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PSF Powers of the President - Subject File Box 175
PSF: Powers of the President Raw Fite
1941
Special Folder
Grace:
To out in your "Powers of the
President" file.
F.D.R
RSF
Powers or The
THE WHITE HOUSE Pres.
WASHINGTON
Box175
October 31, 1941
MEMORANDUM FOR THE ATTORNEY GENERAL:
The enclosed from the Judge
Advocate General of the Navy Department
refers to certain statutes which are not
dependent on a state of national emergency
but would seem to depend on circumstances
even more grave. Actually, the situation
seems to authorize certain types of action
in time of "threatened war".
You might check these with previous
briefs and let me know if you believe that
additional powers are conferred through
the actual threat of war.
F.D.R.
Confidential memorandum from Rear Admiral W. B.
Woodson, Judge Advocate General of the Navy, 10/24/41
for the President, enclosing "Memorandum of Statutes
Which Come Into Force in Time of War, When War is
Imminent, And So Forth", dated 10/24/41.
Powers of the Pres,
L:dc
DEPARTMENT OF THE NAVY
OFFICE OF THE JUDGE ADVOCATE GENERAL
Washington
October 24, 1941
MEMORANDUM OF STATUTES WHICH COME INTO FORCE IN
TIME OF WAR, WHEN WAR IS IMMINENT, AND so FORTH.
I
Statutes Applicable to the Army and Navy.
(a) Applicable in time of war:
Revised Statutes, sec. 1166 (U. S. Code 10: 194):
The Chief of Ordnance (or the senior officer of
that corps for any district) is to execute the
orders of any general or field officer commanding
any army, garrison, or detachment for the supply
of all ordnance and ordnance stores for garrison,
field, or siege service.
Revised Statutes, sec. 1209 (U. S. Code 10: 521):
The President may confer brevet commissions upon
Army officers for distinguished conduct in the
presence of the enemy.
Revised Statutes, sec. 1436 (U. S. Code 34: 225):
Navy staff officers who have served as chiefs of
bureaus are to be "exempt from sea duty, except in
time of war.
Revised Statutes secs. 1462-1464 (U. S. Code 34:
421, 424, 425): Retired Navy officers are not to
be 'employed on active duty except in time of war';
and in such time the President, with the consent
of the Senate, may detail certain officers to such
commands as he believes to be required for the
good of the service.
(Amended by act of August 22, 1912 (37 Stat. 329;
U. S. Code 34: 422), to permit employment on ac-
tive duty under certain circumstances.)
Rovisod Statutes, sec. 1624, article 4 paragraphs
6, 7, 12-20, article 5 (U. S. Codo 34: 1200): The
death penalty is prescribed for certain naval of-
fenses, such as desertion, spying, otc.
L:dc
Act of February 15, 1879 (20 Stat. 295, ch. 86,
sec. 2; U. S. Code 34: 21) : The Secretary of the
Navy is not to appoint acting assistant surgeons
for temporary service, " oxcept in case of war."
Act of March 3, 1883 (22 Stat. 457; U. S. Code
10: 525) Army officers are to bo assigned to duty
according to thoir brevet rank only "when actually
ongaged in hostilitios."
Act of April 26, 1898 (30 Stat. 365, SOC. 7;
U. S. Code 10: 694) : An Army officor, exercising
command in a higher grade with troops operating
against tho enemy, is ontitled to receive the pay
and allowances of such higher grado.
Act of August 29, 1916 (39 Stat. 586; U. S. Code
34: 1200, art. 38) : General courts martial may be
convened by the commandants of navy yards, etc.,
and by commanding officers of brigades, otc., of
Navy or Marine Corps on shore.
Same (p. 600; U. S. Code 14: 3): Whon the Coast
Guard operates as part of the Navy, its personnel
are subject to the laws governing the Navy.
Same (p. 601; U. S. Code 14: 95) The Secrotary
of the Navy may man any Coast Guard station or
maintain any house of refuge as a Coast Guard
station.
Act of May 22, 1917 (40 Stat. 89, SOC. 18; U. S.
Code 34: 213): Officors for the command of
floots are to be selected from the grades of roar
admiral or captain on the active list of the Navy.
Act of July 9, 1918 (40 Stat. 892 (XVIII); U. S.
Code 31: 80) : Time for transmission of Army dis-
bursing officers' accounts may be extended (from
60) to 90 days.
Act of June 4, 1920 (41 Stat. 785; U. S. Code 10:
513, 992) : Retired Army officers may be employed
on activo duty in the discretion of the Prosident,
with full pay and allowances; permanent commis-
sions are not vacated by the appointment of the
officer to highor temporary rank.
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Same (p. 787, art. 2 (d); U. S. Code 10: 1473)
Camp rotainors, etc., whether within or without the
torritorial jurisdiction of the United States, are
subject to the Articles of War.
Same (p. 794, art. 39; U. S. Codo 10: 1510): Per-
sons subject to military law are not liable to
prosocution for crimos committed 2 years before
arraignment, except for "desertion committod in
time of war," etc.
Samo (p. 796, 797, art. 48 (b), (d); U. S. Code
10: 1519): Commanding general of the Army, or of
the territorial department or division, may confirm
court-martial sentences of dismissal of an officer
below the grade of brigadior general, or of death
for persons convicted of murder, rape, mutiny, or
doscrtion, or as spies.
Same (p. 800, art. 58, 59; U. S. Code 10: 1530,
1531; p. 803-4, arts. 75-82; U. S. Code 10: 1547-
1554; p. 811, art. 119, U. S. Code 10: 1591):
Penalties proscribed by the Articlos of War for
various enumerated wartimo offenses, such as deser-
tion, aiding the onemy, etc.
Act of June 10, 1922 (42 Stat. 626; U. S. Code 37:
2): Certain Army officers below the grade of
brigadier-gencral are to receive higher pay than
that to which thoy would b3 entitled in timo of
ponco.
Act of June 8, 1926 (44 Stat. 705 C. 494; U. S.
Code 10: 423): All onlistments in the Rogular
Army or the Enlistod Roserve Corps, in force at
the outbreak of war, or entered into during its
continuation, are to continue in force until six
months after its tormination, unless sooner ter-
minatod by the President.
(Amended and superseded by Act of March 15, 1940
(54 Stat. 53 C. 61; Pub. No. 438, 76th Congress),
but without any change as to the war provision.)
-3-
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Act of July 2, 1926 (44 Stat. 780 C. 721 par. 2;
U. S. Code 10: 291a): Of the total number of offi-
cers authorized for the Air Corps during war, 10%
may be immediately commissioned as nonflying offi-
cers.
Act of March 4, 1933 (47 Stat. 1573) The appropri-
ation "Recreation fund, Army" is not ject to
withdrawal "oxcept in time of war when it is to be
available for exponditure by the Secretary of War"
for the amusement, otc., of the enlisted personnel
of the Military Establishmont.
(This fund was abolished by Act of June 26, 1934
(48 Stat. 1229 par. 8; U. S. Code 31: 725g), and
the balance covered into the surplus fund of the
Treasury, with a proviso that in the event of war
an amount equal to the amount so covered is author-
ized to be appropriated for the same purpose.'
Act of June 15, 1933 (48 Stat. 155 par. 4; U. S.
Code 32: 19) : Appointments in the National Guard
of the United States in force at the outbreak of
war are to continuo in force until six months after
its termination.
Act of July 22, 1935 (49 Stat. 488 par. 2; U. S.
Code Supp. 34: 4): Certain specified numbers of
Navy officers must not be exceeded, "except in
timo of war.
Act of June 23, 1938 (52 Stat. 944 C. 598 par. 3;
U. S. Code Supp. 34: 4): The number of rear ad-
mirals on the active list of the line of the Navy
is limited to seventy, "except in time of war. 11
Same (p. 952 (b); U. S. Code Supp. 34: 626a): The
number of general officors on the active list of
the Marine Corps is limited to fourtoon, "except
in time of war."
Act of June 25, 1938 (52 Stat. 1176, par. 5; U. S.
Code Supp. 34: 853c) Any member of the Naval Re-
serve may be released from active duty by the
Socretary of the Navy.
-4-
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Act of September 16, 1940 (54 Stat. 886 (a);
Public, No. 783, 76th Cong.): A provision that
the number of men inducted into service under the
Selective Training and Service Act is to be
limited to 900,000, is not to be in effect in
time of war.
(b) Applicable as indicated by underlined portions:
Act of May 27, 1908 (35 Stat. 400, sec. 3; U. S.
Code 32: 81a): The Prosident may call out such
number of the militia of the Statos, Territories,
or the District of Columbia as may bo necessary
"whenever the United States is invaded or in
danger of invasion from any foreign nation, or of
rebellion against the authority of the Government
of the United States, or the President is unable
with the regular forces at his command to execute
the laws of the Union."
