 0- 76 3


S.R. 1170





24


6
With all its defects and inconveniences, men have discov-
ered no technique for long preserving free government ex-
cept that the Executive be under the law, and that the law be
made by parliamentary deliberations.
In our view, Congress should provide statutory guidelines to assure
the full operation of Constitutional processes in time of war or emer-
gency. This is the best prescription to avoid any future exercise of
arbitrary authoritarian power. For as the Youngstown Case decided,
where there is a statute, the Executive is obliged to use the statutory
remedy; where there are no lawful statutory guidelines is to invite
so-called inherent powers to come into play. There is without question
a need, in the view of the Special Committee, to provide the Executive
branch with an effective, workable method for dealing with future
emergencies in accord with Constitutional processes. The Special Com-
mittee has sought to do this in fulfillment of its mandate.
The Special Committee, therefore, respectfully submits to the Senate,
through the leadership, a legislative proposal with the recommenda-
tion that it be acted upon as soon as possible.
During the past year, the Special Committee requested the assist-
ance of the Majority and Minority Leaders in the preparation of
guidelines for procedural actions to be taken on the part of the Senate
in possible future emergencies. The actions already taken by the lead-
ership. in the view of the Special Committee, meet the needs that might
reasonably be required by future emergencies.
In order tG assist the Senate in its consideration of the recommended
legislation, the Special Committee urges members of the Senate to
examine the following Special Conimittee documents which detail the
many problems and dangers that emergencies pose to Constitutional
government, the nature of the American experience, and the reasons
for our recommended course of action.
1. "Emergency Powers Statutes: Provisions of Federal Law Now in
Effect I)elegating to the Executive Extraordinary Authority in Time
of National Emergency": September 1973. This compilation of emer-
'ency powers delegated by statute to the President for use in times of
war or national emergency contains a brief introduction to the history
of emergency rule in the United States and the adverse effects that con-
tinued emergency rule has upon Constitutional government.
2. "Executive Orders in Times of War and National Emergency";
Juiie 1974. This compilation of Executive Orders issued pursuant to
war or national emergency contains a brief historical review of how
Presidents give orders to execute the law. The report documents the
lack of lecral accountability in many important areas of public policy
for orders given by the President. This is an area that requires re-
ii(ldial legislation.
8 "1earino-s: Part 1-Constitutional Questions Concerning Emer-
g"( 'iCNv 1'ower-s* April 11, 12, 197t,. Testimony was taken from po-
litical scletists i)r. Robert S. Rankin, )uke U-niversity: Professor
Cornelius P. Cotter, University of Wisconsin; Professor J. Malcolm
Smith, California State Univer'sity; and legal scholars Dr. Adrian S.
Fislier. Georgetown University Law Center and Dr. Gerhard Casper,
University of Chicago.


S.R. 1170





25


7

"Hearings: Part 2-Views of Former Attorneys General"; July 24,
1973. Witnesses were Justice Tom C. Clark, Nicholas deB. Katzen-
bach, and Ramsey Clark.
"Hearings: Part 3-Constitutional Questions Concerning Emer-
gency Powers""; November 28, 1973. Former Attorney General Elliot
L. Richardson and former Solicitor General of the U.S. Erwin N.
Griswold, testified.
[Attachment]
RECOMMENDED LEGISLATION
Approved Unanimously by the Special Committee July 11, 1974
To terminate certain authorities with respect to national emergencies
still in effect, and to provide for orderly implementation and termi-
nation of future national emergencies
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That this Act may
be cited as the "National Emergencies Act."
TITLE I-TERMINATING EXISTING DECLARED
EMERGENCIES
TERMINATING POWERS AND AUTHORITIES
SEC. 101. (a) All powers and authorities conferred by law upon the
President, any other officer or employer of the Federal Government,
or upon any department, agency, independent establishment, or any
other body of the Federal Government, and all powers and author-
ities conferred by any Executive order pursuant to law as a result
of the existence of any national emergency in effect immediately prior
to the two hundred and seventy-first day after the date of enactment
of this Act, are terminated on such two hundred and seventy-first day.
(b) For the purpose of this section, the words "any national emer-
gency in effect"' mean a general declaration of emergency made by the
President pursuant to a statute authorizing him to declare a national
emergency.

TITLE 11-FUTURE NATIONAL EMERGENCIES
SEC. '201. (a) In the event the President finds that the proclamation
of a national emergency is essential to the preservation, protection,
and defense of the Constitution, and is essential to the common de-
fense, safety, or well-being of the territory and people of the United
States, the President is authorized to proclaim the existence of a na-
tional emergency. Such proclamation shall thereupon be made public,
and shall be published immediately in the Federal Register.
(b) Any provisions of law conferring powers and authorities to be
exercised during a national emergency shall be effective and remain
in effect with respect to national emergency (1) only when the Presi-
dent (in accordance with subsection (a) of this section), specifically


S.R. 1170





26


8

declares a national emergency, and (2),only in accordance with this
Act. No law enacted after the date of enactment of this Act shall
supersede this title unless it does so in specific terms, referring to this
title, and declaring that the new law supersedes the provisions of this
title.
TITLE 111-DECLARATIONS OF WAR BY CONGRESS
SEC. 301. Whenever Congress declares war, any provisions of law
conferring powers and authorities to be exercised during time of war
or a national emergency shall be effective from the date of such dec-
laration and remain in effect only in accordance with the provision of
Title IV of this Act..

TITLE IV-FUTURE NATIONAL EMERGENCIES
EXERCISING EMERGENCY POWERS AND AUTHORITIES
SEC. 401. (a) When the President declares a national emergency, or
Congress declares war, any provisions of law conferring powers and
authorities to be exercised during such a national emergency or during
a war declared by the Congress shall be effective and remain in effect
with respect to such emergency or war only in accordance with this
Act.
(b) IWhen the President declares a national emergency, no powers
made available by statute for use in the event of an emergency shall
become operative unless and until the President specifies by Executive
order the specific provisions of law under which he proposed that he,
or other officers of the Executive branch, will act. Such specification
may be made either in the original declaration of a national emergency,
or by subsequent order, but no power granted in the event of the
(eclaration of a national emergency shall be available unless or until
it has )een so specified by the President. All such specifications shall
be published immediately in the Federal Register, and a copy of any
declaration of national emergency, and of such specifications, shall be
transmitted immediately to Congress.

LIMITATIONS ON NATIONAL EMERGENCIES DECLARED BY PRESIDENT
St(c. 402. Anynational emergency declared by the President in ac-
cordance with this title shall terninate at the end of the one hundred
and eightieth day after the date the national emergency was declared,
and any of the provisions of law referred to in section 101 (a) of this
Act shall not be effective after the end of such one hundred and
eightieth day unless Congress by concurrent resolution-
(1) terminates such emergency on an earlier date; or
(2) continues such emergency to a day specified in the concur-
rent resolution, beyond the end of such one hundred and eightieth
day.


S.R. 1170





27


9

Any national emergency declared by the President shall then be
terminated on the date specified in any such concurrent resolution
referred to in clauses (1) and (2) of this section. and any such pro-
visions of law shall not be effective after such specified date with re-
spect to that emergency.

TERMINATJNG AND (ONTINUING NA.TI)NAL EMIER(;ENCIES ANI) VARS
S C. 40)3. (a) In no event shall any provision of law referred to in
section 401 (a) of this Act remain in effect beyond the end of the
one hundred and eightieth dav followilir the (late of the declaration
of the emergency or war less, in the case of a declaration of war
by Congress. if such declared war has not been teinnated in accoid-
ance with Constitutional processes.
(b) The provisions of sections 401 and 40-2 of this Act an( sub-
section (a) of this section shall apply to any subsequent declaration
of a national emergency or war made with respect to the same emer-
gency or war undtev subsection (a) of this section.

TITLE V-MISCELLANE( )US

ACU-NTABILITY AND REPORTING REQUIREMENTS OF TIE PRESIDENT
Sy(,. 501. (a) When the IPresideit declares a national emerveney.
or Congress declares war, the )resident shall be responsible for main-
tainin a file,, and an index thereof. of all Executive order's by the
President, including all instances of the exercise by the President
of any power conferred on him by statutes and the Constitution : all
rules and regulations. by whatever name called. promulgated bv any
Executive department. administration. independent establishment,
board. commission. official. group of officials. or other rulemaking
authority: and all other rules. regulations. orders. by whatever name
called, made directly or indirectly under the expressed or implied au-
thority of the Constitution or any- Act of (Congress with respect to
the declarations of national emergency" or war. tie residet shall
transmit to the House of Representatives an( the Senate and to the
appropriate committees of the ('ongress the texts of each or(er, rule,
or regulation, by whatever name called, promulgated by iw- Execu-
tive department. administration. indepl)endlent establish ment, board,
commission, official, group of officials, or other rulemakin- authority;
and all other orders, rules. and regulations. by whatever name called,
made directly or indirectly lln(ler expressed or iImplied authority of
the Conistitution or any Act of Congress with respect to the declara-
tion of national emergency or war, as soon as practicable after that
order, lby whatever named called, has been issued.
(b) Any such order, rule. or regulation which conforms withl)i1o-
cedures established by law, shall be transmiitted to the Htouse of
Representatives and the Senate and to the appropriate committees of
Congress under means to assure its proper confidentiality.


S.R. 1170





28


10

TITLE VI-REPEAL OF CERTAIN EMERGENCY
POWER STATUTES
SEC. 601. Except with respect to the rights and duties that matured,
penalties that were incurred, and proceedings that were begun, prior
to the date of enactment of this Act, the following provisions of law
are repealed:


(7 U.S.C. 1741)
(7 U.S.C. 1742)
(7 U.S.C. 1743)
(7 U.S.C. 1744)
(7 U.S.C. 1745)
(7 U.S.C. 1746)
(7 U.S.C. 1747)
(8 U.S.C. 1481 (a) (10))
(10 U.S.C. 2667(b) (4))
(10 U.S.C. 4025)
(10 U.S.C. 9025)
(12 U.S.C. 95)
(12 U.S.C. 95(a))
(12 U.S.C. 249)
(12 U.S.C. 1703)
(12 U.S.C. 1705)
(12 U.S.C. 1748b(a))
(16 U.S.C. 831d(m))
(18 U.S.C. 1383)
(26 U.S.C. 168)
(41 U.S.C. 101)
(41 U.S.C. 102)
(41 U.S.C. 103)
(41 U.S.C. 104)
(41 U.S.C. 105)


(41 U.S.C. 106)
(41 U.S.C. 107)
(41 U.S.C. 108)
(41 U.S.C. 109)
(41 U.S.C. 110)
(41 U.S.C. 111)
(41 U.S.C. 112)
(41 U.S.C. 113)
(41 U.S.C. 114)
(41 U.S.C. 115)
(41 U.S.C. 116)
(41 U.S.C. 117)
(41 U.S.C. 118)
(41 U.S.C. 119)
(41 U.S.C. 120)
(41 U.S.C. 121)
(41 U.S.C. 122)
(41 U.S.C. 123)
(41 U.S.C. 124)
(41 U.S.C. 125)
(42 U.S.C. 211b)
(42 U.S.C. 1592)
(50 U.S.C. 9(e))
(50 U.S.C. App. 1742).


S.R. 1170









94TH CONGRESS1 { SENATE REPORT
2d Session SENo.T94-922


NATIONAL
DELEGATED


EMERGENCIES AND
EMERGENCY POWERS


FINAL REPORT

OF THE

SPECIAL COMMITTEE ON NATIONAL
EMERGENCIES AND DELEGATED


EMERGENCY POWERS


MAY 28, 1976.--Ordered to be printed

U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1976













































SPECIAL COMMITTEE ON NATIONAL EMERGENCIES AND
DELEGATED EMERGENCY POWERS
FRANK CHURCH, Idaho, Cochairman
CHAR IES MCC. MATHIAS, JR., Maryland, Coohairman
PHILIP A. HART, Michigan CLIFFORD P. CASE, New Jersey
CLAIBORNE PELL, Rhode Island JAMES B. PEARSON, Kansas
ADLAI E. STEVENSON III, Illinois CLIFFORD P. HANSEN, Wyoming
JERRY M. BRADY, Staff Director
WILLIAM K. SAWYER, Profe8ional Staff
GAYLE D. FITZPATRICK, Chief Clerk
(II)















CONTENTS

Page
Preface----------------------------------------------------------v
Introduction-1
History of the special committee------------------------------------- 1
Committee's findings-------------------------------------------3
Two tasks for the committee------------------------------------- 4
Hearings------------------------------------------------------4
Publications on emergency powers---------------------------------5
Other publications---------------------------------------------6
Court guidance---------------------------------------------------6
Legislative history-------------------------------------------------8
Work remaining--------------------------------------------------10
Issues related to the National Emergencies Act--------------------10
Need for an investigation of emergency preparedness efforts conducted
by the executive branch--------------------------------------11
Need for congressional preparations for an emergency and continual
review of emergency law-------------------------------------11
Ending open-ended grants of authority to the Executive--------------12
Investigating and instituting stricter controls over delegated powers-- 14
Improving the accountability of Executive decisionmaking -----------16
Conclusion -------------------------------------------------- 18
Appendixes------------------------------------------------------21
List of publications-------------------------------------------21
Errata section------------------------------------------------22
Letter to Senator Abraham Ribicoff concerning sourcebook-----------22
Staff report on emergency preparedness in the United States---------25
(MI)





32


PREFACE
With this Final Report, the Special Committee on National Emer-
gencies and Delegated Emergency Powers (formerly the Special Com-
inttee on the Termination of the National Emergency) concludes its
three year existence. The Committee regrets that legislative delay has
made it necessary to submit this document before final passage of the
National Emergencies Act. Only when that legislation has been
enacted into law will the work of the Committee truly be finished.
We would like to take this opportunity to thank Senators Philip A.
Hart, Claiborne Pell, Adlai E. Stevenson III, Clifford P. Case, James
B. Pearson, and Clifford P. Hansen for the spirit of cooperation and
non-partisanship which has made the work of the Committee so
successful.
We would also like to express our gratitude to the many other people
who" have helped the Committee complete its work. In particular, we
wish to thank the following people for their valuable assistance: Lester
S. Jayson, the director of the Congressional Research Service of the
Library of Congress; Joseph E. Ross, head of the American Law
Division of CRS; and especially Raymond Celada of the American
Law Division and his able assistant, Charles V. Dale and Grover S.
Williams; Jack Goldklang of the Office of Legal Counsel, Department
of Justice; Paul Armstrong of the General Accounting Office, and
Linda Lee, research aide. Dr. Harold Relyea of the Library of Con-
gress continually provided valuable assistance in addition to writing
an informative and useful history of American government in times
of emergency.
We wish to commend Staff Directors William G. Miller and Jerry
M. Brady for their leadership and the other staff members for their
diligence in completing the work of the Committee. Over the three-
year period, the staff included: Thomas A. Dine, Audrey H. Hatry,
Martha E. Mecham, Roland B. Moore, II, Patrick M. Norton, Wil-
liam K. Sawyer, Patrick A. Shea, Naldeen McDonald, Yvonne McCoy,
and Gayle D. Fitzpatrick.
Finally, we would like to give credit to the staff members responsible
for this Final Report and the report on emergency preparedness which
is included in the Appendix. We thank William K. Sawyer for writing
these reports, Jerry M. Brady for editing them, and Gayle D. Fitz-
patrick for administrative support.
FRANK CHURCH,
CHARLES MCC. MATHIAS, Jr.,
Cochaimnen.





33


INTRODUCTION
The Special Committee on National Emergencies and Delegated
Emergency Powers ends its work with an emphatic plea that the
National Emergencies Act, H.R. 3884, be passed as soon as possible.
The legislation, which represents the culmination of three years of
work by the Committee, will both terminate special powers possessed
by the President as a result of existing states of national emergency
and establish procedural guidelines for the handling of future emer-
gencies with provision for regular Congressional review. The bill
should end the disarry that has characterized emergency laws and
procedures in the United States.
The legislation is long overdue. A majority of Americans alive
today have lived their entire lives under emergency rule. Since 1933,
protections and procedures guaranteed by the Constitution have, in
varying degrees, been abridged by Executive directives whose legality
rests on the continued existence of Presidentially proclaimed states of
emergency. For more than forty years, emergency authority intended
for use in crisis situations has been available to the Executive. The
President has had extraordinary powers--powers to seize property
and commodities, seize control of transportation and communications,
organize and control the means of production. assign military forces
abroad, and restrict travel.
This dangerous state of affairs is a direct result of Congress' fail-
tire to establish effective means for the handling of emergencies and
its willingness to defer to Executive branch leadership. In the face
of the wars, emergencies, and crises and determined Presidents of the
past forty years, the Congress. through its own actions has transferred
awesome magnitudes of power to the Executive without ever examin-
ing the cumulative effect of that delegation of responsibility. It has
tolerated and condoned Executive initiatives without fulfilling its own
constitutional responsibilities. It has in important respects permitted
the Executive branch to draft and in large measure to make the law.
This has occurred despite the constitutional responsibility conferred
on Congress by Article I. Section 8 of the Constitution which states
that it is Congress that "makes all Laws .
Passage of the National Emergencies Act will be a major step
toward restoring Congress to its proper legislative role. The legislation
represents significant progress in checking the growth of Executive
power and returning the United States to normal peacetime processes.
The measure is vital in insuring that the United States travels a road
marked bv legislative oversight and carefully constructed legal safe-
guards.
HISTORY OF THE SPECIAL Co0IMrITTEE
Interest in the question of emergency powers stems from the United
States' experience in the Viet Nam War and the incursion into Cam-
(l)





34


2
bodia. The President's ability to commit Americans to warfare with-
out any Congressional declaration of a state of war disturbed many
Senators.
In 1971 Senator Charles McC. Mathias, Jr. of Maryland submitted
Senate Concurrent Resolution 27 to establish a special joint com-
mittee to study the effect of terminating the only emergency known
to be in existence at the time, that declared by President Truman in
1950 during the Korean War. On May 23, 1972, Senator Mathias and
Senator Frank Church of Idaho introduced Senate Resolution 304,
which called for the creation of the Senate Special Committee on the
Termination of the National Emergency. The Senate Foreign Rela-
tions Committee, after hearings and executive comments, reported the
resolution favorable on June 13, 1972. The bill subsequently passed
the Senate, and on September 18, 1972, an equal number of majority
and minority party members were appointed to the newly-formed
Special Committee. Senators Church and Mathias became co-chairmen.
and Senators Hart, Pell, Stevenson, Case, Pearson, and Hansen were
also appointed.
On January 6, 1973, the Special Committee began its work under
the authority of S. Res. 9 and the 93rd Congress. The mandate of the
Committee was:
to conduct a study and investigation with respect to the mat-
ter of terminating the national emergency proclaimed by the
President of the United States on December 16, 1950, as an-,
nounced in Presidential Proclamation Numbered 2914, dated
the same date.
In conducting its study, the Committee was to:
(1) consult and confer with the President and his advisers;
(2) consider the problems which may arise as the result of
terminating such national emergency; and
(3) consider what administrative or legislative actions might
be necessary or desirable as the result of terminating such na-
tional 'emergency, including consideration of the desirability and
consequences of terminating special legislative powers that were
conferred on the President and other officers, boards, and com-
missions as the result of the President proclaiming a national
emergency.
From the start, the work of the Committee was marked by non-
partisanship and its efforts facilitated by the cooperation of the
Executive branch. The Committee staff met with Attorney General
Kleindienst as early as January 17, 1973, and enlisted the help of the
Department of Justice. A special task force was established in the
White House to look into the question of emergency powers.
Executive cooperation was important because of the rudimentary
state of knowledge of emergency laws and procedures at that time.
The Special Committee knew that the Truman Korean War Emer-
gency was still in existence and that at least 200 special powers had
accrued to the President over the years. The investigators knew that
President Johnson had used emergency powers in January, 1968,
to control American investments abroad in an effort to ease that year's
balance-of-payments crisis, and that President Nixon had invoked
the same authority in February, 1971, to suspend the provisions of the






