The Charlotte News

Friday, February 20, 1942


Site Ed. Note: "Really, Now!" tells of the sloth of the British in catching up to modern war technology, instancing their reluctance to produce and deploy dive bombers and their willingness finally only to experiment with parachutists for the first time. The piece reprises the admonition as well to the United States, that if the war was to be won against superior technology in both Japan and Germany, developed over the previous decade, then their advances must be met with Allied advances and then trumped.

The piece complements Raymond Clapper's editorial, also on the necessity of producing airplanes, that the new production czar, Donald Nelson, had managed to wrest from the Army and Navy the production decision for building the Air Corps, as opposed to continuing to stress primarily the production of tanks, anti-aircraft guns, and ships, and that he had obtained cooperation from the former auto industry to implement the production decision. (Did you ever wonder why the cars of the 1950's and early 1960's sometimes looked more like airplanes or boats than automobiles? Or as to the origin of tailfins and why they proved so popular for a few years? What the designers and diemakers learned in the manufacture of armament for war wound up applied to the cars of the future, appearing as experimental designs as early as the late 1940's.)

While Germany, with its experimental jet aircraft and even rocketry, by the end of the war would be well ahead of everyone else technologically, except in one key area, in the end, the Allies would win the war in Europe and in the Pacific with a strategy not very unlike that which won World War I, an active navy and a steady engagement of infantry in ground warfare, grinding out bloody mile after bloody mile until they reached Berlin. The concept had proved successful in the winter counter-offensive in Russia and would be used again by the Americans and British.

The editorial, plus the imminent fall of the Philippines and the Dutch East Indies at this time, brings again to mind the probing questions enunciated by John Kennedy in his Harvard senior honors thesis, expanded to a published work in the fall of 1940, Why England Slept, from the preface of which we quoted in association with the pieces of November 30, 1940. No one could say that the questions were not prescient in their portent. It is no wonder that Henry Luce wrote a special foreword, urging the reader to take the new young author's book as a serious look at America's preparedness for war in light of the British lesson of the previous year. While the body of the work is more statistical than philosophical or strategic in its make-up, the overall foreboding premise was not a bad judgment for a 23-year old, as well as being singularly audacious for a young man whose father, at the time of publication, had received blame from many in America for the debacle at Munich in September, 1938, however absurd that premise was in fact. As we have suggested before, to blame an ambassador for a treaty, any treaty, is akin to blaming Jews for the crucifixion. The President and Congress make treaties, not the diplomatic corps. The diplomats and the Secretary of State obviously negotiate, but the final calls come from the top.

If Roosevelt did not like the Munich Pact, he could have flown personally to the conference and taken over the negotiations himself or sent Cordell Hull. The problem was that England and France, being on the front lines in Europe, would be doing the bulk of the fighting, at least so everyone believed at the time, should war erupt over the German demands for the Sudeten territory in Czechoslovakia.

While plenty, including W. J. Cash, immediately denounced in print the accord as foolhardy and ignoring the plain record of Hitler in renouncing treaties, America at the time could do little but stand on the sidelines and cheer for whatever position Parliament and the Chamber of Deputies believed to be wise. And, indeed, Munich, for all its flaws, did at least afford Great Britain an additional year to build its armaments and enable it to avoid the label of warmonger when the invasion of Poland came.

Hitler, after all, as recently as his January, 1942 speech at the Sportspalast, was still echoing the line that Britain started the war by precipitately declaring it after the move by Germany merely to clear a corridor through which it could move freely to and from its rightful territory in East Prussia. That just so happened to involve Danzig, the key port city for Poland. Had Munich not given the opportunity to Hitler to abide by a treaty and obtain his word not to seek any other territory in Europe, there might have been idiots outside of Germany who would have believed this propaganda. As it was, Lindbergh and the Firsters and the rest did anyway, and, as finds "Rumor Factory", remarking on the American version of the Cliveden Set--the powerful clique, including close friends of Neville Chamberlain, including powerful publishers, which was primarily responsible for the policy of appeasement in England during the latter thirties and the policy of continued disarmament, blinking the while Nazi Germany's rearmament in violation of Versailles--apparently were doing yet again, as the patriotic veneer such groups adopted against Japan following Pearl Harbor was wearing thinner by the day, now two and a half months later.

The mention by Paul Mallon of Bethlehem Steel's rejected application to the War Priorities Board for permission to utilize its own steel to build a new office building in Bethlehem, Pa., takes us back a couple of days to the Bethlehem Steel case regarding whether the company earned excessive profits or economically coerced high profits contracts from the government in its shipbuilding for World War I in 1917-18.

Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579, decided in 1952 by a 6 to 3 majority, with Chief Justice Fred Vinson, Justices Sherman Minton and Stanley Reed dissenting, (both Vinson and Minton having been Truman appointees to the Court), held, as an unconstitutional usurpation of Congressional power by the Executive, President Truman's 1952 attempt to seize the steel mills to avert strikes he claimed threatened to interfere with the prosecution of the Korean War. The Court reasoned therein that seizure was not authorized by Congress under the Taft-Hartley Act of 1947, providing for collective bargaining in case of strike; moreover, during debates on the bill, Congress specifically rejected a provision allowing seizure of the mills to avert strikes. Thus, as emergency powers of the President are limited by those provided by Congress under the Constitution, or at least embrace no more power than those not expressly or impliedly denied to it by Congress, the expressed refusal of Congress, after active debate on the topic, to include seizure as a part of Taft-Hartley's enforcement powers afforded the President, had effectively denied the Executive branch this power.

Was the decision correct? Are the emergency powers deemed inherent in the powers conferred by Article I, Section 8--among other things, to raise and support armies and a navy, to provide for the common defense and general welfare, to provide for a militia, to declare war, and to make all laws "necessary and proper" to carry out these powers--properly only afforded to and by Congress?