Act of June 4, 1920 (41 Stat. 776 (sec. 37a);
U. S. Code 10: 369): The restriction on employ-
ment of reserve officers on active duty for more
than 15 days is not applicable "in time of a
national emergency expressly declared by Congress.' IT
Same (p. 780, sec. 35 (sec. 55b) U. S. Code 10:
426): Certain restrictions on active duty service
of members of the Enlisted Reserve Corps are not
applicable "in time of a national emergency ex-
pressly declared by Congress."
Act of June 4, 1920 (41 Stat. 808, art. 104; U. S.
Code 10: 1576) : Certain commanding officers of the
Army "in time of war or gravo public emergency" may
impose, as additional punishment upon officers under
their command, forfeiture of not more than one-half
of 1 month's pay.
Samo (p. 811, art. 119; U. S. Code 10: 1591): The
President may assign the command of forces in the
field, "in time of war or public danger, " without
regard to seniority of rank in the same grade.
Act of June 15, 1933 (48 Stat. 156, SOC. 7; U. S.
Code 32: 124) : The President may extend enlistment
-5-
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torms of the National Guard for 6 months "in the
event of an emergency declared by Congress.
Same (p. 160, sec. 18; U. S. Code 32: 81), as
amonded by act of Juno 19, 1935 (49 Stat. 392, SCC.
7): "Whon Congress shall have declared a national
emergency and shall havo authorized the uso of armed
land forces of tho Unitod States for any purpose rc-
quiring the use of troops in excess of those of the
Regular Army, 11 the Presidont may ordor units of the
National Guard of the United States into active mili-
tary service "for the period of the war or omergency. 11
Act of May 29, 1934 (48 Stat. 816, ch. 370; U. S.
Code 10: 17) : The provision that Army officors or
onlisted mon are not to be required to serve more
than 2 yoars on tours of duty on foreign stations
is not to be applicable "in case of insurrection or
of actual or throatened hostilitics and * * for
temporary omorgoncies."
Act of Juno 10, 1935 (49 Stat. 391, ch. 277, SOC.
1; U. S. Code Supp. 32: 81c) The President may
order officors of the National Guard of the United
States to activo duty "in an emergency at any time";
but no such officer is to bc omployed on active
duty for moro than 15 days in a year without his
own consont, "oxcept in timo of a national omer-
gency expressly declared by Congress. 11
Act of May 14, 1940 (54 Stat. 213, ch. 194; Pub.
No. 513, 76th Cong.) "In time of war or other
emergency doclared by Congross, IT onlistments in
the Army are to bo without spocification of any
particular component, for the duration of such war
or emergoncy plus 6 months. Persons enlisted at
any time in the Army are to be available for as-
signmont to any unit and for transfer from one
unit to another, "in time of war or other emergency
doclared by Congross. 11
Act of May 14, 1940 (54 Stat. 214, ch. 195; Pub.
No. 514) : The President may, within the limit of
the total authorized strength of the Regular Army,
authorize additional enlistments in the Modical
Department, "in ovont of actual or throatenod
-6-
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hostilities involving the United States, to such
number as he doems nocessary.
Act of June 3, 1916 (39 Stat. 204, SOC. 86; U. S.
Code 32: 39) : Matorial of war, purchased by States
from Army stores, may be roquisitioned by tho United
States for use in the military service in time of
actual or threatenod war."
Act of July 9, 1918 (40 Stat. 893; U. S. Code 10:
1287) : The proceeds from oporation of public utili-
tics in connection with enginoor operations in the
field overseas are to be available for such utilities
"in case of actual or threatened war.
Act of June 20, 1936 (19 Stat. 1557, ch. 636)
The Unitod States may, "in the evont of war or of
any national emergency doclared by Congress to
exist, IT tako over Port Nowark Army Base property,
sold to the city of Newark, N. J.
Act of August 29, 1916 (39 Stat. 558; U. S. Code
24: 192) : Interned persons and prisoners of war,
under the jurisdiction of the Navy Department, are
entitled to admission to Saint Elizabeths Hospital
for treatment.
Same (p. 602; U. S. Code 33: 757) : The Secre-
tarios of the Navy, War, and Commerce are jointly
to proscribe regulations governing the Jutios of
the Lighthouse Service "in time of war, 11 otc.
(This provision is probably made obsolote by Ro-
organization Plan No. II which provides for the
administration of the Búreau of Lighthousos as a
part of the Const Guard.)
Act of October 6, 1917 (40 Stat. 373, U. S. C. 24:
192) : Prisoners of war, under the jurisdiction of
tho War Departmont, are entitled to admission to
St. Elizabeths Hospital for treatment.
Act of October 9, 1940 (54 Stat. 1061, ch. 788,
SOC. 1; Public, No. 820) : Whon a claim against
the United Statos accrues in time of war to a per-
son in the military or naval service, or when war
intorvenos within 5 years after accrual of such
clain, it may bc prosented within 5 years aftor the
-7-
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close of the war, even though this would excood
the ordinary limit of 10 years.
Soldiers' and Sailors' Civil Relief Act of
October 17, 1940 (54 Stat. 1189, soc. 510, 1190,
sec. 512, 1191, sec. 604; Public, No. 861): A
homestead entryman is entitled to a leave of ab-
sence from his entry for the performance of farm
labor during the pendency of any war in which the
United States may be engaged.
The United States citizens who sorve with the
forces of any nation with which the United States
is allied in the prosecution of a war, while the
act is in force, aro entitled to cortain benefits
relating to taxes and public lands.
If, on the late set for the termination of the
act (May 15, 1945), the United States is engaged in
a war, the act is to remain in force until such war
"is terminated by a treaty of peace proclaimed by
the President and for 6 months thereafter."
Section 2, act of June 3, 1916, 39 Stat. 166, as
amended (U.S.C., title 10, sec. 602), authorizing
(by inference) increase in the number of enlisted
men of the Regular Army beyond the peacetime
limits of 280,000 "in time of war or similar emer-
goncy when the public safety demands it. 11
Act of February 4, 1887, 24 Stat. 380, as amended
(U.S.C., titlo 10, sec. 1362), providing for profer-
ence to shipments of troops and material of war upon
denand of the President "in timo of war or
throatened war. "
Act of July 5, 1884, 23 Stat. 110, as amended
(U.S.C., titlo 10, SOC. 1364), waiving the roquire-
ment of advertising in connection with purchases of
transportation equipment by the Army "in cases of
extremo emergency. If
Act of August 29, 1916, 39 Stat. 614 (U.S.C.,
title 34, SOC. 831), providing 6-weoks-por-ycar
limitation upon Marine Corps Training Camps for
the instruction of civilians "except in time of
actual or throatened war. 11
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Act of February 16, 1914, 38 Stat. 289 (U.S.C.,
titlo 34, sec. 851), authorizing the Prosident to
commission in the Regular Navy civilians selected
and cortified as provided by law "upon the outbreak
of war, or when, in his opinion, war is inminent."
Section 13, act of August 24, 1912, 37 Stat. 569
(U.S.C., title 48, sec. 1306), authorizing the
President to designate an officer of the Army to
assume exclusive authority and jurisdiction over
the operation of the Panama Canal in time of war
or when, in his opinion, war is imminent.
Act of July 2, 1917, 40 Stat. 241, as amended
(U.S.C., title 50, sec. 171), providing for the
acquisition of land for military purposes "in
time of war or the imminence thereof."
Act of July 9, 1918, 40 Stat. 861 (U.S.C.,
title 40, sec. 37), authorizing the Secretary
of War to rent or lease any building or part
thereof in the District of Columbia that may be
required for military purposes "in time of war, or
when war is imminent."
II
Miscellaneous Statutes.
Act of June 19, 1912 (37 Stat. 138, sec. 2;
U. S. Code 40: 325): The President is author-
ized to waive stipulations of the 8-hour law in
public contracts "during time of war or a time when
war is imminent."
Penalties are not to be imposed for violations
which were "due to any extraordinary e vents or
conditions of manufacture or to any emergency
caused by fire, famine, or flood, by danger to life
or to property, or by other extraordinary event or
condition on account of which the President shall
subsequently declare the violations to have been
excusable.'
Act of May 18, 1933 (48 Stat. 68, sec. 20; U. S.
Code 16: 831s): The United States reserves the
right, "in case of war or national emergency de-
clared by Congress, to take possession of property
-9-
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described in the Tennessee Valley Authority Act,
for the purpose of manufacturing explosives or for
other war purposes.
Act of August 26, 1935 (49 Stat. 849 (c); U. S.
Code Supp. 16: 824a): The Fodoral Power Commission
may require certain temporary connections of fabili-
ties, etc., to provent shortago of electric energy
"during the continuance of any war in which the
United States is engaged, or whenever the Commis-
sion determines that an emergency oxists."
