Archive for March, 2011

Presidential Bank Holidays in a Time of War

Posted in Econ, Law on 20110317 by Avenging Sword

I.  Introduction

Recently, a rather odd concern came to my attention:  apparently, some people are worried that Obama might someday declare a bank holiday.  Admittedly, there’s a smidge of truth to this concern, but it’s almost two years too late:  In the depths of the credit crisis, some pundits did suggest temporarily closing the nation’s banks, evaluating them for solvency, and reopening only those proven to be solvent.[1] However, this never ended up happening; nor do I think it likely to happen anytime soon.  Still, since I like to think about weird things, I got to pondering whether the President still has the power to declare a bank holiday nowadays.  FDR did so in 1933, but using a statute that has since been amended.  Does such authority still exist?  The tentative answer of this non-lawyer is “Yes.”  Sort of.

II.  The Trading With the Enemy Act

FDR proclaimed his bank holiday under the authority of § 5(b) of the Trading with the Enemy Act.[2] As amended, this provision currently reads, in relevant part:

(1) During the time of war, the President may, through any agency that he may designate, and under such rules and regulations as he may prescribe, by means of instructions, licenses, or otherwise-

(A) investigate, regulate, or prohibit, any transactions in foreign exchange, transfers of credit or payments between, by, through, or to any banking institution, and the importing, exporting, hoarding, melting, or earmarking of gold or silver coin or bullion, currency or securities . . .

. . .

by any person, or with respect to any property, subject to the jurisdiction of the United States . . . .[3]

In general, this text seems significantly broader than the 1933 version.  Currently, the Act not only encompasses “transfers of credit between or payments by” a banking institution, but also “transfers of credit or payments between, by, through, or to” such an institution.[4] Paragraph (3) allows the President to define not only “banking institution” (as was the case in 1933), but also “any and all terms” of the statute.[5] If the 1933 version of § 5(b) was broad enough to authorize FDR’s bank holiday,[6] it would appear that the Act’s current, broader incarnation allows Obama to do the same.

Or does it?  Notwithstanding the above, the current § 5(b) is narrower than its 1933 counterpart in one respect.  The 1933 version not only applied “[d]uring time of war,” but also “during any other period of national emergency declared by the President . . . .”[7] However, since this “national emergency” language was removed in 1977, the Act has been limited to wartime.[8] We must therefore consider whether the United States is currently in a state of war.

III.  War Without End

Regardless of the continuing debate over whether a “war paradigm” or a “law enforcement paradigm” is preferable for prosecuting the fight against Al Qaeda, it appears that, since 9/11, the answer to the above question has been, “Yes” – at least in the eyes of the courts.  For example:

  • In Hamdi v. Rumsfeld, the Supreme Court effectively treated the post-9/11 Authorization for the Use of Military Force (hereinafter “9/11 AUMF”)[9] as a declaration of war against Al Qaeda & the Taliban (among others), and therefore construed the words “necessary and appropriate force” in light of the laws of war regarding detention of combatants.[10] The Court also noted, with reference to the post-9/11 period, that “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”[11]
  • In Boumediene v. Bush, the Court reiterated this understanding, when it observed that the detainees whose cases it was considering had been “detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history.”[12]
  • In In re. Iraq & Afghanistan Detainees Litigation, various former Afghan & Iraqi detainees sued American military personnel for alleged abuse while held by US military forces in Iraq & Afghanistan.  In dismissing these suits, a federal district court referred to the defendants as “military officials commanding Armed Forces serving our country during a war….”[13]
  • In Qualls v. Rumsfeld, a federal district court rejected a soldier’s challenge to the Army’s “stop-loss” program.  Referring to the 9/11 AUMF & the Iraq War resolution,[14] the court concluded that “The United States Congress, by its authorization statutes, has initiated war in the same way it has initiated war since World War II.”[15]
  • In Kaufman v. Holder, a federal district court held that the term “state of war,” as used in a citizenship-renunciation statute, encompassed the dates of July 2004 & September 2008,[16] owing to the existence of wars in Iraq & Afghanistan,[17] and the passage of the 9/11 AUMF & Iraq War resolution.[18]
  • In United States v. Prosperi, a federal district court held that, for the purposes of the Wartime Suspension Limitations Act, the United States was “at war,” owing to the 9/11 AUMF, the Iraq War resolution, and the existence of the Iraq & Afghanistan wars.[19]
  • Also of interest is Judge Randolph’s concurrence in Al Odah v. United States, which concluded that an exception of the Administrative Procedure Act for “military authority exercised in the field in time of war or in occupied territory”[20] was applicable because, inter alia, “[t]he military actions ordered by the President, with the approval of Congress . . . are part of the war against the al Qaeda terrorist network; and those actions constitute ‘war,’ not necessarily as the Constitution uses the word, but as the APA uses it.”[21]

Qualls, Kaufman, & Prosperi are particularly noteworthy, since each was unconcerned with war powers questions (e.g., preventive detention, targeted killing).  Rather, each involved legal provisions which – like the Trading with the Enemy Act – just so happen to become operative during a “time of war” or “state of war.”  On the basis of these precedents, and the others mentioned above, it would appear that the United States is currently in a state of war.  It follows that the provisions of the Trading with the Enemy Act are currently operative; and that, therefore, the President has the authority to proclaim a bank holiday under existing law.