35


3

Davis-Bacon Act. Yet. the Special Committee did not know the full
story.
Committee's Findings
The Committee quickly discovered that disorder enveloped the
whole field of emergency statutes and procedures. Not one but four
emergency proclamations remained in force. In addition to the na-
tional emergency proclaimed by President Truman on December 16,
1950, the following declarations of emergency remained in force:
the national emergency declared by Franklin Roosevelt on
March 9, 1933. to cope with the current banking crisis;
the national emergency declared by Richard Nixon on
March 23, 1970, to deal with the Post Ofice strike:
the national emergency declared by Richard Nixon on
August 15, 1971, to implement currency restrictions and to en-
force controls on foreign trade.
The continuation of these states of emergency was significant. since
any declaration of emergency triggers numerous law- which, taken
together. give the Piesident extraordinary power. The following laws
are illustrative:
Statute 10 USC 712 permits the President "during a war
or a declared national emervencv" to "detail members of the
Army. Navy. Air Force, and Marine Corps to assist in mili-
tarv matters" in any foreign country.
n:nder 10 USC '333, the President can use the militia or
armed forces to suppress "conspiracy," if it is likely that "any
part" of the people in a state will be deprived of some consti-
tutional rights, and the state itself refuses to act. Under this
statute, the President conceivable could circumvent Article
IV. Section 4, of the Constitution even before waiting" for
state legislatures or state executives to request Federal troops.
Indler 18 USC1383. the President has authority to declare
any part or all of the United States military zones. People in
such zones can be jailed for a year for violating any "execu-
tive order of the President." Would these, arrests b'e review-
able in court ? It is not clear..Judicial review of agency ac-
tions is guaranteed in 5 USC 702. but 5 USC 701 excludes ac-
tions taken under declarations of martial law.
A President could make use of Public Law '139,o which ex-
presses the determination of the United States to prevent "by
whatever means may be necessary including the use of arms,
any "subversive" activities by the government of Cuba.
Under 47 USC 308, the Federal Communications Commis-
s]on could, during a national emergency, modify existing
broadcast licenses under terms it might prescribe.
Under 47 USC 606, the President can amend "as he sees
fit" the rules and regulations of the Federal Communications
Commission and, in particular, can "cause the closing of any
facility or station for wire communications."
If the President finds the nation "threatened by attack,"
he could, under 44 USC 1505, cease to publish his regulations
in the Federal Regrister if he determines that it is "imprac-


S. Rept. 94-922-2






36


4
ticable." This could open the way to promulgation of secret
laws.
Moreover, no recent comprehensive record of statutes effective dur-
ing times of emergency had been compiled. No consistent procedure
was being followed in declaring, administering, and terminating states
of national emergency. The enlarged task that the Committee con-
fronted led to its being redesignated the Special Committee on Na-
tional Emergencies and Delegated Emergency Powers.
Two Tasks for the Committee
The Special Committee worked on two main tasks. The first was to
explore how existing states of national emergency could be terminated
with the least adverse effects. There were three possible approaches:
(a) outright repeal of all emergency statutes, (b) relegating all ener-
gency provisions to a state of dormancy to be used in future emer-
gencies, or (c) maintaining emergency provisions in the United States
Code but for use only in states of emergency declared in accordance
with regular and consistent procedures which would provide for ter-
mination and oversight.
The second task was to explore the possibility of establishing a pro-
cedure for declaring states of national emergency. The procedure
would require accountability for actions taken by the xecutive pur-
suant to delegated emergency authorities in order to permit the Con-
gress to effectively exercise its oversight responsibilities.
liearivgs
Concurrent with the historical research undertaken by the staff of
the Special Committee, the Library of Congress and distinguished con-
sultants, hearings were held on the istory of emergency rule in the
United States and constitutional problems created by such rule.
Professor Robert S. Rankin, Emeritus, of Duke University, Pro-
fessor Cornelius P. Cotter of the University of Wisconsin, and Pro-
fessor J. Malcolm Smith of California State University, all renowned
scholars of the subject of emergency powers, testified in hearings held
by the Special Committee on April 11, 1973.
Professor Adrian S. Fisher, Dean of the Georgetown University
Law Center, and Dr. Gerhard Casper, Professor of Law and Political
Science at the University of Chicago, testified on April 12, 1973. Pro-
fessor Fisher served as an advisor to President Harry S. Truman in
1950 and described to the Committee the circumstances surrounding
Truman's declaration of national emergency in that year. Professor
Casper testified on the constitutional questions raisedby Executive
use of emergency powers.
The Committee also heard from officials formerly associated with
the Justice Department and Supreme Court including the late Chief
Justice Earl Warren. Former Attorney General of the United States
and Associate Justice of the U.S. Supreme Court Tom C. Clark, for-
mer Attorney General Nicholas DeB. Katzenbach, and former Attor-
ney General Ramsey Clark testified on July 24, 1973. Later, on Novem-
ber 28, 1973, former Attorney General Elliott Richardson and former
Solicitor General Erwin Griswold presented their views to the Special
Committee.
Throughout its work the Special Committee has -had the benefit of
the full cooperation and assistance of the Justice Department, under








5

four successive Attorneys General-Kleindienst, Richardson, Saxbe,
and Levi-as well as the Department of Defense and the Office of
Management and Budget.
Publications on Emergency Powers
To improve understanding of emergency laws and procedures and
provide the basis for legislation, the Special Committee published a
number of studies, reports, and compilations. The first was a com-
pilation of "Emergency Power Statutes: Provisions of Federal Law
Now in Effect Delegating to the Executive Extraordinary Authority
in Time of National Emergency." The story of how this document
was composed illustrates the size of the task the Committee faced and
the cooperation it received from the Executive branch.
In the past, the only way to compile a catalog useful to Congress
would have required going through every page of the 86 volumes of
the Statutes-at-Large. Fortunately, the U.S. Code was put into com-
puter tapes by the U.S. Air Force in the so-called LITE system, which
is located at a military facility in the State of Colorado. The Special
Committee devised several programs for computer searches based on
a wide spectrum of key words and phrases contained in typical provi-
sions of law which delegate extraordinary powers. Examples of some
trigger words are "national emergency," "war," "national defense,"
"invasion," "insurrection," et cetera.
These programs resulted in several thousand citations. At this point,
the Special Committee and Library of Congress staffs went through
the printouts, separating out those provisions of the U.S. Code most
relevant to war or national emergency, and weeding out those provi-
sions of a trivial or extremely remote nature. Two separate teams
worked on the computer printouts and the results were put together in
a third basic list of U.S. Code citations.
To determine legislative intent, the U.S. Code citations were then
hand checked against the Statutes-at-Large, the Reports of Standing
Committees of the U.S. Senate and House of Representatives and,
where applicable, Reports of Senate and House Conferences.
In addition, the laws passed since the publishing of the 1970 Code
were checked and relevant citations were added to the master list. The
compilation was then checked against existing official catalogs: that
of the Department of Defense, "Digest of War and Emergency Legis-
lation Affecting the Department of Defense"; that of the Office of
Emergency Planning, "Guide to the Emergency Powers Conferred by
Laws in Effect on January 1, 1969"; and. the 1962 House Judiciary
Committee synopsis of emergency powers, "Provisions of Federal
Law in Effect in Time of National Emergency." The result was a com-
pilation and commentary on 470 special statutes invokable by the
President during a time of declared national emergency.
Once the Special Committee had completed its compilation of emer-
gency statutes, the staff, assisted by the Office of Management and
Budget, solicited evaluation of the existing statutes from Executive
departments. agencies, nd office-, and from Standinq Committees of
the Senate.."Executive Replies: Summaries of the Executive Brainch
and Committee Recommendations" was then issued as a committee
print in three parts.





38


6

Other Publicatio&n
The Special Committee also composed a study of "Executive Orders
in Time of War and National Emergency."'This compilation brought
together as complete a collection as possible of Executive Orders and
Proclamations issued pursuant to states of war and national emer-
gency. The collection was based on an examination of Proclamations
and Executive Orders found at the Library of Congress and the
Federal Register. The report documents the lack of legal accountabil-
ity in many important areas of public policy for orders given by the
President.
In addition, "A Brief History of Emergency Powers in the United
States" was issued as a commitee print. When the Special Committee
began its work, there was no basic study outlining the use of emer-
gency powers in the United States from the time of the Philadelphia
Constitutional Convention to the present. To fill the gap, the Com-
mittee asked Dr. Harold Relyea of the Library of Congress to write
a chronological history of the American government in times of
crisis. His study highlights the great crises of American history
and the manner in which the three branches of the Federal Govern-
ment have met particular emergency situations. Especially significant
are the experiences and legacies of Shay's Rebellion, the Civil War,
labor strikes of the late 19th Century, and both World Wars.

CoURT GUMANCE
Throughout its work the Special Committee has paid close attention
to court decisions. The Committee was particularly guided by the
famous Youwngstown Steel and Tube Company v. Sawyer decision,
in which the Supreme Court failed to uphold an attempt by President
Truman to seize control of the striking steel industry. Speaking for
the majority, Justice Black held that "the President's power, if any,.
to issue the order must stem from an Act of Congress or from the
Constitution itself." He characterized President Truman's action as
an unconstitutional arrogation of "law-making power" by the
-Executive.
Justice' Jackson's widely quoted and praised concurring opinion
stressed that our system of government is a "balanced power struc-
ture" iand pointed out that Executive power to act is a variable
-depending upon the collective will of Congress for its authority.
.Justice Jackson listed three situations which determine the extent of
ithe President's power:
1. When the President acts pursuant to an express or
implied authorization of Congress, his authority is at its
maximum, for it includes all that he possesses in his own right
plus all that Congress can delegate.
2. When the President acts in absence of either a Congres-
sional grant or denial of authority, he can only rely upon his
\own independent powers.
3. When the President takesmeasures incompatible with the
expressed or implied will of Congress, his power is at its
lowest ebb, for then he can rely only upon his own constitu-
tional powers minus any constitutional powers of Congress.
over the matter. I





39


Justice Jackson continued:
The appeal, however, that we declare the existence of in-
herent powers ex necessitate to meet an emergency asks us to
do what many think would be wise, although it is something
the forefathers omitted. They knew what emergencies were,
knew the pressures they engenered for authoritative action,
knew, too, how they afford a ready pretext for usurpation.
We may also suspect that they suspected that emergency
powers would tend to kindle emergencies. Aside from suspen-
sion of the privilege of the writ of habeas corpus in time of
rebellion or invasion, when the public safety may require it,
they made no express provision for exercise of extraordinary
authority because of a crisis. I do not think we rightfully
may so amend their work, and, if we could, I am not convinced
it would be wise to do so, although many modern nations
have forthrightly recognized that war and economic crisis
may upset the normal balance between liberty and authority.
Their experience with emergency powers may not be irrele-
vant to the argument here that we should say that the Exe-
cutive, of his own volition, can invest himself with undefined
emergency powers.
After recalling the experience of Germany, where the Constitution
had permitted the President to suspend individual rights, and Great
Britain and France, where the parliaments had maintained strict
control over emergency powers, Justice Jackson concluded:
This contemporary foreign experience may be inconclusive
as to the wisdom of lodging emergency powers somewhere in
a modern government. But it suggests that emergency
powers are consistent with free government only when their
control is lodged elsewhere than in the' Executive who exer-
cises them. That is the safeguard that would be nullified by
our adoption of the "inherent powers" formula. Nothing in
my experience convinces me that such risks are warranted by
any real necessity, although such powers would, of course, be
an Executive convenience.
In the practical working of our Government we already
have evolved a technique within the framework of the Con-
stitution by which normal Executive powers may be con-
siderably expanded to. meet an emergency. Congress may
and has granted extraordinary authorities which lie dor-
mant in normal times but may be called into play by the
Executive in war or upon proclamation of a national emer-
gency. In 1939, upon Congressional request, the Attorney
General listed ninety-nine such separate statutory grants by
Congress of emergency or wartime Executive powers. They
were invoked from time to time as need appeared. Under this
procedure we retain government by law-special, temporary
law, perhaps, but law nonetheless. The public may know the
extent and limitations of the powers that can be asserted,
and persons affected may be informed from the statute of
their rights and duties.


66-474 0 76 4






40


8

In view of the case, expedition and safety with which
Congress can grant and has granted large emergency
powers, certainly ample to embrace this crisis, I am quite un-
impressed with the argument that we should affirm posses-
sion of them without statute. Such power either has no be-
ginning or it has no end. If it exists, it need submit to no
legal restraint. I am not alarmed that it would plunge us
straightway into dictatorship, but it is at least a step in that
wrong direction.
The Special Committee accepted Jackson's opinion as a basic guide-
line for its work. The continuing importance of the opinion is illus-
trated by the reference made to it in counsel given to the Special
Committee by the late Chief Justice Earl Warren just prior to his
death. Senator Mathias reported the details of that conversation to
the Senate on August 22, 1974:
Chief Justice Warren said that while the Constitution pro-
vides that only Congress can make the law, the legislature
had the obligation through enacting statutes to provide firm
policy guidelines for the Executive branch. The former
Chief Justice agreed with Justice Jackson's view that where
there are statutory guidelines, a President is obliged to fol-
low the precepts contained in the laws passed by the Con-
gress. Inherent powers problems arise and the other branches
act, he said, largely when Congress fails to act definitely,
when it fails to make needed laws and when there is a neces-
sity for legislative action and Congress fails to neet the
challenge
LIISLATIVE HISTORY
Upon the basis of all its findings, the Special Committee decided
to write legislation which would both effectively end the four states of
national emergency found to be in force and establish procedures for
the handling of any future national emergency. The resulting bill,
the National Emergenceis Act, has received broad bipartisan support
and elicited a rare degree of cooperation between the Executive and
Legislative branches of government.
A quick review of the legislative history is instructive. The Com-
mittee first submitted the National Emergencies Act to the Senate
on August 22, 1974. The bill, S. 3957, was sponsored by Senators
Church, Mathias, Hart, Pell, Stevenson, Case, Pearson, Hansen, Ervin,
Chiles, Williams, Muskie, Javits, Ribicoff, and Roth. The legislation
provided for:
a1. Termination of powers and authorities available to the
Executive as a result of the states of national emergency in force.
2. Congressional review of future national emergencies.
3. Congressional oversight of and Executive accountability for
actions taken in the exercise of emergency powers.
4. Repeal of obsolete emergency powers statutes.
The Senate Committee on Government Operations, to which the bill
was referred, reported it without amendment on September 30, 1974
(S. Rept. 93-1193). On October 7 on the floor of the Senate, Senator
Mathias offered amendments incorporating compromises agreed to by








9
the Government Operations Committee and the Administration. The
amendments provided for:
1. Extension of the termination date for existing emergencies
from nine to twelve months from enactment;
2. A semi-annual review and decision by Congress on whether
to end an emergency, rather than automatic termination of states
of emergency;
3. Reduction of the number of statutes to be repealed;
4. Exemption of six statutes considered essential by the Execu-
tive branch and provision for their review by appropriate Con-
gressional committees;
5. Requirements for an accounting of expenditures incurred
in the exercise of national emergency statutes.
The amended legislation passed the Senate without dissent on Oc-
tober 7, 1974.
Senate bill, S. 3957. then went to the House of Representatives, but
the House Judiciary Committee, to which the legislation was referred,
was unable to act on thebill in 1974. Representative Peter Rodino, the
Committee Chairman, had intended to hold early hearings on the
legislation; however, the impeachment inquiry and confirmation of
Vice President Rockefeller prevented consideration during the 93rd
Congress, and the bill consequently died.
Early in the 94th Congress, on February 27, 1975, Chairman Rodino
introduced H.R. 3884 and on March 6, 1975, Senator Mathias intro-
duced S. 977. The bills were identical and, with the exception of two
minor technical amendments, the same as the measure already passed
by the Senate.
The House Judiciary Subcommittee on Administrative Law and
Governmental Relations, chaired by Representative Walter Flowers,
then held hearings on H.R. 3884 on March 6, 13, 19 and April 9,
1975. Witnesses included Senator Mathias, Senator Church, Repre-
sentative Rodino, and representatives of Executive departments and
agencies.
On May 21, 1975, the Judiciary Committee reported H.R. 3884
with amendments (H. Rept. 94-238). Most of the changes clarified
and corrected sections of the bill. One amendment advanced from one
year to two years the effective date for the termination of the existing
emergency powers. The two-year delay provided time for all Execu-
tive agencies and departments dependent on emergency statutes to
seek permanent legislation. Another revision gave the Executive addi-
tional time to account for expenditures incurred during the exercise
of emergency powers. The Committee felt that the original schedule
did not provide sufficient time for the reporting of expenditures. The
Committee also increased the number of statutes which would be ex-
empt from the force of the legislation.
H.R. 3884, as amended by the House Judiciary Committee, passed
the House on September 4, 1975. On the floor, the House accepted an
amendment by representative Matsunaga to provide for automatic
termination of an emergency if the Executive fails to publicly renew
the emergency. Final passage came easily. Only five Representatives
voted against the bill, while three hundred and eighty-eight cast their
ballots in favor of it.