Acts of October 6, 1917 (40 Stat. 394, C. 95; 40
Stat. 422 par. 10 (i); U. S. C. 35: 42), as amended
by the act of July 1, 1940 (54 Stat. 710, C. 501;
Public, No. 700, 76th Cong.) If it is found that
the publication of an invention by the granting of
a patont might be detrimental to the safety or de-
fense of the United States, such grant may be with-
held until the tormination of the war.
Trading with the Enemy Act of October 6, 1917
(40 Stat. 411-426): Penalties are imposed for un-
liconsed (1) trading in the United States with an
onemy or ally of an enemy; (2) transportation of an
onemy to or from the United Statos; also, for send-
ing out of, or receiving into, the Unitod Statos
any communication except in the regular course of
the mail. Corporations are required to transmit to
the Alien Property Custodian lists of tockholders
bolioved to be onomies; the Prosident may require
property of onomies, otc., to be convoyed to the
Alien Property Custodian (amonded and broadoned by
act of November 4, 1913; 40 Stat. 1020); persons
holding property, etc., for enomios are required to
make report to the Alien Proporty Custodian; regu-
lations are proscribed concorning applications for
patents, otc., by onemies.
Act of April 16, 1918 (40 Stat. 531, c. 55;
U. S. C. 50: 21): Persons 14 years of age or
over, citizens, etc., of a hostile nation, are
liable to removal as alion onomies; and the Prosi-
dent is authorized to ostablish regulations con-
corning the conduct to be observed toward such
aliens.
-10-
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Act of March 2, 1929 (45 Stat. 1495 (c); U. S. C.
46: 85g): Concealing, removing, etc., marks placed
on American vessels is not penalized if dono to
prevent capture by an enomy.
Act of June 19, 1934 (48 Stat. 1104, par. 606,
U. S. C. 47: 606): The Presidont may direct that
"during the continuance of any war in which the
United States is ongagod" such communications as
ho doems essential to the national defense and
socurity be given preference by any carrier subject
to the Communications Act.
Act of Juno 16, 1938 (52 Stat. 708, c. 458 par. 3;
U. S. C. Supp. 50: 93): A statutory limit on the
educational orders (for the manufacture of special
munitions, etc.) which may be awarded to any one
factory is not applicable "during any war in which
the United States is engagod."
Nationality Act of October 14, 1940 (54 Stat.
1150, sec. 326, 1169, sec. 401 (g); Public, No.
853) An alien enemy may be naturalized if his
declaration of intention was made 2 years prior to
the beginning of the war, or if he was at the be-
ginning of the war entitled to bocome a citizen
without making a declaration of intention, etc.
A person who is a national of the United States,
whether by birth or naturalization, loses that
nationality upon conviction of doserting the mili-
tary or naval service of the United States in timo
of war.
Act of April 24, 1912, 37 Stat. 90 (U. S. C.,
titlo 36, SCC. 10), authorizing the President to
utilizo the services of the Amorican Red Cross
"in time of war, or when war is imminent."
Section 402, act of February 28, 1920, 41 Stat.
476-477 (U. S. C., titlo 49, SOC. 1 (15)), author-
izing the Interstate Commerce Commission to direct
preferonces and prioritics upon cortification by
the Prosident that such preferences and prioritics
aro ossontial to the national defonse and socurity
"in timo of war or threatoned war."
-11-
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Act of June 3, 1916, 39 Stat. 213 (U. S. C.,
titlo 50, SOC. 80), providing for the procurement
of war materials "in timo of war or when war is im-
minent, It and authorizing the President to appoint a
Board on Mobilization of Industrios Essential to
Military Preparednoss.
Act of July 9, 1918, 40 Stat. 888, as amended
(U. S. C., title 50, SOC. 172), providing for the
acquisition of property for production of lumber
"in time of war or the imminence thereof."
Act of July 1, 1902, 32 Stat. 713, as amonded
(U. S. C., title 42, SOC. 8), authorizing the
Prosident to utilize the Public Health Service
"in times of threatenod or actual war."
Soction 606, act of Juno 19, 1934, 48 Stat. 1104
(U. S. C., title 47, SOC. 606), authorizing the
Prosidont to suspond or amond rules and rogulations
applicable to transmission of communications by
radio or wiro, otc., "upon proclamation by the
Prosident that there exists war or a throat of war
or a stato of public poril or disastor or other
national emergency, or in order to preservo the
noutrality of the United Statos;' also to requiro
priority for communications ossential to the
national defonse "during the continuance of war in
which the Unitod Statos is ongagod."
-12-
PSF: Powers of the President
IRIMENT OF JUSTIC
Office of the Attorney General
7.
Washington.A.C.
JUSTITA
*
November 6, 1941
Nov
RECEIVED AM "ill
8 WHITE THE 25 HOUSE
The President,
The White House.
My dear Mr. President:
I have your memorandum of October 31 submitting a memo-
randum from the Judge Advocate General of the Navy listing cer-
tain statutes which, as you state, "are not dependent on a state
of national emergency but would seem to depend on circumstances
even more grave." Some of these statutes are by their terms to
be effective only "in time of war."
Some others, as you indicate, are applicable in time of
"threatened war," which requires the conclusion that such statutes
are now effective.
Attorney General Murphy, responding to a request from
the President of the Senate under date of October 4, 1939, sub-
mitted a list of statutes which by their terms grant powers that
may be exercised by the Executive "in an emergency or state of
war." I am sending you herewith a copy of that list with the
accompanying letter. The list contains some statutes not included
- 2 -
in that prepared by the Judge Advocate General of the Navy and, on the
other hand, the Judge Advocate General's list contains some not includ-
ed in the other--particularly later statutes, some of which have un-
doubtedly superseded the authority contained in some statutes in the
earlier list.
I do not feel that it is safe to deal with statutes of this
character as a group and to undertake categorically to pronounce them
presently effective or ineffective without relation to some particular
end desired to be accomplished. As pointed out by Attorney General
Murphy in the letter above mentioned:
**** It is not claimed that this list is
complete--indeed, accuracy in this respect can be
assured only by careful and painstaking search of
the entire body of the Federal statutory law--
statutes of this class having been enacted from
time to time since the beginning of the Government.
*** * The Executive has powers not enumer-
ated in the statutes--powers derived not from statu-
tory grants but from the Constitution. It is uni-
versally recognized that the constitutional duties
of the Executive carry with them the constitutional
powers necessary for their proper performance. These
constitutional powers have never been specifically
defined, and in fact cannot be, since their extent
and limitations are largely dependent upon condi-
tions and circumstances. In a measure this is true
with respect to most of the powers of the Executive,
both constitutional and statutory. The right to take
specific action might not exist under one state of
facts, while under another it might be the absolute
duty of the Executive to take such action."
The documents submitted by you are returned herewith.
Respectfully,
AmariBider
Incl. 222142
Attorney General.
76TH CONGRESS
2d Session
}
SENATE
{
DOCUMENT
No. 133
EXECUTIVE POWERS
UNDER NATIONAL EMERGENCY
LETTER
FROM
THE ATTORNEY GENERAL
TRANSMITTING
WITH REFERENCE TO SENATE RESOLUTION NO. 185,
INFORMATION AS TO EXTRAORDINARY POWERS
AVAILABLE TO THE PRESIDENT DURING
A NATIONAL EMERGENCY OR
STATE OF WAR
OCTOBER 5 (legislative day, OCTOBER 4), 1939.-Referred to the
Committee on the Judiciary and ordered to be printed
UNITED STATES
GOVERNMENT PRINTING OFFICE
WASHINGTON: 1939
EXECUTIVE POWERS UNDER NATIONAL EMERGENCY
OFFICE OF THE ATTORNEY GENERAL,
Washington, D. C., October 4, 1939.
The honorable the PRESIDENT OF THE SENATE,
Washington, D. C.
MY DEAR SIR: Reference is made to Senate Resolution 185, agreed
to September 28, 1939, which reads:
Resolved, That the Attorney General is requested to report to the Senate at the
earliest practicable date what executive powers are made available to the Presi-
dent under his proclamation of national emergency, and what other extraordi-
nary powers, if any, are made available to the executive under existing statutes
in emergency or state of war.
To comply with this resolution would require me to give an opinion
to the Senate on legal phases of the subject matter of the resolution.