[1] See, e.g., William Greider, Time for a Bank Holiday, Nation, Dec. 8, 2008, at 3, available at; New Deal democrat, FDR’s solution to the Banking Crisis – a model for Obama, The Economic Populist (Nov. 22, 2008, 1:21 PM),

[2] Proclamation No. 2039, 48 Stat. 1689 (Mar. 6, 1933).

[3] 50 U.S.C. app. § 5(b) (2006).

[4] 50 U.S.C. app. § 5(b)(1)(A) (2006).

[5] Compare 50 U.S.C. app. § 5(b)(3) (2006), with 50 U.S.C. app. § 5(b) (1940).

[6] Both the executive & the judiciary took this view.  Although FDR followed the Emergency Banking Act of 1933 with a second bank holiday proclamation, this merely “extended” the holiday declared by the first, while also declaring that “all the terms and provisions of said Proclamation of March 6, 1933, and the regulations and orders issued thereunder are hereby continued in full force and effect”.  Compare Proclamation No. 2040, 48 Stat. 1691 (Mar. 9, 1933), with .  A subsequent decision by the Mississippi Supreme Court, while noting the questionable legality of FDR’s first proclamation, also took the validity of the second for granted.  See Anthony v. Bank of Wiggins, 184 So. 626, 628 (Miss. 1938) (“[A]lthough the banking institutions of the United States, out of a commendable spirit of co-operation in a time of economic crisis, generally obeyed the Presidential Proclamation of March 6, 1933, there was no authority in law for the issuance of such a proclamation until March 9, 1933.”).

[7] 50 U.S.C. app. § 5(b) (1940).

[8] Act of Dec. 28, 1977, Pub. L. No. 95-223, § 101, 91 Stat. 1625, 1625 (1977).

[9] Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001).

[10] 542 U.S. 507, 518 (2004).  (“We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the necessary and appropriate force Congress has authorized the President to use.”).  Implicit in this conclusion is the notion that the struggle with Al Qaeda & its allies is a “war”, and that as such, it is appropriate to look to the laws of war when determining the scope of the power granted by the AUMF.

[11] Id. at 536.

[12] 553 U.S. 723, 771 (2008).

[13] 479 F. Supp. 2d 85, 114 (D.C. 2007).

[14] Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1498.

[15] 357 F. Supp. 2d 274, 284 (D.C. 2005).

[16] 686 F. Supp. 2d 40, 43-45 (D.C. 2010).

[17] Id. at 44 n.2.

[18] Id. at 45 n.3.

[19] 573 F. Supp. 2d 436, 450-454 (Mass. 2008).  Admittedly, the judge in this decision also opined that the Afghan war ended on Dec. 22, 2001, when “the United States formally recognized and extended full diplomatic relations to the new government of Hamid Karzai”; and that the Iraq War ended with President Bush’s May 1, 2003 speech announcing the end of “major combat operations in Iraq”  Id. at 455.  This portion of the opinion, however, is obviously open to serious dispute on factual grounds, given the continued existence of counterinsurgency operations in both Iraq & Afghanistan well beyond the dates mentioned in the opinion.  Indeed, the opinion implicitly admits this, when it notes that “a strong case can be made, given the continuing expenditures and loss of life in Iraq and Afghanistan, that the United States remains at war.”  Id. at 454.  Moreover, the opinion’s designation of “Termination of Hostilities” for either of these wars is arguably non-binding dicta, since the same result could have been reached if the judge had simply (and probably correctly) deemed the wars in question “ongoing”.  See also Doe v. United States, No. [deleted], 2010 U.S. Claims LEXIS 886, at *1 (Ct. Cl. Nov. 22, 2010) (“A novel takings issue is presented—whether an Iraqi citizen can maintain a Fifth Amendment takings claim for the occupation of his home by the United States military during the Battle of Fallujah, a question that requires a determination as to whether the military necessity doctrine precludes invocation of the Fifth Amendment for a military occupation during wartime….”) (emphasis added).

[20] 5 U.S.C. § 551(1)(G) (2006).

[21] Al Odah v. United States, 321 F.3d 1134, 1149-1150 (D.C. Cir. 2003) (Randolph, J. concurring), rev’d on other grounds sub nom., Rasul v. Bush, 542 U.S. 466 (2004).