10

In the Senate, H.R. 3884 was referred to the Government Opera-
tions Committee. Senator Church and Senator Mathias testified on
behalf of the legislation on February 25, 1976, but the full Committee
has been unable to markup the bill yet, due to the press of other busi-
ness, mainly proposedreforms concerning the Central Intelligence
Agency.
The Special Committee believes that there is no reason to delay
passage any longer. Both houses of Congress have passed the bill
overwhelmingly; the only problem is that the Sen ate acted in the 93rd
Congress and the House in the 94th. Seldom has such a significant
piece of legislation received such universal support. The time for the
National Emergencies Act to become the law of the land is long
overdue.
WORK REMAIN ING
Passage of the National Emergencies Act is the top priority, but
other issues will also deserve attention in the future.
Issues related to the National Emergencies Act
1. Committee review of exempted statutes-Under Title V of the
National Emergencies Act certain statutes are exempted from the
force of the legislation pending further review by Standing Commit-
tees in the House and Senate. The Special Committee initially con-
templated no such exemptions, but it became apparent that because
of the prolongation of emergency, rule in the United States, many
governmental departments had come to depend on these laws for their
day-to-day operations. Abrupt termination of such provisions
threatened to disrupt activities deemed to be essential to the func-
tioning of the government. To avoid such disruption and to allow
careful consideration of the statutes in question and enactment of
permanent law where appropriate, the Committee agreed to exempt
these provisions from the effect of the legislation.
Close scrutiny will be required to determine whether these statutes
should be continued in force or how they should be amended. Serious
questions exist about future reliance on laws which were enacted to
meet emergency situations and which have been used in ways not
envisioned in the legislative histories of the statutes.
2. Careful review of requests for permanent law-The National
Emergencies Act provides for a two-year delay in the termination of
emergency powers currently possessed by the President. The delay is
designed to give Executive agencies time to seek permanent legislation
where necessary. Congressional committees should remain vigilant
during this period and conduct a rigorous examination in those in-
stances where permanent law is sought in place of emergency law (i.e.,
law operative only under a condition of proclaimed national emer-
gency). Care must be taken to preserve the distinction between perma-'
nent law and emergency law and to insure that powers which are
properly restricted to periods of national emergency do not become
available in normal times. Committees should examine Executive
justifications closely and not allow changes solely for reasons of
convenience.
3. Potential efforts to thwart intent of law-Congress must be wary
of potential efforts to bypass or circumvent the intent of the new legis-
lation. It should be clearly understood that Congress will not accept





43


11

any claim that an emergency is so severe that the President can act
without the Congressional review required under this legislation. Con-
gress must be prepared for possible efforts to thwart the intent of the
bill by dropping the wording "national emergency" and introducing
different terminology. Committees must insure that all emergency
legislation, however denominated, has the same accountability and
reporting requirements and termination procedures. No claim can in
the future be advanced that a particular type or class of emergency
can arise in which the President's powers are not subject to Congres-
sional review.
Need for an Investigation of Emergevey tP1u pa,-edn(,8's iffolrts Coll-
ducted by the Executive Branch
The Special Committee recommends that emergency preparedness
efforts in the United States be investigated to determine the advan-
tages and disadvantages of the administrative structure established
in 1973.
Under Reorganization Plan Number 1 of 1973, the Office of Emer-
gency Preparedness was dismantled and a more decentralized admin-
istrative apparatus set up. The Federal Preparedness Agency within
General Services Administration assumed responsibility for coordi-
nation and planning; the Federal Disaster Assistance Adiiiinist ratio
within Housing and Urban Development became the central agency in
charge of natural disasters; and the Department of the Treasury
assimilated those functions regarding investigations of imports which
might threaten national security.
The Committee believes that now-three years after that reorgani-
zation-the time has arrived to assess its effects and to evaluate the
operation of the new structure with particular attention to emergency
preparedness, coordination, planning, and civil liberties questions. A
brief exploration by the staff of this Commiittee raised serious ques-
tions, and further investigation seems wise.1
Need for Congressional Preparations for an Emergency an Contin ual
Review of Emergency Law
The Special Committee believes that Congress must take steps to
insure that it will be able to act quickly and effectively in time of
emergency. Action must be taken now if ('ongress is to play an active,
responsible role in any future emergency.
In a letter to Senators Church and Mat iias on May 14, 1974. Major-
ity Leader Mansfield described emergency preparations uniertaken by
the leadership-
Under the terms of the resolution. adopted December 2,
1973, the Majority Leaders of each House, or the Minority
Leaders of each House. or the Speaker and President Pr-o
Tempore have the authority to call the Congress back into
session within 48 hours. It is my intention to insist upon this
provision for any recess or adjournmnent of the senate of a
duration in excess of three days.
Although a more efficient system could be established, the
leadership of the Senate does have the capacity now to contact
See "Staff Report on Emergency Preparedness" in the Ai)penlix.


--.r-Rept..94-922--3





44


12

each Senator within 24 hours. I believe that an enactment
might be necessary to assure the proper priority by the various
Executive departments of requests for air transportation
when the above procedure is invoked.
The Committee believes that more thought should be given to emer-
gency preparedness. Congress must anticipate diverse scenarios and
insure its ability both to survive a crisis and to act effectively in its
aftermath. There must be an intelligent definition of the role Congress
should assume in emergency preparedness efforts and other emergency
activities.
It may be wise to appoint personnel or to establish an adminis-
trative mechanism to assume responsibility for coordinating emer-
gency preparations. A new subcommittee, which need not be large,
could be set up in the Government Operations Committee, the Joint
Committee on Congressional Operations, or elsewhere. The subcom-
mittee could, on an ongoing basis, review Congressional activities,
oversee Executive efforts, and coordinate the work of the two branches
of government. It could also work out administrative details of the
National Emergencies Act and insure that its provisions are followed
in time of emergency.
If the Senate were reluctant to set up a permanent body to monitor
policy developments, it could establish, on a reserve basis, a panel
which would come into existence as soon as a national emergency has
been proclaimed. The unit might be a Special or Select Committee, or
a subcommittee of the Government Operations Committee. The panel
wold provide a coordinating center to bring concentrated attention
to the emergency.
Regardless of whether any new Congressional structures are es-
tablished, regular examination of the canon of emergency statutes,
Executive orders and related administrative rules, regulations and
instruments-operative, dormant, limited-is imperative to keep the
Congress apprised of developments and advised as to corrective actions
which should be undertaken. The potential threat posed by national
emergency law to the political well-being of a democracy makes essen-
tial regular examination of policy developments by a Senate commit-
tee. Since the Government Operations Committee has had responsi-
bility for the National Emergencies Act in the Senate, it seems appro-
priate that this Committee conduct this review.
Ending Open-Ended Grants of Authority to the Executive
The Special Committee is particularly concerned that Congress end
its dangerous practice of extending open-ended authority to the Presi-
dent. Future legislation should include a terminal date for authorities
granted to the Executive and provide for Congressional review.
Past experience presents ample reason for concern about the lack
of controls on powers extended to the President. Too often the failure
to include a terminal date or to require Congressional review has led
to a situation in which the use of an Act belies the purposes for which
it was enacted. Several examples illustrate this pattern.
During the Civil War, Congress passed the Feed and Forage Act
of 1861 to enable the cavalry in the American West to buy feed for
tbeir horses when Congress was out of session. Later, Presidents





45


13

invoked the authority of this Act to spend millions of dollars without
benefit of Congressional action. The law was used to finance American
marines in Ijbanon in 1958, to support the Berlin mobilization in
1962, and to maintain troops in Southeast Asia.
In 1933, Congress passed the Emergency Banking Act, which was
based on Section 5(b) of the Trading with the Enemy Act of 1917.
The legislation gave President Roosevelt the power to control major
aspects of the economy-an authority which had formerly been
reserved to the Congress. Since then, the Executive branch has used
this authority constantly to regulate many aspects of foreign trade
and international monetary controls. For instance, when President
Johnson wanted to control the foreign investments of U.S. companies
ini 1968 to alleviate the balance of payments crisis, he issued an
Executive Order based on this authority.2
In 1950, Congress passed the Defense Production Act giving the
President wide-ranging powers to control the production of materials
needed for national defense efforts connected with the Korean War.
Sixteen years later, the Act was used to fill a Department of Defense
order for 3 million tropical uniforms for use in Vietnam. In the fo-th
quarter of 1966, the President also relied on the law to require steel.
copper, and aluminum producers to set aside part of their oit)ut for
defense purposes.
Most troubling about these open-ended grants of power is that tlev
have often been made in response to the exigencies of war and other
emergency conditions, frequently with the most perfunctory committee
review and with virtually no consideration of a law's effect on civil
liberties or the delicate structure of divided powers in the U.S. govern-
nent. The passage of broad economic measures in 1933 provides an
extreme example. There was a total of only eight hours of debate, in
both Houses. There were no committee reports, indeed, only one copy
of the bill was available on, the floor. The same patternl of hasty and
inadequate consideration was repeated during World War II. the
Korean War. and the 1964 debate on the Tonkin Gulf resolution.
Lack of Congressional control is particularly characteristic of
emergency statutes, most of which have no provision foi' Conzre-ional
oversight or termination. There are two reasons for this. First. few.
if any. foresaw that the temporary states of emer-ency declared in
1933, 1239. 1941, 1950. 1970, and 1971 would remain in effect for so
long (the 1939 and 1941 emergencies were terminated in 1952). Second.
the various administrations which drafted these laws were un(ler-
standably not concerned about providing for Cofn'ressional review.
oversight. 'or termination of delegated powers, which gave the
President wide-ranging authority.
In any case. the time has come to reverse the pernicious habits of
the past. It is imperative that termination dates, reporting require-
ments, and accountability procedures be included in future legisla-
tion. Those who would argue for greater latitude for the Executive
should remember the experience of the British who fought all through
the Second World War on delegation of power extended to the Prime
Minister for no longer than thirty days at a time.
2The Special Committee wkh,,9 to commend the Hnns+i Intprnqticnal Relqtionq Sub-
committee on International Trade and Commerce. which ;tarted an investigation of
Section 5(b) of the Trading With the Enemy Act in the fall of 1975.






46


14

Investigating and Instituting Stricter Controls Over Delegated
Powers
Concurrent with efforts to include terminal dates and provision for
Congressional review in future legislation, there must be a reexamina-
tion of the whole isue of Congressional delegations of power to the
Executive.
Fortunately, the Senate Judiciary Subcommittee on Separation of
Powers has already initiated an investigation in this area. That sub-
committee is examining the question of whether the delegation doc-
trine retains any vitality. The study will focus on the pattern of
abdication of responsibility by the Congress through the use of broad
unstructured mandates and the excessive use by the Executive of
guidelines and Executive orders either to implement policies not con-
curred in by Congress or to aggrandize narrowly delegated power.
The Special Committee wishes to emphasize the importance of this
inquiry. The Committee's examination of delegated emergency powers
revealed the extent of power the Legislative 'branch has delegated to
the Executive. Emergency powers statutes embrace every aspect of
Amrican life, and it only takes a quick glance at certain: statutes to
underscore the vast transfer of power to the Executive. For instance,
Section 712 of Title 10 of the United States Code, entitled "Foreign
Governments: Detail to Assist," reads:
(a) Upon the application of a country concerned, the Presi-
dent, whenever he considers it in the public interest, may detail
members of the Army, Navy, Air Force, and Marine Corps to
assist in military matters-
(1) any republic in North America, Central America, or
South America;
(2) the Republic of Cuba, Haiti, or Santo Domingo; and
(3) during a war or a declared national emergency, any
other country that he considers it advisable to assist in the
interest of national defense.
('b) Subject to the prior approval of the Secretary of the mili-
tary department concerned, a member detailed under this section
may accept any office from the country to which he is detailed.
He is entitled to credit for all service while so detailed, as if serv-
ing with the armed forces of the United States. Arrangements
may be made by the President, with countries to which such mere-
bers are detailed to perform functions under this section, for
reimbursement to the United States or other sharing of the cost
of performing such functions.
The Defense Department, in answer to inquiries by the Special
Committee concerning this provision, has stated that it has only been
used with regard to Latin America, Liberia and Iran, and interprets
its applicability as being limited to noncombatant advisers. The lan-
guage of Section 712, however, is wide open to other interpretations.
The transfer of power of which this statute is illustrative is the re-
sult of Congressional mandate, not Executive us1-pation. Over the
past four decades the Congress has been content to give the Executive
increasing latitude to act without reference to Congress. In a Yale
Review article, entitled "The Routinization of Crisis Government,"
Donald L. Robinson underscores the trend:
A review of the development of [emergency] statutes re-
veals the deterioration of legislative form during the twenti-






47


15

eth century. They vary most significantly in the guidelines
they lay down for administrators, and it is here that a trend
is most apparent. Some, like the statute giving the Presi-
dent power to call the National Guard into Federal service,
have always been couched in language giving the President
broad discretion . statutes dealing with the military have
always tended to be broad in their delegations to the Presi-
dent.
When emergency powers touch upon domestic industry,
however, Congress has traditionally tended to show greater
care in the delegation of powers to the Executive branch. In
1916, for example, Congress passed an act providing for the
mobilization of industries capable of producing war material.
If such industries refused to comply with government orders
"in time of war or when war is imminent," the President was
authorized to take possession and, through an appointed
Board of Mobilization, to operate them. Firms were to be
given "fair and just" compensation for their products or for
the "rental" of their facilities. Despite pressure from the Tru-
man Administration, Congress steadfastly refused to broaden
the act by authorizing seizures in peacetime emergencies or
even in the event of undeclared wars like the Korean. But, in
1956, this statute was repealed, and replaced by one much
briefer, stripped of all qualifications as to the kind of enter-
prise subject to seizure and the kinds of compliance that would
forestall seizure. Under present law, when the President
deems war imminent, he "may take possession of any plant"
which refuses to "manufacture the kind, quantity, or quality
of arms or ammunition ... ordered by the Secretary [of the
Army] ; or... to furnish them at a reasonable price as deter-
mined by the Secretary."
In the case of labor regulations, an even more marked trend
toward legislative permissiveness is apparent. In 1917, Con-
gress passed an act providing for the suspension of the eight-
hour day on contract work for the government during de-
clared emergencies. In 1962, the chapter dealing with "hours
of labor on public works" was completely revised. No longer
do the powers of the Secretary of Labor to suspend the pro-
visions of the law depend upon the existence of a declared
emergency. Instead, he is given discretion to permit varia-
tions and exemptions "to and from any or all provisions"
of the act, if he finds it "necessary and proper in the public
interest to prevent injustice or undue hardship or to avoid
serious impairment of the conduct of Government business."
The report of the Senate Committee on Labor and Public
Welfare, which urged the passage of this revised "work stand-
ards" legislation, fails even to mention the change cited here.
The Special Committee believes that it is time to reverse this trend.
In the future, when Congress delegates power to the Executive. it
should be more specific in defining the conditions in which the author-
ity may be used. Beyond that, the challenge is to devise means by
which Congress can monitor the exercise of delegated powers and con-
trol those actions deemed to be unnecessary or undesirable. Serious
consideration should be given to legislation which would give Con-






48


16

gress some type of veto over Executive branch rules and regulations
judged to be inconsistent with the legislative intent of the authorizing
statute. The law might also cover Executive directives, rules, and reg-
ulations which only come into effect during a condition of national
emergency. These instruments, though effective only at some future
time. should be subject to Congressional scrutiny prior to issuance or
activation so that, when they are needed, they will truly reflect the in-
tent of the Legislative branch and will not require adjustment in the
1111(st of a crisis.
lopjvi-ing the Accountabi[ity of Executive Decisionmaking
There must also be an effort to increase Executive accountability
by regiularizing the procedures surrounding the issuance of Executive
riderss .
The Soecial Committee's examination of "Executive Orders in
Times of-1','ar and National Emergency" underscored the chaotic and
secretive conditions that envelop Executive decisionmakin,. The Com-
mittee found considerable confusion in procedure, a decided absence
of a comprehensive means for public accountability, and an uncertain
basis for the determination of legal authority on which Executive di-
rectives may be issued or challenged.
Title 3 of the Code of Federal Regulations indicates that in issuing
decisions and commands, Presidents have used such diverse forms as
letters, memorandums, directives, notice, reorganization plans, admin-
istrative designation, and military orders. The decision whether to
Iblish an Executive decision is clearly a result of the President's own
discretion rather than any prescription of law. In recent years, the
National Security Action Memorandums of Presidents Kennedy and
Johnson and the National Security Action Directives of President
Nixon represent a new method for promulgating decisions, in areas of
tile gravest importance. Such decisions are not specifically required by
law to be published in any register, even in a classified form; none
have prescribed formats or procedures; none of these vital Executive
decisi(,ns are revealed to Congress or the public except under irregular
alrbitrairv or accidental circumstances. For instance, the 1969-1970
secret bombing of Cambodia has recently come before Congressional
anid public notice. The public record reveals very little about how the
conmnands for such far reaching actions were issued. What is most
(listurbing is lack of access to any authoritative records in these mat-
ters. In short. there is no formal accountability for the most cru-
cial Executive decisions affecting the lives of citizens and the freedom
of individuals and institutions.
The problem is exacerbated by the classification of sensitive or im-
l)oitant Executive decisions, classification which in most cases pre-
vents even Congress from having access to these documents. While
no one would wish to prevent sensitive documents from being classi-
fiiel for reasonable cause, the absolute discretion given to the Execu-
tiv( in this area has led to abuse. It has permitted and encouraged
inclusion in this category of many documents in no way connected
wvith essential national security. Moreover, not only are their contents
kept secret, but even the extent of such documents is unascertainable.
On the basis of the handling of past Presidential papers, many of
ijee, documents will, of course, in one manner or another, eventually
b), declassified, but many have been withheld by Executive discretion.






49


17

The legal record of Executive decisionmaking has thus continued
to be closed from the light of public or Congressional scrutiny
through the use of classified procedures which withhold necessary
documents from Congress, by failure to establish substantive criteria
for publication and by bypassing existing standards. As a result, the
legality of a substantial area of operations of the Government has
in large measure been immune from any oversight or scrutiny by
Congress. And the situation is growing worse. The number of formal
Executive Orders and Proclamations has, in recent years, declined
from many hundreds to about 70 annually. Since it is certain that
as the United States has grown in size and power the Executive has
issued more and more decisions, many of which are of the greatest
importance, it (an only be surmised that such commands continue to
be issued in irregular form and in ways hidden from Congress and
the people. As the role of the Executive in Government continues to
expand, this must be cause for concern.
Again, the complacency of the Congress can be cited as the reason
for this disorderly state of affairs. Congress has not, specified sub-
stantive standards for the recording of Presidential directives. In
addition, Congress has not yet enacted laws to prevent the Execu-
tive branch from abusing its power to classify documents where its
purpose is to withhold information from Congress and the public.
Improving the accountability of Executive decisionmaking must
be a matter of the highest priority. One task-that of codification-
])as already been begun by the Federal Register. That organization
has embarked upon a codification of all published Executive orders
issued between 1961 and 1975. This codification, which is expected to
be finished by the summer of 1976, will represent the first (efinitive
compilation of published Executive directives. In the past the exact
legal status of Executive orders has been virtually impossible to
awsertain. While many Executive orders have specified which orders
they were modifying or superseding, this practice has by no means
been uniform.
The next step would seem to be amendment of the Federal Register
Act of 1935. which provides the present statutory guidelines for the
issuance of Executive decisions and orders. That Act is supplemented
by a series of Executive orders by which the Executive prescribes for
itself additional procedures to be observed. Both the statutory and
the self-imposed regulations, however, fail to diminish significantly
the fundamental arbitrariness of the svsten. and the Executive's own
procedures appear to be followed only insofar as it is convenient to the
Executive's purlmse at the time.
The Federal Register Act (44 U.S.C. 1505) provides for the pub-
lication of:
1. Presidential Proclamations and Executive Orders, except
those not having general applicability and legal effect or effective
only against Federal Agencies or persons in their capacity as
officers, agents or employees thereof,
2. Documents or classes of documents that the President mar
determine from time to time have general applicability and legal
effect; and
3. Documents or classes of documents that may be required
so to be published by Act of Congress.









