The relatively recent rise of the concurrent resolution technique and the series of legislative-executive disputes over its constitutional validity demonstrates, I believe, that as a customary legal device, it has not yet supplanted the clear textual requirement of coordination in lawmaking activity. I am not suggesting that the concurrent resolution as a means of achieving that coordination is unconstitutional in all instances. For example, in the legislative reorganization acts, coordination of power is preserved by merely reversing the legislative process and requiring legislative approval, but not amendment, of an executive submission, rather than doing it the other way around. Regardless of the results of any possible eventual determination by the courts of the constitutionality of the concurrent resolution device, I would suggest that it would be unwise for the Congress to adopt a constitutionally questionable procedure when a much simpler and less controversial method can accomplish the needed purpose of coordination. This is especially true when dealing with the field of foreign affairs in which the executive branch has both a functional and an historic primacy. The principal difficulty with trade embargoes is not that the Executive imposes them arbitrarily or unnecessarily, but that they tend to be carried on by the inertia of government without periodic review and continued rejustification. I would suggest that an effective substitute for the attempt to bind the executive branch by concurrent resolution would be a requirement that trade embargoes could be imposed only under stipulated conditions to be found and announced by the executive branch, and then only for 6 months or 1 year at a time, unless the Executive rejustifies the need to continue each embargo. By forcing the Executive to take the administrative step of reexamining existing embargoes and the political step of stating why they should be continued, the Congress would succeed in keeping the existence of embargoes before the public eye. To adopt a device such as the concurrent resolution technique which the Executive has strong constitutional grounds for ignoring could only lead to a further diminution of the influence of Congress in the foreign policy field in the long run and is especially dangerous in a situation in which a popular Chief Executive might combine his personal political strength with a strong constitutional argument. This really only scratches the surface of the issues involved. I hope it has been helpful to the subcommittee. Again, I feel myself very privileged to have the opportunity to address these matters. [Professor Maier's prepared statement follows:] PREPARED STATEMENT OF PROF. HAROLD G. MAIER, VANDERBILT UNIVERSITY These comments deal with some of the constitutional issues relevant to this subcommittee's consideration of two pieces of proposed legislation: H.R. 1560, a bill to repeal section 5(b) of the Trading With the Enemy Act of 1917, and H.R. 2382, a bill to limit the imposition of trade embargoes (also known as "The Economic War Powers Act"). In the course of this discussion, I will suggest three general conclusions. The first is that unless section 5(b) of the Trading With the Enemy Act (hereinafter TWEA) is either repealed or substantially modified, efforts by the Congress during the past few years to regularize the law-making process by returning the country to a state of "nonemergency" gov ernment will be substantially weakened. The second conclusion is that the history of executive practice and congressional acquiescence in that practice over the past forty years under section 5(b) has resulted in a substantial shift in the constitutional allocations of power in this area between the legislative and executive branches. Lastly, I suggest that by a combination of amendment to section 5(b) and by the passage of additional parallel legislation, Congress can take significant steps toward improving that coordination of governmental powers in the foreign trade field which is essential to the smooth and constitutionally proper functioning of the two political branches in this important area. In that context I submit a few comments concerning certain constitutional considerations raised by H.R. 2382. In 1976, Congress passed the National Emergencies Act, Public Law 94412, to accomplish two principal goals. One goal was to terminate existing states of national emergency still in effect by virtue of unrescinded Presidential proclamations; the other was to establish procedures for terminating future declarations of national emergency, either by concurrent resolution of the Congress or by executive proclamation. This Act, which became law of September 14, 1976, was passed after a three-year study by a Special Committee on National Emergencies and Delegated Powers of the United States Senate. During its study, that Committee found that since 1933, Congress had passed or recodified over 470 statutes delegating to the President law-making authority based on the declared existence of emergency conditions. During that same period, five "temporary" states of general national emergency had been declared by various Presidents in 1933, 1939, 1941, 1950, and 1971. Three of these states of emergency, those of 1933, 1950 and 1971 are still in existence and those declarations bring into effect the powers conferred by section 5(b) of the TWEA. The Senate Committee's study made it clear that large