The historic position of the Attorneys General with respect to the
rendering of opinions on legal questions to the Congress and to its
committees and members was ably stated by Attorney General
Mitchell in response to a resolution of the Senate, agreed to March
8, 1932, which recited certain asserted transactions of railroad com-
panies engaged in interstate commerce and proceeded as follows:
Resolved, That the Attorney General of the United States be requested to inform
the Senate as soon as practicable (1) whether such transactions constitute con-
tracts, combinations, or conspiracies in restraint of trade or commerce among
the several States or attempts to monopolize or restrain such commerce, in viola-
tion of the act of Congress of July 2, 1890, as amended, commonly called the
antitrust act; (2) in what respect, if any, such transactions differ from the oper-
ations condemned by the Supreme Court of the United States in the so-called
Northern Securities case (193 U. 8. 197); and (3) what steps, if any, have been
taken or are contemplated by the Department of Justice for the enforcement
in these instances of the antitrust laws.
In a letter to the President of the Senate, dated April 25, 1932,
declining to comply with the resolution, Mr. Mitchell said:
The first two subdivisions of this resolution request me to give an opinion to
the Senate on legal phases of the subject matter of the resolution. I feel obliged
to refrain from responding to this request.
The powers of the Attorney General in the matter of giving opinions on ques-
tions of law are defined in sections 354 and 356 of the Revised Statutes (title 5,
secs. 303 and 304, U. 8. C.). These statutes are:
"The Attorney General shall give his advice and opinion upon questions of
law, whenever required by the President," and
"The head of any executive department may require the opinion of the Attorney
General on any questions of law arising in the administration of his department."
These statutes, in substantially this form, have been in effect since 1789. They
do not authorize, empower, or require the Attorney General to give opinions to
committees of Congress or to either House. For more than 100 years there has
been an unbroken line of authority to that effect. As early as 1818 Attorney
General Wirt held that under these statutes Attorneys General are not authorized
to give officials opinions on questions of law except upon call of the President or
1
2
EXECUTIVE POWERS UNDER NATIONAL EMERGENCY
EXECUTIVE POWERS UNDER NATIONAL EMERGENCY
3
at the request of one of the heads of the executive departments to enable him to
but from the Constitution. It is universally recognized that the
decide a question pending in his own department for action.
In the following instances the Attorneys General have, for the reasons stated,
constitutional duties of the Executive carry with them the constitu-
declined to give official opinions on questions of law or on the constitutionality or
tional powers necessary for their proper performance. These con-
construction of legislation either pending or enacted, to committees of the House
stitutional powers have never been specifically defined, and in fact
or to committees of the Senate or in response to resolutions or requests from the
cannot be, since their extent and limitations are largely dependent
Senate itself or from the House of Representatives: 1 Op. 335; 5 Op. 561; TO Op.
164; 12 Op. 544; 14 Op. 17; 14 Op. 177; 17 Op. 357; 18 Op. 87; 18 Op. 107.
upon conditions and circumstances. In a measure this is true with
Under date of January 28, 1820, the House of Representatives entered an order
respect to most of the powers of the Executive, both constitutional
requesting the opinion of Attorney General Wirt respecting a matter in which
and statutory. The right to take specific action might not exist under
the House was interested. In declining to give the opinion the Attorney General
one state of facts, while under another it might be the absolute duty
among other things. said:
"The Attorney General is sworn to discharge the duties of his office according to
of the Executive to take such action.
law. To be instrumental in enlarging the sphere of his official duties beyond that
Respectfully,
which is prescribed by law would, in my opinion, be a violation of this oath."
FRANK MURPHY,
(1 Op. 336.)
That opinion has stood unquestioned for 112 years, and has been repeatedly
Attorney General.
followed in later rulings. Under date of December 17, 1884, Attorney General
Brewster felt obliged to decline compliance with & resolution passed by the House
of Representatives requesting his opinion on the application of a section of the
STATUTES WHICH BY THEIR TERMS GRANT POWERS THAT MAY BE
Revised Statutes (18 Op. 87). Having failed to obtain the opinion by direct
EXERCISED BY THE EXECUTIVE "IN EMERGENCY OR STATE OF
request, the House of Representatives passed another resolution requesting the
WAR"
Postmaster General to ask for the Attorney General's opinion, and the Post-
master General transmitted the request to the Attorney General, who again
refused to give the opinion on the ground that he had no authority to give it to
For convenience of persons desiring to examine them the statutes
the House of Representatives and the Postmaster General did not need it on any
are listed in the order in which they appear in the United States Code,
question pending in his Department.
which results generally in grouping according to subject matter.
Under date of February 14, 1929, my immediate predecessor declined the request
of the House Committee on Expenditures in the Executive Departments for an
Title 7, U. S. C., "Agriculture."
opinion, and on June 3, 1930, I felt obliged to decline an opinion requested by
the Judiciary Committee of the Senate.
Section 509, act of September 1, 1937, 50 Stat. 916 (U. S. C., title
Congress has accepted this long-standing interpretation of the law and has
7, sec. 1179), authorizing the President to suspend the operation of
never attempted by law to enlarge the powers or duties of the Attorney General
titles II and III of said act when he "finds and proclaims that a
80 as to require him to give opinions to either House of Congress or to committees
national economic or other emergency exists with respect to sugar or
thereof. Having in mind the constitutional separation of the functions of the
liquid sugar."
legislative, executive, and judicial branches of the Government, there has always
been a serious question whether the principle of that separation would be violated
Title 10, U. S. C., "Army."
by a statute attempting to make the Attorney General a legal adviser of the
legislative branch, and as a matter of governmental policy the wisdom of con-
Section 2, act of July 2, 1926, 44 Stat. 780, as amended (U. S. C.,
stituting as legal adviser of either House of Congress an official of the executive
title 10, sec. 291a), authorizing the immediate commissioning of addi-
department, who sits in the President's Cabinet and acts as his legal adviser, has
tional nonflying officers for the Air Corps "in time of war."
always been open to doubt.
When pending legislation affecting the Department of Justice has been referred
Act of July 2, 1926, 44 Stat. 781, as amended (U. S. C., title 10,
to Attorneys General for comment or suggestion, it has been their practice to
sec. 291e), providing qualifications for flying officers of the Air Corps
suggest such legal points as are pertinent and which ought to receive considera-
"in time of war."
tion by committees, but that practice has never properly involved any formal
Section 30, act of June 3, 1916, 39 Stat. 187, as amended (U.S.C.,
legal opinions from Attorneys General and has no resemblance to & request for an
title 10, sec. 343), authorizing members of the Regular Army Reserve
opinion as to the effect of an existing statute.
With the utmost deference for the request of the Senate, I am obliged to decline
to be ordered to active duty "in case of emergency declared by the
to give an opinion in this case,
President."
The above letter of Attorney General Mitchell will be found in
Section 32, act of June 4, 1920, 41 Stat. 776 (U. S. C., title 10, sec.
36 Op. A. G. at page 533, et seq. Other precedents on this subject are
369), authorizing the President to order Reserve officers of the Army
listed in the Congressional Record of March 26, 1936 (vol. 80, p. 4370).
to active duty for more than 15 days in a calendar year, without their
This time-honored position should not, in my opinion, be departed
consent, "in time of a national emergency expressly declared by Con-
from. However, desiring to be of all possible assistance to the Senate,
gress."
I have prepared and am transmitting herewith a list of statutes
Section 35, act of June 4, 1920, 41 Stat. 780 (U. S. C., title 10,
which, by their terms, grant to the executive branch of the Government
sec. 426), authorizing the President to place members of the enlisted
powers which may be exercised "in emergency or state of war." It is
Reserve Corps on active duty for a longer period than 15 days in a
not claimed that this list is complete-indeed, accuracy in this respect
calendar year, without their consent, "in time of a national emergency
can be assured only by careful and painstaking search of the entire
expressly declared by Congress."
body of the Federal statutory law-statutes of this class having been
Section 51, act of June 4, 1920, 41 Stat. 785 (U. S. C., title 10, sec.
enacted from time to time since the beginning of the Government.
513), authorizing any officer of the Regular Army to be appointed to
You are aware, of course, that the Executive has powers not
higher temporary grade without vacating his permanent commission
"in time of war.
enumerated in the statutes-powers derived not from statutory grants
4
EXECUTIVE POWERS UNDER NATIONAL EMERGENCY
EXECUTIVE POWERS UNDER NATIONAL EMERGENCY
5
Act of July 6, 1812 (R. S., sec. 1209), as amended (U. C., title 10,
Title 14, U. S. C., "Coast Guard."
sec. 521), authorizing the President by and with the advice and con-
Section 1, act of January 28, 1915, 38 Stat. 800 (U. S. C., title 14,
sent of the Senate to confer commissions by brevet upon commissioned
sec. 1), providing that the Coast Guard shall operate as a part of the
officers of the Army for distinguished conduct and public service in
Navy, subject to the orders of the Secretary of the Navy, "in time
the presence of the enemy "in time of war."
of war or when the President shall so direct.