18

The categories enumerated herein are not all-inclusive. First of
all, there is the problem of terminology. If a document is not specifi-
cally designated as an "Executive Order" or "Presidential Proclama-
tion," the decision of whether or not it will be published as a part of
the public record is left to the discretion of the President and his
advisers. If he wishes a document to have "general applicability an
legal effect," he will presumably have it published. If, however, the
order is directed only to an official or an agency and does not pur-
port to regulate the conduct of private citizens, there is no legal
necessity for its publication. Most Executive directives fall into this
category. Although most Executive directives pertain to exclusively
internal bureaucratic operations, many others have great consequences
for the Government. the Nation, and individuals as well. One need
cite only the decisionmaking which governed the war in Indochina
to illustrate the point most vividly. Although clause 3 of 44 IT.S.C.
1505 permits Congress to designate classes of documents for publica-
tion. Congress has never addressed itself directly to this question in
the broad sense here considered.
Amendment could be. made to insure the publication of all signifi-
cant Executive directives, however denominated, in the Federal
Register. At the same time some thought should be given to establish-
ing a system whereby classified rules and orders, by whatever name
called, would be registered.
Until Congress grapples with these problems directly, it will be
confronted with a continuing veil of secrecy and will be unable to
conduct effective oversight of the Executive branch.


While much work remains, none of it is more important than pas-
sage of the National Emergencies Act. Right now, hundreds of emer-
gency statutes confer enough authority on the President to rule the
country without reference to normal constitutional process. Revela-
tions of how power has been abused by high government officials must
give rise to concern about the potential exercise, unchecked by the
Congress or the American people. of this extraordinary power. The
National Emergencies Act would end this threat and insure that the
powers now in the hands of the Executive will be utilized only in time
of genuine emergency and then only under safeguards providing for
('onressional review.
The Special Committee believes that it has provided the nation with
an effective, workable method for dealing with future emergencies in
accord with constitutional processes. The legislation establishes stat-
utory guidelines for the declaration, administration, and termination
of national emergencies. At the minimum, it provides procedure and
due process for the exercise of emergency authority.
The bill rests on the Committee's conviction that both the Executive
andl Lc-zIslative branches have vital roles to play. The Constitution
jal es io provision for suspending the distribution of power in the
1t united States Government in time of emergency. And it would be
woiito argue that the framers did not anticipate crises. As Justice
Jackson oberved. "thev knew what eniergencies were, knew the pres-
sres tihey eigender for authoritative action, knew, too, how they








19

afford a ready pretext for usurpation." Constitutional scholar Gerhard
Casper has commented:
the refusal to arrange for institutional changes during emer-
gencies expresses the confidence of the Founding Fathers
that the ordinary institutions were so designed as to be capa-
ble of coping with extraordinary events.3
The Committee, consequently, cannot accept any doctrine which
holds that a nation in extremis must submit to the will of a single in-
dividual. Such is the doctrine which has carried India to its present
state, where the writ of habeas corpus is no longer recognized. Our
forefathers-George Washington, James Madison, and others--cau-
tioned, repeatedly, that one branch of government must not be allowed
to usurp the powers of another. Thomas Jefferson knew that "the way
to have a good and safe government, is not to trust it all to one, but to
divide it among the many." In answer to his own question, "What has
destroyed liberty and rights of man in every government which has
ever existed under the sun ?" he replied, "the generalizing and concen-
trating of all cares and powers into one body.1" 4 No doubt we can en-
vision circumstances where greater authority must be lodged in the
Executive, but the Executive cannot be allowed to arrogate those
powers to itself without recourse to the Legislative branch.
The Special Committee can only conclude by reemphasizing that
emergency laws and procedures in the United States have been
negle-ted for too long, and that Congress must pass the National
Emergencies Act to end a potentially dangerous situation. To fail to
act is to invite abuse. Surely now, after the Vietnam War, the bombing
of Cambodia, the Watergate abuses, and the violation of the rights of
Americans by the intelligence agencies, Congress is too wise to do that.
3Gerhard Casper, Statement, U.S. Congress, Senate, Special Committee on the Termi-
nation of the National Emergency, "Constitutional Questions Concerning Emergency
Powers. Hearings," April 12, 1973. 92rd Congress, 1st session, p. 77.
4Thomas Jefferson letter to Joseph C. Cabell, 1816.





52


APPENDIXES


PUBLICATIONS OF SPECIAL CO-MMIlTEE ON NATIONAL EMERGENCIES
AND DELEGATED EMERGENCY POWERS

REPORTS
A Brief History of Emergency Powers in the United States: U.S.
Senate, Committee Print, 93d Congress, 2d Session, July, 1974.
U.S. Government Printing Office, Washington, D.C. 140 pp.
Emergency Powers Statutes: Provisions of Federal Law Now in Effect
Delegating to the Executive Extraordinary Authority in Time of
National Emergency: U.S. Senate, Senate Report 93-549, 93d Con-
gress, 1st Session, November 19, 1973. U.S. Government Printing
Office, Washington, D.C. 607 pp.
Summary of Emergency Power Statutes: U.S. Senate, Committee
Print, 93d Conoress, 2d Session, October, 1973. U.S. Government
Printing Office, Washington, D.C. 74 pp.
Executive Orders in Times of War and National Emergency: U.S.
Senate, Senate Report 93-1280, 93d Congress, 2d Session, October 16,
1974. U.S. Government Printing Office, Washington, D.C. 283 pp.
Summary of Executive Orders in Times of War and National Emer-
gency: U.S. Senate, Committee Print, 93d Congress, 2d Session,
August, 1974. U.S. Government Printing Office, WYashington, D.C.
69 pp.
EXECUTIVE REPLIES
Part 1-Evaluation of Emergency Powers Statutes. U.S. Senate.
Committee Print, 93d Congress, 2d Session. November, 1974. U.S.
Government Printing Office, Washington, D.C. 126 pp.
Part 2-Summaries of the Executive Branch and Committee Recoin-
mendations. U.S. Senate, Committee Print. 93d Congress, 2d Session,
November, 1974. U.S. Government Printing O Tice, Washington,
D.C. 322 pp.
Part 3-Statutes at Larg.e. U.S. Senate. Committee Print. 93 Con-
gress.2d Session. November, 1974. U.S. Government Printi Oi lice,
Wa'shington, D.C. 68 pp.
HEARINGS
Part !-Constit utional Questions Concernin 1Cneu1"ency Powers.
17.S. Senate. 93d Congz'ress, 1st Session. April 11, 12, 1973. U.S.
Government Printing Office, Washinzton, D.C. 496 pp.
Part 2-Views of Former Attorneys General. U.S. Senate. 93d Con-
gress, 2d Session, July 24, 1973. U.S. Government Printing Office,
Washington, D.C. 225 pp.
(21)








22

Part 3-Constitutional Questions Concerning Emergency Powers.
U.S. Senate, 93d Congress, 1st Session, November 28, 1973. U.S.
Government Printing Office, Washington, D.C. 196 pp.

ERRATA SECTION
The Special Committee would like to note that there is an error in
the information on page 96 of Senate Report Number 93-1280,
"Executive Orders in Times of War and National Emergency." The
original notation reads that ". . Executive Order 11798 . revoked
both Executive Order 11796 and Executive Order 11533." According
to Presidential Documents Division, Office of the Federal Register.
Executive Order 11798 revoked Executive Order 11796, but continued
in "full force and effect" Executive Order 11533. The full text of
Executive Order 11798 reads as follows:
REVOKING EXECUTIVE ORDER NO. 11796 OF JULY 30. 1974, AND
CONTINUING IN EFFECT EXECUTIVE ORDER NO. 11533 OF JUNE 4,
I 970, RELATING TO THE AI)M-INISTP1,TION OF EXPORT CONTROLS
By virtue of the authority vested in the President by the
Constitution and statutes of the United States, including the
statutes referred to herein, it is hereby ordered:
Section 1. Executive Order No. 11796 of July 30, 1974,
issued under the authority of the act of October 6, 1917, as
amended (12 U.S.C. 95a), is hereby revoked, except that this
revocation shall not affect any violation of any rules. regula-
tions, orders, licenses, and other froms of administrative ac-
tion under said orders which occurred during the period said
order was in effect. -
Section 2. Pursuant to Public Law 93-372 of August 14,
1974, effective as of the close of July 30, 1974, Executive
Order No. 11533 of June 4, 1970, and all delegations, redele-
gations, rules, regulations, orders, licenses, and other forms
of administrative action under said order which were in ef-
fect on July 30, 1974, and which have not been revoked ad-
ninistratively or legislatively, are continued and shall be in
full force and effect until amended, modified, or terminated
by proper authority.
GERALD R. FORD.
Ti: VWHITE HotusE, Av.ltlut 14, 17 .
U. S. SENATE,
SPECIAL COMiITTEE ON NATIONAL EM EMERGENCIES
AND I)ELEGATED EMERGENCY POWERS,
1ashivgton, D.C., April 2j, 1976.
IHon. ABRAhAM RIiuICOFF.DC.Arl 1
Charrzan, Goz.ei'n ?;ent Operotions Co?;27n ittee, Dirksen Senate Ofee
Bu;!din,, Washington, D.C.
DEAR SENATOR RIBICOFF: The Special Committee on National Emer-
gencies and Delegated Emergency Powers has prepared a Source-
book on the National Emergencies Act. The document constitutes a
legislative history of the Act, bringing together into one volume texts






54


23

of bills, reports, Senate and House debate, and other pertinent docu-
ments. The volume also contains a bibliography of readings on emer-
gency powers and a short introductory essay describing the evolution
of the legislation. The Special Committee believes that the document
will prove enormously useful to scholars and researchers and could
be extremely important should a dispute over legislative intent ever
arise in time of emergency.
Since the Special Committee is scheduled to terminate on April 30,
1976, we would like to request that the Government Operations Com-
mittee assume responsibility for completion of the Sourcebook. The
only tasks that remain are: (1) to update the introductory essay on
the legislative history of the bill; (2) to insert final documents,
such as the Government Operations report, Senate debate, and the
President's messages on the legislation; and (3) to issue the docu-
ment for final printing. (All the other documents have been printed,
proofread and are ready for final printing.)
Should you have further questions concerning the document and
the work required to finish it, please contact Wilkie Sawyer or Gayle
Fitzpatrick at 4-1281.
We would be most grateful for your assistance.
Sincerely,
CHARLES McC. MATHIAS, Jr.
FRANK CHURCuH.





55


STAFF REPORT ON EMERGENCY PREPAREDNESS
IN THE UNITED STATES
S NATE SPECIAL COxMirEE ON NATIONAL EMERGENCIES AND
DEILATED E mREwNcy PowERs
March 1976


66-474 0 76 5





56


EMERGENCY PREPAREDNESS IN THE UNITED STATES
In its investigations the Special Committee on National Emergen-
cies and Delegated Emergency Powers has concentrated on determin-
ing the extent of emergency power delegated to the President and
recommending procedures for the declaration, administration, and ter-
mination of emergencies. It has not attempted to evaluate the state of
e urgency preparedness in the United States. Only in its final days
did the Committee probe this question at all, and then only briefly.
Thle range and complexity of emergency issues make any evaluation
extremely difficult.' Too often goverm entiu ts, trapped within their
particular fragment of the bureaucratic puzzle, fail to examine issues
in all their parameters. In its brief probing of emergency preparedness
issues, the staff of the Committee attempted to cut across customary
lines of fragmentation and to take a broad view. To do this, the staff
solicited the views of representatives of Federal emergency agencies,
(Coo-ressional staff members, and nongovernmental experts.
The exploration raised serious questions, and the staff believes that
it is time to assess the effects of the 1973 administrative reorganization
and to evaluate the operation of the new structure with particular at-
tention to emergency preparedness, coordination, planning, and civil
liberties questions.
To facilitate such a study and to stimulate interest in and aware-
ness of the many issues involved, this report will summarize the find-
inH's of the sta ffs brief survey.1a
Ra (.qckro'nid
Until 1973 responsibility for emergency coordination was vested in
the Office of Emergency Preparedness (OEP), located in the Execu-
tive Office of the President. OEP drew its authority from many
sources, some bv delegation from the President and others directly by
statute. Its resource planning and mobilization functions were
founded in part on the National Security Act of 1947,a the Defense
Production Adt of a950,a and the Strategic and Critical Materials
Stockpiling Act.4 In the Eisenhower administration, civil and defense
1'To evaluate planning and preparedness efforts in a comprehensive manner, it is
useful to develop analytical frameworks which will help structure an overview. Two
frameworks may be useful to later investigators. One method involves classifying the
s1)eeiflc types of emergency that could occur:
E'momic: Depression, inflation, strikes, housing, agricultural, commodity trading,
municipal or corporate bankruptcies, domestic program failures, etc.
Natural Catastrophe: Drought, agricultural pests, plagues, climatic changes, famine,
floods, earthquake,, etc.
National Security: Defense, civil defense, internal security, hostilities, war, terrorism,
vinargoes, nuclear threats (peacetime and wartime), etc.
Another method would be to assess: (1) Organizational capabilities, (2) material
resources, and (3) manpower availability.
This report represents an initial probing of preparedness Issues, rather than a final
statement on them. The staff was not able to conduct a thorough examination, and its
findIings must be viewed with caution.
2 61 Stat. 495, 499; 50 U.S.C. 404.
3 60 Stat. 596; 50 U.S.C. app., see. 2061 et seq.
4 64 Stat. 79S; 50 U.S.C. 98 et seq. See also 50 U.S.C. app., sec. 2271 note and Execu-
tive Order 11051 set out therein.
(27)









28

mobilization functions were merged when Reorganization Plan No. 1
of 19.58 joined the functions of the Federal Civil Defense Administra-
tion and the Office of Defense Mobilization in a new component of the
Executive Office of the President called the Office of Defense and
Civilian Mobilization.5 The plan provided for a Director and Deplty
Director, three Assistant Directors, and ten Regional Directors: made
the Director a member of the National Security Council: and attached
to the new entity the Civil Defense Advisory Council. originally
created by the Federal Civil Defense Act of 1950.6 By successive
statutes, the Office was renamed Office of Civil and Defense Mobiliza-
tion7 Office of Emergency Planning," and, finally, Office of Emergency
Preparedness.9
Through the years. OEP lost some functions and gained others. l
Executive Order 10952. dated July 20. 1961.10 President Kenndy
withdrew designate( civil defense functions from OEP and assi--neJl
them to the D)epartment of Defense, where they still remain. OEP*'
responsibility for telecommunications policy was withdrawn (and an
Assistant Director eliminated) when the ()flice of Telecomnmunication s
Policy was established by Reorganization Plan No. 1 of 1970.11 lIi-
portant new responsibilities for s-upervising disaster relief were thrust
upon OEP by the Disaster Relief Act of 1970.12 The OEP Director
was authorized to form emergency support teams of Federal person-
nel: to draw upon outside organizations: to establish regional office"
to determine qualifications for assistance : to guide the activities- of
emergency personnel: to provide temporary housing, transportation.
communications, and other facilities in emergencies, and to take other
actions in major disaster areas. Other laws ,idded to OEP's responzsi-
bilities in disaster relief, such as those which authorize Federal assist t-
ance to educational institutions which have suffered damage or
destruction.3
By law or delegation of Presidential authority, OEP ab:o served
in various other cal-acities. Under section 232 of the Trade Expan-
sion Act of 1962. for example, the OEP Director was rezpon-.ib1e
for investigating imports which might threaten to impair the na-
tional curitv." He served by Presidential appointment as Chair-
man of the Oil Policy Committee, established bv President Nixon
in February, 1970, following the report of a Cabinet task force on
oil import policy.15
On January 26, 1973. President Nixon submitted to the Congress
Reorganziation Plan Number 1 of 1973. That plan called for the
abolition o~f the Office of Emergency Preparedness, the Office of
Science and Technology and the National Aeronautics and Space
Council and the transfer of their functions to old line agencies. Nixon
72 Stat. 1799: 5 U.S.C.. app. 565. Also printed at 50 tA.C., app., see. 2271 hote.
64 Stat. 1245, 1247,50 F.S.C. app.. sees 2251-2297.
7 72 Stat. 861; see 50 U.S.C. app., sec. 2271 note.
9 75 Stat. ,0: see 50 U.,.C. app., sec. 2271 note.
9 82 Stat. 1194 ; see 50 U.S.C. app., sec. 2271 note.
11 3 CFR. 1969-1903 -Comp., p. 479.
31 5 U.S.C app., p. 605.
22 42 r. 'se. 4401 et sea.
188 1S tat. 810. 86 Stat. 299.
1419 U.S.C. 862(b).
15 The Information on pages 3-5 was excerpted from: U.A. CogeeK H-Ious101e, Committee
on Government Operations. Reorganization Plen No. 1 of 1973: House Report No. 9.3-106.
93rd Congress, 1st Session. Washington, U.S. Government Printing Offiee, 1973, pp. 12-13.