body of existing regulations, executive orders and decrees depended for their legal validity upon the continuing existence of a declared state of national emergency. Thus some states of emergency could not be terminated by the National Emergencies Act without further study of the effect of removing statutory authorization on the continuing implementation of important governmental policies. Consequently, section 502 (a) of the National Emergencies Act exempted from its provisions several existing emergency powers statutes. section 502(b) directed further congressional study and recommendation concerning the utility or necessity of continuing these "emergency" powers. One of the provisions exempted from the coverage of the National Emergencies Act was section 5(b) of the Trading With the Enemy Act. Another was section 95a, 12. U.S.C. which is identical to section 5(b); TWEA. The effect of excluding section 5(b) from the coverage of the National Emergencies Act was not only to continue the states of emergency of 1933, 1950 and 1971 which had been declared under it, but to exempt any powers currently being exercised by the executive branch by virtue of these declarations from the oversight and termination provisions of the National Emergencies Act. The practical and legal effect of this exclusion was to substantially weaken the effect of the National Emergencies Act. As long as section 5(b) remains in the statute in its present form, the executive branch can exercise many of the "emergency" powers which it had exercised before the passage of the 1976 legislation exactly as it has for forty years. The decision to exempt section 5(b) from the National Emergencies Act pending further study was essential because much activity of government, especially in the foreign trade field, has come to depend upon the statutory authorization provided by section 5(b) together with the continuing existence of declared national emergency status triggering those powers. To establish the context of this subcommittee's study, I think it is important to note that section 5(b) does not grant to the President the power to declare a national emergency. Rather, section 5(b) gives special legal effect to such a declaration by bringing into operation congressionally authorized power to be exercised by the President during the time that the national emergency status continues. Furthermore, the executive branch does not need statutory authorization to act in specific situations to deal with emergencies when the exigencies of the moment require such action. When the executive acts in this way, he acts at his peril. He must justify his acts on the basis only of whatever inherent authority he may have in the light of the situation in the context of which his emergency action was taken. Such justification may occur either before the courts or, more likely, to the Congress and, most important of all, to the American people. Therefore, the delegated power granted to the executive branch by the Congress under section 5(b) is a power in addition to any "inherent" or "implied" power which may reside in the President to act in emergency situation. Thus, a complete repeal of section 5(b) would remove from the President that quantum of power which is conferred by the Congress, leaving him only with whatever "inherent" powers he may have by virtue of his office. Given this context, I would suggest that any consideration of repeal or revision of section 5(b) needs to take into consideration two important general policy issues. One of these is the extent to which Congressional nonemergency authorization of the exercise of the powers currently available to the executive is desirable to maintain an efficient and executive governmental operation in the fields covered by this statute. The second equally important question is, would abdication by the Congress from the field entirely by outright repeal of section 5(b) without substitute legislation leave a constitutional power vacuum which would be filled by the executive branch acting without authorization in situations where some action might be clearly required by international or domestic circumstances, thus further affecting the constitutional balance. There is no precise constitutional definition of the extent of executive power to act in emergency situations absent congressional authorization. Because the constitutional validity of any executive emergency action is so closely tied to the nature of the emergency and the circumstances surrounding it, it is virtually impossible to articulate a general constitutional test which would serve as specific guidance for or have binding effect upon a President who identifies the need to take action when an emergency faces the country. Neither of the two most important Supreme Court cases dealing with "inherent" or "implied" powers in the foreign affairs field have attempted to articulate a precise standard. Both emphasized the functional nature of the division of power between the executive and the legislative branches. In United States v. Curtiss Wright Export Corp.,1 a case dealing with a presidential proclamation prohibiting export of arms to certain Latin American countries, Justice Sutherland wrote: "***(W)e are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the Federal Government in the field of international relations. ***** The Court never attempted the impossible task of identifying the quantum of power exercised by