Section 2, act of June 3, 1916, 39 Stat. 166, as amended (U. S. C.,
Act of August 29, 1916, 39 Stat. 601 (U. S. C., title 14, sec. 95),
title 10, sec. 602), authorizing (by inference) increase in the number
authorizing the Secretary of the Navy to man Coast Guard stations
of enlisted men of the Regular Army beyond the peacetime limits of
"in time of war."
280,000 "in time of war or similar emergency when the public safety
Act of July 1, 1918, 40 Stat. 717, as amended (U. S. C., title 14,
demands it."
secs. 164 and 165), providing that commissioned or warrant officers
Act of April 26, 1898, 30 Stat. 365 (U. S. C., title 10, sec. 694),
of the Coast Guard on the retired list may be called to active service
providing pay for officers exercising command in higher grade with
and that any retired officer so recalled may be temporarily advanced
troops operating against the enemy "in time of war."
in rank on the retired list not above lieutenant commander, as the
Section 51, act of June 4, 1920, 41 Stat. 785 (U. S. C., title 10,
President may determine, "during the existence of war or of a national
sec. 992), authorizing the President to employ retired officers of the
emergency declared by the President to exist."
Army on active duty "in time of war."
Act of May 23, 1926, 44 Stat. 532 (U. S. C., title 10, sec. 1032),
Title 15, U. S. C., "Commerce and Trade."
providing that retired nurses may be employed on active duty in the
Section 805, act of September 8, 1916, 39 Stat. 799 (U. S. C., title
discretion of the Secretary of War or the Secretary of the Navy "in
15, sec. 76), providing that whenever "during the existence of a war
time of war or national emergency."
in which the United States is not engaged" the President finds that
Act of July 5, 1884, 23 Stat. 109, as amended (U. S. C., title 10,
any country restricts the importation of products of the United States
sec. 1200), authorizing certain discretion in the purchase of supplies
contrary to the law and practice of nations, the President is authorized
for the Army "in cases of emergency."
to prohibit or restrict the importation into the United States of
Act of March 2, 1901, 31 Stat. 905 (U. S. C., title 10, sec. 1201),
articles from such country.
authorizing purchase of supplies for the Army without advertising
Section 806, act of September 8, 1916, 39 Stat. 799 (U. S. C., title
"in cases of emergency."
15, sec. 77), providing that "during the existence of a war in which
Act of August 29, 1916, 39 Stat. 645 (U. S. C., title 10, sec. 1361),
the United States is not engaged" the President may direct that
authorizing the President, through the Secretary of War, to take pos-
clearance be refused any vessel which, on account of the laws of a
session and assume control of any system or systems of transportation
belligerent country, grants a preference to any person or company;
or any part thereof "in time of war."
that when the President finds that a belligerent country discriminates
Act of February 4, 1887, 24 Stat. 380, as amended (U. S. C., title
against vessels or citizens of the United States, he may withhold
10, sec. 1362), providing for preference to shipments of troops and
clearance from one or more vessels of the belligerent country until
material of war upon demand of the President "in time of war or
the practice has ceased, or he may deny to such vessels and citizens
threatened war."
of the belligerent the rights usually accorded by the United States;
Act of July 5, 1884, 23 Stat. 110, as amended (U. C., title 10, sec.
and that the President is authorized to employ the land and naval
1364), waiving the requirement of advertising in connection with
forces of the United States to carry out the purposes of this section.
purchases of transportation equipment by the Army "in cases of
Section 19, act of June 6, 1934, 48 Stat. 898 (U. S. C., title 15, sec.
extreme emergency."
78s (a) (4)), authorizing the Securities and Exchange Commission
Act of June 4, 1920, 41 Stat. 811 (U. S. C., title 10, sec. 1590),
summarily to suspend trading in any registered security on any
providing for dismissals of officers of the Army in time of war.
national securities exchange for a period not exceeding 10 days or,
with the approval of the President, to suspend all trading on any
Title 12, U. S. C., "Banks and Banking."
national securities exchange for a period not exceeding 90 days "if
Section 4, act of March 9, 1933, 48 Stat. 2 (U. S. C., title 12, sec.
in its opinion the public interest so requires."
95), forbidding Federal Reserve banks to transact business except
under regulations prescribed by the Secretary of the Treasury with
Title 16, U. S. C., "Conservation."
the approval of the President "during such emergency period as the
Section 16, act of June 10, 1920, 41 Stat. 1072 (U. S. C., title 16,
President
by proclamation may prescribe."
sec. 809), providing that the United States may take over certain
Section 5 (b), act of October 6, 1917, 40 Stat. 415, as amended
power houses, dams, conduits, and reservoirs for the purpose of
(U. S. C., title 12, sec. 95a), authorizing the President to investigate,
manufacturing nitrates, explosives, or munitions of war, or for any
regulate, or prohibit transactions in foreign exchange, and export,
other purpose involving the safety of the United States "when in the
hoarding, melting, or earmarking of gold or silver coin, bullion, or
opinion of the President
the safety of the United States
currency "during time of war or during any other period of national
demands it," paying just compensation for the use.
emergency."
Act of June 10, 1920, as amended by section 213, act of August 26,
1935, 49 Stat. 848 (U. S. C., title 16, sec. 824a (c)), authorizing the
Federal Power Commission to require such temporary connections of
6
EXECUTIVE POWERS UNDER NATIONAL EMERGENCY
EXECUTIVE POWERS UNDER NATIONAL EMERGENCY
7
facilities and such generation, delivery, interchange, or transmission
of any vessel, domestic or foreign, shall deliver to the Collector of
of electric energy as in its judgment will best meet the emergency and
Customs a statement under oath concerning any intended tranship-
serve the public interest "during the continuance of any war in which
ment or delivery of the cargo or any part thereof to other vessels
the United States is engaged, or whenever the Commission determines
in port or upon the high seas.
that an emergency exists by reason of a sudden increase in the demand
Section 5, title V, act of June 15, 1917, 40 Stat. 222 (U. S. C.,
for electrical energy," etc.
title 18, sec. 35), authorizing the Collector of Customs, subject to
Title 18, U. S. C., "Criminal Code and Criminal Procedure."
review by the Secretary of Commerce. to refuse clearance to and
Section 14, act of March 4, 1909, 35 Stat. 1090 (U. S. C., title 18,
forbid the departure of vessels not entitled to clearance or whenever
sec. 26), authorizing the President to employ the land or naval forces
there is reasonable cause to believe that the additional statements
of the United States, or of the militia thereof, for the purpose of taking
required by the preceding section (U. C., title 18, sec. 34, supra)
possession of and detaining, in order to enforce execution of prescribed
are false.
prohibitions and penalties, vessels which are fitted out and armed, etc.,
Section 9, title V, act of June 15, 1917, 40 Stat. 223 (U. S. C., title
contrary to the provisions of the said act.
18, sec. 38), authorizing the President to employ the land or naval
Section 15, act of March 4, 1909, 35 Stat. 1091, as amended (U. C.,
forces of the United States to.carry out the purposes of several sections
title 18, sec. 27), authorizing the President to employ such part of
set forth above and others mentioned in the Code under the heading
the land or naval forces of the United States, or the militia thereof,
"Offenses against Neutrality" (i. e., U.S. C., title 18, secs. 25, 27, and
as he may deem necessary to compel any foreign vessel to depart
31 to 37).
from the United States or any of its possessions in all cases in which,
Title 19, U. S. C., "Customs Duties."
by the law of nations or the treaties of the United States, it ought not
Section 318, title III, act of June 17, 1930, 46 Stat. 696 (U. S. C.,
to remain, and to detain or prevent any foreign vessel from so depart-
title 19, sec. 1318), providing that whenever the President shall by
ing in all cases in which, by the law of nations or the treaties of the
proclamation declare an "emergency to exist by reason of a state of
United States, it is not entitled to depart.
war," or otherwise, he may authorize the Secretary of the Treasury to
Section 17, act of March 4, 1909, 35 Stat. 1091 (U. S. C., title 18,
extend during the continuance of such emergency the time prescribed
sec. 29), providing that collectors of customs shall detain any vessel
in the said (tariff) law for the performance of any act, and may
manifestly built for warlike purposes, and about to depart from the
authorize the Secretary of the Treasury to permit the importation
United States, the cargo of which principally consists of arms and
free of duty of food, clothing, and medical, surgical, and other supplies
munitions of war, when it appears probable that such vessel is intended
for use in emergency relief work.
to be employed by the owners to cruise or commit hostilities upon
the subjects or property of foreign countries with whom the United
Title 22, U. S. C., "Foreign Relations and Intercourse."
etc. States is at peace, until the decision of the President is had thereon,
Section 19, act of May 24, 1924, 43 Stat. 146, as amended (U.S.C.,
title 22, sec. 22), authorizing the President to recall any retired
Section 1, title V, act of June 15, 1917, 40 Stat. 221 (U. S. C.,
Foreign Service officer temporarily to active service in the event of
title 18, sec. 31), providing that during a war in which the United
"public emergency."