29

described the changes in the emergency preparedness area in the
following words:
In the interest of efficiency and economy, we can now fur-
ther streamline the Executive Office of the President by
formally relocating those responsibilities and closing the
Office of Emergency Preparedness.
I propose to accomplish this reform in two steps. First,
reorganization plan No. 1 would transfer to the President all
functions previously vested by law in the office or its director,
except the director's role as a member of the National Security
Council, which would be abolished; and it would abolish the
Office of Emergency Preparedness.
The functions to be transferred to the President from
OEP largely incidental to emergency authorities already
vested in him. They include functions under the Disaster
Relief Act of 1970; the function of determining whether a
major disaster has occurred within the meaning of (1) Sec-
tion 7 of the Act of September 30, 1950, as amended, 30
U.S.C. 241-1, or (2) Section 762 (a) of the Higher Educa-
tion Act of 1965, as added by Section 161 (a) of the Edu-
cation Amendments of 1972, Public Law 92-318, 86 Stat.
288, 299 (relating to the furnishing by the Commissioner
of Education of disaster relief assistance for educational
purposes) ; and functions under Section 232 of the Trade
Expansion Act of 1962, as amended (19 U.S.C. 1862), with
respect to the conduct of investigations to determine the
effects on national security of the importation of certain
articles.
The Civil Defense Advisory Council within OEP would
also be abloished by this plan, as changes in domestic and
international conditions since its establishment in 1950 have
now obviated the need for a standing council of this type.
Should advice of the kind the council has provided be re-
quired again in the future, state and local officials and ex-
perts in the field can be consulted on an ad hoc basis.
Second, as soon as the plan became effective, I would
delegate OEP's ,former functions as follows:
All OEP responsibilities having to do with prepared-
ness for and relief of civil emergencies and disasters
would be transferred to the Department of Housing
and Urban Development. This would provide greater
field capabilities for coordination of federal disaster
assistance with that provided by states and local com-
munities, and would be in keeping with the objective
of creating a broad, new Department of Community
Development.
OEP's responsibilities for measures to ensure the con-
tinuity of civil government operations in the event of
major military attack would be reassigned to the Gen-
eral Services Administration. as would responsibility for
resource mobilization including the management of na-
tional security stockpiles, with policy guidance in both






59


30

cases to be provided by the National Security Council,
and with economic considerations relating to changes in
stockpile levels to be coordinated by the Council on Eco-
nomic Policy.
Investigations of importa which might threaten the
national security-assigned to OEP by Section 232 of the
Trade Expansion Act of 1962-would be reassigned to
the Treasury Department, whose other trade studies give
it a ready-made capability in this field; the National
Security Council would maintain its supervisory role
over strategic imports.
Those disaster relief authorities which have been reserved
to the President in the past, such as the authority to declare
major disasters, will continue to be exercised by him under
rapid interagency coordination, the federal response will be
coordinated by the Executive Office of the President in charge
of executive management.
The Oil Policy Committee will continue to function as in
the past, unaffected by this reorganization, except that I will
designate the Deputy Secretary of the Treasury as chairman
in place of the Director of OEP. The Committee will operate
under the general supervision of the Assistant to the Presi-
dent in charge of economic affairs.
The functions which would be abolished by this plan, and
the statutory authorities for each, are:
(1) The functions of the Director of the Office of Emer-
gency Preparedness with respect to being a member of the
National Security Council (Sec. 101, National Security Act
of 1947, as amended, 50 U.S.C. 402; and Sec. 4, Reorganiza-
tion Plan No. 1 of 1958) ;
(2) The functions of the Civil Defense Advisory Council
(Sec. 102(a) Federal Civil Defense Act of 1950; 50 U.S.C.
App. 2272 (a))...16
Under the Reorganization Act of 1949, Executive reorganization
proposals take effect automatically unless either House of Congress
disapproves the plan within sixty days of its submission to Congress.
Both the House and Senate Government Operations Committee held
hearings on Reorganization Plan No. 1 of 1973. The Senate took no
action, while the House issued a report approving the plan. The
House group observed that "the President cannot be compelled to
utilize a policymaking and advisory apparatus in the Executive Office
against his own preferences." The House report concluded:
We cannot predict how well the agencies will execute the
functions and responsibilities transferred to them by the re-
organization plan. The quality of leadership, the funds and
resources available, management techniques, and other fac-
tors will make a large difference. The fear expressed by some
critics of the plan is that the transferred functions will be
buried at lower levels in departmental or agency bureaucra-
10 U.S., President. Message, "Reorganization Plan No. 1, 1973," 1Hearings, before a
Subcommittee of the Committee on Government Operations, House of Representatives,
93rd Congress, 1st Session. Washington, U.S. Government Printing Office, 1973, pp.
100-102.









31

cies, and that performance will suffer accordingly. This result
is possible, but it will not follow automatically if common
sense, good management, and sufficient resources are brought
to bear.17
Neither house having disapproved, the reorganization plan went
into effect. OEP was dismantled, and its authorities were split up
between different Executive agencies. The Federal Preparedness
Agency within GSA-known during a transitional period as the
Office of Preparedness-assumed responsibility for coordination and
planning. The Federal Disaster Assistance Administration within
HUD became the central agency in charge of natural disasters. The
Department of the Treasury assimilated those OEP functions regard-
ing investigation of imports which might threaten national security.
The Deputy Security of the Treasury replaced the OEP director as
Chairman of the Oil Policy Committee, and FPA lost the seat which
OEP had had oil the National Security Council. The Civil Defense
Advisory Council within OEP was abolished, while the Defense Civil
Preparedness Agency, set up in 1972, continued as before.
Two investigations explored emergency preparedness issues in the
two years following the reorganization. Hearings conducted in 1973
by the Subcommittee on Disaster Relief of the Senate Public Works
Committee focused on the adequacy and effectiveness of federal disas-
ter relief legislation. In 1974, hearings held by a House Appropriations
Subcommittee indicated the need for a more complete investigation.
There was confusion about the exact relationship of the DCPA and the
Office of Preparedness (known as the FPA now). Georgiana Sheldon,
Deputy Director of the DCPA, decried the lack of Congressional
oversight.
Recently more studies have been launched. In January 1976, thb
House Armed Services Subcommittee on Investigations set up a panel
to examine the nation's civil defense. The inquiry is particularly im-
portant since the Senate Armed Services Preparedness Investigating
Subcommittee has not held any hearings in the last year and a half.
In December 1975, GAO initiated its own examination of the Na-
tion's civil defense program. The study will focus on the Defense Civil
Preparedness Agency is an effort to determine its operating efficiency.
GAO plans to investigate the practicality of the Agency's programs
and the effectiveness of its assistance to states and local communities.
GAO is particularly concerned about possible overlap and inefficiency
between DCPA, FDAA, and FPA. Recently DCPA has been helping
anticipate and prepare for possible crises. Once a disaster has oc-
curred, the FDAA has assumed operational responsibility. FPA has
played an overall supervisory and coordinating role. GXO will in-
vestigate how these divided responsibilities operate in practice.
Concurrently, the Senate Government Operations Committee has
begun to examine the DMPA, FPA, FDAA, and the Emergency Pre-
paredness Office of the Secretary of the Interior. The Government
Operations staff has concerned that considerable overlap existed in
the programs of these agencies.
"1 U.S. Congress. House. Committee on Government Operations. Reorganization Plan
No. 1 of 1973: House Report No. 93-106, 93rd Congress, 1st Session. Washington, U.S.
Government Printing Office, 1973, p. 19.










Organization
While promising, these inquiries will stop short of an overall assess-
ment of both emergency preparedness and planning efforts in this
country and the wisdom of the new administrative structure set up
under Reorganization Plan Number 1 of 1973.
The Committee staff believes that now-three years after that re-
organization-an investigation into preparedness operations is in
order. During recent years a trend toward decentralizing govern-
mental functions has emerged, but serious questions exist about
whether the nation benefits from decentralization of emergency pre-
paredness activities. Alternatives to the present arrangement must be
examined for their possible benefits.
The current policy of the U.S. is to operate a decentralized system,
coordinated by an agency located in GSA, the Federal Preparedness
Agency. FPA retains some of the operational duties of OEP, most
notably in maintaining stockpiles and underground facilities and sup-
plies, but compared to its predecessor, FPA is relatively free of oper-
ational responsibility. Its main responsibility is to provide policy
guidance for emergency preparedness programs and to coordinate
programs throughout the U.S. government. The Agency operates with
a staff of over 200 people and with an unclassified administrative
budget of about $7 million. Ten regional offices provide guidance to
other Federal field offices and to state and local governments in plan-
ning and developing their readiness programs. Beyond its administra-
tive structure, FPA has three main divisions: (1) Conflict Prepared-
ness runs emergency facilities, "Continuity of the U.S. Government"
operations, and other programs; (2) Civil Crisis Preparedness han-
dles stockpiles, industrial mobilization, and crisis management; and
(3) Research, Development, and Program Development explores in-
creasingly-sophisticated technologies.
A discussion of the relative merits of the present and alternate ad-
ministrative structures might start with an examination of the deci-
sion to dismantle OEP and to establish FPA. Nixon said that he was
acting "in the interest of efficiency and economy." L.ter, in testimony,
Fred Malek, Deputy Director of the Office of Management and
Budget, stated:
One objective is to reduce the size of the Executive Office,
but, more important is the need for reorienting the Executive
Office to focus on its original mission as a staff for top-level
policy formation and monitoring of policy execution in
broad functional areas. These actions are also'consistent with
the President's overall purpose of strengthening and upgad-
ing the capacity of our line departments and agencies, and to
press for further decentralization of Federal activity to field
offices and even to the communities themselves, wherever we
can bring the Government closer to the people."8
The staff found that most people interviewed placed great stress on
the political pressure to cut back the Executive Office. One FPA offi-
cial argued that the President was trying to prod agencies and depart-
Is U.S., Congre:s, House. Committee on Government Operations, "Reorganization Plan
No. 1 of 1973. Hearings," before a subcommittee of the Committee on Government Opera-
tions, House of Representatives, 93rd Congress, 1st sess., February 26, 1973, p. 3.






62


33
ments to rethink and restructure their administrative organizations.
Others pointed to a longstanding antagonism between OMB and OEP
and noted that a committee chaired by OMB director Roy Ash had
recommended a restructuring of OEP. According to this argument,
OMB had always seen OEP as a rival, so when the idea of reorganiz-
ing government gained favor and OEP issued some reports embarrass-
ing to the Administration, OMB seized the occasion and moved to
revamp OEP.
Whatever the reasons, current debate on different administrative
arrangements should focus on several key questions. One policy matter
is whether the lead coordinating agency should have operational re-
sponsibility, and if so, how much.
The staff found agreement that the lead agency is probably better
off without responsibility for oil and natural disaster programs. FPA
spokesmen and critics generally agree that reduction of natural dis-
aster responsibilities has benefitted FPA. One official observed'that
OEP's work had always been characterized by a stop-and-go quality.
People would begin a project only to be interrupted when some natural
disaster would demand their attention. Now that FDAA has taken
over the handling of natural disasters, the problem has been alleviated.
Similarly, a consensus seemed to exist that oil matters had become so
coniplex and vital that they were better handled separately.
Whether the central coordiinating agency should be free of all
operational responsibility is a more controversial subject. Critics argue
that first-hand exposure to emergencies and personal experience in
handling them insure that planning preparedness, and coordination
efforts remain realistic. They insist that cutting administrators and
planners off from immediate contact with emergency conditions leads
to an isolation that has a detrimental effect on efforts to make efficient,
realistic preparations.
A top EPA official admitted that he was not certain what structure
would be most advantageous. He ended up suggesting that the best
solution might be not a "restored OEP" or the present setup, but a
hybrid structure--a centralized agency with operational responsibili-
tie- which stopped short of natural disasters and oil policies.
Another issue centers on the importance of the specific location of
the coordinating agency within the government"" OEP, by virtue of its
location in the Executive Office of the President, exercised consider-
able "clout." The staff found universal agreement that FPA carries
less political prestige and muscle than its predecessor. As a result,
FPA requests elicit slower responses, involve more red tape, and, gen-
erally, take a longer time.
The diminished "clout" of FPA raises serious questions about the
importance and effectiveness of its leadership role. Some argue that it
is imperative that the Agency be moved from GSA and either be set up
29 An Arthur D. Little study on "Industrial Preparedness in an Arms Control Environ-
mont." prepared in December 1974 for the Arms Control and Disarmament Agency
(ACDA). also raised the issue of location: "It is possible to point out areas in the pre-
paredness system where effort might be rewarded with improvement. One such area Is
the standby organization for industrial mobilization. The principal issue here appears
to be the level at which the primary mobilization coordination reaponslbtlity is fixed
within the Executive Branch. * 0 The link with arms control may not have
been fully appreciated when the 19T3 decision was made and its emerging significance
suggests that a different disposition should at least be considered."








34

by itself or be attached to the National Security Council, Domestic
Council, or the Office of Management and Budget. This line of argu-
ment is based on the view that the coordinating agency has to occupy
a significant position to possess enough authority to command respect
and to be effective. Prime location is important, if only to insure that
the President is aware of the coordinating agency's services and makes
use of them. Proponents of this view believe that under the present
structure Executive decisionmakers are frequently unaware that FPA
has information which would be of use to them.
It seems clear that FPA does not play a major policy role in crisis
situations. Frequently, when a project has needed to be organized
quickly and political muscle has been required, the Office of Manage-
ment and Budget has taken command of the situation. As an OMB
official observed, "crisis direction was required, and it had to be out of
the President's office."
The issue is whether OMB is suited to its new role. Critics contend
that it is not. They stress that while OMB has Executive clout, it does
not have the expertise required to successfully handle emergencies.
They argue that there is high pay-off in using people who have had
experience in planning for and coping with emergency situations.
Reliance on those with prior experience is particularly important in
improving efficiency during the first seventy-two hours of the emer-
gency. In the view of critics, OMB is ill-suited to its fire-fighting role:
it cannot provide the expertise necessary to expedite the handling of
emergencies.
Another major policy question concerns the effectiveness of coordi-
nation. Critics charge that present efforts are inefficient and f rag-
mented. A 1974 Arthur D. Little study lent credence to this view, find-
ing that "officials familiar with the preparedness system feel concern
over divisions of responsibility, possible gaps between agencies, and a
lack of full coordination." The study concluded, "An effort to confirm
these views and develop remedies for such deficiencies as are verified
seems warranted." 20
In its own investigation, the staff found particular concern over the
uneven coordination between state and local agencies and the Federal
bureaucracy. States apparently find it difficult to work with the re-
organized Federal structure. They would prefer to deal with a single
unified Federal agency capable of granting them lump sum grants.
The present fragmented system-in which agencies have overlapping
jurisdictions and coordination efforts prior to an emergency are dis-
tinct from those following a disaster-frustrates and confuses them.
States have problems identifying the source of needed funds, and they
have trouble complying with the "strings" frequently attached to
grants. The use of funds allocated by the Defense Civil Preparedness
Agency seems to have been a subject of particular controversy.
FPA officials acknowledge these problems. They were eager to in-
prove coordination with state and local agencies. In addition, they
(and FDAA officials) indicated that contact between FPA and.d FDAAU
is minimal and that coordination between the two agencies is in need
of improvement.
Despite these problems, FPA representatives believe that the system
works better than critics charge. Problems that have surfaced reflect
20 Arthur D. Little, "Industrial Preparedness In an Arms Control Environment," p. 68.








35

in large part the settling out of the new administrative apparatus, and
generally, coordination within the Federal bureaucracy is effective.
Difficulties are being worked out through administrative arrangements
and informal agreements.
Finally, in this time of government deficits and tight budgets,
comparative budgetary figures will also have to be considered. When
the Nixon Administration presented Reorganization Number 1, offi-
cial spokesmen heralded savings of some $2 million, but none of the
savings was to result from the restructuring of the emergency agen-
cies. In fact, a high FPA official has suggested that the present decen-
tralized set-up is more expensive to operate. If true, it is only natural
to examine what advantages the new structure offers and to ask
whether they warrant the additional expenditures.
Planning
An evaluation of planning efforts within the government seems wise
in light of widespread skepticism about planning. Critics contend that
the level of planning has been excessive in the past and that efforts
that are undertaken in the future should be more realistic, emphasizing
existing structures and resources rather than relying on contingency
structures and plans. They view planning efforts as an academic exer-
cise, an impractical activity conducted in a world of contingencies too
often separated from more mundane realities. They argue that plan-
ning is an expensive luxury that is hard to justify when all programs
are being scrutinized for possible savings and other programs provide
more concrete and visible results.
Former OEP officials and current FPA spokesmen strongly defend
the need for advance planning. In defining planning, they speak of the
anticipation of potential crises and preparation of appropriate govern-
mental responses, including the establishment of procedures, the per-
fection of methodologies, the collection of important data, and the
identification of skilled personnel. These officials argue that the com-
plexity and increasing interdependence of the world and the concur-
rent growth in the potential for and ramifications of devastating
disasters make advance work absolutely essential.
FPA officials expressed concern that the present administrative ap-
paratus and appropriations process were biased against planning ef-
forts. No single appropriations control point exists to insure that
enough money has gone into planning. Individual committees of the
Congress make independent decisions on each agency's request with-
out any concern for the overall outcome. FPA cannot exert the
political muscle that OEP could, and no one else.has a big stake in
contingency planning. Consequently, when agencies negotiate their
budgetary requests and Congressional committees give them further
examination, funds requested for planning efforts are particularly
vulnerable.
The ending of the delegate agency funding process was of particu-
lar concern to FPA officials. Under'this system the lead preparedness
agency maintained control over funds, when it used to insure that
vital planning efforts went ahead. According to FPA representatives,
the existence of the fund gave the lead agency both latitude and lever-
age, while also simplifying the accounting of expenditures in the
emergency area. Congress eliminated the system, in part, because it






65


36

made more difficult efforts to keep track of the exact sums each de-
partment was spending on preparedness efforts. FPA officials did not
recommend restoration of the delegate agency funding process, but
insisted that some type of budgetary pool was necessary to insure con-
tinuity of planning and to guarantee completion of any planning
whose impact extends beyond a single department.
FPA officials were more concerned about the future implications of
the decreasing interest in preparedness planning than about the pres-
ent results. They worried that the cumulative effort of the small incre-
mental steps ini which planning efforts were receiving less and less
support would be extremely serious. They emphasized that certain
types of planning were dynamic and in need of constant revision, and
they expressed fears that this planning would become obsolescent and
would deteriorate to a dangerous point.
The staff believes that further investigation of these issues is war-
ranted. In the face of an evident decline in planning efforts, the
amount of planning the nation should support is an obvious area of
inquiry. The problem is to find the elusive mean between excessive
and inadequate planning. The staff believes that concerns expreswd
by FPA officials are legitimate, but that they must be coupled with
a recognition that planning inevitably has dinlinishing rteurn,. It
does not seem wise to prepare elaborate plans for every possible con-
tingency. Certain types of planning might be carried out in specific
parts of the nation and then be applied elsewhere as required. Plan-
ning may be most viable for crises of a limited nature, as a former
OEP official suggested. Some thought is required to insure that plan-
ning is conducted not just with an eye to maximizing effciency, but
also with an eye to confining actions to the restraints of the Constitu-
tion and the law. Efforts must be made to make certain that advance
planning is formulated to provide procedures for the protection of
civil liberties and that all emergency preparations are in accordance
with constitutional processes. If is essential to assess the impact of
specific planning in a broader framework. For instance, plans for re-
locating whole segments of the population in the event of a nuclear
threat must be considered within the perspective of an overall policy
of nuclear parity. Such plans might be viewed by an enemy as our
preparation for a first strike and be escalators in ways that were un-
intended. At the same time, relocation plans may violate important
civil liberties.
The quality and efficiency of current planning efforts must be
examined along with other questions, such as the extent to which
affected agencies are involved in advance planning. It will be im-
portant to judge how well officials are anticipating the diverse types
of emergencies that might occur. War and natural disasters are the
commonest but the near default of New York City suggests an entirely
different realm of economic emergencies and raises the question
whether other possible calamities have been anticipated.
Any investigation should not neglect the critical importance of the
lead organizational agency. The coordinating agency plays a key role,
particularly in charting unexplored terrain, such as the possible
dangers of world terrorism and peacetime nuclear emergencies. It
seems wise to examine both the contention of FPA officials that the