Lincoln did not think so when he issued an executive order during the outset of the Civil War in 1861 to suspend habeas corpus, impose a naval blockade, and distribute unauthorized government money for the military at a time when Congress was out of session, though he subsequently defended his action before Congress when it resumed and received their ex post facto approval of the suspension of habeas corpus. Section 9 of the same Article I which expressly provides to Congress the powers enumerated in Section 8, provides ostensibly to Congress the exceptional power to suspend habeas corpus in time of "rebellion or invasion" and forbids its suspension otherwise. Thus, if the emergency powers conferred by Section 8 are to be deemed exclusive to Congress, why would there be any exception to those afforded by Section 9?

In the case of Lincoln, the Supreme Court in the Prize Cases in 1863 upheld 5 to 4 the imposition of the naval blockade as an appropriate exercise of Executive power and his ability to preserve the Constitution by use of armed force if necessary without prior authorization by Congress. In Ex Parte Merryman, in 1861, Chief Justice Roger B. Taney acted alone as circuit justice to void the arrest of Merryman, finding the exercise of authority to suspend habeas corpus to be exclusively that of Congress; the order, however, of the Chief Justice to release Merryman was not enforced.

Of course, Congress was not out of session when Truman issued his executive order and so Truman could not seek any precedent in the particular executive orders issued by Lincoln or the Prize Cases.

The Constitution itself is silent as to Executive emergency powers. The power is usually deemed implicit in the duty of the President faithfully to execute the laws and his constitutionally prescribed oath to preserve, protect and defend the Constitution, as set forth at the end of Article II, Section 1.

Thus, did Taft-Hartley, passed during a time when America was not at war, and its debate, properly work to limit the implied emergency powers of the President? Should, in other words, debate over an act in peacetime and an explicit refusal to include a power for peacetime application, work to limit the President in time of war? No one contended, of course, that the Korean War was not in fact a threat to national security or that the threatened steel strike did not imperil the effort of the United States to produce armament for that war or that the seizure by the President was not an act prophylactic of that end. (See Presidential papers, 1969-74, for other such attempted uses of prophylactic measures, both by the President and Congress.)

Was the case an effort by the Court to reel in the power of the Truman Administration, by 1952 in a lame duck status, and the power of the Executive branch generally? power which had become so expansive as to be thought dangerously expansive by some in the country during the course of the Roosevelt years and especially during World War II. Was it an effort to weaken the Executive? Did it?

It is characteristic of the tension between exercise of emergency power by the President in time of unusual emergency, both economic and war, and limits imposed or sought to be imposed by Congress, for the Court, after the emergency passes, to issue a decision relegating matters to the constitutional status quo: in both Ex Parte Milligan, in 1866, voiding the conviction of a civilian by a military tribunal, and in Duncan v. Kahanamoku, in 1946, striking down as unconstitutional Executive imposition of martial law in Hawaii after Pearl Harbor, the Court declared that the Constitution expresses powers adequately for use in time of emergency and none need be implied to the President.

Did the inhibition to exertion of power produced over time by the constant struggle between Roosevelt and the Supreme Court in the incarnation in which he originally found it in 1933 and through his first term until his first appointments to the Court in 1937-39, the ensuing debacle of his court-packing plan set forth in early 1937 to practically universal condemnation for its ostensibly audacious grab of judicial appointment power by one Chief Executive, ultimately cause, in combination with the sloth of Congress first to provide aid in the war effort at its outset and through early 1941, the lack of preparedness for war which befell the country at and in the wake of the attack on Pearl Harbor? Even Lend-Lease, in effect since March, 1941, and the President's declaration of a national emergency on May 27, 1941, could not brace the gap in defenses which had grown so wide in the previous decade with Japan and in the previous eight years with Germany.

Had the President emergency powers to act in time of national peril unto himself, would the situation have been different?

But, would that not pose a problem for democracy itself in extreme cases, as it nearly did in the War in Iraq over the past eight years?

What is the limit of the President's power to make war, to create the production necessary for the implements of making war? What should it be? If the Congress, as it does, has the exclusive power to raise and support the armed forces and to declare war, then may the President as Commander in Chief of the armed forces exert any authority not granted the office by Congress over production to arm and outfit the armed forces for deployment? In short, is the President's constitutional authority limited simply to command the armed forces standing naked and without weapons, except as specifically authorized by Congress to outfit and arm them? It is so, at least as the Supreme Court has thus far interpreted the competing powers set forth in Articles I and II.

And we have only one arbiter as to the separation of powers and delineation of rights and privileges, the Constitution. We have only one final arbiter of what the Constitution permits and denies in terms of powers conferred to each branch of government and those denied it, of the rights and privileges enjoyed by citizens of the country, of the rights and privileges enjoyed by aliens within the country, and that arbiter is, first, the lower courts, state and Federal, then the appellate courts, and finally the Supreme Court. And the Supreme Court says that the President as Commander in Chief has authority to act in times even of national emergency only as Congress prescribes.

In any event, we reference the Youngstown case as a follow-up to the dicta set forth in Bethlehem Steel decided in February, 1942 regarding the sweeping powers of Congress to act in an emergency. The Court's consistent interpretation of the Constitution in this regard in Youngstown, still viable, is that the Congress has broad-sweeping emergency powers in time of war and may authorize the President to have certain emergency powers. But the President per se has only those emergency powers which fall within the province of his expressed powers or those authorized by statute or which at least are not tacitly or expressly forbidden to the office by Congress.

Since 1973, the War Powers Act circumscribes when and to what extent the President may act in deploying the armed forces for war.

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