States is neutral the President may withhold clearance from any
Section 1, act of May 22, 1918, 40 Stat. 559 (U. S. C., title 22, sec.
vessel which is required by law to secure clearance before departing
223), authorizing the President to impose additional restrictions and
from the United States, etc., whenever there is reasonable cause to
prohibitions upon the departure of persons from and their entry into
believe that such vessel is about to carry fuel, arms, etc., to any
the United States "when the United States is at war."
warship of a foreign belligerent nation in violation of the laws, treaties,
Section 1, act of January 31, 1922, 42 Stat. 361 (U. S. C., title 22,
or obligations of the United States under the law of nations.
sec. 236), providing that whenever the President finds that in any
Section 2, title V, act of June 15, 1917, 40 Stat. 221 (U. S. C.,
American country, etc., conditions of domestic violence exist, which
title 18, sec. 32), providing that during a war in which the United
are or may be promoted by the use of arms or munitions of war pro-
States is neutral the President may detain armed vessels until the
cured from the United States, and makes proclamation thereof, it
owners furnish proof that the vessels will not be employed to commit
shall be unlawful to export, except under such limitations and excep-
hostilities upon the subjects or property of foreign countries with
tions ns the President prescribes, any arms or munitions of war from
which the United States is at peace, etc.
any place in the United States to such country until otherwise ordered
Section 3, title V, act of June 15, 1917, 40 Stat. 222 (U. S. C., title
by the President or by the Congress.
18, sec. 33), providing that during a war in which the United States
Section 1, title VI, act of June 15, 1917, 40 Stat. 223 (U. S. C., title
is neutral it shall be unlawful to send out of the jurisdiction of the
22, sec. 238), providing that under stated conditions certain classes of
United States any vessel built, armed, or equipped as a vessel of war,
officers of the United States and every other person duly authorized
etc., with the intent that such vessel shall be delivered to a
by the President may seize and detain any articles and munitions of
belligerent nation.
war about to be exported from the United States in violation of law,
Section 4, title V, act of June 15, 1917, 40 Stat. 222 (U. S. C.,
and the vessels or vehicles containing them.
title 18, sec. 34), providing that "during a war in which the United
Section 8, title VI, act of June 15, 1917, 40 Stat. 225 (U. S. C., title
States is a neutral" any master or person having charge or command
22, sec. 245), providing that the President may employ such part of
8
EXECUTIVE POWERS UNDER NATIONAL EMERGENCY
EXECUTIVE POWERS UNDER NATIONAL EMERGENCY
9
the land or naval forces of the United States as he may deem neces-
sary to carry out the purposes of certain sections of the said act of
Navy Department vessels, equipment, stations, and personnel of the
June 15, 1917, including section 238, supra.
Lighthouse Service (now a part of the Coast Guard) whenever in the
The joint resolution of May 1, 1937 ("Neutrality Act"), 50 Stat.
judgment of the President "a sufficient national emergency exists."
121 (U. S. C., title 22, secs. 245a et seq.), providing for an embargo
Section 16, act of May 22, 1917, 40 Stat. 87 (U. S. C., title 33, sec.
upon the exportation of arms, etc., and making unlawful certain other
855), authorizing the President to transfer to the War Department,
acts, in the event of a finding and proclamation by the President of
or the Navy Department, vessels, equipment, stations, and personnel
the existence of "a state of war between, or among, two or more foreign
of the Coast and Geodetic Survey whenever in the judgment of the
states."
Pres .dent "a sufficient national emergency exists."
Title 31, U. S. C., "Money and Finance."
Title 34, U. S. C., "Navy."
Act of March 2, 1901, 31 Stat. 910, as amended (U. S. C., title 31,
Act of February 15, 1879, 20 Stat. 295, as amended (U. S. C.,
sec. 80), authorizing an extension of the time for examination of ac-
title 34, sec. 21), authorizing the Secretary of the Navy to appoint
counts covering expenditures for the Army "in time of war."
assistant surgeons for temporary service "in time of war."
Act of July 12, 1870, 16 Stat. 251 (R. S., sec. 3679), as amended
Act of July 1, 1918, 40 Stat. 714, as amended (U. S. C., title 34,
(U. S. C., title 31, sec. 665), authorizing the waiver or modification of
sec. 151), authorizing the President to increase the authorized enlisted
the monthly apportionments of appropriations for governmental de-
strength of the Navy "whenever in his judgment a sufficient emergency
partments and agencies for expenses during the fiscal year, "upon the
exists."
happening of some extraordinary emergency or unusual circumstance
Act of August 29, 1916, 39 Stat. 581 (U. S. C., title 34, sec. 191),
which could not be anticipated at the time of making such apportion-
providing that furloughed enlisted men of the Navy shall be subject
ment."
to recall "in time of war or national emergency" to complete the
Section 43, act of May 12, 1933, 48 Stat. 51, as amended (U. S. C.,
unexpired portion of enlistment.
title 31, sec. 821), authorizing the President to take certain action in
Act of May 22, 1917, 40 Stat. 89 (U. S. C., title 34, sec. 213), au-
respect of credit expansion when he finds "an economic emergency
thorizing the selection of officers for the command of fleets from the
requires an expansion of credit."
grade of captain in addition to that of rear admiral "in time of war."
Act of August 29, 1916, 39 Stat. 579, as amended (U. S. C., title 34,
Title 32, U. S. C., "National Guard."
sec. 311), providing for suspension of the requirement of sea service
Section 49, act of June 4, 1920, 41 Stat. 784, as amended (U. S. C.,
in connection with the promotion of officers of the Navy in exceptional
title 32, sec. 81), authorizing the President to order into the active
cases "during war or national emergency declared by the President
military service of the United States all units and members of the
or by the Secretary of the Navy."
National Guard of the United States, "when Congress shall have
Act of March 3, 1873, 17 Stat. 547 (R. S., sec. 1462) (U. S. C.,
declared a national emergency and shall have authorized the use of
title 34, sec. 421), providing that except as otherwise provided by
armed land forces of the United States for any purpose requiring the
law no officer on the retired list of the Navy shall be employed on
use of troops in excess of those of the Regular Army."
active duty "except in time of war."
Section 4, act of January 21, 1903, 32 Stat. 776, as amended (U. C.,
Act of July 1, 1918, 40 Stat. 717 (U. S. C., title 34, sec. 423), pro-
title 32, sec. 81a), authorizing the President to call forth such number
viding that retired officers of the Navy or Marine Corps may be
of the militia of the States, Territories, or of the District of Columbia
ordered to active duty "during the existence of war or a national
as may be necessary to repel invasion, suppress rebellion, or to enable
emergency declared by the President."
the President to execute the laws of the Union.
Act of December 21, 1861, 12 Stat. 329 (R. sec. 1463), as amended
Section 38, act of June 3, 1916, 39 Stat. 190, as amended (U. S. C.,
(U. S.C., title 34, sec. 424), providing that the President, by and with
title 32, sec. 81c), authorizing the President to the extent provided
the advice and consent of the Senate, may detail officers on the retired
for by appropriations for the specific purpose to order officers of the
list for the command of squadrons or ships "in time of war."
National Guard of the United States to active duty "in an emer-
Act of March 3, 1915, 38 Stat. 941, as amended (U. S. C., title 34
gency" at any time and for the period thereof, provided that except
sec. 433), authorizing the Secretary of the Navy to call retired enlisted
in time of a national emergency expressly declared by the Congress,
men to active service "in time of war, or when a national emergency
no officer of the National Guard shall be employed on active duty for
exists."
more than 15 days in any calendar year without his consent.
Section 4, act of May 13, 1926, 44 Stat. 532 (U. S. C., title 34, sec.
Title 33, U. S. C., "Navigation and Navigable Waters."
440a), providing that retired nurses may be employed on active duty
Act of March 3, 1819 (R. S., secs. 4293, 4294), 3 Stat. 510, 512, and
in the discretion of the Secretary of War or the Secretary of the Navy
"in time of war or national emergency."
act of August 5, 1861, 12 Stat. 315 (R. S., sec. 4298) (U. S. C., title 33,
Section 15, act of June 23, 1938, 52 Stat. 952 (U. S. C., title 34, sec.
secs. 381, 382, and 386), authorizing the President to employ the
public armed vessels to suppress piracy, etc.
626a), limiting the number of general officers on the active list of the
Marine Corps, "except in time of war."
Act of August 29, 1916, 39 Stat. 602 (U. S. C., title 33, sec. 758),
Act of August 29, 1916, 39 Stat. 614 (U. S. C., title 34, sec. 831),
authorizing the President to transfer to the War Department or the
providing 6-weeks-per-year limitation upon Marine Corps Training
10
EXECUTIVE POWERS UNDER NATIONAL EMERGENCY
EXECUTIVE POWERS UNDER NATIONAL EMERGENCY
11
Camps for the instruction of civilians "except in time of actual or
Title 40, U. S. C., "Public Buildings, Property, and Works."
threatened war."