66


37

central agency should serve as a control point in the allocation of
funds and the suggestion of others that the diminished political
muscle of the FPA has materially hurt planning efforts.
Any assessment of planning and preparedness efforts in the United
States should give certain areas special scrutiny. In April 1973. the
strategic and critical materials stockpile objectives were reduced by
a quantity valued at more than $4 billion. The rationale for this abrupt
change in policy is unclear. An investigation by GAO seems to be lead-
ing to a reevaluation of stockpile assumptions, but it is essential that
Congress insure that the nation's policies in this area are not subject
to dramatic fluctuation or political whim.
Another issue concerns Executive Reserves. Under this program,
selected American citizens are assigned key governmental roles which
they are to assume in an emergency. In effect, these officials constitute
a type of "shadow government." Serious questions-such as the extent
of the program, the type of individuals involved, the advisability of
public disclosure, and the manner of activation of these reserves-
suggest the need for further investigation. In December 1973, in testi-
mony before the Senate Interior Subcommittee on Integrated Oil Op-
erations, Senator Lee Metcalf expressed concern about the extent of
industry representation in the Emergency Petroleum and Gas Admin-
istration Executive Reserve. The staff of the Special Committee feels
that the extent of industry control in all Executive Reserve programs
merits investigation. An inquiry seems wise in view of the findings-of
the House Small Business Subcommittee on Energy and the Environ-
ment that "politicalization" and "disregard for conflict of interest con-
siderations" plague the Presidential Executive Interchange Program
created by President Johnson in 1969.
Another issue involves representation of the chief preparedness
agency on the National Security Council. OEP was represented on
that body, but the preparedness representative was removed in the
1973 reorganization. The staff heard different views on this issue. A
former OEP official felt that it would be difficult to make a compelling
case for representation, since most of the items on the National Se-
curity Council agenda are matters concerning the CIA and State and
Defense Departments. An FPA official felt that the chief prepared-
ness agency should naturally be represented on that group, but was
under no illusion that membership would bring immediate influence.
Civil Liberties
Finally, there are a range of government programs which warrant
investigation because they pose a potential threat to civil liberties.
Emergency censorship demands more thorough scrutiny. In 1972,
the House Government Operations Subcommittee on Foreign Opera-
tions and Government Information held hearings on the "Wartime
Information Security Program," but these hearings did not constitute
an exhaustive inquiry.
The maintenance of lists of people to be watched or to be detained
in time of national emergency is another sensitive area. Of particular
concern are contingency plans, developed by the Justice Department,
for a domestic emergency. In an article by Harvard law professor
Alan Dershowitz appearing in the March/April, 1973, Liberty,
Richard Kliendienst, the Deputy Attorney General at that time, is









38

quoted as saying: "We have careful plans ready to be put into effect
in the event of any emergency requiring Federal troops." The Senate
Select Committee on Intelligence Activities and the House Judiciary
Subcommittee on Civil Liberties have begun investigations of these
matters, but the Congress still awaits the results of these inquiries.
Another matter of concern is the number of organizations which
have been established in a dormant status to be activated upon the
President's determination in a national emergency. Planned agencies,
such as the Office of Defense Resources and the Office of Economic
Stabilization, may require further study.
Perhaps the operation most in need of scrutiny is the series of gov-
ernment relocation centers operated under the FPA's "continuity of
government" program. Recent articles by Richard P. Pollock in The
Progres8ive 21 and the new Washington weekly, Newsworcs,22 have
detailed the operations of Mount Weather and other relocation sites
operated outside Washington, D.C. The staff is concerned about the
lack of Congressional oversight and the absence of evidence that these
facilities are being run in accordance with constitutional processes.
If these programs are to continue, it is imperative that adequate safe-
guards exist in the activation and operation of Mount Weather and
other relocation sites. The Senate Judiciary Subcommittee on Consti-
tutional Rights has begun to probe this area but has found it difficult
to penetrate the veil of secrecy surrounding these programs.
21 RichardP. Pollock, "The Mysterious Mountain," The Progressive, Madison, Wis.,
March 1976, pp. 12-16.
2 Richard P. Pollock "Flight 514 and the Secret of Mount Weather." Washington News
works, Washington, D.:, February 12-18, 1976, pp. 7-8.

























III

THE N-ATIO-NAL EMAERGENCIES ACT (P.L. 94-412)
1. Introduction of S. 3957. 93rd Congress.
2. Text of S. 3957, 93rd Congress.
3. Senate Report on S. 3957. 93rd Congress.
4. Senate debate and adoption of S. 3957, 93rd Congress.
5. Introduction of H.R. 16668. 93rd Congress.
6. Text of H.R. 16668, 93rd Congress.
7. Introduction of P.R. 3884, 94th Congress.
8. Text of H.R. 3884. 94th Congress.
9. House Report on A.R. 3884, 94th Congress.
10. House debate and adoption of H.R. 3884. 94th Congress.
11. Introduction of S. 977. 94th Congress.
12. Text of S. 977, 9-Ith Coniress.
13. Senate Report on H.R. 3884. 94th Congress.
14. Senate debate and adoption of H.R. 3SS4. 94th congresss.
15. Text of Public Law 94-412. The National Emergencies Act.













INTRODUCTION OF S. 3957. 93P CONGRESS


[Congressional Record-v. 120, Aug. 22, 1974-pp. S157S4-S15794]
A NATION AL EMERGENCIES ACT
Mr. CHUR CH. Mr. President, in his address to the joint session of
Congress on Monday, August 12, President Gerald Ford said that "we
have work to do." President Ford addressed this imperative to the
Congress.
On behalf of the eight members of the Special Committee on Na-
tional Emergencies and Delegated Emergency Powers. Senator
Mathias, the cochairman of this committee. and I introduce today, a
National Emergencies Act. In the view of the Special Committee. this
proposed legislation is urgent work for the Congress and the Execu-
tive branch. The Special Committee strongly recommends that this leg-
islation be acted upon. if at all possible. before the Congress adjourns.
For over a year and a half, the Special Committee has been engaged
in a study of the effects of emergency rule upon the constitutional
government of the United States.Most, Americans are unaware that
they have been living under a continuous state of national emergency
since 1933. In fact, there are four states of national emergency now in
force:
The national emergency declared by President Roosevelt on March 6.
1933. to meet the crisis of the depression has still not been formally
terminated.
The December 16, 1950, national emergency declared by President
Truman in order to better prosecute the Korea War is still in force.
The national emergency declared by President Nixon on March 23.
1970. to handle the Post Office strike is still in force.
The national emergency declared by President Nixon on August 15.
1971 to carry out currency restrictions and to enforce foreign economic
controls still remains in force.
These four states of national emergency confer upon the President
the power contained in over 470 emergency statutes to control the lives
of all American citizens in a host of particular ways. It is important
to understand that these laws affect every area of American life.
It is fortunate that at this time. when the fears and tensions of the
Cold War are giving way to relative peace. and d6tente is now national
policy, Congress has had the opportunity to assess the statutes-sone
470 significant provisions become known as emergency powers legisla-
tion. Emergency powers make up a relatively small but important
body of statutes out of the total of thousands'that have been )assed
or recodified since 1933. But emergency powers laws are of such im-
portance to civil liberties, to the operation of domestic and foreign
commerce, and the normal functioning of the 1.S. Government. that
Congress should delay no longer in regularizing their use.
(71)


66-474 0- 76 6







A number of conclusions can be drawn from the Special Committee's
study and analysis of emergency powers laws now in effect. Congress
has, in large measure, permitted the Executive branch to draft and thus
to "make the laws." This has occurred despite the constitutional re-
sponsibility conferred on Congress by article I, section 8 of the Consti-
tution which states that it is Congress that "makes all Laws."
Most of the 470 statutes p)ertaining to emergency powers were passed
in times of real or perceived crisis. Bills drafted in the Executive
branch were sent to Congress by the President and, in most cases, were
approved with only the most perfunctory Committee review. Virtually
no consideration was given to their effect on civil liberties or theii
impact on the constitutional balance between the Executive and Legis-
lative branches of the Government. For example, the economic meas-
Hres that were passed in 1933 pursuant to the proclamation of March 5,
1933, by President Roosevelt, asserting that a state of national emer-
gency existed, were enacted with the most unseemly haste. There was
a total of only eight hours of debate in both houses. There were no
committee reports; indeed, only one copy of the bill was available on
the floor.
This pattern of hurried and inadequate consideration was repeated
during World Var II when another group of laws with far-reaching
implications was passed. It was repeated once more during the Korean
War and, aoain, in most recent memory, during the debate on the
Tonkin Gulf Resolution, passed on August 6, 1964.
On occasions, legislative history shows that during the limited de-
bates that (lid take place, a few, but very few, objections were raised
by Senators and Congressmen expressing concern about the lack of
provision for Congressional oversight, as well as the absence of any
terminal date for the authorities granted. Their speeches raised legiti-
mate doubts about the wisdom of giving such open-ended authority
to the President, with no procedural means provided to withdraw that
authority once the emergency had passed.
For example, one of the very first of these laws, enacted in 1933,
was the Emergency Banking Act based upon section 5 (b) of the Trad-
ing With the Enemy Act of 1917. This act gave to President Roosevelt,
with the full approval of Congress, the power to control major aspects
of the economy, an authority which had formerly been reserved to the
Con gress. A portion of that act, still in force, is quoted here to illus-
trate the kind of open-ended authority Congress has typically given
to the President during the past 40 years:
(b) (1) During the time of war or during any other period of national emer-
gency declared by the President, the President may, through any agency that
he may designate, or otherwise, and under such rules and regulations as he may
prescribe, by means of instructions, licenses, or otherwise-
(A) investigate, regulate, or prohibit, any transaction in foreign exchange,
transfers of credit or payments between, by, through, or to any banking institu-
tion, and the importing, exporting, hoarding, melting, or ear-marking of gold or
silver coin or bullion, currency or securities, and
(11) investigate, regulate, direct and compel, nullify, void, prevent or pro-
hibit, any acquisition, holding, withholding, use, transfer, withdrawal, trans-
portation, importation or exportation of, or dealing in, or exercising any right,
power, or privilege with respect to, or transactions involving, any property in
which any foreign country or a national thereof has any interest,
by any person, or with respect to any property, subject to the jurisdiction of the
United States; and any property or interest of any foreign country or national






73


thereof shall vest, when, as, and upon the terms, directed by the President, in such
agency or person as may be designated from time to time by the President, and
upon such terms and conditions as the President may prescribe such interest or
property shall be held, used, administered, liquidated, sold, or otherwise dealt
with in the interest of and for the benefit of the United States, and such designated
agency or person may perform any and all acts incident to the accomplishment or
furtherance of these purposes; and the President shall, in the manner herein-
above provided, require any person to keep a full record of, and to furnish under
oath, in the form of reports or otherwise, complete information relative to any
act or transaction referred to in this subdivision either before, during, or after
the completion thereof, or relative to any interest in foreign property, or relative
to any property in which any foreign country or any national thereof has or has
had any interest, or as may be otherwise necessary to enforce the provisions of
this subdivision, and in any case in which a report could be required, the Presi-
dent may, in the manner hereinabove provided, require the production, or if nec-
essary to the national security or defense, the seizure, of any books of account,
records, contracts, letters, memoranda, or other papers, in the custody or control
of such person; and the President may, in the manner hereinabove provided,
take other and fPirther measures not inconsistent herewith for the enforcement
of this subdivision.
(2) Any payment, conveyance, transfer, assignment, or delivery of property or
interest therein, made to or for the account of the United States, or as otherwise
directed, pursuant to this subdivision or any rule, regulation, instruction, or direc-
tion issued hereunder shall to the extent thereof be a full acquittance and dis-
charge for all purposes of the obligation of the person making the same; and no
person shall be held liable in any court for or in respect to anything done or
omitted in good faith in connection with the administration of, or in pursuance
of and in reliance on, this subdivision, or any rule, regulation, instruction, or
direction issued hereunder.
The repeal of almost all of the Emergency Detention Act of 1950 was
a constructive and necessary step, but the following provision remains:
18 U.S.C. 1383. Restrictions in military areas and zones.
Whoever, contrary to the restrictions applicable thereto, enters, remains in,
leaves, or commits any act in any military area or military zone prescribed under
the authority of an Executive order of the President, by the Secretary of the
Army, or by any military commander designated by the Secretary of the Army,
shall, if it appears that he knew or should have known of the existence and extent
of the restrictions or order and that his act was in violation thereof, be fined not
more than $5,000 or imprisoned not more than one year, or both.
On its face, 18 U.S.C. 1383 does not appear to be an emergency power.
A similar law, the Alien Detention Act, was used as the basis for intern-
ment of Japanese Americans in World War II. Although it seems to
be cast as a permanent power, the legislative history of the section
shows that the statute was intended as a World War II emergency
power only, and was not intended to apply in "normal" peacetime cir-
cumstances. Three years ago, the Emergency Detention Act was re-
pealed, yet 18 U.S.C. 1383 has almost the same effect. In the view of the
Special Committee, this provision should be repealed.
What these examples suggest, and what the magnitude of emergency
powers affirm, is that most of these laws do not provide for Congres-
sional oversight or termination. There are two reasons which can be
adduced as to why this is so. First, few, if any, foresaw that the tem-
porary states of emergency declared in 1933, 1939, 1941, 1950, 1970, and
1971, would become what are now regarded collectively as virtually
permanent states of emergency-the 1939 and 1941 emergencies were
terminated in 1952. Forty years can, in no way, be defined as a tempo-
rary emergency. Second, the various administrations which drafted
these laws were uninterested in providing for Congressional review,






74

oversi-ht. or termination of these delegated powers which gave to the
President such wide-ranginc authority.
The Aimate ofe,1i'" i" which sped these emergency laws through Con-
gress x well exempi hfed by the language in President Trumains 1950
proclamation:

__rr 7: recent events in K ,rea and elsewhere cunstiture a grave threat to the
rDeaee ,f the world and imperil the efforts vf this country anti thuse of the United
Nalim : p~revent aggression and armed conflict : and
Whereas w )rld enquest by communis: imperialism is the goal of the forces of
z gresK n that have been !I ,ed up m the world ; and
Lr'he -: if the g! if e unist imperialism were t be achieved, the people
rf t i i ntry wx mld no bl~ger enjoy the full and rich life they have with God's
help i ',il- f r themselves and their children; they would no longer enjoy the
blesKn~- ,f the freeI~mr of w ,rshipping as they severally choose. the freedom of
...".n1 I what they ch,, se, the right righ :, riticize :heir government the right to cho<,se rh, e who conduct their
:7 rmaure.,-herighttlo
(> vernn1ent. the riht to engage freely in e,,dleetive 1 'aginn" th"rgh t
en,.ze freely in -heir own usi-eha enterprise and the many other freedoms and
rht whih are a part f dur way of life" and
Whereas th in reasing menace of the f~roes .fi emmunist aggression requires
h- lie nri naI defense <,f lhe United States be srengthened as speedily as

N, w therefore. I. Harry S Truman. President of the United States of America,
d, *pcla im lie existence f a national emergency, which requires that the mill-
rar1t naval, air. and s ,2sI le t he end t hqt we may be able to, repel any and all threats against
,uraT natla ec1rity and t< fulfill our responitibiities in the eff,*rts being made
-hr, ugh the UnitedI Nations and otherwise to bring about lasting peace.
I .umn.m nll citizens to make a united effort fr the security and well-being
f iur l eI c ,nntry nd I plaeits needs f.Lremt in th Ight and action that
lie frtl:! nral nI material strengh tf the Nation may be readied for the dangers
v i7ch reaten us
I umm--n ur farmers. r workers in industry. and our businessmen to make
a night5- production effo rt to meet the defense requirements f the Nation and
this end telimma e all waste and inefficieney and to subordinate all lesser
inerests to -he e( mn liig g od.
I -':mnn every pers~~n and every community t,? make. with a spirit of neigh-
*, rl~ine wh1,1ever sacrifices are nrecessary fr the welfare f the Nation.
I un.n, a all State and local leaders and offials t o(lerate fully with the
:iliov and civilian defense agencies of the United States in the national

I srnon a ll (itizens to be loyal to the jtrinciples upo which our Nation is
founded. keep faith with our friends and allies, and t be firm in 4tur devotion
To: the p~ aeef::l jirj es fray which the United Nari,,ns was founded.
I -n --nfiden th at we will meet the dangers that confront us with courage
iAd deteriininati a, str( n in the faith that we can thereby "secure the Blessings
nf JaU~ertv t,: In Wite Whereo, I have hereunto ser my hand and caused the Seal of the
ni ::ed Sqrat&- ,f A neri a to be affixed.
Done at the ity f Washington this lc;th (ay of D'en lter (10:20 am. in the
yea. r :,f 'r P rdt nineteen hundred arnl fifty. and of the Independence of the
United State of America the one hundred and seveiIty-fifth.
The pervaive sense of crisis so evident n Trumans proclamation
s fortunately eased. Tire legislative shortcomings contained in these
flny elie~oeli<,V laws 'an 1ow 10), cbeorrected on thle ,asis of a rational
eview ald revIsed procedures for the future.
In tie viewr of th e )e -ial Comilittee. an emergency situation does
Xot 14Ow Zxist. CniIL fe-. therefore. Should act now to terminate the
tare of national e.erge)cV pre;, elv in effect.
At t 0 saI e trle, the S special Comimittee is of the view that the Presi-
dent ust b e left free to deal effectively in the case of future emer-







75


gencies. It is reasonable to keep a body of laws in readiness for the
President's use. whenever a new national emergency occurs. That por-
tion of the concurring opinion given by Ju Aice Jackson in the Youngs-
town Steel case with regard to emergency powers. provides sound
guidelines for the maintenance of such a body of emergency laws kept
in readiness. Justice Jackson, supporting tie majority opinion that
the "President's power must stem either from an act of Congress or
from the Constitution itself- wrote:
The appeal, however, that we declare the existence of inherent powers ex
nfeessRitatc to meet an emergency asks us to do what many think would be wise.
although it is something the forefathers omitted. They knew what emergencies
were, knew the pressures they engendered for authoritative action, knew, too.
how they afford a ready pretext for usurpation. We may also suspect that they
suspected that emergency powers would tend t, kindle emergencies. Aside from
suspension of the privilege of the writ of haleas corpus in time of rebefli n or
invasion, when the public safety may require it, they made no express provision
for exercise of extraordinary authority because of a crisis. I do nut think we
rightfully may so amend their work. and. if we could, I am not convinced it
would be wise to do so, although many modern naticins have forthrightly recog-
nized that war and( economic crises may upset the normal balance between
liberty and authority. Their experience with emergenc- powers may not be ir-
relevant to the argument here that we should say that the Executive. of his
own volition, can invest himself with undeinled emergency powers.
Germany, after the Fir4 World War, framed the Weimar constitution de-
signed to secure her liberties in the Western tradition. However, the President
of the Republic. without concurrence ,if the Reichsta,. was empowered tem-
porarily to suslpen(l any or all individual rights if public safety and order were
seriously disturbed or endangered. This proved a temitation,to every govern-
ment. whatever its shade of opinion, and in 13 years suspension of rights was
invoked (in more than 230 occasions. Finally. Hitler persuaded t resident von
Hindenburg to suspend all such rights, und they were never restored,
The Friench Republic provided for a very different kind (if emereny
mient known as the "state of seige." It differed from the German emergency
dictatorship particularly in that emergency powers could not be assumed at will
by the Executive but could only be granted ai a Iarliamentary measure. And
it (id not. as in Germany, result in a suspen;tn or abrogation of law but was
a legal institution governed by special legal rules and terminable ty parlia-
mentalry authority.
Great Britain also has fought both World Wars under a sort of temporary
d(ictatorship created by legislation. As Parliament is not bound b0y written con-
stitutional limitations, it established a crisis government simply by delegation
to its Ministers of a larger measure than usual if its own unlimited power.
which is exerci-ed under its supervisi 1I, Ministers w1hom it may dismiss.
This has been called the 'high-water mark in the voluntary surrender of liberty."
but, as Churchill put it, "Parliament stands custodian of these surrendered lib-
erties. and its 1mst sacred (duty will be to, restore them in their fullness when
victory has crowned( our exertions and our perseverance." Thus. parliamentary
controls made emergency powers compatible with freedom.
This contemporary foreign experience may be inconclusive as to the wisdom
of lodging emergency powers somewhere in a modern government. But it suggests
that emergency powers are consistent vith free government only when their
control is lodged elsewhere than in the Executive who exercises them. That i
the safeguard that would be nullified by our adoption of the "inherent powers"
formula. Nothing in my experience convinces me that such risks are warranted
by any real necessity, although such powers would, of course, be an Executive
convenience.
In the practical working of our Government we already have evolved a tech-
nique within the framework of the Constitution by which normal Exeutive
powers may be considerably expanded to meet an emergency. Congress may and
has granted extraordinary authorities which lie dormant in normal times but
may be called into play by the Executive in war or upon proclamation of a
national emergency. In 1939, upon Congressional request. the Attorney General
listed ninety-nine such separate statutory grants by Congress of emergency or






76


wartime Executive powers. They were invoked from time to time as need ap-
peared. Under this procedure we retain Government by law--special, temporary
law, perhaps, but law nonetheless. The public may know the extent and limita-
tions of the )Owers that can be asserted, and persons affected may be informed
from the statute of their rights and duties.
In view of the ease, expedition and safety with which Congress can grant and
has granted large emergency powers, certainly ample to eml)race this crisis, I
am quite unimpressed with the argument that we should affirm possession of
their without statute. Such power either has no beginning or it has no end. If
it exists, it need sulbmit to no legal restraint. I am not alarmed that it would
plunge us straightway into dictatorship, but it is at least a step in that wrong
direction.