each branch and, since Congress had made a clear delegation by a joint resolution, such a definition was unnecessary to the outcome of the case. When President Truman seized upon Justice Sutherland's reference to "inherent" power to justify his seizure of the steel mills during the Korean War, the Supreme Court struck down the seizure in Youngstown Sheet and Tube Co. v. Sawyer, often referred to as the Steel Seizure Case. The justices wrote seven separate opinions in that case and none of them successfully defined the relative scope of executive and congressional power to deal with emergency situations. Only Justice Black took the absolutist position that there were no "inherent' or "implied" powers in the executive branch to deal with emergencies. Justice Jackson's famous concurring opinion has come to be recognized as expressing the true majority view in the case. He emphasized that the relative powers of Congress and the President were to be determined functionally and were not therefore subject to precise judicial definition. He wrote: "(1) When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum. *** "(2) When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers. *** In this area, any actual test of authority is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.*** "(3) When the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb." " Jackson went on to find that, since Congress had expressly refused to grant to the President seizure authority when it was considering various labor statutes this seizure fill into the third category and was therefore unconstitutional. 1299 U.S. 304 (1936). 2 343 U.S. 579 (1952). 3 343 U.S. at 635-36. It is clear that Jackson's three categories describe a process of constitutional law creation, not verbalized constitutional authorizations or prohibitions. That this should be so is particularly appropriate when one is dealing with the constitutional doctrine of separation of legislative and executive power. Seldom do these questions come before the courts and even more seldom, when they do come, are they accepted for adjudication. Thus, it is the political branches themselves who are at once advocates of constitutional legal positions and judges of the propriety of claimed constitutional authorization. It is by this continued process of demand and response that these constitutional legal norms are developed and given content and by the wisdom of their decisions that appropriate coordination as well as separation of constitutional powers is to be achieved. Thus, in a very real sense, the Congress has been, and this subcommittee currently is engaged in a law-making process which has not only statutory but constitutional legal implications. Therefore, one of the principal issues before this committee is raised by the constitutioanl implications of the history of executive-legislative interaction under Sec. 5(b) of the TWEA over the last 40 years. This history of executive-congressional interaction has resulted in a general delegation of legislative power to the executive branch not only in those areas specifically mentioned in the TWEA but in any other areas that can conceivably be brought within its terms. This result has been brought about by the joint activity of Congress and the executive-the interaction of consistently broad executive interpretations of the power delegated followed by express congressional acquiescence in those interpretations. Sec. 5(b) as originally passed in 1917 contained no provisions concerning special executive powers for "national emergencies." It was specially designed as war-time legislation for World War I, although it was envisioned, at least by some of its supporters, as providing stand-by authority for use in future wars. Although most other war powers were terminated by legislative act in 1921, the entire Trading With the Enemy Act, including Sec. 5(b) wa retained in force to permit continuing operation of the office of the Alien Property Custodian who still held a large amount of property. In 1933, President Roosevelt invoked the authority of Sec. 5(b) to permit the declaration of a bank holiday to prevent a bank panic and control the export of gold. He did this although Sec. 5(b) specifically exempted "transactions to be executed wholly within the United States" from the scope of the special powers which it conferred. Despite the fact that the authority provided to the President by this legislation was so weak as to be almost non-existent, Congress, when it was called into session, approved the President's action and his "interpretation" of Sec. 5(b) retroactively when it passed the Emergency Banking Act or the Bank Conservation Act. In that same act Congress amended Sec. 5(b) to delete the exclusion of domestic transactions from the grant of authority and to insert the provision permitting the exercise of special powers during declared national emergencies which remains in the current statute. President Roosevelt used this authority during the following year to issue a series of executive orders concerning the hoarding of gold and regulating its export. Each of these orders except the first specifically referred to the existence of a state of national emergency. All of these orders were ratified by Congress in the Emergency Banking Act of 1934 which incorporated Sec. 5(b) TWEA in toto. The Court of Customs and Patent Appeals in an opinion rendered in 1975 wrote that these activities in the early days of the Roosevelt administration clearly expanded the purview of the TWEA from that which encompassed only trading with an enemy in time of war to that which also encompassed dealing with "any" national emergency, including those involving no enemy and no war-related trading." 