Act of July 9, 1918, 40 Stat. 861 (U. S. C., title 40, sec. 37), author-
Act of February 16, 1914, 38 Stat. 289 (U. S. C., title 34, sec. 851),
izing the Secretary of War to rent or lease any building or part thereof
authorizing the President to commission in the Regular Navy civilians
in the District of Columbia that may be required for military pur-
selected and certified as provided by law "upon the outbreak of war,
poses "in time of war, or when war is imminent."
or when, in his opinion, war is imminent."
Act of March 4, 1917, 39 Stat. 1192 (U. S. C., title 40, sec. 326),
Section 5, act of June 25, 1938, 52 Stat. 1176 (U. C., title 34, sec.
authorizing the President to suspend the provisions of law prohibiting
853c), superseding section 9, act of February 28, 1925, 43 Stat. 1082
more than 8 hours labor in any 1 day by persons engaged upon work
(U. S. C., title 34, sec. 757), authorizing the Secretary of the Navy to
covered by contracts with the United States "in case of national
order to active duty members of the Naval Reserve, including those
emergency."
retired, "in time of war or when in the opinion of the President a
national emergency exists."
Title 48, U. S. C., "The Public Health."
Section 302, act of June 25, 1938, 52 Stat. 1180 (U. S. C., title 34,
Act of July 1, 1902, 32 Stat. 713, as amended (U. S. C., title 42,
sec. 855a), authorizing an allowance to officers of the Naval Reserve
sec. 8), authorizing the President to utilize the Public Health Service
for purchase of uniforms when reporting for active duty "in time of
"in times of threatened or actual war."
war or national emergency."
Act of October 27, 1918, 40 Stat. 1017 (U. S. C., title 42, sec. 18),
Section 303, act of June 25, 1938, 52 Stat. 1181 (U. S. C., title 34,
authorizing the creation of a Reserve for duty in the Public Health
sec. 855b), superseding section 13, act of February 28, 1925, 43 Stat.
Service "in time of national emergency."
1083 (U. S. C., title 34, sec. 761), providing for issuance of outfits, etc.,
Title 46, U. S. C., "Shipping."
for midshipmen, cadets, nurses, and enlisted men of the Naval Reserve
when reporting for active duty "in time of war or national emergency."
Sections l'and 2; act of March 24, 1908, 35 Stat. 46 (U. S. C., title
Section 311, act of June 25, 1938, 52 Stat. 1183 (U. S. C., title 34,
46, secs. 133 and 134), providing that hospital ships in ports of the
sec. 855j), superseding section 16, act of February 28, 1925, 43 Stat.
United States and the possessions thereof shall be exempt "in time
1084 (U. S. C., title 34, sec. 764), providing for precedence in rank of
of war" from all dues and taxes imposed on vessels by the laws of the
officers of the Naval Reserve when mobilized with the Regular Navy
United States, and authorizing the President to name the exempt
"for war or a national emergency."
hospital ships by proclamation and to indicate the time when the
exemptions provided for shall begin and end.
Section 312, act of June 25, 1938, 52 Stat. 1183 (U. S. C., title 34,
sec. 855k), superseding section 17, act of February 28, 1925, 43 Stat.
Section 4, act of July 15, 1918, 40 Stat. 901 (U. S. C., title 46, sec.
1084 (U.S. C., title 34, sec. 765), providing for advancement in rank
835), making it unlawful to transfer vessels, shipping facilities, etc.,
of Naval Reserve and Marine Corps Reserve officers "in time of war
to foreign registry or ownership "when the United States is at war or
or national emergency."
during any national emergency, the existence of which is declared by
proclamation of the President.'
Section 401, act of June 25, 1938, 52 Stat. 1185 (U. S. C., title 34,
sec. 856), superseding section 28, act of February 28, 1925, 43 Stat.
Section 302, act of June 29, 1936, 49 Stat. 1992 (U. S. C., title 46,
1088 (U. S. C., title 34, sec. 841), providing that officers and men of
sec. 1132), authorizing the President to suspend the provisions relating
to citizenship of officers and crews on vessels documented under the
the Naval Reserve who are members of the State Naval Militia shall
stand relieved from service or duty with such militia when on active
laws of the United States, etc., "during a national emergency as pro-
claimed by the President."
duty "in time of war or national emergency."
Section 712 (d), act of June 29, 1936, 49 Stat. 2010 (U. S. C., title
Section 1624, art. 36, R. S., as amended (U. S. C., title 34, sec. 1200,
46, sec. 1202), authorizing the termination of charters of Maritime
art. 36), providing for dismissals of officers of the Navy in time of
Commission vessels "in any national emergency as proclaimed by the
war.
President."
Title 35, U. S. C., "Patents."
Section 902 (a), act of June 29, 1936, 49 Stat. 2015, as amended
Act of October 6, 1917, 40 Stat. 394 (U. S. C., title 35, sec. 42),
(U. S. C., title 46, sec. 1242), authorizing the Maritime Commission
authorizing the Commissioner of Patents to order certain inventions
to requisition any vessel documented under the laws of the United
kept secret and to withhold patent therefor "when the United States
States "during any national emergency declared by proclamation of
is at war."
the President."
Title 36, U. S. C., "Patriotic Societies and Observances."
Title 47, U. S. C., "Telegraphs, Telephones, and Radiotelegraphs."
Act of April 24, 1912, 37 Stat. 90 (U, S. C., title 36, sec. 10), au-
Section 606, act of June 19, 1934, 48 Stat. 1104 (U. S. C., title 47,
thorizing the President to utilize the services of the American Red
sec. 606), authorizing the President to suspend or amend rules and
Cross "in time of war, or when war is imminent."
regulations applicable to transmission of communications by radio or
wire, etc., "upon proclamation by the President that there exists war
Title 37, U. S. C., "Pay and Allowances."
or a threat of war or a state of public peril or disaster or other national
Act of June 10, 1922, 42 Stat. 626 (U. S. C., title 37, sec. 2), au-
emergency, or in order to preserve the neutrality of the United States;"
thorizing increased pay for certain officers of the Army "during the
also to require priority for communications essential to the national
existence of a state of war, formally recognized by Congress."
12
EXECUTIVE POWERS UNDER NATIONAL EMERGENCY
EXECUTIVE POWERS UNDER NATIONAL EMERGENCY
13
defense "during the continuance of war in which the United States
is engaged."
Section 1, title II, act of June 15, 1917, 40 Stat. 220 (U. S. C.,
title 50, sec. 191), authorizing the Secretary of the Treasury, subject
Title 48, U. S. C., "Territories and Insular Possessions."
to the approval of the President, to make rules and regulations govern-
Section 13, act of August 24, 1912, 37 Stat. 569 (U. S. C., title
ing the anchorage and movement of vessels in the territorial waters
48, sec. 1306), authorizing the President to designate an officer of the
of the United States whenever the President has by proclamation or
Army to assume exclusive authority and jurisdiction over the opera-
Executive order declared a "national emergency to exist by reason
tion of the Panama Canal in time of war or when, in his opinion, war
of actual or threatened war, insurrection or invasion, or disturbance
is imminent.
or threatened disturbance of the international relations of the United
States."
Title 49, U. S. C., "Transportation."
U. S. C., title 50, secs. 201-226, conferring extraordinary powers
Section 402, act of February 28, 1920, 41 Stat. 476-477 (U. S. C.,
upon the President to be exercised in case of insurrection.
title 49, sec. 1 (15)), authorizing the Interstate Commerce Commis-
sion to direct preferences and priorities upon certification by the
Statutes not yet included in Code.
President that such preferences and priorities are essential to the
Title I, act of June 29, 1939 (Public, No. 156, 76th Cong., 1st sess.),
national defense and security "in time of war or threatened war."
known as the Department of State Appropriation Act, 1940, providing
Title 50, U.S. C., "War."
that whenever the President finds that a "state of national emer-
gency" exists endangering the lives of American citizens in any foreign
Act of July 6, 1798 (R. S., sec. 4067), as amended by act of April
country, he may make available for expenditure for the protection
16, 1918, 40 Stat. 531 (U. S. C., title 50, sec. 21), providing that
of such citizens a sum, not to exceed $500,000, from the various
"whenever there is a declared war between the United States and
appropriations under the heading "Foreign intercourse."
any foreign nation or government, or any invasion or predatory
incursion is perpetrated, attempted, or threatened against the terri-
Statutes imposing penalties for acts committed in time of war.
tory of the United States by any foreign nation or government, and
There are a number of statutory provisions imposing penalties or
the President makes public proclamation of the event," all nationals
increased penalties for various offenses committed in time of war.
of the hostile nation of the age of fourteen years and upward, within
Some of these appear in the "Articles of War" (U. S. C., title 10, ch.
the United States and not naturalized, shall be liable to be appre-
36), the "Articles for the Government of the Navy" (U. S. C., title
hended, restrained, secured, and removed as alien enemies, and au-
34, ch. 21), the provisions of the Criminal Code dealing with "Of-
thorizing the President by proclamation to direct the conduct to be
fenses against existence of government," "Offenses against neutrality"
observed by and toward such aliens, etc.
