Emergency Powers of the Temporary, Quasi-Temporary, & Permanent Varieties

Rod Dreher asks the following question:

Under what circumstances does a government gain power and then voluntarily relinquish it?

…and receives several variations on this answer:

Historically this has never happened. While individuals have voluntarily relinquished power, governments never have.

Having nursed an on-and-off interest in emergency powers over the years, I figured I’d offer a few thoughts.

At least in American history, the answer to Dreher’s query is three-fold.  First, there are governmental power gains with a built-in self-destruct mechanism.  Second, there are those that stay on the books, only to be reversed at a later date.  Third, there are those that become permanent.

In the first category are many of the more extreme assertions of power over the years.  Examples include:

  • The Alien Friends Act[1] and the Sedition Act,[2] both of which had sunset clauses.
  • In the Union during the Civil War, both the draft and the suspension of habeas corpus were operative only “during the present rebellion,”[3] as was the First Confiscation Act.[4] Although the Second Confiscation Act,[5] which authorized seizure of many Confederates’ private property, was not so limited, constitutional concerns restricted the duration of such seizures to the lifetimes of the persons targeted by the Act.[6]
  • Conscription during the First[7] & Second[8] World Wars.
  • The WWII-era Emergency Price Control Act.[9]
  • Provisions relating to property acquisition,[10] price & wage controls,[11] & consumer credit controls,[12] in the Korean-War-era Defense Production Act of 1950.

Arguably, one could also include in this category permanent statutes like the Alien Enemies Act[13] and the Trading With the Enemy Act,[14] which confer vast power upon the executive, but are explicitly limited to times of declared war.

As for the second category, examples include:

  • The Emergency Detention Act, which was enacted[15] in 1950 and repealed[16] in 1971.
  • The statute associated with the Japanese internments, which was enacted[17] in 1942 & repealed[18] in 1976.
  • The Cold-War-era draft, enacted[19] 1948 & expired 1973[20]

Finally, there’s the stuff that sticks around indefinitely.  For example:

  • The International Emergency Economic Powers Act,[21] which authorizes the President to freeze or confiscate foreign assets, as well as regulate or prohibit exports, for reasons of national security.
  • Draft registration.[22]
  • The uncompensated emancipation of those slaves covered by the Emancipation Proclamation.[23]

[1] Act of Jun. 25, 1798, Ch. 58, 1 Stat. 570, § 6 (“[T]his act shall continue and be in force for and during the term of two years from the passing thereof.”).

[2] Act of Jul. 14, 1798, Ch. 74, 1 Stat. 596, § 4 (“[T]his act shall continue and be in force until the third day of March, one thousand eight hundred and one, and no longer….”).

[3] See Act of Mar. 3, 1863, Ch. 75, 12 Stat. 731, § 33 (“[T]he President of the United States is hereby authorized and empowered, during the present rebellion, to call forth the national forces, by draft, in the manner provided for in this act.”); also Act of Mar. 3, 1863, Ch. 81, 12 Stat. 755, § 1 (“during the present rebellion, the President of the United States, whenever, in his judgment, the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States, or any part thereof.”).

[4] Act of Aug. 6, 1861, Ch. 60, 12 Stat. 319, § 1 (authorizing seizure of property “used or employed, in aiding, abetting, or promoting…insurrection or resistance to the laws….”).

[5] Act of Jul. 17, 1862, Ch. 195, 12 Stat. 589 (authorizing confiscation of property belonging to persons participating in rebellion).

[6] See Daniel W. Hamilton, A New Right to Property: Civil War Confiscation in the Reconstruction Supreme Court, 29 J. Sup. Ct. Hist. 254, 269-271 (2004) (discussing concern of Lincoln & others that permanent confiscation might violate constitutional prohibitions on corruption of blood & bills of attainder).

[7] Act of May 18, 1917, Ch. 15, 40 Stat. 76 (Selective Draft Act of 1917, formerly codified as amended at 50 U.S.C. app. § 201 to 211).

[8] Act of Sept. 16, 1949, Ch. 720, 54 Stat. 885 (Selective Training and Service Act of 1940, formerly codified as amended at 50 U.S.C. app. § 301 to 309a).

[9] Act of Jan. 30, 1942, Ch. 26, 56 Stat. 23 (formerly codified as amended at 50 U.S.C. app. § 901 et seq.).

[10] Act of Sept. 8, 1950, Ch. 932, 64 Stat. 798, § 201 (formerly codified as amended at 50 U.S.C. app. § 2081).