But I have no illusion that any decision by this Court can keel) power in the
hands of Congress if it is not wise and timely in meeting its problems. A crisis
that challenges the President equally, or perliaps )rilnarily, challenges Con-
gress. If not good law, there was worldly wisdom iiin the maxim attributed to
Napoleon that "the tools belong to the man who can use them.1 We may say
that po)wer to legislate for emergencies belongs in the hands of Congress, but
only Congress itself cal prevent power from slipping through its fingers.
The essence of our free C(overinient is "leave to live by no itian's leave, under-
neath the law"--to be governed by those impersonal forces which we call law.
Our (Governmiient is fashioned to fulfill this c()nceplt so far as humanly possible.
The Executive, except for recommendation and veto, has no legislative power. The
Executive action we have here originates in the individual will of the President
and represents 11 exercise of authority without law. -No one, perhaps not even
the President, knows the limits of tile power hie may seek to exert il this instance
11nd the parties affected annot learn the limit of their rights. We do not know
today what powers )ver lal)or or property would be claimed to flow from Gov-
ew iwat rights to coiiipensatioi would
ernieiit possession it*, we sh)Ul lealzeit, N\1,'tsto o l
l)e claimed or recognized, or oin what contingency it would end. Witl all its de-
fects, deays aIi inconveldeiices, mean have discovered n1 technique for long
preservili free goverlnielit except that the Executive be under the law, and that
tihe law bei made by parliamentary deliberat ions.
Su(h institutions aitay be (lestined to pass away. But it is the duty of the Court
to be last, not first, to give the"I up.
NIVtllll the 11i'(Ielines so profoundlV eX prZSSQ(1 in the Youngstown
(ase, and against tle backr)und ()f the last 40 years, the Special Corn-
mittee tas (ra \VI'ip the proposed d le'ls-latiol we(,.ltl(lic today. The
Special ( onInilttee has done so bv working i i lose (ooperation with
t ( of t s of the n,,mte atid all department co1-
'1ll Of the sa ( 01,111t1,11 k,,,
missions, and agei ies of the Exeeet ive branch.
might say. MI,. President. tlhat I have enj()yed the (,lose 'o .,r"in
'f of this 111i(lle lcomnittee. It is tie only hi-
!)am ta(lll* ttee i1 the (,1ngr.ess. nsisti 0 of tour Republican and
four Dienmocratic lelnbers. Mv (o hairman, S h
workedd dil tlV in tle d ftin of this legislation but he has
made, tie work of the (oi nittee c011 1letely bipartisan in every way.
We feel tlat tle })ill we ar introducingy today is inot an expression of
aIy 1arty 1)Ositi tresdllrtheoeestoationofa, balance in r (.onstitutional svs-
tern. For that reaso,1 it, was possible for the 1nembers of the Committee
to reach u 11aiim1o 1 s a ,eem Iuent.
I also Wisht say that we have enjoyed the Support of both the
I)enmoc'atic andI Iepublican leaders f the Senate, and thmey, too, have
iiiatet their' e (lorselmlent of the bill we iiltrodouce todIy.
inial ly, and je rhal most iniportantlv. Senator MIathias and I met
with tle President this i1orinin'g. We disciussed with him the bill that
we are tolay it roduing'. i ,e was lost interested. and indicated that







he favored the objective we sought and that his administration would
be prepared to cooperate with us in bringing this long period of emer-
gency government to an end so that the processes of the constitutional
system could be returned to normal.
I take great heart from the encouragement we received today at the
White House.
I think it is now possible for us to achieve a purpose that will well
serve the country. It looks as though the work of this Committee will be
crowned with success.
I express my personal gratitude to the distinguished Senator from
Maryland (Mr. Mathias) for the tremendous help he has been and
support he has given to the effort through the last 18 months.
The proposed National Emergencies Act contains four main sec-
tions. The first section would terminate the four existing declared
emergencies. The date upon which the termination takes effect would
be nine months after the date of enactment. This nine month grace
period has been included to provide sufficient time for standing com-
mittees and Executive branch departments and agencies to determine
which of the emergency statutes should be retained in the form of
permanent law. This may be necessary in a few areas such as foreign
monetary control where, over the years, the use of emergency power
has become everyday governmental practice. This nine month grace
period would permit the legislative committees and Executive depart-
ments and agencies to consider permanent legislation in the normal
legislative manner. All of the committees and all of the departments
and agencies are aware of the problem areas that affect their respective
jurisdictions and are already at work devising legislative solutions.
The next section would provide a procedure to govern the handling
of future national emergencies. The President, by proclamation, would
declare the existence of a state of national emergency. His proclama-
tion would be made public and would be published immediately in
the Fedeeral Register. The President would specify his reasons for
declaring the emergency and the statutory powers he intended to in-
voke. The Congress would have six months to affirm or reject the Presi-
dent's use of these powers. If the Congress did not act, the declared
emergency would lapse after six months. States of national emergency
could be extended by six-month periods, but each extension would re-
quire an affirmative act of the Congress.
The third section would require an accounting of all significant
actions taken by the President pursuant to emergency powers invoked
during a declared state of national emergency.
The final section is a list of statutes to be repealed. These statutes
have been agreed upon by the standing committees and the executive
branch departments and agencies as obsolete, and they should be
stricken from the books.
The Special Committee has, on its own initiative, added one statute
to this list which the Special Committee believes poses such a serious
threat to civil liberties that it should be repealed; 18 U.S.C. 1383 which
gives the President, the Secretary of the Army or any general the
authority to declare any part, or even all, of the United States a mili-
tary zone, within which any act he so designates may be punishable
as a crime. This provision is similar to the Alien Detention Act under





78


which Japanese Americans were interned during World War II. It
was repealed in 1970. In view of the Special Committee, there is no
valid reason to keep such a statute on the books.
President Ford appealed to the Congress to work with him to heal
the wounds that have developed during the past decade or more. The
record of cooperation between the Legislative and Executive branches
during the Committee's efforts to work out the problem of how to pro-
vide for expeditious action during times of war or severe crisis, and
yet do so under a constitutional framework, has been exemplary. Both
branches have worked at the task with openness and a real sense of
united purpose. The members of the Special Committee are proud to
be able to point to this final example of cooperation between the
branches.
We have had the support of several Secretaries of Defense and the
direct assistance of three Attorneys General, particularly from former
Attorney General Richardson and the present Attorney General
Saxbe. Since he took over the Justice Department, Attorney General
Saxbe has fully supported the purposes of the Special Committee and
has contributed in significant ways to the legislation which is proposed
today.
The prodigious research required to bring together the statutes and
Executive orders concerned with war or national emergency could
not have been achieved without the help of all the Executive depart-
ments and agencies. Our colleagues in the Senate should know that
without the assistance of the Air Force and its TATE computer sys-
ten, it would have been almost impossible to identify and compile all
of the statutes that are triggered by a state of national emergency. We
are especially grateful for the assistance rendered by the staff of the
Federal Register whose vitally important but largely unsung work
should receive far more attention. The Special Committee owes a spe-
cial debt to the legislative reference service, particularly the American
Law Division of the Library of Congress, and to many of this country's
most distinguished political scientists and constitutional lawyers who
have given generously of their time to assist the Committee in its diffi-
cult task.
This proposed legislation also reflects the advice of former Attor-
neys General and other high officials who had occasion to use the
awesome powers contained in the emergency statutes.
The Constitution and the Bill of Rights represent our historic en-
deavor to restrain the power of government for the benefit of all our
citizens. In the nearly 200-year history of the American Republic, the
United States has grown huge. She is today the mightiest nation on
earth. But her glory rests not on her prowess; it rests on the freedom
that still endures.
Reflecting on the erosion of freedom brought on by recurrent emer-
O'ency, James Madison observed:
Those truths are well established. They are read in every page which records
the progression from a less arbitrary to a more arbitrary government, or th(
transition from a poiular government to an aristocacy or a monarchy.
It is with the purpose of stren-thening open constitutional processes
that we introduce the National Emergencies Act today. I urge my col-
leagues in the Senate to support this legislation and to make it the lawI
of the land before the end of this session.





79


Mr. President, I send the bill to the desk and ask unanimous consent
that it be referred to the Government Operations Committee of the
Senate.
The PRESIDING OFFICER (MNr. Taft). Without objection, it is so
ordered.
Mr. CiuRc. M1r. President, I ask unanimous consent that the text
of the bill and the text of an interim report by the Special Commit-
tee on National Emergencies and Delegated Emergency Powers in
support of a recommended National Emergencies Act be printed in
the Record following the remarks I have made and the remarks of the
cochairinan, Senator Mathias. who will now take the floor.
The PRESIDTNG OFFICER. Without objection, it is so ordered.
Mr. MATILIAS. Mr. President, the distinguished Senator from Idaho,
my colleague as cochairman of the Special Committee on National
Emergencies, has spoken of the bipartisan nature of that Committee.
I should like to point out that the reason why the Committee has this
unique bipartisan character is that the Senator f rom Idaho made it
possible. As the member of the Majority who had taken the lead on
his side of the aisle, he might well have insisted on being the partisan
chairman of a partisan committee. He did not so insist. In fact,
throughout the deliberations of our committee, on the contrary, he
has insisted that this should be a bipartisan effort. He has lbeen fair,
considerate and constructive. I have valued very much our association
in working together on this bill.
It is characteristic of him that he has insisted upon sharing not only
the responsibility and the work, but also whatever rewards there are.
The Senator from Idaho has properly acknowledged the able help
that the Committee has had from outside sources. and I want to join
him in the thanks he has already rendered. We particularly wish to
thank those officials in the Executive branch who have been extraordi-
narily helpful to our work so that we can say that the bill we have
now introduced is not just the product of the thinking of a committee
of the Senate, but it also reflects, in a very real way, the advice and
counsel, and information and knowledge we have obtained from the
Executive branch on this problem of emergency Government. which is
of common interest to all branches of Government.
As the Senator fr-om Idaho has said. we are grateful for the help of
several Attorneys General-Attornev General Kleindienst. Attorney
General Richardson. and Attorney General Saxbe. But we also have
a particular debt to several Secretaries of Defense who showed a
remarkable interest in this subject and whose department. curiously
enough, was the repository of more information on this subject than
any other single source. Secretary of Defense Melvin Laird was
extraordinarily interested and cooperative, as was his successor. Secre-
tary of Defense Elliot Richardson and the cooperation has continued
under Secretary Schlesinrer and his able legal staff.
So this bill is not one which reflects only the viewpoint of Congress.
It is a bill which we have consciously designed to meet the needs of the
Executive branch. It is a bill which I think expresses a common desire
on the part of all of the branches of Government to return to a condi-
tion of government in which we are guided, day by day, in normal
times and in times of crisis by constitutional procedures.





80


It was, of course, particularly gratifying to have an opportunity
to discuss this measure with the President of the I nited States today
prior to the introduction of the bill. I was very pleased, because it was
concrete evidence of the fact that when the President came before the
joint session of Congress a week ago and said that his administration
was going to be an administration of communication. conciliation,
cooperation, and compromise, lie was not just making a speech for the
momentary benefit of Congress and the public, but that he was stating
a ]ong-tern policy which lie is now already carrying out. I think this
is an extremely good omen for the future.
The President, as we discussed the bill, was very quick to recognize
one salient principal of the bill: that this bill will not remove any
useful emergency power which Congress has heretofore delegated to
the Executive branch, with the exception of those particular obsolete
statutes which have been agreed upon jointly by both the standing
committees and the pertinent department or agency of the executive
branch. With the exception already noted and the group of obsolete
statutes jointly agreed upon. no statutes are proposed to be repealed.
11hile the statutes would go into a state of dormancy when the termina-
tion of the national emergencies takes effect, these emergency powers
are available to be used upon proclamnation of need by the President
to meet any future emergency.
The President was very quick to recognize that this is the case: that
we are not }roIposing to diminish any proper powers of the President,
or to invade the Executive prerogative. What we are proposing is to
terminate the states of national emergency which have existed without
cease for 40 years-far too long-and we are proposing to substitute
for the haphazard and potentially dangerous proceduriies of the past.
regul ar and orderly constitutional processes by which Presidents in
the future may summon up all the powers which might be necessary
to meet crises an(l emergencies; and we are further providing means
of oversight and that such powers may then revert to Congress whe,
the crisis or the emergency is over.
In doing all of this, I think we recognize that those of us who have
been elected to pul)lic office or al)pointed to positions of public trust
have a special duty to protect the Constitution and the liberty of all
citizens. The momentous march of events of the past four decades has
weakened our constitutional processes all(l our liberty is now less
secure. It is clear in looking" back over 40 years that the guardians of
the Constitution have not been as vigilant as the times re(qured. The
heavv toll of three lon, bloody andcostly wars. a catastrophic
economic (lel)ression and the fears and tension'that marked the nuclear
age and its dliphflolatic twin, the ('old War. has caused serious imbal-
aiices in ouir svstei of ol)en (leilioer ati overiiienit.
We, ill the'Colgress, are witness to the (lestructive p)rocesses of war,
crises and(1(li l(oer l( es. It is clear that we in the CoIgress. through
lne"Iect and lack of foresight amd u m(lerstan(lino, have contributed
iiileasura/l)l vto tHe weakening/ of eonstitut ioilal zovernnent. But we
in the Cong'ress have the means to take the steps necessary to strenth-
en the constitutional 1)rocesses thlat give t1rl)ose an(l1i1bstaince to our
liberties.
Tie (onstit ut ion assigns legislative resPomsibilitv solely to the
(Io''ess. Yet, for the last 40 years i timost of the ill)ortant areas of







public policy, many laws were conceived and actually written by the
Executive branch. As a consequence, the Congress, in far too many
instances, exercises only a limited modifying role, and in a few extreme
cases exercises a kind of reverse veto by enacting amendments which
occasionally negate Executive lawmaking initiatives. Contrary to the
authority delegated by the Constitution, the lawmaking roles of the
Congress and the Executive have been reversed.
The effects of this failure by the Congress to make the law in the full
sense intended by the founding fathers has in part contributed to the
national disasters of our time.
Yet this neglect has not yet resulted in the stifling of our freedoms,
although the warnings are many that individual liberty has been in
danger. It is not a very large step from a small illegal police force to
widespread abuse by an effective, efficient instrument of suppression. It
is not a very large step from the relatively small scale illegal break-ins,
buggings, mail covers, procurement of private records and burglaries
to the abuses of an authoritarian police state. It is very evident that
the genuine needs of our national security, have been perverted by a
process of unreviewable actions taken under the guise of national se-
curity or some similar vague incantation justifying arbitrary action
untested by the light of reason or the open processes of constitutional
government.
Our founding fathers consciously placed in our Constitution the
means to determine the real needs of the republic and laid down meth-
ods to provide for genuine national security. They also prescribed tests
by which to reject spurious claims of national security which, in truth,
have proven to be little more than cloaks for arbitrary rule. Two hun-
dred years ago the authors of the Constitution sought to frame proc-
esses by which power could be used effectively for all of the people of
the Nation. They also sought to prevent power from falling into the
hands of a few to the detriment of the majority of the people.
Constitutional processes, in my view, means the open, careful and ra-
tional husbanding of the Nation's power. It is often said that power
corrupts, but in my view, power can be used for good or for ill. Power
used bv men of good will in accord with the Constitution does not cor-
rupt. But power used by willful men outside of constitutional authority
can be corrupted, and as recent events have shown, when that happens,
the Nation suffers.
The National Emergencies Act introduced here today has been writ-
ten and conceived by Members of the Senate using the full resources
of our constitutional processes. Against the tide of accepted practice
created by the events of recent years, and through the rigorous process
of hearings, study, and debate, we have sought to restore the legislative
structure to its original constitutional dimension to provide for effec-
tive government during times of war or severe crisis. We have also
sought to assure that each of the branches can use its respective powers,
and carry out its assigned responsibilities under the Constitution, in
order to contribute to a common purpose of national security.
The rolls of history are filled with the stories of the fall of democra-
cies because of long wars or sustained crises. The fall of the Weimar
Remblic and the rise of Hitler is a memory many of us share. We
seek to prevent the possibility of a repetition of that tragic chapter
from world history in the United States. In my view, our Constitution