(U. S. C., title 18, ch. 1 and 2), etc.
Section 6, act of June 15, 1917, 40 Stat. 219 (U. S. C,, title 50,
sec. 36), authorizing the President to designate prohibited places
under the provisions relating to espionage "in time of war or in case
of national emergency."
Act of June 3, 1916, 39 Stat. 213 (U. C., title 50, sec. 80), provid-
ing for the procurement of war materials "in time of war or when
war is imminent," and authorizing the President to appoint a Board
on Mobilization of Industries Essential to Military Preparedness.
Act of June 16, 1938, 52 Stat. 708 (U. S. C., title 50, sec. 93), pro-
viding that the limitation upon the placing of educational orders for
the manufacture of munitions, etc., "shall not prohibit the awarding
of any contract during any war in which the United States is engaged.
Act of October 6, 1917, 40 Stat. 385 (U. S. C., title 50, sec. 121,
et seq.), dealing with manufacture, possession, licensing, etc., of
explosives "when the United States is at war."
Act of July 2, 1917, 40 Stat. 241, as amended (U. C., title 50, sec.
171), providing for the acquisition of land for military purposes "in
time of war or the imminence thereof."
Act of July 9, 1918, 40 Stat. 888, as amended (U. S. C., title 50,
sec. 172), providing for the acquisition of property for production of
lumber "in time of war or the imminence thereof.'
Act of April 11, 1898, 30 Stat. 737 (U. S. C., title 50, sec. 178),
authorizing the President to order the erection of any temporary fort
or fortification upon the written consent of the owner of the land upon
which such work is to be placed "in case of emergency."
IN REPLY ADDRESS
THE JUDGE ADVOCATE GENERAL OF THE NAVY
AND REFER TO NO.
L:dc
I
12
DEPARTMENT OF THE NAVY
OFFICE OF THE JUDGE ADVOCATE GENERAL
WASHINGTON, D. C.
STAL 9 DEPARTMENT 2 UNIT 3
6
DEFENSE
CONFIDENTIAL
QCT311941 AM
October 24, 1941
MEMORANDUM FOR THE PRESIDENT.
In compliance with a verbal directive received through
Rear Admiral McIntire (MC), U. S. Navy, there is set forth
below a summary of the statutes which will come into force
when "war is inminent," "in time of grave public
emergency, If or in comparable situations:
Act of May 27, 1908 (35 Stat. 400, sec. 3; U. S.
Code 32: 8la): The President may call out such
number of the militia of the States, Territories,
or the District of Columbia as may be necessary
"whenever the United States is invaded or in
danger of invasion from any foreign nation, or of
rebellion against the authority of the Government
of the United States, or the President is unable
with the regular forces at his command to execute
the laws of the Union."
Act of June 4, 1920 (41 Stat. 808, art. 104;
U. S. Code 10: 1576) : Certain commanding officers
of the Army "in time of war or grave public emer-
gency" may impose, as additional punishment upon
officers under their command, forfeiture of not
more than one-half of 1 month's pay.
Act of June 4, 1920 (41 Stat. 811, art. 119; U. S.
Code 10: 1591): The President may assign the com-
mand of forces in the field, "in time of war or
public danger, without regard to seniority of
rank in the same grade.
Franklin D. Roosevelt Library
DECLASSIFIED
DOD
DIR.
5200.9 (9/27/58)
Date- 3-5-59
Signature- Carl L. Spicer
- 2 -
Act of May 29, 1934 (48 Stat. 816, ch. 370;
U. S. Code 10: 17): The provision that Army
officers or enlisted men are not to be required
to serve more than 2 years on tours of duty on
foreign stations is not to be applicable "in
case of insurrection or of actual or threatened
hostilities and * * * for temporary emergencies."
Act of May 14, 1940 (54 Stat. 214, ch. 195; Pub.,
No. 514) : The President may, within the limit of
the total authorized strength of the Regular
Army, authorize additional enlistments in the
Medical Department, "in event of actual or
threatened hostilities involving the United
States, to such number as he deems necessary.
Act of June 3, 1916 (39 Stat. 204, sec. 86; U. S.
Code 32: 39): Material of war, purchased by
States from Army stores, may be requisitioned by
the United States for use in the military service
"in time of actual or threatened war."
Act of July 9, 1918 (40 Stat. 893; U. S. Code 10:
1287) : The proceeds from operation of public
utilities in connection with engineer operations
in the field overseas are to be available for such
utilities "in case of actual or threatened war."
Soldiers' and Sailors' Civil Relief Act of
October 17, 1940 (54 Stat. 1189, sec. 510, 1190,
sec. 512, 1191, sec. 604; Public, No. 861): A
homestead entryman is entitled to a leave of ab-
sence from his entry for the performance of farm
labor during the pendency of any war in which the
United States may be engaged.
Act of February 4, 1887, 24 Stat. 380, as amended
(U.S.C., title 10, sec. 1362), providing for
preference to shipments of troops and material
of war upon demand of the President "in time of
war or threatened war.
- 3 -
Act of July 5, 1884, 23 Stat. 110, as amended
(U.S.C., title 10, sec. 1364), waiving the re-
quirement of advertising in connection with
purchases of transportation and equipment by the
Army "in cases of extreme emergency. ft
Act of August 29, 1916, 39 Stat. 614 (U.S.C.,
title 34, sec. 831), providing 6-weeks-per-year
limitation upon Marine Corps Training Camps for
the instruction of civilians "except in time of
actual or threatened war. If
Act of February 16, 1914, 38 Stat. 289 (U.S.C.,
title 34, sec. 851), authorizing the President
to commission in the Regular Navy civilians
selected and certified as provided by law "upon
the outbreak of war, or when, in his opinion,
war is imminent."
Section 13, act of August 24, 1912, 37 Stat. 569
(U.S.C., title 48, sec. 1306), authorizing the
President to designate an officer of the Army to
assume exclusive authority and jurisdiction over
the operation of the Panama Canal in time of war
or when, in his opinion, war is inminent.
Act of July 2, 1917, 40 Stat. 241, as amended
(U.S.C., title 50, sec. 171), providing for the
acquisition of land for military purposes "in
time of war or the imminence thereof.
Act of July 9, 1918, 40 Stat. 861 (U.S.C.,
title 40, sec. 37), authorizing the Secretary
of War to rent or lease any building or part
thereof in the District of Columbia that may be
required for military purposes "in time of war, or
when war is imminent."
Act of June 19, 1912 (37 Stat. 138, sec. 2; U. S.
Code 40: 325) : The President is authorized to
waive stipulations of the 8-hour law in public
contracts "during time of war or a time when war
is imminent.
- 4 -
Act of April 24, 1912, 37 Stat. 90 (U.S.C.,
title 36, sec. 10), authorizing the President
to utilize the services of the American Red
Cross "in time of war, or when war is imminent."
Section 402, act of February 28, 1920, 41 Stat.
476-477 (U.S.C., title 49, sec. 1 (15)), author-
izing the Interstate Commerce Commission to
direct preferences and priorities upon certifi-
cation by the President that such preferences
and priorities are essential to the national de-
fense and security "in time of war or threatened
war. If
Act of June 3, 1916, 39 Stat. 213 (U.S.C., title
50, sec. 80), providing for the procurement of
war materials in time of war or when war is im-
minent," and authorizing the President to appoint
a Board on Mobilization of Industries Essential
to Military Preparedness.
Act of July 9, 1918, 40 Stat. 888, as amended
(U.S.C., title 50, sec. 172), providing for the
acquisition of property for production of lumber
"in time of war or the imminence thereof."
Act of July 1, 1902, 32 Stat. 713, as amended
(U.S.C., title 42, sec. 8), authorizing the
President to utilize the Public Health Service
"in times of threatened or actual war."
No determination is made with respect to the ques-
tion of the authority to proclaim that war is imminent,
that war is threatened, and so forth. It is assumed
that such declarations are a function of the President.
There is attached hereto a comprehensive memorandum
prepared in this office of the statutes, exclusive of
those brought into effect by the existing national
emergency, which are applicable in time of war or
- 5 -
imminency thereof, in time of emergency declared by
the Congress, and so forth.
Very respectfully,
W. B. WOODSON