[11] Act of Sept. 8, 1950, Ch. 932, 64 Stat. 798, § 401 (formerly codified as amended at 50 U.S.C. app. § 2101 to 2112).

[12] Act of Sept. 8, 1950, Ch. 932, 64 Stat. 798, § 601 (formerly codified as amended at 50 U.S.C. app. § 2131).

[13] Act of Jul. 6, 1798, Ch. 66, 1 Stat. 577 (codified as amended at 50 U.S.C. § 21 to 24).

[14] Act of Oct. 6, 1917, Ch. 106, 40 Stat. 411 (codified as amended at 50 U.S.C. app. § 1 et seq.).

[15] Act of Sept. 23, 1950, Ch. 1024, 64 Stat. 1019, § 101 et seq. (formerly codified at 50 U.S.C. § 811 to 826).

[16] Act of Sept. 25, 1971, 85 Stat. 347, § 2(a).

[17] Act of Mar. 21, 1942, Ch. 191, 56 Stat. 173 (formerly codified at 18 U.S.C. 1383).

[18] Act of Sept. 14, 1976, 90 Stat. 1255, § 501(e).

[19] Act of June 24, 1948, Ch. 625, 62 Stat. 604 (codified as amended at 50 U.S.C. app. § 451 to 471a).

[20] See 50 U.S.C. app. § 467(c) (providing that “no person shall be inducted for training and service in the Armed Forces after July 1, 1973”).

[21] 50 U.S.C. 1701 et seq.

[22] Proclamation No. 4771, 45 F.R. 45247 (Jul. 2, 1980).

[23] From the Union’s standpoint, states could not secede; states attempting to do so remained part of the United States, albeit in a state of rebellion. See Vasan Kesavan & Michael Stokes Paulsen, Is West Virginia Unconstitutional?, 90 CAL. L. REV. 291, 304-307 (2002) (discussing Lincoln’s view that secession was unconstitutional). That being the case, Union laws & actions dealing with persons & property located within the Confederacy had to take Constitutional strictures into account.  See DANIEL W. HAMILTON, THE LIMITS OF SOVEREIGNTY: LEGISLATIVE PROPERTY CONFISCATION IN THE UNION AND CONFEDERACY 70-71 (2003) (discussing Sen. Lyman Trumbull’s solicitude for constitutional strictures in debates regarding the Second Confiscation Act).  Moral considerations aside, one could therefore view the Emancipation Proclamation as an authorization to confiscate a significant quantity of private property.  Given its neglect of due process of law or just compensation, the Proclamation would appear to be incompatible with the Fifth Amendment, absent justification via some other constitutional provision.  See Paul Finkelman, Lincoln, Emancipation, and the Limits of Constitutional Change, 2008 SUP. CT. REV. 349, 355 (“An emancipation Proclamation might violate the due process aspects of this [Fifth] amendment, but even if it did not, it might violate the takings provision.”)  At the time, such justification came from arguments that constitutional protections were unavailable to rebels during a time of rebellion, coupled with appeals to executive war powers & military necessity.  See id. at 386 (noting the Emancipation Proclamation’s limitation to “those states and parts of states that were still in rebellion”); also Proclamation No. 17, 12 Stat. 1268 (Jan. 1, 1863) (wherein Lincoln cited for authority “the power in me vested as commander-in-chief of the army and navy of the United States”, and deeming his action “a fit and necessary war measure for suppressing said rebellion”); also JAMES G. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN 378 (1926) (noting Lincoln’s citation of military necessity as the sole basis for the proclamation).  This reliance upon emergency powers raised doubt, among both supporters & opponents, regarding the proclamation’s legal validity.  See id. at 382-383 (discussing Lincoln’s doubts regarding the proclamation’s permanence); also Sanford Levinson, Was the Emancipation Proclamation Constitutional?, 2001 U. ILL. L. REV. 1135, 1144-1145 (discussing Justice Benjamin Curtis’s argument that presidential war powers did not encompass the power to free slaves).  Of course, the Thirteenth Amendment rendered moot any doubts regarding the Emancipation Proclamation’s selective abolition of slavery; while uncompensated nature of wartime emancipation was legitimized by Section 4 of the Fourteenth Amendment.  See U.S. Const. amend XIII, § 1 (“Neither slavery nor involuntary servitude…shall exist within the United States, or any place subject to their jurisdiction.”); also U.S. Const. amend XIV, § 4 (“neither the United States nor any State shall assume or pay…any claim for the loss or emancipation of any slave; but all such…claims shall be held illegal and void.”).


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