82


provides the best means to remain a free people, but we in the Congress
must meet our responsibilities to make the law if that hope is to be a
lasting reality.
Over a year ago I went to see the late former Chief Justice Earl
Warren to ask his views about the philosophical questions and theo-
retical problems that crisis governments pose to our constitutional sys-
temt and the actual effects that 40 continuous years of national emer-
g'ency has had on the Govermnient of the Uinited States. I do not think it
would be a violation of his confidence if I shared the benefit of his
views with the Senate. The former Chief Justice recalled that when he
was attorney ('eiieral of California during World War II, he played
a significant role in the detention of Americans of Japanese ancestry.
He explained that the detention of Japanese Americans was in large
measure due to irrational fears generated by the pressures of World
War II.
He reflected that this incident showed that unless there were firm
statutory guidelines a crisis atmosphere can act to abridge constitu-
tional rights and processes under the exigencies of the moment, "needs
of the state." or the so-called demands of "national security." He
told me that he realized that his actions during World War II, which
had seemed necessary at the time, were in retrospect harmful to
tho American constitutional system. He said that he learned from his
experience, and lhe went on to say that as Chief Justice of the Supreme
Court, le had tried in every way possible to strengthen constitutional
processes al(l particularly to protect the rights of all citizens. In that
converse tioii we discllssed the importance of the Yotimgstown Steel
ease, particularly the powerful remarks of Justice Jackson, which in
(Chief Justice Warreen's view lad most thoughtfully addressed the
l)roblen that. extraordinary crisis situations such as war or severe
national del)ression pose for constitutional government. In essence, he
lelievel that Justice Jackson's'views were a forceful and convincing
definition of constitutional responsibility. Justice Jackson's opinion
stressed that each branch has its responsibilities, and if each branch
fullyI meets its responsibilities, there would be no legal doubts con-
cernini, who should "make the law" and lhow the laws should be
executed.
(Chief Justice Warren said that while the Constitution provides that
only Congress (can make the law, the legislature has the obligation
through enactim statutes to I)rovide firm 1)olicy guidelines for the
Executive branch. The former Chief Justice agreed with Justice Jack-
son s view that where there are statutory gliidelines, a President is
obliged to follow the l)recepts contained in the laws passed by the
Congress. Inherelnt powers problems arise and the other branches act,
lie said, largely when Congress fails to act definitively, when it fails to
miake needed laws and when there is a necessity for legislative action
and Congress fails to ineet the challenge.
We then discussed the outline an(d the constitutional conce)t that lay
behind the legislative proposal to meet future national emergencies
now before the Senate. Chief Justice Warren thought it was, in prin-
ciple, a sound solution to what he recognized as a serious threat to
constitutional government.
The Special Conmmittee is of the view that the findings of the
Youngstown Steel case so eloquently expressed by Justice Jackson, and






83


as confirmed in the views of the late Chief Justice Earl Warren con-
tinue to be sound. In this legislative proposal that we now recommend
to the Congress, after months of working in cooperation with the
Executive branch, we believe we have met our constitutional responsi-
bility "to make the law."
The proposed legislation now before the Senate was written in ac-
cordance with our Committee mandate: We have laid out statutory
guidelines which we believe will provide the Executive with the flexi-
bility and the effective power to meet any foreseeable future emer-
gency, but to do so within established constitutional guidelines and
constitutional procedures.
There were other possible courses of action to end the state of emer-
gencies. The Special Committee could have recommended an outright
repeal of the existing emergencies. This. in fact, was the initial incli-
nation of some members of the Special Committee. But after a series
of hearings, and after the staff had brought together an analysis of
the 470 statutes triggered by a state of emergency, and when the
members of the Special Committee had a fuller understanding of the
long history of emergency Lovernment in the United States and in
other nations throughout history from Greece. and Rome to the
Weimar Republic, we came to the conclusion that it would be irre-
sponsible to propose a termination of the four concurrent states of
lational emergency without providing a means for declaring and
terminating future emergencies. The Special Committee also decided
it was necessary to enable the Executive and the Legislative branches.
working jointly through the prescribed constitutional processes, to
make the adjustments necessary for a return to normal government.
In 1816. Thomas Jefferson wrote to his friend Joseph C. Cabell.
thle cofounder with Piesident Jefferson of the 1niversitv of Vircrinia.
of his grow ing concern that political power not fall into the hands of
one mlan or a determinedd group of just a few men. He wrote:
No, my friend, the way to have a good and safe government, is not to trust it
all to one, but to divide it among the many, distributing to everyone the functions
he is competent to.
Jefferson, in his letter to Cabell goes on to ask-
What has de;troyed liberty and the rights of man in every government which
has ever existed under the sun?
Jefferson's answer was short and explicit:
The generalizing and concentrating of all cares and powers into one body.
It is with Jefferson's admonition in mind that I urge the Senate to
exercise "the function it is competent to"-to make the law and enact
this proposal to strengthen our government of laws.
That, Mr. President., is why I am particularly pleased with the con-
versation we had this morning with the President of the United States
who is supporting. in principle, the concepts that are embodied in the
bill which the Senator from Idaho (Mr. Church) and I have now in-
troduced on behalf of every member of the Special Committee. has also
recognized that they reflect enduring constitutional principles which
have been a part. of our Government since the founding of the Re-
public, and which have been respected and recognized by the great
Presidents of the Republic in every age.







[Text of S. 3957]
[Text of Interim Report-A Recommended National Emergencies Act]
NEED FOR EMERGENCY POWERS LEGISLATION
Mr. PEARSON. Mr. President, I am proud to join with my colleagues
on the Special Committee on the Termination of the National Emer-
gency in sponsoring the National Emergencies Act. This bill is the
product of a careful review of a President's emergency powers by a
unique bipartisan committee.
In a very real sense, Mr. President, this bill complements other
efforts which this Congress has taken to reinstate constitutional gov-
ermnent as it was intended to function. We moved in Public Law
93-148, the. War Powers bill, toward a reassertion of the right of
Congress to declare war. In the budget reform measure, we reasserted
the right of Congress to control government expenditures.
The National Emergencies Act., and these other laws, do not at-
tempt to eliminate necessary and essential Executive powers which
our country grants its President. Certaily there is a need for a Presi-
dent to operate, on his own initiative, with speed and efficiency in the
face of a national crisis. However, I believe that excessive power in
the hands of any one man is both undesirable and alien to our sys-
tem of overniient.
During the past year and a half, all of us on the Committee have
learned a great deal about the extent of the powers which a Presi-
dent may exercise during a "national emergency." With the aid of a
highly professional and competent staff, we have compiled a list
of statutes -and Executive orders detailing the precise nature of this
authority. After reviewing this list, I was amazed at the extent to
which (oH.rress has delerated special powers to a President who
deems thiat the ITnited States is facing an emergency.
My concern was increased when I realized that Congress bears a
large, share of responsibility for the steady accretion of emergency
power. While Presidents can and have unilaterally declared that states
of emergency exist, Congress has given them means to exercise ex-
traordinary poeriss during these times. Thus, Harry Truman's declara-
tion of a national emergency in 1950 had a major psychological im-
pact. However, laws passed by Congress, such as the Defense Produc-
tion Act, provided the legal basis for most of his subsequent actions.
There are nearly 500 such laws still on the books. Each law gives any
President special powers during a "national emergency," during times
of war, or when he deems that "war is imminent." The 1950 Emergency
Proclamation, and three others are still on the books. As a result, each
and every one of the Congressional delegations of power is today
available for use bv a Chief Executive.
Even more amazing than the number of laws granting special power
to the President is the fact that there is no mechanism for reviewing
or revoking these laws once they are no longer needed. Unlike, inherent
Presidential powers which can be reviewed by the Supreme Court,
emergency powers are specific legal delegations of authority to a Presi-
dent. The Supreme Court has generally given deference to such dele-
grations of authority. The laws are viewed as persuasive evidence of





85


Congressional intent that the President should be permitted special
latitude during crises. Thus, unless the Congress itself imposes con-
trols, emergency powers may remain largely unchecked.
For this reason, the bill sponsored by the Special Committee is a
carefully measured step toward reimposition of Congressional control.
First, the bill suspends the existing authority of a President to utilize
the laws granting him powers during a national emergency. After
placing these laws on a "shelf," we also require future Presidents to
specify the powers which they wish to use once an emergency has
been declared. I believe that this is preferable to permitting the
President to choose his actions from a large residuum of unorganized,
undefined, and often outdated legislative grants of authority.
Second, the bill imposes time limits on any future declaration of
emergency. No emergency is effective beyond six months, unless speci-
fically extended by Congress. This requires Congress to review any
declaration of emergency and thereby imposes a degree of responsi-
bility on Congress.
Also, the bill proposes the repeal of existing emergency status which
the Committee and the Administration have agreed are no longer
needed.
This bill is an important piece of legislation. Although it does not
and cannot foresee every eventuality, it will interject a degree of
thoughtful oversight over Executive decisionmaking.
Mr. President. I recently outlined in greater detail myl thoughts on
this matter in article published in the Wjo t, Eoqle on August 18. 1
ask unanimous consent that the article be pIrinted at tills point in the
Record.
[There being no objection. the article was ordered printed in the
Record. as follows :]
THE PRESIDENT'S POWER
(By James B. P1earson)
Since 1950. any President of the United States, without prior consu iltation with
Congress. has had the power to:
)rder a federal take-over of all Wichita aircraft plants and other (lefense-
related industry.
Declare the cities of Omaha and Colorado Springs to be military zones because
of their sensitive defensee facilities, and order the arrest of anyone entering or
leaving these areas.
Regulate radio and wire communications, including Western UTion, news agen-
cies such as the Associatel IPres and lnitedl'ress international.
Close the New ,rk Stock Exchange. suspend all currency trailing, after cus-
toms and import duties, and control shipping and rail transportation facilities.
No one seriously expects that in the absence of a major national ()r world
upheaval that an American President would act so capriciously as to impose
these Draconian measures. But the significant point is that a President coul(
legally take these and many other even more sweeping action because since 1933
the United States has been technically and legally in a state of national
emergency.
To most Americans. the idea of giving a President special powers when the
future of the nation is at stake is not particularly frightening. We have often
relied on a strong Executive to act quickly. This has been particularly true in time
of war.
Most I)eoI)le do not realize, however, that a President can declare a national
emergency on his own in peace time. There is no firm, legal requirement that our
lives or property be clearly threatened before such a declaration is made.
This is true because a President. drawing upon a reservoir of strength from
his position as commander-in-chief of the armed forces, and as Chief Executive






86

may perceive the need for special action or unusual decisions and thus proclaim
a national emergency.
The debate over the actual extent of the President's power in this area has
raged for years. The issue has never been settled. Some Presidents have gener-
ously interpreted their power to declare national emergencies.
For example, in 1970 President Nixon declared a national emergency in re-
sponse to a wildcat strike of postal employes in New York and Chicago. He
declared that adequate postal service was important to the well being of the
nation.
The strike, he argued, could hinder the processing of men into the armed
forces and impair tax collections and the distribution of social security and
welfare payments. Following his statement, the President activated some Armed
Forces Reserve units to begin distributing the mail in New York City.
Actually, these emergency proclamations have little effect standing alone. Their
significance lies in the fact that :they serve to activate hundreds of laws passed
by Congress over the years delegating special authority to the President in times
when national emergencies are in effect. These special laws can be triggered
simply because a proclamation of emergency, possibly declared years ago, has
never been technically revoked.
Congress has shown little reluctance in passing such laws. Time after time,
when faced with crisis situations. Congress has handed the President. often with
unseemly haste, special powers on a silver platter. While the President should
assume leadership in a crisis, the Congress has often failed to consider the long
run consequences of its actions.
The lack of careful thoughtful review in granting these special powers was
demonstrated in 1933. At that time, Franklin Roosevelt submitted an emergency
banking bill to Congress. No member of the House or Senate had copies of the
measure. It was passed after 38 minutes of debate. It approved actions the Presi-
dent had already taken.
Unfortunately, this incident is not unique. If we were to add up all Congres-
sional grants of power it would not be an exaggeration to say that the ground-
work had been laid for a legal dictatorship.
. The need for a serious, careful review of national emergency powers has be-
come increasingly apparent in the last few years. And in 1973 the United States
Senate established a Special Committee to study these extraordinary powers. I
have been privileged to serve as a member of this Special Committee on the
Termination of the National Emergency.
When our Committee first began examining the question of the national emer-
gency, it quickly became apparent that our first task was to identify the existing
proclamations of emergency and to catalog all special laws that could be used
when emergencies are in effect. No one really knew the full scope and nature
of emergency powers.
We learned that the four national emergencies declared in the last 40 years
have never been repealed. In 1933 President Roosevelt issued an emergency dec-
laration dealing with the Depression. Harry Truman's emergency proclamation
in 1950 provided basis for our involvement in Korea. President Nixon declared
an emergency in 1970 to deal with a postal strike. He proclaimed another emer-
gency in 1971 relating to international economic problems.
Then with the help of Air Force computers, the Committee compiled a list of
more than 470 federal statutes which can be activated while emergencies are
in effect. Some date back to the 1800's. They have never been coordinated. They
are not organized in any special manner. All 470 are in effect today.
In addition to these laws, Presidents have issued countless Executive orders,
proclamations. and directives. These generally have all the force of law if based
upon a specific Congressional delegation of authority. Many of these rulings are
not published for review by Congress or the public.
Each of these laws and Executive orders had legitimate objectives at the time
of enactment. But over the years they have often been used in ways never
imagined by the original authors.
In addition to the rather dramatic possibilities listed in the opening paragraph,
there are several actual incidents of Presidents using emergency laws of another
era to justify their actions.
For example, in 1917 Congress passed a law prohibiting trading with Germany.
section 5 (b) of the' "Trading With the Enemy Act" gives the President very
broad economic powers during the time of war or during any other period of
national emergency. This is still "good law" because of the 1950 emergency.








Thus in 1968, President Johnson, wishing to control the foreign investments of
U.S. companies to alleviate the balance of payments crisis, issued an Executive
order based on powers granted by the "Trading With the Enemy Act of 1917.
In 1950, Congress passed the Defense Production Act giving a President wide-
ranging powers to control the production of materials needed for national de-
fense in connection with the Korean War. Its language is broad enough to permit
the President to order government possession of a plant which refuses to manu-
facture a specified kind or quantity of material.
As late as 1966, this Act was used to fill a Department of Defense order for 3
million tropical uniforms for use in Vietnam. Also, in the fourth quarter of 1966,
the President relied on the law to require steel producers to set aside six percent
of their output for defense. Eighteen percent of copper and thirteen percent of
aluminum production also was ordered to be set aside for defense purposes.
Several Presidents have, also, relied upon the Feed and Forage Act of 1861.
This bill was passed during the Civil War to give the Army authority to obtain
feed and cavalry forage when Congress was not in session.
Today, this act still permits the armed services to use deficiency spending to
obtain clothing, subsistence, fuel, quarters, and other supplies. I think these needs
should be met. However, the law has also been used to finance American Ma-
rines in Lebanon in 1958, to support the Berlin mobilization in 1962. and to
maintain troops in Southeast Asia.
I do not suggest that these actions are evil, dictatorial, or even unneeded. But
I am persuaded that all the emergency powers, when taken together, give future
Presidents an unacceptable range of discretionary power. To say that a con-
temporary President would not likely abuse emergency power available to him
is no guarantee that some future President under unforeseen conditions might
not do so.
But of equal or more importance than the possibility of the outright abuse of
power is the fact that in exercising emergency authority, even in a legitimate
and proper way, the President makes policy decisions which should be properly
shared with the Congress.
Because of the existence of these broad emergency powers, even the best in-
tentione(d of Presidents is tempted from time to time to take the quick, easy
route of issuing Executive orders rather than coming to Congress with a request
for statutory authority to deal with the problem at hand.
This is, of course, not always possible. But if we are to maintain a proper
balance of power over the long haul, we must continually be on the alert to pre-
vent the unnecessary exercise of Presidential power and the undesirable decline
of Congressional authority.
No one suggests that the President should be denied the use of emergency
powers. Congress cannot always move with the necessary speed to deal with
crisis situations. The real question is not whether the President should have
emergency powers, but how extensive they should be and how they should be
controlled to assure proper accountability and to prevent possible abuse.
Congressional review is essential to checking the steady growth and accumu-
lation of Presidential emergency powers. We must insist upon our role to oversee
the use of these and to terminate them when conditions are proper.
One means of instituting stricter Congressional controls is to limit the length
of emergency grants of power.
The British have learned this lesson. During World War II. Parliament
granted massive powers to the prime minister and his cabinet. Britain appeared
to be a totalitarian state. However, Parliament. also, retained the right to re-
view and terminate the special authority. This grant of powers had to be renewed
annually by Parliament. Parliament never lost control of its ultimate right to
review and revoke emergency powers.
The U.S. Congress is finally beginning to impose time limits on the granting
of special powers. The Economic Stabilization Act, which gave the President the
power to invoke wage and price controls, was allowed to lapse on April 30. 1974.
Also, during debate on emergency energy legislation la.t winter, Senator
Church sought to include specific time limits in the grants of power given to the
President. Because of the work of our Committee. we were able to convince the
Senate to limit the delegation of emergency energy authority to one year.
After long and careful study, the Special Committee to Terminate the National
Emergency has now prepared and submitted to the Senate legislation which we
believe effectively deals with the question of controlling the use of emergency
powers.


66-474 0 76 7






88


Our bill proposes to terminate, after nine months, the effectiveness of all
powers given to the President by law as the result of any national emergency cur-
rently in effect. The 470 laws, which we mentioned earlier, would in effect be
"Placed on a shelf for use during future national emergencies."
Outdated or unnecessary laws would be repealed.
Under the bill, the President could in the future, declare a national emergency,
But, along with his declaration, he would have to inform Congress precisely
which powers "on the shelf" he wishes to use during the emergency. In case of
war, the president could use any emergency statute on the books.
The bill also specifies that any declared emergency will be automatically
terminated within six months unless extended by Congress. Congress may, also,
end the emergency before the six months expire. If the need for special Executive
powers continues beyond six months, a President may declare another emergency.
These subsequent declarations would also be subject to Congressional approval.
During a war, the powers would remain effective until the war was terminated in
accordance with constitutional processes.
The bill also requires the President to maintain a file and index of all Executive
orders or any other directives he issues. Copies of the orders must be given to
Congress. The security of these rulings is protected if they contain confidential
information.
This bill is not the perfect answer to all of our questions. A devious President,
if he could withstand the political pressure, might wait several days after the
expiration of each emergency prior to announcing a new one.
Congress could also refuse, out of spite or for political reasons, to approve
legitimate measures needed to protect the Nation. Nevertheless, the bill does im-
pose significant new restrictions on the unfettered use of emergency powers.
This bill, if approved by Congress and signed by the President, will impose a
measure of Congressional restraint and oversight in Executive powers which
have fast become unmanageable. Its adoption would in no way cripple the Presi-
dent's ability to contend with genuine emergency conditions.
It does represent a step toward reinstituting constitutional government as I be-
lieve it was intended to function. It is a major piece of legislation. It should
be adopted.
Mr. STEVENSO-N. Mr. President. two weeks ago, the Constitution pro-

vided for an orderly transition in the Presidency.
Today. the Special Committee on National Emergencies and Dele-
ted'ency Powers on whiich I amp Jrivileged to serve is report-
lug the National Emergencies Act. That act is intended to assure
that in our democratic system of government the President's power
does not exceed the power lie derives from the Congress and the
institutionn.
The National Emeroencies Act provides for:
First, the termination of the present status of "national
emergency',
Second, a procedure for the declaration of emergencies and their
termination:
Third, public disclosure of action taken pursuant to emergency
power statutes: and
Fourth, repeal of existing" emergency power laws.
Four Presidentially proclaimed states of national emergency are
now in effect. Without the consent of Congress, the President can,
among other things. seize property, organize and control means of
production. assl rn military forces abroad, declare martial law, restrict
travel and control all means of transportation and communication. A
President can manage the lives of every American citizen by decree.
Only a few of the President'semergency powers are being used
which is evidence in itself that an "emergency" no longer exists.