8 In September 1939, the President issued another proclamation of national emergency, this time in connection with the beginning of World War II in Europe and United States neutrality. In April, 1940, the President ordered the freezing of all assets in the United States belonging to residents of Denmark and Norway which countries had been invaded by the Germans and on May 7, 1940, Congress, 455 Cong. Rec. 4907-08, July 10, 1917. See Ellingwood, The Legality of the National Bank Moratorium, 27 NW L. Rev. 923, 925-26 (1933). 6 48 Stat. 1. 7 Exec. Orders 6073, March 10, 1933; 6102, April 5, 1933; 6111, April 20, 1933; 6260, August 28, 1933; 6560, January 4, 1934. 8 48 Stat. 343 (1934, 12 U.S.C. 213 (1970). • United States v. Yoshida International Corp., 526 F. 2d 560, 575 (1975). 89-711-77-3 by joint resolution, approved the President's actions retroactively to remove any doubt of their validity. World War II went on, The President issued additional freeze orders concerning property of residents of other countries. In 1942 he delegated to the Secretary of the Treasury the authority to issue regulations con-. cerning frozen assets. This authority is today the basis for blocking trade and. financial transactions with North Korea, Cuba and North Vietnam. On May 27, 1941, President Roosevelt issued another declaration of national emergency and, based on this declaration, he ordered the Federal Reserve Board to impose consumer installment credit controls.10 In doing so, the President broadened substantially the definition of "banking institutions" in Sec. 5(b) to include any person who extended credit. In December, 1941, Congress in the First War Powers Act" approved all prior actions taken under Sec. 5(b), thus approving the President's new definition of "banking institutions". In 1947 the Congress, by joint resolution, removed the Federal Reserve Board's consumer credit power, in 1948 it restored it, in 1950, after that renewal had expired, it restored the authority again under the Defense Production Ace 12 and then, by repealing that section in 1952, appeared to remove the FRB's authority over consumer credit. once more. In each instance, the Congress continued, however, the authority of the Federal Reserve Board to regulate consumer credit in time of national emergency or war. The National Emergencies Act of 1976 finally formally repealed the 1947 joint resolution.13 In 1950, President Truman declared yet another national emergency based on. Sec. 5(b), this time in connection with the Korean War. In 1968, President Johnson invoked President Truman's 1950 declaration as the basis for instituting the Foreign Direct Investment Program. Then Attorney General Ramsey Clark in an opinion supporting the President's program cited historic precedent under Sec. 5(b) for thirty-five years and acts of Congress and judicial decisions sustaining the President's authority to use the act in this manner. In doing so he drew an analogy between Roosevelt's actions to control the outflow of gold and President Johnson's attempts to restrict the foreign holdings of dollars." In 1971 President Nixon declared a national emergency and citing "the Tariff Act, the TEA (Trade Expansion Act) and other provisions of law ***** imposed additional duties on imports to protect the United States balance of payments position. When a suit challenging this authority was brought, the President argued that "other provisions of law" included Sec. 5(b) of the TWEA and it was on this provision that the court relied in upholding the validity of the import surcharge.15 in 1972 16 and again in 1974" President Nixon used Sec. 5(b) to continue the operation of the Export Administration Act of 1969 after that statutory authority had expired upon a date fixed by the Congress. This brief history of Sec. 5(b) demonstrates that, regardless of the original intention with which the TWEA was passed, Sec. 5(b)'s effect is no longer confided to "emergency situations" in the sense of existing imminent danger. The continuing retroactive approval, either explicit or implicit, by Congress of broad executive interpretations of the scope of powers which it confers has converted the section into a general grant of legislative authority to the President permitting the executive branch by order, rule and regulation to make law concerning almost any subject matter which can conceivably be brought within the terms of Sec. 5(b). Sec. 5(b) permits the President to define any of the terms of the section. Only an outstanding declaration of the existence of a "national emergency" as defined by the President to bring those powers into being. The most recent invocation of Sec. 5(b) by President Ford illustrates the legislative nature of the power conferred. The Export Administration Act expired once again on September 30, 1976. On October 1, President Ford continued that authority under Sec. 5(b). Despite some rather general dicta in the Yoshida 18 case indicating that there may be certain broad limits on the President's 5(b) powers, I believe that the current state of the law was accurately stated by Mr. Antonin Scalia, Assistant Attorney General in his letter to the Department |