Chapter II: Preface

A preface is a kind of last call to dinner, as it were, in which the authors suggest the purpose of their undertaking, chart the course they have chosen to pursue, and acknowledge the help they have received.

This study of the President’s use of emergency powers grew out of research and discussions in Washington, D. C., and at Harvard, the University of California, and other institutions. In one sense, it is a sequel to Dr. Cotter’s study of emergency powers in Great Britain, prepared under Harvard’s Sheldon Travelling Fellowship during the academic year 1951-52.

In preparing a political science course at the University of California’s Riverside campus, one of the most significant gaps in available sources and treatises about the Presidency concerned the vast range of power, generally called emergency powers, available to the Chief Executive should he choose to follow the prescription used by many predecessors, notably F.D.R.

Both authors have, of course, profited from the monumental work of Professor Edward S. Corwin, whose classic study, _The President: Office and Powers_ remains the outstanding work in the field. Professor Robert S. Rankin’s study, _When the Civil Law Fails_, contained valuable historical data of particular importance. Both authors have also had the inestimable privilege and opportunity of studying under Professor Charles Fairman, now at Harvard Law School. Professor Fairman’s study, _The Law of Martial Rule_, was very helpful in providing the historical setting for government under military control. The authors were fortunate in having read Professor Fairman’s paper delivered at the National War College, “A Post-Atomic Attack Situation,” wherein it is clearly brought forth that a complete plan and pattern for dealing with a nuclear attack must be worked out that does envisage the restoration of civil government to the nation as quickly as circumstances permit, should the cold war ever turn into an all-out nuclear holocaust.

While the original work on the manuscript was completed before either of the authors came to Washington, both have benefitted from the experience of working in the Pentagon, the Commission on Civil Rights, the Republican National Committee and the U. S. Senate. One is apt to view the executive branch of government from a slightly different perspective, once having been associated with “the Hill.” And, while the Congress may feel powerless to act against a determined Chief Executive, the power of the purse still provides the most effective of all the “checks and balances” in our national government, except in time of war.

The Fund for the Republic provided the authors with a grant-in-aid in 1955 to begin work on the book, although the Fund had no contact or association with the authors during the preparation of the manuscript.

Parts of some chapters have previously appeared as article in the _Western Political Quarterly_ and _The Journal of Politics_, and the authors wish to acknowledge their appreciation at being able to reproduce all or parts of these articles.

Mr. Warren Campbell served as a helpful research assistant while a graduate student at Stanford and rendered invaluable aid. Dr. Norman Small of the American Law Division of the Library of Congress performed an essential editorial task in reading the entire manuscript and suggesting very useful changes.

The authors are both grateful to Mrs. Connie Smith, a patient wife, who spent long, dreary hours typing and re-typing the manuscript. And, last, but by no means least, the authors reserve a special vote of the very deepest appreciation to the Executive Director of Public Affairs Press, Mr. M. B. Schnapper whose patience, confidence and continued good humor made publication possible.

J. MALCOLM SMITH AND CORNELIUS P. COTTER
_Washington, D. C._

CONTENTS

I
Introduction 1

II
The Concept of Emergency in Democratic Political Thought 4

III
The Concept of Emergency in American Legislation 14

IV
Emergency Powers Over Persons 26

V
Governmental Acquisition of Property 47

VI
Regulation of Property 55

VII
Control of Communications 73

VIII
Legislative Restraints on the Administration of Emergency Powers 93

IX
Inter-Agency Relationships 110

X
Judicial Review 125

XI
Conclusions 144

References 147

Index 177

ABOUT THE AUTHORS

J. Malcolm Smith received his education at the U.S. Naval Academy, the University of Washington, and Stanford University. After three years as an officer in the Army during World War II, he received an A.B. degree from the University of Washington in 1946, and an M.A. (1948) and Ph.D. (1951) from Stanford University. He has combined academic and governmental service since he began his career as an instructor in political science at Stanford University in 1947. He has taught at Columbia University and the University of California. He organized the first World Affairs Council in Los Angeles, for the Foreign Policy Association and served as its first Executive Director from 1952-54.

Since coming to Washington, D. C., Mr. Smith served as a consultant to the Assistant Secretary of the Air Force (1957-58), and the President’s Commission on Civil Rights (1958-59) before joining the staff of Senator Thomas H. Kuchel of California as Assistant to the Minority Whip of the U.S. Senate.

Cornelius P. Cotter began his academic career at Stanford University in 1946 following three years as a Navy Seabee in the Pacific during the Second World War. He received his A.B. in 1949 from Stanford, and an M.P.A. (1951) and Ph.D. in government (1953) from Harvard University. He was a Sheldon Travelling Fellow from Harvard University to the University of London from 1951-52. After serving as Instructor in Government at Columbia University 1952-53, he returned to his alma mater, Stanford, in 1953 as an Assistant Professor of Political Science. He is currently on leave as an Associate Professor from Stanford University to serve as a special assistant to the Chairman of the Republican National Committee, Senator Thruston B. Morton. From December 1958 to December 1959, he served as the Citizenship Clearinghouse Fellow to the Republican National Committee.

The authors have contributed to the Western Political Quarterly, Stanford Law Review, the Journal of Politics, and the Midwestern Political Science Review. Currently they are collaborating on a textbook in American Government.

This study of presidential emergency powers was initiated by the authors in 1955 while teaching at Stanford and the University of California; revision and expansion were undertaken in Washington, D. C., during 1959 and 1960.